The ABC commented this morning on AM that “A court case in New South Wales five years ago found that the Church could not be held legally liable for abuse cases because the Church doesn’t exist as a legal entity and it’s also not liable for its priests nor their actions.”
The case being referred to is Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis  NSWCA 117. That case involved a lawsuit by Ellis in relation to abuse he allegedly experienced at the hands of one Reverend Aidan Duggan between 1974 and 1979. At that time Ellis was an altar boy, and Duggan was the assistant priest in the Bass Hill Parish, and a member of the Order of St Benedict. Ellis commenced proceedings against Cardinal Pell as the current occupier of the position of Archbishop of Sydney, the Trustees of the Roman Catholic Church for the Archdiocese of Sydney, and Duggan himself. Duggan died in 2004 and Ellis did not pursue the claim against his Estate (this may have been from a realization that the estate had no value, or from a realization that as he was dead there was no prospect of getting an extension of the limitation period, or both).
There are some obvious difficulties. Assuming it could be established, as was alleged, that “because of the special responsibilities conferred on him by the Church and the precepts of Canon Law, the [Archbishop] was in a fiduciary relationship with the Plaintiff and was liable to ensure the protection of the Plaintiff from abuse” it was Cardinal Freeman, and not Cardinal Pell, who personally would have had any such responsibility at the relevant time, and not Cardinal Pell.
Instead, he was sued as the “successor in title” to Cardinal Freeman and as “representative” of the Archdiocese. That there could be “no more suitable a representative” is a nice rhetorical flourish, but is not legally particularly relevant. The Cardinal would need to be a representative of some legal entity, and this is where the case as pleaded stumbled. It was held (as was blindingly obvious) that the Catholic Archdiocese of Sydney was an unincorporated association and as such could not be sued in its name. To that extent the Catholic Archdiocese was no different from any other unincorporated association. There was simply no basis for holding Cardinal Pell liable, whether personally or in some “representative” capacity for the conduct of Duggan. This is not some special immunity conferred on the Catholic Church: it is simply an application of orthodox legal principle.
Then we come to the issue of the Trustees. They were not sued on the basis that they owned the land upon which the abuse occurred. Instead, what was claimed was that the Trustees “constituted the entity which the Roman Catholic Church in the Archdiocese of Sydney adopted and put forward as the permanent corporate entity or interface between the spiritual and temporal sides of the Church.”
The Trustees were established as a body corporate pursuant to the Roman Catholic Church Trust Property Act 1936. Any fair reading of that Act reveals that the Trustees does little more than hold property for the use of the Archdiocese. Nothing in that Act, or in the description of their functions and powers, suggests that they have any responsibility for the conduct of Church affairs or management beyond the holding of property. And in that sense, again, they are no different from many other organisations (clerical and lay) that separate out entities that conduct different functions. In NSW there is legislation establishing church property trusts not only for the Catholic Church, but also the Anglican Church, the Antiochan Orthodox Church, the Baptist Churches, Christian Israelite Church, the Coptic Orthodox Church, the Greek Orthodox Church, the Holy Apostolic Catholic Assyrian Church, the Presbyterian Church, the Russian Orthodox Church, the Mormons, the Methodist Church of Samoa in Australia, and the Uniting Church as well as for various individual Catholic church orders (under the Roman Catholic Church Communities’ Lands Act 1942).
There is nothing sinister about establishing a trust to hold property. It is a common feature of public and private life. And in any case where someone was injured as a result of the condition of the land, for example, the Trustees would be an appropriate entity to sue for that liability. But where the liability arises from conduct that does not fall within the bailiwick of the Trustees’ responsibility (such as, for example in Ellis’ case, pastoral care or the day-to-day management of the parish) then it is difficult to see why the Trustees should be held liable. It would be like holding a local council liable for abuse by a child care worker at a Day Care Centre operating on council-owned land.
The difficulties confronting plaintiffs such as Ellis is not that the valuable assets of the Church are held in a property trust. One difficulty is that the perpetrators are usually men of straw, so that they and their estates are of little value. A further difficulty is that there is no entity that could be regarded as a priest’s employer. But this difficulty is not solved merely by requiring the Roman Catholic Church in NSW to incorporate (assuming it were possible to do so). It would not necessarily follow that the Church so-incorporated would automatically be vicariously liable for the deliberate, criminal conduct of the Catholic Clergy. The Church, so-incorporated, may have no more control over the conduct of its clergy than it does over the doctors who operate at St Vincent’s Public or Private Hospital. There might need to be a distinction drawn between diocesan clergy and members of the Catholic orders, in which case consideration would need to be given to the legal status of each individual order. That there are enormous difficulties in holding the Church vicariously liable for the conduct of its clergy cannot be gainsaid. It is not impossible, but while incorporating the Catholic Church removes the legal entity hurdle, it does not remove the vicarious liability hurdle.