The decision in Willmot v State of Queensland was upheld by the Queensland Court of Appeal, following recent trends in New South Wales.

The appellant commenced a claim for damages against the State of Queensland claiming psychiatric injury suffered as a result of repeated sexual abuse and/or serious physical abuse whilst a ward of the State of Queensland between 1957 and 1967. In particular, the appellant alleged that she was abused:

1. from 1957 to 1959 by her foster parents
2. in or around 1959 by the supervisor of a girl's dormitory
3. in about 1960 and 1967 by her uncle (NW), when visiting her grandmother's house.

This case was heard before Her Honour Chief Justice Bowskill of the Supreme Court in July 2022 and a decision was handed down on 22 August 2022. To review the Supreme Court decision in detail, please visit our previous article here. 

In summary, the respondent, the State of Queensland, argued that it had no way of investigating whether or not the alleged assaults and/or abuse occurred because there were no contemporaneous documents addressing the allegations, and relevant witnesses (except one) were deceased.

A solicitor for the respondent filed an affidavit deposing of various searches, requests for documents and enquiries the respondent had made to obtain such documentary evidence.

Her Honour considered that it is possible some further searches could be undertaken, and some further documents may emerge which may assist the appellant in relation to her allegations insofar as the system in place for children in the care of the State. However, the key witnesses in relation to the foundational allegations in respect of whether the alleged abuse occurred, had either long been deceased or were infirm. 

Her Honour found that given the consequences of the passage of time and the impact of this on the availability of witnesses and evidence, a fair trial was not possible. 

A permanent stay of proceedings was granted.

The decision was appealed by the appellant. The appeal decision of Mullins P, Gotterson AJA and Boddice AJA was handed down on 16 May 2023. The grounds of appeal and findings are as follows:

The Court of Appeal dealt with grounds 1 to 3 together. The appellant argued that the learned primary judge erred in attributing excessive weight to the availability or capacity of the perpetrators to provide instructions to the respondent or give evidence at trial. 

The appellant argued that as there was no allegation of vicarious liability, evidence from the alleged perpetrators would only form a component of the appellant's case. In the circumstances, the appellant argued that the learned primary judge erred in treating the alleged perpetrators as "foundational witnesses" which were determinative to the appellant's action.

The Court of Appeal considered that an allegation of abuse must be proved in order to succeed in proving causation and damage. The Court held that 

"If damages are sought for abuse of that kind, then proof that it occurred is indispensable to success whether or not the individual who committed it is a party to the proceeding."

The Court then reiterated the learned primary judge's reasoning, quoting: 

"In her Honour’s analysis, what was relevant for categorisation was the State’s inability to respond in a trial to such allegations because it had no means for investigating such facts. It could not now obtain instructions and, if necessary, call evidence from those key witnesses. Nor had the then-unmade allegations been put to them while they were alive and their responses recorded."

The appellant submitted that there was sufficient useful evidence to conduct a trial with evidence from the appellant and RS (who was also in the same foster care as the appellant). However, the Court considered that evidence might well assist the appellant to establish her claim but it did not assure a fair trial for both parties. 

The appellant made further submissions which were dismissed by the Court, including:

1. it was unrealistic to assume that the alleged perpetrators would facilitate the investigation of underlying facts
2. it was irrelevant that the respondent lacked the opportunity to confront the alleged perpetrators to obtain instructions unless the respondent would be in a materially different position were the perpetrators alive
3. proceedings routinely proceeded to trial where a negligent wrongdoer has died in the incident that caused the plaintiff harm.

The appellant did not succeed in establishing grounds 1 to 3.

The appellant argued that the learned primary judge erred in finding that the respondent did not have the capacity to confront alleged perpetrators where NW was alive. The appellant argued that the learned primary judge ought to have found that a permanent stay should not be granted until such time as the respondent had established that NW was wholly incapable of providing a version of events.

The Court held that the learned primary judge acknowledged numerous times in her judgment that NW was alive. 

The success under ground 4 of the appeal was dependent upon the outcome of ground 5. 

The appellant argued that the learned primary judge erred in considering that, in terms of causation, it would be "insurmountably difficult" to extricate the impact of the alleged assault by NW from the impacts of the other alleged abuse and events in the appellant's life.

The Court was not persuaded that the finding of the learned primary judge was against the evidence or the weight of evidence, given a report of Dr Milind Pant was before the judge at the time of the primary hearing, who reported "it is difficult to disentangle the events with absolute precision". 

The Court considered the shifting evidentiary onus enunciated in Purkess v Crittenden did not mean that the insurmountable difficulty in extricating the impacts of the alleged assault by NW was any less relevant on account of it arising in a factual context.

The appellant did not succeed in establishing grounds 4 and 5. 

The appellant argued that the learned primary judge failed to acknowledge that RS's evidence was supportive of evidence that the appellant would give in relation to the abuse by her foster parent and formed the basis for the respondent to investigate and substantiate the appellant's allegations. The appellant also stated that the primary judge should have perceived the evidence of RS as additional independent evidence. 

The Court considered that the characterisation of the evidence of RS as being independent was unrealistic in context, noting RS had commenced her own claim against the respondent in respect of the assaults by the same foster parent against her. 

The Court considered that if RS was to give evidence, the respondent would be in a position of having to challenge it in cross-examination without the assistance of any other individual who could give relevant instructions, or of any relevant contemporaneous documentary evidence. This was described by the primary judge as "cross-examining in the dark".

The appellant did not succeed in establishing ground 6. 

The last ground of appeal failed as the Court held there was no error in the primary judge's exercise of discretion having regard to the dismissal of the grounds of appeal discussed above. 

This decision is critically important for Queensland faith-based or educational organisations and reflects a recent wave of similar decisions in New South Wales.

The Court retains the discretion to award a permanent stay to a defendant who is unable to raise a fair defence at trial because of the unavailability of witnesses and documents due to the passage of time. The Court is required to consider the balance between allowing a claim for child abuse to be made at any time and ensuring that the defendant is not unfairly prejudiced. The prospects of each application will depend on the overall facts of each case. 

Of particular importance is the Court's consideration that the learned primary judge was correct in approaching a permanent stay where multiple offenders are involved. The judgment supports that whilst one perpetrator may be alive, it is difficult to disentangle the causal significance of each event (on the basis that the medical evidence supports that view). This may result in the entire proceeding being permanently stayed, as was the case here.