The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ - [2022] NSWCA 78 - NSWCA 2022 case summary — Zoe

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

[2022] NSWCA 78

Court of Appeal (NSW)|2022-04-01|Before: Macfarlan JA, Brereton JA, Mitchelmore JA, Campbell J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2022-04-01

Before

Macfarlan JA, Brereton JA, Mitchelmore JA, Campbell J

Catchwords

[1936] HCA 40 Hughes v The Queen (2017) 263 CLR 338
[2017] HCA 20 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Jago v District Court of New South Wales (1989) 168 CLR 23
[1989] HCA 46 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218
[2019] NSWCA 102 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134

Source

Original judgment source is linked above.

Catchwords

[1936] HCA 40 Hughes v The Queen (2017) 263 CLR 338[2017] HCA 20 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Jago v District Court of New South Wales (1989) 168 CLR 23[1989] HCA 46 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218[2019] NSWCA 102 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134[2016] HCA 37 R v Bauer (2018) 266 CLR 56[2018] HCA 40 R v Matonwal and Amood (2016) 94 NSWLR 1[2016] NSWCCA 174 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597[2017] NSWCA 206 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597[2017] NSWCA 206 The Age Company Ltd v Liu (2013) 82 NSWLR 268[2013] NSWCA 26 The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762[2019] NSWCA 292 Walton v Gardiner (1993) 177 CLR 378[1993] HCA 77 Williams v Spautz (1992) 174 CLR 509

Judgment (32 paragraphs)

[1]

[4]

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].

[5]

Judgment

MACFARLAN JA: I agree with Mitchelmore JA and also with the additional observations of Brereton JA.
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.
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.
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.
I agree with the orders proposed by Mitchelmore JA.
MITCHELMORE JA: The applicant, The Trustees of the Roman Catholic Church for the Diocese of Lismore ("Lismore Trust"), is incorporated pursuant to s 4 of the Roman Catholic Church Trust Property Act 1936 (NSW). It seeks leave to appeal from an order of the Supreme Court dismissing its application for a permanent stay of proceedings that the respondent commenced against it on 31 January 2020. The respondent has been given the pseudonym "GLJ" for the purposes of the proceedings and I intend no disrespect to her by using this pseudonym.
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 was 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 that there was any criticism to be made of the respondent in commencing proceedings when she did. Rather, the Lismore Trust contended that it had 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" (J [41]). By its draft notice of appeal, the Lismore Trust contends that in declining to exercise the discretion to grant a permanent stay, the primary judge erred in principle and misapplied the discretion.
For the reasons that follow, I would grant leave to appeal, allow the appeal, set aside the orders of the primary judge, and grant a permanent stay of the proceedings.

[6]

The case against the Lismore Trust

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.
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.
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.
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.
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.
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.
GLJ says that she only saw Father Anderson one other time, when she was about 17 years old. She was having dinner at home with her father and one of her brothers when there was a knock at the door. Her father answered the door to Father Anderson, who asked if he could speak to GLJ. She refused.
GLJ says that she told a number of persons about the sexual assault, including her first boyfriend, when she was 17 years old, and her first husband, before they were married. She believed that she must also have told one of her school friends, because when she rang that friend after a long time, in about 2014, the friend told her that Father Anderson had died and sent her a photo of his tombstone.
The Amended Statement of Claim alleges that the Lismore Trust owed GLJ a duty of care to: 1. protect her from a reasonably foreseeable risk of harm namely injury, and specifically the harm as a result of sexual abuse by Father Anderson; 2. protect her from the risk of sexual abuse by its priests including Father Anderson; and, 3. devise and maintain a system to protect her as a member of the congregation from the risk of sexual abuse by its priests, including Father Anderson.
GLJ alleges that the Lismore Trust breached that duty in a number of respects, including, in summary: 1. allowing Father Anderson to remain as a priest and to perform the functions of a priest, including when it knew or should have known that he had a propensity to sexually abuse children, and impliedly representing that he could be trusted with the care of children; 2. failing to instruct Father Anderson not to sexually abuse her and failing to warn her family about the risk of her being sexually abused by Father Anderson; 3. failing to manage or adequately manage the risk of her being sexually abused by Father Anderson; 4. failing to report Father Anderson to the police; 5. failing to supervise or adequately supervise its priests, including Father Anderson, in the performance of their functions as priests in the Diocese; 6. failing to initiate or maintain any or any adequate system to protect her from the risk of sexual abuse by its priests including Father Anderson, and to protect members of the congregation including her from the abuse of the relationship of authority, power, trust and intimacy between its priests and members of the congregation; 7. failing to train or adequately train its priests, including Father Anderson, about the risks of sexual abuse of children; and 8. failing to exercise due skill and care in the management of the Diocese and its priests.
GLJ alleges that as a consequence of the sexual abuse, she "suffered complex post-traumatic stress disorder, chronic and recurrent depressive disorders, generalised anxiety disorder, panic disorder, sexual disorder, enduring post-traumatic personality change and harmful alcohol use (harm)". GLJ alleges that the sexual abuse and the injuries she sustained, including the harm as defined, were caused by the Lismore Trust's breach of the pleaded duty of care.
The claim of vicarious liability relates to the sexual assault and, additionally, breach of a duty of care that Father Anderson is alleged separately to have owed to her. In summary, GLJ contends that the acts and omissions of Father Anderson occurred within the course of, or while performing, his functions and duties as a priest. She further contends that Father Anderson was a delegate of the Lismore Trust in respect of the discharge of the duty of care owed to her.
The Lismore Trust has not yet filed a Defence to the Amended Statement of Claim. In the Defence to the Statement of Claim, the Lismore Trust did not admit the allegations of fact regarding the sexual assault. The Lismore Trust also did not admit the allegations regarding duty of care, breach of duty and vicarious liability. In response to the allegations regarding the duty of care pleaded against Father Anderson and the breach of that duty, the Lismore Trust pleaded that it did not know and therefore could not admit the facts on which those allegations rest.

