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Published: 12 December 2018
Author: Ian Dallas
Ian Dallas heads up Institutional Abuse at RCT Law. He has vast experience in litigating cases of abuse and is responsible for leading Victoria’s largest team of lawyers with special expertise in sex abuse law.
In this candid interview, Ian shares his insights into the legal options available for survivors of abuse and explains the nuts and bolts of the National Redress Scheme so that people know what to expect from the Redress process, or indeed if they should go down a different path.
Below is Part Two of Ian's interview. It is a must-read for anyone interested in justice for survivors of institutional abuse.
Read Part One of Ian's interview here: Why it's difficult for survivors of abuse to come forward
Because of the limitations on payments within the Redress Scheme, most people who have claims are going to be better suited to using other pathways to compensation.
Those who are most likely to benefit from the Redress Scheme are those who made claims some time ago but didn't get much money because this area was a very new area of law at the time. The Redress Scheme allows a claimant to make what we call a “top-up” claim so they can come back even though they settled their claim before, and say “Well, I didn't get enough, I'd like to have another go.” So this scheme is well suited to them, provided they suffered child sexual abuse.
There's a cap of $150,000 but most people are not going to get that. Most of the assessments are going to be probably under $100,000. By contrast, making a claim through the pathways that we generally use would generally result in a much higher payment than that. So our preference for most clients is not to go down the redress pathway but to look at other options first.
Our approach at Ryan Carlisle is that the Redress Scheme is an option for some clients, it's not going to suit a lot of clients, and certainly one of the things that people need to be aware of is that it is only available to those who have suffered child sexual abuse, physical abuse is not covered, and that's an important distinction.
The next thing that people need to be aware of is that if the institution that they want to make the claim against is not part of the scheme, then they're not going to be able to make a redress claim. While there's been a lot of publicity about institutions saying they want to join, it's a government-driven process and it's going to take a while - perhaps months - for those institutions to actually be formally on board.
So the scheme will accept applications and will put them on hold with institutions that aren't part of the scheme as yet but that's a possible delay.
Our suggestion to clients is that they get some advice before making a redress claim, because it may not be the best path forward for them.
If the institution where you suffered abuse has not joined the redress scheme and you're considering whether to make a redress claim or doing something different, we would strongly recommend that you get some obligation free legal advice. You can then talk about the nature of what occurred to you so that a lawyer can make an assessment of what you should do.
For example, it may well be that you have a case that's strong enough to go down the pathway that we have developed in conjunction with some institutions such as the Victorian Government, where you don't have to go to court but you can still make a claim that's going to result in a better outcome than redress.
So there are options, it's very difficult to state in black and white which category you might fit into and it really fits in with our approach, which is to talk to the client to work out what their circumstances are and what they feel most comfortable with. The client can then make their own decision.
The construction of the redress scheme is really to take lawyers out of the picture. You make a claim, it goes off, and an independent Assessor within the scheme looks at it and seeks a response from the institution, and then makes a decision. So there is no opportunity for a lawyer or any other advocate to push your side of the story, to respond to something that might have been raised by the institution which you don't agree with, and if a response is to be made you will need to make that yourself.
There is no opportunity for an appeal, so if you're not happy with the outcome you don't get to have someone have another look at whether you're entitled or how much you are entitled to. It's a take-it-or-leave-it process and that of course is very different to the system if you are going through a lawyer, who is there to hear your story and to make sure that the important aspects of your claim are put forward. So it certainly is a significant defect of the redress scheme that there is no opportunity for that representation, to have someone in your corner.
There is a further defect which is related to the fact that part of the assessment of your claim is to look at how has this affected you? How has the abuse affected you? And there's an opportunity for you to write down in your claim what you think the ways are in which you have been affected. Or if you have been seeing a counselor, to get a report from the counselor, who can write something that they've observed and what you've told them, and you can include that. You're allowed to include other material.
But a lot of people won't have done that or are not in the position to get a report from their counselor, or haven't seen a counselor. The process that we use is to ask clients to go and see a trained person, usually a psychiatrist who can prepare a report in a form that sets out the abuse that's been suffered and the impact on that person at the time, and throughout their life. And in our experience those trained people, by spending time with a client are able to bring forward or help the client to see what the impact has been, and help them to frame it in a way that they would find difficult when filling in the form online or sitting down at home with a piece of paper, where they would find it very difficult to actually put that down on paper, so there are real issues as to whether a person is going to be able to communicate the impact of the abuse through this very bureaucratic scheme.
When we consider how much a client is likely to get in the way of compensation, either through redress or through a mediated outcome, it is always dependent on the circumstances of the client and their experience of abuse and how it has affected them in their lives.
Our experience tells us though that in general, clients who follow the mediation process are likely to get somewhere in the range of $80,000 to $200,000. But some clients receive much larger sums.
How does that compare to payments under the Redress Scheme? It's early days for redress clearly, because we don't know any outcomes. What we do know is that there's a cap of $150,000 but the process will make it very difficult for anyone to get anywhere near that figure.
The Commonwealth Government has said that the likely average is going to be around $70,000. That means that some people are going to get less than that, some people might get more than that, but that is an educated guess that actuaries have put together. Who knows how true that is.
Our concern is that outcomes at redress are not going to be as good as most outcomes through a mediated process. We still don't know how long the redress claim process is going to take so it's very hard to say that's a quicker process. It may turn out to be quicker but the dollar outcome is going to be less satisfactory, and the process is less transparent.
Also, there is no opportunity to negotiate, there's no opportunity to speak face-to-face to anyone. Now, some survivors of abuse will see that as a good option, they don't want to talk to anyone about their trauma, they just want to fill in a form send it off and then wait for a result. So for people in that situation, it may well be a good option.
Our preference even for people in that situation is to come and get some legal advice first, you might find that meeting the lawyer isn't as hard as you thought it might be, and at least you'll then have some information about how the process works and you can then decide what suits you best.
The Redress Scheme is bureaucratic and it's run through the Federal Department of Health.
Applications are made in paper or online and the application is then sent off to the institution for their comment. It’s possible that claimants or survivors of abuse may be asked for further information as a result of those inquiries, they won't have to deal directly with the institution, but they may get a call or an email from an officer within the Redress Scheme itself, or they may not.
Next, the claimant might hear from an Assessor who they won't have met, who may not be identified but will be someone within that bureaucracy who's had a look at the paperwork and made a decision. That decision will be: this is how much money you're going to get, perhaps an amount for counselling and where an apology has been asked for some discussion about what apology the institution will make.
Following that, an offer of redress will be sent with a written formal legal document of release which the survivor of abuse must sign before they can receive any money. That document will be a finalisation of all claims against that institution, and perhaps even other institutions.
If they are offered the money the only way they get the money is by signing a legally binding deed of release and they give up all their entitlements as a result.
Now that's a standard legal process but it's in the context of a scheme which is supposed to be not particularly legal, that's why they call it redress, it's not a legal scheme because there’s no court involved, but at the end of the process you are presented with a very legal document.
Certainly, that's a significant step to take and you're giving up your rights, and if what you've been offered is not that great then you'd want to think very carefully about signing it. It may well be a good opportunity for you to go and see a lawyer and say: “I’ve been through the Redress Scheme and I've been offered $50,000 and that doesn't seem very much to me and I've got to sign this deed of release, what do you think?”
The advantage in doing this is that even though you've made an application to the redress scheme you're not tied to it, you can in fact wave goodbye to the redress scheme at that stage and you don't even have to contact them but because you haven't signed and sent back the deed of release. You won't get the money, but also your options remain open so if you then decided to go down one of the other pathways that we would offer, you could still do that.
It is important to understand the distinction between the Redress Scheme and other options where you would have a lawyer involved and negotiating and advocating on your behalf. The Redress Scheme doesn't have that option.
There is an organisation called KnowMore than will help you to fill out your claim form, but then there's no contact with the department, with the Assessor, in terms of putting forward your claim other than what you've got in your claim form.
If there is something that the institution contests about your claim, there is the option for the Assessor to contact you as the applicant to seek your response. That is entirely in the hands of the Assessor as to whether that's necessary. At the end of the day the Assessor’s job is to assess whether it is reasonably likely that the abuse occurred and to assess what institution was responsible. The scheme does set up a fairly low bar for that assessment to be made and for the connection to the institution.
It's not about the concepts that we are used to in the law, which are about negligence and so on.
So, where the abuse occurs on land owned by an institution, on church premises for example, that's enough of a connection to the institution.
So all those things have been put in place to make it easier for claims to be made.
However, there is no transparency as to how the decision is made. It is not like having a lawyer who represents your interests, who pushes your argument with the institution, and who advises you and seeks your input, who can argue with matters that you don't agree with. There are really big advantages in having a lawyer on your side through that mediation process.
While there is certainly a history of institutions and particularly churches resisting claims, it is very much the case that the landscape has shifted, and of course there are institutions or particular cases where claims are resisted, but it is certainly a lot easier to make claims than it used to be.
A lot of institutions have developed processes which we as lawyers are able to make use of as a way of engaging with them. This would involve a settlement conference where our client’s claims can be discussed in a reasonably open way without too much concentration on legal reasons why claims won't succeed. That's not to say that every claim is just accepted and payment made but using those processes is certainly a lot easier than it used to be, say ten years ago.
When it comes to court cases sometimes those are harder, that's going to depend on the strength of the claim and the information that we have. But certainly, that is another pathway that we can use in appropriate cases.
So we now have a range of options available and that's how we would explain it to clients when they see us for the first time, to take them through those options, to explain the advantages and disadvantages of each of them and to try to tailor an approach that suits the client.
At RCT Law we are aware that there will be people considering whether they should go to Redress and we are very conscious of the need for people to have their questions answered in a relatively easy way, and in a way that doesn't necessarily involve them coming in to see a lawyer first up.
We have carefully put together a publication which explains what's involved with Redress but also explains the disadvantages of redress and puts forward the other options that we would use when we are advising clients.
This booklet has been written in simple language that's easily understandable and we hope anticipates people's questions and answers them in that publication. Because it is an eBook it is easy to download and read. We would hope that that would be an introduction to the firm, an introduction to the style that we use and for those who need to know more or want to pursue an option other than redress.
When we see clients the options that we would explore other than redress – as redress is generally not our preferred option - include:
a) Litigation, which is the more formal court-driven process; or
b) Negotiated mediation with an institution using a variety of non court-driven processes.
This second option allows information to be exchanged in the lead up to a settlement conference, at which time the claim can be discussed and settlement options can be put forward.
The advantage of mediation is that it tends to be quicker, the costs tend to be lower, and the pressures of court are reduced.
However, there are cases where better results are obtained by going to court, and the stronger the case is the more we would encourage clients to look at the court option. But that is very much something that we would discuss with the client and take into account the circumstances of the client.
As we've examined the Redress Scheme, we are very strongly of the opinion that the outcomes that people are going to get through going through the methods that we have used, will be much more significant, much stronger outcomes, and the redress payments will be higher than if they were to go through redress.
That is a significant reason why we would encourage people to use the pathways that we've created rather than going through redress.
When we compare redress with a mediated outcome or going through court, some of the other advantages other than the better financial outcomes would include the greater flexibility which is allowed in the process which allow us to adjust our strategy as the case becomes stronger. In these circumstances, we can keep up our sleeves the option of advising the client to go through litigation. This is completely lacking in the redress scheme.
Another significant issue that is non-monetary is the ability with the institution as part of the process to be able to tailor an appropriate apology or some way of trying to make things right again. While the Redress Scheme is supposed to do that, it doesn't allow for the sort of dealing across the table through a lawyer where we can negotiate for you what you want, and that may take a while for you to come to grips with yourself.
Rather than being forced to put down in a document which you then send off, what it is that you want, you can gradually develop with your lawyer what's best, your lawyer can then put that forward and talk to the institution and tailor something suitable for you. That's important for a lot of clients, it's very helpful along with the money, but helpful for them as they learn to live their lives in the future
For more information about our Institutuional Abuse practice and the new National Redress Scheme, please visit our Sexual and Institutional Abuse page.
If you'd like to make an enquiry about a legal matter, talk about a career at RCT, or perhaps have a suggestion on how we can improve our service or even our website, we'd like to hear from you.
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