According to media reports, a number of Anglican dioceses in Victoria plan to become companies so that child abuse survivors will know who to sue if they wish to go to court.

SBS news reported this development, which is positive news for child abuse survivors seeking redress for the damage they suffered as a result of abuse.

Obstacles to redress

Our previous article on a consultation paper on redress and civil litigation, issued by the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission), revealed that the Royal Commission estimates that the total cost of redress to survivors of child abuse nationally would be $4.378 billion.

That article also explained how the Royal Commission is investigating the avenues for justice available to survivors of child sexual abuse. That investigation is needed because of the various obstacles faced by child abuse survivors seeking justice for the wrongs committed against them. Such obstacles include the power imbalance between institutions and survivors.

Another obstacle identified by the paper is the difficulty survivors can face in identifying a proper defendant to sue. This is because many faith-based institutions, such as churches, have complicated legal structures which makes it difficult to identify where liability lies.

What sort of entities are Churches?

An entity can be sued only if it has a distinct ‘legal personality’, meaning that it has legal rights, liabilities and duties, including the ability to sue and be sued. Natural persons, corporations and some other bodies such as governments and statutory bodies have legal personality.

Not-for-profit entities which are incorporated associations under the relevant legislation of each State and Territory can sue and be sued, although a lack of assets may prevent litigation being instigated.

Some religious entities are incorporated under a State or Territory statute, giving them legal personality and the capacity to be sued. For example, the trustees of Christian denominations can be incorporated to assist those denominations in holding property.

For example, the Roman Catholic Church Trust Property Act 1936 (NSW) which incorporated the Trustees of the Roman Catholic Church for the Archdiocese of Sydney.

In law, a Church may not be a legal person at all. Although it comprises an order of officials, worshippers and other persons, legally it may not be a distinct entity.

Any entity can restructure and incorporate to become recognised as having a legal personality under the Corporations Act 2001 (Cth).

The Victorian churches’ decision

According to the SBS report, the Wangaratta diocese in Victoria is the third Anglican diocese in that State to make the decision to incorporate, after the dioceses of Ballarat and Bendigo.

SBS refers to David Parsons, a legal adviser to the Wangaratta diocese, as saying that the decision to become a discrete legal entity was made at a recent meeting of the diocesan synod – the governing body – which covers 60 Anglican congregations in north-east Victoria.

Bishop John Parkes told that synod meeting that ‘it was important the Anglican Church be seen to be on the front foot in responding to identified weaknesses in the child protection framework.’ The Bishop apparently also made reference to the work of the Royal Commission in relation to redress for survivors at that meeting.

Incorporation can’t guarantee success

Although the Victorian Churches are to be commended for taking the positive step to incorporate to assist potential litigants, Australian case law shows that litigation against an incorporated religious entity for historical sexual abuse claims won’t always succeed for other legal reasons.

Aside from issues such as statutory limitation periods, succession and asset availability, a Church may avoid liability if the nature of its structure means that it did not have enough involvement in the activities of a church or its representatives under its jurisdiction. This was demonstrated by a legal case known as the ‘Ellis case’.

The Ellis Case

In 2007 Mr Ellis, a former altar boy, sued the Catholic Archdiocese of Sydney for abuse he suffered by an assistant priest, Father Duggan in the 1970s. Mr Ellis also sued Father Duggan and Cardinal George Pell. Father Duggan died in 2004.

In terms of suing the Archdiocese of Sydney, Mr Ellis was able to sue an entity known as The Trustees of the Roman Catholic Church for the Archdiocese of Sydney, which was established under the Roman Catholic Church Trust Property Act 1936 (NSW) to hold property on trust for the diocese and its parishes.

The Court of Appeal of the Supreme Court of NSW rejected Mr Ellis’ claim against the Archdiocese of Sydney because it found that the trustees could not be vicariously liable for Father Duggan’s actions due to the fact that:

• the legislation establishing the trustees as a corporate entity only gave the trustees a limited role in holding property, with no responsibility for ecclesiastical, liturgical and pastoral activities; and
• as a matter of fact the trustees played no role in the appointment or oversight of priests at the relevant times.

In summary, the Court of Appeal found that neither Cardinal Pell nor the body corporate could be held liable for Father Duggan’s criminal conduct.

This was not a radical legal development as it is well-established legal principle that the liability of a person does not extend to intentional criminal conduct committed by an employee unless a person is directly or indirectly responsible for supervising their conduct, and there has been negligence or other actionable conduct.

In the school context, this means that the liability of a school authority and its non-delegable duty of care to pupils does not extend to intentional criminal conduct against a pupil by a teacher employed by the authority.

However, the Ellis case received media attention as the Catholic Church was accused of avoiding responsibility for those abused by its representatives. The Archdiocese of Sydney’s website contains a statement on the case which also addresses the misconception associated with the legal outcome.

Future litigation

Despite the outcome of the Ellis Case, the move by Anglican Churches to incorporate should be seen as a positive development for victims of child sexual abuse suffered at religious institutions.

It demonstrates that religious bodies are open to accepting responsibility for the harm suffered by children under their care or supervision – subject to the legal principles that must be met.