Sexual and Institutional abuse 9 July 2014

Australia is yet to see a court victory for victims of sexual abuse where a religious institution has been held liable for a group of victims who allege sexual abuse from serial clerical abusers. However last month in Canada a Montreal court ruled that the Redemptionist Order was liable to pay at least $75,000 in damages to each victim who attended a seminary run by the Order between 1960 and 1987 (http://www.ctvnews.ca/canada/quebec-court-orders-religious-group-to-compensate-victims-of-sexual-abuse-1.1908884).  Approximately 70 victims have come forward.

The ruling is in relation to a class action which was brought by the victims who alleged they had been sexually abused in the seminary.  Class actions are the best vehicle for pursuing litigation where there are a group of victims who allege injury against a particular defendant with that injury occurring in similar circumstances for all members of the group but in Australia it has been hard to find sufficient similarity in the facts and law applying to each member of a group of victims of historical abuse  to satisfy our strict class action rules. This means that until recently no abuse claims have been launched under the class action rules because the facts in each victim’s case are usually unique.  The law which applies can differ depending on when the incidents occurred. As we can see in the Redemptionist case, the abuse  occurred over 28 years. If these claims had been brought in Victoria for example, the legislation relating to extension of time applications (an extension of time is required to allow plaintiffs to pursue historical abuse claims in our courts) would have changed during that 28 year period. Accordingly, a Judge may well find that even if the facts were similar, there would not be sufficient similarity in the law applicable to each member of the group for a class action to be pursued.

Part IVA of the Federal Court of Australia Act 1976 (Cth) which contains the class action provisions, came into effect on 5 March 1992. It set out detailed provisions for the commencement and conduct of class actions. Section 33C sets out the threshold requirements for the commencement of a class action:

(a) There must be claims by seven or more persons against the same person.

(b) The claims must arise out of the same, similar or related circumstances.

(c) There must be substantial common issues of law or fact.

Similar provisions apply in state jurisdictions.  The Supreme Court in NSW has recently ruled that a group of victims of abuse at the Fairbridge Farm School can pursue a class action.( Giles & Anor v Commonwealth of Australia & Ors proceeding 2009/329777). A class action was filed on behalf of approximately 60 victims who lived at a Home run by the Fairbridge Foundation between 1938 and 1974. Judge Garling who heard the application which commenced in 2009 said, “I am satisfied that the most efficient and cost effective disposition of these claims is be a representative proceeding as it is presently constituted.

The Defendants, which consisted of the Faribridge Foundation and the NSW and Commonwealth governments, vigorously fought the application for the matter to proceed as a class action.  Whether it will be possible to pursue claims of historical abuse as class actions in other jurisdictions remains to be seen.  However it is clear from the Fairbridge case that if class actions are to be brought in historical abuse claims, it is necessary to select the members of the class very carefully as any significant differences in the facts and law applying to each member of the class is likely to mean that the class action is doomed to failure. Now that the Fairbridge victims have been certified as a class, victims of institutional abuse are awaiting the outcome of the substantive claim as to whether damages will be awarded to each member of the class and how those damages will be assessed.

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