DJW v State of Queensland [2023] QSC 138

At a glance

• On 19 October 2023, the Supreme Court of Queensland handed down its decision to permanently stay the proceedings in an historic abuse claim.
• The claim involved a psychiatric injury that was alleged to have developed due to the sexual and physical abuse of an Indigenous man, DJW, in the early 1960s at Cherbourg.
• As all alleged perpetrators of the abuse and all relevant supervisory staff who worked in the Cherbourg dormitories were deceased, Crowley J found any trial would be fundamentally unfair.
• Notably, His Honour also rejected DJW’s assertion that there should be a ‘partial stay’ of his proceedings.
• This is now the third successful permanent stay application run to judgment in Queensland.

Background

DJW is a 65 year-old Aboriginal man who sued the State of Queensland alleging that, while he was in the State’s care in the 1960s, he was:

• sexually abused as a young boy at the Cherbourg boys dormitory by a teenage girl known as ‘Aunty Marlene’, and
• physically abused by a member of the supervising staff.

DJW sought damages in excess of $6 million, including an award of exemplary damages, and interest and costs. In response, the State of Queensland sought a permanent stay of the litigation.

DJW argued the case should not be heard until the High Court delivers its judgment in GLJ, a NSW stay decision (read more here). That argument did not succeed. His Honour noted that the High Court’s decision in GLJ, which is premised on very different facts, would have no bearing on the application.

In support of its application to stay the proceedings, the State noted:

• none of the available contemporaneous documents regarding DJW refer to any alleged physical or sexual abuse
• ‘Aunty Marlene’, the alleged perpetrator, died in 1995, and
• other staff members, including the ones likely to have perpetrated the alleged physical abuse, are also deceased.

The decision

His Honour Justice Crowley found in favour of the State and permanently stayed the proceedings. He stated:

“There are no documents recording any instance of alleged sexual abuse of DJW. All the alleged perpetrators of the alleged sexual abuse are deceased. There is no allegation or suggestion that the alleged instances of sexual abuse were witnessed by any other person. The only witness who will be available to give evidence of the alleged events is DJW himself.

…

In my opinion, such a proceeding would not constitute a fair trial. Proof of the critical foundational allegations underpinning DJW’s claim would be reduced to no more than a staged formality. The State would be unable to meaningfully participate in the trial in this critical aspect because of the impoverishment of the available evidence due to the passage of time.”

This finding is in line with the earlier Queensland stay decision of Willmott¹.

While DJW’s solicitors provided affidavits from other people who described incidents of physical and sexual abuse at Cherbourg, none of those people witnessed DJW’s abuse or described incidents that involved the same alleged perpetrators.

His Honour rejected DJW’s assertion that a permanent stay should not be granted because not all possible witnesses had been spoken to. He noted that it was not necessary for a defendant to indicate they had pursued every possible line of enquiry to demonstrate a fair trial could not be had. His Honour found none of the possible witnesses, other than DJW, would be able to give evidence about whether the acts of alleged sexual abuse occurred.

His Honour also clarified that a stay application is not determined just because a plaintiff can identify other investigations that a defendant could undertake. This position equally applies where a plaintiff wants to undertake enquiries that they submit should have been made by the defendant. In other words, enquiries or investigations need to be reasonable, rather than remote or speculative.

Notably, Crowley J also rejected DJW’s assertion that there should only be a ‘partial stay’ on the basis that a fair trial might still be possible regarding one incident of physical abuse, for which there was some contemporary evidence. Crowley J held that a fair trial was still not possible regarding this incident, because the alleged abuser was absent and because, as a matter of causation, the medical evidence did not allow for damage to be apportioned to the single incident alone.

The significance of this decision for insurers

This is now the third permanent stay application run to judgment by the State of Queensland (see our articles on Willmot and ADA). The State has been successful in all three matters, including the appeal in Willmot.

It is yet to be seen whether non-government insurers and their insureds will follow the strong decisions handed down in the State’s favour in Queensland. While the decision in DJW certainly strengthens an insurer’s chances of pursuing a successful stay application, not all matters will be as clear on the evidentiary issues. For example, the availability of witnesses and previous allegations of abuse are just some of the issues that need to be considered.

This case also strengthens insurers’ positions in claims involving separate and distinct allegations of historical abuse given the Court’s decision not to partially stay some portion of DJW’s allegations.

^[1] Willmot v State of Queensland [2022] QSC 167; Willmot v State of Queensland [2023] QCA 102