Personal Injury

On Wednesday 22^nd November 2023, the NSW State government provided a response to the High Court decision in GLJ. The Government welcomed the decision and acknowledged that permanent stays should be a measure of last resort.  The NSW Government full motion is set out below.

CHILD SEXUAL ABUSE PROCEEDINGS AND PERMANENT STAYS

The Hon. JEREMY BUCKINGHAM (17:21): I move:

1. That this House notes that:
   (a) a case was brought in January 2020 by the appellant known as “GLJ”, who commenced proceedings in the Supreme Court of New South Wales against the Trustees of the Roman Catholic Church for damages for personal injury resulting from alleged child sexual abuse perpetrated against her in 1968 when she was 14 years old;
   (b) the alleged perpetrator was a priest incardinated in the Diocese of Lismore;
   (c) the church had sought a permanent stay of proceedings, thus cutting off any hope for justice in civil law for the plaintiff; and
   (d) the appellant appealed this permanent stay to the High Court of Australia, which handed down its decision last month.
2. That this House welcomes:
   (a) the recent High Court decision in favour of GLJ, where the judgement severely limited the use of permanent stays as a means of preventing litigants, especially child sexual abuse survivors, from pursuing their case in court;
   (b) the conclusion, which stated that “the jurisdiction to grant a permanent stay must be understood as a measure of last resort”; and
   (c) the prospect that future survivors of child sexual abuse will be free to have their case tested in court without unfair
   impediment, and to obtain just compensation if they win.
3. That this House notes the High Court’s decision and reasoning in GLJ in which the focus was on the rights of the survivor to bring a case at any time, over and above the right of the institution to assert prejudice due to lapse of time.
4. This House calls on the Government to:
   (a) consider legal or other mechanisms for those child abuse survivors already affected by permanent stays to seek justice;
   (b) consider changing statute law to ban the use of permanent stays altogether in cases where child sexual abuse is alleged; and
   (c) consider enacting legislation to amend the Limitation Act 1969 to remove this roadblock to justice once and for all.

I draw the attention of the House to what I believe is a very important and welcome decision handed down by the High Court of Australia on 1 November. In January 2020, the appellant known as “GLJ” commenced proceedings in the Supreme Court of New South Wales against the Trustees of the Roman Catholic Church for the Diocese of
Lismore for damages for personal injury resulting from child sexual abuse alleged to have been perpetrated against her in 1968 when she was 14 years old. The alleged perpetrator was Father Clarence Anderson, who died in 1986 well before GLJ made a complaint to the Diocese of Lismore. The church argued that a just trial was
impossible and sought a permanent stay of proceedings. An investigation by The Guardian Australia found that the church was routinely using permanent stays in cases where perpetrators had died, either to defeat active claims before the courts or to lowball survivors in settlement negotiations.

I note the research of Sydney barrister James Masur, who has strongly challenged the use of permanent stays in child sexual abuse cases. He argues that, too often, the very threat of a permanent stay will be enough to coerce a vulnerable survivor into a settlement that is not in their interests, or to risk an adverse costs order amounting to many tens or hundreds of thousands of dollars. Mr Masur also notes that it is in the nature of child sexual abuse that many survivors do not feel able to reveal their trauma or pursue justice until well into adulthood.

He further says that the legal barriers imposed by limitation periods unfairly deprive plaintiffs of having their
matters determined on merit. As with any other proceeding, if a case is vague or has no merit, the plaintiff is likely
to lose.
The use of permanent stays is plainly against the spirit, if not the letter, of the findings made by the Royal Commission into Institutional Responses to Child Sexual Abuse, which lifted the previous limitation to prosecuting child abuse cases. I refer the House specifically to recommendation 7.5 which states:

The Australian Government and state and territory governments should ensure that legislation provides comprehensive protection for individuals who make reports in good faith about child sexual abuse in institutional contexts. Such individuals should be protected from civil and criminal liability and from reprisals or other detrimental action as a result of making a complaint or report

I also refer to recommendation 7.6:

State and territory governments should amend child protection legislation to provide adequate protection for individuals who make complaints or reports in good faith to any institution engaging in child-related work about:

a. child sexual abuse within that institution or
b. the response of that institution to child sexual abuse.

Such individuals should be protected from civil and criminal liability and from reprisals or other detrimental action as a result of making a complaint or report.

Finally, I quote Peter Karp, a solicitor who is a tireless defender of the legals rights of survivors of sexual assault. He told me:

The Royal Commission into Institutional Responses to Child Sexual Abuse made recommendations for the enactment of legislation to remove limitation periods for child abuse actions. The New South Wales Court of Appeal has taken a narrow interpretation of those provisions and child abuse actions heard since the removal of the limitation period, whereby institutions are able to rely upon the lapse of time since the abuse occurred as the basis for an application seeking the survivor’s claim to be permanently stayed.

