The lawyer who fought for himself – a tale of unvindicated abuse in institutions that had no accountability… and the need for laws to protect all vulnerable in society…
The ‘Ellis Defence’ noted in article by Gregoire and Nedim (2019 Sydney Criminal Lawyers) is the story of a Lawyer who himself was abused as a Senior Altar boy in a Catholic Church in Bass Hill, Sydney, by a Benedictine monk, Father Duggan, the boy John Ellis, was abused from he age of 13 years old to well into his twenties.
When Mr Ellis sought justice, the NSW Court of Appeal found there was no entity that could be found responsible! This was a legal loophole (how typical of the churches having little accountability and such organizations). The article notes that this legal loophole set a ‘precedent’ – something courts use in making decisions on new cases, which allowed the Roman Catholic church to avoid being sued by the survivors of child abuse.
At this present time if the father of the choir boy who suicided wins his case in suing the church for his ‘nervous shock’ at finding out the allegations his son had made of the priests abuse and his subsequent death, this will also set a precedent in the courts for the damage inflicted on those individuals lost from lack of justice and penalties toward the abusers and the pain it has caused for them and their families.
I wonder how many loopholes have been made to avoid disability providers being sued for abuse of those in their care? Especially since many of those in disabilities who are hurt or neglected in care, day programs, or respite are nonverbal and cannot make a police statement to say what has happened to them and who did it to them. It becomes a ‘mystery’ as the managers will say happily and swear their workers never saw a thing, when often it has been the support worker that did the abuse or gross negligence to someone who could not stop them. For shame.
In John Ellis’s case at the age of 41 he told the Roman Catholic Archdiocese of Sydney about the abuse he had suffered from the monk and how it continued to damage his life. He sought acknowledgement from the church and support. Something you would expect from those who talk about the compassion of Christ.
The archbishop of Sydney, at the time, was none other than paedophile George Pell (recently let out of prison after a year) who accepted that Ellis was a victim of abuse. However, he and the Archdiocese trustees offered Ellis a discounted settlement via the churches Towards Healing protocol, as long as he gave up his legal right to sue the church.
Thankfully for other victims today, Mr Ellis refused to sign away his right to sue and filed a statement of claim with the NSW Supreme Court, also having to seek an extension because the Limitations Act 1969 barred him from taking action six years after incidents occurred. In 2006 Ellis versus Pell, he then Ellis sought to take legal action against Cardinal Pell and the Trustees of the Roman Catholic Church for the Archdiocese of Sydney. These trustees are a body corporate established under the Roman Catholic Trust Property Act 1936 which holds property for and on behalf of the church.
Ellis could not sue the actual offender Father Duggan, as he had died in 2004. However it was found by the NSW Supreme Court Justice that Mr Ellis could also not sue Pell as head of the church but could take action against the church trustees. Yet in 2007 the court found trustees were not responsible for the conduct of the clergy and that there was no legal entity that could be sued in regard to misconduct carried out by a member of the clergy except for themselves and since that as the church is an ‘unincorporated association, with its assets held in a protected trust, it didn’t legally exist.’
The article states “an unincorporated association cannot, at common law, sue or be sued in its own name, because it does not exist as a juridical entity” the court decided. It was also explained by Dr Andrew Morrison SC in 2014 that the Church has previously treated its trustees as the appropriate body to be sued, “but John Ellis and those who came after him were the unfortunate victims of a change of policy consequent upon Cardinal Pell’s wish to protect Church finances” (Pell obviously cared a great deal about the church finances)
Unfortunately for John Ellis, the Ellis Defence was established through the courts defending the Churches case, at his trying to fight for justice and served as a warning to all survivors of child abuse that proceeding against the Catholic Church in these matters was ‘no longer viable’. The church made sure it protected itself from those who had been victims of the churches harm by its clergy on their lives.
Yet in a great swing of change caused by recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuses (established in 2013) during rising allegations of child sexual abuse in institutions in Australia especially the Catholic Church, the commissioners outline that a proper defendant needs to be identified in these cases, as survivors might also want to sue the institution in which they were abused along with the actual perpetrator. They stated that a survivor of child sexual abuse should be able to sue a ‘readily identifiable church’ and recommended states and territories legislate to provide a clearly defined defendant.
