Matthew Blundell
20.09.23
Factual summary
Abuse setting: Family home
Abuse date: Multiple times between 1964 and 1977
Alleged perpetrator: Biological father
Date reported and deceased: The plaintiff’s father died in June 2020. The following day the plaintiff reported the abuse to the defendant’s daughter. Proceedings were commenced in September 2021.
Key findings
[80] The plaintiff’s father, the alleged perpetrator, and her mother, the only possible witnesses of the events, are both dead. Neither of them were 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.
[81] 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.
Issues of alleged prejudice
Permanent Stay
[91] 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.
[92] 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.
[93] 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.
Alleged prejudice
[94] 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 Actfor an appropriate sum from the Estate (or notional estate) of her late father.
[95] 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.
[96] 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.
[97] 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
The full judgment can be accessed here Stewart v Ma [2023] NSWSC 1046 (9 September 2023)
