Stewart v Ma

Supreme Court of NSW|2022-11-25|Before: Garling J

JUDGMENT

On 2 September 2021, Sandra Joy Stewart ("the plaintiff") commenced proceedings claiming damages for sexual assault against Jianhua Ma ("the defendant") in her capacity as the legal personal representative of the Estate of the Late Ross Henry Stewart ("the deceased"). It will be convenient to refer to these proceedings as the "common law claim".
The plaintiff claims that she was regularly abused by the deceased between 1964 and 1977. She does not specify, and unsurprisingly, is unable to specify with any particularity, the dates, times, or places of each occasion of sexual abuse. The nature of her common law claim is not one allied to a specific event which itself can be fixed in point of time. Her claim arose from a course of conduct engaged in over a period of many years.
The defendant has filed a Defence in which she pleads that she does not know and cannot admit that between 1964 and 1977 the plaintiff who was aged between 4 and 17 years of age, and the deceased who was aged between 37 and 49 years of age, were the victim and perpetrator respectively of sexual assaults which would regularly occur in the family home at Dee Why, or else in the backseat of the deceased's motor vehicle.
On 3 June 2022, the defendant moved the Court for an order pursuant to s 67 of the Civil Procedure Act 2005 and also in the inherent jurisdiction of the Court that the proceedings be permanently stayed.

Related Proceedings

There are in existence related proceedings filed on 14 June 2021 which were brought pursuant to s 59 of the Succession Act 2006 (NSW), claiming an order that provision be made for the plaintiff out of the Estate and/or the notional Estate of the deceased for her maintenance, education and advancement in life. It will be convenient to refer to these proceedings as the "Estate claim".
The Estate claim has not been determined and awaits the outcome of the common law proceedings.

