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

[2022] HCATrans 206

[2022] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S96 of 2022

B e t w e e n -

GLJ

Applicant

and

THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF LISMORE
ABN 72 863 788 198

Respondent

Application for special leave to appeal

GAGELER J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 2022, AT 10.14 AM

Copyright in the High Court of Australia

MR P.D. HERZFELD, SC appears with MR J.A.G. McCOMISH for the applicant.  (instructed by Ken Cush & Associates)

MR G.M. WATSON, SC appears with MS D.H. TANG for the respondent.  (instructed by Hannigans Solicitors)

GAGELER J:   Thank you, Mr Watson.  Mr Herzfeld.

MR HERZFELD:   As your Honours know, following a five-year inquiry, The Royal Commission into Institutional Responses to Child Sexual Abuse produced its final report in 2017, and that produced a raft of legislative amendments directed to facilitating civil claims by victims of historical child sexual abuse, particularly in institutional settings.  One of those amendments was the removal of limitation periods.  There has then followed a large number of claims, many involving abuse from decades in the past and there has equally followed a substantial number of attempts by defendants to have claims stayed on the grounds of abuse of process, in particular, it being said that a fair trial is not possible. 

Such a claim by a defendant involves the intersection of two important considerations in the administration of justice in this country.  The first is the need for all persons to have a fair trial, but the second is the national recognition of the need for our system of justice to provide remedies for victims of historical child sexual abuse.  This Court has not yet had an opportunity to consider such a case, and for the following reasons, the present is a suitable vehicle in which to do so.  Would your Honours ‑ ‑ ‑

GAGELER J:   Is there any difference between the parties as to the legal principle to be applied in a case such as this?

MR HERZFELD:   Stated at the level of generality of, is a fair trial not possible, there is no legal difference.  There is, I think, perhaps – although the respondents’ submissions are, in this Court, at any rate, perhaps a little coy on this, there is a difference as to what, if anything, is the relevance of the legislative reforms to which we point in deciding what constitutes a not fair trial.  There is, perhaps, a difference between the parties – although, again, the respondent’s submissions in this Court do not really engage with our submissions on this topic – about the extent to which a deceased person, such that the complainant is the only witness to the conduct, there is a difference about whether that is something which really means that in a case like this, a fair trial is just not possible.  So that, I think, is the answer to your Honour’s question.

Would your Honours take up application book page 70, please, in the reasons of her Honour Justice Mitchelmore.  Your Honours will see at page 70, paragraph 118, her Honour recognised correctly that the passage of time did not warrant a permanent stay, and that necessarily follows from the removal of the limitation period.  But what her Honour said placed this case into the exceptional category, and it does need to be an exceptional category, was the following circumstances – they are really encapsulated in the next two paragraphs.

Your Honours can see what is in paragraph 119, but plainly the features in 119 will be common to many instances of historical child sexual abuse.  It is really what is in paragraph 120 that was said by the Court of Appeal to be the problem.  And, in short, it was that the alleged abuser was dead, and the institutional defendant did not have an opportunity to confront him with the detail of the applicant’s allegations and obtain instructions from him, and would not be able to call him as a witness.  Your Honours will notice what is said in the last sentence of paragraph 120 as well.

The centrality for the Court of Appeal of the death of the alleged abuser is also apparent – even more crisply, perhaps – from the concurring reasons of Justice Brereton at page 39 of the applicant book.  Paragraph 4 in the last four lines of that page and over the page to the end of the paragraph makes it very clear that that feature was the critical one for the Court of Appeal.  And with respect to the Court of Appeal, the fact that the alleged abuser is now dead and died before allegations of child sexual abuse were put to him or her, may well be expected in many cases of historical sexual abuse.

That this is combined with an absence of any other witnesses or documentary record is, likewise, of the nature of historical child sexual abuse in historical settings.  And so, the key question suitable for determination of this Court is whether those circumstances, which are in no way exceptional in this field, are sufficient to stymie a plaintiff’s claim.  May we make four points orally in support of that.

