The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ

atson SC with D Tang (Applicant) J E Maconachie QC with P Tierney (Respondent)

Solicitors: Hannigans Solicitors (Applicant) Ken Cush & Associates (Respondent) File Number(s): 2021/00293868 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2021] NSWSC 1204 Date of Decision: 24 September 2021 Before: Campbell J File Number(s): 2020/00031948

[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.]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, The Trustees of the Roman Catholic Church for the Diocese of Lismore ("Lismore Trust"), sought leave to appeal from an order of the Supreme Court dismissing its application for a permanent stay of proceedings that the respondent, GLJ, commenced against it on 31 January 2020. GLJ's claim for damages against the Lismore Trust arises from an allegation that, in 1968, she was sexually assaulted by a priest of the Roman Catholic Church, Father Clarence Anderson. At the time of the alleged sexual assault, GLJ was 14 years old. Father Anderson was a Priest in the Diocese of Lismore between 1963 and 1970. He was appointed to the Parish of Lismore for a period in the latter half of 1968, the precise duration of which is not known. GLJ was a parishioner of the Parish of Lismore. GLJ puts her claim for damages on two bases. First, she alleges that the Lismore Trust was negligent, having breached a duty of care owed to her in circumstances where members of the clergy within the Diocese knew, or ought to have known, that Father Anderson had sexually abused other children. Second, she alleges that the Lismore Trust is vicariously liable for the conduct of Father Anderson. On 17 November 2020, the Lismore Trust filed a notice of motion seeking a permanent stay of the proceedings pursuant to s 67 of the Civil Procedure Act 2005 (NSW). In the alternative, the Lismore Trust sought an order that the proceedings be dismissed pursuant to rule 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW). Father Anderson died in 1996. Central to the application for a permanent stay was the unavailability of Father Anderson in circumstances where, at the time of his death, neither Father Anderson nor the Lismore Trust were on notice of the allegation of sexual assault on which GLJ's causes of action rely. The Lismore Trust also relied on the unavailability of other members of the clergy who were appointed to parishes in the Diocese when Father Anderson was a priest, each of whom is deceased. In seeking a permanent stay, the Lismore Trust did not suggest any criticism of the respondent in commencing proceedings when she did. Rather, the Lismore Trust contended that there was no chance of receiving a fair trial in circumstances where it had no recourse to Father Anderson or other material witnesses, most critically on the issue of whether Father Anderson sexually assaulted GLJ. On 24 September 2021, the primary judge refused to grant a permanent stay and dismissed the notice of motion. His Honour was not satisfied that the Lismore Trust had "discharged the onus of demonstrating on the balance of probabilities that the continuation of the proceedings would be unjustifiably oppressive to the [Lismore Trust] or bring the administration of justice into disrepute in a sense that a fair, albeit not perfect, trial can no longer be had". The issue before the Court was whether, in declining to exercise the discretion to grant a permanent stay, the primary judge erred in principle and misapplied the discretion. The Court, granting leave to appeal, allowing the appeal and permanently staying the proceedings, held (Mitchelmore JA, Macfarlan and Brereton JJA agreeing): As to the decision of the primary judge 1. While the primary judge acknowledged that there were forensic disadvantages attending the passage of time because of the death of clergy, the considerations his Honour addressed were not responsive to the difficulties that the Lismore Trust identified on the issue that was central to its liability, namely, that there was no account from Father Anderson (or other priests in the Diocese) on the issue of whether Father Anderson sexually assaulted GLJ: at [1], [2], [99]-[100]. 2. The primary judge's description that the present was "not a case where everything depends upon the acceptance of the plaintiff's account in the absence of any available contradictor" involved a misapprehension of the facts. The present case did depend on accepting GLJ's account in the absence of an available contradictor [101]. 3. The lack of instructions from Father Anderson, denying GLJ's allegation or otherwise, also placed the Lismore Trust in a difficult position in relation to meeting evidence in unsworn statements from four male complainants detailing sexual assault allegations against Father Anderson. There is nothing to indicate that the primary judge undertook the task of bringing to account the impact on the fairness of the trial of the Lismore Trust having to meet that evidence if it were admitted: [102]-[103]. The primary judge also mischaracterised the Lismore Trust's submission in respect of the unsworn statements and the status of those statements: [104]-[105]. 4. In referring to "[a] trial of the issues in this case", without more, the primary judge did not engage with the issue to which the Lismore Trust's evidence and submissions were primarily directed, namely, the absence of available evidence in respect of GLJ's account of the alleged sexual assault: [107]. Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102; Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 considered. 1. The primary judge adequately referred to vicarious liability when recording GLJ's submission that the same facts on which she relied for the liability of the Lismore Trust in negligence were relevant to the case on vicarious liability, in so far as they pointed to the principal's placement of the agent in the position of intimacy and power in relation to the people who were assaulted: [1], [2], [112]-[113]. Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 distinguished. As to re-exercise of the discretion under s 67 of the Civil Procedure Act 1. The issue of whether Father Anderson sexually assaulted GLJ was foundational to the causes of action pleaded against the Lismore Trust. The Lismore Trust was not on notice of GLJ's allegation of sexual assault before 2019, by which time Father Anderson had died, and there were no documents dating back to or around the time of the alleged assault that detail or otherwise refer to what GLJ alleges occurred. In the circumstances of this case, the Lismore Trust could not meaningfully investigate or respond to this issue. There is nothing a trial judge could do in the conduct of the trial to relieve against those consequences. The trial would not be a fair trial: [1], [2], [4] and [119]-[122]. Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102; Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 applied. Observation by Brereton JA 1. The outcome in this case says nothing adverse to the veracity and credibility of GLJ. It is now well understood that a survivor of child sexual abuse may for very good reasons not disclose it for many years, and the legislative amendments which inserted s 6A into the Limitation Act 1969 so as to disapply the statute of limitations in respect of such claims manifest an intention that the passage of time is not of itself to be treated as unacceptably prejudicing a fair trial: [1], [3].

