CM v Trustees of the Roman Catholic Church for the Diocese of Armidale

Court of Appeal (NSW)|2023-12-04|Before: Leeming JA, Payne JA, Harrison CJ

bour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34 Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: J Beal et al, New Commentary on the Code of Canon Law (Paulist Press, New York, 2000) Category: Principal judgment Parties: CM (First Applicant) EM (Second Applicant) Trustees of the Roman Catholic Church for the Diocese of Armidale (Respondent) Representation: Counsel: S H Hartford-Davis and B Smith (Applicants) L Gyles SC and D Stretton (Respondent)

Solicitors: Koffels Solicitors & Barristers (Applicants) Wotton + Kearney (Respondent) File Number(s): 2023/298291 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2023] NSWSC 1000 Date of Decision: 23 August 2023 Before: Cavanagh J File Number(s): 2022/222779; 2022/223057

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

LEEMING JA: The applicants are brothers whose identities cannot be disclosed by reason of s 15A(1) of the Children (Criminal Proceedings) Act 1987 (NSW). Their names were anonymised as CM and EM in the proceedings in the Common Law Division and I shall do the same. They seek leave to appeal from orders granting a permanent stay of separate proceedings brought by each of them, arising out of child sexual abuse which they say was committed some 47 years ago by Father David Joseph Perrett: CM v Trustees of the Roman Catholic Church for the Diocese of Armidale; EM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWSC 1000.
No claim was brought against Father Perrett prior to his death in July 2020. Nor has a claim been brought against his deceased estate. The respondent is (despite the reference in its name to "trustees") a body corporate constituted by s 4(2)(b) of the Roman Catholic Church Trust Property Act 1936 (NSW), in which Church trust property vests and therefore against which execution in the event that a judgment is obtained is possible. It is not suggested that the respondent in its own right can be liable to the applicants. Instead, this Court was told that it had been agreed between the parties that the respondent was the proper defendant for the purposes of such liability as the Bishop of the Diocese of Armidale might have, thereby resembling what would occur if the regime in Division 4 of Part 1B of the Civil Liability Act 2002 (NSW) were applicable and application had been made for the appointment of a "proper defendant". I do not express any view one way or the other whether the regime applied. The reason for mentioning this is to indicate that one of the causes of action advanced by each brother in the court below, and the only cause of action sought to be advanced in this Court, is one which asserts that the Bishop of Armidale is vicariously liable for the tortious conduct of Father Perrett in 1976.
The principal proposed grounds of appeal are that the primary judge erred in concluding that it was not possible to have a fair trial on (a) whether the alleged abuse occurred and (b) whether the Bishop (and thus, the respondent) is vicariously liable for Father Perrett's tortious acts.

Procedural background

The primary judge gave judgment very promptly on 23 August 2023 following a three day hearing on 14, 15 and 16 August in the course of which there was relatively lengthy cross-examination of the respondent's solicitor and the Chancellor of the diocese, and more limited cross-examination of the solicitor who had formerly acted for Father Perrett, Mr Greg Birtles. For although so far as the evidence discloses no notification of a civil claim was ever made against Father Perrett or any emanation of the Roman Catholic Church while Father Perrett was alive, both brothers did make police statements before Father Perrett died, leading to his being charged and interviewed in 2017. Mr Birtles took instructions from Father Perrett in some detail, evidently asking for his client's response to each paragraph of the applicants' statements.
In addition to the document recording those instructions, a very large number of documents had been produced either by the respondent or on subpoena, and it seems that very many were tendered before his Honour (while only around 1,000 pages were included in the appeal books, it seems that the court book before his Honour had at least 2,982 pages).
The primary judge determined the application with extreme expedition, doing so at the applicants' express request notwithstanding that the appeal which became GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 was reserved. Ordinarily, knowledge that the High Court would deliver judgment within 10 weeks (for Kiefel CJ participated in the appeal, and thus it was known in mid-August that the High Court judgment would be delivered no later than early November) would be good reason to delay an interlocutory ruling, lest there be needless cost and consumption of the parties' and public resources. The urgency was driven by the unfortunate medical prognosis of one of the brothers, CM, who suffers from stage four pancreatic cancer and has a life expectancy of a handful of months. It was accepted that the stay granted in respect of the other brother's proceeding stood or fell with the stay of CM's proceeding, and in what follows I shall mostly refer only to CM's claim.
The application for leave to appeal was brought reasonably promptly, just over four weeks after orders were made by the primary judge, and the parties have co-operated to achieve an early concurrent hearing some 10 weeks thereafter.
The primary judge addressed each of the three causes of action sought to be advanced by the brothers, all of which arose from, on their case, an indecent assault perpetrated by Father Perrett in December 1976, when they were 9 and 10 years old. Both brothers complain that on one evening on a camping trip with indigenous boys from an Aboriginal Mission, Father Perrett came into the tent and lay down next to them, he rubbed the boys' stomachs and laid his hands down each boy's pants holding onto his penis. In the case of EM it is also alleged that Father Perrett asked him to strip naked and took hold of his shoulders whilst he was naked. It was not alleged that either brother saw the assault upon the other, or spoke to each other about what occurred for many years.
There are thus two critical questions of primary fact which bear upon the vicarious liability of the Bishop (and, therefore, the respondent trustees) in respect of the claimed assaults by Father Perrett. The first is whether the assaults as alleged or something like them occurred. The second is whether the relationship between the Bishop and Father Perrett in connection with the camping trip is such as to render the Bishop vicariously liable for torts committed by the assistant priest. As will be seen, the documents suggest there were two distinct types of camping trips in which Father Perrett was involved: one included altar servers, which was concededly an element of the religious instruction under the auspices of the church; the other seems to have involved disadvantaged Aboriginal youth.

Evidence emerging from Father Perrett's prosecution and sentencing in 1996

There was nothing in the evidence to suggest that anything Father Perrett did in 1976 came to the attention of anyone in the church for around two decades. In 1980, Father Perrett was appointed as the parish priest in Guyra some 30-40km to the north, and subsequently as the parish priest at Walgett, further still removed from Armidale. Even so, both parishes were within the Diocese of Armidale, and he remained subject to the authority of the bishop of that diocese. Ultimately Father Perrett pleaded guilty in 1996 to two charges of indecent assaults upon two young boys in 1991 and 1992 or 1993, and two further charges of indecent assault and common assault upon a third boy in 1983.
The documents tendered from the time fall into two categories. The first is the documents which were used in the proceedings on sentence. The second is what appears to have been an internal church investigation, which led to Father Perrett being suspended from the priesthood. Both throw some light on the vacation camps at which those assaults are alleged to have been committed.
When being sentenced in the District Court, Father Perrett gave this evidence on 1 November 1996: Q. [Y]ou were appointed assistant priest in Armidale from 1969 to 1980? A. Yes. Q. And I think with Sister Rita Steptoe you established an Armidale association for the Aboriginal Community Development? A. Yes sir. Q. You in fact and Sister Rita, established the Aboriginal Youth Club which is still going isn't it? A. Yes sir. Q. And that was particularly to assist underprivileged and poorly resourced families? A. (No verbal reply). Q. You organised vacation camps for Aboriginal children? A. With Sister Rita, yes. Q. In 1973 Bishop Kennedy, that's the Bishop of Armidale asked you to go to Holdsworthy as an Army Chaplain? A. Yes sir. Q. And there was a deputation of aboriginal people to the Bishop begging him to let you stay? A. Yes sir. Q. And you did stay? A. Yes sir. Q. I think you were the foundation captain coach of the Narwan Football Team? A. Yes sir. Q. An all aboriginal team. Of course, in addition to your work with aboriginals you were doing a great deal of parish work for non aboriginals? …
Father Perrett also agreed that he "had a bus … which [he] used to take young lads to football matches and bush outings and so forth". Consistently with this, a reference dated 4 September 1996 included: He has done enormous good for youth, both aboriginal and white. He owned a small bus and would take needy families, esp. aboriginal families on camping trips. He has always shown a genuine concern for the underprivileged of our society.
Turning to the investigation within the Church, it appears to have been carried out principally by Father Wayne Peters, the Moderator, who reported directly to the Bishop. Father Peters died in 2015.
A note by Father Peters recorded that a mother "had been making allegations around Armidale that her son had been sexually abused by Father David Perrett". The note records that Father Peters spoke to her in June 1996 and was told that while her son, then aged around 13, was on a camping trip, "during the night Father Perrett had hugged him and placed his hands on top of the bed cover in the boy's genital region". It also recorded that "her son was not overly troubled by this incident", and that the Bishop had offered to speak with him and "would be prepared to assist him in taking the matter to the police authorities". It is unclear whether the son identified as indigenous or whether the camping trip was for altar servers or disadvantaged youth.
It is evident that Father Peters came to believe that Father Perrett had been abusing young boys at many places other than holiday camps. His investigation resulted in a document produced by the defendant which was described in this Court as the "Peters' memorandum". It was undated but evidently came into existence following Father Perrett's being charged but before his sentence. It stated: The case of Dave Perrett is the worst scenario. The abuse has been since the beginning of priesthood; it has been all over the place; it has been with all sorts of kids in all sorts of places. It probably involves many, many boys of a pre-pubescent age.
A separate note dated 19 July 1995 (it may be that this is an error for 1996) records Father Peters saying that the Bishop put forward two options. The first, which was Bishop Manning's "preferred option" was that he obtain a dispensation from all obligations of priesthood including celibacy and that he return to live a life of a lay person, no longer subject to the church. However, the Bishop would not force this upon him against his will. The second was that he be "totally suspended from all Priestly duties on a permanent basis", with the possible exception of saying Mass privately and "strictly on his own". It was said that if Father Perrett "does not accept Option 1 the Second Option is non-negotiable". The applicants relied on the following sentence: [Option 2] means that David Perrett remains under the jurisdiction of the Bishop of Armidale and is therefore subject to any directions that might be given from time to time.
Evidently option 2 was adopted, prior to Father Perrett being sentenced. It is also clear from the sentencing remarks in the District Court that the judge was impressed with the good work which Father Perrett had done over many years, and the severity of what his Honour regarded as extra-curial punishment imposed by his suspension from the priesthood.

