NSW bill to be one step in limiting use of permanent stays against abuse victim-survivors

Matt Barker, who survived sexual abuse during the 1970s and 80s, has experienced the trauma of permanent stays first-hand. (ABC News)

Matt Barker is trying to move on, after years spent fighting for compensation for something that happened to him more than 40 years ago.

The 56-year-old was sexually abused by a scout leader in Sydney’s west in the late 70s and early 80s.

Despite the fact his abuser was alive and had plead guilty, Matt Barker was prevented from suing Scouts NSW for compensation in 2020, due to a legal instrument used by some institutions, called a “permanent stay”.

A private members bill being introduced to NSW Parliament this week, if passed, would limit an institution’s ability to have cases like Mr Barker’s stalled indefinitely.

“I know first-hand just how traumatic permanent stays have been for survivors of sexual abuse,” Mr Barker said.

“It could have sent me bankrupt.”

What is a ‘permanent stay’?

A permanent stay is a court ruling which prevents a case being heard in court, because of concerns it would be too unfair to one party.

A Four Corners investigation found courts have allowed permanent stays in several historical child abuse cases, where institutions such as Scouts NSW or the Catholic Church had argued too much time had passed to allow a fair trial.

Stays have also been granted where the abuser, or other witnesses, had died.

But late last year, the High Court overturned a permanent stay placed on one woman’s historical abuse claim, finding it was wrong to suggest there could be no fair trial.

NSW Upper House MLC Jeremy Buckingham, who will introduce a private members’ bill to NSW parliament today, said the legislation seeks to enshrine that High Court decision into law.

“Too often we have seen institutions using a cunning legal procedure — permanent stays — to avoid justice and avoid their day in court,” he said.

Stays would be reserved for ‘exceptional cases’

Mr Buckingham said the Royal Commission into Institutional Responses to Child Sexual Abuse found it took on average 30 years for victim survivors to come forward with their allegations.

His bill would allow stays to be granted only in exceptional cases — which do not include the passage of time or death of a witness.

“Those things are no longer exceptional circumstances because they are not. They are routine,” he said.

In Mr Barker’s case, a stay placed on his case also left him liable for Scouts NSW’s legal costs.

He has since settled with Scouts NSW.

If the legislation passes, NSW would be the first state to enshrine a key High Court precedent into law.

John Ellis, a lawyer specialising in sexual abuses cases, and a survivor himself, said legislation was important to ensure the High Court precedent was followed.

“The decision in the High Court … has made very little difference to the conduct of institutions,” he said.

“Stays are still being threatened. People are still being put in the position where they have to litigate their claims rather than settling out of court.”

The bill would have retrospective powers, meaning survivors who had settled with an institution under threat of a permanent stay, would be able to re-open their case.

Neither Labor or the Coalition has committed to supporting Mr Buckingham’s legislation yet.

Following the High Court decision in November, government Upper House MP Mark Buttigieg told parliament Attorney-General Michael Daley had asked for a briefing on the decision and would “consider mechanisms and changing statute law.”