The Victorian Court of Appeal in Connellan v Murphy (2017) VSCA 116 (22 May 2017) (Priest, Beach and Kaye JJA) had cause to consider the Victorian Limitation of Actions Act in relation to a claim for damages for alleged sexual assaults occurring almost 50 years ago. In particular the Court had to consider whether or not a proceeding that had been commenced should be stayed as an abuse of process.
The Court at first instance heard an application by the Defendant for a permanent stay of the Plaintiff’s proceeding on the ground that it was an abuse of process and/or “because the Defendant is irretrievably prejudiced by reason of the delay” in the proceeding being brought.
The Primary Judge dismissed the Defendant’s application.
The facts were that some time after 1 July 1968 following the death of the Plaintiff’s father and illness of the Plaintiff’s mother, the Plaintiff was sent to live with other families.
By means of a statement made some 45 years later, the Plaintiff described incidences of digital rape and other sexual offences as a result of which she suffered chronic post traumatic stress disorder, anxiety, upset, depression and a mental reaction to trauma.
The Plaintiff alleged she did not take steps in relation to these issues as she did not wish to bring it up while her mother was alive
The Court of Appeal reviewed various abuse of process authorities including what Justice Gaudron said in Jago:
“at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand.”
The Court also reviewed certain authorities concerning the effects of delay on memory and the quality of justice including Longman v The Queen and Brisbane South Regional Health Authority v Taylor.
The Court of Appeal identified the following issues arising from the authorities discussed:
- In order to justify the grant of a stay the Defendant bears a heavy onus. A stay is ordinarily only granted in exceptional circumstances because it effectively brings to an end litigation without adjudication.
- The categories of abuse of process are not closed.
- In particular the concept of an abuse of process is not confined to cases in which if the action were to proceed the Defendant would not receive a fair trial.
- The fundamental test is whether in the circumstances proceeding would be manifestly unfair to the Defendant or would otherwise bring the administration of justice into disrepute among right thinking people.
The Court found that while the onus borne by the Defendant was a heavy one, in the exceptional circumstances of the specific facts in this case the court was of the opinion the onus had been discharged and the Defendant was entitled to a permanent stay of the Plaintiff’s proceeding.
Barrister at Law
2 June 2017