Lawyers for an abuse survivor say a high court ruling on Wednesday will pave the way for more survivors to challenge past settlements that “served only to protect the church institutions” from paying out genuine compensation.
The survivor, known as DZY, was confronted with insurmountable legal barriers to his planned civil action against the Christian Brothers in 2012 over abuse at the hands of two Catholic brothers, brothers Robert Best and Gerald Fitzgerald, in the 1960s.
His prospects for succeeding in suing the church were compromised by two legal issues common for survivors: the then time limit on bringing historical abuse claims and the now-overturned “Ellis defence”, which the church formerly used to avoid legal liability for the actions of its clergy.
New laws introduced in states and territories in recent years allow survivors like DZY to challenge past settlements made in unfair circumstances.
DZY took a case to the high court seeking to set aside a past decision not to pursue compensation for the economic loss he suffered as a result of the abuse.
In a ruling on Wednesday, the court declined to do so.
But it also ruled that the power to set aside settlements was not limited to cases where survivors were forced into settling by those two common legal obstacles: the time limit and the Ellis defence. Survivors still needed to show they were affected by at least one of those legal defences, but it did not need to have been the main reason for them settling.
“There is nothing in the text of [Victoria’s Limitation of Actions Act] which limits the exercise of the court’s power to circumstances where the claimant’s decision to enter the settlement agreement had been materially impacted by either the limitation defence or the Ellis defence,” the court said.
DZY’s lawyer Judy Courtin said the ruling was “good news” for survivors who had entered into “highly inadequate settlements and signed deeds of release which really served only to protect the church institutions and state bodies from providing genuine compensation to the victims of child abuse”.
“DZY is delighted that this high court decision will benefit other victim/survivors,” she said.
“It is this admirable unselfishness and towering courage that make DZY a person worthy of great respect and admiration. If only the churches would take a leaf out of his book.”
Courtin said the case had confirmed that there can be “many reasons why vulnerable victim/survivors previously accepted low settlement amounts”.
“I want to highly commend DZY,” she said. “It must be remembered that behind all these legal battles is a real person who has had to endure a lifetime of trauma and anguish because they were, as a child, raped or sexually assaulted by a member of the clergy, in DZY’s case two notorious Christian Brother paedophiles, Brother Fitzgerald and Brother Best.”
• 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. 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
