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Published: 14 June 2019
Author: Penny Savidis
The Victorian State government has moved to allow survivors of sexual and other child abuse who have signed deeds of release that were unjust and unreasonable to take legal action.
The move, announced today by State Attorney General Jill Hennessy, will open the door for many survivors of abuse who have already signed deeds of release to sue. Similar legislation has already been enacted in Queensland and West Australia.
But it will not open the floodgates. Survivors of abuse will need to apply to the courts to set aside deeds of release or court judgments. The court will have a discretion to set aside the deed or judgment if it is “just and reasonable” to do so.
Ryan Carlisle Thomas and Stringer Clark strongly support the foreshadowed legislation and has been advocating for the setting aside of unfair abuse settlements for some time. We have been acting for survivors of abuse for decades, and many of our clients signed deeds of releases in circumstances where they effectively had no other choice but to settle their claims. This was due to the numerous defences, loopholes and legal technicalities relied on by defendants over the years, who vigorously defended claims.
In the past, there were almost insurmountable barriers for some clients to take action through the courts. For example, in Victoria, until 2015, the statute of limitations applied and made it extremely costly, lengthy and risky to seek an extension of time to have a historical abuse claim heard in court. And up until 2018, the so-called “Ellis defence” applied to effectively prevent survivors of historical sexual abuse from suing the Catholic Church and other unincorporated organisations using trusts to conduct their activities as they were deemed not to be legal entities capable of being sued in their own right, and this was only formally abolished with the passage of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018.
Further, the social climate that existed prior to the establishment of the Royal Commission into Institutional Responses to Child Sexual Abuse in 2013 meant that many people were sceptical about claims involving institutional abuse, refusing to believe that respected clergymen, teachers or scout leaders could be capable of such heinous crimes.
The above factors conspired to create an unsavoury environment for abuse survivors, where claims were often settled in the shadow of the law (such as through the Catholic Church’s much-maligned Melbourne Response and Towards Healing processes) because there was no realistic option to litigate. Survivors were forced to accept what they could, knowing they had no other viable recourse. Many had no access to any legal advice at the time. The amounts of settlements were traditionally meagre because of the state of play that existed.
It is unconscionable that defendants be allowed to rely on deeds of releases negotiated when the odds were stacked so heavily against abuse survivors. It is not just and it is not reasonable. The proposed legislation is simply keeping up with the fairer environment that now exists for abuse survivors to take claims to court should they wish to do so.
We will be following the foreshadowed legislation closely and providing advice and assistance to survivors who resolved their claims in the past for inadequate compensation.
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