Introduction:
On 1 November 2023 the High Court of Australia delivered a landmark judgment in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 (“GLJ”). The decision has clarified the test for stay applications and with particular relevance to historical sexual abuse claims.
Background:
GLJ involves allegations of historical child sexual abuse the Plaintiff said occurred in 1968 when GLJ was 14 years old. The abuse was said to have been perpetrated by a priest of the Catholic Church, Father Anderson, causing GLJ personal injury for which she sought compensation.
GLJ commenced proceedings on 31 January 2020, some 55 years after the alleged abuse. The Catholic Church made an application for a stay of the proceeding. The primary judge in the Supreme Court of New South Wales dismissed the Diocese’s application for a permanent stay. The Court of Appeal of the Supreme Court of New South Wales granted the Catholic Church leave to appeal, allowed the appeal, and permanently stayed the proceedings.
The Church pointed to two key matters in support of its application for a stay: –
- Most witnesses, including Father Anderson had died.
- The Church first received notice of the complaint relating to GLJ in 2019.
The Decision:
A majority of the High Court held that “only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute.” As such the Hight Court allowed GLJ’s appeal and set aside the permanent stay.
In its judgment the High Court clarified that: –
- an exercise of power under s 67 of the Civil Procedure Act (NSW) to permanently stay proceedings on the ground that they are an abuse of process as any trial will be necessarily unfair or “‘so unfairly and unjustifiably oppressive’ as to constitute an abuse of process”[26] is an evaluative but not a discretionary decision.
- the applicable standard of appellate review is not that specified in House v The King[27], but the “correctness standard” as explained in Warren v Coombes[28].
- The reasoning in House v The King applies to judicial decisions involving an exercise of discretion[29].
- The extreme step of the grant of a permanent stay of proceedings demands recognition that the questions whether a trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process each admit of but one uniquely right answer.
- The fundamental change brought by s 6A of the Limitation Act (NSW) (which removed the limitation period for the commencement of proceedings for death or injury resulting from child abuse) is that, in the case of an action for damages for death or personal injury resulting from child abuse, it can no longer be maintained that the passing of time alone enlivens the inherent power or any statutory power of a court to prevent an abuse of its process. Absent proof of a forensic decision by a plaintiff to obtain some advantage from delay or some other relevant potentially disentitling circumstance, the mere fact of the passing of time is of no consequence.
- Nor, in this class of case, can any inevitable impoverishment of the evidence which the passing of time occasions be characterised as involving “exceptional circumstances”. The mere effluxion of time and the inevitable impoverishment of the evidence which the passing of time engenders cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay.
- Endorsed the principles applicable to granting a permanent stay, as set out in Moubarak, as follows:
- the onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant.
- a permanent stay should only be ordered in exceptional circumstances.
- a permanent stay should be granted when the interests of the administration of justice so demand.
- the categories of cases in which a permanent stay may be ordered are not closed.
- one category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive …
- the continuation of proceedings may be oppressive if that is their objective effect.
- proceedings may be oppressive where their effect is ‘seriously and unfairly burdensome, prejudicial or damaging.
- proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party; and
- proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people.
Conclusion:
GLJ clarifies the legal landscape regarding the ability of Defendants to obtain permanent stays in matters concerning historical sexual abuse.
To read a copy of the GLJ judgment you can access it here.
If you are seeking advice or representation in relation to a sexual abuse claim, then contact us today and speak with one of our sexual assault lawyers.