Gorman v McKnight [2020] NSWCA 20

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gorman v McKnight [2020] NSWCA 20 Hearing dates: 25 October 2019 Date of orders: 19 February 2020 Decision date: 19 February 2020 Before: Bell P at [1]; Payne JA at [91]; Emmett AJA at [97] Decision: 1. Grant leave to appeal.

2. Dismiss the appeal with costs. Catchwords: APPEAL – whether permanent stay of proceedings should be granted – civil claims arising from alleged sexual assaults up to 40 years ago – where alleged perpetrator dead but had been charged with regard to some of the underlying complaints prior to his death – where perpetrator had admitted some of the acts but asserted that they were consensual – where each of the plaintiffs was a minor at the time of the alleged assaults

CIVIL PROCEDURE – historic sexual assault – claim against Estate – where alleged perpetrator dead

TORTS – sexual assault – alleged consent – where plaintiffs were minors at the time of alleged consent – whether consent by a minor is a defence to a civil claim for damages for sexual assault Legislation Cited: Crimes (Amendment) Act 1984 (NSW) Crimes Act 1900 (NSW) s 81 Crimes Amendment (Sexual Offences) Act 2003 (NSW) Civil Procedure Act 2005 (NSW) s 67 Limitation Act 1969 (NSW) s 6A(6) Cases Cited: Bain v Altoft [1967] Qd R 32 Council of Trinity Grammar School v Anderson [2019] NSWCA 292 Dean v Phung [2012] NSWCA 223 Freeman v Home Office (No 2) [1984] QB 524 House v R (1936) 55 CLR 499; [1936] HCA 40 Moon v Whitehead [2015] ACTCA 17 Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 Norberg v Wynrib [1992] 2 SCR 226 R v Howard [1966] 1 WLR 13 Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218; [1992] HCA 15 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776 White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 ZYX (pseudonym initials) v JD (pseudonym initials) [2019] WADC 164 Texts Cited: SKN Blay, "Onus of Proof of Consent in an Action for Trespass to the Person" (1987) 61 ALJ 25 J Goudkamp, Tort Law Defences (Hart Publishing, 2016) W Page Keeton et al (eds), Prosser and Keeton on Torts (5th ed, West Publishing Co, 1984) Category: Principal judgment Parties: Trevor Athol Gorman (First Appellant) Ian Alexander Duncan (Second Appellant) Christopher John McKnight (First Respondent) Craig Andrew Channell (Second Respondent) Aaron Gammage (Third Respondent) Representation: Counsel: M Neil QC with M Kalyk (Appellants) N Newton with J Horowitz (First Respondent) Submitting appearance (Second Respondent) D Weinberger (Third Respondent)