Abuse survivors and lawyers have called on the Catholic church and other institutions to cease using permanent stays to shield themselves from abuse claims and for legislative reform to reopen past cases where the tactic has been used.
A Guardian investigation earlier this year revealed how the Catholic church was routinely telling Australian courts that delay, the death of paedophile clergy and the absence of documentary evidence left it unable to receive a fair trial in abuse cases.
The tactic led to the permanent halting of survivors’ cases and lowball offers during settlement negotiations and was deployed despite the church’s own role in delaying and denying justice for decades, in some cases hiding complaints from law enforcement and destroying or deliberately not keeping records of abuse.
The high court on Wednesday delivered a significant blow to the use of stays in historical abuse cases, finding they must only be allowed in rare and exceptional circumstances or risk bringing “the administration of justice into disrepute”.
The decision prompted widespread relief among abuse survivors keenly watching the case, including many whose own attempts to achieve compensation had been on hold pending the high court proceedings.
That includes one survivor, Shane Moran, who was allegedly abused by notorious priest David Joseph Perrett at an orphanage when Moran was aged about eight.
Perrett was charged over the abuse but died before trial and Moran’s civil case against the church, run by Maurice Blackburn, has been on hold awaiting the GLJ decision.
“It’s a huge relief,” Moran said after the high court’s ruling. “It’s been a kick in the guts having to wait for the court to decide whether my claim can go ahead.
“This decision has made my day. I am so glad we will be acknowledged and our voices will be heard.”
Matt Barker, an abuse survivor, had his case against Scouts NSW permanently stayed despite the fact that his abuser, Scouts leader Paul Hayes, has been convicted and jailed for his abuse.
The NSW courts ruled that – despite the fact his abuser was still alive and willing to give evidence – Scouts NSW could no longer receive a fair trial.
“Sadly, my case is not unique,” he said. “Permanent stays have been used by Scouts, by schools and by religious organisations, with the result that the door to justice has been slammed shut in the face of survivors.”
Barker praised the high court’s decision and said it sent a “very strong message to institutions that they should not be using permanent stays to avoid meeting child sexual abuse claims in court”.
“This judgment today might just open that door a bit but what will help that door open will be institutions committing to relegating the use of permanent stays to the dustbin.”
Ross Koffel, managing principal of Koffels Solicitors and Barristers, told the Guardian his firm had a large volume of abuse claims on hold, pending the decision. They would now be filed, he said.
“It’s certainly a win for justice and a win for the plaintiffs in terms of preventing the institutions using an aggressive legal technique to avoid liability,” he said.
“Our clients will be very relieved. We’ve been waiting to file in a whole variety of cases, and we have a whole lot of stay applications on foot. So the court may take a different view when they are now heard.”
After the child abuse royal commission, parliaments across Australia legislated to remove time limits on bringing child abuse claims. They did so in recognition of the profound barriers facing survivors in coming forward, which delay claims on average by 22 years.
The high court found on Wednesday that the use of permanent stays must be considered in that new legal context.
Grace Tame, the former Australian of the Year and an abuse survivor, said the reforms had given institutions a chance to step up and take responsibility for the lifelong trauma of child abuse.
“Instead, by and large they have seized on permanent stay applications as the next best available legal avenue to evade responsibility,” Tame said. “Time and again, we have seen permanent stays awarded by the courts, effectively blocking out survivors from justice.
“This callous tactic not only reinforces irrevocable pain, it creates fresh trauma. Institutions are able to distance themselves from the personal element using lawyers who act on their behalf. Survivors don’t have that luxury.”
Tame also called for institutions to commit to cease using stays in historical abuse cases. Others want legislative reform to limit the use of such tactics.
Dr Andrew Morrison SC, a spokesperson for the Australian Lawyers Alliance, said the high court’s decision made clear that permanent stays should only be used as a measure of last resort.
“Despite this high court decision, legislative reform is still required to ensure that a permanent stay in an institutional abuse case cannot be granted where there is a known history of serious abuse in the institution or by the alleged abuser, and no policy was implemented at the time to prevent the abuse,” he said.
Karp O’Neill Lawyers, which represents Barker and other survivors, agreed legislative reform was needed to “eradicate permanent stays in this area of law”. It also wants reforms to allow survivors who had their cases stayed, or settled under the threat of a stay, to reopen their cases.
“While we overwhelmingly welcome the high court’s decision, such legislation would finally put an end to this roadblock to justice for survivors, once and for all,” the firm said.
Selva Dankha, an abuse law associate with Slater and Gordon, also backed the ALA’s calls for legislative reform.
“This is legislative reform we wholeheartedly believe in, and feel would go a long way in helping to minimise the retraumatisation of survivors and not silence them in their journey for justice,” she said.
• 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. In the UK, the NSPCC offers support to children on 0800 1111, and adults concerned about a child on 0808 800 5000. The National Association for People Abused in Childhood (Napac) offers support for adult survivors on 0808 801 0331. In the US, call or text the Childhelp abuse hotline on 800-422-4453. Other sources of help can be found at Child Helplines International
