Express Law No. 320

Implications

The High Court’s decision illustrates the high bar that must be met for a court to be satisfied that proceedings are exceptional so as to justify a permanent stay in the context of personal injury claims alleging historical child abuse.

The decision is significant because it clarifies the nature of a decision by a court to permanently stay a proceeding as an abuse of process, and the standard of appellate review that is applicable to such a decision.

The decision is particularly relevant to agencies that handle claims relating to historical institutional abuse. It suggests that courts will be less receptive to parties pleading delay or the effluxion of time and a resultant loss of evidence in support of an application for a permanent stay in such cases. Whilst the Court’s decision drew on s 6A of the Limitation Act 1969 (NSW) – which removes the time bar for personal injury claims resulting from child abuse – all Australian jurisdictions have comparable provisions.

Background

GLJ alleged that in 1968, when she was 14 years old, she was sexually abused by a Catholic priest ([5]). In January 2020, GLJ commenced proceedings against the Trustees of the Roman Catholic Church for the Diocese of Lismore (Diocese) in the Supreme Court of New South Wales for damages for personal injury. Although the proceedings were commenced 52 years after the alleged abuse, s 6A of the Limitation Act 1969 (NSW) means that claims of this nature are not subject to any limitation period.

The Diocese sought that the proceedings be permanently stayed pursuant to s 67 of the Civil Procedure Act 2005 (NSW) or dismissed pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) on the basis that the proceedings were an abuse of the processes of the Court ([8]). The Diocese submitted that there could not be a fair trial, because virtually all senior people in the diocese who could have provided instructions or given evidence had died ([9]).

The primary judge in the Supreme Court of New South Wales rejected the Diocese’s arguments and declined to permanently stay the proceedings. The Diocese appealed from the decision.

The New South Wales Court of Appeal proceeded on the basis that the primary judge’s decision not to stay the proceedings was a discretionary one. In accordance with House v The King (1936) 55 CLR 499, the Court of Appeal identified an error of principle in the reasoning of the primary judge, and on that basis, it re-exercised the power to permanently stay the proceedings and granted a permanent stay.

The High Court’s Reasoning

The appeal to the High Court raised two questions: what is the applicable standard for appellate review of a decision to permanently stay proceedings as an abuse of process, and did the particular circumstances of the appellant’s proceedings involve an abuse of process justifying a permanent stay of the proceedings ([1])?

The decision to stay a proceeding as an abuse of process is not a discretionary one, and so the standard of appellate review is the correctness standard.

The High Court unanimously held that a decision to permanently stay proceedings on the ground that they are necessarily unfair, or so unfairly and unjustifiably oppressive as to constitute an abuse of process, is an evaluative decision, but not a discretionary one (Kiefel CJ, Gageler and Jagot JJ at [15], Steward J at [95]-[96], Gleeson J at [161]-[162]). The Court held that there is only one legally permissible answer to an application for a permanent stay, because ‘[p]roceedings either are or are not capable of being the subject of a fair trial or are or are not so unfairly and unjustifiably oppressive as to constitute an abuse of process’ ([15]). On that basis, a judge must stay such proceedings which amount to an abuse of process ([26]). This principle extends at least to proceedings which are an abuse of process because they are brought or maintained for an improper purpose ([24]).

Because the decision to stay a proceeding as an abuse of process is not a discretionary one, the standard of appellate review of such a decision is the ‘correctness standard’, rather than the House v The King standard that requires an appellate court to identify an error of principle in the primary judge’s reasoning.

Only an exceptional case justifies a permanent stay of proceedings, and the loss of evidence by the effluxion of time in a claim resulting from historical child abuse is not exceptional.

The majority held that the grant of a permanent stay to prevent an abuse of process involves a decision that permitting a matter to go to trial and the rendering of a verdict would be irreconcilable with the administration of justice through the operation of the adversarial system ([3]). For that reason, it is only in an exceptional case that a permanent stay will be justified ([3]).

The majority considered whether GLJ’s proceedings were ‘exceptional’ in the context created by s 6A of the Limitation Act 1969 (NSW), which provides, relevantly, that claims for personal injury resulting from child abuse are not subject to any limitation period under the Act.

While the majority recognised that ‘justice delayed is justice denied’ ([35]), they found that by removing the limitation period in respect of claims resulting from child abuse, s 6A creates a ‘new legal context’ in which s 67 of the Civil Procedure Act 2005 (NSW) and the court’s inherent power to permanently stay proceedings can be exercised ([4]). In that new context, the ‘passing of time… is no longer a potential aspect of the interests of justice relevant to the exercise of the power to permanently stay [this kind of proceeding]’ ([41]).

The majority found that a permanent stay should not be granted unless there was ‘nothing that a trial judge can do in the conduct of the trial [to] relieve against its unfair consequences’ ([48]). They noted that in enacting s 6A of the Limitation Act 1969 (NSW), the Parliament ‘ensured that the potential injustice to the person claiming to have suffered from child abuse of not being able to bring their claim, and the concomitant undermining of public confidence in the administration of justice from that circumstance, presumptively trumped the potential prejudice and injustice that might be caused by the passing of time’ ([49]). The majority noted that common law courts have developed techniques addressing the problems in civil trials with the recollection of events which occurred long ago ([59]).

Accordingly, in this class of case, the fading of memories and loss of evidence are routine and unexceptional ([50]), and therefore cannot attract the ‘quality of exceptionality’ which is required to justify the extreme remedy of the grant of a permanent stay ([52]). In relation to GLJ’s proceeding, the Court found there was sufficient evidence for the proceeding to go ahead.