It makes one wonder if in cases like Afford, and Sunnyfields, should not the organizations also be sued when abuse and harm has happened and especially in death of a vulnerable person caused by the actions, or obvious negligence of the workers. Should not the workers be sued, and the organizations? The Royal Commission needs to push that the Federal government legislate to make organizations, even so called non profit can be sued or held accountable for anyone hurt in their care. Our biggest problem as parents of those who have a disability and those children are especially vulnerable being non verbal is that they cannot make a statement of what happened to them and cannot prove who they are a victim of. John Ellis had to speak up for himself years after the abuse by the priest and keep fighting and even as a lawyer. He could speak for himself. Our children cannot and we must be their voices.
In Anne Marie Smiths case, her support worker is now in prison for only 5 years after gross neglect leading to Anne Marie’s death, and Integrity Care was fined. The directors of Integrity now charged and being investigated after there has been proof found they knew of the worker’s lack of care toward Anne Marie. Always demanding proof our only proof in disabilities is cctv camera proof or harm is denied and covered up.
Every time someone is caught harming those in disabilities services we see apologies by the CEOs but no one properly charged and no actual fines or penalties occurring to the organizations employing them. Should they not also be punished? Oh yes they should be. I wonder what the loopholes are in NSW where abuse seemingly is allowed and no punishments every time. Are they protected by their trusts too, as they often call themselves nonprofit organizations yet they are making big profits by being involved with the NDIS and charging parents of disabilities children and adults as much as they can.
In this article on John Ellis, who is a lawyer himself now, that passed in 2018 was the Civil Liability Amendment (Organizational Child Abuse Liability) which created a new duty of care for institutions, which is breached if a child is subjected to abuse. Courts now having power to appoint trustees to be sued if institutions fail to nominate one.
The article notes that the legislation makes an organization liable for child abuse, committed by either an employee or someone in a position akin to an employee. It further permits the survivors of child abuse to take action against unincorporated organizations like the Catholic Church. On the 1st of January 2019 the Ellis Defence was abolished, much to the joy of John Ellis whose fight will help all victims now. He said it was momentous and institutions wont be able to ‘put that roadblock in the way of survivors’.
I am glad he kept fighting for himself for justice even though his case was used as a precedent for the churches to say you could not fight them, but then was switched by the recommendation of the Royal Commission who came to the rescue valiantly and grateful to them also for stepping up about that. So Royal Commission recommendations can work toward bringing justice for the vulnerable and victims in the courts and law systems.
We need changes to laws to protect those in disabilities also who cases are often not taken up by Judges who said there is never enough evidence. CCTV cameras play a big part in giving the nonverbal and vulnerable evidence of their attacks by workers and abuse, and yet this needs to be legally mandated or made a rule for Providers by the NDIS who so far have refused to do such a protective measure. Why? Perhaps they are protecting their finances too just as Pell did for the Catholic church. Meanwhile letting those who cannot protect themselves remain at risk in all places of disability care. Its all about the money and we need laws to change for these victims too or they will never have justice and the perpetrators continue to work in disabilities and do what they like to our children with no consequences.
Noted in another article by Obrien Criminal and Civil Lawyers (2019) the long-lasting culture of resignation and complicity in the Catholic Church toward abuse victims, has been heavily condemned by both believers and non-believers. For years they used ‘hush’ money to shut up those who had been abused so that it would not go to court.
The NDIS quality commission in not trying too hard to investigate the reports of serious harm is also complicit in allowing providers to cover their backs from being found out or sued, and almost normalizing those who are harmed and abused in disabilities as if it is to be expected! The vulnerable should not be allowed to be harmed with no come back to the perpetrators. It is a crime, assault, abuse and any kind of harm done against someone who cannot protect themselves.
The article states that now although compensation cannot cover the significant impact and psychological effects experienced by victims, the new laws provide an opportunity for victims to obtain justice and a sense of closure.
This is what the victims of abuse and harm in disabilities services also need – and their parents – justice and a sense of closure – without justice and compensation there is no closure for all parents of those who are harmed in care or die in care. We need laws that will bring justice to those who are victims in a disabilities system one that leans towards the providers and their money making profits, and turns a deaf hear to those who have suffered at the hands of those same providers workers. The system run by the federal government, then is complicit and the NDIS quality commission is complicit in allowing abuse to continue under its watch with no justice for the victims given even if they die.
What is law for if not to give Justice and protection to those in a society? Then why is it not doing that for the most vulnerable – those in disabilities. Why have laws if they are not equally protecting all people not just those who matter to the government or are money makers.sign my petition: change.org/disabilitycameras                                                        The public needs to be aware of the abuses in disabilities and the exploitations that have been occurring against our vulnerable children so that they can also condemn and help us fight for our disability children's rights to protection and proper care.
all the best
Anndrea x
#disabilitylivesmatteroz