• By a Broken Rites researcher

Any Australian victim of church child-sex abuse can demand compensation from the church for any damage that has been done to the victim's later life. To gain a proper amount of compensation, the victim would threaten to sue the church in a civil-court action but the Catholic Church would try to evade this compensation by using a legal strategy (known as the "Ellis Defence"), with the church then offering a much smaller settlement (through the church's in-house "Towards Healing" strategy). The "Ellis Defence" originated when the Catholic Church fought a former altar boy (John Ellis) who was seeking proper compensation for his damaged life. This article is based on statements and documents presented to Australia's national child-abuse Royal Commission in 2013-2015.

John Ellis was an altar boy when the Sydney archdiocese appointed a pedophile priest (Father Aidan Duggan) to John's parish. John Ellis was not Father Duggan's only victim.

How the church has hurt John Ellis

According to statements and documents given to the Royal Commission, the Sydney archdiocese victimised John Ellis three times:

The first abuse: In 1974 the Sydney archdiocese recruited Father Aidan Duggan (from a religious order in Britain) and appointed him to a Sydney parish (Bass Hill), where it gave him easy access to a 13-year-old altar boy, John Ellis. Father Duggan, who had been a serial child-abuser in Britain, immediately began using his priestly authority to sexually abuse John Ellis, and this happened on church premises. As often happens in church-abuse cases, the church culture intimidated John Ellis into remaining silent about the abuse. This secrecy disrupted John Ellis's adolescent development and his later life.

The second abuse: In 2002, when he was aged 41, John Ellis told the Sydney archdiocese about how his life had been damaged. He sought an acknowledgement about this church-abuse, plus some support in addressing the damage. According to Royal Commission files, Archbishop George Pell accepted that John Ellis was a victim of church sexual abuse but offered him only a discounted "Towards Healing" settlement. The draft settlement document stated that this settlement was being offered by:
1. George Pell (as the head of the Sydney archdiocese) and
2. the trustees of the archdiocese.
This document would require Mr Ellis to give up his right to sue the archdiocese for proper compensation. Mr Ellis refused to sign away this right.

The third abuse: In 2004, feeling hurt by the church's lack of sympathy, John Ellis began steps in the New South Wales Supreme Court to sue the same two parties (firstly George Pell and secondly the Sydney archdiocese trustees), who had been cited as the church's representatives in the Towards Healing draft document. John Ellis anticipated that this threat of litigation would prompt the archdiocese to enter mediation, resulting in an out-of-court settlement and proper compensation. But the archdiocese refused mediation, and its lawyers vigorously attacked John Ellis’ character and credibility over days of cross-examination. The church lawyers finally blocked John Ellis's case from proceeding. Thus, the Sydney archdiocese established a legal precedent which church lawyers (throughout Australia) could cite in future to discourage any other victim from deciding to sue the church. The church's victory became known in legal circles, as the "Ellis defence".

John Ellis was not Father Duggan's only victim

In blocking John Ellis from 2002 onwards, the Sydney archbishop's office claimed there had been "no other complaints" about Father Duggan being a child-sex offender.

[Comment by Broken Rites: "No other complaints?" Surprise, surprise. Many church victims remain silent for years, or perhaps forever. And the normal strategy of the church authorities is to say "no previous complaints". It is the victim who must prove otherwise.]

According to documents tendered at the Royal Commission in March 2014, the Sydney archdiocese certainly knew during the John Ellis litigation that Ellis was not Father Aidan's only victim. Another victim (referred to by the Royal Commission as Mr "SA.") says that he told the church authorities in mid-1983 that he was sexually abused by Father Aidan Duggan while acting as an altar-boy at Sydney's Catholic Cathedral (St Mary's). The abuse, Mr SA says, happened in the cathedral presbytery (that is, the house where the cathedral's priests were living). Mr SA says that he made his 1983 complaint to the then dean of St Mary's Cathedral (Father Michael McGloin). That is, Mr SA's complaint was lodged 19 years before John Ellis's complaint was lodged.

When John Ellis's application came before the NSW Supreme Court in July 2005, Mr "SA" saw a newspaper report about this and he therefore came forward to remind the church authorities about his own 1983 complaint.

A letter from the church's lawyers to the church's insurance company on 29 July 2005 (tabled at the Royal Commission) noted that the emergence of Mr SA was "unfortunate" for the archdiocese. This letter stated:

• "Unfortunately, on Thursday morning, a potential witness who had read about the proceedings in the newspaper came forward with a sworn affidavit that he too had been abused by Father Duggan and had reported this fact to the Dean of St Mary's Cathedral in 1983. This complaint was allegedly made during the period of Ellis's abuse. In short, this fresh allegation would suggest that the Archdiocese (or its agent) was on notice of Duggan's predilection for young men and did nothing to stop it. Unfortunately, the priest to whom the latest complaint was made, Father Michael McGloin, also appears to have antecedents for boundary violations and child abuse."

