The Catholic Church is using a controversial legal tactic in a bid to be excused from a civil damages claim lodged in the Victorian Supreme Court involving Cardinal George Pell.
A man is suing the Catholic Archdiocese of Melbourne and Cardinal Pell for damages, claiming he suffered nervous shock after learning of allegations Cardinal Pell sexually assaulted his son when he was a choirboy at St Patrick's Cathedral in East Melbourne in 1996.
In 2018, Cardinal Pell was found guilty of the assault, but the High Court unanimously quashed the conviction in 2020.
The Cardinal has always maintained his innocence.
Church calls upon 'Ellis defence'
In a preliminary hearing in the Victorian Supreme Court on Thursday, the Archdiocese indicated it wanted to rely on what is known as the 'Ellis defence' to be excused from the case.
The Ellis defence emerged out of a 2007 NSW Court of Appeal judgement that prevented an abuse survivor suing the Church because it was not a legal entity.
Survivors have long complained about the Church using the Ellis defence, and in 2018 the Victorian Parliament passed legislation that required unincorporated associations such as the Church to nominate an entity that is capable of being sued.
However, lawyers for the Archdiocese argued that legislation did not apply in this case because the father of the choirboy was not the primary victim of the alleged abuse.
The father's barrister, Julian Burnside QC, disagreed, arguing the 2018 legislation applied to both primary victims and their families.
"What our learned friends' submission amounts to is this: If the victim of child abuse dies, then the family has no remedy, they have no-one they can sue," Mr Burnside said.
"Now that's plainly wrong in our submission."
Justice Michael McDonald has reserved his decision on whether to excuse the Archdiocese.
Archdiocese pledges to pay any potential damages
If the Archdiocese is excused, Cardinal Pell would remain a defendant.
In a letter to the court, solicitors for the Archdiocese indicated that, even if the Church avoided liability, it would still pay any damages should the judge find against Cardinal Pell.
"If the plaintiff is awarded damages against the second defendant [George Pell], the Archdiocese will ensure that the award is paid by indemnifying the second defendant in respect of the award," the letter said.
The father of the choirboy, who cannot be named for legal reasons, launched his case last month.
His son died of a drug overdose in 2014 and the father only learned of the allegations against Cardinal Pell the following year.
The father is claiming general damages, special damages and seeking compensation for past loss of earning capacity as well as past and future medical expenses.
His solicitor, Lisa Flynn, said the High Court's decision to quash Cardinal Pell's conviction would not affect the civil proceedings.
"The High Court made some decisions in relation to the criminal prosecution against [George] Pell. Our case is a civil case against George Pell and the Catholic Archdiocese," she said.
