Warning: This article contains details about sexual assault and abuse which may be upsetting for some readers. Reader discretion is advised.
The High Court has allowed an appeal against a decision granting a stay of proceedings in an historical abuse claim
In issue
- The standard for appellate review of an order of a court permanently staying proceedings.
- Whether the proceedings against the Diocese involved an abuse of process justifying a permanent stay of the proceedings.
The background
Father Anderson was a priest in the Diocese of Lismore between 1963 and 1970. GLJ alleged that Fr Anderson sexually assaulted her in in 1968. The sexual assault occurred when GLJ was 14 years old, in her bedroom while there was no one else at home. The assault was an isolated incident. GLJ only saw Fr Anderson one further time, when she was about 17 years old. Fr Anderson died in 1996.
On 31 January 2020, GLJ commenced proceedings against The Trustees of the Roman Catholic Church for the Diocese of Lismore (the Diocese) for direct negligence and vicarious liability for the alleged abuse by Fr Anderson.
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 argued that it had no chance of receiving a fair trial as it had no recourse to Fr Anderson or other material witnesses, particularly on the issue of whether Fr Anderson did in fact sexually assault GLJ. Further, at the time of his death, neither Fr Anderson nor the Diocese were on notice of GLJ’s allegation of sexual assault.
On 24 September 2021, the application for a permanent stay was refused and the motion was dismissed by the Supreme Court of New South Wales. The Diocese subsequently appealed.
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 Diocesan Trust’s inability to deal with those particular allegations in respect of GLJ. Our case note on the Court of Appeal’s decision can be found here.
On 8 June 2023, the High Court of Australia heard the appeal of the NSW Court of Appeal decision. GLJ’s submissions focused on the significance given to the death of Fr Anderson, the other available evidence for the court to consider and the court’s capacity to draw inferences from such evidence. GLJ also submitted that the purpose of the Royal Commission was to facilitate historical abuse claims being brought and because of this foundation for the amendments to the Limitation Act, applications for stay must be approached with a greater tolerance for imperfection.
The Diocesan Trust’s submissions centered on its inability to cross-examine GLJ due to the lack of witnesses and documentary evidence regarding the alleged sexual abuse which meant that it was utterly in the dark on the central issue and unable to rebut GLJ’s version of events. It submitted that there was no evidence of association between Fr Anderson and GLJ which put the Diocese on notice to conduct enquiries before Fr Anderson’s death (and before the complaint being brought) and that the express wording of Section 6A of the Limitation Act 1969 (NSW) permitted stay applications be brought and did not undermine the intent of the legislative changes to the Royal Commission.
The decision
On 1 November 2023, the High Court allowed the appeal with a 3-2 split; Kiefel CJ, Gageler and Jagot JJ with dissenting judgments from Steward and Gleeson JJ.
Kiefel CJ, Gageler and Jagot JJ found that the Court of Appeal was wrong in finding that there could be no fair trial of the proceedings, particularly having regard to the inferences which could be drawn from the documentary evidence relating to Fr Anderson. The majority gave six reasons for their decision:
- While Fr Anderson having died prior to the allegations being made meant that the Diocese lost the opportunity to make forensic decisions, the potential importance of these forensic decisions is speculative, particularly given that there was documentary and other evidence regarding Fr Anderson’s sexual conduct.
- While specific allegations relating to GLJ were not put to Fr Anderson, there was evidence that he would have denied the allegations in any event as he a previously denied a “romantic interest” in girls under oath.
- It can be inferred from the documentary evidence that other allegations of sexual abuse of boys had been put to Fr Anderson and that he had denied any wrongdoing or suggestion of impropriety.
- The laicisation process gave the Diocese an opportunity to take whatever steps it saw fit to make further inquiries about Fr Anderson having sexually abused children. The Diocese had been on notice of Fr Anderson's having allegedly sexually abused boys well before his death.
- The death of Fr Anderson in 1996 did not prevent the Diocese from subsequently finding that complaints of sexual abuse by him while a priest had been substantiated and should be the subject of the payment of compensation.
- There was already available a considerable body of documentary evidence of arguable relevance to the proceedings.
Furthermore, because the Diocese acknowledged that “its case for a permanent stay for abuse of process was based only on necessary unfairness of a trial and not undue oppression or unfairness otherwise” this alone did not justify a permanent stay of proceedings.
In relation to the context of child historical abuse claims and the removal of the limitation, the majority stated that it:
“created a new legal context within which the alleged abuse of process must be evaluated. In this new legal context, the contention that any trial of the proceedings would be necessarily unfair must be rejected.”
In his dissenting judgment, Steward J found that the judgment of the majority (Kiefel CJ, Gageler and Jagot JJ) as to why the trial of the proceedings might be fair established an “untenable legal proposition concerning the operation of section 6A of the Limitation Act”. Steward J addressed each of the six reasons provided by the majority and concluded that the suggested inferences were no more than a guess in the service of an outcome.
Steward J also found that the lack of documentary evidence was an important part of the problem, agreeing with Mitchelmore JA’s comments in the Court of Appeal decision, that a there was no evidence that shed light on GLJ’s specific claim of abuse did or did not take place.
Gleeson J found that the Court of Appeal was correct to conclude that a trial in this case will involve manifest unfairness to the Diocese, and that there was nothing a trial judge could do in the conduct of the trial to relieve against that unfairness. Gleeson J concluded that it was “manifestly unfair” to require the Diocese to respond to GLJ’s uncorroborated claim 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.
On the issue of the context of section 6A of the Limitation Act, Gleeson J acknowledged that wording did express “a tolerance for delay on part of claimants for damages” but also noted that the legislation also left it “up to the courts to address the problems of prejudice and injustice as they arise in individual cases”.
The High Court confirmed that the exercise of power under section 67 of the Civil Procedure Act to permanently stay proceedings on the ground that they are an abuse of process as any trial will be necessarily unfair or "so unfairly and unjustifiably oppressive' as to constitute an abuse of process" is an evaluative but not a discretionary decision. It was therefore agreed by all justices that the applicable standard for appellate review, stating the applicable standard is the “correctness standard” identified in Warren v Coombes1. and that the error of principle by the court below, as applied to the appellate review of a discretionary decision in accordance with House v King2 is not required to be identified.
Implications for you
The decision provides some guidance as to the standard which a permanent stay of proceedings will be granted in child historical abuse claims and “high tolerance” for the delay by the claimant in bringing a claim for damages in the context of the wording of section 6A of the Limitation Act. What is clear that the death of an alleged perpetrator before allegations come to light, by itself, is insufficient for a stay to be awarded, particularly where there is other evidence available (even of other abuse allegations) to suggest that investigation was warranted prior to the death of the perpetrator.
What is also clear, given the two dissenting judgments, is that the issues concerning the granting of a permanent stay are far from straightforward and are high dependent on the specific details in the evidence of the specific case.
