Historical Abuse: Can I Seek Damages if My Abuser is Deceased?

The recent case of Stewart v Ma [2023] NSWSC 1046, presided over by Justice Garling, involved the plaintiff initiating legal proceedings alleging she was abused by her late father from 1964 to 1977. The defendant, serving as the executor of the deceased’s estate, responded by stating that she could neither confirm nor deny the allegations concerning the plaintiff and her late father, who would have been between the ages of 4-17 and 37-49 respectively, during the time frame in question. The defendant requested that the court permanently halt the legal proceedings, invoking both section 67 of the Civil Procedure Act 2005 and the court’s inherent authority to do so.

The plaintiff’s realisation that she had been abused seems to have originated from her participation in a spiritual and personal development workshop in 1990. This workshop employed “transformative breathwork”, a technique aimed to uncover repressed memories and deeper psychological realities. At that time, the plaintiff hadn’t confronted either of her parents about the alleged abuse, although she did later discuss it with medical professionals and her spouse.

Both potential witnesses to the alleged abuse, the plaintiff’s parents, have passed away, and neither was made aware of the allegations prior to their deaths. Consequently, the defendant, acting as the executor, finds herself unable to effectively engage in the litigation due to a lack of firsthand information regarding the allegations.

Justice Garling noted that any trial proceedings would decidedly be one-sided. Whilst the plaintiff could present her own account, the defendant would have no substantive basis to challenge the allegations. Records from a Sexual Assault Service might offer some scrutiny of the plaintiff’s testimony, but the examination would lack context and definitive purpose.

In concluding remarks, Justice Garling emphasized that the crux of the adversarial legal system is the ability for both parties to meaningfully participate and instruct their respective lawyers. Given that the allegations date back almost 50 years, and that neither of the key witnesses are alive to provide their account, a fair trial is unattainable in this particular situation. As such, the court decided to permanently halt the case, declaring that proceeding otherwise would render any trial proceedings fundamentally unfair to the defendant.

For a potential legal client involved in similar proceedings as above, this decision serves as a crucial precedent for understanding how the courts may approach proceedings involving long-past events, particularly when key witnesses are no longer alive to participate.

Ultimately, historical abuse is an area of law that is highly individualised, and each victim’s matter comes with its own set of strategies, challenges, and considerations, making it essential for prospective legal clients to consult with legal professionals well-versed in the particularities of their case type. The stay of proceedings in Stewart v Ma should not deter survivors from seeking the justice they deserve. Our team at Chamberlains are specialists in navigating complex historical abuse matters, and would be happy to discuss further with you.

This article was prepared with the assistance of Lara Banks.