High Court rules on permanently stayed historical child abuse case

GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32

In a watershed decision, the High Court has allowed the plaintiff's appeal against the New South Wales Court of Appeal's decision to permanently stay proceedings arising out of a claim for damages for historical sexual abuse, thereby entitling the plaintiff to have her claim tried. The abuse is alleged to have been perpetrated by a priest in the Diocese of Lismore in 1968.

This is a significant case given it is the High Court's first opportunity to consider the new legal context which has arisen since the abolition of the statutory limitation periods for cases involving historical sexual abuse. Practitioners have for some time called for clarity on the evaluation of abuse of process in claims of this kind, in light of disparate decisions in the lower courts in regards to granting stay applications which have created considerable uncertainty around the appropriate test to be applied in reconciling whether this remedy should be properly considered and pursued by defendants.

In allowing the appeal and permitting a trial to be heard, the High Court has provided a number of key takeaways which are instructive.

Key findings

• An order to permanently stay proceedings must be one of last resort on the basis that no other option is available. A permanent stay should only be exercised in an exceptional case, as to do otherwise is apt to work an injustice and bring the operation of the adversarial system into disrepute given the prima facie right in the person invoking a court's jurisdiction to have it exercised.
• The step of granting a permanent stay of proceedings does not involve a value judgment and, rather, requires recognising a single correct answer as to whether a trial would be necessarily unfair or unjustifiably oppressive.
• The mere passing of time, in and of itself, is no longer a potential aspect of the interests of justice relevant to exercising the power to permanently stay proceedings for death or personal injury resulting from child abuse.
• Removing the statutory limitation period applying to claims of this kind speaks to Parliament's intent to prioritise the rights of victims claiming to have suffered child abuse, even at the expense of potential forensic challenges posed by the passage of time (such as the fading of memories and loss of evidence). It is for the courts to now evaluate contentions of abuse of process within this new normative structure reflecting contemporary values and underscoring the importance of maintaining public confidence in the administration of justice as enacted by Parliament.
• The inevitable fading of memories and loss of evidence (whether it be from death, illness, infirmity, or the loss or destruction of documents) are to be understood as routine and unexceptional. Missing witnesses or evidence do not necessarily make a civil trial unfair on the basis that a plaintiff nonetheless has to prove its case in accordance with the relevant standard of proof.
• The context in which alleged child abuse is contended to have occurred (domestic and private or institutional) is likely to be relevant to the question of unfairness and oppression, as an institutional context is more likely to yield tendency evidence given the opportunities for a perpetrator to access large numbers of children, thereby placing the institution on notice of other claims against the perpetrator at a much earlier time.

Background

In 2020, the female plaintiff commenced proceedings in the New South Wales Supreme Court against the Trustees of the Roman Catholic Church (defendant) claiming damages for personal injury arising out of allegations that she was subjected to sexual assault by Father Clarence Anderson, a priest in the Diocese of Lismore, on one occasion in 1968. The plaintiff, who was 14 years old at the time of the alleged assault, says it occurred in her home after she had returned from netball.

The plaintiff first came forward with the allegations after the death of Father Anderson in 1996.

The defendant applied for a permanent stay at first instance on the basis that it had no means to receive a fair trial in circumstances where Father Anderson was deceased and where there were no other material witnesses bearing upon whether the assault occurred, actuated by some 55 years which had passed since the alleged assault.

First instance decision (NSWSC per Campbell J)

Campbell J refused the defendant's application on the basis that it had not discharged its onus on the balance of probabilities of demonstrating that a fair trial could no longer be held. In essence, Campbell J was of the view that there was sufficient evidence for there to be a fair trial owing to:

• witness statements by four other people who said they were sexually abused by Father Anderson as a child whilst living with him; and
• historical subpoenaed documents which disclosed that members of the clergy were aware of allegations that Father Anderson had sexually abused children when he was a priest in the Diocese.

Campbell J observed that a fair trial need not be a perfect trial; child sexual abuse, of its nature, occurs in private and eyewitness evidence is rarely available; and there was sufficient evidence to contradict the plaintiff's claims (including factual uncertainty as to critical dates, the opportunity for the abuse to have been committed, and that the tendency evidence was relevant to a sexual interest in boys, and not young teenage girls).

Court of Appeal decision (Mitchelmore JA, Macfarlan JA and Brereton JJA)

The defendant sought leave to appeal Campbell J's decision, which was overturned by the Court of Appeal. In the primary judgment, Mitchelmore JA was swayed by the significant forensic disadvantage brought about by the death of Father Anderson prior to an account ever being put to him such that his credibility was unable to be evaluated. Put simply, without Father Anderson's account the defendant was "utterly in the dark" on the central issue as to whether the abuse occurred and no forensic steps or further inquiries could ameliorate this difficulty.

The majority decision of the High Court

In a majority decision, Gageler J, Gleeson J and Jagot J allowed the plaintiff's appeal, finding that it was wrong for the Court of Appeal to conclude that there could be no fair trial of the proceedings.

In doing so, the majority made a number of critical observations in relation to the question of unfairness presented to defendants due to the effluxion of time.

