GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2021] NSWSC 1204 (24 September 2021)

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Case Name:	GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore
Medium Neutral Citation:	[2021] NSWSC 1204
Hearing Date(s):	15 March 2021
Date of Orders:	24 September 2021
Decision Date:	24 September 2021
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	The application for a permanent stay of proceedings is refused
Catchwords:	CIVIL PROCEDURE – application for permanent stay – historical child sexual abuse – alleged perpetrator deceased in 1996 – assault said to have occurred in 1968 – effect of effluxion of time – extant documentary evidence – whether defendant can meet claims against it – whether proceedings would be oppressive or bring administration of justice into disrepute
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) s 15A Civil Procedure Act 2005 (NSW) s 67 Evidence Act 1995 (NSW) s 97 Limitation Act 1969 (NSW) s 6A Limitation Amendment (Child Abuse) Act 2016 (NSW)
Cases Cited:	Birmingham City Council v Abdulla [2013] 1 All ER 649; [2012] UKSC 47 Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 Estate Judd v McKnight (No. 4) [2018] NSWSC 1489 Gorman v McKnight [2020] NSWCA 20. Moubarak bht Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
Texts Cited:	Nil
Category:	Principal judgment
Parties:	GLJ (Plaintiff) The Trustees of the Roman Catholic Church for the Diocese of Lismore (Defendant)
Representation:	Counsel: A. Black SC with P. Tierney (Plaintiff) N. Polin SC (Defendant) Solicitors: Ken Cush & Associates (Plaintiff) Hannigans Lawyers (Defendant)
File Number(s):	2020/00031948
Publication Restriction:	Pseudonym order made by Garling J on 24 March 2020

1 The plaintiff, GLJ, commenced proceedings on 31 January 2020 against the defendant, The Trustees of the Roman Catholic Church for the Diocese of Lismore (“Lismore Diocese”). Her claim is for damages for personal injury arising out of an allegation of child sexual abuse perpetrated against her in 1968 by Father Clarence Anderson, a priest then ordained in the Roman Catholic Church and appointed to the Lismore Diocese and under the control of the Bishop of Lismore.

2 The plaintiff’s case avers one instance of forced sexual intercourse which took place in her family home in 1968 when she was around 14 years of age. The context for the plaintiff’s claim, disputed by the defendant, is that Father Anderson, then an assistant priest in the Lismore parish, was appointed by the Parish Priest (and Bishop of Lismore) to provide pastoral care to the plaintiff’s family after her father suffered a severe leg injury in a motorcycle accident, which rendered him unfit to work for a period of around 18 months. The plaintiff alleges that on one of these occasions, when she was home alone, Father Anderson held her down in her bedroom and sexually assaulted her.

3 The claim is brought on two grounds. The first is that the Diocese was negligent by breaching a personal duty of care, in that by the time the plaintiff was sexually abused the defendant knew, or should have known, that Father Anderson had sexually abused other children and had a tendency to do so again. The second is that the Diocese is vicariously liable for the sexual abuse allegedly committed by Father Anderson against the plaintiff.

4 Father Anderson is now unavailable to respond to the allegations, having died in 1996. No notice of the plaintiff’s claim was given to the Lismore Diocese before his death, nor is there anything to suggest the plaintiff’s allegations were ever put to Father Anderson informally after the alleged assault and before his death.

5 Given the passage of time since the alleged sexual abuse, the claim brought by the plaintiff would have been formerly statute-barred. That is, of course, until the passage of the Limitation Amendment (Child Abuse) Act 2016 (NSW) which enacted s 6A Limitation Act 1969 (NSW), removing the limitation period for actions for damages arising out of an act or omission constituting child abuse. Section 6A(6) specifically preserves the powers of the Court derived, inter alia, from its inherent jurisdiction, common law, any other Act, rule of court, practice note or practice direction. Although it is extrinsic material, the accompanying legislative note to s 6A(6) states that the court’s power to summarily dismiss or permanently stay claims where the passage of time precludes the possibility of a fair trial is preserved. The Court’s power to make such orders in circumstances such as those presented by the plaintiff’s claim is beyond doubt: see Moubarak bht Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102, Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 and Gorman v McKnight [2020] NSWCA 20.

