Permanent stay application refused in historical abuse proceeding against religious institution Permanent stay application refused in historical abuse proceeding against religious institution

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Permanent stay application refused in historical abuse proceeding against religious institution

25 October 2021 | Public & Product Liability

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

In Issue

  • Whether the defendant religious institution 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 such that a fair trial can no longer be had.

The background

The plaintiff commenced proceedings in January 2020 against a religious institution. The plaintiff claimed damages for personal injury arising out of an allegation of child sexual abuse perpetrated against her in 1968 by a priest of the religious institution. The priest died in 1996. The defendant sought a permanent stay of the proceedings, or alternatively, that the proceedings be dismissed.

The decision

The defendant argued that it had available to it proof of potentially significant circumstances to contradict the plaintiff’s claim, such as uncertainty about the date on which the assault was said to have taken place and the limited circumstances surrounding whether the priest could have offended.

His Honour Justice Campbell noted that while there were undoubted forensic disadvantages, such as the priest being unable to offer a resolute denial, his Honour went on to find several other objective considerations by which the priest’s credibility could be called into question, and which positively demonstrated that a fair trial could still be had. For example, evidence was presented on behalf of the plaintiff from five people who also claimed to have been abused by the priest as children. As such, His Honour found that the body of extant documentary evidence “amply demonstrated that the priest’s misconduct was well-known to his superiors, well before the event relied upon by the plaintiff” [43].

His Honour was not satisfied that the defendant had 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 such that a fair trial can no longer be had.

The Court therefore held that the defendant religious institution’s application for a permanent stay of the proceedings should be refused.

Implications for you

This decision demonstrates that there is a high threshold requiring exceptional circumstances to establish that a successful permanent stay application should be granted in historical abuse claims.

In deciding whether to make a permanent stay application, it is important to consider relevant factors such as effluxion of time 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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Naomi Spigelman

Naomi Spigelman

Solicitor