George Pell instructed his lawyers to defeat this former altar boy, the Royal Commission is told

Broken Rites
March 23, 2014

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

Cardinal George Pell (as head of the Sydney Catholic archdiocese) directed the archdiocese's legal battle against the former altar boy John Ellis, according to evidence and documents presented to Australia's child-abuse Royal Commission in March 2014. Pell's legal victory in 2007 (known as the "Ellis defence") now forces church-victims to accept a discounted in-house "Towards Healing" settlement instead of suing in the civil courts for proper compensation, the Commission was told.  And this Broken Rites article demonstrates that John Ellis was not the only victim of his abuser, Sydney priest Father Aidan Duggan.

According to statements and documents given to at the Royal Commission in 2014, the Sydney archdiocese victimised John Ellis three times:

The first abuse: In 1974 the Sydney archdiocese recruited Father Aidan Duggan (from a religious order in Britain) and appointed him to a Sydney parish (Bass Hill), where 13-year-old John Ellis was an altar boy. Duggan immediately used his priestly authority to begin sexually abusing John Ellis, thereby disrupting the boy's adolescent development.

The second abuse: In 2002, when he was aged 41, John Ellis told the Sydney archdiocese about how his adult life had been damaged by this church-abuse. He sought an acknowledgement about this abuse, plus some support in addressing the damage. But the archdiocese behaved evasively, traumatising John Ellis further. The archdiocese refused him compensation and offered him only a discounted "pastoral" settlement (commonly known as a "Towards Healing" settlement).  The draft settlement document stated that this settlement was being offered by:
1. George Pell (as the head of the Sydney archdiocese)  and
2. the trustees of the archdiocese.
But the document would require Mr Ellis to give up his right to sue the archdiocese for proper compensation. Mr Ellis refused to sign away this right.

The third abuse: Between 2004 and 2007, John Ellis tried to sue the same co-signatories (George Pell and the Sydney archdiocese trustees) in the New South Wales Supreme Court, seeking proper compensation (instead of merely a "pastoral" settlement) for the damage. During these court proceedings, the archdiocese and its solicitors vigorously challenged John Ellis’ character and credibility over days of cross-examination. Pell's legal team finally blocked John Ellis's case from proceeding, thereby creating a legal precedent which church lawyers (throughout Australia) could cite in future to discourage any other victim from deciding to sue the church. Pell's victory became known in legal circles, as the "Ellis defence". But Broken Rites believes that a more appropriate name for it would be the "Pell defence".

In blocking John Ellis from 2002 onwards, the archdiocese claimed there had been "no other complaints" about Father Duggan being a child-sex offender.

[Comment by Broken Rites: "No other complaints?" Surprise, surprise. Many church victims remain silent for years, or perhaps forever. And the normal strategy of the church authorities is to say "no previous complaints". It is the victim who must prove otherwise.]

According to documents tendered at the Royal Commission in March 2014, the Sydney archdiocese certainly knew during the John Ellis litigation that Ellis was not Father Aidan's only victim. Another victim (referred to by the Royal Commission as Mr "SA.") says that he told the church authorities in mid-1983 that he was sexually abused by Father Aidan Duggan while acting as an altar-boy at Sydney's Catholic Cathedral (St Mary's). The abuse, Mr SA says, happened in the cathedral presbytery (that is, the house were the cathedral's priests were living). Mr SA says that he made his 1983 complaint to the then dean of St Mary's Cathedral (Father Michael McGloin). That is, Mr SA's complaint was lodged 19 years before John Ellis's complaint was lodged.

When the Ellis-versus-Pell ligation came before the NSW Supreme Court in July 2005,  Mr "SA" saw a newspaper report about this and he therefore came forward to remind the church authorities about his own 1983 complaint.

A letter from Pell's lawyers to the church's insurance company on 29 July 2005 (tabled at the Royal Commission) noted that the emergence of Mr SA was "unfortunate" for the archdiocese. This letter stated:

• "Unfortunately, on Thursday morning, a potential witness who had read about the proceedings in the newspaper came forward with a sworn affidavit that he too had been abused by Father Duggan and had reported this fact to the Dean of St Mary's Cathedral in 1983. This complaint was allegedly made during the period of Ellis's abuse. In short, this fresh allegation would suggest that the Archdiocese (or its agent) was on notice of Duggan's predilection for young men and did nothing to stop it. Unfortunately, the priest to whom the latest complaint was made, Father Michael McGloin, also appears to have antecedents for boundary violations and child abuse."