The applicants' police statements and their aftermath

Much more recently, but still more than six years ago, each applicant gave statements to the police concerning the allegations of sexual assault. In May 2017 Father Perrett participated in an electronically recorded interview based on the statements made by the applicants. He was confronted with the allegations, and said that he had no comment to make. He added "I just find the whole matter absurd and I'll leave it at that". He was then aged 79, unwell, and taking 11 medications each day.
It appears that Father Perrett was charged with offences based upon the applicants' police statements, but was never required to enter a plea.
Father Perrett prepared an affidavit dated 19 February 2020, when he was 82. The evident purpose was in connection with a proposal to shift the venue of his criminal trial from Armidale to Sydney, and the affidavit addressed at length the debilitating medical conditions from which he suffered (including that his life expectancy was short - he died 5 months later). The affidavit also stated that he denied the allegations, had instructed his solicitor to enter pleas of not guilty, and had "little or no memory of the complainants".
Father Perrett also gave instructions to his solicitor in respect of the charges. Father Perrett's instructions to Mr Birtles accepted that he and Sister Rita took children on camps to Georges Creek in January every year for 20 years. He accepted that he drove them there in a bus. He agreed that he camped with the boys and slept with them in a tent. He denied the assaults.
Emphasis was given to two documents which bore upon whether the camping trips were part of his duties. The records of Father Perrett's instructions decades after the event include "I don't deny that I spent perhaps consider[able] time with Sister Rita, and that we shared the Aboriginal ministry"; the word "ministry" was said to suggest it was part of his role within the diocese under the control of the Bishop.
More contemporaneously, the letter of his appointment as Parish Priest of the Parish of Guyra, dated 8 April 1980, advised of the appointment and the duties involved, requested him to provide banking details so that he could be authorised to operate accounts, and then added as follows: I would however be grateful to you if you would still continue your apostolate among the Aborigines in the Armidale and Northern Region. Many thanks for everything you have done in so many fields of activities over the years while attached to the staff of the Cathedral. I have appreciated and enjoyed your company at the Bishop's House. Begging God's Blessing on you and your apostolate. I remain, Yours sincerely in Our Lord, (Most Rev H J Kennedy) Bishop of Armidale.
The word "apostolate" is not a word commonly used in ordinary secular English. I suspect it is not especially common in contemporary church correspondence, and I accept the trustees' point that one of the difficulties of litigation brought four decades after the letter was written is construing its meaning. Even so, it strikes me as most unlikely that the meaning of the term in 1980 was something beyond the capacity of the trustees to shed light upon. Page 530 of J Beal et al, New Commentary on the Code of Canon Law (Paulist Press, New York, 2000) records that "Apostolicam actuositatem 2 teaches that every activity of the Church which is intended to spread the kingdom of God is to be called the 'apostolate'", and that Canon 394 requires the Bishop to foster the apostolate; it seems unlikely that the word bore a significantly different meaning two decades earlier.

The pleading

The statement of claim alleges that the defendant was vicariously liable for the tortious conduct of Father Perrett. It did not identify why that was so, but both sides confirmed during the hearing in this Court that the (former) Bishop was said to be vicariously liable for the conduct of an assistant priest in the diocese (transcript, 4 December 2023, 16.15-17; 55.15-30), and I have proceeded accordingly.
The pleading also alleges that a direct duty of care was owed to the applicants, on the basis of there being a risk that a priest could unlawfully sexually assault a child in his care, and vicarious liability based on the negligence of Sister Rita, who accompanied Father Perrett on the camping trips. Nothing turns on this any longer, but it is very difficult to see how the Bishop could be vicariously liable for any alleged negligence at a holiday camp on the part of Sister Rita, who surely served at the direction of and reported to a superior in her order rather than to the Bishop. As was mentioned during the hearing, in this country two different defendants cannot be liable for the tortious act of a third person: Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34 and see Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 at [23]-[33].
I turn to the alleged vicarious liability of the Bishop for the acts of an assistant priest in his diocese. It is helpful to bear in mind the range of possibilities, in order to assess the consequences of the delay of many years between the events and this litigation. The Bishop may have directed, or encouraged, or acquiesced, or been entirely unaware of the camps. The relationship between the camps and those who ran the Mission is, on the state of the evidence at present, quite unclear. It is also unclear whether Father Perrett used his own bus and conducted the camps on his own initiative during what was formally or informally regarded as a break from his ordinary duties as an assistant priest, or whether he drove a church-owned bus as part of an outreach ministry for socially disadvantaged indigenous children whom the Bishop sought to benefit. The extent to which there was any religious content to the camp activities is unclear.
Before the primary judge, the applicants opposed the ordering of a stay of any of their causes of action. However, in this Court, the applicants proffered a condition that a grant of leave would be on the basis that the cause of action was confined to the vicarious liability for the torts alleged to have been committed by Father Perrett. The respondent said that this was a basis for refusing leave, because it involved a departure from the case presented to the primary judge.

