Catholic Church signals major shift as Royal Commission investigates 'Ellis defence'

By Chris Ulhmann
ABC - AM
March 9, 2014

http://www.abc.net.au/am/content/2014/s3959875.htm

CHRIS ULHMANN: It's been labelled the 'Ellis defence' and the Catholic Church has relied on it for years to avoid making payments to survivors of sexual abuse.

When John Ellis tried to sue the church over the abuse he suffered when he was an altar boy in the 1970s, the courts rejected the claim, ruling the Church was not a legal entity, nor was it liable for abuse committed by a priest.

But ahead of this week's hearing into John Ellis' case by the Royal Commission into child sexual abuse, the Church leadership is signalling a major shift that would expose the Church to civil action.

Emily Bourke reports.

EMILY BOURKE: The Catholic Church offered John Ellis $30,000 in compensation for the abuse he suffered as a teenager, and the subsequent trauma that destroyed his marriage and his career in a prominent Sydney law firm.

He rejected the offer and took his case to court, but he lost in the NSW Court of Appeal in 2007.
Over the next week, the Royal Commission will hear how the Church, and Australia's most senior Catholic cleric, George Pell handled the case.

Andrew Morrison SC, who represented John Ellis, says the ruling continues to have repercussions.

ANDREW MORRISON: No legal entity capable of being sued, and its trustees who held the property of one of the wealthiest organisations in the country, are effectively immune from suit. That is the Ellis defence.

There are other problems as well. The Court of Appeal also held that because priests are technically not employed by the Church - that is, they are primarily paid by way of a stipend from the parish - they are therefore not the subject of vicarious liability, which means that the Church cannot be held liable for their conduct or misconduct

EMILY BOURKE: But he says the Church doesn't always take the so-called 'Ellis defence'.

ANDREW MORRISON: The fact of the matter is that the threat that it may be taken is sufficient to beat down claims by those who have been injured and abused.

That doesn't mean that they always refuse to make payouts, but they have a very useful weapon in their armoury to make sure those payouts are much less than they might otherwise be.

EMILY BOURKE: Change appears to be in the wind.

FRANCIS SULLIVAN: As a principle, it's important that the Catholic Church in all its iterations and all its structures makes available a legal entity that can be sued

EMILY BOURKE: Francis Sullivan is from the Church's Truth Justice and Healing Council.

FRANCIS SULLIVAN: The controversy over whether the Church can be sued or not needs to be clarified once and for all.

And we are saying that all bishops and all religious leaders need to make available a legal entity, appropriately covered with insurance and wealth, so that individuals can bring a claim of damages against it for matters of child sex abuse

EMILY BOURKE: Would you say that's a pretty big shift from the position taken to date?

FRANCIS SULLIVAN: Well, we're being emphatic about it and we are being clear because we believe it's in the interests of the community.

EMILY BOURKE: Does it need to be enshrined in law?

FRANCIS SULLIVAN: I am not sure what the best technique will be and hopefully the Royal Commission will delve into that and provide the recommendations about the best way to go.

EMILY BOURKE: The New South Wales Greens MP David Shoebridge is among those pushing to have the law amended.

DAVID SHOEBRIDGE: I am hopeful that, as a result of these hearings and hopefully as a result of either an interim or a final report, that the Royal Commission will be considering this private members bill as one of the very viable options to fixing up the law.

CHRIS ULHMANN: New South Wales Greens MP, David Shoebridge. Emily Bourke with that report.