GLJ High Court of Australia decision – what it means for survivors of child sexual abuse
6 minute read
Content warning: this article discusses child sexual abuse. Please be aware that it could be confronting, upsetting or triggering for some people to read.
A recent High Court case involving permanent stay law means survivors of historical child sexual abuse can pursue compensation claims, even if their perpetrator and key witnesses have passed away.
Helping survivors of child sex abuse access justice
The final report of Australia’s Royal Commission into Institutional Responses to Child Sexual Abuse was handed down in 2017. One of its many findings was that on average, it took almost 24 years for survivors to tell someone that they’d been sexually abused as a child. Astonishingly, one in ten said that speaking to the Royal Commission was the first time they’d told anyone about their child sexual abuse.
Removal of time limitations
In recognition of the average time taken for survivors to bravely share their story, the Commission made recommendations that statutory limitation periods be removed. In response, every Australian state and territory responded to the Commission’s recommendations and passed legislation to remove statutory limitation periods.
This means that in Australia, survivors aren’t roadblocked by time limitations in which they can pursue a civil claim for child sexual abuse compensation.
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore
The recent High Court of Australia decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore  HCA 32 (‘GLJ High Court’) is significant for child sex abuse survivors. The time taken for survivors to feel supported and able to share their story means that when they make a claim for child sexual abuse compensation, their alleged perpetrator may have died.
In cases where alleged perpetrators have died before trial, many defendant institutions seek what’s called a ‘permanent stay of proceedings’. They seek this permanent stay of proceedings on the basis that because the alleged perpetrator (and possibly other key witnesses) has died, a fair trial isn’t possible.
What is meant by a ‘permanent stay of proceedings’?
A ‘permanent stay of proceedings’ provides the court the discretion to suspend legal proceedings to a specified date in the future, indefinitely, or permanently. Stopping a legal case is a significant decision, so a court will only exercise its discretion to grant a permanent stay of proceedings in exceptional cases, as a last resort when the only option is to stop the case. It’s up to the party seeking a permanent stay of proceedings to prove the exceptional circumstances.
This is what the High Court was asked to decide in GLJ High Court. The High Court held that the decision to grant a permanent stay of proceedings considers whether a trial would be “necessarily unfair”, or “so unfairly and unjustifiably oppressive as to constitute an abuse of process” in Australia.
The GLJ High Court decision
The High Court was not satisfied that in the circumstances of GLJ’s case, the deaths of the alleged perpetrator of child sex abuse, as well as other key witnesses, warranted a permanent stay of proceedings. This meant that GLJ could continue to seek child sexual abuse compensation. Our General Manager of Abuse Law in the Australian Capital Territory, Nicholas Kitchin stated, following the High Court’s decision:
“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. Survivors of abuse have learned ... that they have the support of our nation’s highest Court. We strongly encourage survivors to continue coming forward to seek justice for the abuse they suffered as children.”
What happened in GLJ High Court?
To understand why the Diocese of Lismore’s sought a permanent stay of proceedings, it’s helpful to know the facts of GLJ High Court:
GLJ was born in Lismore, New South Wales in 1954. Her family worshipped at St Carthage’s Cathedral in Lismore. As part of her Catholic faith, GLJ believed that priests were God’s representatives on earth.
In 1968, GLJ’s father suffered serious injuries in a motorcycle accident. GLJ was 14 years old.
GLJ alleges that the Diocese directed a Catholic priest, Father Anderson, to attend her home to provide pastoral and spiritual support and guidance.
GLJ alleges that Father Anderson sexually abused her in her home. As a result of this alleged abuse, GLJ suffers complex post-traumatic stress disorder and significant depressive, anxiety, panic and other disorders.
Around 52 years after her alleged child sex abuse, in 2020 GLJ commenced proceedings in the New South Wales Supreme Court. GLJ seeks compensation from the Diocese.
The Diocese sought a permanent stay of proceedings, claiming a fair trial was impossible because “virtually all senior people who could have provided instructions and given evidence in the proceedings had died”, including Father Anderson (who had died in 1996).
The New South Wales Court of Appeal granted the permanent stay of proceedings.
GLJ appealed the New South Wales Court of Appeal’s decision to the High Court.
What GLJ High Court means for survivors of child sexual abuse
By a narrow majority, the High Court recognised that though the Diocese could not consult with either the alleged perpetrator or key witnesses, it still had access to documentation, information and evidence from the relevant time of GLJ’s alleged abuse. The Diocese could sufficiently rely on this circumstantial documentation, information and evidence at trial. In summary, the High Court didn’t consider that the circumstances of this case justified a permanent stay of proceedings. GLJ High Court sets a precedent for situations where defendant institutions (such as churches) attempt to avoid trial by seeking a permanent stay of proceedings. In the words of Shine Lawyers’ Nicholas Kitchin:
“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 ... by the High Court.”
How Shine Lawyers can help
Shine Lawyers’ Abuse Law Team are trained to provide compassionate, considered and expert legal advice to survivors of child sexual abuse. We are respectful and work to minimise your stress and inconvenience wherever possible throughout the legal process. If you or your loved one is a survivor of child sex abuse, our team can help you access justice and seek acknowledgment for the harm you’ve experienced. Financial compensation for your physical or mental health injury can also help towards costs such as:
Your pain and suffering
The loss of past and future earnings due to the abuse
Medical, restorative or counselling treatment or support
Get in touch with our team for an obligation-free, confidential consultation regarding your claim. If you need to seek support due to issues this article may have raised, please contact:
Blue Knot Foundation: 1300 657 380
Samsn: 1800 472 676
Bravehearts: 1800 272 831
Lifeline: 13 11 14
Mensline Australia: 1300 789 978
Kids Helpline: 1800 551 800
Beyondblue: 1300 224 636
In an emergency, call 000.
Resources to help you
Do you have a claim?
We’re here to make the claims process as simple and stress-free as possible.
Is there a statute of limitations on sexual abuse in Australia?
If you were sexually abused as a child, no Australian state or territory has a statute of limitations for making a compensation claim for the physical or psychological injuries you suffered because of the abuse. You may be able to claim for compensation against an institution (such as a church or school), if you can prove the institution knew of the abuse (or the risk of abuse) and did not act to protect you.
Can I seek compensation for the child sex abuse I experienced?
You are entitled to seek compensation for the abuse you endured as a child. You could pursue a civil compensation claim or access the National Redress Scheme. A civil compensation claim would be against your abuser and / or the institution that led to your abuse (such as a church, school, or care home).
If my abuser dies, can I still seek justice?
If your alleged abuser dies before you can seek justice, it’s still possible that you could prove your claim for child sex abuse. As has recently been decided in GLJ High Court, it’s not sufficient for institutions to say it’s impossible to defend a child sex abuse claim because the alleged perpetrator (or other key witnesses) has died. In cases where there is circumstantial evidence of the abuse that can support your claim, it’s possible you can still seek justice.