Plaintiff v Defendants

1 This ruling is about whether the plaintiff's proceeding against the second defendant seeking damages for historic sexual abuse should be either permanently or temporarily stayed.

2 When the plaintiff was nine years old he joined a youth organisation, Ichud Habonim Zionist Youth Movement (Ichud Habonim). The plaintiff alleges that organisation was run by Beit Habonim Pty Ltd (first defendant). The first defendant denies this allegation. Alan Weiden (second defendant) was a youth group leader at Ichud Habonim. His role involved supervising children and organising various activities on multi-day camps run by Ichud Habonim.

3 The plaintiff alleges that in 1974, when he was 12 years old, he attended a 10-day camp, organised by the first defendant, in Ballarat in the State of Victoria (camp), where he was sexually abused by the second defendant. After returning from the camp, the plaintiff alleges he was sexually abused by the second defendant at various locations around the Melbourne metropolitan area, including in the plaintiff's family home.

4 The second defendant was 18 years old at the time of the alleged abuse. He has lived in Israel since 21 May 1982. Since moving to Israel, he has returned to Australia only twice for very short periods in 2004. He holds both Israeli and Australian citizenship.

5 The plaintiff's proceeding alleges that the first defendant negligently exposed him to the abuse, perpetrated by the second defendant, for which the first defendant is vicariously liable. The plaintiff seeks damages for injuries suffered by him as a result of the abuse.

6 The first defendant did not seek to be heard on the second defendant's stay application other than to submit that if the Court granted a stay it should apply to the whole of the proceeding, not just to the proceeding as it relates to the second defendant. The plaintiff accepted that if the proceeding was stayed as against the second defendant, the whole of the proceeding should be stayed.

7 For the reasons given below I have decided that the second defendant's application for a stay will be refused.

8 The plaintiff alleges that the second defendant abused him at three locations: the camp (camp allegations), in parks and golf courses around Melbourne (park allegations) and at the plaintiff's home (home allegations).

9 The plaintiff says that he attended the camp around 25 December 1974. During the camp, the second defendant took the plaintiff to a shower block on nine separate occasions. The plaintiff describes the following incidents:

(a) on 26 December 1974, the second defendant woke the plaintiff at about 5:00 am and led him to the shower block. They undressed and stepped into showers facing each other. The second defendant masturbated himself to ejaculation in full view of the plaintiff. The second defendant then told the plaintiff to masturbate, joined the plaintiff in his shower stall and fondled the plaintiff's penis. After a short time the second defendant returned to his own shower stall, washed and dressed himself and told the plaintiff not to tell anyone what had occurred and that they would repeat it again the next day;

(b) the following day, the events of the previous day were repeated. In addition, the second defendant placed the plaintiff's penis in his mouth. After a short time, the second defendant asked the plaintiff to copy what the second defendant had done. The second defendant placed his penis in the plaintiff's mouth;

(c) the following day, the events of the previous day were repeated except that the second defendant also kissed the plaintiff on the lips. When the second defendant returned to his shower stall after abusing the plaintiff, another youth group leader entered the shower block and asked the second defendant why he was showering with the plaintiff at such an early time in the morning. The plaintiff and second defendant stopped showering, dressed and returned to the dormitories;

(d) on each of day five through to day 10 of the camp, the events of the previous days were repeated, except that the second defendant woke the plaintiff earlier than the previous four days and walked an alternative route to the shower block to avoid being caught by another youth group leader. On these days, the second defendant did not turn on the lights in the shower block; and

(e) the plaintiff says that he wanted the abuse to stop and that he pretended at various stages to have a toothache so that he could attend the camp's sick bay and avoid camp activities. He says that he unsuccessfully tried to persuade his parents to let him come home early from the camp.

10 In January or February 1975, after the plaintiff returned home from the camp, the second defendant took the plaintiff to various locations around the Melbourne metropolitan area, in particular parks and golf courses, where he abused the plaintiff. The plaintiff says the following about the park allegations:

(a) he cannot recall precisely the dates of the abuse other than that they occurred in late January or early February 1975;

(b) the locations of the abuse included secluded car parks in Studley Park and Yarra Bend Park in Fairfield, and golf courses around the Frankston area;

(c) on each occasion the second defendant masturbated himself, fondled the plaintiff's penis, put the plaintiff's penis in his mouth, put his penis in the plaintiff's mouth and attempted to kiss the plaintiff; and

(d) on each occasion the second defendant attempted unsuccessfully to penetrate the plaintiff's anus with his penis.

11 In January or February 1975, the second defendant attended the plaintiff's home in Caulfield South in Victoria. The plaintiff cannot remember the exact date of the incident. In relation to the home allegations, the plaintiff says:

(a) the plaintiff was at home alone;

(b) when the second defendant arrived, they went to the plaintiff's bedroom where they undressed and lay on the floor next to each other;

(c) again the second defendant masturbated himself, fondled the plaintiff's penis, put the plaintiff's penis in his mouth, put his penis in the plaintiff's mouth, attempted to kiss the plaintiff and unsuccessfully attempted to anally penetrate the plaintiff with his penis; and

(d) the abuse stopped when the plaintiff and second defendant heard the plaintiff's mother arriving home.

12 The second defendant has filed a defence to the plaintiff's further amended statement of claim. The second defendant admits that he was a member of Ichud Habonim from about 1966 to 1978 and that he was a youth group leader from about November 1974 to 1976. He admits that he was on the camp but does not admit that the plaintiff was there. He says he never took any camp participants to the shower block and that the shower incidents (ie the camp allegations) described by the plaintiff did not occur.

