Introduction
On 1 November 2023, the High Court of Australia delivered its judgment in the matter of
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32.
The majority of the Court allowed GLJ’s appeal stating that the Court of Appeal was wrong to conclude that there could be no fair trial of the proceedings nor that the proceedings involved an abuse of process. Accordingly, it was held that the proceedings should not have been the subject of an order for a permanent stay and the appeal was dismissed.
Key Points
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The High Court determined that permanent stays should be granted only as a last resort and in “exceptional circumstances”.
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A qualitative assessment of the effects of the passage of time needs to be performed on a case-by-case basis.
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The mere passing of time and unavailability of witnesses is not sufficient to warrant a stay in proceedings, particularly in circumstances where documentary circumstantial evidence is available to the defendant, where the Government has removed the limitation provisions in child abuse matters.
GLJ alleges that in 1968 when she was 14 years old, a Catholic priest, Father Anderson, was directed by the Diocese to attend her family home to provide pastoral guidance after her father was injured in a motorcycle accident. During that time, GLJ alleges Father Anderson sexually abused her and as a result, she suffers from psychiatric injuries.
On 31 January 2020, GLJ commenced proceedings in the Supreme Court of NSW against the Diocese for damages arising from the sexual abuse. GLJ asserted that the Diocese had breached its duty of care owed to her, and was vicariously liable for Father Anderson’s conduct. On 17 November 2020, the Diocese filed a notice of motion seeking that the proceedings be permanently stayed on the basis that there could not be a fair trial in circumstances where virtually all senior persons who could have provided instructions and given evidence in the proceedings (including Father Anderson) had died.
At first instance, the primary judge dismissed the Diocese’s notice of motion, however the NSW Court of Appeal allowed the Diocese’s appeal, re-exercising the power to grant a permanent stay as it was held that no fair trial could be held.
GLJ was subsequently granted special leave to appeal to the High Court.
High Court Judgment
The High Court held that before granting a permanent stay of proceedings consideration must be given to whether the trial will be “necessarily so unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process…”. Answering this question is based on the evaluative “corrective standard” and not on a discretionary basis – proceedings either are or are not capable of being the subject of a fair trial, with this not being the subject of judicial discretion. Even if a trial will involve unfairness or oppression to a defendant, it does not necessarily flow that a fair trial cannot be held.
The Court reiterates that stays should only be granted as a last resort and in exceptional cases. Following the removal of the limitation period for claims relating to child abuse, the consequence of which was Parliament imposing new normative requirements on such proceedings. The mere fact that a significant amount of time has passed and there being an “inevitable impoverishment” of evidence cannot be seen as an “exceptional” circumstance to warrant a stay. Rather, the qualitative effects of the passage of time on the proceedings should be considered in deciding whether or not a stay should be granted.
In allowing GLJ’s appeal, the High Court held that the Diocese’s loss of opportunity to put the specific facts of this case to Father Anderson did not render a trial of GLJ’s claim unfair. The Court observed that the Diocese was not “utterly in the dark” about the central issue of whether Father Anderson sexually assaulted GLJ due to the circumstantial documentary evidence available, noting that abuse in an institutional context is more likely to result in there being documentary evidence available despite the passing of time. This included evidence relating to the parishes Father Anderson was attached to, the timeline of his attachment, the nature of the work he performed, the complaints of him sexually abusing young boys prior to 1968 and his responses to such allegations before his laicisation.
The Court found the fact that Father Anderson is unavailable to respond to GLJ’s allegations is insignificant in circumstances where the Diocese was aware of and had acted on the fact that he had sexually abused boys prior to becoming aware of the abuse alleged by GLJ. The Court noted that the Diocese had years before Father Anderson’s death to fully inform itself about the extent of his alleged crimes, noting that it did make enquiries, and while under oath in 1971, Father Anderson refused to answer in respect of alleged “sexual abnormalities” and denied any romantic interest in girls. It could be reasonably inferred from his responses that, if alive, Father Anderson would have also denied GLJ’s allegations.
The Court observed there is nothing lost from Father Anderson’s death but the opportunity to ask him if he sexually abused GLJ and the possibility of calling him as a witness if the claim proceeded to trial or to settle the claim. However, the loss of such opportunities does not make a trial of GLJ’s claims unfair.
Conclusion
The High Court’s decision reinforces the necessity of “exceptional circumstances” before a permanent stay should be granted. This requires an analysis of the facts of each case. The Court emphasised that consideration must be given to the qualitative effects of the passage of time and not just the mere passing of it, particularly in circumstances where documentary circumstantial evidence is available to the defendant.
Article written by Hicksons’ Special Counsel, Danielle Downer, and Solicitor, Demi To.