Abuse, no limitation period & application for stay of proceedings

Although the alleged abuse did not arise in the context of medical treatment, Connellan v Murphy [2017] VSCA 116 is of interest as an appellate consideration of the effect of recent amendments by which there is no limitation period for sexual assault / abuse claims. The allegations related to a time when the defendant was aged 13 years, some 50 years earlier.

Against the background of the Victorian provisions (section 27 O – 27 R, Limitation of Actions Act 1958(Vic)) the Court of Appeal was called upon by the defendant / appellant to revisit the lower court’s refusal of a permanent stay of proceedings. Having reviewed the authorities, at [54] the Court of Appeal said that:

  • In order to justify the grant of a stay, a defendant bears a heavy onus.  A stay is ordinarily only granted in exceptional circumstances, because it effectively brings to an end litigation without adjudication.
  • The categories of abuse of process are not closed.
  • In particular, the concept of an abuse of process is not confined to cases in which, if the action were to proceed, the defendant would not receive a fair trial.
  • The fundamental test is whether, in the circumstances, the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people.

The Court of Appeal noted the elapse of time, the death of two key witnesses and the later demolition of the house where the events were said to have occurred. At [65] – [66] the Court concluded:

In the present case, and in the light of the specific facts of this case, we are of the view that it would be plainly unjust to permit the plaintiff’s proceeding to continue. The defendant cannot realistically be expected to defend a cause of action that is alleged to have accrued almost five decades ago in circumstances where so little is known about the surrounding circumstances and facts, and all of the principal witnesses who were adults at the time are now dead.  A trial of the plaintiff’s allegations would be one that proceeded on a very unsure footing with mere scraps of evidence, the reliability of which must seriously be doubted, being tendered and relied upon…..While the onus borne by the defendant was a heavy one, in the exceptional circumstances of the specific facts in this case we are of the opinion that it has been discharged, and the defendant is thus entitled to a permanent stay of the plaintiff’s proceeding.

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