Factual Chronology of Documentary Records

It is necessary to record a chronology of facts and to outline whether any, and if so what, records are in existence describing the facts.
The deceased was born in July 1927 and was 32 years old at the time the plaintiff was born in September 1959. The deceased died on 16 June 2020.
Between 1964 and 1971, the plaintiff attended Dee Why Primary School. Whilst she was at that school, in or about 1968, she was sexually assaulted by an unknown assailant in a toilet block at Beverley Job Park in Narraweena, a short distance from her home ("the Job Park assault"). The plaintiff says that she immediately reported the assault to a friend who was with her, Ms Catherine Wynn. They attended at a nearby house. The parents of both girls were called as were the police.
A sexual assault counsellor, Ms Karen Pittman, wrote to the Commissioner for Police on 25 September 1989. Her letter was in these terms: "I am writing in support of a client, Ms Sandra Stewart, gaining access to a record of an interview taken when she was a victim of sexual assault as a child. Ms Stewart, now 30 years of age, has been seeing me for the last seven months, in an effort to come to terms with the assault and the subsequent impact it has had in her life. I believe access to these records will be of theraputic [sic] value to Ms Stewart. As a sexual assault counsellor I am aware of the impact access to such records could have for my client and [will] be available to work through these issues with her."
Nothing was produced in answer to this request.
Another request was made by the plaintiff in October 1989 to the police for their records of the complaint. Following a search by the police of their records they did not have any success in identifying any record of the assault still in existence.
A more recent request made by the solicitor for the defendant has not had any success.
From 1972 to 1977, the plaintiff attended Manly Girls High School. From 1978 to 1980, she attended the Ku-ring-gai College of Advanced Education, where she undertook studies to enable her to pursue a career as a primary school teacher.
After she completed her studies to be a teacher, the plaintiff left the family home in May 1982 and moved to the Central Coast. She lived alone. She was employed by the NSW Department of Education ("the Department") for a number of years on the Central Coast as a teacher at one of the local primary schools.
Having been a teacher for a about four years or so, the plaintiff took leave of absence from the Department for an initial period of about two years, from 1986 to 1988, to travel and work abroad for an organisation known as Australian Volunteers Abroad, teaching English at a secondary school in Botswana. She extended that leave for a further period of 12 months and then returned to work with the Department. She continued to work as a teacher until 1994, when she resigned from full-time work. The records of the Department, which are available, confirm these dates and events.
It is necessary to return, a little out of chronological order, to some earlier facts, including the fact that in April 1975, when the plaintiff was about 15 years and six months old, she was diagnosed as suffering from diabetes which required her to monitor her blood sugar levels and inject herself with insulin as required.
The plaintiff's evidence contains a reference to the fact that whilst she was in Year 9 at high school, which would have been in 1975, she attempted suicide. She says that this was known to her Year 9 teacher, who asked her if she was alright. She responded that she was fine. There are no records available of this incident.
According to the plaintiff's account, the sexual abuse, upon which the common law claim is based, ceased being perpetrated during 1977, which was her last year at Manly Girls High School. She would have been 17 or 18 years old during that time.
Whilst the plaintiff lived at home with her parents, there were periods during which her cousins, Mr John Turner, Mr Allen Turner and Ms Janice Cash, stayed at the plaintiff's home. Their evidence does not assist in identifying, one way or the other, whether there was any sexual assault being perpetrated by the deceased upon the plaintiff during the time in which they stayed in the home.
The next significant period relevant to the sexual abuse commences on 16 March 1989 when the plaintiff was 29 years old. She had been teaching for almost ten years. She was living and teaching in the Upper Hunter Valley. At that time, the plaintiff was referred by the local general practitioner to the psychologist at the nearby Muswellbrook Hospital for counselling and "psychotherapy". It appears that a complete set of the clinical notes from the Sexual Assault Service at Muswellbrook Hospital from that time are available. They are in evidence.
The plaintiff first attended at the Muswellbrook Hospital on 16 March 1989, and although she was initially seen by a specialist psychiatric nurse, early on in the interview, that nurse asked a sexual assault counsellor, Ms Karen Pittman, to take over the counselling of the plaintiff. From that time onwards, the counselling occurred in various locations, including the Hospital, and one or other Community Health Centres.
The notes from the Sexual Assault Service contain detailed accounts of the plaintiff's interactions with Ms Pittman, and Ms Coral Spence, both of whom were sexual assault counsellors at Muswellbrook between 16 March 1989 and 12 March 1993.
At the initial consultation, Ms Pittman identified the areas of concern raised by the plaintiff as being: 1. the Job Park assault which occurred when she was eight years old; 2. relationship difficulties with men; 3. relationship problems with her mother; 4. her diabetic condition which she had trouble keeping under control; and 5. low self-esteem and depression.
With respect to the area of concern regarding the Job Park assault, Ms Pittman recorded that it had only been in the previous three years that the plaintiff had been worried that "… this incident is interfering with her life".
It is unnecessary to set out all of what the plaintiff told the counsellors. It does appear, however, that in October 1990, in a handwritten letter which she sent to Ms Pittman, the plaintiff made the first report about the sexual abuse by her father upon which she now relies ("the October letter"). However, the detail is a little different. In the October letter, she reports upon sexual abuse by her father in these terms: "We weren't barking up the wrong tree with the assault, just not getting down to the roots. The breath session gave me sexual abuse by my father at a very young age. I was pre-verbal and still in the cot (which I was taken out of at 2 and a half)."
