Cardinal George Pell. Photo: Supplied
Cardinal George Pell was calling all the shots in the notorious case in which the Catholic Church fought off the damages claim of abuse victim John Ellis, his solicitor has confirmed to the child sex abuse Royal Commission. The 2007 Ellis case established the defence which has insulated the church from paying damages to victims in similar cases ever since.
Paul McCann, of Corrs Chambers Westgarth, was interrogated by Royal Commission chair Justice Peter McClellan on his ethics and tactics in running the church’s case against Mr Ellis, who was abused by the priest Aidan Duggan in the Sydney Archdiocese from age 13.
Church disputed truth of allegations: Abuse victim John Ellis. Photo: Kate Geraghty
Justice McClellan focused on the church’s decision to dispute at court whether the abuse Mr Ellis had occurred, even though the church’s own assessor had concluded on the balance of probabilities that it had.
Mr McCann initially insisted it had been right for the church to conduct the litigation “on the basis that Mr Ellis’ allegation should not be believed”. But towards the end of an afternoon of sustained challenge from Justice McClellan, he conceded the opposite.
“It was not necessary to put it in issue, as was done, whether or not it happened?” asked Justice McClellan.
Ethics and tactics questioned: Solicitor Paul McCann arriving at the royal commission hearing. Photo: AAP
“Look, I can see that”, responded Mr McCann. He agreed that it was “extremely hurtful” to Mr Ellis.
Justice McClellan continued: “It is a fundamental challenge to Mr Ellis and it should not have happened, should it?”
“On reflection, probably not”, Mr McCann agreed.
A memo from the Archdiocese to Mr McCann shows that the strategy to challenge Mr Ellis’ allegations was hit upon after it was realised that the Archdiocese had discretion to reject the report of its assessor on whether the allegations were true.
This “puts us in a position where we can say that the Archdiocese has never accepted that Father Duggan was responsible for the abuse Ellis alleges he has suffered”, the email said.
Justice McClellan asked Mr McCann whether he accepted his ethical obligation as a solicitor “not to take a step that could mislead a court”. Mr McCann replied that he did.
“Do you think that obligation was met by filing a notice of dispute in circumstances where your client had conducted a formal processes leading to an assessment that Mr Ellis was telling the truth?”
“Yes I do”, Mr McCann replied.
Cardinal Pell himself described the litigation against Mr Ellis as “legal abuse”, the Royal Commission has been told.
Mr McCann told the Commission he had no doubt the instructions he received through Cardinal Pell’s private secretary, Dr Michael Casey, came from the Cardinal himself.
According to the solicitor, he was instructed by Dr Casey, who he believed to be doing Cardinal Pell’s bidding in relation to several key decisions in the case. These included refusing Mr Ellis’ offer to mediate before the litigation, refusing a compromise offer to pay $750,000 plus costs before the case started and the decision not to put a counter offer to Mr Ellis.
Dr Casey also gave the instructions to dispute at court whether the abuse had even occurred, to maintain that stance even when another victim came forward corroborating Mr Ellis’ allegations during the litigation, to refuse another offer of mediation and to pursue costs against Mr Ellis even after being told the issue was causing Mr Ellis psychological harm.
In the end the church spent $1.5 million on the case after the church eventually waived Mr Ellis’ costs and made ex gratia payments of $568,000 to him.
Cardinal Pell is due to appear early next week.