The legal tactic thwarting compensation for abuse victims

Sam Hawley: Hi, I’m Sam Hawley, coming to you from Gadigal Land. This is ABC News Daily. After the Royal Commission into Institutional Responses to Child Sexual Abuse, the stage was set for hundreds of survivors to receive financial compensation. But Four Corners has found wealthy organisations, from the Scouts to Catholic dioceses, are now using extraordinary legal tactics to fight compensation claims from victims, even when the offender has been found guilty. Today, reporter Louise Milligan, on her investigation.

Sam Hawley: Louise, you’ve been investigating child sexual abuse at the hands of institutions for many years. And we had a royal commission into this, and it was meant to draw a line in the sand, wasn’t it? It was a turning point.

Louise Milligan: It really was, Sam. I remember there was this huge sense of hope, and they felt heard. And importantly, the royal commission made very key recommendations for law reform to make their path to justice, which had been, you know, pretty thwarted before that, easier.

Sam Hawley: And Louise, at the time, the institutions involved, they acknowledged, didn’t they, the suffering that had been caused? Many of them acknowledged that.

Louise Milligan: Absolutely they did. I mean, there were all those famous moments at the end of the royal commission where all the Catholic bishops, for instance, stood up and they said that, you know, ‘this was a catastrophic failure of leadership’. All the institutions, the Salvation Army, the Scouts, the Anglican Church, you know, all of them got up, and apologised.

Former Catholic bishop: There was a kind of criminal negligence.

Phil Harrison, Chief Commissioner, Scouts Australia: Scouts Australia has a responsibility to survivors of abuse, and we will honour that.

Louise Milligan: However, what’s happening now is suggesting that well, to survivors at least, that they’re fighting just as hard as they ever were.

Sam Hawley: So to understand this, you’ve gone and you’ve spoken to a number of survivors of abuse, including Matt Barker.

Louise Milligan: Yes. So Matt Barker was a scout in Sydney’s western suburbs. For legal reasons, we can’t say exactly where. And he was abused by a scoutmaster from the age of 11, for 2 to 3 years. Now, the Royal Commission made very important recommendations. Included in those was the removal of the statute of limitations. Now, that essentially meant that, if too much time had passed since the crime was committed, then you couldn’t sue. So parliaments around the country legislated to overturn these legal loopholes, if you like. Now, Matt Barker, back in June 2020, his perpetrator was actually convicted of 24 charges, in relation to Matt and also numerous other offences against three other victims. He actually pleaded guilty, and he’s now in jail. So when Matt came to sue the institution, he thought he was on pretty solid ground. He sued Scouts New South Wales or he went to Sue Scouts New South Wales.

Matt Barker: You know, the result of that court case literally changed the course of my world.

Louise Milligan: And Scouts New South Wales came back with what’s known as an ‘application to seek a permanent stay’. Now ‘permanent stay’ just pretty much pulls down the shutters on a legal case. It means that the case is just stopped, and the plaintiff, the, you know, alleged victim’s right to compensation is shut down. In many of these cases, institutions have been saying ‘it’s too hard for us to run these cases because the perpetrator is dead or has dementia’. But, you know, in this case, you’ve got a perpetrator who’s alive, in jail, willing to give evidence for Matt to say that the institution, Scouts New South Wales, should have done more to stop him. But even that wasn’t enough.

Matt Barker: It definitely makes me very angry, when I think about their their behaviour.

Louise Milligan: Justice Peter Garling, in the New South Wales Supreme Court a couple of weeks ago, granted a permanent stay to Scouts New South Wales. But not only that, he ordered that Matt was responsible for the costs of Scouts New South Wales, which is a multi-, Multi-million dollar organisation. Matt is saying that he’s going to lose his house, like, he doesn’t have the ability to pay these costs.

Matt Barker: Meeting those costs would literally mean I lose my house, and face bankruptcy. So yeah, I don’t know what to do next.

Sam Hawley: And I can see, Louise, the reason the stay was granted, in that case, was because the judge found that too much time had passed, that key decision makers had died, and that the perpetrator’s evidence was self-serving. What do New South Wales Scouts have to say about this?

Louise Milligan: Scouts don’t want to comment on the specifics of the case, because they say it’s before the court, but they say that they’re, you know, terribly sorry about what happened to Matt, that it was a terrible crime, that they have apologised to him. That’s all they’ll say about it. They won’t comment on the specifics of the case, and they won’t comment on the decision to take the stay.

Sam Hawley: He’s just one case that you uncovered. And as you mentioned, there’s many others. Tell me about Ted.

Louise Milligan: Ted Kawicki is a man who was abused, he says, in the 1960s, at an absolutely notorious Marist Brothers School in Maitland. He’s come forward, and he has also been hit with a, you know, a threat of a permanent stay.

