Key takeaways and consequences from the decision

Deceased potential witnesses and a lack of documentary evidence (including as to whether RC had been resident at the relevant Home) was not enough to meet the very high bar in relation to the Salvation Army's permanent stay application. As the plurality pointed out in its summation: 'cases where a party can do no more than deny the main allegation are tried in the criminal courts every day' but that does not make the trial unfair.

We expect to see the ripple effect from this decision (and that of Willmot) over the coming months. We expect:

• new stay applications will be very rare;
• matters with pending/reserved stay applications divert to alternative dispute resolution or trial; and
• although plaintiffs bear the onus in historical matters, defendants will continue to do the heavy lifting in evidentiary investigations (including in relation to avenues to challenge uncorroborated evidence/allegations).

Stay application through the lower courts

RC commenced an action in the District Court of Western Australia in 2018, alleging that Lt Frank Swift, an officer of the Salvation Army, sexually abused him at its Nedlands Boys' Home in 1959 and 1960 when RC was about 12. RC alleged the Salvation Army was directly negligent (that its systems were sub-standard and therefore breached common law and statutory duties of care) or was vicariously liable for Lt Swift's intentional tort. He claimed damages from the Salvation Army for mental harm.

The Salvation Army successfully applied to permanently stay RC's action in 2021 (RC v The Salvation Army (Western Australia) Property Trust [2021] WADC 117). The Salvation Army pointed to prejudice arising from a lack of witnesses and documents:

• RC allegedly reported the abuse in 1960 to Major Watson, the Boys' Home manager, who did nothing (if he was indeed told about it). That aside, the Salvation Army first became aware of the allegations when police contacted it in February 2014. It was first aware of the specifics in July 2018 when RC's solicitors wrote to it.
• There were no witnesses available: Watson died in 1968; Swift died in 2006; Swift's widow suffered significant memory issues from about 2017 and died in 2019; the Swifts' children were alive but unable to provide anything substantive; extensive searches for other officers who had worked at the Home between 1959 and 1962 were unsuccessful.
• The contemporaneous documents that the Salvation Army had located did not record the allegations by RC nor any relevant investigation into Lt Swift. The Salvation Army issued a subpoena to the State Records Office in what Gething DCJ accepted was patently wide terms: copies of documents relating to the Home between 1940 and 1994 and documents relating to RC being a resident of the Home between 1959 and 1960, but that returned nothing relevant.

RC appealed to the Supreme Court of Western Australia and lost. Of central importance to the later appeal to the High Court, RC argued that the primary judge erred by failing to have regard to a statement by an officer of the Salvation Army, Commissioner Tidd, provided to the Royal Commission. Tidd's statement was said to contain admissions against the Salvation Army's interests to the effect that it had no policies and procedures in place at the time relating to child abuse (relevant to the alleged direct negligence).

The Supreme Court had found that the statement relied upon was not evidence concerning RC's specific allegations or anything that Major Watson specifically may or may not have done. The statement contained evidence of such a general nature that it could not have been said to override the difficulties the Salvation Army was faced with in defending the claims of direct and vicarious liability.

High Court appeal

RC then appealed to the High Court of Australia. All seven justices overturned the stay in four separate reasons (Gageler CJ and Gordon, Jagot, and Beech-Jones JJ agreeing; Edelman and Steward JJ each providing their own separate reasons).

The plurality of Gageler CJ and Gordon, Jagot, and Beech-Jones JJ focused on the statement of Commissioner Tidd, finding that whether Tidd's statement and the underlying investigation report were admissible at a trial is irrelevant; what they did show was that by the time the statement was made in August 2015, the Salvation Army had been able to identify relevant material from which it was able to draw conclusions about what the Salvation Army did and did not do during the relevant period. The plurality found it was not clear what had changed since that statement. The plurality held in relation to each of the Salvation Army's submitted unfairness:

• The deaths of Lt Swift and Major Watson did not deprive the Salvation Army of any relevant evidence. Swift would probably at best have provided a denial, and a cross-examiner who is only missing that kind of evidence can still participate in the trial. Similarly, Watson would probably at best have denied RC made a report to him about Swift's abuse.
• The enquiries the Salvation Army made to contact other officers were inadequately explained: two officers had been identified as alive with contact details; Lt Swift's wife had been alive and well, assisting the Salvation Army with information about other claims against Lt Swift in the early 2000s and there was no explanation as to why information about Lt Swift's duties were not obtained from her then.
• The Salvation Army's complaints about a lack of available avenues to cross-examine RC given the lack of other evidence did not necessarily make the trial unfair because it has sufficient material available to it to make an informed response to RC's evidence (being inconsistencies in his accounts and the like).

In summing up, the plurality held that a case where a party can do no more than deny the main allegation is not so unfair as to warrant the rare and exceptional order of a stay: such cases are tried in the criminal courts every day and a trial judge ordinarily exercises care before accepting uncorroborated evidence of this kind.

Edelman, Steward, and Gleeson JJ's separate concurrence

Justice Edelman provided separate reasons agreeing with the orders proposed by the plurality and, in large part, on the same basis that there was enough evidence available (including centrally through the Tidd statement) to allow a fair trial.

What Edelman J added to the plurality's reasons was on the vicarious liability issue. The Salvation Army contended that a fair trial could not be had because the passage of time meant it was unable to respond to the vicarious liability claim as it was unable to investigate Lt Swift's specific duties. In the context of Bird v DP ([2024] HCA 41). being decided the same day, Edelman J found that there was 'no imaginable universe of employment in which Lt Swift's alleged sexual abuse of RC could be said to be in the course of his employment.' On this basis, there was no prejudice in the Salvation Army having lost the ability to investigate the details of Lt Swift's duties at the time: those duties are irrelevant.

Justice Steward provided separate reasons agreeing with the orders and generally with the reasons of the plurality. What Steward J differed on was the reliance on the Tidd statement. His Honour did not place great reliance on it. Instead, Steward J emphasised that the Salvation Army had failed to establish that it had lost the opportunity to investigate the allegations.

Put simply, Steward J pointed out that the Salvation Army knew about other allegations against Lt Swift as early as 1961, and certainly by 2003, and then of RC's allegations against Lt Swift by 2014. The Salvation Army had not explained why it had not spoken with Lt Swift's wife or made other enquiries it now said it could not make after about 2003 or, certainly, between 2014 and her cognitive decline in about 2017.

Justice Gleeson agreed with the plurality save that His Honour would have stayed the aspect of the claim that the Salvation Army was vicariously liable for Lt Swift's intentional tort (in apparent agreement with Edelman J on the vicarious liability point).

When considering matters with evidentiary difficulties, remember that the High Court distinguished between the issues of fact to be proven at trial and the question of unfairness in a stay application. Evidence produced in uncorroborated claims can still be challenged and the Plaintiff still bears the onus of proof at trial.