ROYAL COMMISSION INTO INSTITUTIONAL RESPONSES
TO CHILD SEXUAL ABUSE
AT SYDNEY
SECOND PUBLIC HEARING INTO TOWARDS HEALING
COMPLAINT BY JOHN ELLIS
CASE STUDY 8
OPENING ADDRESS BY SENIOR COUNSEL ASSISTING
INTRODUCTION
1.
This is the second case study concerning the Catholic Church’s Towards
Healing protocol. As the Royal Commission will be aware, the Towards
Healing protocol was an initiative of the Australian Catholic Bishops’
Conference and the Australian Conference of Leaders of Religious
Institutes to respond to complaints of abuse against Church personnel.
2.
The first case study, heard in December last year and January this year,
considered the experience of four people who engaged with the
Towards Healing process in Queensland.
3.
The present case study is concerned with the experience of John Ellis,
who was sexually abused when he was aged between 13 and 17 years
old by a Catholic priest, Father Aidan Duggan, in the Archdiocese of
Sydney between 1974 and 1979.
4.
This case study will examine two dimensions of the institutional
response to the sexual abuse of Mr Ellis.
5.
First, the case study will consider the response of the Catholic Church’s
Professional Standards Office (NSW/ACT) and the Archdiocese of
Sydney to the Towards Healing complaint lodged by Mr Ellis in 2002.
This process was attended by significant delay as well as failures to
comply with the procedures provided for in the Towards Healing
protocol. The various failures were the subject of criticism and
recommendations by two subsequent reviews of the process.
6.
The second aspect of the case study will consider the response of the
Archdiocese of Sydney and Cardinal Pell to legal proceedings brought
by Mr Ellis after a Towards Healing facilitation on 20 July 2004 that left
the complaint unresolved.
TOWARDS HEALING PROTOCOL
7.
As the Royal Commission is now aware from the first Towards Healing
case study, the stated purpose of Towards Healing is to respond to
complaints of abuse against Catholic Church personnel in circumstances
where child sexual abuse is considered to be both immoral and
criminal. Towards Healing requires a compassionate response and that
assistance be given as is demanded by justice and compassion.
Assistance might include the payment of counselling costs and financial
assistance or reparation, even though the Church may not be legally
liable. In addition, pastoral care is to be provided including spiritual
advice and support.
8.
The version of the Towards Healing protocol that was published which
should have been followed in 2000 and revised in 2003 provided for a
number of distinct steps which should have been followed in the
process for dealing with complaints of abuse. The key steps were:
a.
Where there is a significant dispute about the facts or more
information is required the matter must be investigated in
accordance with procedures provided for by the protocol. This
process is known as “assessment”.
b.
The Director of Professional Standards must appoint two
assessors, unless in the circumstances one assessor is
considered sufficient. The assessor or assessors must interview
the complainant.
c.
If the accused is available and willing to be spoken with, the
assessor or assessors must interview the accused. If the accused
2
does not wish to co-operate with the assessment, the
assessment must still proceed and the assessors must
endeavour to reach a conclusion concerning the truth of the
matter so that the Church authority can make an appropriate
response to the complaint.
d.
In the event that the Church authority is satisfied of the truth of
the complaint, it must respond to the needs of the victim in such
ways as are demanded by justice and compassion. As at 2002,
the protocol provided for responses to include the provision of
an apology on behalf of the Church, the provision of counselling
services or the payment of counselling costs and financial
assistance or reparation.
e.
The 2003 version of Towards Healing introduced a Consultative
Panel which was to be set up by Church authorities to advise
them on outcomes both in respect of the victim and the
accused. The protocol provided that the advice sought in this
regard was mandatory.
9.
As indicated during the first Towards Healing case study, the seven
principles underpinning the protocol are truth, humility, healing for
victims, assistance to other persons affected, a just response to those
who are accused, an effective response to those who are guilty of abuse
and prevention of abuse.
10.
Unlike the Melbourne Response, the Towards Healing process did not
set out any caps on the amount of financial reparation available to
victims of sexual abuse.
THE ABUSE
11.
It is anticipated that the evidence will reveal the following:
12.
From about 1974 to 1979, Mr Ellis was sexually abused by Father
Duggan while Mr Ellis was an altar boy and Father Duggan was an
Assistant Priest, at the Christ the King Catholic Church at Bass Hill. Mr
3
Ellis was then aged between 13 and 17 years old and Father Duggan was
aged between 54 and 59 years old.
13.
During the period that the abuse took place, Father Duggan was a
Benedictine monk on leave of absence from the Abbey of St Benedict of
Fort Augustus in Scotland. Father Duggan had moved from Australia to
Scotland in 1942. He was ordained as a priest in 1950. Father Duggan’s
leave of absence from the Fort Augustus Abbey continued until he was
incardinated into the Archdiocese of Sydney in 1990.
