Abuse legal action raises question about documents to be provided in claims for further compensation

In an article appearing in the Adelaide Advertiser,[1] Court reporter Mitch Mott reported on a recent case where a Church organisation was sued in a civil compensation claim for alleged abuse by a convicted perpetrator of sexual abuse, now deceased.[2]

A civil action brought by persons alleging sexual abuse by this same perpetrator has recently resolved by way of negotiation prior to the conclusion of a test trial, and therefore no published decision of the Court is available.  This action has however raised an interesting legal question. That is, whether a transcript of an interview between a lawyer retained by Catholic Church Insurance and the former head of Rupertswood College in Victoria should be discovered into evidence.  The document would likely provide some assistance with the claim brought by the survivors alleging sexual abuse involving the same perpetrator.

Pursuant to case law and the Court rules, all documents directly relevant to Court proceedings are to be discovered into evidence, and may need to be provided to the other parties. An exception to that general rule is for documents that are subject to legal professional privilege. Legal professional privilege may apply if a document:

1.      Contains legal advice from a lawyer to a client; and/or

2.      The document was created in the anticipation of litigation.

The document in question in the subject case may well fall into either or both categories, and therefore would not ordinarily need to be provided to the other parties.

However, there is merit to the argument that in relation to an application by a survivor of sexual abuse to set aside a previous Deed of Release and Discharge (a settlement agreement), evidence as to the Church’s approach to the settlement may indicate whether the settlement is fair. Whether a settlement is fair is one of the factors for a Court to decide when considering whether to set aside a previously reached settlement agreement, so as to allow further compensation to be claimed by a survivor of child sexual abuse.  Further actions remain on foot for compensation allegedly involving the same perpetrator and so the question about whether the transcript or other documents held by Catholic Church Insurance may be raised again.  

While it would be of great benefit to have access to evidence from the Respondent organisation about their decision to settle a claim for any particular amount, there are other documents available to support an application to set aside a previous settlement agreement and enable further compensation to be claimed.   There is no better time than now to seek legal advice about applying to set aside a previously reached settlement agreement and to seek further compensation.  

If you have previously settled your claim for sexual and/or serious physical abuse, Contact MKF Lawyers for legal advice regarding your entitlement to further compensation. MKF Lawyers offer no win, no fee for compensation claims.  

‍