Amendments to the Limitation of Actions Act 1958 (‘the Act’) in 2015 saw the introduction of division 5 into part IIA which removed the limitation period for actions arising out of death or personal injury resulting from child abuse. Included within division 5, section 27R of the Act sought to ‘safeguard the fundamental rights of parties’ by preserving the court’s power to control or dismiss proceedings where ‘the lapse of time has had a burdensome effect on the defendant that is so serious that a fair trial is not possible’.
The recent Victorian Supreme Court judgment in Grant v Bird  VSC 380 has demonstrated a successful application of this section 27R protection with the defendant obtaining a permanent stay of proceedings.
The plaintiff alleged one instance of sexual abuse by Father Daniel O’Brien at St Michael’s Catholic Church, Wycheproof, in either 1980 or 1981. Father O’Brien died in 1985. Repressed memories of the abuse surfaced during transcendental meditation the plaintiff undertook in 2001.
In 2003 the plaintiff reported the alleged abuse to the Catholic Church’s professional standards entity. A written apology on behalf of the Church was provided and inquiries were made relating to Father O’Brien but no allegations of abuse or history of professional misconduct was uncovered.
In a medico-legal report obtained in March 2019 the plaintiff identified a potential witness to the alleged abuse, a regular church goer Clem Powell. Crucially, the plaintiff had not previously identified Mr Powell as a potential witness and by this time he too had died.
Proceedings were commenced on 2 October 2019. On 12 February 2021, following an unsuccessful mediation, the defendant applied for a permanent stay of the proceedings pursuant to section 27R of the Act.
Despite acknowledging the significant personal cost to the plaintiff and the waste of court resources due to the defendant’s delay in applying for a permanent stay, Keogh J granted a permanent stay of the proceedings. His Honour considered the following factors before concluding that it would be manifestly unjust to require the defendant to defend the proceedings:
- The lapse of time and its effect on the quality of justice and reliability of memory;
- The death of Father O’Brien before having the allegations put to him;
- The death of the only potential witness;
- The vagueness of the date of the alleged abuse; and
- The absence of evidence of surrounding circumstances to test the allegations against.
One would expect that in similar cases of vague allegations, deceased key witnesses and an absence of tendency evidence, permanent stays would also be granted.
With over 20 years of experience providing legal advice in matters of historical and institutional abuse, Nevett Ford is able to assist organisations with investigating allegations of abuse and establishing internal redress schemes. For legal advice in Melbourne, please email our lawyers at firstname.lastname@example.org or call 03 9614 7111 for more information.
 Explanatory Memorandum to the Limitation of Actions Amendment (Child Abuse) Bill 2015 (Vic) 3.