A much anticipated decision of the High Court of Australia (‘HCA’) regarding a historical sexual abuse claim against the Catholic Church and dealing with the issue of stay applications has been welcomed by victims’ advocates.
A majority of Justices of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (“GLJ”) rejected a claim that it would be unfair for the Diocese to answer allegations of historical sexual abuse. The abuse occurred in 1968 and the perpetrator, Father Clarence David Anderson, died in 1996.
In the Court below, the Church had succeeded in its application for a permanent stay. In the area of historical institutional abuse, the practice of seeking stays of proceedings has attracted controversy in that they have been viewed as a vehicle for avoiding liability.
Applications for a permanent stay of proceedings have often been invoked after an alleged perpetrator has died before a claim for damages is brought. If that claim is unlikely to succeed because of insufficient evidence – when documents have been lost or witnesses have died – a stay has been sought and often granted if the court hearing the application is satisfied that the continuation of a case would lead to an abuse of process.
In GLJ, a High Court majority found that the 1996 death of the alleged abuser, Father Clarence David Anderson, did not mean that the allegations made against him could not be fairly tested in a civil hearing. Despite the fact that the claim dated back to 1968, there was available evidence that could be relied upon to counter any claim of abuse of process and a fair trial able to be conducted.
The complainant in GLJ was a 14-year-old girl whose father had been involved in a serious motorcycle accident. It had been alleged that Father Anderson sexually assaulted the teenager after offering her family support during a pastoral visit for the benefit of the family to her home.
In concluding that GLJ did have a right to pursue this claim, the High Court found that the Diocese had failed to prove that a fair trial could not be conducted.
Information relating to the accused’s sexual proclivities was known to the Diocese before the abuse was alleged to have taken place. This was distinguishable from other cases in which allegations of sexual abuse had emerged ‘with no forewarning of any kind.’
The majority found the church was “not at all ‘in the dark’” about the risk of abuse at the time of first contact between GLJ and Father Anderson.
Lawyers believe this decision will have significant implications for future cases where institutions have expected to be able to successfully argue they should be shielded from liability by a permanent stay.
If you need legal support with an institutional abuse matter, contact the expert and caring team at Catherine Henry Lawyers. Call 1800 874 949 or complete the contact form below.
