Lawyers for two Indigenous abuse survivors have called for reforms to address the “horrendous” Catholic church strategy of seeking to permanently block cases where alleged paedophile priests have died.
On Wednesday, the church was successful in permanently blocking a claim made by two Indigenous survivors relating to alleged abuse committed by David Joseph Perrett, an Armidale assistant priest and convicted child abuser, whose crimes the church has known about since 1995.
Perrett died in 2020, awaiting trial for alleged abuse against 40 children, including the two Indigenous men, who alleged they were molested by Perrett in 1976 during a camping trip from their Aboriginal mission in Armidale.
The Indigenous men sought civil compensation through the courts five months after Perrett’s death, but the church on Wednesday obtained permanent stays, preventing their cases from going to trial. They successfully argued the death of Perrett and other witnesses meant it could no longer obtain the material it needed to prepare a defence and fairly participate in the trial, despite allegations from the survivors’ lawyers that it had ample opportunity to anticipate and prepare for civil claims while Perret was alive.
The diocese has known he was a convicted child abuser since 1995, heard a confession from Perrett that he was a paedophile in 2016, and knew of more criminal charges against him in 2017, three years before his death. Those charges included the allegations made by the two Indigenous men who later sued, though the church says it was oblivious to their identity.
An investigation by the Guardian earlier this year revealed the church and other institutions are now routinely seeking permanent stays where perpetrators have died, a strategy widely condemned – including by the former head of the church’s response to the royal commission, Francis Sullivan – as a moral failing, a failure of leadership and another layer of abuse for survivors.
Plaintiff lawyers say the threat of permanent stays is also being used during settlement negotiations to force survivors to accept paltry sums or risk having their cases halted permanently by the courts.
Ross Koffel, managing principal at Koffels Solicitors & Barristers, which represented the two survivors in the Perrett case, said the need for reform was clear.
The high court is expected to soon hand down a landmark judgment in one stay case, that of GLJ, which could potentially change the way stays are treated by Australian courts.
“Subject to what happens in GLJ with the high court, if that doesn’t provide some relief against the applications that are being made, then it requires legislative intervention,” Koffel told the Guardian. “There is little doubt that the way in which the stay cases have progressed means that the so-called extraordinary circumstances have been applied to ordinary cases, and I think that’s the very problem.”
The Australian Lawyers Alliance spokesperson and barrister Dr Andrew Morrison KC said he believes reform will be needed regardless of what happens in the high court.
“It’s a matter of continuing concern and New South Wales is easily the worst place in Australia on permanent stays, with Queensland a little distance behind,” he said.
The deaths of witnesses is common in historical abuse cases, as is the absence of records.
That is partly due to the length of time survivors take to come forward – 22 years, on average – and partly due to the church’s own role in concealing abuse complaints.
Orders such as the Marist Brothers had deliberate policies of not keeping any documentary evidence of child abuse complaints until the 1990s and had a policy of not referring civil law enforcement between 1962 and 1993, delaying justice.
Despite this, the church now uses the deaths of witnesses and absence of records to argue they cannot have a fair trial.
The child abuse royal commission recommended removing the statute of limitations on such cases to remove delay as a barrier to justice for survivors.
But it also recommended retaining the power for institutions to seek permanent stays to preserve their right to a fair trial.
Koffel said it was never contemplated that permanent stays would be sought in every case where a perpetrator has died. He said the church knew the harm such a strategy was causing survivors, but was pursuing it regardless.
“It’s just horrendous,” he said. “It’s just inconsistent, one would think, with the principles of which the church is founded. How could it be otherwise?”
A spokesperson for the NSW attorney general, Michael Daley, said the state government was awaiting the high court’s decision in GLJ.
“The attorney general has asked the Department of Communities and Justice to monitor and assess the outcome of the GLJ appeal before providing further advice on permanent stays in civil litigation relating to historical child abuse,” the spokesperson said.
The Armidale diocese has previously declined to comment. Other arms of the church, such as Marist, have denied there is a deliberate strategy of seeking permanent stays and said cases are reviewed on their merits and according to “legal precedents and considerations”.
Marist has also pointed to the national redress scheme, which offers capped amounts of compensation, as an alternative to claims that cannot be pursued in court due to the “effluxion of time”.
