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With thanks to Sonya Parsons for drawing my attention to this matter.
YZ v Beit Habonim Pty Ltd (ACN 051 827 984) ATF Association of Parents & Friends of Zionist Youth & Anor [2022] VSC 402 (on AUSTLII).
This ruling was about whether the plaintiff’s proceeding against the second defendant seeking damages for historic sexual abuse should be either permanently or temporarily stayed.
The plaintiff alleged that in 1974, when he was 12 years old, he attended a 10-day camp, organised by the first defendant, in Ballarat in the State of Victoria, where he was sexually abused by the second defendant (a youth group leader then aged 18 years).
The first defendant did not seek to be heard on the second defendant’s stay application other than to submit that if the Court granted a stay it should apply to the whole of the proceeding, not just to the proceeding as it relates to the second defendant. The plaintiff accepted that if the proceeding was stayed as against the second defendant, the whole of the proceeding should be stayed.
The second defendant argued that a stay should be granted because of delay on the part of the plaintiff, pointing to the passage of time since the alleged abuse (45 years), the vague and inconsistent nature of allegations made by the plaintiff, the loss of records and other evidence, and the lost opportunity to explore relevant surrounding circumstances. ([55]).
The plaintiff, while conceding that the passage of 45 years since the incidents carries a presumption of prejudice to the second defendant, submitted that the nature of this case involves in its essence the plaintiff’s version of events versus the second defendant’s version of events and so it should be heard and determined.([68]).
Taking into account all of the circumstances of this case, the Court was not persuaded that the second defendant has discharged the heavy onus of establishing that to allow the proceeding to continue to trial would be manifestly unfair to the second defendant or otherwise bring the administration of justice into disrepute among right-thinking people. ([78]).
A temporary stay was also considered. The parties were in agreement about the principles relevant to the prejudice to a defendant in a civil proceeding facing a subsequent criminal proceeding. The Court was not satisfied that the second defendant has demonstrated a real risk of criminal prosecution, notwithstanding that warrants of apprehension had been issued ([86]). There was a clear decision by Victoria Police not to pursue the second defendant’s extradition from Israel.
[BillMaddensWordpress #2015]
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