The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 (On Caselaw).
This appeal sought to overturn an earlier refusal for a stay of proceedings.
The application for a permanent stay of proceedings followed a claim made in 2020 seeking damages for alleged sexual assault in 1968, where the alleged perpetrator died in 1996 before applicant on notice of allegation and where there were no other witnesses to alleged assault. There were no documents dating back to or around the time of the alleged assault relating to allegation and no meaningful opportunity for the applicant to engage with central question of whether alleged perpetrator committed alleged sexual assault.
The summary provided by the Court reads as follows:
The Court, granting leave to appeal, allowing the appeal and permanently staying the proceedings, held (Mitchelmore JA, Macfarlan and Brereton JJA agreeing):
As to the decision of the primary judge
- While the primary judge acknowledged that there were forensic disadvantages attending the passage of time because of the death of clergy, the considerations his Honour addressed were not responsive to the difficulties that the Lismore Trust identified on the issue that was central to its liability, namely, that there was no account from Father Anderson (or other priests in the Diocese) on the issue of whether Father Anderson sexually assaulted GLJ: at [1], [2], [99]–[100].
- The primary judge’s description that the present was “not a case where everything depends upon the acceptance of the plaintiff’s account in the absence of any available contradictor” involved a misapprehension of the facts. The present case did depend on accepting GLJ’s account in the absence of an available contradictor [101].
- The lack of instructions from Father Anderson, denying GLJ’s allegation or otherwise, also placed the Lismore Trust in a difficult position in relation to meeting evidence in unsworn statements from four male complainants detailing sexual assault allegations against Father Anderson. There is nothing to indicate that the primary judge undertook the task of bringing to account the impact on the fairness of the trial of the Lismore Trust having to meet that evidence if it were admitted: [102]–[103]. The primary judge also mischaracterised the Lismore Trust’s submission in respect of the unsworn statements and the status of those statements: [104]–[105].
- In referring to “[a] trial of the issues in this case”, without more, the primary judge did not engage with the issue to which the Lismore Trust’s evidence and submissions were primarily directed, namely, the absence of available evidence in respect of GLJ’s account of the alleged sexual assault: [107].
Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102; Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 considered.
- The primary judge adequately referred to vicarious liability when recording GLJ’s submission that the same facts on which she relied for the liability of the Lismore Trust in negligence were relevant to the case on vicarious liability, in so far as they pointed to the principal’s placement of the agent in the position of intimacy and power in relation to the people who were assaulted: [1], [2], [112]–[113].
Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 distinguished.
As to re-exercise of the discretion under s 67 of the Civil Procedure Act
- The issue of whether Father Anderson sexually assaulted GLJ was foundational to the causes of action pleaded against the Lismore Trust. The Lismore Trust was not on notice of GLJ’s allegation of sexual assault before 2019, by which time Father Anderson had died, and there were no documents dating back to or around the time of the alleged assault that detail or otherwise refer to what GLJ alleges occurred. In the circumstances of this case, the Lismore Trust could not meaningfully investigate or respond to this issue. There is nothing a trial judge could do in the conduct of the trial to relieve against those consequences. The trial would not be a fair trial: [1], [2], [4] and [119]–[122].
Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102; Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 applied.
Observation by Brereton JA
- 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].
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