• A mere risk that a trial might be unfair is insufficient to warrant a stay of proceedings.
• The mere passing of time, in and of itself, is no longer a potential aspect of the interests of justice relevant to exercising power to permanently stay proceedings for death or personal injury resulting from child abuse. As a consequence, there is no requirement or expectation for a plaintiff to explain the passing of time between the accrual of the cause of action and the commencement of the action. Relevantly, the Court cautioned against characterising claims of this kind as "historical" whilst there is someone alive claiming to have suffered harm from the abuse.
• Removing statutory limitation periods applying to claims of this kind speaks to Parliament's intent to prioritise the rights of victims claiming to have suffered child abuse, even at the expense of potential forensic challenges posed by the passage of time (such as the fading of memories and loss of evidence). It is for the courts to now evaluate contentions of abuse of process within this new normative structure reflecting contemporary values and underscoring the importance of maintaining public confidence in the administration of justice as enacted by Parliament.
• The inevitable fading of memories and loss of evidence (whether it be from death, illness, infirmity, or the loss or destruction of documents) are to be understood as routine and unexceptional. Missing witnesses or evidence do not necessarily make a civil trial unfair on the basis that a plaintiff nonetheless has to prove its case in accordance with the relevant standard of proof, with the degree of satisfaction required varying according to the gravity of the fact to be provided. In addition, a court is not bound to accept uncontradicted evidence, which may be disregarded for its inherent implausibility, objective unlikelihood or the trier of fact not forming the state of actual persuasion. It is elementary that in a claim based on communication with a deceased person, the court treats uncorroborated evidence of such communications with considerable caution.
• The context in which alleged child abuse is contended to have occurred (domestic and private or institutional) is likely to be relevant to the question of unfairness and oppression, as an institutional context is more likely to yield tendency evidence given the opportunities for a perpetrator to access large numbers of children thereby placing the institution on notice of other claims against the perpetrator at a much earlier time. Critically, the Court painted this distinction by highlighting the outcome of the cases of Moubarak by his tutor Coorey Holt¹ and Connellan v Murphy² where stays of proceedings were granted where there was no forewarning of any kind and, given the private and domestic setting of the claim, there was no relevant documentary evidence available.

Applying these matters to the present facts, and in finding that there could be a fair trial, the majority:

1. contended that the defendant was not utterly in the dark about the central issue as to whether the sexual assault occurred given the availability of circumstantial evidence - the defendant knew of Father Anderson's attachment to the Diocese, the nature of his work, the previous allegations of sexual acts involving young boys before the alleged abuse of the plaintiff, Father Anderson's response to allegations of sexual misconduct with boys and his denial of ever associating romantically with any girl whilst a priest - and, in that sense, all that is lost to the defendant by reason of Father Anderson's death is the opportunity of asking him if he sexually assaulted the plaintiff and the possibility of calling him as a witness at trial;

2. contended that the loss of the opportunity to speak with Father Anderson and/or call him as a witness at trial does not make the plaintiff's claim unfair for the following key reasons:

• Father Anderson is not a defendant to the proceeding and it ought not be assumed that the defendant would have sought information from him or called him as a witness given the documentary and other evidence available suggesting previous misconduct;
• it could be inferred from Father Anderson's response to previous allegations that he would have denied the current allegations;
• the defendant was on notice of Father Anderson's misconduct and it had ample opportunity to inform itself of the extent of his alleged crimes before his death;
• the death of Father Anderson in 1996 did not prevent the defendant from subsequently finding to its own satisfaction that complaints of sexual abuse by him whilst a priest had been substantiated to the level of being subject to payments of monetary compensation;
• there is a body of documentary evidence of arguable relevant to the proceedings

3. concluded that the state of the evidence as against the defendant was not unassailable as:

• the tendency evidence of the four other persons claiming to have been subjected to abuse is capable of being excluded owing to an argument that this evidence does not have sufficient probative value as the paedophilic conduct towards young boys is not good evidence of such an interest in young girls, or may otherwise be excluded on discretionary grounds or given little to no weight if admitted;
• the trial judge would not be bound to accept the uncontradicted evidence of the plaintiff as it may be regarded as too vague or internally inconsistent, or otherwise unconvincing, to enable a positive inference to be drawn that it is more likely than not that Father Anderson committed the abuse.

Conclusion

This decision will be welcomed by survivors of child sexual abuse for the guidance it offers courts in relation to only ordering a permanent stay of proceedings in cases of this kind in truly exceptional circumstances. It minimises the argument that in the absence of a perpetrator, a defendant is left with an unfair trial - particularly if it can be shown that there is extant circumstantial evidence directed to prior knowledge of a tendency for abuse, the response the perpetrator may make to the allegations, and the perpetrator's opportunity to commit the abuse.

In addition, an institution is likely to face a significant hurdle in making a successful claim for a stay of proceedings if a court is capable of drawing an inference that its investigations into suspected conduct were deficient and if it can be shown that there have been other monetary settlements for claims postdating the perpetrator's death.

Practically, the impact of this decision is likely to result in a reluctance for defendants to lightly apply to stay proceedings in cases of this kind without truly exceptional circumstances.

¹ (2019) 100 NSWLR 218.

² [2017] VSCA 116.