13 The second defendant says that the park allegations did not occur. He denies taking the plaintiff to any parks, golf courses or locations in the Melbourne metropolitan area and says that in January 1975 he travelled to Israel, where he spent the next 12 months.

14 The second defendant denies ever attending the plaintiff's home and says the matters constituting the home allegations did not occur.

15 The first defendant has also filed a defence. It does not admit that the plaintiff was a member of Ichud Habonim between 1971 and 1975. It denies that the second defendant was acting as its servant or agent in his role of youth group leader of Ichud Habonim. In relation to the incidents of alleged abuse, the first defendant says that it does not know and can neither admit nor deny the allegations.

16 Mr Strahinja Steva Pajic, the second defendant's solicitor, has sworn two affidavits in support of the second defendant's application for a permanent, or alternatively temporary, stay of the proceeding.

17 Mr Pajic's first affidavit, sworn 17 May 2022, exhibits documents produced in response to the plaintiff's subpoena for production addressed to the Chief Commissioner of Victoria Police. That subpoena sought documents in relation to the investigation and application for extradition of the second defendant for the abuse. The documents provided by Victoria Police reveal that:

(a) the plaintiff first made a complaint to the police about the abuse on 4 December 2015;

(b) on 17 October 2017, the plaintiff made an additional statement to the police in which he provided information about the locations of the abuse, the name of someone who had attended the camp at the same time as the plaintiff and someone the plaintiff had told of the abuse;

(c) on 5 December 2017, the plaintiff identified the building in Ballarat where the abuse took place;

(d) the first defendant had searched its records and there were no hard copy or computer records available to corroborate the attendance of the plaintiff or the second defendant at the camp, although inquiries with the community confirmed the second defendant had been a youth group leader;

(e) a list of youth group leaders who were in attendance at the camp in 1974‑75 was provided to the police. However, the youth group leader who allegedly witnessed the plaintiff and the second defendant in the shower block could not be identified;

(f) the plaintiff made a further statement to the police on 1 June 2018 and a clarification statement on 18 July 2018;

(g) the brief of evidence was prepared and identified two counts of attempted buggery and 10 counts of indecent assault;

(h) the brief of evidence was passed up the police chain of command to consider whether an application should be made for the second defendant to be extradited from Israel;

(i) on 25 October 2018, the Acting Commander made a final decision not to approve extradition and that a warrant of apprehension should be issued and executed should the second defendant return to Australia;

(j) warrants of apprehension in relation to the offences of attempted buggery (x2) and indecent assault (x10) have been issued; and

(k) on 3 January 2019, the investigation was formally completed and the brief of evidence filed pending the second defendant's return to Australia.

18 The plaintiff made four statements to the police.

19 The plaintiff's first statement was made on 4 December 2015. In that statement, the plaintiff says that he remembers attending two summer camps at the Ballarat Airfield with the Ichud Habonim youth group. He recalls that one camp in Ballarat occurred just after Cyclone Tracy hit Darwin in 1974. The plaintiff describes the second defendant and says that the first time he was abused by the second defendant was 'within a few days of being on the camp.' He describes three incidents of abuse occurring on consecutive mornings of the camp. Each involved the second defendant waking the plaintiff and taking him to a small shower block. Once at the shower block, the plaintiff and the second defendant undressed and each stepped into a shower opposite each other. The second defendant then masturbated to ejaculation, asked the plaintiff to masturbate while he watched and then asked if he could join the plaintiff in his shower. The plaintiff agreed and the second defendant joined the plaintiff and fondled the plaintiff's penis. A short time later, the second defendant returned to his own shower. The pair then finished showering, dried and dressed themselves. The only difference in the incidents described by the plaintiff was that on the second occasion, while in the plaintiff's shower, the second defendant put the plaintiff's penis in his mouth and asked the plaintiff to do the same to him. The plaintiff did so. On the third occasion, in addition to the actions that had occurred on the first and second occasions, the second defendant kissed the plaintiff on the lips. Relevantly, the plaintiff says that nothing further happened with the second defendant on the camp. The plaintiff says he remembers he did not understand what was going on and wanted it to stop so he pretended to have a toothache and kept going to the sick bay. When his parents made a day visit to the camp, the plaintiff tried to persuade them to take him home. He remained at the camp.

20 The plaintiff says of the park allegations that the second defendant would pick him up in either his family's car or the second defendant's car and that 'we went to various golf courses and he would park the car and the same things would happen.' The plaintiff then describes the abuse detailed above at [10].

21 The plaintiff's first statement then says that '[t]he last time that anything happened with [the second defendant] was in the next holiday break after the Christmas holiday camp.' The plaintiff goes on to describe the home allegations detailed above at [11].

22 The plaintiff continues his first statement saying that, in 1984 or 1985, he told someone of the abuse but did not tell that person about all of the sexual acts.

23 The plaintiff made a second statement to the police on 18 December 2017, in order to amend and supplement the information in his first statement. In the second statement, he describes his family home and annexes a hand-drawn plan of those premises. He identifies photographs of the interior of the house obtained from a historical internet real estate listing of the premises for sale. The plaintiff identifies a photograph of the bedroom where the home allegations took place.

