Doomsday for Ellis defence as new laws introduced to parliament

On 6 March 2018, the Victorian State government introduced the Legal Identity of Defendants (Organisational Child Abuse) Bill into parliament. If passed, the Bill will end the so-called Ellis defence that has been relied upon by the Catholic Church to avoid claims of historical sexual abuse for years.

What is the Ellis defence?

We have referenced the Ellis defence in previous blogs including, ‘Making a claim against the catholic church’ and ‘Is the Ellis Defence dead, or alive and well?’. The Ellis defence gets its name from a 2007 NSW Supreme Court of Appeal case, where the Catholic Church’s Sydney Archdiocese was considered to be a property trust whose trustees had no control over appointing, managing or removing priests. Further, because the Church was an unincorporated association, it was found not to be a legal “person” that was capable of being sued.

The Church used this defence in court and out of court settlements in order to protect itself from cases of historical institutional abuse. It has proven to be a very effective legal mechanism for the Church to avoid claims or to reduce the amount for which they settle. Despite more recent statements that the Church would walk away from this tactic, this relied on the goodwill of the Church rather than legal precedent and no abuse survivor has yet successfully sued the Catholic Church in Victoria.

What does this legislation mean for Victorians seeking compensation?

Under the proposed Andrews government laws, the Church, and other unincorporated organisations will be held accountable to survivors. The legislation would allow unincorporated organisations to nominate a legal entity to be sued, as long as that entity has sufficient assets to compensate abuse survivors. If the organisation does not nominate an entity, the Court would be empowered to appoint an associated trust to be sued on behalf of the organisation.

This would also push the legal process along, with proceedings being able to start and continue despite a pending appointment of defendant entity. This reform is in line with the recommendations from the Victorian Parliamentary Inquiry’s 2013 Betrayal of Trust Report and the 2015 Redress and Litigation Report by the Royal Commission into Institutional Responses to Child Sexual Abuse. It appears that the State government is listening to survivors, with Premier Daniel Andrews stating "For too long a legal loophole has effectively prevented child abuse survivors from suing some organisations due to a technicality. We’re fixing that.”

What does this mean for survivors?

This is a significant step in the right direction for survivors of abuse seeking compensation from the Catholic Church and other non-government unincorporated associations that rely on trusts to conduct their affairs.

They will no long be able to disengage from due legal process on the basis of a technical and much maligned legal argument. It is no secret that the Catholic Church is a massively wealthy and powerful organisation and this legislation gives survivors some hope that they will be held accountable for their conduct. Many of our clients tell us that there is no amount of money that could possibly adequately undo the hurt and damage that the Catholic Church and other institutions have made them suffer.

This new legislation creates the opportunity for a more even playing field for survivors, enabling them to go to Court for a resolution and to achieve justice before a Judge if they so choose.