Where A Fair But Not Perfect Trial Possible – Permanent Stay Application Rejected

The NSW Supreme Court has refused a permanent stay application in the recent matter of MTH v State of New South Wales (2023) NSWSC 1124.

In this case the plaintiff commenced proceedings against the State of New South Wales, Mr Geoffrey Croft and Mrs Sandra Croft, in relation to personal injuries arising from sexual abuse.

The plaintiff became a ward of the State in 1967 and was discharged in 1980 upon reaching the age of 18 years. When she was approximately 16 years old the plaintiff was fostered to Mr and Mrs Croft. The plaintiff alleged she was sexually assaulted at least ten times during her stay with the Crofts.

The plaintiff reported the assaults to the police twice.

The allegations were investigated by the police. Mr Croft was later charged and prosecuted. He was found guilty of two counts of rape and three counts of assault and committing an act of indecency in respect of the plaintiff. Mr Croft was also found guilty of indecently assaulting another victim. Mr Croft was sentenced to 22 years imprisonment and died of metastatic melanoma while in custody awaiting the outcome of his application for special leave to appeal to the High Court of Australia in relation to the criminal proceedings.

The case against Mrs Croft was that she, as the plaintiff’s carer, owed the plaintiff a duty of care. On 15 June 2023 Mrs Croft filed a notice of motion seeking a permanent stay of the proceedings against her.

On 4 September 2023 the notice of motion was heard before Garling J of the Supreme Court of New South Wales. His Honour found that:

• Mrs Croft is at full capacity and is able to give evidence in response to the allegations. Mrs Croft is also able to provide instructions to her lawyers in respect of the defence of the claim.
• Although Mr Croft was unavailable to give direct evidence about the assaults, his solicitor at trial is alive and holds his file of the criminal proceedings. Further, Mr Croft had been properly informed of the allegations made by the plaintiff and had instructed lawyers to defend him in the criminal and civil proceedings.
• Mrs Croft could take advantage of the exception contained in section 63 of the Evidence Act 1995 which would allow her to adduce evidence by way of first-hand hearsay as to representations made by Mr Croft about the allegations made against him.
• The plaintiff, and Mr Croft’s other victims, were thoroughly cross-examined at trial by counsel for Mr Croft based on his instructions.
• The death of an important witness, the officer employed by the Department of Community Services, was not a significant prejudice due to the availability of contemporaneous records he had made.
• Other witnesses, including former foster children of the Croft’s could properly proffer tendency or good character evidence regarding Mr Croft including evidence as to the lack of sexual or physical violence on the part of Mr Croft.

Consequently, His Honour was not persuaded that Mrs Croft’s arguments constituted an exceptional case, which is necessary to justify an order being made for a permanent stay. Mrs Croft’s notice of motion was dismissed and she was ordered to pay the plaintiffs costs in respect of the notice of motion.