7 While this is the defendant’s application, it seems logical to first outline the nature of the plaintiff’s case and the evidence likely to be available at a hearing to support it.

8 The plaintiff read the affidavit of Mr Samuel Alexander Tierney, solicitor, affirmed 11 February 2021 containing five unsworn evidentiary statements: one under the pseudonym of the plaintiff, GLJ, dated 12 September 2019; the second, of SJT, dated 15 November 2019; the third, of SDA, dated 30 August 2019; the fourth, of CSP, dated 12 September 2019; and the fifth, dated 15 May 2020, from another alleged victim of Father Anderson, who, while not a current claimant, would have been entitled to anonymity under s 15A Children (Criminal Proceedings) Act 1987 (NSW). This last witness is not covered by a subsisting suppression or non-publication order, but I have chosen not to name him.

9 Mr Tierney’s affidavit also annexed certain documents produced under subpoena from the Brisbane Archdiocese, the NSW/ACT Professional Standards Office, and a bundle of documents provided in response to a Notice to Produce issued by the plaintiff. These documents are also summarised in the plaintiff’s chronology and cover the period commencing with Father Anderson’s ordination on 20 July 1963 and concluding with the circumstances of his dispensation from priestly obligations on 20 August 1971. Unsurprisingly perhaps, like all good bureaucracies, the Church is an avid record keeper.

10 From as early as 1963, his superiors noticed that Father Anderson preferred the company of lay people, “especially of boys”, to his brother priests (Tierney Affidavit, p 73). As early as 1965, he was observed by his superior at Kyogle parish to exhibit a sexual interest in children, particularly males, which he was prepared to act on (Tierney affidavit, p 74). Complaints had also been made by parents of other boys and he was suspended from office and directed to undertake psychiatric treatment in Sydney (Tierney affidavit, p 75 and p 541). Father Anderson did not persist with the treatment (Tierney affidavit, p 75).

11 The extant records document his various appointments within the Lismore Diocese. It seems likely that his time at the Lismore parish was limited to late 1968 and early January 1969. It may have been as short as two months (Affidavit Gregory Bernard Isaac sworn 11 December 2020, Annexure GB-1, Tierney affidavit, p 64).

12 I interpolate that Mr Polin SC for the defendant raised an objection to the tender of the five evidentiary statements from other alleged victims relied upon by the plaintiff. That objection was that the conditions permitting the admission of tendency evidence under s 97 of the Evidence Act 1995 (NSW) had not been satisfied. I overruled that objection. The contest about admissibility could only be resolved at trial. The question at this interlocutory stage is whether the available material shows that there is likely to be evidence available allowing a fair trial between the parties. And I was not satisfied that the differences between the plaintiff’s statement and the other statements were such that on no possible view could the evidence be regarded as inadmissible as tendency evidence at the trial. Moreover the statements of other victims were possibly relevant in other ways, especially going to questions of foreseeability.

13 The plaintiff was born in Lismore in 1954. She states that after her father was involved in a motorcycle accident, Father Anderson was allocated by Father Brown, Chancellor or Secretary of the Lismore Diocese under the Bishop of Lismore, to their family as a support priest. She states that he regularly visited the family and gained their trust, “He became like part of the family.” It was usual for him to visit their home unannounced. The plaintiff recites that she had an inkling Father Anderson was attracted to her, or “liked her”, because he used to bring her gifts from his parent’s jewellery shop in Murwillumbah.

14 The plaintiff states that one Saturday afternoon she returned home from netball at about 1 or 2 pm. There were no other members of her family home. She described being sexually assaulted by Father Anderson. It is unnecessary to recite the details of the assaults further here, but needless to say it would have been a violent and traumatic event.

15 In the balance of her statement, the plaintiff describes her feelings of shame and guilt following the assault, her increased lack of engagement at high school and technical school, and a number of psychological and psycho-sexual problems she has suffered throughout her life. She describes having told her first boyfriend of the assault when she was aged 17, her first husband before their marriage and an old school friend at a time she is unable to recall.

