Two abuse survivors have won the first major challenge to the Catholic church’s use of permanent stays since a high court decision in October.
Earlier this year, two survivors, one of whom is dying, were blocked from suing the Armidale diocese over abuse they allege they suffered from alleged prolific paedophile priest David Joseph Perrett.
The two men, both Indigenous, alleged they were abused during camping trips from an Aboriginal mission in the mid-1970s.
Police investigated their allegations and found enough evidence to charge Perrett, but he died in 2020 while awaiting trial for more than 100 offences relating to the abuse of almost 40 young children.
His death also prompted the church to seek and obtain a permanent stay – or a permanent halt to proceedings – which stopped the pair’s civil proceedings by arguing the passage of time and loss of witnesses left it unable to have a fair trial.
A Guardian Australia investigation this year found such tactics have been commonly adopted by the church and other institutions in cases where perpetrators have died, either to defeat active claims before the courts or to low-ball survivors in settlement negotiations.
The approach ignores the significant barriers that cause decades-long delays in abuse cases. It also causes profound harm to an already vulnerable group.
In October, the high court gave a significant repudiation of such tactics in the case of a separate abuse survivor, known as GLJ, whose case the Lismore diocese had been successfully halted on similar grounds.
The high court ruled that permanent stays should only be made in “exceptional” historical abuse cases and any other use of stays would bring the administration of justice into disrepute.
The first major test of the high court’s decision came on Friday, when the two survivors asked the NSW court of appeal for leave to appeal against the permanent stay that was blocking them from suing the Armidale diocese.
They argued the high court’s decision had fundamentally changed the legal principles around permanent stays and “confined the circumstances in which a stay would be ordered”.
The church argued the high court’s decision had not changed anything.
The NSW court of appeal disagreed and granted the pair the leave to appeal against the permanent stay. It said that the high court’s decision “must be taken to have changed the law”.
“I think that there are cases which formerly would have been stayed which will now proceed to trial,” justice Mark Leeming wrote. “I see no other way of construing the effect of the language of the reasons of the majority.”
The court found that the death of Perrett does not necessarily render any civil trial to be unfair to the church.
“The respondent has the benefit of instructions from Father Perrett in relation to each element of the claim; indeed, it has his sworn denials which will be able to be tendered at trial and can found a cross-examination,” the court ruled.
“True it is that there is very substantial impoverishment of the sort of evidence which might ordinarily be available in a case such as the present, but applying the principles stated in the reasons of the majority in GLJ that is merely the common and expected effect of the passage of almost half a century.”
The pair will now be able to put on further evidence and make further submissions to seek to overturn the permanent stay.
• In Australia, the crisis support service Lifeline is 13 11 14. If you or someone you know is impacted by sexual assault, family or domestic violence, call 1800RESPECT on 1800 737 732 or visit www.1800RESPECT.org.au. In an emergency, call 000. International helplines can be found via www.befrienders.org.
