GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Gageler,Steward J.,Gleeson J.,Jagot JJ.
• Judgment Date: 01 November 2023
• Neutral Citation: [2023] HCA 32
• Year: 2023
• Court: High Court
• Docket Number: S150/2022

GLJ

Appellant

and

The Trustees of The Roman Catholic Church for The Diocese of Lismore

Respondent

[2023] HCA 32

Kiefel CJ, Gageler, Steward, Gleeson and Jagot JJ

S150/2022

HIGH COURT OF AUSTRALIA

CATCHWORDS

Courts — Abuse of process — Permanent stay of proceedings — Where appellant commenced claim for damages for personal injury against respondent 52 years after alleged sexual assault by priest employed by respondent occurred — Where no limitation period for claims resulting from child sexual abuse under s 6A of Limitation Act 1969 (NSW) — Whether death of alleged perpetrator and other critical witnesses is exceptional circumstance so trial of proceedings would be necessarily unfair — Whether proceeding in such circumstances an abuse of process justifying permanent stay of proceedings.

Courts — Appeals — Applicable standard of appellate review — Where party seeking permanent stay of proceedings — Where grant of permanent stay of proceedings requires determination of whether trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process — Whether question of abuse of process involves exercise of discretion and error of principle to be identified in accordance with House v King (1936) 55 CLR 499 — Whether question of trial constituting abuse of process has one correct answer and “correctness standard” in Warren v Coombes (1979) 142 CLR 531 applies.

Words and phrases — “abuse of process”, “adversarial system”, “applicable standard of appellate review”, “child sexual abuse”, “correctness standard”, “discretion”, “exceptional circumstances”, “fair trial”, “inherent, implied, or statutory jurisdiction of courts”, “irreducible minimum standards of fairness”, “limitation period”, “necessary unfairness”, “permanent stay of proceedings”, “unfairly and unjustifiably oppressive”, “unfairness or oppression”.

Civil Procedure Act 2005 (NSW), s 67.

Limitation Act 1969 (NSW), s 6A.

Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(c).

Representation

P D Herzfeld SC with J A G McComish for the appellant (instructed by Ken Cush & Associates)

B W Walker SC with E Bathurst for the respondent (instructed by Hannigans Solicitors)

ORDER

• 1. Appeal allowed.

• 2. Set aside orders 3-5 made by the Court of Appeal of the Supreme Court of New South Wales on 1 June 2022 and, in lieu thereof, order that:

  • (a) the appeal be dismissed; and

  • (b) the applicant pay the respondent's costs of the appeal.

• 3. The respondent pay the appellant's costs of the appeal to this Court.

On appeal from the Supreme Court of New South Wales

1 Kiefel CJ, Gageler AND Jagot JJ. This appeal raises two issues. 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 1. An error of principle by the court below, as applied to appellate review of a discretionary decision in accordance with House v The King 2, is not required to be identified.

2 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 3 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 4. The primary judge in the Supreme Court of New South Wales (Campbell J) dismissed the Diocese's application for a permanent stay 5. 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 6.

3 As will be explained, the grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That

ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute

4 In the present case, the abolition of the limitation period that would have applied to and precluded the appellant's proceedings before the enactment of the Limitation Amendment (Child Abuse) Act 2016 (NSW) 7 has created a new legal context within which the alleged abuse of process must be evaluated. In this new legal context, the Diocese's contention that any trial of the proceedings would be necessarily unfair must be rejected. As the Diocese acknowledged that its case for a permanent stay for abuse of process was based only on necessary unfairness of a trial and not undue oppression or unfairness otherwise, no permanent stay is justified. The proceedings must go to trial.

Background

5 The appellant, GLJ, was born in Lismore in 1954. On 31 January 2020, the appellant filed a statement of claim in the Supreme Court of New South Wales. The statement of claim records that GLJ was raised in the Catholic faith to believe that Catholic priests were God's representatives on earth. GLJ's family worshipped at St Carthage's Cathedral in Lismore. GLJ alleges that in 1968, when she was 14 years old, her father was seriously injured in a motorcycle accident, following which a Catholic priest, Father Anderson, was directed by the Diocese to attend GLJ's family home to provide pastoral and spiritual support and guidance. She alleges that, at this time, Father Anderson sexually abused her by holding her down on the bed and penetrating her vagina with his fingers and penis. She alleges that, as a result, she suffers from 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 damages, including aggravated and exemplary damages, based on the Diocese both breaching a duty of care it owed to her to protect her from the reasonably foreseeable risk of harm of sexual abuse by Father Anderson and being vicariously liable for Father Anderson's sexual abuse of her

6 On 8 May 2020, the Diocese filed a defence to the statement of claim. The Diocese 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. According to the Code of Canon Law, a priest being “incardinated in the Diocese” means that the priest was formally instituted as the (or a) priest in and of, and was accepted as such by, the Diocese of Lismore 8.

7 In its defence, the Diocese did not admit, relevantly, any of the allegations concerning: (a) GLJ and her family; (b) Father Anderson sexually assaulting GLJ; (c) what it knew or should have known; (d) what a reasonable person in its position would or should have done; or (e) the existence or breach of any duty of care it owed to GLJ. The only matters the Diocese pleaded that it “does not know and therefore cannot admit” were the allegations concerning: (a) what Father Anderson knew or should have known; (b) the existence of a duty of care owed by Father Anderson to GLJ; (c) breach of the alleged duty of care by Father Anderson; and (d) GLJ's injuries being caused by the Diocese and Father Anderson breaching their duties of care to her.

8 On 17 November 2020, the Diocese filed a notice of motion in which it sought orders either that the proceedings be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) or dismissed pursuant to r 13.4(1)(c) of

the Uniform Civil Procedure Rules 2005 (NSW). Section 67 of the Civil Procedure Act provides that “[s]ubject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day”. Rule 13.4(1)(c) of the Uniform Civil Procedure Rules provides that the court may order proceedings to be dismissed if it appears to the court that the proceedings are an abuse of the process of the court

9 The Diocese's notice of motion was supported by two affidavits of...