24 In relation to the camp allegations, the plaintiff says that while in his first statement he said that the second defendant had abused him within a few days of being on the camp, he now remembers that the camp went for 10 days and the abuse started on the second morning of the camp and continued for the next eight days. In addition, the plaintiff says that while in his first statement he said that the day the other youth group leader appeared in the doorway while the plaintiff and the second defendant were showering was the last time the second defendant abused the plaintiff at the camp, he now remembers that the abuse continued in the shower block for the remainder of the camp. The plaintiff describes the new circuitous route that the second defendant then took to get to the shower block for the remainder of the camp. The plaintiff annexes to his second statement an aerial image of the camp site that he located on the internet and identifies the shower block where the abuse took place.

25 In the plaintiff's second statement, he says that while he said he pretended to have a toothache at the camp in his first statement, he did end up having problems with his teeth when he returned home from the camp. The plaintiff said that in the two weeks following the camp he had nine fillings.

26 The plaintiff's second statement also describes a trip to the camp site that he took with police on 5 December 2017. On this trip, the plaintiff identified the shower block that he said was the location where he was abused by the second defendant. Detective Leading Senior Constable David Ian Rae (D/LSC Rae), who accompanied the plaintiff on the trip to Ballarat, took photographs of the camp site, buildings and shower block which are annexed to the plaintiff's second statement. When he again accompanied the plaintiff to the location on 18 December 2017, D/LSC Rae took further photographs of parts of the camp buildings that had not been accessible on 5 December 2017. These photographs are also annexed to the plaintiff's second statement.

27 Finally, the plaintiff identifies two other people who he told about the sexual abuse.

28 The plaintiff made a third statement to the police on 31 May 2018. This short statement annexes three photographs. The first depicts the attendees at the camp at the end of 1974 and into early 1975, assembled on the parade ground located at the rear of the accommodation block. The plaintiff is able to identify himself in the photograph. The second photograph depicts the plaintiff in his grade 6 primary school class photograph. Again, the plaintiff is able to identify himself. The third photograph is a single head shot of the plaintiff taken in 1974, when the plaintiff was 12 years old.

29 The plaintiff made a fourth short statement to police on 18 July 2018. In this statement, the plaintiff clarifies that while in his first statement he referred to two camps conducted in Ballarat that he attended, the camp allegations all occurred during the camp at Ballarat after Christmas Day 1974 and in to early January 1975. In this statement, the plaintiff also says that he is not able to identify the location in the vicinity of Yarra Bend Golf Course, Fairfield, where he says one of the incidents making up the park allegations occurred. Finally, the plaintiff says that while in his first statement he said the incident making up the home allegations occurred during the next holiday break after the camp, he meant the same 1974-75 school holiday period and prior to the second defendant's departure to Israel in February 1975.

30 The police brief contains a number of statements by unnamed people.

31 The first statement by an unnamed person (unnamed person one) was made on 24 November 2017 to D/LSC Rae. Unnamed person one recalls meeting the plaintiff during 1987, when they were both employed by the same organisation. About six months after they met, the plaintiff told unnamed person one that when he was about 12 years old he attended a camp during which he was sexually assaulted by one of the camp leaders. Unnamed person one specifically recalls the plaintiff mentioning an incident in the shower area of the camp and that the incidents involved the camp leader masturbating in front of the plaintiff, masturbating the plaintiff and oral sex. The plaintiff told unnamed person one that the same man abused him repeatedly, including after the camp was finished, in the front seat of the man's car.

32 The statement by unnamed person two was made on 20 December 2017 to D/LSC Rae. Unnamed person two met the plaintiff through a mutual friend in 1996. Unnamed person two recalls being told by the plaintiff in about 1997 that he had been sexually abused as a child by a youth leader at a camp and in his bedroom. The plaintiff raised the abuse a number of times with unnamed person two and described incidents involving oral sex.

33 Unnamed person three made a statement to D/LSC Rae on 23 November 2017. Unnamed person three has been a friend of the plaintiff for around 50 years. Unnamed person three attended the Ichud Habonim summer camps in the 1972‑73‑74 period. In mid-October 2017, the plaintiff visited unnamed person three and told him that he had been abused by the second defendant at and after his first Ichud Habonim camp. The plaintiff told unnamed person three that the abuse had occurred in the shower block and described other incidents that had occurred after the camp. Unnamed person three says he recalled the second defendant's name as being one of the youth group leaders at the camp.

34 Unnamed person four made a statement to D/LSC Rae on 15 January 2018. Unnamed person four attended Ichud Habonim from the age of 12 and became a youth group leader. Unnamed person four attended the Ichud Habonim summer camp in Ballarat during December 1974 into early January 1975. Unnamed person four recalls both the plaintiff and the second defendant were present during that camp. Unnamed person four cannot recall seeing any interaction between the plaintiff and the second defendant and never received any complaints of inappropriate behaviour from any child who attended that camp. After the camp, in early February 1975, unnamed person four travelled to Israel with the second defendant to participate in an Ichud Habonim education program. Unnamed person four returned to Melbourne in January 1976 and believes that the second defendant also returned to Melbourne at that time. Unnamed person four gave police copies of a number of photographs from the 1974‑75 Ichud Habonim summer camp. Three of the photographs depict the second defendant. One depicts the plaintiff.

35 D/LSC Rae took a statement from unnamed person five on 23 January 2018. Unnamed person five describes the structure of Ichud Habonim. Unnamed person five attended two camps, including one in Ballarat in December 1974, at which they were the responsible person for the entire camp and managed the youth group leaders. Unnamed person five recalls the second defendant as a member of Ichud Habonim who was a few years younger than unnamed person five but does not have a specific memory of the second defendant attending the Ballarat camp at the end of 1974. Similarly, unnamed person five recalls the plaintiff as a member of the younger group at Ichud Habonim but cannot recall whether or not the plaintiff attended the Ballarat camp in December 1974.

