It’s moments like this that maintain my faith in the law and keep me going as a lawyer — when the institutions of the law stand up and deliver what is, unequivocally, justice.
In the case of GLJ v The Catholic Church, the High Court has placed the last of three flags in the sand of institutional child sexual abuse, following the equally definitive earlier acts of the Royal Commission into Institutional Responses to Child Sexual Abuse and all of the state and territory parliaments. It has reset the framework of the law and reopened what had been an almost closed door for survivors seeking redress.
The issue was permanent stays, a legal technicality that had been weaponised by institutions — led as usual by the Catholic Church — to shut survivors out from the justice system and prevent them from bringing civil damages claims altogether.
We have to go back a bit in time. The royal commission exposed the full extent of the abuse of children by paedophile predators and their systemic protection by institutions since forever. It also revealed that the average time it takes a childhood sexual abuse (CSA) survivor to disclose their abuse is 23.9 years, meaning that almost all of them were shut out from pursuing civil claims by statutory limitation periods.
The commission recommended these limitation periods be abolished altogether for CSA cases, and all states and territories legislated to do that, opening the door to claims many decades old. The commission’s reasoning was not just pragmatic but values-based, stating the imperative that survivors have the opportunity for their cases to be heard “on their merits”, not silenced by legal rules that had been made without this unique class of injustice in mind. Thus the first two flags were planted.
Another thing the commission noted was the habit institutions had demonstrated of doing everything they could think of to silence, harass, bully, intimidate and deny survivors. This was exemplified by Cardinal Pell’s “Melbourne Response” and the so-called Ellis Defence strategy, but was close to universal among institutions both public and private. The commission called this out, and most institutions acknowledged their failure, promising to do better in the future.
What nobody saw coming was that the institutions would simply switch gears and turn to the next available legal weapon: permanent stay applications. How can we possibly defend ourselves in these “historical” cases, they complained. The abuser is dead, there aren’t any documents, we don’t know what happened, it’s all too hard and we can’t possibly get a fair trial.
The permanent stay is an order the court makes to stop a case from proceeding at all, where it would be an “abuse of process” to allow it to go ahead. If a fair trial isn’t possible, that’d be an abuse.
The state courts have obliged with increasing willingness, handing out permanent stays in a large number of cases. Notoriously, in Matt Barker’s case against Scouts NSW, a stay was ordered earlier this year by the NSW Supreme Court even though his perpetrator is alive, in prison (having pleaded guilty) and willing to testify against Scouts. Try to work out the logic of that; I can’t.
In GLJ’s case, the alleged abuse happened over 60 years ago, in the Catholic diocese of Lismore, at the hands of a notorious paedophile priest, Father Anderson. His predation on young boys was well known to the church, and covered up. He died years ago, before GLJ’s allegations had been reported to the church. Part of the church’s case for a stay was that, although it knew he was molesting boys, no allegations by female victims had previously been made, so it couldn’t have done anything to pre-empt GLJ’s claim (she’s a female victim). Basically, it said, it can’t defend itself at all.
The High Court, in overturning the stay in GLJ’s case and allowing it to proceed, has fundamentally reset the law. Drawing on the royal commission’s principle and the NSW Parliament’s declaration that survivors should have their day in court, the majority judges (Chief Justice Susan Kiefel and Justices Stephen Gageler and Jayne Jagot) have stated definitively that the abolition of limitation periods has established a “new normative structure” for child abuse claims.
What that means is that time is no longer relevant. Whereas, traditionally, the lapse of time has been treated as a very relevant factor (probably the most relevant) in determining whether a stay should be granted, it is now off the table altogether. They ruled that the fact that it has taken a long time for a plaintiff to start their action cannot be used to stop them; effectively, the courts cannot take it into account at all.
“Further”, they said, “the inevitable fading of memories and loss of evidence (whether it be from death, illness, infirmity, or the loss or destruction of documents) … are properly to be understood as routine and unexceptional sequelae of the harm caused by the alleged act the subject of the claim.”
Considering that a permanent stay can only be ordered in “exceptional” cases, what this means is that institutions will now have close to no chance of getting one. All the cases in which they’ve succeeded (including Barker’s) were wrongly decided. The door has been flung open so wide it’s off its hinges.
And fair enough too. The majority’s language is unusually direct and emphatic; these judges clearly wanted to send a signal that will be heard in every judge’s chambers and institutional insurer’s boardroom. I particularly appreciate this bit:
Parliament ensured that no claim for damages [for CSA] can be characterised as “historical”. Just as there is no “historical murder” while a person is alive to mourn the victim, there is no “historical child sexual abuse” while there is someone alive claiming to have suffered harm from the abuse.
This is a win for survivors — a big one — but it’s an even bigger win for the law. A banner day.
Survivors of abuse can find support by calling Bravehearts at 1800 272 831 or the Blue Knot Foundation at 1300 657 380. The Kids Helpline is 1800 55 1800. In an emergency, call 000.
