Matthew Blundell

20.09.23

Factual summary 
Abuse setting: Home of foster parents
Abuse date: Multiple times between 1979 and 1980.
Alleged perpetrator: Plaintiff’s foster father
Reporting and Death: The Plaintiff reported the abuse in 2012. Mr Croft (her abuser) was subsequently convicted of the abuse of the Plaintiff in about 2019. In the Defendant’s defence in the civil proceedings, Croft denied the alleged sexual assaults. Croft died in 2022.

Key findings 
[81] In those circumstances, whilst there is an obvious prejudice from Mr Croft’s absence, I do not think that when viewed together with all of the other available evidence going to his conduct and the surrounding circumstances, including steps which can be taken to lead indirectly some of the evidence which he was capable of giving, prejudice with respect to the absence of Mr Croft as a witness is such as would make the trial of these proceedings an unfair one.
[91] I note that a court is ordinarily reluctant to summarily dismiss a matter involving a novel duty of care: see Gibson v Parkes District Hospital (1991) 26 NSWLR 9 at pp.17 and 23. The same approach would be taken to arguments about the incoherence of the nature and content of the pleaded duty of care when compared with any other existing duty of care or statutory scheme.
[92] Insofar as the plaintiff relies upon s 6A of the Limitation Act as being applicable to defeat the expiration of any limitation period, and Mrs Croft resists such conclusion, a determination of such an issue would require this Court to examine the text, context and purpose of the statute in order to reach the proper interpretation of the terms of the section. It is sufficient for me to say that, in my view, particularly having regard to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [87], where it was said that the interpretation of a phrase in legislation such as “relate to” is “… a matter for judgment depending on the facts of the case”, Mrs Croft would find it difficult to persuade any court that summary dismissal ought be given on the limitation issue raised in argument. However, as the proper interpretation of s 6A remains a matter in respect of which an application may be brought in the future, or else would need to be finally determined at a final hearing, I simply indicate as part of this decision that I am unpersuaded that the matter dealing with the Limitation Act is one, on the evidence before me on this Motion, that is so obviously amenable to a summary dismissal application that it carries significant weight in deciding whether to grant the orders sought in the Motion.

Key points

1. Despite the death of the alleged abuser by the time of hearing, resulting in actual prejudice to the defendant, the Court was not satisfied that, when viewed together with all of the other available evidence going to his conduct and the surrounding circumstances, including steps which can be taken to lead indirectly some of the evidence which he was capable of giving, prejudice with respect to the absence of the abuser as a witness is such as would make the trial of the proceedings an unfair one [81].
2. As a separate matter, the court also found that the plaintiff’s claim in negligence against the State of New South Wales in respect of the abuse of her by her foster carers, whilst ‘novel’ was not so untenable so as to warrant summary dismissal [91].

The full judgment can be accessed here MTH v State of New South Wales [2023] NSWSC 1124