Weiden v YZ (a pseudonym) & Anor (No 2)

[2023] VSCA 294

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Abuse of process
3. › Permanent stay of proceedings
4. › Child sexual abuse claims
5. › Removal of limitation period
6. › Whether passage of time, vagueness and inconsistencies in allegations, loss of medical records and loss of opportunity to explore surrounding circumstances constituted exceptional circumstances so trial would necessarily be unfair
7. › Limitation of Actions Act 1958 (Vic), ss 27O, 27P, 27R
1. Limitation of Actions
2. › Child sexual abuse
3. › Abolition of limitation period
4. › Effect on abuse of process applications
5. › Whether common and expected effects of effluxion of time sufficient to constitute exceptional circumstances
6. › Limitation of Actions Act 1958 (Vic), ss 27O, 27P, 27R
1. Appeal
2. › Standard of appellate review
3. › Appeal from order permanently staying proceedings as abuse of process
4. › Whether correctness standard applies rather than House v The King discretionary error standard

Quick Take

The Victorian Court of Appeal has confirmed that the GLJ framework applies to the Victorian Limitation of Actions Act 1958 provisions abolishing limitation periods for child sexual abuse claims. Inconsistencies in a complainant's accounts, vagueness in allegations (particularly regarding locations), loss of medical records, and lost opportunity to explore surrounding circumstances are all common and expected effects of the effluxion of time and do not, individually or collectively, constitute the exceptional circumstances required to justify a permanent stay. A defendant seeking a permanent stay on the basis of lost medical records must do more than make bare assertions of prejudice — the defendant should take steps to ascertain the specific impact of the missing records, including by having the plaintiff examined by the defendant's own expert.