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

[2023] HCATrans 76

[2023] HCATrans 076

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S150 of 2022

B e t w e e n -

GLJ

Appellant

and

THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF LISMORE ABN 72863788198

Respondent

KIEFEL CJ
GAGELER J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 8 JUNE 2023, AT 10.00 AM

Copyright in the High Court of Australia

MR P.D. HERZFELD, SC:  May it please your Honours, I appear with MR J.A.G. MCCOMISH for the appellant.  (instructed by Ken Cush & Associates)

MR B.W. WALKER, SC:  May it please the Court, I appear with MS E. BATHURST for the respondent.  (instructed by Hannigans Solicitors)

KIEFEL CJ:   Yes, Mr Herzfeld.

MR HERZFELD:   Your Honours, we propose to structure our oral submissions in this way.  First, we will take your Honours to the Court of Appeal’s reasoning in some of the key factual material before the Court in the appellant’s book of further material.  Next, we will address your Honours on whether it is necessary for us to identify House v The King error.  And then, next, under three separate headings, we will identify the errors which, if necessary, we say are House v The King errors, which we say the Court of Appeal made and which led it to the wrong conclusion.  We will not address the respondent’s notice of contention because it has been progressively and now completely abandoned.

So, may we start with the reasons of the Court of Appeal in the core appeal book, if your Honours would take that up.  If your Honours turn to page 43 of the core appeal book in the reasons of Justice Mitchelmore who gave the leading reasons in the Court of Appeal, there is a fair summary from paragraphs 15 down to 22 of the case against the respondent.  Paragraphs 15 to 22 summarise the appellant’s statement, which was filed on the stay application.  Without going to it, we will just give your Honours the reference to that statement in the book of further materials at volume 1, starting at page 29.  Justice Mitchelmore’s summary of the appellant’s statement concludes at paragraph 22.  Would your Honours notice there various persons identified as persons whom the appellant says that she told about the sexual assault.

GLEESON J:   Do we have any information about how the plaintiff proposes to conduct the trial, such as whether or not those complaints are likely to be corroborated by evidence?

MR HERZFELD:   Your Honours do not have evidence about that.  One of the points which we will come to is that, relevantly, there is no evidence about these people and others as to whether they might be able to corroborate or contradict the statement of the appellant – and that, in circumstances where the respondent bears the onus, will be problematic for the respondent – but I will come back to that.

GLEESON J:   You could not really expect the respondent to address the question that I have just asked you.

MR HERZFELD:   Not at all.  But if the respondent wanted to say, for example, we have made inquiries of these persons and all of them are dead and that means that we cannot even contradict or test or question the appellant’s statement from these people, that would be something they could have done, and they have not done.

GLEESON J:   Is that a reasonable burden to place on a defendant to make inquiries of people about what their recollection was over 50 years ago?

MR HERZFELD:   It is if the defendant wants a stay of proceedings which should otherwise proceed.  But, as I said, I will come back to that.

STEWARD J:   Can I just ask, as a point of clarification, there was no statement or affidavit from either the boyfriend or the first husband before the court below?

MR HERZFELD:   There was not.

STEWARD J:   Thank you.

MR HERZFELD:   Justice Mitchelmore then summarises the amended statement of claim – and again, without going to it, your Honours will find that in the book of further materials, volume 3, starting at page 647 – and as her Honour summarises, the claim is put both as a direct breach of duty of care by the respondent and vicarious liability for Father Anderson’s conduct.  From paragraph 28 and following, her Honour summarises the evidence on the application, and may we draw attention to a number of matters and take your Honours to some of the key material.  At paragraph 31, there is a reference to:

The official record of Father Anderson’s appointments within –

the Lismore Diocese.  Without going to that document – again, just for your Honours’ reference, it is at volume 3, page 500.  Your Honours will see that the dates in 1968 during which Father Anderson was in the Lismore Parish – which is where he was at the time of the alleged sexual abuse of the appellant – those dates are unclear from the document.  If your Honours just turn forward in her Honour’s reasoning for a moment to paragraph 47, her Honour there refers to the primary judge’s reasoning that period was most likely only two months.  But, in paragraph 48, her Honour explains that there some documents which suggest that the period may have been longer.  Those documents – again, just for your Honours’ reference – are at volume 3 of the appellant’s book of further materials, pages 618 and 620.

Returning to paragraph 35, then, of her Honour’s reasons, from there onwards, her Honour sets out, in chronological order, the other evidence concerning the parishes at which Father Anderson served.  Your Honours will see there a reference to Monsignor Ryan, the Parish Priest of Kyogle Parish, and he provided a statement as part of Father Anderson’s laicisation.  Would your Honours please go to that statement.  It is in volume 1 of the appellant’s book of further material, and it begins at page 98.

Now, this statement at page 98 is undated, but it appears to have been sent under cover of the note which your Honours will find at page 116.  Your Honours will see that that note at page 116 is dated 23 January 1971, and your Honours will notice the concluding statement there:

For God’s sake get the fellow out.

So, returning then to page 98, this was responding to a series of questions, and the questions themselves appear at page 101.  May we draw attention within the statement, first of all, on page 99, what appears at paragraph 4.  This is referring to events that Monsignor Ryan witnessed during the period mentioned there – so up to 1965 – and your Honours will see the description of the event which Monsignor Ryan witnessed in the last five or six lines of that paragraph.

At around the same time, there is the event recorded in paragraph 7 of that statement, October 1965, and the first three lines there describe what was said by a father of a son and then a reference to six other named boys.  Now, what was done in response to the events described there was not the expulsion of Father Anderson reporting to police but, as is explained over the balance of paragraph 7 over to the next page, there was an unsuccessful attempt to compel his attendance at a psychiatrist in Sydney and his appointment to a parish further down the coast, that is, Macksville.  This was all reported to the Bishop of Lismore.

The Bishop’s statement is at page 92 of this volume.  Your Honours will notice that it is dated in typed font “15th January, 1970”, but that is clearly an error for 1971 and your Honours will notice a handwritten annotation, “Rcd 19/1/71”.  The left‑side of this page is cut off.  That is not an error in the printing of the book of further materials; that is the way in which the records were produced on subpoena by the Archdiocese of Brisbane.  But it is tolerably clear that the second paragraph says this:

After years of experience in dealing with Fr Anderson, I have [com]e to the conclusion that this is the only course possible.  He has had [rec]urring trouble in sexual matters, especially homosexuality.  This [fir]st came to my notice some six years ago, and in every case young [boy]s were involved.

I will show your Honours a document in a moment which confirms my interpolation of the words “boys” there.  That reference by the Bishop to this coming to his notice six years ago fits with the timing explained in Monsignor Ryan’s report.

If your Honours then return to Justice Mitchelmore’s reasons, at paragraph 40, her Honour refers to material produced in response to a subpoena to the New South Wales and ACT Professional Standards Office of the church, and I will come back to that material in a moment.  But will your Honours notice that as her Honour records, one of the instances of sexual abuse referred to in that material occurred in Kyogle.

Her Honour next summarises the evidence concerning the Macksville Parish, and her Honour summarises the statement of Father O’Brien, the Parish Priest there.  Without going to it, it may be found in volume 1 of the book of further materials at page 96.  Again, your Honours will notice in paragraph 43, her Honour recording that two of the complaints concerning, which were made to that office concerned Macksville.  Your Honours will also notice there a reference to some additional statements obtained by the appellant which were tendered on the stay application, which I will come back to. 

Her Honour next summarises the evidence concerning Maclean Parish, including a statement provided by Father Cranney, the Parish Priest.  Would your Honours, please, go to that in volume 1 of the book of further material at page 103.  Your Honours will see what appears there, in the second‑last substantive paragraph:

Only after He departed from tHis parisH –

and so on.  Returning, then, to Justice Mitchelmore’s reasons, her Honour notices at paragraph 46 that two of the complaints from the Professional Standards Office material concerns the Maclean Parish.  We then come, in her Honours reasons, to the Lismore Parish – which I have already touched on – and your Honours will recall what the Bishop of Lismore had said.  Then, finally, at paragraphs 50 to 51, her Honour summarises the evidence concerning Tweed Heads.

Next, chronologically, there is the statement that Father Anderson himself made, on oath, as part of his petition for laicisation.  There is a transcript of that in volume 1 of the further materials, beginning at page 86.

KIEFEL CJ:   I am sorry, what was that page number?

MR HERZFELD:   Page 86 of volume 1.  Your Honours will notice that at the outset in capitals it says, “Oath taken”, and if your Honours turn to the end of the transcript at page 91, your Honours will also see that there was an oath taken at the end of the interview.  The oaths themselves may be found at page 128 of this book.  Your Honours will notice, on page 128, the top was evidently the oath given before the statement:

I will speak the truth –

and so on, and then the bottom, which was signed and witnessed, was the oath given afterwards:

I . . . swear that I have spoken the whole truth –

So, they are the oaths.

STEWARD J:   Is there any significance in the bits that have been crossed out?

MR HERZFELD:   I think it is just that – well, I can only speculate what the significance might have been.  The significance might have been, although this seems surprising, that there was not a bible to hand, but ‑ ‑ ‑

STEWARD J:   That would be surprising.

MR HERZFELD:   Yes.  It seems unlikely, but that might have been what it is.  In any event, I do not think we can draw anything ‑ ‑ ‑

STEWARD J:   All right.

MR HERZFELD:   ‑ ‑ ‑ about that on this occasion.  At the trial that may be so, but on this occasion we cannot.  If your Honours turn back to the transcript itself, beginning on page 86, may we draw attention to the following questions and answers:  on page 88, question 33, and the non‑response to it; and then on page 90, question 47, and the non‑response to it; question 48, and the negative response to it; and then question 51, and the elliptical response to it.

One final document concerning the laicisation process, to which we will draw attention, is at 78 of this volume.  This is the report of the Archbishop of Brisbane to Rome.  Your Honours will see that at the end of the report on page 82.  Your Honours will see:

Archbishop of Brisbane.

And:

To His Eminence,

The Cardinal Prefect –

and so on.  Within this statement on page 80, in the first paragraph, the Archbishop is here quoting from the statement from the Bishop of Lismore, and it quotes that passage that had been slightly cut off on the left‑hand side and quotes it with the word “boys” included.  So, your Honours can be confident that that is what that document said.  The next paragraph refers to questions in the transcript, and it refers to the questions to which we have drawn attention, although there is a reference there to question 31 that is evidently a typo for question 33.

Now, in addition to documentary evidence of this kind, there are four other broad sources of evidence that will be available at any trial.  First, I have touched on the various complaints made to the Professional Standards Office of the church; the very extensive records of those complaints are in volume 2 of the book of further materials.  Would your Honours take that up please?  If your Honours turn in that volume to page 146, your Honours will see this is a case report for one of the complaints, and your Honours will notice near the top of the page that the complaint date was 27 June 2001 – sorry, this is on page 146.

GLEESON J:   Does the relevance of this material depend upon its relevance as tendency evidence?

MR HERZFELD:   It might be relevant more generally to other matters in the complaint.  So, for example, one of the aspects of the plaintiff’s case is that Father Anderson was assigned to her family when her father had a motorbike accident, and there is a complaint that the defendant says, well, we do not have any evidence of Father Anderson being assigned in that way.

In one of these complaints, there is evidence of Father Anderson being assigned to a family in a very similar way.  So, it might be relevant more generally for the way in which Father Anderson – for what Father Anderson’s role was in the diocese.  However, it will also be potentially relevant as tendency evidence, but not only as tendency evidence.  I should say, one of the complaints, of course, which was originally pursued in the notice of contention, was that it was – this material was wrongly – I am sorry, I withdraw that, that relates to another matter.

If your Honours look at paragraph 146, this complaint was made on 27 June 2001 – and that was after Father Anderson’s death in 1996.  It is, indeed, a striking feature that of the many complaints about Father Anderson’s conduct in evidence, all of those made after his laicisation were made after his death.  Your Honours will see, turning over the page, on page 148, that under “Incident Location”, your Honours will see that the location was Macksville.  Under “A/Victim Age and Timespan”, your Honours will see that the numerous incidents are reported and the victim’s age at the time of the first was eight.

Your Honours can see a summary of those incidents on page 154.  Against the date near the top of the page, 11 September 2001, there is a very short summary of the incidents.  Included there is the matter to which I referred earlier, Justice Gleeson:

His mother was a widow and the priest came to the home.

When one delves into the material, he was assigned to the home because the father had been killed.  So, it might be relevant – this material might be relevant not only as tendency evidence but as evidence of what Father Anderson’s role was in the diocese.

GLEESON J:   Is this the younger brother of the person who made the first unsworn statement that we have in the materials?

MR HERZFELD:   It is not.  There are two brothers in this complaint.  This is another set of brothers.  But there is a description of the conduct on page 154.  If your Honours turn back to page 150, your Honours will see, under the heading “Findings”, about halfway down the page – the statement “Substantiated”.  Then, under “Reparation Paid”:

Was reparation paid?  Yes

Amount   50000

And other material shows that that is dollars.  The reasoning for this ‑ ‑ ‑

STEWARD J:   Sorry, who was concluding that it is substantiated?

MR HERZFELD:   The church, in making this payment.

STEWARD J:   But do we know if this is a priest, a bishop, or someone hired by the church?

MR HERZFELD:   I am about to show your Honours.

STEWARD J:   Thank you.

MR HERZFELD:   So, what your Honours see on page 153, against 25 July 2001, there is an extract here from an email – a copy of an email – which your Honours will see is from John F. Davoren at the top.  The other material behind this case note summary shows he was the Director of the Professional Standards Office.  Your Honours will see there is a summary by him of the complaint.  What he says in the concluding part of that second paragraph is that:

While Anderson cannot answer in his own defence, and there is no other apodictic –

That is, conclusive:

evidence against him, his known track record does not particularly help his defence.

In my opinion it is therefore a reasonable conclusion that it is more likely than not that their stores are true, and the complaints are justified.

If you agree that it is more likely than not that Anderson did abuse both of these men may I suggest –

And the “you” is sending a message to the Bishop of Lismore, as your Honours will see from the email at the top.  So, the decision‑maker, to answer your Honour’s question, is the Bishop of Lismore, but aided by the Director of the Professional Standards Office.

STEWARD J:   Do we know anything about him?  Was he a bit like Peter O’Callaghan in Melbourne, a QC or something?

MR HERZFELD:   I do not think that there is in this material evidence about him, so all we know about him is that he is the Director of the Professional Standards Office, based on the evidence that is here.  But it was evidently accepted, because of what I showed your Honours earlier and the amount of money which was paid.  Now, without going to each of the other complaints, there are similar case notes for each of the complaints in this volume and we will just give your Honours the references to the pages.  They are pages 242, 326, 382 and 436.  Between each of these case notes there is all the supporting material for each complaint filed.

