WA Courts provide clarity and alignment on historical institutional abuse claims

  • Market Insight 04 August 2022 04 August 2022
  • Asia Pacific

The Western Australia Court of Appeal has aligned itself with the Courts of Appeal in Australia’s eastern states when considering the circumstances in which a permanent stay may be granted in proceedings arising out of historical sexual abuse. Clyde & Co acted for the successful Defendant on this issue at first instance and again for the successful Respondent on appeal.


In 2017, the Appellant provided evidence to the Royal Commission in relation to his experiences of childhood sexual abuse, including whilst he was a resident of Mofflyn House, between 1958 and 1961. Subsequently, in 2019, he commenced proceedings against UnitingCare WA (UnitingCare), as the operator of Mofflyn House and the State of Western Australia. The alleged perpetrator, Ms Moy, was a cottage mother at Mofflyn House.

By reason of s 6A of the Limitation Act 2005 (WA), the Appellant was entitled to bring his claim some 58 years after the acts of abuse. However, this was subject to the Court’s inherent jurisdiction to stay proceedings if the interests of justice so demand. 

Ms Moy died in 2012, before UnitingCare was notified of the Appellant’s claims.

First Instance

UnitingCare filed an application seeking orders that the Appellant’s proceedings be permanently stayed. The application was heard before Bowden DCJ on 23 November 2020. UnitingCare led evidence demonstrating that it did not have any documentation bearing directly upon the Appellant’s claims in relation to Ms Moy.

Arising from these circumstances, UnitingCare submitted that:

  • it was unable to deal meaningfully with the claims made by the Appellant;
  • a continuation of the proceedings would be unfairly burdensome and unjustifiably oppressive; and
  • it could not have a fair trial.  

Whilst acknowledging the unfortunate consequences for the Plaintiff, Bowden DCJ found that the effect of the timing of the action had created unfairness upon UnitingCare to such a degree that the exceptional step should be taken of granting a permanent stay of the proceedings.

His Honour formed a view that UnitingCare was not able to carry out meaningful investigations into the claim, nor take steps to put on a meaningful defence in circumstances where it was alleged to be responsible for the actions of a cottage mother, committed 58 years ago and the cottage mother had died before the allegations were made.

The Appeal

The decision at first instance was the subject of an appeal, heard on 9 February 2022. On 26 July 2022, the Western Australia Court of Appeal handed down a Judgment, dismissing the appeal.

In appealing from the primary judge’s earlier conclusions, the Appellant did not challenge his Honour’s findings as to the prejudice that UnitingCare would now face in having to defend the claims.

Instead, the appeal was brought on two closely related grounds, which their Honours indicated, would depend on a number of potentially contentious factual findings, namely:

  1. that the primary judge proceeded upon an incorrect principle, and ought to have considered that the “proceedings will be unfairly and unjustifiably oppressive even where the inability to investigate or defend the allegations the subject of the proceedings is due to the fault of the defendant”.
  2. that the primary judge failed to consider that the inability to investigate or defend these allegations was due to the fault of UnitingCare.

The Western Australia Court of Appeal found that the absence of any proper factual basis and evidence for such contentions by the Appellant were fatal to the appeal.

At [91], the Court concluded:

The learned primary judge in the present case properly identified the relevant principles and carefully and accurately summarised the parties’ respective cases on the application, he did not allow extraneous or irrelevant matters to guide or affect him, he did not mistake the facts, and he did not fail to take into account any of the considerations drawn to his attention.”


The permanent stay of any case, regardless of whether it concerns historical sexual abuse, has a significant effect on all persons concerned. Its consideration requires the Court to carefully contemplate a plaintiff’s prima facie right to pursue a civil claim, against the rights of a defendant to make a meaningful defence.

Whilst a defendant does not have the right to a perfect defence, it has a right to a fair trial.

In circumstances where defendants have conducted inquiries and can prove they cannot make a meaningful defence to the claims against them and in essence, cannot have a fair trial, the Western Australian Court of Appeal’s decision has codified a set of common principles that Australian Courts will take into account when considering whether to order a permanent stay of proceedings.

Survivors of abuse should therefore seek legal advice as soon as practicable to ensure the location of relevant evidentiary documents and available witnesses. To facilitate the administration of justice and to avoid any contention of fault of the defendant, Defendants need to investigate claims at the earliest opportunity; interview any key witnesses and locate all relevant documentation.

This Court of Appeal decision brings the Western Australian Courts into alignment with the various Court of Appeal decisions in Queensland, New South Wales and Victoria; and provides further certainty to all parties involved in institutional abuse claims whilst, of course, remembering that each case must be examined in accordance with its own factual merits.

A copy of the judgment can be found here.

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