Day 4 : Royal Commission Told Christian Brothers Tried to Avoid Liability over Alleged Abuse

Perth Now
May 1, 2014

http://www.perthnow.com.au/news/western-australia/day-4-royal-commission-told-christian-brothers-tried-to-avoid-liability-over-alleged-abuse/story-fnhocxo3-1226902285371

Hayden Stephens, partner at Slater and Gordon, outside the Royal Commission after giving evidence. Picture: Stewart Allen. Source: News Corp Australia

A LAWYER who represented the Christian Brothers against survivors of extreme abuse in WA has agreed it's inconceivable the order's leaders did not know sexual abuse and gratuitous violence was going on.

On Thursday, the Royal Commission into Institutional Responses to Child Sexual abuse heard from two lawyers who sat on opposite sides of litigation brought in the mid-1990s by abuse survivors from four Christian Brothers institutions in WA.

Under questioning from commission chairman Peter McClellan, Carroll & O'Dea partner Howard Harrison, who was a lawyer for the Christian Brothers in the 1990s, acknowledged the leaders of the order must have known about the violence at its institutions. “It is inconceivable they didn't know that the violence went beyond punishment, was gratuitous in many cases. It is inconceivable they didn't know that, isn't it?” Justice McClellan asked.

“Well, yes, your honour,” Mr Harrison replied.

Justice McClellan also asked if it was inconceivable the order's leaders did not know sexual abuse was occurring.

“Correct,” Mr Harrison said.

Mr Harrison also conceded he may have been instructed not to co-operate with requests to identify the order's organisational structure.

He said his preference would have been to steer the complainants to the correct defendants, but conceded it was “certainly possible that we could have taken a non-co-operative 'you work it out yourself' posture.” The commission this week has heard evidence from abuse survivors at four WA Christian Brothers-run facilities from 1947 to 1968. The Christian Brothers apologised for the abuse in 1993.

Hayden Stephens, a partner at Slater & Gordon, represented men abused at the institutions.

“My recollection is the response was such, either in writing or certainly in discussion with the partner of the time, Peter Gordon, that they were offering no assistance in giving us clarity around the organisational structure of the church bodies,” Mr Stephens said.

He said he did not accept that the Christian Brothers executive had only a general knowledge of the abuse.

“I think the events of August 1993 would support that they had thorough knowledge of the events at those four institutions, thorough knowledge of who the perpetrators were, and probable knowledge in relation to the likely class of persons affected by abuse,” he said.

Eventually, $3.5 million was put in to a trust for survivors of abuse following a three-year battle.

Justice Peter McClellan AM, Chair of the Royal Commission into Institutional Responses to Child Sexual Abuse, now sitting in WA.

In all, 124 men were compensated in tranches of $25,000, $10,000 or $9750 for serious sexual abuse.

A fourth tranche of $2000 was also created.

“To be blunt, the trustees of the Christian Brothers had their knee on our clients' throat and there was little opportunity for our clients to flex their negotiation muscle, or us on their behalf, faced with the judicial decisions that had proceeded this negotiation,” Mr Stephens said.

In all, the litigation cost $4 million dollars, split between both sides, the commission heard.

‘CLASS ACTION TSUNAMI HAD TO BE MANAGED’

THE Christian Brothers agreed to settle a multi-million class action which had dragged on for three years to discourage others from using it as a “mechanism” against them, a national inquiry into child sexual abuse has heard.

Howard Harrison, a partner at Carroll and O’Dea, which acted on behalf of the religious order during the proceedings in the mid 90s, also told the Royal Commission into Institutional Responses to Child Sexual Abuse that they knew the “Slater and Gordon tsunami had to be managed” and proceeded with a technical strategy despite early requests for mediation.

Earlier, the hearing was told the Christian Brothers used every legal avenue at its disposal to prevent the case from getting to court.

Through their lawyers they were able to successfully have two separate applications regarding compensation claims by former residents of Bindoon, Castledare, Clontarf and Tardun boys homes moved to WA where they were thrown out because of statute of limitation laws.