That letter came after a period of about 18 months during which Ms Pittman had been counselling the plaintiff. Ms Pittman had earlier that year reported to the plaintiff's general practitioner on 6 February 1990, saying this: "I have regularly seen [the plaintiff] since this assessment, we have agreed to continue to meet this year. We have been working on issues to do with sexual assault, self-esteem, making choices and taking responsibility for actions."
Consultations had continued from time to time during 1990. Prior to the October letter being sent, it appears from the notes that the last consultation was on 30 April 1990. The Sexual Assault Service records do not provide any precise information about the "breath session" to which the plaintiff made reference in the October letter.
In the October letter, the plaintiff further wrote that: "By the time Saturday came and I checked in at Mandorla I was just ready to escape the world for six days."
Attached to the plaintiff's affidavit is a pamphlet for Mandorla, which is described as a "Centre for Personal, Spiritual and Transpersonal Awareness". The plaintiff says she attended a six-day workshop in 1990, during which she produced a series of artworks which are described and photographed in a document dated October 1990, entitled "The Mandorla Series - The Truth Revealed" (which I will describe as "the portfolio").
The Mandorla pamphlet notes that a six-day workshop is to be conducted in the period 22-28 September 1990. 22 September 1990 was a Saturday. The workshop was to be conducted at Vaughan College in Marsfield in Sydney. Included in the pamphlet is a reference to some of the technologies used at the workshop. It says: "Central to our programme is Transformative Breathwork - a comprehensive approach to self exploration that integrates physical, psychological and spiritual dimensions. The process allows a bridging of conscious and unconscious aspects of the personality … It combines a specific breathing technique with evocative music. The experiential nature of breathwork allows aspects of the birth experience and forgotten or repressed aspects of the individual to emerge into conscious life, thus paving the way to enter deeper transpersonal realities."
I am prepared to conclude by reference to this material, the timing of the workshop, the fact that the plaintiff has in her possession a pamphlet from Mandorla containing the dates of the workshops in 1990 and 1991, and the existence of the portfolio, that the plaintiff's realisation that her father abused her as she described to Ms Pittman in the October letter, came about consequently upon one or perhaps more, sessions of "Transformative Breathwork" at the Mandorla Centre during the workshop conducted in late September 1990.
I note that in the portfolio, the plaintiff makes the following statements: 1. "The red invades my genitals. I see now what I could not see then my mother's sexual involvement in my abuse"; and 2. "My mother and the monster work together and apart from each other. They know but they don't".
The plaintiff's common law claim does not involve any allegations of sexual abuse by her mother.
Ms Pittman responded to the October letter in a handwritten note at about Christmas time. The plaintiff responded to Ms Pittman with another handwritten letter on 28 May 1991 ("the May letter"). Amongst other things, she said: "From what I can put together from breath sessions [and] what my psyche throws up for me the abuse went on from the time I was very young (still in the cot) until I was about 8. I'm guessing it stopped with the stranger abuse." The "stranger abuse" is a reference to the Job Park assault.
The plaintiff also refers to having "… little or no conscious memory there …" when referring to the abuse by her father.
Following the May letter, it appears that the plaintiff next engaged in a counselling session on 28 August 1991. At that time a note is recorded that the plaintiff was in "emotional turmoil as new memories of incestuous abuse keep arising all the time".
In that session, the plaintiff reported to Ms Spence that her father began to sexually abuse her from "… a pre-verbal stage right into her 20s…". It was reported that the plaintiff seemed to have blocked the whole of this experience out of her life. The note then says: "She finds that it is the unreliability of her own memory that frightens her most of all as well as her feelings of betrayal and self-disgust."
During the course of another counselling session on 19 November 1992, the counsellor noted with respect to the plaintiff: "She still feels she needs to go over the incest. Is it all 'real'? Does she trust her flashbacks/memories?"
At that time, although the plaintiff was in contact with each of her parents, it does not seem from the evidence available on this application, that she raised the subject of the sexual assaults with either of them. That is not a matter the subject of any criticism. The plaintiff's last counselling session with the Sexual Assault Service was in March 1992.
From about this time onwards, in the course of a complex medical history, particularly associated with her diabetic condition, the plaintiff has disclosed, as part of her history provided to a number of practitioners, the fact that she had been sexually abused as a child by her father. This included disclosures to counsellors, to specialist doctors, Dr Lowe, Dr Trevillian, to general practitioners at the Brook Street Medical Centre where she was receiving general medical care, and to a health insurer (via her general practitioner) with respect to her inability to work.
In 1999, she disclosed the abuse to her husband, Mr Jeremy Nunn.
In July 2003, the plaintiff's mother died. The evidence does not show that the plaintiff informed her mother at any stage of her father's abuse of her. About nine years after her mother's death, the deceased married the defendant. Although the plaintiff had met the defendant on the occasion mentioned earlier, there had been no discussion between them about her father's abuse.
In the course of 2012, the plaintiff disclosed the fact of the abuse to her cousins, Allan Turner and Janice Cash. She has also disclosed the abuse to various medical practitioners since that time.
At no time prior to the death of the deceased was he or the defendant informed of the plaintiff's allegations.
The deceased, the plaintiff's father, died on 16 June 2020. The day following his death, in the course of various text exchanges with the daughter of the defendant about a number of matters including funeral arrangements, the plaintiff informed the defendant's daughter of the history of incest at her father's hands.
I also note that Dr Colin Cook, who was the plaintiff's general practitioner, died on 10 August 2021.
These proceedings were commenced on 29 September 2021, in the context that the plaintiff had commenced the Estate claim on 14 June 2021.

