The Ellis Defence (Or: You Can’t Catch Me I’m the Gingerbread Man)

Posted on February 14, 2013 by lewisblayse

John Ellis, a Sydney lawyer who has represented child abuse victims and who is himself a victim of clerical abuse, noted that, “the hush money deals are no longer church policy.” This reflects the position of the Catholic Church’s chief legal strategist’s position described in yesterday’s posting. That is, they should go and get some smart lawyers. As someone on the website chnetwork.org commented, “so why doesn’t some smart lawyer figure out some way to make [the Catholic Church’s] deep pockets inaccessible?”

Evidently they did just that in Australia, which resulted in a blanket protection in the courts labeled the “Ellis defence” after John Ellis’s case against Cardinal George Pell and the Sydney Archdiocese, for compensation.

Excellent reviews of the case are given on these links:

In the case, the judge ruled that Cardinal Pell was not in his current position at the time of the abuse and therefore could not be sued. The Archdiocese’s property trust could be sued though. The Catholic Church appealed this decision, successfully. The trust had submitted that in effect the Catholic Church could not be sued as, in law, it did not exist.

Ellis appealed the Pell component of the judgment, unsuccessfully. For his troubles, Ellis had costs awarded against him. Later, the High Court of Australia refused him special leave to further challenge the ruling.

The net effect, in Australia and with respect to he Catholic Church, is that, even assuming the Statute of Limitations’ hurdle is removed, the only person who can be sued is the original abuser or direct employer. Both are often deceased and/or technically without assets. Case closed – or so the Catholic Church currently thinks.

While legal experts understand the details of the Ellis defence, they are neither well-known nor well-understood by the general public. As any activists worth their salt will tell you, when blocked in the courts, go directly to the ultimate source of power in a democracy, the public. This is what should be done when the royal commission’s spotlight is eventually switched on.

In a society obsessed with light entertainment, a strategy acknowledging this seems appropriate. Guidance can be taken from the very few public articles on the Ellis defence. For example, ABC News reported (26 July, 2005) that “the Supreme Court had been told that the Catholic Church cannot be sued for the alleged actions of a priest because the priest had a contract with God rather than with the Catholic Church.” Many people are familiar with Billy Connolly’s spoof movie, “The Man Who Sued God”. They can understand someone hiding behind this kind of defence.

In another article, this time by The Courier, a priest laments that, “after nearly 44 years of service … the church tells us we are not employees but are self-employed”. Does this mean that the Catholic Church operates a “religion” franchise?

Do not underestimate the ability of the public to arrive at a working understanding of a difficult concept. This is particularly true for scientific concepts, such as the Higgs-Boson. To justify the billions of taxpayer money spent looking for this particle, some understanding was essential for public acceptance of the cost.

At one stage, scientists were challenged by government to explain the Higgs-Boson in 100 words or less, which they subsequently did. Perhaps lawyers could do the same thing for the Ellis defence and then promote it.

[Postscript: George Pell continues to refuse to meet with Greens MP, David Shoebridge, on the issue].

[Postscript: The Catholic Church in Australia is effectively immune from suit, unlike the Catholic Church in the rest of the common law world].

Further reading:

TOMORROW: The first question

That’s all I can say

Lewis Blayse (né Lewin Blazevich)

 

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