By Sonya Parsons, Partner, Luke Geary, Partner and Hudson Digby, Senior Associate

For institutions which previously operated orphanages or care facilities for children, including schools, the legal changes which evolved from the recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse ushered in a new world in responding to historical abuse claims.

Some of the most significant previously available defences were removed, including those of limitation periods and the inability to sue an unincorporated defendant.

One legal tool available for institutions that was not removed with other changes is the ability to apply for a permanent stay of proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.[1]

On 1 November 2023, the High Court determined (by a 3:2 majority[2] overturning the NSW Court of Appeal) in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore[3] that the ‘new world’ in the context of abuse claims is one where the previous bar for a defendant to prove a fair trial cannot be had is now higher than in non-historical abuse cases[4].  By reason of the removal of the limitation periods for bringing historical abuse claims, courts are now dealing with claims in which many years have passed since the events occurred. Relying on the landmark recommendations of the Royal Commission and the wave of legislative reform all around the country that followed, the High Court noted that:

‘Parliament [has] ensured that the potential injustice to the person claiming to have suffered from child abuse of not being able to bring their claim, and the concomitant undermining of public confidence in the administration of justice from that circumstance, presumptively trumped the potential prejudice and injustice that might be caused by the passing of time.’

The test of ‘exceptional circumstances’ in granting a permanent stay must now be considered in that context, and the lack of witnesses (by reason of their deaths or unavailability) and documents (by reason of their loss over the passage of time) will not, in and of itself, and without more, be sufficient to found an application for a permanent stay.

The threshold for a case to constitute an abuse of process in the ‘new world’ is less clear.

The High Court considered that, in the circumstances of GLJ, the only opportunity the Diocese had lost had been the opportunity to ask questions of Father Anderson (the alleged perpetrator, who died in 1996). The Diocese otherwise had available to it:

• documentary material which appeared to contradict GLJ’s recollection of the relevant conduct. These included:
  • evidence of the timing of Father Anderson’s relevant placement in the Diocese;
  • evidence of Father Anderson’s role in the community;
• documentary material regarding Father Anderson’s sexual proclivities, and how he might have responded to the allegations. In particular, the evidence indicated that:
  • the first complaint regarding Father Anderson was made prior to relevant alleged conduct in respect of GLJ;
  • Father Anderson was subsequently laicised in the 1970s. That not only gave the Diocese an opportunity to investigate the allegations of sexual misconduct as part of that process, but a considerable body of documentary evidence was generated and available to the Diocese.

The High Court stressed that the absence of evidence from the perpetrator does not mean that a plaintiff’s account will be accepted uncritically. A plaintiff is required to ‘actually persuade’ a court of their allegations.  That requirement becomes more difficult depending on the gravity of the matters alleged. While it is not explicitly raised by the High Court, the passage of time is necessarily felt by both parties, including the plaintiff who brings a claim after a significant period of time where they are also likely deprived of documents, memories and witnesses who might assist with ‘actually persuading’ a court. A recent historical abuse decision in the Supreme Court of Victoria saw a plaintiff fail to actually persuade the Court, in proceedings where the alleged perpetrator was called as a witness by the defendant.[5] Similar results have occurred in New South Wales decisions in recent years.[6]

Put simply, the High Court has said that the mere fact that an alleged perpetrator is dead is not the end of the matter. Defendants seeking a permanent stay will be significantly put to proof on all of the available evidence and cannot rely upon the death alone as a means of saying they cannot investigate the truth of the plaintiff’s allegations.

That being said, the High Court’s decision in GLJ will not put an end to defendants running stay applications or mean that none will be successful in the future. On the contrary, the High Court indicated that both Moubarak by his tutor Coorey v Holt [2019] NSWCA 102 and Connellan v Murphy [2017] VSCA 116, seminal decisions regarding permanent stay applications for child sexual abuse following the removal of those jurisdictions’ respective limitation periods, were examples of where a fair trial was no longer possible. Both cases notably involved defendants who were individuals, not institutions.

The question arises as to whether institutions can face the same prejudice such that a fair trial is not possible. In our view, based on the Court’s comments in the GLJ decision, such circumstances could include where:

• the alleged perpetrator is unable to be identified;
• the alleged perpetrator has died, and:
  • did not have any allegations (including criminal allegations) made against them while they, or other key material witnesses, were alive;
  • there are no records relevant to the claim; and/or
  • there was some strategic decision made by a plaintiff to delay bringing the claim, or there is a substantial delay notifying a defendant of the claim after the plaintiff has instructed representatives, and that delay means that the fair trial cannot be held.

Of more academic interest, the High Court also clarified that in a decision concerning a permanent stay, the Court is not exercise a discretion – rather, the Court has no alternative but to stay proceedings if it finds that a fair trial cannot be had. Accordingly, in GLJ, the Court did not need to find an error in the exercise of a discretion, in accordance with House v King (1936) 55 CLR 499, for the appeal to proceed.

The landscape for bringing and responding to abuse claims has been changing since the conclusion of the Royal Commission.  Institutions and claimants have been waiting for this decision for some time.  Given the changed landscape following this decision, there is no doubt that institutional defendants will more seriously consider whether to run stay applications.  If so, that may likely mean that more plaintiffs in historical abuse cases may be required to prove their cases at trial.

[1] See, for example, section 6A Limitation Act 1969 (NSW)

[2] Keifel CJ, Gageler and Jagot JJ were in the majority. Steward and Gleeson JJ dissented in separate judgments

[3] [2023] HCA 32

[4] For a detailed explanation of the facts of the case, see our case note dated June 2022 on the primary judgment

[5] Double v The Salvation Army (Victoria) Property Trust [2023] VSC 452

[6] Perry v Kinnear & Ors (No 5) [2021] NSWDC 145; Gersbach v Gersbach [2020] NSWCA 153