Distressing content warning: please note that this blog discusses child sexual abuse, which may be triggering for some readers
A recent High Court of Australia decision sets a significant precedent for survivors of child sexual abuse. By a narrow majority, the High Court ruled that a permanent stay of proceedings would not be granted in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 (‘GLJ’). GLJ is an important decision for New Zealand law. It’s persuasive case law in instances where defendant institutions (such as a church or school) attempt to permanently stop legal proceedings if, for example, an alleged perpetrator has passed away.
We await the final report of the Royal Commission of Inquiry into Abuse in Care, particularly regarding legislative change for time limitations for survivors of child sexual abuse to commence proceedings. Read on to learn more about GLJ and what it may mean for New Zealand law.
Background – Australian time limitations and stays of proceedings
Australia’s Royal Commission into Institutional Responses to Child Sexual Abuse presented its report in 2017. Its many recommendations included the removal of statutory limitation periods for people bringing damages claims for child sexual abuse in institutional settings. Every state and territory passed legislation in response to the recommendations. This was a significant legal development and paved the way for many survivors of child sexual abuse to now be able to pursue civil claims for compensation.
Survivors who shared their stories with the Australian Royal Commission took on average almost 24 years to tell someone of their childhood sexual abuse. Given the passage of time many alleged perpetrators of historic sexual abuse pass away before civil proceedings are issued. Before trial, many defendants in historical sexual abuse claims seek a ‘permanent stay of proceedings’ on the basis that a fair trial isn’t possible because key witnesses have died.
What is a stay of proceedings?
A stay of proceedings is a legal term referring to a court’s discretion to suspend proceedings to a specified date, indefinitely or permanently. This would be to, for example, avoid circumstances that are so oppressive that to continue could amount to an abuse of process. If a court grants a permanent stay of proceedings, those proceedings are stopped.
The onus of proving that there are oppressive circumstances is on the party seeking the permanent stay. In the case of GLJ, this was the Trustees of the Roman Catholic Church for the Diocese of Lismore (‘the Diocese’). A court will only exercise its discretion and grant a stay of proceedings in exceptional cases. The decision must be one of last resort on the basis that no other option is available, than to suspend proceedings.
The precedent set by the High Court in Australia in GLJ is that a permanent stay of proceedings remains a decision for exceptional circumstances. The death of the alleged perpetrator of child sexual abuse (and other key witnesses) did not warrant a permanent stay of proceedings.
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore
Briefly, the details of GLJ are:
- GLJ was raised in Lismore in the Catholic faith to believe that priests were God’s earthly representatives
- In 1968 when GLJ was 14 years old, her father was seriously injured in a motorcycle accident
- GLJ alleges that the Diocese directed a priest to attend her home to provide pastoral and spiritual support and guidance
- GLJ alleges she was sexually abused by the priest in her own home
- GLJ commenced proceedings in the New South Wales (NSW) Supreme Court in 2020, around 52 years after her alleged sexual abuse occurred
- The Diocese filed a motion seeking a permanent stay of proceedings, on the basis that a fair trial was not possible given the deaths of key witnesses, including the alleged perpetrator
- GLJ’s alleged perpetrator had died in 1996, and other key witnesses had also passed away prior to commencement of proceeding
- The NSW Court of Appeal had permanently stayed the proceedings on the basis that a fair trial was not possible and would be an abuse of process
- GLJ appealed that decision to the High Court
The majority of the High Court recognised that while the Diocese had lost its opportunity to consult with the perpetrator, it could sufficiently rely on circumstantial information, documentation and evidence during the proceedings. The Court did not consider the circumstances of this case warranted a permanent stay of proceedings.
What does this mean for New Zealand survivors of child sexual abuse?
New Zealand’s Royal Commission Inquiry into Abuse in Care is ongoing, with its final report and recommendations anticipated in March 2024. Shine Lawyers New Zealand has made submissions to the Royal Commission of Inquiry into Abuse in Care for changes to time limitation legislation, similar to Australia’s legislative changes. This will remove barriers for New Zealand survivors of historic child sexual abuse to commence civil proceedings to claim compensation for their injuries (both physical and psychological).
If these legislative changes to time limitations can be made, GLJ will be persuasive case law in New Zealand where defendant institutions attempt to avoid proceedings by seeking a permanent stay of proceedings.
Legal service and support from Shine Lawyers New Zealand
We have a strong understanding of the vulnerable state of many survivors of child sexual abuse. We recognise the importance of ensuring all claims are run respectfully and with empathy. Contact Shine Lawyers for an obligation-free and confidential discussion about how we can support you to make a compensation claim.
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