[8]

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

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).
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.
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'."
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.

[9]

Kyogle Parish

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.
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."
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".
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".
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.
The material produced on subpoena by the NSW/ACT Professional Standards Office includes details of claims submitted by five individuals, each of whom claimed to have been sexually abused by Father Anderson when a child. The identifying information has been redacted from the documents, but it is nonetheless apparent that each of the complainants was male. One of the individuals claimed that when he was 11 years old and living in Kyogle, Father Anderson sexually abused him on multiple occasions.

[12]

Lismore Parish

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].
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.
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.

[22]

The decision of the primary judge

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].
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".
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.
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].
Having set out the applicable principles, the primary judge reached the conclusion at J [41] that I set out in [13] above. His Honour's reasons for that conclusion were as follows (J [42]-[46]): "[42] Although there are undoubtedly forensic disadvantages attending the passage of time in this case because of the death of the clergy I have referred to, there are a number of considerations which positively demonstrate that a fair trial can still be had. [43] It has to be borne in mind that it is in the nature of child sexual abuse that mostly, if not overwhelmingly, the aspect of gross misconduct relied upon by the plaintiff occurs in a private place, away from prying eyes. Rarely can it be expected that eyewitnesses will be available, if ever. Moreover, as Mr Black submitted, the body of extant documentary evidence amply demonstrates that Father Anderson's misconduct was well-known to his superiors, well before the event relied upon by the plaintiff. [44] This is not a case where everything depends upon the acceptance of the plaintiff's account in the absence of any available contradictor. And contrary to Mr Black's submission, it is impossible for me to make any assessment of its credibility on the papers. I accept given other apparently established facts it is not implausible or improbable. While it may be accepted that Father Anderson is not available to offer a resolute denial, there is plenty of objective ammunition by which his credibility in that regard could be called into question. [45] But of all the relevant factors, I am most impressed by the detailed factual arguments advanced by Mr Polin, which I have summarised at [34] above. It's evident from the detail of those submissions, which were advanced with some persuasion, that the defendant has available to it proof of potentially significant circumstances that can be deployed in contradiction of the plaintiff's claim. I am not purporting to pre-judge anything. My task is one of evaluation of future forensic probabilities from imperfect materials. However, it is evident that Mr Polin's factual submissions were advanced on the basis of extant evidence. A trial of the issues in this case would be no mere charade calculated to bring the administration of justice into disrepute amongst right-thinking people. [46] I accept fully that the enactment of s 6A, as the Chief Justice has pointed out, does not affect the principles governing the exceptional circumstances in which a permanent stay of proceedings will be granted. At the same time, while bearing that consideration firmly in mind, the abrogation of a limitation period in respect of such matters may be taken as an indication that, subject to those principles, as a matter of public policy, the Parliament has determined, according to the terms of s 6A as a whole, that child abuse actions should be permitted to proceed despite the effluxion of even long periods of time and an inevitable resulting degree of impoverishment of evidence, provided a fair, not perfect, trial can be had."

