Permanent Stay Applications in Australia: Analysing Recent Key Cases and the Impending High Court Decision

Issues relating to safeguarding and child protection should not be limited by borders and similarly lessons from legal approaches in one jurisdiction provide guidance for others. This is the first of a series of blogs looking at developments in Australia which are of interest in all jurisdictions grappling with the issues raised. 

In the past year, there has been a notable rise in the number of permanent stay applications filed in Australian courts. This development has sparked anticipation among Australian abuse lawyers, who are eagerly awaiting the High Court's decision in the case of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore.

In Moubarak v Holt [2019] NSWCA 102, the court reviewed case law and outlined key propositions that inform the granting of permanent stays. President Bell, in his analysis, emphasised the following principles:

  • The burden of proving that a permanent stay of proceedings should be granted rests with the defendant.
  • A permanent stay should only be ordered in exceptional circumstances.
  • A permanent stay should be granted when the interests of the administration of justice demand it.
  • One category of case justifying a permanent stay is where the proceedings or their continuation would be vexatious or oppressive.
  • Proceedings may be stayed on a permanent basis if their continuation would be manifestly unfair to a party.
  • Proceedings may be stayed on a permanent basis if their continuation would bring the administration of justice into disrepute among right-thinking people.

Recent Case Analysis

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

The NSW Court of Appeal granted a permanent stay of proceedings. The plaintiff's claim for damages related to alleged sexual assault in 1968, but the alleged perpetrator had passed away before being notified of the allegations, and there were no other witnesses or evidence available.

The court found that the defendant faced significant difficulties in responding to the allegations and investigating the central issue. The lack of instructions from the alleged perpetrator made a fair trial impossible.

On 18 November 2022 the High Court granted special leave to appeal from a stay of proceedings decision of the NSW Court of Appeal.

Burrows v Patsantzopoulos [2022] NSWDC 442

Despite the defendant's compromised capacity to participate fully in the hearing, the court refused the application for a stay. The focus was on achieving a fair trial, acknowledging that it does not require perfection. This decision demonstrates a consideration of fairness rather than absolute procedural perfection.

GMB v Uniting Care West [2022] WASCA 92

The Western Australia Court of Appeal upheld a permanent stay due to the defendant's inability to meaningfully defend the case after a significant time lapse and the unavailability of key witnesses.

Wilmot v State of Queensland [2023] QCA 102

The plaintiff’s appeal against the first instance stay of proceedings was ultimately dismissed. The court concluded that the trial judge properly considered the purpose of limitation provisions and access to justice for abuse survivors.

Peters v Trustees of the Marist Brothers [2023] NSWSC 475

The defendant's application for a permanent stay of proceedings was dismissed. The court held that the defendant's failure to take reasonable steps to contact the alleged perpetrator and address the claim undermined their request for a stay.

BTM1 v Scout Association of Australia New South Wales Branch [2023] NSWSC 431

The court granted a permanent stay of the plaintiff's claims based on exceptional circumstances, noting the unavailability of key witnesses and lack of evidence regarding the defendant's authorisation or acquiescence in the alleged abuse justified the stay.

O'Callaghan v Trustees of the Marist Brothers [2023] NSWSC 432

The Trustees sought a permanent stay, but their failure to disclose all relevant information and their claim for privilege hindered their application. The court indicated that a defendant must disclose all knowledge, even if privileged, when seeking a permanent stay.

RC v The Salvation Army (Western Australia) Property Trust [2023] WASCA 29

The court granted a permanent stay, considering the defendant's inability to adequately defend the action and the unfairness it would impose. The court emphasised the importance of a fair trial and the defendant's ability to present a meaningful defence. The trial judge’s decision was upheld on appeal.

Impending High Court Decision

The High Court heard the case of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore on 8 June 2023 and has reserved its decision. This impending decision has generated significant anticipation among abuse lawyers, who eagerly await its potential impact on the Court’s discretion to order permanent stays in Australia.