Abuse Law Update: Stay of Proceedings  

The Trustees of Catholic Diocese of Lismore v GLJ [2022] NSWCA 78

On 1 June 2022, a judgement was delivered in The Trustees of Catholic Diocese of Lismore v GLJ [2022] NSWCA 78. This appeal sought to overturn an earlier refusal for a stay of proceedings.  

The application for a permanent stay of proceedings followed from a claim that was made in 2020 seeking damages for alleged sexual abuse in 1968, where the alleged perpetrator died in 1996 before the applicant defendant was put on notice of allegations of abuse, and where there were no other witnesses to the alleged abuse. There were also no documents dating back to or being around the time of the alleged abuse relating to allegation/s, and no meaningful opportunity for the applicant defendant to investigate the central question of whether alleged perpetrator committed the alleged abuse.  

In this case, the Court granted a permanent stay of the proceeding largely on the basis that the defendant “had no chance of receiving a fair trial in circumstances where it had no recourse to Father Anderson [the alleged perpetrator] or other material witnesses, most critically on the issue of whether Father Anderson sexually assaulted GLJ [the victim]”.  

Another important point in this case was that the plaintiff was intending to rely on evidence from four other persons who had claimed to have been also abused by the same perpetrator. The Court considered that the defendant (due to the death of the perpetrator and others) was deprived of the opportunity to conduct investigations about those matters too. The case was permanently stayed, despite there being evidence that the alleged perpetrator had a sexual interest in children generally. 

Of note, an observation by Brereton JA in this case was as follows: 

The outcome in this case says nothing adverse to the veracity and credibility of GLJ. It is now well understood that a survivor of child sexual abuse may for very good reasons not disclose it for many years, and the legislative amendments which inserted s 6A into the Limitation Act 1969 so as to disapply the statute of limitations in respect of such claims manifest an intention that the passage of time is not of itself to be treated as unacceptably prejudicing a fair trial: [1], [3]. 

Fields v Trustees of the Marist Brothers [2022] NSWSC 739

Further to this, on 10 June 2022 the court made another stay of proceedings decision in Fields v Trustees of the Marist Brothers [2022] NSWSC 739.  

The plaintiff commenced proceedings claiming damages for sexual abuse against the defendant in July 2019. The plaintiff alleged that the sexual abuse occurred in 1966, and on one occasion in 1967, whilst he was a student at St Joseph’s School (“the School”) in Lismore. 

The defendant sought orders that that the allegations raised by the plaintiff in his Statement of Claim filed in 2019 of sexual abuse by Brother Celcus (who had died in 2000), be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005. 

In this case, the Court granted a permanent stay in this historic abuse case on the basis that “…In the absence of any witness to the sexual assault relied upon by the plaintiff, and because Brother Celcus [the perpetrator] is now dead, the defendant is quite unable to test, or challenge in any meaningful way, these fundamental allegations of fact upon which the plaintiff’s claim depends.” 

The factual matters in GLJ and Fields are very similar to many of the historic abuse claims being made, in which the perpetrator is deceased. Whilst there has always been, particularly in historic abuse cases, the prospect of a case being permanently stayed, these judgments are expected to make that prospect more likely.  

If you would like advice in relation to a childhood or adult abuse claim, reach out to the author and Littles Lawyers today. 

Like? Share it with your friends.

Contact the Author

Topics

More Articles

TAC索赔知识库: 在维多利亚(VIC)发生车祸该怎么办?

每个人都希望安安全全出车去,平平安安回家来。但,事故往往在意想不到的一瞬间发生,能造成的伤害却可能需要一辈子来承受。若在澳洲发生车祸,您更可能会因为家人不在身边陪伴、语言不通、不熟悉澳洲法律体系而造成更大的心理压力。如果您或家人、朋友在维多利亚发生车祸,立德事务所(Littles Lawyers)能免费为您提供初询服务,协助您了解理赔的程序,简化您的理赔过程,让您可免于承受繁琐的索赔体系带来的无形压力,专注在车祸后的康复以及休息养伤。  每个州属的法律、保险体系不一样,若您在新南威尔士(NSW)发生车祸,请浏览此页阅读相关信息。  发生车祸以后要采取什么行动呢? 1.      向警方报案: 您报案的时候要记录警官的联络信息以及案件编号(police reference number)。这些信息在您向交通事故委员会(Transport Accident Commission, 简称TAC)进行索赔申请的时候需要提供。  2.      看诊:意外发生后,您应尽快看诊,获得医生开出的“工作能力评估假条/病假纸”(Certificate of Capacity, 简称COC)。若您因车祸而无法工作,您更应尽快看诊。  3.      向TAC递交申请:您可以在TAC官网递交申请表(请搜TAC Online Claim Lodgement Form)或拨电至...

Read More