Abuse Law: High Court grants special leave to appeal the New South Wales Court of Appeal decision to permanently stay proceedings pertaining to historical child abuse
On 18 November 2022, the High Court of Australia granted special leave to appeal the New South Wales Court of Appeal’s decision in The Trustees of the Roman Catholic Church for the Diocese of Lismcore v GLJ  NSWCA 78.
The appellant, GLJ, alleged that she was sexually abused by a priest within the Diocese of Lismore in 1968, when she was fourteen (14) years of age. GLJ instituted proceedings against the Diocese, alleging that it was liable in negligence, and also vicariously liable for this abuse.
On 17 November 2020, the Diocese filed an application seeking a permanent stay of proceedings, contending that a fair trial could not be held as, amongst other reasons, the alleged perpetrator and other witnesses had since passed away.
At first instance, in the New South Wales Supreme Court, Campbell J dismissed the Diocese’s application, opining that the Diocese had failed to discharge its onus, on the balance of probabilities, to demonstrate that a fair trial was not possible. Thereafter, the Diocese sought leave to appeal the decision.
The New South Wales Court of Appeal subsequently overturned the Supreme Court’s decision, finding that whilst tendency evidence existed, along with other documents which supported GLJ’s allegations, the Diocese could not obtain a fair trial. Central to the decision was the death of the alleged perpetrator in 1996, with Mitchelmore JA opining that the Diocese was “at a significant disadvantage on the issue of whether Father Anderson assaulted GLJ” as they were incapable of obtaining any account from Father Anderson, nor other priests in the parish. Accordingly, the Court of Appeal granted a permanent stay of proceedings.
Special leave application and hearing
GLJ subsequently filed an application for special leave to the High Court, which was heard before Gageler, Gleeson, and Jagot JJ on 18 November 2022. At the hearing, it was argued by the appellant that whilst it appeared that there was no difference of opinion with respect to the general interpretation of the legal principles governing a permanent stay of proceedings, there was divergence of opinion with respect to the application of those principles in this matter, and in abuse law more generally. In the appellant’s view, the key dispute between the parties was whether circumstances in which allegations of sexual abuse are unable to be put to the alleged perpetrator, such as by result of the alleged perpetrator’s death, are sufficient to support the grant of a permanent stay of proceedings, stymieing the plaintiff’s claim. GLJ submitted, amongst other things, that courts have accepted in a range of areas that claims are able to proceed, and plaintiffs are able to succeed, notwithstanding the death of the person responsible for the conduct that is the subject of the claim. In GLJ’s opinion, those cases have provided a great deal of guidance on how to deal with the evidence in such circumstances.
The application for special leave was granted, with the matter to be heard by the High Court of Australia at a later date.
The outcome of GLJ’s special leave application reinforces the evolving nature of this area of law since legislative reforms effected in all Australian jurisdictions subsequent to The Royal Commission into Institutional Responses to Child Sexual Abuse. It also highlights that applications for permanent stays of proceedings in such matters are highly fact dependent.
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