“My own view is that the Church in Australia should be able to be sued in cases of this kind.” – Cardinal Pell

Cardinal Pell’s admission that he was not now comfortable with what has come to be known as the Ellis Defence, received a lot of media hoopla.

It was regarded as something of a breakthrough when the head of the Catholic Church in Australia appeared to be walking away from a legal tactic that had been so successfully worked by the church’s lawyers that not a single sexual abuse claim has ever been successfully litigated in Victoria.

Sexual abuse victims ought however to temper their expectations that things are about to change.

The Ellis Defence has been relied on by the Catholic Church to argue that in cases of historical sexual abuse, there is no legal entity that can be sued.

That the church may now be abandoning the Ellis defence relies on statements made by Cardinal Pell to the Royal Commission on sexual abuse, in which he says: “Whatever position was taken by the lawyers during the litigation, or by lawyers or individuals within the Archdiocese following the litigation, my own view is that the Church in Australia should be able to be sued in cases of this kind.”

This apparent change of sentiment has been further reinforced by Francis O’Sullivan, head of the Church’s Truth Justice and Healing Council, who has proposed reforms which “would see every bishop, every diocese and every religious order make available a legal entity, covered by insurance and wealth, that survivors of child sex abuse can sue”. See SBS: ‘No such thing’ as Ellis defence.

So is the Ellis Defence a legal tactic that will no longer be employed by the church to avoid costly compensation payouts to sexual abuse victims?

A more sobering view

While encouraging, there remains plenty of evidence to the contrary that for the church, it will legal business as usual. Let’s have a look at some other more sobering statements.

The official website of the Archdiocese of Sydney seems to express a very different position.[1] In a statement headed “The Ellis Decision-a Re-statement of the Law,” the site maintains:

“Many have either misunderstood the court decision or been consistently misled by those who have encouraged reporting the ‘Ellis defence’ or ‘Catholic Church creates legal shield’. As it has been extremely difficult to have the facts put into the public domain they are summarised here.

Key Facts:

• There is no such thing as the “Ellis defence”. The Ellis decision did not create new law. It did not create a shield to protect church parties from legal action. Church parties can and have been sued.
• After Mr. Ellis lost his court case, he received several hundred thousand dollars in financial assistance from the Archdiocese. In addition, the body corporate of the Archdiocese did not require Mr. Ellis to pay its costs of the case – even though the court had ordered Mr. Ellis to do so.
• The suggestion that the Church cannot be sued by victims of sexual abuse is incorrect.
• Church officials and Church entities responsible for abuse in the Church either directly or by their negligence can be and are sued.
• Ellis stands for nothing more than the commonsense proposition that you cannot be liable for wrong doing of others unless you are directly or indirectly responsible for supervising their conduct.”

It also seems that there are other sections of the Church who are not ready to commit as yet to a policy change. Father Brian Lucas, the general secretary of the Australian Bishops Conference told the ABC the day after Dr Pell’s view became known that no changes would be made until the Royal Commission handed down its findings.

What is the truth about the Ellis defence?

Lawyers acting for victims of sexual abuse have never said that the Catholic Church cannot be sued. What has been said is that because of the way in which the Catholic Church (and other churches) are structured, the circumstances in which a victim will be able to find an entity that can be held liable for the abuse are virtually impossible.

These difficulties were exemplified in the Ellis case in circumstances where even though the church conceded on appeal that the evidence filed by the plaintiff established an arguable case, the church nevertheless successfully argued that the claim should be dismissed on the basis that there was no legal entity that could be sued.

On the proposition that church officials can be sued, there is no doubt that this is so. The difficulty with this proposition is that in many cases of historical abuse, the church official is dead or cannot be located and in any event, most members of religious institutions have little or no assets so there is no point in pursuing expensive legal action against them.

Finally and most tellingly, despite the protestations of the Sydney Archdiocese that there is no such thing as the Ellis defence, why have so few historical abuse cases gone to court and why has there been no successfully litigated claim?

The Victorian Parliamentary Committee stated in its report:

“Only a small number of civil cases alleging criminal child abuse in an organizational setting have been decided in Australia and the Committee is not aware of any cases that have proceeded to trial in Victoria.” (Roman Catholic Church Trust Property Amendment (Justice for Victims) Bill 2014)

While Cardinal Pell has encouragingly expressed the view that the church should be capable of being sued in abuse claims, it appears that Cardinal was making a personal statement rather than committing the church to a new policy approach.