By Adam Cooper
A Victorian court has ruled the father of a former choirboy who prosecutors had alleged was sexually abused by George Pell can pursue civil action against both the cardinal and the Catholic Archdiocese of Melbourne, in a judgment that could pave the way for other families to sue the church.
The father, referred to in court as RWQ, has launched a civil case in the Supreme Court against the archdiocese and Pell over allegations his son and another then-choirboy were abused in Melbourne’s St Patrick’s Cathedral in 1996.
Cardinal George Pell at his residence near the Vatican in 2020.Credit: AP
In 2018, Pell was found guilty by a County Court jury of abusing the two teenagers. However, those convictions were quashed by the High Court in 2020 and Pell was released from prison after spending more than a year in custody.
A full bench of the High Court unanimously quashed Pell’s convictions after it found there was a “significant possibility” an innocent person was found guilty at trial. Pell, who in 1996 was the archbishop of Melbourne, pleaded not guilty and maintains his innocence.
One of the former choirboys died in 2014, aged in his 30s, from a heroin overdose, having never made allegations against Pell. His father, RWQ, claims he suffered nervous shock and psychiatric injury in the years after police told him in 2015 they believed his son had been abused.
Lawyers for the archdiocese argued in court this month that RWQ was not entitled to pursue civil action against it because the Legal Identity of Defendants Act passed in 2018 made the church liable for financial compensation for damage inflicted only on abuse survivors, as “primary victims”, and not their families as “secondary victims”.
Pell, as archbishop of Melbourne, outside St Patrick’s Cathedral in 1996.Credit: Craig Abraham
But on Wednesday, Justice Michael McDonald ruled the father’s claim applied to the archdiocese as well as Pell. He ordered the archdiocese to pay the father’s legal costs over the ruling.
Pell’s lawyers have said the cardinal will defend the latest claim, but they were not part of the archdiocese’s move to avoid legal liability.
McDonald found the law was not confined to a primary victim of clerical abuse and could extend to a victim’s family members.
“The plain meaning of the words ‘founded on or arising from child abuse’ in ... the act includes a claim for nervous shock brought by a parent of a child alleged to have been sexually abused,” the judge said in his written findings.
The archdiocese’s lawyers had argued RWQ’s claim did not apply to the church because it arose from the alleged abuse of the man’s son.
But McDonald said the repeated use of the words “founded on or arising from child abuse” in the law “points strongly to the conclusion that the application of the act to [non-government organisations] is not confined to claims by primary victims of child abuse”.
“To conclude otherwise renders the words ‘arising from child abuse’ otiose,” he wrote.
Pell as archbishop of Sydney in 2008.Credit: Getty Images.
RWQ alleges the Melbourne archdiocese, as the first defendant, owed him a duty of care to protect him from mental harm, and that it breached its duties.
In legal documents, he claims he suffered psychological harm including anxiety, a depressed mood and a bereavement disorder since his son’s death, compounded by past and future medical costs.
He also claims Pell “was not a fit and proper person to serve as a priest nor as archbishop of Melbourne”, and that the archdiocese breached its duty of care by failing to protect children.
The passing of the Legal Identity of Defendants Act in Victoria in 2018 closed a loophole for the church to avoid financial liability under the so-called Ellis defence, named after John Ellis, a former altar boy abused by a priest.
His case for compensation failed when the church successfully argued in a NSW court it could not be sued because it did not exist in a legal sense, because property assets were held in a trust immune to lawsuits.
While archbishop of Sydney between 2001 and 2014, Pell backed the use of the Ellis defence when the church defended civil claims made by abuse victims. It is estimated the strategy saved the church from paying out many millions of dollars to abuse survivors.
Pell, 81, rose from being Australia’s most senior Catholic figure to become the treasurer of the Vatican, until his criminal case in effect ended his tenure in the senior ranks of the church.
RWQ’s case will return to court at a later date. His lawyers declined to comment.
A spokeswoman for the Archdiocese of Melbourne said: “We acknowledge the judgment handed down by his honour ... and will be working through what that means in coming days.”
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