RC v The Salvation Army

RC v The Salvation Army - [2024] HCA 43 - HCA 2024 case summary — Zoe

[19]

There is no dispute that: the Home was owned and operated by the Salvation Army; the Home provided residential care for boys; the Home accommodated wards of the State as well as private admissions; the accommodation for boys was of a dormitory style and accommodated approximately 120 boys; the Home was a "subsidised institution" for the purposes of ss 14 and 15 of the Child Welfare Act 1947 (WA); and the Salvation Army promoted itself as an organisation that accommodated and supported boys who were in need of care. The Salvation Army accepts that Lt Swift was stationed at the Home from 15 January 1959 until 6 September 1962.[6] Lt Swift retired in September 1989 when he was 65 years old. He died in October 2006. The officer in charge of the Home during the period of the alleged abuse was a Major Watson. Maj Watson died in August 1968.
RC was born in 1947. The following allegations are drawn from RC's Statement of Claim. RC alleges that in 1957, at the age of 12 and after his parents' marriage had broken down, he was placed into care at the Home for a period of approximately eight months ("the Placement"). RC alleges he was sexually assaulted and sexually abused by Lt Swift ("the Nedlands Sexual Assaults and Abuse") during the Placement. RC divides the Nedlands Sexual Assaults and Abuse into four categories.
First, when at the Home, RC would be required to line up for the shower whilst naked and, during that time, Lt Swift would regularly come into the showering area and look at RC and the other boys.
Second, approximately six weeks after the Placement began, Lt Swift lured RC into the Recreation Hall at the Home at night. Lt Swift began to cuddle RC, told RC that he loved him and then proceeded to place his hand on RC's crotch area, as well as demanding that RC perform oral sex on and masturbate him. These assaults then occurred multiple times each week during the Placement.
Third, RC was regularly required to collect broken biscuits from the Mills and Wares factory in a truck driven by Lt Swift. RC was routinely ordered by Lt Swift to sit next to him whilst Lt Swift was driving and Lt Swift would touch RC's knee under the pretence of missing the gear stick whilst changing gears.
Fourth, some weeks before the end of the Placement, Lt Swift anally raped RC whilst RC was alone in his dormitory on a Sunday after being dropped back to the Home early by one of his parents. RC alleges that he reported the rape to Maj Watson, who ignored what RC said.
RC's Statement of Claim pleaded three causes of action against the Salvation Army: first, a claim for breach of a "non‑delegable duty to exercise reasonable care for the safety of [RC]"; second, a breach of a statutory duty of care pursuant to the Child Welfare Act that he would not be harmed by reason of a breach of that Act and its regulations by the Salvation Army, its servants or agents; and third, a claim that the Salvation Army was vicariously liable for Lt Swift's intentional torts inflicted on RC. RC also alleged that the Salvation Army's "conduct fell so far short of [the] acceptable standard for ensuring the proper care and welfare of children under its care as to constitute a contumelious disregard for [RC's] rights to care and protection resulting in a violation to [RC's] right to bodily integrity".
The Salvation Army joined issue in its Defence on a number of matters. It pleaded that it did not know and could not admit the allegation that RC was at the Home on the basis that it had searched for but does not possess any records concerning RC. It did not admit that RC was in fact sexually assaulted or abused by Lt Swift because: (1) it does not know if RC was subjected to the Nedlands Sexual Assaults and Abuse; and (2) the allegations were "not properly particularised in that they involve the alleged conduct of a deceased former officer of the [Salvation Army] on unspecified occasions and as a result, the [Salvation Army] does not know the case it is to meet at trial". The Salvation Army also does not admit that RC told Maj Watson that he had been raped by Lt Swift. The Salvation Army pleaded that it had searched for but does not possess any records concerning RC or any reports made by RC.
In answer to the claim of a non-delegable duty, the Salvation Army's response is no more than a response to a simple claim for negligence. The Salvation Army admits that it owed a duty of care to children residing at the Home; that that duty required the Salvation Army to take such precautions as a reasonable person in its position would have taken, in accordance with the standards of the day, in response to risks of harm that were foreseeable and not insignificant; but denies that it breached any duty of care it owed RC. The Salvation Army does not admit the existence of any statutory duty. The Salvation Army denies that it is vicariously liable to RC. The Salvation Army also denies that RC sustained any injury, loss and damage as a consequence of any tort for which it is vicariously liable or any breach of duty.
RC's pleaded case and the Salvation Army's defence to that claim that has just been summarised is the case the Salvation Army sought to permanently stay. It is by a close analysis of the pleadings at the date of the hearing of the stay application that the factual and legal issues in dispute between the parties are identified. A stay application is not a trial. It is the disputed issues, revealed by that analysis of the pleadings, that are considered in determining whether there can be a fair trial of the issues joined between the parties. The evidence adduced by the parties on the stay application must be relevant to that question.[7]

[20]

