In a big win for abuse victims, the High Court of Australia has overturned a permanent stay on a woman’s negligence claim against the Catholic Church for alleged child sex abuse, allowing the case to go to trial. Attwood Marshall Lawyers Compensation Law Partner Jeremy Roche discusses the huge implications of this welcome decision.
A NSW Court of Appeal decision that blocked an institutional sex abuse claim against the Catholic Diocese of Lismore from going ahead has been overturned, marking a significant victory for abuse victims and setting an important precedent for how courts will handle future institutional abuse cases.
The Church had argued that because the alleged abuser was now deceased, it could not gather the necessary information to fairly defend itself and that the matter should be permanently stayed. This means that the court allowed a permanent halting of the legal matter, resulting in no relief or compensation for the abuse victim.
Following this decision, defendant lawyers across the country started arguing for a permanent stay in many other abuse compensation claims currently on foot.
Fortunately, the matter went to the High Court which found that a permanent stay was not justified and that the matter must go to trial.
If the Court of Appeal’s decision had been upheld, the result would have been abysmal – leading to the denial of other fair claims from those who have suffered abuse across the country. Abuse victims usually cannot speak about the horrific trauma they have endured as a child for many decades, if at all. By the time they can finally come forward with a claim, several decades have often passed and the much older perpetrators have often died.
The High Court said that a permanent stay in this case would be unjust and “bring the administration of justice into disrepute,” particularly when it was Parliament’s intent that no limitation period should apply to claims of this kind.
“It is always an extreme step to deny a person the opportunity of recourse to a court to have their case heard and decided,” the High Court said.
The Case: GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; BC202315504
The plaintiff, GLJ, filed proceedings in the Supreme Court of New South Wales in January 2020 against the Trustees of the Roman Catholic Church for the Diocese of Lismore. GLJ claimed that she had been sexually abused by a priest incardinated in the Diocese of Lismore in 1968 when she was 14 years old.
She argued that the diocese had breached its duty of care and should be held vicariously liable for the alleged abuse, which occurred when she was home alone during a house visit by the priest.
The Roman Catholic Church argued that it was at an unfair disadvantage because the perpetrator had died in 1996, long before it was aware of the allegations, and so it was unable to obtain any information, evidence, or instructions with which to make a defence.
The church lost in the first instance court but was later successful when the New South Wales Court of Appeal granted a permanent stay of proceedings, meaning that the litigation is paused and cannot go any further.
The problem with the Court of Appeal decision was that it prompted defendant lawyers across the country to start arguing for permanent stays in defence of many other meritorious abuse claims.
Along with various other institutions, religious orders in Australia started using the ruling to avoid responsibility for the heinous sexual abuse of children within their institutions.
Common sense dictates that an abuser’s death should not become an unfair barrier to meritorious abuse claims – those victims were still abused and deserve compensation and justice. Many institutions have escaped accountability for decades and allowing permanent stays wherever the alleged abuser has since passed away (given they are typically much older than the young child they abused) would often result in unfair outcomes.
Thankfully, on 1 November 2023 the High Court of Australia overturned the permanent stay in the GLJ case. In a 75-page decision, the High Court ruled that a permanent stay can only be ordered as a last resort, and only in exceptional cases.
The risk of an unfair trial to the Roman Catholic Church in this instance was not enough to grant a permanent stay.
Implications from the judgment on other institutional abuse cases
Besides freeing up GLJ’s claim against the Diocese of Lismore to proceed, the High Court decision is important because it sets out guidance for the limited circumstances where a permanent stay might be justified in institutional abuse cases like this one. Moreover, it informs that permanent stays will not shield institutions from meritorious abuse claims simply because the abuse perpetrator has since passed away.
Among several key takeaways in the judgment, the High Court said that:
- A permanent stay can only be granted in “exceptional” cases and as a last resort when no other option is available,
- The death of an alleged perpetrator is unexceptional, and in fact expected due to the nature of these claims (as are the “fading of memories and loss of evidence”),
- A defendant must show more than “the mere passing of time” for a court to grant a permanent stay,
- The inability of a perpetrator or witness to give evidence was not on its own enough to stop a claim from proceeding to trial (particularly when the perpetrator is not the defendant, as they would not be the one to give instructions or be called as a witness anyway),
- The number of years that have passed since the alleged sexual assault is “immaterial.”
The High Court also emphasized the importance of considering all relevant documentary evidence when deciding whether to grant a permanent stay.
There was substantial evidence in the GLJ case, including prior allegations against the perpetrator from young boys, which led to investigations, psychiatric reports, and the perpetrator’s own denials of those abuse allegations. All this suggested that the defendant was not without knowledge of the central issue. This evidence contradicted the Court of Appeal’s conclusion that the defendant was “utterly in the dark” and further supported the High Court’s decision to overturn the permanent stay.
The ruling also put significant focus on Parliament’s intent behind legislation that removed the statute of limitations for child abuse cases.
The High Court said that Parliament intended to “lift one barrier to justice for survivors of child abuse,” recognising that such abuse can drastically change the lives of the abuse victims and that it can take decades for individuals to understand and act on the harm that has been done to them.
The High Court decision is very much welcomed, marking a significant stride toward justice for abuse victims. It sends a strong message that institutions will not be able to escape liability for child abuse simply because the perpetrator is dead. The decision also makes it clear that the courts should take a flexible approach to institutional abuse cases and should not allow the passing of time or the loss of evidence to prevent survivors from seeking justice.
However, it is important to note that this decision does not guarantee that all abuse claims will be successful. Abuse victims should still seek legal advice if they are considering making a compensation claim for the wrongs that have been done to them.
Attwood Marshall Lawyers – fighting for justice for sex abuse victims
Attwood Marshall Lawyers is dedicated to helping victims of abuse to obtain acknowledgement, written apologies, counselling, redress and/or meaningful compensation. We have the experience to help clients make abuse claims and are trained to listen, support, and connect with our clients to ensure they feel safe and confident to proceed with their claim.
We speak with all abuse victims who contact us for the first time in a strictly confidential, free and no obligation manner, whether in person, by phone, or by email. We want abuse victims to have the opportunity to understand the law and their entitlements to claim compensation or seek redress.
With extensive experience acting for abuse victims in all types of compensation claims, we are proud of our long-standing history achieving exceptional results and changing people’s lives for the better.
If you want to understand your rights, please contact our Compensation Law Department on 1800 621 071 any time.
Our compensation lawyers are available for appointments at all our office locations at Coolangatta, Robina Town Centre, Southport, Kingscliff, Brisbane, Sydney, and Melbourne. Alternatively, we can arrange a telephone or video conference call if this is your preference.
