GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, STEWARD, GLEESON AND JAGOT JJ

GLJ APPELLANT

AND

THE TRUSTEES OF THE ROMAN CATHOLIC

CHURCH FOR THE DIOCESE OF LISMORE RESPONDENT

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore

[2023] HCA 32

Date of Hearing: 8 June 2023

Date of Judgment: 1 November 2023

S150/2022

ORDER

1. Appeal allowed.

2. Set aside orders 3-5 made by the Court of Appeal of the Supreme Court of New South Wales on 1 June 2022 and, in lieu thereof, order that:

(a) the appeal be dismissed; and

(b) the applicant pay the respondent's costs of the appeal.

3. The respondent pay the appellant's costs of the appeal to this Court.

On appeal from the Supreme Court of New South Wales

Representation

P D Herzfeld SC with J A G McComish for the appellant (instructed by Ken Cush & Associates)

B W Walker SC with E Bathurst for the respondent (instructed by Hannigans Solicitors)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore

Courts – Abuse of process – Permanent stay of proceedings – Where appellant commenced claim for damages for personal injury against respondent 52 years after alleged sexual assault by priest employed by respondent occurred – Where no limitation period for claims resulting from child sexual abuse under s 6A of Limitation Act 1969 (NSW) – Whether death of alleged perpetrator and other critical witnesses is exceptional circumstance so trial of proceedings would be necessarily unfair – Whether proceeding in such circumstances an abuse of process justifying permanent stay of proceedings.

Courts – Appeals – Applicable standard of appellate review – Where party seeking permanent stay of proceedings – Where grant of permanent stay of proceedings requires determination of whether trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process – Whether question of abuse of process involves exercise of discretion and error of principle to be identified in accordance with House v King (1936) 55 CLR 499 – Whether question of trial constituting abuse of process has one correct answer and "correctness standard" in Warren v Coombes (1979) 142 CLR 531 applies.