Dismissal of Summary Dismissal Application; Historical Child Abuse Claims Trump Delay


Judd Estate Proceedings [2018] NSWSC 462 (Garling J)


Between 2016 and 2017, three men commenced personal injury proceedings against the Estate of Mr Judd. He had died in 2016, aged 77 years.  They claimed Mr Judd had sexually assaulted them when they were teenagers, in the late 1970s, early 1980s and early 1990s, mostly in the Camden area.  They sought damages arising from the alleged sexual assault.

The Estate applied to summarily dismiss the proceedings.  It contended the proceedings were an abuse of process.  And the proceedings would be manifestly unfair to defend.  The chief reason for this was the significant delay between the time of the alleged sexual assault and the commencement of the proceedings as well as the passing of Mr Judd.


The Court dismissed the Estate’s application. It concluded there was no abuse of process.

Why is this case interesting?

The case is interesting on several fronts.  It is the first detailed consideration by a court of the newly introduced Limitation Amendment (Child Abuse) Act 2016. The case grapples with the application of this new legislation in the context of considering whether delay in conducting proceedings amounts to an abuse of process.

Other Jurisdictions

A different result was reached by the Court of Appeal of the Supreme Court of Victoria in Connellan v Murphy [2017] VSCA 116 which involved similar facts but also telling factual dissimilarities (and similar new legislation concerning the abolition of limitation periods for sexual abuse claims).  There, the sexual assault was said to have occurred 50 years earlier and most of the witnesses were dead.  The Court of Appeal found that it would be plainly unjust to permit the proceedings where “so little is known about the surrounding circumstances and facts” and all the principal witnesses are now dead.  The trial would proceed on “very unsure footing with mere scraps of evidence”.

Reform of Limitation Period for Child Abuse Claims

Ordinarily, a personal injury claim would not be able to be brought because of the expiry of the limitation period.  For sexual abuse related claims, this changed with the recently enacted Limitation Amendment (Child Abuse) Act 2016.  It provides that an action for damages resulting from child abuse may be brought at any time and has no limitation and has retrospective application.

It was enacted in response to recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse.   The Attorney-General in her Second Reading Speech stated:

“It is now widely understood that, due to the injuries inflicted on them by their abusers, survivors of sexual and other child abuse often take decades to understand and act on the harm arising from the abuse. The Royal Commission’s research has revealed that the average time to disclose childhood sexual abuse is around 22 years. … Many survivors find the statutory period within which to commence a claim for damages has passed by the time they are able to commence proceedings … In essence, statutory limitation periods often mean that survivors of child abuse are unable to claim any compensation for harm done.”

In Judd, the Court referred to the public interest in permitting claims for damages for sexual abuse of children to be brought at any time (at [127]):

“The public interest has been expressed by the Parliament in the legislative amendments which provide that any previous limitation period has been removed. Such is the extent of the public interest in having claims of this kind brought forward, that the removal of the limitation period was intentionally made retrospective by the Parliament.”

It should be noted that the Parliament inserted a note to section 6A Limitation Amendment (Child Abuse) Act 2016 to the following effect: “Note for example, this section does not limit a court’s power to summarily dismiss or permanently stay proceedings when a lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.” But this legislative “Note” does not form part of the Act, although, it is extrinsic material which is available to be used in the interpretation of in accordance with section 34 of the Interpretation Act 1987.

Abuse of Process | Delay | Relevant Principles

The principles in respect of “abuse of process” are well articulated. The case offered a useful summary of these principles, especially in the context of delay amounting to abuse of process.


  • The right to stay proceedings on the ground that they are an abuse of process is “beyond controversy” (Herron v McGregor (1986) 6 NSWLR 246 at 250 per McHugh JA).
  • The power to stay proceedings for an abuse of process is inherent to “protect itself from the abuse of its own procedure” (Metropolitan Bank Limited v Pooley (1885) 10 App Cas 210 at 214 per Lord Selbourne LC).
  •  The power to stay proceedings for an abuse of process is only used in exceptional circumstances (Jago v District Court of New South Wales [1989] HCA 46 per Mason CJ at 31).
  • The power to stay proceedings for an abuse of process is only exercised if the interests of justice require it (Williams v Spautz [1992] HCA 34 at 519).
  • Delay can amount to an abuse of process (Birkett v James [1978] AC 297; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [69]).
  • 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).

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