For the first time Cardinal George Pell has acknowledged that the Catholic Church should be able to be sued over abuse by a priest.
The turnaround in the church's approach to litigation by victims was revealed by senior counsel assisting the royal commission into institutional child sex abuse, Gail Furness, as it heard from witness John Ellis about his treatment by the Diocese of Sydney.
"In his statement to the royal commission, the cardinal says, 'Whatever position was taken by the lawyers during the litigation, or by lawyers or individuals within the Archdiocese following the litigation, my own view is that the church in Australia should be able to be sued in cases of this kind,' '' Ms Furness said. Cardinal Pell is due to give evidence in person to the commission early next week.
But Cardinal Pell's views do not yet open the floodgates for victims to sue, according to legal experts.
A major restructure of the church in Australia to make it a ''suable entity'' as well as legislative change in each state would be required to give Cardinal Pell's words practical effect, Patrick Parkinson, a Sydney University law professor specialising in child sex abuse issues said. ''This is not going to happen overnight,'' he said.
But Francis Sullivan, head of the Truth, Justice and Healing Council, said establishing such legal entities would be ''relatively straightforward'' and it would pave the way for victims to sue for damages.
''It certainly enables people who have a claim of damages in regard to child sex abuse to bring them forward … it is not a guarantee that all claims will be successful, but as you can see from the John Ellis case study, where they felt thwarted by the fact that there was nothing they could sue and what we are saying is that every diocese including the Archdiocese of Sydney will need to provide an entity that can be sued.''
Newcastle solicitor Peter Kelso, who has acted for thousands of sex abuse victims, said Cardinal Pell's statement was ''very welcome'' but it was an ''utter disgrace it has taken them this long to say that''. ''It is like the sheriff has the Catholic Church surrounded and they are coming out with their hands up.''
Mr Kelso endorsed the findings of last year's Victorian parliamentary inquiry to the effect that ''if churches want to continue to get tax exemptions they should be incorporated and they should be insured''.
In his written statement to the royal commission, Cardinal Pell also admitted he was "troubled" by the church's handling of the notorious case of sex abuse victim John Ellis, which led to the ''Ellis defence''.
It established that trustees of the Catholic Church who hold the assets of a diocese cannot be held responsible for the activities of a priest within the diocese.
On Monday the commission heard the harrowing account of Mr Ellis's dealings with the church after he was sexually abused by priest Aidan Duggan, then of Bass Hill parish. The abuse began when Mr Ellis was a 13-year-old altar boy in 1974. Their sexual contact escalated from touching and feeling to anal penetration and continued into Mr Ellis' adulthood.
Mr Ellis wept in the witness box as he recounted the abuse and its devastating effect. For a long time he believed he was homosexual or bisexual.
After he first disclosed the abuse to a counsellor in 2001, "I was either crying or feeling strong anger most of the time", he said. He lost his job at a law firm and began six years of living separately from his wife Nicola.
The royal commission heard that when Mr Ellis first complained to the church in 2002 he was told Father Duggan was suffering from senile dementia and could not answer the complaint against him.
On Christmas Eve 2002, Mr Ellis received a letter from then Sydney Archbishop Pell saying "Under the circumstances I do not see that there is anything that the archdiocese can do" to resolve the complaint. "I felt that the door had slammed in my face," Mr Ellis said.
with Alex Smith