Publications

Case Summary: RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43

Published on November 20, 2024 by Julia Harrison and Isabella Mirjanoska

RC v The Salvation Army (Western Australia) Property Trust [1] is a High Court decision which was handed down on 13 November 2024.

Background

RC (the Applicant) commenced proceedings in the District Court of Western Australia against the Salvation Army (Western Australia) Property Trust (the Respondent) on 15 November 2018. The Applicant alleged that he was sexually abused by Lieutenant Frank Swift whilst he resided at Nedlands Boys’ Home between 1959 to 1960, at ages 12 and 13. He alleged that he reported the sexual abuse by Lieutenant Swift to Major Watson, the officer in charge of the Home, in 1960. The Applicant pleaded that the Respondent:

i.   had breached its non-delegable duty to exercise reasonable care for the safety of the Applicant[2];

ii.  had breached its statutory duty of care enshrined in the Child Welfare Act 1947 (WA)[3]; and

iii. was vicariously liable for the intentional torts inflicted upon the Applicant by Lieutenant Swift.[4]

The Respondent sought a permanent stay of the proceedings and submitted that a fair trial was not possible as:

i.   Lieutenant Swift died in 2006 and was therefore unable to be a witness[5];

ii.  Major Watson died in 1968 and was therefore unable to be a witness[6];

iii. there were no other officers present at the Home during the relevant time period who were able to provide any relevant information[7]; and

iv. there was no relevant documentary evidence relating to the report made by the Applicant to Major Watson in 1960.[8]

The primary judge, at first instance, granted the permanent stay. The Applicant appealed the primary judge’s decision to the Court of Appeal of the Supreme Court of Western Australia however this was dismissed.

Appeal to High Court of Australia

The Applicant then sought special leave to appeal from the High Court of Australia. The High Court was required to determine whether the Respondent had discharged its onus to obtain a stay of the proceedings. The High Court, by majority, held that the proceedings should not be stayed, granted special leave to appeal, and allowed the appeal. The High Court provided the following reasoning in support of its decision:

i.   The Respondent failed to demonstrate that it had lost Lieutenant Swift as a key witness in any trial. The High Court determined that no more than the possibility of a bare denial from Lieutenant Swift, had been lost by the Respondent.[9] Edelman J noted that Lieutenant Swift’s longstanding presence of Alzheimer’s Disease in the 17 years prior to his death, reduced the prospect that he would have been a key witness for the Respondent.[10]

ii.  The Respondent failed to demonstrate that it had lost Major Watson as a key witness in any trial. The High Court determined that no more than a denial of the presence of a report by the Applicant, had been lost by the Respondent.[11]

iii. The Respondent had access to information from potential witnesses during the trajectory of the legal proceedings including two officers who had been assigned to the Home during the relevant time period, and Lieutenant Swift’s wife, Doris Swift.[12]

iv. The Respondent failed to demonstrate that the absence of any documentary evidence relating to the report made by the Applicant to Major Watson was a relevant prejudice.[13]

You can read the full decision here.

Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.

---

[1] RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43.

[2] Ibid, [12] (Gageler CJ, Gordon, Jagot, and Beech-Jones JJ).

[3] Ibid, [12] (Gageler CJ, Gordon, Jagot, and Beech-Jones JJ).

[4] Ibid, [12] (Gageler CJ, Gordon, Jagot, and Beech-Jones JJ).

[5] Ibid, [25] (Gageler CJ, Gordon, Jagot, and Beech-Jones JJ).

[6] Ibid, [25] (Gageler CJ, Gordon, Jagot, and Beech-Jones JJ).

[7] Ibid, [25] (Gageler CJ, Gordon, Jagot, and Beech-Jones JJ).

[8] Ibid, [25] (Gageler CJ, Gordon, Jagot, and Beech-Jones JJ).

[9] Ibid, [27] (Gageler CJ, Gordon, Jagot, and Beech-Jones JJ).

[10] Ibid, [68] (Edelman J).

[11] Ibid, [28] (Gageler CJ, Gordon, Jagot, and Beech-Jones JJ).

[12] Ibid, [29] (Gageler CJ, Gordon, Jagot, and Beech-Jones JJ).

[13] Ibid, [28] (Gageler CJ, Gordon, Jagot, and Beech-Jones JJ).