Matthew Blundell

22.09.23

Heard before the High Court of Australia on 8 June 2023, the most anticipated judgment in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore is expected to be handed down in the not too distant future. In summary, GLJ is an appeal from a decision of the New South Wales Court of Appeal (Macfarlan, Brereton and Mitchelmore JJA) ordering that the proceedings be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) and/or the Uniform Civil Procedure Rules 2005 r 13.4(1)(c).

An application for a permanent stay of child abuse proceedings was foreshadowed by Parliament in the notation to s 6A of the Limitation Act 1969 (NSW). The principles governing permanent stays of proceedings are outlined in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218 at [67]–[95] (affirmed in Stokes v Toyne [2023] NSWCA 59 at [10]; [137]; [149]; [176]. 

Commentary 

There has been much discussion on the topic. One piece uniquely referrable to the issues that are before the High Court was outlined by James Masur in his article published by the Australian Law Journal last month: James Masur, ‘Dead Men Tell No Tales – Permanent Stays in Historical Child Sexual Abuse Litigation and “Dead Man Statutes” – An Unforeseen Outcome?’ (2023) 97 Australian Law Journal 575. Masur identifies an obvious comparison between the effect of the body of case law granting permanent stays in historical child abuse claims and the ancient exclusionary rules of evidence based on interest and its maligned vestiges contained in the “Dead Man Statutes”. Citing a suite of cases where claims were brought by survivors for damages for child abuse, Masur suggests that for a court to permanently stay a survivor’s claim presents an unexpected development that is particularly concentrated given States parliaments’ rhetoric following the Royal Commission.

Chief Justice Kiefel has announced her retirement on 6 November 2023 and a judgment is expected by then and may even be handed down as early as next month…

The Future of Abuse Law?

GLJ presents a unique opportunity for a judicial beginning of abuse law in Australia; that is, at least post-Royal Commission. Will GLJ arrive at an “inflexion point”? What can properly constitute a “fair trial” in circumstances where a party adduces “stale” evidence? When is it appropriate for a Court to exercise its exceptional powers including to permanently stay proceedings? Whatever the outcome, suffice it to say that GLJ will be oft-cited in years to come.