Judgment

1. MACFARLAN JA: I agree with Mitchelmore JA and also with the additional observations of Brereton JA.
2. BRERETON JA: I have had the benefit of reading in draft the reasons to be delivered by Mitchelmore JA, in which the relevant factual background, issues, and competing submissions are comprehensively explained and addressed. I agree that leave to appeal should be granted and the appeal allowed, for the reasons her Honour gives.
3. This outcome says nothing adverse to the veracity and credibility of GLJ. It is now well understood that a survivor of child sexual abuse may for very good reasons not disclose it for many years, and the legislative amendments which inserted s 6A into the Limitation Act 1969 so as to disapply the statute of limitations in respect of such claims manifest an intention that the passage of time is not of itself to be treated as unacceptably prejudicing a fair trial. However, the same amendments, by s 6A(6), also evince the intention that they not detract from the Court's duty to control its process by staying proceedings which are an abuse of process where a fair trial can no longer be had.
4. In this case, to succeed at trial GLJ would have to establish, against the Lismore Trust, first that Father Anderson sexually assaulted her as alleged, and secondly that the Lismore Trust is legally responsible, whether by way of vicarious liability in assault, or direct liability in negligence. Although it may be that the passage of time does not unduly compromise the Lismore Trust's ability to meet allegations that it was vicariously liable for whatever Anderson may have done, or that - being on notice of his paedophiliac propensities in respect of young males - it breached its duty of care in exposing young parishioners to him, that is not the point. There were only two potential witnesses to the alleged assault, GLJ and Father Anderson. Deprived of the ability to obtain any instructions from Anderson by his death, the Lismore Trust has no means for investigating the facts. The fact that Father Anderson may, by his own admission, have engaged in misconduct against young males, does not begin to establish that he assaulted GLJ as alleged. Even if he would not have been called as a witness, a matter which I would not regard as foreclosed, the circumstance that the foundational allegation of the assault was one which the Lismore Trust had no way of investigating and ascertaining whether or not the alleged assault had taken place, let alone contradicting it, has the consequence that, regardless of the veracity and credibility of GLJ, the trial could not be a fair one.

The case against the Lismore Trust

1. The unsworn statement of GLJ was included in the evidence of both parties on the application before the primary judge. According to that statement, GLJ was born in Lismore in 1954. Her parents are now deceased. She has three siblings, an older sister and two younger brothers.
2. GLJ's parents were Catholic and her father would take her to Mass every Sunday when she was little. The Amended Statement of Claim identifies the church they attended as St Carthage's Cathedral, which is within the Parish of Lismore.
3. GLJ states that she met Father Anderson in 1968. Her father was injured in a motorcycle accident and another priest, Father Brown, allocated Father Anderson as a support priest for her family. Other evidence before the primary judge suggested that the Father Brown to whom GLJ refers in her statement was Reverend Paul Rex Brown, who died on 30 June 2005. GLJ states that she had not met Father Anderson before he was allocated to her family as a support priest, and thought he was new to the Diocese.
4. GLJ states that her family lived in a house that her parents had built on a large residential block that was located near a park. She gives an address in her statement, and includes a photograph of the back yard. Father Anderson visited the family home "very regularly". According to GLJ, he "knew all the comings and goings of everybody", enjoyed many family meals with them, and gained the love and trust of her family. GLJ says that it was "quite normal" for Father Anderson to enter the house unannounced, and he would often be there with her father when she arrived home from school.
5. GLJ alleges that Father Anderson sexually assaulted her in 1968, after he had started visiting her family. The sexual assault occurred one Saturday afternoon at about 1pm or 2pm. GLJ had returned home from netball and was in the process of getting changed in her bedroom. There was no one else at home at the time. At a point when GLJ was naked from the waist down, she noticed Father Anderson at her door. She yelled at him to get out, but he grabbed her and threw her on the bed.
6. Like the primary judge (J [14]), I consider it unnecessary to recite the full account of the sexual assault that ensued. As GLJ describes it, the sexual assault was opportunistic, violent, invasive, and highly traumatic. In the balance of GLJ's statement, she articulates her immediate response to that trauma and its ongoing impact on her life. GLJ says that she felt responsible for what happened. Before the sexual assault, Father Anderson would show her a lot of interest and buy her gifts from his parents' jewellery shop in Murwillumbah. She blamed herself for having mistaken the nature of his interest.

Evidence on the application for a permanent stay

1. In support of the application for a permanent stay, the Lismore Trust relied on two affidavits sworn by Gregory Bernard Isaac, the Secretary and Diocese Business Manager. GLJ relied on an affidavit affirmed by her solicitor on the record, Samuel Alexander Tierney.
2. In addition to the unsworn statement of GLJ to which I have already referred, Mr Tierney annexed to his affidavit the unsworn statements of four other persons. In their respective statements, each person says that he lived within the Lismore Diocese as a child and was sexually abused by Father Anderson. Mr Tierney also exhibited to his affidavit documents that the Lismore Trust produced in answer to a notice to produce, together with documents produced on subpoena by the NSW/ACT Professional Standards Office and the Archdiocese of Brisbane. The latter's production appears to be the primary source for allegations pleaded in the Amended Statement of Claim regarding Father Anderson's conduct while an Assistant Priest between 1963 and 1970, and the knowledge of other clergy as to that conduct.
3. The chronology that follows is taken both from the reasons of the primary judge and from the evidence that was before his Honour.

