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On 1 June 2022, a judgement was delivered in The Trustees of Catholic Diocese of Lismore v GLJ  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: , .
Further to this, on 10 June 2022 the court made another stay of proceedings decision in Fields v Trustees of the Marist Brothers  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.