Annexed to an affidavit filed by the Salvation Army in support of its application for a stay was a 73-page statement given to the Royal Commission into Institutional Responses to Child Sexual Abuse ("the Royal Commission") by Commissioner Tidd, Territorial Commander Australia Southern Territory of The Salvation Army,[8] dated 17 September 2015. That statement addressed the way in which the Southern Territory of The Salvation Army ("TSAS") had conducted boys' homes in Eden Park in South Australia, Box Hill and Bayswater in Victoria, and the Home in Nedlands in Western Australia. Commissioner Tidd recorded that, having come to Australia and assumed the role of Territorial Commander in 2013, he had acquainted himself with the fact that "a large number of former residents of homes run by TSAS had suffered severe sexual, physical and emotional abuse while residents at these homes". That evidence was admitted without restriction before the primary judge.
The statement was divided into four sections: (I) Institutional Structure; (II) Relationship between TSAS and the South Australian, Victorian and Western Australian Governments; (III) Response to Allegations of Child Sexual Abuse at TSAS Institutions (including the Home); and (IV) Criminal Investigations and Proceedings. It set out, in detail, an historical analysis of each of these topics, as well as a summary of the position of TSAS in 2015, when the statement was provided to the Royal Commission.
Under the third heading - Response to Allegations of Child Sexual Abuse at TSAS Institutions - Commissioner Tidd records the conclusions he reached about the way in which TSAS had conducted the Home as well as boys' homes in Eden Park, Box Hill, and Bayswater. That is, before the Royal Commission in 2015, the Salvation Army considered that it was able to form conclusions about what it had done and not done to protect children and what it had done and not done in response to complaints of abuse.
It is not appropriate or necessary to set out each of the conclusions reached by Commissioner Tidd. In considering the Salvation Army's application for a stay, it is sufficient to refer to the fact that Commissioner Tidd states that "it seems clear that there were care leavers [children in the care of a home operated by TSAS] who told officers or other staff that they were being abused at TSAS homes. It seems that in most cases nothing was done about these allegations" and that "[m]ost ... claims of abuse have arisen in more recent times, after the homes have all been closed". No less significantly, Commissioner Tidd records that he "agree[s] entirely with the conclusion" of a Mr Walker that TSAS "failed to adequately explore and investigate claims of abuse and it failed to appropriately respond to such claims". Commissioner Tidd then states that "[i]t is nothing short of tragic that these poor children's pleas for help went unanswered. There are so many lives that could have been so different had the pleas for help been answered."
The reference to Mr Walker is important. As Commissioner Tidd records in his statement, after a Major Roberts appeared before the Victorian Inquiry,[9] TSAS asked Mr Walker, a former detective of the New Zealand Police Force and a then member of TSAS's Professional Standards Unit ("PSU"), to undertake a "detailed independent investigation" into TSAS's "cultural practices" and "whether any kind of culture prevailed that enabled child abuse to occur".
Mr Walker had been the director of the Territorial PSU for TSAS between April 2014 and December 2018, and had been involved in the settlement of other claims in relation to Lt Swift. A copy of Mr Walker's report entitled "Investigation into whether The Salvation Army's historical responses to child sexual abuse were affected by cultural, endemic or systemic failings of the organisation", dated 20 August 2015, had been given to the Royal Commission. Commissioner Tidd unreservedly accepted Mr Walker's findings and conclusions. Commissioner Tidd further gave evidence that by not reporting allegations of child sexual abuse to the police, it had the effect of concealing child sexual abuse and protecting alleged perpetrators of child sexual abuse.
Of course, the allegation made by RC relates only to the conduct of one officer towards RC. But RC alleges that the Salvation Army owed him a non-delegable duty to ensure that reasonable care was taken of him, which included a duty to protect him from abuse, including sexual abuse, by officers of the Salvation Army. And, as will be described below, the Salvation Army had settled claims against Lt Swift, including by issuing apologies many years prior to the Royal Commission. This raises a question as to the case the Salvation Army might have made for a permanent stay if the claim had been made before Lt Swift or Maj Watson had died. Whether the Tidd statement or the Walker report are admissible at a trial of RC's claim is irrelevant. What those documents reveal is that, by no later than August 2015, the Salvation Army has been able to identify relevant material from which it has been able to draw conclusions about what the Salvation Army did and did not do during the relevant period but also to acknowledge that Lt Swift did assault boys during the same period. It is not clear what, if anything, has changed since then.
Finally, an affidavit sworn by RC's solicitor and filed in response to the stay application refers to at least ten men who alleged they suffered abuse by Lt Swift in the 1950s and 1960s when they were staying at one of the homes, including the Home. Each person is identified as well as the details of: their alleged physical or sexual abuse by Lt Swift; when they first raised their allegations (one made a complaint about Lt Swift as early as 1961[10]); and if the Salvation Army had waived reliance on a pre-existing limitation period and received and settled any claims of alleged sexual abuse by Lt Swift (the earliest claim having been notified in 2003). That list is not exhaustive. Again, whether that evidence is admissible at a trial of RC's claims (whether as tendency evidence or on some other basis) is irrelevant to the application for a permanent stay. The uncontradicted affidavit evidence reinforces that the Salvation Army has been aware of allegations against Lt Swift for years, if not decades; has been able to draw conclusions about what the Salvation Army did and did not do during the relevant period; and has acknowledged that, during that same period, Lt Swift did assault boys. Again, it is not clear what, if anything, has changed since then.
Something needs to be said about RC's affidavit which was filed in response to the Salvation Army's stay application. As explained in Willmot, in determining whether there can be a fair trial of the pleaded claim, it is the disputed legal and factual issues revealed by the pleadings that are sought to be stayed by a defendant.[11] The defendant bears the onus and makes forensic decisions about how it frames its arguments for a stay and that, in turn, determines the evidence that is relevant to the question of whether there can be a fair trial of the pleaded claims. Affidavit evidence filed by both the plaintiff and the defendant may address, and would be expected to address, matters relevant to the question of whether or not there can be a fair trial of the disputed factual and legal issues. The affidavit evidence cannot be used to expand the scope, or change the nature, of the underlying allegations. In the present matter, there are discrepancies between the Nedlands Sexual Assaults and Abuse as pleaded and how the abuse is described in RC's affidavit. No application was made to amend RC's Statement of Claim. The application for a stay is to be considered on the basis that RC's claims are those pleaded as the Nedlands Sexual Assaults and Abuse.