The extant documentary material regarding Father Anderson's appointments in the Diocese of Lismore

1. The official record of Father Anderson's appointments within the Diocese is annexed to Mr Isaac's first affidavit. According to that record, Father Anderson was ordained in July 1963. Between December 1963 and February 1970, he was appointed to the following parishes: 1. Kyogle (December 1963 to an unspecified date in 1965); 2. Macksville (between unspecified dates in 1966); 3. Maclean (an unspecified date in 1966 to an unspecified date in 1968); 4. Lismore (unspecified dates in 1968); and 5. Tweed Heads (17 January 1969 to February 1970).
2. In October 1971, Father Anderson was laicised, following a petition he made to the Bishop of Lismore in December 1970. At the request of the Bishop of Lismore, the Archdiocese of Brisbane took carriage of the inquiry into the petition. The Chancellor of the Archdiocese of Brisbane at the time, Father Douglas, was appointed the Defender and Notary. According to Mr Isaacs, Father Douglas died on 18 September 1984.
3. Documents produced by the Archdiocese of Brisbane on subpoena disclose that some members of the clergy within the Diocese of Lismore, including senior members, were aware of at least allegations that Father Anderson had sexually abused children when he was a priest in the Diocese. The Archbishop's report submitted in support of the petition for Father Anderson's laicisation, dated 1 February 1971, included the following passage: "It would appear, however, that the greatest problem that Father Anderson had while a Priest in the Diocese of Lismore was a personal one. Both Monsignor Ryan and Father G. Cranney mention accusations made by lay people concerning homosexuality. The Bishop of Lismore sums up this matter by saying 'he has had a recurring trouble in sexual matters, especially homosexuality. This first came to my notice about some six years ago, and in every case young boys were involved. We have made persistent efforts to help him to overcome his problem, but apparently without any appreciable result'."
4. On the basis of the chronology of his appointments, the above extract indicates likely knowledge within the Diocese, including at a senior level, of Father Anderson sexually abusing children, specifically young boys, dating back to his first appointment.

Kyogle Parish

1. Father Anderson was appointed to Kyogle Parish in December 1964. Monsignor Ryan, who is referred to in the passage of the Archdiocese's report I have extracted above, was the Parish Priest. According to Mr Isaacs, Monsignor Ryan died on 26 August 1987.
2. As part of the laicisation process, Monsignor Ryan provided a detailed written account to Father Douglas regarding his experiences with Father Anderson. Although the account is not dated, it appears to have been sent under cover of a letter dated 23 January 1971. In that account, Monsignor Ryan stated that Father Anderson "preferred the company of lay people and especially of boys". Monsignor Ryan considered that he was probably the first to know and accept that Father Anderson was, "in truth, a homosexual". He said that he reached this conclusion from his observation of Father Anderson: "…handling boys in the school playground and in his car. From the upper floor of the Presbytery I saw him on one occasion with a boy spreadeagled under him over the car bonnet, performing what seemed to be sexual movements upon the boy. I went down to investigate but the matter was finished whatever it might have been."
3. In October 1965, Monsignor Ryan received a visit from a parishioner who told him that "his son had been used sexually by Father Anderson". The parent told Monsignor Ryan that according to his son, "it was common knowledge that other boys had been similarly used and supplied the names of six of them".
4. Monsignor Ryan revoked Father Anderson's appointment as Assistant Priest at Kyogle and sent him home to his parents, with a direction that he attend on a psychiatrist in Sydney. According to Monsignor Ryan's report to Father Douglas, the psychiatrist recommended that Father Anderson live in Sydney, if possible in a parish where he could work or in an establishment at Richmond. Consultations ensued and "led to Fr Anderson being appointed to a Parish further down the Coast, Macksville in fact, with the direction to go monthly to Sydney for treatment".
5. The matter passed out of Monsignor Ryan's jurisdiction when Bishop Farrelly returned from overseas. In Bishop Farrelly's own letter to Father Douglas, he said he first learned of Father Anderson's "recurring trouble in sexual matters" about six years before the date of that letter, which is consistent with Monsignor Ryan's account of what occurred in 1965.

Macksville Parish

1. Father Anderson was next appointed to Macksville. Records suggest that this appointment took effect in or about mid-November 1965. Father O'Brien was the parish priest at Macksville at the time. According to Mr Isaacs, Father O'Brien died on 16 August 2002.
2. In his letter to Father Douglas regarding Father Anderson's laicisation, dated 21 January 1971, Father O'Brien did not refer to any specific incidents involving Father Anderson of the nature identified by Monsignor Ryan. However, he described Father Anderson as "far more interested in children and young people, especially those [of] the male sex, than he was in older people of either sex", noting that his great interests were "sport and games, especially with the young". Father O'Brien expressed the opinion that dispensation from all priestly obligations would be in Father Anderson's best interests and "in the best interests of many other people".
3. The material produced on subpoena by the Professional Standards Office includes two complaints made by individuals, both male, each of whom claimed that when he was growing up in Macksville he was sexually abused by Father Anderson. The additional unsworn statements which Mr Tierney annexed to his affidavit also relate to Father Anderson's time in Macksville. I will address those statements below.

