Abuse Law – 2023 Legal Wrap up
2023 has been a momentous year concerning historical child abuse claims. A number of significant developments have occurred in relation to the development of the law in this area.
Senior Associate, Hassan Ehsan discusses a number of these:
Permanent Stays: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 – A new world
On 1 November 2023, the High Court of Australia handed down its long-awaited decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32.
GLJ (The victim’s name being anonymised) commenced Court proceedings in the NSW Supreme Court against the Catholic Church claiming damages for injuries arising as a result of the sexual abuse that she suffered by Father Anderson.
Father Anderson was a priest in Lismore NSW. GLJ was aged 14 at the time that she was sexually assaulted by Father Anderson.
Father Anderson died in 1996. GLJ came forward with the allegations after the death of Father Anderson.
The Catholic Church argued that it could not get a fair trial for a number of reasons including the following:
- That Father Anderson had died in 1996.
- The abuse had occurred some 55 years prior. And
- There were no other material witnesses that could give evidence.
As a result, it sought a permanent stay of GLJ’s claim for compensation. Effectively, it sought to have GLJ’s case thrown out and blocked permanently. At first instance, it was not successful in doing so, however on appeal, the NSW Court of Appeal granted the appeal and permanently stayed GLJ’s claim.
GLJ ultimately appealed to the High Court. This was the first time that the High Court had considered a permanent stay in a historical child abuse context.
The Decision – What does it mean for Victims?
The High Court allowed GLJ’s appeal and overturned the permanent stay which had been granted by the NSW Court of Appeal.
The High Court set a new standard calling it ‘a new world’ when considering what a fair trial means in historical child sexual abuse claims. It found that when the NSW Government introduced legislation to remove limitation periods from historical child abuse claims, the Government could not have intended to on the hand, remove one legal barrier for victims but on the other hand, accept that the common and expected effects of the passing of time could constitute an exceptional circumstance and allow for Courts to on that basis, permanently stay claims.
Chief Justice Kiefel (as she as then) and justices Gageler and Jagot stated that the NSW Court of Appeal was wrong to conclude that there could be no fair trial.
Permanent Stays have been a tactic that many defendants have frequently used in an attempt to force victims to settle for reduced monetary amounts.
The GLJ decision has changed the landscape in how historical child abuse compensation claims are to be run.
The impact of the GLJ decision will mean that the threat of a permanent stay by a defendant entity may not have the same weight as it perhaps did prior to GLJ.
Many victims have now come forward to MEJ seeking to have claims that they settled previously (where a permanent stay was threatened) to be re-opened.
Calls for Legislative Reform regarding permanent stays.
The calls for legislative reform following the GLJ decision have continued to grow stronger with organisations such the Australian Lawyers Alliance and the Grace Tame Foundation calling for the eradication of permanent stays. The legislative reform will seek the eradication of permanent stays and for the re-opening of former settlements which were done so under the threat of a permanent stay.
In November, the NSW Statement Parliament agreed to a motion addressing that permanent stays should not be weaponised.
Further information about the motion can be found here – https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/HANSARD-1820781676-94093/link/92
The GLJ decision has been a big victory for victims.
It is anticipated that further development will continue in 2024 concerning permanent stays. MEJ are now assisting with a push for legislative reform to have permanent stays abolished.
Vicarious Liability
A common argument raised by Defendants in clergy cases is that they cannot be held vicariously liable for the criminal conduct of clergy members as they are not considered employees. Defendants argue that for them to be held vicariously liable, at the very least, an employment relationship needs to exist.
In an Australian first, the Victorian Supreme Court in 2021 held that the Diocese of Ballarat was vicariously liable for the criminal conduct of Father Bryan Coffey (Coffey). The Court did not accept that the existence of an employment relationship was the only basis upon which vicarious liability could be imposed upon the Diocese in relation to the actions of Coffey. The Court amongst other aspects considered:
- The relationship between Coffey and Diocese
- The control exercises by the Diocese or the Bishop over Coffee in his role as an assistant parish priest.
- The opportunity the Diocese provided to Coffey to abuse his power or authority.
The Diocese appealed to the Victorian Supreme Court of Appeal. On 3 April 2023 the Court of Appeal rejected the appeal on a number of grounds. It held that:
“it’s quite clear that the role of Coffey, presenting as a priest to the local parishioners invested him with a substantial degree of power, authority and respect. As such, that role, in itself, engendered a significant degree of respect and trust in him by his parishioners, enabling him to achieve real intimacy with the respondent’s family, and with the respondent in particular”.
The Diocese was given special leave (appeal) by the High Court of Australia to hear the case. The High Court will now provide further guidance as to the law of vicarious liability arising in historical child sexual abuse claims in particular, where clergy members are involved.
The law in relation to vicarious liability continues to develop and is on the move.
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