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

The Trustees of the Roman Catholic Church for the Diocese of Lismore (the applicant) sought a permanent stay of proceedings brought by GLJ (the respondent) who was claiming damages for an alleged sexual assault that occurred in 1968. The alleged perpetrator had died before the applicant was notified of the allegation, and there were no other witnesses or documents relating to the alleged assault from the time it occurred. The applicant argued that these circumstances meant there was no meaningful opportunity to engage with the central question of whether the alleged perpetrator committed the assault. The matter came before the Court of Appeal of New South Wales, constituted by Macfarlan, Brereton and Mitchelmore JJA.

The Court of Appeal was required to determine whether the primary judge had erred in refusing to grant a permanent stay of the respondent's proceedings. This involved considering whether the circumstances of the case, particularly the death of the alleged perpetrator and the lack of evidence, rendered it impossible for the applicant to have a fair trial or to adequately defend itself against the claim. The core legal issue was whether the prejudice to the applicant was so profound as to warrant a permanent stay of proceedings.

The Court of Appeal reasoned that the death of the alleged perpetrator, coupled with the absence of any corroborating evidence or witnesses from the time of the alleged assault, created an insurmountable impediment to the applicant mounting a defence. The court applied the principle that a permanent stay may be granted where a fair trial is impossible due to the unavailability of essential evidence or witnesses, particularly where the defendant is unable to engage with the central allegations. The court found that the passage of time and the death of the perpetrator had deprived the applicant of any meaningful opportunity to investigate or defend the claim, rendering a fair trial impossible.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, set aside the orders of the primary judge, and ordered that the proceedings be permanently stayed. The respondent was ordered to pay the applicant’s costs of the appeal.