When asked by commissioner Justice Peter McClellan why this approach was taken, Mr Harrison said they wanted to manage the process and denied their strategy was to win.

But Justice McClellan disputed his denial saying that his earlier evidence was that “any technical point of defence should be taken”.

“That means winning,” he said. “You knew there was no prospect of time being extended.”

Justice McClellan also questioned again why the Christian Brothers did not think it would have been more beneficial to go through mediation after he estimated the entire legal process costs around $4 million, more than the $3.5 million that was placed in the trust fund.

Mr Harrison said: “I am not going to disagree that it should have been done earlier, it was not helped that some Slater and Gordon clients were not willing to undergo medical examinations...

as to whether it could have been dealt with better and more cost effective I’m agreeing.”

It was also revealed during the hearing that Mr Harrison’s law firm engaged Brother Barry Coldrey, the author of a report which contained allegations of child sex abuse, to help them during the legal process.

He said this was their only “motive” but agreed with Gail Furness, counsel assisting the commission, that an “unintended benefit” of this engagement meant the plaintiffs and Slater and Gordon were unable to question him over the details in his report.

CHRISTIAN BROTHERS FOUGHT LIABILITY

THE Christian Brothers only agreed to set up a $3.5 million “reconciliation” trust to avoid admitting liability despite the discovery of a secret report which named several clergymen as “pedophiles”.

Hayden Stephens, a senior solicitor with law firm Slater and Gordon, told the Royal Commission into Institutional Responses to Child Sexual Abuse today that following a number of failed legal attempts to bring the action against the order and the Catholic Archbishop of Perth, Barry Hickey, the firm entered into “heated” negotiations.

Mr Stephens said the process was “very much like a tug of war” and that the end result, which he admitted did not “fairly reflect the suffering these men had suffered”, was the best they could achieve under the circumstances.

For the past few days, the commission, which is investigating how the Catholic Church hierarchy and successive WA governments handled sexual abuse allegations at Castledare, Bindoon, Clontarf and Tardun boys homes over a 20-year period, has heard criticism about the pay out by several victims.

“To be blunt, the Trustees of the Christian Brothers had their knees on our client’s throat and there was little opportunity for our clients to flex their negotiation muscle or us on their behalf, faced with the judicial decisions that had preceded us,” Mr Stephens told the hearing.

Slater and Gordon began the multi-million dollar law suit in 1993 but had to lodge the application in New South Wales because of statute of limitation laws in WA.

They also lodged another application in the Victorian Supreme Court, however the Christian Brothers were able to successfully argue to have the matter transferred to WA where they knew the application would be thrown out.

Mr Stephens said his firm sought leave to appeal the WA decision in the High Court, and lost.

The Christian Brothers were also successful in having the NSW application move to WA where it was then thrown out.

Despite another High Court challenge, Slater and Gordon were unsuccessful in essentially making the Archbishop liable for the crimes.

Mr Stephens said as part of the legal process the firm was given a secret report written by Brother Barry Coldrey which detailed allegations of sex abuse against children at the homes between 1920 to 1940.

The series of documents were called “Reaping the Whirlwind — the Chrisitian Brothers and sexual abuse ... Congregation Executives”.

Mr Stephens said the firm regarded the report as important because it named several of the same brothers their clients had named.

“It’s fair to say the secret report referred to incidence of abuse well prior to our men joining the orphanages, which of course led to us gaining confidence that the action in negligence was growing stronger in the action against the Christian Brothers,” he said.

“Some of the perpetrators that inflicted abuse upon our clients, some of them were referred to in the secret report.”

When asked by counsel assisting the commission whether it named “as pedophiles, several of the brothers your clients had named?”, Mr Stephens replied yes.

It was revealed during the hearing in Perth today that Slater and Gordon had initially sought $18 million and that the Christian Brothers’ first offer was for the firm to “pay” the order’s legal costs.

By the end of the process Mr Stephens said the order would only “pay assistance responding to need” and would not pay lump sums because they did not want to be seen to be paying compensation.