36 On 9 July 2018, D/LSC Rae took a statement from unnamed person six. Unnamed person six was a youth group leader at the 1974 Ichud Habonim summer camp in Ballarat. Unnamed person six recalls the second defendant being present at the camp in a logistics role. He also recalls the plaintiff being part of Ichud Habonim but not specifically whether the plaintiff was at the Ballarat summer camp in December 1974. Unnamed person six told police that the second defendant resides with all his immediate family in Israel.

37 Unnamed person six described an incident that occurred when he was aged 14 or 15 years while sleeping over at the same house as the second defendant. Unnamed person six awoke in the night with the second defendant on top of him with his face close to unnamed person six's face. The second defendant told unnamed person six he wanted to engage in sexual activity with him. Unnamed person six protested, at which time the second defendant offered him money to engage in sexual activity. Unnamed person six said no and the second defendant then left. They did not ever speak of the incident.

38 Unnamed person seven gave a statement to D/LSC Rae on 14 March 2018. After police informed unnamed person seven in December 2017 of the plaintiff's complaint, unnamed person seven conducted a thorough search of the records held at the Melbourne Ichud Habonim clubhouse. Unnamed person seven was unable to find any records in relation to camp attendees or camp leaders going back to the 1974‑75 period.

39 D/LSC Rae made a statement on 19 July 2018. In his statement, D/LSC Rae recounts the two trips made to Ballarat with the plaintiff on 5 and 18 December 2017. He also states that his investigations into the second defendant show that he currently lives in Israel and has not returned to Australia since 2004.

40 Mr Pajic's first affidavit refers to a medical report of Dr Elise Bialylew, Psychiatry Registrar, dated 13 February 2012 and a medical report by Professor Lorraine Dennerstein, dated 12 April 2019, both relating to the plaintiff. Both reports refer to head and other injuries sustained by the plaintiff in motor vehicle accidents in 1979 and 1980. Both reports are exhibited to Mr Pajic's first affidavit. Dr Bialylew reports that the plaintiff's head injury resulted in his increasing use of drugs and alcohol resulting in a downward spiral including the loss of his wife and family, loss of houses and loss of his business. Professor Dennerstein reports that the plaintiff has experienced back pain for the last 10 years as a result of significant injuries suffered in the motor vehicle accidents.

41 Mr Pajic swore a second affidavit on 2 June 2022 in support of the second defendant's stay application. Mr Pajic's affidavit exhibits his file note of his conversation with D/LSC Rae on 1 June 2022 about the possible extradition of the second defendant. Mr Pajic's file note says that D/LSC Rae told Mr Pajic that the reason why the second defendant's extradition was not sought was because 'it was a 1 vs 1 matter and there was insufficient evidence to justify extradition at that time.' When Mr Pajic asked D/LSC Rae whether the decision to seek the second defendant's extradition would be revisited if new evidence came to light, he notes being told, 'the decision would absolutely be revisited however it would require new evidence to be uncovered such as other victims or witnesses coming forward'. Mr Pajic notes that D/LSC Rae could not rule out extradition proceedings in relation to the second defendant, repeating what he had said earlier about the requirement for new evidence.

42 Mr Pajic's second affidavit also states that he subpoenaed the plaintiff's medical records from each of the practitioners identified by the plaintiff. Mr Pajic was unable to obtain any medical records from the time of the motor vehicle accidents referred to in his previous affidavit. Mr Pajic also subpoenaed the Transport Accident Commission for any documents relating to the plaintiff. As at 2 June 2022, the Transport Accident Commission had not produced any documents to the Court.

43 Finally, Mr Pajic's affidavit exhibits a map of Studley Park and Yarra Bend Park he obtained from the Parks Victoria website.

44 Thomas Robert McCredie, the solicitor for the plaintiff, affirmed an affidavit in support of the plaintiff's opposition to the second defendant's stay application on 27 May 2022. Mr McCredie deposes that he had a conversation with D/LSC Rae on 26 April 2022, in which D/LSC Rae told him that warrants for the apprehension of the second defendant had been issued and would remain in place for the foreseeable future and would be enforced if the second defendant returned to Australia. Mr McCredie says that D/LSC Rae told him that there is no likelihood of Victoria Police changing its decision not to seek the second defendant's extradition from Israel.

45 Mr McCredie deposes that he has been told that the plaintiff concealed the abuse for many years due to the shame, disgust, embarrassment and guilt the plaintiff felt. In addition, the second defendant, who was in a position of authority in relation to the plaintiff, had told the plaintiff not to tell anyone about the abuse and the plaintiff complied with that instruction until he was an adult. Mr McCredie says that the plaintiff became aware of the Royal Commission Into Institutional Responses to Child Sexual Abuse (Royal Commission) in 2013. The plaintiff disclosed the abuse to the Royal Commission after strong encouragement from his ex-wife. In his disclosure session with the Royal Commission, the plaintiff was encouraged to report the abuse to the police. The plaintiff first contacted Victoria Police in December 2015.

