Steven thought he had nothing left for the Catholic church to take.
The vile abuse he suffered as a 10-year-old at a Marist Brothers school in Coogee in Sydney’s east in 1973 had already stripped his future from him.
A bright boy who showed promise at school and on the sporting field, he was left dysfunctional.
The abuse sent Steven hurtling down a different life path, one riven with depression, post-traumatic stress disorder and substance abuse.
Now Steven says he’s lucky not to be living on the streets, kept from homelessness by a spare bed at his parents’ house in the inner west of Sydney.
Steven (a pseudonym) decided to sue Marist in 2021 for failing to protect him against a paedophile in its ranks, Brother Edward John Hosey.
Steven likens the case to a tunnel in the dark, something that gave him direction and purpose. There was a sense that justice, after all those years, was within his grasp.
So when Marist told him it would move to throw out the case, denying him any chance to go to trial, Steven was shattered.
“It is literally like trying to climb Everest with them stepping on your neck,” he tells Guardian Australia. “To climb Everest, you need two good legs, a good body and to be fit – and this is harder than bloody Everest.”
Marist is one of a number of institutions taking an aggressive approach to civil claims by abuse survivors in cases where perpetrators have died. It is using the deaths, and the absence of records and other living witnesses, to argue it cannot receive a fair trial.
A Guardian Australia investigation in March revealed that applications or the threat of applications for a stay have now become routine. Where stays are granted, they permanently end legal proceedings and stop survivors taking their case to trial.
The tactic allows institutions like Marist – which had a policy of not referring abuse complaints to police between 1962 and 1993 and keeping them out of any written records until 1983 – to benefit from the delays to justice that they helped engineer.
Marist, which says it cannot comment on Steven’s case, defends its use of permanent stays, saying they are an accepted part of the legal system and are only by used them in a tiny fraction of cases, where a fair trial is not possible.
“The Marist Brothers only apply for stays when 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,” Marist said in a statement. “It’s about fairness in a trial.”
But the stance of Marist and other institutions has prompted survivors like Steven and his lawyer Peter Karp, of Karp O’Neill Lawyers, to prepare for a new battle, one unfamiliar to them and one they should never have been forced to fight.
They are lobbying multiple levels of government for legislative change, a push given new energy by a piece on Four Corners last week.
Their push is already creating results. Guardian Australia understands that Tanya Plibersek, Steven’s local member and a Labor cabinet minister, has written to the state attorney general, Michael Daley, to raise concerns about the practice.
She is also preparing to write to her cabinet colleague Mark Dreyfus, the federal attorney general
Other lawyers, including the Australian Lawyers’ Alliance, are preparing to meet with Daley to urge for reform, while other survivors have spoken with federal Greens senator David Shoebridge and travelled to Canberra to seek change.
“We’re doing all these extra things that we shouldn’t be doing,” Steven says. “I’m just trying to get through the day, and we’re just grinded to the absolute bone.”
Both federal and state attorneys general say they are awaiting the outcome of a high court hearing this week which is being keenly watched by plaintiff and defence lawyers alike.
The case involves a woman known as GLJ who had her civil claim against the Catholic church permanently stayed in New South Wales’s highest court because the perpetrator, Lismore priest Father Clarence Anderson, is long dead. The court ruled his absence rendered the church unable to properly respond to the allegations or receive a fair trial.
GLJ’s lawyers, Ken Cush and Associates, have told the high court that the decision is at odds with the intent of nearly every parliament in the country, which did not want delays to become a barrier to abuse cases going to trial.
They say Anderson’s death does not make a fair trial impossible.
“That the [Lismore] Diocesan Trust might not have as full a defence as it would wish did not warrant the conclusion that a fair trial was impossible,” they argued. “A fair trial is not synonymous with a perfect trial.”
‘They know what happened’
Matt Barker, 55, describes it as a “new type of cruelty”.
In 2020, four decades after he was repeatedly abused by his Scout leader Paul Hayes in Sydney’s west, Barker sued Scouts NSW for its failure to protect him.
The organisation responded by putting on a permanent stay application.
Barker’s first reaction was disbelief. In Barker’s case, the Scout leader had already been convicted of abusing him. Hayes was in jail, alive and available to give evidence about deficiencies with Scouts NSW’s child protection systems.
Scouts NSW had also conceded the abuse occurred and apologised to Barker.
But it was now preparing to tell a court that it could not receive a fair trial.
“When they gave us notice that they were pursuing a stay, I was dumbfounded,” Barker, who has consented to being identified publicly, says.
“They know what happened. There was no argument about the facts of the case and there’s no argument about the settings it happened in – all those facts are clear.
“It really is, it’s the point at which it becomes infliction of trauma again, where it becomes a new type of cruelty. I felt like I’d been sucked in.”
In April, the NSW supreme court granted Scouts NSW the stay, permanently halting Barker’s case. The court found Hayes would not give objective evidence and that Scouts NSW was prejudiced by an inability to find any other independent evidence about the systems it used to screen Scout leaders and protect children in the area in the 1970s and 1980s.
It also ordered costs against Barker, a decision that threatens to financially ruin him.
He has now been forced to crowdfund his legal case. On his crowdfunding page, he reminds the public that Scouts NSW has publicly pledged to be “mindful of the potential for litigation to be a traumatic experience” for survivors and said it would “consider paying legitimate claims without litigation”.
Scouts NSW said in a statement that it took youth protection seriously and had never disputed that the crimes against Barker occurred, cooperating fully with police and then engaging with mediation in the civil proceedings, which it said “unfortunately failed … despite the parties’ best efforts”.
The Scouts NSW decision shocked other plaintiff lawyers, who say it is likely to considerably broaden the scope for institutions seeking to permanently halt proceedings.
Barker and his lawyers, also from Karp O’Neill, are preparing to appeal. At the same time, like others, he has added his voice to the push for legislative change. His legal team has written to the federal and state attorneys general to plead for reform and warn of the impact wrought on survivors.
Barker says: “The consequences of not acting is to remove access to the courts for survivors once again, to go back to a position that is worse, that undermines the good work of the royal commission, and that they need to take the issue seriously. They need to act and they need to act quickly.”
The royal commission’s recommendations made it clear that delays are common – 22 years, on average – and should not be used to deny survivors a chance at justice through the civil courts.
But the royal commission also recommended that institutions retain the ability to make permanent stay applications, to preserve their right to a fair trial.
Lawyers such as Peter Karp say the royal commission could not have contemplated the way that permanent stays are now being used. He says legislative reform is crucial, regardless of what happens in the high court next week.
The stakes, he says, go far beyond the confines of courtrooms.
“Although this is a legal issue, the much deeper and broader sociological issue is also at stake – that is that institutions, churches, schools are once again going to be a safe legal haven for paedophiles,” Karp says. He worries that the institutions, with less risk of lawsuits, might have less motivation to keep their schools and churches safe.
