How the church's legal tactics affect victims throughout Australia

Broken Rites
March 12, 2014

http://brokenrites.org.au/drupal/node/280

Cardinal George Pell's legal team privately told his office that they had succeeded in defeating a church victim (former altar boy John Ellis) and that this victory (known as the "Ellis Defence") could successfully block other church victims in the future, according to a document tabled at a public hearing of Australia's national child-abuse Royal Commission in March 2014.

This document, written in 2007, was a briefing note written by a legal firm acting for the Sydney Catholic archdiocese. In 2006 and 2007, Mr Ellis had been seeking to sue Cardinal Pell and the trustees of the Sydney archdiocese in the New South Wales Supreme Court for the damage done to Mr Ellis's life by the action of the Sydney archdiocese in giving an abusive priest (Father Aidan Duggan) easy access to children. The NSW Court of Appeal blocked Mr Ellis from proceeding any further with this action.

In their confidential briefing in 2007, sent privately to Cardinal Pell's private secretary (Mr Michael Casey), the Sydney archdiocese's legal firm said that the court’s ruling effectively found that “the church is an unincorporated association which cannot ... be sued”.

The court's decision “marks a conclusive victory for the archdiocese”, they wrote, and “places a number of significant obstacles that will need to be addressed by any claimant seeking to resolve claims litigiously”.

The documents show this legal team recommended “a media campaign” to “capitalise on this result” and to ensure that other lawyers considering action against the church were aware of the court’s findings.

[Since 2007, the church's "Ellis Defence" has been an obstacle for church-victims throughout Australia.]

John Ellis (born in 1961) had approached the Catholic Church's "Towards Healing" office in Sydney in 2002, seeking an out-of-court pastoral settlement, but he found the Sydney archdiocese to be evasive.

In one 2004 letter, tendered in evidence at the Royal Commission in March 2014, Cardinal Pell’s private secretary (Mr Michael Casey) wrote to the church’s legal firm, saying that he has discussed John Ellis's offer of a settlement "with His Eminence" [Cardinal Pell] and that Cardinal Pell asked Mr Casey to instruct the church's lawyers to refuse the settlement that Mr Ellis was seeking..

In 2004, Mr Ellis suggested further negotiations to avoid possible court action, but a file note from the church's legal firm in 2004 states that the Sydney archdiocese has “no interest in entering mediation” with Mr Ellis.

Thus, in 2014, the church's "Ellis Defence" has become a public relations disaster for the  Catholic Church in Australia.

Australia's national Royal Commission into Institutional Responses to Child Sexual Abuse is examining a 2007 civil legal case, in which Cardinal George Pell's legal team crushed one of the church's Sydney victims, former altar-boy John Ellis. This Pell victory (known as "the Ellis Defence") later helped the Catholic Church to avoid paying proper compensation to victims throughout Australia.

The Sydney victim, John Ellis, had been a 14-year-old altar boy in a suburban parish in 1975, when he was sexually abused by a serial pedophile, Father Aidan Duggan. The abuse (and the church's breach of trust) seriously damaged John Ellis's adolescence and his later personal and working life when he was practising as a solicitor during his twenties and thirties.

In 2002, John Ellis (then aged 40) contacted the Catholic Church's "Towards Healing" office, lodging a formal complaint about how the Sydney archdiocese has disrupted his life and his career by its action giving Father Duggan easy access to children. The archdiocese (through its Towards Healing office) offered John Ellis a relatively small financial settlement, on the condition that he would sign away his right to tackle the archdiocese for the kind of amount that any other corporation would be obliged to pay to a damaged person. 

The Sydney archdiocese's draft settlement document indicated that the Towards Healing offer was being made on behalf of:

1. Archbishop George Pell (for the Sydney Archdiocese); and
2. the Trustees of the Sydney Archdiocese.

John Ellis refused to accept this Towards Healing offer and decided, instead, to tackle the archdiocese in the New South Wales Supreme Court for a more appropriate sum to cover the loss of his  professional earnings - and to teach the archdiocese a lesson about its covering up of clergy sexual abuse. In naming the defendants, Mr Ellis cited the names of the same parties who had been listed by the church in its proposed Towards Healing settlement deed - that is Archbishop  George Pell and the Trustees of the Sydney Archdiocese.

In 2006 the Supreme Court granted permission for the "Ellis-versus-Pell"  case to proceed in court, but the archdiocese successfully applied to the NSW Court of  Appeal.

In 2007 the Appeal Court ruled that Archbishop Pell had no personal liability for historical abuse committed by Father Duggan. Thus, the church's defence strategy (now known as the "Ellis Defence") defeated John Ellis's action.

The Sydney archdiocese paid massive fees to its lawyers to win this legal victory over John Ellis but the archdiocese regarded these fees as money well spent, expecting (correctly) that this precedent would help the church to evade (or, at least, to limit) its liability towards other Catholic Church victims. Legal experts believe that the church's "Ellis Defence" (or, rather, the Pell Defence) has saved the church millions of dollars throughout Australia.

The church's Ellis Defence established a precedent that “the church itself doesn’t exist as a legal entity in Australia” and therefore cannot be sued.

The church’s property trusts, which control large financial assets, do legally exist, but the Appeal Court's ruling means the church can successfully claim that "our clergy are not employees and the church is not liable for their criminal conduct."

And Broken Rites understands that, likewise, the trustees can claim evasively that "the trustees don't appoint  the priests to their parishes."

The Ellis Defence, which has no direct parallel in Britain, the United States or Canada, means that Australian church-victims are forced to accept far smaller compensation payments from the Catholic Church than they might have otherwise received.

Many lawyers say that, if any flaw or weakness is identified in the church’s "Ellis Defence" during the Royal Commission's hearings, this would open a fresh round of compensation claims, potentially costing the church tens of millions of dollars.

The Royal Commission has heard that at least 1,700 of the church's Australian victims have previously agreed to take part in the Towards Healing process. Many of these victims received an inadequate financial settlement.

During 2013 a Victorian parliamentary inquiry suggested the establishment of a public compensation scheme for victims of institutional child sex abuse, funded by relevant institutions (including the Catholic Church and other churches).

In November 2013, Mr Francis Sullivan (a public-relations spokesman for Australia's Catholic bishops and their "Truth, Justice and Healing Council") made a public statement supporting an Australia-wide scheme of this kind, which would provide compensation for sex-abuse victims of organisations such as the Catholic Church and other churches.

On Monday 10 March 2014, the Commission was told that Pell has submitted a written statement, saying that (in his opinion) Australian victims should be allowed to sue the church authorities. But this is purely Pell's personal opinion and he is no longer in charge of the Sydney diocese, as he is leaving Australia to take up a senior job in the Vatican. Anyway, Pell's opinion (as the former archbishop of Sydney) is not binding on the thirty or so other dioceses in Australia or the hundred or so organisations of Australia-wide religious orders (such as the Jesuit priests or the Marist Brothers or the Sisters of Mercy) who are not administered by any bishop or archbishop.

Broken Rites is wondering: Is the Catholic Church's re-think merely another public relations strategy? Time will tell. Stay tuned.