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

A majority of the High Court has held that in historic child sexual abuse cases, a court has the power to permanently stay proceedings to prevent an abuse of process only in an exceptional case when no other option is available. In so holding, the High Court stated that the mere passing of time is not in itself a material factor in determining applications for a permanent stay of proceedings, even where the alleged offender has died in that period. The High Court also stated that the applicable standard of appellate review in such a case is the ‘correctness standard’ as identified in Warren v Coombes (1979) 142 CLR 531 (‘Warren v Coombes’) and not the principles in House v The King (1936) 55 CLR 499 (‘House v The King’).

Background

In 2020, the appellant, GLJ, commenced proceedings in the Supreme Court of New South Wales against The Trustees of the Roman Catholic Church for the Diocese of Lismore (‘the Diocese’) seeking damages for personal injury arising out of alleged sexual abuses. GLJ alleged that in 1968, when she was 14 years old, she was sexually abused by a priest, Father Anderson, incardinated in the Diocese. These proceedings were commenced 52 years after the alleged abuse pursuant to sub-ss 6A(1) and (2) of the Limitation Act 1969 (NSW) (‘Limitation Act’), which relevantly provide that claims of this nature are not subject to any limitation period.

GLJ claimed that the Diocese breached its duty of care to her by not protecting her from sexual abuse by Father Anderson, which she alleged was a reasonably foreseeable risk of harm. She also claimed the Diocese was vicariously liable for sexual abuse by Father Anderson.

The Diocese sought a permanent stay of the proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (‘the CPA’) or dismissal pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) as man abuse of process.

The Diocese contended that the trial would be unfair in all of the circumstances given the length of time that had passed since the alleged sexual assault and that all senior people who could have potentially given evidence or provided instructions, including Father Anderson, had died.

Decisions below

Campbell J dismissed the application at first instance for four reasons. The first was that a fair trial ‘need not be a perfect trial’; the second was that child sexual abuse of its nature ‘occurs in private and eyewitness evidence is rarely available’; the third was that the submissions of the Diocese indicated that it could contradict GLJ’s claims with documentary evidence; the fourth was that in light of s 6A of the Limitation Act, Parliament had determined that ‘child sexual abuse cases should be permitted to proceed despite the effluxion of even long periods of time and an inevitable resulting degree of impoverishment of evidence, provided a fair, not perfect, trial can be had’: at [10].

The Diocese appealed on the basis that the primary judge misapplied his discretion in failing to permanently stay the proceedings. The Court of Appeal (Macfarlan, Brereton, and Mitchelmore JJA) granted the Diocese leave to appeal and allowed the appeal. The Court of Appeal considered that the primary judge’s decision was discretionary and contained alleged error within the principles in House v The King: at [12]. In re‑exercising the power to grant a permanent stay, the Court of Appeal considered that the death of Father Anderson deprived the Diocese of the ability to obtain any instructions from him and, therefore, it had no means of investigating the facts: at [13].

Appeal to the High Court

GLJ applied for and was granted special leave to appeal to the High Court on the ground that the Court of Appeal erred in permanently staying the proceedings on the basis that a fair trial could no longer be held. By majority (Kiefel CJ, Gageler and Jagot JJ; Steward and Gleeson JJ dissenting), the High Court allowed the appeal.

The appeal concerned two issues:

1) What is the appropriate standard for appellate review of an order of a court permanently staying proceedings on the ground of abuse of process?

2) Whether the circumstances of this matter involved an abuse of process so as to justify a permanent stay of proceedings?

In respect of the first issue, Kiefel CJ, Gageler and Jagot JJ held that the decision to grant a permanent stay of proceedings on the ground of abuse of process under s 67 of the CPA involves the question of whether a trial will be necessarily unfair or ‘so unfairly and unjustifiably oppressive as to constitute an abuse of process’. That decision is evaluative and not discretionary in that proceedings ‘either are or are not so unfairly and unjustifiably oppressive as to constitute an abuse of process’. Accordingly, the applicable standard of appellate review is the ‘correctness standard’ as identified in Warren v Coombes and not the principles in House v The King: at [15].

While noting that the jurisdiction to grant a permanent stay is available to protect the administration of justice, the majority noted that it must be understood as ‘a measure of last resort to be exercised only in exceptional circumstances’: at [18].

