(AUSTRALIA)
Australian Broadcasting Corporation - ABC [Sydney, Australia]
November 1, 2023
By Louise Milligan
Imagine that after decades of silence, inspired by a groundbreaking royal commission, you finally pluck up the courage to come forward to tell your story that as a young teenager, you were abused by a priest — a man you then thought to be God’s representative on earth.
Imagine you then go to court to argue that the Catholic diocese should have done more to stop that priest, whom it knew had multiple other victims, from abusing you.
But imagine the diocese then argues because the priest is dead, that places it at a dreadful and inconvenient disadvantage — it can’t ask the priest if he abused you, it says, even though he refused to cooperate in relation to other allegations.
A court finds you shouldn’t even have the right to stand before a judge and make your case. You can’t be heard. What’s known as a permanent stay is granted and your case is shut down for good.
Go away.
That’s essentially what happened to a woman who can only be known as “GLJ”.
On Wednesday, three of five justices of the High Court of Australia found that reasoning was wrong, overturning a decision of the NSW Court of Appeal and rejecting a string of lower court precedents that granted permanent stays to stop victims from suing institutions.
“The Court of Appeal was wrong to conclude that there could be no fair trial of these proceedings,” Chief Justice Kiefel and Justices Gageler and Jagot found in their majority judgment.
The term “landmark case” gets bandied around a lot, but the importance of GLJ v The Trustees of the Diocese of Lismore to the survivor community cannot be overstated. Some contacted me over recent days to say they felt sick with anticipation.
Tears of relief, hope for humility
At 10 o’clock on Wednesday morning, tears of relief were wept in the homes of those survivors and in the chambers of lawyers who represent them.
Immediately, the tide began to turn against the institutions that employed and harboured child sexual offenders.
As I write, solicitors are busily firing off letters to the lawyers who act for institutions.
“We are contacting institutions who have used the threat of a permanent stay to negotiate grossly unfair settlements — much like they did before the [child abuse] royal commission — asking them to re-open cases and agree to a fairer outcome,” says Michelle Martin, a Sydney solicitor who acts for many survivors.
In many of those cases, survivors have accepted settlements that are a fraction of what they might have received in damages.
Their lawyers believed they had little chance of success given a trend towards courts, particularly in NSW, granting permanent stays to institutions because, the courts found, if an alleged abuser was dead or had dementia, any case against the institution amounted to an abuse of process because it was too oppressively unfair for the institution to have to run the trial.
First Nations woman Miimi Morris brought a claim against the Diocese of Armidale, alleging she was abused by a priest while living in an orphanage as a young child. Police had charged the priest with abusing dozens of Aboriginal children in his care, including Miimi, but he died six months before his trial was due to begin.
But just like GLJ, Miimi, who in May featured in our Four Corners story on this subject, Hiding Behind Tombstones, was horrified to see the diocese threaten her with a permanent stay.
“I was just so relieved [when the High Court judgment was announced] — I’ve been so anxious about this decision,” Miimi says.
“I hope they will now take responsibility and fairly settle my case.
“I hope they have some humility about all this and I hope they consider the length of time they have dragged this out and the stress that this has caused.”
Miimi’s lawyer, Alessandra Pettit, told me on Wednesday that she had written to lawyers for the diocese to ask them to withdraw their ongoing threat of a permanent stay and that she was doing the same in other cases she is fighting against institutions.
For thousands of survivors a door has opened
Since 2018, 20 permanent stays have been granted in historical child abuse cases in courts around the country — 12 of them in NSW. By contrast, courts have only refused to grant stays in eight cases — two of which have been overturned on appeal in favour of the institution.
But other than those plaintiffs who went to court, there are many, many more who never bothered, because lawyers for the victims were concerned that it was a fruitless exercise.
The decision of the majority of the High Court now will now enable thousands of survivors who were on tenterhooks to be able to sue.
Solicitor John Rule says there are hundreds of clients from his firm, Maurice Blackburn, alone who have permanent stays hanging over their claims.
