In brief - In the first decision of its kind, and by a narrow majority, the High Court of Australia has allowed an appeal, overturning a decision of the NSW Court of Appeal to permanently stay proceedings arising out of a claim for damages for historical child abuse alleged to have occurred in 1968.
- The granting of a permanent stay of proceedings remains an exceptional remedy and must be a measure of last resort on the basis that no other option is available.
- The party seeking the permanent stay bears a heavy onus of proof as it is always an extreme step to deny a person the opportunity of recourse to a court to have their case heard and decided.
- Parliament's amendments to the Limitation Act 1969 removing limitation periods for survivors of child abuse has created 'a new world' for all cases of child abuse and reflects Parliament's intent to prioritise the rights of survivors to bring their claim, trumping the potential prejudice that might be caused by the passing of time.
- Absent proof of a forensic decision by a plaintiff to obtain some advantage from delay, the mere fact of passing of time is of no consequence.
- The requirement of 'exceptional circumstances' involves a qualitative, not quantitative, assessment.
- The death of an alleged perpetrator and the inevitable loss of evidence over time are to be understood as routine and unexceptional. The adversarial system still requires a plaintiff to prove its case.
GLJ, a female born in Lismore in 1954, commenced proceedings in the Supreme Court of NSW in January 2020 claiming damages arising from an allegation that in 1968, when she was 14, she was sexually assaulted by a priest of the Diocese of Lismore. The incident occurred on one occasion in her bedroom when there was no one else at home and it was first reported in 2019. GLJ alleged that the Diocese was negligent in breaching its duty of care owed to her and that it was vicariously liable for the actions of the priest.
First instance decision (Campbell J)
In November 2020 the Diocese filed a notice of motion seeking a permanent stay of the proceedings pursuant to section 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 application was refused in the first instance by Cambell J.
The Diocese contended it was unable to receive a fair trial in circumstances where it had no recourse to the alleged perpetrator (who died in 1996) or other material witnesses. Critically, there were no other witnesses to the abuse with the only evidence being that of GLJ. Further, neither the Diocese (which first learned of the abuse in 2019) nor the alleged perpetrator was on notice of GLJ's allegation before the priest's death (and thereby had no opportunity to investigate and obtain his response).
There was evidence produced on subpoena dating from 1970 and 1971 that members of the Diocese were aware of allegations the alleged perpetrator had sexually abused children and that seven other alleged victims, all male, had come forward. Also in evidence were four unsworn statements from males who alleged they were sexually abused by the alleged perpetrator when they were children.
Campbell J refused the defendant's application observing that a fair trial is not synonymous with a perfect trial and that while the alleged perpetrator was not available to offer a resolute denial, there was "plenty of objective ammunition by which his credibility could be called into question".
Court of Appeal decision (Mitchelmore JA, Macfarlan JA, Brereton JA)
In June 2022, the NSW Court of Appeal allowed an appeal by the Diocese and granted a permanent stay of the proceedings in its favour.
On appeal, the court accepted that the evidence arguably demonstrated the alleged perpetrator's sexual interest in boys, however, her Honour was not persuaded that this evidence overcame the prejudice to the Diocese. Mitchelmore JA considered that the primary judge erred in his assessment of the impact of the alleged perpetrator's death on the fairness of the trial noting that there is no available contradictor and everything depends upon the acceptance of the plaintiff's account.
In re-exercising the discretion and granting a permanent stay, her Honour did not consider that the passage of time (some 54 years) was any criticism of GLJ and did not of itself warrant the grant of a permanent stay. Rather, it was the consequences of that passage of time that caused the alleged perpetrator, who was a critical witness, to have died before he or the Diocese was on notice of the allegations (including those of GLJ and the tendency witnesses). Borrowing a phrase from Bell P in Moubarak, the defendant was "utterly in the dark" on the central issue of the case.
High Court decision
In November 2022, special leave to appeal was granted to GLJ with the appeal heard on 8 June 2023.
A joint judgment allowing the appeal was delivered by Kiefel CJ, Gageler and Jagot JJ with Gleeson J and Steward J providing separate dissenting judgments in favour of the appeal being dismissed.
The majority found that the Court of Appeal was wrong to conclude that there could be no fair trial of these proceedings citing six reasons:
- The alleged perpetrator was not a defendant in the proceedings and while the opportunity to make forensic decisions had been lost to the Diocese, their potential importance was wholly speculative, particularly given the evidence available about his sexual conduct.
- While GLJ's specific allegations were not put to the alleged perpetrator when he was alive, there was evidence that he would have denied them given in 1971 he denied under oath any "romantic interest" in girls.
- It may be inferred from the documentary evidence that other allegations of sexual abuse of boys had been put to the alleged perpetrator and he had denied any wrongdoing.
- The laicisation process (removing his status as a priest) in 1971 allowed the Diocese to take whatever steps it saw fit to make further inquiries about the alleged perpetrator having sexually abused children, noting that he did not die until 1996.
- The alleged perpetrator's death did not prevent the Diocese from subsequently finding that complaints of sexual abuse of him while a priest had been substantiated and should be the subject of the payment of monetary compensation.
- There is already a considerable body of documentary evidence available of arguable relevance to the proceedings, including the psychiatrist to whom the alleged perpetrator was referred.
In his dissenting judgment, Steward J considered the applicable principles regarding permanent stays set out in Moubarak should not be diluted for a greater tolerance for imperfections in the available evidence in cases of child sexual abuse. His Honour considered the plea for justice to conform to contemporary values is without precedent and dangerous. He addressed each of the six reasons provided by the majority and pointed to three essential reasons why the Court of Appeal was correct:
- The delay in bringing GLJ's claim is greatly significant and caused a critical loss of an opportunity to defend the claim due to the expiration of time
- The absence of any realistic ormeaningful opportunity to defend the claim meant that the case would proceed to trial without any proper contradictor
- Any trial would fall below the minimum standard of fairness that the law requires.
In her dissenting judgment, Gleeson J set out the concepts of a fair trial noting that long delay gives rise to a general presumption of prejudice and a decrease in the quality of justice over time. Her Honour considered the circumstances of this case could be fairly described as exceptional because of:
- The serious nature of the allegation
- The case is brought against the Diocese and not the alleged offender himself
- The absence of any contemporaneous corroboration of GLJ's account
- The lack of any police investigation
- The death of the alleged offender before GLJ's complaint
- The extreme length of time between the alleged assault and GLJ's complaint
- The loss of all realistic opportunities for the Diocese to investigate over approximately 50 years that had elapsed before it received GLJ's complaint.
In respect of the Limitation Act, Gleeson J considered that the amendments abolishing limitation periods for child abuse claims revealed neither a legislative tolerance for unfair trials nor a legislative direction to the courts to modify their application of the principles by which courts protect the administration of justice from abuses of process.
Implications for institutions and insurers
This is a significant decision that guides the use of permanent stays in cases of child sexual abuse. The court's comments that there is no "historical child sexual abuse" in the same way there is no "historical murder" while there is someone alive claiming to have suffered harm, is instructive of the high tolerance that a court will have for the forensic disadvantages that arise for a respondent in claims of child abuse.
The death of an alleged perpetrator and the inevitable loss of evidence over time are to be understood as routine and unexceptional in cases of child sexual abuse. A plaintiff is still required to prove his or her case and for a permanent stay to be awarded the circumstances must be such that they are exceptional.
Practically, when allegations are first raised, institutions should be undertaking investigations, identifying the status of evidence, and considering taking statements at an early stage, to ensure that they are doing everything possible to reduce the potential prejudice caused by the delay in a claim being brought.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2023.