Permanent Stay of the Common Law Claim

It is convenient to set out concisely the relevant legal principles which are applicable when dealing with an application for a permanent stay of proceedings.
In Moubarak v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, Bell P (as the Chief Justice then was) set out in his judgment (with which Leeming JA and Emmett AJA agreed) the following principles (omitting citations of authority ): "71. … the following uncontroversial propositions may be derived: (1) the onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant …; (2) a permanent stay should only be ordered in exceptional circumstances …; (3) a permanent stay should be granted when the interests of the administration of justice so demand …; (4) the categories of cases in which a permanent stay may be ordered are not closed …; (5) one category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive …; (6) the continuation of proceedings may be oppressive if that is their objective effect …; (7) proceedings may be oppressive where their effect is 'serious and unfairly burdensome, prejudicial or damaging' …; (8) proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party …; (9) proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people."
It may be accepted, as the parties did, that these are the appropriate principles to which the Court ought have regard.

The Relevance of Historic Abuse Allegations in the Estate Claim

In Page v Page [2017] NSWCA 141, Sackville AJA, at [116], addressed the relevance - for proceedings brought against an Estate pursuant to the Succession Act - of evidence about sexual abuse of a dependent, or else a person entitled under the Succession Act to make a claim against the Estate. His Honour observed: "118. The primary Judge proceeded on the assumption that the matters relied on by the appellant had been established by the evidence. On that assumption, the deceased had perpetrated serious sexual assaults on the appellant over a number of years. Equally important, on that assumption, the deceased's sexual abuse had caused permanent psychological damage to the appellant and (by inference) to his ability to live a normal life and fulfil his economic potential. 119. On the facts assumed by the primary Judge, his Honour may have erred in concluding that the appellant had not satisfied s 57(1)(e) of the Succession Act on the ground that the allegations "speak more to damages and compensation, than to factors warranting the making of an application". … 120. … historic sexual abuse may be relevant to a family provision claim. This may be the case, for example, if the evidence establishes that the abuse caused the claimant to suffer a physical or psychological disability impairing his or her capacity to earn an adequate income. … [It] may not have been a sufficient answer to the appellant's claim that the allegations of sexual abuse related more to damages or compensation than to whether factors are present warranting a family provision application." (citations omitted)
In the particular circumstances of Page, the Court of Appeal declined to remit the factual consideration of the sexual abuse allegations for a further hearing.
In the course of the passages to which I have drawn attention, Sackville AJA referred to a decision of the Victorian Court of Appeal in Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178 at [40] where the Victorian Court of Appeal said: "40. Finally, the [Family provision legislation does not] create an alternative means of obtaining compensation or damages for a wrong done to a person by the testator or for which the testator bears some blame. Nevertheless, the testator's conduct may explain why the claimant has a particular financial need." (citations omitted)
Lindsay J, in re Estate McNamara [2018] NSWSC 1661, dealt with allegations in Succession Act proceedings that many years before the death of the deceased, the plaintiff had been sexually abused by the deceased. Evidence was adduced of a specialist psychologist about the description by the plaintiff of that abuse and the effect upon him. In that particular case, the defendant, the executor of the deceased's Will, had no knowledge of any factual foundation of the plaintiff's allegation of sexual abuse.
Lindsay J found it difficult to determine whether or not the abuse had occurred as the plaintiff claimed. His Honour nevertheless had regard to the allegations as a factor in his determination of the claim.
The preponderance of authority seems to be that evidence of historic sexual abuse perpetrated by a testator on a claimant in estate proceedings may be relevant to explain why an applicant has a particular financial or other need. It may be relevant to explain why there is a breakdown of personal relationships or why a deceased chose to exclude an individual from a direct benefit under their Will.
In those circumstances, it is appropriate to keep in mind, in assessing this application, that the plaintiff will be expected to give evidence about, and presumably be subject to challenge by way of cross-examination, the sexual abuse which she says occurred at the hands of her father.