GLEESON J:   Can you give us references to the material that indicates that there was an assignment of the priest to pastoral duties with the family?

MR HERZFELD:   Yes, I think I will actually come to that, but if I do not, Mr McComish will assist me to turn it up.  I will come back to it, I am just trying to see if I can turn it up here.  No, I will not waste time.  In any event, what the material shows is that these complaints were resolved for total payments of over $300,000 and the timing of the complaints were such that they were made variously before the death of the Parish Priest of Macksville, Father O’Brien, in 2002, the death of the Secretary to the Bishop of Lismore, Father Brown, in 2005, and the death of the Parish Priest of Tweed Heads, Father Hoade, in 2008.  There is no evidence from the respondent as to what, if any, steps were taken to obtain a statement from those men concerning Father Anderson’s conduct before their deaths in light of these complaints.  So that is the first category of other evidence which is available.

The second category of other evidence are the statements which were obtained by the appellant for the application, and those are summarised in Justice Mitchelmore’s reasons starting at paragraph 56 and the summary goes through to paragraph 63.  Now, again without going to those statements, your Honours will find them in volume 1 of the book of further materials from pages 42 to 66.  The final statement was given by a person who had not been given a pseudonym in the courts below, but they have been given a pseudonym in this Court by order of your Honour Justice Jagot made on 3 April this year, and that pseudonym is CWA.  That is the witness described in Justice Mitchelmore’s reasons in paragraphs 62 and 63.  That person is now CWA.

So, that is the second category of other evidence, and the respondent has abandoned its objection to the tender of that evidence on the stay application.  The third category of other evidence was provided by the respondent itself and it is summarised in the reasons of Justice Mitchelmore at paragraphs 67 to 70.  It included evidence at paragraph 68 about the role of an Assistant Priest:

He was unable to locate any documents regarding Father Anderson being appointed to assist any family.

That is why I said it might be relevant that there was other evidence showing that.  Then, there is some evidence about a particular person whom evidence has been able to be obtained from.  That is the third category of other evidence – evidence from the respondent itself.

Then, the fourth category of other evidence – or at least potential evidence available at a trial – is the evidence from others, to which I drew attention earlier – persons whom the appellant says that she told about the assault.  There is no suggestion that they would be unavailable to give evidence at a trial.  There is actually an additional potential source of evidence.  Would your Honours turn back to volume 2 of the book of further materials.

STEWARD J:   When you say there is no suggestion they are not available – do you know, yes or no?  Are they alive?

MR HERZFELD:   What I know is not the same as what is in evidence before your Honours and there is no evidence to suggest that they are unavailable.

STEWARD J:   Or available.

MR HERZFELD:   No.  I will have to check that, but I think that is right.

STEWARD J:   Right, thank you.

MR HERZFELD:   Hope your Honour understands I am not evading your question ‑ ‑ ‑

STEWARD J:   No, no, I understand.

MR HERZFELD:   I am just being conscious of ‑ ‑ ‑

STEWARD J:   You are confining yourself to the material.

MR HERZFELD:   Yes.

STEWARD J:   Quite properly.

MR HERZFELD:   If your Honours turn to page 178 in this book of materials, this is a letter from the person who was the subject of the complaint in the case notes that I took your Honours to.  What your Honours will see here, in part, this is a reference to Father Anderson coming to their lives – I am sorry, let me start that again.  In the second paragraph, your Honours will see a reference to the father’s life being:

cut short . . . in an accident –

and the mother being “left to raise” children alone, and Father Anderson coming into their lives.  Your Honours will then see, relevantly, for what I was about to say, in page 179 of this statement.  In the fourth paragraph of this statement, it refers to Father Anderson leaving the church as a priest, and then marrying and having children of his own.  And, again, there is no evidence of what, if any, inquiries might be able to be made of Father Anderson’s widow or child about what he may have said to them concerning the events the subject of this matter.  So, they are another potential source of evidence at a trial.

Now, before I leave that material, your Honour Justice Gleeson, the answer to your Honour’s question about Father Anderson being assigned, the other brother to the complainant of the one that I have been just referring to gave a statement at page 324.  Down the bottom, there is a reference there to Father:

Anderson came into our home, I suppose to assist my mother –

Now, it does not quite say “assigned” in the same way as the appellant’s statement in this case does, but the nuances of that and what means are quintessentially a matter to be explored at the trial.  But that is some further evidence as to why – this material may be relevant in that way, not merely as tendency evidence.  Can I then move to dispositive reasons of the Court of Appeal.  Your Honours will see the critical reasoning begins at page 71.  Her Honour said at the end of paragraph 118 that it was:

the consequences of that passage of time which place the case in the exceptional category –

and her Honour explained that, particularly, in paragraph 120, that:

although Father Anderson is not a defendant, he is a critical witness.  Father Anderson died in 1996, before the Lismore Trust was on notice of the allegations.  It follows that the Trust did not have an opportunity to confront him with the detail of GLJ’s allegations and obtain instructions for the purposes of its defence of her claims, nor will it be able to call him as a witness if it so chose.

Then in paragraph 121, her Honour felt that the other inquiries that the Trust might be able to make of siblings or other persons:

whom GLJ says she told –

that:

would not . . . ameliorate the difficulty –

on the central issue, that is, whether the assault occurred, as the appellant said.  Then her Honour felt, at the end of 122:

there is nothing a trial judge could do . . . to relieve against –

that.  Her Honour then dealt with the potential use of the other witness’ evidence and considered that those difficulties were:

highlighted by the foreshadowed tendency evidence.

And then reached the conclusion at the end of 125 that:

By reason of Father Anderson’s death, the Lismore Trust does not have a meaningful opportunity to engage with that –

other material.  It is evident, as her Honour said, therefore, that the critical feature was Father Anderson’s death and the fact that it meant the respondent could not take instructions from him or call him as a witness, and that is consistent with the way that the respondent put its case before the Court of Appeal.

If your Honours go back to paragraph 11 of her Honour’s reasoning, there is a summary there of the way in which the case was put, in paragraphs 11 and 12, and it is consistent with the way in which her Honour disposed of the case.  Your Honours will see the same focus in Justice Brereton’s concurring reasons in paragraph 4, in the last four lines on page 40 of the book.

GLEESON J:   Those last four lines seem to assume an incident involving only GLJ and Father Anderson.  Is that fair?

MR HERZFELD:   It is, but ‑ ‑ ‑

GLEESON J:   That rather seems to be a big assumption.

MR HERZFELD:   Well, in fairness, the appellant’s own statement does say that the incident occurred when it was just the two of them, so that ‑ ‑ ‑

GLEESON J:   But the issue for a trial is whether there was the incident.

MR HERZFELD:   Indeed, and the siblings may have a different perspective, for example, so I accept what your Honour says.  But, certainly his Honour, like Justice Mitchelmore, from there and to over the page, was very much focused on the inability to seek instructions from Father Anderson and then call him as a witness.

JAGOT J:   Sorry, you gave it – I just want to check if there is a reference.  You gave the name of three priests involved in dealing with him who died ‑ ‑ ‑

MR HERZFELD:   Yes.

JAGOT J:   ‑ ‑ ‑ and said that the respondent had not made enquiries of these people.  Are there references as to dates of their deaths and things like that, in the evidence?

MR HERZFELD:   Yes.  I should say, I think I said there was no evidence of whether the respondents had made enquiries.  I do not know if they have made enquiries ‑ ‑ ‑

JAGOT J:   Yes.

MR HERZFELD:   ‑ ‑ ‑ but I am going on the basis of the evidence.

JAGOT J:   I was just wondering if there are references to that.  You gave death dates that were too quick for me to get down.  But I ‑ ‑ ‑

MR HERZFELD:   I am sorry.

JAGOT J:   No, no.  I just wondered where it was in the evidence.

MR HERZFELD:   Yes, there are two places.  First of all, in the primary judge’s reasons on page 15 of the book, at paragraph 30.  The primary judge summarised the dates of death, which were taken from the respondent’s evidence.

JAGOT J:   Deaths, yes. 

MR HERZFELD:   And then her Honour Justice Mitchelmore really interpolates the dates within each of her Honour’s descriptions of the evidence concerning each of the parishes.  For example, when it comes to the Macksville Parish, her Honour dealt with that on page 49 of the book.  And in paragraph 41, at the end of that paragraph, her Honour says:

According to Mr Isaacs, Father O’Brien died on 16 August 2002.

Her Honour, unlike – the primary judge set them all out in a single paragraph; her Honour set them out relevant to each of the parishes that were in issue.

JAGOT J:   Sorry to keep going.  I thought you said – maybe I just misheard it – that these priests all died after the complaints that you took us to in volume 2, which I thought were 2001, or are they earlier than ‑ ‑ ‑

MR HERZFELD:   The first one was 2001.

JAGOT J:   Yes.

MR HERZFELD:   Each of the priests that I mentioned were alive at the time of that complaint.  Because Father Macksville – I am sorry, Father O’Brien died in 2002.

JAGOT J:   Okay.  That is not in paragraph ‑ ‑ ‑

MR HERZFELD:   That one is not in the primary judge’s list.  That is why I drew attention in Justice Mitchelmore’s reasons in paragraph 41.  Her Honour gave a reference to Father O’Brien dying in 16 August 2002.

JAGOT J:   Yes.

GLEESON J:   The only Parish Priest in the list in paragraph 30 is Monsignor Ryan, who died in August 1987.

MR HERZFELD:   Yes.  So, I gave a reference to the Parish Priest of Macksville, Father O’Brien.  His date of death is in paragraph 41 of Justice Mitchelmore’s reasons.

JAGOT J:   Yes.  It might be handy to have a – for me, anyway, who died when sort of consolidated.

MR HERZFELD:   Yes.  We can do that.

JAGOT J:   Yes, anyway.

KIEFEL CJ:   Yes, perhaps a note to that effect.

MR HERZFELD:   We can do that.  I suspect we can even do that over lunch.  But if I am being overambitions, after lunch I will let your Honours know.  So, I was dealing with the dispositive reasons of the Court of Appeal.  May we emphasise two points from the Court of Appeal’s dispositive reasoning.  The first is that the submission made by the respondent, and accepted by the Court of Appeal, was that the proceeding should be stay because a fair trial was not possible.  The application was not, and is not in this Court, put on the basis that there is a risk of an unfair trial.  The contention was, and remains, that any trial would be unfair.

The respondent accepted below and does not challenge in this Court that it bears the onus of demonstrating that.  And the respondent accepted below, and accepts in this Court, that a stay should only be granted in an exceptional or extreme case.  As I will show your Honours when I come to Walton v Gardiner and Edwards, each of those stringent features of the respondent’s application accords with the authority of this Court.  That is the first point. 

The second point that we would emphasise from the Court of Appeal’s reasoning is that, as I have shown your Honours, the central reason for the stay was Father Anderson’s death, and the consequent inability to obtain instructions from him, or call him as a witness.  We emphasise that, because there is something of an attempt in the respondent’s written submissions to minimise the centrality of that point.

May we move, then, to whether it is necessary for us to establish House v The King error in order for this Court to interfere with the Court of Appeal’s decision to stay the proceedings.  We have addressed this in paragraphs 15 to 25 of our written submissions in chief, and paragraphs 2 to 3 of our written submissions in reply.  Our position, as your Honours will have seen, is that the matters about which we complain are House v The King errors in any event, but that is contested by the respondent in paragraph 38 of its written submissions.  So, whether we need to demonstrate House v The King error arises in the dispute between the parties.  May we address that first at the level of principle, and then come back to the authorities.

To do so, would your Honours please take up this Court’s decision in Minister for Immigration and Border Protection v SZVFW 264, CLR 541, or authorities, volume 3, tab 13, page 305.  This question in this case was whether, where there is an attack on an administrative decision as being legally unreasonable and, therefore, beyond power, an appeal court has to identify House v The King error in a decision of a primary judge on the question.  The Court unanimously held that it did not. 

May we start with the reasons of your Honour Justice Gageler, please?  From paragraph 37 and following, there is an extended discussion of the division between appeals from discretionary decisions to which House v The King applies and appeals from other decisions to which a correctness standard applies.  May we draw attention, firstly, to the first sentence of paragraph 46?  That, as evidenced by Warren v Coombes, negligence:

it is not sufficient to justify departure from the correctness standard –

simply because a decision involves something that:

can be characterised as evaluative.

In paragraph 47, there is a discussion of Coal & Allied and it is summarised that the notion that the discretion described there is a:

process in which “the decision‑maker is allowed some latitude as to the choice of the decision to be made”.

Without going to it, there is a similar discussion in the reasons of Justice Edelman at paragraphs 144 and 152.  The conclusion that your Honour Justice Gageler drew in paragraph 49 is where the line is to be drawn.  It is not based on whether a decision:

can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ.

It is whether there must be a “unique outcome”.   There is a similar discussion, and a rejection of a distinction based on a decision simply being evaluative, in the reasons of Justices Nettle and Gordon at paragraph 85 – with whom, your Honour, the Chief Justice, agreed at paragraph 18 – and, also, in the reasons of Justice Edelman, at paragraphs 147 and 150.  Your Honour Justice Gageler then applied that reasoning to the question of a decision about legal unreasonableness.  In paragraph 54, may we draw attention to the second sentence:

Being a question as to the limits of statutory authority, it is a question in respect of which our constitutional system demands of the judicial branch of government the ability to give a unique answer.

Then that is developed in paragraph 55, particularly the last sentence:

The nature of the determination to be made means that the court can have no latitude of choice –

and paragraph 56, the:

the conclusion can only be either right or wrong.

STEWARD J:   Can I ask, did any of the other justices agree with the line test in paragraph 49?  That is, the test that it has to be unique.

MR HERZFELD:   Yes.  So, the references I gave, particularly the reasons of Justices Nettle and Gordon at paragraph 85, with whom the Chief Justice agreed, and also the reasons in paragraphs 147 and 150.

STEWARD J:   Thank you.

MR HERZFELD:   There is a similar conclusion to the conclusion that your Honour Justice Gageler reached in paragraph 56 in the reasons of Justice Edelman at paragraph 154.

STEWARD J:   In a case like this where we are looking at section 67 of the Civil Procedure Act, is not the starting point what Justice Edelman said at 151:

Where the source of the power and grounds of review is statutory, then any requirement for judicial restraint should be implied from, or based upon, the terms of the statute.

MR HERZFELD:   Yes, however – and it will be tempting for me to say there is nothing in that section which suggests there should be any judicial restraint and that is the end of the story – and so I have said – however ‑ ‑ ‑

STEWARD J:   That might be your best point.

