On Wednesday, the high court of Australia handed down an important decision around the use of permanent stays in child sexual abuse cases.
It’s in the case of GLJ v the Catholic Diocese of Lismore. The court has ruled that the case should not have been permanently stayed and that it should proceed to trial.
I cannot speak for the survivor in that case but, having had my own case permanently stayed by the supreme court of NSW, I know that for me it was a traumatic and devastating judgment, so Wednesday’s judgment is a very positive development.
Permanent stays are a feature of our legal system. They are supposed to be used in only the most “exceptional” circumstances where proceeding with a trial would “bring the administration of justice into disrepute”. Basically, if the courts decide that a fair trial cannot be held for some reason, they can permanently stay a case. That is the end of the line for that case.
In recent years, organisations that are the subject of claims related to historical child sexual abuse have latched on to this legal remedy as a way of avoiding these claims. What is meant to be an “exceptional” remedy is being applied for regularly in the context of historical child sexual abuse claims.
My own case is illustrative of how these applications can be used by organisations to avoid meeting claimants in court.
In my case there is no doubt and no argument about what happened. My scout leader started his sexual abuse of me when I was 11 years old, and he continued to abuse me multiple times over a three-year period. Three other young scouts in my scout group were also abused by the same scout leader. That former scout leader pleaded guilty to 24 charges relating to my abuse and to further charges relating to the abuse of the other children. He is now in jail.
Scouts NSW applied for, and has been awarded, a permanent stay of my case because some, but not all, witnesses are no longer available and, the judge reasoned, the perpetrator’s evidence could not be relied on as he may attempt to shift some moral blame on to Scouts NSW.
Scouts NSW made the application for a permanent stay despite its acknowledgment that these crimes took place. It chose this legal tactic despite the Scouts NSW statement to the royal commission into institutional responses to child sexual abuse that its earlier policies and procedures “were not appropriate to ensure a child safe environment”. Scouts NSW has not honoured its commitment to be mindful of how traumatic litigation can be for survivors.
In addition to the NSW supreme court permanently staying my case, it also ordered that I pay Scouts NSW legal costs, which are expected to be in the hundreds of thousands of dollars.
Sadly, my case is not unique. Permanent stays have been used by Scouts, by schools and by religious organisations, with the result that the door to justice is being slammed in the face of victims and survivors.
In response to the royal commission into institutional responses to child sexual abuse our politicians across the country acted to remove the time limitation on historical sexual abuse cases. That was a good move and it encouraged many more survivors to come forward and seek justice.
Wednesday’s judgment sends a very strong message to institutions that the intention of our legislators should be upheld and that institutions should not be relying on permanent stays to defend child sexual abuse claims.
All institutions that may be the subject of child sexual abuse claims should now rule out any reliance on the use of permanent stays to avoid meeting these claims in court. Any institutions currently relying on permanent stay applications should withdraw those applications immediately.
Institutions must no longer use permanent stays as a tactic that blocks victims of child sexual abuse from seeking justice in the courts.
• Matt Barker is an adult survivor of child sexual abuse
• 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
• Scouts NSW was contacted for a response ahead of publication. A spokesperson said: Scouts NSW actively engaged with Mr Barker in mediation to resolve his civil claim before it reached court and it is 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. 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. Scouts NSW actively encourages victims of child abuse to access the federal government’s National Redress Scheme, which helps people who have experienced institutional child sexual abuse gain access to counselling, a direct personal response, and a redress payment.