Defendant's Submissions

The defendant draws attention to the fact that she is the defendant in the proceedings by reason only of being the executor of her deceased husband's Estate. She draws attention to the fact that the Estate, including the value of the apartment in which she lives, has assets of about $1.5 million. In the course of the hearing of this application, it was plain that if successful, the plaintiff would wish to recover damages in a sum equal to or greater than the value of the entire Estate. She submits that this is one feature of the prejudice which she faces by having to defend the common law claim.
The defendant submits that the grant of a permanent stay is the only appropriate way to ameliorate the manifest unfairness to the Estate of meeting the allegations of sexual abuse at a trial of the common law claim. She notes that the events occurred between 47 and 58 years ago; that the only direct evidence in support of the allegations are the statements of the plaintiff; and that the only person who can directly rebut the allegations, namely her late husband, is dead. She submits that at no time prior to his death was her late husband confronted with the allegations and, accordingly, not only she, but he also, have not been able to refute them. She submits that as she was only on notice of the allegations after her husband's death, she could not make any enquiry of him. She also notes that the only possible contemporaneous witness (of, at least, the surrounding circumstances of the alleged abuse), namely, the plaintiff's mother, has been dead for 20 years.
The defendant submits that this is not a case in which any possible enquiries which she might make could ameliorate the manifest prejudice occasioned by (i) the lapse of time since the events in question occurred, (ii) the death of her husband without his being confronted by the allegations, and (iii) her inability to give any instructions to her lawyers to contest the proceedings.
The defendant accepts that there are records from the Sexual Assault Service at Muswellbrook in the period from 1989 to 1992 which record that the plaintiff reported sexual abuse to those treating her, which initially did not mention allegations against the deceased but ultimately did so.
The defendant also notes that this is not a case in which any allegation of vicarious liability is raised. Rather, the claim against the Estate arises directly as a consequence of the deceased being alleged to be the perpetrator, with the consequences that damages would be payable. The defendant submits that this means, differently from claims against an institution for historical sexual abuse, that the only way in which this matter can be approached is for the evidence of the alleged perpetrator to be available. It is not.
The plaintiff submits that as the common law claim is different from the Estate claim, and that there is no necessary inconsistency between the grant of a permanent stay of these proceedings where the Court is required to make a determination about the facts of the alleged sexual abuse, and the Estate claim where the fact of the sexual abuse if proved is a discretionary component of the assessment of the plaintiff's entitlement to a greater share of the Estate than provided for by the deceased's Will. Accordingly, the defendant says that the prejudice to the plaintiff which exists through the grant of a permanent stay is much diminished.
In her submission, the defendant draws attention to the decision of the Court of Appeal in Moubarak which she submits is a helpful analogy for the present application, because she submits that all but one of the important features which led to a permanent stay in that case are present here.
In Moubarak, the plaintiff brought civil proceedings against her uncle, alleging four instances of sexual abuse when she was 12 years old. The time lapse between those alleged assaults and the commencement of the proceedings was over 40 years. The plaintiff notes that the time period here is greater. The applicant in Moubarak, who was the defendant, suffered from severe dementia, and was incapable of giving evidence or instructions to counsel to contest the matter. The defendant submits that here, because of the death of the deceased, the alleged abuser, she is in no different position to the position to the defendant in Moubarak.
The defendant points to the other salient features to which the judgment of the President drew attention at [162]-[171] and submits that at least eight of those nine salient features are present here.
Those present here are: 1. at no time prior to his death was the defendant ever confronted by the plaintiff with the detail of the alleged sexual abuse; 2. no report has ever been made to the police which might have resulted in investigations into sexual abuse by her father being undertaken; 3. prior to the commencement of the proceedings, the alleged abuser had died, and accordingly is not available to give evidence in the proceedings; 4. the nature of the allegations is such that there were no eyewitnesses to the alleged assaults which would mean that the value of enquiries which may have been made is very low indeed; 5. the defendant does not have the benefit of any instructions or any other account of facts from the deceased to permit her to conduct the proceedings and confront the plaintiff appropriately; 6. the events, having occurred over 45 years ago, mean that other potential relevant witnesses are now dead or unavailable including the plaintiff's mother who, whilst she was not a witness to the alleged assaults, was living in the house at the time and may have been able to give evidence about her observations of either or both of the plaintiff and the deceased; and any relevant surrounding circumstances; and 7. whilst the defendant accepts that, as opposed to the position in Moubarak, here there is some documentary evidence which came into existence in the period between 1989 and 1992 which records the plaintiff as having given an account of the alleged sexual assaults, the fact that no mention was made of her father as the perpetrator mid-way through that period, and the circumstances in which the memories have been revived, raise legitimate matters for testing when the plaintiff gives evidence, but in any practical sense, the defendant is not able to challenge the truthfulness of this material.
The defendant submits that, having regard to all of these matters, which are substantially the same if not identical with the matter of Moubarak, there is no reason for the Court to do anything other than order a permanent stay.
The defendant makes three fundamental core contentions, namely: 1. first, the salient features of the proceedings were, as I have alluded to above, such as to give rise to appropriate relief by way of a permanent stay for reasons analogous to those considered in Moubarak; 2. secondly, the facts of the present case are vastly different from the facts of those cases where a permanent stay has been refused, including Gorman v McKnight [2020] NSWCA 20; and 3. thirdly, in the absence of any evidence from or any ability for her deceased husband to contradict the claim, the entire claim turns on the evidence of the plaintiff. There is simply no other witness identified who can cast any light on the essential facts of the proceedings. Such a situation magnifies any prejudice which arises from the death of her husband.
Finally, the defendant submits that although it was unnecessary for her to undertake enquiries in order to support her application, she has done all that reasonably can be done by way of enquiries to identify and locate any available witness.
She submits that none of those searches have revealed anything of significance, other than perhaps confirmation of the fact that there are no potential eyewitnesses who are able to provide any evidence, including tangential evidence, about the subject matter of the suit.