In light of the High Court’s decision and reasoning in GLJ in which the focus was on the rights of the survivor to bring a case at any time, over and above the right of the institution to assert prejudice due to lapse of time, will the Parliament now enact legislation to amend the Limitation Act to remove this roadblock to justice once and for all?

For these reasons, I commend the motion to the House.

The Hon. MARK BUTTIGIEG (17:26): On behalf of the Government, I thank the Hon. Jeremy Buckingham for bringing this motion to the House. On Wednesday 1 November the High Court of Australia handed down its decision in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore. The High Court found in favour of the appellant and overturned the Court of Appeal’s decision to order a permanent stay.
The appellant will now be able to continue to pursue civil litigation against the respondent, seeking compensation for injuries suffered as a result of the alleged abuse. The Department of Communities and Justice is carefully considering this decision and its implications for the use of permanent stays in civil litigation relating to historical child abuse.

The Attorney General has requested a brief on the High Court judgement and any implications that it may have. This is matter of significance that the New South Wales Government must consider incredibly carefully. I provide some brief background to illustrate why the Government must take a careful and considered approach to responding to this ruling. I draw to the attention of the House two of the recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse in its Redress and Civil Litigation Report. The first of those recommendations was:

State and territory governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of a person resulting from sexual abuse of the person in an institutional context when the person is or was a child.

We have done that in New South Wales and limitation periods do not apply to these particular claims. The second relevant recommendation made in the report was:

State and territory governments should expressly preserve the relevant courts’ existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period.

The royal commission did not make this recommendation lightly. That is obvious from the careful consideration given in the report to competing arguments about limitation periods. One of the arguments made in the report in favour of limitation periods being relaxed was that the interests of the defendant would still be protected by the court’s jurisdiction to stay proceedings if any delay has made the chances of a fair trial unlikely.

Specifically, the report stated that the commission acknowledged that institutions might face additional claims if limitation periods were removed with retrospective effect and they now have been in New South Wales but was satisfied that limitation periods had worked great injustices against survivors for some time. The report also considered that institutions’ interests are adequately protected by the need for a claimant to prove his
or her case on admissible evidence and, importantly, also acknowledged the court’s power to stay proceedings in the event that a fair trial is not possible. In the time that remains for my speech, suffice it to say that the Government supports the motion as it asks for the Government to consider mechanisms and changing statute law, which we will do.

The Hon. SUSAN CARTER (17:30): I contribute to debate on the motion moved by the Hon. Jeremy Buckingham, and thank him for bringing this difficult issue to the attention of the House. Abuse of any kind is always wrong and cries out for justice, and child abuse can never be tolerated by a civil society. The legal system, which offers some hope of redress for survivors, should not inflict further harm or suffering. In 2016 then
Attorney General the Hon. Gabrielle Upton observed:

…the abuse suffered by many children and young people in our community … can continue to cause trauma and hardship for decades.

This was on the occasion of the introduction of the Limitation Amendment (Child Abuse) Bill 2016, which acknowledged the suffering of the survivors of child sexual abuse and sought to remove barriers to justice. The Attorney General recognised:

Legislation is not enough to take that pain [of abuse] away, but by removing the limitation periods for damages claims the bill will lift one barrier to justice for survivors of child abuse.

The bill inserted section 6A into the Limitation Act, which now provides that there is no limitation period for child abuse actions in New South Wales. I am proud to be a member of the party that was responsible for this important reform, which has offered hope and redress to a number of survivors. Section 6A (6) makes clear that it does not limit the inherent jurisdiction of the court, so the court’s power to permanently stay proceedings
remains. The motion calls for this to be reconsidered. As my colleague the Hon. Mark Buttigieg indicated, any reconsideration would require a careful weighing of factors as if, in seeking to improve access for survivors, we created other injustices. This would be very unfortunate. Happily, proceedings are rarely stayed. As the New South Wales Court of Criminal Appeal observed in R v Littler in 2001, the stay has long been considered:

a remedy of last resort, only used in most exceptional circumstances, where any trial would involve such oppressive unfairness, incapable of being overcome, that it would be an abuse of process.

This view was recently endorsed by the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore and reminds us that in our system, Parliament and the courts are responsible together for the shaping of our legal system. Indeed, in GLJ, the majority of the High Court found that any abuse of process that
could justify a stay must be evaluated in the context of section 6A. The best answer for child abuse is prevention. Legal action after the fact can never provide a complete redress. I endorse the intent of the motion that the legal system should not constitute a barrier to healing. Our amendments have started the process, but it is clear that this
work is ongoing. It is not a finished book that can be put back on the shelf.

