Alleged historic sexual assault victims allowed to bring claim against the estate of the alleged perpetrator

Estate Judd v McKnight; Gammage v Estate Judd, Channell v Estate Judd; McKnight v Estate Judd (No.2) [2018] NSWSC 462 is a significant decision for claimants seeking damages for sexual abuse against a defendant who is deceased. 

In the decision, Garling J refused an application for a permanent stay under section 6A of the Limitation Act 1969 on the basis that the lapse of time (25-40 years) meant that a fair trial was not possible.  The application was brought by the estate of the deceased.

The potential defendant died in May 2016 and after his death, three civil claims for damages were commenced against the deceased’s estate. 

Prior to the defendant’s death, he was arrested and charged, the police brief had been served and there were lawfully intercepted telephone conversations between the deceased and the first claimant recorded in 2015, suggestive of guilt.

Garling J refused the application for a permanent stay as there were avenues of enquiry which remained available to defend that matter.  Garling J was not satisfied that a hearing of the proceedings would be manifestly unfair to the estate or would otherwise bring the administration of justice into disrepute amongst right thinking people [118].

Bernard McAuley, Solicitor
McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826

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