*Disclaimer: This article contains details about sexual assault/abuse which may be upsetting for some readers. Reader discretion is advised.

• In RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43, the High Court of Australia has overturned a stay of proceedings for allegations of abuse in 1959 and 1960.

• A stay application is not a trial; it focuses on the disputed issues revealed by analysing the pleadings to determine whether a fair trial of the issues can occur.

• The fewer reasonable steps a defendant takes earlier on, the more difficult it will be for it to meet the heavy burden required to obtain a permanent stay.

• Notwithstanding the death of the perpetrator, the death of the only witness who allegedly received a disclosure and the inevitable loss of evidence over 50 years, the Salvation Army was found to have enough material to respond to the plaintiff's evidence and did not meet the burden required to obtain a stay, as it failed to show that the trial of the issues would be unfair.

On 15 November 2018, the applicant (RC) commenced proceedings against the respondent (Salvation Army) in the District Court of Western Australia, seeking damages for sexual abuse by Lieutenant/Army Officer Frank Swift (Lt Swift) at the Nedlands Boys' Home (Home) between 1959 and 1960, when RC was 12 and 13 years old. 

The primary judge granted a permanent stay of the proceedings on the basis that the Salvation Army could not meaningfully defend the proceedings. RC's appeal to the Court of Appeal of the Supreme Court of Western Australia was dismissed. RC sought special leave to appeal to the High Court, which considered the intersection between permanent stay principles and provisions lifting the time bar for child sexual abuse claims. The High Court ruled that the Court of Appeal was wrong to conclude that there could be no fair trial of the proceedings and the Salvation Army's application for a permanent stay should have been dismissed.

The primary judgment was authored by Gageler CJ, Gordon, Jagot and Beech-Jones JJ. Edelman and Steward JJ wrote separate judgments but agreed with the orders proposed in the joint judgment. Gleeson J agreed in part but held that it would be unjustifiably oppressive to require the Salvation Army to defend the vicarious liability aspect of the claim.

The Salvation Army pleaded in its defence there could not be a fair trial of the alleged abuse as: 

1. the death of Lt Swift in 2006 deprived it of the ability to confront him with the claims and also the possibility that he would be a witness at the trial; 

2. Major Watson, as the sole recipient of a disclosure made by RC and in circumstances where there are no records of this report, died in 1968;

3. there was an absence of other officers, assigned to the Home during the relevant period, who were still alive and could provide relevant information; and

4.  there was an absence, following comprehensive searches, of relevant documentary evidence. 

The High Court was tasked with assessing whether the lapse of time between the alleged events in 1959 and 1960 and the bringing of RC's action in 2018 caused such a degree of prejudice to the Salvation Army that there was no real possibility of a fair trial. 

The High Court ruled that the Salvation Army did not prove it had lost valuable evidence or witnesses in the case involving Lt Swift. It found that although RC and Lt Swift were at the Home during the relevant period, the Salvation Army only showed that Lt Swift's possible denial was no longer available. Regarding Maj Watson's death, the Court determined that his testimony would likely only confirm or deny a report, which would not have been detrimental to RC's case.

The Salvation Army confirmed that two of 14 officers from the Home were alive and contactable, one in a nursing home and the other contacted by phone in 2020. However, there was no indication that the Salvation Army sought information from Lt Swift's wife, Doris Swift, despite her potential knowledge of his duties. The High Court noted that Doris Swift, who passed away in 2019 and had memory issues in her final years, was not considered unavailable during the early 2000s when the Salvation Army was handling allegations against her husband. The High Court criticised the Salvation Army for not attempting to obtain her testimony before her death.

The High Court found that, despite the passage of time affecting RC's memory, he provided a detailed affidavit and was available for cross-examination. The High Court noted that the absence of formal complaints did not undermine RC's account. RC identified at least ten other potential witnesses who provided similar allegations of abuse by Lt Swift. The High Court concluded that the Salvation Army's inability to find external evidence to challenge RC's claims did not make a trial unfair. It also determined that the Salvation Army had enough material to respond to RC's allegations, even if no clear path for challenging his evidence was revealed.

In relation to the issues joined on the other pleaded claims, the Salvation Army denied liability for the abuse, arguing it did not know if the abuse occurred, the claims were not particularised, and it had no knowledge of Lt Swift's predatory behaviour. It asserted that it supervised staff according to the standards of the time and that causation was in dispute. The Salvation Army acknowledged systemic failures, admitting there was no proper system for supervision or investigation at its homes, and there were incomplete records from the relevant period. It suggested that any complaints of abuse were likely not recorded or investigated. 

The Salvation Army did not claim prejudice regarding RC's breach of a non-delegable duty, other than disputing whether the abuse occurred. Its defence was that none of the alleged assaults happened, but it lacked evidence from the accused, Lt Swift or Maj Watson to deny the claims. The High Court noted that previous acknowledgements and apologies in 2004 and 2018 for abuse by Lt Swift at different homes weakened the impact of the alleged perpetrator's unavailability as a trial witness, as RC could rely on these admissions.

Regarding vicarious liability, the Salvation Army contended Lt Swift was not an employee but an ordained minister, based on its detailed historical knowledge of its structure and Lt Swift's role as a "Boys' Officer" at the Home. Edelman J in his reasoning found it was impossible to fathom how a claim of vicarious liability in the true sense for the liability of Lt Swift could ever be affected by the contours of Lt Swift's employment. Edelman J further reasoned that "there is no imaginable universe of employment in which Lt Swift's alleged sexual abuse of RC could be said to be in the course of his employment". For a more detailed discussion on vicarious liability, see our recent article discussing the impacts of the High Court decision in DP v Bird [2024] HCA 41.

The High Court agreed with the Salvation Army that an applicant for a permanent stay is not required to prove prejudice by establishing the precise detail of every step that it would have taken if the claim had been brought earlier. Nor is an applicant required to undertake the difficult or impossible task of proving what information it would, or even could, have obtained from a source that was lost due to the lapse of time. 

However, the High Court determined that an applicant is still required to prove the general nature of each aspect of prejudice that it suffered, which, in combination, is said to be so extreme that any trial would be unfair due to the lapse of time in bringing a claim. This will usually require proof of the general nature and content of steps that the applicant would have taken if the claim had been brought earlier and the general type of information that it might have obtained. 

When considering whether or not to pursue an application for a permanent stay, it is critical that organisations turn their mind to:

a.    seeking confirmation of aspects of the complainant's version of events;

b.    obtaining and scrutinising any available documentary records;

c.    being proactive in interviewing any and all potential and relevant witnesses; and

d.    obtaining a response from the alleged perpetrator (if available).