The New South Wales branch of the Scout Association of Australia has been permanently shielded from an abuse survivor’s compensation claim despite the fact the paedophile former Scout leader remains alive and available to give evidence about his former employer’s child protection systems.
The NSW supreme court recently ruled that Scouts was unable to have a fair trial in a survivor’s civil case, which alleged that the organisation failed in its duty to protect him from abuse by former Scout leader Paul Hayes in Toongabbie in the 1970s and 1980s.
Hayes had already been convicted by a court of 24 charges against the same survivor and – unlike recent cases where institutions have used the deaths of perpetrators to halt proceedings – he is still alive and available to give evidence about the abuse and Scouts’ institutional failings.
The court prevented the case from going to trial because it said Hayes’s evidence would not be objective. It found he may be motivated by a desire to shift moral blame for his crimes by criticising his employer for its poor child protection practices.
“In those circumstances, I accept that the perpetrator would benefit, at the very least in a psychological way, from a finding in these proceedings that the defendant breached its duty of care to the plaintiff,” Judge Peter Garling ruled. “That is because, in my view, the perpetrator will perceive such a finding as shifting at least in part, his moral blameworthiness for perpetrating the abuse of the plaintiff to the defendant.”
Scouts was also 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.
Other witnesses had died or were unavailable, and there was no reliable evidence to determine whether and how Scouts investigated Hayes’s background or supervised and monitored him.
“Any trial would be so unfair because it would not be a contest at all,” the court ruled. “It would be an abuse of the judicial process contemplated by adversarial litigation. In this case, there clearly exist exceptional circumstances, including that the abuse occurred over 40 years ago.”
The decision is currently being appealed. Scouts NSW said it took youth protection very seriously and had never disputed the crimes occurred, cooperating fully with police at the time.
“Scouts NSW has acknowledged the trauma the survivor has suffered, offering a formal apology and support,” a spokesperson said.
“Throughout the civil claim process our insurer and its legal representatives engaged with the survivor’s representatives on the legal difficulties the claim presented. The matter unfortunately failed to resolve at a mediation in January 2022 despite the parties’ best efforts.”
Guardian Australia has recently revealed how churches and other institutions are increasingly using the deaths of known paedophiles, particularly in NSW, to thwart survivors’ civil claims by seeking permanent stays.
They have been emboldened by a landmark decision in NSW’s highest court which halted a claim by a survivor known as GLJ because the perpetrator in the case had died.
That decision will be the subject of a high court appeal in two weeks’ time.
In the meantime, Catholic orders are threatening to seek stays during settlement negotiations in a bid to force survivors to accept paltry settlement amounts where their abusers have died.
Survivors and plaintiff lawyers say the use of stays in such cases runs contrary to findings in the royal commission that vast delays were common for abuse survivors.
In some cases, the delay to justice was due to direct actions by institutions in covering up abuse and either destroying documents about child abuse or deliberately not keeping them.
The issue was raised in Senate estimates on Wednesday, when the Greens senator David Shoebridge chastised the federal government for not intervening in the high court proceedings or proactively moving to protect survivors in such cases.
“Is the attorney general [Mark Dreyfus] intervening in those proceedings to try and defend the policy outcome that we got from the royal commission that empowered survivors and disempowered abusive institutions?” Shoebridge asked. “Is he in there saying ‘this is wrong?’”
Officials from the attorney general’s department said the attorney general was not intervening, but said it was an issue that they were “very closely engaged with”.
Maurice Blackburn’s NSW abuse law leader, Danielle De Paoli, said the decision to issue a stay in the Scouts case could broaden the scope for institutions seeking to permanently halt proceedings.
“It takes it one step further than previous matters that have been heard by the courts,” she said.
But she said it was critical that survivors not be dissuaded from considering civil action.
“Reading these decisions and the number that have come through in the past six months, it’s easy to get the impression that there’s no prospects,” she said. “But it’s important for the survivors to know that there’s lawyers, whether it’s us or whether it’s other lawyers out there, who are prepared to fight these applications.”
