Another major law firm has accused churches of using a recent ruling to attempt to low-ball abuse survivors seeking compensation in cases where alleged paedophile priests have died.
On Tuesday, Guardian Australia revealed the Catholic church was adopting an aggressive new approach towards survivors in cases where alleged paedophile priests and clergy have died.
Lawyers from three firms said the church had been emboldened by a decision in June which permanently halted a case involving a now-deceased Lismore priest, Clarence Anderson, on the grounds that his death meant the church could no longer defend itself properly.
That victory has led the church to take a more aggressive stance during negotiations with survivors, threatening to seek stay applications in such cases unless “paltry” amounts are accepted, lawyers say.
Now, a fourth firm, Slater and Gordon, has said churches are using the ruling to pressure survivors out of launching civil proceedings.
“My colleagues have informed that church entities have raised the decision during non-litigated settlement negotiations, while making ‘low ball’ offers and threatening that if the offer is not accepted and proceedings are commenced, an application for a permanent stay order will be brought,” the firm’s abuse law senior associate, Sam Carroll, said.
The pursuit of stay applications in such cases appears to be particularly prevalent in New South Wales. An analysis of recent cases shows at least five in which the Catholic or Anglican church or related entities have raised the death of an alleged paedophile priest, brother, or teacher to argue that the case against them should be permanently stayed.
In one case, the Marist Brothers argued that the death of one of its clergy, Brother Celcus, made it impossible for it to investigate or to challenge directly the plaintiff’s account of the abuse. It pushed for the stay in circumstances where its own records showed it had received multiple complaints about Brother Celcus abusing other boys.
The New South Wales supreme court granted the Marist Brothers a permanent stay, saying there was no possibility of a fair trial. The court instead suggested the plaintiff may be eligible for compensation through the national redress scheme, which gives amounts up to $150,000.
In another, the Lismore diocese obtained a permanent stay against an abuse claim involving the now-dead John Curran and a girl aged 12 or 13.
Other cases of abuse, not involving the church, have also been stayed where the alleged abuser has died. That includes cases involving abuse at the Camden Air League.
The royal commission into institutional responses to child sexual abuse found that, on average, it takes survivors more than 22 years to make a complaint. In recognition of the barriers facing complainants, all jurisdictions have now removed the time limit on bringing civil claims.
Caroll said the June decision to shield the church from the civil claim would have “wide-reaching impacts on child abuse survivors’ ability to seek justice for the crimes committed against them”.
He also predicted other organisations, outside the church, would be “emboldened to seek permanent stay orders not only in matters where a perpetrator has died but also in other matters where the organisation perceives it is under some other form of disadvantage or prejudice arising from the length of time that has elapsed since the abuse occurred”.
“The recommendations of the royal commission sought to remove the barriers faced by survivors in pursuing damages for the irreparable and usually lifelong harm caused by abuse and it now appears religious and other organisations are attempting to put some of those barriers back up,” Carroll said.
The church was approached for a response. In an earlier statement, lawyers for the Lismore Diocese said its strategy for responding to child abuse claims would “continue to be guided by the unique facts and circumstances of each case”.