News & Current Affairs
21.12.23
High Court institutional abuse decision provides welcome clarity around a complex area of law
The Royal Commission into Institutional Responses to Child Sexual Abuse heard evidence about the struggle survivors face in getting compensation from the institutions that failed to protect them.
These are issues my colleagues have written extensively about and which are close to my own heart as someone who pursued a career in law because I wanted to help the vulnerable in our society.
The inquiry found that one of the biggest barriers for survivors of institutional abuse has been the limitation bar, which gives an injured person just three years to begin proceedings against the perpetrator.
On average, it takes child abuse survivors 22 years to disclose their abuse, and longer still to take legal action.
After the inquiry, limitation was amended by state parliaments so survivors could seek redress even if their abuse occurred decades earlier. The court still has the ability to permanently stay proceedings (that is, stop them from being heard) when it is found a fair trial would be impossible.
Some institutions, particularly churches, are now under fire for applying for permanent stays as a matter of course to avoid paying compensation when claims are made against them.
The threat of a stay can significantly affect negotiations, including compensation figures being discussed, if lawyers are operating on the basis that a stay may be granted and their client may get no compensation if they do not agree to a settlement.
In the recent case of GLJ, who alleged she was abused by a Catholic priest when she was a child, the church made an application for a permanent stay because the accused priest and many key witnesses had since died.
The church argued that the deaths of these witnesses put it at a disadvantage because it could not properly investigate the facts of the claim – although its own records showed the priest was known to pose a risk to young boys, and was moved between parishes following complaints by parents. He had ultimately been suspended from the priesthood.
The Supreme Court refused to stay the proceedings. The church went to the Court of Appeal. That higher court reversed the decision. This prevented GLJ from recovering damages, and she was ordered to pay the church’s legal costs.
GLJ then appealed to the High Court of Australia. Our highest court reversed the Court of Appeal decision. Her action against the Catholic Church can now proceed in court.
The fine balance of ensuring a fair trial versus allowing victims to sue many years after the abuse is illustrated by the differing decisions of each hierarchy of the court.
The High Court’s decision in November has been welcomed by survivors of child sexual abuse who want to have their day in court.
It should also be welcomed by the legal fraternity because it provides much-needed guidance around a complex and nuanced area of law concerning stays of proceedings that is becoming more prominent as increasing numbers of victims find their voice.
In making the GLJ judgement, the High Court described a permanent stay of proceedings as “an extreme step”, adding that if a court refused to hear and decide cases in anything other than exceptional circumstances or as a last resort to protect the administration of justice, it would in itself be an injustice and bring the administration of justice into disrepute.
In the case of GLJ, her alleged abuse had long-lasting impacts, including post‑traumatic stress disorder, chronic and recurrent depressive disorders, generalised anxiety disorder, panic disorder, sexual disorder and enduring post‑traumatic personality change. She is certainly not alone in her suffering among victims of systemic abuse.
My colleagues at Aulich and I see similar issues amongst many of our own clients who have been victims of those who were responsible for their care.
I’m proud to be part of a law firm that is committed to fighting for victims of institutional abuse, and who will ensure no stone is left unturned to get the best outcome regardless of the might of the institutions involved, or the decades that may have passed since the abuse occurred.
I am also proud to work for a firm that believes everybody is entitled to a fair trial – and this includes institutions who stand accused of child sexual abuse.
The High Court judgement in GLJ has shown that an extremely high bar must be met if a case is to be stayed. A stay is “an extreme step” rather than a fait accompli for the likes of the Catholic Church and other institutions fighting damages claims.
If that high bar is met, and a defendant can clearly demonstrate a stay is appropriate, it is only right that a case be stayed. Ensuring a fair trial is important.
If the bar is not met by the defendant, a plaintiff must rightly be able to pursue their alleged abuser for damages through the courts to the fullest extent of the law.
The High Court decision has shown that the death of alleged offenders or witnesses due to the passage of time is itself not enough to permanently stay a case.
Importantly, it delivers a clear signal that lawyers practising in this area of law should not be cowed into making an early settlement for far less than their client is entitled to, for fear of the case being stayed.
Victims of institutional abuse deserve better than that.
If you are a victim of institutional child abuse, or know somebody who was, contact us at info@aulich.com.au or call 02 6279 4222