[25]

The Salvation Army is not in the dark about the precise nature of RC's allegations. Further, RC's affidavit is detailed and specific.[12] Whilst the passage of time may have had a negative impact on RC's memory, this can be the subject of cross-examination and a submission that the trial judge should not be satisfied that some or all of the abuse occurred as alleged. RC could also be cross-examined on any discrepancies between the alleged abuse as pleaded and his descriptions of that abuse in his affidavit and the redress application.
As for the absence of records relating to the complaints, it is unclear what evidence of a failure to make a complaint would add to the trial. Assume the evidence was strong enough to support a finding that it was more probable than not that the plaintiff did not complain: that might have some effect in judging the overall credit of RC, but the fact (if it be so) that there was no complaint would say little about whether the events RC described did or did not occur. The Salvation Army has not established that the trial of that claim will be unfair.
Moreover, RC identified at least ten potential male witnesses (other than RC) who describe being sexually or physically abused by Lt Swift when they were children at the Home or at the homes in Box Hill or Bayswater in Victoria. There are similarities between that evidence and that of RC, including that Lt Swift: hugged or cuddled them; touched their penis or masturbated them; required or attempted to require them to perform oral sex; attempted or did anally rape them; and sexually abused them in their dormitory. Again, the Salvation Army complained of an absence of records relating to these complaints. But these witnesses can be cross-examined on inconsistencies between their evidence in the ordinary course.
The Salvation Army does not dispute that evidentiary tools[13] are available to attempt to alleviate unfairness in a prospective trial. As explained above, the Salvation Army has had the opportunity to identify, with a reasonable level of specificity, contextual information. It has not uncovered anything which directly substantiates or casts doubt upon the account given by RC. Showing only that the Salvation Army has not found any external evidence which it might use to challenge RC's evidence does not show that a trial of RC's allegations would be unfair.
The Salvation Army rightly submitted that there is no principled basis on which a judge could realistically reject an apparently credible and coherent account given by a survivor of sexual abuse at any trial. But that submission assumes that, after applying the ordinary common law techniques described in Willmot, RC's evidence would be accepted as credible and coherent. Equally, as the Salvation Army also acknowledged, the bare fact of some variations in RC's account of relevant events does not foreclose that the trial judge might be persuaded that RC's evidence, taken as a whole, is credible and coherent, recognising that it is commonly understood that such variations will often arise in cases of abuse and, in particular, abuse that occurred long in the past. Each of those matters is a question for trial. A trial of the allegations is not unfair merely because a pathway to a successful challenge to RC's evidence has not been revealed. The Salvation Army has sufficient material available to it to make an informed response to RC's evidence.

[27]

In relation to the issues joined regarding the other pleaded claims, the analysis is the same. The Salvation Army denies breach on the basis that it does not know if the abuse occurred; the claims are not particularised; and it had no knowledge of predatory conduct by Lt Swift. It positively pleads, however, that it "did supervise and control staff at the Home in a manner which accorded with the standards of the time". Similarly, causation is "generally in issue". Again, whether the harm occurred is in issue because the abuse is not admitted on the basis that the allegations are "not properly particularised" and are against a "deceased former officer". The report and statement given to the Royal Commission show that the Salvation Army considered it right to make a formal submission saying that there was no safe system of supervision and investigation at the homes operated by it, including at the Home.
It may be accepted that the Salvation Army holds incomplete records relating to the operation of its homes during the relevant period of alleged abuse. The Salvation Army does not identify documents known to be lost.[14] Rather, it described the prejudice in a more limited way - as an inability to identify whether relevant records existed. The considered position taken before the Royal Commission indicates that any contemporaneous complaint of sexual abuse would likely not have been recorded or investigated because of systemic and cultural failings within the Salvation Army. In those circumstances the burdensome effect of the passage of time on the capacity of the Salvation Army to refer to documentary evidence is limited.[15]
And as to vicarious liability,[16] the Salvation Army was able to advance a positive pleading that Lt Swift was not an employee, but rather was an ordained minister, a position presumably taken because it has a detailed historical understanding of its institutional structure and also Lt Swift's personnel file. Information is available as to the role that Lt Swift in fact undertook at the Home from August 1959 to April 1960, including that he was a "Boys' Officer" when stationed at the Home.