The reasons of the primary judge

The primary judge identified the relevant principles at [62] primarily by reference to Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292, Connellan v Murphy [2017] VSCA 116 and Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37. His Honour recorded the following principles: 1. these types of applications are essentially fact driven or dependent; 2. the defendant must satisfy the Court that exceptional circumstances exist; 3. extensive delay without more would not justify a stay, although the length of time between the abuse and the pursuit of a claim may be a relevant factor; 4. the death of a witness does not, of itself, justify a stay; 5. the mere unavailability of a witness cannot be considered an exceptional circumstance; 6. the absence of documents would not, of itself, preclude the possibility of a fair trial.
His Honour noted at [20] that in Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 at [95], Mitchelmore JA had observed that the principles which apply to the grant of a permanent stay under s 67 of the Civil Procedure Act 2005 (NSW) were well-settled.
The primary judge concluded that there could not be a fair trial of any of those causes of action. Separate submissions were made to his Honour about each cause of action, and the primary judge addressed each cause of action separately (at [73]-[76], [77]-[81] and [82]-[84] respectively). It is unnecessary to address his Honour's reasoning in relation to the causes of action which are outside the scope of the application for leave to appeal.
The primary judge addressed this claim at [77]-[81]: The second aspect of the plaintiff's claim is that the defendant is vicariously liable for the conduct of Father Perrett. The High Court has not yet determined a case in which an organisation (such as the defendant) has been held vicariously liable for sexual abuse by a person under its control, such as a priest. Of course, the observations of the Court in Prince Alfred College at [80]-[81] have been referred to in a number of cases (see for example DP (a pseudonym) v Bird [2021] VSC 850; Roman Catholic Trusts Corporation for the Diocese of Sale v WCB (2020) 62 VR 234; [2020] VSCA 328 ("WCB"); SR at [146]-[158]). In WCB, the Victorian Court of Appeal observed that the determination of the question of vicarious liability for the conduct of a parish priest would substantially depend on the relevant nexus between the authority and power invested in him as a parish priest and his abuse of the plaintiff: at [151]. An important matter of fact in the [vicarious] liability claim would thus be the nexus between the authority and power vested by the defendant in Father Perrett, and the camping trips (not the altar servers camps) which he organised. The defendant submits that it is unable to obtain any instructions by speaking to the Bishop who was in authority at the time, the Church Administrator, Father Perrett, or Sister Rita, and it is unable to meaningfully engage on the issue of vicarious liability. In my view, there is merit in the defendant's submission. The fact that the camps took place does not assist in resolving the issue as to the knowledge of others, such as the Bishop or the Church Administrator, about the camps. Father Perrett engaged in other activities, such as playing rugby league and coaching the local rugby league team. Whether all of his activities could be said to be connected to his role as a priest in the diocese is in issue. I accept that the defendant is unable to obtain instructions, not just from Father Perrett, but also from other witnesses who would be critical to the vicarious liability claim.
Having found that the trustees were unable meaningfully to respond to the allegations, his Honour thereafter addressed the following substantial matters, which appear to have been at the forefront of the 3 day hearing and extensive cross-examination of the trustees' witnesses, namely whether a stay should nonetheless be refused because (a) the trustees had denied the conduct in its defence, (b) the trustees had the benefit of the instructions given to Mr Birtles, (c) what was said to have been the failure to undertake satisfactory inquiries, (d) certain claims of privilege made by the trustees, and (e) the trustee's own delay following the charges both in 1996 and 2017. Only the third of these issues was the subject of submissions in this Court, where it constituted proposed ground 3.
Finally, at [119]-[121] the primary judge addressed a separate submission made on behalf of the applicants, in the following terms: Finally, the plaintiff says that s 6A of the Limitation Act effects a substantive change to the law, investing rights in the victims of child sexual abuse. The plaintiffs submit that the intent of Parliament was to vest victims of sexual abuse with new rights to bring causes of actions, despite the fact that: (a) some defendants have long ago ceased concerning themselves about the … possibility of having to respond to a claim; and (b) some defendants would not have been aware of, or prepared for, possible claims. I do not accept this submission. The abolition of a limitation period does not vest new rights on a claimant. It just removes a potential defence or limitation on pursuing a claim. In my view, the plaintiffs' statutory construction submission rather overlooks that provisions must be read as a whole and the words must be read in the context in which they appear. It is clear that the abolition of the limitation period does not limit the Court's power to summarily dismiss or permanently stay proceedings, where the lapse of time has a burdensome effect on the defendant which is so serious that a fair trial is not possible. The very point of s 6A(6) is to make that plain. I do not accept that the introduction of s 6A in some way alters the principles which must be applied in determining an application under s 67 of the Civil Procedure Act.

The different approach advanced in this Court

Neither senior nor junior counsel who appeared for the applicants in this Court had appeared before the primary judge. The case sought to be advanced to set aside the permanent stay was substantially different from that advanced to the primary judge.
First, as noted above, the applicants did not cavil with the decision to order permanent stays of two of the three causes of action in each proceeding, namely, the direct tortious liability of the Bishop, and the claim that he was vicariously liable for the negligence of Sister Rita. Prior to the hearing, the applicants consented to a condition on the grant of leave that it be confined to the claim of vicarious liability for the tortious conduct of Father Perrett.
Secondly, this Court was taken explicitly to many documents to which the primary judge had not been taken, with a view to identifying the basis on which it would be open to the trustees to defend the allegations of assault and vicarious liability.
Thirdly, the applicants eschewed any reliance on tendency evidence before the primary judge. However, after the stay had been given, the applicants served a document that purported to be a very substantial tendency notice. Their primary position was that they sought leave to rely upon that notice at any trial in February or March 2024. Their fallback position was that the stay should be lifted, but upon terms that they should not be permitted to rely on the notice.
Fourthly, reliance was placed upon what was described as an expert report from a Victorian priest or retired priest concerning the control of Bishops. The report did not address holiday camps at all. The applicants indicated, pursuant to leave granted at the hearing, that any supplementary report from that priest would be supplied later this month, and flagged that it would deal with holiday camps. Counsel said: Father Dillon is not talking about camps in the report; I just want to acknowledge that immediately, and that's a difficulty with the material at the moment. Mitchelmore [JA] didn't deal with it, and it would be wrong in our respectful submission to deal with it as if, as Callinan J put it in Batistatos, "all the evidence is in". One doesn't assume that all the evidence is in. One analyses it from the perspective of can there be a fair trial given the availability of evidence of a generalised kind.
I shall return to the significance of this anticipated further evidence below.

The essential issue bearing upon the grant of leave

The respondent emphasised the new ways in which the case was sought to be advanced, quite differently from what had been put before the primary judge, and maintained that the consequence was that leave should be refused.
The fact that there was a concurrent hearing does not mean in this or any other case that the applicant should assume that leave will be granted. The matters raised by the respondent opposing the grant of leave are not without force, and in another case (say, where there had not been an intervening decision of the High Court) they might warrant a refusal of leave.
However, the position as I see it is as follows. There are two threshold issues. The first is whether GLJ changed the applicable principles. The second is whether the applicants are entitled to a grant of leave so as to advance a new, narrower case in relation to only one of the causes of action, and by reference to different evidence, on appeal. The issues are linked. If the principles have changed, then that is a powerful consideration favouring the grant of leave, so that the application for a permanent stay may be determined in accordance with the law as it presently is. It would be quite unsatisfactory for permanent stays to have been ordered on what is now established to be an incorrect basis, even if the way in which the case is propounded has changed. And if there is to be a redetermination of the application because principles which have since been superseded were applied, then there can be little prejudice in permitting the applicants to advance a narrower case than had been advanced at first instance. There is ordinarily no difficulty in an appeal being confined to "a subset of the case made and pressed at trial": Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (2017) 251 FCR 404; [2017] FCAFC 75 at [85]. However, the fact that the applicants now wish to advance a different broader case - by reference to a new expert report and a new tendency notice - means the case now falls in a different category, to which it will be necessary to return, principally because the consequences of the anticipated further expert evidence cannot presently be assessed.
Accordingly, at the forefront of the parties' submissions was whether GLJ altered the applicable principles.

