Wollongong lawyer calls for right to sue church

By Emma Spillett
Illawarra Mercury
November 9, 2014

http://www.illawarramercury.com.au/story/2684244/wollongong-lawyer-calls-for-right-to-sue-church/?cs=12

Mark Johnston says the church has used disgraceful tactics.

A Wollongong lawyer, whose client was embroiled in a battle with the Catholic Church, claims new measures to help survivors of institutionalised child sex abuse fail to address fundamental legal problems with the church.

Mark Johnston spent nearly a year trying to get a fair settlement for a man who had allegedly been repeatedly abused by a Christian Brother at Edmund Rice College.

No criminal charges have ever been laid against the brother over the alleged abuse.

Mr Johnston claims the man's case exposed the failings of the church's "Towards Healing" program, its internal settlement regime used to allegedly steer people away from legal action, in exchange for compensation.

While Mr Johnston welcomed initiatives introduced by the state government last week in light of the Royal Commission into Institutional Responses to Child Sexual Abuse, he believes more work needs to be done.

He claims legislative amendment is needed to enable the Catholic Church to become an entity that can be sued by frustrated victims.

"The fact that the Catholic Church remains an entity that can't be sued is ridiculous," Mr Johnston said.

"It requires legislative change ... unfortunately, both major parties are reluctant to take this step."

Mr Johnston said the case of solicitor John Ellis, who tried to sue the church after he was abused as an altar boy in Sydney, showed the church had used "disgraceful" tactics to defend the case.

"The church disputed Mr Ellis' version of events, even though they knew he was telling the truth, and used every tactic they could to make it hard for him to prove his case," he said.

"They then used [a defence] saying the church couldn't be sued as it wasn't a legal entity.

"They were successful and then pursued Ellis for legal costs ... it was disgraceful behaviour that went all the way to Cardinal George Pell."

Truth Justice Healing Council chief executive Francis Sullivan agreed, noting Cardinal Pell had offered Mr Ellis a sincere apology during the hearing.

Mr Johnston raised his concerns with Attorney-General Brad Hazzard.

Mr Hazzard told the Mercury the commission would make interim recommendations in January and final recommendations by June 2015.

He noted the state government was examining a range of long-term initiatives such as a redress scheme and reforms to civil litigation.

Mr Johnston has urged the church to devise a policy, similar to the guiding principles launched by the government last week, on how it will approach claims.

"At the moment, different diocese have different approaches and some are more generous than others," he said.

Mrs Sullivan said the Catholic Church, through the council, had made a raft of reform recommendations to the church leadership, which had all been accepted.

It also made recommendations to the commission, outlining changes in the way survivors should be treated in court, in a proposed national redress scheme and pastorally within church organisations.

New policies will help alleviate some of the fears faced by child sex abuse victims taking on the legal system, a Wollongong lawyer says.

Mark Johnston has applauded the NSW government for launching initiatives last week, aimed at helping survivors of institutionalised child sex abuse.

The government is set to make care records available, encourage victims to access free counselling and look at options for a statewide place of recognition for past abuse.

It will also introduce a set of guiding principles for how agencies should respond to civil claims by victims.

Mr Johnston said the principles should create more consistency.

‘‘It will definitely assist lawyers in advising clients of what to expect for these types of claims,’’ he said.

‘‘This is a very difficult area of law to advise in because you never know how the evidence will stand up in court when it relates to incidents and events that happened years and sometimes decades ago.’’

Mr Johnston believes the principles will prevent defendants from intentionally ‘‘stretching out’’ proceedings, speeding up the process for victims.

‘‘This will be beneficial [because] this type of litigation can be quite stressful for people who have already gone through a traumatic and stressful period in their life,’’ he said.

Attorney-General Brad Hazzard agreed, noting principles aimed at making litigation a less traumatic experience for victims.

But Mr Johnston was concerned  the government may offer settlements before victims had a chance to consult a lawyer.

He believes victims should not be able to settle a claim without getting legal advice.

The Department of Justice advised the Mercury that every claimant had the right to seek legal advice at any stage of civil litigation proceedings.