First, we have identified in our written submissions the fact that there are many cases across a range of areas in which courts, including this Court, have accepted that claims are able to proceed – and, in fact, plaintiffs are able to succeed – notwithstanding the death of the person responsible for the conduct the subject of the claim.  Those cases have provided a deal of guidance about how to deal with the evidence in such cases – for instance, the need to bring particular caution to the evidence of one person where the only other witness is dead.  Neither in the Court of Appeal’s reasons nor in the respondent’s submissions in this Court is there any attempt to grapple with those authorities.

But, even putting aside cases involving deceased persons, it is commonplace that institutional defendants may wish to obtain factual instructions from individuals who simply refuse to cooperate.  For example, a former employee may simply refuse to assist their former employer in relation to a claim where the former employee is said to have committed a wrong – perhaps a criminal offence – for which the former employer is being sued for vicarious liability.  Such a former employer – where the former employee refuses to cooperate – would be in the same position as the respondent here when it comes to obtaining instructions and though there is a theoretical possibility that the former employee could be subpoenaed without prior conference, that is highly unlikely.

Even if they were, certainly at common law, the former employee might well refuse to answer any questions on the grounds of self‑incrimination.  None of those matters would lead to a stay of proceedings against the former employer on the ground that a fair trial was not possible and by parity of reason, it should not have been on here.  That is the first point.

The second reason this Court should grant special leave is one I have already touched on, and that is that the decision in this case is at odds with the legislative response to the Royal Commission.  We have identified the key features of that response in our written submissions, but they are all directed to facilitating the making of claims against institutions such as the respondent, including those involving very old allegations of child sexual abuse.

GAGELER J:   When you say legislative response, it is just the removal of the limitation period, is it not?

MR HERZFELD:   That is the one which is critical to this case but there was a suite of legislative responses that we have identified on page 83 of the application book, in paragraph 18 of our written submissions – the first of which is the removal of limitation periods.  But there was a suite of other responses, all of which were directed to facilitating claims particularly against institutional respondents such as the one here.  There are good reasons for that, including, as this case demonstrated, the extensive record‑keeping abilities of institutions such as the respondent, and institutional memory and resources available to institutional respondents.

Those changes reflect the recognition that it can take decades for instances of abuse even to be disclosed, let alone then the subject of proceedings.  We accept of course that the Limitation Act amendments do not limit the jurisdiction of courts to stay proceedings when they are an abuse of process because a fair trial is not possible.  But a fair trial is not synonymous with a perfect trial and, more importantly – picking up on the point I made to your Honour Justice Gageler earlier – what constitutes a fair trial is itself something to be considered in light of the legislative amendments.  The kind of circumstances presented here cannot be regarded as sufficiently exceptional to warrant a permanent stay, given that it is precisely the kind of claim which the legislative amendments are designed to facilitate.  That is the second point.

The third reason that the Court should grant special leave is that the Court of Appeal was simply wrong to say that there was no material that would shed light on the alleged abuser’s putative response to the applicant’s claim, even assuming that that is a necessary requirement.  Your Honours can see that in the application book at page 50.  Your Honours will see in paragraph 52 that the alleged abuser:

was examined on oath in the context of his petition for laicisation.

In the next paragraph, he was asked:

“In your years in parishes did you have any problems with chastity?

And:

he requested not to answer that question.

In contrast, the last two sentences of that paragraph explain that when he was:

asked whether he associated romantically with any girl during the years in parishes.  He gave a negative response to the question.

The significance of this, as your Honours will have seen, is that the applicant is female and all of the other material before the courts below concerned alleged abuse of male children.  So, even if it were necessary – and, of course, our primary point is it is not – but even if it were, there was a proper basis, and will remain a proper basis, for the respondent to submit and to point to evidence to support that the alleged sexual assault of the applicant would have been denied by the alleged abuser.

There was then a deal of other material which could be arrayed by both sides in support of and against the alleged abuse.  Again, if the alleged abuser were alive but simply refused to cooperate with the respondent, that would be the evidence upon which the respondent could base its position, and it ought not to make a difference that the alleged abuser is now dead.  That is the third point.

The fourth and final point we would make is this.  There remains an outstanding controversy about whether a decision to grant a stay on grounds

of abuse of process is a discretionary decision to which the strictures in House v The King apply on appeal.

GAGELER J:   That is actually quite an interesting question, but how does it help you in this case?

