Permanent Stay Refused: Victorian Court of Appeal applies principles enunciated in GLJ

The issue of a stay in proceedings has arisen again in the decision of the Victorian Court of Appeal in Alan Weiden v YZ (a pseudonym) and Beit Habonim Pty Ltd (ACN 051 827 984) as Trustee of The Association of Parents & Friends of Zionist Youth (No 2) [2023] VSCA 294.

For a detailed background of the case, please see our earlier article entitled ‘Security for Costs in Abuse Claims’ (Security for Costs in Abuse Claims – Chamberlains Law Firm).

In this matter, the plaintiff, YZ, commenced proceedings seeking compensation for sexual abuse that allegedly occurred when he was a member of a youth organisation between 1974 and 1975. The abuse was allegedly perpetrated by Alan Weiden, who was also a member. Mr Weiden sought a permanent stay of the proceedings which was dismissed initially by Irving AsJ, then again by Tsalamandris J, both of the Supreme Court of Victoria.

Mr Weiden appealed against the decision of Tsalamandris J and made the following submissions before the Court of Appeal:

1. The judge erred in finding that allowing the proceeding to continue would be neither manifestly unfair to Mr Weiden nor bring the administration of justice into disrepute.
2. The judge erred in failing to find that YZ’s allegations were vague, unreliable and could not be acted upon safely.
3. The judge erred by failing to find that the Associate Judge had fallen into error in holding that expert evidence was required to determine the extent to which Mr Weiden was prejudiced by the loss of medical records.

Mr Weiden submitted to the Court of Appeal that YZ’s proceeding was an abuse of process and that he had established same before the lower courts, which erred in concluding otherwise.

At [66] Beach, MaCaulay and Lyons JJA of the Court of Appeal applied the principles set out in the recent High Court decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, which they summarised as follows:

• the party seeking a permanent stay bears the onus of establishing more than a mere risk that a trial may be unfair – that party must establish that the trial will be unfair or will involve such unfairness or oppression as to be an abuse of process;
• it can no longer be maintained that the passing of time alone enlivens the inherent power or any statutory power of a court to prevent an abuse of its process;
• the effect of the passing of time is to be evaluated on the basis that it will be neither uncommon nor unexpected for the circumstances that the limitation period sought to avoid to be encountered;
• the common and expected effects of the effluxion of time are not sufficient to constitute the ‘exceptional circumstances’ which would justify a court granting a stay and refusing to exercise its jurisdiction; and
• any inevitable impoverishment of the evidence which the passing of time occasions cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay.

Their Honours agreed that Mr Weiden’s allegations that the alleged inconsistencies in YZ’s accounts of the sexual assaults and the vagueness of some of YZ’s allegations do not meet the level of exceptional at [69] and [70]. The same finding was applied to the fact that medical records dealing with the injuries suffered by the plaintiff were lost at [71].

The Court concluded that Mr Weiden bore the onus of proving that YZ’s proceeding was an abuse of process and that he failed to discharge that burden. Leave to appeal was consequently refused.

If you have any questions or concerns please contact our Abuse Compensation Director Jon May on 02 6188 3600