A major law firm fears the Catholic Church will use the death of cardinal George Pell to leverage further permanent stay applications, a recent tactic employed to prevent complainants of historic child sexual abuse from suing the church.
Maurice Blackburn lawyer John Rule said the church was increasingly citing the procedural disadvantage attached to the passage of time to argue a case should be permanently halted because a fair trial could not ensue in such situations.
“When faced with a civil claim for child sexual abuse, something the Catholic Church now often does is make an application saying this matter should be struck off permanently because there’s not, it claims, enough evidence for there to be a fair trial,” he said.
“This was a problem before Pell died, but I heavily suspect that now he’s dead, the church will try to use [his death] to their advantage, saying ‘this is a case where a permanent stay of proceedings should be granted’, especially if it’s a case where Pell was in a leadership position at the time [and could have had knowledge of the alleged abuse].”
Rule, who regularly represents survivors of clergy abuse, said permanent stay applications by the church had met with increasing success in recent years, despite the usual reticence of the courts to order stays in all but the most exceptional circumstances.
“The Catholic Church has — particularly in New South Wales — been overusing permanent stays to have these cases thrown out,” he said. “It’s wrong because [permanent stays are] only ever supposed to be used in the rarest of cases.”
His concern echoes that of a number of other plaintiff law firms and survivors of institutional sexual abuse, who in November directly raised the issue with NSW Attorney General Mark Speakman.
“The court dismisses the proceedings before the victim even has the chance to put their case in court and fight for justice,” law firm Kelso Lawyers, which specialises in institutional child sexual abuse, told Speakman. “They are being left without a voice, denied their day in court.”
Rule told Crikey that such concerns had sharpened since a judgment of the NSW Court of Appeal in June 2022, which stayed a claim involving the sexual abuse of a 14-year-old girl more than 50 years ago on the footing the alleged abuser — known paedophile priest Father Clarence Anderson — was dead.
The court accepted the church’s claim that it would be materially unfair to allow the claim to proceed in circumstances where it could not defend itself, having only ever been put “on notice”, before Anderson’s death, as to his sexual abuse of young boys, not young girls.
In November, the High Court granted special leave to appeal that decision, with the court to hear the appeal later this year.
During the special leave application, the plaintiff’s barrister, Perry Herzfeld SC, argued that the Court of Appeal’s decision ran contrary to a suite of recent reforms since the royal commission into institutional child sexual abuse, focused on facilitating claims by survivors of historical child sexual abuse.
Chief among these was the removal of limitation periods for civil claims and the abolition of the “Ellis Defence” — the latter of which was based on a 2007 NSW Court of Appeal decision that held the church, as an unincorporated association, was immune from civil suits.
Those reforms were underpinned by a recognition — sheeted home by the royal commission — that it is not uncommon for complainants to take decades to report, due to the incalculable trauma and shame that accompanies abuse.
“A fair trial is not synonymous with a perfect trial, and more importantly what constitutes a fair trial is itself something to be considered in light of the legislative amendments,” Herzfeld said.
“The kind of circumstances presented here,” he added, citing the death of the alleged perpetrator and other witnesses, “cannot be regarded as sufficiently exceptional [in such cases] to warrant a permanent stay, given it’s precisely this kind of claim the legislative amendments are designed to facilitate.”
Depending on what the High Court decides, Rule said the prospect of legislative reform looms.
“Because this problem pre-dates Pell’s death, there has already been some discussion about legislative change to alter the situations in which the church and other institutions can use it in child sexual abuse cases,” he said.
Rule added that the need for such reform had acquired a sense of urgency since the NSW Court of Appeal’s decision, which the church had seized upon to pressure abuse survivors into accepting trivial amounts of compensation if the alleged abuser is dead.
“There’s a risk Pell’s death will discourage [survivors] from coming forward,” he said. “But, in fact, it’s more important than ever that people come forward. The more who do, the easier it is to put all the pieces of the puzzle together in each case.”
“I hope the church doesn’t use Pell’s death to further disadvantage survivors of abuse in bringing civil claims. But unfortunately, history tells us it almost certainly will.”