MR HERZFELD:   Well, can I embrace that it is an interesting question and explain why it arises in this case.  It arises because your Honours will have seen that the Court of Appeal overturned the primary judge’s decision not to grant a stay and in its place the Court of Appeal made a decision to grant a stay.  We will contend in this Court that we do not need to show House v The King error for this Court to overturn the Court of Appeal’s decision.  We will contend that it is sufficient that this Court is of the view that the Court of Appeal was simply wrong to say that a fair trial was not possible, and that will throw up immediately the question of whether we need to demonstrate House v The King error.

As your Honour says, that is an interesting and important question.  In SZVFW Justice Edelman identified that there is a passage in Batistatos in which it might be thought that four members of this Court said that that is a discretion to which House v The King error must be demonstrated on appeal, and Justice Edelman described that as controversial.  We go further than this.  We will submit it is wrong and that is a question of general doctrinal importance concerning abuse of process.

But it is also, in this particular area, an important question for this reason.  If this area is governed by House v The King, a victim of historical child sexual abuse may be unable to pursue their civil claim because a trial judge grants a stay even if an appellate court thinks that that conclusion is wrong, because the victim may not be able to demonstrate House v The King error and this Court should make it clear that our law does not countenance such a fundamentally unjust outcome.

They are the four matters we would put in addition to our written submissions, your Honours.

GAGELER J:   Thank you, Mr Herzfeld.  Mr Watson.

MR WATSON:   Your Honour Justice Gageler asked a question at the outset about whether there was a difference between the parties as to the applicable rules.  There is not.  Could I take your Honours through to the application book, page 63.  Justice Mitchelmore in paragraphs 95 and then over the page onto 96 set out what was said to be the applicable rules derived from cases decided here under the New South Wales Court of Appeal.

There was no dispute with those in the Court of Appeal, and there is no dispute with those being applicable principles in this application; they are not disputed.  In other words ‑ ‑ ‑

GAGELER J:   Mr Watson, the difficulty is that those principles are stated in highly evaluative terms.  What I think Mr Herzfeld is really saying is that, perhaps, a different evaluative approach is required in the current circumstances to the cases of this kind.  I am interpreting that as being the gist of the case that is sought to be brought.

MR WATSON:   I accept that.  I think that is what is being put, which leads me to my second point, that in conducting the evaluative process here, it is little wonder that the Court of Appeal arrived unanimously at the conclusion that a fair trial could not be had.  I will just list these points, ever so briefly:  the matter is over 50 years old; it is the fact that the key witnesses – except for the applicant – are all dead; we do not know, we can never know, now we will never find out, whether Anderson – the alleged perpetrator – had an alibi.  He may have had a reason for saying, look, I was not there that day.

We do not even know, because there was no evidence put before the Courts which had to determine whether or not there should be a stay, how the applicant identified Anderson – was he tall, was he short, was he fat, was he thin?  We do not know, we do not have a photograph of him.  We do not know whether he was identified because he was wearing clerical garb of some kind.  We do not even know whether priests in Lismore, in those days, wore clerical garb on Saturdays.  We just do not know, we never will know.  If there are witnesses who are available to comment upon this, they have all gone.  This was, I could labour it, but the defendant was left in a position where there was no facility to cross-examine the applicant on her account and was left unable to educe evidence to contradict it.  It is kind of a working definition of the inability to get a fair trial.

I will mention quickly the limitation point.  Your Honours have seen the amendments actually permitted the courts to look at this very kind of issue.  There is no subversion of it.  And then, finally on the House v The King point, even if that was an interesting point, it is hard to see how it arises here.  But in any event, if it is ever to arise and be resolved, it would be much better that it come from an instance where the intermediate Court had to deliberate upon it.  They did not here.

That is all I want to say, thank you, your Honours.

GAGELER J:   Mr Herzfeld, we do not need to hear you in reply.  There will be a grant of special leave to appeal in this matter.  How long will it take, Mr Herzfeld?

MR HERZFELD:   I am very efficient, so it might be able to be done in half a day.  But I think it might be safer to list it for a day.

GAGELER J:   Mr Watson, you are equally efficient, what do you say?

MR WATSON:   It will finish in a day.

GAGELER J:   In a day.  Very well.  The parties will receive some tailored directions for the timetabling of the matter from the Registry.

AT 10.34 AM THE MATTER WAS CONCLUDED