Justice has already exacted a terrible toll on abuse survivor Matt Barker.
When he was just 11, Barker endured horrific, repeated abuse at the hands of his now convicted Scouts leader, Paul Hayes. He was abused in Hayes’s caravan in western Sydney and in his car on the way to and from his Scout Troop’s theatrical rehearsals.
Like many survivors, it took Barker many years to confront his past and seek justice. Three years ago, he sued Scouts NSW for allegedly failing to protect him from the paedophile within its ranks.
Barker assumed the civil case would be straightforward. His abuser had already been convicted of Barker’s abuse, was in prison, alive, and willing to give evidence about weaknesses in Scouts NSW’s child protection systems at the time. But Scouts NSW this year won a permanent stay in the NSW supreme court, halting Barker’s case for ever, by arguing the passage of time and deaths of witnesses left it unable to receive a fair trial.
Last week, he lodged what could become a crucial appeal in NSW’s highest court, the court of appeal, challenging the decision to permanently stay his claim against Scouts NSW.
Guardian Australia has previously revealed how the same tactic is being used by the Catholic church and others to thwart claims in cases where paedophile clergy and other perpetrators have died.
But the decision in Barker’s case shocked plaintiff lawyers. They feared institutions would see it as a significant broadening of the types of cases in which they could seek permanent stays.
Barker knows of other survivors who, as a result of the decision to stay his case, have decided against pursuing justice.
The knowledge weighs heavily on him. It has also helped galvanise him to continue the fight.
The appeal raises the stakes financially. Barker has already been ordered to pay Scouts NSW’s legal costs. He’s been forced to crowdfund to pay for the case.
Losing his house and bankruptcy are real risks.
But he says that without accountability, there will be no pressure on organisations such as Scouts NSW to change.
He also says he cannot leave a decision to stand that could block other survivors in his position from pursuing a civil claim.
“I’m no martyr,” he said. “But if the people who feel they can do it, don’t do it, then no one’s going to do it and no one’s ever going to get justice.”
The case has brought him to the brink of financial ruin and heaped pressure, anxiety and stress upon him for years, beyond anything he experienced in the criminal justice system.
“For me personally, it is absolutely a fresh source of abuse,” Barker says. “It’s exactly how I feel.”
Scouts NSW said in a statement it had tried to resolve Barker’s civil claim through mediation before it reached court. It said it was “unfortunate that those attempts failed”.
“Scouts NSW has never disputed that the crimes occurred, only that its volunteers at the time could have done more to prevent them,” a spokesperson said. “Scouts NSW cooperated fully with NSW police at the time of investigation, leading to a successful prosecution. We also went to considerable expense to locate potential witnesses.”
The spokesperson said Scouts NSW had enacted significant child protection reforms since the late 1970s, when Barker was abused, and had “put in place processes that educate our youth members to recognise and report inappropriate behaviour”.
A Guardian Australia investigation in March revealed that institutions are now routinely using stay applications in cases where perpetrators have died, particularly in NSW. Plaintiff lawyers say institutions are threatening to seek permanent stays while low-balling survivors in settlement negotiations, before cases even reach court.
The royal commission found survivors take, on average, 22 years to come forward, making the deaths of perpetrators common. The royal commission made recommendations to remove time as a barrier to civil claim, prompting nationwide reforms in recent years.
The royal commission also recommended that institutions retain the power to make permanent stay applications, but lawyers say the commissioners could not have envisioned that the powers would be used with such frequency.
Federal and state attorneys general have so far declined to comment on whether legislative reform is needed, saying they are waiting on the outcome of a key high court case, brought by abuse survivor GLJ, whose case against the Lismore diocese was permanently stayed.
That case was heard last month and is awaiting judgment.
In Australia, children, young adults, parents and teachers can contact the Kids Helpline on 1800 55 1800, or Bravehearts on 1800 272 831, and adult survivors can contact Blue Knot Foundation on 1300 657 380.
