COURTS - Abuse of process - Permanent stay of proceeding - Where respondent commenced proceeding almost 45 years after alleged sexual assaults by youth group leader - Where no limitation period for claims resulting from child sexual abuse - Whether passing of time, vagueness and inconsistencies in allegations, loss of medical records and loss of opportunity to explore surrounding circumstances of alleged abuse constitutes exceptional circumstances so trial of proceeding would necessarily be unfair - Whether proceeding in such circumstances an abuse of process justifying permanent stay.

Limitation of Actions Act 1958, ss 27O, 27P and 27R.

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 applied.

1. This case concerns events alleged to have occurred almost 49 years ago between two individuals, YZ and Alan Weiden ('Weiden'). YZ claims that between 1971 and 1975 he was a member of a youth organisation, then called Ichud Habonim; and that during the same period, Weiden was also a member and one of its youth group leaders. YZ claims that he was sexually assaulted by Weiden on various occasions between late December 1974 and late January/early February 1975.
2. On 21 November 2019, YZ commenced a proceeding claiming damages for personal injuries he alleges he suffered as a result of the alleged sexual assaults perpetrated on him by Weiden, who he sues as the second defendant in the proceeding.[1] In his proceeding, YZ alleges that Beit Habonim Pty Ltd ('Beit Habonim'), which he sues as the first defendant, is the trustee of a trust, and that the trustee of that trust ran Ichud Habonim at the relevant time.[2] His case against Beit Habonim is that it is vicariously liable for the tortious conduct of Weiden and/or negligent in its supervision of Weiden and failure to implement protective systems to minimise the risk of harm to its members from sexual misconduct.
3. There is no limitation period applicable to YZ's claim. The limitation period was abolished upon the commencement of the Limitation of Actions Amendment (Child Abuse) Act 2015, which inserted ss 27O and 27P into the Limitation of Actions Act 1958 ('the LA Act'). However, by s 27R, inserted into the LA Act at the same time as ss 27O and 27P, nothing in ss 27O or 27P limits the inherent, implied or statutory jurisdiction of a court to prevent an abuse of process.
4. On 17 May 2022, Weiden filed a summons seeking a permanent stay of YZ's proceeding on the basis that it was an abuse of process. In the alternative, Weiden sought an order staying the proceeding 'until such time that it had been determined that there was no prospect of any criminal proceeding being brought against [him]'. On 15 July 2022, following a hearing on 7 June 2022, Weiden's stay application was dismissed by Irving AsJ.[3]
5. On 29 July 2022, Weiden filed a notice of appeal from the orders of Irving AsJ. On 2 May 2023, following a hearing on 21 February 2023, Weiden's appeal from the orders of Irving AsJ was dismissed by Tsalamandris J.[4] Weiden now seeks leave to appeal (and, if leave is granted, to appeal) from the orders of Tsalamandris J on the following proposed grounds of appeal:
   1. The judge erred in finding that allowing the proceeding to continue would be neither manifestly unfair to [Weiden] nor bring the administration of justice into disrepute.
   2. The judge erred in failing to find that [YZ's] allegations were vague, unreliable and could not be acted upon safely.
   3. The judge erred by failing to find that the associate judge had fallen into error in holding that expert evidence was required to determine the extent to which [Weiden] was prejudiced by the loss of medical records.
6. While Weiden's appeal from the orders of Irving AsJ to Tsalamandris J related to both his application for a permanent stay and his alternative application for a temporary stay, his proposed grounds of appeal from the orders of Tsalamandris J to this Court relate only to his unsuccessful application for a permanent stay.

1. YZ was born in 1962 and is currently 61. At the time of the alleged assaults, he was 12. Weiden was born in October 1956 and is currently 67. At the time of the alleged assaults, he was 18.
2. YZ first complained to police on 4 December 2015, at which time he made his first police statement ('the first police statement'). He made further statements to police on 18 December 2017 ('the second police statement'), 31 May 2018 ('the third police statement'), and 18 July 2018 ('the fourth police statement'). One of the grounds upon which Weiden seeks a stay is that YZ's allegations are vague and inconsistent. It is thus necessary to summarise YZ's statement in a little detail.

1. In the first police statement, YZ described being sexually assaulted by Weiden at a summer holiday camp held 'just after Cyclone Tracy in Darwin, which was Christmas Day in 1974'. YZ said that Weiden was one of the leaders on the camp. At one point in the first police statement, YZ said that he did not know Weiden's age; at another point he said that Weiden was about 17 or 18 years old.
2. YZ said he was abused by Weiden 'within a few days of being on the camp'. The abuse allegedly occurred in the showers, involving Weiden masturbating himself; Weiden getting YZ to masturbate in front of him; Weiden fondling YZ's penis; Weiden putting YZ's penis in his mouth; and Weiden putting his penis in YZ's mouth. YZ alleged that similar abuse occurred on the following two days. He said that it stopped after 'another High Leader appeared in the doorway and questioned why we were having a shower at such an early time in the morning'. He then said:

Although nothing further happened with [Weiden] on [the] camp, I remember I didn't understand what was going on and I knew that I wanted it to stop. So I pretended I was sick with a toothache and kept going to sick bay. I knew that our parents were coming up for a day trip and I was trying to persuade them to let me go home. It didn't work and I ended up staying the rest of the camp.

