In 1996, a Catholic priest named Father Anderson who had been incardinated in the Diocese of Lismore, died.
24 years later, the plaintiff, known as GLJ, filed a statement of claim in the Supreme Court of New South Wales against The Trustees of the Roman Catholic Church for the Diocese of Lismore on 31 January 2020.
The statement of claim alleged that:
● she was raised in the Catholic faith to believe that Catholic priests were God’s representatives on earth
● her family worshipped at St Carthage’s Cathedral in Lismore
● in 1968, when she was 14 years old, her father was seriously injured in a motorcycle accident, following which Father Anderson, was directed by the Diocese to attend GLJ’s family home to provide pastoral and spiritual support and guidance
● Father Anderson sexually abused her by holding her down on the bed and penetrating her vagina with his fingers and penis.
● as a result of the sexual abuse, she suffers from complex post‑traumatic stress disorder, chronic and recurrent depressive disorders, generalised anxiety disorder, panic disorder, sexual disorder, enduring post‑traumatic personality change, and harmful alcohol use.
GLJ claimed aggravated and exemplary damages against The Trustees of the Roman Catholic Church for the Diocese of Lismore. She contended the Diocese was liable for:
● breaching a duty of care it owed to her to protect her from the reasonably foreseeable risk of harm of sexual abuse by Father Anderson; and
● being vicariously liable for Father Anderson’s sexual abuse of her.
On 8 May 2020, the Diocese filed a defence responding to the statement of claim which did not admit, relevantly, any of the allegations concerning:
(a) GLJ and her family;
(b) Father Anderson sexually assaulting GLJ;
(c) what it knew or should have known;
(d) what a reasonable person in its position would or should have done; or
(e) the existence or breach of any duty of care it owed to GLJ.
The only matters the Diocese pleaded that it “does not know and therefore cannot admit” were the allegations concerning:
(a) what Father Anderson knew or should have known;
(b) the existence of a duty of care owed by Father Anderson to GLJ;
(c) breach of the alleged duty of care by Father Anderson; and
(d) GLJ’s injuries being caused by the Diocese and Father Anderson breaching their duties of care to her.
On 17 November 2020, the Diocese filed a notice of motion in which it sought orders either that 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 notice of motion was based on grounds of affidavit evidence that:
(a) the Diocese did not receive a complaint relating to GLJ’s allegations until 2019; and
(b) virtually all senior people who could have provided instructions and given evidence in the proceedings had died.
These people included:
(i) Father Anderson, who died in 1996;
(ii) Bishop Farrelly, Parish Priest and Bishop of Lismore, who died in 1974;
(iii) Reverend Brown, Secretary (Chancellor) of the Bishop of Lismore, who died in 2005;
(iv) Most Reverend O’Donnell, Archbishop of Brisbane, who died in 1980;
(v) Reverend Douglas, Chancellor of the Brisbane Archdiocese, who died in 1984; and
(vi) Monsignor Ryan, Parish Priest of Kyogle, who died in 1987.
The Diocese submitted that, in these circumstances, there could not be a fair trial.
Section 67 of the Civil Procedure Act provides that:
“[s]ubject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day”. Rule 13.4(1)(c) of the Uniform Civil Procedure Rules provides that the court may order proceedings to be dismissed if it appears to the court that the proceedings are an abuse of the process of the court.”
Section 6A(1) of the the Limitation Act 1969 (NSW) provides that:
“(1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act.”
s 140 of the Evidence Act 1995 (NSW) provides that:
“(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account –
(a) the nature of the cause of action or defence, and
(b) the nature of the subject‑matter of the proceeding, and
(c) the gravity of the matters alleged.”
Lord Sumption observed in Abdulla v Birmingham City Council [2012] UKSC 47; [2013] 1 All ER 649 at 666:
“Delay impoverishes the evidence available to determine the claim, prolongs uncertainty, impedes the definitive settlement of the parties’ mutual affairs and consumes scarce judicial resources in dealing with claims that should have been brought long ago or not at all.”
