A major law firm fears the Catholic Church will use the death of cardinal George Pell to leverage further permanent stay applications, a recent tactic employed to prevent complainants of historic child sexual abuse from suing the church.
Maurice Blackburn lawyer John Rule said the church was increasingly citing the procedural disadvantage attached to the passage of time to argue a case should be permanently halted because a fair trial could not ensue in such situations.
“When faced with a civil claim for child sexual abuse, something the Catholic Church now often does is make an application saying this matter should be struck off permanently because there’s not, it claims, enough evidence for there to be a fair trial,” he said.
“This was a problem before Pell died, but I heavily suspect that now he’s dead, the church will try to use [his death] to their advantage, saying ‘this is a case where a permanent stay of proceedings should be granted’, especially if it’s a case where Pell was in a leadership position at the time [and could have had knowledge of the alleged abuse].”
Rule, who regularly represents survivors of clergy abuse, said permanent stay applications by the church had met with increasing success in recent years, despite the usual reticence of the courts to order stays in all but the most exceptional circumstances.
“The Catholic Church has — particularly in New South Wales — been overusing permanent stays to have these cases thrown out,” he said. “It’s wrong because [permanent stays are] only ever supposed to be used in the rarest of cases.”
His concern echoes that of a number of other plaintiff law firms and survivors of institutional sexual abuse, who in November directly raised the issue with NSW Attorney General Mark Speakman.
“The court dismisses the proceedings before the victim even has the chance to put their case in court and fight for justice,” law firm Kelso Lawyers, which specialises in institutional child sexual abuse, told Speakman. “They are being left without a voice, denied their day in court.”
Rule told Crikey that such concerns had sharpened since a judgment of the NSW Court of Appeal in June 2022, which stayed a claim involving the sexual abuse of a 14-year-old girl more than 50 years ago on the footing the alleged abuser — known paedophile priest Father Clarence Anderson — was dead.
The court accepted the church’s claim that it would be materially unfair to allow the claim to proceed in circumstances where it could not defend itself, having only ever been put “on notice”, before Anderson’s death, as to his sexual abuse of young boys, not young girls.
In November, the High Court granted special leave to appeal that decision, with the court to hear the appeal later this year.
During the special leave application, the plaintiff’s barrister, Perry Herzfeld SC, argued that the Court of Appeal’s decision ran contrary to a suite of recent reforms since the royal commission into institutional child sexual abuse, focused on facilitating claims by survivors of historical child sexual abuse.
Chief among these was the removal of limitation periods for civil claims and the abolition of the “Ellis Defence” — the latter of which was based on a 2007 NSW Court of Appeal decision that held the church, as an unincorporated association, was immune from civil suits.
Those reforms were underpinned by a recognition — sheeted home by the royal commission — that it is not uncommon for complainants to take decades to report, due to the incalculable trauma and shame that accompanies abuse.
“A fair trial is not synonymous with a perfect trial, and more importantly what constitutes a fair trial is itself something to be considered in light of the legislative amendments,” Herzfeld said.
“The kind of circumstances presented here,” he added, citing the death of the alleged perpetrator and other witnesses, “cannot be regarded as sufficiently exceptional [in such cases] to warrant a permanent stay, given it’s precisely this kind of claim the legislative amendments are designed to facilitate.”
Depending on what the High Court decides, Rule said the prospect of legislative reform looms.
“Because this problem pre-dates Pell’s death, there has already been some discussion about legislative change to alter the situations in which the church and other institutions can use it in child sexual abuse cases,” he said.
Rule added that the need for such reform had acquired a sense of urgency since the NSW Court of Appeal’s decision, which the church had seized upon to pressure abuse survivors into accepting trivial amounts of compensation if the alleged abuser is dead.
“There’s a risk Pell’s death will discourage [survivors] from coming forward,” he said. “But, in fact, it’s more important than ever that people come forward. The more who do, the easier it is to put all the pieces of the puzzle together in each case.”
“I hope the church doesn’t use Pell’s death to further disadvantage survivors of abuse in bringing civil claims. But unfortunately, history tells us it almost certainly will.”
I am appalled by the Catholic Church’s attempts to make Pell look saintly. He was an odious, power hungry swine who unfortunately represents the church only too closely. Weasel words, obstruction, misogyny, hide the truth. It is not a matter of faith that mistreating children is wrong, it was expressly forbidden by Christ himself. George Pell represents the sheer power hungry avarice of the Church. He had no God but power. Pell was entitled to decry homosexuality, abortion or whatever since he was a member of the Church, he was not entitled to behave like a double dealing Pharisee. He was not entitled to creat injustice and he was certainly not entitoled to ignore this abuse regardless of his own guilt if any. That we have politicians like Abbott who praise him shows the extreme danger of such faiths. This kind of man was the reason for Martin Luther. That the College of Cardinals had such a member makes them as big a disgrace as Pell himself.
Self-proclaiming one’s christianity is evidence of nothing. It is an “oven-ready” moral shorthand donned by seekers of temporal power to avoid having to explain, let alone understand, their personal moral code in detail. It is infinitely malleable and thus almost always convincing: anyone who hears the proclamation will fill in all the details they wish to hear and none they don’t.
I would go as far as to claim that anyone who tries to claim, in their defence, that they are a Christian, probably isn’t one.
We should simply not only be appalled at the shameful shenanigans of the so-called Church, but most appalled that this arcane institution of troglodytes has so much power over so many people in the world. When Columbus’s Missionaries followed, all they really did was place the New World permanently into the Dark Ages.
My Comment below, to a gushing piece on Cardinal Pell by Tony Abbott (who stated that George Pell was ‘never judgmental’), was rejected in ‘The Australian’:
“Cardinal Pell was ‘never judgmental’?! His strident, ultra-conservative views on gays, divorcees, pro-choice advocates were harshly judgmental for those who disagreed with him. On the Church’s sexual abuse scandals, he seemed more concerned with protecting the Church’s reputation rather than empathising with the victims of abuse. I’d like to read a more balanced assessment of the Cardinal than presented here.”
We should expect no less from the Catholic Church. An organisation that claims to be a charity but rather than giving it has a reputation for actualy taking money from some of the poorest people in some of the poorest countries on earth.
Why can’t the government legislate that if churches/religions do not recognize and then suitably compensate victims (at least financially) then they should lose their tax free status PERMANENTLY. That should fix it.
Apart from some elements of the churches, I understand that generally the churches are suitably compensating Victims by selling property.
Established religions are not really religions. They are not there to do gods work. They are constucts of the staus quo and are there to serve the status quo. Specifically their job is to groom populations to accept being exploited by the staus quo. They are even allowed by the status quo to do a bit of exploitation for themselves.
Pell was created Cardinal a little under twenty years ago. From the perspective of the christian faith, I wonder whether the lord above or the lord below will feel their cause has advanced further in those last two decades.