Maclean Parish

1. Father Anderson moved to Maclean at some stage in 1966. Father Cranney was the Parish Priest. According to Mr Isaacs, Father Cranney died on 11 April 1980.
2. In his letter to Father Douglas, Father Cranney reported that in the year that Father Anderson spent at his parish he appeared to have very little interest in parish work and was reluctant to hear confessions or to be in the church. He said that it was only after Father Anderson left the parish that he came to know "of the agony of some parents of young sons who had been taught sexual perversion by Father Anderson". Father Cranney stated that there was "scandal in a number of parishes, the problem is known to a large number of people [and] I cannot see how he could return to any neighbouring parish".
3. Material produced by the Professional Standards Office includes complaints lodged with it by two individuals, both male, each of whom alleged that he was sexually abused as a child by Father Anderson on multiple occasions during the course of his appointment to Maclean Parish.

Lismore Parish

1. There was debate before the primary judge as to the period for which Father Anderson was based in the Lismore Parish. The primary judge noted at J [29] that during the laicisation process, Father Anderson deposed that he was only stationed in Lismore for two months in 1968. His Honour referred in this respect to correspondence produced by the Lismore Trust which suggested "that Father Anderson had not yet left Maclean as of 15 June 1968, was definitely in Lismore on 8 December of the same year, but had arrived in Tweed Heads likely sometime before 30 January 1969": J [29]. The primary judge considered that the strongest inference was that Father Anderson was in Lismore in November/December, or perhaps December/January, which spoke to "Father Anderson having some opportunity, in the light and context of GLJ's statement, of committing the assault alleged": J [29].
2. It is possible that the period for which Father Anderson was present in the Lismore Parish was longer than two months. In a letter that Father Anderson wrote to Bishop Farrelly, dated 15 June 1968 (which was written on letterhead from the Maclean Parish), he requested that he be released from his priestly vows. Father Anderson wrote a letter to his parents about his decision on the same day, a copy of which is also on the file. There is also a letter from Bishop Farrelly to Mr and Mrs Anderson, dated 1 July 1968, which refers to a letter the Bishop had received from them. The typeset of that letter has faded, but it appears to read that Father Anderson had "reversed his decision" and that he was "now on the staff of the Cathedral in Lismore". Assuming that is what the letter says, Father Anderson may have been based in the Lismore Parish from late June or early July 1968, noting that this is contrary to what he said in his deposition.
3. Bishop Farrelly does not refer specifically, in his letter to Father Douglas regarding the laicisation petition, to the period for which Father Anderson was based in Lismore. As I have noted above, the Bishop was aware of Father Anderson's "recurring trouble in sexual matters" some years before he was so appointed. Bishop Farrelly referred to having made "persistent efforts to help [Father Anderson] overcome his problem, apparently without any appreciable result", but provided no detail as to what those efforts entailed or the basis on which he concluded they were apparently fruitless. Bishop Farrelly also described Father Anderson's pastoral work among the people as "negligible". According to Mr Isaacs, Bishop Farrelly died on 25 May 1974.

Tweed Heads

1. Tweed Heads was the final parish in the Lismore Diocese to which Father Anderson was appointed. The primary judge noted at J [29] that Father Anderson was in Tweed Heads before 30 January 1969, when he sent a letter to Bishop Farrelly informing him that he had been made to feel most welcome.
2. Father Hoade was the Parish Priest at Tweed Heads. His account to Father Douglas, dated 14 January 1971, does not refer to any particular incidents involving Father Anderson and children of the nature that GLJ alleges. According to Mr Isaacs, Father Hoade died on 28 June 2008.

Deposition of Father Anderson

1. Father Anderson was examined on oath in the context of his petition for laicisation. A record of that examination was included in the documents produced on subpoena by the Archdiocese of Brisbane. No specific allegations of sexual abuse were put to Father Anderson in the course of the examination.
2. Father Anderson was asked: "In your years in parishes did you have any problems with chastity? Lasting? How did you meet them?" The document records that he requested not to answer that question. Father Anderson was also asked to explain the statement in his petition that because of his failures he could not carry on as a Priest. In response to that question, Father Anderson is recorded to have said: "It would be a spiritual matter between myself and the Bishop." The report of the Archdiocese described these responses as "understandable" having regard to the record of his behaviour. Father Anderson was also asked whether he associated romantically with any girl during the years in parishes. He gave a negative response to the question.

Evidence of other complaints involving Father Anderson

1. In addition to the documents produced by the Professional Standards Office, Mr Tierney annexed to his affidavit the four unsworn statements to which I have referred above and which I summarise below for the purpose of identifying the scope of the evidence. It appears from their respective statements that each of those individuals lived within Macksville or in the vicinity of Macksville Parish, to which Father Anderson was appointed in 1965.
2. Three of the four witnesses have been granted a pseudonym in the context of other legal proceedings. The fourth witness has not been granted a pseudonym but, like the primary judge, I do not consider it necessary to identify him by name. I intend no disrespect to any of these individuals by not identifying them by name.