In R v Davis [1995] FCA 1321; (1995) 57 FCR 512 at 521, a case concerning a permanent stay of criminal proceedings, the Full Court of the Federal Court of Australia observed:
“It is more important to retain the integrity of our justice system than to ensure the punishment of even the vilest offender. We do not say this because the justice system is some precious preserve of the judges; it is not. We say this because the integrity of the justice system is a fundamental and essential element in the maintenance of a free society. Our society should not buy the conviction of its guilty at the cost of allowing trials which would inevitably risk convicting also the innocent.”
In the same case, it was said that:
“Some people, rightly anxious that sexual offenders be brought to account, may be disappointed by our decision. They may think that it allows a guilty man to escape justice. But that conclusion necessarily involves the assumption that Dr Davis is in fact guilty of the offences with which he has been charged. The correctness of that assumption could only be determined by a fair trial. It is not enough to say, as some might be tempted to do, that the allegations would not have been made unless Dr Davis was guilty. That argument assumes there can only be one side to the story. Everyday experience in the courts shows this is rarely so. Nor is the situation really changed by the number of the complainants – especially when it is remembered that all except one of them emerged as a result of a newspaper article. We do not for a moment suggest deliberate concoction, but there is always a possibility that the newspaper article induced a degree of unconscious reconstruction. Time, too, may have obliterated memories of inconsistent facts and qualifications, leaving a deceptively clear impression. That is why it is essential to have the facts surrounding each case.”
In Moubarak by his tutor Coorey v Holt (No 2) [2019] NSWCA 188, Bell P observed that the consequences of delay depend upon the nature of the dispute in question. A case that turns upon available documentary evidence may often withstand great delay; but a case which turns upon oral testimony, particularly conflicting oral testimony, stands in a different position. His Honour said:
“[T]he impoverishment of evidence will be more acute where a trial is exclusively or heavily dependent on oral evidence and the quality of witnesses’ memory and recollection. The fallibility of human memory and the capacity of the human mind for ex post rationalisation of events long since passed are the subject of the frequently cited observations of McLelland CJ in Eq in Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 at 318-319.”
McHugh J in Longman v The Queen said:
“The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person’s ability to ‘remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev ed (1964), pp 269-270.”
In Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 at 142 Priestley JA observed:
“[F]or a trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable. Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court. Time and chance will have their effect on evidence in any case, but it is not usually suggested that that effect necessarily prevents a fair trial.”
Campbell J, the primary judge, refused a permanent stay of proceedings, holding that:
(a) a fair trial need not be a perfect trial;
(b) child sexual abuse, of its nature, occurs in private and eyewitness evidence is rarely available; and
(c) the Diocese had made detailed submissions indicating that it could contradict GLJ’s claims, including the following matters:
(a) having regard to the chronology of Father Anderson’s various appointments within the Diocese, the uncertainty about the date on which the assault was said to have taken place;
(b) the evidence of Mr Isaac to the effect that an assistant priest would not be assigned to the type of pastoral care described by the plaintiff;
(c) the very limited opportunity for Father Anderson to provide that pastoral care, and indeed to offend in the manner alleged given the relatively short time, perhaps only two months, he served directly in the Lismore parish;
(d) the plaintiff stated that the assault occurred when she returned home from netball. It was submitted this is a winter sport and Father Anderson was appointed to Lismore during summer months;
(e) Father Anderson was not available to deny the assault; and
(f) the extant material, while demonstrating that Father Anderson had a sexual interest in boys, there was no direct suggestion of a sexual interest in young teenage girls. The interest in boys was expressed through sport including football, fishing, shooting and surfing. This interest seemed to have been associated with significant grooming which appeared to be absent in the plaintiff’s case”.
The Diocese appealed on the ground that the primary judge erred in principle and misapplied his discretion in failing to permanently stay the proceedings.
The NSW Court of Appeal allowed the appeal, finding that the primary judge erred in his Honour’s assessment of the impact of Father Anderson’s death on the fairness of the trial misapprehended the facts.
Brereton JA said that “[t]here were only two potential witnesses to the alleged assault, GLJ and Father Anderson. Deprived of the ability to obtain any instructions from Anderson by his death, the [Diocese] has no means for investigating the facts.”