MR HERZFELD:   That would be good but in case it is not, we have others.  We have to accept that that is a very broadly‑framed section which covers a range of different circumstances.  So, we are dealing with a narrower subset of stays; stays on ground of abuse of process, and even a narrower subset from that, which is stays on the ground of an abuse of process because a fair trial would not be possible.  So, I am then focusing in on that subset, at least.  In relation to that subset, may we apply the comments of principles – which we directed your Honours’ attention to. 

Whether proceeding should be stayed because a fair trial is not possible may well be a topic on which minds can reasonably differ, and which involves an evaluative conclusion, but it is not an instance of a circumstance in which our system can tolerate a range of permissible answers.  If a primary judge concludes that a fair trial is possible, it is unthinkable that an appellate court could consider that a fair trial is impossible, and yet decline to interfere with the primary judge’s decision because there is no House v The King error.  Then the trial will be allowed to continue, even though the appellate court has concluded that a fair trial is not possible.  Or conversely, it is equally unthinkable that a plaintiff should be denied a hearing on the merits, where an appellate court concludes a fair trial is possible but cannot identify any House v The King error in the contrary conclusion of the primary judge.

Whether proceedings should be stayed because a fair trial is not possible is a question which, in our system, demands a single answer.  It does not have any resemblance to a judicial attempt to balance imponderable considerations to produce a numerical answer such as proportionate liability or general damages.  It does involve a blunt and binary question.

It remains a blunt and binary question even having regard to the ability of a judge to exercise various powers to ameliorate any prejudice, because the ultimate question remains after considering all of the tools in the judicial armoury:  should this trial be allowed to continue or not because it will be unfair?  That is a question which must admit of only one answer.

GLEESON J:   You would have to say that the majority in Batistatos applied the wrong test in finding an error of principle.

MR HERZFELD:   Can I come to the two authorities which are against us – and that is one of them – and explain why they are not against us?  The first authority is Walton v Gardiner.  I will come to Batistatos, but starting with Walton v Gardiner 177 CLR 378, authorities, volume 3, tab 17. This case actually did not concern a court staying its own proceedings at all. It concerned the power of the Supreme Court of New South Wales to stay – one might think “prohibit” or “enjoin”, but “stay” was the language used – a medical tribunal proceeding. So, that is an immediately distinguishing feature.

A second distinguishing feature is the case actually did not concern a stay on the ground that a fair trial could not occur.  It actually concerned something broader:  vexation and oppression in light of repeated earlier investigations.  Your Honours can see that particularly at page 389 in the joint reasons of three members of the court.  Your Honours will see about the middle of the page that each of the members of the Court of Appeal “either found” – that is footnote (25) – “or assumed” – footnote (26):

that it would be possible for the Tribunal, by taking appropriate steps during the proceedings, to afford the respondents a fair hearing.

If your Honours turn to page 392, in the second paragraph under the heading there is a summary of the reasoning of the Court of Appeal concerning its power to grant a stay, and Chief Justice Gleeson and President Kirby referred to the court being:

satisfied that the continuation of the proceedings would be “so unfairly and unjustifiably oppressive” as to constitute an abuse of process.  Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case.

Justice Mahoney’s language was slightly different:

whether . . . the continuation of the proceedings . . . would involve unacceptable injustice or unfairness.

The joint reasons said that each of those approaches was correct, and that is one of the authorities to which I said I would come back to as explaining why the respondent’s stringent approach to its own application is correct.  But the significant part for present purposes appears at page 398 in the conclusion, and particularly on page 399.  The joint reasons said that:

the conclusion reached by the majority of the Court of Appeal was clearly open . . . in the absence of identified error of law or fact, it is no part of the function of this Court to repeat the weighing process –

Then there is a footnote to Norbis v Norbis.  That language is avowedly that of House v The King.  But would your Honours notice, critically, what appears at the end of that paragraph:

Indeed, no submission to the contrary was advanced on behalf of the Department.

So, in addition to the distinguishing features to which I have drawn attention, the present issue, simply, was not in issue in Walton v Gardiner, that is, whether House v The King is required.  And as explained in cases like CSR v Eddy, Walton v Gardiner is therefore not authority for the applicable appellate standard.

Next, may we turn to Batistatos 226 CLR 256 – it is authorities volume 3, part C, tab 8, page 115. Now, this case did concern a stay of proceedings on the ground that a fair trial was not possible, having regard to the effects of the passage of time. And your Honours will see that, for instance, at paragraph 31 of the reasoning. In that context, there is what appears in the reasons of four members of the Court in paragraph 7. Firstly, the first sentence, that:

In Hunter, Lord Diplock disavowed the use of the word “discretion” –

that is because in Hunter, Lord Diplock had actually referred to a duty to stay proceedings which are an abuse of process.  And his Honour Justice Edelman drew attention to that in SZVFW at paragraph 145.  Their Honours in Batistatos then referred to what Justice Gordon and Gummow had said: 

“discretion” . . . indicates no more than that, although there may be some clear categories, “the circumstances –

are not closed, and:

minds may differ –

The passage which might be thought problematic for us is the quotation from the end – or the end of the quotation from Carroll, which says that:

appellate review of its exercise looks to –

House v The King error.  And it was this passage that Justice Edelman in SZVFW at paragraph 145 described as more controversial.  But, again, the point did not arise in Batistatos, and that is because of the very limited ground upon which the appellant fought the appeal.  Your Honours can see that at paragraph 59.  The plaintiff, who was the appellant, argued the case only at the level of power.  The plaintiff’s contention was, that, in the absence of a showing of misconduct, there was no power to stay his proceeding.  And the majority rejected that limitation on power, and that was the end of the appeal.

That there simply was not an occasion for the majority to consider whether an asserted error only as to the outcome was sufficient for the appellant to succeed, because the appellant did not run that case in this Court.  In addition, when one looks at the dispositive reasons of the majority from paragraph 69 and following, although they conclude with:

There was no error of principle in the decision of the Court of Appeal.

It really does seem that the majority agreed with the outcome in the Court of Appeal.  And so, that is, again, a further reason why the question of House v The King error did not arise for the majority.  So, for both of those reasons, as in Walton v Gardiner, the passage in the early part of the majority’s reason in Batistatos is not an authority which stands against us.  And may we note, also, that the reasons of Justice Callinan in dissent as to the outcome do take the same position that we would urge on this Court; and the references are paragraphs 223 to 224 and 236.

So, in our submission, neither Walton v Gardiner, nor Batistatos stand against acceptance by this Court of what we submit is the correct position as a matter of principle.  Indeed, your Honours will have seen in some of the reasoning, particularly in Walton v Gardiner, references to evaluative decisions on which minds might reasonably differ, which, as correctly explained in SZVFW, do not mark the boundary between discretionary decisions and those which are not.

We have explained in our written submissions in‑chief and reply how the position for which we contend accords with authorities in other jurisdictions.  I do not propose to develop that orally, but it does.  In light of those submissions, the question for your Honours is simply whether the Court of Appeal was right to grant a stay or not, and it is not necessary for us to characterise the errors upon which we focus as House v The King errors, although we do, as I will explain on the way through.

So, may we move, then, to the first of the errors, or the first of the topics upon which we would focus, and that is the Court of Appeal’s focus upon the lack of opportunity of the respondent to confront Father Anderson with the detail of the appellant’s allegations, obtain instructions from him and call him as a witness.  We have addressed this topic in our written submissions in‑chief at paragraphs 26 to 30, and in reply at paragraphs 4 to 6.  There are cases across many, many areas in which the plaintiff proceeds to trial even though a witness who is a central contrary witness is dead or unavailable or because there simply is not such a witness, and we have identified a large number of examples in paragraph 27 of our written submissions across a whole range of areas of the law.

May we take your Honours to three cases in this Court?  First, would your Honours turn to Plunkett v Bull 19 CLR 544, authorities volume 3, part C, tab 14, page 459. Now, this case concerned a claim against the executor of a deceased estate to recover a debt which the plaintiff said had been – money which the plaintiff said had been lent to the deceased, and plainly the executor could not call the deceased to give contrary evidence, could not seek instructions from the deceased about the plaintiff’s claim. But there was no suggestion that that meant that the plaintiff’s trial had to be stayed, and there is a useful passage in the reasons of Justice Isaacs down the bottom of page 548, over the top of page 549, that the plaintiff bore the burden of proof and:

the Court scrutinizes very carefully a claim against the estate of a deceased person . . . scrutinizes the evidence very carefully to see whether it is true or untrue.

Then there is a quote about halfway down that page from Lord Morris, to guard against – or the need for clear proof:

to guard against the danger of false claims being brought –

forward.  Now, that kind of judicial guidance, which has been picked up in other contexts that we have identified in our written submissions, may well be apt in a case such as this.  But the very existence of guidance such as this, not referred to by the Court of Appeal, is inconsistent with the fundamental proposition that the Court of Appeal’s reasons turn upon.

Even more extreme, would your Honours take up Holloway v McFeeters 94 CLR 470 in tab 10 of this volume of authorities. This case concerned a claim against the nominal defendant by a widow of man found lying dead in the road, where the driver could not be identified and there were no witnesses at all to the accident. This Court divided on whether it was reasonably open to the jury to be satisfied that there was negligence by the unidentified driver, but there was no suggestion that the nominal defendant was unable to have a fair trial because the nominal defendant was unable to ask the unidentified driver what had happen, or unable to ask any other witness what had happened. The defendant had to the best that it could with the material that it had.

GLEESON J:   Mr Herzfeld, it seems to me that there is something artificial about severing the problem of not having crucial witness, or not having 10 crucial witnesses, and not having a crucial witness in a context of a delay of 55 years between the incident and a possible trial.

MR HERZFELD:   Yes.  Can I come back to deal with that topic when I move on to the next issue, which is about these kinds of claims in particular.  And I will address that topic.  But the point we would make is a more general one, at this point in our argument, which is that it is simply not a requirement of a fair trial for a defendant to be able to take instructions or call as a witness someone who can contradict the central witness on the plaintiff’s side.

KIEFEL CJ:   Just before you go on, and to go back to your point about the House v The King issue, did the Court of Appeal identify an error in the exercise of a discretion?

MR HERZFELD:   It did.  If your Honours turn back to the Court of Appeal’s reasons, from paragraph 100 and following, there was an identification by the Court of Appeal of what it said was an error by the primary judge.  Particularly in 101, the primary judge had said this was:

not a case where everything depends upon the acceptance of the plaintiff’s account –

And the Court of Appeal said that was misapprehension of the facts.

KIEFEL CJ:   Yes, thank you.

MR HERZFELD:   And that is why the Court of Appeal did not need to resolve the question of whether it needed to identify House v The King ‑ ‑ ‑

KIEFEL CJ:   Yes, thank you.

MR HERZFELD:   ‑ ‑ ‑ error, because it did.  As I said, in Holloway v McFeeters, there was no suggestion that the defendant could not have a fair trial, and the defendant just had to do its best with the material that was available. And there is a useful passage, again, in the reasons of three members of this Court, at page 480, from about two-thirds of the way down the page:

It is clear that it is a mistake to think that because an event is unseen its cause cannot be reasonably inferred –

And from there, over the page, to about a third of the way down page 481, there is a classic passage of how a court is to deal with the kind of case there, where there were no witnesses, but equally, where there is one witness account and no contrary witness account.

STEWARD J:   Neither of these cases involved applications for stay.

MR HERZFELD:   Because it was not even contemplated that there could not be a fair trial in these cases.

STEWARD J:   Well, I think it is a basal proposition that you can have a fair trial where critical witnesses may not be able to be called for whatever reason, but it just all depends, does not it?  The question here is whether the failure to call this particular critical witness means there will be no fair trial.

MR HERZFELD:   And the point that I am making is that, at the level of principle ‑ ‑ ‑ 

STEWARD J:   I doubt Mr Walker will be disputing any of this at a level of principle.

MR HERZFELD:   Part of the reason that I am addressing it as a level of principle is because of the potential need to demonstrate House v The King error, and the point that I am leading up to is that what is in the Court of Appeal’s reasons is an error of principle.  Of course, if it is not necessary to deal with it as a level of principle in light of the House v The King issue, then the submissions can be pitched at a slightly different level.

STEWARD J:   Thank you.

MR HERZFELD:   The final case to which we would simply refer your Honours is R v Edwards 83 ALJR 717, which is in part D of the authorities, volume 4, tab 21, page 597. And this was a criminal case – it did not involve the loss of, or the unavailability of a witness; it was about the unavailability of aircraft data, but, nonetheless, may we draw attention to two matters. First of all, in paragraph [23] of the reasons, their Honours by reference to Walton v Gardiner said it had been an error by the trial judge to focus on whether the loss of the data “could constitute unacceptable justice or unfairness”, it was necessary, consistently with Walton v Gardiner, for there to be a conclusion that there would be an unfair trial.

Next, may we rely on what appears in paragraph [31], at about letter E, about the nature of trials being reconstructive exercises, and the recognition that documents and so on may be lost, and witnesses may die, and the fact that that is the case does not make the trial unfair; and so may we then apply that here.  It is the case that defendants frequently cannot obtain instructions from a person from whom they might wish, in an ideal world, to obtain instructions from in order to prepare their defence.  That might be because the witness is dead.  It might be because the witness refuses to speak to them, and when that occurs, defendants do the best they can, and they take into account, no doubt, the strength of their case and other considerations, to decide whether to contest an aspect of the case being put against them.

GLEESON J:   Like in Moubarak.

MR HERZFELD:   Yes, although that had other independent specific features, but yes.  And if defendants decide to contest the plaintiff’s account and to cross-examine the plaintiff, they do not need a contrary witness either in order to have a proper basis to do so or to persuade the Court to reject the plaintiff’s claim.  Defendants cross-examine plaintiffs in civil cases all the time, where there is no contrary witness, but there is an assessment based on the inherent probabilities or improbabilities of the plaintiff’s claim, the corroboration of the plaintiff’s account, or lack of corroboration, and so on.

It is simply not the case that, to have a proper basis either to cross‑examine or, as a matter of case theory, contest the plaintiff’s account, one has to have instructions from, and an ability to call as a witness, a contrary witness of the events.  And conversely ‑ ‑ ‑

STEWARD J:   But in this case, how could you meaningfully test the evidence in cross‑examination?  I accept, again, what you say as a matter of principle.

MR HERZFELD:   The primary judge identified a whole series of ways that it could be done.  If your Honours turn to the primary judge’s reasons, in paragraph 34, starting at page 16, these were points made by then‑counsel for the respondent as to reasons why – particularly from (b) to (f) – (b), (c), (d) and (f) – reasons why the plaintiff’s account should not be accepted.  As the primary judge said, those matters would provide basis upon which to cross‑examine the plaintiff and then to submit to the trial court that, on the balance of probabilities, her account should not be accepted.