Witness 1: "SJT"

1. The witness "SJT" was raised in Nambucca Heads. His father died in a workplace accident in 1964. SJT says that he met Father Anderson that same year, when Father Anderson took an interest in his family following his father's death. SJT's mother was a strict Catholic and thought it would be good for SJT to spend time with Father Anderson. It thus transpired that Father Anderson would visit their home on weekends and take SJT on outings. Initially, Father Anderson took SJT out with a group of other children his age, but then it came to be just the two of them. The outings would involve going surfing at the beach or shooting in the bush (Father Anderson kept a rifle in his car). On occasion, they ventured further afield, for example to the home of Father Anderson's parents, or to Manly.
2. SJT alleges that the sexual abuse started when he was 12 years old. Father Anderson would come to his house when he knew SJT's mother was not home. The nature of the sexual contact, which SJT alleges occurred on about 20 occasions over about a three-year period, escalated over time. Most of the abuse took place at SJT's home, although he says that on a few occasions it took place in the home of Father Anderson's parents. Many years later, in the late 1990s, SJT's brother told him that Father Anderson had sexually abused him as well.

Witness 2: "SDA"

1. The second witness, "SDA", was born in Macksville and attended primary school and high school there. He met Father Anderson when he was in Year 4 or 5 and Father Anderson coached the school rugby league team in which SDA played.
2. SDA alleges that Father Anderson sexually abused him on 10 or 11 occasions during the year that he played on that team. All but one of the instances of sexual abuse happened when Father Anderson drove SDA home from training. On one other occasion that year, Father Anderson took SDA to the beach during the summer and sexually abused him, again in his car.
3. The following year, when SDA was in high school, Father Anderson sexually abused him on one occasion when he took SDA and his brother for a drive in the bush and let them shoot his gun. SDA's brother was not sexually abused on that occasion, but in 2003 SDA found out that Father Anderson had sexually abused his brother on other occasions. SDA went to Macksville Courthouse the next day to report what had happened to him and his brother, but he decided not to take the matter any further when he learned that Father Anderson had died.

Witness 3: "CSP"

1. The third witness, "CSP", was also born and raised in Macksville. Like SDA, he attended primary school in Macksville. In 1966, when he was in Year 6, CSP played on a rugby league team that Father Anderson coached. CSP says that Father Anderson sexually abused him on three occasions during that year, which took place in Father Anderson's car on the drive home from training. Following the third incident, CSP told his mother what had happened. She instructed CSP not to tell anyone and made sure that she drove CSP to and from training for what remained of the season. CSP moved to Sydney with his family in August of that year.

Witness 4

1. The final witness moved to Macksville in 1964 with his father and grandmother, his father having bought a local hotel. The witness started at one of the local primary schools about halfway into Year 5, after which he attended the local high school until partway through 1968, when his family left Macksville.
2. The witness met Father Anderson in his father's hotel. After regular visits to the hotel, during which he would speak with the witness' father and grandmother, Father Anderson took the witness out in his car. He recalls there were three such occasions, each of which involved a trip to Scott's Head to go swimming and/or shooting. The witness says that on the third occasion, Father Anderson sexually abused him.

Admissibility of the unsworn statements

1. The primary judge admitted the four statements over the objection of the Lismore Trust that the conditions permitting their admission as tendency evidence under s 97 of the Evidence Act 1995 (NSW) had not been satisfied. Although his Honour recognised that there were differences between GLJ's statement and the other statements, his Honour was not satisfied that the differences were such that "on no possible view could the evidence be regarded as inadmissible as tendency evidence at the trial": J [12]. The primary judge also considered that the statements from the four witnesses were "possibly relevant in other ways, especially going to questions of foreseeability": J [12].
2. His Honour identified the differences between GLJ's unsworn statement and the unsworn statements of the other witnesses at J [25]. The "key difference" he identified was that GLJ is female, which his Honour recognised took on "some significance in light of some aspects of the documentary evidence": J [25]. A further difference was the nature of the sexual assaults alleged. GLJ described "a violent, spontaneous, opportunistic and isolated assault after she was found alone in the family home by Father Anderson", while the other accounts were "much more akin to sexual grooming".
3. As against these differences, his Honour considered that there were some aspects of GLJ's statement that had the "all too familiar ring" of grooming, including the gifts Father Anderson gave her and his befriending of her family, the latter of which was in common with the account of the fourth witness. The primary judge also referred to the "flagrant" act that Monsignor Ryan witnessed and described in his account to Father Douglas, presumably drawing a parallel between the opportunistic nature of that event and the sexual assault of which GLJ gives evidence.

Evidence of the Lismore Trust on the application

1. Mr Isaac gave evidence regarding the deaths of various members of the clergy who were referred to in the statement of GLJ and the documentary record, which I have noted above where relevant. He also gave evidence that the Lismore Diocese did not receive a complaint relating to GLJ's allegations before 2019.
2. Mr Isaac described the role of Assistant Priest as being responsible to, and acting at the direction of, the Parish Priest, undertaking tasks such as saying masses, funerals, baptisms, and weddings. He was unable to locate any documents regarding Father Anderson being appointed to assist any family.
3. Mr Isaac annexed an affidavit sworn by Sister Rosemary Carroll on 2 September 2020. Sister Rosemary was the Principal of St Patrick's Primary School in Macksville between January 1965 and December 1968. She recalled that Father Anderson was a priest in the Macksville Parish for part of her period as Principal. Sister Rosemary also taught at St Brigid's Primary School at Kyogle in 1964 but did not recall seeing Father Anderson when she was there.
4. Sister Rosemary deposed that she was never informed by anyone from the Lismore Diocese, or anyone else, about any concerns they had about Father Anderson. She never saw Father Anderson handle any child at St Patrick's, or elsewhere, in a sexual or inappropriate way, and she did not hear reports from anyone else that they had seen such conduct.

