Willmot v The State of Queensland [2024] HCA 42
On 13 November 2024, the High Court of Australia published its judgments of two cases where applications for permanent stays of proceedings had been made by institutions alleged to be liable for historical child abuse.
One of those is Willmot v The State of Queensland [2024] HCA 42.
The decision in brief
The High Court has allowed an appeal in part of a decision of the Court of Appeal of the Supreme Court of Queensland, which dismissed an appeal of a decision of the Supreme Court granting a permanent stay of proceedings commenced by Joanne Willmot against the State of Queensland.
Ms Willmot’s claim against the State is based on multiple separate instances of alleged abuse occurring when she was a child some 60 to 70 years ago. The High Court has permanently stayed some of those allegations on the basis that a fair trial of those would not be possible while allowing Ms Willmot to pursue others.
The critical facts of the case
The alleged abuse subject of Ms Willmot’s claim can be summarised as follows:
- Between 1957 and 1959, when Ms Willmot was about three or four years old, the State placed her in foster care with a married couple, Jack and Tottie Demlin. There were three other foster children living at their house at the same time, and they shared a bedroom. Ms Willmot alleged that Mr Demlin sexually abused her and that she witnessed Mr Demlin sexually abusing two of the other foster children. Ms Willmot also alleged that she was physically abused by Mr and Mrs Demlin. She was removed from the house in 1959 due to reports of concerns that she was malnourished (Demlin Allegations).
- Between 1959 and 1966, when Ms Willmot was about five to 12 years old, the State placed her at the Cherbourg girl’s dormitory. Ms Willmot alleged that she was subjected to serious physical abuse during that time by Maude Phillips, described as a harsh disciplinarian because she imposed punishments for minor infractions. These included being hit by a ‘switch’ (a tree branch), being made to stand on one foot for two hours, and being locked in the ‘women’s prison’ (a room with only a bucket inside) (Dormitory Allegations).
- Ms Willmot alleged that on two occasions when she visited her grandmother’s house:
- she was sexually assaulted by her uncle who was 15 or 16 years old in or around 1960, when she was about six years old (NW Allegations), and
- she was sexually assaulted by her cousin/great uncle (known as ‘Uncle Pickering’) in or around 1967, when she was about 13 years old at the time (Pickering Allegations).
The permanent stay of proceedings previously applied
The Supreme Court of Queensland granted a permanent stay of proceedings for all allegations after concluding that, given the passage of time since the events alleged and the lack of availability of evidence (both witnesses and documentary evidence), a fair trial was not possible.
Please see our previous article here which discusses the Supreme Court of Queensland’s decision.
The Court of Appeal of the Supreme Court of Queensland upheld the stay.
Ms Willmot appealed to the High Court of Australia.
The High Court’s decision and reasons
The High Court recognised that a permanent stay of proceedings is a ‘last resort’ and only appropriate where any prospective trial will be unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process. It affirmed that the defendant bears the onus of proof and determination of this issue requires separate consideration of each allegation, including its nature, content and the available evidence.
Alleged sexual abuse by the foster father
The High Court determined that the Demlin Allegations relating to sexual abuse by the foster father should not be stayed.
It rejected the State’s argument that it was unfair that Ms Willmot did not have a recollection of the alleged sexual abuse until she had a conversation with another former foster child of the Demlins (referred to as ‘RS’) in 2016 and relied on RS’s allegations of her own abuse, regarding these matters as relevant to a trial judge’s assessment of what findings should be made, not whether a fair trial can be had.
The High Court acknowledged that Ms Willmot’s allegations are not vague and that she and RS could be cross-examined at trial.
It also recognised that it was typical that there would be no documentary evidence of alleged sexual abuse, so the burdensome effect of the passage of time on the capacity of the State to refer to documentary evidence is limited.
Alleged physical abuse by the foster parents
The High Court determined that the Demlin Allegations, relating to physical abuse by Mr and Mrs Demlin, should be stayed because they are so vague (details about the date, location and nature of the alleged physical abuse were not provided) and that they are incapable of meaningful response, defence or contradiction.
Alleged physical abuse at the Cherbourg girls’ dormitory
The High Court determined that the Dormitory Allegations should not be stayed.
It rejected the State’s argument that the Dormitory Allegations should be permanently stayed because key witnesses, including Ms Phillips, who could give evidence about the happenings in the dormitory, were deceased. It acknowledged that there are contemporaneous documents about Ms Phillips’ interactions with children at the dormitory, such that the State could understand her alleged conduct and make an informed response.
Alleged sexual abuse by her uncle
The High Court determined that the NW Allegations of sexual abuse by Ms Wilmot’s uncle should not be stayed.
It rejected the State’s argument that the private context of the alleged assault and the death of Ms Willmot’s grandmother meant that it could not meaningfully participate in a trial of the allegations. It concluded that the alleged perpetrator was alive and contactable from the time that Ms Willmot commenced the action.
Alleged sexual abuse by the cousin/great uncle
The High Court determined that the Pickering Allegations of sexual abuse by her cousin/great uncle should be stayed because the State does not have an ability to investigate foundational facts and its participation is limited to cross-examination of Ms Willmot about the apparent inconsistencies, which meant that it could not be fairly tried.
Implications for historical child abuse matters
The High Court has not followed the blanket approach applied by the lower Queensland courts. It has confirmed that a permanent stay of proceedings is only to be ordered in exceptional circumstances where, following a thorough consideration of the nature, content and available evidence of each allegation, a trial of that particular claim would be necessarily unfair.
Section 11A of the Limitation of Actions Act 1974 (Qld) removed the limitation period for actions for damages arising from child abuse. Similar statutory provisions are in all Australian states and territories. Therefore child abuse claims can and will be commenced many years after the alleged abuse occurred. Accordingly, for a defendant to refute a plaintiff’s right to pursue such claims, it must demonstrate that the passage of time has had a burdensome effect on its ability to meaningfully respond to the allegations against it, such that any prospective trial will be unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process. It may not be sufficient that key witnesses have passed away or that there is a lack of documentary evidence about the alleged abuse.
While Ms Willmot was largely (but not wholly) successful in her appeal to the lower court’s decision to allow a permanent stay of proceedings, the High Court’s decision does confirm that a decision to grant a stay is an ‘extreme step’ and that the evaluative inquiry in each case is unique and highly fact-sensitive.
This case note was written by Principal Scott Ames and Associate Sheridan Kersey. For further advice, please contact Scott.
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