[25]

The submissions for the Lismore Trust

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.
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.
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 Lismore Trust took issue with his Honour's statement that this was "not a case where everything depends upon the acceptance of the plaintiff's account in the absence of any available contradictor" (J [44]). The Lismore Trust submitted that this misapprehended that the issue of whether Father Anderson sexually assaulted GLJ necessarily depended on acceptance of her account, as to which the Lismore Trust had no available instructions. It also took issue with his Honour's statement that while "Father Anderson is not available to offer a resolute denial, there is plenty of objective ammunition by which his credibility in that regard could be called into question" (J [44]). The Lismore Trust contended that this involved a misunderstanding of the significance of Father Anderson's unavailability (and of others) in terms of the content of instructions he (or others) might have provided and how those instructions might affect the probative value of other evidence.
The Lismore Trust further submitted that his Honour's assessment of the submissions it advanced below, which indicated that it had available "proof of potentially significant circumstances that can be deployed in contradiction of the plaintiff's claim" (J [45]), was problematic in so far as it relied on the summary at J [35]. The Lismore Trust submitted that the content of J [35] included the same material on which his Honour apparently relied to characterise GLJ's account as not improbable or implausible. As to his Honour's conclusion at J [45] that "[a] trial of the issues in this case would be no mere charade calculated to bring the administration of justice into disrepute amongst right-thinking people", the Lismore Trust contended that this misstated the test for a permanent stay. The Lismore Trust also criticised his Honour's description at J [46] of the amendments to the Limitation Act 1969 (NSW) as effectively creating a presumption in favour of permitting a case like the present to run.
In relation to the additional unsworn statements, the Lismore Trust submitted that the primary judge erred in overruling its s 97 objection on the basis that the contest of admissibility "could only be resolved at trial" (J [12]). The Lismore Trust submitted that the primary judge needed to resolve the admissibility of that material on the application as a necessary element of determining whether it could receive a fair trial. If, for example, the material was admissible, it would increase the scope of the material that the Lismore Trust would have to meet. Senior Counsel for the Lismore Trust submitted orally that in this respect his Honour had not considered the statements from the perspective of what was available to the Lismore Trust (or, more relevantly, what was not available). Given the differences between those accounts and that of GLJ to which the primary judge referred, including but not limited to gender, it was possible that those statements were of very limited probative value in terms of the allegations; and that was impossible to ascertain. The Lismore Trust also submitted that the primary judge erroneously relied on the unsworn statements as supporting the plausibility of GLJ's account when determining the application.
As to vicarious liability, the Lismore Trust submitted that the primary judge did not analyse the key factual issues that would be relevant in considering that claim. Relying on Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 at [80]-[81], the Lismore Trust contended that the primary judge had not referred to the difficulties that arose in the circumstances of this case in terms of engaging in the factual analysis that is required to determine whether an employer is vicariously liable for a wrongful act that is a criminal offence. The Lismore Trust relied in this respect on the reasons of Bathurst CJ in Council of Trinity Grammar at [431]-[434]. Although Senior Counsel for the Lismore Trust agreed that a permanent stay of the vicarious liability claim would not affect continuation of the negligence claim, he relied on the alleged error in approach as a further indication of the primary judge having bypassed a critical issue.

[26]