Furthermore, there have been complaints that Father Aidan Duggan was a serial sexual offender during his years in the priesthood in the United Kingdom before being recruited by the Sydney archdiocese. Five boys at a Catholic school in Scotland complained to the church in the 1970s that Duggan had sexually abused them.

Aidan Duggan's sibling, Father Fabian Duggan, also, has been named as an offender in the U.K.

The church opposed John Ellis

As Archbishop of Sydney, George Pell was informed of John Ellis’s complaint within a month of it being made in June 2002, and (the Royal Commission has been told) Archbishop Pell continued to be closely involved in the handling of this complaint. The result (according to a later Sydney archdiocesan review) was an “absence of justice” for Mr Ellis.

In 1996, the Australian Catholic Bishops Conference which had established the church's in-house Towards Healing protocol. Towards Healing required that an assessor be appointed to establish whether or not a complaint was likely to be true before a facilitation meeting was held to discuss issues of redress. In Mr Ellis’s case, no assessment was carried out before Cardinal Pell wrote to him in late December 2002, saying “a clear resolution of this matter is not possible” and “under the circumstances I do not see that there is anything the Archdiocese can do”.

An earlier draft of this letter (prepared by the director of Towards Healing) included an assurance that the church’s stance didn’t mean that Mr Ellis was disbelieved, but this assurance was deleted in the final version sent to John Ellis.

The original draft also included an expression of regret for any hurt Mr Ellis had incurred but this, too, was deleted in the final version.

The dismissive letter reached John Ellis on Christmas Eve, 2002, causing much distress to Ellis.

Feeling hurt, John Ellis decided to sue the Sydney archdiocese in pursuit of justice. It is important to understand that the geographical boundaries of the Sydney archdiocese were confined to the Sydney metropolitan area and did not include any country areas. The Catholic Church in New South Wales is divided into various dioceses, including the Lismore diocese in the north of the state (extending to the Queensland border) and the Wagga Wagga diocese in the south (extending to the Victorian border). The prefix "arch" is given to bishops and dioceses in the capital cities.

The Sydney archdiocese hired a legal firm (Corrs Chambers Westgarth) to defend the archdiocese against Ellis's litigation. A 2005 email from the archbishop's secretary (Michael Casey) to this law firm states that the archbishop "has confirmed that he is happy for you” to develop “a media strategy” at the beginning of the case.

In 2007, after the Sydney archdiocese's court victory, the church’s lawyers sent a confidential briefing to the archbishop's office celebrating “a conclusive victory for the archdiocese” that “places a number of significant obstacles” in front of other abuse victims considering legal action. The court’s decision, the briefing said, “can be summarised” as finding that the Sydney archdiocese "is an unincorporated association which cannot be sued.”

Similarly, after their legal victory, a 2008 email from the church’s lawyers describes a meeting with the Sydney archdiocese’s chancellor, Father John Usher, to discuss whether to pursue John Ellis for hundreds of thousands of dollars to cover the archdiocese's legal costs.

“Father Usher conveyed the Cardinal’s view” that “we do not want (the) plaintiff lawyers to think the Church will simply roll over on its costs every time the plaintiff loses a case,” this email says.

Another document (tendered to the Royal Commission) shows that the church's legal team recommended “a media campaign” to “capitalise on this result” and to ensure that other lawyers considering action against the church were aware of the court’s findings - that is, the Ellis defence.

How the Ellis defence affects other Australian victims

The Sydney archdiocese paid massive fees to its lawyers to win its legal victory over John Ellis but the archdiocese regarded these fees as money well spent, expecting (correctly) that this precedent would discourage other victims from suing in future. Legal experts believe that the church's "Ellis Defence" has saved the church millions of dollars throughout Australia.

The church’s property trusts (in the various dioceses and religious orders) control large financial assets, but the Ellis Defence means the church can successfully claim that "our clergy are not employees and the church is not liable for their criminal conduct."

And Broken Rites understands that, likewise, the trustees can claim evasively that "the trustees don't appoint the priests to their parishes."

The Ellis Defence, which has no direct parallel in Britain, the United States or Canada, means that Australian church-victims are forced to accept far smaller compensation payments from the Catholic Church (through the in-house Towards Healing process) than they might have otherwise received.

The Royal Commission has heard that at least 1,700 of the church's Australian victims have taken part in the Towards Healing process (or the Melbourne archdiocese's "Melbourne Response" scheme), thereby receiving an inadequate financial settlement.

Update

In 2018 some of Australia's state governments said they are planning legislation to prevent the church from using its Ellis defence.