1. In the first police statement, YZ also described being sexually abused by Weiden 'outside the camp at various locations including; parking areas of golf courses near Studley Park and Yarra Bend, Frankston and the last time was at my home in Caulfield South'. YZ said that the sexual abuse 'included kissing, fondling the genitals, him attempting to penetrate my anus with his penis and masturbating'.
2. YZ said that after the camp finished, he went on various outings with Weiden in his or his family's car, 'a mid1960s Holden station wagon'. They went to 'various golf courses and he would park the car and the same things would happen':

That is he would masturbate and then fondle my penis. He was always trying to kiss me by this time which I kept trying to pull away. He attempted to put his penis into my anus but there was no way this was happening.

1. In the first police statement, YZ described the last time that anything happened 'was in the next holiday break after the Christmas holiday camp'. YZ alleged that Weiden came over to his home. YZ was home alone. He remembers they were lying on the floor naked. Weiden masturbated and then fondled YZ's penis. Weiden was kissing YZ on the mouth as he fondled YZ's penis. On this occasion, Weiden allegedly sucked YZ's penis and put his own penis in YZ's mouth. YZ alleged that Weiden also tried to put his penis in YZ's anus on this occasion.

Victoria Police Investigation Full Response Report

1. A Victoria Police Investigation Full Response Report (LEAP record) contains records of statements allegedly made by YZ to police. One entry appears to record LZ having stated on 4 December 2015 (the day he completed the first police statement) that he was 'about 15 years old when he went on a summer camp that was run within the Jewish community' and that while on the camp he 'was sexually assaulted which included acts of oral penetration, fondling, kissing and attempted penetration by one of the youth leaders'.
2. A second entry records a complaint having been made by YZ against Weiden on 28 December 2016. The record states that a statement has been taken from YZ disclosing incidents of indecent assault (oral penetration, fondling, kissing and attempted anal penetration). The record describes the offences as having occurred when YZ was 'about 15 years old in 1977 whilst on a Jewish summer camp in Ballarat and on one occasion at [YZ's] home address'.

1. In the second police statement, YZ identified various photographs and images of the home where he was living when he was last assaulted by Weiden. He then referred to various matters described in the first police statement.
2. YZ said that he now remembered that the camp went for 10 days; the abuse started on the second morning of the camp; and Weiden continued to abuse him for the next eight days of the camp. While he had said in the first police statement that the abuse stopped after another High Leader from the camp appeared in the doorway of the shower block, he now remembered that the abuse continued in the shower block for the remainder of the camp.
3. In relation to his reference in the first police statement to being sick with a toothache, YZ said that, although he pretended to be sick and go to sick bay, he actually did end up having teeth issues when he got home. He said he had nine fillings in the two weeks after the camp.
4. In the second police statement, YZ also identified various locations, together with photographs of those locations, in the camp which he alleged that he and Weiden attended.

1. In the third police statement, YZ identified a photograph of attendees (including himself) at the 'Habonim summer camp at the end of 1974 and into early 1975'. He also identified two other photographs taken of him in 1974.

1. In the fourth police statement, YZ sought to clarify some matters in the first police statement. Specifically, YZ said that the camp at which he was abused by Weiden was the one conducted just after Christmas Day 1974, and that it was conducted at the Ballarat aerodrome. He also said that:

The incident that occurred in [Weiden's] car when I alleged that he attempted to penetrate my anus with his penis occurred when [Weiden] parked his motor vehicle in the vicinity of the Yarra Bend Golf Course, Fairfield. I don't believe I could now locate or identify the area where we parked.

1. Finally, he said that, when he said in the first police statement that the incident that occurred at his home occurred during the next holiday break after the camp, he meant that the incidents occurred in the same 1974/75 school holiday period, and prior to when he became aware that Weiden had left Australia to travel to Israel (which he believed was during February 1975).

1. Weiden relied upon medical reports which were in evidence on his application to support his contention that YZ has given inconsistent accounts of the alleged assaults. He also relied on those reports to found a contention that critical medical records were now no longer available. He submitted that these records were critical for the purpose of enabling him to contest issues of causation and to disentangle the consequences of any assault allegedly committed by him from the consequences of other trauma suffered by YZ. It is thus necessary to refer to some of this material.
2. In a report dated 13 February 2012, signed by Dr Elise Bialylew[5] and Ms Jenny Makros,[6] YZ is reported as having given a history of significant behavioural issues following 'a period in which he was sexually assaulted by a camp leader over a period of approximately 12 months'. According to the history, the significant behavioural changes (including 'big issues with rage' and 'incidents where he would bash himself in the face with a brick, kick walls and walk through glass panels') occurred around the age of 11.
3. The report records YZ's medical history at that time (February 2012) as involving 'a number of injuries from numerous car accidents' of which the most significant was said to be in the 1970s when he was pinned under a car. YZ is reported as saying that following this incident, 'he felt he wasn't the same in his personality and explained that he felt a sense of being invincible which led him to taking more risks and becoming more excessive in his drug use'. He was unable to recall if he had ever had neuropsychology investigations for an acquired brain injury.
4. In their report, Dr Bialylew and Ms Makros state:

At a young age [YZ] was sexually assaulted by a camp leader and at the time was left confused about it, never speaking to his parents about the issue. It was likely that this experience may have left him confused, helpless and angry which may have led to a distinct behaviour change around the same time leading to increased aggression towards himself and increasing behavioural difficulties at school. Sexual assault in childhood is a risk factor towards development of various mental health issues including Post-Traumatic Stress Disorder. He significantly suffered numerous car accidents with serious head injuries which left him feeling changed and resulted in him using increasing levels of substances with a sense that he was 'invincible'. This exacerbated his significant drug addiction to both alcohol and cocaine and resulted in a downward spiral including loss of his wife and family, loss of houses and loss of his business.

