Breaking news – High Court decision a win for survivors of historical abuse

This morning, the High Court handed down the decision in the GLJ v Diocese of Lismore [2023] HCA 32 appeal.

In a win for GLJ and many other survivors of historical abuse, the High Court has overturned the permanent stay ordered by the NSW Court of Appeal and allowed the claim against the Catholic Church to proceed. In doing so, the High Court has signaled that survivors of historical abuse may not be faced with the threat permanent stays, a tactic which has increasingly been used by defendants.

Background

GLJ (a pseudonym) was allegedly abused by Father Anderson of the Catholic Church, Diocese of Lismore in 1968, when she was 14 years old. Father Anderson was directed by the Diocese to attend GLJ’s family home to provide pastoral and spiritual support after her father was seriously injured in a motorcycle accident. During his visit to the family home, Father Anderson allegedly sexually abused her. No legal action was taken until 2020, when a Statement of Claim was filed in the NSW Supreme Court for the appellant.

The matter was heard in the NSW Supreme Court where the judge refused to grant a permanent stay application. The Diocese (defendant) then appealed the matter to the Court of Appeal, where the application for a stay was successful.  GLJ then applied for and was granted special leave to appeal to the High Court.

High Court Decision

The High Court examined two main issues that arose in the appeal.

Firstly, the applicable standard for appellate review of an order of a court permanently staying proceedings on the ground that a trial will be necessarily unfair or so unfair or oppressive to the defendant as to constitute an abuse of process.

Kiefel CJ, Gageler and Jagot JJ confirmed that the applicable standard of review is the “correctness standard” identified in Warren v Coombes (1979) 142 CLR 531. Finding an error in the exercise of discretion is not necessary as per the decision in House v The King (1936) 55 CLR 499, which was relied upon by the judges during the NSW Court of Appeal proceedings.

The second issue is whether the appellant’s proceedings against the respondent, the Trustees of the Roman Catholic Church for the Diocese of Lismore (“the Diocese”), involve an abuse of process justifying a permanent stay of proceedings. The Diocese applied for a stay on the grounds that a trial would be necessarily unfair given the historical nature of the allegation and the fact that the alleged abuser was deceased.

Kiefel CJ, Gageler J and Jagot J made the following comment regarding the stay of proceedings:

“As explained, the fact has some 55 years have passed since the alleged sexual assault, in and of itself, is immaterial. The details of the alleged sexual assault are not vague and uncertain…The Diocese was aware of and had acted on the fact that Father Anderson (alleged abuser) has sexually abused boys while a priest well before the sexual assault of GLJ occurred…”

Additionally, with the enactment of the Limitation Amendment (Child Abuse) Act 2016 (NSW), limitations periods no longer affect when proceedings can be commenced. Kiefel CJ, Gageler and Jagot JJ commented that:

“In this new legal context, the Diocese’s contention that any trial of the proceedings would be necessarily unfair must be rejected. As the Diocese acknowledges that its case for a permanent stay for abuse of process was based only on necessary unfairness of a trial and not undue oppression or unfairness otherwise, no permanent stay is justified.”

“The proceedings must go to trial.”

Conclusion and Orders

Kiefel CJ, Gageler and Jagot JJ surmised that the NSW Court of Appeal were wrong to conclude that there could be no fair trial of the proceedings and they should not have been the subject of an order for a permanent stay. They should proceed to trial.

The following orders were made:

1. Appeal allowed
2. Set aside orders 3-5 made by the Court of Appeal of the Supreme Court of New South Wales on 1 June 2022 and, in lieu thereof, order that:
3. The appeal be dismissed; and
4. The applicant pay the respondent’s costs of the appeal.
5. The respondent pay the appellant’s costs of the appeal to this Court.

Effect on Historical Abuse Claims

The High Court’s decisions become binding for all lower courts in Australia. Had the appeal been dismissed, it would make it difficult for future historical abuse claims to succeed, where permanent stay applications were possible.

It is hoped that the outcome of the GLJ appeal will also force Defendant’s to exercise restraint in the application for permanent stays in the future.