Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697634126649.pdf (Australia)
Inquiry into the oversight of the implementation of redress related recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse Submission to joint select committee on oversight of the implementation of redress related recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse AUGUST 2018 Joint Select Committee on oversight of the implementation of redress related recommendations of the Royal Commissioninto Institutional Responses to Child Sexual AbuseSubmission 34 1.
Introduction Shine Lawyers are pleased to provide this submission in response to the Inquiry into the oversight of the implementation of redress related recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.

We refer to and maintain the views contained in our recent submissions regarding the Commonwealth Redress Scheme for Institutional Child Sexual Abuse Bills 2017 and National Redress Scheme for Institutional Child Sexual Abuse Bills 2018.1 2.
About Shine Lawyers Shine Lawyers is the third largest specialist plaintiff litigation law firm in Australia.

The firm has 680 people spread throughout 44 offices in Australia.

We have a dedicated team of abuse lawyers who specialise in providing legal advice and guidance to survivors of abuse, standing as a voice for clients, and helping them access justice and acknowledgement for the wrongdoing they have suffered.
Shine Lawyers has extensive experience representing survivors seeking redress in every institutional redress scheme in Australia.

These include but are not limited to the Defence Abuse Response Taskforce, Victims of Crime Act 2001 (SA), Queensland ex gratia scheme, Tasmanian Abuse in Care ex gratia scheme, the WA Redress, Defence Force Ombudsman reparation scheme, Melbourne Response and Towards Healing.
Shine Lawyers represented clients giving evidence before the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) and made a submission in response to the Redress and Civil Litigation Consultation Paper in March 2015.2 The firm has conducted many individual and group actions in processing and negotiating compensation arrangements for survivors of sexual abuse.
Significant litigation that the firm has successfully concluded includes: Neerkol Group Litigation The claim involved some 80 former orphans of the St Joseph’s Orphanage Neerkol, operated by the Sisters of Mercy.

Nudgee Orphanage Group Litigation This claim involved the successful resolution of claims for some 30 victims of sexual abuse, operated by the Sisters of Mercy.
Brisbane Grammar Sexual Abuse Litigation This action commenced in the Supreme Court of Queensland was on behalf of 75 former students of the Brisbane Grammar School who were subjected to sexual abuse as children.
1https://www.aph.gov.au/Parliamentary Business/Committees/Senate/Community Affairs/AbuseRedressSch eme/Submissions and https://www.aph.gov.au/Parliamentary Business/Committees/Senate/Community Affairs/NationalRedressSc heme/Submissions 2https://www.childabuseroyalcommission.gov.au/sites/default/files/file-list/Consultation%20Paper%20- %20Redress%20and%20civil%20litigation%20-%20Submission%20-%20174%20Shine%20Lawyers.pdf Joint Select Committee on oversight of the implementation of redress related recommendations of the Royal Commissioninto Institutional Responses to Child Sexual AbuseSubmission 34 St Paul’s Sexual Abuse Group Litigation The claim involved some 25 former students of St Paul’s School in Brisbane who were subjected to sexual abuse during their school years.
Scriven v Toowoomba Preparatory School This litigation on behalf of a single claimant resulted in the largest award in Australian history for compensation for a victim of sexual abuse, which included the largest award for punitive damages in Australian history.

3.
3.

Submissions Submissions have been sought addressing the policy, program and legal response to the redress related recommendations of the Royal Commission, including the establishment and operation of the redress scheme and ongoing support of survivors.

This submission will describe our observations of the change in approach to civil litigation by institutions since the implementation of the redress scheme.
We are concerned that institutions are becoming less collaborative and conciliatory, essentially forcing survivors of child sexual abuse through the redress scheme.

It has always been the case that the redress scheme ought to be an alternative and not a replacement for civil litigation.

Many survivors will be best served by a remedy at civil law.
We have raised various other concerns regarding the National Redress Scheme which we maintain and invite you to take into consideration our submissions of February and June 2018 in this regard.

4.

Reluctance to settle common law matters Some of the Royal Commission’s recommendations from the Redress and Civil Litigation Report3 have been implemented.
Leaving aside the delay and incompleteness of these reforms to date, those changes that have been made have allowed some survivors of abuse to overcome hurdles and access justice through collaborative resolution of claims at common law.

Our team of dedicated abuse lawyers has the privilege of representing survivors of child sexual abuse in institutions in every state and territory including against commonwealth institutions.
Our observation of defendants across the broad variety of matters we act in is of a dramatic and abhorrent change in the few weeks since the National Redress Scheme came into force.

We have observed our opponents in civil matters pulling back from established collaborative arrangements to resolve matters for clients seeking compensation for institutional child sexual abuse.
We are told, expressly or by implication, that now that a redress scheme exists, any survivor who is eligible for redress should only seek redress.

