Archives for July 2022

By Belinda Nasr

What is more difficult than negotiating with one defendant? Negotiating with multiple defendants.

When defendants cannot agree on contribution the plaintiff is left to endure pointless mediations without any real prospects of resolution.

We are taught to think that contribution between defendants is an issue between the defendants and not for the plaintiff to involve themselves. I disagree. If plaintiff lawyers are too passive during this phase, they run the risk of having to bear the defendant’s trial costs in the event the party should have been let out of the proceedings.

If there are contribution disputes between defendants, the chances of resolving the case prior to trial are slim. Where a defendant is convinced they should not be a party to the proceedings, negotiations over contributing 10%, 20%, 30% are irrelevant to them. Defending parties readily reach a stalemate to the detriment of the plaintiff. When one defendant is completely denying liability, extra attention should be made to ensure all defendants are aware of the plaintiff’s argument of liability.

In my opinion, there is merit to work in tandem with the defendants to resolve the impasse. Either to “team up” with the admitting defendant to prove that the non-admitting defendant is liable or the other way around. I have seen success in the past with teaming up with defendants in joint applications for discovery. Further requests for discovery may result in the conclusion that one defendant should be let out of the proceedings.

This becomes increasingly critical once the dreaded “bear own” offer is received. At that point, your client needs to be aware of the serious consequences of not letting out a defendant that ought to be let out. If there is any doubt, the easy option is to cut your losses and let out the refuting defendant. However, in my opinion, pursuing the “teaming up” option creates the opportunity for a lot more clarity.

Despite the risk of incurring costs, it is not uncommon to put the blame on multiple parties initially. It is not until the process of discovery, and further discovery, that the plaintiff is in a position to make the decision on who should or shouldn’t be a defendant.

The ultimate question I ask is “what is in the best interest of my client?” The answer to this question guides the advice I give.

Lawyers make mistakes and we don’t always get it right with nominating defendant parities however you need to expend the energy to keep defendants in that should be in, and be willing to let defendants out that should be out. This is the effort that allows for you to act in the best interest of your client.

 

For further information or to discuss the contents of this article, please contact Belinda Nasr of YourLawyer.

(This article contains references to sexual abuse that some readers may find disturbing.)

 

“A classic example of systems abuse,” states Grace Tame, referring to the loophole commonly used by convicted paedophiles of hiding assets in their superannuation, preventing survivors from accessing these assets as compensation.

Under the current Bankruptcy Act, superannuation is not able to be accessed as a source of compensation for a damages claim. This means that convicted paedophiles can transfer their assets to their superannuation and avoid paying survivors compensation, despite a successful civil suit.

This loophole has become common practice for paedophiles. In 2001, former Magistrate Peter Liddy was sentenced to twenty-five years in jail after being found guilty of sexually abusing multiple boys between 1969 and 1986. However, when compensation was paid to the survivors, his superannuation was not able to be included.

Similarly, in 2019 Melissa Snelling’s adoptive father, Robert Snelling, was sentenced to seven years and eight months in jail after being found guilty of sexually abusing her from the ages of two until twenty-three. However, before he was jailed he attempted to dispose of his assets and Ms. Snelling was unable to access his substantial superannuation as a part of her compensation.

Further, former Bega Cheese CEO Maurice Van Ryn was sentenced to fourteen years in jail after being found guilty of sexually abusing ten boys and girls from the ages of eight to sixteen. However, the survivors were unable to access hundreds of thousands of dollars he had in superannuation as a part of their compensation.

Survivors’ advocates have been championing change to the relevant legislation for some time. In 2018, a spokesman for Assistant Treasurer Stuart Robert stated that the Coalition would allow for victims of crimes such as sexual abuse with unfulfilled compensation orders to access the superannuation of the offender. However, there were concerns that once released from jail, convicted paedophiles would be required to resort to welfare.

What was failed to be considered, is the welfare status of many survivors of sexual abuse. It was explained by Ms. Snelling that, as a result of the long-term abuse committed against her, she is unable to work and is instead resigned to welfare – as well as needing to pay for constant mental health support. As it currently stands, the legislation allows for survivors to live off welfare while their abusers are able to return to opulent lifestyles once released from jail.

Survivors of sexual abuse can seek government-funded compensation through the National Redress Scheme or the Victims of Crime Assistance Tribunal. However, they must meet certain criteria to be eligible for these schemes and the compensation available is capped. Survivors are able to pursue a personal injury claim civilly or, once the offender is convicted, under Section 85B of the Sentencing Act, where they seek to be compensated directly by the offender. However, they will remain unable to maximise their compensation while offenders are able to hide assets in their superannuation.

Advocate and lawyer Andrew Carpenter has been campaigning for change to this legislation since 2020. “It’s going to save the taxpayer, it’s going to punish offenders, and it’s going to finally be something that compensates survivors,” he has stated.

The campaign for law reform is supported by the Grace Tame Foundation, Fighters Against Child Abuse Australia, and the Carly Ryan Foundation. A petition started in 2017 calling for law reform was supported by 42,627 signatures as of 22 June 2022.

 

For further information or to discuss the contents of this article, please contact Chloe Bond of YourLawyer.