Australian Broadcasting Corporation - ABC [Sydney, Australia]
June 23, 2023
By Nicolas Perpitch
- There are claims institutions are intentionally drawing out the legal process
- Child sex abuse survivors are describing the process as “adversarial and traumatic”
- A new parliamentary committee will investigate the claims
The often drawn out and re-traumatising experiences of child sexual abuse survivors as they seek compensation is set to come under intense public scrutiny.
Described variously as a “war of attrition” and an attempt to “break you down”, survivors have spoken of unnecessarily long delays in legal proceedings and unreasonable demands for information.
Liberal MP David Honey is stark in the language he uses.
“Concerns have been expressed that perhaps some of the respondents in these cases, are deliberately slowing down the passage of the cases in the hope that the victims will die,” he said.
Dr Honey has been appointed chair of a new WA parliamentary committee tasked with scrutinising the legal tactics used by some state, religious or other institutions in compensation claims by survivors of child sexual abuse.
Changes brought in since the Royal Commission into Institutional Responses to Child Sexual Abuse were supposed to make it easier for survivors to pursue their abusers in the courts.
But one man sexually abused at a Perth school, who wants to remain anonymous, has been in negotiations with religious organisations for more than three years and is about to begin a third round of mediation.
“They string it out to break you down,” he said.
The Community Development and Justice Standing Committee will also look at the response of government and non-government institutions to those claims and how efficiently courts deal with those cases.
‘War of attrition’
John Rule, abuse principal lawyer at Maurice Blackburn lawyers, said some defendants sought irrelevant and excessive documentation and records from survivors as a tactic to drag out proceedings.
“It’s a way for them to put pressure on plaintiffs. And it’s a little bit of a war of attrition. That’s not all defendants. But some, it seems to us, are behaving in that way,” Mr Rule said.
Terry Martino, who advocates for people in WA sexually abused as children in mainly Catholic institutions, said the impact on survivors was enormous.
“They’re saying that the process is long, adversarial and traumatic,’ he said.
“The Catholic Church claim to be model litigants, but the experience of survivors is far from that.”
In a statement, the Archdiocese of Perth said Archbishop Timothy Costelloe placed the individual needs of each victim and survivor at the centre of any civil litigation involving the Archdiocese.
“The Archbishop continues to instruct those who provide legal counsel to him to ensure that civil litigation is to be resolved through respectful, fair and just processes that seek to ensure no further harm is caused to the person who has been abused,” a spokesperson said.
In a meeting with Mr Martino in March and in an exchange of letters, the statement said Archbishop Costelloe gave his “ongoing and personal commitment to treating those who have been abused with dignity, respect and integrity”.
In line with recommendations of the royal commission, WA lifted the statutory time limits for survivors to begin civil action against institutions in 2018, meaning they can now seek compensation no matter how long ago they were abused.
It was meant to make it simpler for people seeking justice, by also making it easier for them to identify a defendant to sue and by allowing financial settlements to be resolved by accessing the assets held by an institution.
But an ABC Four Corners investigation in May revealed some institutions were using an array of legal tactics to thwart compensation claims and deny the survivors justice, despite the legislative changes.
As part of that report, the Marist Brothers Australia justified their use of applications for permanent stays — where a court grants immunity from prosecution to an accused person — in compensation cases.
They say they only applied for stays when it seemed a fair trial was not possible because “an alleged offender is deceased or unable to give instructions due to incapacity, when the claim is so old that there are few or no witnesses available”.
They said applications for stays represented 0.004 per cent of the total number of settled matters over 20 years.
Process should be simplified
Mr Rule said permanent stays were regularly used by defendants to try and dismiss proceedings.
He hoped the parliamentary committee inquiry would recommend setting better guidelines around defendant’s behaviour during litigation.
“But also, it would be great if the litigation process and the courts process could be refined and simplified, so that matters could be set down for trial sooner. And the whole process could be quicker and fairer.”
Mr Martino has written to the Archbishop of Perth Timothy Costelloe, explaining how traumatic the legal proceedings can be for survivors and urging him to work with them.
“We want him to come forward and work with us, in the spirit of cooperation to help survivors,” he said.
The Archdiocese of Perth and the Australian Catholic Bishops Conference have been contacted for comment.
The committee will also look at the effectiveness of WA’s support of the National Redress Scheme, the provision of support services to survivors and other options to provide justice or resolution for survivors.
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