Pearls and Irritations

There is a veritable ‘whodunit’ being played out at the Royal Commission into Sex Abuse. The Commission is inquiring into the treatment of John Ellis who lent his name to the so called ‘Ellis defence’, that confirmed that the “Catholic Church”does not exist in law. If the sex abusing priest or the negligent bishop is dead or has no assets, there is no one else to sue.

John Ellis was an altar boy and was sexually abused by Fr Aidan Duggan from the age of 13. He subsequently suffered serious psychological problems, and approached the Church through its Towards Healing protocol in 2002. The Church organised an independent assessment in accordance with that protocol and the assessor found that on the balance of probabilities Ellis had in fact been abused by Duggan. An initial offer of $25,000 was made to Ellis, and it was increased to $30,000 after Ellis lost his job as a partner at a prestigious Sydney law firm. Ellis said that he would settle for $100,000. The Church rejected that. In the meantime, Ellis only had 3 years to apply for an extension of the limitation period, and that time was about to expire. So he instructed solicitors to make the application. At the time he filed it, Ellis offered to settle the case for $750,000, an offer that was rejected by the Church. It was this application for extension of time that eventually went to the New South Wales Court of Appeal and to the High Court.

The two remaining defendants in the matter, (Duggan in the meantime had died), Cardinal George Pell, and the Trustees of the Archdiocese of Sydney ended up spending $756,000 on lawyers, more than the amount of Ellis’s settlement offer. They proved their point and won the case: the “Catholic Church” in law does not exist; Cardinal Pell was not liable at law for any negligence of his predecessors at the time, and the Trustees had no role in the appointment of priests, and so were not liable. Ellis was ordered to pay costs that were estimated on a party/party basis at $500,000. Pell and the Trustees instructed their solicitors, Corrs, to pursue the claim for costs, despite that being against the advice of its senior partner, Paul McCann.

After the case was over, Ellis pleaded with the Church not to enforce the order for costs. He clearly was not in a very good situation either mentally or financially. A meeting was arranged between Cardinal Pell and Ellis and his wife, and it was agreed to waive the costs order. The Church went further than that, and agreed to assist him. It ended up paying out over $500,000 for psychiatric assistance, repairs to his house and a holiday.

So, why did the Church go to all this trouble, and put an already abused man through this nightmare, and then help him out? In our common law system, court cases not only act as precedents that later courts have to follow (in the Pao case, Justice Hoeben has already applied Ellis), but they also send out a very strong message to lawyers and their clients.

In an interview with Richard Carleton on Sixty Minutes in 2002, Cardinal Pell said that if the victims did not want to use the Church protocols that provided compensation limited to $50,000, they could always “go to the courts”.  The Ellis decision made very clear what would happen to them if they did.

But the really interesting thing is what Ellis says Cardinal Pell told him at the meeting. Pell said that he was under the impression that Ellis’s claim was for many millions of dollars, and the Church had to protect itself. He further said that he was unaware of the offers of $100,000 under the Towards Healing protocol and of the $750,000 offer of settlement at the start of the legal proceedings. Ellis told the Commission that Pell said to him, “If I knew that, there is no way I would have spent more on legal costs than you were asking for.” Now the scene was set for an interesting stoush between Pell and his lawyers, Corrs.

Solicitors are obliged under their retainer and under their ethical rules to keep the client fully informed of every aspect of litigation so that they can make informed decisions. According to Ellis, Pell had accused Corrs of negligence at best and professional misconduct at worst. The Royal Commissions Act protects legal professional privilege between a solicitor and client, but there is ample authority for the proposition that such privilege is waived if allegations of negligence or professional misconduct are made against the solicitor.  Corr’s file was produced to the Commission, and the partner, Paul McCann was cross examined about the emails going back and forth between his firm and their clients. McCann was adamant that at every stage of the proceedings, Pell was fully informed of everything, and everything Corrs did in the litigation was in accordance with their instructions, including the rejection of the $750,000 offer, the rejection of mediation suggested by Ellis, putting in issue whether Ellis had been abused (despite the assessor’s finding that he had been) and pursuing Ellis for the costs.

McCann admitted that he never spoke to the Cardinal personally, and he always dealt with his private secretary, Michael Casey whose emails represented that the Cardinal was fully informed and had personally provided instructions. We also know from McCann’s evidence how Cardinal Pell had the idea that Ellis was “claiming” many millions of dollars. It seems to have come, not from Ellis, but from McCann himself who thought that it potentially could be worth that much because Ellis had lost his job as a partner at a prestigious law firm.

Earlier witnesses, Michael Salmon, from the Church’s Professional Standards Office, and Monsignor Brian Rayner, the Archdiocesan Chancellor left very clear impressions that Pell was calling the shots on the negotiations for a settlement under the protocol. Now, we have to hear from Pell’s personal secretary, Michael Casey, the business manager, Danny Casey, and the chancellor Monsignor John Usher as to who was really calling the shots on the litigation that Monsignor Usher had conceded in a letter to Ellis was “legal abuse”. And then we have the star witness himself: Cardinal George Pell. There will be some interesting questions: why was the offer of settlement of $750,000 rejected? But more importantly: who was really responsible for this “legal abuse” of a man already sexually abused by a Catholic priest. And there might also be an added morsel: if Cardinal Pell now thinks that it is only right and just that the Church should be able to be sued by the victims of child sex abuse, why has it taken him so long to come to that realisation?

It is all being live streamed on http://www.childabuseroyalcommission.gov.au/public-hearings/case-study-march-2014/ and will continue today, Thursday 20 March from 10am. It’s the best drama in town.

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