Controversial High Court ruling could be used against sex abuse victims like Greg

Greg Barclay lost his faith in Catholicism in 1970 when he was sexually assaulted by a Marist brother, but he says the church “hit a new low” when it pursued a legal defence that would obstruct some compensation claims by survivors of institutional abuse.

A contentious decision handed down by the High Court in November found the Catholic Diocese of Ballarat was not responsible for the misconduct of its former priest Father Bryan Coffey because he could not be legally considered an employee of the church.

Greg Barclay is a victim of historical sexual abuse at the hands of a Catholic school teacher, but is currently prevented from proceeding with legal action against the school/order because of a recent High Court decision.Credit: Justin McManus

The judgment in the trial of Bird v DP has upended thousands of legal cases involving religious orders, sporting clubs and not-for-profit organisations nationwide.

The Sunday Age can reveal many survivors of historical sexual abuse are now under pressure to accept reduced financial settlements, or proceed to trial, where they face significant legal hurdles.

Barclay’s case against the Marist Brothers is one of more than 1800 civil claims currently before Victorian courts that have been stymied by the recent court ruling.

He was just 13 years old when he was abused by brother John Anthony Skehan at the former St Colman’s College in Shepparton. In 2014, Skehan was convicted of indecent assault and handed a suspended eight-month prison sentence.

Barclay, now 68 years old, said he was stunned when the High Court found existing legislation did not provide a basis for imposing vicarious liability on the church for the misconduct of its clerics.

The legal principle of vicarious liability is usually reserved for employers responsible for the wrongful or negligent conduct of their employees, regardless of whether the organisation is at fault.

Barclay accuses the church, and its high-profile legal team, of deliberately pursuing the defence in the nation’s highest court, after it was unsuccessful in the Supreme Court of Victoria and the Court of Appeal.

“Yet again, it shows to me that the church and the Marist Brothers are morally bankrupt. In my case, they agree and admit the abuse occurred, but now they are willing to use the law and hide behind the law to deny just compensation to survivors and mitigate their financial liability.

“I shake my head in disbelief that an organisation that professes to maintain some moral high ground could actually do this to survivors,” Barclay said.

Barclay’s lawyer, Laird Macdonald from Rightside Legal, said the recent High Court decision had created a different level of protection for religious orders, which was not extended to private or government schools. He said there were also anomalies with the treatment of different teachers at religious schools.

“We now have this crazy divide, where a student abused by a lay school teacher at a religious school has access to a vicarious liability argument in court. However, if a student in the classroom next door was abused by a brother or a priest, then they would not have access.”

A spokeswoman for the Marist Brothers Australia said the organisation was committed to providing fair compensation to survivors through the civil legal process and the National Redress Scheme, irrespective of the recent High Court decision.

“The relevance of Bird v DP to claims involving Marist Brothers will continue to be considered on a case-by-case basis, especially given the highly fact-specific circumstances in which vicarious liability is likely to be established in claims,” the Marist Brothers spokeswoman said.

However, other victims of clerical abuse insist different Catholic orders are exploiting the High Court judgment to further delay legal proceedings.

A Gippsland man, given the court-ordered pseudonym FG, has seen his civil case reach an impasse, after years of legal wrangling with the church. He was abused by paedophile Monsignor Joseph Daly at St Joseph’s Primary School in Gippsland in the early 1970s.

“This has been going on for five years, and they’ve tried every trick in the book to drag out the legal process with permanent stays. There was never any honest attempt at mediation,” the man known as FG said.

“It shouldn’t come as a surprise to anyone that they would go to any lengths available to protect themselves and their financial situation. They’ll exploit any loophole to deny their victims,” he said.

Kim Price, a partner with Arnold Thomas Becker Lawyers, which represents FG, said some of his clients had endured an “unrelenting barrage of attacks” from institutional defendants, including the Catholic Church, the Salvation Army and the Scouts.

“In a number of cases we have seen prior offers taken off the table. Whilst the law remains unchanged, many survivors are being forced into inadequate settlements, or into court hearings in which they face huge legal problems,” Price said.

“Just like in the dark ‘Ellis defence’ days when the Catholic Church hid behind their property trusts, our clients feel like the system is rigged against them,” he said.

The Ellis defence was established when the NSW Court of Appeal ruled in 2007 that the Catholic Church did not exist in a legal sense because its property assets were held inside a complex trust structure that could not be accessed by litigants. It was dismantled in Victoria by legislation introduced in 2018.

Abuse survivor John Ellis.Credit: Louise Kennerley

Sydney lawyer and abuse survivor John Ellis, after whom the defence was named, accused the church of adopting a “concerted legal strategy” to push survivors towards the redress scheme, where they would receive less compensation.

“I have a very strong interest in this matter, obviously. I think it’s an immoral position for them to take,” Ellis said.

“They could have allowed the common law to develop. There were decisions in NSW and Victoria at the time of the High Court judgment that had found a diocese was vicariously liable for the conduct of its priests. They could have just gone with that, rather than appealing,” Ellis said.

He said the situation needed to be rectified with legislative reform.

The issue was raised at a meeting of attorneys-general last week, when they agreed to “work together to further consider the impacts of the High Court decision and to consider potential reform options”.

While survivors plead for urgent action, Victorian Attorney-General Sonya Kilkenny said any legislative change needed to be carefully considered.

“I understand the amount of pain and uncertainty the High Court decision has caused victims of historical abuse, who are still seeking justice. The decision means any possible legislative changes must be carefully considered to ensure it doesn’t cause more problems than it resolves,” Kilkenny said.

A Marist Brothers Australia spokeswoman also urged caution.

“The implications of legislative changes to vicarious liability would be profound,” the spokeswoman said.

“Any reform of legislation will likely mean that community groups such as every local sporting association, rural fire service, school, aged care provider, public service employer, non-government agency or charity will be responsible for the criminal conduct of not just their employees, but their volunteers and contractors as well.”

The Australian Catholic Bishops Conference did not respond to questions from The Sunday Age.

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