46 Mr McCredie says that in late 2017, Victoria Police encouraged the plaintiff to seek legal advice in relation to a possible civil claim in connection with the abuse. Prior to this time, the plaintiff had been unaware that he could potentially make a civil claim about the abuse. He contacted lawyers based in Queensland for advice but did not proceed due to his anxiety about disclosing the abuse. The plaintiff initially met with his current legal representatives on 18 December 2017 and formally engaged the firm of Mazzeo Lawyers to act for him on 20 July 2018. Following their engagement, Mazzeo Lawyers undertook preliminary investigations, including obtaining medical records and medico-legal reports and investigating whether it was possible to join an institutional defendant to the proceeding. The plaintiff's writ and statement of claim were filed on 21 November 2019.

47 Mr McCredie notes that the plaintiff became entitled to commence civil proceedings in relation to the abuse only after the commencement of the Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic) in April 2015.

48 Mr McCredie believes that the plaintiff's four statements to the police are internally consistent and also consistent with the plaintiff's Further Amended Statement of Claim, filed 29 March 2021, and his answers to interrogatories, dated 28 October 2021. In particular, Mr McCredie notes that:

(a) at paragraph [30] of the plaintiff's first statement to police he alleged the second defendant attempted penetration of his anus in the second defendant's car. In the plaintiff's fourth statement to police, he specifies that the car was parked in the vicinity of the Yarra Bend Golf Course in Fairfield, Victoria, at the time;

(b) when the plaintiff stated in his first statement to police that 'the last time that anything happened with [the second defendant] was in the next holiday break after the Christmas holiday camp', the plaintiff was referring to the period immediately after the camp but during the same 1974‑75 summer school holiday period; and

(c) the plaintiff's first and fourth statements accurately reflect what occurred with the plaintiff's teeth, ie that the plaintiff feigned having a toothache on camp but approximately two weeks after the camp the plaintiff attended the dentist and received nine filings.

49 Mr McCredie deposes that on 24 May 2022, he called and spoke to a Mr John Hartigan at Ballarat City Council. Mr Hartigan is the manager of the Ballarat Airfield Base, which includes the building where the plaintiff says the camp allegations took place. Mr Hartigan explained to Mr McCredie that the shower block building is heritage listed and has remained as it was, with no structural changes other than some recent restumping. Mr Hartigan told Mr McCredie that anyone wishing to view the building should contact the property manager.

50 Mr McCredie says that the plaintiff's mother told him that she recalled nothing about the camp other than that her son attended and she visited him on one of the days of the camp. She also recalled that, during the summer holidays, various people visited the plaintiff at their home but she could not recall their names or their faces.

51 The second defendant's application for a permanent stay is made in accordance with the principles set out by the Court of Appeal in Connellan v Murphy[1] (Connellan) and per Keogh J in Grant v Bird[2] (Grant). Those principles are well-known. A defendant seeking a permanent stay bears a heavy onus. A permanent stay will only granted in exceptional circumstances. The test is whether, having regard to all of the circumstances, maintaining the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people.

52 The amendments of the Limitation of Actions Act 1958 (Vic) to remove the limitation period in respect of claims of historical child abuse do not limit the Court's inherent jurisdiction to grant a permanent stay.[3]

53 The second defendant refers to the authorities on the effect of delay. The plaintiff agrees the observations in the authorities are relevant in this case. In Longman v The Queen,[4] McHugh J said:

The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to "remember" is well documented. The longer the period between an "event" and its recall, the greater the margin for error. Interference with a person's ability to "remember" may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine[.]

No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, 20 years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. ...

To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.

[citation omitted]

The problems inherent in meeting allegations about events alleged to have occurred many years ago, involving children, were summarised by Nicholson J in R v Jacobi. ... Nicholson J said:

The appellant will face the problems inherent in meeting allegations about events said to have occurred many years ago, involving quite young children. These problems include:

(a) the reliability or the accuracy of a complainant's recollections about which evidence is given so many years after the events;

(b) the difficulty confronting a trier of fact when assessing the veracity and reliability of a person, not by hearing and observing their evidence given when young, soon after the events are said to have taken place and with the child's contemporary language and understanding but after hearing and observing evidence given in the language of an experienced adult with all of the possibilities of reconstruction and re-interpretation that this entails;

(c) the difficulty confronting the appellant having to go well back in time to recall, check and verify the accuracy of events about which evidence is given; and

(d) the difficulty confronting the appellant in endeavouring to obtain and produce documentary evidence or oral evidence from other witnesses which might put in question the evidence of a complainant as to events, times and places.[5]

55 The second defendant relies on the following factors as demonstrating that the proceeding against him is manifestly unfair and would otherwise bring the administration of justice into disrepute among right-thinking people:

(a) the passage of time since the alleged abuse;

(b) the vague and inconsistent nature of the plaintiff's allegations;

(c) the loss of records and other evidence; and

(d) the lost opportunity to explore relevant surrounding circumstances.

56 The second defendant notes that the abuse is alleged to have occurred around 45 years ago.

57 In relation to this, the plaintiff, while acknowledging the period, notes that he first told someone about the abuse in 1988, then included it in the history he gave Dr Bialylew in 2012, before making a complaint to the police in December 2015. The plaintiff submits, and I accept, that the fact of and reasons why child victims of sexual abuse delay in making a complaint about the abuse are well accepted.