STEWARD J:   I have read that, but it is sort of dancing about the issue, is it not?  At the end of the day, the Trust does not have an account of what happened from Mr Anderson.

MR HERZFELD:   That is so, just like in a case where someone falls over on the footpath, and there is no witnesses and no video footage, but says that they fell over because of a particular event that occurs, you may have to cross‑examination them, and you do so based on all sorts of other matters.  So, for example, in this case, the respondent no doubt will be interested to hear whether the people who the appellant says she told her story to corroborate that or not – and then will be able to cross‑examine her about any differences between her account and the account that she gave to them.

GLEESON J:   But that is an important thing and I wonder why that is not a matter that should be seen as within your power to have dealt with on the application for a permanent stay.

MR HERZFELD:   It is in a sense within both parties’ power.  There is no reason why, for example, it is only within our power to contact an ex‑boyfriend from the 1960s or early 1970s.

GLEESON J:   Again, I think that kind of makes the point.  If someone seeks to bring an action for compensation 55 years after the fact, it is less surprising that they might be expected to gather evidence about what happened half a century ago.  But why is it not oppressive to expect the defendant to go and make inquiries about what happened so long ago?

MR HERZFELD:   At a trial.  But there is no suggestion that the defendant would at the trial be required to do those things.  The question we are dealing with at the moment is, has the defendant demonstrated that this is an exceptional or extreme case on which they bear the onus that a fair trial would not be possible ‑ ‑ ‑

GLEESON J:   But if it was oppressive – if it would be oppressive to require a defendant to do that a trial, surely it would be oppressive to require them to do that in order to make out a case for a permanent stay.

MR HERZFELD:   But why?  They are the ones who need to demonstrate that the trial would be oppressive, and so ‑ ‑ ‑

GLEESON J:   If it is an abuse of process, then they should not be vexed with it, they should not be exposed to an obligation to do something unreasonable to prove that they are affected by an abuse of process.

MR HERZFELD:   But if they want to prove that the trial would be oppressive, they need to exclude, for example ‑ ‑ ‑

GLEESON J:   They need to be oppressed.

MR HERZFELD:   Well, they need to demonstrate that, potentially – sorry, let me start that again.  They would need to demonstrate that this is simply a case where they cannot contest the plaintiff’s account.

STEWARD J:   But you say all of this in the context where you are willing to lead evidence yourself:  the four unsworn statements, all the material you have taken us to.

MR HERZFELD:   That is so, but simply ‑ ‑ ‑

STEWARD J:   So, you left this out.  Is that what happened?

MR HERZFELD:   Well, obviously, I ‑ ‑ ‑

STEWARD J:   I mean, you – it is in your client’s statement that she told her boyfriend at the time and told her first husband, so you have put it in.

MR HERZFELD:   But it cannot be necessary in an application for a stay for the plaintiff to have identified and called all the witnesses they are going to call for trial.  That is one of the vices in this procedure and which, as I will show your Honours in a moment, is utterly contrary to what the purpose of removal of the limitation periods was.

STEWARD J:   I understand that.  The problem is you dipped your toe into it, is probably what I am saying.

MR HERZFELD:   Well, it is not so much that the toe was dipped in.  It is that it was demonstrated that there was a substantial amount of evidence which is available which should then go to trial.  And it is really not the case where the respondent is simply unable to decide what to do, and the responses in the professional complaints file demonstrate that.

They demonstrate that even without being able to talk to Father Anderson, the respondent was able to form a view that certain accounts were credible, and therefore that they should be accepted.  Here, the same.  The respondent can form a view based on the nature of the account and so on, and any other evidence that might be called at trial, whether to attack the plaintiff’s account or whether not to attack the plaintiff’s account.  But that is quintessentially a matter for trial.

Your Honour, I can see the time.

KIEFEL CJ:   I see the time.  The Court will adjourn for 15 minutes.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

KIEFEL CJ:   Yes, Mr Herzfeld.

MR HERZFELD:   Just taking stock, then.  If it is necessary to cast this first point as a House v The King error, it was an error of principle to say that a fair trial required the respondent to be able to ask Father Anderson for his response to the allegations, or to call him to give evidence.

If necessary, we would say that is an irrelevant consideration, because it distracted from the actual inquiry, which was whether the evidentiary record was so impoverished that there was simply no way in which the appellants account could be tested.  And that is a different question, and it was able to be tested, or at least one could not conclude that it would be unable to be tested, having regard to the other matters to which we have pointed.  That is the first point.

Can we move on to the second issue?  That is that these general considerations are given added force in the particular context of claims of historic child sexual abuse.  We have addressed this topic in our written submissions at paragraphs 31 to 37 and in reply at paragraph 7.  Orally, may we first identify some features of the legislative reforms and the reasons for them, and then we will address your Honours on how, we say, that informs the approach to the stay application. 

A central feature of the recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse – which was then taken up by legislatures across Australia – was the abolition of limitations periods for child sexual abuse claims.  Would your Honours please take up the second reading speech to the Limitation Amendment (Child Abuse) Bill 2016, which is in volume 5 of the authorities, tab 24, page 729.

Your Honours will see from the end of the first paragraph that the Bill was responsive to the Royal Commission recommendation.  The next paragraph accurately summarises the key recommendations of the relevant report – which was, in particular, the removal of the limitation period.  Your Honours can see in the next paragraph the key reason for that recommendation, that the limitation periods were:

a significant, sometimes insurmountable, barrier . . . widely understood that, due to the injuries inflicted . . . survivors . . . take decades to understand –

and the average time for disclosure was around 22 years.  If your Honours then pass over to page 731 of the authorities, which is the third page of the second reading speech, in the first full paragraph on the page, the Attorney‑General started to address:

the key provisions of the bill.

At the end of that paragraph the Attorney referred to the removal of the “ultimate bar”, which was then 30 years.  Just for your Honours’ reference, that was the former section 51 of the Limitation Act.

Passing over to the next page, which is page 732 of the authorities, in the second full paragraph, the Attorney‑General explained that the removal of the limitation period was retrospective, and so it was clearly directed to historic child sexual abuse claims.  Without going to it, again just for your Honours’ reference, the retrospective effect is by force of Schedule 5, item 9 of the Limitation Act.  The next paragraph makes reference to preserving:

the existing powers of a court to safeguard the right to a fair trial.

Relevantly:

where . . . a fair trial is not possible –

Would your Honours notice the example given:

for example, where the passage of time has led to a loss of evidence capable of establishing a case to be tried.

The example that the Attorney-General had in mind is the extreme case where there is simply no evidence to support the plaintiff’s case, and we will come back to what an example of that might be.  Then your Honours will notice that in the final paragraph in the final few sentences, the Attorney-General’s accurate and sensitive description of the significance of this reform.

May we take your Honours, then, to the relevant Royal Commission report itself, which is in this volume of authorities at tab 26, starting at page 747.  It was the Redress and Civil Litigation Report, and chapter 14 is the relevant part.  If your Honours turn, in the authorities, to page 755, your Honours will see just above the heading section 14.2 a reference to the risk of lengthy litigation created by the then provisions:

They create the risk of lengthy litigation . . . about whether or not the claim can be brought.  This involves substantial legal costs without any consideration of the merits of the case.  Many survivors and survivor advocacy and support groups have told us this risk is enough to prevent many survivors from commencing civil litigation.

And would your Honours notice that the present litigation is now into its fourth year, simply about whether or not the claim can be brought.  It has involved, to pick up the language there:

substantial legal costs without any consideration of the merits of the case.

And the reality is that applications such as the present one have become frequent in cases of historic child sexual abuse, and we have identified examples in our written submissions at footnote 7.  Staying with the Royal Commission report, if your Honours turn within the authorities to page 764, that is section 14.4 of the report.  Within section 14.4, over the page on authority 765, on the left-hand side in the bottom paragraph, that is the source of the 22‑year figure which was quoted by the Attorney-General.  Over to the right‑hand column, there is the correct observation that:

When survivors are able to disclose their abuse, their first needs may be counselling and psychological care . . . It cannot be assumed, or expected, that considering whether to commence civil litigation will be their first priority.

Now, the recommendations made by the Royal Commission start on page 777 at section 14.7 and regrettably those pages were omitted from the authorities book, but we have supplied them separately, so this is an addendum to the authorities.  If your Honours turn within those missing pages, on the separately supplied pages, so I will use the page numbers actually within the report of the Commission itself, so this is page 457 of the report.  Down the bottom on the left‑hand side it was stated that:

the objective should be to allow claims for damages that arise from allegations of institutional child sexual abuse to be determined on their merits.

We would observe that extended interlocutory disputes about whether a fair trial is possible and the too‑ready success of such applications, as in this case, is entirely contrary to that aim.  In the right‑hand column in the middle paragraph the Commission considered the possibility of simply extending existing limitation periods, but that was rejected because it would still be a risk of discouraging claimants from commencing proceedings.  Now, we must acknowledge that on the final page of the report on the left‑hand side in the second‑last paragraph there was discussion of the power to stay proceedings and the Commission emphasised that the change:

should. . .  not affect the courts’ existing powers.

But the position for which we contend does not controvert this, and let me explain why.  We do not rely on the legislative changes and the reasons for them to move for any change in applicable principle.  The question is and remains, whether the continuation of the proceedings is so unfair or would involve such unacceptable unfairness to warrant the stay, but the application of that principle is necessarily context‑specific and what is unacceptable in one context may not be unacceptable in another.

The legislative reforms to which we have pointed and the circumstances which prompted them are highly relevant in calibrating the application of this power.  The passage of time will inevitably impoverish the evidentiary record, often including the death of the alleged perpetrator.  The acts of abuse, of their nature, will often have taken place in private with no other witnesses.  They are not unusual features of cases such as this.  They are typical.

That being so, in this particular context, the death of the alleged perpetrator of the child sexual abuse, even where there are no other witnesses to the abuse, cannot be regarded as a sufficiently serious degree of unfairness to warrant a permanent stay.  If it were otherwise, then stays of proceedings of this kind will not be “exceptional” or “extreme” cases, as the authority of this Court requires; they will be frequent.

GLEESON J:   But you surely accept that the amount of time that has passed between the incident and a trial that might occur in this case is “extreme” or “extraordinary” or “exceptional”, to use words that have been used to describe that delay in the cases.

MR HERZFELD:   I do not accept that in this context.

GLEESON J:   How much more can there be, when you think about life expectancy?

MR HERZFELD:   Your Honour, the number of cases brought, as your Honours have seen from the statements that have been provided by other witnesses, four of whom are plaintiffs themselves, and the professional conduct complaints – some of which were earlier, but some of which were more recent – show that your Honour’s characterisation is not one which can validly be applied to cases of this kind.

GLEESON J:   Do you not accept that cases such as Batistatos and Bauer, and, I think, Moubarak, have described delays – I want to use the word “delay” – but I prefer to say the “effluxion of time” – less than 55 years as “exceptional”, “extraordinary”, or “extreme”?

MR HERZFELD:   They may have described it that way, and I am not accepting that description, for the reasons that I have given.  If one takes an over-ready approach to stays in this context, one will be subjecting alleged victims of child sexual abuse to precisely the same kinds of prolonged procedural machinations which were criticised in the materials to which I have taken your Honours.  And may we then try to encapsulate the point in this way ‑ ‑ ‑ 

STEWARD J:   But how does that help us understand whether a fair trial is possible on the particular facts of this case?

MR HERZFELD:   So, let me try to encapsulate it in this way.

STEWARD J:   Whether it means that there will be more trials or less trials will just depend.  We cannot develop a principle that there should be more trials because of the Royal Commission.

MR HERZFELD:   As I said, our point is this:  it is an aphorism that a fair trial is not synonymous with a perfect trial.

STEWARD J:   Correct.

MR HERZFELD:   But in this particular field, applications for stays must be approached with a greater tolerance for imperfection, lest what should be an “exceptional” course becomes a routine one.

STEWARD J:   So, that is a change of principle.  So, when you commenced this, you said you do not seek a change of principle, but you really do.

MR HERZFELD:   With respect, we do not, because the question of principle is whether the proceedings are so unfair or would involve such unacceptable unfairness to warrant a stay.  So, that is always something which is, to use a word – which may once have been frightening, but is not, in light of SZVFW – it is “evaluative”.

KIEFEL CJ:   Are you saying that the Royal Commission report furnishes an explanation for the delay which is absent in other cases of different kinds?

MR HERZFELD:   Yes.  And further, the removal of the limitation period means that features present in this case are not exceptional – they are likely to be typical.

KIEFEL CJ:   And the time at which the lengthy period starts necessarily starts from the time when someone is very young, not when they have an accident at 25.

MR HERZFELD:   Plainly so.  So, that is why we say that one must calibrate the application of the accepted principle to these particular cases in the way that I have said.  Nothing we have said is then contradicted by the preservation of the power to stay.  Your Honours will have seen that section 6A(6) of the Limitation Act expressly refers to this.  We have quoted it in our written submissions, which is a convenient place to find it.

GLEESON J:   Mr Herzfeld, just thinking about that interaction, the explanation or the fact that there is an explanation for the delay is really not to the point, is it?  The point is about the effect of the delay.  It would be interesting to contemplate how many people in this courtroom could give an account of what happened in 1968.  Many of us would not have been born in 1968.  So, the point is not that it takes a long time for people who suffer sexual abuse to acknowledge it or speak about it, the point is about what is the effect of trying to conduct a trial about what happened in 1968.

MR HERZFELD:   But the inevitability of the long delay – and I am using delay in the same way as your Honour – the inevitability of the long passage of time, and the inevitability of the impoverishment of the evidentiary record which goes with that means that one has to approach these applications with a greater tolerance for that.  Otherwise, the very purpose of allowing these claims to be made will be frustrated.

GLEESON J:   Again, there is a degree.  The typical limitation period now for negligence is three years, I think, in New South Wales.  By removing the limitation period, you might find that you could bring a claim that was 30 years old, or 40 years old, and you might find that because there happened to be a lot of witnesses who were available.  But when you get to 55 and there are practically no witnesses available, the landscape changes.  I do wonder if your concept of greater tolerance for imperfection is exactly what the Royal Commission was suggesting should not be the case.

MR HERZFELD:  The example given by the Attorney‑General, as I said, was a very extreme one.  The example given by the Attorney‑General was where there is no case to take to trial.  And so, without seeking to be prescriptive, you can readily imagine a case where both the alleged victim and the alleged perpetrator are dead, and the estate ‑ ‑ ‑

GLEESON J:   The Attorney‑General would give that example in explaining this – would he or she not?