16 One internal inconsistency appears in her statement, that being that she started school in 1967 and finished in 1977: Tierney affidavit, p 6, [21]. On this account, GLJ would have been around 23 years of age at the time she finished her schooling. For the purposes of this interlocutory application, this discrepancy in GLJ’s statement is immaterial. Doubtless it will be clarified.

17 SJT was born in Macksville in 1952. SJT describes meeting Father Anderson in 1964, the year his father died. SJT was interested in surfing in his youth, something he shared with Father Anderson, whom SJT recalls being known as the “surfing priest”. Father Anderson used to pick him up and take him to the beach surfing or out to the bush to go shooting. Father Anderson took him to visit Sydney, Manly and on a number of occasions to visit his parent’s home in Tweed Heads.

18 SJT states that the abuse began when he was 12 years old. He recalls Father Anderson coming to his house when his mother wasn’t home. Father Anderson had intercourse with him on about 20 occasions over the course of three years, largely at SJT’s home, but on occasion in Tweed Heads at Father Anderson’s parent’s home. SJT found out sometime in 1990s that his brother was also abused by Father Anderson.

19 SDA was born in Macksville in 1955. SDA states that he was in his school’s football team and that Father Anderson was the coach. During the year that Father Anderson was his coach, he was sexually assaulted by him on the drive home from football training on about 10 or 11 occasions.

20 SDA also describes two other occasions of abuse unrelated to travel to and from football practice. He recalls Father Anderson coming to the family home and asking his mother whether he could take him to the beach. Instead of going to the beach, Father Anderson sexually assaulted him in his car. He also describes Father Anderson taking him and his brother shooting before sexually assaulting SDA while his brother watched. It was not until 2003 that he learnt that his younger brother was assaulted, or told anyone of his own abuse.

21 CSP was born in Macksville in 1954. CSP states that Father Anderson was appointed to his primary school, St Patrick’s, in 1965 or 1966. CSP played in one of the rugby teams at the school. CSP states that he was sexually assaulted by Father Anderson in his car on three occasions on the way home from football training. On all three occasions CSP was the last remaining boy in the car after the others had been dropped off home.

22 After the third incident, CSP told his mother what had happened. When he told her she was understandably distressed. She told CSP to never go anywhere near Father Anderson again, but to also never tell anyone about the assaults. Before the football season had finished, CSP and his family had moved residence to Sydney.

23 The fifth witness was born in Sydney in 1954 before his family moved to Macksville ten years later in 1964. He was introduced to Father Anderson through a friend of the family. Father Anderson used to fish across from the witness’s father’s pub; he would come into the pub for a beer and a chat with the witness’s father and grandmother. He recalls Father Anderson saying that if he had not become a priest he would have become a professional surfer. I interpolate, there is other evidence establishing that he was an accomplished surfer (Tierney affidavit, pp 597, 602).

24 This witness recalls that after initially asking his father and grandmother for permission to take him out for a swim, Father Anderson took him out in his car three times. The first two occasions Father Anderson took him out in his car went without incident. The third time they went out in his car Father Anderson let him shoot his rifle. It is on this third occasion that he states that Father Anderson sexually assaulted him during the drive home.

25 It is perhaps important to note at this juncture the differences between the plaintiff’s account on the one hand, and the accounts of SJT, SDA, CSP and to a lesser extent the fifth witness, on the other hand. One key difference between these alleged assaults is the fact that GLJ is female. This distinction takes on some significance in light of some aspects of the documentary evidence considered subsequently. Another is the nature of the sexual assaults alleged. GLJ describes a violent, spontaneous, opportunistic and isolated assault after she was found alone in the family home by Father Anderson. The other accounts are much more akin to sexual grooming, particularly the case of SJT. That being said, some aspects of GLJ’s statement, including the gifts of jewellery from Father Anderson’s parent’s jewellery store and his befriending of the family, have that all too familiar ring of sexual grooming. There is significant similarity between the plaintiff’s account and the fifth witness’s account of Father Anderson ingratiating himself with the family. One account from Monsignor Ryan of Kyogle parish describes a flagrant, perhaps simulated, sexual act inflicted on a boy at school witnessed by him (at [26] below).

26 As I have said, a substantial part of the documentary evidence relief upon by the plaintiff relates the Church’s dispensation of Father Anderson from his priestly vows in 1971 (Tierney affidavit, p 45). From the records adduced by the plaintiff it was submitted that one, if not the main, reason behind laicising Father Anderson were concerns held by his brother priests regarding his paedophilic predisposition towards young boys. These concerns are detailed in an undated – although it is reasonably clear from the chain of correspondence, it must have been written in early 1971 – letter penned by Monsignor Ryan, Parish Priest of Kyogle, to the Secretary of the Archbishop of Brisbane. The letter recounts the following of Father Anderson’s time as assistant priest at Kyogle (Tierney affidavit, pp 73-4):

27 Monsignor Ryan then described complaints made by the father of a boy said to have been abused by Father Anderson. The father gave the names of six other boys who had been similarly assaulted by Father Anderson. Monsignor Ryan’s response was to stand Father Anderson down as assistant priest and directing him to consult a psychiatrist in Sydney. Monsignor Ryan then stated (Tierney affidavit, p 75):

28 The plaintiff also adduces a letter from the Parish Priest at Macksville, a Father O’Brien, which confirms that Father Anderson was moved to the Macksville Parish at the direction of the Secretary of the Brisbane Archdiocese and spent the time between November 1965 and November 1966 there (Tierney affidavit, p 71). The personnel and ministry files kept by the Lismore Diocese and relied upon by the plaintiff confirm that Father Anderson was stationed in Kyogle between 1963 and 1965, Macksville throughout 1966, Maclean from 1966 to 1968, Lismore sometime in the latter part of 1968 until mid-January 1969 and Tweed Heads from 1969 until February 1970, at which time he commenced a leave of absence, I infer, in anticipation of his laicisation (Tierney affidavit, p 469).

29 In the laicisation process, Father Anderson deposed that he was only stationed at Lismore for two months in 1968 (Tierney affidavit, p 64). Letters produced by the defendant and relied upon by the plaintiff suggest 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 (Tierney affidavit, pp 586, 589, 593). The strongest inference here being that Father Anderson was in Lismore in November/December or perhaps December/January. The relevance of these dates will be discussed later in my judgment; however, it suffices to say that they speak to Father Anderson having some opportunity, in the light and context of GLJ’s statement, of committing the assault alleged.

30 The defendant provided two affidavits of a Mr Gregory Bernard Isaac, the current Secretary and Diocese Business Manager for the Lismore Diocese, sworn 11 December 2020 and 26 February 2021 respectively. Aspects of these two affidavits laid the foundation for the defendant’s permanent stay application. They prove that virtually all of the relevant senior persons who could have provided instructions and given evidence in the current proceedings have since died, including inter alia:

(2) Bishop Farrelly, Parish Priest and Bishop of the Lismore Diocese, on 25 May 1974;

(3) Reverend Paul Rex Brown, Secretary (Chancellor) of the Bishop of Lismore, on 30 June 2005;

(5) Reverend Douglas, Chancellor of the Brisbane Archdiocese, on 18 September 1984; and

31 Mr Isaac’s affidavit also states that the Lismore Diocese had not received a complaint relating to GLJ’s allegations prior to 2019, and that he was unable to locate any documents regarding Father Anderson’s appointment to assist any family.

32 The defendant also read the affidavit of Sister Rosemary Carroll, a Sister of Mercy, sworn on 2 September 2020. Sister Carroll is 81 years of age and remembers Father Anderson from his time at Macksville where she was the principal of St Patrick’s Primary School, a role which also required classroom teaching. She never received any information about concerns the Lismore Diocese might have had about him. Father Anderson would occasionally attend the school to visit the children, as priests often did. She saw nothing to raise any concern about the welfare of the children. Sister Carroll did not know, and had no reason to suspect, that Father Anderson had ever sexually abused children.

