The Catholic Church and Christian Brothers fought a class action by abuse victims from WA orphanages at every turn, using their strong legal position to open settlement negotiations with the offer that the men pay their costs.
Slater and Gordon lawyer Hayden Stephens has told the royal commission public hearing in Perth this morning of the uphill battle faced by hundreds of men who signed retainers for the national law firm to take on the class action.
Mr Stephens said while a trust of $3.5 million was eventually settled in 1996 after a three-year legal stoush, the Christian Brothers made it clear from the outset that under no circumstances would any agreement be seen to be a payment of compensation to victims.
"Although this amount does not fairly reflect the suffering that these men suffered and experienced at these institutions, it was the best we could achieve," Mr Hayden told the Royal Commission into Institutional Responses to Child Sexual Abuse.
"To be blunt, the trustees of the Christian Brothers had their knee on our client’s throat and there was little opportunity for our clients to flex their negotiation muscle, or us on their behalf, with the judicial decisions that had preceded the negotiations."
The commission has started hearing evidence from lawyers involved in the class action on the fourth day of the public hearing.
The first three days of the hearing were dominated by evidence of 11 former residents of the Christian Brothers’ Bindoon, Tardun, Castledare and Clontarf orphanages.
The men each gave harrowing accounts of sexual, physical and mental abuse, as well as neglect and cruelty, at the hands of the brothers who had been entrusted with their care.
Some of them men have also expressed feeling demeaned and insulted by the class action process, which in some cases resulted in payouts of as a little as $2000.
This morning, Mr Stephens told the commission there were two major hurdles facing the class action: legislation which restricted the time in which actions could be brought and determining who could be held legally accountable for the abuse.
Because of restrictive legislation in WA, the men were well beyond the legal time frame for launching the case and actions were filed in Victoria and New South Wales.
But after losing numerous preliminary procedural hearings and unsuccessful challenges in the High Court, the Victorian case was sent back to WA and was effectively "dead in the water".
A bid to have the Archbishop of Perth included as a defendant in the NSW action as a representative of the Catholic Church also failed.
Mr Stephens said this left the Christian Brothers at their greater point of strength and negotiations for a settlement began.
"They knew we were not going to go away," he said. "They knew we would stand by these men."
Mr Stephens said the firm had taken on the case on a conditional fee basis, which meant fees would not be paid unless the claim reached a successful resolution.
He said Slater and Gordon had incurred significant costs in fighting the case for the years, but this was not a factor in making decisions about the claim in the best interests of its clients.
The hearing continues.