A survivor of alleged clergy abuse has won the right to appeal to the high court against a decision to throw out her case because the alleged paedophile priest had died.
The high court on Friday agreed to hear an appeal from a woman, known only as GLJ, who alleges she was abused when she was 14 by Lismore priest Father Clarence Anderson.
Anderson died before she lodged civil action and the NSW court of appeal ruled that his death rendered the Catholic church unable to properly defend the claim or receive a fair trial.
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The decision has had widespread ramifications for other cases of clergy abuse, where the priest or church member has died.
Guardian Australia revealed this week that the ruling had, according to five separate law firms, emboldened the church to take an aggressive approach to other cases where paedophile clergy have died, using it to pressure other survivors into accepting low-ball and “paltry” sums of compensation, or face having their case thrown out.
The lengthy delays in such cases – the child abuse royal commission said it took more than 22 years on average for survivors to come forward – means it is common for clergy to have died by the time a claim is brought.
Ken Cush & Associates, who represented GLJ, took the case to the high court on Friday, seeking special leave to appeal.
They said it was possible for the church to receive a fair trial, despite Anderson’s death, and asked the court to consider whether his unavailability was “sufficient to warrant a permanent stay”.
GLJ’s lawyers argued that extensive evidence about Anderson’s abuse of children was held by the church. It also had four other witnesses to testify to Anderson’s history of abuse.
They also argued that the decision subverted the intent of state and territory parliaments, which had removed the time limit on bringing civil cases after the royal commission. In doing so, they were emphatic in saying they wanted such cases to proceed to trial, regardless of any delay.
“The surprising conclusion of the court of appeal was that, notwithstanding the survival of comprehensive documentary evidence about Anderson’s clerical career and his laicisation, about his abuse of other children, and about the diocesan authorities’ knowledge of those matters at the relevant time, and notwithstanding the availability of the applicant and at least four other witnesses to testify to Anderson’s history of abuse, a fair trial could not be had,” GLJ’s lawyers wrote in their application to the high court.
“Central to the court of appeal’s conclusion was the proposition that because Anderson was unavailable to give factual instructions, and the Diocesan Trust had not been notified of the applicant’s claims before his death, a fair trial was impossible.
“That erroneous conclusion arose from the misapplication of authority – including of this Court – in an important, novel and highly sensitive context: namely, claims of institutional liability for historical sexual abuse, for which no limitation provision now applies.
“Across a range of areas, a claimant is entitled not only to proceed to but to succeed at trial, even though the person responsible for that claim is deceased, or is otherwise unavailable to give instructions.”
GLJ’s lawyers argued there was also “copious” amounts of evidence about Anderson and the church’s knowledge of his abuse. Records showed that the church knew Anderson was abusing other children years before GLJ, and continued to do so after being shuffled between parishes.
The high court will hear the appeal at a later date.