High Court allows historical child sex abuse case against Catholic Church to go ahead – questions remain what it means for other historical cases

The High Court of Australia has allowed a historical child sex abuse case against the Catholic Church to proceed after it had previously been permanently stayed by the New South Wales Court of Appeal.

The appellant, known as GLJ, is suing the Trustees of the Roman Catholic Church of the Diocese of Lismore (Diocese) claiming she was sexually abused by the now deceased Father Anderson in 1968 when she was aged 14.

In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, the High Court held, by a 3:2 majority decision, the Court of Appeal was wrong to conclude there could be no fair trial of the case and the proceedings should have been the subject of an order for a permanent stay.

On the face of it, the decision means Defendants to claims of historical sexual abuse will find it harder to successfully apply for a stay in proceedings.

However, to some extent the implications are uncertain because the decision was close (3:2 majority judgment), the composition of the Court has since changed with the retirement of Chief Justice Kiefel, the Court has granted leave to consider similar issues raised in another case, and the judgment relied on facts that may be distinguishable.

Initial proceedings

GLJ sued the Trustees of the Roman Catholic Church for the Diocese of Lismore in the NSW Supreme Court as a result of being sexually abused by the then Father Anderson, a priest incardinated in the Diocese of Lismore.

GLJ alleged that in 1968, when she was 14 years old, her father was seriously injured in a motorcycle accident, following which the Diocese directed a then Catholic priest, Father Anderson to attend her family home to provide pastoral support at which time Father Anderson sexually abused her.

In its Defence, the Diocese admitted, by its servants and agents, it was responsible for and had the care, management and control of Catholic churches in the Diocese and that the then Father Anderson was a priest in the Roman Catholic Church, incardinated in the Diocese.

However, the Diocese did not admit any of the allegations concerning GLJ and her family, that the then Father Anderson sexually abused GLJ or the breach of a duty of care it owed to GLJ.

The Diocese filed a Notice of Motion seeking orders the proceedings be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) or dismissed pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW).

The Diocese's Notice of Motion was supported by the following arguments:

• It did not receive a complaint relating to GLJ's allegations until 2019; and
• All senior people who could have provided instructions and given evidence in the proceedings had died, including Mr Anderson (who died in 1996) and numerous other members of the Parish.

The Diocese submitted, in the circumstances, there could not be a fair trial.

The Primary Judge dismissed the Diocese's Notice of Motion and ruled:

• A fair trial need not be a perfect trial;
• Child sexual abuse, of its nature, occurs in private and eyewitness evidence is rarely available; and
• The Diocese had made detailed submissions indicating it could contradict GLJ's claims, including:
       (i)     A chronology of the then Father Anderson's various appointments within the Diocese;
       (ii)    The fact an assistant priest would not be assigned the type of pastoral care described by GLJ;  
       (iii)    The fact GLJ returned home from netball, which is a winter sport given the then Father Lismore               served during the summer;
       (iv)    Mr Anderson was not available to deny the assault; and
       (v)     Mr Anderson had a sexual interest in boys.

Court of Appeal

The Diocese appealed on the ground the primary judge erred in principle and misapplied his discretion in failing to permanently stay the proceedings.

The Court of Appeal identified an error of principle in the reasoning of the primary judge and decided a stay should be granted as no fair trial could be held given:

• There were only two potential witnesses to the alleged assault, GLJ and Mr Anderson, and the Diocese were deprived of the ability to obtain any instructions from Mr Anderson by his death, thus the Diocese had no means of investigating the facts.
• There is no available contradictor and, everything depends upon the acceptance of GLJ's account.
• Whilst Mr Anderson is not a defendant, he is a critical witness and died before any inquiries could be made.
• Without Mr Anderson, the Diocese is "utterly in the dark" on the central issue.

The Court of Appeal set aside the primary judge's orders and ordered the proceedings be permanently stayed.

Grounds of High Court appeal

GLJ applied for and was granted special leave to appeal to the High Court on the ground the Court of Appeal erred in permanently staying the proceedings on the basis a fair trial could no longer be had such that the proceedings were an abuse of process.

The High Court considered two issues:

• What is the applicable standard for 'appellate review of an order of a court permanently staying proceedings on the ground a trial will be necessarily unfair or so unfair or oppressive to the defendant as to constitute an abuse of process?'
• Whether GLJ's proceedings against the Diocese 'involve an abuse of process justifying a permanent stay of the proceedings'.

Appeal hearing – background commentary

The removal of any limitation period for the commencement of proceedings for death or injury resulting from child abuse involves a fundamental change to the legal context in which the power in s 67 of the Civil Procedure Act (and equivalent inherent jurisdiction of a Court) is to be exercised.

Despite the removal of the limitation period, 'if the conduct of a party involves oppression of another party, including by delaying the commencement of proceedings to vindicate their rights', the Court retains the power to grant a stay to prevent such oppression.

However, the removal of the limitation period brought about by s 6A of the Limitation Act means the passing of time alone no longer enlivens the inherent power or any statutory power of a Court to prevent an abuse of its process.