14.
The sexual abuse commenced with Father Duggan touching, hugging
and fondling Mr Ellis. The physical contact graduated to kissing,
masturbation, oral sex and anal penetration. The sexual abuse occurred
regularly and frequently in Father Duggan’s bedroom and sitting room
at the presbytery of the Christ the King Catholic Church. On at least two
occasions, the sexual abuse also occurred away from the presbytery
when Father Duggan was on vacation.
15.
A psychiatrist who saw Mr Ellis gave the following opinion:
“It is important to recognise that on the balance of probabilities Mr
Ellis had been an intelligent, sensitive and impressionable adolescent
at about the time when Father Duggan began to make sexual contact
with him. [He] was an altar boy in the local parish and Father Duggan
was perceived as a rather exotic priest. There was a substantial
difference in power between the parties, this setting the scene for the
damaging actions of the priest.
Also of importance is the careful planning undertaken by Father
Duggan, initially to establish after school contact with Mr Ellis and in
the progressive steps to achieve substantive sexual contact including
anal penetration...”
4
DEVELOPMENTS AFTER THE ABUSE
TOWARDS HEALING COMPLAINT
AND
BEFORE
THE
16.
Upon matriculating from high school at the end of 1978, Mr Ellis
intended to become a priest and undertook studies to that end in 1979.
17.
After that year he did not pursue those studies and instead ultimately
commenced a degree in nursing. While doing that degree, he met his
first wife.
18.
In 1984, Mr Ellis qualified as a Registered Nurse and began working at
the Western Sydney Developmental Disability Service. In 1987 and
1988, Mr Ellis and his first wife had two children.
19.
Meanwhile, Father Duggan was transferred from Bass Hill Parish,
initially to Gymea Parish then to St Mary’s Cathedral and later to
Camperdown Parish.
20.
From the mid-1980s, Mr Ellis commenced studying economics and law,
graduating in 1990 and 1992. He then commenced working as a
solicitor. At about the same time, his relationship with his first wife
broke down. The couple subsequently divorced in January 1994.
21.
In 1994, Father Duggan suffered a stroke. In 1995, after a short period
spent living and convalescing at the St Mary’s Cathedral presbytery,
Father Duggan was appointed as Chaplain to the Novitiate of the Little
Sisters of the Poor at Randwick.
22.
In about March 1995, Mr Ellis participated in a number of “Beginning
Experience” encounter weekends for people who had been divorced,
separated or widowed. While sharing a number of aspects of his own
life experience with other course participants, he recognised that he
had been the victim of child sexual abuse by Father Duggan. Mr Ellis felt
strongly that Father Duggan’s conduct towards him had been wrong.
He felt deeply ashamed and embarrassed about the abuse. He was not
then able to explore the impact of the abuse. That process began a
number of years later, in about 2001.
5
23.
By July 1999, Mr Ellis had been promoted to the position of salaried
partner in a major law firm, working primarily in the area of
construction contracts.
24.
In July 2000, Mr Ellis married his current wife. Within several months,
he began to experience emotional difficulties and sought counselling.
On about 5 August 2001, he disclosed to his counsellor for the first time
that he had suffered abuse as a teenager at the hands of Father Duggan.
In about September 2001, he disclosed the abuse to another counsellor.
Mr Ellis found it very difficult to talk about the abuse. The memories
were painful and frightening, and they came with strong physical
memories of the abuse. The memories made him feel ashamed and
sick. His emotional well-being began to decline.
TOWARDS HEALING COMPLAINT
25.
In about May 2002, Mr Ellis telephoned a number that appeared on a
Towards Healing brochure at his local parish Church. He spoke with a
man whom he believes was John Davoren, Director of the Professional
Standards Office (NSW/ACT). Mr Ellis told Mr Davoren that he had been
sexually abused by a Catholic priest when he was a teenager. According
to Mr Ellis, Mr Davoren advised him to think about whether to lodge a
Towards Healing complaint.
26.
On 3 June 2002, Mr Ellis completed a “Formal Statement of Complaint”
which indicated that he expected the following outcomes from the
Towards Healing process:
a. “Father Duggan is not in active ministry.
b. I will receive from the Church a personal acknowledgement of the
wrong done to me.
c. Father Duggan will be confronted with this complaint and will
acknowledge the wrong done.
d. The Church will provide assistance and support in addressing the
effects of the abuse.”
6
27.
On 5 June 2002, Mr Davoren wrote to Archbishop Pell (as he then was)
enclosing a copy of Mr Ellis’ complaint. Six weeks later, Mr Ellis was told
by Mr Davoren that “Father Duggan’s mental state has deteriorated
seriously”, “[h]is memory is variable, he cannot make a mature decision
and has no capacity to understand the full implications of a decision”.
