(AUSTRALIA)
The Monthly [Carlton, Victoria, Australia]
March 20, 2025
By Judy Courtin and Ruby Jones
[This article includes a link to the audio of the podcast. See also Judy Courtin’s recent article in the Saturday Paper.]
Lawyer and advocate representing victims of institutional abuse, Judy Courtin, on the far-reaching consequences of this ruling – and how the courts continue to fail victim-survivors.
From Schwartz Media, I’m Ruby Jones. This is *7am*.
Are Catholic priests employed by the church, or by the hand of God?
This question was at the heart of a five-year legal battle between a survivor of child sex abuse seeking compensation from the Church and Bishop Paul Bird of the Catholic Diocese of Ballarat.
The decision by the High Court in November last year – that the Church does not employ priests and therefore is not liable – came as a surprise to lawyers and survivors alike. We’re the only common law country, including Ireland, that feels this way.
Today, lawyer and advocate representing victims of institutional abuse Judy Courtin, on the far reaching consequences of this decision and how the courts continue to fail victim-survivors. It’s Thursday March 20. And a warning, this episode contains descriptions of abuse.
##RUBY:
Judy, to begin with, could you tell me a bit about how you came to be in this role representing victims of institutional abuse?
##JUDY:
Sure. I didn’t do law until late in life, until I was a bit of an old chick. But just as I was finishing my law degree, I was doing an honours thesis on research looking at the number of convictions of child sexual abuse in Victoria and New South Wales and how many were appealed and why and so on. And one of my nephews was staying with me at home. He was then about 31. I was telling him about the research. So he disclosed to me what happened to him when he was age 11 with Christian Brothers. Horrific, horrific sex crimes. I looked up the law in the area and realised that he had no pathway at all for accountability or justice. So I decided to practice and when I started practice, the Royal Commission was on. So I was involved in that as well and here I am.
##RUBY:
And so in the time you’ve been practising, you’ve mostly been working with civil cases. Can you explain to me why these are civil cases rather than criminal, what it takes to get a criminal conviction against the perpetrators of these kinds of abuses?
##JUDY:
The reason we have more civil claims than criminal convictions is that it’s really hard to get a conviction. If we havd say, a thousand people in the community who were sexually assaulted as children, this is not just institutional, but across the board, you’ll get a maximum of 100 of that thousand reporting to police. Once they’ve reported this, this diminution all the way through the criminal process and we end up with about six and a half convictions at the end of the day. Even if you get a conviction, there is a likelihood it will be appealed and it will be successful. Also, many offenders are dead because it takes 10, 20, 30, 40, 50, 60 years for a person to be able to talk about this. It means that a lot of offenders have died, but that does not necessarily stop a civil claim. And overall, it’s the institution that we sue because they have insurance. There’s no one else to sue.
##RUBY:
Right, but that is under a cloud now, because of a recent high court decision, the case of Bird versus DP. So, can you tell me about that case and what it means for people pursuing civil claims against the Church?
##JUDY:
So, Bird is the current Bishop of Ballarat, Bishop Paul Bird. DP is a pseudonym for the plaintiff, the victim, the survivor. He was sexually assaulted on two occasions by the then assistant parish priest Father Coffey in Port Fairy. And he was sexually assaulted both times in his home. Now he issued proceedings in the Supreme Court of Victoria in 2020 for psychiatric harm caused to him by Coffey’s offending. Now, DP said that the diocese should be negligent and that they should be also what’s called vicariously liable. So negligence, we have to prove that the institution had a duty of care to prevent harm to the child, but we also have to prove they breached the duty. And that can be a very difficult thing at times because it involves having evidence of a prior complaint. So someone has complained to the institution before DP was assaulted, for example. We learnt from the Royal Commission that not only were complaints not documented, but where they were, oftentimes that evidence has been destroyed. So if we don’t have that evidence, we then turn to what’s called vicarious liability. It’s a second, sort of, legal hook we try and hang a hat on. Now, historically vicarious liability, we don’t have to prove the institution was at fault. Rather, there are two boxes we’ve got to tick. One is that there has to have been an employment relationship between the offender and the employer, or the institution. And second, that the offender committed the crimes or crime during or within the course of their employment.
##RUBY:
Okay, so DP was arguing that the Catholic church was vicariously liable for his assault because Father Coffey committed those crimes in the course of his employment by the Catholic Church.
##JUDY:Yeah so, DP… this was the first time our High Court has considered vicarious liability in a Catholic matter.
Now, the Catholic Church has argued forever that priests, brothers, nuns or members of the clergy are not employed. There’s no employment relationship, therefore, there’s no vicarious liability.
##RUBY:And what did the court find?
