The recent decision by the High Court in GLJ v Diocese of Lismore has provided guidance as to the use of permanent stays in abuse law proceedings. In this matter, the Appellant alleged to have been the victim of sexual abuse in 1968 in her family home. She identified the perpetrator as Father Anderson, a Roman Catholic priest. The Appellant filed a Statement of Claim in the NSW Supreme Court claiming damages for psychological injury following the alleged sexual assault.
The key issue raised in the case was whether the New South Wales Court of Appeal correctly decided to grant a permanent stay to the Respondent. This decision is significant as the High Court's decisions provides binding precedent for all lower courts on the granting of permanent stays.
In a majority judgment by Chief Justice Kiefel, Justices Gageler and Jagot, the High Court has allowed the appeal ruling that the use of permanent stays should be restricted to exceptional cases as a last resort. This article provides a case summary of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore and discusses the potential implications of the recent High Court decision.
What is a permanent stay?
A permanent stay is an essential power held by Australian courts to effectively stop legal proceedings. The use of a permanent stay is intended for circumstances where legal proceedings are subject to an abuse of process ( see Jago v District Court of NSW (1989) 168 CLR 23).
In plain terms, a court can stop proceedings where a fair trial is not possible.
The facts in GLJ v Diocese of Lismore
The alleged abuse occurred in the Appellant's family home on one occasion in the second half of 1968. The Applicant was 14 years old at the time of the alleged abuse.
The Appellant alleges abuse by Father Clarence Anderson, a Roman Catholic priest working in the Diocese of Lismore. Father Anderson had befriended the Applicant's family and was a regular guest at their home. The family attended Mass every Sunday.
Father Anderson died in 1966. The Appellant's allegations were reported in 2019.
History of the Proceedings
GLJ had commenced a legal claim in 2020 against the Diocese of Lismore. They alleged that because of the sexual abuse, they had suffered chronic long-term psychological illness.
The Diocese requested a permanent stay in the proceedings as Father Anderson and all other relevant officials in the Diocese of Lismore alive at the time of the alleged abuse had died prior to the proceedings and allegations.
The trial judge dismissed the request for a permanent stay, reasoning that a fair trial did not necessarily mean a perfect trial and recognised that documentary evidence is rarely available in sexual abuse claims.
The proceedings were then brought to the NSW Court of Appeal in June 2022 which overturned the decision at first instance and granted a permanent stay in the matter. This was on the basis that the lack of potential witnesses diminished the Diocese's ability to investigate the allegations.
GLJ was granted special leave from the High Court to have a decision made as to whether the Court of Appeal correctly granted the permanent stay.
Issues before the High Court
The Court identified two key issues raised in the matter.
The first concerned the relevant standard for an appellate review of a lower court permanently staying a trial.
The second of which is whether the claim brought by GLJ can be justified as a case requiring a permanent stay. This carries significance for practitioners and parties involved with abuse law.
1. The High Court adopts the 'correctness' standard
The judgment relied heavily on the "correctness standard" of Warren v Coombes (1979) 142 CLR 431. The issuing of a permanent stay is an extreme step. The Court noted that a decision to grant a permanent stay could not be one in which reasonable minds differ.
The Majority at [23]-[26] concludes that the power to grant a permanent stay is not discretionary in nature and must protect and maintain the rule of law:
'If a trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process, a court must not permit the trial to be held. If a fair trial can be held and will not be so unfairly and unjustifiably oppressive as to constitute an abuse of process, a court ordinarily has a duty to hear and decide the case'
2. The use of permanent stays
The High Court's decision is rooted in the recent Australian legislative context which removed the limitations period in child sexual and physical abuse claims. This was one of the key recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse in 2017. In claims relevant to child sexual abuse, victims can take decades to understand the traumatic effect of the events which they were subjected to, therefore delaying the commencement of legal claims.
The High Court highlighted that the removal of a limitation period by Parliament meant that the diminution in memory, documentary evidence, and lack of opportunity for defendants to fully investigate surrounding circumstances are not by themselves sufficient justifications for staying proceedings. The Court's reasoning highlights that the Australian legal system is an adversarial one in which proceedings are often decided on incomplete evidence subject to the relevant standard of proof. The onus therefore remains on the Plaintiff to persuade the relevant fact-finder of their claim noting judges are not obliged to accept uncontradicted evidence.
What does this mean?
The High Court's decision means that the decision of Campbell J who dismissed the permanent stay application at first instance stands.
Likely implications of decision
Chiefly, the decision affirms the institutional value of the High Court and the necessity of public confidence in the Australian judicial system as quoted in [47] of the decision:
"... But, as observed in Ridgeway v The Queen, public confidence in the administration of justice depends on contemporary values. In the context of child abuse claims, Parliament has created the relevant framework of contemporary values. Parliament has accepted that, in the ordinary course, there is likely to be long delay in the bringing of such claims before the courts. It has acted to enable such claims to be brought at any time. It is for the courts now to evaluate contentions of abuse of process within this new normative structure."
The majority judgment observed that the context within which the abuse occurred is a relevant consideration. Trials concerning child abuse which occurs in an institutional setting as opposed to a private or domestic setting are less likely to be considered necessarily unfair as to constitute an abuse of process due to the likely existence of tendency evidence and documentary records. It is very likely that tendency evidence will continue to play an important role in child abuse claims.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
