Overview of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore
The plaintiff, GLJ made a claim for damages against the Diocese of Lismore for injuries caused by Father Anderson sexually assaulting her in 1968 when she was 14 years old. In January 2020, GLJ commenced proceedings in the Supreme Court of New South Wales and in 2021, the Diocese filed a permanent stay application, seeking to stop the case from proceeding to trial as the Diocese did not receive a complaint relating to the plaintiffs allegations until 2019 and virtually all senior people who could have provided instruction or evidence had died, including the alleged abuser. Accordingly, it was submitted that there could not be a fair trial.
The primary judge refused the permanent stay for the following reasons:
- A fair trial need not be a perfect trial;
- Child sexual abuse, of its nature, occurs in private and eye witness evidence is rarely available;
- The Diocese submissions indicated it could contradict the plaintiffs claims with documentary evidence.
- In amending the Limitation Act to include s 6A, Parliament had determined that such claims should be permitted to proceed despite the effluxion of time and impoverishment of evidence, provided a fair trail can be had.
In June of 2022, the Diocese of Lismore were granted leave to appeal to the NSW Court of Appeal on the basis that the primary judge erred in principle and mis applied his discretion in failing to permanently stay the proceedings.
The NSWCA identified error of principle in the reasoning of the primary judge and thereby re exercised the power to grant a permanent stay, deciding that such a stay should be granted as a fair trial could not be held. The Judges concluded that the Diocese has no means for investigation of facts.
In the majority decision, Keifel CJ, Gaegler J and Jagot J found that an exercise of power under s67 of the Civil Procedure Act did not result in the Diocese establishing that the proceedings involved an abuse of process and the NSWCA’s contrary conclusion was wrong. GLJ was entitled to have the proceedings heard and determined, noting that the party seeking a permanent stay bears a heavy onus and the power is exercisable only in an exception case. The amendment under s6A of the Limitation Act 1969 means that the mere passing of time is not a basis for the stay and it was noted that there is no time limitation in criminal cases despite the higher onus of proof.
The Diocese accepted that the only forensic disadvantage upon which it could rely to justify the contention that no fair trial could be held was the death of Father Anderson and without that, there would be no case for a stay. The Diocese argued that Father Anderson had died before the allegations relating to GLJ could be put to him. Father Anderson would have been a critical witness. The Diocese could not confer with Father Anderson about the evidence he might give. The Court of Appeal said the Diocese was “utterly in the dark” on the central issue. The High Court found that the Diocese was not “utterly in the dark” on the central issue whether Father Anderson sexually assaulted GLJ, noting that circumstantial evidence is still evidence.
The High Court determined that the Diocese had a number of years between the abuse and the death of the alleged perpetrator to make enquiries and the loss of opportunities does not make a trial of GLJ’s claim unfair. This is particularly so in the following circumstances:
- Father Anderson is not a defendant to the proceedings. The proposition that the Diocese might have “taken instructions” from Father Anderson had he been alive is untenable. If he had been alive, the Diocese would have had an opportunity to make forensic decisions which it does not have due to his death. The forensic decisions would have been sequential: (a) should Father Anderson be asked by the Diocese to respond to GLJ’s allegations; and (b) if so, and depending on Father Anderson’s response, should the Diocese settle the case or call him as a witness? While the opportunity to make these forensic decisions has been lost, their potential importance in the circumstances of the present case is wholly speculative. The documentary and other evidence about Father Anderson’s sexual conduct means that this is not a case in which it may be presumed that the Diocese would have sought information from Father Anderson had he been alive or necessarily would have called him as a witness.
- While the specific allegations of GLJ were not put to Father Anderson when he was alive, there is evidence from which it could reasonably be inferred that, if required to answer, he would have denied the allegations. He denied any “romantic interest” in girls while under oath in 1971.
- It may be inferred from the documentary evidence both that other allegations of sexual abuse of boys had been put to Father Anderson while he was a priest, and that Father Anderson denied any wrongdoing or rebutted any suggestion of impropriety.
- The laicisation process gave the Diocese an opportunity to take whatever steps it saw fit to make further inquiries about Father Anderson having sexually abused children. It is not the point that this might or might not have exposed GLJ’s claim. The point is that, unlike in Moubarak and Connellan v Murphy where the claims emerged without any prior hint of an issue, the Diocese had been on notice of Father Anderson’s having allegedly sexually abused boys well before the death of Father Anderson. It is also plain that the Diocese considered that Father Anderson’s request to be relieved of his priestly duties was in the best interests of the Church because of his obvious sexual interest in boys and the wealth of credible evidence that he had acted on his interest by sexually abusing boys. Indeed, these matters were said to be “common knowledge” in the Kyogle parish at the time. Had the Diocese wished to fully inform itself about the extent of Father Anderson’s alleged crimes at any time before his death in 1996, and the potential harm inflicted on victims who might need ongoing support, it had ample opportunity to do so (and might well have been reasonably expected to do so given the serious and shocking nature of the allegations which had been made against Father Anderson, and Father Cranney’s advice to Diocese authorities of the apparent “agony” suffered by parents of boys who claimed to have been sexually abused by Father Anderson).
- The death of Father Anderson in 1996 did not prevent the Diocese from subsequently finding to its own satisfaction that complaints of sexual abuse by him while a priest had been substantiated and should be the subject of the payment of monetary compensation.
- There is already available a considerable body of documentary evidence of arguable relevance to the proceedings. Other sources of potential documentary records are also apparent including the psychiatrist to whom Father Anderson was referred.
The majority state that the NSWCA was wrong to conclude that there could not be a fair trial of these proceedings. Accordingly, the proceedings should not have been the subject of an order for a permanent stay.
The appeal was allowed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore
You can read the full jusgement of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore here:
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