15 Nov 2022 By theguardian
The Catholic church has adopted an increasingly aggressive approach to alleged victims of now-dead paedophile priests, using recent rulings to pressure survivors to accept "paltry amounts" or risk having their claims permanently blocked, lawyers say.
In June, the New South Wales courts permanently stayed a civil claim brought by a survivor, known as GLJ, who alleged horrific abuse at the hands of Father Clarence Anderson in Lismore in 1968 when she was 14.
The court ruled there could not be a fair trial because Anderson was dead, leaving the church unable to properly respond to the survivor's allegations.
The case was stayed despite documentary evidence that high-ranking church officials knew Anderson was abusing boys at least four years before GLJ's alleged assault, but did not remove him from the clergy, instead shuffling him through parishes where he continued to abuse children.
At the time, law firms that regularly handle child sexual abuse cases predicted the nature of the NSW ruling would "encourage" and "embolden" the church and other institutions to seek permanent stays in the many cases where paedophile clergy had died, even "where evidence indicates a propensity for child abuse".
In the months since, law firms who spoke to the Guardian said they had noticed a change in approach from the church in such cases.
Arnold Thomas & Becker, which is pursuing claims on behalf of more than 700 abuse victims, said defendants - particularly the church - were now frequently threatening to seek stays in such cases.
"We have absolutely seen a change in the behaviour of defendants since these rulings were delivered, in particular the Catholic church," Kim Price, the head of the firm's abuse team, said.
"Defendants now frequently threaten to stay a claim on the basis that they cannot have a 'fair trial' because of the delay taken by a survivor to come forward.
"Including, astoundingly, cases where the alleged paedophile has multiple victims. The threat usually relates to the perpetrator being deceased and unable to assist the defendant with their investigations or defence."
Shine Lawyers special counsel Thomas WallaceÃ¢â‚¬â€˜Pannell said his firm had seen a significant uptick in stay applications being made or threatened.
"Institutions are taking a much more aggressive posture," he said.
"There is no doubt that stay applications are being used to place significant pressure on survivors to accept paltry amounts or to walk away altogether.
"It is disappointing that institutions are willing to incur, what would be, significant legal fees in investigating, filing and arguing a stay application rather than redirecting that money to deserving survivors of abuse."
The firm that represented GLJ, Ken Cush & Associates, is seeking leave to appeal to the high court. The court will hear their application on Friday.
The case has already been cited in a stay application in another abuse case, involving Trinity Grammar School, and the Marist Brothers separately cited the death of an alleged paedophile brother in its successful bid to permanently stay an abuse claim last month.
The church had argued that GLJ had never complained before Anderson died in 1996, leaving it unable to investigate the truth of her accusations and making a fair trial impossible.
The child abuse royal commission found significant barriers existed for complainants of child sexual abuse. It found, on average, complainants did not come forward for 20 years and recommended all states remove the limitation period for bringing civil action. All states and territories have since done so.
In Victoria, Price said the recent developments were "against the intention held by parliament in 2015 when they removed the limitations period for child abuse survivors".
"We are calling on the Victorian government to amend the relevant legislation to restrict the use to which defendants can avoid liability for claims resulting from the time taken by survivors to come forward," she said.
Grace Wilson, a partner at Rightside Legal, a firm that regularly deals with abuse cases, said the church had become increasingly desperate in its tactics, describing stay applications as the "latest effort to encourage survivors to go quietly".
"It's pretty galling to survivors that a religious order can say, 'Our paedophile priest, whom we did nothing to deter, is dead and we can't properly defend the claim because of that,'" she said.
She said she had seen no evidence that the supreme court in Victoria was adopting the approach taken in NSW. She expects the church will seek to increasingly utilise stay applications.
"There will be more and more attempts by defendants to stop claims in their tracks with this tactic, but those stay applications rarely succeed," Wilson said.
"Where the abuser has a track record, it would be difficult - as it should be - to block a claim in Victoria."
The Catholic church and its lawyers were contacted for comment. In a statement following the GLJ case, it said it could not comment due to the potential of a high court appeal.
The church said at the time its strategy for responding to child abuse claims would "continue to be guided by the unique facts and circumstances of each case".
"Whilst our client normally desires to assist the media it is inappropriate to make any further statements whilst the time period for applying to the high court has not yet expired," the church's lawyers said in June.