DJW v State of Queensland [2023] QSC 138 (19 October 2023)
Matthew Blundell
20.10.23
Factual summary
Abuse setting: State-operated dormitory
Abuse date: Multiple times between 1958 and 1967.
Alleged perpetrator: Dormitory supervisors and other residents
Reporting and Death: The Plaintiff reported the abuse in 2019 (by notice of claim). Each of the Plaintiff’s alleged abusers have died, the most recent being 2008.
Decision
All of the named perpetrators and the management and supervisory staff within the dormitories at the relevant times of the alleged events are now deceased. Despite representatives from the Department undertaking searches for documents relating to each of the named perpetrators, there were no documents or records concerning complaints of the kind made by DJW.
Accordingly, the Court ordered that the proceedings are permanently stayed.
Key findings
[215] As the State submits, DJW pleads a case which identifies specific alleged incidents of sexual abuse. It is those particular incidents which underpin the particular case that the State must meet if the matter proceeds to trial. The State’s obligation to make all reasonable enquiries obviously extends to investigating those particular incidents and the potential availability of documents and witnesses in respect of those matters. The State has made those enquiries. I do not accept that its obligation extends further to require it to undertake extensive enquiries in respect of other residents who may have been at the dormitories at the relevant times to see what they may have to say. In circumstances where DJW does not claim that any of the incidents were witnessed by any other person and he is unable to identify any other alleged perpetrator beyond those identified in his statement, affidavit and ASOC, I do not consider it is incumbent upon the State to undertake the wide ranging and general investigations and enquiries for which DJW contends.
[216] Whilst it may be the case that other persons who have been identified by DJW’s lawyers as former residents of the dormitories may be available as potential witnesses who could give evidence of the general circumstances of the dormitories and the supervision, monitoring and management of the dormitories by the State’s employees and agents, there is not in my view a realistic possibility that such further enquiries and investigations would unearth witnesses who may be able to give evidence that would bear directly, or indirectly, upon the occurrence of the alleged incidents of sexual abuse perpetrated against DJW.
Key point
- Additional enquiries regardless of whether a Plaintiff contends they would or they should be carried out, are not reasonable enquiries in the sense explained by Bathurst CJ in Anderson [214].
The full judgment can be accessed here DJW v State of Queensland [2023] QSC 138 (19 October 2023).
