George Pell says abuse victims should be able to sue Catholic Church, royal commission hears

By Joanna Woodburn
ABC News
March 10, 2014

http://www.abc.net.au/news/2014-03-10/royal-commission3a-counsel-says-abuse-victims-should-be-able-t/5310006?section=nsw

Cardinal George Pell believes the Catholic Church should be able to be sued in cases of child sexual abuse, a royal commission has heard.

His position foreshadows a major shift in policy that could pave the way for abuse victims to sue the Church.

A public hearing of the Royal Commission into Institutional Responses to Child Sexual Abuse involving the Catholic Church has opened in Sydney and is examining allegations made by John Ellis, who failed in his attempt to sue the Church.

He was abused by Father Aidan Duggan in Sydney between 1974 and 1979.

In 2007 the New South Wales Appeals Court found the Church could not be held liable for the conduct of its priests, nor could it be sued, because it does not exist as a legal entity.

The case set a precedent that is now referred to as the "Ellis defence" and is seen by many in the legal fraternity as a major barrier to people seeking compensation.

At today's hearing, senior counsel Gail Furness used her opening address to read a statement relating to Cardinal Pell's upcoming evidence, referring to the liability of the Church in cases such as Mr Ellis's.

"In his statement to the royal commission the Cardinal says, and I quote: 'Whatever position was taken by the lawyers during the litigation or by lawyers or individuals in the Archdiocese following the litigation, my own view is that the Church in Australia should be able to be sued in cases of this kind'," Ms Furness said.

Cardinal Pell is one of nine witnesses from the Catholic Church due to give evidence in the coming fortnight.

Ms Furness also detailed the abuse Mr Ellis experienced, his attempts to seek justice, the subsequent delays in the process and criticism of the procedures.

She has told the commission the manner in which the matter was conducted caused harm and suffering to Mr Ellis.

In 2004 Mr Ellis sued Father Duggan, who has since died, and Cardinal Pell in his role as Archbishop of Sydney.

Mr Ellis was a former altar boy in the 1970s whose claim was dealt with under the Church's Towards Healing process.

The Catholic Church offered Mr 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 lost in the NSW Court of Appeal in 2007.

Andrew Morrison SC represented Mr Ellis and says the ruling means legal entities of the Church and its trustees are "effectively immune" from being sued.

"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," he said.

Mr Morrison says sometimes the threat of using the Ellis defence is enough to deter claims against the Church.

"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," he said.

Mr Ellis has today given an emotional account of the abuse he suffered and the subsequent legal action.

The royal commission has heard that he felt ashamed and embarrassed because he believed his own behaviour was wrong.

He told the royal commission he has clear and distressing memories of the abuse, and recalled how on several occasions Father Duggan told him: "I love you. You are very special to me".

Mr Ellis said the Catholic priest also gave him a book that dealt with homosexual relationships and he later believed he was homosexual or bisexual.

"But I was ashamed of what was happening and I knew it was meant to be secret," he said.

Mr Ellis said it was several years later when it dawned on him that he had suffered abuse.

He told the commission he felt like the "door was slammed in his face" when the former Archbishop of Sydney Cardinal George Pell told him in a letter that there were difficulties in responding to his complaints because of Father Duggan's mental decline.

But Mr Ellis recalled a meeting with Father Duggan in 2003 in which he said he felt the priest had less power over him.

"My only thoughts at that time were that he could no longer harm me," he said.

Mr Ellis said Father Duggan would have to account for his actions in the afterlife.

In a statement, the Archdiocese says neither Cardinal Pell nor the trustees of the Archdiocese had responsibility for appointing or supervising the priest who abused Mr Ellis.

"Mr Ellis sued improper parties who defended inappropriate proceedings against them," it said.

The hearing is set down for two weeks.

Since September last year, the royal commission has so far held eight public hearings into the responses to shocking instances and allegations of sexual abuse by institutions across Australia, from the Salvation Army and Scouts Australia, to government-run children's homes and the YMCA.