58 The second defendant asserts that the plaintiff's allegations are vague and inconsistent. In particular, the second defendant says:

(a) the police log reveals that the plaintiff first reported the abuse to the police on 4 December 2015 and on 28 December 2016 the plaintiff told police that the second defendant assaulted him in 1977 when he was 15 years old;

(b) the log records that the plaintiff's first complaint to police described the camp allegations and home allegations but did not mention the park allegations;

(c) the abuse described by the plaintiff, as recorded in the police log when he first spoke to police on 28 December 2016, included oral penetration, fondling, kissing and attempted anal penetration. However, neither the plaintiff's statement of claim nor his answers to interrogatories mention attempted anal penetration as having occurred at the camp;

(d) the plaintiff's first sworn statement to the police, dated 4 December 2015, says the camp allegations occurred on three consecutive days only, commencing 'within a few days of being on the camp' and after which 'nothing further happened', while in the plaintiff's second sworn statement to the police, dated 18 December 2017, he says 'the camp went for 10 days and the abuse started on the 2nd morning of the camp. [The second defendant] continued to abuse me for the next 8 days of the camp';

(e) the plaintiff's first sworn statement to the police describes the home allegations as taking place 'in next holiday break [sic] after the Christmas holiday camp'. However, his fourth sworn statement to the police on 18 July 2017 says that when the plaintiff said the 'next holiday break' after the camp, 'I mean that the incidents occurred in the same 1974‑75 school holiday period and prior to when I became aware that [the second defendant] left Australia to travel to Israel ... during February 1975';

(f) the history given by the plaintiff to Dr Bialylew and recorded in her report dated 13 February 2012 says the plaintiff was assaulted by a camp leader over a period of 12 months; and

(g) the plaintiff said to police in his first sworn statement that while on the Ichud Habonim camp he pretended to be sick with a toothache and kept going to the sick bay. However, in the plaintiff's second sworn statement to the police, he says that he had problems with his teeth immediately following the camp and received nine fillings within two weeks.

59 In summary, the second defendant submits that the plaintiff's allegations involve significant inconsistencies around when the abuse is said to have occurred, the nature of the abuse, the number of incidents involved and over what period of time.

60 The second defendant submits that the plaintiff's park allegations are vague as to their location. The descriptions are of various parks and golf courses around the Melbourne metropolitan area, including in secluded carparks in the Studley Park and Yarra Bend Park areas and golf courses around the Frankston area. The second defendant submits that those descriptions, particularly after the passage of 45 years, do not allow the second defendant to determine when and where these assaults occurred, making it impossible for him to identify potential witnesses, put together a timeline or identify particular features of the areas where the assaults are said to have occurred in order to test the quality of the plaintiff's evidence.

61 The plaintiff submits that it is important to distinguish between inconsistencies and vagueness that go to the root of the matter and inconsistencies and vagueness that one would ordinarily expect in evidence, even in cases involving events of the recent past. According to the plaintiff, the important relevant issues are the identity of the abuser, the nature of the acts that occurred and the place where those acts occurred. In this case, there were three places - the showers at the camp, the second defendant's car and the plaintiff's home.

62 In response to the particular issues identified by the second defendant, the plaintiff submits that:

(a) it is necessary to distinguish between statements made by the plaintiff that he has adopted and statements recorded in the police log that have not been adopted by the plaintiff;

(b) the record in the police log of the plaintiff being about 15 years old at the time of the abuse is inconsistent with the history that the plaintiff gave to Dr Bialylew less than 12 months earlier, which records the plaintiff's age at the time of the abuse as about 11 years;

(c) the second defendant is wrong to suggest that the police log says the plaintiff told police the second defendant attempted to anally penetrate him at the camp. Rather, the plaintiff has consistently maintained that this only happened after the camp;

(d) the plaintiff conceded that the plaintiff's second sworn statement to the police clarified that the abuse constituting the camp allegations had taken place over eight and not three days as the plaintiff's first sworn statement had said;

(e) the plaintiff's clarification in his fourth statement that the incident constituting the home allegations happened in the same school holidays as the camp allegations is not inconsistent with the plaintiff's statement in his first statement to the police that the home allegations incident occurred in the next holiday break after the Christmas holiday camp;

(f) Dr Bialylew's history recorded in her report is not a statement that the plaintiff has adopted and, in any event, the histories that doctors may record are not taken for the purpose of obtaining evidence to assist in either a criminal prosecution or a civil suit, but rather to understand the issues affecting the patient's presentation; and

(g) the plaintiff feigning a toothache at the camp and then having problems with his teeth very soon after the camp are not inconsistent.

63 In relation to the second defendant's submission that the park allegations are vague as to their location, the plaintiff submits that what is important is that the abuse occurred in the second defendant's car and that it is unrealistic to expect the plaintiff, even a week after the abuse, to recall the location of the carparks.

64 The second defendant identifies the loss of medical records as significant. Dr Bialylew's report, dated 13 February 2012, refers to the plaintiff having been involved in numerous motor vehicle accidents resulting in a serious head injury exacerbating his significant addiction to both alcohol and cocaine and resulting in a downward spiral, including the loss of his wife, his family, his houses and his business. The second defendant has subpoenaed the records of the nine different medical practitioners seen by the plaintiff over the years since the abuse. However, no medical records older than 2007 have been produced. The second defendant submits that this leaves him significantly prejudiced in terms of disentangling causation.

65 In relation to this aspect of the second defendant's submissions, the plaintiff says that the essentials of the plaintiff's case involve the evidence of the plaintiff and the second defendant as to what occurred or did not occur. According to the plaintiff, the case does not rely on documents such that there has been a meaningful loss of records that could be relied upon. The plaintiff concedes the difficulties for the second defendant on the issue of causation as a result of the significant passage of time. The plaintiff says, however, that the second defendant has not attempted to have the plaintiff and his records medically assessed by an expert to determine the existence and extent of any causation issues.

