‘Free pass for sexually abusive clerics’: Catholic Church not liable, High Court rules

A Catholic diocese in regional Victoria has been found not liable for the historical sexual abuse of a young boy by one of its priests, in a landmark decision that casts doubts over thousands of legal cases against religious orders nationwide.

The High Court on Wednesday overturned on appeal a previous ruling by Victoria’s Supreme Court and the Court of Appeal that had found the Ballarat diocese was legally responsible for the misconduct of its former priest, Father Bryan Coffey.

St Alipius Presbytary, church and former boys school in Ballarat have ribbons tied to their fences to symbolise abuse by Catholic priests.Credit: Simon O’Dwyer

The relevant legislation did not provide a basis for imposing vicarious liability on the church because the priest could not be legally considered as an employee, the High Court found.

The matter has already come to the attention of attorneys-general at state and federal levels, with the High Court conceding that “reformulation of the law of vicarious liability is properly the province of the legislature,” according to the judgment.

The diocese and its current bishop, Paul Bird, were sued in the Supreme Court of Victoria by a man who said he was sexually assaulted by Coffey at his parents’ home in Port Fairy in 1971. The man, known in court documents as DP, was five years old at the time of the abuse.

Coffey, who is now deceased, received a three-year suspended sentence in 1999 after being convicted of charges including false imprisonment and the indecent assaults of males and females under 16.

The High Court has ruled that Catholic priests are not employees of the church, which therefore is not liable for their sexual abuse of children.Credit: AP

In December 2021, Justice Jack Forrest found that the church had vicarious liability because of the close relationship between the then-bishop, diocese and community. He ordered DP receive $200,000 in damages for pain and suffering, $10,000 for medical expenses and $20,000 in other damages.

That decision was upheld by the Court of Appeal in April, following an appeal by the diocese and its lawyers.

The principal issue in the High Court appeal was whether the diocese could be held vicariously liable for abuse committed by Coffey, despite the priest not being formally employed by the diocese.

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.

The Victorian courts had extended that principle to the church, ruling that Coffey was still a “servant of the diocese” and through his pastoral role had the “power and intimacy” to abuse children during visits to parishioners’ homes.

But nation’s highest court ruled the lower courts had overreached. The High Court said it had repeatedly refused to extend the boundaries of vicarious liability to include independent contractors.

“Expanding the doctrine to accommodate relationships that are ‘akin to employment’ would produce uncertainty and indeterminacy,” the judgment summary read.

Kim Price, a partner with Arnold Thomas Becker Lawyers, which represents about 1400 victims of historical sexual abuse, said he was “gravely concerned that this ruling now marks a return to the dark ‘Ellis Defence’ days for many survivors seeking justice”.

The Ellis defence was established when the NSW Court of Appeal ruled in 2007 that the Catholic Church does not exist in a legal sense because its property assets are held inside a special trust structure that is immune to lawsuits.

It was dismantled in Victoria by legislation introduced in 2018.

Price urged Victorian Attorney-General Jaclyn Symes to intervene again.

“We respectfully ask your government to consider introducing legislation to remedy the High Court’s ruling to bring vicarious liability of religious organisations into line with that of other organisations who have historically been responsible for the care of children,” Price said in an email to Symes on Wednesday.

A Victorian government spokeswoman said it would consider the High Court findings and any action it might take.

“We were proud to pass legislation quashing the Ellis defence, sending a clear message to child abuse survivors – we stand with you in your fight for justice and always will,” the spokeswoman said.

Lawyer Michael Magazanik, a partner at Rightside Legal which has represented dozens of clients who have successfully sued religious orders, said the High Court decision was “surprising and very sad”.

“It is now up to the government to legislate to resolve this problem so that churches and religious orders don’t get a free pass for their sexually abusive clerics,” Magazanik told this masthead.

“The High Court effectively invited the legislature to act, so when the nation’s attorneys-general meet next week they should announce a joint and urgent response.”

John Rule, principal lawyer at Maurice Blackburn, said the decision would have far-reaching implications for the ability of child-abuse survivors to hold institutions to account.

“The church has known about its priests abusing children for centuries and did nothing to stop it,” Rule said.

“Unfortunately, this decision means that in some cases, the church will be able to again evade responsibility for the scourge of child abuse in its ranks.”

Rule said the judgment put Australia out of step with other common law jurisdictions, including the UK, Canada and Ireland, which had developed the principle of vicarious liability to apply to religious orders.

Bird thanked the High Court for its “careful consideration of these complex areas of law” and said the diocese was examining the judgment and its implications.

With AAP

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