MR HERZFELD:   She, at the time.

GLEESON J:   Because really what has happened is it has been left to the courts to protect the integrity of their processes.

MR HERZFELD:   Recognising the context in which this is occurring and the reason for the change of the limitation period – the removal of the limitation period – and so, to pick up on that example, one can see a case where both alleged victim and alleged perpetrator are dead, and the case is being brought by the alleged victim’s estate based on diary entry that the alleged victim made.

There is no cross‑examination possible at all of that victim.  That is quite a different case from this one.  So, the position for which contend does not involve any make rendering of the power of the Court to stay proceedings in cases like this – a dead letter – but it does require, with respect, the courts and, in particular, this Court, to approach the application of the power with a recognition of the context provided by the legislative reforms and the reasons for them.

STEWARD J:   I thought that what we got from the removal of the limitation was that one could not criticise the plaintiff for being late in bringing a claim.  That is what, I think, President Bell said in Moubarak.  But are there any authorities that say we should also have this greater tolerance that you ‑ ‑ ‑

MR HERZFELD:   It really is encapsulated, we think, by what the primary judge was seeking to say here.  If your Honours take up the primary judge’s reasons, at page 21, at paragraph 46 ‑ ‑ ‑

STEWARD J:   He is saying subject to those principles, though.

MR HERZFELD:   Of course – and we accept that.

STEWARD J:   So, if it subject to the basic principle, how does it assist or not assist?

MR HERZFELD:   Your Honour, those basic principles themselves use language like, “so unfair that”, “unacceptable unfairness”.  Those words, themselves, involve evaluation.

STEWARD J:   But the unfairness is not about the result, it is about the process of the trial.

MR HERZFELD:   Of course.  But, in this particular context one cannot approach these cases as if one is dealing with a fall which happened within a three‑year limitation period.  For the reasons we have been through, there will inevitably be an impoverishment of the evidentiary record.  If one approaches these cases with the same lens as a trip on the street three years ago, one will inevitably find that stays in these cases are no longer exceptional or extreme – they are frequent and routine – and that is what one is seeing in the cases that we have drawn attention to in the footnote that I referred to in our submissions.

STEWARD J:   Do you take issue with any of the principles that Justice Mitchelmore summarised from Moubarak at paragraph 95?

MR HERZFELD:   We do not take issue with the principles, but as I have said to your Honour, the issue that we take is with the application of those principles in this context of cases, and what her Honour did not do was pay a regard to the context to which we have referred.  And so, to continue that thought, if it is necessary to identify House v The King error in the Court of Appeal’s reasons, the Court failed to have regard to a relevant consideration, namely, the context of these particular cases and the legislative reforms and the reasons for them to which we have drawn attention.

GLEESON J:   I just want to check that I understood what you said then.  Those cases that are in footnote 7 of your reasons, like Connellan, Anderson and Moubarak, are you saying that, in those cases, the intermediate appellate courts did not show sufficient tolerance for imperfection?

MR HERZFELD:   Obviously, your Honours are not sitting on appeal from those particular cases, and so it may be that the results in those particular cases for various features were correct.  But as a general proposition, the authorities in this field have not approached the matter in the way in which, on the second branch of our argument, we say that it needs to be approached.  Your Honours will appreciate that this is a different proposition to the first one that we put, which was a more general proposition.

So, just to finish that second point, I think I was taken slightly off track, your Honours will have picked up that section 6A(6) of the Limitation Act specifically preserves the power of the Court to grant a stay, and there is a note that refers to a case where the burdensome effect on the defendant is so serious that a fair trial is not possible.  We do not contest the existence of that power at all; we do not contest anything to do with the appliable principles.  But in deciding whether the effect is so serious and so burdensome on a defendant to warrant a permanent stay, one must have regard to the context that we have mentioned, and that was not done by the Court of Appeal here.

May we move, then, to the final broad topic for oral submissions, and that is that the Court of Appeal made factual errors, and we have addressed this in paragraphs 38 to 44 of our written submissions in‑chief.  Now, as we have explained, at the heart of the Court of Appeal’s reasons was that the proposition that the respondent had no way of knowing how Father Anderson would have responded to the appellant’s account – and we have already explained why that was an irrelevant matter.

But even assuming that it was necessary for the respondent to have some basis to infer what Father Anderson’s response might have been, Father Anderson’s answers on oath during his laicisation provided such a basis.  Your Honours saw that, in the context of a refusal to answer falsely on oath, questions concerning his sexual interactions with males, Father Anderson refused to answer those questions.

GLEESON J:   The question of his instructions is not a did you do it, or did you not, was it?

MR HERZFELD:   Well, the statement made by the Court of Appeal at paragraph 120, if your Honours take it up, the end of paragraph 120: 

Father Anderson died before any inquiries could be made; and there is no material that sheds light on his putative response.

And that proposition, that factual proposition, in our submission, was wrong in light of his answers on oath in which he denied any romantic involvement with a girl.  And so that statement, if necessary, to establish House v The King error, that statement ‑ ‑ ‑

GLEESON J:   Well, that would be true – on what we know, we have no reason to think that Father Anderson had any romantic involvement with GLJ.

MR HERZFELD:   Well, if one is saying, do I have a basis to assert that it did not happen, that seems to have been part of the thrust of the Court of Appeal’s question, that would provide a basis to infer what his putative response would have been.  I am reconstructing this in a way that is, in my submission, entirely unnecessary and irrelevant, because one does not need to have an insight into what Father Anderson would have said.  The defendant here should take its own decisions about whether to challenge GLJ’s account or not.  But to the extent the Court of Appeal thought it was necessary to have some basis to infer what his putative response would have been, that answer on oath provides a basis.

Her Honour was also factually wrong to say that the other statements prepared by the appellant highlighted the difficulty – or, to put it differently, this was an irrelevant consideration.  There are three reasons for this.  First of all, if the use of the other statements as tendency evidence creates some irremediable prejudice to the respondent, that does not mean that the appellant’s trial must be stayed, it simply means that that evidence must be excluded.  So, the existence of those tendency statements simply does not strengthen the case for a stay at all.

In any event, that question of weighing the probative value versus the prejudicial effect of those tendency – or that tendency evidence was quintessentially a matter to be done by the trial judge.  One cannot determine now whether the correct course is simply to exclude their evidence or to give it limited weight, but one can conclude now that the correct remedy in relation to that tendency evidence was not a stay of the appellant’s proceedings as a whole.

The second point, as I said, is there is simply no evidence from the respondent at all as to what inquiries the respondent has made to corroborate or contradict the other statements that the appellant has put forward in the stay.  The respondent cannot, at this stage, say it is simply unable to meet the case in relation to the other statements upon which the appellant has foreshadowed reliance.  The third point is that just as ‑ ‑ ‑

STEWARD J:   Can I ask, was Mr Isaacs questioned about that?

MR HERZFELD:   I do not think Mr Isaacs was cross-examined about anything.

STEWARD J:   But he could have given evidence if there had been inquiries.

MR HERZFELD:   He could have given evidence about what difficulties beset the respondent in relation to not only the appellant but each of the

other statement‑givers.  Yes, there was no cross‑examination at all, but that is really to presuppose – I am sorry, I have answered your Honour’s question.

STEWARD J:   You have.  Thank you.

MR HERZFELD:   The third reason that this tendency evidence just does not add to the case at the stay stage is that for all of the reasons we have given in relation to the appellant it is simply not necessary, in order for there to be a fair trial, that the respondent has an opportunity to confront Father Anderson with each of those other accounts, and ask him:  what do you say about each of those other accounts?  That is a distraction from the enquiry, which is:  is this a case in which the respondent will be able to have a real trial?  And, for all the same reasons we have given in relation to the appellant, they would apply in relation to the tendency statements, as well.

Your Honours, those are the three additional topics that we said that we would address orally, so unless your Honours have any questions, that completes our oral submissions.

KIEFEL CJ:   Thank you, Mr Herzfeld.  Yes, Mr Walker.

MR WALKER:   Please the Court.  I will come, when I come to the question of House v The King, to link it, as propositions 11 and 12 in our outline do, to the question of the supposed policy or intent of the amendments by which all limitation periods are rendered inapplicable to cases of this kind.  In our submission, they are important matters of a foundation for the analysis that I will then pick up in the order of our propositions concerning the application, and what we submit is an orthodox fashion in what are, unquestionably, fraught and poignant cases, extreme, in many senses of that word, such as the Court of Appeal accomplished in this case.

At the outset, I really need to pick up something my learned friend said towards the end of his address concerning Justice Mitchelmore’s reasons.  Namely, agreed in, as they are, by the other members of the Court, they display an error, if necessary, on a House v The King basis.  Disregarding – that is, not taking into account a mandatory relevant consideration – the context supplied by the Royal Commission recommendations being effectuated by the legislative amendments, consisting of the spectacle of this kind of case either being statute barred or subject to a problematic extension application, rather than simply, as the legislation has, been permitted to be commenced regardless of the lapse of time.

In our submission, the whole of the reasons of Justices Mitchelmore and Brereton are imbued with an awareness of the special nature of the task for the Court applying its section 67 power, which is utterly general for all its jurisdiction, in the highly particular context, created by the removal of limitation periods for this category of cases.  But, for example, in paragraph 116 in the core appeal book, pages 70 to 71 – I do not need to dwell on it – one finds as complete an awareness as one could sensibly expect of judges faced with the adversarial argument about the application of the general power in section 67 to the highly particular circumstance presented by every one of these individual cases belonging to this special class for which limitation periods have been abolished.

The fair trial of which the orthodox principles speak is – it goes without saying, though I will need to repeat it by way of a ritual concession – of course it does not mean a perfect trial.  It may be that there are few people who have practised or are still in practice who will recall ever being in a perfect trial.  But, in our submission, when it comes to the definitional nature of an adversarial system of civil justice, the notion that there will be – according to the law, as it may be affected from time to time by legislation – an onus to discharge in order, usually, to obtain relief and opportunities to answer a case.

Thus, for example, all the aspects of procedural fairness from proper case management through to permitting proper questioning, say, of a plaintiff’s witness, all of those matters demonstrate that the fair trial in question is one that contemplates an appropriate capacity to contradict; that audi alteram partem involves contradiction.  It is only contradiction that produces a contested trial.  If a defendant accepts the justice of a plaintiff’s claim, perhaps only as to liability, then there will not be a contest of a kind for which it might be salutary to consider a stay of the kind sought and eventually granted in this case. 

So, in our submission, bearing in mind that one is talking about those cases where a defendant is not minded to concede either completely or at least as to liability, then, in our submission, it needs to be appreciated that of course without any unrealistic striving for perfection, there has to be a modicum of availability of material.

In many cases, including of childcare and associated services, be they correctional, medical – that is, quasi‑hospital – or educational, there will be many records which, in some happy cases, will go back decades and decades; perhaps, even half a century.  This case demonstrates that with respect to elements other than the foundational event, which is the alleged assault, the Court of Appeal was not satisfied that, bearing in mind what was available – including, particularly, diocesan records – that there would be the kind of injustice – that is, the prospect of unjust trial, unfair trial – threatened as to have justified on those grounds a stay.

By removing any aspect of the notice of contention, we have to be taken in every respect to accept that and its consequences – the implications for our argument.  But those implications are, we say, limited to this:  that the Court of Appeal showed itself sensitive, contextually, to the nature of the claim and the prospect of the trial which the stay jurisprudence requires the court hearing the application for a stay, to predict and then to assess.  True, by what my friend appropriately calls an “evaluate” assessment – but I am not going to be making much of that at this point – to assess whether or not, given what is known in advance, the trial would be – I accept the onus we assumed below – that is, would, on the balance of probabilities, be so unfair as to require in the interests of justice the imposition of a permanent stay.

While in the area of making appropriate concessions, your Honours know that it is completely common ground – not least by the lack of doctrinal criticism but for one comment by my friend recently about Justice Bell’s exposition in Moubarak – you know that we accept that we need to address in the context of (a), this case but, perhaps, more pointedly, (b), this kind of case covered by the statutory elimination of limitations – the meaning and content and consequential application of the epithets, extreme or exceptional.  I will come back to that, if I may, when addressing propositions in 11 and 12 at the end.

GAGELER J:   Mr Walker, I know it is the central issue, but it is just one issue with which we are concerned and that is:  was there a sexual assault, or was there not?

MR WALKER:   Yes, yes.

GAGELER J:   The forensic disadvantage to your client in dealing with that issue comes down to the non‑availability of Father Anderson’s account.

MR WALKER:   It is impossible to say otherwise, your Honour.

GAGELER J:   That is the long and the short of it, is it not?

MR WALKER:   Well, I am going to say there is more to it because there is – that has to sit in a context, and I will explain by giving counterfactuals where a stay would be defeated, notwithstanding it all comes down to that.  But I do not want to evade the proposition that without the death, which happens to be the reason by which he is unavailable, of Father Anderson – but then I have to add – and in the context of the chronology, which is utterly important.  Without that, there would be no case for a stay, at least none that I can see from any of the papers; we accept that.

But that does not mean that the Court of Appeal has committed, without ever articulating that this was their approach, the egregious error of saying all we need observe is the death of the alleged perpetrator to say this trial threatens with such cogency to be unfair that there must be a stay.

GLEESON J:   Mr Walker, just to understand what you mean when you speak about context, as I understand it, in the ordinary course, that would be questions about the timing of the father’s accident, the timing of him not being at work, the nature and extent of the interactions between the priest and the family, the nature of the relationship between the plaintiff and the father, were the presents given, the timing of when the father was in the Lismore Parish at all.

MR WALKER:   Yes.

GLEESON J:   Am I right to understand that it goes that broadly, or is there something narrower that is sufficient in terms of just the question of was there a sexual assault or not?

MR WALKER:   That context is context and we cannot, and do not, suggest that there is a sliver of the context that only is relevant here; all context is relevant.  That is why I started off by saying some of the context is – leads to the consideration expressly reached by a conclusion of the Court of Appeal that insofar as, for example, certain diocesan organisation is concerned, insofar I am bound, I think, to accept as prior knowledge of criminal sexual dealings by Father Anderson is concerned, those are not matters, even with the extraordinary lapse of time, would be such as to produce a prospect of an unfair trial on the balance of probabilities requiring a stay.  So that is part – I cannot, as it were, by my concession – by dropping a notice of contention, distract the Court from taking that into account.  You should; you must.

GLEESON J:   Because – from much of that context that I have just described does not require – or would not necessarily require instructions from Father Anderson ‑ ‑ ‑

MR WALKER:   Quite so.

GLEESON J:   But of course, in the ordinary course, when you had a competent witness who was alive, that would be your first port of call.

