— Guardian investigation found the church routinely uses deaths of paedophile priests to avoid paying or to reduce amount of settlements
The Catholic church has lost a landmark case over its controversial use of the deaths of paedophile priests to thwart survivors’ attempts at justice.
The high court on Wednesday delivered a significant blow to the church’s use of permanent stays in historical abuse matters, where it has sought to argue that delay, the death of perpetrators, and the loss of records render it unable to receive a fair trial.
Earlier this year, a Guardian investigation found that the church was now routinely using permanent stays in cases where perpetrators have died, either to defeat active claims before the courts or to low-ball survivors in settlement negotiations.
The tactic is causing profound harm to an already vulnerable group.
Critics say it is also immoral, given the church’s own role in delaying justice for decades, which included hiding abuse complaints from law enforcement and destroying or deliberately not keeping records.
Survivor groups argue the approach is at odds with the intent of Australian parliaments, which all removed time limits on bringing civil claims in recognition of the significant barriers to survivors coming forward.
One survivor, known as GLJ, whose case for compensation was permanently stayed, asked the high court to intervene and allow her case to proceed. GLJ alleges she was abused as a 14-year-old by Lismore priest Father Clarence Anderson.
Anderson died in 1996, well before GLJ’s complaint, and the Lismore diocese argued it was put in an unfair position, unable to properly investigate the allegation or mount a defence. The church says it was left “utterly in the dark” on whether the abuse occurred.
But GLJ’s lawyers say the church had held evidence about his abuse of other children from 1971, the year of his defrocking, and had ample opportunity to investigate his conduct more broadly in the 25 years prior to his death. Instead, it did nothing, her lawyers say.
The high court on Wednesday ruled in GLJ’s favour, saying permanent stays should only be granted in “exceptional” cases.
In their decision, chief justice Susan Kiefel and justices Stephen Gageler and Jayne Jagot said any other use of stays would bring the administration of justice into disrepute.
“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,” they wrote.
The judges also said reforms removing time limits on survivors’ claims had changed the legal context.
“In this new legal context, the Diocese’s contention that any trial of the proceedings would be necessarily unfair must be rejected,” they wrote. “As the Diocese acknowledged that its case for a permanent stay for abuse of process was based only on necessary unfairness of a trial and not undue oppression or unfairness otherwise, no permanent stay is justified. The proceedings must go to trial.”
GLJ’s lawyers, Ken Cush and Associates, say their client is relieved and delighted at the outcome.
“GLJ hopes this landmark decision will also be able to help others right across Australia to bring their claims before courts despite the Catholic church again seeking to mount technical legal defences to their claims,” the firm said in a statement.
“GLJ is hopeful that this decision combined with the learnings and recommendations from $343,000,000 Royal Commission about the damage done by childhood sexual abuse will mean the Catholic church will take this opportunity to reflect on the morality of its continuing to mount these technical legal defences.”
Documents before NSW courts make it clear the church knew Anderson was abusing boys at least four years before GLJ’s alleged assault. It did not remove him from the clergy and instead shuffled him through parishes, where he continued to abuse boys.
Knowledge of his abuse was held at senior levels of the church, including by the then bishop of Lismore, who wrote in 1971: “[Anderson] 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.”
Survivors take an average of 22 years to come forward, according to the child abuse royal commission, and GLJ’s lawyers argued that made the loss of evidence and the deaths of perpetrators common.
Perry Herzfeld SC told the high court earlier this year that meant there needed to be a greater tolerance for the loss of evidentiary records in historical abuse cases, or the use of 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.
The decision will be welcomed by survivors and advocates for reform.
Various jurisdictions, including New South Wales, where the use of stays is most prevalent, have been awaiting the outcome of the GLJ case before responding to calls for legislative change.
The Australian Lawyers Alliance has already met with the NSW attorney general to lobby for limits to be placed on the use of stays in historical abuse cases.
“In general these institutions have taken great care not to take records or to make sure that records go missing. In particular, some of them have kept no proper records of complaints made in respect of particular abusers,” Dr Andrew Morrison KC, ALA spokesperson, said in June. “So it’s a disgraceful situation that they should be able to take advantage of that to avoid proper compensation.”
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