For many years David Brookes kept memories of the horrific and sustained childhood sexual abuse he was subjected to by his school teacher locked away in “little boxes” in his mind.
But a long legal process to obtain compensation meant he was repeatedly asked to recount his experience, and those memories resurfaced.
One lawyer said the Department of Education will pursue matters “often to the steps of court before [it engages] in a sensible conversation about trying to resolve”.
“It was constant mental stress and anguish,” he said. “Having to deal with psychologists and psychiatrists, all the paperwork … you can’t say I was having a teddy bears’ picnic. On a scale of one to 10, you can pretty much put it as a 10.”
The school Mr Brookes attended as a teenager was run by the Department of Education. When his legal team approached the department to try to resolve his compensation claim out of court, the department rejected it.
He spent almost three years preparing for a trial, even having to travel from Queensland to Melbourne to meet with lawyers. Then, the day before the trial, the Department of Education made an offer his lawyers felt they could recommend. After several stressful years, the case was resolved.
Mr Brookes’ lawyer, John Rule from Maurice Blackburn, says the experience is not isolated, with other lawyers describing the aggressive way the department responds to claims.
Some cases are being dragged out unnecessarily, even when the alleged perpetrator has convictions or has multiple allegations against them, Mr Rule said.
The Department of Education, as a government body, is bound by a set of rules known as the model litigant guidelines, created in 2001 and updated in 2011. These include a responsibility to “act fairly in handling claims and litigation brought by or against the state”, to “deal with claims promptly and not cause unnecessary delay”, and to “pay legitimate claims without litigation”.
The Victorian government also drafted specific, but non-binding, guiding principles for how departments should deal with civil claims involving allegations of child sexual abuse.
“Departments should be mindful of the potential for litigation to be a traumatic experience for claimants who have suffered sexual abuse,” they say. “Departments should consider facilitating an early settlement and should generally be willing to enter into negotiations to achieve this.”
Mr Rule said the guidelines were clear but the department blatantly breaches them.
“They are so difficult and in some ways awful to deal with as a defendant, and much worse than a lot of private defendants, including some of the ones that have been quite difficult, including the Catholic Church,” he said. “It’s really in contrast with other government departments. I deal with DHHS [Department of Health and Human Services] a lot – it’s like chalk and cheese, they are very careful about their model litigant obligations.”
Mr Rule said the Education Department used tactics to drag out litigation and pressure clients. Trying to resolve matters without going to court is “almost an impossibility”, he said.
“It’s forcing abuse survivors to file court proceedings and pursue the matter often to the steps of court before they engage in a sensible conversation about trying to resolve. Not only is it retraumatising people unnecessarily, it’s a total waste of money.”
For Mr Brookes, the years spent preparing for trial made him feel like his experience was not believed. “It would have certainly been good of the Victorian Department of Education to say, ‘What is going on here, we are going to stand with you’,” he said.
The Department of Education said in a statement that it complied with the model litigant guidelines and took its obligations seriously.
“The department is very mindful of the trauma experienced by survivors of sexual abuse and responds to litigation with a sensitive and compassionate approach. In doing so, the department makes early assessment of claims and seeks timely resolution where possible,” it said.
Michael Magazanik and his specialist firm RightSide Legal recently won record payouts against the department over historical sexual abuse claims. He said the department aggressively litigated these cases and lawyers should be prepared to take them to trial if settlement talks collapse.
“The way to beat that is to go hard,” he said. “The only real solution to poor legal behaviour by institutions is to double down, drag them into court and give them an expensive and humiliating legal lesson.”
Angela Sdrinis, who specialises in representing survivors of child sexual abuse, said the extent to which the guidelines were adhered to often depended on which law firm the department had briefed to appear in the case.
“It does change for me with the lawyers, which is crazy because the Education Department is an institutional, experienced, highly powerful litigant, so you’d think they’d be telling their lawyers what to do, not the opposite,” she said.
“I see much greater delay when certain firms act in cases, starting offers much lower than you would expect. It can be more difficult to get documentation out of some firms than out of others. Sometimes you get a more highly litigious response.”
A spokesman said the Department of Education participates in the National Redress Scheme, which provides access to redress in the form of counselling, monetary payments and direct personal responses for survivors of institutional child sexual abuse without the need to engage in litigation.
Support is available from the National Sexual Assault, Domestic Family Violence Counselling Service at 1800RESPECT (1800 737 732).
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