MR WALKER:   Yes.  Quite.  That is undoubtedly what has led to the Court of Appeal’s clear distinction between matters to which no doubt it would be the best and the most useful evidence, but is by no means alone in being able to provide any evidentiary or instructive information.  Therefore, those were not aspects of the case which would have produced a stay.  But those aspects of the case are marooned unless there is the foundational act of the sexual assault.

It is in that sense that the criticism that is levelled by our friends against the Court of Appeal and on which we join issue completely that that apparently shows – that kind of analysis is said to show that the Court of Appeal has misdirected themselves – and if necessary, even in the House v The King sense – by treating this as a case that can be dealt with simply by observing that Father Anderson was the alleged perpetrator, and he is dead, and that is enough.

That would be a travesty of the way in which the Court of Appeal proceeded, and in our submission that is a phantom case for us to answer.  There is no trace of the Court of Appeal proceeding in that fashion.  Of course, as Justice Gageler put to me, it is the essential – the cardinal – I am sorry – the very important point of our argument.  In that sense, it is easily summarised as a case about a dead perpetrator.

But we do not say that this Court should even entertain for a moment the notion that there is some overarching principle to be attached by judicial gloss to the importation in section 6A(6) of all the jurisprudence that section 67 currently conjures up by which a dead perpetrator is a bar to a trial.  That has never been the law.  It could not possibly be the law, bearing in mind that which, alas, used to happen sufficiently often to be, I am afraid, standard, namely, the dead putatively‑negligent driver in a motor vehicle accident.

It is just an impossible proposition to entertain that that person’s death – particularly in days before CCTV or dashcam – meant an end of the injured passenger’s claim.  It did not then, it does not now, and there is no such error to be seen in or between the lines of anything that Justice Mitchelmore has written.  So, those are criticisms, in our submission, that should be dismissed insofar as they can be seen – as we suspect they should be – as underlying a deal of the force of our learned friend’s argument.

We then, in proposition 3, advance matters which, I hope, remarkably, indeed, to the point of being clichéd, and this is an area where this Court, as illustrated by the selection and citation of authority by Justice Bell in Moubarak shows, has, in the different context of criminal and civil proceedings, identified in those different contexts and for those different purposes, notions of what is entailed so far as a party’s participation is concerned in the basal concept of a fair trial; by the basal concept, I mean the irreducible minimum.

Now, it has to be said immediately that the participation of a so‑called party being an accused person in a trial – a criminal trial – is sufficiently different with respect to societal expectations of the fair administration of justice from a civil trial, as to counsel some caution in, simply, transferring from one set of authorities to the other form – so, from criminal, say, to the civil area – what is said about the requirements concerning party participation in the fair trial.  However, in our submission, common to both, and subject to such civil possibilities as tutors or next friends, common to both is the notion of instructions.

So, in crime, you will not be fit to plead if your mental state is such that you cannot understand the case or give instructions.  In civil, such a state of affairs will not mean that you cannot be sued, but, far from demonstrating that the importance of instructions has been overstated in arguments such as ours, the reverse follows because what the system has done is to substitute somebody who can supply that which would be missing – and, in our submission, fatally missing – otherwise from that civil litigation, namely, a contradictor in a position to understand the case and give instructions; thus, the tutor, for example, in Moubarak.  So that, both in criminal and civil, the need to be able to participate in this grave social exercise of a trial – criminal or civil – not surprisingly, given autonomy, requires instructions.

Now, when it comes to cases of vicarious liability in particular, that has a particular application; the liability of a defendant for the wrong of another where it does not always follow that the conduct, activities and opinions, or recollections of that other will be automatically or ordinarily available to the defendant, particularly if there is a contest about whether the connection between them at the time was such as to produce vicarious liability at all.

GAGELER J:   But that is an aspect of the case where it has been found that you can have a fair trial.

MR WALKER:   No, not vicarious liability, full stop – I think I am agreeing with your Honour, but I do want to make it clear – yes, all those matters in this case we accept.  But that says nothing about the occurrence of the foundational act, that is, the wrong for which we would be vicariously liable.  And I perhaps should have said I am not talking about this case when I was giving that last example.

In many cases a defendant said to be vicariously liable will not in fact have what is sufficiently available in this case.  That is not an issue for us, not in issue, not a matter in our favour.  But my point is that in such a case – not this case – in such a case, that defendant is able, surely, to say of the connection between them and the alleged wrongdoer and, for that matter, the alleged wrongdoing, I need to be in a position to be able to know what I can say in my defence.

Now, it might be that in most cases a defendant in such a position who says, I know nothing about the alleged assault and my records do not show up the presence of this person in my workforce at the relevant time, et cetera, et cetera, in which case, no doubt, the court, faced with an ambitious application for a stay by such a defendant would say, you seem to have a pretty good case if you are prepared to go into evidence to show that the business records reveal no such employment, et cetera, et cetera.

But one can easily imagine, particularly in a large workforce, simply not having any knowledge about something alleged to have caused the plaintiff loss, defendant held to be variously liable at a remove of time – and let us assume just within limitation period – after which that alleged perpetrator has become unavailable, just does not need to be death; it could be by emigration or whatever.

Now, in our submission, that is the very kind of case in which, of course, the incapacity to know anything about the act which has to be proven in order to make out vicarious liability can and should be the subject of consideration first by the defendant and then by the court, if application is brought, as to whether the state of affairs concerning available material is such as to disable the defendant from what I am going to call a desirable – not perfect – a desirable modicum of facility to answer the case such as to make the prospective trial not fair.  In our submission, that will produce a case by case, nuanced understanding, contextually, of what that trial would look like. 

My learned friend is, with respect, correct to suggest that one of the methods, judicially is to ask, well, what happens when the plaintiff gives the account of the assault?  What can the defendant in such a case do?  That, in effect, is what the Court of Appeal did here in such a way as to reach, similarly, as her Honour thought in the different fact situation of Moubarak the pessimistic conclusion that there could not be a realistic trial in the sense of knowing how to respond to the allegation and knowing how to test the evidence advanced in support of the allegation, meaning, we think, that one would be left with what my learned friend was referring to this morning as the capacity still to challenge or test, to which I want to turn now to, in a little bit more detail.

What in Moubarak and this case seems clear is that in contemplation is a defendant who lacks instructions from or evidence about the activities of the perpetrator because he, in this case, is dead, cannot properly, by surmise or speculation, make positive suggestions about what happened instead to the perpetrator who has given her account.  And that follows from the participation of an ethical bar in the administration of justice, one of the duties concerning the use of privilege.

The reasonable basis that would be lacking for a cross-examiner, hypothetically, is, of course, cognate with the availability of material with which these stay applications are concerned, by which you can, as it were, obtain instructions so as to have an informed, rather than simply default, position of answer to the allegations.

Your Honours are familiar with the way, with local and temporal variance, pleading rules and principles address this.  The distinct difference observed, in some times and places, between a denial and a non-admission, and the discipline, sometimes, that a non-admission is required to have, so that it is simply not a putting the plaintiff to proof for no good reason.  The classic, modern at least, ground for non-admission, as opposed to denial is you do not know enough to be able to deny.

A party that is in the position who has to not admit – unless, of course, they are inclined, simply, to admit – who was in a position that all they can do is not admit, not deny, may therefore be in a position, forensically significant, but not fatal, of saying I do not know enough.  That, we accept, is nowhere near a case which should, therefore, be stayed under section 67.  I need to make that clear.  The fact that you do not know enough to be able to deny, as opposed to not admit, it would be outrageous if that were a ground for no trial.

GAGELER J:   You will come to this – you are coming to it – but the distinction between this case, in principle, and the case of the nominal defendant standing in the shoes of the dead driver, for the moment eludes me.

MR WALKER:   Your Honour is asking me about the distinction?

GAGELER J:   Yes.

MR WALKER:   Yes.  The nominal defendant is sui generis.  Similar devices can be seen in other circumstances.  They may be the exception that proves the rule – that is, they are a personage appointed because there is no person and because Parliament thinks that these are not cases that should, by that – I will call it “arbitrary” – imposition of circumstance, deprive somebody of what might otherwise be a justified claim to compensation.  But particularly, when it is against an insurance bill.

MR GLEESON:   And within a limitation period.

MR WALKER:   I am so sorry, your Honour?

GLEESON J:   Within a limitation period.

MR WALKER:   Absolutely, and with notice provisions, and the like.  It is a commonplace of advising and appearing for the nominal defendant, that the very features of the case which makes the nominal defendant the defendant removes access to instructions of a kind which I have been arguing are rudimentary and in all but the exceptional cases, such as the nominal defendant, required by the nature of the exercise which is adversarial litigation.

So that the most important distinction between an ordinary and a nominal defendant is that, mostly, one can, for present purposes, say that the nominal defendant is a legislated exception to the rule.  Now, I do not mean to start any constitutional rabbits by that comment, and I hope I have not, but particularly, bearing in mind what I am going to call the welfare setting of compulsory insurance, the enlisting of courts to adjudicate through litigation where one of the parties is for, as it were, the unknown person who was the perpetrator of the wrong is, in our submission, an expedient that not assist in any way to qualify or entrench upon the propositions about the nature of adversarial justice and the attributes of party autonomy; in particular, being able to answer the case to which I have been making reference.

STEWARD J:   In cases of the nominal defendant, it is normally fairly clear that something has happened.

MR WALKER:   Yes.

STEWARD J:   Whereas one of the issues you face is you do not know whether what is alleged happened or not.

MR WALKER:   That is right. 

STEWARD J:   You are, to use the language from Moubarak – I think this is your case – “utterly in the dark”.

MR WALKER:   Yes.

KIEFEL CJ:   The question in the nominal defendant case is why it happened. 

MR WALKER:   Yes.

KIEFEL CJ:   And you are absent any assistance in relation to that.

MR WALKER:   If I may say so, “utterly in the dark”.  But that is why I have answered Justice Gageler as I have.  You cannot reconcile the cases, and we stoutly resist the notion that the existence of litigation against the nominal defendant have the effect of entrenching upon the indicia of participation proper degree of opportunity to participate as a defendant in a civil trial.  That is how I deal with the matter.

JAGOT J:   Mr Walker, could I just ask, this person was laicised in 1971; it seems fairly clear for his known criminal, sexual proclivities against children, albeit boys.  He did not die until 1996.  I have not got quite the chronology of the complaints that missed in my head that was referred to, and the death of the other people involved in those complaints, but it turns on your client not knowing this particular allegation.

MR WALKER:  Yes.

JAGOT J:   Because they clearly knew that there were numerous allegations against this person ‑ ‑ ‑

MR WALKER:   Yes.  Hence – I am sorry, I did not mean to cut you off.  Sorry.

JAGOT J:   No, no.  My point is that a person with those kinds of criminal sexual proclivities, it seems plain that just because you have five – or whatever it is – complainants, that is not going to be all of them, but it is very likely that this person has been otherwise perpetrating these kinds of criminal behaviours on children.  There is a 20‑year period between laicisation and death.  Why is that not more than enough opportunity to – and you did ask him in the process of laicisation and got some – but I am just not following why there would not have been adequate opportunity to ask him about any other criminal – whether or not you knew the specifics – and plenty opportunity, I suppose, to ask all those he was dealing with, and major parishioners he was dealing with, if you wanted to know.

MR WALKER:   Your Honour has asked a large question.  Can I try to take it bit by bit?

JAGOT J:   Yes.

MR WALKER:   And I hope I am going to address all of it.  The reasons for the discrimination in the Court of Appeal between did the foundational event occur and what was, for shorthand, called the negligence and vicarious liability aspects – that has to be shorthand because that describes the whole of the claim, of course.  I particular with negligence, it picks up exactly what your Honour has been pointing to; that is, there was material of which we were well aware, not least because processes in which we are party, the professional conduct office and the laicisation are involved.

We apprehend – and we intend this as not in contest, at least at our behest, in this Court – that the case certainly of negligence and probably in some respects query in vicarious liability includes what might be inferred – directly shown, one would have thought, in the case of negligence – concerning foreseeability.

That is to be distinguished, however, in what I am going to call a tendency manner of reasoning.  My learned friend is right; we embrace the proposition that the admissibility of tendency evidence is a matter for trial or for regulated pre‑trial – part of the conduct of a trial – and does include the weighing of countervailing factors of a kind that he refers to.  We do not, as you can see from the way we come to the Court now, rely on that.

However, the fact that there had been credible – to use a word in the record – record and thus knowledge by us of a criminal offending does not, in our submission, say anything about the capacity to answer the claim of the appellant.  Because, with respect, it would be both to anticipate the admission, and worse, to anticipate the evidentiary effect of so‑called tendency material to say that you do not need, as it were, the kind of opportunity to rebut that might be obvious if this was a bare‑soul unheralded allegation, because there is this weight of evidence tending to suggest that this person was a perpetrator, in general terms.

That would be an impossible way to reason, and, in particular, one could not, with respect to a prospect of fair trial, say that it does not matter that you cannot get instructions about that episode of violence because there were these other reports of which you were aware of, other episodes that may be assumed are also of violence.

JAGOT J:   No, I understand that.  Mine was more about the opportunity that existed to extract or locate whatever this person was willing to say about any criminal sexual conduct.  Given the number of people who gave credible evidence of it, it seems it would be obvious that there would be other people that did not.  So, it is the fact that it is not unheralded.  I can understand if it is unheralded, you never really have an opportunity because it comes out of the blue, but here, red flags everywhere.

MR WALKER:   But, your Honour, that is where – what I hope will be my friend’s piece of paper with the dates.  It may be that your Honour is proceeding on the basis that these complaints came before Father Anderson’s death.

JAGOT J:   No, I just mean the ‑ ‑ ‑

GLEESON J:   But Monsignor Ryan had spoken about them.

MR WALKER:   Yes.  What I am about to say then, there are two ‑ ‑ ‑

JAGOT J:   I am even going back to 1973, 1971.

MR WALKER:   Your Honour anticipates me with this.  There is some stuff – you have seen the records – that refers to, what I will call, coyly, “misgivings” by colleagues, and then there are the out and out complaints.  I thought your Honour was asking about the out and out complaints.

JAGOT J:   I am saying both.  But from 1971 ‑ ‑ ‑

MR WALKER:   Yes.

JAGOT J:   ‑ ‑ ‑ there are red flags everywhere about this person.  Inquiries were made on the transcript of evidence, but other inquiries could readily have been made if it was reasonable to assume that, if there are that many red flags, then there might be other events, other incidents.

MR WALKER:   I promise I will engage with that, your Honour, but ‑ ‑ ‑

JAGOT J:   No, no, that is fine.  Then, there is the other and I do not know the timing.  I accept that.