As Archbishop of Sydney, George Pell was informed of John Ellis’s complaint within a month of it being made in 2002, and (the Royal Commission has been told) Pell continued to be closely involved in the handling of this complaint. Documents tendered to the Commission reveal that, from then on, Pell actively participated in a clumsy and hurtful procedure which defied the church’s own “Towards Healing” protocol. The result (according to a later Sydney arcdiocesan review) was an “absence of justice” for Mr Ellis.

Archbishop Pell was then a member of the Australian Catholic Bishops Conference which (in 1996) had established the church's in-house Towards Healing protocol. Towards Healing required that an assessor be appointed to establish whether or not a complaint was likely to be true before a facilitation meeting was held to discuss issues of redress. In Mr Ellis’s case, no assessment was carried out before Cardinal Pell wrote to him in December 2002, saying “a clear resolution of this matter is not possible” and “under the circumstances I do not see that there is anything the Archdiocese can do”.

An earlier draft of this letter included an assurance that the church’s stance didn’t mean Mr Ellis was disbelieved, but this assurance was deleted in the version signed by Pell. The original draft also included an expression of regret for any hurt Mr Ellis had incurred but this, too, was deleted in Pell's signed version.

Feeling hurt, John Ellis decided to sue the Sydney archdiocese in pursuit of justice. Pell then handpicked his favourite legal firm (Corrs Chambers Westgarth) to defend the archdiocese against Ellis, the commission has been told. A 2005 email from Pell's secretary (Michael Casey) to this law firm states that “His Eminence [Cardinal Pell] confirmed that he is happy for you” to develop “a media strategy” at the beginning of the case.

The same email also suggests that Pell was directing the legal strategy. Michael Casey wrote that “His Eminence asked me to check” whether the church formally accepted the fact of Ellis’s abuse (during the church's in-house process). Casey wrote: “We can say that the archdiocese has never accepted” the abuse.

In 2007, after Pell's court victory, the church’s lawyers sent a confidential briefing to Pell's office celebrating “a conclusive victory for the archdiocese” that “places a number of significant obstacles” in front of other abuse victims considering legal action. The court’s decision, the briefing said, “can be summarised” as finding that the Sydney archdiocese "is an unincorporated association which cannot be sued.”

Similarly, after their legal victory, a 2008 email from the church’s lawyers describes a meeting with the Sydney archdiocese’s chancellor, Father John Usher, to discuss whether to pursue John Ellis for hundreds of thousands of dollars to cover the archdiocese's legal costs.

“Father Usher conveyed the Cardinal’s view” that “we do not want (the) plaintiff lawyers to think the Church will simply roll over on its costs every time the plaintiff loses a case,” this email says.

Another document (tendered to the Royal Commission) shows that the church's 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 - that is, the Ellis defence.

Now, as he leaves Australia in 2014 to become a high-flyer in the Vatican, Cardinal Pell is trying to distance himself from his 2007 victory against John Ellis (and against all other Australian church-victims).

On 10 March 2014, at the start of the Royal Commission's current hearing, a written statement from Cardinal Pell said that, in his opinion, “the church in Australia should be able to be sued”.

But Pell was not making a back-flip. The law already allows victims to sue the church - if they dare. Throughout Australia, the legal firms of each diocese have the Ellis Defence in their pockets, as a threat to discourage abuse-victims from suing. Usually, the church lawyers don't even need to mention the Ellis Defence. The victims' lawyers know that the Ellis Defence is available to the church.

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 discourage other victims from suing in future. 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 property trusts (in the various dioceses and religious orders) control large financial assets, but the Ellis Defence 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 (through the in-house Towards Healing process) 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 through "Towards Healing".

Will these short-changed victims become able to have their old "Towards Healing" settlements reviewed?  Or should this process be re-named as "Towards HURTING"?

Broken Rites says: Stay tuned and watch this space.