Breaking down Catholic Church’s shield over sex abuse

by: Janet Fife-Yeomans  From: The Daily Telegraph

John Ellis tried to sue the Catholic Church in a landmark case / Pic: Tim Hunter Source: The Daily Telegraph

The church has become notorious for hiding behind what has become known as the “Ellis defence”, a NSW Court of Appeal ruling that means the church does not exist as a legal entity that is capable of being sued.

The Australian Lawyers Alliance and other lawyers contacted yesterday by The Daily Telegraph said they were not aware of a single court judgment against the Catholic Church, although numerous cases had been settled.

Former altar boy John Ellis, a solicitor who lost his case to sue Cardinal Pell and the Archdiocese of Sydney in the landmark case, described the defence yesterday as a loaded gun.

“It is barrier to justice,” he said.

The Australian Lawyers Alliance and victims advocate groups are urging the royal commission, which opened for business on Wednesday, to examine the defence under its terms of reference which allows it to look at the legal barriers blocking access to justice for victims.

Mr Ellis, sexually abused from the age of 14 by a priest in a western Sydney parish in the 1970s, said this would be one tangible outcome from the commission.

“I don’t consider court proceedings are necessarily the best way to resolve these claims but if you are barred from the opportunity of going to court, then that is not a just system,” Mr Ellis, who has a successful Sydney practice, said.

The court ruled church trustees were liable for the land and buildings but not for the behaviour of bishops they appointed.

The High Court refused Mr Ellis leave to appeal but the church has since paid hundreds of thousands of dollars for his counselling.

Barrister Andrew Morrison SC, spokesman for the ALA, said the defence had been used by the church around Australia and the commission must look at “why the Roman Catholic Church has been effectively protected from being sued for compensation under law for so long”.

A spokeswoman for the Archdiocese of Sydney said the Ellis case “stands for nothing more than the common sense proposition that you cannot be liable for the wrongs of others unless you are directly or indirectly responsible for supervising their conduct”.

She said the Archdiocese of Sydney could be sued however it preferred to “resolve claims pastorally and in a non-adversarial manner so victims can avoid the costs and stress of litigation”.

“The Archdiocese of Sydney accepts its moral responsibility to address claims of sexual abuse against its priests and workers, and to treat all victims of abuse with respect and compassion. It accepts its moral responsibility to address claims of sexual abuse against its priests and workers,” she said.