1. In a report dated 12 April 2019, Professor Lorraine Dennerstein, a specialist psychiatrist, recorded YZ as having been involved in motor vehicle accidents in 1979 and 1980. As a result of the 1980 accident, YZ fractured three vertebrae and 'has had back pain in the last 10 years'. Professor Dennerstein expressed the opinion that in response to the sexual abuse suffered by YZ, he had developed Post-Traumatic Stress Disorder and Persistent Depressive Disorder, and that as a result of these conditions he has no capacity for employment.

1. In his statement of claim,[7] YZ provides particulars of 'the shower assaults', 'the park assaults' and 'the home assault'. The shower assaults are particularised as having occurred on 26 December 1974 (the second day of the camp) and on each of the remaining eight days of the camp. The shower assaults are pleaded to comprise Weiden masturbating himself, telling YZ to masturbate himself, fondling YZ's penis, placing YZ's penis in his mouth, putting his own penis in YZ's mouth, and kissing YZ on the lips.
2. The park assaults are alleged to have occurred in late January or early February 1975 at locations which included secluded car parks in Studley Park and Yarra Bend in Fairfield, and golf courses around the Frankston area. The park assaults are particularised as consisting of Weiden masturbating himself, fondling YZ's penis, putting YZ's penis in his mouth, putting his penis in YZ's mouth, and attempting to kiss YZ. Additionally, each of the park assaults are alleged to include unsuccessful attempts by Weiden to penetrate YZ's anus with his penis.
3. The home assault is particularised as having occurred at YZ's home on a date in late January or early February 1975. The assault consisted of Weiden masturbating himself, fondling YZ's penis, putting YZ's penis in his mouth, putting his penis in YZ's mouth, attempting to kiss YZ, and unsuccessfully attempting to penetrate YZ's anus with his penis.
4. In his statement of claim, YZ alleges that, as a result of 'each and all of the assaults', he has suffered 'severe psychiatric and/or psychological injury'. In his particulars of injury, he pleads:

Within six months of the sexual abuse ceasing, the plaintiff [YZ] commenced to smoke marijuana, drink alcohol and was getting into trouble with the police. He has had drug and alcohol issues from the age of 15.

In the particulars of special damage set out in the statement of claim, it is alleged that YZ's injuries disrupted his schooling, restricted his academic performance and future career options, and caused him to suffer periods of partial and/or total incapacity for employment.

1. In his defence, Weiden admits that he was a member of Ichud Habonim from about 1966 to 1978 and that he was a youth group leader from about November 1974 to 1976. He admits that he was on the camp, but does not admit that YZ was there. Weiden denies all of the allegations of sexual assault. He says that he never took any camp participants to the shower block and that the shower assaults did not occur. In addition to denying the park assaults, Weiden denies taking YZ to any parks, golf courses or other locations He denies ever attending YZ's home. He says that in January 1975, he travelled to Israel, where he spent the next 12 months. In the alternative, Weiden pleads that if YZ suffered injury as a result of any assaults, then he (Weiden) claims contribution from Beit Habonim pursuant to s 23B of the Wrongs Act 1958.
2. In its defence, Beit Habonim does not admit that YZ was a member of Ichud Habonim from 1971 to 1975. It denies some of the allegations made in YZ's statement of claim. It otherwise makes no admissions in its defence, saying in respect of many of YZ's allegations that it does not know and can neither admit nor deny the allegations.

1. In considering Weiden's application for a permanent stay, Irving AsJ referred to this Court's decision in Connellan v Murphy,[8] Keogh J's decision in Grant v Bird,[9] and McHugh J's judgment in Longman v The Queen.[10] His Honour identified the factors relied upon by Weiden, as demonstrating that the proceeding against him 'is manifestly unfair and would otherwise bring the administration of justice into disrepute among right-thinking people', as being:

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

(b) the vague and inconsistent nature of [YZ's] allegations;

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

(d) the lost opportunity to explore relevant surrounding circumstances.[11]

1. The associate judge recorded Weiden's submissions that YZ's allegations 'involve significant inconsistencies around when the abuse is said to have occurred, the nature of the abuse, the number of incidents involved and over what period of time'.[12] His Honour identified the following examples as being relied upon by Weiden:

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

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

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

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

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

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

(g) [YZ] said to police in his first sworn statement that while on the Ichud Habonim camp he pretended to be sick with a toothache and kept going to the sick bay. However, in [YZ's] second sworn statement to the police, he says that he had problems with his teeth immediately following the camp and received nine fillings within two weeks.[13]

1. The associate judge recorded Weiden's submission that the descriptions of various parks and golf courses around Melbourne, including secluded car parks in the Studley Park and Yarra Bend area, and golf courses around the Frankston area, as being so vague as not allowing Weiden to determine when and where these assaults occurred - 'making it impossible for him to identify potential witnesses, put together a timeline or identify particular features of the areas where the assaults are said to have occurred in order to test the quality of [YZ's] evidence'.[14]
2. The associate judge identified Weiden's complaint about the loss of records in the following terms:

[Weiden] identifies the loss of medical records as significant. Dr Bialylew's report, dated 13 February 2012, refers to [YZ] having been involved in numerous motor vehicle accidents resulting in a serious head injury exacerbating his significant addiction to both alcohol and cocaine and resulting in a downward spiral, including the loss of his wife, his family, his houses and his business. [Weiden] has subpoenaed the records of the nine different medical practitioners seen by [YZ] over the years since the abuse. However, no medical records older than 2007 have been produced. [Weiden] submits that this leaves him significantly prejudiced in terms of disentangling causation.[15]

1. Finally (so far as Weiden's submissions to the associate judge are concerned), the associate judge noted Weiden's submission that the passage of time had led to the loss of a material witness - being the youth group leader who was alleged to have observed Weiden and YZ in the shower block and who asked Weiden why they were there.[16]
2. The associate judge accepted that there were 'some inconsistencies in the versions of events recounted by [YZ]'.[17] He noted, however, that YZ has been consistent in his identification of Weiden as his abuser and in the nature of the abuse that he says took place.[18] He concluded that the inconsistencies in relation to some of the allegations, when viewed with the consistency of other allegations, were not such that maintenance of YZ's proceeding would be manifestly unfair to Weiden.[19]
3. In relation to Weiden's lost opportunity to investigate the surrounding circumstances of the alleged assaults, the associate judge said:

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

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

[Weiden] has not provided any information about the investigations he has undertaken about potential witnesses or surrounding circumstances in relation to the allegations. [Weiden] admits that he was at the camp but otherwise denies the camp allegations, the park allegations and the home allegations. In relation to the park and home allegations, given the relatively short period of time between the camp and [Weiden's] departure from Australia, coupled with his denial that the park and home allegations occurred, one might expect that [Weiden] would have investigated his own activities and movements during that time.[20]

1. In relation to Weiden's complaint about the loss of medical records, the associate judge said:

While I accept [Weiden's] submissions about the difficulties caused by the loss of medical records, I also note there is no evidence that [Weiden] has taken any steps to ascertain its specific impact in this case. [Weiden] has not sought to have [YZ] examined by [his] expert. Without specific evidence about the conclusions that can and cannot be drawn from the available records regarding causation, [Weiden's] submissions cannot be afforded the weight they might otherwise be given.[21]

1. Finally, the associate judge said that, taking into account all of the circumstances of the case, he was not persuaded that Weiden had discharged the 'heavy onus of establishing that to allow the proceeding to continue to trial would be manifestly unfair to [Weiden] or otherwise bring the administration of justice into disrepute among right-thinking people'.[22]

1. In his appeal from Irving AsJ's refusal to grant him a permanent stay, Weiden advanced the following proposed grounds of appeal:
   1. In ruling that the proceeding should not be permanently stayed, the learned associate judge erred by:

(a) finding that allowing the proceeding to continue would be neither manifestly unfair to [Weiden] nor bring the administration of justice into disrepute;

(b) taking into account the following irrelevant considerations:

(i) whether [YZ's] account of the alleged abuse was plainly unbelievable;

(ii) whether [Weiden] had given evidence of his activities and movements at the time of the alleged abuse;

(c) finding that [YZ] had been consistent in identifying the nature of the alleged abuse;

(d) failing to find that [YZ's] allegations were vague, unreliable and could not be acted upon safely;

(e) finding that expert evidence was required to determine the extent to which [Weiden] was prejudiced by the loss of medical records.

1. The judge noted Weiden's submission to her that ground 1(a) operated simply as a 'catch-all',[23] with the specific errors alleged by Weiden being covered by grounds 1(b) to (e).
2. In detailed reasons, the judge rejected each of grounds 1(b) to (e).[24] Her Honour concluded that the associate judge did not err in making any of the statements about which Weiden made complaint in grounds 1(b), (c) and (e). Similarly, her Honour concluded that the associate judge did not err in failing to find that YZ's allegations were vague, unreliable and could not be acted upon safely as asserted in ground 1(d), saying that she did not consider this to be a fair categorisation of the multiple allegations made by YZ.[25]
3. Having dealt with what her Honour described as 'the standalone grounds', her Honour returned to ground 1(a). In rejecting ground 1(a), her Honour said:

It is well established that a substantial elapse of time between the alleged events and the time of trial can have adverse effects on the memory of witnesses and the quality of justice. These effects may be such that a fair trial is no longer possible, and that continuance of the action may therefore constitute an abuse of process. In his ruling, the associate justice acknowledged the dangers associated with claims involving substantial delay and expressly stated that such considerations loomed large in his consideration of the application. As previously stated, it cannot be said that the associate justice approached his task on too narrow a basis, and without proper regard for the relevant principles.

The associate justice relevantly noted that the effect of the passage of time was most significant in relation to the park allegations. YZ did not provide any description of the car where the park allegations occurred, save for in the first police statement in which he described it as a 'mid-1960s Holden station wagon' belonging to Weiden, or to his family. YZ was also unable to precisely identify where the car was parked at the relevant times. I accept that there will inevitably have been changes to Studley Park and Yarra Bend Park in the substantial period of time since the abuse is alleged to have occurred. However, I also accept that it is difficult to ascertain whether these locations were ever in fact known to YZ (given he was a child at the time) or whether such locations have been lost through the effluxion of time.