Ms SUE HIGGINSON (17:33): On behalf of The Greens, I support this motion moved by the Hon. Jeremy Buckingham. The GLJ decision is an important step on the path to justice for survivors of institutional sexual abuse. Permanent stays have been weaponised by the Catholic Church and other institutions to deny justice to people who have experienced the very worst of crimes. Not only have children been abused by
members of the church, those perpetrators have been protected by the institution while they were alive and after they have died. These institutions have shown that they care more about cladding and sheltering their institution than justice and fair compensation for the people who have had their lives torn apart by the trauma.

Permanent stays are an important function of our legal system that can be used in exceptional circumstances, when nothing else can be done, to avoid an unfair trial. This legal mechanism has been identified and exploited by institutions to avoid accountability in child sexual abuse cases, protecting the institution from prosecution, even when the evidence has been compelling. And it is not just the Catholic Church that has
weaponised permanent stays. We saw it in May this year when the New South Wales branch of the Scouts shielded an alleged perpetrator of child sexual abuse by securing a permanent stay. We know that in many cases the mere threat of a permanent stay has been used to push victim-survivors into accepting compensation payments that are
far lower than what they might have won in a court case, and do not go close to reflecting the scale of suffering that has been caused by the institutional abuse they have suffered.

The High Court decision to overturn in the case of GLJ has rightly opened the door, which has been jammed shut, just enough to let some light in. Allowing this case to proceed means that all of those who have been denied justice through the use of permanent stays now have a small glimmer of hope of accessing justice. But the
Government now needs to respond to prevent the weaponising of permanent stays by powerful institutions against those who have endured the very worst. This needs to be a delicate reform that does not impede the ability of courts to make permanent stay orders where the circumstances of the case genuinely risk a miscarriage of justice, thereby maintaining the power of the courts to genuinely ensure that people are notsubject to unfair trials.

We must make reforms to prevent permanent stays from being wielded by powerful institutions to avoid justice. We must also review the payments that have been accepted under the threat of a permanent stay to ensure that all victim-survivors of institutional abuse have access to justice and fair compensation. We look forward to seeing what the Government brings forward. This is a live matter that we should not be delaying at all.  People are suffering and the Government must take steps.

The Hon. CAMERON MURPHY (17:36): I thank the Hon. Jeremy Buckingham for moving such an important motion that deals with such a traumatic and difficult issue. Child sexual abuse is an abhorrent crime that the State needs to do everything to stamp out. We must act to ensure that victims have access to justice and the full support of the State in terms of redress for the suffering that they have endured because of this crime. The motion asks us to consider a number of effects, including removing permanent stays. It is a really complicated problem and it is important that the Government examines this in detail, and carefully considers what has come out of the GLJ decision of the High Court. That decision reminds us that a permanent stay should be a matter of
last resort.

The High Court also found that the New South Wales Supreme Court was granting permanent stays too readily in these cases, which acted as a barrier to people who were seeking justice and seeking redress as victims of child sexual abuse. Far too readily the Supreme Court was granting stays in favour of the horrific institutions that had perpetrated this abuse, which, in effect, assisted those institutions to cover up their horrific crimes. By the same token, it is a complicated issue. In my view, we must be very careful about removing permanent stays. From memory, section 6A of the Limitation Act 1969 sets out the removal of the limitation period for crimes of child sexual abuse. As the Royal Commission found, it is a balancing act. If we remove the ability of people to make a claim, we still need to provide a permanent stay. I think it has been abused. Permanent stays have been used far too often and, as the previous speaker said, they have been, in a sense, weaponised. But we must look at this issue carefully, consider that decision and find a pathway forward that ensures that we have access to justice and we look after victims. I would like to see a system where litigation is avoided and people are properly
compensated without having to go through that process, but I welcome the motion and thank the honourable member for bringing it to the House.

The Hon. NATALIE WARD (17:39): I was not going to speak on this motion, but I feel compelled, so I will attempt to do so briefly. It would be remiss of me not to. I welcome the honourable member’s motion. I readily admit that there are far too many lawyers in this place, but it behoves those of us who had a prior life in the profession to acknowledge the incredible work done here. I acted for hundreds of child sexual abuse
survivors those who did survive, who did not succumb and were able to bring a claim. Hundreds and hundreds cannot bring themselves to face bringing a claim to bring perpetrators to account. In the dark days, when we were bringing those claims and trying to work with the church through the Towards Healing program, many victim-survivors were persuaded to settle their claims because the heavy burden of going to court for a fully litigated set of proceedings was just too much. So I am proud of our Government’s record and acknowledge the work of the Hon. Mark Speakman, SC, who did some big work for the Government in signing up to the redress scheme, which I welcomed.