MR WALKER:   So, I just wanted to make clear that, I think – I certainly understood at least part of your Honour’s request to me to consider the significance of the complaints of what I call “the boys”, to which your attentions have been drawn.  I think, relevantly, they post‑date the death.  However, there are, equally relevantly, other matters to which your attention has been drawn that predate the death.

STEWARD J:   Without wanting to diminish Justice Jagot’s question in any way, the fact is, though, that when he was asked on oath about these issues in 1971, he declined to answer.

MR WALKER:   Yes.

STEWARD J:   So, he would not have been, himself, probably a great source of information.  That does not detract from inquiries with parishioners, and so on.

JAGOT J:   That might be the rock and the hard place.

MR WALKER:   I think my answers are, well, yes, but it is going further than the material would justify to regard the non‑response to what is now a grotesquely old‑fashioned and inappropriate inquiry about romantic attachments with girls as being indicative of the, as it were, hopelessness in prospect, had he been alive, of his response to allegations by or about the appellant.  Now, you will notice that we are not wanting to make too much, if much at all, about the difference of sex between victims.

Rather, one cannot, with respect, proceed except by assuming matters which need to be the outcome of a contested fair trial rather than precluded in advance, whether or not the assault alleged by the appellant took place, and the matter I have to respond to, particularly raised by Justice Jagot is, well, was not there enough before he died for you, the church, to have made inquiries not only of him but about him of people, some of whom we know, holding ecclesiastical office, have since died and, had you done so, you would have at least had – et cetera, et cetera.

Now, the first thing to be said, of course, is that it would have been happenstance only by which that inquiry would have raised anything about the appellant.  There is nothing in the material which, with great respect, understandably, leads your Honours to inquire concerning what might have been done on the basis of what we do know my client understood, and the diocese understood about Father Anderson.  There is absolutely nothing in that that implicates him with respect to the appellant.

Now, that leads, of course, to the, we hope, unrealistic supposition that there should have been inquiry concerning every child, or perhaps, more realistically, any child, so – and this is not examined in either of the courts below – that the notion that feeding into the concept of fair trial is some appreciation of the impossibility of being able to know whether something happened by reference to what the perpetrator can say, either directly to us or by confession to others, depending upon whether there has been, as it were, a comprehensive net thrown previously to find out whether any such thing had ever happened.

In our submission, that is, certainly on my reading of the cases, it has never been suggested that there will be less regard paid to the forensic detriment – radical detriment – suffered by not knowing about whether the event took place at all upon which the present claim is based; a different approach, depending whether or not you have previously had the opportunity – but apparently had not taken it – to make inquiries.

KIEFEL CJ:   What you are saying is that on these applications, one looks to the objective effect.  One does not weigh, in the balance, failures.

MR WALKER:   I have to be careful about saying failures are irrelevant.  They may not be irrelevant.

KIEFEL CJ:   They would if there is a discretion involved.

MR WALKER:   And your Honour anticipates me, and I am going to call that in aid when I come to House v The King.  Is that a convenient time?

KIEFEL CJ:   Yes, thank you.  The Court adjourns until 2.15 pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   May it please, your Honours.  In proposition 4 we refer to a consequence of the effluxion of time and the death of Father Anderson concerning our opportunity to defend.  I do not want to elaborate what I have said before the adjournment in that regard.  Can I, apropos my attempt to answer Justice Jagot’s questions, however, make this observation about the diocese being put, if you like, upon a kind of inquiry by the older, pre‑Father Anderson’s death, intelligence gained concerning his conduct, or misconduct.

As I said before the break, there is nothing whatever to indicate anything concerning the appellant.  Neither is there any reason to suppose, bearing in mind exactly what has happened in this case, being a phenomenon typical, according to the Royal Commission’s references, to the typical effluxion of time, is there any reason to believe that there was available, to be observed by our client at the time, anything concerning what are now the allegations of the appellant against Father Anderson.

Our point is, however, that logically there is no reason to suppose that the reduction in the opportunity to defend, which is the step we take towards the conclusion that the prospect of a fair trial is too slight to permit it to go ahead, none of that is logically connected with the fact that the diocese did not make inquiries either of a general kind travelling beyond what had already been indicated, or, in particular, an inquiry quite unrealistic to contemplate, namely, aimed at in particular the appellant or any complaint she might have about Father Anderson.

It is to be recalled that the Isaac’s affidavit material, which was not cross‑examined, presented what might be called a records and inquiry – organisational inquiry – survey which produced nothing with respect to records of the so‑called assignment or allocation of Father Anderson for pastoral care, let alone with the appellant’s family, and that there were inquiries made of two nuns in particular – your Honours have seen the reference – which, as it were, turned up nothing remarkable.

So, it is not as if there was no inquiry after the complaint was raised which is now advanced in these proceedings.  It is not, in our submission, logical to suppose that the prospect of a fair trial is somehow enhanced by the fact that my client did not conduct inquiries which had no feature which would indicate that they would have thrown up anything by way of intelligence to understand, appreciate and, if appropriate, to contest allegations by the appellant.  It is the allegations by the appellant, not the generic shortcomings of Father Anderson that are in question.

In proposition 5 we seek to compare this with the very familiar case of the usual – not universal, but usual – inability of, say, an employer to compel an ex‑employee, particularly a disgruntled or accused one, to assist in defence of a claim.  That, in our submission, however, is far from the position which attains in this case where the combination of effluxion of time, organisational changes – including laicisation, as it happens – and also death has produced the entire paucity of material with no prospect of any expedience being attempted to find anything in the nature of recollection upon which anything more than non‑admission could be based.

GAGELER J:   Mr Walker, does the second sentence of paragraph 5 capture the lost forensic opportunities here; that is, one, the opportunity to ask the priest and perhaps to get his cooperation, and two, the opportunity to subpoena him cold?

MR WALKER:   Cold call, yes.

GAGELER J:   Is that the kind of universe of lost opportunities we are talking about?

MR WALKER:   On the facts the Court can be aware of, I think that is right.  Now, that last reference is to the suggestion my friend makes that there might be a widow and children of the former Father Anderson – there is no suggestion of that.  That is excited by a phrase talking about wanting to leave the church, feeling a need for marriage and family.  That is not evidence that there was ever marriage and a family.  So, I need to raise and then say – I cannot say in this case that there was anything – that there was any other family connection.  We do not rely upon any diminution in the availability of what I am going to call a circle of Father Anderson; it is his death. 

GAGELER J:   And so, it is those ‑ ‑ ‑

MR WALKER:   It follows – I am sorry.

GAGELER J:   I am so sorry.

MR WALKER:   No, not at all, your Honour.  I think it therefore follows that, yes, is my answer to your question.  Now, it is proper at this point to recall that the inquiry is a prospect – it is the prospective trial.  And the Court, burdened with considering these applications does not, as it were, have to entertain, let alone, encourage, the construction by way of a simulation of the whole of a trial in advance; that would be absurd. 

So, necessarily, when it comes to lost witnesses, if I can posit a category of that kind, it will always be uncertain – literally, just uncertain – as to whether a person no longer apparently available to be asked something would have answered; would have been able to answer or would have given an answer relevant to the inquiry.  It is, in particular, building extra layers of uncertainty to posit that a person is sufficiently available to be accosted by a process‑server with a subpoena and then to inquire, prospectively, as to what would occur when certain questions were asked either in chief or, perhaps, after leave being sought and given in cross‑examination by the party calling the person.

All of this – and here there is a double‑edge for me – is, essentially, we have to accept, speculative.  But let me just dwell on that word for a moment.  It does not mean there cannot be a probabilistic determination; there has to be.  We accept that burden.  That is why the robustness of the phrase, “utterly” or entirely “in the dark”, has real meaning when assessing in prospect what the position is actually – not hypothetically – for our client.  We are not able to make those inquiries, and therefore we will never get such instructions as may have been available.  We will never be able to make the forensic decision, whether to call this person, notwithstanding he refuses to be conferenced, for example.

One needs to notice that, again, one of the speculative possibilities is a person claiming privilege against self‑incrimination, but that nowadays the Evidence Act provides an answer which, depending upon something upon which one might speculate concerning judicial discretion, may or may not present a difficulty.  All of those matters that go into the probabilistic calculus for the prospect of fair trial.  If it is so uncertain that it cannot be supposed that the defendant would be entirely in the dark, then it may well be that there will not be a stay.  Or more to the point, it might be one of those cases where, perhaps, a stay may only arise as a possibility . . . . . during a trial.

We can put that to one side, because this is one of those cases which will be not particularly rare, one would have thought, where the effluxion of such a large period of time from when punitively an adult committed an offence being sued upon civilly has expired, that it is really quite likely, either by dementia or death, their instructions and or evidence becomes completely unavailable.

That is why it is true that we are entirely in the dark.  It is absolutely not to the point to say that you would not have been, had you, 40 years before, asked a question or conducted a survey which happened to produce this appellant with her complaint.  That, in our submission, is an entirely irrelevant counterfactual which is of no assistance in understanding the probabilities as to the prospect of the trial which does, in fact, actually loom in this case. 

In propositions 7 and 8, we seek to draw those matters together.  I do not suggest these are two discrete ways of looking at the matter.  They are obviously related.  Your Honours appreciate that there is the world of difference between being able to cross‑examine a person who, on one’s instructions, had not been subjected to the activities complained of, and cross‑examining a person about whom you do not have instructions one way or the other on that matter.  It is precisely because, particularly in a vicarious liability case, that the person is not simply just another witness but, rather, ex hypothesi the only other person witness to the events in question and also the relevant wrongdoer that renders this, in our submission, something that cuts to the root of the possibility of a fair trial, in exactly the same way as has struck the New South Wales Court of Appeal in both Moubarak and this case.

In proposition 10, we turn to a matter which our learned friends have, with great respect, most cogently advanced in their written submissions and we accept is something that has to be borne in mind.  Litigation in the face of the circumstance that perhaps even the person complained against – that is, the defendant, but certainly a person whose conduct is in question or impugned – is dead is a commonplace, and certainly since – and I am not only talking about cases involving deceased estates and premortem promises to be enforced post‑mortem; I am also talking about the familiar position which Parliament obviously intended to achieve with its statutory reversal of the common law abatement of causes of action.  So, litigation after death is not something to be seen as alien or inimical to the administration of justice.  We accept that utterly.

With respect, it does not follow that because judges direct juries or judges direct themselves concerning the appropriate scrutiny – perhaps a kind of scepticism that simply sharpens the call for evidence to tip the balance – those do not, in our submission, to any degree, overcome what I have just described as the impossibility, by reason of being utterly, in the dark of somebody knowing what is said to be the fact concerning the alleged event upon which all of the liability turns.  Or, to put it another way, if those what we call familiar directions and warnings were enough, then it is impossible to understand how one would ever get a stay in the face of the destruction by the combination of time and death of available evidence concerning critically important or fundamental events.

I next come to the interplay between the proper way to read the legislation that removed all limitation – the so‑called policy, if I can call it that, upon which our learned friend relies, apparently as we understand it, without to the slightest degree affecting the principles underlying section 67’s exercise – we challenge whether that is in fact truly the appellant’s position; and then finally how that might inform the notion, if it be at all important in this case, of whether it is a House v The King appellate approach that governs.

All the statute did, no doubt as the travaux and history shows, no doubt, by accepting the Royal Commission’s recommendations, the limitation was lifted.  That means all notions – not just of the ordinary approach, for example, discussed famously by Justice McHugh in Taylor concerning the role of limitation periods – but also those ultimate or backstop notions, sometimes with the evocative phrase “periods of repose” – all of that was to be removed as a legislative response to the scandal found in the Royal Commission.

But, critically, the recommendation was for claims arising from such conduct to be litigated, not to be the subject of a non-litigated, and, in particular, non-judicial distribution of welfare, but to be litigated, that is, by a trial according to law.  And, in our submission, there is the difficulty for the perception of any policy, let alone requirement, of the amending statute that affects the principles upon which a stay for abuse of process is to be adjudicated in the Court.

I appreciate – in answer to a question in particular, from Justice Steward – my friend insists they are not seeking the slightest change to the principle, and partly, at least, that is corroborated by the fact that, apparently, there is common ground at the Bar table that Moubarak appropriately collects and highlights what the holdings, in particular, in this Court, require, in such a case.  But in our submission, the notion also advanced by our learned friend of calibration, of the approach to a stay application, differently conducted, by reason of the different degree – or, perhaps, kind of imperfection, in a case more than half a century after the event and with a dead perpetrator – that, in our submission, must be calling for some alleviation of the burden upon those who would seek a stay – I am sorry – enhancement of the burden on those who would seek a stay.

In our submission, there is nothing, either in the Royal Commission recommendations – not that they were the reasons for them – that should delay this Court much in consideration of the matter, nor in the legislative history of the Bill, nor, of course, in the enacted statute which to the slightest degree, suggests that it ought to be harder to get a stay – perversely, the greater the effluxion of time, if the effluxion of time is on account of the scandalous social phenomena noticed by the Royal Commission.

I am not suggesting that it would have been sensible or even possible to devise legislation which would do some such thing – along the lines of, it will be deemed to be an abuse of process, though it would not have been an abuse of process if, et cetera.  One might well see why legislators would draw short of such an institutionalised diminution of the standing of the court.

But what has happened is that the plain stipulation that there is not to be an effect by this legislation upon the pre‑existing jurisdiction and power of the court to order a stay.  That lack of effect by this obviously‑radical expedient of removing all limitation period cannot possibly encompass the notion of an official toleration for more imperfection than would be tolerable otherwise under the abuse of process test – that is, the weighing‑up of the prospect of unfair trial of the kind that I have talked about earlier.

Now, that is enough, in our submission, to make good the proposition that we seek to advance in our proposition 11.  The notion of calibration to which my learned friend has referred perhaps has not really been spelled out, but on any view, in our submission, it is contrary to the intended combination by the amendment of the new no‑limitation period and the existing and unaltered power currently manifest in section 67 of the Civil Procedure Act.

Your Honour the Chief Justice has raised the possibility that one can certainly see from the Royal Commission a particular approach to delay, by which I mean, the effluxion of time, but also to delay in the sense of such effluxion of time as by a policy long shown in legislatures and echoed in chancery, frowns on, as contrary to the public interest, the bringing of so‑called stale claims.

I entirely accept that the Royal Commission report says, but in this area, with this kind of cases, there needs to be, first of all, a reversal of the legislative position of limits, they are all gone.  And second, unless someone be tempted to become American, no analogies from equity into common law claims, so that the effluxion of time – a better description than “delay”, the effluxion of time is not to be a possible defence.  That, after all, is the role of, in common law, limitation period, or in equity, laches.

