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

The High Court of Australia has today granted special leave for the appellant to appeal the decision in The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78, in which the NSW Court of Appeal permanently stayed historical abuse proceedings.

The appellant, referred to by the pseudonym ‘GLJ’, alleged that she was sexually abused by a priest within the Diocese of Lismore (Diocese) in 1968 when she was 14 years old. GLJ sued the Diocese in the Supreme Court of NSW, alleging that it was liable to her in negligence and was also vicariously liable for the abuse by the alleged perpetrator.

The Diocese filed an application seeking a permanent stay of proceedings on the basis that a fair trial could no longer be held due to the paucity of evidence and because the alleged perpetrator and other material witnesses had died. In September 2021, the Diocese’s application was dismissed at first instance by Campbell J. The Diocese appealed the decision to the NSW Court of Appeal. In June 2022, Mitchelmore, Brereton and Macfarlan JJA allowed the appeal and granted a permanent stay of the proceedings in favour of the Diocese.

At a hearing of an application for special leave heard before Gageler, Gleeson and Jagot JJ, the Court granted leave for the appellant to appeal. In submissions, the appellant argued that there was no difference between the parties as to the legal principles governing permanent stays, but that the parties diverged on how those principles applied to the circumstances of this case, and in historical abuse cases generally. While a paucity of evidence is common in historical abuse matters, courts are able to deal with unfairness to a defendant during a trial – an approach that is generally preferable to staying a trial outright. Ultimately, the appellant submitted that the case raises matters of fundamental legal importance, which warranted the Court granting special leave. The appeal will be heard by the Court at a future date.

The grant of special leave by the High Court illustrates the uncertainly of the law in this area, which continues to evolve in all Australian jurisdictions. Applications for a permanent stay of proceedings remain highly fact-specific and are exceptional remedies. The onus lies squarely on a defendant to satisfy a court that a stay ought to be granted considering all the circumstances of the case.

Partners Patrick Thompson and Greg Carruthers-Smith discussed the Court of Appeal’s decision in NSW Court of Appeal again grants a stay of historic child abuse civil litigation, which we published in June 2022.