[36]

The parties and the facts are set out comprehensively in the joint judgment. It suffices here to provide only a broad outline.
The respondent, the Salvation Army, although described as a trust, is the trustees, a statutory body corporate,[21] which carried out the Western Australian operations and activities of the former Southern Territory of the Salvation Army ("the Salvation Army Southern Territory") which was an unincorporated association operating in Victoria, South Australia, Western Australia, the Northern Territory and Tasmania. On 1 January 2019, the Salvation Army Southern Territory was amalgamated with another Salvation Army entity to form the Salvation Army Australia Territory.
For most of the relevant period between August 1959 and April 1960, RC was a 12-year-old child in the care of the Salvation Army at the Nedlands Boys' Home ("the Home"), which the Salvation Army owned and operated. During that time, RC alleges that he was sexually assaulted on multiple occasions by Lt Swift, who was an officer of the Salvation Army appointed to the Home between January 1959 and September 1962. The final of those alleged sexual assaults, being anally raped by Lt Swift, occurred some weeks before the end of RC's placement at the Home. RC claims that he reported that rape, and an earlier assault, to Major Watson, who ignored RC.
RC was born on 24 March 1947. In 1960 the limitation period for a claim founded on the tort of negligence was six years,[22] and the limitation period for a tortious claim founded on battery was four years,[23] from the age of majority, which at that time was 21.[24] That would have meant that RC's claim founded on the tort of negligence would have been subject to a limitation defence after 24 March 1974 or alternatively, if the lowering of the age of majority to 18 applied retrospectively to his cause of action, after 31 October 1972, with the passage of the Age of Majority Act 1972 (WA).[25] RC's claim founded on the Salvation Army's vicarious liability for "Swift's intentional tort", to the extent this claim is founded on the tort of battery (which, for the reasons below, is not clear on the face of RC's statement of claim[26]), would have expired on 24 March 1972.

[37]

The Salvation Army was notified of RC's legal claims on 13 July 2018 and the action brought against the Salvation Army in November 2018. His claims were described by the primary judge as being for negligence, breach of statutory duty under the Child Welfare Act 1947 (WA), and vicarious liability for "[Lt] Swift's intentional tort". There is some confusion in these claims. The first is particularised as a breach of a non-delegable duty "to exercise reasonable care for the safety of [RC]." But a non-delegable duty is a duty to ensure that reasonable care is exercised. It is not sufficient that a defendant took reasonable care.[27] The third is described as a claim for vicarious liability for "[Lt] Swift's intentional tort". It is not entirely clear whether the expression "vicarious liability" is used (inaccurately) to describe a liability based on attribution of Lt Swift's actions to the Salvation Army or (accurately) to describe liability based on attribution of Lt Swift's liability. It may be that the label is used to describe a non-delegable duty to ensure that care is taken, albeit in circumstances of intentional wrongdoing.[28]
With one exception, the formulation of RC's claims can be put to one side in this application because the Salvation Army's assertions of prejudice, arising from the lengthy lapse of time between the alleged assaults and RC bringing his claims, were concerned with the underlying allegations rather than the nature of the claim. The exception is the plea of "vicarious liability" as to which the Salvation Army, treating the plea as one of "true" vicarious liability,[29] asserted that there was "a dearth of evidence available to enable the careful examination of the role that the [Salvation Army] actually assigned to Lt Swift".
The submission concerning prejudice to the Salvation Army arising from an inability to investigate the precise contours of Lt Swift's role should be rejected. First, as the joint judgment observes, it does not appear to be factually correct.[30] The Salvation Army has pleaded, possibly based upon knowledge of the relevant institutional structure and based on Lt Swift's personnel records at the time which the Salvation Army holds,[31] that Lt Swift was not an employee but was an ordained minister. Secondly, it is impossible to fathom how a claim of vicarious liability in the true sense for the liability of Lt Swift could ever be affected by the contours of Lt Swift's employment. There is no imaginable universe of employment in which Lt Swift's alleged sexual abuse of RC could be said to be in the course of his employment.[32]

[38]

