A High Court of Australia decision in 2023 represents a significant statement by the nation’s ultimate legal arbiter on claims by victims of institutional abuse.
The case – GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 – saw the plaintiff ‘GLJ’, a survivor of abuse at the hands of Catholic priest Father Clarence Anderson, win her appeal against a decision by the NSW Court of Appeal to order a permanent stay in proceedings. The NWSCA decided that the 52 years that had elapsed between the time of the offending and the proceedings being initiated put the Lismore Trust at an unfair disadvantage to refute GLJ’s claims, particularly as Father Anderson had passed away and could not answer to the allegations.
The reasoning of the High Court in lifting the stay and allowing GLJ to make a claim for damages is the subject of this article.
Background to the case
GLJ’s legal action commenced on January 31, 2020 in the NSW Supreme Court in relation to the alleged assault by Father Anderson which took place in 1968.
Father Anderson visited GLJ’s family at home on a regular basis after her father was injured after an accident. The sexual assault allegedly occurred in 1968 when GLJ was home alone and getting changed in her room after a netball game. Other victims also provided witness statements alleging sexual abuse by Father Anderson. Father Anderson died in 1996.
GLJ sought damages from the Trustees of the Roman Catholic Church for the Diocese of Lismore (also known as the Lismore Trust) for personal injury arising from the alleged sexual abuse by Father Anderson.
The statement of claim argued the Trust was vicariously liable for the priest’s misconduct, and was negligent in allowing the priest to breach his duty of care to GLJ as a member of the church.
The Trust sought a permanent stay in proceedings, arguing that it had no notice of the allegations prior to Father Anderson’s death in 1996 and that because of the amount of time that had lapsed since the date of the assault until it was notified of the allegations in 2019, it could not hope to receive a fair trial.
The decision of the Court
The court’s decision to dismiss the permanent stay on GLJ’s action has been hailed as a significant victory for GLJ and survivors of institutional abuse across Australia.
At the heart of the Court’s decision was a rejection of the Trust’s argument that the passage of time was the key consideration in staying the claim. Instead, in proceedings for death or personal injury as a result of historic, institutional child sexual abuse, the Court said the passing of time was not a relevant consideration in exercising the power to permanently stay proceedings.
A further point made by the Court was that the ending of statutory limitation periods for claims as a result of the Royal Commission into Institutional Responses to Child Sexual Abuse’s final report in 2017 indicated that Parliament intended to prioritise victims in its legislation. The Court said the death of parties to the case and the deterioration of relevant people’s memories was both inevitable and unexceptional, and should not prevent the plaintiff from being able to prove their case on the balance of probabilities.
A stay in proceedings, the Court found, should be a measure of last resort granted only in exceptional cases where no other option is available. The court found the grounds for a permanent stay were not present in a case about child sexual abuse and that the mere risk GLJ’s trial might be unfair did not warrant a permanent stay of proceedings.
Implications for institutional abuse claims
The High Court’s decision sends a strong signal to defendants, particularly those accused of negligently allowing abuse within institutions, that relying on a long period of time between an act of abuse occurring and a victim bringing personal injury proceedings to argue the case should be discontinued is not enough. As the Court emphasised, it was Parliament’s intention that victims of institutional child sex abuse be heard when they are ready to confront the past.
If you need guidance on this difficult subject, speak with one of our personal injury compensation specialists at BPC Lawyers as soon as possible.