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District Court 6 June 2025

Davey v Want

[2025] NSWDC 205

Sexual offences
CIVIL PROCEDURE STAY OF PROCEEDINGS PRINCIPLES TO BE APPLIED PROOF ONUS OF PROOF

Citation: [2025] NSWDC 205
Court: District Court of New South Wales
Date: 6 June 2025
Judge: Newlinds SC DCJ

Background

The plaintiff brought a claim for damages arising from alleged sexual assaults said to have occurred in 1971 or 1972, when she was approximately six or seven years old and the defendant was eighteen or nineteen. The parties were neighbours living near Grafton. The plaintiff alleged two separate incidents in which the defendant digitally touched her vagina: one while she sat on his lap on a tractor driven through a paddock, and another at a family gathering where a blanket covered them.

The plaintiff contended these events caused her significant psychiatric harm, including post-traumatic stress disorder (PTSD) that affected her for the majority of her life. Her case was complicated by her own acknowledgment that, before the alleged assaults by the defendant, she had already been subjected to similar abuse by two adult uncles. The defendant denied both allegations entirely.

The proceedings were commenced by Statement of Claim filed 22 November 2023, meaning approximately 54 years had passed between the alleged events and the commencement of litigation.

  • Whether the proceedings should be permanently stayed on the basis that the passage of approximately 54 years rendered a fair trial impossible.
  • Whether the plaintiff had established, on the balance of probabilities, that the defendant sexually assaulted her on the two alleged occasions.
  • If the allegations were proved, how damages should be assessed having regard to pre-existing psychiatric injury caused by separate abuse inflicted by the plaintiff's uncles.

Decision

On the permanent stay application

The court dismissed the defendant's application for a permanent stay. Applying the principles recently restated by the High Court in Willmot v Queensland [2024] HCA 42, Newlinds SC DCJ held that the mere impoverishment of evidence caused by the passage of time is not, in itself, sufficient to enliven the power to stay proceedings as an abuse of process. The removal of limitation periods for child sexual abuse claims created a "new reality" in which such impoverishment is to be expected as routine, and something more than the ordinary forensic difficulties of delay is required before a stay will be granted. The defendant had not demonstrated that any negative forensic consequence was so serious that a fair trial was not possible. The motion was dismissed with costs in the cause.

On the merits

Having refused the stay, the court proceeded immediately to a final hearing. After considering the evidence, the court was not satisfied on the balance of probabilities that either alleged incident occurred. The plaintiff's evidence rested substantially on memories of events from over 50 years ago when she was a very young child. The defendant gave evidence denying both events and offered reasons why each was implausible in the circumstances described. The court applied heightened scrutiny appropriate to serious allegations under the Briginshaw standard, which requires that the strength of evidence be commensurate with the gravity of the matters in issue.

On damages (hypothetical assessment)

Although the claim was dismissed, the court provided an assessment of what damages would have been awarded had the plaintiff succeeded. The court indicated it would have awarded $250,000 in general damages (inclusive of interest), $50,000 in aggravated damages, $50,000 in exemplary damages, past and future treatment expenses of $4,720, past economic loss of $150,000 (inclusive of interest), and loss of superannuation entitlements of $17,250, totalling $720,720. These figures incorporated substantial discounts to account for the plaintiff's pre-existing psychiatric harm caused by the conduct of her uncles, which the court found could be "disentangled" from the harm attributable to the defendant's conduct, though not by applying a simple arithmetic percentage.

Orders Made

  • The plaintiff's claim is dismissed.
  • Verdict for the defendant.
  • The plaintiff is to pay the defendant's costs of the proceedings.
  • Liberty granted to either party to apply within 14 days by email to chambers to set aside or vary the costs order.

Key Takeaways

  • The District Court confirmed, applying Willmot v Queensland [2024] HCA 42, that a permanent stay of child sexual abuse proceedings requires more than the routine impoverishment of evidence caused by the passage of time. Courts in this "new world" of unlimited limitation periods are expected to manage forensic difficulty, not automatically terminate proceedings because of it.

  • A stay will only be granted as a last resort or in exceptional circumstances. The defendant bears a high threshold to demonstrate that the effect of delay is so seriously burdensome that a fair trial is genuinely impossible, not merely more difficult.

  • Under the Briginshaw standard (drawn from Briginshaw v Briginshaw (1938) 60 CLR 336), allegations of serious wrongdoing such as sexual assault require a degree of satisfaction commensurate with the gravity of the allegation. Proof on the balance of probabilities still applies, but the evidence must be capable of producing genuine satisfaction of the serious fact in issue.

  • Where a plaintiff has suffered psychiatric harm from multiple sources of abuse, damages attributable to a specific defendant may be assessed after "disentangling" each causal contribution, even where this cannot be done by mechanical application of a percentage. The court's assessment here reflected that process.

  • Providing a hypothetical damages assessment after dismissing a claim on the merits illustrates the court's approach to transparency in reasoning, though such an assessment carries no legal consequence in the absence of liability.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), ss 140, 165B
- Limitation of Actions Act 1974 (Qld)

Cases
- Willmot v Queensland [2024] HCA 42
- GLJ v Trustees of Roman Catholic Church for Diocese of Lismore [2023] HCA 32
- Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218
- Briginshaw v Briginshaw (1938) 60 CLR 336
- Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
- Fox v Percy (2003) 214 CLR 118
- M v M (1988) 166 CLR 69
- Longman v R (1989) 168 CLR 79
- Watson v Foxman [1995] 49 NSWLR 315
- Dedakis v Deligiannis [2024] NSWSC 1018
- Musa v Alzreaiawi [2021] NSWCA 12
- Nguyen v Tran [2018] NSWCA 215
- Blatch v Archer (1774) 98 ER 969