After the recommendations of the Royal Commission (into Institutional Responses to Child Sexual Abuse), each Australian state enacted legislative changes allowing survivors to pursue civil claims for compensation (for incidents of child sexual abuse) outside of the requisite time frames specified for injury law claims.

Whilst these changes have enabled many survivors to successfully seek compensation for the harm they have suffered, there still remains risk that their claims could be “Stayed” by the Court and prevented from progressing further.

What is a Stay of Proceedings?

A Stay of Proceedings is a Court ruling that halts further legal processes. The Court will be minded to order a Stay where it is demonstrated that it will not be possible for the defendant to obtain a fair trial. In particular, the Courts have recognised that delay (in commencing legal proceedings) can cause significant prejudice (or difficulty) for defendants in a legal claim.

The Courts focus in determining whether a Stay should be ordered is entirely on the difficulties the difficulties a defendant may face due to delays in commencing legal proceedings. The Court will not assess or investigate the reasons for a survivor’s delay in pursuing their legal claim for compensation.

It should be noted that a Court does not expect a “fair trial” to be perfect. It may be unavoidable with the passage of time that witnesses pass on or are unable to be located and relevant documentary evidence may no longer be available. However, in some circumstances, the Court has determined that these factors may preclude the possibility of a fair trial.

Moubarak by his tutor Coorey v Holt: – Permanent Stay Ordered

The case of Moubarak by his tutor Coorey v Holt provides some guidance as to the factors a Court may consider when determining whether to grant a Stay of Proceedings. This matter involved a survivor pursuing her civil claim for compensation in the NSW District Court in 2016 as against the defendant for incidents of child sexual abuse that were alleged to have occurred on or around 1973.

A Tutor (someone to provide instructions on behalf of a person who lacks legal capacity) was appointed to the defendant who had severe and advanced Alzheimers disease. The Tutor filed a motion in the Court seeking a permanent Stay of Proceedings to stop the survivor’s claim from proceeding.  The Tutor asserted that a fair trial could not be possible as the defendant could not give evidence or provide instructions in the matter.

Whilst the motion was initially dismissed by the Court, the Tutor applied to have the matter heard in the Court of Appeal. The Court of Appeal subsequently ordered a permanent Stay of Proceedings which prevented the survivor’s claim from proceeding.

The Court considered the following features when determining whether to grant the Stay of Proceedings:

  1. The defendant was never confronted with the allegations of abuse prior to the onset of his dementia. As such, there was never any record of his response to the allegations of abuse;
  2. The defendant was never questioned by the police, as the allegations of abuse were first made after the onset of his dementia condition;
  3. The defendant was suffering from advanced dementia at the commencement of the survivor’s legal proceedings;
  4. There were no witnesses to the survivor’s incidents of abuse;
  5. The defendant was incapable of giving instructions regarding his defence; and
  6. There was no relevant documentary evidence to verify the incidents of abuse had occurred.

Gorman v McKnight: – Stay dismissed due to lack of investigation by the defendant

In contrast, the Court dismissed a motion by the defendant seeking a Stay of Proceedings in the matter of Gorman v McKnight. This matter involved a survivor pursuing a civil claim as against the estate of one of their deceased perpetrators. The NSW Court of Appeal declined to Order the Stay of Proceedings in this matter as they did not believe the defendant’s estate had exhausted all reasonable attempts to investigate the matter.

Specifically, Justice Payne commented:

In the present case, the quality and extent of the enquiries made by the applicant for the permanent stay about matters which bore upon the fairness or unfairness of the proceedings were appropriately characterised by the primary judge as “perfunctory”.  The applicant for the permanent stay, in the circumstances of the case, did not prove that reasonable enquiries had been undertaken.  In the circumstances of the present case, a permanent stay has not been demonstrated to be warranted“.


The Court of Appeal has indicated that the removal of the relevant time limitations does not revoke the defendant’s right to a fair trial. The circumstances in which a defendant may not be able to receive a fair trial will be decided on a case by case basis. The onus (or responsibility) lies with the defendant to establish that they cannot receive a fair trial.

As above, although a fair trial does not need to be “perfect”, factors such as the passage of time (since the original incidents) and unavailability of witness/s may persuade the Court that a fair trial cannot occur.

Further, as in the case of Moubarak, the inability of the defendant to provide evidence was also material in determining that a fair trial could not occur.

Do you need help?

We recognise that survivors of childhood abuse are strong individuals who deserve the right to seek compensation for the harm they have suffered. We also understand that it can be difficult to know which pathway is the right one to choose. It is important to speak with a lawyer who is experienced in institutional abuse matters prior to accepting any offer of settlement.

Turner Freeman has a number of lawyers located throughout Australia with experience in institutional abuse. We invite survivors to contact our Sydney office on (02) 8222 3333 for a confidential and obligation free discussion to help inform them as to their rights and legal options.