Support groups have warned a Western Australian inquiry that abuse survivors are paying the “ultimate price” and having their attempt for justice “quashed” by the pursuit of permanent stays by churches and other institutions.
The WA parliament is now examining issues restricting access to justice for sexual abuse survivors, particularly in the wake of nationwide reforms to remove time limits on the bringing of civil claims for compensation.
In three separate submissions, abuse survivors’ groups warned the parliament that their ability to seek compensation through the courts is now being jeopardised by the regular pursuit of permanent stays, which halt claims in their tracks where a court deems a fair trial is not possible.
The widespread use of stays, first revealed in a Guardian Australia investigation, has caused anger among survivors and plaintiff lawyers, who say it allows institutions to effectively benefit from delays to justice that they helped create.
Survivors of Child Abuse, Survivors & Mates Support Network and Beyond Abuse said such tactics have become routine in cases where perpetrators have died or where an institution has failed to properly investigate alleged abuse.
“The overuse of permanent stay applications is a significant concern,” Survivors of Child Abuse said in its submission. “This process should only be applicable in exceptional circumstances, but it is often granted when perpetrators have died, and/or institutions had not previously investigated the allegations.
“In such cases, the victim pays the ultimate price by never having their case heard. The perception of survivors is that the justice system favours perpetrators over victims.”
Beyond Abuse’s chief executive, Steve Fisher, suggested the WA parliament legislate to limit the use of stay applications in institutional abuse cases.
Beyond Abuse wants the use of stays prohibited where an institution has caused the delay in bringing the claim, where laws prevented a survivor from bringing an action earlier, or where institutional conduct contributed to the action not being brought while a perpetrator was alive.
Fisher said he acknowledged the need for courts to have the power to stay civil claims to prevent unfairness, but said “unique action is justified because the mischief the law is seeking to remedy here is also unique”.
“After all, if the legal principle for having stays of proceedings is to prevent injustice, at the present time the conduct of institutions [yet again] is abusing stay of proceedings to cause injustice,” he wrote in his submission.
The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that courts retain the power to grant stays, something it said was needed to maintain an institution’s right to a fair trial.
But the Survivors & Mates Support Network said the royal commission could not have intended that institutions would be using stays as a “matter of course”.
“This is in fact what is now happening. Institutions are making these applications based in the main on the loss of evidence by the institution or the death or incapacity of the perpetrator,” Prue Gregory, the network’s policy, advocacy, and stakeholder relations manager, said. “These applications for permanent stays generally are being successful.”
• In Australia, children, young adults, parents and teachers can contact the Kids Helpline on 1800 55 1800; adult survivors can seek help at Blue Knot Foundation on 1300 657 380. Other sources of help can be found at Child Helplines International
