A whole new world - High Court rules on permanent stay applications in historical institutional abuse proceedings
Following the final report of the Royal Commission into Institutional Responses to Child Sexual Abuse in December 2017, all states and territories across Australia amended their legislation to allow legal action for damages relating to the death or personal injury of a survivor of child sexual abuse, regardless of when the abuse occurred.
In New South Wales, section 6A of the Limitation Act 1969 (NSW) was introduced. It reads:
(1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act.
Subsection 6A(6) of the Limitation Act states that this section does not limit:
(a) Any inherent jurisdiction, implied jurisdiction, or statutory jurisdiction of a court, or
(b) Any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.
Section 6A further states that “this 12 section does not limit a court’s power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.”
Under section 67 of the Civil Procedure Act 2005 (NSW) the court may make orders to stay any proceedings before it, either permanently or for a specified period.
Under section 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) the court may order proceedings to be dismissed if it appears they are an abuse of process of the court.
There has been a noticeable increase recently in the number of defendants seeking a permanent stay of applications on the grounds that the length of time since the alleged abuse makes a fair trial no longer possible.
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
Procedural history
In 2020, the plaintiff, known as GLJ, commenced proceedings against the Roman Catholic Church for the Diocese of Lismore in the Supreme Court of New South Wales. The proceedings related to a claim for damages for personal injury which GLJ alleged resulted from a priest of the church, Father Anderson, sexually assaulting her in 1968 when she was 14 years old.
Later in 2020, the church filed an application seeking a permanent stay of proceedings under section 67 of the Civil Procedure Act 2005 (NSW) on the grounds that “virtually all of the relevant senior persons who could have provided instructions and given evidence in the current proceedings [including Father Anderson] ha[d] since died” (GLJ v Trustees of Roman Catholic Church for Diocese of Lismore [2021] NSWSC 1204 (First Decision), [30]).
In 2021, the primary judge dismissed the application on the basis that the church had not “discharged the onus of demonstrating on the balance of probabilities that the continuance of the proceedings would be unjustifiably oppressive to the defendant or bring the administration of justice into disrepute in a sense that a fair, albeit not perfect, trial can no longer be had” (First Decision, [41]).
In 2022, the Court of Appeal allowed the appeal and permanently stayed the proceedings on the basis that, by reason of Father Anderson’s death, the church did not have a “meaningful opportunity” to engage with GLJ’s accusations and evidentiary material. It was concluded that there was “nothing a trial judge could do in the conduct of the trial to relieve against its unfair consequences” (Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 (Second Decision), [122]).
The plaintiff then sought leave to appeal to the High Court of Australia.
The High Court decision
The High Court found that the decision of whether or not to grant a permanent stay of proceedings on the grounds of an abuse or process was not a discretionary one. Kiefel CJ, Gageler and Jagot JJ stated “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” (GLJ, [15]).
In applying this “correctness standard”, the High Court found (in a 3:2) majority that the appeal should be granted, that the church did not satisfactorily prove that there could be no fair trial, and that the church therefore did not prove that the proceedings involved an abuse of process.
Principles of Moubarak
All judges agreed that the reasons considered in the decision of Moubarak (by his tutor Coorey) v Holt (2019) 100 NSWLR 218 (Moubarak) applied to considerations of a permanent stay of proceedings. The reasons were:
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The complainant had never confronted the defendant with the allegation of sexual assault before the onset of the defendant’s dementia.
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The defendant had advanced dementia prior to the report of the alleged assaults to the police.
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The defendant had advanced dementia at the commencement of proceedings.
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There were no eyewitnesses to the alleged assaults.
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Because of his dementia, the defendant could not give instructions.
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Because of his dementia, the defendant would have been also “utterly unable” to give evidence in the proceedings.
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Because of his dementia, the defendant would have been unable to give instructions "during the course of the trial."
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The events took place 45 years ago and “other potentially relevant witnesses are now dead or unavailable.”
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There was no credible suggestion that some documentary evidence may be in existence that would bear upon the likelihood or otherwise of the alleged sexual assaults having occurred.
Kiefel CJ, Gageler and Jagot JJ noted that in Moubarak, the defendant was the alleged perpetrator of the abuse. In GLJ and other historical institutional abuse cases, the alleged perpetrator of the abuse is generally not listed as a defendant. The alleged perpetrator is therefore not required to give instructions in relation to the proceedings.
The judges also noted that unlike in Moubarak, the church had been on notice of Father Anderson’s alleged pattern of sexually abusing boys well before his death and had had an opportunity to “fully inform itself about the extent of Father Anderson’s alleged crimes any time before his death” (GLJ, [79]).
Public interest considerations
Kiefel CJ, Gageler and Jagot JJ placed great significance on the legislative intent of removing the limitation period for survivors of child sexual abuse. The judges stated “Parliament acted to ensure that people within that class may commence proceedings at any time. Parliament thereby imposed its own normative requirements on proceedings within this class. Judicial fidelity to this new normative structure is required.” (GLJ, [40]).
The judges found this introduced a “relevant framework of contemporary values”, which meant the public’s confidence in justice for persons claiming child abuse outweighed any prejudice and injustice that might be caused to institutions from the delay in bringing proceedings.
The judges concluded that the “mere effluxion of time and the inevitable impoverishment of the evidence which the passing of time engenders” could not on its own be considered an “exceptional circumstance” worthy of a permanent stay.
Factual considerations
A majority of the judges found that the orders granting a permanent stay of proceedings should be set aside for the following reasons:
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Father Anderson was a not a defendant to the proceedings.
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While the allegations were not put to Father Anderson, there was sufficient evidence from which the church could reasonably infer he would have denied the allegations (i.e. he would have denied on oath having any “romantic interest” in girls during his laicisation process in 1971).
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It could be reasonably inferred from the documentary evidence of Father Anderson denying allegations of sexual abuse while he was alive, that he would have denied the allegations of GLJ.
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The laicisation process gave the church the opportunity to make further inquiries about Father Anderson having sexually abused children, including GLJ.
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The death of Father Anderson in 1996 did not prevent the church from “finding to its own satisfaction that complaints of sexual abuse by him while a priest had been substantiated and should be the subject of the payment of monetary compensation” (GLJ, [80]).
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There was a “considerable body of documentary evidence” available to the church.
Had the factual matrix of the case been different, the High Court may have reached a different decision regarding a permanent stay of proceedings. “during the course of the trial.”
Implications
The High Court decision clearly raises the bar for the exceptional circumstances in which an application for a permanent stay should be granted in historical abuse cases.
Some factors which clearly remain relevant, however, are the passage of time, and whether the proceedings would be vexatious or oppressive in those circumstances. Where the institution has no relevant guidelines or policies, and where there is no institutional memory regarding the employment of the alleged perpetrator, a permanent stay application may still succeed.
Case law has not yet addressed whether a permanent stay of proceedings should be granted where the perpetrator is not identified. It remains to be seen how the court will address this issue.
Where a government agency, or an institution operated by a government agency, is named as the defendant in an historical abuse claim, it will not only be important for the agency to consider the guidance provided by the High Court, but also its model litigant obligations in deciding whether to pursue a permanent stay application.
Authors: Lian Chami, Gilbert Olzomer & Kate Ralph