Church Threatening Sex Abuse Victims with Court: Solicitor
By Catherine Armitage
Sydney Morning Herald
September 7, 2013
|Victim: John Ellis. Photo: Darren Pateman|
The Catholic Church is pursuing hard-line legal tactics against victims of sex abuse in civil claims despite publicly promising to put victims' needs first, lawyers say.
The church has promised to ''promote lasting healing'' by avoiding litigation and ''putting the needs of victims first'' since a national royal commission and two state inquiries into child sex abuse began.
Yet its legal representatives persist with obstructive and combative actions inconsistent with its public statements, says John Ellis, a solicitor with Clinch Long Letherbarrow whose unsuccessful case against the church set a legal precedent and famously led to an apology by Cardinal George Pell for ''legal abuse''.
|John Ellis as a schoolboy.|
Mr Ellis said it was difficult to provide specific examples because of client confidentiality, but victims continued to be threatened with court if they didn't accept settlements.
He said the so-called Ellis defence kept surfacing in negotiations, despite Catholic Church Insurances telling the Victorian parliamentary inquiry it was not used in civil cases.
He said Catholic Church entities regularly raised time limitation defences to negotiate discounted payouts to victims, even though the Truth, Justice and Healing Council advocated no time limitations on claims in a May press release.
Francis Sullivan, chief executive of the Truth, Justice and Healing Council which was set up to co-ordinate the church's response to the royal commission, said claimants could choose between a legal process and the ''pastoral'' path the church offered for victims, known as Towards Healing and the ''Melbourne response''.
When the process was legal rather than pastoral, the tone of negotiations would depend on the legal firm involved, he said.
Mr Ellis was abused for 12 years by the late priest Aidan Duggan at Bass Hill parish in Sydney and has acted for victims in more than 200 cases with more than 50 ongoing.
In his own case in 2007, the NSW Court of Appeal ruled the trust which is a diocese's legal entity and owns its assets cannot be sued for the acts of the diocesan council which oversees priests. The Sydney Archdiocese states on its webpage church officials and church entities responsible for the abuse either directly or indirectly through negligence can be and are sued.
Bob McKessar, a personal injury lawyer with Newcastle firm Braye Cragg who has acted in about 50 abuse cases, said the Ellis defence hung over negotiations and had put a ''great impediment on the number of cases that go to court''.
Vivian Waller, a Melbourne lawyer who has acted in hundreds of sexual abuse claims including 97 against the Christian Brothers, warned prospective clients ''common law claims against Catholic clergy are notoriously difficult'' and the church runs ''many technical legal defences, such as arguing that it does not exist at law and can't be sued for sexual offences''. She said such defences continued to be raised and progress in some cases was ''painstakingly slow'', though the church response could also be compassionate and appropriate: ''It depends which bit of the church we are up against.''
Mr Ellis said it was ''astounding and disappointing'' the church set the ''pastoral'' and ''legalistic'' approaches in opposition to each other. ''This shows that they still do not get it, despite all the work we have done,'' he said.
It was open to church leaders, he said, to choose to be a ''model litigant'' by forgoing technical defences, treating each claim on its merits, and publicly stating its policies on dealing with claims.
The royal commission has called for submissions on the Towards Healing protocols, which have been criticised for working in practice to minimise victim payouts.