On GLJ v The Trustees of the Roman Catholic Church
[2023] HCA 32 Date of Hearing: 8 June 2023 Date of Judgment: 1 November 2023
S150/2022
Orders
- Appeal allowed.
- 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:
(a) the appeal be dismissed; and
(b) the applicant pay the respondent’s costs of the appeal.
- The respondent pay the appellant’s costs of the appeal.
Background
The Appellant GLJ, commenced a claim for damages for personal injury against the Respondent, Trustees of the Roman Catholic Church for the Diocese of Lismore, 52 years after she was sexually assaulted by a priest of the Diocese of Lismore in 1968 when she was 14 years of age.. There was no limitation period applying to the claim for child sexual abuse- s 6A of the Limitation Amendment (Child Abuse) Act 2016 (NSW)
The Diocese sought a stay of proceedings, being an abuse of process as the trial would be unfair in all the circumstances, given it was 55 years since the abuse and the alleged perpetrator, the priest was dead. The Supreme Court of NSW (Campbell J) dismissed the application for a permanent stay. The NSW Court of Appeal (Macfarlan, Brereton, and Mitchelmore JJA) granted leave to appeal, allowed the appeal, and permanently stayed the proceedings.
Key issues for Determination by the High Court
1/Firstly, the applicable standard for 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.
2/ Secondly, whether the appellant’s (GLJ) proceedings against the respondent (Trustees of the Roman Catholic Church for the Diocese of Lismore) involve an abuse of process, thereby justifying a permanent stay of the proceedings
High Court’s Determination (KIEFEL CJ, GAGELER AND JAGOT JJ)
1/ The Applicable standard
The HCA held
“…the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial …. would be irreconcilable with the administration of justice through the operation of the adversarial system.” [3]
“That ultimate decision must be one of last resort on the basis that no other option is available….only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings.”
A refusal of a Court to hear and decide cases “….other than exceptional circumstances and as a last resort …. will both work injustice and bring the administration of justice into disrepute.”
HCA acknowledged that s 6A of the of the Limitation Amendment (Child Abuse) Act 2016 (NSW) has created a new legal context for assessing abuse of process.
HCA held that the respondent’s contention of unfairness of a trial justifying the grant of a permanent stay was not sufficient. The power under s 67 of the Civil Procedure Act to permanently stay proceedings is evaluative not discretionary. Unfairness of a trial is not sufficient to the grant of a permanent stay. The trial must be unfairly and unjustifiably oppressive as to constitute an abuse of process
HCA held that “The doctrine of abuse of process is one element in a court’s armoury to protect the administration of justice, but it is to be understood as a measure of last resort to be exercised only in exceptional circumstances.”
In assessing abuse of process the HCA held that a “balancing exercise” is best avoided, rather the real issue is whether the holding a trial is congruent with the fundamental norms underlying our legal system. [22]
Firstly, the HCA held that the applicable standard is the “correctness standard” identified in Warren v Coombes. An error of principle, as applied in House v The King, is not required.
[at 47]
“ …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.”
[ at 49]
“…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. “
[At 50] “Accordingly, a person within the relevant class created by s 6A of the Limitation Act can “allow time to pass” if that passing of time involves nothing more than the expected consequences of the types of psychological harm caused by the child abuse ….(and not, for example, a deliberate forensic decision to try to obtain some advantage from delaying the making of the claim). Further, the inevitable fading of memories and loss of evidence (whether it be from death, illness, infirmity, or the loss or destruction of documents), in the context established by s 6A, are properly to be understood as routine and unexceptional sequelae of the harm caused by the alleged act the subject of the claim. “
[at 52]“ The requirement of “exceptional circumstances” involves a qualitative, not quantitative, assessment. But that qualitative assessment is one now undertaken in the context set by s 6A…… In the face of s 6A, the mere effluxion of time and the inevitable impoverishment of the evidence which the passing of time engenders cannot attract the quality of exceptionality ….to justify the extreme remedy of the grant of a permanent stay. If that were so, public confidence in the administration of justice in accordance with the law as enacted by Parliament would itself be undermined.
2/ Secondly, whether the proceedings involved an abuse of process so justifying a permanent stay
HCA held that each case will be dependent on its facts, however the context of the alleged child abuse (whether domestic and private or institutional) is likely to be of relevance as to whether a trial will be so unfair and oppressive as to constitute an abuse of process. [64]
HCA stated that “circumstantial evidence is still evidence” such that the respondent in the case was “…not utterly in the dark” due to the death of Father Anderson.
HCA at [75] questioned as to what has been lost by the death of Father Anderson other than to ask him if he sexually assaulted GLJ, call him as a witness or settle the case.
It held, “The loss of these opportunities does not make a trial of GLJ’s claims unfair….”
The HCA went on to note the particulars circumstances being
1/ Father Anderson as not a Defendant to the case. The documentary evidence as to his sexual conduct was such that it cannot be presumed that the Diocese would have sought his instructions;
2/ Whilst not put to him, it could be reasonably inferred that he would have denied them as he had done so previously in 1971, under oath;.
3/ It can be inferred from other documentary evidence that Father Anderson would have denied it;
4/ “…the laicisation process gave the Diocese an opportunity to take whatever steps it saw fit to make further inquiries about Father Anderson having sexually abused children.”
5/ The death of Father Anderson did not prevent the Diocese from making their own findings;
6/Other documentary evidence, including that of the Psychiatrist to whom he was referred was available.
