The extraordinary legal tactics institutions are using to fight compensation claims by abuse victims

Australian Broadcasting Corporation - ABC [Sydney, Australia]

May 28, 2023

By Louise Milligan, Mary Fallon, and Jessica Longbottom

Matt Barker was 11 years old the first time his life’s luck ran out.

It was 1979 and he remembers Hey Hey It’s Saturday playing in the background as his innocence evaporated in a lonely caravan on a bush block in Sydney’s west.

“I still have a very clear feeling of right at that moment of the first abuse beginning, of just something breaking inside,” he says.

Over three years he was repeatedly abused by his Scout leader, a convicted, recidivist paedophile.

Five years after the historic Royal Commission into Institutional Responses to Child Sexual Abuse wrapped up, survivors like Matt who are now seeking civil compensation are being thwarted by extraordinary legal tactics rarely seen before the inquiry.

Legal reforms made it easier for victims of institutional child abuse to seek justice, but now a fierce new battleground is emerging as organisations at the centre of the claims push to have some cases thrown out altogether.

Matt wants every parent of a child attending Scouts to know what happened to him — not then, but now, as he has fought to bring the institution he says should have protected him to justice.

The Scouts

Almost four decades after he was abused in the late 70s and early 80s, Matt became one of the few survivors of historical institutional abuse whose perpetrator pleaded guilty.

In June 2020, the man admitted not just to 24 charges in relation to Matt, but also to further offences of abusing three other boys in the same Scouts troop.

When Matt sought civil action to compensate him for the lifetime of pain caused, the perpetrator — who is in his 60s and in jail — was even willing to give evidence arguing that the Scouts should have done more to stop it from happening.

Matt, now 55, assumed it would be a straightforward case.

He was wrong.

In April this year, NSW Supreme Court Justice Peter Garling delivered a judgment in Matt’s case that sent shock waves through the legal community.

He awarded a permanent stay to Scouts NSW, preventing the case from ever going to court and made Matt — the victim of a convicted paedophile — liable for the Scouts’ legal costs.

“You’re shaking, trembling with anger about the decision,” Matt says.

“You’re trying to get through each day, just on the verge of tears.

“Meeting those costs would literally mean I lose my house and face bankruptcy. So, I don’t know what to do next.”

Permanent stays are only granted by the courts in exceptional circumstances, when a case is considered so oppressively unfair to one party that it’s an abuse of process. But plaintiff lawyers say they are now seeing them being threatened and awarded regularly.

Four Corners has seen stays sought or threatened by a range of institutions, including the Scouts, wealthy private schools, Catholic religious orders and dioceses and even the State of Queensland, who argue they cannot be guaranteed a fair trial.

While some lawyers defend this practice — saying the institutions are just exercising their right to a fair trial under our judicial system — others are critical of what they see as a loophole that avoids institutions having to properly compensate victims.

The mechanism is sometimes referred to as the “dead man’s” defence because it’s often employed by institutions when the alleged perpetrator has died or has dementia.

In Matt’s case, however, his abuser is very much alive.

Justice Garling’s reasons for granting the stay in Matt’s case included the passage of time — the offences happened between 1979 and 1982 — and the fact that key witnesses who were in charge of Scouts NSW at the time had died.

The judge also said the perpetrator’s willingness to give evidence that the Scouts should have done more to stop him was self-serving.

Following the royal commission, state parliaments made people bringing historical sexual abuse cases exempt from the Statute of Limitations, which had previously prevented most victims — who typically come forward many years after their abuse — from being able to sue.

Around the same time, in 2018, Scouts NSW released a policy document, saying the organisation would “be mindful of the potential for litigation to be a traumatic experience for claimants who have suffered sexual abuse”. 

The document also vowed that the organisation would consider “paying legitimate claims without litigation” and “facilitating an early settlement”.

Matt says the response to his claim has been the “complete opposite”.

“Rather than early settlement, Scouts have opted for lengthy and expensive litigation that compounds the impact of the abuse that I suffered,” he says.

“They’re re-victimising me; they’re treating me with unspeakable cruelty.” legal loopholes being used to block abuse victims’ path to justice

Stays consistent with royal commission findings: barrister

Barrister Geoffrey Watson SC, who has acted for institutions, says permanent stays are perfectly consistent with what the royal commission recommended and that they were mentioned in its final report.

