Historical abuse proceedings against religious institution permanently stayed Historical abuse proceedings against religious institution permanently stayed

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Historical abuse proceedings against religious institution permanently stayed

9 August 2021 | Public & Product Liability

Warning: This article contains details about sexual abuse which may be upsetting for some readers. Reader discretion is advised.

The Victorian Supreme Court has granted an application by a religious institution  for a permanent stay of a case involving alleged sexual abuse committed by a priest against an altar boy in the early 1980s.   

In Issue

  • Whether the defendant religious institution’s delay in bringing the application for a permanent stay should result in its dismissal without any determination on its merits. 
  • If the application should be determined on its merits, whether the defendant established that the proceedings should be permanently stayed because it would be manifestly unfair to require the defendant to meet the case against it.    

The background

The plaintiff alleged that on one occasion while an altar boy in 1980 or 1981, when he was 8 or 9 years old, he was sexually abused by a priest in the sacristy of a church in north western Victoria.   

The plaintiff alleged that the relevant Diocese was both vicariously liable for the perpetrator’s abuse, and directly liable in negligence. 

The alleged perpetrator died in 1985, and the plaintiff said that his memories of the abuse first resurfaced during transcendental meditation in 2001. In November 2003 the plaintiff reported the alleged abuse to the relevant Diocese, and an apology (which the court determined was not an admission) was provided to the plaintiff. 

The plaintiff’s solicitor wrote to the religious institution in October 2016 and notified it that a claim against a Diocese was being investigated. In 2019 the parties’ solicitors obtained medico-legal reports, which suggested that there may have been a witness to the alleged abuse. The potential witness had, however, died in 2010. 

The matter was set down for hearing on 1 March 2021. On 15 February 2021 the defendant filed an applicant for a permanent stay of the proceedings.

The decision

Dismissal without determination

The court rejected the plaintiff’s submission that the defendant’s delay in bringing the application justified it being dismissed without a consideration on its merits. 

While the court accepted that court resources had been wasted by the defendant’s delay (including the vacation of the trial date), it indicated that there was no need for a lengthy adjournment and the administration of justice was more likely to be brought into disrepute if the defendant was not allowed to ventilate its position regarding the stay application.

Determination of the stay application

For the following reasons the court held that the defendant’s application should be granted, and the proceedings permanently stayed:

  • The defendant had no opportunity to directly test the plaintiff’s assertion that the abuse occurred. The alleged perpetrator was not confronted with the allegation before his death, and the only potential witness was  dead.
  • The plaintiff first reported the alleged abuse more than 20 years after it occurred, and was unsure about whether the abuse occurred in 1980 or 1981.  The defendant therefore had no real opportunity to explore the surrounding circumstances of the alleged abuse.   
  • The plaintiff’s recollection of the alleged abuse may not be reliable because of the lapse of time, the fact he was a child, and the fact that he only recalled the alleged abuse during transcendental meditation after having no specific thoughts about it for more than 20 years.
  • The plaintiff’s submission that the defendant failed to undertake reasonable investigations when the complaint was first made in 2003 could not be accepted.  Following the complaint, the defendant spoke with relevant individuals but found nothing to substantiate the allegation. In addition, the defendant was only made aware of the existence of a potential witness in 2019, well after that person had died. 

On account of the above, the court held that it would be manifestly and unjustifiably unfair to require the defendant to meet the case against it.  

Implications for you

While the threshold required to establish that a stay should be granted is high, this decision demonstrates that exceptional circumstances can warrant permanent stay applications in historical abuse claims.

In deciding whether to make a permanent stay application, relevant factors to consider may include effluxion of time between the alleged abuse and the proceedings, the availability of any witnesses and whether any prejudice suffered by the defendant was contributed to by the defendant’s own failure to reasonably investigate the allegations.


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Nick Bell

Nick Bell

Special Counsel

Josh Sukkar

Josh Sukkar

Associate

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