Mr Davoren’s letter then stated:
“The next step is usually to appoint an assessor to interview both
parties. I would like to discuss with you what we might do now that
it appears to be pointless to have … Father Duggan interviewed.”
28.
In late August or early September 2002, Bishop David Cremin, who was
then an Auxiliary Bishop of the Archdiocese of Sydney, met with Father
Duggan at the nursing home and was informed by nursing staff that
Father Duggan was suffering from senile dementia.
29.
On 13 September 2002, Mr Davoren emailed Mr Ellis Bishop Cremin’s
observations. Mr Davoren’s email continued:
“John, as you expressed an interest in a meeting with AD [Father
Duggan], I must advise that he will not be able to respond in any way
that you are likely to find satisfactory. I am not sure what should be
our next step.”
30.
Mr Ellis will give evidence that he had not sought a meeting with Father
Duggan.
31.
In October 2002, Michael Salmon was engaged by Mr Davoren to help
“facilitate” in relation to Mr Ellis’ complaint. Mr Salmon is the current
Director of the Professional Standards Office (NSW/ACT).
32.
On 10 December 2002, Mr Davoren wrote to Archbishop Pell stating:
“It is now clear the facts of this case can never be satisfactorily
clarified. It does not appear that Mr Ellis can corroborate his version
of events in such a way that it would be possible to conclude on the
balance of probabilities that the situation that he described did in fact
take place. …
7
One plan that has been discussed as the next step was a meeting
under supervision with Father Duggan as a pastoral response that
might be of assistance to Mr Ellis. There are some potential problems
with this approach, and I recommend that such a meeting not take
place. Rather, I suggest that if Mr Ellis wishes to meet with Father
Duggan he seek to arrange that through the hospital, and that it be
left to the hospital to decide whether or not and how such a visit
should be arranged.
I suggest that if you agree with this advice, it would be better if this
message were communicated to Mr Ellis in a letter from you. I attach
a draft that you might like to consider.”
33.
On 23 December 2002, Archbishop Pell wrote to Mr Ellis in different
terms from the draft prepared by Mr Davoren.
34.
For example, whereas Mr Davoren’s draft said “as you are aware this is
not to suggest you are not believed”, Archbishop Pell’s letter omitted
those words. While Mr Davoren regretted any hurt that Mr Ellis had
experienced, Archbishop Pell’s letter regretted only that a clear
resolution of the matter was not possible.
35.
Mr Ellis received the Archbishop’s letter on Christmas Eve 2002. The
timing and content caused him considerable emotional distress. Mr
Ellis construed the letter as “a clear statement that the Archbishop
considered the matter to be at an end, despite there having been no
formal assessment of my complaint”.
36.
Mr Ellis continued to correspond with Mr Davoren and others in the
Professional Standards Office and, among other matters, in January
2003 advised that his mother had recently visited Father Duggan and he
appeared responsive and aware of what was happening around him.
Mr Davoren then suggested that a professional assessment of Father
Duggan’s mental state was required. Archbishop Pell endorsed that
approach.
37.
On 21 March 2003, Mr Ellis wrote to Mr Davoren expressing
dissatisfaction with the process, which had begun some nine months
8
prior. He referred to the Towards Healing protocol, which he had just
obtained from the internet, and requested that the procedure provided
for by the protocol be followed, in particular:
a. That two assessors be appointed;
b. That appropriate steps be taken to interview Father Duggan or, in
the alternative, that the assessor obtain other relevant
information;
c. That clarification be provided in relation to the role being
performed by Mr Salmon;
d. That a facilitator be appointed at the appropriate time and after
consultation with Mr Ellis;
e. That the process be conducted from here with justice and
compassion.
38.
On 28 March 2003, Mr Davoren wrote to Dr Casey, Private Secretary to
the Archbishop and Dominic Cudmore, Assistant to the Chancellor
referring to Mr Ellis’ email. Mr Davoren’s email stated:
“… Obviously Mr Ellis does not appreciate or does not want to
appreciate that the case cannot proceed without Father Duggan
making an admission, and that as far as the Archdiocese and this
office is concerned there is nowhere for this ‘case’ to go. His
comments about the Towards Healing process are, I suggest
disingenuous; it would seem that the only logical reason for pursuing
this fairly aggressive line is to establish a case for compensation. An
appointment of an assessor without clarifying Father Duggan’s ability
to plead is both unjust and likely to render null and void any
conclusions that might be drawn from such as assessment; it is not
the role of assessors to assess the mental fitness of an accused.”
39.
Mr Davoren will be asked to explain how this statement could be
consistent with the protocol then in place.
9
40.
On 2 May 2003, Mr Salmon replaced Mr Davoren as Director of the
Professional Standards Office and from then on the process more
closely followed the protocol.
41.