In essence, 'the mere passing of time, in and of itself, is no longer a potential aspect of the interests of justice relevant to the exercise of the power to permanently stay proceedings for damages' in child abuse claims.

Moreover, the removal of the limitation period in child abuse claims, evidences Parliament's acknowledgment there is 'likely to be long delay in the bringing of such claims before the Courts'.

In summary, it is now for the Court's 'to evaluate contentions of abuse of process within this new normative structure'.

Diocese appeal submissions

The Diocese acknowledge the only forensic disadvantage upon which it could rely to justify its contention no fair trial could be held was the death of Mr Anderson for the reason that:

• Mr Anderson had died before any allegation relating to GLJ could be put to him;
• Mr Anderson would have been a critical witness;
• The Diocese could not confer with Mr Anderson about the evidence he might give; and
• The Diocese was 'utterly in the dark' on the central issue.

Judgment – Chief Justice Kiefel & Justice Gageler / Jagot [majority]

The Diocese was aware of:

• 'The parishes to which Father Anderson had been attached included Lismore;
• The dates of his attachment;
• The nature of the work a priest in his position was likely to have performed, which, according to the Diocese, would not have included the kind of pastoral care GLJ claimed occurred;
• The complaints which had been made about Father Anderson's sexual acts involving young boys (before 1968 when GLJ alleges Father Anderson sexually abused her);
• Father Anderson had been referred to a psychiatrist for treatment of his "problem" as early as 1966; and
• Father Anderson's response to allegations of sexual misconduct with boys before his laicisation.' ¹ 

The Diocese also had ample material to support the submission Mr Anderson had a sexual interest in boys.

The Diocese had years before Mr Anderson's death in 1996 to investigate and make enquiries in the face of Mr Anderson's alleged crimes and laicisation in 1971.

Moreover, the High Court recognised that the Diocese 'made those very inquiries as part of his laicisation', at which time 'Father Anderson refused to answer in respect of "sexual abnormalities" (which it might be inferred referred to a sexual interest in boys) and to deny any "romantic" interest in girls'.

The High Court also noted, as did the primary judge, the Diocese had evidence available to it to enable it to make submissions about:

• 'The chronology of Father Anderson's various appointments within the Diocese of Lismore;
• The type of pastoral care an assistant priest would be assigned;
• The relatively short time, perhaps only two months, Father Anderson served directly in the Lismore parish; and
• Father Anderson being appointed to Lismore during summer months only.'

The High Court also noted Mr Anderson's prior refusal to answer such questions regarding sexual assault allegations on oath and repeatedly refused to engage in any discussion about any 'problem of priestly life and work'.

The High Court disregarded the Diocese's argument the tendency evidence, comprising four unsworn Statements alleging Mr Anderson engaged in similar conduct with boys, was not put to him before he died, on the basis the tendency evidence may have proven unreliable, and it is speculative to assume the evidence would have been admitted.

The High Court also indicated it was immaterial that 55 years had passed since the alleged sexual assault given the allegations were not vague or unclear.

The High Court determined the loss of opportunity raised by the Diocese did not make a trial of GLJ's claims unfair, especially given:

• Mr Anderson is not a defendant to the proceedings and, as such, the proposition that the Diocese might have 'taken instructions' from Mr Anderson had he been alive is untenable and wholly speculative.
• Whilst the specific allegations of GLJ were not put to Mr Anderson when he was alive, there is evidence to suggest he would have denied the allegations, particularly given that he denied any 'romantic interest' in girls whilst under oath in 1971.
• The documentary evidence suggests that 'other allegations of sexual abuse of boys had been put to Mr Anderson while he was a priest, and that Mr Anderson denied any wrongdoing or rebutted any suggestion of impropriety'.
• The laicisation process gave the Diocese an opportunity to take whatever steps it saw fit to make further inquiries about Mr Anderson having sexually abused children, which was largely 'common knowledge' in the parish at the time.
• The death of Mr Anderson in 1996 did not prevent the Diocese from subsequently finding that complaints of sexual abuse by him while a priest should be the subject of the payment of monetary compensation.
• There is a considerable body of documentary evidence of arguable relevance to the proceedings.

Outcome

The High Court held the Court of Appeal was wrong to conclude there could be no fair trial of these proceedings and, as such, the proceedings should not have been the subject of an order for a permanent stay.

Appeal allowed.

Dissenting judgment – Justice Steward

Justice Steward referred to the five relevant principles extracted from Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218, a case concerning the stay of civil proceedings principally due to gross delay, and noted the following:

• First, 'the concept of what is a fair civil trial is informed by what Justice Smith said in R v Presser', which describes the 'minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice'.  Whilst this notion applies in a criminal trial, much of the minimum standards are relevant to the essence of a fair trial in a civil proceeding.
• Secondly, 'unfairness will often be acute in a civil claim where the defendant is dead, or is affected by a great incapacity', as is the case in this matter where only Mr Anderson could provide instructions as to what had occurred.
• Thirdly, unfairness arises from delay and evidently there is an 'incurable impoverishment' in the evidence given the assault took place 55 years ago.
• Fourthly, 'there is the likelihood of inutile cross-examination of the complainant' on the basis that, without Mr Anderson, the Diocese did not have an opportunity to test GLJ's evidence.
• Fifthly, 'even in cases of alleged sexual abuse, one cannot assume there is only one side to the story'.

