Victory for Child Sex Abuse Survivors

The High Court has delivered a decision that rings the bell on the appalling and disgraceful conduct of the Catholic Church in the way it deals with claims for damages of victims of child sexual abuse. The High Court’s decision serves as a salutary lesson to all institutions, including government departments, that they must reassess the way in which they respond to and deal with claims.


The victim, whose identity cannot be identified, brought proceedings in the Supreme Court of New South Wales against the Catholic church claiming that she had been raped by a Priest in 1968 when she was 14 years old.


The Catholic Church sought orders from the Supreme Court that the victim’s claim be permanently stayed – effectively meaning the case could not proceed – because the Church was not able to obtain a fair trial. It claimed that because the alleged perpetrator was dead and all other senior people within the Catholic Church with knowledge of the allegations were dead, it was unable to defend itself.


Justice Garling of the Supreme Court refused to stay the proceedings. He made the following points:


  1. A fair trial need not be a perfect trial.
  2. Child sexual abuse, of its nature, occurs in private and eyewitness evidence is rarely available.
  3. The Catholic Church was able to contradict the victim’s claims with its own documentary evidence.
  4. The Parliament had specifically abolished the Limitations Period relating to child sexual abuse claims.


The Catholic Church appealed to the NSW Court of Appeal. That Court, in effect sought to substitute its own discretionary reasoning power and granted the permanent stay.


The victim appealed to the High Court. The Justices of the High Court by majority decision determined that a permanent stay must be understood to be an absolute “last resort”. The High Court ruled that the NSW Court of Appeal got it wrong by seeking to substitute its own discretionary decision-making power. The High Court ruled that to grant a permanent stay does not involve an exercise of discretion but an application of a legal standard. The High Court ruled that the correct question in determining a stay is to ask whether a trial is so necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of the Court’s procedures.


It remains to be seen whether the Catholic Church, and more broadly the many institutions who are responsible for the scourge of historical sexual abuse, take notice of the High Court.


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