The decision of the primary judge

1. The primary judge outlined GLJ's case by reference to her unsworn statement, the unsworn statements of the four other witnesses and the extant documentary record. The primary judge also outlined the Lismore Trust's evidence at J [30]-[32], which his Honour summarised at J [30] as indicating that "virtually all of the relevant senior persons who could have provided instructions and given evidence in the current proceedings have since died". Although Senior Counsel for the Lismore Trust was critical of the primary judge's reference to "virtually all" senior persons being deceased, his Honour referred shortly thereafter to the Lismore Trust's reliance on the fact that each of the parish priests and more senior clergy who were involved with Father Anderson had died: J [33].
2. The primary judge observed at J [33] that the Lismore Trust relied on the passage of 54 years between the alleged sexual assault and the commencement of the proceedings, and the death of Father Anderson and each of the parish priests and more senior clergy who might have been able to give instructions, in particular regarding the allegation of sexual assault that is the subject of GLJ's statement. The primary judge also set out at J [34] a number of matters that Senior Counsel for the Lismore Trust emphasised "as indicating that a fair trial could no longer be held".
3. The primary judge noted GLJ's submission that the credible account that she had provided in her statement, supported by the accounts of the other witnesses and the documents, "established that, to the knowledge of his superiors in the Lismore Diocese, Father Anderson was identified as a paedophile by 1965 who was resistant to treatment": J [35]. On the case against the Lismore Trust both on direct liability and vicarious liability, GLJ relied on the knowledge of clergy within the Diocese, and the hierarchy, that Father Anderson was misbehaving in a sexual way towards young parishioners, in response to which he was moved from parish to parish rather than removed.
4. In declining to grant a permanent stay, the primary judge extracted at J [37] the summary of the applicable principles governing the court's inherent power to grant a stay that Bell P (as his Honour then was) listed in Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 ("Moubarak") at [71]. The primary judge also acknowledged the significance of the passage of time between the accrual of a cause of action and the commencement of proceedings. His Honour referred in this respect to Bell P's observation in Moubarak that this remained relevant, especially if "the effluxion of time has led to the impoverishment of the evidence available to determine the claim", which "will be more acute where a trial is exclusively or heavily dependent on oral evidence and the quality of witnesses' memory and recollection": J [38], citing Moubarak at [77]. His Honour stated that it did not follow from the death of witnesses who may be regarded by a party as important that a fair trial could not be obtained, although it may be an important factor: J [39], citing Moubarak at [88]-[89].

Leave to appeal

1. It is well settled that a grant of leave will generally be made only where an applicant has established that there is an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: Moubarak at [12], citing Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].
2. The Lismore Trust contends that the decision of the primary judge involved a clear error of principle and misapplication of the applicable discretion, which has caused substantial injustice. In response, GLJ relies on the nature of the decision as one involving a matter of practice and procedure. Additionally, GLJ contends that the primary judge made no error of a kind that would warrant this Court's interference.
3. In granting leave to appeal from a decision to refuse a permanent stay in The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 ("Council of Trinity Grammar") at [420], Bathurst CJ considered that it was appropriate that leave be granted where there were "powerful arguments that the trial judge had erred in law such that the discretion should be re-exercised" and the result of an incorrect exercise of discretion would cause substantial injustice. The present application involves arguments of a similar nature and degree; and the result of an incorrect exercise of discretion would cause substantial injustice. Accordingly, I would grant leave to appeal.

The grounds of appeal

1. Senior Counsel for the Lismore Trust accepted that the principles in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 apply in the present appeal. By reason of that acceptance, it is not necessary to resolve any debate as to whether an error of that character needs to be demonstrated in an appeal from a decision on a permanent stay: see Gorman v McKnight [2020] NSWCA 20 ("Gorman") at [50].

The submissions for the Lismore Trust

1. By its first ground of appeal, the Lismore Trust contends that the primary judge erred in principle and misapplied his discretion in failing to grant a permanent stay of the proceedings. Senior Counsel for the Lismore Trust developed this ground in oral submissions primarily by reference to the reasons of the primary judge at J [42]-[46]. In the course of those submissions, Senior Counsel also addressed the more specific allegations of error in the second ground of appeal, namely, that his Honour erred in: 1. failing to give separate consideration to the claims based on a negligence claim and the claim based on vicarious liability, which required different, although potentially overlapping, inquiries; and 2. finding there were considerations that positively demonstrated that a fair trial could be held.
2. The Lismore Trust made no complaint about the primary judge's summary of the applicable principles in J [37] and [38]. However, the Lismore Trust took issue with the applicability of the primary judge's observation in the next paragraph, citing Moubarak at [89], that the death of witnesses who may be regarded by a party as important will not mean that a fair trial cannot be obtained, "although, obviously it may be an important factor": J [39]. The Lismore Trust submitted that this observation overlooked that all of the witnesses who could give instructions regarding whether Father Anderson sexually abused GLJ were deceased.
3. The absence of any evaluation of the position in which the death of witnesses (including but not limited to Father Anderson) left the Lismore Trust on that key factual issue was central to the allegation of error. The Lismore Trust relied on a number of aspects of the reasoning of the primary judge, starting with his Honour's recognition, at J [42], that there were "undoubtedly forensic disadvantages attending the passage of time in this case because of the death of the clergy", without providing any detail as to what those disadvantages were. The Lismore Trust submitted that his Honour's emphasis at J [43] on the nature of child sexual abuse as occurring in a private place in respect of which "[r]arely can it be expected that eyewitnesses will be available, if ever", overlooked that there would ordinarily be two witnesses (and perhaps other witnesses where there was complaint evidence). His Honour's reliance in this respect on the extant documentary evidence, as demonstrating that Father Anderson's misconduct was well-known to his superiors before the event relied upon by GLJ, said nothing about the incident in the present case.

