Crikey [Melbourne, Victoria, Australia]
February 10, 2023
By David Hardaker
Can we talk about the Ellis defence now?
In the highlight reel of disgraces perpetrated by the late George Pell against victims of church sex abuse, the so-called Ellis legal defence must surely be the standout. It was a cold-blooded strategy concocted between Pell and elite Sydney lawyers which had the dual effect of deterring victims from suing the church and saving the church a fortune. The strategy was so ugly that the NSW government was ultimately forced to legislate it out of existence. It has passed into infamy because it was so cruel and so unjust.
Yet no one’s been talking about the Ellis defence this week as Pell’s supporters have methodically set about washing the late cardinal’s reputation and positioning him for canonisation.
As the caravan moves on from the drama and spectacle of Pell’s burial last week, the powerbrokers have come in, as they always do, to shift and distort the record. This is the work of the true believers. It is done away from the crowd and with a hardening resolve.
Does it matter?
Well, yes, it does — especially given the high stakes of what’s involved and the high profile of those who are seeking to erase key elements of Pell’s past. A powerful faction of the Catholic Church, led by political and media figures, has worked to discredit the Royal Commission into Institutional Responses to Child Sexual Abuse.
The royal commission was a transformative event in Australia’s recent history. Yet there are senior figures in and attached to the Catholic Church who, it is now glaringly apparent, simply don’t accept the commission’s findings.
This rejection is possibly not surprising, coming from a centuries-old institution that believes it should not be accountable to secular law. It is, nevertheless, alarming.
A leading rejectionist is Tony Abbott. He is entitled to his private views, of course. But when it suits him, Abbott carries the mantle of a former prime minister. There are powerful Liberal figures, such as Victoria’s Michael Kroger, who want him back in federal Parliament. A crackpot Abbott may be, but he at one time led Australia’s government and he continues to have a role in Liberal politics.
Other supporters include, naturally, prominent Catholic voices at The Australian who wield influence in conservative political circles.
They have, in particular, focussed on the royal commission’s findings regarding Pell’s knowledge of child sexual abuse by clergy and his subsequent actions, stretching back to 1973.
The royal commission used language which Pell’s supporters find contestable. The commission reported in 2020 that it was “satisfied” that Pell was conscious of clergy abusing children. It had found Pell’s explanations at times “implausible”. The commission said it “did not accept” that as a bishop Pell had been deceived “intentionally or otherwise” in relation to the notorious brother Gerald Ridsdale.
The royal commission, Pell’s supporters say, was a “get Pell” outfit that simply didn’t accept Pell’s denials.
Thus reframed, the vital work of the royal commission has been, in their submission at least, reduced to rubble. Worse, it is construed as part of a secular conspiracy against a good man and a great institution. From there it is but one small step to link the “attack” on Pell to an attack on Western values and the danger of “cowardly” politicians who fail to stand up for any principle.
The High Court’s seven to nil demolition of Pell’s conviction on historic sex abuse charges has played into the Pell martyr narrative and provided the platform for genuine righteous anger.
And yet amid all of this still no mention of the Ellis defence.
No one knows about the horror of the Ellis defence better than John Ellis, the litigant who took on the Sydney Archdiocese under Pell and found himself on the end of a savage legal process aimed at demolishing him and others like him.
Today Crikey published Ellis’ insights on the process. He writes that Pell “repeatedly touted his credentials as a person to whom sexual abuse of minors was an abhorrent scourge on the church” and that he did so “as a cover to seek to divert attention away from his record as a man who waged a covert war on victims and survivors of abuse”.
Pell, Ellis says, “orchestrated the church’s defence to my claim — the ‘Ellis defence’, by which I was figuratively hanged, drawn and quartered, displayed as a warning to any other survivor who may have the temerity to seek to sue the church. It claimed ‘there is no legal entity responsible for sexual abuse in the Catholic Church’.”
The Ellis defence was telling of the church’s approach to justice under Pell — so telling that the royal commission made a case study of it. It runs to just under 130 pages.
It found that Ellis had gone to the church in good faith to take part in its “Towards Healing” redress process, but was treated poorly. He then turned to civil litigation. At this point Pell elected to hire the biggest legal guns he could — the Sydney law firm of Corrs Chambers Westgarth. He instructed his lawyers to go hard. And they did.
They forced Ellis to retell his horrific story of abuse and then contested it — despite the church having earlier agreed that his allegations were likely true and despite other corroborative evidence emerging.
The royal commission found that one reason Pell accepted Corrs Chambers Westgarth’s advice to “vigorously defend” Ellis’ claim was to encourage other prospective plaintiffs not to litigate claims of child sexual abuse against the church.
The royal commission found too that “Pell was aware of, and generally agreed with” the legal advice that the church’s lawyers “should not help Mr Ellis identify a suitable defendant” — that being a church entity which could pay compensation.
The commission published a note from Corrs to the archdiocese following a victory in the appeals process.
“The [court] decision places a number of significant obstacles that will need to be addressed by any claimant seeking to resolve claims litigiously rather than through ‘Towards Healing’,” the note said.
“Refocusing the resolution of these claims through ‘Towards Healing’ has alone been a significant and favourable outcome of this litigation at the very least. Finally, as this decision has provided significant protection to the cardinal and the trustees, this in turn will give rise to a significant reduction in damages exposure and therefore the risks that are presently insured against.”
Confronted with this weight of evidence, the commission report shows, Pell prevaricated. He fell back on excuses about “the benefit of hindsight” and “coming to another view … after a period of reflection”.
Pell’s decisions on the Ellis defence were made in full knowledge of their impact at a time when everyone was aware of the devastating impact of historic child sex abuse.
In a cold calculation the then-archbishop chose to make life even harder for victims.
It is part of Ellis’ case that the priest who abused him, Father Aidan Duggan, had “initiated sexual intercourse” with Ellis in Duggans’ upstairs bedroom in the presbytery at Sydney’s St Mary’s Cathedral, where Duggan had lived and worked for a period.
Forty years later Pell was buried amid the pomp of a full Catholic mass at the very same St Mary’s cathedral, though no one would mention a word about Ellis and what Pell put him through.
They’ve been silent on Ellis and the royal commission’s findings ever since.
Survivors of abuse can find support by calling Bravehearts at 1800 272 831 or the Blue Knot Foundation at 1300 657 380. The Kids Helpline is 1800 55 1800. In an emergency, call 000.
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