The ultimate reason that this application must be granted, and appeal allowed, concerns the onus of proof that lies with an applicant who asserts that a proceeding should be stayed as an abuse of process due to a substantial lapse in time.[33] As I explained in Willmot v Queensland,[34] an applicant must show that the substantial lapse in time causes such forensic prejudice that a fair trial is not possible.
The Salvation Army submitted that although it bore the onus of proof, it was not required "to prove each and every hypothetical step it would have taken had it known of the allegations prior to Lt Swift's death, and the likely outcome of those steps, so as to demonstrate the relevant unfairness". This submission is correct in that an applicant for a permanent stay is not required to prove prejudice by establishing the precise detail of every step that it would have taken if the claim had been brought earlier. Nor is an applicant required to undertake the difficult or impossible task of proving what information it would, or even could, have obtained from a source that was lost due to the lapse of time. But an applicant is still required to prove the general nature of each aspect of prejudice that it suffered, which, in combination, is said to be so extreme that any trial would be unfair due to the lapse of time in bringing a claim. That will usually require proof of the general nature and content of steps that the applicant would have taken if the claim had been brought earlier and the general type of information that it might have obtained.
In many cases it might be a very simple matter to prove that if a hypothetical foreshadowed legal claim of sexual abuse had been made at an earlier time then many steps would have been taken relevant to defending the claim, including: seeking confirmation of aspects of the complainant's version of events; obtaining and scrutinising documentary records; interviewing potential witnesses; and obtaining a response from the alleged perpetrator. But proof by an applicant that those or other actions would have been taken after a hypothetical earlier foreshadowed legal claim becomes more difficult if at that earlier time the applicant had been told of the allegation or others like it and had not taken any action despite reasonably anticipated litigation. As Bathurst CJ said in The Council of Trinity Grammar School v Anderson:[35]

[48]

Each of these matters is considered below. However, a basic difficulty with the assertion of the Salvation Army that it was prejudiced by the loss of information that it might have obtained from any or all of these matters is the inability of a court to draw an inference that, if RC's claim had been brought many years earlier, then the Salvation Army would have pursued lines of enquiry related to these matters. As explained above, such an inference might readily be drawn in many cases. This would particularly be so in circumstances where, as the Salvation Army submitted, the evidence established that by 1994 (or perhaps 1997) the Salvation Army Southern Territory had established a formal scheme for handling complaints of sexual abuse and that prior to that scheme allegations of sexual abuse were dealt with on an ad hoc basis.
What sets this case apart is the statement of Commissioner Tidd in 2015 to the Royal Commission into Institutional Responses to Child Sexual Abuse which was an annexure to an affidavit tendered by the Salvation Army itself. As the joint judgment observes, this evidence was admitted without restriction before the primary judge.[39] When the Salvation Army Southern Territory's scheme for handling complaints is seen in light of that evidence it takes on a very different perspective. Relevantly, as the joint judgment explains in detail, Commissioner Tidd concluded that complaints of abuse were made concerning officers and other staff at homes operated by the Salvation Army Southern Territory, most of which were made "in more recent times, after the homes have all been closed".
As the joint judgment also explains, the conclusion that complaints of abuse would not have been investigated is supported by a report (with which Commissioner Tidd agreed), prepared after thorough investigation by Mr Walker who was the director of the Territorial Professional Standards Unit for the Salvation Army Southern Territory between April 2014 and December 2018. In that report, Mr Walker concluded that the Salvation Army Southern Territory had "failed to fully explore and investigate claims of child sexual abuse" and it "failed to appropriately respond to [such] claims".
In the face of evidence of such apathy by the Salvation Army, RC submitted that it could not be readily inferred that, if RC's legal claim had been brought earlier, then the Salvation Army would have taken any action to pursue lines of enquiry with Lt Swift, Major Watson, or other officers of the Salvation Army, or to locate and preserve documentary evidence relating to claims of abuse. An apprehension of legal liability could not be assumed to have altered this attitude, since after 24 March 1974 at the latest,[40] and before the enactment of s 6A of the Limitation Act 2005 (WA),[41] which took effect on 1 July 2018, the Salvation Army could have pleaded a limitation defence to any legal claim by RC of sexual assault without any court having the power to extend the limitation period.[42]
The Salvation Army submitted, however, that the evidence of Commissioner Tidd and Mr Walker could not be used by RC to deny an inference that it would have explored or investigated any legal claim of sexual abuse. The Court of Appeal had concluded that it appeared that this was not an issue before the primary judge;[43] and the Salvation Army submitted that if it had been an issue then the Salvation Army would have objected to the use of the reports of Commissioner Tidd and Mr Walker. Even if that submission is accepted, there is other evidence before the Court that tends towards the same conclusion.
First, there is the evidence of RC that, while staying at the Home, he complained of the abuse to Major Watson and was ignored. Secondly, there is evidence of complaints by at least nine other men of physical and/or sexual abuse by Lt Swift, including two claims in 2000 which did not specifically mention Lt Swift at that time (but did subsequently) and another claim in 2003 which did specifically mention sexual abuse by Lt Swift between 1948 and 1955. No clear explanation, only speculation, was offered by the Salvation Army for why Lt Swift was not contacted. Instead, in 2004 a Deed of Settlement was entered between a Salvation Army entity and the man who was abused between 1948 and 1955 and a letter of apology was sent to the man in September 2004. Thirdly, there is the statement of Mr Brewin, a solicitor employed by the firm that acted for the Salvation Army Southern Territory for more than two decades, that even in the context of the formal scheme established by the Salvation Army Southern Territory for handling complaints of sexual abuse, the steps taken by the Salvation Army Southern Territory were limited. Mr Brewin said of claims made against living Salvation Army Southern Territory officers:

[55]

The third category of prejudice asserted by the Salvation Army was the absence of an ability to obtain relevant evidence from any officers who worked at the Home between 1959 and 1962. Once again, this assertion of prejudice confronts the difficulty that the Salvation Army failed to prove that it would have made contact with those (unnamed) officers if RC had brought a claim many years earlier. In particular, one such officer was Lt Swift's wife who only died in 2019. There was evidence of correspondence between the Salvation Army Southern Territory and her. But there was no suggestion that the Salvation Army took any steps to obtain any information from her.
There are further obstacles to an inference that if RC's claims had been brought before a substantial lapse of time then the Salvation Army would have taken steps to obtain information concerning RC's claims from officers working at the Home in 1959 or 1960. One obstacle is the presence of two living officers (one of whom was the Matron of the Home in 1960) from whom the Salvation Army could still obtain, but still has not obtained, information. Although some steps to obtain information from those living officers have been taken by the Salvation Army's solicitors since 2020, there was no evidence of any substantial steps taken by the Salvation Army to obtain information concerning RC's claims from the two identified officers or any other living officers in the 20 years before 2020.
During this long period of stasis in the two decades before 2020, the records of Salvation Army entities in evidence before the primary judge show: (i) from May 2000 until October 2018, the solicitors for the Salvation Army Southern Territory were notified of seven different residents of boys' homes operated by the Salvation Army Southern Territory, including one resident of the Home (whose claim was notified to the Salvation Army in October 2018), who had named Lt Swift as an alleged perpetrator in claims against Salvation Army entities; (ii) from August 2003 to August 2014, the Salvation Army and the Salvation Army Southern Territory were notified of three further allegations of abuse (including RC's allegations) in which Lt Swift was named as a "person of interest" by residents of boys' homes (including two residents of the Home); (iii) as such, from May 2000 to October 2018, the Salvation Army or the Salvation Army Southern Territory (either directly or through solicitors) were notified of at least ten claims where Lt Swift was named as the perpetrator of abuse by former residents of boys' homes, at least five of which involved claims of sexual abuse and three of which were made by residents of the Home; and (iv) the Salvation Army had been notified of RC's allegation of sexual assault in February 2014.

[59]

The appeal should be allowed and orders made as proposed in the joint judgment.
STEWARD J. I refer to and repeat the first four paragraphs of my reasons in Willmot v Queensland.[46]
Adopting with gratitude the description of the facts in the reasons of the plurality, I respectfully agree with the orders they propose. I generally agree with the plurality's reasons as well, save as follows.
First, I would emphasise that the respondent ("The Salvation Army") has yet to establish that it cannot obtain meaningful instructions or did not have an opportunity to do so following its realisation that appalling abuse had taken place in the past, including (it is alleged) by Lt Swift. The Salvation Army first learned of allegations concerning Lt Swift in 2003 (there was also an earlier complaint made in 1961) and first learned about RC's particular complaints in 2014. In 2014 Lt Swift's wife, who was also a Salvation Army Officer and may have had extensive knowledge of her husband's activities and behaviour, was still alive. She passed away in 2019 and was said to have suffered from memory issues two or so years beforehand. However, there was no suggestion that in 2014, or indeed earlier, she could not have given an account of Lt Swift's role during the period of alleged abuse of RC, or indeed, his other alleged victims. No excuse has been offered by The Salvation Army for why it never made such enquiries.
Then there are the ten men who have all made complaints about Lt Swift. Each of them has been identified. The Salvation Army has not approached any of them to determine whether they can, or cannot, give meaningful information about the allegations made by RC to enable The Salvation Army to understand the case it must meet. As such, I am not satisfied that The Salvation Army is necessarily "utterly in the dark".[47] That has yet to be established.
Other than to buttress the conclusion that The Salvation Army failed to demonstrate that it had reasonably not taken steps to investigate RC's claims, I would not place any great reliance upon the statement given by Commissioner Tidd to the Royal Commission into Institutional Responses to Child Sexual Abuse ("the Royal Commission"). Commissioner Tidd only arrived in Australia from overseas, and assumed the role of Territorial Commander Australia Southern Territory of The Salvation Army, in 2013. His statement was based on hearsay evidence and other information that he discovered whilst preparing his statement. The same observation should be made about the report of Mr Walker and Commissioner Tidd's acceptance of it.
The contention that The Salvation Army lost only the opportunity of a "bare denial by Lt Swift" is, with respect, pure speculation. It is rejected. It is not otherwise supported by the experience of a lawyer who said that Salvation Army Officers "always den[ied] any allegations of abuse". With respect, unless the lawyer in question was referring to denials made by Lt Swift himself, and there is no suggestion that he was, the evidence does not logically convert speculation about that man into a probable inference about what he might have said. Any such course of reasoning is, with respect, unacceptable.
Applying the reasoning in Moubarak by his tutor Coorey v Holt:[48] it is not the case that RC never confronted the Salvation Army before the death of Lt Swift in circumstances where RC alleged that he complained at the time to Major Watson that he had been raped, although no complaint was made to the police until 2014; Lt Swift died well before the commencement of proceedings; nonetheless, for the reasons given above, the Salvation Army has not demonstrated at this stage that it is unable, or has been unable, to obtain instructions about the conduct of Lt Swift (although it is obviously disadvantaged in that it cannot obtain instructions directly from Lt Swift); and it is not the case that all other potential witnesses are now dead. It follows that I am not satisfied that The Salvation Army has met the high onus that would justify a permanent stay of this proceeding.
I agree with the orders proposed by the plurality.