Plaintiff's Submissions

The plaintiff submits that the Court would not be satisfied that the defendant has made all reasonable enquiries as to evidence that would be available to assist her in defending the claim. In particular, the plaintiff submits that the defendant could have, but has not made: 1. any enquiries with respect to the deceased's medical practitioners, including obtaining their medical records; 2. any attempt to identify or speak with any of the deceased's friends, work colleagues or business clients; or 3. any attempt to speak with any of the deceased's neighbours at the time the events were taking place at his home.
The plaintiff submits that the enquiries made with respect to the deceased's solicitor and former solicitor were at best desultory and perfunctory, a term which had been used by the Court in Gorman.
As well, the plaintiff submits that there is significant and extensive evidence available to the defendant by which the claim being made by the plaintiff can be examined and the claim confronted and tested. She notes that she is available to give evidence and be cross-examined; that her medical records from 1989 to 1993 (and since) are available and have been provided to the defendant; that her husband and a number of medical practitioners who have treated her are alive and available to give evidence; that there are a number of people (members of the deceased's extended family) who stayed in the deceased's home at the time when the plaintiff was living there and whilst the abuse was alleged to have been occurring, who are alive and able to give evidence.
The plaintiff's submissions also note that there is at least one schoolteacher of the plaintiff, being her Year 9 teacher, who is available to give evidence, as is her friend who was present at the time of the Job Park assault.
Ultimately, the plaintiff submits that the threshold for obtaining a stay has not been met by the defendant.