Mitchelmore JA reasoned that:
(a) “without any account from Father Anderson (or other priests in the parish), the [Diocese] was at a significant disadvantage on the issue of whether Father Anderson sexually assaulted GLJ”;
(b) on the issue of the alleged sexual assault of GLJ, there is no available contradictor and, contrary to the primary judge’s conclusion, “everything does depend upon the acceptance of [GLJ’s] account”;
(c) there could be no response from Father Anderson, denial or otherwise, the credibility of which could be evaluated;
(d) although Father Anderson is not a defendant, he is a critical witness, he died before any inquiries could be made, and there is no other material that sheds light on his putative response to GLJ’s claims;
(e) without Father Anderson, the Diocese is “utterly in the dark” on the central issue; and
(f) the difficulty Father Anderson’s death creates in this case is highlighted by the foreshadowed tendency evidence (being evidence from four other people who each allege they were sexually abused by Father Anderson), as the detail of these allegations also had not been put to Father Anderson before he died.
The Court of Appeal thereby re‑exercised its asserted discretion to grant a permanent stay, deciding that such a stay should be granted as no fair trial could be held. Accordingly, the Court set aside the primary judge’s orders and ordered that the proceedings be permanently stayed.
The majority decision
The majority (Kiefel CJ, Gageler and Jagot JJ) overuled the NSW Court of Appeal when it assumed that the decision of whether to grant a stay is discretionary in nature, holding that:
“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 majority held that whether a stay should be granted in any case centres on the following principles:
“While the understandable focus of the authorities in this area of discourse is the position of the party seeking the permanent stay, both concepts (necessary unfairness or such unfairness or oppression as to constitute an abuse of process) ultimately concern the congruence of the holding of a trial and rendering of a verdict with the fundamental norms underlying our legal system in the circumstances as they exist at the time of the application for the permanent stay. The position of the party seeking the permanent stay is relevant insofar as it exposes the congruence or incongruence of a trial and verdict with the normative structure of the Australian legal system. A trial which will be necessarily unfair or which acts as an instrument of unfairness and oppression to a defendant cannot yield a legitimate verdict within that system and thereby the holding of the trial and rendering of a verdict will bring the administration of justice into disrepute. The doctrine of abuse of process is one element in a court’s armoury to protect the administration of justice, but it is to be understood as a measure of last resort to be exercised only in exceptional circumstances.”
“Neither necessary unfairness nor such unfairness or oppression as to constitute an abuse of process justifying a permanent stay of proceedings depends on a mere risk that a trial might be unfair. The party seeking the permanent stay bears the onus of proving that the trial will be unfair or will involve such unfairness or oppression as to constitute an abuse of process. While the onus is the civil standard of the balance of probabilities, the onus has rightly been described as a heavy one, and the power rightly said to be exercisable only in an exceptional case. This is because it is always an extreme step to deny a person the opportunity of recourse to a court to have their case heard and decided. Lest the concept of “exceptional circumstances” be reduced to the formulaic, the power to grant a permanent stay, as Gaudron J explained in Jago v District Court (NSW), is “a power to refuse to exercise jurisdiction” which operates “in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised”, it being “a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is ‘amenable to the jurisdiction’ of the courts”. This context underlies the requirement of exceptionality to enliven the power to grant a permanent stay.
Moreover, although it has been said that the question whether a permanent stay should be granted on abuse of process grounds “falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations”, the ultimate question is not “whether the unfairness to a moving party by reason of a stay outweighs the unfairness to a defending party by reason of the continuation of the proceedings”
After citing parts of the Second Reading Speech introducing the Limitation Amendment (Child Abuse) Bill 2016 (NSW) by the Attorney‑General for New South Wales, the majority held that:
“The fundamental change wrought by s 6A of the Limitation Act 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. In the face of s 6A, 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 for death or personal injury resulting from child abuse.”
The majority held that a fair trial could still be had, for the following reasons:
“Section 140(2)(c) of the Evidence Act reflects the position of the common law that the gravity of the fact sought to be proved is relevant to “the degree of persuasion of the mind according to the balance of probabilities”. By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that “the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”.
