Garling J declined to stay several historical sexual abuse damages claims against the estate of the late Mr Roy Judd, a former Qantas pilot who died in May 2016 aged 77 years, unmarried and without children, his estate comprising a half share in a Woolloomooloo apartment and about $575,000 cash, the realty devised to his co-tenant, the cash to be held in trust of income to six people in Fiji, and the capital also to them after five years.

Garling J described evidence of the historical sexual abuse, essentially indecent assaults of youths in the late 1970s, 1980s and 1990s.

To time limits, his Honour noted Limitation Act 1969 (NSW) s 6A effective from 17 March 2016, and quoted the second reading speech.

Garling J assayed the Court’s inherent power to order proceedings stayed to prevent abuse of process, later noting the stay claimant bore a heavy onus [115].

“Another matter which is to be weighed carefully in considering the nature of the trial which is in prospect, is that the mere absence of documentary evidence, or the absence of a witness through death or incapacity, does not have the automatic consequence that a trial will be unfair, or that a permanent stay should be granted. Just because a court will be asked to determine proceedings with incomplete facts does not make the trial thereby unfair: R v Edwards [2009] HCA 20; (2009) 255 ALR 399; R v McCarthy (NSWCCA 12 August 1994, unrep) at [12] per Gleeson CJ; R v Stringer [2000] NSWCCA 293; (2000) 116 A Crim R 198 per Grove J at [200],” Garling J said [116].

“Here the Estate relies upon a combination of delay between the events occurring and the commencement of proceedings, and the inability of the Estate to fully defend the proceedings because of Mr Judd’s death before proceedings commenced,” [117].

“I am not satisfied that any hearing of these proceedings would be manifestly unfair to the Estate or would otherwise bring the administration of justice into disrepute among right-thinking people,” [118].

“My reasons for this conclusion are: (a) the claimant in each case is alive, in reasonably good health and is able to be fully cross-examined and challenged on his account of the events and all of the surrounding circumstances; (b) the credibility of each of the claimants is able to be challenged having regard to their criminal histories (if any) and other material which may be reasonably available about their conduct and reputations; (c) any previous histories given to medical practitioners, or statements made to Police officers, or else by way of complaints to other witnesses when first made, can be examined for consistency and challenged where appropriate. The individuals to whom these histories have been given, statements or complaints that have been made are, so far as the evidence before this Court shows, all alive and available to be cross examined; (d) some material is available which reveals the account given by the late Mr Judd about his relationship with Mr McKnight. This material, being his instructions to his solicitor, Mr Wrench, after being charged, and when confronted with the contents of the Police Brief, and his recorded telephone discussions with Mr McKnight are internally consistent, and provide some material to the Estate for it to consider in determining its approach. The material also provides some corroboration of Mr McKnight’s claim; and (e) there are still in existence buildings at which the events are said to have occurred, and documents obtained from third parties against which the accounts of the claimants can be checked and either confirmed, challenged or disproved. The late Mr Judd’s house is still in existence. Any description given by any claimant of the house and its features can be readily checked. Descriptions have been given of motor vehicles said to have been owned and driven by the late Mr Judd which can be checked with Roads and Maritime Services records. Some records, including photographs, from the Camden ATC still exist and can be examined for consistency with the claimants’ versions,” [119].

“In addition to these matters, and as I have earlier indicated, I do not accept the assertion of the solicitor for the Estate that there are no enquiries or investigations which the Estate can make to assist in the defence of these civil proceedings. On the contrary, I have concluded that the Estate has made only the most desultory of enquiries and investigations and that further investigations are open to be made by it, if the Estate so chooses,” [120].

“What is in prospect for the hearings of the claims of the claimants is obviously a less than perfect trial. Mr Judd, the alleged perpetrator, is dead. Only a partial account of his conduct was obtained from him before he died. But, I am satisfied that the trial will not be an unfair one. There is no fundamental defect of the trial process or other circumstances which would amount to an abuse of process,” [121].

At [128] “This public interest element in an application for a permanent stay of proceedings in a historical child sexual abuse matter was considered by the Court of Criminal Appeal of the Supreme Court of South Australia in R v Jacobi [2012] SASCFC 115; (2012) 114 SASR 227, albeit in a criminal context. In that case, there had been a delay of 36 years between the first alleged offence and this trial date, and the perpetrator was elderly and infirm. The Court affirmed the trial Judge’s decision to refuse to grant a permanent stay,” Garling J noted.

And at [130] “A further relevant factor to be considered as a matter of discretion is that it was not suggested that the delay in bringing the proceedings has been the consequence of any intentional conduct on the part of the claimants or their lawyers. It was not suggested, for example, that the claimants, knowing that the late Mr Judd was unwell, chose to deliberately withhold the commencement of civil proceedings until after his death. Rather, the conclusion that I have reached is that the claimants commenced proceedings at a time when they first reasonably felt able so to do. In those circumstances, their entitlement to have those claims heard and determined needs to be given real weight.

“Having regard to the high hurdle which the Estate faces in seeking to persuade the Court that the relief which it seeks should be granted, and the need for exceptional circumstances to be demonstrated, I am not satisfied that any trial of any of the claims of the claimants would be unfair to the Estate or would otherwise bring the administration of justice into disrepute. I am accordingly wholly unpersuaded that the Estate has demonstrated that the Court ought grant the orders sought by it,” Garling J said [131].

Estate’s summons dismissed with costs, set for directions.

P: M Neil QC, M Kalyk ins Murphy’s Lawyers. 1D: N H Newton ins Conditsis & Associates Lawyers. 2D: J Michieins Brazel Moore Lawyers. 3D: C Simpson ins Karp O’Neill Lawyers. 4D (State of NSW): J Haski ins WB Lawyers.