Lawyers say Ellis defence reduces church payouts

As reported by the ABC AM program

Lawyers for victims of sexual abuse say the Catholic Church has used a legal technicality to reduce compensation payouts to victims in hundreds of cases across Australia. The church argues its assets are held in a property trust, that can’t be held liable for historical cases of abuse, thus leaving victims with no-one to sue. Lawyers are calling on the church to stop using what’s known at the Ellis defence.

As reported by ABC AM on 29/9/11 You can listen to the interview here, or read the reproduced transcript below.

 

TONY EASTLEY: Lawyers for victims of sexual abuse say the Catholic Church has used a legal technicality to reduce compensation payouts to their clients.

The church argues its assets are held in a property trust that can’t be held liable for historical cases of abuse.

It leaves sexual abuse victims with no-one to sue.

Lawyers are calling on the church to stop using what’s known at the Ellis defence, and there are moves underway in New South Wales to have the defence overturned.

Liz Hobday reports.

LIZ HOBDAY: Lawyer Angela Sdrinis represents victims of historical sexual abuse. She says the Ellis defence has been a factor in about 50 of the cases she’s been involved in.

ANGELA SDRINIS: It’s certainly the case that the church offers less money because of this defence. It is the case that it’s more difficult to negotiate with them. I mean a lawyer’s ultimate weapon is to be able to say to your opponent we’ll see you in court and that’s just not an option in these cases.

LIZ HOBDAY: The church says, in the Melbourne Archdiocese at least, the defence has not led to reduced payouts.

But another lawyer who specialises in abuse claims, Dr Vivian Waller estimates there are hundreds of cases across Australia where victims have had to accept negotiated settlements because the defence means their cases will never make it to court.

VIVIAN WALLER: The Ellis defence is morally bankrupt. I don’t know of any other organisation that would say it is not possible to hold them to account for their actions on the basis that they’re not really an entity, not a legal entity at all and can’t be sued. I find it quite extraordinary and I find it morally bankrupt.

LIZ HOBDAY: The church says the Ellis ruling reflects the High Court’s view, and while the church must comply with its legal obligations, it is equally entitled to legal protection.

The church and its religious orders have long argued that there’s no-one victims can sue in cases of historical abuse – the perpetrators have often died, and those now in positions of power can’t be held responsible.

And the church’s assets – estimated to be worth billions of dollars – are held in various property trusts, which the courts have ruled aren’t liable for the conduct of clergy members.

The Ellis ruling is named for lawyer John Ellis, who finally cemented this defence when he tried to sue the church for the abuse he suffered as a boy.

He lost after taking his case to the High Court in 2007.

JOHN ELLIS: Of course it was for me the end of a personal attempt to get redress from the Sydney Archdiocese of the church but it meant a lot more than that to me and I was gravely disappointed in the outcome.

LIZ HOBDAY: John Ellis has represented many other victims in historical cases, and says the defence established in his own case is frequently used.

JOHN ELLIS: It’s always implied as a read between the lines. I have had lawyers for religious orders sit across the table from me and say well, there is absolutely no liability in this matter.

LIZ HOBDAY: Dr Waller is calling on the church and its religious orders to stop relying on the Ellis ruling.

VIVIAN WALLER: And it’s about time that the different parts of the Catholic Church took some kind of moral responsibility for their actions and stopped hiding behind technical legal defences and stopped trying to pretend that they don’t exist. I mean nothing could be more ludicrous.

LIZ HOBDAY: New South Wales Greens MP David Shoebridge introduced a bill to Parliament earlier this month, to try to overturn the defence in that state.

But he’s worried the major parties won’t back the bill.

DAVID SHOEBRIDGE: Well there is some concern that it won’t get support because of the political influence the Catholic Church has here in New South Wales politics but that being said there are people of goodwill on this issue from all sides of politics.

TONY EASTLEY: Greens MP David Shoebridge ending that report by Liz Hobday.

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