NSW Court of Appeal reverses lower court decision and grants permanent stay of historical abuse claim

01 July 2022
Warning: This article contains details about sexual assault and abuse which may be upsetting for some readers. Reader discretion is advised.

Permanent stay application granted on appeal in respect of historical abuse claim where the alleged perpetrator died in 1996.

In Issue

  • Whether The Trustees of the Roman Catholic Church for the Diocese of Lismore (the defendant) had discharged the onus, on the balance of probabilities, of demonstrating that a fair trial could not be had (particularly in circumstances where the alleged perpetrator had died some years before the trial).

The background

Personal injury proceedings were commenced by the plaintiff in January 2020. The plaintiff alleged that she had been sexually abused in 1968 by a priest, who later died in 1996. The defendant applied for a permanent stay of the proceedings or, in the alternative, a dismissal.

The decision at trial

In its application for a permanent stay the defendant submitted that, in circumstances where it had no recourse to the alleged perpetrator, it had no chance of receiving a fair trial. Further, the defendant argued that it possessed proof to potentially contradict the plaintiff’s claim, including the limited circumstances surrounding whether the priest could have offended against the plaintiff.

Whilst His Honour Justice Campbell was of the view that there were “undoubtedly forensic disadvantages attending the passage of time in this case because of the death of the clergy,” he acknowledged a number of considerations which “positively demonstrated a fair trial could still be held,” including unsworn witness statements of four other people who stated they were abused by the alleged perpetrator and subpoena documents which disclosed that “senior members of the clergy were aware of at least allegations that the alleged perpetrator had sexually abused children when he was a priest.”

The issues on appeal

  1. Whether considerations which demonstrated that a fair trial could be held were “responsive to the difficulties” that the defendant “identified on the issue that was central to its liability” i.e. in circumstances where the defendant’s application for a permanent stay focussed on the absence of records in relation to the plaintiff’s specific allegations and inability to seek instructions from the deceased.
  2. The importance of tendency evidence within matters of such nature, particularly where the four statements submitted by the plaintiff failed to engage with a critical issue (the tendency evidence was in relation to abuse of four boys, whereas the plaintiff was female).

The Decision on appeal

The Court of Appeal ultimately determined, upon re-exercising its discretion under section 67 of the Civil Procedure Act 2005 (NSW), that whilst the passage of time does not itself warrant a permanent stay, the facts that this matter turned upon provided for an exception. In that regard the Court reiterated the inability of the defendant to obtain necessary instructions from the alleged perpetrator with respect to a defence.

In applying the principles set out in Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218, the Court opined that in the circumstances the defendant’s inability to make further inquiries or take forensic steps without access to the alleged perpetrator rendered it “utterly in the dark” on the central issue of liability.

Implications for you

This case demonstrates that it is not impossible to obtain a permanent stay of abuse proceedings, but the bar for obtaining a stay is a high one.

The Court of Appeal decision demonstrates the matters which will be significant in assessing the likelihood of success in a permanent stay application, including:

  1. The importance of the availability of prospective witnesses; and
  2. The role of tendency evidence.

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