The submissions for GLJ

1. Senior Counsel for GLJ submitted that the primary judge did not apply the wrong test in refusing the permanent stay, describing his Honour's conclusion at J [45] as consistent with the principles that apply to considering the grant of a permanent stay and the application of those principles in cases of this kind. The decision to refuse a permanent stay reflected the primary judge's assessment of the arguments the Lismore Trust advanced, which his Honour took as an indication that it could engage with the detail of the matter.
2. In so far as there was no evidence available to the Lismore Trust in relation to GLJ's account of the sexual assault, GLJ contended that was a difficulty for her at the trial, not for the Lismore Trust. Further, even if Father Anderson were alive, it was highly unlikely that he would be called, meaning that the Lismore Trust was in no more difficult position than if the case had been run a short time after the alleged events. Indeed, the conclusion his Honour reached reflected the particular circumstances of the case, where none of the priests would have been called to give evidence but there was a significant amount of documentary material.
3. Senior Counsel for GLJ accepted that there were no documents before the primary judge that expressly corroborated her allegation that Father Anderson sexually assaulted her, or that indicated anyone within the Diocese knew that it had occurred. However, he submitted that cases are proved not only by direct evidence but by inference. Whether inferences could be drawn in relation to the incident, for example from Father Anderson's regular attendance at GLJ's home or his closeness to her family, were matters for trial. In so far as the foreseeability of the risk that Father Anderson posed to children was concerned, documents had been produced which went to that risk and relevant knowledge thereof. GLJ's case on risk was not specific to young girls.
4. In relation to the primary judge's approach to the other unsworn statements, it was submitted for GLJ that his Honour was correct to conclude that the admissibility of the tendency evidence was a matter for trial, noting that the Lismore Trust had not sought an advance ruling as to admissibility under s 192A of the Evidence Act. Further, and in any event, the utility of the statements was not limited to similar fact evidence; their content was also relevant to the relationship between the Diocese and parishioners and between Father Anderson and parishioners, with the knowledge of the Diocese. Additionally, there was no evidence that the Lismore Trust had made any investigation into those statements of the nature that was made in Council of Trinity Grammar.

Consideration

1. The principles that apply to the grant of a permanent stay under s 67 of the Civil Procedure Act are well settled. As I noted above, the primary judge quoted the series of propositions that Bell P identified in Moubarak at [71]. Those propositions derived, in turn, from one or more of the High Court's decisions in Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 ("Jago"), Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34, Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 and Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27. Omitting his Honour's citations, those principles are as follows: (i) the onus lies "squarely" on the defendant; (ii) a permanent stay should only be ordered in exceptional circumstances; (iii) a permanent stay should be granted when the interests of the administration of justice so demand; (iv) the categories of cases are not closed; (v) one category of case where a permanent stay may be granted is where the proceedings or their continuance would be vexatious or oppressive; (vi) the continuation of proceedings may be oppressive if that is their objective effect; (vii) proceedings may be oppressive where their effect is seriously and unfairly burdensome, prejudicial or damaging; (viii) proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party; and (ix) proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute.
2. Chief Justice Bathurst outlined the principles by reference to many of the same authorities in Council of Trinity Grammar at [422]-[430].
3. The documentary record in the present case arguably demonstrates, as the primary judge observed, "that Father Anderson's misconduct was well-known to his superiors, well before the event relied upon by the plaintiff": J [43]. From his very first assignment in the Kyogle Parish, senior members of the clergy, including the Bishop of Lismore at the time, were arguably aware that Father Anderson was sexually abusing young boys. By the time Bishop Farrelly came to euphemise Father Anderson's deviant conduct as his "recurring trouble in sexual matters", Father Anderson had spent time in four further parishes, including the Lismore Parish. More than one parish priest identified Father Anderson's interest in the young, particularly in young males. Some referred specifically to allegations of sexual abuse of which they were aware. One priest, Monsignor Ryan, potentially witnessed such activity.

Consideration of vicarious liability

1. As I noted above, the Lismore Trust contended that the primary judge erred in not considering separately the issue of vicarious liability, relying on what Bathurst CJ said in Council of Trinity Grammar. I do not accept this contention. As it is necessary to re-exercise the discretion for the reasons I have identified above, I will deal with this reasonably briefly.
2. The plaintiff in Council of Trinity Grammar brought a case in negligence and vicarious liability against the defendant in relation to his having been sexually assaulted by a member of staff on four occasions. In concluding that the primary judge failed to consider separately the claims of breach of duty and vicarious liability, Bathurst CJ relevantly observed at [433]-[434] that: 1. consideration of the claim for breach of a non-delegable duty involved consideration of questions such as what inquiries were made before the member of staff was employed by Trinity and the systems and procedures put in place to protect pupils from any reasonably perceived risk. It would also involve the question of whether Trinity became aware during the course of the teacher's employment that he or other teachers were abusing students and the steps put in place to prevent that occurring (at [433]); and 2. by contrast, the claim for vicarious liability depended on the role that Trinity assigned to the teacher and whether its performance may, in the words of the plurality in Prince Alfred College at [81], "give the 'occasion' for the wrongful act" (at [434]). The primary judge in Council of Trinity Grammar had erred in focussing solely on vicarious liability and thus overlooked the distinction.
3. In this case, the primary judge referred to vicarious liability when recording the submission of GLJ that the same facts on which she relied for the liability of the Diocese in negligence were relevant to the case on vicarious liability, in so far as they pointed to the principal's placement of the agent in the position of intimacy and power in relation to the people who were assaulted: J [36]. Subsequently, at J [43], his Honour accepted GLJ's submission regarding the extent to which the documentary evidence demonstrated knowledge on the part of Father Anderson's superiors of his misconduct.
4. Although the brevity of this conclusion makes it difficult positively to conclude that vicarious liability formed part of his Honour's consideration, I do not think it can be said that no such consideration was given. As Bathurst CJ observed in Council of Trinity Grammar, the inquiries involved in considering breach of duty and vicarious liability are potentially overlapping. In this case, they are likely to overlap more closely having regard to the nature of the relationships between the Diocese and Father Anderson, the Diocese and parishioners, and Father Anderson and parishioners.