“Typically, the worst problem is the absence of witnesses … people have died, people have become infirm and they’re unable to respond to it,” he says, adding that records kept by institutions about claimants have often been lost or destroyed.

But Sydney barrister James Masur, whose busy practice specialises in historical institutional abuse cases, says permanent stays were little more than a footnote in the royal commission’s final report and they were never used before the inquiry.

He says it’s disappointing that many institutions’ response to claims “is so different to what has been publicly expressed”.

“I’m personally moved by the plight of survivors and have seen firsthand the devastating effect not only child abuse has, but the deployment of legal barriers has on survivors.”

Mr Masur is among those seeing an influx of permanent stay threats. “From particular organisations where there is a dead abuser, alleged abuser or an infirm alleged abuser, they are almost in every case where those facts exist, being threatened.”

In December 2022, Matt’s lawyer, Peter Karp, wrote in a letter to Attorney-General Mark Dreyfus that Scouts NSW sought the stay despite “having the benefit of 2,000 pages of historical records and 30 witnesses of sound mind and memory, including the perpetrator”.

There was, Mr Karp noted, “an eyewitness to [Matt’s] abuse, and two tendency witnesses” — that is, two other people who were abused by the same perpetrator.

Mr Karp added that Matt has suffered severe anxiety over the prospect of having to pay costs.

Scouts NSW has net assets worth about $187 million, according to a financial statement published in 2022. The organisation declined multiple requests for an interview.

In a statement, Scouts NSW said the organisation acknowledged Matt was the victim of an abhorrent crime and has offered written and verbal apologies to him.

“Scouts NSW has actively engaged with Mr Barker in attempts to resolve his civil claim. Unfortunately, those attempts to mediate failed,” it said.

Even when there’s a high probability that the abuse occurred, Mr Watson argues there are some cases where permanent stays are appropriate.

“Normally, you’re not suing the perpetrator, you’re suing somebody else and saying, ‘You are responsible for the acts of the perpetrator’,” he says.

“Which might mean that the ultimate defendant is not capable of getting a fair trial, and that’s despite the fact that the perpetrator may be guilty as sin.”

The diocese

It’s a bitter pill for plaintiffs to swallow.

One of Mr Masur’s clients is Miimi, a First Nations woman who has brought a claim against the Catholic Diocese of Armidale in the NSW Northern Tablelands.

Miimi alleges she was raped as a child by convicted paedophile Father David Perrett.

“Trauma is not a strong enough word for what it felt like,” Miimi says.

“My whole sense of safety in the world disappeared, and I had no trust in anyone.”

In 1973, four-year-old Miimi was sent to St Patricks, an imposing gothic orphanage in Armidale, which she describes as “like something out of a horror movie”. It was run by the Sisters of Mercy.

Miimi alleges that from when she was five, Perrett would come into her dormitory at night. Sometimes he would take her upstairs to an attic room within the orphanage.

She told a counsellor about the alleged abuse in the 1990s but didn’t speak of it again until an Armidale detective came knocking.

“I just went so much inside of myself,” she says. “I just withdrew to this place inside of myself where nobody could really get in.”

Perrett was convicted in 1996 of abuse in relation to Aboriginal children in Walgett, a small town in northern NSW. Decades later, in 2018, he was charged with a further 139 offences against 40 children, including Miimi.

But six months before his trial was due to begin, Perrett died.

When Miimi decided to sue the Diocese of Armidale — citing Perrett’s 139 charges, a prior conviction, and multiple witnesses alleging his clear tendency to abuse Aboriginal children in the region — the diocese sought a permanent stay.

“I was genuinely gobsmacked,” Miimi’s lawyer Alessandra Pettit says.

“He has a record of abusing other children and I really didn’t think that a wealthy institution would file a stay application on a First Nations woman’s case for being sexually abused as a child while she was in their care.

“It makes me question why taxpayers spent $370 million on a royal commission when we are almost what seems to be in pre-royal commission days.”

Ms Pettit is acting for a number of Perrett’s alleged victims from across NSW.