##JUDY:
Well, we pretty much all assumed our High Court would follow the trends in other common law countries, in Canada, the UK, even Ireland, but it didn’t. In fact, it went further backwards, a very much a retrograde decision. And it took the employment relationship component of vicarious liability very literally. And because they agree that priests and brothers and nuns are not employed, therefore there’s no vicarious liability.
##RUBY:
So if they’re not employed, what are they?
##JUDY:
Exactly. Exactly. You know, are they employed by God? Does Canon law have the provisions for them to be employed? Certainly they are acting as if they are employed. They are appointed, They have a stipend, they have a car, they get holiday leave, they get private health insurance, they get sick leave. In our eyes they are employed. So it’s quite extraordinary because if a 12-year-old child is raped by a state school teacher and there’s no prior knowledge of that offender, the state or the school will be held vicariously liable. But that very, very highly technical argument, there’s no employment contract like there would be with a state school teacher, they’re considered not employed.
##RUBY:
Okay and so, how does this decision affect DP and his attempt to get compensation?
##JUDY:
Well DP has lost his case and there is nothing more anyone can do for DP. We don’t have any further avenues of appeal. So this is a massive, massive defeat. One of the important things to note here is that the High Court and the lower courts too, believed DP. There’s no question that the abuse didn’t happen. So this is an example, yet again, where the Church will say yes, the abuse happened but we’re not going to be responsible for it. So for DP, I can’t imagine how this has affected him and will continue to affect him. ##RUBY:Coming up – the ripple effect of this case on thousands of others victims.
##DANIEL:
Hi, I’m Daniel James.
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##RUBY:
Judy, tell me more about the consequences of this decision by the High Court. How many people do you think are likely to be affected by this?
##JUDY:
So, at the moment, about a third of all my clients have been directly impacted. I mean, my estimates are in Victoria alone there would be at least 2000 people who have been directly affected by this decision. They’re not all within the court system. Some will be just started. Some will be in the middle and so on. That’s just Victoria. Around the country, who knows. Many thousands. It would have to be many thousands. One of the problems we have, our clients who already have a claim in the Supreme Court, they’ve got nowhere to go. It’s not easy to get the trial date vacated or adjourned because the court says you’ve got to use the law at the time. Now, interestingly, though, the High Court has handballed this legal problem to the states and the territories. So, it is possible to have legislation which reverses the decision of the High Court. In fact, that’s what the High Court has suggested happen. And at the moment, we’re certainly campaigning very strongly for all the states and territories to introduce urgent, urgent legislation to change that outcome. Which would show that Catholic clergy members, their relationship is akin to employment and the diocese or the institution can be held vicariously liable.
##RUBY:
Okay, so there’s a real sense of urgency then to have the legislation changed before a lot of these cases go to court.
##JUDY:
Absolute urgency and, you know, our clients, I know some of them, when we had to talk to them at the end of last year after this decision and what it would mean, they’re very, very distressed. A couple were even suicidal. You know, they’ve been fighting now for… some of them have been in the legal system, the court system for three, four, five years. And for this to happen right near the end of the matter, they’re very, very distraught.
##RUBY:
And so you’ve spoken about your clients, but there are also many people in the community who have never disclosed abuse and have never tried to seek justice. So what does this decision in the High Court… I mean, what does it say to them that this route has been effectively blocked, this compensation route, at this moment in time?
##JUDY:
I would still encourage people to come forward. Look, Victoria has been the forerunner in Australia, the state forerunner, for really important critical legislative reforms. Victoria has been the first all the way. In fact, we were the only state to hold, at the time, a parliamentary inquiry into non-government organisations and child sexual abuse. We were pushing, this is back in 2011, we were pushing for a royal commission then. We got a Victorian parliamentary inquiry and they produced some very important recommendations. For example, in 2015 we got rid of what’s called the statute of limitations. Three years later, we got rid of another big legal defence to do with the Catholic Church called the Ellis defence. So Victoria has a great history and it has the opportunity now to be the first again. This legislation has to pass and I would encourage people to still come full forward. We don’t want more deaths and suicides. But the shame here is with the Church. All these pledges and promises through the Royal Commission, you know, where the Church was saying we will be model litigants. We will be compassionate, we’ll be empathetic. It’s just bullshit. I’m sorry. You know, it’s just bullshit. They don’t give a damn. And to use a highly technical argument like this to further crush victims is totally unconscionable. It’s just appalling. They didn’t have to do it. They didn’t have to do it.
##RUBY:
Judy, thank you so much for your time.
##JUDY:
Thank you.
##RUBY:
The Survivors and Mates Support Network provides support for male survivors of child sexual abuse. You can call them on 1800 472 676. You can also call Lifeline at 13 11 14 for 24/7 crisis support.