A Victorian judge has dismissed a claim by lawyers for the Catholic church that they were not liable to pay compensation to the father of a choirboy who alleged he had been sexually abused by Cardinal George Pell.
The father of a deceased former choirboy is suing Pell and the Catholic Archdiocese of Melbourne, claiming he suffered psychological injury after learning his son had allegedly been sexually abused by Pell.
Justice Michael McDonald ruled in the Victorian supreme court on Wednesday that legislation passed in 2018 that was designed to prevent unincorporated organisations – such as religious organisations – from relying on a legal technicality to avoid civil lawsuits applied to the father’s case.
The judgment had been sought before the civil case could proceed further, and does not mean any final ruling has been made about the merits of the entire claim.
Lawyers for the church had argued in a court hearing earlier this month that the 2018 laws, designed to thwart the so-called Ellis defence, were not intended to apply to the families of alleged victims.
The man’s lawyers disagreed, saying that if the church’s claims were accepted, it would mean the law did not apply to anybody seeking damages on behalf of an alleged victim who had died.
Justice McDonald said on Wednesday that the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 was “not confined to claims founded on or arising from child abuse” of the person who was making the claim.
“The use of the phrase ‘arising from’ puts the matter beyond doubt,” he said in his written findings, released after the hearing.
“A claim by a plaintiff for damages for nervous shock consequent upon the plaintiff being told that their child had been sexually abused is plainly a claim arising from child abuse.”
He said the fact that the second reading speech of the bill in parliament referenced the claims brought by Chrissie and Anthony Foster, who sued the church for damages arising out of the alleged sexual abuse of their daughters, showed that the government had intended for the laws to allow such actions.
“It is inexplicable and improbable that in circumstances where the Attorney-General described Mr and Mrs Foster as survivors and acknowledged their advocacy as having played a significant part in the Bill coming before the Parliament, that the Parliament intended to enact legislation which would still have allowed the Archdiocese of Melbourne to rely on the Ellis defence.
“Nevertheless, if the [Archdiocese’s] submissions are accepted, this is the effect of the Act.”
Justice McDonald also ruled that it was his provisional view that the Catholic Archdiocese of Melbourne should pay the father’s legal costs relating to the matter. Neither legal party made any submissions during the brief hearing on Wednesday.
Pell, 81, was acquitted in 2020 when the high court quashed his convictions for child sexual assault related to allegations he abused two choirboys in the late 1990s when he was the archbishop of Melbourne.
Pell has always maintained his innocence, and the high court found the jury ought to have entertained a doubt as to Pell’s guilt with respect to each of the offences for which he was convicted. He served 13 months in prison before being released.
The father of one of the boys is seeking damages against the Catholic Archdiocese of Melbourne and Pell.
The man is not identified and is listed in court papers under a pseudonym.
He claims to have suffered nervous shock arising from learning of allegations his son had been sexually abused.
He has suffered from chronic adjustment disorder and persistent complex bereavement disorder, with mixed anxiety and a depressed mood, court documents claim.
The father also says he has lost money due to medical expenses and has lost his earning capacity.
• In Australia, children, young adults, parents and teachers can contact the Kids Helpline on 1800 55 1800, or Bravehearts on 1800 272 831, and adult survivors can contact Blue Knot Foundation on 1300 657 380. In the UK, the NSPCC offers support to children on 0800 1111, and adults concerned about a child on 0808 800 5000. The National Association for People Abused in Childhood (Napac) offers support for adult survivors on 0808 801 0331. In the US, call or text the Childhelp abuse hotline on 800-422-4453. Other sources of help can be found at Child Helplines International