Discernment

The nature of the conduct which is alleged to have been perpetrated by the deceased, Mr Stewart, on his daughter, the plaintiff, was of a kind that took place in a location, or locations, and at a time of the day when it might be anticipated that there would be no one to witness it, or any interaction leading up to it that could have been witnessed by others. Insofar as the conduct took place in the family home, which was not a particularly large house, it is perhaps possible that the only other person in the house at the time, namely the plaintiff's mother, may have heard or seen something which could have corroborated either the allegation that the abuse occurred, or provided a denial that any such abuse could have occurred.
The evidence capable of being given by members of the extended family of the deceased who may have stayed in the house from time to time does not reveal anything of relevance to a determination as to whether the sexual abuse alleged occurred or not. Their evidence does not directly or indirectly provide any probative material on that question.
The plaintiff's father, the alleged perpetrator, and her mother, the only possible witnesses of the events, are both dead. Neither of them was made aware of the plaintiff's allegations prior to their respective deaths. Accordingly, the defendant is not in a position to know what the situation is with respect to the plaintiff's allegations, she is unable to meet the allegations, and is unable to obtain any instructions which would enable her, in her representative capacity as the Executor of the Estate of the deceased, to meaningfully participate in the litigation of the common law claim.
The only trial which can occur of these allegations is a one-way trial, that is to say, the plaintiff can give evidence herself as to what occurred. The limited records available, principally those from the Sexual Assault Service at Muswellbrook for the period 1989 to 1992, may enable her evidence to be tested. That testing can occur as to any inconsistencies in her report to her treating counsellors or else in a way which might test the probative value of the evidence. But such testing of those accounts and the plaintiff's credibility as a witness would not have any context or purpose, nor any end. That is because the defendant cannot give instructions to her lawyers as to whether the plaintiff's account of the sexual abuse is wholly or partly accurate, or whether she disputes what is alleged to have occurred. She is not able to say whether her case is that the plaintiff is giving an accurate account of what occurred, or whether her evidence is mistaken in whole or in part.
The consequence of these matters is that it would not be open to counsel retained for the defendant to confront the plaintiff with any different version of the facts, including perhaps that the events upon which the plaintiff bases her common law claim did not happen. The defendant has no version of events which could be available to assist in her giving instructions to counsel as to what properly may be tested. That of course may include a version which accepts the accuracy of the account given by the plaintiff.
The fact that there seems to be evidence available, capable of some corroboration, that the plaintiff was sexually assaulted in Job Park at the age of eight, would, if anything, make the task of the defendant in the conduct of these proceedings all the more complicated and be likely to give rise to a significant unfairness at the hearing of the common law claim. That is because whilst such an assault may explain in whole or in part the psychological and psychiatric state from time-to-time of the plaintiff, in circumstances where there are two possible causes for the plaintiff's psychiatric condition, based upon her account to the Court, namely the Job Park assault, and the ongoing abuse perpetrated by her father, the onus falls upon the defendant to satisfy a Court that whatever the conduct was of the deceased, it was not a cause of the plaintiff's mental conditions: see Watts v Rake (1960) 108 CLR 158; [1960] HCA 58; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34.
Given the passage of time since the events occurred, the absence of any account of the observable effects of the initial single occasion Job Park assault on the plaintiff, and the absence of any account about the ongoing sexual abuse upon which the common law claim is based, the defendant is confronted with an impossible task to discharge the relevant onus to demonstrate what the impact of each of the alleged occasions of the abuse was on the plaintiff's current psychological and psychiatric state.
I accept the submissions of the defendant that the various features identified as being salient, and of substance in Moubarak, are substantially present in these proceedings.
I do not accept that there are any investigations which the defendant acting reasonably ought to have undertaken. Whether or the not the defendant interviewed the family members identified by the plaintiff as being possible witnesses, given the contents of their affidavits provided in these proceedings, is of no moment. They did not witness what happened. They were unaware of the alleged abuse. Given that they express a generally unfavourable view of the character of the deceased, there is no reason to think that if they had any knowledge about the assaults, that such knowledge would not have been contained in their affidavits.
Quite what a witness to the Job Park assault could tell the defendant about the conduct relied upon to constitute the common law cause of action against the Estate of the deceased is a mystery which is unrevealed by the plaintiff's submissions. It is not said that such a witness could corroborate in any way the plaintiff's evidence about the fact of the ongoing sexual abuse alleged to have been perpetrated by her father. There is no reason to think that the witness had any account to give as to what occurred between the plaintiff and her late father.
As well, the submission that the deceased's doctors may have had some information about what occurred and, accordingly, a failure to interview them constitutes unreasonable conduct on the part of the defendant, is really a matter of speculation. Anything which they could say would necessarily be sourced from the plaintiff's or other records.
Such investigations that the defendant was able to make have been, in my view, reasonably undertaken and there is no room for criticism of those reasonable attempts.
In many cases arising from historical sexual assault, which are now able to be brought to court by reason of the amendments to the Limitation Act 1969, and particularly in those cases where many decades have passed since the events the subject of the common law claim for damages occurred, there will be real questions about whether a fair trial can be had. That is because of the passage of time, the death or unavailability of witnesses and the loss or destruction of contemporaneous documents.
The question of whether a fair trial can be had is an objective one viewed in the context of adversarial litigation of the kind which exists in our judicial system. The existence of the adversarial system means that, in cases such as this, there are two sides who contest the proceedings - one making allegations and the other defending those allegations to the extent which is appropriate. Each of the parties have to be in a position to instruct their lawyers as to the facts of the events and as to what occurred and as to how their lawyers are to conduct the litigation.
Particularly is this so when allegations are made which are of some age - here, around 45 years or more have passed since the events relied upon. In some cases, there may be contemporaneous documents or the existence of contemporaneous conduct such as interviews with police which are available, although there has been a lapse of time since that the events occurred. There may be a record of the attitude of one of the parties to allegations as to what occurred, allegations having been raised, having given instructions and retained lawyers: see Gorman v McKnight (supra). Each of these matters may lead to a finding that a fair trial may be possible, even though the trial may not be perfect: see The Queen v Edwards [2009] HCA 20. There may be many other ways in which a fair trial can be had.
However, in this case, for all of the foregoing reasons, I am persuaded that in the particular circumstances, a fair trial is simply not possible. Any trial in this matter would be manifestly unfair to the defendant and would constitute nothing more than a one-sided "… formal enactment of the process of hearing and determining the plaintiff's claim could take place …": Newcastle City Council v Batistatos [2005] NSWCA 20 at [80] per Bryson JA. Accordingly, it is appropriate that the Court permanently stay this suit.

