Ellis Case A 'Sorry Saga'

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When Cardinal George Pell stepped into the witness box yesterday for his second appearance at the Royal Commission into child abuse, strategy was everything. The strategy of the Catholic Church in its litigation against abuse victim John Ellis; Pell's media strategy to minimise the fallout in the community at large; and his personal strategy at the commission.

In Pell's written statement, he wrote that he "explicitly endorsed the major strategies in the litigation" against Ellis, as conducted by law firm Corrs. While the major aim of the case was to protect the church's trustees, the burning question for the commission yesterday was whether one of the church's explicit strategies was to contest the facts of Ellis' abuse in court — the "legal abuse" he suffered during a gruelling three-day cross examination.

By the time Ellis took the church to court in August 2004, the flawed assessment of his abuse had been superseded by a report by a new assessor, Michael Ecclestone. The 2003 Ecclestone report found that, despite the abuser priest Fr Aidan Duggan being unable to account for himself due to dementia, Ellis' account was likely true and that the church should admit the truth of the abuse. Pell himself believed the report and the truth of Ellis' claim by this point.

But, Pell said, the lawyers at Corrs told him the Ecclestone report wasn't a legal document. In the Cardinal's words, the facts of the abuse could still be "put to the proof" in court without him personally denying the abuse had taken place.

This, Gail Furness SC pointedly reminded the Cardinal, flew in the face of evidence given by his private secretary Michael Casey, that "he was seeking to explore whatever avenues were available to him to enable him to instruct the lawyers to not admit the abuse".

To add insult to injury, the emergence of a second victim of Fr Duggan — who came forward during the litigation — did not induce Pell to instruct the lawyers to change strategy.

Pell now admits that it was "wrong that it [the cross-examination]went to such an extent" but would not concede that the court would permit "legal abuse" to take place. Answering questioning from Commissioner Peter McClellan, Pell also admitted he had not considered contesting the legal point of vicarious liability and the role of the trustees — the question that was eventually answered in the church's favour, becoming the now-notorious Ellis Defence — but agreeing to the facts of the abuse.

"Not being a lawyer, I didn't think of that," Pell quipped.

According to Pell, choosing Corrs was a "definite strategy" that allowed the church more control over the case than if the Catholic Church Insurance agency's lawyers had been used, although as on Monday he said he had little to do with the day-to-day running of the litigation, and worked on advice from the lawyers. He insisted multiple times yesterday that "I was told that what was being proposed was not improper or unusual".

Although Ellis made multiple attempts to try and head off the litigation through requests for a "no prejudice basis" meeting, settlement and mediation — including with a deed of release — the Archdiocese forged ahead with the case. A December 2004 offer to settle for $750,000 plus costs was rejected with no counter-offer. Advice from Corrs said it would be a "strategic mistake to indicate that the church will be prepared to negotiate".

Pell also told the commission that, because he saw the litigation primarily as an attack on the role of the trustees, he began to view everything through that prism, to the point where he thought he was "not dealing with entirely reasonable people". The Cardinal's assessment of Ellis tended to emphasise that he was a "brilliant lawyer", not a victim — even though Pell knew at that stage that Ellis had lost his job as a partner because of post-abuse trauma.

"A particular lament of mine is that earlier I didn't see the psychiatric evidence listing the harm that Mr Ellis had suffered … with that available to me, there would have been considerable discussion and at least some substantial variation in the way things were treated," Pell said.

If he were to go to court today, Pell said, he would put "some competent person" in charge and keep an eye on things more closely. But from 2005 onwards, Pell was keeping a close eye on publicity.

He appointed Tracey Cain from Strategic, a PR company, to develop a media strategy in June 2005; In March 2006 he was asking questions about the publicity implications of an appeal; and in 2008 he was concerned about bad PR from "causing Ellis to go bankrupt or causing him to experience an exacerbation of his psychiatric condition".

Pell also wanted to send a message: "we do not want Begg [Ellis' lawyer] and other plaintiff lawyers to think that the Church will simply roll over on its costs every time the plaintiff loses a case".

Pell instructed the lawyers to "strenuously" defend the claim, saying that "Part of that wording, "vigorously" or "strenuously", was, at least in my mind, an attempt to encourage people not to go into litigation."

"That they should think clearly; they should consider the advantages of not going to litigation. And also I have a longstanding conviction that all Australian communities, institutions, individuals, have a right to use the law properly to defend themselves," he said.

Pell is fronting the commission again this afternoon to answer questions from counsel, but the game is already over. While the commission picks over the governance elements of the church, Pell's individual strategy has been to admit regret without looking once at the person he's wronged, and to make recommendations for the future of the church's approach to child abuse he will never be responsible for implementing.

For example, he admitted that, had Ellis sued the estate of Fr Duggan instead of the church and its trustees and won, the church should have (as McClellan put it) "met that verdict".

"That is my present position. I am unclear as to whether such a thing should apply only prospectively or also retrospectively, but that is my position. It will be for others to decide those two things," he elaborated.

McClellan countered that, "If it is your position prospectively, then I think we discussed on Monday that justice would demand that it be the retrospective view, wouldn't it?"

"I'm not sure that's correct, but if that's the judgment of the responsible," Pell began, before McClellan's interjection: "I'm asking you as a churchman, do you see?"

In passing, Pell agreed that yes, the trustees or some other source of church funds could pay out retrospective cases, something of a reversal of the reason he went to war with Ellis to begin with. Nonetheless, the Cardinal could only refer to the decades-long destruction of a man's life as a "sorry saga". 

New Matilda

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