Mr Salmon made inquiries in relation to the status of Father Duggan’s
mental health and a couple of weeks later, Dr Robert Burns certified
that Father Duggan was suffering from a combination of dementia and
Alzheimer’s disease and was incapable of managing his own affairs. A
contact person was appointed and the Archdiocese engaged Michael
Eccleston to carry out an assessment of Mr Ellis’ complaint.
42.
On 2 July 2003, Mr Eccleston interviewed Mr Ellis and was provided with
a detailed account of the abuse by Father Duggan and a number of
documents which supported his contact with Father Duggan. These
included a reference written by Father Duggan for Mr Ellis and an
inscription from the front of a Bible given to Mr Ellis when he began as
a postulante at the Marist Fathers Novitiate. Mr Eccleston obtained
reports from Mr Ellis’ two counsellors. The counsellors’ reports
expressed opinions that Mr Ellis had been affected by Father Duggan’s
sexual abuse.
43.
On 24 November 2003, Mr Eccleston submitted his assessment report
to the Archdiocese. He found that based on the available evidence and
the balance of probabilities:
a. The allegations of improper sexual conduct by Father Duggan
against Mr Ellis when he was an altar boy at Christ the King Church,
Bass Hill, from age 14 to 17 years and continuing on into his young
adult years more likely than not occurred;
b. The impact of this sexual conduct has more likely than not
adversely effected Mr Ellis with regard to his mental, emotional
and physical health.
44.
In the first week of April 2004, Mr Ellis and his wife, Nicola, attended a
meeting with the appointed facilitator, Raymond Brazil. The meeting
was intended to prepare for the later facilitation. The question of
10
financial reparation was discussed. Mr Ellis will give evidence that Mr
Brazil said words to the effect:
“Any financial gesture would be in the form of a gratuity, as a gesture
of atonement and to provide assistance with dealing with the effects
of the abuse. Financial gestures are not intended as compensation or
damages in the legal sense. There is a cap of $50,000 on the amount
that can be paid for a financial gesture. Only the most serious cases
receive the maximum amount. It is desirable for there to be
discussions about the financial gesture before the facilitation.”
45.
Mr Ellis was asked by Mr Brazil to indicate how much would be
appropriate as a financial gesture. After taking into account the costs
of psychological therapy and additional rental costs associated with a
period of separation between he and Nicola, Mr Ellis calculated an
amount of between $125,000 and $160,000. Mindful of the cap and
that the effects of the abuse were on each of them, he asked for
$100,000, based on the cap amount for each of them.
46.
In late April 2004, a meeting took place attended by Mr Salmon, Mr
Brazil and Monsignor Rayner, Chancellor of the Archdiocese of Sydney.
The group discussed financial reparation for Mr Ellis. The evidence is
likely to show that it was concluded that Mr Ellis should be offered
$25,000. Just how this was arrived at will be the subject of evidence.
47.
At around that time, Mr Ellis was requested to resign from his position
as a partner with Baker & McKenzie Lawyers. This followed a report
which was critical of Mr Ellis’ interpersonal skills. The psychiatrist
referred to earlier opined that it was probable that, in the absence of
the sexual abuse, Mr Ellis would have been able to achieve far better
relationships including with his work colleagues.
48.
On 20 May 2004, Mr Brazil spoke to Mr Ellis and informed him that he
had been authorised to make a gesture of $25,000. Mr Ellis told Mr
Brazil that since their meeting in early April 2004, he had become aware
that his employment was to be terminated.
11
49.
On 31 May 2004, Mr Ellis formally resigned from his position as a
partner with Baker & McKenzie Lawyers. A couple of weeks later
Monsignor Rayner told Mr Ellis that the offer of a financial gesture had
been increased to $30,000.
50.
In early July 2004, two years after making his complaint and for the first
time, Mr Ellis was told by Mr Brazil that the Archdiocese would require
a deed of release to be signed as a condition of the payment of any
financial gesture.
51.
Mr Brazil then sent Mr Ellis a form of deed of release which Mr Ellis did
not find appropriate to the Towards Healing process.
52.
Mr Ellis said to Monsignor Rayner, “this means that I will have no option
but to take legal advice on my potential alternative remedies prior to
Tuesday’s [facilitation] meeting, in accordance with the confirmation
and acknowledgement in Clause 13 of the proposed form of deed”. He
was referring to a clause in the Deed which required him to confirm and
acknowledge that he had obtained his own legal advice before signing
the Deed. Mr Ellis expressed disappointment about being placed in
such a position.
53.
On the same day, he spoke with and obtained legal advice from his
solicitor, David Begg, in relation to a potential claim for damages.
54.
On 20 July 2004, John and Nicola Ellis attended the facilitation. The
offer of $30,000 was formally made and it was stated that a deed of
release was required. They were told that once a person accepts a
financial gesture, a meeting is arranged with the Cardinal so that an
apology can be given.