66 Finally, the second defendant submits that the passage of time has led to the loss of a material witness, being the youth group leader who observed the second defendant and the plaintiff in the shower block and who asked the second defendant why they were there. The second defendant submits that the evidence that might have been given by this person is incapable of being known but that does not stop the Court from taking into account the loss of the witness in assessing whether a fair trial can be had.

67 The plaintiff submits that even if the incidents had occurred only one year ago, it would be highly implausible that the second defendant would be able to identify a witness who could give alibi or other evidence of what the second defendant was doing on any given day.

68 In summary, the plaintiff, while conceding that the passage of 45 years since the incidents carries a presumption of prejudice to the second defendant, submits that the nature of this case involves in its essence the plaintiff's version of events versus the second defendant's version of events and so it should be heard and determined.

69 Each application for a permanent stay must be determined on its own facts. The plaintiff rightly concedes that the time since the alleged incidents is significant. The parties accept the observations made in the authorities about the effect of the passage of time on memory and on the quality of the evidence. Those considerations loom large in this case.

70 I accept that there are some inconsistencies in the versions of events recounted by the plaintiff. The plaintiff's first statement to the police described the camp allegations, the park allegations and the home allegations, albeit that the number of incidents making up the camp allegations in the first statement were significantly fewer than those described in the plaintiff's second statement to the police given about two years later. Dr Bialylew's report records the history given by the plaintiff that the abuse occurred over about a 12-month period, which is clearly inconsistent with the plaintiff's police statements that limit the abuse to around a two-month period.

71 I do not accept that all of the inconsistencies identified by the second defendant can necessarily be attributed to the plaintiff changing his story. In my view, the police log record of 28 December 2016 that 's'ment completed; he disclosed acts of kissing, fondling, oral penetration and attempted anal penetration. Offences occurred whilst on a youth camp in Ballarat and also at complt's home address' is likely to be a brief summary of the plaintiff's first statement to the police given a year earlier. I note that that statement includes references to the home allegations and does not include any allegation that the second defendant attempted to anally penetrate the plaintiff at the camp. The plaintiff feigning a toothache at the camp is not inconsistent with problems with his teeth immediately following the camp. The plaintiff's explanation that the abuse all occurred within the same school holiday period rather than, as he initially said, in the next holidays, is curious but, in my view, not plainly unbelievable.

72 In this case the plaintiff has been consistent in his identification of the second defendant as his abuser and the nature of the abuse that the plaintiff says took place. Inconsistencies in evidence occur in many, if not most, cases and provide fertile ground for cross-examination. The presence of inconsistencies, of itself, is not determinative of whether a permanent stay should be granted. The test remains whether, having regard to all of the circumstances, maintaining the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people. In my view, the inconsistencies in relation to some of the allegations when viewed with the consistency of other allegations, are not such that maintenance of the proceeding would be manifestly unfair to the second defendant.

73 In relation to the lost opportunity to investigate the surrounding circumstances, there are several things to consider.

74 First, the location of the camp allegations is remarkably preserved and available to be investigated by the second defendant. Similarly, there is no suggestion that the house that was the location of the home allegations has been demolished. At this point in time, the plaintiff has given no description of the car where the park allegations occurred and is unable to precisely identify where the car was parked at the relevant times. I note that it is unknowable whether these locations were ever known to the plaintiff or whether they have been lost through the effluxion of time. Overall, the effect of the passage of time has not been uniform in relation to the alleged locations of the abuse but is most significant in relation to the park allegations.

75 Second, given the passage of time, it is impossible to know what evidence has been lost or what evidence may have been given by any particular witness. In this regard, it cannot be said with any certainty that the evidence that might have been given by the youth group leader who came in to the shower block would have assisted the plaintiff or the second defendant. All that can be said is that the quality of the evidence that might have been available has been significantly adversely affected by the passage of time.

76 The second defendant has not provided any information about the investigations he has undertaken about potential witnesses or surrounding circumstances in relation to the allegations. The second defendant admits that he was at the camp but otherwise denies the camp allegations, the park allegations and the home allegations. In relation to the park and home allegations, given the relatively short period of time between the camp and the second defendant's departure from Australia, coupled with his denial that the park and home allegations occurred, one might expect that the second defendant would have investigated his own activities and movements during that time.

77 While I accept the second defendant's submissions about the difficulties caused by the loss of medical records, I also note there is no evidence that the second defendant has taken any steps to ascertain its specific impact in this case. The second defendant has not sought to have the plaintiff examined by its expert. Without specific evidence about the conclusions that can and cannot be drawn from the available records regarding causation, the second defendant's submissions cannot be afforded the weight they might otherwise be given.

78 Taking into account all of the circumstances of this case, I am not persuaded that the second defendant has discharged the heavy onus of establishing that to allow the proceeding to continue to trial would be manifestly unfair to the second defendant or otherwise bring the administration of justice into disrepute among right-thinking people.

79 The parties were in agreement about the principles relevant to the prejudice to a defendant in a civil proceeding facing a subsequent criminal proceeding. The forensic disadvantages flowing to such a defendant have been well described in the authorities.[6] The parties accepted the principles relevant to the grant of a temporary stay. The test arises where the same allegations are made in the civil proceeding as in the potential criminal proceeding. The test is whether the second defendant faces a real risk of criminal proceeding or whether a criminal proceeding is on the cards.

