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Woman can sue church for abuse in 'monumental' ruling

Institutional child abuse survivors will have a better chance of securing compensation after a woman alleging historical abuse by a Catholic priest won the right to sue.

Three out of five judges in the nation's top court on Wednesday ruled to overturn a NSW appeal court's decision to permanently stay the woman's case, which sought damages for personal injury due to the alleged sexual abuse.

The decision is expected to have a wider impact on institutional abuse cases across Australia.

The woman, identified in the High Court judgment by the pseudonym GLJ, sued the trustees of the Catholic Church diocese of Lismore in 2020, alleging abuse at the hands of a priest in 1968, when she was 14 years old.

Sam Tierney (file image)
Solicitor Sam Tierney said the High Court made a monumental decision for all survivors.

She claimed the diocese breached its duty of care and was vicariously liable.

The priest responsible for the alleged abuse, Clarence Anderson, died in 1996.

The Catholic Church previously claimed it could not get a fair trial because it did not receive a complaint until 2019, after senior officials who could give evidence had died.

The NSW Supreme Court dismissed an application for a permanent stay, however it was granted by the state's court of appeal last year, blocking the woman from receiving compensation.

But the High Court ruled a stay must only occur as a "last resort" and the proceedings could go to trial.

Ken Cush & Associates principal solicitor Sam Tierney, whose firm represented the woman during the High Court appeal, told AAP it was a monumental decision for abuse survivors.

"It resets the concept of what exceptional circumstances means in the context of historical abuse cases," he said.

Mr Tierney said his client was delighted and relieved, and she now had the opportunity to seek justice through the courts.

Australian Lawyers Alliance institutional abuse spokesman Andrew Morrison SC said the long-awaited decision protected the rights of institutional abuse survivors.

"It acknowledges that the special circumstances justifying a permanent stay are often largely created by the abuse itself and the failures of the institution to deal with a known risk," he said.

Delays resulting in lost evidence and the deaths of perpetrators were common but no reason to prevent justice for survivors.

"Often it is the institution's own lack of action to investigate and prevent the abuse and failure to keep records that means evidence is unavailable," Dr Morrison said.

He called for further reform to ensure institutions with a known history of serious abuse could not be granted a permanent stay in legal proceedings.

The High Court noted laws were introduced in NSW in 2016 that scrapped time limitations on claims of child sexual abuse.

"In this new legal context, the diocese's contention that any trial of the proceedings would be necessarily unfair must be rejected," Chief Justice Susan Kiefel, Justice Stephen Gageler and Justice Jayne Jagot said in their majority decision.

Justice Jacqueline Gleeson (file images)
Justice Jacqueline Gleeson said the diocese had lost any chance to inform itself of the true facts.

The church had ample opportunity to investigate alleged abuse before the former priest's death but it did not, they said.

"It is also plain that the diocese considered that Father Anderson's request to be relieved of his priestly duties was in the best interests of the church because of his obvious sexual interest in boys," the judges wrote.

In a dissenting decision, Justice Simon Steward said the dead former priest would have been a key witness and the evidence in the case was lopsided.

Justice Jacqueline Gleeson said the diocese had lost every realistic opportunity to inform itself of the true facts in response to the allegations.

The two judges comprised the minority opposing the appeal's allowance.

The church was also ordered to pay the woman's costs of the appeal.

The Lismore diocese has been approached for comment.

1800 RESPECT (1800 737 732)

National Sexual Abuse and Redress Support Service 1800 211 028