The parties' submissions on the effect of GLJ

The applicants submitted that the reasons of the majority confined the circumstances in which a stay would be ordered, notwithstanding the express preservation of such jurisdiction by s 6A(6), by reason of the fact that the removal of limitation periods involved "a fundamental change to the legal context" or a "new reality" or a "new normative structure" or a "radically new context" (invoking the reasons of the majority at [34], [40] and [43]). They pointed out that Steward J had said at [122], that the majority's decision amounted to "the dilution of standards" which was "with respect, unsupported by authority or principle and sanctions trials which are unfair". The applicants maintained that his Honour was entirely correct to conclude that there had been a significant change.
The applicants submitted that GLJ stood relevantly for the following propositions: 1. That no discretion was being exercised when an application for a permanent stay was being determined. 2. The effect of what was said in GLJ at [18], [20] and [22] was that the focus was no longer on prejudice to the parties, but instead was on "congruence" with the system. When asked to explain, it was said that: the point we're seeking to draw from it is the focus is systemic rather than personal. It's not a matter, as our learned friends would have it, of listing forms of prejudice to the respondents that arise because of, for example, the absence of a witness. Prejudice to a party is relevant only insofar as it implicates this systemic consequence or systemic focus of the purpose of the power. 1. In determining whether a fair trial is possible, the requirements to be satisfied to the civil standard having regard to the seriousness of the issues, the principles in Blatch v Archer (1774) 1 Cowp 64, the difficulties with testimonial evidence having regard to the fallibility of human memory considered in Watson v Foxman (1995) 49 NSWLR 315, the fact that courts are not bound to accept uncontradicted evidence, and will scrutinise claims with special care when the only person who could contradict them has died, were all of considerable importance. Indeed, it was submitted that: the systemic focus of the inquiry on the integrity of the adversarial system requires that great importance be attributed to these matters as ameliorating the consequences of deficiencies in the evidentiary record. 1. The "effect of the passing of time on evidence has to be evaluated within a new normative context or new legal framework". One aspect of this was the reiteration in [43] about what was "neither uncommon nor unexpected" concerning the effluxion of time, such that: The critical thing which fidelity to the new normative structure requires is the acknowledgment that when, and this is the step not taken in Moubarak by President Bell, as his Honour then was, acknowledging the effect of the effluxion of time on evidence must now be regarded as not exceptional, and the effect of the effluxion of time on evidence has [to] be evaluated differently. 1. This carried with it, according to the applicants, the consequence that there were now two categories of permanent stays: permanent stays of criminal and civil proceedings which did not fall within s 6A(1), and permanent stays of civil proceedings involving claims of child sexual abuse. They submitted that Steward J, dissenting, was correct to observe that there was a different tolerance for impoverishment of evidence in the case of child sexual abuse cases than in any other case for a permanent stay. 2. It was also said that the context in which some child sexual abuse occurs was likely to be relevant, with the effect in substance that a permanent stay was less likely to be available in an institutional context.
It will be apparent that the applicants' propositions overlap. The nub of the argument is that different principles now apply to an application for a permanent stay to which s 6A(1) applies, notwithstanding s 6A(6). Thus it was said that by its reasons in GLJ the High Court "has significantly changed the required approach to evaluating the prospect that a fair trial can occur in cases of this kind".
On the other hand, the respondent submitted that the primary judge had applied the correct test, and emphasised that the High Court had not overturned Moubarak or Connellan. Counsel was squarely confronted with the view propounded by the applicants that GLJ had changed the law, including in the following exchange: PAYNE JA: … I have to tell you though, the majority judgment in GLJ looks to me as if they're telling us we hadn't understood just how much it had changed. Precisely, what the four corners of those changes are, I think your opponent was very candid about this, it's not at all clear what they are. But the one thing that is clear is they're telling us that it's different and to proceed on the basis that nothing had changed, in the way that his Honour did, … is inconsistent with that majority judgment. That's as I see it.
Nonetheless, counsel for the respondent maintained that the principles had not changed. He submitted: What really is required, whether it's after Moubarak or after GLJ, what hasn't changed is that what is required is a forensic prejudice or detrimental impact brought about by the passage of time in a particular case which is exceptional in that, despite the powers that it has, the Court will not be able to give the defendant any imperfect but fair trial. Therefore, there has always been a qualitative assessment which [is] required as to whether the particular disadvantages are brought about by the passage of time in a particular case permit a fair trial or not. The case, once that qualitative assessment is undertaken, can fall to one side [of] the line or the other, and Moubarak and Connellan fell one way, and GLJ fell the other way.
He added: I say that from a practical point of view, one is essentially dealing with this question of what is exceptional and what is not exceptional. … [T]he essential principle is that there would have to be exceptional circumstances for there to be a permanent stay. What the High Court is telling us, and what had been already laid down in Moubarak, was that you need more than just the passage of time. … but ultimately, what you need is something that is in a particular case, despite all the powers of the Court to give someone a fair trial, there are some times you can't, and that is because there is an impoverishment or loss of evidence which is not expected, not inevitable, therefore exceptional, therefore there's no constraint upon ordering a permanent stay.
It may be seen that the parties sought to give opposite meanings to what the majority reasons in GLJ had said about the circumstances warranting the grant of a stay being "exceptional". The respondent contended that nothing had changed, and there remained a class of case where despite the steps available to a court, there could not be a fair trial. The applicants said that where the effect of delay was "neither uncommon nor unexpected", such as death of witnesses, fading recollections and impoverishment of documents, that could not be regarded as exceptional, with the result that a stay would no longer be granted on that basis.