[61]

As in Willmot, the Court of Appeal (Murphy and Vaughan JJA, Bleby A‑JA) proceeded on the incorrect assumption that it was necessary for RC to show House v The King[51] error on the part of the primary judge in deciding to order a permanent stay.[52] The issues considered by the Court of Appeal were whether the primary judge erred in the following four respects: (1) in finding that the SAWA did not have an opportunity to investigate RC's allegations because the alleged perpetrator, Lt Swift, had died well before the SAWA was first made aware of his allegations; (2) in failing to find that, if it did have an earlier opportunity to investigate the allegations, the SAWA would not have taken up that opportunity; (3) in finding that the SAWA was prejudiced through the loss of documents and the inability to call witnesses; and (4) in failing to have regard to the statement, in 2015, by Commissioner Tidd to the Royal Commission into Institutional Responses to Child Sexual Abuse as evidence relevant to alleged prejudice and containing admissions against the SAWA's interests.
As to the first issue, the Court of Appeal found that the primary judge did not err in finding that the SAWA first became aware of RC's allegations against Lt Swift on 10 February 2014 and therefore did not have an opportunity to investigate the allegations until after Lt Swift died.[53]
The Court of Appeal found that the second issue was not raised before the primary judge with the result that there was no relevant error.[54] Further, the Court of Appeal concluded that there was no obligation on a party in the position of the SAWA to prove what it would have done if it had been notified of allegations at an unspecified earlier time.[55] The Court of Appeal also observed that, where a limitation period has expired and, consequently, litigation cannot reasonably be anticipated, it is not unreasonable not to investigate the underlying merits of a claim even if it is one of which a defendant then has notice.[56]
As to the third issue, the Court of Appeal found that, apart from evidence pointed to by RC, there was a dearth of evidence some 60 years after the alleged abuse. That dearth was said to derive from the following four matters: (1) the death of Lt Swift in 2006; (2) the death of Major Watson (the manager of the Nedlands Boys' Home ("the Home") at the time of the alleged assaults, to whom RC allegedly spoke about Lt Swift while residing at the Home) in 1968; (3) the absence of other officers who worked at the Home where RC allegedly resided at the time of the alleged abuse and to whom inquiries could have been directed; and (4) the inability of the SAWA to investigate whether there existed relevant documentary records. The Court of Appeal considered that the cumulative effect of these matters was "highly damaging to the capacity of the [SAWA] to conduct a defence in any meaningful way".[57]
Finally, the Court of Appeal did not accept that the primary judge had erred by failing to take into account Commissioner Tidd's statement to the Royal Commission into Institutional Responses to Child Sexual Abuse, and found that any admission incorporated into the statement is of "such a general nature that it does not ... overcome the deficit of information facing the [SAWA] with respect to the particular situation at the Home in 1959 and 1960".[58] The Court of Appeal concluded that the SAWA was "unable to investigate any steps that Major Watson took in response to any report he received, anything by way of admission or denial said by Lt Swift, and what duties [the SAWA] authorised or acquiesced in Lt Swift performing at the Home".[59]

[66]

The evidence about the SAWA's capacity to make inquiries of other witnesses was inconclusive as to the extent of its impact upon the SAWA's opportunity to participate effectively in a trial of RC's claims. Lt Swift's wife, Doris Swift, could have provided relevant information. She was alive when RC commenced proceedings but died less than six months later on 17 May 2019. The primary judge found that Mrs Swift appeared to have been suffering from significant memory issues for two or so years before her death. I do not accept that the SAWA could reasonably have been expected to have made inquiries of Mrs Swift concerning Lt Swift's conduct prior to being informed of RC's allegations in 2014 when any claim would still have been statute-barred, nor do I accept that the SAWA could reasonably have been expected to have made any such inquiries before RC filed his proceedings shortly after the removal of the limitation period on 1 July 2018 by s 6A of the Limitation Act 2005 (WA). By that time, it is reasonable to infer that any inquiries directed to Mrs Swift would have been fruitless. In the circumstances that I have set out, I do not accept that the SAWA was required to explain why it did not seek relevant information from Mrs Swift before her death.
The position concerning other officers was that two of 14 officers were alive when RC commenced his proceeding. The evidence suggested that inquiries of those officers were unlikely to shed further light on the facts in issue given the age of the former officers and their apparent unwillingness to cooperate.
However, the SAWA could readily have adduced more evidence about these potential sources of information to demonstrate the extent of available relevant information. Accordingly, the position concerning other officers is that the SAWA is apparently prejudiced by the loss of opportunities to make inquiries of 12 former officers but may have obtained relevant information from two former officers. The primary judge found that there were no other meaningful inquiries that the SAWA could make to identify potential witnesses, and no issue was taken with that finding.