YZ's particulars of the park allegations are consistent in identifying Weiden as the alleged offender. YZ's police statements are also consistent in their description of the park allegations; that they were committed by Weiden inside a car, and that the period when this occurred was (consistently) in the same 1974-75 school holiday period as the camp allegations. Therefore, I do not consider the precise location of the car within those parks to be of such significance that a permanent stay is required in order to avoid unfair prejudice to Weiden.

It is relevant to note that a fair trial is not synonymous with a perfect trial. Whether a trial is so manifestly unfair depends on all the circumstances of the case.

Unlike the proceedings in Connellan, Grant and Morton, this is not a case where the trial would proceed with 'mere scraps of evidence'. Given the details of abuse contained in YZ's multiple statements, witness statements, photographic material, and the apparent preservation of the relevant locations of the abuse (save for the car), it was open to the associate justice to conclude that, notwithstanding that almost 48 years have passed since the alleged abuse occurred, Weiden failed to discharge the heavy onus required of him in seeking the permanent stay.

As was noted in Connellan, reasonable minds might differ as to whether it is 'unjustifiably burdensome' to allow a proceeding involving a substantial elapse of time to continue. The fact that on appeal the court might take a different view than the lower court is not a basis for overturning the primary judge's decision. Rather, on appeal, the court should only interfere if discretionary error is demonstrated or if the court is satisfied that the continuance of the proceedings would be an abuse of process. For all of the reasons outlined above, I am not persuaded that the associate justice erred in refusing to grant a permanent stay of the proceeding. Therefore ground 1(a) must also fail.[26]

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore

1. Irving AsJ's Reasons and Tsalamandris J's Reasons were based on the principles summarised in Connellan. However, some months after Tsalamandris J's dismissal of the appeal from Irving AsJ's orders, the High Court delivered judgment in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore.[27] Having regard to the issues in the present case, it is necessary to refer to GLJ in some detail.
2. GLJ involved a claim for damages brought by a plaintiff (GLJ) against the Trustees of the Roman Catholic Church for the Diocese of Lismore for personal injury said to have resulted from sexual assaults perpetrated on the plaintiff in 1968, when she was 14 years old, by a priest then attached to the Diocese. The Diocese sought a permanent stay of the proceeding as an abuse of process on the basis that any trial of the proceeding 55 years after the time of the alleged sexual assault would necessarily be unfair for the Diocese in all the circumstances, given the death of the priest said to have perpetrated the assault. The primary judge dismissed the Diocese's application, but the Court of Appeal allowed an appeal and permanently stayed the proceeding.
3. As in the present case, there was no limitation period applicable to the cause of action alleged by GLJ. Her claim was governed by s 6A of the Limitation Act 1969 (NSW), which had been inserted into that Act by the Limitation Amendment (Child Abuse) Act 2016 (NSW) and which is relevantly equivalent to ss 27O, 27P and 27R of the LA Act.
4. The High Court unanimously held that the applicable standard for appellate review of an order permanently staying a proceeding is the 'correctness standard' identified in Warren v Coombes;[28] and that an error of principle by the court below, as applied to the appellate review of a discretionary decision in accordance with House v The King,[29] is not required to be identified.[30] By majority,[31] the High Court determined that, on the undisputed facts in that case, the Diocese did not prove that the proceeding involved an abuse of process; the Court of Appeal's contrary conclusion was wrong; and GLJ was entitled to have the proceeding heard and determined.[32]
5. In relation to permanent stays generally, the majority said:

Neither necessary unfairness nor such unfairness or oppression as to constitute an abuse of process justifying a permanent stay of proceedings depends on a mere risk that a trial might be unfair. The party seeking the permanent stay bears the onus of proving that the trial will be unfair or will involve such unfairness or oppression as to constitute an abuse of process. While the onus is the civil standard of the balance of probabilities, the onus has rightly been described as a heavy one, and the power rightly said to be exercisable only in an exceptional case. This is because it is always an extreme step to deny a person the opportunity of recourse to a court to have their case heard and decided.[33]

1. Under the heading, 'A fair trial in child sexual abuse claims - a new world', the majority referred to the Second Reading Speech which introduced the Limitation Amendment (Child Abuse) Bill 2016 (NSW), and which ultimately resulted in the insertion of s 6A into the Limitation Act 1969 (NSW). Their Honours said that the removal of any limitation period for the commencement of proceedings for death or injury resulting from child abuse involved 'a fundamental change to the legal context' in which powers to permanently stay a proceeding were to be exercised.[34] Their Honours then said:

The fundamental change wrought by s 6A of the Limitation Act is that, in the case of an action for damages for death or personal injury resulting from child abuse, it can no longer be maintained that the passing of time alone enlivens the inherent power or any statutory power of a court to prevent an abuse of its process. In the face of s 6A, the mere passing of time, in and of itself, is no longer a potential aspect of the interests of justice relevant to the exercise of the power to permanently stay proceedings for damages for death or personal injury resulting from child abuse.

Accordingly, while it is certainly the case that the 'absence of a limitation period for a particular type of claim ... means that a plaintiff with such a claim will generally not be able to be criticised for any delay in bringing such a claim (at least where it is not credibly suggested that the delay was deliberate or in some way colourable)' and 'no occasion arises for an explanation for any [such] delay', s 6A has a greater significance. Where, as here, a limitation period existed and was removed by a legislative act, the legislative act also presumptively removed any conception that a party is ordinarily expected not to sit on their rights and is taken to be responsible for any consequences adverse to their interests that doing so might have. Having eradicated that conception for actions for damages for death or personal injury resulting from child abuse, the section also necessarily removes any requirement or even expectation of an explanation for the passing of time between the accrual of the cause of action and the commencement of the action. Absent proof of a forensic decision by a plaintiff to obtain some advantage from delay or some other relevant potentially disentitling circumstance, the mere fact of the passing of time is of no consequence.