55.
Monsignor Rayner represented the Archdiocese at the facilitation. He
said he had not doubted Mr Ellis’ account. He told them that he was
prepared to consider the appointment of a spiritual director for Mr Ellis,
which Mr Ellis had earlier requested, even if no deed of release was
signed.
56.
Mr Ellis informed the meeting that he had obtained legal advice that he
should not sign the deed of release and that he may have a substantial
12
claim. At the conclusion of the facilitation meeting, his complaint
remained unresolved. Detailed notes were taken by the facilitator and
Mrs Ellis of what was said at the facilitation.
57.
On 28 July 2004, Mr Ellis’ solicitor, Mr Begg, wrote to Monsignor Rayner
on a without prejudice basis outlining the basis of a proposed claim in
damages by Mr Ellis against the Archdiocese. Mr Begg invited
Monsignor Rayner to consider a meeting for the purpose of reaching a
settlement of the matter without the need for litigation. Mr Begg’s
letter stated:
“Subject to a satisfactory settlement being reached which properly
reflects the loss and damage he [Mr Ellis] has suffered and the
anticipated future costs he is likely to incur, our client will be prepared
to sign a deed largely in the form of the one provided to him earlier.”
58.
Monsignor Rayner passed Mr Begg’s letter on to the Archdiocese’s
insurers, Catholic Church Insurance who in turn sent it to their lawyers,
Monahan + Rowell Lawyers in Melbourne.
59.
Monsignor Rayner told Mr Ellis that the Cardinal would not be meeting
with him as part of the Towards Healing process because of the legal
action he had taken and no Spiritual Director for Mr Ellis was appointed.
60.
In the meantime, Mr Ellis had written to Mr Salmon and requested a
review of the Towards Healing process.
61.
On 15 December 2004, the National Committee for Professional
Standards engaged David Landa to conduct the review of the process.
Mr Landa, who had previously been NSW Ombudsman, reported on 10
January 2005 and found that:
a.
There appears to have been a failure to ‘case manage’ the
complaint in that there was a failure to appoint a Contact Person
and a failure to provide the Complainant with the Towards
Healing protocol at an appropriate or timely date. These two
failures contributed to Mr Ellis’ confusion and probably to his
mistrust of the proceedings. The assessment process was also
13
protracted. An appointment was not made for 12 months, and
the Assessor then took a further 5 months to conclude his
function. This was a further instance of the need to ‘case
manage’ complaints.
b.
The issue of Father Duggan’s lucidity was an issue that was
poorly managed. Mr Ellis at no time accepted that Father
Duggan was totally incapacitated. With that issue so contested,
the ultimate solution adopted was one that clearly should have
been implemented almost at the outset. This failure, coupled
with the lack of a Contact Person, with whom the issue would
have been better addressed, compounded the Complainant’s
mistrust.
62.
On 4 March 2005, the National Committee for Professional Standards
commissioned an Interim National Review Panel to provide a report in
relation to Mr Ellis’ Towards Healing complaint and consider the review
of the process and recommendations made by Mr Landa.
63.
On 10 March 2005, the Interim National Review Panel found that:
a.
There was a manifest absence of transparency through the
failure to refer the matter to a Contact Person and the
consequent absence of an explanation to Mr Ellis of the
processes for addressing the complaint. There was also an
absence of justice for Mr Ellis through the extensive delays in
undertaking the required process.
b.
A medical assessment of Father Duggan should have occurred
once it became clear that his mental state was impaired, which,
in this case should have been readily apparent shortly after the
receipt of the complaint.
c.
It was necessary for the review by Mr Landa to consider whether
the outcome was vitiated by the failures of process. Mr Landa
was justified in finding that the earlier failures of processes
created in Mr Ellis a mistrust of the process of the facilitation. In
14
these circumstances the Panel could not be confident that the
facilitation, while having had an appropriate process, was not
vitiated by the earlier failures of process.
d.
64.
The Panel agreed with the recommendation by Mr Landa that
the complaint should have been case managed.
The Interim National Review
recommendations including that:
Panel
made
a
number
a.
The representative of the Church authority with responsibility
for handling the complaint should apologise to the Complainant
for its delay in the implementation of the process.
b.
The Church authority should invite Mr Ellis to participate in a
facilitation with a facilitator other than Mr Brazil.
c.
The Director of Professional Standards should apologise to Mr
Ellis for his delay in the implementation of the process and
failure to refer the matter to a Contact Person.
of
65.
On 23 March 2005, Corrs Chambers Westgarth, by then the solicitors
for the Archdiocese, advised Dr Casey, Private Secretary to Cardinal Pell,
that the Archdiocese should not implement the recommendations by
the Interim National Review Panel, that is it should not apologise to Mr
Ellis or re-engage with him in the Towards Healing process while the
litigation was ongoing. That advice was followed.
