In a further step towards justice for abuse victims, a landmark decision has been handed down which could set precedent to further remove barriers to compensation for survivors of child sexual abuse.
The High Court of Australia has today ruled that a permanent stay of proceedings will not be granted in the case of GLJ v. The Trustees of the Roman Catholic Church for the Diocese of Lismore.Slater and Gordon Associate in Abuse Law Selva Dankha said that this is a fantastic outcome for survivors of child abuse everywhere.
“A permanent stay effectively operates to benefit the Defendant and creates continuing immunity from prosecution. “It essentially means that a survivor’s claim, their entitlement to damages, and their road to justice are ceased permanently,” Ms Dankha said.In 1968, GLJ was only 14 years old when she was subjected to a violent assault at the hands of Father Clarence Anderson, a priest of the Roman Catholic Church who died in 1996.GLJ commenced proceedings on 31 January 2020 against the Diocese of Lismore (The Diocese) who filed a Notice of Motion in November that year seeking a permanent stay of the proceedings.On 24 September 2021 Justice Campbell refused to grant a permanent stay and dismissed the Notice of Motion, The Diocese then sought leave to appeal the order of the Supreme Court and the Court of Appeal then overturned the prior decision.
The Court of Appeal considered that, despite evidence which shed light on the priest’s alleged offending against young boys, the exceptional circumstances of the case being a once off assault against a young female, meant that the stay should be allowed.GLJ then filed an application for special leave to appeal in the High Court of Australia stating:The Court of Appeal made an error of principle in the significance it gave to Anderson’s death. GLJ argued that the Diocese is not withheld from Defending itself against the Plaintiff’s allegation, even without instructions obtained directly from the deceased, Father Anderson. The Court of Appeal’s approach subverted the policy of legislative amendments in response to the Royal Commission into Institutional Responses to Child Sexual Abuse.The Court of Appeal’s decision involved factual error.
If Father Anderson’s putative instructions were relevant, the evidence allows an inference to be drawn that Father Anderson, if he were alive, would have denied the abuse of the Plaintiff.The Diocese argued that:The Defendant had no chance of receiving a fair trial in circumstances where it had no access to Father Anderson or other material witnesses, essentially on the issue of whether the sexual assault took place.At the time of Father Anderson’s death, neither the Defendant nor Father Anderson were on notice of GLJ’s allegations of sexual assault.
“A permanent stay ignores the fact that adult claimants were once vulnerable young children, who believed the threats of their abusers and who never dared to report the abuse.“Since the removal of limitation periods following The Royal Commission five-year inquiry into Institutional Responses to Child Sexual Abuse, it is known and accepted that these matters will be years if not decades old.
“These abuse claims are historical, we have to accept that it takes decades for a victim of child abuse to come forth with their story, and with that we must not be surprised if perpetrators of abuse are now deceased,” Ms Dankha said
“This was truly a step forward towards justice for victims of child sexual abuse as it meant there were no time limits in bringing historical child abuse claims in NSW, and subsequently, there followed a substantial number of claims involving historical abuse from decades in the past.
“But after these changes we began to see Defendants callously seek to end such claims by filing for a permanent stay of proceedings.“We are incredibly pleased with this outcome, and feel it sets the precedent for other survivors to know they have access to the justice they deserve, and will be heard if they come forward.“We want to see the Courts continue with this same approach, to allow each case to proceed to trial on its merits and not to allow such claims to be encumbered by interlocutory disputes.“If a victim can show the courts through witnesses or certain documentary evidence that a deceased perpetrator had the tendency to abuse children, that should not be taken lightly.
“Currently the NSW Australian Lawyers Alliance (ALA) has proposed wording to limit stay powers in abuse cases, which is something the National ALA is also considering. This is legislative reform we wholeheartedly believe in, and feel would go a long way in helping to minimise the re-traumatisation of survivors and not silence them in their journey for justice,” Ms Dankha said.