Justice Steward held the Court of Appeal was correct to order a permanent stay for three essential reasons:

• First, the delay in bringing GLJ's claim presents as a critical loss of an 'opportunity' for the Diocese to defend the claim, due to the expiration of time and without the opportunity of speaking to Mr Anderson about GLJ's allegations.
• Secondly, 'the absence of any realistic or meaningful "opportunity" to defend the claim means that the case, if it were to proceed to trial, would do so without any proper contradictor', which is evidenced by the fact the Diocese would not be able to put to GLJ that the sexual assault never occurred because it does not have the ability to question Mr Anderson as to whether he committed the sexual assault.
• Thirdly, 'GLJ's case rests upon her allegation, the unsworn allegations of child sexual abuse of young boys, and the suspicions of dead men'.  However, the Diocese is not in a position to plead to the allegations put against it, nor to challenge the claim in an informed manner, because GLJ chose not to produce any evidence from people she says she told about the sexual assault in the years following the abuse.

Justice Steward disagreed with the Majority's proposition because:

• First, 'whilst Mr Anderson is not the defendant in these proceedings, as described already, he would have been the pivotal figure for the defence'.
• Secondly, it cannot be inferred on the basis of Mr Anderson's answers in 1971, that if Mr Anderson were alive and questioned today, he would have denied GLJ's allegations.
• Thirdly, the 'suggested inference allegations of sexual abuse of boys had been put to Mr Anderson when he was a priest, and denied by him, is again only guesswork and a mere possibility'.
• Fourthly, the laicisation process may not have given the Diocese an 'opportunity' to investigate other claims of sexual abuse; nor might it have led to the discovery of GLJ's allegations.
• Fifthly, the payments of compensation by the Catholic Church and the reasons as to why compensation was paid in individual cases has 'nothing to do with whether GLJ's trial will be fair'.
• Lastly, there is 'no considerable body of documentary evidence'.

Justice Steward held the appeal should be dismissed with costs.

Dissenting judgment – Justice Gleeson

Justice Gleeson held the appeal be dismissed and a permanent stay be awarded because:

• The 'relative importance of an absent witness's evidence to the issues in the trial must be considered to assess the level of prejudice to the defendant' and, in this circumstance, the Diocese is incapable of identifying missing witnesses because it is unable to obtain instructions from Mr Anderson.
• A defendant may 'suffer prejudice by the loss of real evidence, including records' and, in this circumstance, the Diocese is incapable of identifying lost evidence, because it does not know of its existence or previous existence.
• The Court of Appeal was correct in its finding the Diocese was 'utterly in the dark' on the central issue in the Appellant's case, namely the alleged sexual assault.
• The Diocese is unable to ascertain the true facts of the alleged sexual assault due to the passage of time and Mr Anderson's death.
• Associate Justice Mitchelmore was correct in his finding 'that there was no material that shed light on Mr Anderson's putative response to the assault allegation' and 'the possible inference Mr Anderson would have denied the allegation does not assist in understanding the extent of any prejudice suffered by the Diocese'.

Justice Gleeson concluded 'the Diocese has lost every realistic opportunity that previously existed to inform itself of the true facts' and, 'if the Diocese were required to participate in a trial, the Diocese would be limited in its cross-examination to questions concerning the inherent improbability or internal incoherence of the appellant's account'.  

Justice Gleeson held the Court of Appeal was correct to conclude a trial in this case will involve manifest unfairness to the Diocese, particularly given the Diocese is 'without any realistic opportunity of informing itself as to the true facts concerning the alleged sexual assault, including circumstantial facts, in circumstances where opportunities that previously existed have been lost by the long passage of time'.

Justice Gleeson held the appeal be dismissed.

Conclusions and implications

The appeal was allowed on the basis of a 3:2 majority judgment, with strong dissenting judgments given by Justice Gleeson and Justice Steward.

On 9 November 2023 the High Court granted leave to appeal the Supreme Court of Queensland (Court of Appeal) decision of The State of Queensland v Wilmot [2023] QCA 102 ²,  which raises similar issues.

It will be interesting to see if a similar decision is made, given the majority decision was supported by Chief Justice Kiefel who has since retired.

In any event, in this case, the majority emphasised a number of relevant facts, including:

• The Diocese was aware of Mr Anderson's attachment to the relevant Parrish, the nature of the work he was required to perform, previous like complaints made about him and his response to those complaints.
• The Diocese had years before Mr Anderson's death to investigate alleged crimes, and did so in the context of his laicisation.
• The passage of time was immaterial, as the allegations were not vague or unclear.
• It was unclear whether the Diocese could ever have taken instructions from Mr Anderson given he was not a party and had previously refused to answer questions.

Each of those facts may constitute grounds on which to distinguish this decision.

¹ Loss of clerical status.

² Wilmot v The State of Queensland (B34 / 2023).

Authors

Cameron Roberts | Partner | +61 3 9641 8696 | croberts@tglaw.com.au

Jared Billson | Lawyer