Permanent stay of proceedings seeking damages for alleged sexual assault
In 1968, GLJ was 14 years old and was a parishioner of the Parish of Lismore. During 1968, Fr Clarence Anderson was appointed to that Parish.
In 2019, GLJ said that her father (now deceased) was injured in a motorcycle accident and another priest, Fr Brown (also now deceased) allocated Fr Anderson as a support priest for her family. She said that he visited the family home regularly. She said that, one Saturday afternoon at about 1pm or 2pm, when she had returned home from netball and was getting changed in her bedroom, Fr Anderson sexually assaulted her. There was no one else at home at the time.
GLJ said that she only saw Fr 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 Fr Anderson, who asked if he could speak to GLJ. She refused.
Father Anderson left the priesthood in 1971 and died in 1996.
GLJ sued the Lismore Trust in early 2020 alleging that the Lismore Trust was directly and vicariously liable for the alleged sexual assault by Fr Anderson.
The Lismore Trust sought a permanent stay of the proceedings or, alternatively, an order that the proceedings be dismissed pursuant to Court Rules. The primary judge refused to grant a permanent stay, 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”.
The Lismore Trust appealed to the NSW Court of Appeal which unanimously 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.
Mitchelmore JA noted that the Lismore Trust did not dispute what the records showed regarding Fr 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 Fr Anderson and others who were appointed within the Diocese at the time.
The primary judge had acknowledged that there were forensic disadvantages attending the passage of time in this case because of the death of Fr 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”.
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 Fr 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 Fr Anderson needed to be brought to account.
The Court of Appeal confirmed that 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.
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.
The Court accepted a submission by the Lismore Trust that the difficulty Fr 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 Fr Anderson engaged in conduct the detail of which was not put to him before he died.
The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ follows three earlier considerations of stay applications by the NSW Court of Appeal. In two, the stay was granted. In the one where a stay was not granted, although the alleged perpetrator was also deceased, some inquiries had been made of him before his death; and there was evidence of telephone conversations between him and one of the complainants, which had been recorded.
A very recent example of a stay application which failed was handed down on 15 July 2022 by the Supreme Court of Victoria. In this case, a nine-year old boy joined a youth organisation, Ichud Habonim Zionist Youth Movement, which ran camps for children. The boy alleged that the Youth Movement ran a camp at which Alan Weiden was a youth group leader whose role involved supervising children and organising various activities on these camps.
The boy alleged that, in 1974, when he was 12 years old, he attended a 10-day camp, organised by the Youth Movement, where he was sexually abused by Weiden. After returning from the camp, the boy alleged that he was sexually abused by Weiden at parks and golf courses around Melbourne and at his family home. Weiden was 18 years old at the time of the alleged abuse.
The boy alleged that the Youth Movement negligently exposed him to the abuse, perpetrated by Weiden, for which the Youth Movement was vicariously liable. The boy sought damages for injuries suffered by him as a result of the abuse.
Weiden denied the allegations made against him and argued that the boy’s recollection of what allegedly happened could not be relied upon after the passing of so many years.
The Court noted that the campsite and the boy’s home still existed and was not persuaded that Weiden had discharged the heavy onus on him of establishing that to allow the proceeding to continue to trial would be manifestly unfair to him or otherwise bring the administration of justice into disrepute among right-thinking people.
Contact Bill Madden, Special Counsel, Carroll & O’Dea Lawyers, for further help in this area.