Katrina Lee's Response and "Responsibility" (Main Forum)

by James, Australia, Wednesday, May 30, 2012, 16:46 (359 days ago) @ Letter to the Editor

Let me go through the Press Release issued by Katrina Lee

It is untrue and a serious misunderstanding of the facts to claim that Catholic bodies and officials cannot be sued by victims of sexual abuse.

No one that I know has ever suggested that individuals cannot be sued. A priest who sexually asssaults anyone can be sued in civil proceedings for damages. Assumng there is an employment relationship with the bishop, the bishop can be sued, individually, under the principles of vicarious liability.

But what does Katrina mean by "Catholic bodies"? There is no such thing as a "Catholic body" in law, unless it has been incorporated under Australian law. The law only recognizes two legal entities, individuals and corporations, which are fictional persons created by law. Even when there is a trust in place, the trustees can be sued, and they might be individuals, or they might be corporations set up under the law.

That was the whole point of the Ellis defence. There is no such thing in law as "the Archdiocese of Sydney". It is not an individual, and it is not a corporation. It doesn't exist in law, and so cannot be sued.

The Church is committed to ensuring that victims are treated justly and with compassion and respect. This is a first priority for the Archdiocese of Sydney. It is false to claim that the Church has organised its affairs to avoid its responsibilities to victims. It is false and mischievous to suggest that the Church does not respond to victims without the threat of huge financial liabilities.

The third sentence is true. The Archdiocese has not organised its affairs to avoid responsibilities to victims in these same sense as James Hardie did with the asbestos victims. It didn't have to. It was handed the opportunity on a plate by the Roman Catholic Church Property Trust Act 1936. That Act allowed the Church to hold its property under a corporate trust.

Under S.3, the trustee of the Church property is the bishop of the particular diocese and his "diocesan consultors".

Under S.4, the trustees are deemed to be a "corporation", ie a separate legal entity to the bishop and to his diocesan consultors.

The powers of the trustees are set out in S.9 and are confined to dealing with Church property. There is certainly no specific power to appoint and supervise priests, but in any event, it is clear from Ellis's case (and Katrina Lee's response) that the trustees for the Sydney Archdiocese did not do so anyway.

Any suggestion that the Archdiocese uses the property trust to avoid its responsibilities to victims is simply untrue. The facts are that the property trust, established in 1936, has no role in appointing or supervising priests.

It depends what you mean by "responsibilities". If you mean legal responsibilities, the statement is true because the Archdiocese as such cannot have legal responsibilities because at law it doesn't exist. As the Court of Appeal pointed out in Ellis's case, the "Archdiocese" is an unincorporated association that is not recognized as a separate legal entity to the indivduals involved in it. The only people who can have responsibilities are the individuals in charge at the time the assaults occurred.

Accepting that the property trust has no role in appointing priests, then who does do the appointing or supervising of priests? The bishop at the time in his personal capacity and not in his role as one of the people who make up the property trust, a separate legal entity. So he is the only one who can be sued. In the Ellis case, the bishop was Cardinal Freeman, now resting in peace in the crypt of St. Mary's Cathedral. If he had any assets, they would have been distributed a long time ago, with no recourse against his estate.

That was the whole point of the Ellis defence. Ellis had no one to sue. Bad luck, Ellis, no matter how badly he was abused, no matter how much damage he suffered as a result, and no matter how much Cardinal Freeman knew about the priest's activities.

This is not a technicality. Those responsible for appointing and supervising church workers who commit abuse can be sued, and the Archdiocese is not aware of any evidence to suggest that Church agencies or officials in Australia have ever avoided paying damages awarded against them.

Law is technical. It has to be if we are to have a rule of law. The decision of the Court of Appeal in Ellis cannot be faulted. It applied the law as it is written. But when lay people use the term "technicality", what they are really saying is that the result is grossly unfair - that the law should not be like that, and that one Archbishop, when he takes over from a predecessor, should take responsibility for the decisions made by his predecessors. The Ellis defense makes the consecration of a new bishop or Archbishop sound like it is the settlement of the sale of a business where the new owner doesn't incur the debts of the vendor.

The Archdiocese provides victims with financial assistance, often at a significant level, counselling and ongoing pastoral support. Whatever the legal position in any particular case, the Archdiocese of Sydney accepts its responsibility when victims of abuse seek damages through legal proceedings and when liability or potential liability is clear.

In situations where there is a dispute in civil society, it is an independent body, a court or an arbitrator, who decides whether liability is "clear". It is not the function of one of the parties to determine that. But this is the effect of the Ellis defence. The Archdiocese decides whether or not "liability is clear." It is really a matter for its own discretion, something that no other corporation or indivdual has in our society.

In such cases our strong preference is for proceedings to be settled, rather than requiring victims to litigate matters in the courts to final judgement, and so pay expensive lawyers. Our focus is on assisting victims and telling the truth, rather than misrepresenting the facts.

I cannot comment on the practice or otherwise of the Sydney Archdiocese in individual cases. But in 40 years of experience as a litigator and mediator, any lawyer worth his salt knows that whether through direct negotiation or through mediation, the ultimate outcome of a settlement always depends on how the lawyers representing the disputing parties see their chances of winning or losing in court. And if the complainant has no chance of winning because of the Ellis defence, then the only alternative is to go away with nothing, or accept some "go away money".

If the numbers referred to in the Shoebridge report are correct, an investment of some $700,000 in the Ellis case has saved the Church at least $60,000,000. That is a bare minimum, because it also has the effect of requiring lawyers acting for abused people to advise them that if the priest and bishop are dead, and their estates wound up, there is no chance of recovery.

See http://www.catholica.com.au/forum/index.php?id=103922

A final comment: Katrina Lee's media release is the sort of thing that one would expect in a press release from BHP Billeton or the Commonwealth Bank or Telstra, that have an obligation to shareholders to protect the company's assets in accordance with the law. If an Ellis type defence were available to them, they would have an obligation to the shareholders to rely on it. The Church has no such obligation. There are no shareholders.

The Diocese of Newcastle, however, seems to accept that the Church is not just a business and that a bishop who succeeds another should honour the liabilities of his departed predecessor, if such liabilities are established in court. There is no obligation on any diocese to rely on the Ellis defence, which has the effect of stopping proceedings from even commencing, rather than using the proceedings to see whether or not the allegations are well founded.

I somehow get the impression, that most fair minded Australian would see the spirit of the Nazarene wandering around Lake Macquarie much more than on Sydney Harbour.