In the matter of Weiden v YZ and Anor [2023] VSCA 294 the Victoria Court of Appeal has confirmed and applied the new test for a permanent stay arising from the judgment in the High Court decision of GLJ.
The Court of Appeal identified that the amendments to the Limitation of Actions Act in Victoria that abolished limitation periods for claims relating to sexual abuse of children are relevantly identical to the NSW legislative changes as dealt with in GLJ. The Court of Appeal went on to apply the key factors identified in GLJ, being: –
• 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.
The Court of Appeal determined to reject Weiden’s application for a permanent stay, allowing YZ to continue with seeking compensation arising from their claim for sexual abuse.
If you are seeking advice or representation in relation to a sexual abuse claim, then contact us today and speak with one of our sexual assault lawyers.
