NSW to consider action over Catholic church abuse legal tactics

The Guardian [London, England]

November 2, 2023

By Christopher Knaus

Attorney general Michael Daley requests urgent briefing on high court’s damning judgment on use of permanent stays

The New South Wales attorney general, Michael Daley, has ordered an urgent briefing on the landmark high court decision over the Catholic church’s tactics in abuse cases.

The high court on Wednesday delivered a damning judgment against the church over its use of permanent stays to permanently halt survivors’ claims, finding that such a measure should only be used as a last resort.

The church and other powerful institutions have been using stays routinely where perpetrators have died, or where other witnesses or documentary evidence do not exist, allowing it to defeat active claims before courts or low-ball survivors during settlement negotiations.

The tactic effectively uses a survivor’s delay in coming forward to defeat their claim, an approach criticised as immoral, given the church’s own role in delaying justice and the vast barriers that complainants face to coming forward.

Survivors and their lawyers widely welcomed the court’s decision, describing their relief and describing it as a “message to institutions that they should not be using permanent stays to avoid meeting child sexual abuse claims in court”.

But they also urged state governments – including NSW, where stays have been predominantly used – to legislate to further limit the ability of institutions to seek stays in historical abuse matters. Survivors and some plaintiff lawyers also called for reforms to reopen past cases where the tactic was used, either to halt a case or to low-ball survivors in settlement negotiations.

On Thursday, a spokesperson for Daley said the NSW government was investigating whether it needed to act further.

“The NSW attorney general has requested a comprehensive briefing on the GLJ matter and will consider it closely in the coming weeks to determine whether the high court’s decision requires action by the NSW government,” a spokesperson said.

The widespread use of the tactic was first revealed by Guardian Australia earlier this year. An investigation that relied on interviews with 13 lawyers working on abuse cases, analysis of court records and discussions with affected survivors revealed the practice was being used in almost every case where a perpetrator had died.

Institutions argued that the deaths left them unable to test a complainant’s claims and unable to receive a fair trial.

In one case, the Marist order attempted to use the death of the prolific abuser Brother Francis “Romuald” Cable to stay a case brought well before his death. That prompted allegations Marist had simply sat on its hands, failing to investigate the allegations prior to Cable’s death, and then using his death to claim it couldn’t receive a fair trial.

The high court considered a stay sought in the case of a woman named GLJ, who alleged she was abused as a 14-year-old by the Lismore priest Father Clarence Anderson, who died in 1996. GLJ complained after Anderson’s death and Lismore successfully obtained a stay on the case. The high court intervened to overturn the stay and allow the case to proceed, saying in a majority ruling that stays should be reserved for exceptional cases.

“If a court refuses to exercise its jurisdiction to hear and decide cases in other than exceptional circumstances and as a last resort to protect the administration of justice through the operation of the adversarial system, that refusal itself will both work injustice and bring the administration of justice into disrepute,” the majority wrote.

The Shine Lawyers lawyer Nicholas Kitchin said the high court had shown survivors that they had “the support of our nation’s highest court”.

“The church’s continued efforts to exploit the law and rob survivors of abuse of their chance to be heard has been put to a stop today by the high court,” he said.

“The majority of the high court has held that our courts cannot prevent survivors of abuse from having their day in court unless exceptional circumstances exist, because to do otherwise would bring the administration of justice into disrepute.”