The Catholic Church has lost a bid to restrict the family members of victims of child abuse by clergy from bringing civil cases against the institution.
The Court of Appeal on Friday rejected the church’s attempt to overturn a decision made by the Supreme Court in August last year that the father of a former choirboy who prosecutors had alleged was sexually abused by George Pell is entitled to sue the church.
The decision paves the way for affected family members of other victims to sue the church over the impact of their abuse.
The father alleged he had endured harm and suffering as a result of his son’s death, which he attributes to the actions of Pell.
Shine Lawyers senior associate Gabrielle Verhagen said the Catholic Church had sought to limit those who could bring actions against it to only those who had experienced the abuse themselves. She encouraged the church to not appeal against the decision in the High Court.
“I think [our client] and their family have been through enough, and we would appeal to them [the church] to not do that [appeal to the High Court],” Verhagen said.
“The justice system is recognising that it is not just the immediate effect of the abuse, but it has a ripple effect and does affect family, and does affect loved ones, and they deserve justice as well.
“This is a momentous decision.”
Pell was found guilty in 2018 by a County Court jury of abusing two teenage choirboys in Melbourne’s St Patrick’s Cathedral after a Sunday Mass in December 1996. Those convictions were quashed by the High Court in 2020 and Pell was released from prison after more than a year in custody. He died in January.
One of the choirboys died in his 30s in 2014 from an accidental heroin overdose, having never made a complaint against Pell. The deceased man’s father, referred to in court under the pseudonym RWQ, lodged a civil case in the Supreme Court in June 2020.
The archdiocese had argued that RWQ was not entitled to pursue civil action against it because the Legal Identity of Defendants Act, passed in 2018, made the church liable for financial compensation for damage inflicted only on abuse survivors, as “primary victims”, and not their families as “secondary victims”.
The three appeals court judges agreed with the Supreme Court judge, Michael McDonald, that the father is entitled to bring action under legislation passed by the Victorian government to allow family members to pursue claims as people affected by the abuse.
“Having considered the words, context and purpose of the act, we therefore consider that the judge’s construction was correct,” the appeals judges found.
The deceased choirboy’s father told The Age in 2019 that his son had become withdrawn as a teenager, had problems at school and began using drugs. As an adult, he did stints in jail.
RWQ now claims he suffered psychological harm, including anxiety, a depressed mood and a bereavement disorder. He claims he has endured injury, loss and damage, which include past and future medical costs.
He also claims Pell “was not a fit and proper person to serve as a priest, nor as archbishop of Melbourne”, and that the archdiocese breached its duty of care by failing to protect children.
The passing of the Legal Identity of Defendants Act closed a loophole for the church to avoid financial liability under the so-called Ellis defence, named after John Ellis, a former altar boy abused by a priest.
His case for compensation failed when the church successfully argued in a NSW court that it could not be sued as it did not exist in a legal sense because property assets were held in a trust immune to lawsuits.
While serving as archbishop of Sydney, Pell backed the use of the legal strategy when the church defended civil claims made by abuse victims. It is estimated the strategy saved the church from paying out many millions of dollars to abuse survivors.
A spokesperson for the Melbourne Archdiocese acknowledged the decision and said it would consider the implications in coming days.