The motion before the House is sensible. This area should continue to evolve, and we should continue to address the obstacles to justice in our legal system and amend them. I hope that the House does not mind the indulgence of my acknowledging my husband, David Begg, who acted pro bono for hundreds of clients. We took the Catholic Church to the High Court and were unsuccessful in the Ellis case against the Catholic Church, which gave rise to the famous Ellis defence. To go from that to standing in this place, where we brought in the redress scheme, with the church eventually agreeing to not use that defence, was a defining moment for me on this journey. I know that hundreds of other people were involved in that; I am not taking credit. It is a moment when
I feel obliged to acknowledge the work of this member in bringing this motion forward and ask the Government to consider this change, the High Court’s decision and what it can do to look at these mechanisms.

We have come a long way, but it behoves us to continue reforming this area of law to make it easier to seek and achieve justice. I acknowledge absolutely that there is a place for permanent stays, but there is a time and a place to recognise that the sheer obstacle of facing court is quite enough for these survivors. I commend and thank the honourable member for bringing the motion. My thoughts are with all of those victim-survivors and
those who have not survived.

The Hon. STEPHEN LAWRENCE (17:42): I will say a few things about this important motion and the important decision of the High Court. One of the welcome developments in the law in recent decades is the renewed advent of civil actions in relation to sexual crimes. I think that it started with civil actions in relation to child sexual abuse, but it has also accelerated in more recent times in relation to adult sexual abuse. It is a welcome
thing. Obviously, the accused persons, perpetrators or responsible institutions will not always be persons of means, but they often are. It is a good thing when victims take civil actions, whether after or in lieu of a criminal action. It needs to be said, though, that the power to stay a prosecution on the basis that no trial could be fair is a fundamentally important one, virtually a constitutional guarantee, and it applies to any party, whether an accused person in a criminal matter or a respondent in a civil matter. I do not think that it can be removed, ultimately.

I have read the decision of the High Court. One unfortunate thing is that not all seven judges sat. It was a court of only five, and the court was divided three to two on quite a complex matter. It is unfortunate that its weight of authority is perhaps somewhat reduced because of that. An interesting part of the judgements is focused on the question of the legal significance of the removal of the statute of limitations for these matters. The majority view was that the removal of the statute of limitations by the Legislature signalled something important in relation to the qualitative assessment of fairness. That removal, to them, was a signal thing in concluding that the trial
could be fair, whereas, in the view of the minority, that had no relevance because, from the royal commission onwards, it was clear that the power to permanently stay was preserved, notwithstanding the removal of the statute of limitations.

It is a complex series of issues. I think that the impact of this decision on cases that have been disposed of by way of permanent stay or settlement will lie to be determined in the context of the principle of finality of litigation. I suspect that these things will be hard to unpick, but we have moved to better times for these matters, and one sign of that is the civil litigation that people engage in to vindicate their rights after these terrible crimes
against them.

The Hon. JEREMY BUCKINGHAM (17:46): In reply: I thank all members for their considered, thoughtful, informed contributions to this important debate: the Hon. Mark Buttigieg, the Hon. Susan Carter, the Hon. Cameron Murphy, Ms Sue Higginson, the Hon. Natalie Ward and the Hon. Stephen Lawrence. Clearly, there are a lot of lawyers in this place, maybe too many. But it is good to see that the Government and all sides of
politics recognise the importance of this decision and this issue and the profound impact that institutional child sexual abuse has had on individuals, families and society as a whole, and that so much work has been done in recent times by the former Government, by this Government, hopefully, and by society as a whole to redress those horrendous crimes and to make sure that victims of those crimes have access to justice.

The motion is a request for the Government to consider, and I welcome the contribution from the Parliamentary Secretary, saying that the Attorney General will be doing so. I did not include this in the motion, but I will be suggesting in a letter to the Attorney General that this matter be referred to the Standing Committee on Law and Justice. I think that that is an appropriate place for this matter to be considered by all parties and for
a considered response to a complex and serious issue to be thoroughly developed. It is an appropriate way for this House to continue its work in reforming this space. We must always act to make sure that people impacted by these crimes have access to justice and that permanent stays are not weaponised or used, as Ms Sue Higginson said and the Hon. Natalie Ward suggested, in a way that makes people less inclined to pursue justice. With that said, I thank all honourable members for their consideration and commend the motion to the House.

The DEPUTY PRESIDENT (The Hon. Dr Sarah Kaine): The question is that the motion be agreed to.

Motion agreed to.