The common law incorporates other principles in recognition of the fact that, in the adversarial system, cases are always decided within the evidentiary framework the parties have chosen and are often decided on incomplete evidence. The legal maxim that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” acknowledges “the problem that in deciding issues of fact on the civil standard of proof, the court is concerned not just with the question ‘what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision'”.
Common law courts have developed techniques addressing the problems in civil trials associated with the recollection of events which occurred long in the past. For example, the warning which Longman v The Queen said may be required in a criminal trial involving events in the distant past has a civil law equivalent. Watson v Foxman is frequently cited because of its continuing importance in identifying that ordinary human experience exposes that human memory is “fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time”.
A court is not bound to accept uncontradicted evidence. Uncontradicted evidence may not be accepted for any number of reasons including its inherent implausibility, its objective unlikelihood given other evidence, or the trier of fact simply not reaching the state of “actual persuasion” which is required before a fact may be found. “To satisfy an onus of proof on the balance of probabilities is not simply a matter of asking whether the evidence supporting that conclusion has greater weight than any opposing evidence … It is perfectly possible for there to be a scrap of evidence that favours one contention, and no countervailing evidence, but for the judge to not regard the scrap of evidence as enough to persuade him or her that the contention is correct.” The evidence must “give rise to a reasonable and definite inference” to enable a factual finding to be made; mere conjecture based on “conflicting inferences of equal degrees of probability” is insufficient. As Dixon CJ said in Jones v Dunkel, the law:
“does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.”
Common law courts have also developed techniques to enable proceedings to be heard and determined despite the unidentifiability, death, or legal incapacity of a party. It has been said, for example, that: (a) in the case of a claim in debt against a deceased estate, a court “scrutinizes the evidence very carefully to see whether it is true or untrue”; (b) “it is a mistake to think that because an event is unseen its cause cannot be reasonably inferred”; and (c) “[i]t is elementary that in a claim based on communications with a deceased person, the court treats uncorroborated evidence of such communications with considerable caution, and is entitled to regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available”.
It is also relevant that, in recommending the abolition of limitation periods throughout Australia, the Royal Commission said “[w]hile our recommendations relate to institutional child sexual abuse, we have no objection to state and territory governments providing for wider changes. However, if change is made we are firmly of the view that it should be consistent across jurisdictions.” Reflecting this recommendation, the meaning of “child abuse” in s 6A(2) of the Limitation Act includes sexual abuse of any person under 18 years of age, whether or not the abuse occurred in an institutional context.
The suite of legislative changes the New South Wales Parliament implemented in response to recommendations of the Royal Commission included s 6K of the Civil Liability Act 2002 (NSW). By s 6K(1), “[c]hild abuse proceedings may be commenced or continue against an unincorporated organisation in the name of the organisation or in a name reasonably sufficient to identify the organisation as if the organisation had legal personality”. GLJ’s proceedings depend on s 6K(1) to be maintained. The Attorney‑General for New South Wales explained in the Second Reading Speech for the Civil Liability Amendment (Organisational Child Abuse Liability) Bill 2018 (NSW) that “[t]he Royal Commission into Institutional Responses to Child Sexual Abuse made profound revelations about our society. Over the five years of its inquiry, we learnt about the thousands of children in institutions who have been sexually abused”, reflecting “society’s failure to protect children across a number of generations”. The legislative response to those revelations included implementing “the royal commission’s recommendation to enable survivors to identify a proper defendant to sue”.
There are likely to be differences between cases involving claims of child abuse arising from a private and domestic, as opposed to an institutional, context. Documentary records and evidence concerning relevant circumstances are more likely to exist in an institutional context than in a private and domestic context. An institutional context may be more likely than a private and domestic context to yield tendency evidence given the opportunities for an alleged perpetrator to access large numbers of children in an institutional setting. While claims of child abuse by a specific complainant may take decades to emerge, in an institutional context the institution may have been on notice of other claims made against the alleged perpetrator at a much earlier time. While each case of alleged abuse of process depends on its own facts, the context in which the alleged child abuse is contended to have occurred (domestic and private or institutional) is likely to be relevant to the questions whether a trial will be necessarily unfair or so unfair or oppressive to a defendant as to constitute an abuse of process.”
