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Is the Ellis Defence moral?

By Glen Coulton - posted Monday, 6 February 2012


On 26 July 2005, ABC News reported, "The Supreme Court has been told the Catholic Church cannot be sued for the alleged actions of a priest because the priest had a contract with God, rather than the church."

That was not the only legal barrier that confronted John Ellis when he asked the Court for an extension of the limitation preventing him from suing the Catholic Church for damage he had suffered as an altar boy sexually abused by Aidan Duggan, an assistant priest in the Sydney parish of Bass Hill. As it happened, the Church did not bother to dispute Mr Ellis' accusation of abuse for it found a defence based on a neat legal technicalitythat led Mr Ellis' lawyer to conclude that, guilty or not, the church is "immune from suit". Its apparent immunity is down to what has become known as "the Ellis defence".

The Greens MP David Shoebridge has recently introduced a bill to negate this defence in NSW. Strangely, or perhaps not so strangely, neither the bill nor the Ellis defence itself has received much media attention. Googling "Ellis defence" hits more references to doubts about the legality of the execution of Ruth Ellis, the last woman to be hanged in the U.K., than about the brick wall encountered by John Ellis when he sought recompense in court.

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The low level of interest is strange because the steps in the Ellis saga, as outlined by David Shoebridge in his adjournment speech in the NSW parliament on 14 September 2011 would seem to be irresistible to lovers of intrigue. As Mr Shoebridge picks up the story:

"In 2004 the assistant priest died and his estate left no assets against which the plaintiff could recover damages. Also in that year Mr Ellis brought a common law claim against the Trustees of the Roman Catholic Church and against His Eminence Cardinal George Pell, Archbishop of Sydney, in relation to the abuse he had suffered. The trustees were appointed under the Roman Catholic Church Trust Property Act 1936, a New South Wales Act that establishes a trust that holds all the property of the Catholic Church in this State—property that has been estimated to be worth billions of dollars."

Presumably, Mr Ellis had already become aware that he needed to sue the Trust rather than the Church because, in spite of what members of the public might assume, the Catholic Church does not exist as a legal entity. What is mistakenly regarded as the Catholic Church is an unincorporated association of parts that share some common objectives but retain their separate identities. As Cardinal Pell explained in The Australian on 4 November 2011:  

 "The Catholic Church is not like a corporation with one basic structure for all its activities. It is a large and diverse community consisting of individuals, unincorporated associations and different legal entities. There are parishes, religious orders, lay associations and many different groups providing services in education, health and welfare. There is a wide variety of structures each with their (sic) own areas of activity and responsibility."

The judge in 2004-05 presumably had little appreciation of Cardin Pell's view for, as Mr Shoebridge continued, "The trial judge in the Supreme Court initially found that the trust could be sued by Mr Ellis in relation to the abuse and granted him an extension of time to allow him to pursue his claim. The judge also held that as Cardinal Pell had not been appointed to that position at the time of the abuse he was not responsible for the abuse and therefore not able to be sued."

Neither party was happy with this: the Trust appealed the former decision and Mr Ellis the latter.

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Let Mr Shoebridge take up the story again: "In its appeal the trust conceded that an arguable case had been established that the abuse had occurred. However, it alleged that the Catholic Church did not exist in New South Wales as a legal entity. The trust told the court that although it holds all of the Church’s property—and had so at the time that Mr Ellis’ alleged he was abused—that it was not responsible for the conduct of any member of the clergy…The trust submitted that, in effect, the church could not be sued as, in law, it did not exist.”

"Cardinal Pell maintained his position on appeal that he was not appointed at the time of the abuse. The cardinal who had been appointed at the time of the alleged abuse had since died, as had the alleged abusive clergy member. Cardinal Pell claimed Mr Ellis could not hold him responsible for the abuse…The Court of Appeal agreed with both the cardinal and the trust, and Mr Ellis’ case was dismissed entirely. The court also ordered that he pay the legal costs of the church and the archbishop."

Put simply (as Cardinal Pell would no doubt argue), the situation is that when a Catholic priest commits sexual abuse, it does not happen in the Catholic Church because there is no such thing. It happens instead in one of its unincorporated parts and therefore responsibility for its rests totally on members of that part, especially the perpetrator and those responsible for appointing or supervising him. That is to say, responsibility is completely limited to the parish, school, hospital or whatever is the unincorporated part in which it occurred.

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Article edited by Jo Coghlan.
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About the Author

After attending small country Catholic schools and Armidale teachers’ College (NSW), Glen Coulton taught in government primary and secondary schools for eighteen years. In 1975, he was “temporarily” deployed to a HO position (curriculum and assessment) from which he never escaped despite being restructured out of existence twice. A period spent studying Item Response Theory (Rasch analysis) with Ben Wright at the University of Chicago led eventually to his involvement with the design and implementation of the NSW Basic Skills Testing Program whose successors include NAPLAN. He retired in 1994 and now spends his time taking and presenting courses with the Lake Macquarie University of the Third Age (U3A) and encouraging recorder playing.

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