Vigorous Defence against Ellis Was to Deter Other Claimants
By Helen Davidson
The “vigorous” defence against abuse victim John Ellis was seen as an opportunity to show future claimants they should think twice before litigating against the Catholic Church, Cardinal George Pell has admitted. Pell viewed Ellis’s claim as an “attack” on the trustees of the Catholic church by people who were not “entirely reasonable”, the royal commission into child sexual abuse heard. Ellis’s claim was an “attack” on the trustees of the Catholic Church by people who were not “entirely reasonable”, Pell told the royal commission into child sexual abuse. Ellis was treated differently to other claimants because he was a “brilliant” lawyer. Pell is appearing before the commission’s eighth public hearing for a second day of questioning on the handling of the Ellis case. Ellis was sexually abused by a priest, Father Aiden Duggan, beginning when Ellis was a 13-year-old altar boy. The church won the civil case brought against it in 2007, establishing the so called “Ellis Defence” that the church as an entity cannot be sued. Law firm Corrs Chambers Westgarth ran a “vigorous” defence against Ellis’s claims, which Pell said was simply putting Ellis’s claims “to the proof” rather than denying the truthfulness of them. Ellis, as a lawyer, should have been able to make the distinction, said Pell. The defence also served as a deterrent to future claimants. “[Claimants] should think clearly, they should consider the advantages of not going to litigation,” Pell told the hearing. Pell said he was continually “mystified” and “exasperated” during the legal battle that three senior lawyers – Ellis and his legal team – would continue to “attack” the trustees of the church when his own legal advice was that it was an impossible argument. “We’re not really dealing with entirely reasonable people,” he surmised at the time. Senior counsel assisting the commission, Gail Furness, pointed out that “these people” had approached Pell a number of times seeking to resolve the case through mediation. Pell conceded that appeared to be the action of reasonable people, but it depended “on the amount of money” they were asking for. Pell said the original request of $100,000, which he has maintained he was ignorant of at the time, was not an offer to settle because Ellis refused to sign a release. Under questioning by Furness, Pell said he engaged Corrs so he had greater control, but admitted he could not recall passing on to them vital pieces of information which would have stopped the disputing of Ellis’s claims of abuse so ferociously, including that of a second victim of Duggan’s abuse coming forward. Pell said he accepted as a “legal tactic” the lawyers challenging Ellis’s claims, despite the church’s Towards Healing assessor concluding they were true. When asked whether, given that he himself had said he accepted the assessor’s report, he felt the intense cross-examination of Ellis and his claims were appropriate, Pell said it was not, but that there were other issues in Ellis’s testimony to be questioned. “I regret that,” said Pell. “Only regret it, Cardinal?” queried Furness. “What else could I say? It was wrong that it went to such an extent. I was told it was a legally proper tactic, strategy,” replied Pell. Pell told the commission he had not seen a psychiatrist’s report which detailed the effect of the abuse on Ellis. In his statement to the commission, Pell said that if he had read the report he would have “insisted … that Mr Ellis be treated in a manner which took greater account of the injury he suffered”, he said in his statement. Under questioning on Wednesday, Pell admitted he made no such instruction. “For a long time I proceeded on a somewhat mistaken estimate of Mr Ellis, unfortunately,” he said. “[Ellis] presented so well, he’s such a senior lawyer, he was represented by two very high-level lawyers. I understood insufficiently just how wounded he was. We would never have run this case against many of the victims who have come forward because they’re manifestly so wounded.” Under rigorous questioning from the commission, Pell maintained his position that he was completely unaware of Ellis’s offer to accept $100,000 in compensation prior to the case, which ultimately cost the church $1.5m to defend. In December 2004 Pell became aware of the “offer of compromise” from Ellis of $750,000, but he rejected it “because I felt it was just too high”. Furness suggested an offer of compromise was “a starting point, not an end point”, in discussions and negotiations. Pell said he understood that “now”, but didn’t at the time. Earlier on Wednesday, the commission chair, Justice Peter McClellan, put it to Pell that the cap on reparation payments in the Melbourne Response – which Pell established – meant the church was entirely in control of what victims could receive in compensation because, as was later demonstrated by the Ellis case, individual priests had no money and the higher church authority could not be held responsible. “The Melbourne system was a significant advance on what was then legally available,” said Pell. Pell suggested the law could be changed to better allow victims to sue individual priests who had no money, perhaps by requiring they take out insurance, or altering vicarious liability so superiors could be held accountable – although he did not support the latter. He later repeated calls for an independent, government run scheme to deal with retrospective cases. “It’s a bit irrelevant where the funds would be drawn from. They would be drawn from church funds,” Pell said. “It would be found,” he said, confirming the funds could be drawn from the trustees. Pell said he could not accept the assertion from Ellis’s legal representative Maria Gerace, that “assessing reparation according to a victim’s needs does not have anything to do with what [Pell] or anyone else within the archdiocese thinks should be paid”. “We have to find the money to do it,” said Pell, “and I have to be assured that it is basically just.” On Tuesday it was revealed that the Sydney archdiocese controls more than $1.24bn in assets and turns over an enormous annual surplus. The archdiocese has paid less than $8m to victims of clerical abuse since Pell’s appointment as archbishop 2001 after receiving 204 claims. The hearing continues.
|
.
Any original material on these pages is copyright © BishopAccountability.org 2004. Reproduce freely with attribution.