“The effect of the court’s judgment for defendants is that you can’t spend decades covering up abuse, not recording or acting on complaints, not referring abuse to police and silencing victims and their families and then go along to court and act hard done by because you say there’s a lack of evidence available to you,” Rule says.
GLJ is for now choosing to remain anonymous, but in a statement through her solicitor, Sam Tierney, says she is “obviously extremely relieved and delighted”.
“GLJ hopes this landmark decision will also be able to help others right across Australia to bring their claims before Courts despite of the Catholic Church again seeking to mount technical legal defences to their claims,” the statement says, adding that she hopes “the Catholic Church will take this opportunity to reflect on the morality of its continuing to mount these technical legal defences”.
GLJ and cases like it have inspired former Australian of the Year, Grace Tame, to use her foundation to campaign state and federal attorneys general for law reform to be enacted by parliament.
“We … call for all institutions that may be the subject of child sexual abuse claims to cease using permanent stays to threaten or block survivors,” Tame said on Wednesday, “and for all institutions that have current claims where they are relying on a permanent stay application to drop those applications”.
Solicitor Michael Bradley, who is working in partnership with Tame’s foundation, says the High Court decision overrules all the current precedents and shows that lower courts “have been applying the wrong test because they haven’t paid proper regard to parliament’s intention and the principle that the Royal Commission established that these survivors should have their day in court”.
‘An incredibly powerful judgment’
Recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse led to reforms by state governments to remove legal barriers that survivors had faced in accessing justice — removing the statute of limitations so survivors weren’t barred by the passage of time, and abolishing the so-called “Ellis Defence” which prevented the trustees of the Catholic Church from being sued because they had no legal personality and didn’t employ the priest.
“Parliament ensured that the potential injustice to the person claiming to have suffered from child abuse of not being able to bring their claim … presumptively trumped the potential prejudice and injustice that might be caused by the passing of time,” the majority in GLJ ruled today.
“It’s an incredibly powerful judgment — a very powerful signal to the lower courts that they’ve got it all wrong and it’s a big signal to the institutions and their insurers to not try this on,” Bradley says.
GLJ alleged that in Lismore in 1968, when she was 14, she was sexually assaulted by the now-deceased Father Clarence Anderson.
“The Diocese was aware of and had acted on the fact that Father Anderson had sexually abused boys while a priest well before the alleged sexual assault of GLJ occurred,” the High Court majority said in today’s judgment.
“There is documentary evidence that priestly colleagues and superiors of Father Anderson had repeatedly tried to engage with him about what was then described as his ‘problem’ with boys, including by arranging for him to see a psychiatrist, and that Father Anderson consistently refused to recognise that he had a ‘problem’, leading to his request for laicisation in 1971.
“What then has truly been lost to the Diocese by reason of Father Anderson’s death?”
The court also said that it could be reasonably inferred that Anderson would have denied GLJ’s allegations.
“He denied any ‘romantic interest’ in girls while under oath in 1971.
“It may [also] be inferred from the documentary evidence both that other allegations of sexual abuse of boys had been put to Father Anderson while he was a priest, and that Father Anderson denied any wrongdoing or rebutted any suggestion of impropriety.”
That is, the church’s argument that the priest might have been somehow helpful to it in investigating GLJ’s allegations comprehensively failed.
Complainants just want to be heard
Sam Tierney can understand why permanent stays should be allowed in exceptional circumstances, but says he is “particularly perplexed” by the reasoning of the church to mount the defence it did in her case “where there exist contemporaneous church records of the dead alleged perpetrator having abused a number of other children”.
“In simple terms, the whole point of having a legal system is that people should, absent an exceptional reason, be able to take their complaints before a judge and say, ‘this is my story’,” Tierney says.
“It is then up to the judge to listen to that complaint and make a decision about whether they accept the complaint happened or not.
“We have learned from an extremely expensive Royal Commission that these cases of alleged childhood sexual abuse generally arrive many decades later.