The majority reasons for judgment in GLJ

It will have been seen that the parties were diametrically opposed on the basic question whether GLJ had changed the law. I shall follow the course adopted by both sides' submissions and focus almost exclusively upon the reasons of the majority. In light of the fact that the threshold issue in this Court was, a little unusually, as to whether a joint judgment of a majority of the High Court altered the law, it is necessary to reproduce the most salient passages more extensively than would ordinarily be the case.
Kiefel CJ, Gageler and Jagot JJ introduced their reasons at [3]-[4] thus: [T]he grant of a permanent stay to prevent an abuse of process involves an ultimate decision that permitting a matter to go to trial and the rendering of a verdict following trial would be irreconcilable with the administration of justice through the operation of the adversarial system. That ultimate decision must be one of last resort on the basis that no other option is available. This is why only an exceptional case justifies the exercise of the power of a court to permanently stay proceedings. If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute. In the present case, the abolition of the limitation period that would have applied to and precluded the appellant's proceedings before the enactment of the Limitation Amendment (Child Abuse) Act 2016 (NSW) has created a new legal context within which the alleged abuse of process must be evaluated. In this new legal context, the Diocese's contention that any trial of the proceedings would be necessarily unfair must be rejected. As the Diocese acknowledged that its case for a permanent stay for abuse of process was based only on necessary unfairness of a trial and not undue oppression or unfairness otherwise, no permanent stay is justified. The proceedings must go to trial. [Footnotes omitted].
What their Honours said at [21] (albeit when addressing the standard of appellate review) bears upon the sense in which the word "exceptional" is used: The party seeking the permanent stay bears the onus of proving that the trial will be unfair or will involve such unfairness or oppression as to constitute an abuse of process. While the onus is the civil standard of the balance of probabilities, the onus has rightly been described as a heavy one, and the power rightly said to be exercisable only in an exceptional case. This is because it is always an extreme step to deny a person the opportunity of recourse to a court to have their case heard and decided. Lest the concept of "exceptional circumstances" be reduced to the formulaic, the power to grant a permanent stay, as Gaudron J explained in Jago v District Court (NSW), is "a power to refuse to exercise jurisdiction" which operates "in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised", it being "a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is 'amenable to the jurisdiction' of the courts". This context underlies the requirement of exceptionality to enliven the power to grant a permanent stay. [Footnotes omitted].
The majority identified the following conditions for the grant of a permanent stay at [23]: If a trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process, a court must not permit the trial to be held. If a fair trial can be held and will not be so unfairly and unjustifiably oppressive as to constitute an abuse of process, a court ordinarily has a duty to hear and decide the case.
Those sentences identify two bases for granting a permanent stay: necessary unfairness, and unfair and unjustifiable oppression. As in GLJ, the respondent made no criticism of any aspect of the conduct of the applicants, or pointed to any other basis for oppression. Their only complaint was that a trial would be necessarily unfair, in the absence of Father Perrett and Sister Rita and Father Peters and Bishop Kennedy and the passage of many years.
The second portion of the majority reasons commences with an evocative heading: A fair trial in child sexual abuse claims - a new world
After dealing first with the extrinsic materials and then with the statutory text, their Honours said at [34]: In providing in s 6A(6)(a) that s 6A does not limit any inherent, implied, or statutory jurisdiction of a court, as the Second Reading Speech discloses, Parliament intended that the existing powers of a court to safeguard the right to a fair trial, and without such unfairness or oppression as to constitute an abuse of process, be preserved. But the removal of any limitation period for the commencement of proceedings for death or injury resulting from child abuse, including the removal of the ultimate bar of 30 years from the accrual of the cause of action in s 51(1) of the Limitation Act, involves a fundamental change to the legal context in which the power in s 67 of the Civil Procedure Act (and equivalent inherent jurisdiction of a court) is to be exercised. [Footnotes omitted].
The central element of the reasoning is found at [40]-[43]: As s 6A(6) of the Limitation Act says, the section "does not limit" the inherent, implied, or statutory jurisdiction of courts, including to prevent abuses of process. It must be recognised, however, that the jurisdiction is now to be exercised in the new context created by s 6A(1). The jurisdiction preserved by s 6A(6) is not limited by the new reality created by s 6A(1), but nor is it unaffected by that new reality. Confronted with an existing limitation period that worked injustice to a vulnerable class of people (those claiming damages for death or personal injury resulting from child abuse), Parliament acted to ensure that people within that class may commence proceedings at any time. Parliament thereby imposed its own normative requirements on proceedings within this class. Judicial fidelity to this new normative structure is required. The fundamental change wrought by s 6A of the Limitation Act is that, in the case of an action for damages for death or personal injury resulting from child abuse, it can no longer be maintained that the passing of time alone enlivens the inherent power or any statutory power of a court to prevent an abuse of its process. In the face of s 6A, the mere passing of time, in and of itself, is no longer a potential aspect of the interests of justice relevant to the exercise of the power to permanently stay proceedings for damages for death or personal injury resulting from child abuse. Accordingly, while it is certainly the case that the "absence of a limitation period for a particular type of claim ... means that a plaintiff with such a claim will generally not be able to be criticised for any delay in bringing such a claim (at least where it is not credibly suggested that the delay was deliberate or in some way colourable)" and "no occasion arises for an explanation for any [such] delay", s 6A has a greater significance. Where, as here, a limitation period existed and was removed by a legislative act, the legislative act also presumptively removed any conception that a party is ordinarily expected not to sit on their rights and is taken to be responsible for any consequences adverse to their interests that doing so might have. Having eradicated that conception for actions for damages for death or personal injury resulting from child abuse, the section also necessarily removes any requirement or even expectation of an explanation for the passing of time between the accrual of the cause of action and the commencement of the action. Absent proof of a forensic decision by a plaintiff to obtain some advantage from delay or some other relevant potentially disentitling circumstance, the mere fact of the passing of time is of no consequence. In Moubarak, Bell P went a considerable distance towards this recognition in focusing on the "effect of delay on the trial process" and not the mere fact of the effluxion of time. But it also must follow from this recognition that the effect of the passing of time on the trial falls to be evaluated in this radically new context in which Parliament has chosen to abolish any period of limitation for the commencement of the action. Specifically, the effect of the passing of time in such a case is to be evaluated on the basis that it will be neither uncommon nor unexpected for the circumstances that the limitation period sought to avoid to be encountered. If, by exercise of the inherent, implied, or statutory jurisdiction of courts to prevent an abuse of process, a plaintiff claiming damages for death or personal injury resulting from child abuse were able to be confronted in each case with the common and expected effects of the effluxion of time, and those common and expected effects sufficed to constitute the "exceptional circumstances" justifying a court refusing to exercise jurisdiction, the operation of s 6A, and its capacity to fulfil its legislative purpose, would be rendered inutile. [Emphasis in original, footnote omitted].
Their Honours addressed s 6A(6) in terms at [44]: The fact that, by s 6A(6), s 6A does not limit the inherent, implied, or statutory jurisdiction of courts to prevent an abuse of process cannot be taken to mean that Parliament intended both: (a) on the one hand, to "lift one barrier to justice for survivors of child abuse" in recognition that such abuse "can forever alter the course of people's lives and continue to cause trauma and hardship for decades", and that "due to the injuries inflicted on them by their abusers, survivors of sexual and other child abuse often take decades to understand and act on the harm arising from the abuse"; and (b) on the other hand, for the common and expected effects of the passing of those years or decades, in and of themselves, to suffice to constitute the "exceptional circumstances" justifying a court refusing to exercise jurisdiction by permanently staying such proceedings. [Footnote omitted].
The impact of the "new normative structure" was made again at [47]: In the context of child abuse claims, Parliament has created the relevant framework of contemporary values. Parliament has accepted that, in the ordinary course, there is likely to be long delay in the bringing of such claims before the courts. It has acted to enable such claims to be brought at any time. It is for the courts now to evaluate contentions of abuse of process within this new normative structure.
Paragraph [52] appears to make substantially the same point: Nor, in this class of case, can any inevitable impoverishment of the evidence which the passing of time occasions be characterised as involving "exceptional circumstances". It is not that the concept of "exceptional circumstances" involves any quantitative assessment of the number of cases within the class which might meet the threshold of exceptionality. Mr Walker SC was right to debunk any such notion. The requirement of "exceptional circumstances" involves a qualitative, not quantitative, assessment. But that qualitative assessment is one now undertaken in the context set by s 6A which abolished any limitation period. In the face of s 6A, the mere effluxion of time and the inevitable impoverishment of the evidence which the passing of time engenders cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay. If that were so, public confidence in the administration of justice in accordance with the law as enacted by Parliament would itself be undermined.
At [64] the majority distinguished between institutional and domestic cases of child sexual abuse: There are likely to be differences between cases involving claims of child abuse arising from a private and domestic, as opposed to an institutional, context. Documentary records and evidence concerning relevant circumstances are more likely to exist in an institutional context than in a private and domestic context. An institutional context may be more likely than a private and domestic context to yield tendency evidence given the opportunities for an alleged perpetrator to access large numbers of children in an institutional setting. While claims of child abuse by a specific complainant may take decades to emerge, in an institutional context the institution may have been on notice of other claims made against the alleged perpetrator at a much earlier time. While each case of alleged abuse of process depends on its own facts, the context in which the alleged child abuse is contended to have occurred (domestic and private or institutional) is likely to be relevant to the questions whether a trial will be necessarily unfair or so unfair or oppressive to a defendant as to constitute an abuse of process.
The significance of the distinction drawn in that paragraph may be reflected in what was said in the following paragraph concerning Connellan v Murphy: In Connellan v Murphy, "the defendant [was] being asked to defend himself [from child sexual abuse claims] at the age of 62 for actions he is alleged to have committed as a 13 year old in respect of a person he can only have known (on the plaintiff's case) for little more than a week" and in circumstances where "neither side is in a position to investigate (or call evidence about) relevant surrounding circumstances and events" and "the vagueness of the plaintiff's own recollection of surrounding circumstances makes the investigation and defence of her allegations even more problematic". In Connellan v Murphy, as in Moubarak, the claims arose with no forewarning of any kind and, given the domestic and private setting of the claims, there was no relevant documentary evidence, nor any prospect of such evidence emerging. [Footnotes omitted].
During argument, counsel for the applicants with commendable candour acknowledged the tension between the seeming endorsement of Connellan and the outcome in GLJ at the conclusion of his oral submissions on the decisions in this area: Connellan v Murphy [2017] VSCA 116. This was also a domestic setting and one might think, strangely, given the outcome in GLJ, the witnesses were alive or the defendant were alive and the other brothers who were in the house were also alive.
After addressing the nature of the failing and inconsistencies in memory in that case and confirming that GLJ was to be regarded as approving at least the outcome in Connellan, there was the following exchange: LEEMING JA: You say the new world with the new normative goals or purposes, or whatever they are, must, nonetheless, accommodate the correct outcomes in Connellan and Moubarak. HARTFORD DAVIS: Yes, and of importance to those, and the way I put it is it seems one's looking for evidentiary impoverishment having a special quality, and the vagueness and uncertainty of the allegations in Connellan was important, as were the domestic settings, and then in Moubarak it's a difficult point, but it was important that it wasn't an institutional setting and it was an individual defendant.