In Moubarak, Bell P went a considerable distance towards this recognition in focusing on the 'effect of delay on the trial process' and not the mere fact of the effluxion of time. But it also must follow from this recognition that the effect of the passing of time on the trial falls to be evaluated in this radically new context in which Parliament has chosen to abolish any period of limitation for the commencement of the action. Specifically, the effect of the passing of time in such a case is to be evaluated on the basis that it will be neither uncommon nor unexpected for the circumstances that the limitation period sought to avoid to be encountered. If, by exercise of the inherent, implied, or statutory jurisdiction of courts to prevent an abuse of process, a plaintiff claiming damages for death or personal injury resulting from child abuse were able to be confronted in each case with the common and expected effects of the effluxion of time, and those common and expected effects sufficed to constitute the 'exceptional circumstances' justifying a court refusing to exercise jurisdiction, the operation of s 6A, and its capacity to fulfil its legislative purpose, would be rendered inutile.[35]

The fact that, by s 6A(6), s 6A does not limit the inherent, implied, or statutory jurisdiction of courts to prevent an abuse of process cannot be taken to mean that Parliament intended both: (a) on the one hand, to 'lift one barrier to justice for survivors of child abuse' in recognition that such abuse 'can forever alter the course of people's lives and continue to cause trauma and hardship for decades', and that 'due to the injuries inflicted on them by their abusers, survivors of sexual and other child abuse often take decades to understand and act on the harm arising from the abuse'; and (b) on the other hand, for the common and expected effects of the passing of those years or decades, in and of themselves, to suffice to constitute the 'exceptional circumstances' justifying a court refusing to exercise jurisdiction by permanently staying such proceedings.[36]

1. In considering applications for a permanent stay, the majority said that it is now for the courts to evaluate contentions of abuse of process within a 'new normative structure' where Parliament has accepted that, in the ordinary course, there is likely to be a long delay in the bringing of child abuse claims, and has acted to enable such claims to be brought at any time.[37]
2. In relation to 'the inevitable fading of memories and loss of evidence (whether it be from death, illness, infirmity, or the loss or destruction of documents)', the majority said that, in the newly established statutory context, these matters were 'properly to be understood as routine and unexceptional sequelae of the harm caused by the alleged act the subject of the claim'.[38] Their Honours then said:

By reason of s 6A of the Limitation Act, it also could never be said, as in Batistatos, that a case within the class to which the section applies is 'at the extremes' because three decades have passed since the cause of action accrued. Nor could a court accept that a defendant is practically unable to participate in a hearing on an informed basis merely because such time has passed. In this class of case, there can be no assumption that the proceedings are 'stale' or 'should have been brought long ago or not at all'. In enacting s 6A, Parliament ensured that no claim for damages for death or personal injury resulting from child abuse can be characterised as 'historical'. Just as there is no 'historical murder' while a person is alive to mourn the victim, there is no 'historical child sexual abuse' while there is someone alive claiming to have suffered harm from the abuse.

Nor, in this class of case, can any inevitable impoverishment of the evidence which the passing of time occasions be characterised as involving 'exceptional circumstances'. It is not that the concept of 'exceptional circumstances' involves any quantitative assessment of the number of cases within the class which might meet the threshold of exceptionality. Mr Walker SC was right to debunk any such notion. The requirement of 'exceptional circumstances' involves a qualitative, not quantitative, assessment. But that qualitative assessment is one now undertaken in the context set by s 6A which abolished any limitation period. In the face of s 6A, the mere effluxion of time and the inevitable impoverishment of the evidence which the passing of time engenders cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay. If that were so, public confidence in the administration of justice in accordance with the law as enacted by Parliament would itself be undermined.[39]

1. The majority endorsed authoritative statements in earlier cases to the effect that the absence of witnesses or evidence does not mean that a trial will be unfair. The common law has developed so as to ensure fairness despite the unavailability of witnesses and the loss of evidence. Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court. One reason that missing witnesses or evidence do not necessarily make a civil trial unfair is that the adversarial system requires a plaintiff to prove his or her case. Section 140(2)(c) of the Evidence Act 1995 (NSW)[40] reflects the position of the common law that the gravity of the fact sought to be proved is relevant to 'the degree of persuasion of the mind according to the balance of probabilities'.[41] All evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. Courts have developed techniques addressing the problems in civil trials associated with the recollection of events which occurred in the long past.[42] And a court is not bound to accept uncontradicted evidence.[43]

1. In this Court, Weiden contended that Irving AsJ erred in failing to conclude that YZ's proceeding was an abuse of process; and Tsalamandris J erred in dismissing the appeal from Irving AsJ, in circumstances where the evidence established that the proceeding was and is an abuse of process.
2. Weiden submitted that, consistently with the High Court's decision in GLJ, the appeal from Irving AsJ, and any appeal to this Court, fell to be determined by 'the correctness standard', not on the basis that the original decision was a discretionary one to be determined in accordance with the principles in House v The King.[44] He submitted that this Court was required to decide for itself whether, on all of the evidence and in all of the circumstances, it had been established that YZ's proceeding was an abuse of process and should therefore be stayed.
3. As part of his contention that the courts below had erred in not determining that YZ's proceeding was an abuse of process, Weiden submitted that the judge erred in failing to find that YZ's allegations were vague, unreliable and could not be acted upon safely (proposed ground 2). In support of that submission, Weiden relied upon the oft-cited passage in the judgment of McHugh J in Longman:

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

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

To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.[45]

1. Weiden submitted that YZ's allegations 'are some 48 years stale'. Noting that YZ was 12 years old in 1974, and the applicant was 18, he submitted that:

There are many inconsistencies between [YZ's] pleaded allegations and the complaints he made to police. These inconsistencies indicate that his childhood recollections are unreliable and cannot be acted upon safely.

