Permanent stay of proceedings seeking damages for alleged sexual assault — “everything does depend upon the acceptance of the plaintiff’s account”: Trustees of Roman Catholic Church for Diocese of Lismore v GLJ1
Published on August 22, 2022 by Bill Madden
This article was first published within LexisNexis’ newsletter Australian Civil Liability, Volume 17 No 3, June 2022.
In this appellate consideration of an application for a permanent stay of proceedings seeking damages for alleged sexual assault, the NSW Court of Appeal allowed an appeal from a decision of Campbell J2 and made orders that the proceedings brought by GLJ be permanently stayed. Although the passage of time did not unduly compromise the Lismore Trust’s ability to meet allegations that it was vicariously liable or that it breached its duty of care in exposing young parishioners to him, that was not the point. There were only two potential witnesses to the alleged assault, GLJ and Father Anderson. Deprived of the ability to obtain any instructions from Anderson by his death, the Lismore Trust had no means of investigating the alleged facts.
In 1968, GLJ was aged 14 years and was a parishioner of the Parish of Lismore, attending Mass at St Carthage’s Cathedral.
During 1968, Father Clarence Anderson was ordained in July 1963 appointed to that parish for part of 1963 and then again for part of 1968. Father Anderson left the priesthood in 1971 and died in 1996.
Following a complaint to the diocese in 2019, proceedings were issued in early 2020 in which GLJ alleged that she had been sexually assaulted by Father Anderson in 1968.
The defendant/respondent (“Lismore Trust”) filed a notice of motion seeking a permanent stay of the proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW). In the alternative, the Lismore Trust sought an order that the proceedings be dismissed pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW). The primary judge refused to grant a permanent stay and dismissed the notice of motion, not being satisfied that the Lismore Trust had:
. . . discharged the onus of demonstrating on the balance of probabilities that the continuation of the proceedings would be unjustifiably oppressive to the [Lismore Trust] or bring the administration of justice into disrepute in a sense that a fair, albeit not perfect, trial can no longer be had.3
The Lismore Trust sought leave to appeal with a view to having the orders of the primary judge set aside and to have the proceedings permanently stayed.
Appeal Judge Mitchelmore, with Macfarlan and Brereton JJA agreeing, granted leave to appeal and, as sought by the Lismore Trust, permanently stayed the proceedings.
Although the leading judgment was written by Mitchelmore JA, it is helpful at this point to turn a passage by Brereton JA who succinctly summarised the key issues and outcome, saying:
In this case, to succeed at trial GLJ would have to establish, against the Lismore Trust, first that Father Anderson sexually assaulted her as alleged, and secondly that the Lismore Trust is legally responsible, whether by way of vicarious liability in assault, or direct liability in negligence. Although it may be that the passage of time does not unduly compromise the Lismore Trust’s ability to meet allegations that it was vicariously liable for whatever Anderson may have done, or that — being on notice of his paedophiliac propensities in respect of young males — it breached its duty of care in exposing young parishioners to him, that is not the point. There were only two potential witnesses to the alleged assault, GLJ and Father Anderson. Deprived of the ability to obtain any instructions from Anderson by his death, the Lismore Trust has no means for investigating the facts. The fact that Father Anderson may, by his own admission, have engaged in misconduct against young males, does not begin to establish that he assaulted GLJ as alleged. Even if he would not have been called as a witness, a matter which I would not regard as foreclosed, the circumstance that the foundational allegation of the assault was one which the Lismore Trust had no way of investigating and ascertaining whether or not the alleged assault had taken place, let alone contradicting it, has the consequence that, regardless of the veracity and credibility of GLJ, the trial could not be a fair one.4
In an unsworn statement which was before the primary judge, GLJ indicated that her father (now deceased) was injured in a motorcycle accident and another priest, Father Brown (also now deceased) allocated Father Anderson as a support priest for her family. She said that he visited the family home regularly. The sexual assault occurred one Saturday afternoon at about 1 pm or 2 pm. GLJ had returned home from netball and was in the process of getting changed in her bedroom. There was no one else at home at the time. GLJ said that she only saw Father Anderson one other time, when she was about 17 years old. She was having dinner at home with her father and one of her brothers when there was a knock at the door. Her father answered the door to Father Anderson, who asked if he could speak to GLJ. She refused.5
GLJ did not assert that she told her parents or siblings of the alleged assault; however, her statement indicated that about 3 years later she told her boyfriend, later told her first husband and believed that at some point she told a school friend.6
In an amended statement of claim, GLJ made various allegations of direct negligence against the Lismore Trust. She also alleged that the Lismore Trust was vicariously liable for the alleged assault by Father Anderson.7
Amongst the evidence before the court were unsworn statements of four male persons. In their respective statements, each said that he lived within the Diocese of Lismore as a child and was sexually abused by Father Anderson. There were also documents that the Lismore Trust produced in answer to a notice to produce, together with documents produced on subpoena by the NSW/ ACT Professional Standards Office and the Archdiocese of Brisbane.8
The documentary record arguably demonstrated, as the primary judge had observed, that Father Anderson’s misconduct was well-known to his superiors, well before the event alleged by the plaintiff in 1968.9
Consideration by the Court of Appeal
Appeal Judge Mitchelmore noted that the Lismore Trust did not dispute what the records showed regarding Father Anderson’s sexual interest in young boys and his preparedness to act on that interest. Its case for a permanent stay emphasised the absence of any record that related to GLJ’s specific allegations, and the absence of any opportunity to put those allegations to Father Anderson and others who were appointed within the diocese at the time.10
The primary judge had acknowledged that there were forensic disadvantages attending the passage of time in this case because of the death of Father Anderson and other clergy. His Honour sought to answer that acknowledgment generally, by reference to “a number of considerations which positively demonstrate that a fair trial can still be held”.11 Perhaps the two key issues identified by Mitchelmore JA are those she described as follows:
The primary judge first described child sexual abuse as almost overwhelmingly occurring in a private place, such that “[r]arely can it be expected that eyewitnesses will be available, if ever”. This statement may be accepted in so far as it concerns witnesses apart from the complainant and the alleged perpetrator, but it is of limited significance where the alleged perpetrator is deceased without knowledge of the allegations. True it is that Father Anderson is not a party, and the Lismore Trust would not necessarily (or likely) have called him as a witness were he alive. On the stay application, however, the point was that without any account from Father Anderson (or other priests in the parish), the Lismore Trust was at a significant disadvantage on the issue of whether Father Anderson sexually assaulted GLJ.