Estate Claim

The fact that there cannot be a fair trial of the common law claim for damages brought against the defendant in her capacity as the Executor of the Estate does not mean that there cannot be a fair trial of the Estate claim brought by the plaintiff seeking orders pursuant to the Succession Act for an appropriate sum from the Estate (or notional estate) of her late father.
To the extent that the plaintiff seeks to advance as a reason for that allowance, that the past conduct of the Testator has given rise to a need on her part which justifies an allowance being made by the Court in accordance with the Succession Act, that evidence can be led. Proceedings against an estate under the Succession Act can only be brought after the death of the Testator. The courts hearing applications under the Succession Act (or like legislation) are well familiar with dealing with claims of a kind where a defendant (the executor of the Estate) may not be able to get full and complete instructions about what has occurred in the past.
That does not mean that the hearing of such an application produces an unfair trial. After all, a plaintiff cannot make such a claim against the Estate of this nature at any time prior to the death of a deceased. It can only occur after the death.
Assuming that such factual material is relevant to the plaintiff's Estate claim, there is nothing in this judgment, which is intended to affect the decision of a trial Judge presiding over that claim in considering whether or not to admit any evidence, nor should this decision be taken as indicating any view as to whether or not the conduct can be proved, or if proved that it may affect the outcome of the Estate claim.

Conclusion

I have determined that a fair trial of the common law proceedings in which the plaintiff claims damages for sexual abuse by her father would not be fair. In those circumstances, the only appropriate relief is to grant a permanent stay, which I do.

Orders

I make the following orders: 1. Order that the proceedings 2021/251128 be, and hereby are, permanently stayed. 2. Order the plaintiff to pay the defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2023

(2019) 100 NSWLR 218

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