The submissions for GLJ

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.
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.
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.
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.
On the issue of vicarious liability, GLJ submitted that the issue was not one that had to be dealt with in detail in circumstances where there could be no doubt as to the relationships between the Diocese and Father Anderson, the Diocese and GLJ, and Father Anderson and GLJ. Reference was made in this regard to the decision of J Forrest J in DP v Bird [2021] VSC 850, in which evidence was led as to the nature and extent of the duties of a parish priest at the time relevant to the allegations in that case, some 52 years before proceedings were commenced. In any event, a stay of the vicarious liability claim would not affect the continuation of the claim in negligence.
At the conclusion of oral submissions, and in a written note provided shortly after the hearing, references were provided for documents which were said to be available to the Lismore Trust to deal with the case. The list included documents in which, it was submitted, Father Anderson had made certain admissions as to his conduct as a matter of inference: 1. One example was a letter written by Monsignor Ryan to Father Anderson dated 12 October 1965, specifically a passage in which Monsignor Ryan counselled Father Anderson, telling him that "[t]he important thing is a present rectification of what is wrong with you" and that "[s]hame and a feeling of desolation as if something like the end of everything has come must be in you at present". Counsel for GLJ described this passage as generating a perception that something must have been said by Father Anderson in the nature of an admission. 2. A second example was a letter from Father Anderson to Bishop Farrelly dated 15 June 1968, in which the former referred to overhearing a phone conversation between Father Cranney and Monsignor Ryan which impressed upon him "how great a worry it is to Father Cranney having me in the parish". Father Anderson concluded the letter by stating that it would be "useless" for him to continue as a priest and asking to be released from his priestly vows.
For my part, I do not consider that it could reasonably be inferred from either of those documents that Father Anderson made an admission as to having engaged in any particular conduct, let alone conduct that would be relevant to GLJ's claims. One can only speculate in relation to the first letter as to what Monsignor Ryan was referring to. The conclusion of the second letter does not constitute an acknowledgment on the part of Father Anderson that he had engaged in any particular conduct.
Finally, GLJ submitted that if there had to be direct and positive evidence that an event of the kind she alleged occurred, s 6A of the Limitation Act and the whole scheme behind it would be put at nothing. If it were necessary for a defendant to be able to have an opportunity to explore and investigate claims of the present nature with witnesses, that would significantly truncate the legislative reform of s 6A and the cognate changes in Part 1B of the Civil Liability Act 2002 (NSW), which enabled institutions to be made parties to these claims.

[27]