“You’ve got to give someone the opportunity to have a trial, because that is part of the healing and that is part of having the ability to stand up for the little girl or the little boy that they’re there for,” she says.

The Diocese of Armidale declined to comment on Miimi’s case because it is before the courts.

Miimi, now 54, says she feels outmatched by the power and wealth of the institution.

“I’m expecting that nothing’s going to come out of it, that this is going to be eight years of my life of being re-triggered and re-traumatised, just to be bitterly let down,” she says.

“The reason why I’m talking to you today is for other victims, because I’m not the only one from that orphanage that is trying to bring that diocese to justice.

“I want their lives to mean something, to hold him and them accountable. It’s not okay that he hurt so many of us kids.”

Turning the tables

It’s not just permanent stays that survivors of institutional abuse say are frustrating their efforts to get justice.

In Josh Byrnes’ case, the Diocese of Lismore turned on his family.

He was abused by his father’s cousin Father Dennis Byrnes, who was revered by his Catholic family. The abuse began in 1999, when Josh was 12. He says it lasted for almost eight years.

Josh went to police in 2016 and Byrnes pleaded guilty to the charges against him.

It was revealed during proceedings that the diocese had known the priest was a danger to children 15 years before he began to abuse Josh.

Files found in the Lismore archives referenced that Byrnes had offended against another boy in similar circumstances in 1984.

When the first victim — by then an adult — came forward to the diocese under the Catholic Church’s Towards Healing scheme in 2006, Josh was still being abused by Byrnes.

The diocese paid the first victim compensation under that scheme in 2009.

But when Josh commenced legal action against the diocese, he was horrified by their response.

The Diocese of Lismore argued that Josh’s aunt, Joanne Byrnes, was partially responsible for leaving Josh alone with her cousin. Byrnes was a welcome visitor in Joanne’s home when Josh and his siblings would stay with her on school holidays.

“All of a sudden I get a phone call one afternoon from Joshua’s lawyers … saying there’s a cross-claim coming against me, that it was my negligence because I should have reasonably foreseen that a priest would have abused a child,” Joanne says.

“That I could be up for compensation, interest, all the costs and anything else the court deems.”

She found out later that the diocese was aware of Byrnes’s earlier crimes by the time he abused Josh.

When asked how she would characterise what the diocese did to her and Josh, Joanne is blunt: “Evil is the first word that comes to me.”

“The evidence clearly showed that they were aware of what he was like, that he was a predator, and for them to turn around and suggest to my auntie, it should have been foreseeable to her, that this might happen, seems extremely hypocritical,” Josh says.

“It just seemed like they were just not interested in people, just not interested in us and who we were, or what we’d been through.”

The Diocese of Lismore eventually agreed to dismiss its cross-claim against Joanne and settled with Josh.

In a statement, the diocese said it was unable to comment on the case.

‘Pretty words that have no meaning’

At the close of the royal commission, institutions spoke words of contrition and remorse. They promised survivors a different future.

Catholic bishops described “a catastrophic failure of leadership” and “a kind of criminal negligence”.

The Scouts said they had “a responsibility to survivors of abuse” that they would “honour”.

Josh remembers watching those apologies. “Sometimes I wish I didn’t,” he says. “It just makes me so angry. All these PR people say these pretty words that actually have no meaning.”

Survivors and their lawyers are currently anxiously awaiting a crucial High Court case that will hear whether an institution can use a permanent stay in circumstances where the perpetrator has died.

The case, GLJ v The Diocese of Lismore, is scheduled for June 8.

But lawyers like James Masur feel that legislative reform is the only way to stop the tide of permanent stays.

Sitting outside the NSW Supreme Court, Matt is desperately worried about how he’s going to afford the legal costs to appeal the decision.

“I don’t know how I’m going to gather the financial resources to do that,” he says. “I don’t know how I’m going to gather the emotional and psychological resources to do that. But I just have to.”

He has set up a crowd-sourced fundraiser, and says his case is a “perfect example of why the law needs to be changed”.

“What the legislators need to do is change the laws so organisations can’t behave like that.”

If you or anyone you know needs help:

Watch Four Corners’ investigation into how institutions are thwarting child abuse victims’ fight for justice on ABC iview.