1. Among the inconsistencies he relied upon, Weiden emphasised the following:
   • YZ has given a version of being assaulted in 1977;
   • YZ has said that the abuse only occurred at the camp and his home;
   • YZ has claimed that the alleged abuse included attempted anal penetration, but this is not pleaded in relation to the camp assaults;
   • YZ has described the duration of the alleged abuse in three strikingly different ways: 'over a period of approximately 12 months'; days 2, 3 and 4 of the camp; and from days 2 to 10 of the camp; and
   • YZ initially claimed that the home assault occurred in the next holiday break after the Christmas holidays, but later said that the assaults occurred in the same Christmas holiday period break.
2. Weiden submitted that because YZ cannot identify the locations where the park assaults occurred, YZ's evidence 'cannot be tested by reference to physical characteristics of the areas'. He submitted that the descriptors 'various locations' and 'golf courses around the Frankston area' are so vague as to deprive him of the ability to identify the areas where the alleged abuse is said to have occurred. He submitted that the further description 'secluded car parks in Studley Park and Yarra Bend' is equally problematic. Additionally, he noted that in the fourth police statement, YZ said that he could not now locate or identify the areas where the car was parked.
3. In relation to medical records, Weiden submitted that Tsalamandris J erred by failing to find that Irving AsJ erred in holding that expert evidence was required to determine the extent to which he was prejudiced by the loss of medical records.
4. Weiden relied upon the passages in the medical reports of Dr Bialylew[46] and Professor Dennerstein[47] showing that YZ had suffered a serious head injury and been involved in motor vehicle accidents in 1979 and 1980 in which YZ suffered significant injuries. While medical records relating to YZ had been subpoenaed, the records produced did not address YZ's injuries and symptoms suffered at the time these injuries occurred. Weiden submitted that there were likely to be several competing causes for the injury YZ claims damages for in this proceeding, but that he (Weiden) 'cannot disentangle due to the loss of medical records'. Weiden submitted that this deprived him of the ability 'to explore issues of causation and quantum', and would result in YZ's 'bare assertions as to the impact of his head and back injuries to his current symptoms [being] unable to be meaningfully challenged'.
5. Weiden submitted that, in all the circumstances, he had established that YZ's proceeding was an abuse of process; and the associate judge and the judge each erred in failing to so conclude.