66.
On 25 May 2005, Father John Usher (as he then was) replaced
Monsignor Rayner as Chancellor of the Archdiocese of Sydney.
LITIGATION
67.
In August 2004, Mr Ellis commenced legal action against Cardinal Pell as
the Archbishop of the Catholic Archdiocese of Sydney, the Trustees of
the Roman Catholic Church for the Archdiocese of Sydney and Father
Duggan. The claim related to the impacts of the abuse by Father
Duggan.
15
68.
Mr Ellis was advised and told the lawyers for the Church that he could
not defer legal action any longer because of the Limitation Act 1969
(NSW), and that the time limit for requesting an extension of time could
not itself be extended. His preference remained to reach a negotiated
resolution of the claim.
69.
What this means is that Mr Ellis had three years after becoming aware
of the nature and extent of the injury caused by Father Duggan to
commence legal action and he needed the Court’s agreement to do so.
70.
Soon after the proceedings were commenced, Father Duggan died and
Mr Ellis decided not to pursue the claim against him. The result of this
was that the proceedings remained on foot against Cardinal Pell and the
Church Trustees only. These defendants, who may loosely be described
as the “Archdiocese”, were initially represented by Patrick Monahan of
Monahan + Rowell.
71.
The matter was quickly transferred to Corrs Chambers Westgarth at the
direction of Cardinal Pell. Cardinal Pell has provided the Royal
Commission with a statement dated 24 February 2014 in which he
states that he appointed Corrs because he thought Mr Ellis was seeking
substantial damages and he was impressed by Corrs’ efficiency when
they acted for the Archdiocese of Melbourne. The Cardinal will give
evidence that he was, at this time, unaware that Mr Ellis had in fact
sought $100,000, a matter that was known to his Chancellor.
72.
At the outset of the proceedings, Mr Ellis’ solicitor proposed a
mediation to Monahan + Rowell. Mr Monahan advised the Archdiocese
that he would ordinarily “unhesitatingly and strongly recommend”
pursuing this option. However, on advice from Corrs, the Archdiocese
rejected Mr Ellis’ attempt to mediate on the basis that it was “no longer
a viable option” because proceedings had been commenced. The
hearing will explore who was responsible for these instructions.
73.
With his proposal of mediation rejected, Mr Ellis proceeded with his
action against the Archdiocese. As a preliminary matter, he filed a
notice of motion seeking to extend the limitation period for his claim in
accordance with the discretion afforded by the Limitation Act 1969. It
was this preliminary application, rather than Mr Ellis’ substantive claim
16
for damages, which formed the basis of the litigation the subject of his
case study.
74.
In December 2004, the Archdiocese rejected a settlement attempt by
Mr Ellis in the form of an offer of compromise of $750,000 and no
counter-offer was put forward.
75.
The manner in which the Archdiocese defended Mr Ellis’ motion was
intended to be and was vigorous. The Cardinal gave instructions to
resist the proceedings.
76.
Despite being aware of the assessment made during Towards Healing
that on the balance of probabilities Mr Ellis had been abused by Father
Duggan, and having available to it the notes taken by the facilitator
which confirmed that the representative of the Archdiocese, the
Chancellor, had not doubted Mr Ellis’ account, for the purposes of the
litigation the Archdiocese disputed that the abuse had occurred. At the
time, the Cardinal concurred with that approach, however, in his
statement to the Royal Commission, he states that he is now troubled
by that approach.
77.
The Archdiocese continued to maintain this non-admission even after
another victim came forward to give evidence that he too had been
abused by Father Duggan in 1980 and had reported this to a senior
member of the Sydney Archdiocese in 1983. Other information
supporting Mr Ellis’ account came to light within the Archdiocese
although the lawyers for the Archdiocese decided not to elicit evidence
of it.
78.
In defending the motion, the Archdiocese relied on the argument that
neither Cardinal Pell nor the Trustees was the proper defendant in this
claim. The argument was that as the Cardinal was not the Archbishop
at the time and the Trustees had nothing to do with appointing and
supervising priests, they were not legally responsible.
79.
The possibility of relying on this argument had been considered by the
Archdiocese’s lawyers almost immediately after the proceedings were
commenced. However, they decided not to inform Mr Ellis that the
Archdiocese intended to put forward this defence until shortly before
17
the hearing before Patten AJ in the Supreme Court many months later.
The implication of this was that if the defence was successful it would
result in the failure of Mr Ellis’ substantive claim for damages as the
Cardinal and the Trustees were the only remaining defendants.
80.
Again, notwithstanding the assessment made during Towards Healing
that on the balance of probabilities Mr Ellis had been abused by Father
Duggan, and having available to it the notes taken by the facilitator
which confirmed that the Chancellor had not doubted Mr Ellis’ account,
the Archdiocese’s lawyers adopted the approach of calling into question
Mr Ellis’ character and credit in preparing for and conducting the
hearing.
