On 1 November 2023, the High Court allowed an appeal from the NSW Court of Appeal (NSWCA). The High Court disagreed with the previous Court of Appeal decision and held that an order to permanently stay proceedings is only to be exercised in exceptional cases, and in this case concerning child sexual abuse, there were no such exceptional circumstances.
This case concerns the alleged sexual abuse of GLJ, perpetrated by Father Anderson of the St Catherines Cathedral.
GLJ commenced proceedings on 31 January 2020 in the NSW Supreme Court, approximately 52 years after the alleged assault took place in 1968.
Some key facts of the case are as follows:
GLJ seeks damages from The Trustees of the Roman Catholic Church for the Diocese of Lismore (also known as the Lismore Trust) for personal injury that resulted from the alleged sexual abuse by Father Anderson. She does so on the following grounds:
The Lismore Trust sought a permanent stay in proceedings on the following grounds:
NSW Supreme Court
The proceedings commenced in the New South Wales Supreme Court where the primary judge refused the permanent stay. The court found that the Lismore Trust had not satisfactorily discharged the onus on the balance of probabilities that a fair trial could not take place. It was noted that the foundational purpose of not having a limitation period is the idea that no passage of time is too great for victims of child sexual abuse to come forward and that although 52 years is a significant amount of time, it is not an exceptional enough reason to permanently stay proceedings.
It was also said that there are rarely any witnesses to acts of sexual assault/abuse and that the deaths of other members of the clergy, as well as Father Anderson himself, were again, not exceptional enough to grant a permanent stay. This was emphasised again when the primary judge made note of the fact that there was arguably enough documentation to demonstrate to the court that Father Anderson’s misconduct was well known to his superiors, and other members of the clergy without the allegations being made by GLJ and prior to their deaths.
NSW Court of Appeal
The Lismore Trust appealed the decision of the NSW Supreme Court. The NSWCA allowed the appeal and granted a permanent stay in proceedings. The Court agreed with the primary judge with regard to the documentation suggesting that Father Anderson’s misconduct was well known; however, it emphasised that the Lismore Trust’s case for a permanent stay focussed solely on the specific incident with GLJ and not anything prior to that.
The Court also decided that the significant amount of time between the alleged incident and the proceedings would put the Lismore Trust at an unfair forensic disadvantage in terms of being able to refute the allegations, including the fact that Father Anderson was no longer alive to be made aware of the allegations.
The Lismore Trust also pointed out that such disadvantages would create difficulties for them in relation to the issue of their liability and hence, a fair trial could not be had.
It was also noted that the Lismore Trust would again be at a disadvantage by not being able to have an account of the events that took place from Anderson himself, or any other clergy member, on the specific issue of GLJ’s assault. It was said that the fact that there are rarely witnesses to sexual assault/abuse is of little significance when the alleged perpetrator has died without being made aware of allegations against them.
High Court of Australia
On 1 November 2023 the High Court of Australia allowed an appeal from the NSWCA and dismissed the permanent stay. The court decided that the mere passing of time is not relevant when exercising the power to permanently stay proceedings for death or personal injury resulting from historic child sexual abuse.
It was also noted that the removal of a statutory limitation period shows Parliament’s intent to prioritise victims, even if that means there are forensic challenges due to long passages of time. The fading or loss of memories and evidence and/or death of relevant peoples were inevitable, routine and unexceptional, as the plaintiff is still required to prove her case with the relevant standard of proof.
It was also found that the context in which the alleged abuse occurred is relevant to the question of fairness as in an institutional setting a perpetrator is likely to have access to more children and therefore more opportunities to perpetrate abuse and a higher likelihood of there being records, other victims and/or witnesses to corroborate or contradict the allegations.
Lastly, the court emphasised that an order to permanently stay proceedings is one of last resort and is only granted in exceptional cases, when there is no other option available. In this case, the majority held that the grounds for a permanent stay given by the Lismore Trust were unexceptional and the reasoning of the NSWCA had been misapplied for a case concerning child sexual abuse. Essentially, the mere risk that a trial of this nature might be unfair is not sufficient to grant a permanent stay of proceedings.
The High Court has made it clear in matters involving historic child sexual abuse, that a defendant needs to show more than the mere passing of time in order for a Court to permanently stay proceedings. The fact that the perpetrator and/or witnesses are unable to give evidence is not on its own a reason to grant a permanent stay.
The NSW Supreme Court of Appeal has recently delivered its judgment in the decision of Bondi Beach Foods Pty Ltd v Chadwick  NSWCA.
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