In the recent matter of Brooks v Operator, National Redress Scheme for Institutional Child Sexual Abuse [2024] FCA 725, the plaintiff, Warren Stephen Brooks, brought proceedings against the defendant, Operator of the National Redress Scheme for Institutional Child Sexual Abuse, in relation to a National Redress Scheme application submitted by the plaintiff that was refused by the defendant.
The plaintiff applied for redress under the Redress Scheme. The plaintiff alleged that he had experienced sexual abuse at a particular institution when he was a child aged seven to eleven years old.
The plaintiff’s application for redress was submitted in 2018, shortly after the National Redress Scheme had commenced. The plaintiff’s application was supplemented by a statement made by the plaintiff and lodged with the defendant on 25 October 2021.
The plaintiff’s application was rejected by the defendant on 14 July 2022 (Original Determination). The plaintiff then promptly sought the internal review of this decision by an Independent Decision Maker.
On 15 September 2022, an Independent Decision Maker decided to affirm the Original Determination of the defendant (Review Determination).
On 26 March 2023, the plaintiff requested the defendant to revoke their Original Determination as so affirmed. On 3 May 2023, the defendant declined to do this.
On 28 September 2023, the plaintiff applied to the Court under section 39B(1) of the Judiciary Act 1903 (Cth) for the judicial review of the Review Determination, which the plaintiff amended on 26 April 2024 to seek review of the defendant’s Original Determination rather than the Review Determination.
Throughout the court process, both of the parties agreed that the initial refusal of the application was infected by jurisdiction error. The jurisdictional error establishing why it was appropriate for the Court to exercise judicial power was outlined at [15] to [16]:
In his statement of 25 October 2021, Mr Brooks described an act of very particular violence inflicted upon him at the institution concerned by one alleged abuser (the husband of the other) in the presence of another (the wife) and to his belief, based on demeanour, that the abusers may have been getting sexual gratification from that. He also attested, based on his experience of the incident, that the violent abuse was a way for his abusers to “break me down in order to perpetrate further sexual abuse against me”.
In his submissions, the Operator has drawn attention to a passage in the reasons given for the Original Determination in which it is patent that the decision-maker has focused solely upon the wife. It is stated, “I have no doubt from Mr Brooks’ account that [the wife] was complicit in the physical abuse meted out by her husband; however, I am unable to find that she gained sexual gratification from observing the mistreatment.” That the violent abuse may have been for the sexual gratification of the husband was not addressed by the decision-maker. The Operator conceded that this omission constituted a failure to address an aspect or “integer” of Mr Brooks’ application for redress, as supplemented by his statement of 25 October 2021. The Operator conceded in his submissions that this omission constituted, in the circumstances related, a constructive failure to undertake the statutory duty consigned to the decision-maker under s 29 of the Redress Act.
Ultimately, on 5 July 2024, the Federal Court of Australia ordered that the defendant’s original determination, and the review determination, by quashed. The defendant conceded an obligation to pay the plaintiff’s costs.
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