Permanent Stays are an exceptional application within Australia’s legal system, providing an opportunity to permanently park a case. Unfortunately, it has become a regular legal strategy for institutions facing legal action for the historical child sexual abuse that occurred within their establishments.
Unraveling the Permanent Stay
As a legal strategy, a permanent stay has been used by defendants trying to halt the legal proceedings permanently. It’s a way to prevent a case from ever going to trial. There are legitimate uses of the permanent stay, but once defendants facing sexual abuse claims used it successfully, it became a more common strategy.
There are various reasons a defendant can pursue a permanent stay, but in these cases, they typically revolve around the time that has gone by since the abuse took place. With the passage of time, key witnesses have passed away or struggle to remember important facts, which could prejudice the case. The loss of documents, witnesses, and evidence is a factor. The health of the accused or their mental capacity can also be used to secure a permanent stay. The complexity of the case itself cannot be used as a viable reason for a permanent stay.
Historical Abuse Cases in Australia
Since the Royal Commission in to Institutional Response to Sexual Abuse created the National Redress Scheme and changed the laws surrounding time limits, there have been more victims coming forward to speak about the horrific abuse they suffered at the hands of the people they should have been able to trust. These cases are complex due to the passage of time, but they still require a level of sensitivity and care that victims deserve.
Survivors have a difficult time seeking recourse because so much time has elapsed, which makes it more difficult to secure evidence and witness statements. For this reason, the NRS can provide monetary compensation and an apology, but for many victims of childhood sexual abuse, that isn’t sufficient so they opt to bring a civil claim.
Legal Basis for Seeking a Permanent Stay in Historical Abuse Cases
For defendants in civil claims seeking a permanent stay there is a legal basis to do so depending on:
· The passage of time
· Availability of evidence
· Changes in the law
· An issue related to due process or fairness
In Matt Barker’s case, Scouts NSW sought and received a permanent stay based on the fact that some witnesses were unavailable. The perpetrator abused four scouts, including Mr Barker, and pleaded guilty to 24 separate charges and is serving his sentence in jail. Unfortunately, the case against Scouts NSW could not move forward due to the permanent stay and Mr Barker was ordered to pay their legal costs.
The Impact on Survivors
Redress is bigger than securing monetary compensation for survivors, it’s just as important to receive the acknowledgement of what happened and an apology. When victims use the civil court process to pursue justice, the permanent stay should not be a loophole for institutions to escape facing justice.
The emotional toll is immense, from the initial abuse through the process of pursuing whatever form of justice a survivor sees as appropriate. A permanent stay potentially denies survivors that justice and leaves them feeling dismissed and unheard without the opportunity to share their stories and find closure.
It sends a message to the institutions that choose to cover it up instead of dealing with it head-on and could contribute to the culture of silence continuing. There are principles in place to ensure legal proceedings are fair, but they have to be balanced with accountability.
Recent Legal Precedents and Developments
The most recent development on this front occurred in November of 2023, the ruling in GLJ vs the Catholic Diocese of Lismore was clear. The case should not have received a permanent stay and should proceed to trial.
This news was monumental for other cases just like it, with the legal system sounding a resounding no for institutions looking to use permanent stays as a legal loophole to evade accountability.
Ethical Considerations and Public Perception
A permanent stay could be seen as undermining fairness in the legal system by denying survivors the chance to be heard. For the public, it is an injustice based on a technicality. For survivors, it’s a step back in overcoming their trauma. For advocacy groups, it’s a step back for survivors who have stepped forward. It could be perceived as the system favouring the accused’s interests over the survivors, especially with the potential for misuse of the tactic.
It’s a delicate balance and transparency is key for all parties involved.
Final Thoughts: Balancing Legal Nuances and Justice
There is a place in the legal system for permanent stays, but there is no place for institutions who use them as a loophole strategy to try escape accountability. There has to be justice for survivors, and it won’t come if the courts allow perpetrators and the institutions that covered it up to exploit the system.
If you are a survivor of child sexual abuse, reach out to experienced institutional sexual abuse lawyers in Sydney. At AJB Stevens, we are experienced in litigating these cases, helping our clients pursue NRS compensation and civil claims, guiding you through whichever process you decide. We understand the complexity of these cases and the emotions that come with them, providing you with support throughout the process.
There is more than one choice available to you and we can advise you on your options and which one may be the right course of action, with a trauma focused approach. Get in touch today to sit down with a member of our team.
