27 July 2022 The Salvation Army Girls’ Home in Kew – ‘Catherine Booth Memorial Home’

Permanent stay applications are being increasingly granted in interstate jurisdictions, with the potential for Victoria to follow suit

Background

In 2015, the Andrews Labour Government lifted limitation periods for childhood physical and sexual abuse, following recommendations arising from the 2013 Parliamentary Inquiry into the handling of child abuse by religious and other organisations and in response to the Royal Commission’s interim Report on Civil Litigation. In doing so, the Victorian Government removed barriers which blocked survivors of childhood institutional abuse from seeking justice.

For institutions, this opened up the potential for liability in childhood abuses which occurred decades ago.

Despite these reforms, where a common law claim is brought for historical childhood abuse, an application can still be made by a Defendant, requesting that the Court grant a permanent stay of proceedings on the basis that it cannot meaningfully and adequately defend the allegations. This may be because of the passage of time, vital evidence has been destroyed, key witnesses have passed away, and as such it is argued that a fair trial is no longer possible.

The granting of a permanent stay has the effect that the Plaintiff is permanently barred from seeking common law damages as against that Defendant. The Plaintiff’s claim is destroyed, and cannot be revived. It is an exceptional step, and one which Courts have previously been reluctant to take.

Recent Judgements

The Supreme Court of Victoria this month granted an application brought by the Defendant for a permanent stay of proceedings on the basis that of the following: [1]

  • The alleged perpetrator had recently passed away and could therefore not be given an opportunity to deny the allegations;
  • The absence of witnesses to the abuse; and
  • The demolition of the properties said to have been the locations of the abuse.

The Court in this matter specified that the circumstances were such that special considerations were to be given to the above bases for the application. Notwithstanding this, the decision is one which indicates a tolerance – and acceptance – for such applications by Victorian Courts.

Whilst the Courts in Victoria are yet to grant enough permanent stays of proceedings for us to elicit significant trends, we have seen a number of decisions in New South Wales,[2] and Western Australia[3]  where applications by the Defendant for a permanent stay have been successful.

Plaintiff Represented by Angela Sdrinis Legal

Angela Sdrinis Legal is acting for a Plaintiff who alleges both physical and sexual abuse at the Catherine Booth Home for girls in Kew, during the 1960s and 1970s, which was operated by the Salvation Army.

The Salvation Army has this week issued an application for a permanent stay of proceedings in this matter, on the basis that:

  • Detailed records were not kept by the Salvation Army, due to inadequate record keeping practices at the time;
  • The alleged perpetrators of abuse have since passed away and cannot provide a definite denial to the allegations; and
  • A former staff member has sworn that they never witnessed any abuse at the Catherine Booth Home.

In this connection, the Salvation Army submits that it cannot adequately defend the Plaintiff’s allegations, and can no longer make meaningful inquiries into the Plaintiff’s allegations, such that a fair trial is not possible.

Implications

Whilst all stay applications will be determined on their particular facts, if the Salvation Army’s application for a permanent stay of proceedings is successful on the basis of the above, it will set a further precedent which may make it more difficult for survivors of the same or similar abuse to pursue legitimate claims for damages.

Angela Sdrinis Legal is seeking the assistance of anyone who may have experienced or witnessed either physical or sexual abuse of children at the Catherine Booth Home for girls in Kew. If you were a staff member, resident, or family member of a resident at the Catherine Booth Home during the 1960s or 1970s, you may have vital information that could assist survivors in seeking justice.

We are particularly interested in information regarding the following people who were all appointed to the Catherine Booth home during the relevant time period:

  • Matron Phyllis Botsford;
  • Matron Pearl Smith;
  • Matron Dawn Vale; and
  • Mrs Doreen Agnew.

If you believe you can assist, please do not hesitate to contact Nikola Henkul of our office for a confidential discussion on (03) 9686 6610 or by email at nikolah@aslegal.com.au 

Nikola Henkul
Solicitor

 


[1] Phillips & Anor v Stanzer [2022] VSC 355.

[2] Smith v The Council of Trinity Grammar School [2022] NSWCA 93; Fields v Trustees of the Marist Brothers [2022] NSWSC 739; The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78; Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776.

[3] RC v The Salvation Army (Western Australia) Property Trust [2021] WADC 117; GMB v UnitingCare West [2020] WADC 165.

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