Permanent Stay of Historical Child Sexual Abuse Proceedings: GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32

Civil trials can be complex and challenging, especially when key witnesses or evidence are unavailable due to the passage of time. However, upholding the principle of a fair trial is paramount in the legal system. By majority, the High Court of Australia recently allowed an appeal, overturning a decision in the NSW Court of Appeal to permanently stay proceedings arising out of a claim for historical child sexual abuse.

Background 

GLJ (the Plaintiff), commenced proceedings in the Supreme Court of NSW in January 2020 against the Trustees of the Roman Catholic Church for the Diocese of Lismore (Diocese). The Statement of Claim seeks damages for personal injury arising out of allegations that the Plaintiff was subjected to sexual assault by Father Anderson, a priest in the Diocese of Lismore, in 1968. The Plaintiff first came forward with the allegations after the death of Father Anderson in 1996.

The Diocese applied for a permanent stay on the basis that it was unable to receive a fair trial in circumstances where Father Anderson died and there were no other witnesses bearing upon whether the assault occurred and that 55 years had passed since the alleged abuse. 

Supreme Court Decision (Campbell J)

The Diocese first filed an application seeking a permanent stay of the proceedings. This application was refused by Campbell J (First Instance Decision). 

Campbell J stated that a fair trial does not need to be a perfect one, particularly in cases of child sexual abuse. His Honour found that there was enough evidence to challenge the Plaintiff's claims, including uncertainties about crucial dates, the opportunity for abuse, and the relevance of tendency evidence. Campbell J noted that there was adequate objective evidence to question the credibility of Father Anderson.

Court of Appeal Decision (Mitchelmore JA, Macfarlan JA, Brereton JA)

The Diocese filed an appeal in response to the First Instance Decision. In allowing the appeal, the Court acknowledged that the evidence arguably indicated Father Anderson's sexual interest in boys. Nevertheless, the Court was not convinced that this evidence outweighed the prejudice to the Diocese.

Mitchelmore JA considered the primary judge erred in assessing the impact of Father Anderson's death on the trial's fairness. She noted the significant forensic disadvantage brought by the lapse of time and Father Anderson’s death, prior to an account being put to him so that his credibility could be evaluated. 

Mitchelmore JA stated that without Father Anderson, a critical witness, the case relied entirely on the acceptance of the Plaintiff's account.

High Court Decision (Kiefel CJ, Gageler and Jagot JJ) 

The Plaintiff filed a special leave application in respect of the Court of Appeal Decision. The High Court, by majority (Kiefel CJ, Gageler and Jagot JJ; Steward and Gleeson JJ dissenting), allowed the appeal, finding that the Court of Appeal erred in its conclusion that there could be no fair trial, taking into account the following considerations: 

1. An order for a permanent stay is a last resort measure, only to be exercised in exceptional circumstances. The Court emphasised the significance of the adversarial system within the Australian legal framework, where parties present evidence and arguments to establish their cases. 
2. The Court acknowledged a significant change in the legal landscape due to the abolition of the limitation period for such cases. The removal of the limitation period created a new context for evaluating the abuse of process claim. With the removal of limitation periods for child sexual abuse claims, the passing of time alone can no longer be considered a basis for invoking the abuse of process doctrine. The mere effluxion of time, without other substantial reasons, should not be used to deny survivors their right to have their cases heard.
3. As a consequence of the legislative changes, the abuse of process doctrine faces a unique challenge in child sexual abuse claims. In the absence of a limitation period, Courts must consider the common and expected effects of the passing of time as part of the new normative structure created by the legislation.
4. The passing of time and the inevitable loss of evidence that it entails should not automatically trigger the exceptional circumstances required to justify a Court's refusal to exercise jurisdiction. Such an interpretation would undermine the legislative intent and the aim of providing justice to survivors.
5. While challenges exist in adapting the abuse of process doctrine to this new legal context, it is essential to protect the rights of survivors and ensure that they have the opportunity to have their cases heard. The passing of time alone should not be a barrier to seeking justice, and the legal system must adapt to this new normative structure.
6. Cases involving allegations of child abuse in private, domestic settings are likely to differ from those in institutional contexts. In institutional cases, there is a higher likelihood of existing documentary records and evidence related to the circumstances. Institutional settings may also hold more tendency evidence or become aware of other claims against the alleged perpetrator much earlier than individual complainants. While the fairness of a trial and the potential for it to constitute an abuse of process depend on the specific facts of each case, the context in which the alleged child abuse occurred, whether domestic and private or institutional, is likely to be relevant to these considerations.

Applying these considerations, the High Court noted that even though the Plaintiff's allegations were not directly presented to Father Anderson, there was evidence suggesting he would have denied the allegations, as he had denied any “romantic interest” in girls while under oath in 1971. Therefore, his significance in the case was purely speculative. 

Further, Father Anderson’s death did not hinder the Diocese from later substantiating the sexual abuse complaints against him during his time as a priest. 

Additionally, there was a substantial body of documentary evidence available, including the notes of a psychiatrist who treated Father Anderson, which could be relevant to the proceedings.

Lastly, the Court acknowledged that while the Diocese cannot determine Father Anderson's response to the specific allegation of sexually assaulting the Plaintiff, evidence exists regarding his response to other allegations of abusing young boys that were presented to him before and during his laicisation. Father Anderson consistently refused to answer such questions and engage in discussions about the "problem of priestly life and work." 

Conclusion 

This decision offers clarity on the standards that defendant institutions must meet for an application for a permanent stay to succeed. It establishes that the unavailability or death of a perpetrator will not be sufficient grounds for a permanent stay, especially when there is evidence of prior knowledge or a tendency for abuse, as well as the expected response from the alleged perpetrator.

Moreover, a Court is likely to draw unfavorable inferences against the institution if investigations into the suspected conduct were inadequate and/or if there is evidence of monetary settlements for claims occurring after the perpetrator's death.

Practically, when allegations first arise, institutions should conduct investigations, assess the availability of evidence, and consider taking statements early on to minimise potential prejudice resulting from delays in bringing a claim.

As put by the High Court: