The high court has pressed the Catholic church to explain why it didn’t have an adequate opportunity 50 years ago to investigate the extent of a priest’s abuse of children, given there were “red flags everywhere” about his crimes.
The court on Thursday began hearing a key case about a legal tactic now routinely being employed by the church and other institutions to permanently shield themselves from abuse survivors’ civil claims for compensation.
Institutions are now regularly seeking permanent stays, or a permanent halt to proceedings, by arguing the death of alleged perpetrators and the inability to obtain their response to a survivor’s allegations leaves them unable to receive a fair trial.
The approach has infuriated survivors and their advocates, who say the church is now effectively using the passage of time to avoid trial, despite the fact the church systemically and deliberately concealed abuse for decades in dioceses across Australia.
Critics argue the approach is also at odds with the findings of the royal commission about the vast barriers that survivors face in coming forwards, which delay their complaints by an average of 22 years.
The high court is considering the New South Wales court of appeal’s decision to grant the Lismore diocese a permanent stay in one case, brought by GLJ, a woman who alleges she was abused as a 14-year-old by Lismore priest Father Clarence Anderson.
The church argues that Anderson’s death in 1996, well before GLJ’s complaint, denied it the opportunity to seek a response from him and leaves it unable to properly contradict or challenge GLJ’s account.
It says it has been left “utterly in the dark” over whether the abuse occurred.
But the high court heard that the church had held evidence about his abuse of other children from 1971, the year of his defrocking.
Justice Jayne Jagot asked counsel for the church, Bret Walker SC, why it did not have an adequate opportunity between 1971 and Anderson’s death in 1996 to make broader inquiries with the former priest and other church officials about the extent of his abuse.
“From 1971, there are red flags everywhere about this person,” Jagot said.
Walker said that such inquiries would only have uncovered anything about GLJ or her alleged abuse by chance.
“It would have been happenstance only by which that inquiry would have raised anything about the appellant,” he said.
Permanent stays are typically reserved for extraordinary or exceptional situations in which a fair trial is not possible.
But GLJ’s counsel, Perry Herzfeld SC, and solicitors, Ken Cush and Associates, argue that the long passage of time in abuse cases such as GLJ’s makes the degradation of evidence and deaths of perpetrators common.
Herzfeld said there needed to be a greater tolerance for the loss of evidentiary records in such cases.
Otherwise, he said, permanent stays would become “routine”, rather than exceptional.
“The inevitability of the long passage of time and the inevitability of the impoverishment of the evidentiary record means that one has to approach these applications with a greater tolerance for that,” he said.
He also argued that, in GLJ’s case, the church held a wealth of evidence about Anderson’s abuse of other children, including statements from four other survivors – the material which allowed for a fair trial to take place.
Herzfeld said there was no need for Anderson to be alive for the church to challenge GLJ’s account through cross-examination.
“If defendants decide to contest a plaintiff’s account ... they don’t need a contrary witness in order to have a proper basis to do so,” he said.
The hearing continues before the high court.
