Nation’s top lawmakers to meet after Catholic Church found not liable for clerical abuse

Attorneys-general offices from Australia’s states and territories will meet next week to consider urgent legislative reforms after a contentious court decision that a Catholic diocese was not liable for the clerical abuse of a five-year-old boy.

The High Court ruled in November that the Ballarat diocese, in regional Victoria, could not be held responsible for misconduct by its former priest, Father Bryan Coffey, because he could not be legally considered an employee of the church.

The ‘Loud Fence’ in Ballarat, where abuse survivors tied ribbons to the church fence.Credit: Dylan Burns

The landmark decision has upended thousands of legal cases against religious orders nationwide, including more than 1800 civil claims currently before courts in Victoria.

The Ballarat diocese and its current bishop, Paul Bird, were initially 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 south-west Victoria, in 1971.

The man, known in court documents as DP, has spoken for the first time and called for urgent intervention by state and territory legislatures.

“I strongly support immediate legislative reform across Australia to ensure that historical abuse survivors are not left in a compromised position with no legal recourse to pursue compensation remedies, or [left] in limbo with legislative reform taking years to come into play,” he said in a statement to this masthead.

“The legal landscape has slowly changed for survivors with the limitation period and the Ellis defence being removed. I hope that this will be the next round of significant legislative reforms which will continue to strengthen legal protections for victims across Australia.”

His lawyer, Sangeeta Sharmin from Canberra law firm Ken Cush and Associates, confirmed she would meet with representatives from the nation’s attorneys-general offices on January 7.

Correspondence from Sharmin sent to the group outlines the potential impact of the High Court judgment handed down on November 13.

“Religious orders, and potentially any respondent to a claim for abuse, will potentially argue that they are not vicariously liable for the abuse perpetrated by its members where they are not strictly employees, such as Scout leaders, sporting coaches, religious teachers in schools, volunteers and other non-employment based roles,” the letter from December 3 said.

“Our client DP, is now in the position where even though he was abused by Father Coffey at his home in the context of pastoral care being provided, by a convicted criminal, he has no legal remedy to compensation.”

The documents urged then-Victorian attorney-general Jaclyn Symes to make several amendments to the Wrongs Act 1958, including the “immediate insertion of a retrospective provision to allow for vicarious liability to extend to relationships ‘akin’ to employment”.

NSW was commended for it being one of the few states with provisions for vicarious liability.

However, Sharmin notes the states would be served by having one set of identical rules across the nation and recommends amendments that would specifically name religious orders, bodies or institutions in the Civil Liability Act 2002.

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

The attorneys-general met in Melbourne earlier this month and raised the issue with a source with direct knowledge of the meeting confirming there was widespread support from the states and territories to look into the issue.

Sharmin suggested that any reforms be known as “DP’s law”.

In December 2021, Supreme Court of Victoria Justice Jack Forrest found 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.

Coffey, now deceased, received a three-year suspended sentence in 1999 after being convicted of 12 counts of indecent assault on a male person under the age of 16 years, one count of indecent assault on a girl under 16 years and one count of false imprisonment.

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 them.

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.

However, the nation’s highest court ruled the lower courts had overreached. The High Court said it had repeatedly refused previous attempts 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.

However, the High Court conceded in its judgment that “reformulation of the law of vicarious liability is properly the province of the legislature”.

The Australian Catholic Bishops Conference did not respond to requests for comment.

However, Bird had previously thanked the High Court for its careful consideration. He said, at the time of the judgment, the diocese would examine the findings and its implications.

A spokesperson for the Victorian government said the government had “always sent a clear message to child abuse survivors – we stand with you in your fight for justice and always will”.

“We are considering the findings of the High Court and any action we may need to take, and have raised the issue with the federal attorney-general,” the spokesperson said.

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