The father of an ex-choirboy is suing Cardinal George Pell and the Catholic Church claiming he has suffered psychological injury over his deceased son's alleged sexual abuse.
Cardinal Pell was in 2018 convicted of molesting two teenage choirboys in the sacristy at St Patrick's Cathedral while he was Archbishop of Melbourne in 1996.
Pell has always maintained his innocence and his conviction was quashed in a unanimous decision by the High Court in 2020, after the judges found there wasn't enough evidence for a jury to convict him beyond reasonable doubt.
The 81-year-old Cardinal walked free in April 2020 after serving 13 months in prison.
One of the choirboys died of a drug overdose in April 2014 and his father was informed about the boy's alleged abuse the following year by Victoria Police detectives.
The father, who cannot be named for legal reasons, has filed a civil case seeking damages against the Catholic Archdiocese of Melbourne and Cardinal Pell in Victoria's Supreme Court.
He claims to have suffered nervous shock upon finding out about his son and now lives with chronic adjustment disorder, persistent complex bereavement disorder, anxiety and depression.
He says he lost money to medical expenses and lost earning capacity, court documents reveal.
He alleges the Catholic Church failed to provide duty of care by not implementing a complaints system, failing to report to police and not considering children's safety in the design and layout of St Patrick's Cathedral.
Further, he contended the Church failed to train priests, including Cardinal Pell, in preventing child abuse and what was appropriate physical contact.
Justice Michael McDonald asked lawyers representing the Church whether they were going to rely on the Ellis defence, during a brief hearing on Thursday.
The Ellis defence, which allowed the Catholic Church to deny liability to sexual abuse survivors, was abolished in Victoria in 2018.
Unincorporated associations, such as churches, now have to nominate an entity able to pay damages.
However, it is unclear whether the defence could still be used in cases brought by secondary victims, including victims' families.
Catholic Archdiocese barrister Geraldine Gray told the court the Church had not yet decided whether it will use the Ellis defence.
Justice McDonald said he was "somewhat flabbergasted" the issue had not been dealt with before the hearing.
"If the Ellis defence isn't going to be taken, the proceedings would go ahead," he said.
He set down a hearing for August 4 on the question of whether the Ellis defence will apply.
Outside court, the applicant's lawyer Lisa Flynn said her client had been through a lot, but refrained from revealing the monetary figure sought.
"The High Court made some decisions in relation to the criminal prosecution against (Cardinal) Pell. Our case is a civil claim," she said.
"There are different paths to justice and different avenues that survivors of abuse can take."
The Catholic Archdiocese has been contacted for comment.
