Personal Injury

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

The Plaintiff (pseudonym GLJ) commenced proceedings on 31 January 2020 for damages for psychiatric injuries arising out of abuse at the age of by Fr Clarence Anderson in the Diocese of Lismore in 1968.   In the initial proceedings, the Diocese sought orders for a permanent stay on the proceedings[1], arguing that they only received a complaint about GLJ’s allegations in 2019.  They contended that virtually all key individuals, including Fr Anderson who could provide instructions or evidence had passed away, and therefore made a fair trial impossible.  This matter underwent two overturned decisions before reaching the High Court.

The High Court clarified that the decision to grant a permanent stay hinges on whether a trial would be necessarily unfair or unjustifiably oppressive to the Diocese.  In the High Court’s evaluation, it considered that the primary judge had refused the permanent stay as ‘a fair trial need not be a perfect trial’, and that the very removal of the Statute of Limitations for child sexual abuse proceedings is an acceptance that fading of memories and evidence loss are expected consequences of delay in matters relating to child sexual abuse.  Merely because evidence has become ‘stale’ or that the perpetrator has deceased, is not sufficient reason for proceedings to be stayed.  Therefore, a permanent stay is only to be granted in exceptional circumstances and only a measure of last resort.

Even though Fr Anderson had passed away by the time GLJ had commenced proceedings, there were still circumstantial evidence that the Diocese received complaints and had knowledge concerning Fr Anderson’s offending against children.  The High Court considered that Diocese had years before Fr Anderson’s death in 1996 to make inquiries into the allegations of abuse they were informed of. This favourable decision for the plaintiff is a reminder that circumstantial evidence that supports the perpetrator’s identity, the institution’s knowledge, the perpetrator’s role will be important in arguing the case itself and against any permanent stay application.