There has been a recent emergence in the granting of permanent stay of proceedings of historical abuse claims, and it is important that both survivors and practitioners are kept up to date on the Courts decisions and commentary in these application hearings.  

On 10 February 2023, Garling J provided a decision in the matter of Peters v Trustees of the Marist Brothers [2023] NSWSC 87. In this matter, the defendant (Marist Brothers) filed an application seeking a permanent stay of the plaintiff’s (Peter’s) proceedings, for which a hearing date had been set for 10 March 2023. The plaintiff applied to adjourn this hearing based upon the fact that the decision of Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 (“GLJ”) (which was a decision made by the Court of Appeal to permanently stay the case of a female plaintiff who alleges that she suffered childhood abuse by Lismore priest, Father Clarence Anderson, who has since deceased) is the subject of a grant of special leave to appeal to the High Court of Australia. The High Court granted this special leave in GLJ on 18 November 2022.  

At [28], the court noted: 

It seems to me that if the plaintiff’s application is upheld, there would be an effect on other litigants in this Court to which I am entitled to have regard. Namely, every case in which there is a similar application for a permanent stay would have the consequence the plaintiff urges i.e., all applications for a permanent stay would not be heard and would abide by, or would await, the High Court’s judgment in GLJ. 

Ultimately, the court dismissed the application by the plaintiff seeking an adjournment of the permanent stay of proceedings hearing, stating at [34]: 

Notwithstanding everything that Mr McCarthy [the plaintiff’s legal representative] has put on behalf of his client, I am not persuaded to adjourn the hearing of the defendant’s Motion for a permanent stay. First, I am unpersuaded that there is any real likelihood that the underlying principles of law set out in Moubarak will be the subject of any challenge in the High Court. Secondly, even if that turns out to be so, the exercise that the Court will engage in, to determine all of the relevant facts relevant to this claim by this plaintiff and upon which the defendant seeks a permanent stay, will not be an exercise which is likely to be wasted. Thirdly, I am concerned about the adverse effect of a significant adjournment of the Motion, which is likely to be in the order of nine months or so. I am also concerned about the stultification of any other steps in the litigation that could be taken in the meantime, depending upon the outcome of the Motion. Finally, I am of course obliged to give effect to the legislation to the overriding purpose. 

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. 

Like? Share it with your friends.