The High Court handed down its decision of GLJ -v- The Trustees of the Roman Catholic Church for the Diocese of Lismore on 1 November 2023. Those of us working for victims/survivors of childhood sexual abuse applaud the decision, which has allowed the Plaintiff victim/survivor, GLJ, to proceed to trial in her Court proceedings against the Diocese.
GLJ had been stopped from being able to go to trial because of an application by the Diocese to permanently stay her proceedings. The Diocese was successful in their stay application before the NSW Court of Appeal. The primary grounds put forward by the Diocese were that the perpetrator priest had died, along with many senior people in the Diocese that could have given evidence. The abuse was alleged to have occurred in 1968 when GLJ was 14 years old, and her Court proceedings were issued in 2020. The Diocese did not know of GLJ’s allegations until 2019, many years after the perpetrator had died.
As a result of the Royal Commission into Institutional Responses to Childhood Sexual Abuse all jurisdictions in Australia enacted legalisation that extinguished the usual time limitations that applied to personal injury claims. In other words, there are no time limits to issue Court proceedings applied for childhood sexual abuse claims. However, the Courts retained a right to permanently stay Court proceedings where to proceed to trial would be an abuse of process.
The majority decision of the High Court held that the considerations in a stay application involving childhood sexual abuse claims must be viewed in light of the reasons that the time limitations were removed for these types of claims. These reasons include that the Royal Commission found that the average time it took for victims/survivors to disclose is around 22 years. Acknowledging that inherently, because of the effluxion of time, these cases will have witnesses deceased and records missing, the majority held;
“missing witnesses or evidence do not necessarily make a civil trial unfair is that the adversarial system requires a plaintiff to prove its case”
The imperfect evidence can and should be tested in the trial of the proceeding. Defendant institutions have increasingly sought to raise in its defence of these claims the threat that an application for a permanent stay will be made where the perpetrator is deceased, and there is no criminal conviction. We hope that this High Court decision will put an end to this strategy. Victims/survivors should be entitled to have their day in Court without the fear that their Court proceeding will be permanently stayed.
