"No Such Thing" As Ellis Defence

SBS
March 14, 2014

http://www.sbs.com.au/news/article/2014/03/14/no-such-thing-ellis-defence

Is it all incense and mirrors or has the veteran Catholic warhorse George Pell dropped the drawbridge to let thousands of abuse victims storm the legal battlements of the church?

The cardinal takes the stand at the Royal Commission into Institutional Responses to Child Sexual Abuse sometime next week, but commission counsel Gail Furness SC has already given a brief insight into what he'll say.

Ms Furness this week read a few lines from a 23-page opening statement, stating that Dr Pell held the view victims in cases "of this kind" should be able to sue the church in Australia grabbed attention.

Ms Furness was laying out the facts for a two-week hearing into how the Archdiocese of Sydney under Dr Pell handled complaints by John Ellis in 2002 that he had been abused as an altar boy by a priest in Bass Hill, Sydney, about 28 years earlier.

Dr Pell's apparent "backflip", "change of heart" and "volte face" stole the headlines and led to speculation the church would change its structure to make itself a legal entity that could be sued.

Apart from the current and future status of Dr Pell - he is off to Rome for a top Vatican job in financial management - his view has a certain piquancy.

It is the second examination by the commission of Towards Healing, the church's internal process for handling abuse claims. The first case study showed the process can sometimes work and provide much needed pastoral care and some level of financial redress.

In Mr Ellis's case, it failed utterly and the pastoral care never really got off the ground. As a result, Mr Ellis, a lawyer, went to court.

Dr Pell's staunch offensive when Mr Ellis sued him and the church trustees for damages arising from abuse by Father Aidan Duggan led to what became known as the Ellis Defence.

Basically the court found you can't sue a trust for abuse and you can't sue a reigning archbishop for something that happened on someone else's watch. The "of this kind" in Dr Pell's statement refers to the fact that the man who abused Ellis was dead and the church said there was no corroborative evidence that the abuse took place.

The finding was interpreted as creating a legal shield around the church. It has the effect of deterring people from going to court and persuading them to reach private settlements with the church where costs can be controlled.

Is Dr Pell suggesting the church throw away the "shield"?

It is highly unlikely. When Dr Pell elaborates on his view, it will probably be closer to a view already expressed on the archdiocesan website than any radical proposal for a change in the Australian church's legal stance.

The website says there is no such thing as the "Ellis Defence".

It also says the NSW court decision did not create a shield to protect church parties from legal action, it just restated the law.

"Church parties can and have been sued. The suggestion that the church cannot be sued by victims of sexual abuse is incorrect," the site states.

"Church officials and church entities responsible for abuse in the church either directly or by their negligence can be and are sued."

It says the Ellis defence stands for nothing more than the common sense proposition that you cannot be liable for wrong doing of others unless you are directly or indirectly responsible for supervising their conduct. The argument on www.sydneycatholic.org/justice/royalcommission/ellis makes compelling reading.

Next week, Dr Pell will flesh out his recently expressed view on suing the church.

His opinion, while respected by his church colleagues, is not likely to cause a bevy of bishops to decide to dismantle a structure that has served them well and replace it with one that leaves them wide open to legal assault.

Perhaps they will opt for the reform proposed by the Truth Justice and Healing Council (TJHC) - the body set up to co-ordinate the church's response to the commission.

The proposed reform "would see every bishop, every diocese and every religious order make available a legal entity, covered by insurance and wealth, that survivors of child sex abuse can sue...." the council's chief executive Francis Sullivan wrote on the TJHC blog.

It would mean little legal entities being set up within the various parts of the Catholic Church.

Despite Mr Sullivan's enthusiasm, change is not going to happen any time soon.

Father Brian Lucas, the general secretary of the Australian Catholic Bishops Conference, told the ABC the day after Dr Pell's view became known that no changes would be made until the royal commission handed down its findings. That is years away.

And meanwhile in Melbourne, it was reported that Dr Vivian Waller, acting for abuse victims, was told by lawyers for two Catholic orders they might still rely on the Ellis defence.