80 In Citation Resources Ltd, McKerracher J set out the principles applicable to the determination of an application for a stay of civil proceeding, when there is a real prospect of criminal charges being laid against a defendant arising from the same facts as matters which are the subject of the proceeding. Summarising Wootten J in McMahon v Gould (McMahon),[7] McKerracher J listed these as:

a) prima facie the plaintiff is entitled to have his action tried in the ordinary course of the proceeding and business of the court;

b) it is a grave matter to interfere with this entitlement by way of a stay of proceedings, which requires justification on proper grounds;

c) the burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with;

d) neither an accused nor the Crown is entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

e) the court's task is one of 'the balancing of justice between the parties', taking into account all relevant factors;

f) each case must be judged on its own merits and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;

g) one factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's 'right of silence', and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding;

h) however, the so-called 'right of silence' does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceedings;

1. the court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings;

j) in this respect factors which may be relevant include:

(i) the possibility of publicity that might reach and influence jurors in the civil proceedings;

(ii) the proximity of the criminal hearing;

(iii) the possibility of miscarriage of justice, for example, by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;

(iv) the burden on the defendant of preparing for both sets of proceedings concurrently;

(v) whether the defendant has already disclosed his defence to the allegations;

(vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him;

k) the effect on the plaintiff must also be considered and weighed against the effect on the defendant, in which regard it may be relevant to consider the nature of the defendant's obligations to the plaintiff; and

1. in an appropriate case the proceedings may be allowed to proceed to a certain stage, that is, setting down for trial, and then stayed at that point.[8]

81 McKerracher J went on to state that the principles in McMahon should be refined in light of the High Court's decision in Reid v Howard (No 2),[9] in which the majority of the High Court reaffirmed the importance of the privilege against self-incrimination, which cannot be abrogated other than by statute.

82 The issue between the parties in this case is whether in all the circumstances of this case it is 'on the cards' that the second defendant will face criminal prosecution. It is common ground that the police have issued warrants of apprehension in relation to a number of charges, and have considered and, at this stage, declined to apply for the second defendant's extradition from Israel. The second defendant has filed a defence amounting to an admission that he was on the camp but a denial that the camp allegations, the park allegations or the home allegations occurred.

83 The second defendant submits that given the allegations made by the plaintiff in this case are the same allegations made to the police and the police have issued warrants of apprehension, there is plainly a real risk that he will face criminal prosecution if he returns to Australia to give evidence in this proceeding.

84 Additionally, the second defendant says that even if he is permitted to give evidence by video link, there is a real risk that any additional evidence given in the case will prompt the police to reconsider his extradition from Israel. The second defendant says that the circumstances of this case, involving one-on-one allegations with no eyewitnesses, mean greater potential prejudice to the second defendant through the dress rehearsal of evidence.

85 The plaintiff submits that there is no evidence that the second defendant intends to return to Australia, either for this proceeding or otherwise. The second defendant has given no evidence about his intentions, is able to make an application to give evidence by video link from Israel and the available evidence is that he has not returned to Australia since 2004 and has no family or business ties here. The plaintiff submits that the second defendant is evading criminal prosecution by remaining in Israel but should not be allowed to use his absence from Australia as a means of stymying the civil proceeding.

86 I am not satisfied that the second defendant has demonstrated a real risk of criminal prosecution, notwithstanding that warrants of apprehension have been issued. I have reached this view because in this case there is a clear decision by Victoria Police not to pursue the second defendant's extradition from Israel. I accept that Victoria Police may revisit that decision if further evidence comes to light or other complainants are identified. Given the nature of the second defendant's defence, being a straight denial that any of the incidents making up the allegations occurred, it is unlikely that any evidence given by the second defendant will be self-incriminating. There is no reason on the evidence before the Court to believe that there are any other complainants currently unknown to the police that will be identified in the proceeding. The evidence of unknown person six was known to the police at the time extradition was considered. The police investigation was closed on 3 January 2019.

87 There is no evidence that the second defendant intends to return to Australia for this proceeding nor is there any indication that the second defendant intends to give evidence in the proceeding.

88 As long as this remains the status quo, there is not a real risk of criminal prosecution. If those circumstances change, it remains open to the second defendant to make a further application for a temporary stay of this proceeding.

89 I am not satisfied that, considering all the circumstances of this case and balancing the justice between the parties, the second defendant has shown that it is just and convenient that the Court should interfere with the plaintiff's entitlement to have his action tried.

90 For the reasons given above, I have decided that exceptional circumstances justifying a permanent stay of this proceeding have not been demonstrated and I decline to grant a permanent stay. I am also not satisfied that, in the current circumstances of this case, the second defendant faces a real risk of criminal prosecution. Accordingly, I decline to grant a temporary stay of the proceeding.

91 I will hear from the parties on the question of costs.

BEIT HABONIM PTY LTD (ACN 051 827 984) AS TRUSTEE OF THE ASSOCIATION OF PARENTS & FRIENDS OF ZIONIST YOUTH

[1] [2017] VSCA 116.

[2] [2021] VSC 380.

[3] Limitations of Actions Act 1958 (Vic) s 27R.

[4] [1989] HCA 60; (1989) 168 CLR 79, 107, 108.

[6] See, for example, the authorities essayed by McKerracher J in Citation Resources Ltd v Landau [2016] FCA 1114; (2016) 116 ACSR 410, 416-418 [27]-[28] (Citation Resources Ltd).

[7] (1982) 7 ACLR 202, 206-207.

[8] Citation Resources Ltd (n 6) 420-421 [37].

[9] (1995) 184 CLR 1.