“The cases are often very difficult cases for people to run because you are talking about serious and confronting things that happened decades earlier.
“Our clients just want the opportunity to be able to bring their case before a judge to be heard and determined.
“After the Commonwealth spent $343,000,000 in a Royal Commission which uncovered and spoke openly and frankly about the damage caused by childhood sexual abuse, if you asked the average person on the street whether they consider that survivors should have the right to have their day in court to just argue their case, I’m sure they almost all of them would say ‘yes, they should’.”
As Sydney barrister James Masur, who practices exclusively in this area of the law, argued in the Australian Law Journal in August, the run of lower court precedents in these cases risked “locking out an entire class of plaintiffs from having their legally valid claims determined on their merits at court — despite this being the very objective recommended by the Royal Commission”.
“…[D]espite all that has been said about the rights of survivors of institutional abuse as children to seek legal redress, are governments content to accept the creation of a new class of litigants whose claims, though no fault of their own, will be denied a hearing on the merits?” asked Masur, who now sees the need for parliaments to make legislation to codify and further clarify the finding in GLJ.
The push for law reform
The majority of the High Court in its GLJ judgment quotes former NSW Attorney-General Mark Speakman’s speech to parliament:
“The Royal Commission … made profound revelations about our society,” it says.
“‘Over the five years of its inquiry, we learnt about the thousands of children in institutions who have been sexually abused’, reflecting ‘society’s failure to protect children across a number of generations’.
“The legislative response to those revelations included implementing ‘the royal commission’s recommendation to enable survivors to identify a proper defendant to sue’.”
Four Corners contacted both the NSW and Commonwealth attorneys-general while we were researching Hiding Behind Tombstones, and both said they were awaiting the judgment of the High Court in GLJ.
Greens Senator David Shoebridge has been actively campaigning for law reform.
Michael Bradley says one option now open to governments is to legislate to allow old cases to be reopened, as happened when the Ellis Defence was overturned, and for unfair deeds to be set aside.
One of the people who has been most nervously anticipating the outcome in GLJ is Matt Barker.
Matt told Four Corners his story of how, as an 11-year-old, his innocence was stolen by a Scout master from Sydney’s west who abused him and other boys.
While the Scout master was convicted in relation to multiple offences against Matt and the other boys, and is now in jail and, crucially, willing to give evidence that Scouts NSW should have done more to stop him, the Scouts successfully sought a permanent stay in the NSW Supreme Court because some witnesses were dead and too much time had passed.
Since his story was broadcast in May, Matt has raised $314,000 on a crowdfunding website to appeal his case.
The Grace Tame Foundation is supporting him and helping to lobby politicians for law reform. “Being awarded civil compensation is not like winning the lottery,” Tame said on Wednesday.
“For many survivors, it is our only means of steadying ourselves after a lifetime of financial instability, job insecurity, unmet basic needs, homelessness, illness and or ongoing medical costs directly resulting from the crimes perpetrated against us.
“Survivors are certainly no match for institutions whose size, social capital, wealth and resources further skewed the pre-existing power imbalance.
“It is impossible to level the playing field. This is not about winning cases. Nobody wins when a child is sexually abused.”
“When I woke up this morning,” Matt said, standing alongside Tame outside the NSW Supreme Court, “I wasn’t sure if I was going to be feeling angry or hopeful when I got to this point of the day — I’m very happy to say that I’m feeling hopeful.
“Sadly, my case is not unique,” he said. “Permanent stays have been used by Scouts, by schools and by religious organisations with the result that the door to justice is being slammed in the face of victims and survivors.
“These organisations have shown that they cannot be trusted to act in an ethical and moral way when it comes to their treatment of victims and survivors of child sexual abuse.
“So, our lawmakers must act. Our politicians must act now.
“They must remove the ability for these cruel organisations to weaponise the permanent stays that leave survivors of child sexual abuse shut out from justice once again.”
The Diocese of Lismore told the ABC it would not be commenting on the High Court’s decision at this point.