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Father of alleged George Pell victim of given green light to sue Catholic Church

The Victorian Court of Appeal has allowed a lawsuit against the Catholic Archdiocese of Melbourne to proceed.

The Victorian Court of Appeal has ruled that the Catholic Church can be sued by the father of a choirboy allegedly sexually abused by Cardinal George Pell, who was acquitted of child sexual assault charges by the High Court in 2020.

The father of one of the alleged victims, referred to under the pseudonym ‘RWQ,’ sought damages, or compensation, for the mental harm and psychiatric shock he suffered as a result of his son overdosing on heroin as a result of the alleged sexual assault and from learning about the alleged sexual assault of his son.

The father brought the case against the Archdiocese of Melbourne, a branch of the Catholic Church, and Cardinal George Pell, and the case has continued despite the death of Cardinal Pell.

Before hearing the original case, RWQ v The Catholic Archdiocese of Melbourne & Ors [2022], Justice McDonald of the Supreme Court of Victoria was required to determine whether the father could legally sue the Archdiocese. The two preliminary hurdles the father had to overcome were whether the Archdiocese could be sued, and whether he, as a ‘secondary victim’ who was not himself the subject of child sexual assault, could recover damages from the church.

The court was asked to consider the application of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic).

McDonald J found in favour of the father in both instances, a conclusion which the Court of Appeal unanimously upheld in The Catholic Archdiocese of Melbourne v RWQ (a pseudonym) [2023].

The Archdiocese sought to rely on an earlier ruling by the New South Wales Court of Appeal, Trustees of the Roman Catholic Church v Ellis & Anor (2007), another case involving Cardinal George Pell, as the Archbishop of the Archdiocese of Sydney, although the child sexual abuse allegations made by John Ellis were directed towards a Reverend of the church, a lower minister.

Ellis sought to sue Archbishop Bell and the Archdiocese for being vicariously liable for the abuse he alleged he suffered. Vicarious liability arises when a person is found liable for something that occurred during the ‘course of their employment,’ and so a case is brought against their employer.

The NSW Court of Appeal ruled that this was not possible, as the Archdiocese was an ‘unincorporated association.’ Under common law, unincorporated associations, or ‘Non-Governmental Organisations,’ which range from churches and charities to political lobbyists, are not legal entities, so they cannot enter into contracts, employ individuals, or own land. Instead, these duties are done by their members, as a trust, on behalf of the church.

As vicarious liability requires an employer-employee relationship, and unincorporated associations cannot have employees, the NSW Court of Appeal ruled in the Catholic Church’s favour.

The Archdiocese of Melbourne sought to raise what has become known as the Ellis defence, preventing them from being held vicariously liable for any alleged actions of Cardinal Pell.

However, Section 4(2) of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) allows for organisations that could ordinarily be sued for child abuse “but for being unincorporated” to be sued, overriding the common law.

Where Parliament uses legislation to change fundamental aspects of common law, principles of statutory interpretation require the language used by Parliament to make it very clear that they intended to override the common law.

The Court of Appeal accepted McDonald J’s construction of Section 4(2). His Honour relied on the phrase that it applied to claims “founded on or arising from child abuse.” He concluded that “founded on” included accusations of child abuse itself, and by attaching “or arising from” to that phrase, Parliament intended to go beyond the definition of “founded on” to include related lawsuits, such as claims for compensation for mental harm.

Section 4(2)(c) requires the Archdiocese to be run by a trust, which it is, just like in Ellis, and so Sections 7 and 8 thus allowing the father to designate the Archdiocese a “proper defendant” for the purpose of the lawsuit.

The second issue was whether the father, as a ‘secondary victim’ of child abuse, as it was his son who was allegedly abused and so is a ‘primary victim,’ can also sue.

Although the Archdiocese argued that Section 1 stated that the purpose of the Act was to help “child abuse plaintiffs,” and so excluded ‘secondary victims,’ the Court of Appeal referred to the start of Section 1, where it said that it was the “main purpose,” not ‘only purpose,’ and that this phrase didn’t appear anywhere else, not even in the definition of ‘child abuse.’

In coming to the conclusion that the father could sue, the Court of Appeal said that the only limitation found in Section 4 was the ‘founded on or arising from’ limitation, and that definition would reasonably include secondary victims, and there is no evidence of any further limitations.

Finally, because the Victorian Parliament clearly wanted to prevent unincorporated associations from relying on the Ellis defence, “there is no sound reason why Parliament would address this issue for one group of plaintiffs (those who suffered abuse), but not others,” referring to secondary victims who were also affected.

Having overcome both hurdles, the father can now continue his lawsuit against the Archdiocese of Melbourne.

The fact that leave to appeal the ruling in Ellis to the High Court was rejected suggests that the High Court was affirming the validity of the common law position. However, this case makes it clear to the other states and territories that it is possible to override Ellis, and hold churches and other unincorporated associations liable for child abuse.

Pell died in January, aged 81.

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