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

At a glance

• On 1 November 2023, the High Court of Australia delivered its decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, which we covered here. The majority (Kiefel CJ, Gageler and Jagot JJ) delivered a joint judgment allowing the appeal, with Gleeson and Steward JJ providing separate dissenting judgments.
• While the decision has clarified that the statutory removal of limitation periods has created a “new world” where the degradation of evidence due to the passage of time is no longer a sufficient basis to justify a stay, an open question remains as to how factually different cases must now be considered. Until this becomes clear, all applications face a greater degree of uncertainty and risk.

Background

The appellant, ‘GLJ’, alleged that she was sexually abused by a priest, Father Anderson, within the Diocese of Lismore (Diocese) in 1968 when she was 14 years old. Father Anderson died in 1996. GLJ sued the Diocese in the Supreme Court of NSW, alleging that it was liable to her in negligence and was also vicariously liable for the abuse by the alleged perpetrator.

The Diocese filed an application seeking a permanent stay of proceedings on the basis that a fair trial could no longer be held due to the paucity of evidence and because Father Anderson and other material witnesses had died. In September 2021, the Diocese’s application was dismissed at first instance by Campbell J. The Diocese appealed the decision to the NSW Court of Appeal and was successful in having the proceedings permanently stayed. GLJ was granted special leave to appeal the decision of the NSW Court of Appeal to the High Court.

The majority ruling

The High Court was asked to determine the applicable standard for appellate review of an order of a court permanently staying proceedings. This note will not canvass this aspect of the decision which will be largely of interest to practitioners.

The High Court was also asked to determine whether GLJ’s case involved an abuse of process justifying a permanent stay of proceedings. The majority held that the NSW Court of Appeal erred in allowing the Diocese’s application for a permanent stay in all the circumstances and considered that GLJ’s case is one that ought to be heard and determined.

Their Honours commenced their judgment by noting the context in which the power of a court to permanently stay proceedings is to be exercised in cases concerning death or injury resulting from child abuse. These are said to have created a “new normative structure”. Following the Royal Commission into Institutional Responses to Child Sexual Abuse, the NSW Parliament in 2016 removed the limitation period for the commencement of proceedings for death or injury resulting from child abuse (see s 6A of the Limitation Act 1969 (NSW)). That provision does not limit the existing powers of a court to safeguard the right to a fair trial, however, the removal of the limitation period in cases falling within this “class” means that it can no longer be maintained that the passing of time alone enlivens any power of a court to grant a permanent stay of proceedings to prevent an abuse of process. Only “exceptional cases” will justify the exercise of the power of a court to permanently stay proceedings. “The common and expected effects of the effluxion of time” will not, of itself, reach the level of “exceptional circumstance” justifying the extreme remedy of a permanent stay being granted. Rather, that decision must be one of last resort on the basis that no other option is available.

The majority also noted that a court was not bound to accept uncontradicted evidence, and a plaintiff might still fail to prove their case to the requisite Briginshaw standard.

Having regard to the facts in GLJ’s case, the majority considered that there were no “exceptional circumstances” warranting a stay. The death of Father Anderson led to a degree of forensic disadvantage, but the Diocese had documentary evidence regarding:

1. the parishes to which Father Anderson had been assigned and when
2. the nature of the work a priest in Father Anderson’s position was likely to have performed, and whether this was in the nature of the pastoral care alleged by GLJ
3. other complaints which had been made about Father Anderson involving sexual abuse of young boys
4. Father Anderson’s response to allegations of sexual misconduct, as well as other evidence he had given “on oath” regarding his petition for laicisation, and
5. the resolution of a series of previous claims involving allegations of sexual misconduct by Father Anderson against young boys that involved the payment of money to victims and findings that the allegations against Father Anderson had been “substantiated”.

The majority found that all the Diocese had lost by reason of Father Anderson’s death was the opportunity to ask him if he sexually assaulted GLJ and the possibility of calling Father Anderson as a witness. However, the loss of these opportunities did not mean a trial would be unfair, noting:

1. The details of the alleged sexual assault of GLJ are not vague and uncertain.
2. The Diocese was aware of and had acted on the fact that Father Anderson had sexually abused boys while a priest well before the alleged sexual assault of GLJ occurred.
3. Father Anderson was not a defendant to GLJ’s proceedings. The evidence about Father Anderson’s sexual conduct meant it could not be presumed that the Diocese would have sought information from Father Anderson had he been alive or necessarily would have called him as a witness.
4. While the specific allegations of GLJ were not put to Father Anderson when he was alive, there is evidence from which it could reasonably be inferred that he would have denied the allegations. Allegations of sexual abuse of boys had been put to Father Anderson while he was alive and he denied any wrongdoing or rebutted any suggestion of impropriety.
5. The laicisation process gave the Diocese an opportunity to take steps to make further inquiries about Father Anderson having sexually abused children, and the Diocese was on notice of him having allegedly sexually abused boys before his death. The majority distinguished this from decisions in Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 and Connellan v Murphy [2017] VSCA 116 where the claims emerged without any prior hint of an issue.
6. The death of Father Anderson did not prevent the Diocese from finding to its own satisfaction that other complaints of sexual abuse by him had been substantiated and paying compensation.
7. There was a considerable body of documentary evidence available of relevance.

The dissenting judgments

Gleeson and Steward JJ provided separate dissenting judgments. Their Honours would not have found that the removal of the limitation period created a “new normative structure” and noted that Parliament expressly preserved the power of courts to stay cases in the words of the statute. Considering GLJ’s case through the lens of the orthodox principles concerning stays, the Diocese was “utterly in the dark” and unable to meaningfully respond to the allegations. Their Honours would have dismissed the appeal and allowed the stay to remain in place.

Implications

It was hoped the High Court’s decision would provide some clarity to practitioners and institutions with respect to this complex and fraught area of law. At a certain level, the decision has done that. Institutions now know that the statutory removal of the limitation periods has created a “new world”, and that degradation of evidence due to the passage of time is no longer a sufficient basis to justify a stay.

However, questions remain. The dispositive reasoning of the majority judgment turned on factual matters unique to GLJ’s case, including that Father Anderson had a documented sexual interest in (male) children. Many other cases can be distinguished, including where the alleged perpetrators had no prior history. There is an open question as to how factually different cases must now be considered having regard to the “new normative structure”. What is considered an “exceptional case” warranting a stay, in a post-GLJ world, will now need to be explored again by first instance and appellate courts. Until this becomes clear, all applications face a greater degree of uncertainty and risk.

There is also a question as to the enduring legacy of the GLJ case itself. The Court was split three-to-two, and one member of the majority, Her Honour Kiefel J, retired shortly after the decision was handed down. It is perhaps unfortunate that a bench of seven was not empanelled to hear this important case. The decision may be affirmed, distinguished or overturned in years to come.

The majority decision notes that claimants must prove their case to a Briginshaw standard, and that this is a high threshold that some claimants may fail on, even if their evidence is uncontradicted. While the decision rightly restores focus on the important Briginshaw test, in practice, it is difficult to confidently predict outcomes when an institution simply puts a claimant to proof on allegations, especially when their evidence is uncontradicted. We expect that, notwithstanding the importance of Briginshaw, many first instance courts will be slow to find allegations of abuse did not occur in such circumstances.