Consideration

I think that GLJ must be taken to have changed the law. In light of the debate in this Court as to whether or not that was so, it is as well to be clear as to what is meant. I think that there are cases which formerly would have been stayed which will now proceed to trial. I see no other way of construing the effect of the language of the reasons of the majority.
The High Court decision amounts to a determination of the effect of the enactment of s 6A(1) of the Limitation Act 1969 (NSW), inserted by the Limitation Amendment (Child Abuse) Act 2016 (NSW), upon the principles applicable to applications for a permanent stay, whether in the exercise of a general jurisdiction or, as in the present case, pursuant to s 67 of the Civil Procedure Act 2005 (NSW). It would seem that the changed principles only apply to civil litigation to which s 6A applies. That section provides as follows: 6A No limitation period for child abuse actions (1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act. (2) In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age - (a) sexual abuse, (b) serious physical abuse, (c) any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse). (3) To remove doubt, connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age. (4) This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise. (5) This section extends to the following causes of action - (a) a cause of action that arises under the Compensation to Relatives Act 1897, (b) a cause of action that survives on the death of a person for the benefit of the person's estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944. (6) This section does not limit - (a) any inherent jurisdiction, implied jurisdiction or statutory jurisdiction of a court, or (b) any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction. Note - For example, this section does not limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.
Subsection (1) has two limbs. The subsection (a) entitles a plaintiff to bring certain actions for damages at any time, and (b) removes any limitation period which would be imposed by the Act. Subsections (2) and (3) are definitional. Subsections (4) and (5) extend or confirm the application of the section to a wide variety of civil claims. Subsection (6), by way of contrast, confirms that the entitlement conferred by subsection (1) does not "limit" any of the jurisdictions in par (6)(a) or any of the powers in par (6)(b).
Subsection (6) has one purpose and one purpose only. It is to ensure that the jurisdictions and powers identified in it, including relevantly the power to order a permanent stay on the grounds that a fair trial is not possible, are not limited by the new entitlement conferred by subsection (1). That is to say, it fends off a submission that the removal of the defendant's right to plead a limitation defence and the conferral of an entitlement to bring an action at any time effected by subsection (1) somehow by implication qualify or erode the jurisdictions and powers identified in subsection (6). Another way of putting this is that subsection (6) is intended to ensure that subsection (1), which does not explicitly limit the jurisdictions and powers in subsection (6), has no such limiting effect by implication.
Applying conventional principles of statutory construction, it might have been thought that subsection (6) was otiose. What could be more fundamental than a defendant's entitlement to a fair trial, and the court's power to protect itself, litigants and the administration of justice from litigation that could not result in a fair trial? On conventional principles of statutory construction, one would expect nothing less than irresistible clarity before concluding that something so fundamental had been eroded impliedly. Conspicuous by its absence is any provision, say, to the effect: The effect of the entitlement to bring proceedings many years after they accrued will result in there being trials which would not formerly have been regarded as fair, but which in the special case of child sexual abuse, are hereafter to be regarded as fair.
Not only is there no such provision, but also the presence of subsection (6) is confirmatory that neither the court's jurisdiction nor its power to prevent abuses of process or unfair trials is "limited" by the new section. And if there could be any doubt on the point, the note (to which regard consideration may be given to assist ascertaining the section's meaning) is confirmatory of the above.
But for GLJ, I would regard the reasoning of the primary judge at [119]-[121], which is reproduced above, to conform with settled principles of statutory construction. But for GLJ, I would agree with the respondent's submission, and conclude that it was necessary to find such a burdensome effect from the lapse of time that a fair trial was not possible, in which case a permanent stay be ordered, and that in making that assessment, regard would be had to the unavailability of witnesses or documents.
But I am unable to read the majority reasons for judgment as the respondent invites me. Those reasons state that the "new world" introduced by s 6A means that some forms of impoverishment of evidence - indeed, the most common forms, namely, the unavailability of witnesses and documents - are not to be regarded as exceptional. To the contrary, they are "neither uncommon nor unexpected". This is developed in the reasons of the majority by reference to two themes: the evaluation of the effect of delay, and the way in which exceptional circumstances are to be identified.

The evaluation of the burdensome effect of delay

One proposition established by Moubarak was that s 6A meant that the mere passage of time was not sufficient, but instead one asked whether the lapse of time has a burdensome effect which is so serious that a fair trial is not possible. There would be either an inconsistency or an incoherence with judge-made law governing the grant of a permanent stay if the mere passage of time warranted a stay, when faced with the entitlement conferred by s 6A(1) for actions based on child abuse to be brought at any time.
The same distinction may be seen in Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [69]-[70], in the joint judgment of Gleeson CJ, Gummow, Hayne and Crennan JJ, in the dispositive passage of their reasons: attention must be directed to the burdensome effect upon the defendants of the situation that has arisen by lapse of time. The Court of Appeal held that this was so serious that a fair trial was not possible. The result was that to permit the plaintiff's case to proceed would clearly inflict unnecessary injustice upon the defendants. What Deane J said in Oceanic Sun Line Special Shipping Company Inc v Fay, with respect to the staying of local proceedings, is applicable also to a case such as the present one. His Honour emphasised that there was no "requirement that the continuance of the action would involve moral delinquency on the part of the plaintiff"; what was decisive was the objective effect of the continuation of the action. [Footnotes omitted].
The majority in GLJ disagreed with one aspect of Batistatos concerning the standard of appellate review. However, there is nothing expressly critical of the requirements in that passage to have regard to the "burdensome effect" or the "objective effect" of the litigation proceeding.
The passage from Batistatos does not merely have the authority of dispositive reasons for judgment of a majority of the High Court of Australia. There is no reason to doubt that it was picked up legislatively, by the note to s 6A which refers in terms to "burdensome effect" being a basis upon which a permanent stay might be ordered. This point was made by Gleeson J, dissenting, in GLJ at [170]-[171]: The dispositive question in Batistatos was whether the burdensome effect upon the defendants of the situation that had arisen by lapse of time was so serious that a fair trial was not possible. The language of that question, which reflects the more general requirement that a defendant must have a fair opportunity to respond to a case against them, appears in the note beneath s 6A(6) of the Limitation Act 1969 (NSW) which records: " ... this section does not limit a court's power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible." The note is a legislative acknowledgement of the basic principle that the legislature cannot require the courts to adopt a procedure that is unfair to the defendant. [Footnote omitted].
Even so, I do not accept the respondent's submission that the High Court endorsed the distinction drawn in Batistatos and Moubarak between mere delay and its effect. I see no other way of reading the words in [43] that Bell P's reasons in Moubarak "went a considerable distance" towards the recognition of what in the opinion of the majority was required by s 6A. As the applicants submitted, and as Payne JA observed during argument in a passage reproduced above, the point of that passage was that the reasons in Moubarak did not go far enough. Their Honours went on to say: If, by exercise of the inherent, implied, or statutory jurisdiction of courts to prevent an abuse of process, a plaintiff claiming damages for death or personal injury resulting from child abuse were able to be confronted in each case with the common and expected effects of the effluxion of time, and those common and expected effects sufficed to constitute the "exceptional circumstances" justifying a court refusing to exercise jurisdiction, the operation of s 6A, and its capacity to fulfil its legislative purpose, would be rendered inutile.
That is to say, the reasoning insists that the common and expected effects of lengthy delay, even if they result in a burdensome effect, are not to be regarded as "exceptional circumstances" because, so it is said, s 6A would thereby not fulfil its legislative purpose.

The identification of exceptional circumstances

The construction adopted by the majority reasons for judgment is to the effect that a permanent stay will only be granted in exceptional circumstances, but the class of what is "exceptional" is to be taken to have narrowed following the enactment of s 6A. Matters that were once considered "exceptional", such as a forty or fifty year delay and the concomitant inevitable distortion of human recollection and impoverishment of documents, are not to be regarded as exceptional for the purposes of confining permanent stays of civil claims for child abuse to "exceptional" cases, at least in institutional settings.
I find it impossible to read what was said at [44] about "exceptional circumstances" not extending to the "common and expected effects of the passing of those years or decades, in and of themselves" in any other way. Likewise, the statement in [52] that "the mere effluxion of time and the inevitable impoverishment of the evidence which the passing of time engenders cannot attract the quality of exceptionality which is required to justify the extreme remedy of the grant of a permanent stay". Indeed, the substantive changes are heralded by the heading "A fair trial in child sexual abuse claims - a new world".
That conclusion is confirmed by having regard to the submissions advanced on behalf of GLJ in the High Court. GLJ's counsel said the following: But the position for which we contend does not controvert [s 6A(6) and the note], and let me explain why. We do not rely on the legislative changes and the reasons for them to move for any change in applicable principle. The question is and remains, whether the continuation of the proceedings is so unfair or would involve such unacceptable unfairness to warrant the stay, but the application of that principle is necessarily context‑specific and what is unacceptable in one context may not be unacceptable in another. The legislative reforms to which we have pointed and the circumstances which prompted them are highly relevant in calibrating the application of this power. The passage of time will inevitably impoverish the evidentiary record, often including the death of the alleged perpetrator. The acts of abuse, of their nature, will often have taken place in private with no other witnesses. They are not unusual features of cases such as this. They are typical. That being so, in this particular context, the death of the alleged perpetrator of the child sexual abuse, even where there are no other witnesses to the abuse, cannot be regarded as a sufficiently serious degree of unfairness to warrant a permanent stay. If it were otherwise, then stays of proceedings of this kind will not be "exceptional" or "extreme" cases, as the authority of this Court requires; they will be frequent.
This aspect of the debate was encapsulated shortly thereafter: MR HERZFELD: But in this particular field, applications for stays must be approached with a greater tolerance for imperfection, lest what should be an "exceptional" course becomes a routine one. STEWARD J: So, that is a change of principle. So, when you commenced this, you said you do not seek a change of principle, but you really do. MR HERZFELD: With respect, we do not, because the question of principle is whether the proceedings are so unfair or would involve such unacceptable unfairness to warrant a stay.
I mean no criticism of counsel, whose role is to advance the case as attractively and persuasively as may be, but this is rhetoric which emphasises form at the price of substance. While at a merely formal level it might be said that the principle remains unchanged, the reality is that on the approach taken by the majority, there are to be trials which must proceed even though prior to the enactment of s 6A they would have been regarded as unfair. This is the "greater tolerance for imperfection" advocated in the passage reproduced above. Viewing the matter at the level of substance rather than form, the acceptance of that submission by the majority of the High Court produces the result that the principles governing permanent stays have changed.

