Claims for alleged assault by priest

The appellant brought proceedings against the Diocese for alleged abuse by a priest that was said to have occurred in 1968 when she was 14 years old.

The Diocese sought a permanent stay of proceedings as an abusive process because it would be unfair to the Diocese given the death of the priest who was alleged to have perpetrated the sexual assault.

The primary judge dismissed the Application for a permanent stay, but the New South Wales Court of Appeal granted leave to appeal, allowed the appeal, and permanently stayed the proceedings.

The plaintiff appealed.

Decision

Appeal allowed (by majority) – 1 November 2023

Ratio

A majority of the court found that the Court of Appeal was wrong to conclude that there could be no fair Trial of proceedings.

The plurality (Kiefel CJ, Gageler, Jagot JJ) for the appeal raised two issues, the first being the applicable standard for appellate review of an order of a court permanently staying proceedings and secondly, whether these particular proceedings involve an abuse of process justifying a permanent stay.

The plurality found that the applicable standard for appellate review is the “correctness standard” identified in Warren V Coombes¹ although dissenting, Gleeson J agreed with the plurality on this point.

On the second issue, the plurality found, giving six separate reasons, that the Court of Appeal had been wrong to conclude that there could be no fair trial of the proceedings.

Relevantly, it was found that the death of Father Anderson in 1996 did not prevent the Diocese from investigating and establishing to its satisfaction that the complaints of sexual abuse made by him while he was a priest were substantiated.

There was evidence that Father Anderson had sexually abused boys while a priest well before the alleged sexual assault of GLJ occurred and there was documentation evidence that other priests had attempted to engage with Father Anderson about his “problem” with boys, including arranging for him to see a psychiatrist.

The plurality found that there was already available a considerable body of documentary evidence of arguable relevance such that a trial would not be unfair (Steward J and Gleeson J) disagreed on the correct evaluation of whether a fair trial was possible.

Footnotes
¹ [1979] HCA9; (1979) 142 CLR 531 at 552