33 In detailed written submissions Mr Polin analysed the trilogy of decisions of the Court of Appeal cited at the end of paragraph [5] above. He emphasised the long passage of time, 54 years, since the occurrence of the alleged sexual assault upon the plaintiff, and the death of each of the Parish Priests to whom Father Anderson had been appointed as an assistant and of the senior clergy who might have been able to give instructions including the Most Reverend P. Farrelly DD, the Bishop of Lismore and its Parish Priest at the material time and Father Brown, Secretary of the Diocese and the person said to have assigned Father Anderson to minister to the plaintiff’s family.

34 Mr Polin emphasised the following facts as indicating 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 this is a winter sport and Father Anderson was appointed to Lismore during summer months;

(f) the extant material, while demonstrating that Father Anderson had a sexual interest in boys, there was 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

35 Mr Black SC, who appeared with Mr Peter Tierney for the plaintiff, relied upon the decision of Garling J in Estate Judd v McKnight (No. 4) [2018] NSWSC 1489. Mr Black placed heavy emphasis upon the “credible account” given by the plaintiff, supported as it is by the similarities of the accounts given by the other victims and the large bundle of documents which 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. He submitted that the certain knowledge on the part of the members of the Diocese and hierarchy that Father Anderson was misbehaving in a sexual way towards young parishioners in the various parishes to which he was appointed provided a sure foundation for the plaintiff’s case in direct liability against the Diocese. Knowing of his paedophilic activities, those in authority did nothing to remove him from access to children. Rather, he was moved from parish to parish within the Diocese.

36 Mr Black argued that these same facts were relevant to the plaintiff’s case relying on vicarious liability because “it goes to the point where the principal has placed the agent in the position of intimacy and power in relation to people who were assaulted” (15.5T).

37 It is, I think, with respect to the detailed arguments presented by the parties. unnecessary to embark upon a detailed analysis of the jurisprudence developing in the Court of Appeal concerning the principles governing a grant of a permanent stay of proceedings in cases of child sexual abuse governed by the provisions of s 6A Limitation Act. The principles governing the court’s inherent power to grant a permanent stay were summarised by Bell P in Moubarak (at pp 233 – 4, [71]). Omitting his Honour’s references to authority, the principles may be summarised as follows:

(iii) a permanent stay should be granted when the interests of the administration of justice so demand;

(v) one category of case where a permanent stay may be ordered 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.

38 His Honour also referred in some detail to the significance of the passage of time between the accrual of the cause of action and the commencement of proceedings; and the related question of whether and how that consideration may impact upon the availability of a fair trial. Relevant to the present case, his Honour pointed out that the absence or abrogation of a limitation period for a particular type of claim means generally the plaintiff cannot be criticised, in the absence of calculated conduct, for failing to bring the claim earlier. Nor is an explanation for delay called for. But the passage of time, I interpolate especially the long passage of time, remains relevant especially if “the
effluxion of time has led to the impoverishment of the evidence available to determine the claim”: Moubarak at [77]; Birmingham City Council v Abdulla [2013] 1 All ER 649; [2012] UKSC 47 at [41] (Lord Sumption JSC). This factor “will be more acute where a trial is exclusively or heavily dependent on oral evidence and the quality of witnesses’ memory and recollection”: Moubarak [77] (Bell P).

39 His Honour also emphasised (at [88]) a circumstance in which a permanent stay will be appropriate is where it is demonstrated, on the balance of probabilities, that it would not be possible to obtain a fair trial. A fair trial is not synonymous with a perfect trial. The death of witnesses “who may be regarded by a party as important ... will not mean that a fair trial cannot be obtained”: Moubarak at [89]; although, obviously it may be an important factor.

40 It is also important to bear in mind the statement of Bathurst CJ in Trinity Grammar v Anderson (at [430]) that the introduction of s 6A Limitation Act does not affect the principles governing the grant of a permanent stay as s 6A(6) “expressly preserves the power of the Court to grant a stay” in appropriate circumstances.

41 I am not satisfied that the defendant has discharged the onus of demonstrating on the balance of probabilities that the continuation of the proceedings would be unjustifiably oppressive to the defendant or bring the administration of justice into disrepute in a sense that a fair, albeit not perfect, trial can no longer be had.

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.

(2) List the matter for directions before Garling J on 1 October 2021 at 9:15 am;

Supreme Court of New South Wales

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [ 2021] NSWSC 1204 (24 September 2021)