The High Court of Australia has allowed a historical child sex abuse case against the Catholic Church to proceed after it had previously been permanently stayed by the New South Wales Court of Appeal.
The appellant, known as GLJ, is suing the Trustees of the Roman Catholic Church of the Diocese of Lismore (Diocese) claiming she was sexually abused by the now deceased Father Anderson in 1968 when she was aged 14.
In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore  HCA 32, the High Court held, by a 3:2 majority decision, the Court of Appeal was wrong to conclude there could be no fair trial of the case and the proceedings should have been the subject of an order for a permanent stay.
On the face of it, the decision means Defendants to claims of historical sexual abuse will find it harder to successfully apply for a stay in proceedings.
However, to some extent the implications are uncertain because the decision was close (3:2 majority judgment), the composition of the Court has since changed with the retirement of Chief Justice Kiefel, the Court has granted leave to consider similar issues raised in another case, and the judgment relied on facts that may be distinguishable.
GLJ sued the Trustees of the Roman Catholic Church for the Diocese of Lismore in the NSW Supreme Court as a result of being sexually abused by the then Father Anderson, a priest incardinated in the Diocese of Lismore.
GLJ alleged that in 1968, when she was 14 years old, her father was seriously injured in a motorcycle accident, following which the Diocese directed a then Catholic priest, Father Anderson to attend her family home to provide pastoral support at which time Father Anderson sexually abused her.
In its Defence, the Diocese admitted, by its servants and agents, it was responsible for and had the care, management and control of Catholic churches in the Diocese and that the then Father Anderson was a priest in the Roman Catholic Church, incardinated in the Diocese.
However, the Diocese did not admit any of the allegations concerning GLJ and her family, that the then Father Anderson sexually abused GLJ or the breach of a duty of care it owed to GLJ.
The Diocese filed a Notice of Motion seeking orders the proceedings be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) or dismissed pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW).
The Diocese's Notice of Motion was supported by the following arguments:
The Diocese submitted, in the circumstances, there could not be a fair trial.
The Primary Judge dismissed the Diocese's Notice of Motion and ruled:
Court of Appeal
The Diocese appealed on the ground the primary judge erred in principle and misapplied his discretion in failing to permanently stay the proceedings.
The Court of Appeal identified an error of principle in the reasoning of the primary judge and decided a stay should be granted as no fair trial could be held given:
The Court of Appeal set aside the primary judge's orders and ordered the proceedings be permanently stayed.
Grounds of High Court appeal
GLJ applied for and was granted special leave to appeal to the High Court on the ground the Court of Appeal erred in permanently staying the proceedings on the basis a fair trial could no longer be had such that the proceedings were an abuse of process.
The High Court considered two issues:
Appeal hearing – background commentary
The removal of any limitation period for the commencement of proceedings for death or injury resulting from child abuse involves a fundamental change to the legal context in which the power in s 67 of the Civil Procedure Act (and equivalent inherent jurisdiction of a Court) is to be exercised.
Despite the removal of the limitation period, 'if the conduct of a party involves oppression of another party, including by delaying the commencement of proceedings to vindicate their rights', the Court retains the power to grant a stay to prevent such oppression.
However, the removal of the limitation period brought about by s 6A of the Limitation Act means the passing of time alone no longer enlivens the inherent power or any statutory power of a Court to prevent an abuse of its process.
In essence, 'the mere passing of time, in and of itself, is no longer a potential aspect of the interests of justice relevant to the exercise of the power to permanently stay proceedings for damages' in child abuse claims.
Moreover, the removal of the limitation period in child abuse claims, evidences Parliament's acknowledgment there is 'likely to be long delay in the bringing of such claims before the Courts'.
In summary, it is now for the Court's 'to evaluate contentions of abuse of process within this new normative structure'.
Diocese appeal submissions
The Diocese acknowledge the only forensic disadvantage upon which it could rely to justify its contention no fair trial could be held was the death of Mr Anderson for the reason that:
Judgment – Chief Justice Kiefel & Justice Gageler / Jagot [majority]
The Diocese was aware of:
The Diocese also had ample material to support the submission Mr Anderson had a sexual interest in boys.
The Diocese had years before Mr Anderson's death in 1996 to investigate and make enquiries in the face of Mr Anderson's alleged crimes and laicisation in 1971.
Moreover, the High Court recognised that the Diocese 'made those very inquiries as part of his laicisation', at which time 'Father Anderson refused to answer in respect of "sexual abnormalities" (which it might be inferred referred to a sexual interest in boys) and to deny any "romantic" interest in girls'.
The High Court also noted, as did the primary judge, the Diocese had evidence available to it to enable it to make submissions about:
The High Court also noted Mr Anderson's prior refusal to answer such questions regarding sexual assault allegations on oath and repeatedly refused to engage in any discussion about any 'problem of priestly life and work'.
The High Court disregarded the Diocese's argument the tendency evidence, comprising four unsworn Statements alleging Mr Anderson engaged in similar conduct with boys, was not put to him before he died, on the basis the tendency evidence may have proven unreliable, and it is speculative to assume the evidence would have been admitted.
The High Court also indicated it was immaterial that 55 years had passed since the alleged sexual assault given the allegations were not vague or unclear.
The High Court determined the loss of opportunity raised by the Diocese did not make a trial of GLJ's claims unfair, especially given:
The High Court held the Court of Appeal was wrong to conclude there could be no fair trial of these proceedings and, as such, the proceedings should not have been the subject of an order for a permanent stay.
Dissenting judgment – Justice Steward
Justice Steward referred to the five relevant principles extracted from Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218, a case concerning the stay of civil proceedings principally due to gross delay, and noted the following:
Justice Steward held the Court of Appeal was correct to order a permanent stay for three essential reasons:
Justice Steward disagreed with the Majority's proposition because:
Justice Steward held the appeal should be dismissed with costs.
Dissenting judgment – Justice Gleeson
Justice Gleeson held the appeal be dismissed and a permanent stay be awarded because:
Justice Gleeson concluded 'the Diocese has lost every realistic opportunity that previously existed to inform itself of the true facts' and, 'if the Diocese were required to participate in a trial, the Diocese would be limited in its cross-examination to questions concerning the inherent improbability or internal incoherence of the appellant's account'.
Justice Gleeson held the Court of Appeal was correct to conclude a trial in this case will involve manifest unfairness to the Diocese, particularly given the Diocese is 'without any realistic opportunity of informing itself as to the true facts concerning the alleged sexual assault, including circumstantial facts, in circumstances where opportunities that previously existed have been lost by the long passage of time'.
Justice Gleeson held the appeal be dismissed.
Conclusions and implications
The appeal was allowed on the basis of a 3:2 majority judgment, with strong dissenting judgments given by Justice Gleeson and Justice Steward.
On 9 November 2023 the High Court granted leave to appeal the Supreme Court of Queensland (Court of Appeal) decision of The State of Queensland v Wilmot  QCA 102 2, which raises similar issues.
It will be interesting to see if a similar decision is made, given the majority decision was supported by Chief Justice Kiefel who has since retired.
In any event, in this case, the majority emphasised a number of relevant facts, including:
Each of those facts may constitute grounds on which to distinguish this decision.
1 Loss of clerical status.
2 Wilmot v The State of Queensland (B34 / 2023).
Jared Billson | Lawyer