“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.