Dear Colleagues;

The High Court of Australia today handed down its decision on the appeal in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 (1 Nov 2023). By a 3-2 majority, it overturned the decision of the NSW Court of Appeal, and held that a civil trial for sexual abuse of GLJ by a Roman Catholic Assistant Priest, Father Anderson, committed in 1968, should be allowed to proceed. (The decision was one of four handed down today which seem to be the final judgments in which Kiefel CJ played a part; her Honour’s retirement as Chief Justice takes effect soon.)

 

GLJ, a girl, was 14 years old in 1968, and Father Anderson had, she alleges, been recommended to provide pastoral care to her family by the local Bishop. She alleges that he sexually assaulted her one day when alone in the house with her. However, as far as records of the Diocese show, she made no complaint about this incident until 2019, some years after Father Anderson’s death in 1996. GLJ sues the Diocese as liable either for personal negligence (in failing to protect her from him when he was known to be a child abuser), or vicariously liable for his actions. (It may be noted in passing that the vicarious liability of the Diocese for actions of a priest is by no means clear under Australian law- that issue is not discussed in this decision, which only deals with the question of abuse of process based on passage of time making a fair trial impossible. Whether or not a Bishop is vicariously liable for a sexual battery committed by a cleric is currently before the High Court, which on Oct 20 granted special leave to appeal against a Victorian decision so finding- see Bird v DP (a pseudonym) [2023] HCATrans 145).

 

Other relevant facts included that Father Anderson was, it seems, well known by the church authorities to have committed sexual abuse of young boys in his care, for which he had ultimately been removed from the priesthood (“laicised”), but had always denied any interest in young women. There was, as is usual of course, no witness to the abuse. It appears that GLJ claims she told some close to her about the incident shortly after it occurred, but none of these have given testimony in the proceedings so far.

 

The legal background, of course, is the amendment to the laws on limitation of actions which have been implemented around Australia following the findings of our Royal Commission into Institutional Responses to Child Sexual Abuse, which have abolished limitation periods in any claim amounting to child abuse. Note 63 refers to the individual provisions in all jurisdictions outside NSW; in NSW this is now reflected in s 6A of the Limitation Act 1969. While there is now no general limitation period for such claims, s 6A(6) provides that the section does not limit the inherent jurisdiction of the courts, and a legislative “note” provides that :

 

For example, this section does not limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.

 

The trial judge here had been asked by the Diocese to exercise this power to permanently stay the proceedings on the basis that the lapse of time and absence of evidence meant that a fair trial was not possible. He declined to do so, but he was over-ruled by the Court of Appeal, who granted the stay.

Here the majority of the High Court (Kiefel CJ, Gageler & Jagot JJ) over-turn the Court of Appeal and rule that the trial should be allowed to proceed. They say that there are two issues: (1) what is the standard for appellate review of a decision of this sort? And (2) if that standard is “correctness”, was the Court of Appeal correct?

 

On question (1), all the members of the court agree that the standard for review of a decision as to whether it would be an abuse of process for a trial to continue on the ground that a fair trial would not be possible, should be “correctness”, referring to Warren v Coombes (1979) 142 CLR 531 at 552. Such a question, they say, is not “discretionary” in the sense that there would be more than one correct answer; the question has only one answer, and an appellate court should rule, on the basis of the material it has available, as to whether the lower court got the right answer or not. (See the majority, at [26], “the decision is not a discretionary one for the purpose of ascertaining the applicable standard of appellate review”, agreed with by Steward J at [95], Gleeson J at [161]).

 

On question (2), the majority say that the Court of Appeal were not correct to say that a fair trial was not possible, despite the passage of time and the death of the alleged abuser. They point to the decision of Parliament to abolish the limitation period as providing a clear signal that the courts should be very reluctant to stay proceedings simply on the basis of not only the lapse of time, but what Parliament must have known would be other matters that would usually follow, such as lack of surviving witnesses or documents.

See, eg,

 

[42] Where, as here, a limitation period existed and was removed by a legislative act, the legislative act also presumptively removed any conception that a party is ordinarily expected not to sit on their rights and is taken to be responsible for any consequences adverse to their interests that doing so might have. Having eradicated that conception for actions for damages for death or personal injury resulting from child abuse, the section also necessarily removes any requirement or even expectation of an explanation for the passing of time between the accrual of the cause of action and the commencement of the action. Absent proof of a forensic decision by a plaintiff to obtain some advantage from delay or some other relevant potentially disentitling circumstance, the mere fact of the passing of time is of no consequence.)…

[49] Parliament ensured that the potential injustice to the person claiming to have suffered from child abuse of not being able to bring their claim, and the concomitant undermining of public confidence in the administration of justice from that circumstance, presumptively trumped the potential prejudice and injustice that might be caused by the passing of time. In enacting s 6A, Parliament also decided that both the margin for error in human recollection after the passing of years and even decades and a potential lack of opportunity for the defence to fully investigate the surrounding circumstances were not sufficient reasons to maintain the limitation period. (emphasis added)

 

The majority note that other circumstantial evidence may be (and here is) available, and that the court is of course not bound to accept the uncorroborated evidence of the plaintiff (see [71]). Indeed, one reason for holding that a fair trial was possible is that the Diocese had already put forward a number of matters that could be tested at trial, such as whether the date of the alleged abuse was consistent with what could be ascertained about Father Anderson’s movements, his clear tendency to abuse boys but not girls (indeed, he had sworn on oath in his laicisation process that he had in effect never had any interest in girls)- see [68]-[69].

 

In the end, then, the majority concluded that a fair trial was possible. (Of course, that does not mean it will succeed.)

 

The dissenters (Steward J and Gleeson J, writing separately) disagreed. They both reviewed the evidence and concluded that a fair trial was not possible, as in effect the Diocese was “utterly in the dark” about what had happened, and there was no clear further material that could provide more light (see eg the reference to the failure to call the people who had allegedly been told about the abuse at the time (see Steward J at [98], [151]).

 

One further point- all the judgments refer to what has previously been regarded as one of the main decisions on this issue, the decision of the NSWCA in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218. The majority criticise the approach taken in Moubarak on some issues- see para [21] noting that “mere risk that a trial might be unfair” is not enough, which they say was “left open” in the previous case; and in para [22] they say that the question is not one of “balancing” the interests of plaintiff and defendant, contrary to comments in Moubarak. But they also cite the case with approval at other points, and they seem to suggest that an important difference between Moubarak and GLJ is that in the previous decision (where a permanent stay was granted) the allegation of abuse was made against a family member and in a domestic context, where the record-keeping which might be expected of an institution was not present- see [65]. This distinction may provide some guidance for future claims.

 

Regards

Neil