Permanent stay applications increase in importance with removal of limitations period for child abuse claims

Key takeaways

The courts will need more than an effluxion of time in order to issue a permanent stay in historical sexual abuse claims. An emphasis will be placed on the defendant's ability to test evidence and the availability of all witnesses and primary source materials. The jurisprudence to date primarily relates to individual defendants. It is yet to be seen if the courts will take a different approach where the defendant is an institution. While the Royal Commission into Institutional Responses to Child Sexual Abuse concluded in 2017, the impact of the long-running inquiry will be felt for many years to come as state and territory governments implement the recommendations contained in the Final Report by the Commission.1 The 99 recommendations made with a view to improving the prospects for survivors of historical child abuse to obtain compensation can be broadly classified into two categories: the creation of a national redress scheme and reforms to the existing civil laws.

The complexity of a cross-jurisdictional voluntary redress scheme involving both government and private institutions has meant that while the legislation has been enacted which, in July 2018, brought into existence the National Redress Scheme for People Who Have Experienced Institutional Child Sexual Abuse, there are a number of government and non-government institutions that were closely examined in the Commission that have not yet officially joined as participants in the Scheme.

On the other hand, the recommended legislative changes are being adopted around Australia without notable objection or difficulty. Although some civil law recommendations which require a fundamental change to the principles of law, such as the creation of new non-delegable duty of care, have not been universally adopted by different governments, all states and territories have now adopted and implemented Recommendations 85 to 87 under the Redress and Civil Litigation Report2 which state:

State and territory governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child. State and territory governments should ensure that the limitation period is removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past. State and territory governments should expressly preserve the relevant courts' existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period. The effect of these changes, particularly in the absence of a fully operational national redress scheme, has been an increase in the number of historical child abuse claims being litigated. With a reduced range of traditional defences available to defendants, it is expected that there will be an increase in applications for the court to exercise its preserved power to stay proceedings, especially considering that these claims are historical by nature.

In Victoria and New South Wales, two of the first jurisdictions to remove the limitation of action for child abuse cases, we can see the beginnings of an emerging jurisdiction dealing with the circumstances in which a court will take the serious step of granting a permanent stay to end a victim's rights to seek civil law damages.

Historical principles

The power of a court to issue a permanent stay is not a new concept, forming part of the inherent jurisdiction of a court's powers; the power is clearly enunciated in the High Court decision of Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council3...