That the primary judge erred in his Honour’s assessment of the impact of Father Anderson’s death on the fairness of the trial as to this issue is highlighted in the following paragraph. After referring to what the “body of extant documentary evidence” demonstrated in J , his Honour stated at J  that the present is “not a case where everything depends upon the acceptance of the plaintiff’s account in the absence of any available contradictor”. Contrary to his Honour’s description, on the issue of the alleged sexual assault of GLJ there is no available contradictor and “everything does depend upon the acceptance of the plaintiff’s account”.
The absence of instructions from Father Anderson also put the Lismore Trust in a difficult position in relation to the four unsworn statements which GLJ put forward in support of her case. The impact on the fairness of the trial of the Lismore Trust having to meet that evidence, should it be admitted, in the absence of Father Anderson needed to be brought to account.12
Re-exercise of the discretion
In re-exercising the discretion, the court confirmed the burden of establishing the existence of exceptional circumstances lies “squarely” on a defendant. That burden includes demonstrating that all reasonable enquiries which bear upon the fairness or unfairness of the proceedings have been undertaken.13
The passage of time of some 54 years since the events the subject of GLJ’s allegations did not of itself warrant the grant of a permanent stay. It was the consequences of that passage of time which placed this matter in the exceptional category, having regard to the particular factual circumstances.
The Lismore Trust was not on notice of GLJ’s allegation of sexual assault before 2019. On her own account, there were no witnesses. There were no documents dating back to or around the time of the alleged assault that detail or otherwise refer to what GLJ alleges occurred.14
The court accepted a submission by the Lismore Trust that the difficulty Father Anderson’s death created in this case was highlighted by the foreshadowed tendency evidence. For the purposes of the stay application, it was relevant that each of the unsworn statements from the additional four witnesses alleged that Father Anderson engaged in conduct the detail of which was not put to him before he died.15
Although obiter given the conclusion reached above, the court did not accept that the difficulties that the Lismore Trust advanced regarding the negligence and vicarious liability aspects of GLJ’s claims warranted a permanent stay. Having regard to the documents that are available, the unavailability of witnesses (including Father Anderson) was not productive of manifest unfairness to the Lismore Trust on either of those issues.16
Trustees of Roman Catholic Church for Diocese of Lismore v GLJ follows three earlier considerations of stay applications by the NSW Court of Appeal.
This matter was noted by Mitchelmore JA to be distinguishable from that of Gorman v McKnight,17 where the alleged perpetrator was also deceased. Some inquiries were made of him before his death and there was evidence of telephone conversations between him and one of the complainants which had been recorded.
While expressing caution comparing individual features of different cases, the significance of the death of Father Anderson in the claim by GLJ against the Lismore Trust presented a similar difficulty to that which arose in the matter of Moubarak by his tutor Coorey v Holt.18 The defendant was suffering from dementia which was in an advanced stage before the allegations of sexual assault were made known to him and which necessarily impacted on his ability to provide instructions, including during the course of the hearing.
The Council of Trinity Grammar School v Anderson19 stay application focused on Trinity’s position in respect of vicarious liability and non-delegable duty claims. A stay was granted in Trinity; however, in this matter Mitchelmore JA referred to available documents and therefore did not accept that the difficulties the Lismore Trust identified regarding the negligence and vicarious liability aspects of GLJ’s claims warranted a permanent stay.
- Trustees of Roman Catholic Church for Diocese of Lismore v GLJ  NSWCA 78; BC202204893.
- GLJ v Trustees of Roman Catholic Church for Diocese of Lismore  NSWSC 1204; BC202108981.
- Ibid, .
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- Gorman v McKnight  NSWCA 20; BC202000871, .
- Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; 374 ALR 150;  NSWCA 102; BC201903641.
- Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762;  NSWCA 292; BC201911487.