High Court grants leave to appeal child sexual abuse decision
Trigger warning – this article refers to child abuse.
GLJ commenced a claim against The Trustees of the Roman Catholic Church of the Diocese of Lismore (‘the Diocese’), claiming damages for psychiatric injuries suffered as a result of sexual abuse. The alleged perpetrator of the sexual abuse, a priest of the Diocese, had died in 1996. The Diocese only had knowledge of the abuse in 2019.
At first instance, the Diocese’s application for a permanent stay was refused. The Diocese appealed to the New South Wales Court of Appeal.
In 2022, the New South Wales Court of Appeal granted a permanent stay of the proceedings Diocese, the Court concluding that the continuation of the matter would amount to an abuse of process as the Church was ‘utterly in the dark’ and a fair trial could not be held.
In 2023, GLJ took their case to the High Court of Australia seeking leave to appeal the decision granting a stay of the proceedings. The High Court granted the appeal, overturning the decision of the New South Wales Court of Appeal.
The majority concluded that it was wrong to find that there could be no fair trial. As GLJ was successful with the appeal, GLJ is entitled to proceed with their personal injury damages claim for childhood sexual abuse.
You can read the High Court decision here: GLJ v the Trustees of the Roman Catholic Church for the Diocese of Lismore  HCA 32 (‘GLJ v the Diocese’).
This is a significant victory for abuse survivors in Australia because it saw the first opportunity for the High Court of Australia (‘the High Court’) to consider the “new legal context” resulting from recommendations arising out of the Royal Commission into Institutional Responses to Child Sexual Abuse (‘the Royal Commission’). In particular, the removal of the limitation periods (time limits) for personal injury damages claims arising from childhood sexual abuse was highly relevant in this case.
What is a stay of proceedings?
A stay of proceedings refers to a Court’s discretionary power to halt Court proceedings either temporarily or permanently.
A court has the power to order a permanent stay of proceedings if it is determined that a trial will be unnecessarily unfair or oppressively unfair to one party and that it is considered an abuse of process.
If you would like to learn more regarding a permanent stay of proceedings and how it operates in childhood sexual abuse cases, you can read our earlier article. ‘Child abuse claims – can they be thrown out of court?’
The significance of the Royal Commission and the removal of the statute of limitations
In December 2017, the Royal Commission handed down its Final Report which detailed numerous recommendations which aim to protect and improve the safety of children who reside or interact in educational, recreational, reporting, cultural or religious institutions.
One significant finding of the Royal Commission was that survivors of childhood sexual abuse take, on average, 22 years to disclose the abuse they have suffered. Limitation periods (time limits) caused a significant barrier to survivors if they pursued compensation for injuries suffered as a result of childhood abuse.
All Australian jurisdictions (all states and territories) removed the limitation period for survivors of childhood sexual abuse. This was an important step towards addressing decades of injustice and indifference shown to victims, however, the provisions do not limit a Court’s power to dismiss or permanently stay proceedings where a fair trial is not possible.
The High Court decision offers guidance on the matters to be considered in an application for a permanent stay establishing that the death of a perpetrator or witness will not on its own be sufficient for a permanent stay to be granted where evidence of tendency or prior knowledge exists.
Importantly, the High Court emphasised that a permanent stay is a last resort measure that should only be granted in exceptional circumstances.
The facts in the GLJ v the Diocese child sexual abuse case
- The appellant (‘GLJ’) alleges that in 1968, a Catholic priest, Father Anderson, was directed by the Diocese of Lismore to attend GLJ’s family home as a support priest following her father being seriously injured in a motorcycle accident.
- The appellant was 14 years old at the time.
- GLJ alleges that, on one of Father Anderson’s visits to her family home, he sexually assaulted her.
- In January 2020, GLJ commenced legal proceedings seeking damages against the Diocese.
- GLJ claimed that the Diocese breached its duty of care owed to protect her from the foreseeable risk of harm of sexual abuse by Father Anderson, as well as the Diocese being vicariously liable for the alleged sexual abuse by Father Anderson.