Three aspects of the reasoning of GLJ

I have indicated above what in my respectful opinion would be the orthodox approach to construing s 6A(1) and (6). A change in the principles governing permanent stays is difficult to reconcile with s 6A(6) providing that s 6A does not limit the jurisdictions and powers of courts. That is not the only difficult aspect of the reasons of the majority.
First, the basic proposition is that a court must not permit trials that will be demonstrably unfair. This might be called a fundamental aspect of the normative structure of the Australian legal system, but what it is called does not greatly matter. Courts have many tools which can be used to prevent trials which will be necessarily unfair, as a result of which only exceptionally will there be an occasion for the remedy of a permanent stay. The fact that the Legislature has determined that a special class of plaintiffs can bring claims based on events occurring 46 years ago will mean that there may be more opportunities for defendants to complain, and courts to rule, on whether such proceedings are demonstrably unfair. That does not mean that most of those claims must go to trial so as to preserve the exceptionality of the remedy of a permanent stay. It means that there may be more occasions where a permanent stay is required lest there be an inevitably unfair trial.
Secondly, it would appear that there are separate principles for permanent stays of criminal claims and civil claims which do not attract s 6A, as opposed to applications for permanent stays to which s 6A applies. That introduces an especially awkward incoherence insofar as a criminal claim against the alleged perpetrator might be permanently stayed, but a civil claim against the perpetrator or a defendant said to be vicariously liable would not be. Take what might be regarded as a typical complaint of child abuse occurring decades ago, which resulted in a criminal prosecution and civil litigation arising out of precisely the same allegation. It might be expected that the civil proceedings would be stayed temporarily pending the criminal trial, because the obligations to give discovery, to respond to interrogatories and to give evidence were inconsistent with the rubric of rules associated with the "right to silence" enjoyed by an accused. The accused might also seek and in an appropriate case obtain a permanent stay of the prosecution. However, in accordance with the majority reasoning in GLJ, the same accused person would be unable to obtain a permanent stay of the civil litigation based on the same underlying allegation. That might be regarded as an unexpected consequence of s 6A, especially given the general absence of any limitation period applicable to the criminal prosecution.
Thirdly, the reasons of the majority suggested at [64] that permanent stays might more readily be available in a domestic or private context, as opposed to an institutional context. Very many cases of child sexual abuse are committed by fathers, stepfathers, uncles and other family members, although statutory non-publication orders which prevent publication of victims' identities tend to distort that fact. This was well known when s 6A was enacted. For example, the Australian Bureau of Statistics survey on "Personal Safety, Australia" for 2016, when dealing with sexual abuse before the age of 15, states that 55% of women who say they experienced sexual abuse as a child recorded that they were abused by a parent (17.4%), a sibling (7.9%) or another relative or in-law (29.4%), while 46.8% reported that they were abused by a person known but unrelated to them. Fewer men who say they experienced sexual abuse as a child recorded they were abused by parents (4.1%), siblings (4.1%) or other relatives (15.3%) but non-institutional cases remain an appreciable minority, and of course many more women than men report sexual abuse when they were children (a point also made in that report). It is decidedly odd that s 6A, which treats all forms of child sexual abuse neutrally, would have the effect that permanent stays would be more readily available to prevent civil claims against the largest class of perpetrators of the child sexual abuse upon girls; why should the denunciation of child abusers be less readily available when sought by those who suffered at the hands of their stepfathers and other relatives as opposed to those who suffered in institutional contexts? Yet the endorsement by the majority of the permanent stay ordered in Connellan v Murphy is difficult otherwise to understand. For both plaintiff and the alleged perpetrator were alive, and competent, and the matters to which the majority pointed at [65] are merely the fallibility of memory and unavailability of documents, all of which are the "common and expected" effects of litigation brought half a century after the event. It would thus seem that the distinction between domestic and institutional contexts suggested by the majority reasons may have the effect of preventing trials for a very common form of child abuse. Once again, that is an unlikely consequence of the enactment of s 6A.

Conclusion on the effect of GLJ

This Court's obligation is to apply propositions of law stated by the High Court. That obligation is applicable irrespective whether lower courts regard those principles as correct, and there would be little point to the judicial hierarchy if that were not so. To the extent that there is an unresolved contradiction between the majority judgment in GLJ and that in Batistatos concerning burdensome effect being the test, the more recent judgment is to be applied. The High Court is empowered to depart from its earlier decisions, and in light of the repeated emphasis of disregarding the ordinary and unexceptional consequences of "the mere effluxion of time and the inevitable impoverishment of the evidence which the passing of time engenders", I see no way of applying the reasoning in GLJ other than as impliedly altering the way burdensome effect is to be evaluated.
It follows that there should be a grant of leave on the main point argued (grounds 1 and 1A). That is because the primary judge must now be regarded as having misapplied the principle in his reasons at [119]-[121], and failed to discount the ordinary and expected consequences of most witnesses being unavailable. I should make it quite clear that in accordance with the law as it stood at the time his Honour was asked to decide the question, the reasoning in [119]-[121] was, in my respectful opinion, wholly unexceptionable.
I shall return to the application of the principles stated by the majority reasons of the High Court after addressing proposed ground 3.

Proposed ground 3

Proposed ground 2 was abandoned by amendments supplied in advance of the hearing. Proposed ground 3 was not at the forefront of the parties' submissions. In light of the above, it does not arise. I shall address it concisely.
Proposed ground 3 was in the following terms: The primary judge erred in concluding that the Respondent had "carried out all reasonable enquiries" (J[106]), and in particular that it was "entirely speculative and highly unlikely" that investigation of Father Perrett's activities after 1995 might have yielded evidence relevant to this claim (J[112]). The primary judge ought to have found that: a. the defendant knew from at least mid-1996 that Father Perrett's abuse was not limited to the three boys the subject of the criminal allegations, but instead had been "since the beginning of priesthood; it has been all over the place; it has been with all sorts of kids in all sorts of places. It probably involves many, many boys of pre-pubescent age"; b. in the circumstances, it was reasonable in 1995-1996 for the Respondent to anticipate litigation; c. the defendant knew from at least 22 June 1996 that abuse was alleged to have occurred "on a camping trip" in "about 1979"; d. any investigation in 1995-1996 could have involved interviewing three of the four deceased persons now said to be "key witnesses" (J[67]) who were alive at that time - ie Father Perrett, Sister Rita, and Bishop Kennedy; e. the defendant either: (i) did carry out an investigation, but failed to adduce records about that investigation; or (ii) failed to carry out any investigation; f. accordingly, the defendant is responsible for any prejudice which arises.
This proposed ground is essentially factual, although it gave rise to a debate in this Court as to whether what Bathurst CJ had said in Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 concerning defendants making reasonable inquiries. It is neither necessary nor appropriate to determine whether, as the applicants maintained, GLJ impliedly overruled part of that case. As may be seen from the extract quoted in paragraph (a), this ground was based upon the "Peters' Memorandum" extracted above.
A deal was sought to be made of that document in submissions in this Court. Before the primary judge, it was the subject of brief cross-examination by the Diocesan Chancellor, and the subject of one sentence in written submissions and one sentence in oral submissions. At no stage were any of the findings which, on this proposed ground, are said ought to have been made either put to the witnesses or sought from the primary judge.
The entirety of the oral submission was: TIERNEY: I think the evidence through Ms Harman was that this was time referenced to 1996, and it's a file note attributed to the late Father Wayne Peters, who your Honour will recall was charged with making some investigation at that time of Perrett, and this is Father Peter's assessment. It's the second paragraph that's telling your Honour.
All that was said in written submissions was that "from as early as 1995/1996 the Diocese was on notice of Perrett's sexual interest in children". But the findings which the applicants complain should have been made include findings of the utmost seriousness, including either a failure to adduce records of an investigation which had been conducted, or the failure to carry out any investigation. Neither proposition had been put to the witnesses called by the respondent. Neither proposition was urged upon the primary judge in written or oral submissions.
There is no sound basis for criticising the failure by the primary judge to make findings that were neither put to the witness called who was in charge of producing documents, nor advanced to his Honour.
I would not grant leave to appeal in respect of proposed ground 3.