The alleged sexual assault

1. In light of my conclusion that his Honour's exercise of the discretion in s 67 of the Civil Procedure Act miscarried, it falls to be re-exercised. I have extracted at [95] above the applicable principles, the first of which is that the burden of establishing the existence of exceptional circumstances lies "squarely" on a defendant. That burden includes demonstrating that all reasonable enquiries which bear upon the fairness or unfairness of the proceedings have been undertaken: Gorman at [94] (Payne JA).
2. The passage of time since the sexual assault that forms the basis of the claims in the present case is not a matter in respect of which there is any criticism of GLJ. The absence of criticism is consistent with the rationale for the removal of the time limitation on actions of this nature: Moubarak at [75]. Section 6A of the Limitation Act constitutes statutory recognition of the reality facing survivors of sexual and other child abuse. A survivor may take decades to understand and act on the harm arising from the abuse: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 16 February 2016 at 6399. For a survivor who has reached the point of being able to disclose abuse, "[i]t cannot be assumed, or expected, that considering whether to commence civil litigation will be their first priority": Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (September 2015), at 444.
3. At the same time, the inclusion of s 6A(6) recognises that the significant public interest to which the removal of the limitation period for actions of this kind gives effect remains subject to the court's power to stay proceedings in the exceptional cases that call for its exercise. As Leeming JA observed in Moubarak at [193], "[t]he exercise of the discretionary power preserved by s 6A(6) will fall to be worked out case by case".
4. The passage of time of some 54 years since the events the subject of GLJ's allegations does not of itself warrant the grant of a permanent stay. It is the consequences of that passage of time which place the case in the exceptional category, having regard to the particular factual circumstances.
5. The Lismore Trust was not on notice of GLJ's allegation of sexual assault before 2019. On her own account, there were no witnesses. There are no documents dating back to or around the time of the alleged assault that detail or otherwise refer to what GLJ alleges occurred.

Negligence and vicarious liability

1. I do not accept that the difficulties that the Lismore Trust advanced regarding the negligence and vicarious liability aspects of GLJ's claims warrant a permanent stay. Having regard to the documents that are available, the unavailability of witnesses (including Father Anderson) is not productive of manifest unfairness to the Lismore Trust on either of those issues.
2. As to negligence, the Lismore Trust relied on the absence or deficiency of evidence regarding the activities of Father Anderson. For the purposes of the negligence claim, the Lismore Trust submitted that it would be necessary to understand who in the Diocese knew of those activities, with whom that knowledge was shared, and when it was acquired. Further, although it was apparent that the Diocese took some measures, the extent of those measures was and would remain unclear, such that it could not be determined whether what the Diocese did was sufficient or not.
3. The documentary record relating to Father Anderson is incomplete and lacking in detail, including in relation to the nature of the attempts to address Father Anderson's deviant behaviour. The record arguably shows, however, that senior clergy knew that he was engaging in such behaviour during the period of his first appointment. The documents also arguably show that it was known that Father Anderson was resistant to treatment (with Monsignor Ryan reporting to Father Douglas, albeit second hand, that Father Anderson ceased the psychiatric treatment to which he initially submitted on the basis that there was nothing wrong with him. As to the existence or otherwise of training or other systems within the Diocese regarding the behavioural management of priests more generally, there is no evidence that the Lismore Trust has undertaken any searches for records of that nature.
4. On the issue of vicarious liability, the Lismore Trust submitted that there was no evidence beyond speculation as to why a priest was attending GLJ's home. Evidence as to whether the Diocese encouraged or permitted it, or knew about it, was critical to the vicarious liability case in so far as that case required the Diocese to have put Father Anderson in a position where he could achieve intimacy with GLJ (relying on Prince Alfred College Inc v ADC at [81] and [84]).
5. An example of the type of evidence that may be available in this regard can be seen in DP v Bird [2021] VSC 850. The plaintiff in that case sued the Diocese of Ballarat, through the current Bishop, for negligence and vicarious liability in respect of sexual assaults that he alleged were perpetrated by an assistant priest, Father Coffey, in 1971. In finding that the Diocese was vicariously liable for the assaults, his Honour accepted detailed evidence given by a parish priest who deposed to the duties of a priest and assistant priest within a Catholic parish in Victoria in the 1970s. I note that this decision is presently under appeal.

Conclusion

1. I propose the following orders, which reflect the orders sought in the draft notice of appeal: 1. Grant leave to appeal. 2. Order that the applicant file a notice of appeal in accordance with the draft notice of appeal within 7 days. 3. Appeal allowed. 4. Set aside the orders of the primary judge and in lieu thereof order that the proceedings be permanently stayed. 5. The respondent to pay the applicant's costs of the appeal.

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