If that is so, the only way in which a so-called calibration could conduce in favour of the appellant’s case here is if when the delay is of the kind – the effluxion of time is of the kind that has attracted that comment and recommendation from the Royal Commission enacted by the removal of a limitation period, then somehow the principles required for the exercise of section 67 power are altered as to what is requisite in the prospective trial in order not to be so unfair that there should be a permanent stay.  And that is the matter which, in our submission, is beyond judicial power to, as it were, enact.  There could not be a plainer indication to the courts, you must continue as you have been proceeding before this legislation with respect to your jurisdiction to stay proceedings.

That then brings me to the pair of epithets I referred to earlier, “exceptional and extreme”, which are among those that are used to describe the desirably rare occurrence that in the administration of justice there would be a decision that it will not be administered in this particular case.  One would hope, indeed, that refusing to adjudicate a claim would not be routine but would be exceptional – and this Court has said so time and time again – but the notion of “exceptional or extreme” is not a statistical concept.  It does not look to a quota of any particular period – I am sorry, we handed out our last day last week – no more for six months.  Nothing like that.

If there were – if I may say so – a plague of abusive litigation, then it would remain exceptional, though it means that there is a disturbingly large number of cases calling to be stayed.  Similarly, “extremity” – it has to be “extreme” in the sense that what is threatened is, on the balance of probabilities, that there would not be a fair trial accepting – and this is in favour of a plaintiff faced with an application for a stay – that a fair trial need not, of course, be perfect.

In our submission, it is impossible to regard the cases such as Moubarak and this case illustrate as cases which ought, on any reasonable view of it – I will come to why I use that expression in a moment – be regarded as not capable of being held to be “exceptional or extreme” in that sense; as not capable of producing the – on the balance of probabilities – detection of the prospect of an unfair trial so as to call for a permanent stay.  That comes about for the reasons that I have do not want to labour again; namely, that in these cases, unlike the case of the death of the defendant at the incident of the car accident, et cetera, in these cases, the very effluxion of time that the amending statute has said will no longer provide a defence, it is entirely apt to produce the very thing which the careful and explicit preservation of the stay jurisdiction contemplates as a possibility; namely, that there will not be a sufficient prospect of a fair trial. 

I use the notion of rejecting the idea that on no reasonable view could these cases be regarded as exceptional or extreme in the requisite sense.  In order to conjure up what is the, I suppose, functional equivalent in the House v The King appeal to the correctness standard – which would otherwise apply in an appeal by way of rehearing, in which, as this Court demonstrated in SZVFW, is, for example, that which will govern when the standard in question, as in that case, was the requisite reasonableness of administrative decision making – one could also add, by way of example, the requisite reasonableness of somebody with a duty of care in a negligence case, because what has been called the residual category in House v The King is, thereafter, all four cases where, without being able to identify to a degree capable of leading it to being articulated within the first four classes of error in House v The King, there is, nonetheless, such a signalled departure from what the case appears to call for in the discretionary decision as to require it to be set aside with strong language of a kind that is redolent of the former Wednesbury approach.

In our submission, it is not inappropriate to insist that that aspect of House v The King needs to be considered alongside the argument advanced by our learned friends to the effect that this is the kind of case where – to use the tag – it is either abuse of process or it is not. But a property settlement under section 79 of the Family Law Act is either just and equitable or it is not.  In a discretionary case, in our submission, the prospect of an unfair trial is either more likely than not, or not.

These are, in our submission, false ways, really, of expressing a conclusion of explaining of how one reaches that conclusion.  In choosing between House v The King and the so‑called correctness standard, in our submission, the old war horses include what your Honours have heard over and over again; namely, that a hallmark of the House v The King matter is a subject or decision about which reasonable minds might differ, one which, with respect, is very difficult for us to articulate as much of a test, bearing in mind that in an ordinary appeal by way of rehearing where the so‑called correctness standard unquestionably applies, it is really not to the point that the judgment being overturned in a successful appeal is one which was nonetheless reasonable, or reasonably open to have been achieved.

As a hallmark, in our submission, it is defective, but it is still useful and, in our submission, a comparison with what is just and equitable in family law property settlement, and the prospect of an unfair trial in abuse of process permanent stay jurisdiction, there is this analogy; namely, that they are matters which, by weighing a number of factors which not only look to the past but very much in both cases to the future in a way about which any court must always accept error is impossible to avoid – there will always be some error in predictions of the future except by pure chance – they are, in our submission, the kind of matters about which if there has not been an error of principle first four heads under House v The King, or there is not a shockingly inappropriate outcome, residual cavalry of House v The King, do not reveal error.  In other words, it comes to ground on the ultimate fulcrum of the outcome of an appeal:  has error been shown or not?

It is for those reasons that this Court has still – and rigorously – observed a distinction between those cases where error – Warren v Coombes – is indicated by the appellate Bench reaching a different view without ever having to brand the overturned decision as unreasonable – perish the thought – and cases where that will simply not suffice.  If that distinction still operates, the question arises, in a case where it might matter – which is probably not this case – as to whether it would apply to the dual‑stage assessment of the prospect of an unfair trial, constituting an abuse of process if had, and the proper response to that.

As your Honours know, more frequently in crime than in civil, the prospect of an unfair trial is not always a monolithic thing that cannot be unpacked.  My friend, himself, recognised, for example, with respect to the possibility of so‑called tendency evidence in this case, that such injustices that might cause might properly, as we concede, be dealt with by the adjectival decision whether or not to admit that evidence as tendency evidence at all at a trial.

But, in our submission, what I have just said about the two stages shows that this is a discretion just as you would expect from the language and nature of section 67 itself.  Those two stages have – particularly the second – all the hallmarks of what hitherto has been plainly and simply called a discretion requiring House v The King for appellate review or appellate detection of error calling for review.

Now, my learned friend attempts to meet that by positing that within section 67 – which is very broad; we agree on that – the abuse of process class of case calling for a permanent stay is a category, a subclass, to which the correctness standard should apply because – and I do not mean to belittle the argument – an abuse of process either is or is not present.  In our submission, it would be, shall I say, a pity if the broad power – hitherto always called discretionary – of a court to safeguard its processes and its standing in the administration of justice by the jurisdiction to order a permanent stay – see section 67 – were, as a result of decision in this case,

to be seen as one which will sometimes be discretionary and sometimes not, using that word to designate decisions from which House v The King is the appeal route, and those where it is not.

It would be a pity because certainly the words of the statute do not indicate that, nor do the words hitherto of all the authorities, talking about the power of a court, discretionary in nature, to protect its own processes.  A confusion is intruded if one looks to cases which are, so to speak, compelling; clear cases for the exercise of a discretion.  It is not a paradox or an oxymoron to say of a case where an exercise of a period of discretion is called for that because it is so clear, it is no longer a discretion.

This Court has recognised that time and time again where matters which are conceptually discretionary – truly discretionary for the purposes of the House v The King test, for example, on appeal – nonetheless are in particular cases compelling in the sense that if you make out the major premise, the minor premise must follow.  It is for those reasons, in our submission, that the position taken by this Court in Gardiner and in Batistatos – to which my learned friend has taken you – is one which should continue to find favour with this Court.  First, we accept the analysis as correct by which our friend points out that it is not a test by argument and, therefore, there is not binding authority by decision in those cases concerning this stay of proceedings for abuse of process as being amenable only to a House v The King appeal.

But that, in our submission, is merely technical in terms of stares decisis because, in our submission, in each of those cases, the to and fro and the weighing at both levels, is there an abuse threatened and what should be the response, is one which in our submission, explains why, in both cases, the Court was content to proceed on the basis of House v The King with any reluctance or without any ostentatious leaving the doctrinal status of that for another case to be argued.

A further reason for the Court not to determine this point, unless it is necessary to determine the outcome of this case, given the quite clear facts of this case, and we say that is just not going to be true, unless you were to reach that position, we would urge you not do it, because of the flow-on effects to such important areas such as section 79 of the Family Law Act – Norbis v Norbis.

May it please your Honours.

KIEFEL CJ:   Thank you, Mr Walker.  Yes, Mr Herzfeld.

MR HERZFELD:   Thank you, your Honours.  There are four points in reply.  That was slightly dramatic, I am sorry.  We have supplied to your Honours a chronology of the dates of death of the various witnesses, and the three that I have mentioned orally are in the last three rows of that table.  The point that we make is that those three were still alive, variously, at the times of the Professional Standards Office complaints.  Those complaints occurred over a period of time, the earliest of which was in 2001 – there were some later ones.

We do embrace the broader point that, of course, steps could have been taken at any time after 1971 by the respondent to investigate or just report to the police, who may well have investigated.  That is necessarily relevant to the question, because the question is whether there is such unfairness or unacceptable unfairness such that there should be a stay.  And, if there an evidentiary gap to which the defendant has contributed, it can hardly be said by that defendant that being exposed to that evidentiary gap is unfair.

But, really, that brings us to the second reply point, because the respondent accepts that it had that general opportunity to which I have referred.  And ultimately, despite some gingerness on our learned friend’s part – ultimately accepted, I think, the second time it was put to him by your Honour Justice Gageler that really, the forensic disadvantage – and the only forensic disadvantage – is the inability to put this particular complaint to Father Anderson and call him as a witness about this particular complaint.

The position of the respondent in that regard, in principle, is no different not only to the nominal insurer – which does have statutory features – but many other defendants.  So, take an example of an insurer whose insured comes to it and says, property damage has been suffered to my property in this way – it can be a car accident – it does not have to be a car accident – it just could be a commercial insurer of some property.  There may be no witnesses other than the insured to the event as to how the property damage occurred.  The insurer has to make a decision based on no contrary witness testimony as to whether to accept the insured’s account about how the damage occurred and, if it denies cover, it may be sued by its insured, and could not say in the proceedings, I cannot have a fair trial because there is no other witness.

STEWARD J:   But, in that case, we know something has happened.

MR HERZFELD:   But from the defendant’s perspective ‑ ‑ ‑

STEWARD J:   There will be forensic evidence about how the damage occurred.

MR HERZFELD:   But the point that we make is that the fact – the disadvantage being complained of here is not enough, and the fact that we may know something happened, we may not know, from the insurer’s perspective, whether it has been entirely cooked up by the insured, and that is the critical question.  So, from the defendant’s point of view, it is – to use my friend’s words – utterly and entirely in the dark on the critical question, policy response, because it might depend on whether the damage occurred in a particular way, and surprise, surprise, the insured says it occurred in that way and there is no way to test it with a contrary account.

STEWARD J:   If you accepted that the respondent was utterly in the dark, and I take it you do not, but if you did, would your position be different?

MR HERZFELD:   Well, that expression, utterly and entirely in the dark, is problematic for the reason I have just given.  On one view, the insurer in my example is utterly and entirely in the dark, but not really, because it can investigate and potentially test in other ways, and I will come on in a moment to show how that can occur here.

STEWARD J:   Like the cows that get struck by lightning.

MR HERZFELD:   Indeed.

STEWARD J:   Yes.

MR HERZFELD:   Indeed.  And the same in a trip and fall case.  That is why I gave the rather more extreme example in‑chief of plaintiff dead, defendant dead – I am sorry, defendant is not dead, plaintiff dead, alleged abuser dead, and there is just a diary.  That might be a different case, but for reasons I will respond to in a moment, that is not this case.

STEWARD J:   All right.

MR HERZFELD:   We do submit that there is no difference in principle to the unfairness which the respondent here points to, not only to the nominal insurer but a commercial insurer in the kind of example I have given, or many other cases, for instance, unwitnessed trip and fall.  And, really, because of that, our friend went so far as to suggest before lunch, that if an employer is sued for vicarious liability of an employee, the employer might obtain a stay if the employee refuses to cooperate in giving the employer information and then becomes unavailable, for instance, by immigration overseas.

That, as a matter of principle, provides precisely the same forensic disadvantage that the respondent suffers under here.  And the respondent could say:  I am utterly and entirely in the dark; the employer could say that.  But it is a startling proposition to suggest that the employer in that circumstance would obtain a stay.

Your Honours will notice that it is not dependent on the passage of time.  The hypothetical could occur well within a six‑year or even a three‑year limitation period.  But, on the respondent’s case, necessarily, it has to say, a stay would go in those circumstances.  That just does not reflect the reality of the way defendants conduct litigation every day.  They do their best with the material that is available, and that is the third reply point.

Your Honour Justice Gleeson asked my friend about the broader context about the father’s accident and the giving of presents, and so on.  My friend conceded that though that broader context could be investigated – for example, from asking questions of the appellant’s siblings.  But those investigations are precisely the kind of things that may well provide a basis to contest the appellant’s account.

So, would your Honours please take up the book of further materials, volume 1, at page 29.  This is the appellant’s statement.  Your Honours, please turn to page 34.  In paragraph 27, the appellant gives an account of Father Anderson ingratiating himself into the family.  My friend concedes that the veracity of that account – that paragraph – can be investigated.  But your Honours can readily see how that, if it is not supported by siblings, will provide fruitful ground for cross‑examination of the appellant.  If one successfully impugns her about those matters, one can readily say to the trial judge, your Honour should not accept her reliability as a witness in light of these events.

It is entirely unreal to suppose that cross-examination of the appellant in this case, or more generally, can only be done in a meaningful way if there is a contrary account specifically directed to paragraphs 30 to 34 of this statement.  Cross-examining counsel all the time has to cross‑examine based on other matters and then invite the trial judge to disbelieve the witness on the critical event because one does not have something to put to the witness about a critical event.

That, with respect, rather reveals the confected bewilderment at the heart of the respondent’s case.  I say it is “confected” because its ability to make decisions about cases of this kind is evidence by its own response to the Professional Standards Office complaints.  It was not necessary for it to consult Father Anderson in order to determine how to respond to each of those complaints which are in evidence and, in fact, to pay out substantial sums of money; and it is “confected” to say that it is utterly bewildered in this case and unable properly to analyse, and then, if it so chooses, attack the plaintiff’s case.

The fourth and final reply point concerns House v The King.  What is just and equitable in a family law case involves putting a numerical dollar figure on an issue which cannot, in truth, be reduced to precise figures in exactly the same way as general damages or apportionment in a proportionate liability or contribution case; a range is available.  It bears no analogy to whether a fair trial can occur.

The respondent’s position countenances this possibility.  It countenances the possibility that your Honours conclude that a fair trial is possible, but your Honours also conclude that it was reasonably open to the Court of Appeal to think that a fair trial is not possible, and on the respondent’s case the result is that the plaintiff would be denied a trial on the merits, even though your Honours have concluded that she is entitled to one, and that cannot be a result which is countenanced by our system of justice.

Those are the reply points.

KIEFEL CJ:   Thank you, Mr Herzfeld.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow.

AT 3.08 PM THE MATTER WAS ADJOURNED