Published: 22 November 2018
Author: Ian Dallas with assistance from Jessica Steele
National Redress and Statute of Limitations - what you need to know
In the past, it was difficult to bring a civil litigation case for child sexual abuse because of the legal barriers posed in large part by the operation of the ‘Statute of Limitations’. Survivors who may have once been told that they have no civil case for damages are now turning to the National Redress scheme for redress payments, unaware that the changes to Victorian law are a game changer.
However, many survivors are now better served by pursuing civil litigation which is more likely to result in much higher payments than Redress.
In this blog, I discuss what these options are.
Once, the Limitations of Actions Act 1958 required claims to be brought within strict time periods. If a claim were to be brought outside this time period, the defendants could use this time limitation as grounds to have the case dismissed, unless the plaintiff - the survivor - could satisfy grounds for an extension of time.
It is now well established that survivors of child sexual abuse will only feel able to disclose the abuse many years later, well outside the legal limitation period. As a result, these time limits were not able to be complied with, and many survivors who had suffered abuse decades previously, were previously advised that they had no legal options in terms of bringing a civil claim, or settled their claims for token amounts.
Fortunately, in 2015 the Victorian government passed legislation abolishing these time limitations in cases of child abuse civil claims. For an extended discussion on these reforms, please see our previous blog: Victorian Government to remove time limits for abuse survivors. The changes operate retrospectively, and remove the previous legal hurdle faced by claimants of needing to apply for an extension of time. Now proceedings can be brought at any time, allowing survivors to disclose their stories when the time is right for them, and opening the door to compensation rights.
This was a landmark development that meant that justice and recompense became a viable option to many child abuse survivors, even those who had suffered in silence for many decades and who had only recently found the strength and courage to come forward and pursue a claim against the institution that had wronged them.
Redress – the implications
It is therefore important for individuals who may be interested in seeking compensation through the National Redress Scheme, and who have been previously advised not to pursue a common law claim on the basis it would be time barred under the Statute of Limitations, that they seek more up to date legal advice to ensure they are pursuing the compensation option best suited to them.
Similarly, individuals who have never sought legal advice or redress in relation to the abuse they have suffered should note that Redress is not their only option, and it may not be their best option. For a discussion of some of the pitfalls of the Redress scheme, see our previous blog here: How the new sexual abuse redress scheme is not working.
This is particularly important as the National Redress Scheme requires individuals who accept a redress offer and then receive compensation, to give up all their legal rights to pursue a civil claim against the institution. This occurs as a result of the individual signing a legal document known as a “Deed of Release”.
Survivors who are attracted to the National Redress Scheme on the basis of previous advice that their claim was too difficult to pursue due to limitation problems, should also seek legal advice as to their best option.
We stress that their entitlements to a civil claim will be extinguished following a successful Redress application and payment. For an explanation of the difference between a civil claim and the Redress Scheme, see our previous blog here: Litigation of Redress: What should survivors do?. Even where an application for redress has already been made, advice can be sought after a redress offer is made, provided the advice is sought before the Deed of Release is signed.
If you have obtained legal advice in the past... ask again!
The law has almost certainly altered since you were originally advised that your case was not strong enough to proceed through the courts or via a settlement process. You may want to seek further advice from us, and we would be happy to review your circumstances.
We also welcome individuals who have never pursued a civil claim or received advice, to seek advice from us as to whether Redress is in their best interests.
We encourage interested parties to contact us on (03) 9238 7878 to learn more about their options and entitlements and emphasise that such a conversation would be free of charge. Should you decide to pursue your matter further with us, we generally work on a no win no fee basis, which you can read more about in our previous blog here: Legal Costs Agreements – Read the fine print.