By a Broken Rites researcher
Cardinal George Pell (as head of the Sydney Catholic archdiocese) instigated the archdiocese's legal battle against the former altar boy John Ellis, according to evidence and documents presented to Australia's child-abuse Royal Commission in March 2014. Pell's legal victory in 2007 (known as the "Ellis defence") now forces church-victims to accept a discounted in-house "Towards Healing" settlement instead of suing for proper compensation, the Commission was told. And this Broken Rites article demonstrates that John Ellis was not the only victim of his abuser, Sydney priest Father Aidan Duggan.
According to statements and documents given to at 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. 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. But (according to evidence at the Royal Commission in 2014) Archbishop George Pell behaved evasively, traumatising John Ellis further. Pell finally accepted that John Ellis was a victim of church sexual abuse but refused him compensation, offerng him only a discounted "pastoral" settlement (commonly known as a "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 Pell'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 Pell refused mediation, and his lawyers vigorously attacked John Ellis’ character and credibility over days of cross-examination. Pell's lawyers finally blocked John Ellis's case from proceeding. Thus, Pell established a legal precedent which church lawyers (throughout Australia) could cite in future to discourage any other victim from deciding to sue the church. Pell's victory became known in legal circles, as the "Ellis defence". But Broken Rites believes that a more appropriate name for it would be the "Pell defence".
In blocking John Ellis from 2002 onwards, Pell'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 were 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 the Ellis-versus-Pell ligation 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 Pell'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:
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 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.
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) Pell continued to be closely involved in the handling of this complaint. Documents tendered to the Commission reveal that, from then on, Pell actively participated in a clumsy and hurtful procedure which defied the church’s own “Towards Healing” protocol. The result (according to a later Sydney arcdiocesan review) was an “absence of justice” for Mr Ellis.
Archbishop Pell was then a member of the Australian Catholic Bishops Conference which (in 1996) 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 Pell deleted this assurance 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 by Pell in the signed version.
Pell's 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 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). George Pell was the archbishop of the Sydney area, not the archbishop of New South Wales. The prefix "arch" is given to bishops and dioceses in important cities.
Pell handpicked his favourite legal firm (Corrs Chambers Westgarth) to defend the archdiocese against Ellis's litigation. A 2005 email from Pell's secretary (Michael Casey) to this law firm states that “His Eminence [Cardinal Pell] confirmed that he is happy for you” to develop “a media strategy” at the beginning of the case.
The same email also suggests that Pell was authorising the legal strategy. Michael Casey wrote that “His Eminence asked me to check” whether the church formally accepted the fact of Ellis’s abuse (during the church's in-house process). Casey wrote: “We can say that the archdiocese has never accepted” the abuse. This was untrue, as the archdiocese had ended up accepting (during the Towards Healing process in 2002) that John Ellis was a victim of abuse.
In 2007, after Pell's court victory, the church’s lawyers sent a confidential briefing to Pell'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.
Now, as he leaves Australia in 2014 fulfilling his ambition to become a high-flyer in the Vatican, Cardinal Pell is trying to distance himself from his 2007 victory against John Ellis (and his victory against all other Australian church-victims).
On 10 March 2014, at the start of the Royal Commission's current hearing, a written statement from Cardinal Pell said that, in his opinion, “the church in Australia should be able to be sued”.
But Pell was not making a back-flip. The law already allows victims to sue the church - if they dare. Throughout Australia, the legal firms of each diocese have the Ellis Defence in their pockets, as a threat to discourage abuse-victims from suing. Usually, the church lawyers don't even need to mention the Ellis Defence. The victims' lawyers know that the Ellis Defence is available to the church.
Furthermore, now that Pell is leaving Australia, he is blamng other church officials (and his lieutanants), rather than himself, for the church's cruel mis-treatment of John Ellis.
Reading from a written script at the end of his last day in the Royal Commission witness box, Pell recited an apology for the mis-treatment of John Ellis - without giving even a glance towards John Ellis who was sitting in the front row, just a few metres away. Pell left the room, still without acknowledging the presence of the victim whom he had wronged..
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" (or, rather, the Pell 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.
Many lawyers say that, if any flaw or weakness is identified in the church’s "Ellis Defence" during the Royal Commission's hearings, this would open a fresh round of compensation claims, potentially costing the church tens of millions of dollars.
The Royal Commission has heard that at least 1,700 of the church's Australian victims have previously agreed to take part in the Towards Healing process. Many of these victims received an inadequate financial settlement through "Towards Healing".
Will these short-changed victims become able to have their old "Towards Healing" settlements reviewed? On 28 March 2014, Pell was quoted as saying that the Melbourne archdiocese, at least, would consider being more generous to Melbourne victims, including having a review of previous Melbourne settlements. But will this be inscribed in government legislation?
And what about all the thirty or so other dioceses in Australia?
Anyway, Pell is no longer involved in Australian church affairs, as he is taking up him new job in Rome being in charge of the Vatican's finances.
So, was Pell's reported comment merely another crisis-management strategy?
Broken Rites says: Stay tuned and watch this space.
Cardinal George Pell lost the title of ‘‘His Eminence’’ from the Royal Commission website after a church-abuse victim from the Newcastle region in New South Wales, Peter Gogarty, complained that this title was offensive to all church-victims.
Mr Gogarty complained to the Royal Commission after Cardinal Pell appeared on a witness list on the website as ‘‘His Eminence Cardinal George Pell’’ before his appearance on 24 March 2014 to answer questions about Sydney Archdiocese’s handling of a complaint by church-victim John Ellis.
Mr Gogarty, who was sexually abused by Maitland-Newcastle priest Jim Fletcher, told journalist Joanne McCarthy of the Newcastle Herald newspaper that the words ‘‘His Eminence’’ on the commission’s website sent ‘‘an entirely unintended but very unfortunate message’’.
He said George Pell should be given the title Cardinal, and no more.
‘‘That’s what got us into this mess, this deference to church men simply because they are church men, and despite what they’ve done and failed to do.’’
Mr Gogarty said it was to the Royal Commission’s credit that it acted quickly.