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Marcus, Shaun --- "President's Page: Current Trends and Future Initiatives" [2023] PrecedentAULA 59; (2023) 179 Precedent 3

Current trends and future initiatives

By Shaun Marcus

Understanding current trends in court procedures is critical to representing clients well. This edition of Precedent provides insight into a variety of procedural considerations in both the civil and criminal jurisdictions.

At the time of writing, we have just seen a great example of how defendants and their insurers try to utilise procedures to gain an advantage over their opponents. In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore,^[1] the plaintiff alleges serious historical sexual abuse allegations against a priest appointed by the defendant but, due to the death of the priest and other potential witnesses, the defendant sought a permanent stay of the proceedings on the basis that there could not be a fair trial. Ultimately, the matter came before the High Court with the majority decision finding that the granting of a permanent stay should only ever be made as a measure of last resort:

‘The party seeking the permanent stay bears the onus of proving that the trial will be unfair or will involve such unfairness or oppression as to constitute an abuse of process. While the onus is the civil standard of the balance of probabilities, the onus has rightly been described as a heavy one, and the power rightly said to be exercisable only in an exceptional case. This is because it is always an extreme step to deny a person the opportunity of recourse to a court to have their case heard and decided’.^[2]

The plaintiff in this matter alleges abuse from more than 55 years ago. The courage and commitment she and her legal team have shown in successfully resisting the tactics of the defendant to restrict access to justice for victims of historical abuse is to be commended.

The effect of this decision will be profound for many other victims across Australia in reducing the ability of defendants in similar cases to avoid accountability.

It is a significant example of the constant challenge we have in protecting the rights of individuals. I hope you find valuable the different topics in this edition of Precedent.

Directors Meeting at Sanctuary Cove

At the recent Australian Lawyers Alliance (ALA) National Conference in Sanctuary Cove in Queensland, we were fortunate enough to bring 12 of our Directors together in person to discuss the current work of the ALA and future initiatives. It was fantastic to see everyone and hear their thoughts on the direction of the ALA.

Some noteworthy ideas were raised and the ALA is committed to prioritising a number of initiatives in the short term.

In particular, it was evident from our discussion that we have more work to do in promoting the work we do and stamping out public misconceptions. Our immediate projects to address this issue will include improving messaging to members and the public to illuminate the valuable work that our members do daily, and enhancing our CPD programs. We recognise that ensuring we remain relevant to our members and the practice areas we work in is imperative to the future of the organisation.

We need to continuously ensure that the wellbeing of injured people is always on the agenda for relevant Government policy.

I thank the Board for their dedication to the ALA.

The conference was a fantastic event and I was grateful to meet so many of our members from across the country in person. I thank you all for your attendance and participation.

Shaun Marcus is a partner at Arnold Dallas McPherson Lawyers. PHONE 03 9670 9066 EMAIL shaunm@ardmc.com.au

^[1] [2023] HCA 32.

^[2] Ibid [21].