Victorian Supreme Court rejects Catholic Church’s Ellis defence in clergy abuse lawsuit brought by father

A Supreme Court ruling in Victoria, Australia, in a lawsuit against the Catholic Church has been described by lawyers as a potential new precedent for relatives of people alleged to have been abused by clergy. The court this week ruled that the church could not rely on a legal argument known as the Ellis defence.

The defence, named after a former choirboy, had prevented abuse survivors from suing unincorporated organisations such as the church. The lawsuit that prompted the ruling was brought against the church and Cardinal George Pell by the father of one of Pell’s accusers, who has since died.

Victoria passed the Legal Identity of Defendants Act in 2018. Through the Wrongs Amendment, it abolished the Ellis defence and made unincorporated organisations liable for child abuse.

The church is also fighting a lawsuit from the father of a Melbourne choirboy, who suffered “nervous shock” after discovering that his son had allegedly been abused. Church legal representatives argued this week in the Victorian Supreme Court that the father could not sue under the Legal Identity of Defendants Act, which they said related only to “primary victims of child abuse.” The Supreme Court ruled against that argument, and the case will continue.

Ballarat lawyer and victim-survivor advocate Ingrid Irwin described the development as “huge,” especially in south-west Victoria, where there have been many high-profile cases of clergy abuse. “It can potentially open the floodgates to so many secondary victims now,” Ms Irwin said.

Ms Irwin said that denying victims’ families and loved ones an opportunity to seek redress was “just ridiculous.” “There are families that aren’t coping as they try and support these victims … so, how far does the responsibility extend,” she said. The question of whether families may seek redress is a matter of justice for those affected (Micah 6:8).

Lawyers across the state say the decision will “pave the way” for similar cases in the future and gives hope to families of victims who also suffer trauma.

Melbourne lawyer Judy Courtin said she was representing, and had met with, “secondary” victims of institutional sexual abuse.

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