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The Archdiocese of Melbourne indicated it wants to rely on the “Ellis defence” to be excused from a civil damages case involving Cardinal George Pell.
The Ellis defence emerged from a 2007 NSW Court of Appeal judgement that prevented an abuse survivor from suing the Church because it was not a legal entity.
Survivors have long complained about the Church using the Ellis defence. In 2018 the Victorian Parliament passed legislation requiring unincorporated associations such as the Church to nominate an entity capable of being sued.
The current case involves the father of one of two choirboys allegedly abused by Pell in 1996.
His father is suing the Cardinal and the Archdiocese of Melbourne for “damages for nervous shock”.
However, lawyers for the Archdiocese argued that legislation did not apply in this case because the father of the choirboy was not the primary victim of the alleged abuse.
The father’s barrister, Julian Burnside QC, disagreed arguing the 2018 legislation applied to both primary victims and their families.
“What our learned friend’s submission amounts to is this: If the victim of child abuse dies, then the family has no remedy, they have no one they can sue,” Mr Burnside said.
“Now that’s plainly wrong in our submission.”
Justice Michael McDonald has reserved his decision on whether to excuse the Archdiocese.
If the Archdiocese is excused, Cardinal Pell will remain a defendant.
Pell was found guilty in 2018 by a County Court jury of abusing two teenage choirboys in Melbourne’s St Patrick’s Cathedral after a Sunday Mass in December 1996. Those convictions were quashed by the High Court in 2020 and was released after more than a year in custody.
One of the choirboys died in his 30s in 2014 from an accidental heroin overdose, having never made a complaint against Pell.
The deceased man’s father, referred to in court under the pseudonym RWQ, lodged a civil case in the Supreme Court last month.
Sources
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