1. The legislative provisions governing this claim (ss 27O, 27P and 27R of the LA Act) are relevantly identical to those that were the subject of analysis by the High Court in GLJ. There is no limitation period governing YZ's claim (it having been abolished in 2015), although that abolition does not limit the inherent, implied or statutory jurisdiction of courts to prevent an abuse of process. Applying GLJ, in a case of the kind referred to in s 27O of the LA Act:
   • the party seeking a permanent stay bears the onus of establishing more than a mere risk that a trial may be unfair - that party must establish that the trial will be unfair or will involve such unfairness or oppression as to be an abuse of process;[48]
   • it can no longer be maintained that the passing of time alone enlivens the inherent power or any statutory power of a court to prevent an abuse of its process;[49]
   • the effect of the passing of time is to be evaluated on the basis that it will be neither uncommon nor unexpected for the circumstances that the limitation period sought to avoid to be encountered;[50]
   • the common and expected effects of the effluxion of time are not sufficient to constitute the 'exceptional circumstances' which would justify a court granting a stay and refusing to exercise its jurisdiction;[51]and
   • any inevitable impoverishment of the evidence which the passing of time occasions cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay.[52]
2. Weiden relies upon four interrelated matters in support of his contention that YZ's proceeding is an abuse of process which must be stayed: the passage of time since the alleged abuse; the vague and inconsistent nature of YZ's allegations; the loss of evidence, specifically medical records; and the lost opportunity to explore relevant surrounding circumstances. For the reasons which follow, Weiden's contentions must be rejected. On the whole of the evidence, Weiden has not proved that YZ's proceeding is an abuse of process. Neither individually, nor collectively, do the matters relied upon by Weiden establish that the proceeding is an abuse of process requiring the court below to decline to exercise its jurisdiction.
3. As GLJ explains, the mere passage of time (be it years or decades) since the alleged abuse cannot attract the quality of the exceptionality which is required to justify the extreme remedy of the grant of a permanent stay.[53]
4. As to the alleged inconsistencies in YZ's various accounts of the alleged assaults, again there is nothing in this case which could merit the description of 'exceptional'. The various inconsistencies identified by Weiden are of the very kind one often sees in cases involving allegations of sexual assault. Indeed, in another context (criminal jury trials), the Parliament has specifically acknowledged that there may be gaps and inconsistencies, and differences between, accounts given by complainants in relation to alleged sexual offending.[54] In any event, when one examines YZ' statements (including those purportedly summarised in LEAP records and medical reports) there is simply nothing in the differences in YZ's accounts which could possibly be described as out of the ordinary, much less so exceptional as to require YZ's proceeding to be permanently stayed.
5. As to the vagueness of some of YZ's allegations, and in particular those that relate to the park assaults, again, there is nothing that rises to a level of exceptionality. While it is true that the geographical locations of these alleged assaults lack precision, each assault is specifically alleged to have occurred in 'a mid-1960s Holden station wagon', being either Weiden's (or his family's) car. There is thus not an entire lack of specificity in YZ's allegations concerning the park assaults. In any event, the lack of other detail (and specifically, detail as to precise geographic locations) is no more than to be expected, given YZ's age at the time of the alleged assaults and the passing of the years and decades now permitted, if not contemplated, by the abolition of the limitation period in child abuse cases.
6. As to the loss of medical records dealing with injuries and consequences suffered by YZ more than 40 years ago, this, too, can hardly be said to be anything other than a common and expected effect of the passing of those years - in and of themselves, insufficient to constitute the 'exceptional circumstances' justifying a court refusing to exercise its jurisdiction to hear the proceeding.[55]
7. Moreover, as was said in GLJ, all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted, and a court is not bound to accept uncontradicted evidence.[56] In the light of what the High Court said in GLJ, it is difficult to see how an absence of medical records of the kind which Weiden asserts are critical in this case could realistically be said to justify the granting of a permanent stay.
8. For completeness, we see no error in Irving AsJ's observation that Weiden had not taken any step to ascertain the specific impact on his case of the lack of medical records relating to subsequent injuries/accidents, or his observation that Weiden had not sought to have YZ examined by his own medical expert.[57] The mere assertion, without more, that Weiden will have difficulty disentangling the effects of any assault he committed on YZ from the effects of other injuries suffered by YZ because there is an absence of medical records relating to those other injuries cannot be a sufficient basis for taking the extreme step of ordering a permanent stay. It must steadily be born in mind that at the end of the day it is for YZ to prove his case on liability and his entitlement (if any) to damages; and that the question of whether YZ has in fact proved his case needs to be assessed in the light of any obvious gaps or other deficiencies in the evidence. Weiden is not required to prove anything.
9. As to Weiden's claimed 'lost opportunity to explore relevant surrounding circumstances', to the extent not dealt with above, this is no more than the entirely expected consequence of YZ now being permitted to bring a proceeding unconstrained by any limitation period. Neither considered alone, nor in combination with the other matters relied upon by Weiden, could this matter justify a permanent stay of YZ's proceeding.
10. For these reasons, we are not persuaded that the factors relied upon by Weiden alone or in combination mean that the trial of YZ's claim will be unfair or will involve such unfairness or oppression to Weiden as to constitute an abuse of process.

1. Weiden bore the onus of proving that YZ's proceeding was an abuse of process. He failed to discharge that burden, and thus Irving AsJ was correct to refuse his application for a permanent stay, and Tsalamandris J was correct to dismiss his appeal. The proposed appeal to this Court has no real prospect of success. Accordingly, leave to appeal must be refused.

[1] While Weiden is the second defendant in the proceeding below, in some of the documents in the court below he is referred to as the third defendant.

[2] In Weiden v YZ [2023] VSCA 258, dealing with an application for security for costs made by YZ against Weiden, it is incorrectly stated at [1] that YZ and Weiden were members of Beit Habonim. There is no suggestion that they were ever members of Beit Habonim. The relevant allegations in this case are that between 1971 and 1975, they were members of the youth organisation, Ichud Habonim.

[3] YZ v Beit Habonim Pty Ltd [2022] VSC 402 ('Irving AsJ's Reasons').

[4] YZ v Beit Habonim Pty Ltd [2023] VSC 222 ('Tsalamandris J's Reasons').

[5] A psychiatry registrar at the Alfred Hospital.

[6] A senior clinical psychologist at the Alfred Hospital.

[7] The current version of which is a further amended statement of claim dated 29 March 2021.

[8] [2017] VSCA 116 ('Connellan').

[9] [2021] VSC 380.

[10] [1989] HCA 60; (1989) 168 CLR 79, 107-8 ('Longman').

[26] Ibid [87]-[92] (citations omitted).

[27] [2023] HCA 32 ('GLJ').

[28] [1979] HCA 9; (1979) 142 CLR 531, 552.

[29] (1936) 55 CLR 499, 504-5.

[30] GLJ [2023] HCA 32, [1] (Kiefel CJ, Gageler and Jagot JJ), [95]-[96] (Steward J), [161] (Gleeson J).

[31] Kiefel CJ, Gageler and Jagot JJ; Steward and Gleeson JJ contra.

[35] Ibid [41]-[43] (citations omitted, italics in original).

[39] Ibid [51]-[52] (citation omitted).

[40] See also s 140(2)(c) of the Evidence Act 2008.

[41] Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521.

[42] See for example Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315, 319.

[43] GLJ [2023] HCA 32, [53]-[60].

[44] (1936) 55 CLR 499, 504-5.

[45] Longman [1989] HCA 60; (1989) 168 CLR 79, 107-8.

[48] GLJ [2023] HCA 32, [21].

[54] See ss 54C and 54D of the Jury Directions Act 2015, which requires trial judges, in certain circumstances, to give juries directions about gaps, inconsistencies and differences in accounts of alleged sexual offending.

[55] GLJ [2023] HCA 32, [44].