[69]

RC's claim alleges sexual assaults in relation to which the opportunity to investigate the alleged facts was always limited because of the nature of the allegations, and in particular because RC does not suggest that any person other than Lt Swift was present to witness what happened. In that context, the possibility of significant evidence available to be adduced to contradict or cast doubt upon those allegations was always remote. What is sufficient for effective participation in a trial must be decided in that context.
As the Court of Appeal noted, RC and a number of other individuals who claim to have been assaulted by Lt Swift (some physically, some sexually) can be cross-examined if they give evidence at a trial. These individuals have given histories to medical practitioners, police and other witnesses so that they may be cross-examined on any relevant inconsistencies or implausibilities. While this evidence is a limited basis on which to address RC's claim, it is not significantly different from what would have been the position if RC's claim had been brought earlier in the absence of any suggestion that there were witnesses to the alleged sexual abuse. If anything, the identification of the other individuals appears to have provided opportunities for the SAWA to investigate circumstantial facts through inquiries directed to them. There was no evidence about whether the SAWA had pursued these lines of inquiry.
As to the claim based on vicarious liability, as is noted in the joint judgment, the SAWA has been able to advance a positive pleading that Lt Swift was not its employee. The numerous complaints made to the SAWA of mistreatment by Lt Swift from men who were formerly in the care of the Salvation Army provide possible opportunities to obtain information from those individuals about the role and conduct of Lt Swift at the relevant times. Nevertheless, the substantial passage of time has deprived the SAWA of most opportunities to investigate Lt Swift's actual role and conduct.
Since any action by RC against the SAWA was statute barred at the time, I do not accept that allegations concerning Lt Swift in 2003 (and in following years) that did not involve RC provided the SAWA with an opportunity to investigate facts relevant to this proceeding leading to a burden on the SAWA to demonstrate that it could not have obtained relevant instructions or made relevant inquiries before 2014, when it was first notified of RC's allegations. For the same reason, I do not accept that the SAWA should have made inquiries about RC's allegations in the period between when it was first notified of them and when RC filed his proceeding in 2018.
Without any greater similarity between RC's allegations and the evidence of a complaint about a physical assault by Lt Swift upon another boy at the Home in 1961 than that Lt Swift was the alleged perpetrator in each case, I do not accept that the latter complaint has ever given rise to any realistic opportunity for the SAWA to obtain instructions or make inquiries relevant to RC's allegations. In that regard, I do not consider that the SAWA was in a position to take steps to investigate RC's allegations before 2014 at the earliest.
Having regard to all these matters, I do not consider that the SAWA can do any more than put RC to proof of his allegations of sexual abuse. That situation is a severe limitation upon the SAWA's capacity to participate in a trial of the facts of the alleged abuse. The situation is not analogous to an accused in a criminal trial who says that they can do no more than deny the alleged offence, because that person can be taken to know the true facts and can present themselves to the court as a person who should be believed in that denial. The situation of the SAWA is also not analogous to a nominal defendant because such a defendant is created for the purpose of adjudicating claims in the absence of information about the alleged wrongdoer. This undoubted and severe limitation upon the SAWA's capacity to participate in a trial of the issues of the alleged abuse is, in large part, a consequence of the nature of RC's allegations but it is also the result of the passage of time insofar as evidence has almost certainly been lost concerning whether RC and Lt Swift were both at the Home at the time of the alleged abuse.
It is then necessary to consider whether the burdensome effects of the passage of time have deprived the SAWA of a reasonable opportunity to participate in a trial of the issues of direct and vicarious liability.
In this Court, the SAWA did not rely on any prejudice or inability to meet the claim based on breach of a non-delegable duty. Accordingly, the scope of the SAWA's common law duty did not arise for consideration on the appeal. Nor did the SAWA put a separate case directed to the claim based on breach of statutory duty. For the reasons I have given above, and having regard to the Court of Appeal's observations concerning the dispute between the parties about the scope of the SAWA's common law duty,[65] and my observations in Willmot,[66] I disagree with the conclusion in the joint judgment that the SAWA's only answer to that aspect of RC's claim can be that none of the alleged assaults occurred.
As to the vicarious liability claim, the SAWA can be taken to have lost many opportunities to investigate Lt Swift's actual role at the Home with a view to determining whether it could defend the claim on the basis that Lt Swift acted outside the scope of his employment in committing the alleged assaults. In my view, it would be unjustifiably oppressive to require the SAWA to defend that aspect of the claim so many decades after the alleged events when it has lost the chance to make inquiries of Lt Swift and Major Watson, and 12 of the 14 officers who may have been able to supply information about those matters. The SAWA's apparent capacity to mount a positive case that Lt Swift was not an employee does not address the prejudice of its lost opportunities to participate in a trial about the scope of Lt Swift's employment, if he was an employee.

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