Hiding Behind Tombstones

Five years after the conclusion of the Royal Commission into Institutional Responses to Child Sexual Abuse, a fierce new battleground is emerging as survivors turn to the courts seeking compensation from the institutions they say should have kept them safe.

In my own journalism, I followed closely over many years the work of the royal commission, and there was great hope when it made its final recommendations — many of which were adopted by parliaments — that a new and fairer legal landscape would emerge for survivors.

But despite those reforms designed to ease the path to justice, for many survivors, getting proper civil compensation when they finally pluck up the courage to come forward is now more difficult than ever.

In this week's Four Corners, we go behind the scenes to reveal the extraordinary legal tactics being used to have claims thrown out of court and compensation payments cut.

We talk to victims whose cases have been thwarted by permanent stays — a legal mechanism that's only granted by courts in exceptional circumstances, when a case is considered so oppressively unfair to one party that it's an abuse of process.

If granted, it effectively puts an end to proceedings.

The lawyers we spoke to say they're now being used or threatened in almost all cases where an abuser has died or has dementia. And shockingly, in at least one case, where the convicted pedophile is very much alive, in jail and willing to give evidence that the institution should have done more to stop him.

The survivor of that perpetrator is now facing bankruptcy, after the court awarded costs against him.

We meet another survivor who sued the church for childhood abuse perpetrated by a priest, only for the institution to turn around and cross-claim against his aunt because, it argued, it should have been "reasonably foreseeable" that it was unwise to leave the boy alone with the priest.

Meanwhile, another institution is threatening to seek a stay that would prevent an Aboriginal woman from seeking compensation through the courts because her alleged perpetrator — who was charged with the abuse of 40 children — died six months before his criminal trial.