81.
They subpoenaed his former employer, approached his former
colleagues and ex-wife for statements, issued a notice to produce
documents relating to his divorce and custody dispute in the Family
Court and extensively cross-examined him during the hearing. That
cross examination included challenging him about whether he had been
abused at all.
82.
In December 2005, Catholic Church Insurance wrote to Danny Casey,
the Business Manager for the Archdiocese and said “It appears to us
that Corrs are running these matters in a manner which is completely
different to that currently adopted by CCI and its panel solicitors in this
area of our business, which have been developed over many years. In
our assessment, the legal costs run up by Corrs are a multiple of the fees
which we would ordinarily expect to pay for similar matters… We are
also concerned about the large level of costs incurred in some matters
before a reasonable attempt has been made to investigate and/or
consider the possibility of settlement. We would prefer to see some costs
being devoted to reasonable settlement payments with claimants,
rather than legal fees”.
83.
In March 2006, Patten AJ dismissed the action against Cardinal Pell on
the basis that he was not the proper defendant but extended the
limitation period for the causes of action pleaded against the Trustees
on the basis that there was an arguable case against them. Again Mr
Ellis proposed mediation and again it was refused.
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84.
Rather than proceeding with the substantive claim at this point, the
Archdiocese appealed Patten AJ’s decision in relation to the extension
of the limitation period. Mr Ellis subsequently cross-appealed in
relation to Patten AJ’s findings regarding the liability of Cardinal Pell. In
May 2007, the Court of Appeal upheld the Trustees’ appeal on the basis
that the Trustees were not liable for the claim, and dismissed Mr Ellis’
cross-appeal.
85.
Mr Ellis sought special leave to appeal to the High Court but this
application was refused.
86.
The result of the Archdiocese’s vigorous defence of Mr Ellis’ motion to
extend the limitation period was that he was denied the opportunity to
agitate his substantive claim for damages as it was found that neither
Cardinal Pell nor the Trustees were proper defendants in the action.
The impact of this decision was, in effect, to insulate the Archdiocese
from liability in circumstances such as these. That is where the priest
who committed the abuse was dead as was the Archbishop or Bishop
who held that position at the time of the abuse.
87.
Cardinal Pell’s statement to the Royal Commission states that on
reflection several steps taken in the litigation cause him some concern.
They include maintaining the non-admission of the allegation of abuse
in light of the new material including that of a previous complaint and
the lengthy cross examination of Mr Ellis.
88.
In his statement to the Royal Commission, the Cardinal says “Whatever
position was taken by the lawyers during the litigation, or by lawyers or
individuals within the Archdiocese following the litigation, my own view
is that the Church in Australia should be able to be sued in cases of this
kind”.
COSTS
89.
The approach adopted by the Archdiocese to the litigation was matched
by the approach taken towards recovering costs. After the first instance
decision was handed down, in June 2006 Mr Ellis’ solicitors were
informed by the Archdiocese’s solicitors that it was anticipated that
Cardinal Pell’s costs would be in excess of $100,000.
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90.
Similarly, a year later after the Court of Appeal’s decision was handed
down, the Archdiocese’s solicitors informed Mr Ellis that their costs
were likely to be up to $550,000 after assessment.
91.
An offer was made to forgo these costs if Mr Ellis agreed not to apply
for special leave to appeal to the High Court but it was made clear to Mr
Ellis that there would then be no possibility of a monetary settlement.
92.
The Archdiocese instructed its solicitors to seek financial information
from Mr Ellis after his application for special leave to appeal was
refused. It continued to adopt this strategy even after being advised by
Mr Ellis’ solicitor that his health had deteriorated and that there were
prospects of self-harm if the costs award was pursued. After seeking
and receiving evidence of Mr Ellis’ medical condition, the Archdiocese
instructed their solicitors to issue a notice of examination to Mr Ellis
which they did in May 2008. This required him to provide extensive
information about his financial affairs.
93.
The manner in which this litigation was conducted caused harm and
suffering to Mr Ellis. Concern for Mr Ellis’ well-being was not apparent
at the time of the litigation from either the Archdiocese or Cardinal
Pell’s chosen solicitors.
94.
While the Chancellor is expected to give evidence that he did not ever
intend that the costs would be recovered from Mr Ellis, three years
passed during which correspondence was exchanged by lawyers
consistent with Mr Ellis being required, at some stage, to pay the costs
before Mr Ellis was informed that he would not be required to pay the
costs.
95.
