Permanent stays in historical sexual abuse cases

The High Court of Australia delivered its decision on 1 November 2023 in the matter of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32.

History of permanent stays in historical sexual abuse cases

All the states and territories around Australia have passed legislation abolishing time limits for child sexual abuse claims. Some claims concern events decades ago. Defendants have argued – in particular where there has not been a criminal conviction and the alleged perpetrator has died – that there cannot be a fair trial. Accordingly, defendants have applied and have been granted stays on that basis. The High Court of Australia heard an appeal from the New South Wales Court of Appeal which ordered a permanent stay in June 2023.

Background

GLJ brought an action against the Roman Catholic Church for the Diocese of Lismore (the Diocese) arising out of sexual abuse by Father Anderson, one of its priests. The action was commenced 55 years after the abuse was said to have taken place. Father Anderson died in 1996. The Diocese applied for a permanent stay on the basis that (a) a complaint regarding GLJ’s abuse was not made until 2019; and (b) virtually all senior people who could have provided evidence had died.

At first instance, the court refused the application and said “Parliament has determined … that child abuse actions should be permitted to proceed despite the effluxion of even long periods of time and an inevitable resulting degree of impoverishment of evidence, provided a fair, not perfect, trial can be had”.

The New South Wales Court of Appeal set aside the first instance decision and ordered a permanent stay. The Court of Appeal’s decision centered around (a) the passing of Father Anderson; and (b) the Diocese’s inability to investigate the matter and take instructions because of the death of virtually all senior people from the Diocese. The Court of Appeal stated that the Diocese was “utterly in the dark”.

Father Anderson petitioned for laicization at which point he produced evidence on oath. In his petition, Father Anderson swore that he had not “associated romantically with any girl”. By the time the Diocese were considering the petition, it had already resolved a number of claims where claims of abuse were made against Father Anderson. The Diocese said those claims were substantiated.

The decision

In a 3–2 decision, the majority upheld the appeal and found:

• The order of a permanent stay is not discretionary.
• “An exercise of power under s.67 of the Civil Procedure Act to permanently stay proceedings on the ground that they are an abuse of process as any trial will be necessarily unfair or “so unfairly and unjustifiably oppressive” as to constitute an abuse of process is an evaluative but not a discretionary decision. Proceedings either are or are not capable of being the subject of a fair trial or are or are not so unfairly and unjustifiably oppressive as to constitute an abuse of process. In this case, the Diocese did not prove that there could be no fair trial (and did not contend otherwise that a trial would be so unfairly and unjustifiably oppressive so as to constitute an abuse of process.) Accordingly, the Diocese did not prove that the proceedings involved an abuse of process”.
• The mere passing of time, in of itself, is no longer a feature of the interests of justice relevant to the power to permanently stay proceedings and is considered ‘immaterial’.
• Parliament, in removing the limitation period necessarily contemplated that impoverishment of evidence is inevitable in historical abuse cases and that the injustice a plaintiff has suffered from child abuse trumps the potential injustice that may be caused to a defendant through the passage of time.
• A court is not bound to accept uncontradicted evidence.
• The Diocese was not ‘utterly in the dark’ and it already held evidence as to Father Anderson himself, the nature of his role and his likely interaction with GLJ.
• The Diocese had an opportunity to make enquiries of Father Anderson during the laicization process when other allegations had been put to him.
• Father Anderson’s death did not prevent the Diocese from satisfying itself that the other claims of abuse were true.

Key takeaways

• The death of a perpetrator, without something else, will unlikely constitute an abuse of process giving rise to grounds for a permanent stay.
• While it is likely courts will be less willing to grant permanent stays in historical abuse cases, a plaintiff is still required to prove their case at trial.
• Uncontradicted evidence is still open to attack for internal inconsistency, vagueness or where it is otherwise unconvincing.

Please contact Jonathan Wyatt or Luke Docker if you would like to discuss the issues arising out of this decision.

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