01.11.23
Matthew Blundell
Earlier, we posted that what is arguably the leading judgment in abuse law in Australia will be handed down today, as was confirmed by the High Court last week.
In a split decision, the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 has allowed the appeal by a 3:2 majority.
This was the first time that the High Court had considered the principles of permanent stay applications in the context of historical abuse claims. This decision has helped to protect the rights of survivors of institutional abuse as children to seek legal redress acknowledges that the special circumstances justifying a permanent stay are often largely created by the abuse itself and the failures of the institution to deal with a known risk.
[15] an exercise of power under s 67 of the Civil Procedure Act to permanently stay proceedings on the ground that they are an abuse of process as any trial will be necessarily unfair or “‘so unfairly and unjustifiably oppressive’ as to constitute an abuse of process”26 is an evaluative but not a discretionary decision. Proceedings either are or are not capable of being the subject of a fair trial or are or are not so unfairly and unjustifiably oppressive as to constitute an abuse of process. Accordingly, the applicable standard of appellate review is not that specified in House v The King27, but the “correctness standard” as explained in Warren v Coombes28. Further, on the undisputed facts in the present case, the Diocese did not prove that there could be no fair trial (and did not contend otherwise that a trial would be so unfairly and unjustifiably oppressive as to constitute an abuse of process). Accordingly, the Diocese did not prove that the proceedings involved an abuse of process. The Court of Appeal’s contrary conclusion was wrong. GLJ is entitled to have the proceedings heard and determined.
[52] Nor, in this class of case, can any inevitable impoverishment of the evidence which the passing of time occasions be characterised as involving “exceptional circumstances”. It is not that the concept of “exceptional circumstances” involves any quantitative assessment of the number of cases within the class which might meet the threshold of exceptionality. Mr Walker SC was right to debunk any such notion. The requirement of “exceptional circumstances” involves a qualitative, not quantitative, assessment. But that qualitative assessment is one now undertaken in the context set by s 6A which abolished any limitation period. In the face of s 6A, the mere effluxion of time and the inevitable impoverishment of the evidence which the passing of time engenders cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay. If that were so, public confidence in the administration of justice in accordance with the law as enacted by Parliament would itself be undermined.
A fair trial in child sexual abuse claims – a new world