The pursuit by Corrs of the Archdiocese’s costs against Mr Ellis was
causing him so much distress that Nicola Ellis intervened by writing to
Monsignor Usher, whom she knew, requesting a meeting regarding the
claim for costs. She stated that she and her husband did not have the
financial capacity to pay the costs of Cardinal Pell and the Trustees. She
also advised that her husband was in a “fragile psychological state”.
96.
A short time later, Nicola Ellis met with Monsignor Usher. As a result,
Monsignor Usher agreed to meet Mr Ellis’ out-of-pocket expenses for
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counselling. From August 2008 to October 2011, the Ellis’ attended a
series of pastoral meetings with Monsignor Usher.
97.
On 18 February 2009, the Ellis’ met with Cardinal Pell and Monsignor
Usher. It is anticipated that the evidence will reveal that Cardinal Pell
stated that he had not been aware that, prior to the facilitation, Mr Ellis
had nominated an amount of $100,000 for an ex-gratia payment.
98.
On 11 March and on 6 August 2009, Monsignor Usher wrote to Mr Ellis
recording Cardinal Pell’s acknowledgment that mistakes had been made
and that Cardinal Pell was committed to ensuring that they were not
repeated. Monsignor Usher stated that Cardinal Pell had believed that
Mr Ellis’ legal claim was for many millions of dollars.
99.
Following this correspondence to Mr Ellis, Monsignor Usher agreed to
meet costs incurred by the Ellis’ for an overseas holiday as well as house
renovations. In October 2012, the Archdiocese ceased meeting any
further costs with the exception of those related to counselling. It is
expected that the evidence will show that from August 2008 to October
2012, the total amount paid by the Archdiocese was $568,000. The
legal costs not recovered by the Archdiocese against Mr Ellis were about
$800,000.
100.
Taking into account all the legal costs, that is not only those which were
recoverable against Mr Ellis, the Archdiocese or its insurers spent in the
vicinity of $1.5 million in defending its position against Mr Ellis and in
the payments it ultimately made to him. The insurers paid about
$740,000 of this.
DATA
101.
The data available to the Royal Commission indicate that 204 claims in
relation to child sexual abuse have been received by the Sydney
Archdiocese since Cardinal Pell’s appointment as Archbishop on 26
March 2001. These claims have been brought through Towards Healing,
civil process or by other means. Almost all claims concern conduct
which pre-dates Cardinal Pell’s appointment.
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102.
There are 55 ordained priests who are the subject of one or more of
these claims against the Sydney Archdiocese. The earliest incident of
child sexual abuse detailed in these claims regarding an ordained priest
working within the Sydney Archdiocese is 1952. The Archdiocese was
unable to tell us the number of ordained priests who have held an
appointment in the Sydney Archdiocese since 1952.
103.
Just under $8 million has been paid in relation to claims by the
Archdiocese or its insurer in relation to child sexual assault since
Cardinal Pell’s appointment in March 2001. The highest amount of
reparation paid by the Sydney Archdiocese in a Towards Healing
process was $795,000.
PURPOSE OF CASE STUDY
104.
The case study raises important questions about the purpose, operation
and effect of the Towards Healing process and its interaction with legal
proceedings. It will explore why the pastoral elements of Towards
Healing ceased on legal proceedings being commenced, including the
appointment of a spiritual advisor to Mr Ellis. The instructions given by
the Church authority during those legal proceedings will be the subject
of evidence.
105.
It will explore why the stated aims of providing a ‘just and
compassionate’ response to victims of child sexual abuse at the hands
of Catholic clerics only applied if complainants chose Towards Healing,
an alternative to litigation, which had a capped amount payable which
was not disclosed in the written material and contained a requirement
that payment must be accompanied by signing a deed waiving all rights
to compensation.
106.
It will explore the issues of legal liability including vicarious liability of
entities associated with the Catholic Church for the sexual assault of
children by clerics.
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WITNESSES
107.
It is anticipated that 9 witnesses will be called to give evidence, namely:
No.
Name
Role / Position
1.
John Ellis
Victim of child sexual abuse
2.
John Davoren
Director, Professional Standards
(NSW/ACT), 1997 – May 2003
Office
3.
Michael Salmon
Director, Professional Standards
(NSW/ACT), since May 2003
Office
4.
Raymond Brazil
Towards Healing Facilitator
5.
Monsignor
Rayner
6.
Dr Michael Casey
Private Secretary to Cardinal George Pell
7.
Danny Casey
Business Manager, Archdiocese of Sydney,
since February 2003
8.
Monsignor
Usher
9.
Cardinal
Pell
108.
Brian Chancellor, Archdiocese of Sydney, April
2003 – May 2005
John Chancellor, Archdiocese of Sydney, since
May 2005
George Archbishop of Sydney, 2001 – February 2014
It is anticipated that the hearing will run from Monday to Thursday in
the week commencing 10 March 2014 and Monday and Tuesday and if
necessary Thursday and Friday in the week commencing 17 March
2014.
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