The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 Hearing dates: 1 April 2022 Date of orders: 1 June 2022 Decision date: 01 June 2022 Before: Macfarlan JA at [1] Brereton JA at [2] Mitchelmore JA at [6] Decision: (1) Grant leave to appeal. (2) Order that the applicant file a notice of appeal in accordance with the draft notice of appeal within 7 days. (3) Appeal allowed. (4) Set aside the orders of the primary judge and in lieu thereof order that the proceedings be permanently stayed. (5) The respondent to pay the applicant's costs of the appeal. Catchwords: CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assault in 1968 – where alleged perpetrator died before applicant on notice of allegation – where no other witnesses to alleged assault – where no documents dating back to or around the time of the alleged assault relating to allegation – no meaningful opportunity for applicant to engage with central question of whether alleged perpetrator committed alleged sexual assault Legislation Cited: Civil Liability Act 2002 (NSW), Pt 1B Civil Procedure Act 2005 (NSW), s 67 Evidence Act 1995 (NSW), ss 97, 192A Limitation Act 1969 (NSW), 6A Roman Catholic Church Trust Property Act 1936 (NSW), s 4 Uniform Civil Procedure Rules 2005 (NSW), r 13.4 Cases Cited: Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Be Financial Pty Ltd v Das [2012] NSWCA 164 DP v Bird [2021] VSC 850 Gorman v McKnight [2020] NSWCA 20 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 R v Bauer (2018) 266 CLR 56; [2018] HCA 40 R v Matonwal and Amood (2016) 94 NSWLR 1; [2016] NSWCCA 174 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 16 February 2016 Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (September 2015) Category: Principal judgment Parties: The Trustees of the Roman Catholic Church for the Diocese of Lismore (Applicant) GLJ (Respondent) Representation: Counsel: G M Watson SC with D Tang (Applicant) J E Maconachie QC with P Tierney (Respondent)