At a glance

This morning the High Court of Australia handed down three groundbreaking judgments in the institutional abuse space – Bird v DP, RC v Salvation Army (WA) Property Trust and Willmot v State of QLD.

These decisions will have a significant impact on the ability of abuse survivors to recover damages and will likely clarify the ongoing financial viability of some institutions.

The High Court confined vicarious liability to employment situations, and refused to extend it to the relationship between a Catholic Diocese and its priests.

In a number of separate judgments, both majority and dissenting, the High Court justices have provided important clarification of the impact of the effluxion of time and the availability and unavailability of evidence on the ability to hold a fair trial. Each case will depend on its specific facts, the quality of the available evidence and the prejudice caused by delays.

Below is a high-level summary of each case. We’ll be providing a more detailed update on each case in the coming days.

Bird v DP (A Pseudonym)

The High Court has unanimously allowed the appeal by the Catholic Diocese of Ballarat against the Victorian Supreme Court’s decision that it was vicariously liable for sexual assaults committed by a priest. The abuse occurred during visits by the priest to DP’s family home in 1971, when DP was a child.

The key issue was whether the relationship between a diocese and its priest could give rise to a finding of vicarious liability, in the absence of an employment relationship. The majority of the High Court (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ) held that the principles of vicarious liability are confined to employment relationships. They refused to extend the doctrine to include relationships that are “akin to employment”, or to independent contractors, or by reference to other policy considerations.

The High Court also refused to consider the plaintiff’s argument that he was owed a non-delegable duty of care by the Diocese.

Earlier this year, we outlined the case in more detail and considered the complex consequences this could have on the institutional abuse space and beyond.

We also explored the implications for vicarious liability Bird v DP in our 2023 Year in Review.

RC v Salvation Army (WA) Property Trust

RC alleged that he was sexually abused by Lt Swift, a Salvation Army officer, whilst resident at a Salvation Army residential care home (Nedlands Boys’ Home) between August 1959 and April 1960. The Salvation Army had been successful at first instance in having the proceedings permanently stayed on the basis it could not meaningfully defend them, and an appeal by RC to the Supreme Court of WA was dismissed. The basis for the Salvation Army’s position was:

• the death of Lt Swift deprived it of the ability to confront him with the claims, and the possibility that he would be a witness at the trial

• Maj Watson (to whom RC claimed he had contemporaneously reported the abuse) died in 1968, and he was the sole recipient of an alleged report made by RC whilst Lt Swift was still alive and where there is no record of that report

• there was an absence of other officers who were assigned to and worked at the Home during the relevant period who are still alive and could provide relevant information, and

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

The High Court’s primary judgment was authored by Gageler CJ, Gordon, Jagot and Beech-Jones JJ. The High Court has determined that the Court of Appeal was wrong to conclude that there could be no fair trial of these proceedings, and that the Salvation Army’s application for a permanent stay should have been dismissed and the proceedings should proceed to trial.

The Court concluded that the Salvation Army’s contention that in the end a trial will be a contest where RC makes allegations that the Salvation Army says it can do no more than deny constituted an incomplete description of the Salvation Army’s position as it has sufficient information to make a meaningful response to RC’s allegations. The Court was not satisfied that the Salvation Army discharged its heavy onus to obtain a stay because it has not identified that the trial of the joined issues would be unfair.

Edelman, Steward and Gleeson JJ each wrote their own judgments. Gleeson J was of the view that the vicarious liability claim ought to be permanently stayed. Edelman and Steward JJ agreed with the orders proposed in the joint judgment.

Special leave to appeal was granted and the appeal was allowed. The Salvation Army was ordered to pay RC’s costs, to be taxed if not agreed.

Willmot v State of QLD

The case concerned a claim by an Indigenous woman against the State of Queensland for sexual abuse she alleged she suffered more than 50 years ago. The State of Queensland successfully obtained a permanent stay of proceedings at first instance and on appeal to the Queensland Court of Appeal. The plaintiff was granted leave to appeal to the High Court.

The plaintiff made a number of allegations. The first concerned alleged sexual abuse by foster parents between 1957–1959. The second concerned excessive corporal punishment in 1959 by a supervisor of a girl’s dormitory. The third and fourth related to abuse by uncle, and then great-uncle or cousin, in 1960 and 1967 respectively. We reviewed this case in more detail in our 2023 Year in Review.

Gageler CJ, Gordon, Jagot and Beech-Jones JJ wrote the primary judgment. They allowed the plaintiff’s appeal in part. The plaintiff’s case can proceed to hearing, albeit only in relation to some of the allegations. There is a permanent stay as to one aspect of the case where the State of Queensland cannot have a fair trial.

Their Honours noted that the right to a fair trial is a deeply rooted common law right, which was not changed by the removal of the limitation period for sexual abuse claims across the country, or by the High Court’s decision in GLJ. While permanent stays will remain an exceptional remedy, the High Court rejected the plaintiff’s assertion that GLJ or the new statutory regimes represent a radical departure from what was considered “exceptional”. However, what represents a fair trial is a highly fact specific enquiry.

Applying the principles, the Court held that most of the plaintiff’s claims could proceed to trial. The allegations concerning the foster parents could be fairly tried, given the existence of a corroborating witness and given sufficient particulars. The physical abuse claim at the girl’s dormitory could also proceed given available witness testimony about the alleged perpetrator’s conduct. However, the plurality accepted that the State of Queensland could not have a fair trial in relation to the abuse by her cousin or great uncle (now deceased), and general physical abuse by the foster parents, as these claims were either impossible to fairly defend or too vague to meaningfully respond to. Those aspects of the claim will be permanently stayed.

The decision provides important guidance on the handling of historical abuse claims in the post-limitation period reform era. It confirms that while such claims can now be brought at any time, courts must still ensure trials can be conducted fairly, with defendants having a meaningful opportunity to respond to specific allegations. The judgment also demonstrates that detailed analysis of each claim’s circumstances and available evidence is required, rather than blanket stays based solely on the passage of time.

What now?

We’ll be providing a more detailed update on each case in the coming days.

If you would like to discuss anything covered in more detail, please reach out to one of our team members.