Consideration

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.
Chief Justice Bathurst outlined the principles by reference to many of the same authorities in Council of Trinity Grammar at [422]-[430].
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.
The Lismore Trust did not dispute what the records showed regarding Father Anderson's sexual interest in young boys and his preparedness to act on that interest. Its case for a permanent stay emphasised the absence of any record that related to GLJ's specific allegations, and the absence of any opportunity to put those allegations to Father Anderson and others who were appointed within the Diocese at the time.
The primary judge acknowledged that there were "undoubtedly forensic disadvantages attending the passage of time in this case because of the death of the clergy". His Honour sought to answer that acknowledgment generally, by reference to "a number of considerations which positively demonstrate that a fair trial can still be held". However, the considerations which his Honour proceeded to address were not responsive to the difficulties that the Lismore Trust identified on the issue that was central to its liability.
The primary judge first described child sexual abuse as almost overwhelmingly occurring in a private place, such that "[r]arely can it be expected that eyewitnesses will be available, if ever". This statement may be accepted in so far as it concerns witnesses apart from the complainant and the alleged perpetrator, but it is of limited significance where the alleged perpetrator is deceased without knowledge of the allegations. True it is that Father Anderson is not a party, and the Lismore Trust would not necessarily (or likely) have called him as a witness were he alive. On the stay application, however, the point was that without any account from Father Anderson (or other priests in the parish), the Lismore Trust was at a significant disadvantage on the issue of whether Father Anderson sexually assaulted GLJ.
That the primary judge erred in his Honour's assessment of the impact of Father Anderson's death on the fairness of the trial as to this issue is highlighted in the following paragraph. After referring to what the "body of extant documentary evidence" demonstrated in J [43], his Honour stated at J [44] that the present is "not a case where everything depends upon the acceptance of the plaintiff's account in the absence of any available contradictor". Contrary to his Honour's description, on the issue of the alleged sexual assault of GLJ there is no available contradictor and "everything does depend upon the acceptance of the plaintiff's account".
That his Honour misapprehended the facts in this regard is also apparent from J [44], where his Honour stated: "While it may be accepted that Father Anderson is not available to offer a resolute denial, there is plenty of objective ammunition by which his credibility in that regard could be called into question". His Honour was likely addressing the reliance the Lismore Trust placed on Father Anderson not being available to deny the assault: see J [34(e)]. Critically, however, his Honour's response rests on making an assumption as to how Father Anderson would have responded. The need to make that assumption highlights the reality of the Lismore Trust's position: there was no response from Father Anderson, denial or otherwise, the credibility of which could be evaluated.
The absence of instructions from Father Anderson also put the Lismore Trust in a difficult position in relation to the four unsworn statements which GLJ put forward in support of her case. The impact on the fairness of the trial of the Lismore Trust having to meet that evidence, should it be admitted, in the absence of Father Anderson needed to be brought to account. There is nothing in the reasons to indicate that his Honour undertook that task.
The Lismore Trust submitted that the primary judge proceeded to place weight on the four unsworn statements in reaching his decision. In my view, his Honour was quite careful to refer, in J [43], to "the body of extant documentary evidence" (emphasis added) as demonstrating knowledge on the part of the clergy. Knowledge of the clergy was not a matter that any of the statements addressed. His Honour also referred to GLJ's account as being "not implausible or improbable" by reference to "other apparently established facts", which description would not likely extend to the statements. Nevertheless, his Honour may have placed some weight on the unsworn statements at J [45], in describing the submissions of the Lismore Trust as indicating the availability of "proof of potentially significant circumstances that can be deployed in contradiction of the plaintiff's claim". Relevantly, as summarised by his Honour at J [34(f)], the Lismore Trust had submitted that one of the reasons a fair trial could no longer be had was that: "(f) the extant material, while demonstrating that Father Anderson had a sexual interest in boys, [contained] no direct suggestion of a sexual interest in young teenage girls. The interest in boys was expressed through sport including football, fishing, shooting and surfing. This interest seemed to have been associated with significant grooming which appeared to be absent in the plaintiff's case."
The first part of this submission may relate to material in the documentary record or the unsworn statements, but the references to the specific activities by which Father Anderson expressed his interest in boys, and grooming, could only have derived from the statements. In my view, his Honour's characterisation of the Lismore Trust's submission in this regard as factual and "advanced on the basis of extant evidence" mischaracterised the status of the four statements. It also misunderstood the point of the submission, which went to the absence of extant evidence on the basis of which it could meaningfully interrogate GLJ's allegations as to what occurred.
The submission of the Lismore Trust to which I have just referred formed part of the primary judge's summary in J [34] of the Lismore Trust's arguments on the application. At J [45], his Honour stated that in refusing the permanent stay he attributed considerable weight to the detail of those arguments on the basis I have explained in [104] and [105]. The submission was that the following facts, in addition to (f) quoted in [104], indicated that a fair trial could no longer be had: "(a) having regard to the chronology of Father Anderson's various appointments within the Diocese, the uncertainty about the date on which the assault was said to have taken place; (b) the evidence of Mr Isaac to the effect that an assistant priest would not be assigned to the type of pastoral care described by the plaintiff; (c) the very limited opportunity for Father Anderson to provide that pastoral care, and indeed to offend in the manner alleged given the relatively short time, perhaps only two months, he served directly in the Lismore Parish; (d) the plaintiff stated that the assault occurred when she returned home from netball. It was submitted that netball is a winter sport and Father Anderson was appointed to Lismore during summer months; (e) Father Anderson was not available to deny the assault; …"
Only the submission in (d) was directly responsive to an aspect of GLJ's account, and it relied on the general timing of the netball season. By contrast, the submissions in (a) and (e) (and (f)) relied on the absence of available evidence in respect of her account. This highlights the difficulty with the conclusion that his Honour drew from this material, namely, that "[a] trial of the issues in this case would be no mere charade calculated to bring the administration of justice into disrepute amongst right-thinking people": J [45] (emphasis added). 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.
Senior Counsel for the Lismore Trust contended that the primary judge's conclusion was the product of applying the wrong test. However, I agree with Senior Counsel for GLJ that his Honour was here likely picking up the statement of Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536 that the power of a superior court to stay proceedings as an abuse of process is: "…the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people." As Senior Counsel for GLJ also submitted, Lord Diplock's statement has been cited with approval, including in Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 at [69]; and Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 at [6].
I do not accept the Lismore Trust's further submission that in J [46] the primary judge treated s 6A of the Limitation Act as creating a presumption in favour of permitting a case like the present to run. Reading that paragraph as a whole, his Honour proceeded on the basis that s 6A does not affect the applicability of the principles regarding permanent stays.

[28]

Consideration of vicarious liability

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.
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.
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.
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.
GLJ advanced an argument in a draft Notice of Contention in relation to the vicarious liability issue, by which she sought to maintain the decision on the basis that any error with respect to the vicarious liability claim would not affect the negligence claim. As I have not accepted the Lismore Trust's submission on vicarious liability, it is unnecessary to consider the Notice of Contention.

