Catholic Church dismisses reports it will still use Ellis defence to block sexual abuse victim legal action

By Thomas Oriti
ABC News
May 18, 2015

http://www.abc.net.au/news/2015-05-18/catholic-church-insurer-wont-reopen-claims/6477904

'The Ellis Defence', named after John Ellis (pictured), protects the Catholic Church from liability to be sued as it is not a legal entity.

The Catholic Church has dismissed reports it is planning to continue relying on a legal defence that blocks victims of child sexual abuse from taking action.

In 2007 the New South Wales Court of Appeal found the Catholic Church could not be sued for compensation because it was not a legal entity.

The decision ended a lengthy battle for Sydney lawyer John Ellis, who was sexually abused by a priest in the 1970s.

His experience was examined by the Royal Commission into Institutional Responses to Child Sexual Abuse in March last year.

At the public hearing, former Archbishop of Sydney Cardinal George Pell was asked whether the "Ellis defence", as it has become known, should still be used.

"I was suggesting that we set up a corporation sole," Cardinal Pell said at the time.

"That corporation sole would have a perpetuity and would appoint and supervise people so that if their successors — if, God forbid, there were any other Mr Ellises — would have somebody to sue."

Mr Ellis said it appeared the church may not have consulted its insurers before making the pledge to stop using the defence.

"An area where it does arise is where people have entered into a deed in the matter that was settled by Catholic Church Insurance," he said.

"Often these people would've had a very small payment because a variant of the Ellis defence was raised against them when they brought their claim.

"They've settled their claims on legal advice — basically that you can't take this any further because of the defences that the church has, and people are now seeking to reopen their claims.

"What we're being told by the church entities is that those claims are now effectively uninsured because the insurer is seeking to rely on the previous settlement."

Mr Ellis now represents more than 400 victims of child abuse.

He said the church's abandonment of the defence did not necessarily reflect the views of Catholic Church Insurance.

"That's very likely to be the case," he said.

"It's often arisen in this context of seeking to reopen settled matters, where we're being told that the insurer is effectively relying on its legal defences and the legal protection that it has through entering into an immoral settlement."

Francis Sullivan, from the Catholic Church's Truth, Justice and Healing Council, admitted that regardless of any promise from the clergy, insurance providers have their own regulations.

But he said he is confident they are on the same page.

"Church lawyers and their advisers now need to make it clear to any defendant's victims and their lawyers that there will be an identification of a defendant to sue," he said.

"With regards to insurance companies more broadly, and for unincorporated entities more broadly, we're suggesting that legislation should be put in place to clarify that across the country."

Judy Courtin, from Monash University's law faculty, has been conducting research into sexual assault and the Catholic Church for years.

She said there was another issue at stake too.

"What Francis Sullivan and the Church are not saying is that if the Church becomes incorporated, will that become retrospective or will it be purely prospective?" she said.

"The recommendation from the Victorian parliamentary inquiry says that no, if the Church becomes incorporated and you can sue it, then no, it cannot be retrospective.

"So if that's the case, there is nothing there for thousands of existing survivors in Australia."

Mr Sullivan said he had recently heard from the archbishops of Sydney, Melbourne and Brisbane reiterating their pledge to confine the Ellis defence to the dustbin of history.

Nicky Davis, from the Survivors Network of Those Abused by Priests, also said she had not come across any evidence of it being used, but said the church had a lot to learn.

"I have heard from individual survivors who are currently in negotiations with the Catholic Church and from all accounts, it does appear that the same old tactics are being used," she said.

"They get a survivor who's in desperate financial straits, they make it clear that they don't have the option of a civil case, and then they undermine their confidence and undermine any feeling that the church is going to be more generous in the future."

Mr Ellis has also cast doubt on whether the public statements from Mr Sullivan should be believed.

"The Truth, Justice and Healing Council is making submissions on the record to the royal commission, and it says in those submissions that it's authorised by 164 different church entities," he said.

"Every time we get a case where a church entity is saying 'we don't agree with that', I go back and look at that list and see that they're on the list as being an authorising entity."

Mr Sullivan said he was confident his views are shared by the Catholic Church as a whole.

"The senior archbishops that comprise the supervisory group for the royal commission, and the senior religious leaders that are also on that group, have backed the advice of the Truth, Justice and Healing Council on more than one occasion," he said.