Graham Cleary v Health Care Corporation Pty Ltd t/as Wollongong Private Hospital  NSWDC 263 In the matter of Graham...Read More
As we all may know, permanent stay of proceedings of historical abuse claims is a very live topic in this area of law currently, and it is important that both survivors and practitioners are kept up to date on the Courts decisions and commentary in these application hearings.
In this matter, the plaintiff (GLJ, a pseudonym) commenced proceedings on 31 January 2020 against the defendant (the Trustees of the Roman Catholic Church for the Diocese of Lismore) in which she sought damages for psychiatric injuries (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) she claims he sustained due to alleged sexual abuse she experienced by Father Anderson.
On 8 May 2020, the defendant filed a defence to the statement of claim in which it admitted that:
(a) it, by its servants and agents, was responsible for and had the care, management, and control of Catholic churches in the Diocese of Lismore, and, in particular, a Catholic church in Lismore, St Carthage’s Cathedral;
(b) Father Anderson was a priest in the Roman Catholic Church, incardinated in the Diocese of Lismore;
(c) Father Anderson was a priest appointed by the Diocese of Lismore to conduct religious services at St Carthage’s Cathedral and within the Diocese of Lismore; and
(d) Father Anderson’s duties as a priest at St Carthage’s Cathedral and in the Diocese of Lismore included the provision of pastoral guidance and support, and spiritual guidance to members of the congregation who worshipped at St Carthage’s Cathedral and churches within the Diocese of Lismore at the direction of the Diocese.
On 17 November 2020, the defendant filed a Notice of Motion in the Supreme Court of New South Wales seeking a permanent stay of the plaintiff’s proceedings. The defendant’s Notice of Motion for a permanent stay was supported by two affidavits of Greogry Isaac, the current Secretary and Business Manager for the Diocese of Lismore, which effectively provided:
(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:
a. Father Anderson, who died in 1996;
b. Bishop Farrelly, Parish Priest and Bishop of Lismore, who died in 1974;
c. Reverend Brown, Secretary (Chancellor) of the Bishop of Lismore, who died in 2005;
d. Most Reverend O’Donnell, Archbishop of Brisbane, who died in 1980;
e. Reverend Douglas, Chancellor of the Brisbane Archdiocese, who died in 1984; and
f. Monsignor Ryan, Parish Priest of Kyogle, who died in 1987.
The Diocese submitted that, in these circumstances, there could not be a fair trial.
The primary judge of the Supreme Court of New South Wales dismissed the defendant’s Notice of Motion on the basis 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 defendant then appealed on the ground that the primary judge erred in principle and misapplied his discretion in failing to permanently stay the proceedings. In granting leave to appeal and allowing the appeal, the Court of Appeal noted the controversy about the applicable standard of appellate review but reasoned that it did not need to decide that issue given that the defendant accepted that the primary judge’s decision was discretionary and alleged error within the scope of the principles in House v The King (1936) 55 CLR 499 at 504-505. The Court of Appeal 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 no fair trial could be held. Accordingly, the Court of Appeal set aside the primary judge’s orders and ordered that the proceedings be permanently stayed.
The Plaintiff then applied for and was granted special leave to appeal to this Court on the ground that the Court of Appeal erred in permanently staying the proceedings on the basis that a fair trial could no longer be had such that the proceedings were an abuse of process. The defendant filed a notice of contention which it did not press.
On 8 June 2023, the High Court of Australia heard the plaintiff’s appeal of the Court of Appeal’s judgement. The appeal raised two issues, as provided at  and  as follows:
The first issue is the applicable standard for appellate review of an order of a court permanently staying proceedings on the ground that a trial will be necessarily unfair or so unfair or oppressive to the defendant as to constitute an abuse of process. As will be explained, the applicable standard for appellate review of such an order is the “correctness standard” identified in Warren v Coombes. An error of principle by the court below, as applied to appellate review of a discretionary decision in accordance with House v The King, is not required to be identified.
The second issue is whether the appellant’s proceedings against the respondent, the Trustees of the Roman Catholic Church for the Diocese of Lismore (“the Diocese”), involve an abuse of process justifying a permanent stay of the proceedings. In the proceedings, the appellant claims damages from the Diocese for personal injury said to have resulted from a priest incardinated in the Diocese of Lismore sexually assaulting her in 1968 when she was 14 years old. The Diocese sought a permanent stay of the proceedings as an abuse of process on the basis that any trial of the proceedings 55 years after the time of the alleged sexual assault would be necessarily unfair to the Diocese in all of the circumstances, given the death of the priest said to have perpetrated the sexual assault. The primary judge in the Supreme Court of New South Wales (Campbell J) dismissed the Diocese’s application for a permanent stay. The Court of Appeal of the Supreme Court of New South Wales (Macfarlan, Brereton, and Mitchelmore JJA) granted the Diocese leave to appeal, allowed the appeal, and permanently stayed the proceedings.
On 1 November 2023, the High Court of Australia provided at  to  as follows:
… As explained, the fact that some 55 years have passed since the alleged sexual assault, in and of itself, is immaterial. The details of the alleged sexual assault are not vague and uncertain. The alleged sexual assault occurred when the only two people in the house were GLJ and Father Anderson. The Diocese was aware of and had acted on the fact that Father Anderson had sexually abused boys while a priest well before the alleged sexual assault of GLJ occurred. There is documentary evidence that priestly colleagues and superiors of Father Anderson had repeatedly tried to engage with him about what was then described as his “problem” with boys, including by arranging for him to see a psychiatrist, and that Father Anderson consistently refused to recognise that he had a “problem”, leading to his request for laicisation in 1971. What then has truly been lost to the Diocese by reason of Father Anderson’s death? The answer is nothing but the opportunity of asking Father Anderson if he sexually assaulted GLJ and, depending on the Diocese’s forensic decisions, the possibility of calling him as a witness if the case proceeded to trial, or otherwise settling the case. The loss of these opportunities does not make a trial of GLJ’s claims unfair. This is particularly so in the following circumstances.
First, 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.
Second, 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.
Third, 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.
Fourth, 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).
Fifth, 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.
Sixth, 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.
At , the High Court of Australia provided:
The Court of Appeal was wrong to conclude that there could be no fair trial of these proceedings. Accordingly, the proceedings should not have been the subject of an order for a permanent stay. They should proceed to trial.
Ultimately, the High Court of Australia granted the plaintiff’s appeal and set aside the Supreme Court of New South Wales previous order that the plaintiff’s claim be permanently stayed. The High Court of Australia further ordered that the defendant pay the plaintiff’s costs of the appeal.
Further updates in relation to the stay of proceedings of historical abuse cases can be found in other articles on our website written by Emily Wright and our office.
We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today.