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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2022] HCATrans 206
Case: [2022] HCATrans 206
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore*. The dispute concerned the appellant's claim for damages for sexual abuse suffered during her childhood at a school conducted by the respondent. The primary legal issue was whether the respondent was vicariously liable for the actions of the perpetrator, a teacher at the school, given that the perpetrator's abuse occurred outside of school hours and off school grounds.

The High Court was required to determine whether the relationship between the respondent and the perpetrator was such that the respondent could be held vicariously liable for the perpetrator's wrongful acts. This involved considering the scope of the perpetrator's employment and whether the abuse was so closely connected with the employment that it could be considered an act for which the employer should be held responsible. The Court also had to consider the application of the principles established in *Bugge v Brown* and *New South Wales v Lepore* to the facts of the case.

The Court reasoned that the perpetrator's employment as a teacher at the school created a relationship of such a nature that the abuse, though occurring outside school hours and off school grounds, was so closely connected with the employment that it was within the scope of the employer's responsibility. The Court emphasised that the perpetrator's position as a teacher provided him with the opportunity and the means to abuse the appellant, and that the abuse was not merely incidental to the employment but was intrinsically linked to the authority and trust placed in him by the respondent. The appeal was allowed, and the matter was remitted to the Federal Court for determination of the quantum of damages.

Orders