Sex abuse victims can finally sue churches in NSW as 'Ellis defence' abolished

Previously churches were protected from being sued by a legal precedent which said they did not legally exist

Victims of sexual abuse can finally sue the Catholic church in New South Wales after the state government abolished the infamous “Ellis defence”.

In October the NSW parliament passed laws to allow survivors to seek justice and sue unincorporated organisations, including churches, following recommendations by the royal commission into institutional responses to child sexual abuse.

The laws came into effect on 1 January and are retrospective, allowing past victims to seek justice.

“I’m pleased my first item of business in 2019 is to condemn the ‘Ellis defence’ to the scrapheap and create a fairer civil litigation system for all child abuse survivors,” the NSW attorney general, Mark Speakman, said.

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“This means all survivors of institutional child abuse in NSW will now have the same access to compensation through civil litigation, no matter what kind of organisation is responsible.”

Previously, churches were protected from being sued by a legal precedent which said a church, the assets of which are held in a trust, could not be sued because it did not legally exist.

The precedent was set when the Catholic church won a legal battle against John Ellis, a former altar boy who was sexually abused at the age of 13 by the former Bass Hill parish priest Father Aidan Duggan.

Ellis sued Duggan, the trustees of the Roman Catholic church for the archdiocese of Sydney, and Cardinal George Pell, but the NSW court of appeal found Pell and the trustees were not proper defendants in the proceedings. It ruled the trustees didn’t control Duggan and weren’t responsible for his conduct, and couldn’t be sued.

Duggan died in 2004, soon after proceedings commenced, and Ellis was left with no one to sue over the abuse he suffered.

Under the new laws an institution must now identify a defendant with sufficient assets to pay any potential claim, or have the court appoint associated trustees who can access trust property.

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“We are now going to see a pathway to justice for survivors of abuse that they haven’t had in the past,” said Ellis. “It’s been a long, long battle.”

He told the ABC he had felt a sense of responsibility because his case put it “in black and white” that the church could not be sued, but in the years since, and particularly during the royal commission, he felt very supported.

The survivor advocacy and support group Care Leavers Australasia Network welcomed the change and thanked Ellis. However, it also noted many survivors were “too old [and] frail to sue” over abuse from decades ago.

The NSW legislation also established statutory liabilities for child abuse, which the NSW justice department said would “establish more fair and certain avenues for survivors to pursue civil action”.

“It is also to encourage institutions to do everything they can to prevent the abuse from occurring in the first place.”

The new laws stipulate a duty of care on organisations which exercise care, supervision or authority over children, to prevent abuse perpetrated by individuals associated with it. It reverses the onus of proof onto institutions, requiring they prove they took reasonable steps to prevent abuse.

It also extends vicarious liability to cover abusers who are not employees but whose relationship with the organisation is “akin to employment”.

Victoria passed laws to close the legal loophole in May. In June Western Australia became the final state to sign up to a national redress scheme.