- In November 2020, the Diocese filed a notice of motion seeking a permanent stay of the proceeding, claiming that a fair trial could not be held because:
- the Diocese was not made aware of GLJ’s allegations until 2019; and
- all material witnesses who could have provided instructions or given evidence on critical issues in the proceedings, including Father Anderson, had died.
History of the case
Original hearing – Supreme Court of NSW
In 2021, the primary judge in the Supreme Court of New South Wales, Campbell J, refused to grant the permanent stay of proceedings. Campbell J provided many reasons for this decision, including:
- a fair trial need not be a perfect trial;
- of its nature, child sexual abuse occurs in private, and therefore eyewitness evidence is rarely available;
- the Diocese’s submission indicated that it held documentary evidence which could contradict GLJ’s claim; and
- that, regarding section 6A of the Limitation Act 1969 (NSW), the Parliament intended for child abuse claims to be allowed to proceed despite long passages of time inevitably resulting in the loss of evidence, provided a fair trial can be held.
Catholic Church appeals to the NSW Court of Appeal
The Diocese appealed to the New South Wales Court of Appeal on the ground that the primary judge (Campbell J) erred in failing to use his discretion to permanently stay the proceedings.
The Court of Appeal found that the primary judge was incorrect in concluding that a fair trial was possible. The Court of Appeal held that because Father Anderson had died before GLJ’s allegations could be put to him, the Diocese was “utterly in the dark” on the central issue as to whether the sexual abuse occurred. Therefore, the Court of Appeal set aside Campbell J’s orders and granted a permanent stay of the proceedings.
GLJ applied for special leave to the High Court to appeal the decision of the Court of Appeal.
High Court decision
By a 3-2 majority, Kiefel CJ, Gageler and Jagot JJ, with Steward and Gleeson JJ dissenting, the High Court allowed the appeal. The majority held that the Court of Appeal erred in its conclusion that GLJ’s proceedings would result in an unfair trial.
The majority held that because the limitation period was removed for claims for damages for personal injury resulting from child sexual abuse, it can no longer be held that the passing of time alone justifies a Court’s power to permanently stay the proceedings. The majority held that a permanent stay of proceedings was a last-resort measure, which could only be exercised in exceptional circumstances.
Having regard to the “new legal context”, that is, the removal of limitation periods for child sexual abuse claims, the High Court concluded that Parliament intended to protect the rights of survivors to have their cases heard, and the passing of time in itself can no longer be the basis (on its own) for the Court exercising its power to stay proceedings.
The High Court acknowledged that the passing of time, even long periods of time, will create challenges, for example, the fading or loss of memories and evidence, and the death of witnesses, however, such challenges were not necessarily to be considered exceptional. At a trial, a claimant must still prove their case.
The majority held that the death of Father Anderson and the loss of opportunity for the Diocese to investigate GLJ’s claims would not result in an unfair trial. There was evidence that, before the alleged sexual abuse of GLJ occurred, the Diocese was aware of other sexual abuse allegations made against Father Anderson by four boys.
The majority held that while the GLJ’s specific allegations were not put to Father Anderson, the Diocese did have ample opportunity to investigate claims of him committing child sexual abuse before his death. Therefore, the majority of the High Court concluded that the death of Father Anderson did not enliven its power to stay the proceedings.
Getting help from an abuse lawyer
The complexities of abuse compensation claims can often be a barrier to survivors pursuing damages for the pain and suffering they experienced due to their abuse. Our abuse law team is always cognisant of the added difficulties many survivors experience in deciding to seek compensation.
At Hall Payne, we use a trauma-informed approach to work with you through this difficult journey. We listen carefully to your story and help you understand your options, and we can also work with your support network, including family, health professionals and counsellors, to ensure you are supported at all times.
Contacting Hall Payne Lawyers
You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.
This article relates to Australian law; either at a State or Federal level.
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.