Conclusion and orders

For those reasons, I have concluded that there should be a grant of leave, confined to grounds 1 and 1A, so that the application for a permanent stay may be addressed in accordance with what the High Court has more recently determined is the effect of s 6A.
I start with the allegations of abuse in 1976. The fact that Father Perrett has died does not render a trial of those issues necessarily unfair. The respondent has the benefit of instructions from Father Perrett in relation to each element of the claim; indeed, it has his sworn denials which will be able to be tendered at trial and can found a cross-examination. True it is that there is very substantial impoverishment of the sort of evidence which might ordinarily be available in a case such as the present, but applying the principles stated in the reasons of the majority in GLJ that is merely the common and expected effect of the passage of almost half a century.
However, nothing turns on this unless the primary judge also came to the wrong conclusion concerning the claim that the Bishop was vicariously liable for Father Perrett's torts. This is much less straightforward.
One category of difficulty arises because, as the primary judge observed, the principles applicable to vicarious liability in a case like this are uncertain. Father Perrett was neither the Bishop's employee nor his agent. Even if his office were regarded as analogous to employment, the "course of employment test" is itself conclusionary and offers little guidance as to how to approach novel cases (Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37). The conduct of which the appellants complain was in no sense an aspect of his duties as an assistant priest; it was antithetical to those obligations. Of course, the fact that the conduct is tortious and indeed criminal does not mean that a claim of vicarious liability is impossible, but it does present considerable difficulties in identifying the juristic basis of the claim. Those observations are scarcely original; they reflect the points made by Lord Burrows earlier this year when describing the two main problems of the established doctrine of vicarious liability: The first is that the type of relationship in question between the defendant and the tortfeasor may fall outside that of employer and employee. The second is that the torts in question in the sexual abuse cases are intentional torts that cannot easily be fitted within the idea that the tortfeasor's act is merely an unauthorised mode of doing some act authorised by the employer: Trustees of the Barry Congregation of Jehovah's Witnesses v BXB [2023] UKSC 15 at [3].
Of course, there are deeper, more fundamental difficulties in this area of the law, as is well illustrated in the judgments in CCIG Investments Pty Ltd v Schokman [2023] HCA 21; 410 ALR 479. There is no occasion in these reasons to consider those difficulties.
The joint judgment of five members of the Court in Prince Alfred College (which turned on whether the employer school was vicariously liable for the sexual abuse committed by its employed housemaster Mr Bain upon a 12 year old boarder) stated at [81] that: in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the "occasion" for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.
Their Honours added at [84]: In the present case, the appropriate enquiry is whether Bain's role as housemaster placed him in a position of power and intimacy vis-à-vis the respondent, such that Bain's apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment. The relevant approach requires a careful examination of the role that the PAC actually assigned to housemasters and the position in which Bain was thereby placed vis-à-vis the respondent and the other children.
If the test for any vicarious liability is to cohere with what was said in Prince Alfred College, then "[t]he relevant approach requires a careful examination of the role that the [Bishop] actually assigned to [assistant priests] and the position in which [Father Perrett] was thereby placed vis-à-vis [CM] and the other children" (substituting Bishop for the School, assistant priests for housemaster, Father Perrett for Mr Bain and CM for the respondent). As presently advised, this is a central issue bearing upon whether the claim of vicarious liability will be made out.
The appellants wish to rely on expert evidence and have served a report from Father Dillon. However it is common ground that that report does not deal with holiday camps at all. Even if (noting that special leave had been granted) the Victorian Court of Appeal decision in Bird v DP (2023) 69 VR 408; [2023] VSCA 66 correctly states the test for vicarious liability, the appellants' case here must necessarily go further. As a result, the appellants accept there is an important gap in their case and have indicated that they wish to serve a supplementary report seeking to address that gap. That report was not available at the hearing, and the appellants advised on 6 December that it would not be available until 22 December.
True it is that an application for a permanent stay may be granted in the absence of the evidence to be adduced by a plaintiff, and indeed the email communication of 6 December was expressed on the assumption that this Court might grant leave and allow the appeal prior to Father Dillon's supplementary report becoming available. However, in the particular circumstances of this case, I am reluctant to apply the principles stated by the High Court in GLJ in circumstances where the plaintiff has tendered the existing report of Father Dillon, which does not speak in any respect to the role of an assistant priest at a holiday camp, and has indicated an intention to serve a supplementary report to deal with the critical issue but has not served that report. For the reasons given above, this is a key question bearing upon whether a permanent stay should be granted. As presently advised, I would not regard the present as a "typical" case of sexual offending by a priest which is directly connected with activities which the Bishop must be taken to have known and authorised, such as officiating in church, rehearsing a choir, conducting a Church retreat, or undertaking pastoral visits to parishioners' homes.
Neither side has been heard by reference to the issues presented by the anticipated supplementary report as to the ability to investigate and test that evidence. If this Court were to determine to lift the stay without reference to the supplementary report, then it would, in principle, be open to the respondent to apply to reinstate the stay if the report when served amounted to a material change in circumstance. Given the expedition that the Court has accorded the appellants to date and the way in which they now seek to alter the case that goes to the heart of the trial they wish to have, I consider it is desirable that this Court's decision be made with the benefit of that supplementary report.
That said, if the appellants wish to have this appeal finally heard and determined in the absence of the supplementary report, the orders I propose will permit that to occur. If the appellants wish this appeal to be heard and determined on the basis of the evidence they now say they wish to rely, then the orders I propose will also permit that to occur, through a timetable for service of the report and supplementary submissions.
Naturally, I am also conscious of the evidence of CM's life expectancy. The medical evidence filed in September when the proceeding in this Court was commenced has not been updated; that should occur. There is also the melancholy possibility that any trial will not be able to occur in time for him to give evidence, and indeed that his condition might suddenly deteriorate before this appeal is determined. For that reason, the orders I propose will also ensure that an application may be made on his behalf for the preservation of his testimony.

Orders

Accordingly, I propose the following orders:
Grant leave to appeal, confined to grounds 1 and 1A of the draft notice of appeal, in respect of the permanent stay applicable to the claim that the respondent is vicariously liable for the tortious conduct of Father Perrett.
Direct the appellants to file and serve a notice of appeal in accordance with that grant of leave within 7 days of today, and otherwise dispense with the requirements of service.
Subject to order 5 below, direct the appellants to file and serve any supplementary report of Father Dillon, and any further submissions in support of an order discharging the stay having regard to Father Dillon's supplementary report, on or before 22 December 2023.
Subject to order 5 below, direct the respondent to file and serve supplementary submissions having regard to Father Dillon's supplementary report, on or before 16 January 2024, and direct the appellants to file and serve any submissions in reply on or before 23 January 2024.
In the event that the appellants wish to have their appeal determined without regard to the supplementary report of Father Dillon, they should notify the Associate to Leeming JA and the respondent by 22 December 2023.
Direct the appellants to file and serve an updated estimate of CM's prognosis on or before 22 December 2023.
To the extent necessary, order that the permanent stay ordered on 23 August 2023 does not preclude any application on behalf of CM to preserve his testimony.
Liberty to apply to Leeming JA in the event that either side wishes to vary the dates in order 4 above.
PAYNE JA: I agree with Leeming JA.
HARRISON CJ at CL: I agree with Leeming JA.

Amendments 15 December 2023 - [84] - "his" changed to "GLJ's" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2023

Limitation Amendment (Child Abuse) Act 2016(NSW)

(2019) 100 NSWLR 218

(2019) 101 NSWLR 762

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