Willmot v Queensland [2024] HCA 42
The High Court of Australia considered when a historical child abuse claim may be permanently stayed because the passage of time has made a fair trial impossible.
Ms Willmot commenced proceedings against the State of Queensland in 2020 concerning alleged sexual and serious physical abuse occurring more than 50 years earlier. The Supreme Court of Queensland had permanently stayed the proceeding, and the Queensland Court of Appeal upheld that decision. The High Court allowed Ms Willmot’s appeal in part, permitting most of her claims to proceed.
What happened?
Ms Willmot was born in 1954 and was a “State Child” under Queensland legislation during her childhood. She spent periods in foster care and at the Cherbourg Girls’ Dormitory.
Her proceeding concerned four groups of allegations, including alleged sexual and physical abuse while in foster care, physical abuse at the Girls’ Dormitory, and alleged sexual assaults during visits to relatives. The State did not admit the disputed allegations.
Because of the considerable passage of time, a number of relevant people had died, memories had faded, and some documentary evidence was unavailable. The State argued that these difficulties meant it could no longer receive a fair trial and sought a permanent stay of the proceeding.
Historical child abuse and limitation periods
Section 11A of the Limitation of Actions Act 1974 (Qld) provides that an action for damages relating to personal injury resulting from child sexual abuse or serious physical abuse may be brought at any time and is not subject to a limitation period.
However, the legislation preserves the Court’s power to permanently stay a proceeding where the effect of the passage of time is so serious that a fair trial is not possible.
The High Court emphasised that removing the limitation period created a new legal context in which very old child abuse claims can be brought. The loss of evidence, fading memories, and death of witnesses are therefore matters that can be expected in this category of litigation.
When will a permanent stay be granted?
A permanent stay remains an exceptional remedy and a last resort.
The relevant question is not simply whether the passage of time has made defending a claim more difficult. The defendant must establish that its effect is so serious that a fair trial is not possible, or that continuing the proceeding would otherwise amount to an abuse of process.
The Court also stressed that each allegation must be considered separately. Where a defendant relies upon the death of a witness or loss of evidence, it must demonstrate how and why that circumstance prevents a fair trial.
The absence of corroborating evidence does not, by itself, make a trial unfair. Courts have established methods for assessing old allegations, including careful scrutiny of evidence, consideration of the fallibility of memory, and recognition of the difficulties associated with evidence concerning deceased persons.
The High Court’s approach to the evidence
Importantly, an application for a permanent stay is not a trial of the underlying allegations.
The question at that stage is whether the eventual trial can fairly take place, not whether the plaintiff’s evidence will ultimately be believed. The party seeking the stay must identify the particular forensic disadvantage that makes a fair trial impossible.
That distinction was significant in Ms Willmot’s case. For example, another former foster child was available to give evidence concerning some of the alleged sexual abuse. Whether that evidence was ultimately accepted was a matter for trial; its existence did not make the trial unfair.
The High Court also rejected the proposition that difficulty separating the psychological consequences of different alleged events necessarily made a trial unfair. Questions of causation and the contribution of different events could be addressed at trial in the ordinary way.
The outcome
The High Court allowed the appeal in part.
The State’s application for a permanent stay was dismissed for most of Ms Willmot’s claims. However, permanent stays remained in place for particular allegations, including the alleged physical abuse by the Demlins and the Pickering allegation, where the Court concluded that the particular evidentiary difficulties prevented a fair trial.
The decision did not determine whether Ms Willmot’s allegations were true or whether the State was ultimately liable. Those issues remained matters for trial in relation to the claims permitted to proceed.
Key takeaways
- Queensland law removes the limitation period for certain claims arising from child sexual abuse or serious physical abuse.
- A historical abuse claim can still be permanently stayed where a fair trial is genuinely impossible.
- The passage of many decades, the death of witnesses, or the absence of documents does not automatically justify a permanent stay.
- A defendant seeking a stay must identify the actual forensic disadvantage and explain why it prevents a fair trial.
- Each allegation must be assessed separately by reference to its particular facts and available evidence.
- A permanent stay application is concerned with whether a claim can be fairly tried, not whether the allegations will ultimately be proved.
This case note provides general information about a court decision and does not constitute legal advice. The outcome of any matter depends on its particular facts, evidence, and applicable law.