Steward J’s dissent
Steward J concurred with the majority that the decision of whether to order a stay is not discretionary:
“I otherwise agree with the conclusion reached by Kiefel CJ, Gageler and Jagot JJ that the exercise of the power to grant a stay pursuant to s 67 of the Procedure Act does not involve the conferral of any discretion on a court. The better view is that if a trial can take place in accordance with the irreducible minimum standards of fairness (discussed below), then the court has a duty to hear and decide the case. If a trial cannot take place in accordance with these standards, then the court has a duty to stay the proceedings.”
However, Steward J dissented on the issue of whether there could be a fair trial for the following reasons:
“First, whilst Mr Anderson is not the defendant in these proceedings, as described already, he would have been the pivotal figure for the defence. Had he been alive, he would certainly have been the first named defendant.
Secondly, Mr Anderson’s answer, given in 1971, denying any “romantic” interest in girls, with respect, could not possibly found an inference that today, if he had been alive, he would have denied GLJ’s allegations. Such an inference is, in reality, no more than a guess in the service of an outcome.
Thirdly, the suggested inference that 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. It falls outside that which might be seen to be probable; it is only a possibility.
Fourthly, the proposition that the laicisation process gave the Church an “opportunity” to investigate other claims of sexual abuse is unsupported by the evidence; no part of the process involved the Church asking about the making of such claims. Nor, for the reasons given, can it be said that if such inquiries had been made, it might have led to the discovery of GLJ’s allegations. Prior to 2019, there was no hint of any allegation concerning Mr Anderson and girls…
Fifthly, it can be accepted that the death of Mr Anderson did not thereafter foreclose investigation of claims of abuse made against him. But the standard by which the Catholic Church decided to pay compensation, and why in individual cases claims were considered to merit payment, remains entirely unknown…
Sixthly, as described above there was no “considerable body of documentary evidence”: that is an important part of the very problem.”
Gleeson J’s dissent
Gleeson J also concurred with the majority that the standard of appellate review of the Court of Appeal’s decision under appeal is the correctness standard. However, Gleeson J agreed with the NSW Court of Appeal decision that a trial could not be had given the length of time that had passed, and the death of witnesses, partcularly Father Anderson:
“In effect, the Diocese has lost every realistic opportunity that previously existed to inform itself of the true facts. It is not to the point that those opportunities may have been entirely uninformative, either to validate or contradict the appellant’s allegation. The Diocese is no better off in meeting the appellant’s foundational claim than an individual defendant alleged to have abused a plaintiff, but who lacks capacity, and whose representative has no source of information about the alleged abuse apart from the plaintiff themselves. If 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. In that respect, it would be in no better position than the trial judge to test the evidence on a critical fact in the case. If the trial judge is inclined to accept the appellant’s account, the Diocese will have no capacity to rebut the appellant’s evidence.”
All High Court justices agreed that the decision of whether to grant a permanent stay of a proceeding because a trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process is not discretionary; in each case there is only one correct answer to that question. But on the issue of whether a permanent stay should have been granted, the Court was divided, with a 3-2 majority determining that question in the negative.
This High Court decision has been handed down in a context of many other claims all over Australia which have been stayed or which have been commenced at a risk of stay, because many historical sexual abuse claims involve an alleged perpetrator and other potential witnesses who are deceased at the time the claim has been brought. This decision will no doubt be a boon to survivors of such abuse, who will now be entitled to pursue their claims despite the many years that have passed and the death or loss of capacity of key potential witnesses. On the other hand, institutions who are the subject of such claims may in many cases be almost defenceless against such claims, and there is a risk that they will not be able to identify and successfully defend claims that may have been falsely brought. Of course, the financial cost for such institutions and their insurers will become even more enormous.
The scales have certainly tilted heavily in favour of child sexual abuse claimants in recent years. The abolition of limitation periods with respect to such claims was a significant development, and this decision is the latest step in the same direction. That direction reflects a compassionate and sympathetic approach by society towards alleged victims.
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