The majority further stated that the assessment of alleged abuse of process in child sexual assault claims must be evaluated in the legal context created by the insertion of s 6A in the Limitation Act which allows ‘time to pass’. Therefore, ‘the inevitable fading of memories and loss of evidence (whether it be from death, illness, infirmity, or the loss or destruction of documents), in the context established by s 6A, are properly to be understood as routine and unexceptional sequelae of the harm caused by the alleged act the subject of the claim’: at [50].

In determining the second issue, Kiefel CJ, Gageler and Jagot JJ held that the passage of (by now) 55 years since the alleged sexual assault in and of itself was immaterial. Their Honours said that the details of the alleged sexual assault ‘were not vague and uncertain’: at [75]. Their Honours said further that ‘circumstantial evidence is still evidence’ and that, in the current case, circumstantial evidence was likely to be determinative of GLJ’s credibility: at [67].

For example, the Diocese knew:

(a) the parishes to which Father Anderson had been attached;

(b) the dates of his attachment;

(c) the nature of the work a priest in his position was likely to have performed;

(d) the complaints which had been made about Father Anderson’s sexual acts involving young boys before 1968;

(e) the fact that Father Anderson had been referred to a psychiatrist for treatment of his problem with boys as early as 1966; and

(f) Father Anderson’s response to allegations of sexual misconduct with boys before his laicisation: at [67].

Moreover, the majority held that, in truth, nothing had been lost to the Diocese by reason of Father Anderson’s death except the opportunity of asking him if he sexually assaulted GLJ and, depending on the Diocese’s forensic decisions, the possibility of calling him as a witness: at [75]. The loss of these opportunities did not make a trial of GLJ’s claims unfair in the following circumstances.

First, the proposition that the Diocese might have ‘taken instructions’ from Father Anderson had he been alive was found to be untenable and merely speculative as he was not a defendant to the case. Secondly, it could be reasonably inferred that he would have denied GLJ’s allegation, as he denied ‘romantic interest’ in girls while under oath in 1971. Thirdly, it could be inferred from other documentary evidence that Father Anderson denied any wrongdoing for allegations of sexual abuse of boys. Fourthly, the laicisation process gave the Diocese an opportunity to take whatever steps it saw fit to make further inquiries about Father Anderson having sexually abused children and the wealth of credible evidence that he had sexual interest in boys and acted on his interest to sexually abuse them. Fifthly, the death of Father Anderson did not prevent the Diocese from making their own findings. Sixthly, other documentary evidence of the psychiatrist to whom he was referred was available: at [76]–[81].

Steward J and Gleeson J dissented in separate reasons. Steward J considered that the Court of Appeal was correct to order a permanent stay for three reasons. First, the delay in bringing the appellant’s claim was significant. There was a critical loss of an ‘opportunity’ for the Diocese to defend the claim, due to the expiration of time. The Diocese was ‘utterly in the dark’ and there was nothing any trial judge could do to shed light into that void. Secondly, the absence of any realistic or meaningful ‘opportunity’ to defend the claim meant that the case, if it were to proceed to trial, ‘would do so without any proper contradictor’ and the Diocese has been denied any possibility of obtaining instructions on that ‘foundational’ issue of whether Father Anderson committed the sexual assault. Thirdly, GLJ’s case rested upon her allegation, the unsworn allegations of child sexual abuse of young boys, and the suspicions of dead men: at [148]–[151].

Gleeson J agreed with Kiefel CJ, Gageler and Jagot JJ that the standard of appellate review in this case was the correctness standard: at [161]. However, her Honour disagreed that a fair trial was possible in all of the circumstances and stated that the Court of Appeal was correct to stay the proceedings permanently: at [187].

In her Honour’s view, the trial in this case would be so unfair for the following reasons: the serious nature of the allegation; the case was brought against the Diocese of which Father Anderson was formerly a member, and not the alleged offender himself; the absence of any contemporaneous corroboration of GLJ’s account; the lack of any police investigation of the alleged sexual assault; the death of the alleged offender prior to GLJ’s complaint about the alleged sexual assault; the extreme length of time between the alleged assault and the appellant’s claim; and the loss of all realistic opportunities for the Diocese to investigate the alleged assault: at [188].

Postscript

In the recent decision of Koschier v R [2024] NSWCCA 24, the Court of Criminal Appeal (Bell CJ, Harrison CJ at CL and Chen J) agreed with the submissions of the parties that the reasoning in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 should not be confined to civil proceedings and that the correctness standard was the appropriate appellate standard of review in criminal proceedings in which a permanent stay is sought. BN