GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
Background
Father Anderson was a priest in the Diocese of Lismore between 1963 and 1970 and was appointed to the Parish of Lismore for a period in around 1968.
GLJ was born in Lismore in 1954 from Catholic parents who attended mass every Sunday at St Carthage’s Cathedral within the Parish of Lismore. In around 1968, GLJ’s father was involved in a motorcycle accident and Father Anderson was allocated as a support priest for GLJ’s family and visited them regularly.
GLJ alleged that in 1968, when she was 14 years old, Father Anderson sexually assaulted during one of his visits. The abuse occurred in her bedroom after she returned home from netball and was in the process of getting changed while there was no one else at home. GLJ did not report the abuse to the Diocese or any other authority.
Father Anderson died in 1996.
On 31 January 2020, GLJ commenced proceedings against The Trustees of the Roman Catholic Church for the Diocese of Lismore pleading negligence and vicarious liability for the alleged abuse by the priest.
On 17 November 2020, the Diocese filed a notice of motion seeking a permanent stay of the proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW), or in the alternative, for the proceedings to be dismissed pursuant to rule 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW). The Diocese of Lismore argued that it had no chance of receiving a fair trial on the basis that it had no means to verifying GLJ’s allegations of abuse. Further, at the time of his death, neither Father Anderson nor the Diocese were on notice of GLJ’s allegation of sexual assault.
On 24 September 2021, Justice Campbell refused to grant a permanent stay, and his Honour dismissed the motion. The Diocese subsequently appealed to the NSW Court of Appeal.
On 1 June 2022, the NSW Court of Appeal granted a permanent stay of proceedings. The Court of Appeal focused on the specific allegations by GLJ, and the Diocese’s Trust’s inability to deal and verify GLJ’s allegations by the significant disadvantage brought by the death of Father Anderson in 1996 and the absence of potential witnesses. GLJ subsequently appealed to the High Court.
On 8 June 2023, the High Court of Australia heard the appeal of the NSW Court of Appeal decision.
The decision
In a majority decision, Gageler J, Gleeson J and Jagot J allowed the plaintiff’s appeal, finding that it was incorrect for the Court of Appeal to conclude that there could be no fair trial of the proceedings. The High Court made the following observations:
- A mere risk that a trial might be unfair is insufficient to warrant a stay of proceedings.
- “The passing of time alone enlivens the inherent power or any statutory power of a court to prevent an abuse of its process”[1]. Therefore, in the face of s6A of Limitation Act 2005 the mere passing of time is no longer a potential aspect of the interests of justice relevant to exercising power to permanently stay proceedings for death or personal injury resulting from child abuse.
- Missing witnesses or evidence do not automatically make a civil trial unfair. “As Bell P observed in Moubarak by his tutor Coorey Holt and Connellan[2], the absence of a witness or witnesses who may be regarded by a party as important, whether through death, illness, loss of memory or inaccessibility…. will not mean that a fair trial cannot be obtained”.[3]
- In circumstances where child abuse is alleged to have occurred in an institution, it is more likely for tendency evidence to be gathered and produced, given the opportunities for a perpetrator to access large numbers of children thereby placing the institution on notice of other claims against the perpetrator at a much earlier stage. Critically, the Court outlined this distinction by highlighting the outcome of the case of Moubarak by his tutor Coorey Holt and Connellan v Murphy where the abuse occurred in a domestic setting and stays of proceedings were granted as there was no forewarning of any kind and, given the private and domestic setting of the claim, there was no relevant documentary evidence available.[4]
[1] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore HC [2023], p.24
[2] Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 2018.
[3] Ibid 1, p.29.
[4] Ibid 2, p.34.
Implications for you
This decision abates the argument that in the absence of a perpetrator, a defendant is left with an unfair trial, predominantly if it can be shown that there is existing tendency evidence directed to prior knowledge of a tendency for abuse of a particular perpetrator.
Further, this decision confirms that a permanent stay of proceedings remains a remedy to be used in exceptional circumstances.
[1] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore HC [2023], p.24
[1] Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 2018.
[1] Ibid 1, p.29.
[1] Ibid 2, p.34.