This is not in the spirit of the redress scheme or the recommendations of the Royal Commission that the scheme be an alternative to rather than a replacement of rights at civil law.
3https://www.childabuseroyalcommission.gov.au/sites/default/files/file-list/final report - redress and civil litigation.pdf Joint Select Committee on oversight of the implementation of redress related recommendations of the Royal Commissioninto Institutional Responses to Child Sexual AbuseSubmission 34 Consider the following examples.

matter – in the shadow of the redress scheme We act for a survivor who experienced child sexual abuse in a school operated by the .
Our client’s claim was investigated and evidence collected probative of the institutions liability for the abuse and causation of our client’s illness on the balance of probability.

Our opponents refused to engage in genuine negotiations at mediation and instead negotiated in the shadow of the redress scheme.

Our opponent refused to properly consider quantum considerations and were not prepared to offer any payment in excess of what might be available under the redress scheme.
This argument was put knowing that the redress scheme offers payments substantially lower than those available at common law, in part because of the lower standard of proof to access a redress payment.4 Shine Lawyers has represented close to 200 current and former including a large number of former child Shine Lawyers worked closely with the legal representatives of the in relation to abuse they suffered while in the who were abused at of the , .
to develop a collaborative, cost effective and empathetic process which provides compensation, as well as Direct Personal Responses (apologies and acknowledgement of the harm done).

The psychological welfare of the abuse survivor is central to the process.

In recent weeks it has been suggested in several matters that applications should be made under the scheme or the National Redress Scheme.
These suggestions are made in the context of a refusal or reluctance to attend alternative dispute resolution for claims brought at common law perhaps under a misapprehension that now the national redress scheme exists, all survivors will necessarily chose to seek redress.

The availability of a redress scheme ought not to deter negotiations in good faith for clients seeking compensation according to common law principles and heads of damage.
In a child sexual abuse matter against recently, our opponent insisted the matter proceed under the national redress scheme and refused to reach a settlement.

Our opponent forced formal proceedings under the Personal Injuries Proceedings Act 2002 (Qld) increasing the cost and distress caused to our client.

We were also advised that do not have the financial means to pay compensation in one instance.
It is perplexing this institution is in a financial position to commit to join the National Redress Scheme and yet say they have limited resources law.

Unfortunately recommendations 94 and 95 of the Redress and Civil Litigation Report regarding identification of a proper defendant with means to pay have not yet come into force in Queensland.
to pay compensatory damages at common 4 Shine does not support the refusal to implement the Royal Commission Recommendation that a payment of up to $200,000 ought to be available for redress.

Joint Select Committee on oversight of the implementation of redress related recommendations of the Royal Commissioninto Institutional Responses to Child Sexual AbuseSubmission 34 5.
Legal Services Direction – time-barred child abuse claims5 The Legal Services Direction of 4 May 2016 directs the Commonwealth not to plead a defence to a time-barred institutional child sexual abuse claim and not to oppose any extension of time application.

The Legal Services Direction came into effect on 4 May 2016 and expires on 30 April 2019.

The Royal Commission heard many reports of child sexual abuse in military institutions.
We continue to receive calls from survivors who have not yet reported institutional child sexual abuse before reporting their experience to Shine.

It is an unavoidable fact that new reports of abuse within the military can and will continue to come forward.

The removal of the limitation period impacting these survivors ought not to be time limited by the Commonwealth.

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6.

Conclusion We observe many institutions to continue to act in good faith to assist survivors of child sexual abuse to receive the justice they deserve and will continue to shine a light on injustice while fighting for survivors of institutional sexual abuse.

Some people chose to access redress in recognition of the wrongs they experienced.

This does not mean that survivors who are willing and able to seek compensation through traditional means at common law ought to suffer a negative experience.
Refusing to act collaboratively in the course of civil litigation reflects a significant shortcoming in the behaviour of institutions.

It demonstrates a lack of compassion towards survivors whose mental health can be impacted by unnecessarily adversarial defendants.

Negotiating in the shadow of the redress scheme instead of according to civil law can delay the outcomes and increase legal fees payable for those seeking justice.
A survivor-focused redress scheme must complement and not replace the rights of survivors to pursue remedies available at common law through civil litigation and further reform to civil litigation must accompany the creation of a national redress scheme.

We are grateful for the opportunity to provide our views in this submission.
In the event you have any questions regarding this submission, please contact Lisa Flynn, National Special Counsel – Abuse Law at or on 5 https://www.legislation.gov.au/Details/F2016N00007 Joint Select Committee on oversight of the implementation of redress related recommendations of the Royal Commissioninto Institutional Responses to Child Sexual AbuseSubmission 34