Ted Kawicki: The weapon of last resort. So, it’s a one-size-fits-all. That means convicted criminal thugs are simply let off the hook.

Louise Milligan: This is about people, who as small children, had their lives fundamentally altered. So you’re compensating for a whole life.

Ted Kawicki: There’s no way in the world, will I ever give up. Never. Never in a million years. His death – he rests in peace. And he leaves the misery behind. They hide behind tombstones. You know, dead priests. Dead brothers. It’s disgraceful.

Louise Milligan: Marist Brothers say that stays are an accepted part of our legal system, and they’re available to all parties. And they’ve been exercised by many organisations, they say, including the ABC. I’m not sure what they’re referring to there, but the Marists only apply for permanent stays when they say that a fair trial is not possible.

Sam Hawley: And I see that the Marists say that they have been trying to mediate with Ted for some time.

Louise Milligan: Hm

Sam Hawley: So let’s go back to the Royal Commission now. Louise, there were reforms that were supposed to make the compensation process easier? There was a national redress scheme that was put in place – tell me about that.

Louise Milligan: So, the National Redress Scheme set up a compensation system where you could get an ex-gratia payment up to a cap of $150,000. Now, the average amount that has been paid under that scheme is $88,000. Now you think about it. If your life has gone completely awry, $88,000 is not going to change your life in any material way. The other thing about the redress scheme is that it’s ironclad, which means that if you take a redress payment, that’s it. You can’t sue. You need to contextualise this, because although the institutions are coming up with these ways to try and thwart the survivors from getting big compensation payouts, it is true that there have been quite a few compensation settlements to survivors in the millions. We spoke to one plaintiff lawyer, in Melbourne, who was representing a lot of clients who were abused by Father Gerald Ridsdale, who’s like a very notorious Catholic priest who, you know, abused hundreds of kids.

Judy Courtin, Lawyer: Father Gerald Ridsdale, as we know, a prolific, prolific offender. We have 20 clients on our books, and we’ve settled four thus far. For those four clients, we have… Our clients… Have received 5.7 million. They’re having to pay out big dollars now, in many claims. And they’re getting scared, basically. You know, they’re getting scared.

Louise Milligan: Judy Courtin has said to us, what are they trying to do? They’re trying to save money.

Judy Courtin, Lawyer: They should be bled dry. I’m sorry, they should be bled dry. How much harm over how many decades have the institutions caused, not just the little child, their families, how many suicides and the impacts on families? I’m sorry. They should be bled dry.

Sam Hawley: You also, though, didn’t you, Louise, speak to barrister Geoffrey Watson, who has acted for both sides in these kind of cases, and he makes the point that this is just how the legal system works?

Geoffrey Watson SC, Barrister: And it doesn’t matter about what you think about the merits or ethics or morals of the defendant. Everybody in Australia, plaintiffs and defendants, they’ve got a right to a fair trial under our judicial system. And this is a reflection of that governing theory. And it doesn’t matter whether you’re a good guy or a bad guy, you’re entitled to invoke it.

Louise Milligan: Yes, it should be noted that there’s a very important case in the High Court of Australia on June 8th, so next week, and it is called GLJ and the Diocese of Lismore. GLJ is a woman who was abused by a Catholic priest up in Lismore. The High Court will be determining the question of whether a permanent stay should be granted in circumstances where an offender is dead. So, all of the plaintiff lawyers and all of the survivors who are watching this are really anxious, because they know that this is going to have an implication for them, and whether their cases can be ultimately successful on appeal. They’re saying that there needs to be some sort of legislative reform to remove the permanent stays for these types of cases, because the royal commission actually allowed for permanent stays in its final report. The survivors and the lawyers are basically saying that the only thing that can change this is parliamentary reform.

Sam Hawley: Okay. So, Louise, it seems like the royal commission may have just been the beginning. There’s a big battle still to go?

Louise Milligan: Yes, and that is unfortunate, because they understand, and their lawyers understand, that these cases are very difficult. They’re not easy to run, but they’re not even getting that chance. They’re not even getting through the front door, when a permanent stay is granted and they want their day in court. They want to be heard.

Ted Kawicki: Parliament must remove this obscenity off the statute books, because that denies hundreds and hundreds of innocent victims the right to due process, whilst affording known paedophile criminals sanctuary in the grave.

Sam Hawley: Louise Milligan is a reporter with Four Corners. Catch her full investigation on ABC TV tonight at 8.30 or on iview. And if you’ve found anything in this episode disturbing, you can call Lifeline on 13 11 14. This episode was produced by Veronica Apap, Flint Duxfield, and Sam Dunn, who also did the mix. Our supervising producer is Stephen Smiley. I’m Sam Hawley. To get in touch with the team, email us on ABC News [email protected]. Thanks for listening.