Defendant Applies for Permanent Stay of Proceedings Relating to Sexual Abuse
In 1996, proceedings were commenced against the defendant imputing them for liability over the deceased alleged perpertrator of sexual assault. The defendants filed an application for permanent stay of proceedings. The Court, in deciding whether or not the proceedings would be oppressive or bring administration of justice into disrepute, relied upon the assessed effect of effluxion of time and extant documentary evidence.
Facts:
The plaintiff, GLJ, commenced proceedings for damages on 31 January 2020 against the defendant, The Trustees of the Roman Catholic Church for the Diocese of Lismore (“Lismore Diocese”).
She claims that child sexual abuse was perpetrated against her in 1968 by Father Clarence Anderson, a priest then ordained in the Roman Catholic Church and appointed to the Lismore Diocese under the control of the Bishop of Lismore.
The plaintiff submitted that Father Anderson was appointed by the Parish Priest (and Bishop of Lismore) to provide pastoral care to the plaintiff’s family. One instance of forced sexual intercourse took place in her family home in 1968 when she was around 14 years of age.
The grounds for the claim against the diocese are the following: first, that the Diocese was negligent by breaching a personal duty of care, that by the time the plaintiff was sexually abused, the defendant knew or should have known that Father Anderson had sexually abused other children and had a tendency to do so again.
Second, the Diocese is vicariously liable for the sexual abuse allegedly committed by Father Anderson against the plaintiff. Father Anderson died in 1996. No notice of the plaintiff’s claim was given to the Lismore Diocese before his death.
The plaintiff read the affidavit of Mr Samuel Alexander Tierney, solicitor, containing unsworn evidentiary statements by GLK, SJT, SDA, CSP, and another victim of Father Anderson, who, while not a current claimant, would have been entitled to anonymity under s 15A Children (Criminal Proceedings) Act 1987 (NSW). Mr Tierney’s affidavit also annexed certain documents produced under subpoena from the Brisbane Archdiocese, the NSW/ACT Professional Standards Office, and a bundle of documents provided in response to a Notice to Produce issued by the plaintiff.
From the affidavits of Mr Tierney, it was found that as early as 1963, his superiors noticed that Father Anderson preferred the company of lay people, “especially of boys”, to his brother priests. Complaints had also been made by parents of other boys and he was suspended from office and directed to undertake psychiatric treatment in Sydney. His time at the Lismore parish was limited to late 1968 and early January 1969. Mr Polin, for the defendant objected to the five evidentiary statements from other alleged victims relied upon by the plaintiff asserting that it was not permitted.
Issue:
Whether or not the proceedings would be oppressive or would bring administration of justice into disrepute.
Applicable law:
Children (Criminal Proceedings) Act 1987 (NSW) s 15A - provides for who may be entitled to anonymity.
Civil Procedure Act 2005 (NSW) s 67 - provides that subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.
Evidence Act 1995 (NSW) s 97 - provides the conditions permitting the admission of tendency evidence
Limitation Act 1969 (NSW) s 6A - removed the limitation period for actions for damages arising out of an act or omission constituting child abuse.
Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 - held that the introduction of s 6A Limitation Act does not affect the principles governing the grant of a permanent stay as s 6A(6) “expressly preserves the power of the Court to grant a stay” in appropriate circumstances.
Estate Judd v McKnight (No. 4) [2018] NSWSC 1489 - relied upon by Mr Black to place heavy emphasis upon the “credible account” given by the plaintiff, supported as it is by the similarities of the accounts given by the other victims and the large bundle of documents which established that, to the knowledge of his superiors in the Lismore Diocese, Father Anderson was identified as a paedophile by 1965 who was resistant to treatment.
Moubarak bht Coorey v Holt [2019] NSWCA 102 - where the Court’s power to make such orders in circumstances such as those presented by the plaintiff’s claim is beyond doubt.
Analysis:
A substantial part of the documentary evidence relied upon by the plaintiff relates to the Church’s dispensation of Father Anderson from his priestly vows in 1971. It was submitted that one reason behind laicising Father Anderson were concerns held by his brother priests regarding his pedophilic predisposition towards young boys. Monsignor Ryan’s response was to stand Father Anderson down as assistant priest and direct him to consult a psychiatrist in Sydney.
The defendants provided two affidavits of a Mr Gregory Bernard Isaac, the current Secretary and Diocese Business Manager for the Lismore Diocese which laid the foundation for the defendant’s permanent stay application proving that virtually all of the relevant senior persons who could have provided instructions and given evidence in the current proceedings have since died.
The defendant asserts that a fair trial could no longer be had because the plaintiff stated that the assault occurred when she returned home from netball which is a winter sport and Father Anderson was appointed to Lismore during summer months. Furthermore, Father Anderson was no longer available to deny the assault. A circumstance in which a permanent stay will be appropriate is where it is demonstrated, on the balance of probabilities, that it would not be possible to obtain a fair trial. However, a fair trial is not synonymous with a perfect trial. The death of witnesses “who may be regarded by a party as important will not mean that a fair trial cannot be obtained".
Conclusion:
The Court concluded that with respect to the detailed arguments presented by the parties, it is not necessary to embark upon a detailed analysis concerning the principles governing a grant of a permanent stay of proceedings in cases of child sexual abuse governed by the provisions of s 6A Limitation Act. The Court odered to dismiss the defendant’s Notice of Motion of 18 November 2020. The matter is listed for directions before Garling J on 1 October 2021 at 9:15 am. The plaintiff’s costs of the application are her costs in the cause.