[29]

The alleged sexual assault

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).
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.
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".
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.
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.
The issue of whether Father Anderson sexually assaulted GLJ is foundational to the causes of action pleaded against the Lismore Trust. Accordingly, although Father Anderson is not a defendant, he is a critical witness. Father Anderson died in 1996, before the Lismore Trust was on notice of the allegations. It follows that the Trust did not have an opportunity to confront him with the detail of GLJ's allegations and obtain instructions for the purposes of its defence of her claims, nor will it be able to call him as a witness if it so chose. The latter was not perceived to present a difficulty in Gorman, where the alleged perpetrator was also deceased. However, some inquiries were made of him before his death; and there was evidence of telephone conversations between him and one of the complainants, which had been recorded: at [85]. In the present case, Father Anderson died before any inquiries could be made; and there is no other material that sheds light on his putative response.
In her statement, GLJ has provided a deal of information about her family's circumstances, including the address of the house where she alleges Father Anderson sexually assaulted her. Although her parents are deceased, her three siblings are alive (GLJ does not suggest that she told any of them of the sexual assault but refers to them in the context of other interactions with Father Anderson). There is no indication that the Lismore Trust has made any inquiries in respect of the house, or the siblings, or as to the availability or otherwise of the persons whom GLJ says she told about what happened, the earliest occasion being within three years or so of the alleged sexual assault. However, any forensic steps that these inquiries might open up for the Lismore Trust would not, in my view, ameliorate the difficulty that without Father Anderson it is, to use Bell P's description of the defendant in Moubarak at [158], "utterly in the dark" on the central issue.
In Moubarak, it was the defendant who was the subject of the allegations. He was suffering from dementia which was in an advanced stage before the allegations of sexual assault were made known to him and which necessarily impacted on his ability to provide instructions, including during the course of the hearing. Whilst I am cognisant of the need for caution when it comes to comparing individual features of different cases, the significance of Father Anderson to the case against the Lismore Trust presents a similar difficulty to that which confronted the defendant in Moubarak. In my view, there is nothing a trial judge could do in the conduct of the trial to relieve against its unfair consequences: Jago at 34 per Mason CJ.
I accept the submission that the Lismore Trust made before the primary judge, and on the appeal, that the difficulty Father Anderson's death creates in this case is highlighted by the foreshadowed tendency evidence. For the purposes of the stay application, it is relevant that each of the unsworn statements from the additional four witnesses alleges that Father Anderson engaged in conduct the detail of which was not put to him before he died. The documents that were otherwise in evidence, however, provide some support that Father Anderson engaged in conduct of the nature that each alleges. As I have set out above, the petition for Father Anderson's laicisation relied on his homosexuality, which Bishop Farrelly described as involving young boys in every case of which he was aware. That characterisation of his behaviour was supported by accounts from other priests within the Diocese, including Monsignor Ryan.
Section 97(1) of the Evidence Act provides that "[e]vidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless … the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value". Evaluation of "significant probative value" requires an assessment of the nature of the facts in issue to which the evidence is relevant and the significance or importance the evidence may have in establishing those facts: R v Matonwal and Amood (2016) 94 NSWLR 1; [2016] NSWCCA 174 at [77]-[78] per Bathurst CJ. In Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41], Kiefel CJ, Bell, Keane and Edelman JJ concluded that there was likely to be a high degree of probative value where: "(i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged."
In the present case, there was no tendency notice for the purposes of the interlocutory hearing but Senior Counsel for GLJ before the primary judge submitted that the fact for which the other statements provided a foundation was that, at the relevant time, Father Anderson was disposed to paedophilia. The evidence in the unsworn statements would likely be probative of a fact articulated at that level of generality, taking it at its highest consistently with authority: see eg R v Bauer (2018) 266 CLR 56; [2018] HCA 40. The question, then, would be whether a tendency so identified would strongly support proof of a fact in issue in these proceedings (noting that s 97A of the Evidence Act only applies in criminal proceedings). By reason of Father Anderson's death, the Lismore Trust does not have a meaningful opportunity to engage with that question or the material more generally.
The Lismore Trust also relies on the absence of an opportunity to make inquiries of other priests within the parish at the time of the alleged assault, including Bishop Farrelly and Reverend Brown, along with other priests who gave an account to Father Douglas in support of the laicisation petition. Such information as that opportunity may have garnered may likely have gone more directly to the issues of negligence and vicarious liability. GLJ refers in her statement to Reverend Brown, for example, having appointed Father Anderson to visit her father and provide pastoral support to the family.

[30]

Negligence and vicarious liability

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.
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.
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.
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]).
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.
Mr Isaacs gives evidence in his second affidavit that he was unable to locate any documents indicating that Father Anderson was ever appointed to assist a family, but he also gives evidence regarding what the role of an assistant priest within the parish entailed. That evidence is as general as it is brief, but his ability to give it suggests that the Lismore Trust is in a position to provide instructions as to whether Father Anderson's role would extend to pastoral home visits.

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

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Cases Cited (31)