George Pell voices Ellis case "concern" to royal commission
Among the many hundreds of children abused by Catholic priests, John Ellis has a unique, dubious distinction: he’s the only one whose name has passed into the lexicon of the legal profession.
It is less than a decade old, the term “Ellis Defence”, and is actually something of a misnomer. Ellis was not a defendant. It might be more accurately called the Pell Defence, after the archbishop who was calling the shots as head of the Sydney archdiocese in 2007, when the NSW Court of Appeal effectively put an end to Ellis’s attempt to sue the Catholic Church.
The court confirmed that George Pell couldn’t be sued because he was not in charge when Ellis was abused. More important, it confirmed that the trustees of the church could not be sued because the trusts that control the church’s enormous wealth do not actually employ its priests, and so could not be held liable for compensation for the acts of those priests.
The priest who began abusing Ellis as a 13-year-old altar boy was dead, and so Ellis was left with no one to sue and a $500,000-plus liability for the church’s legal costs.
The Ellis Defence has been invoked innumerable times since then. Some parts of the church, more concerned with morality than legality, do not use the defence to shield their assets. The Sydney archdiocese, however, has consistently used “Ellis”.
But on Monday morning, just minutes before Ellis entered the witness box, counsel assisting the commission Gail Furness, SC, in her introductory remarks, dropped something of a bombshell.
She referred to a witness statement by Cardinal George Pell, not yet public because he was not due to appear until later in the week, in which he expressed “some concern” about the way the litigation between the church and Ellis had been handled. She quoted Pell:
“Whatever position was taken by the lawyers during the litigation, or by lawyers or individuals within the archdiocese following the litigation, my own view is that the church in Australia should be able to be sued in cases of this kind.”
The irony. John Ellis was thrice abused. First by a priest, Father Aidan Duggan, beginning when he was barely a teenager. Second by the church’s own internal processes for handling such matters. Third, egregiously, by the lawyers Pell sooled onto him, who drove him to the brink of bankruptcy and physical and emotional breakdown.
And now this from Pell – a seeming acknowledgement that the third abuse need never have happened.
We’ll return to the archbishop’s apparent damascene conversion, but first let’s go to Ellis’s story, which has waited so long to be told in detail.
It begins at Christ the King Church in Bass Hill, where Ellis was already an altar boy when Father Duggan came into the parish as assistant priest in late 1974. Duggan quickly took what Ellis described as a “special interest” in him and began inviting him back to the presbytery to talk and sometimes to eat.
Within a few months things progressed: first to hugging, then to Ellis sitting on Duggan’s lap, then to mutual masturbation, kissing and to oral and anal sex. Ellis was 13 when it started; Duggan was 54. Sometimes Duggan plied the boy with whisky, which relaxed him. Duggan often told Ellis he loved him.
The sexual contact continued regularly throughout the rest of Ellis’s school years, most often at the presbytery, but on occasions elsewhere. And it continued, more sporadically, after he matriculated.
In 1979 – the year he turned 18 – Ellis began studying to become a priest. Duggan gave him a Bible, which he still has, and they corresponded and talked on the phone during this time. They also met a number of times, and, says Ellis, on each occasion “there was sexual activity, initiated by Father Duggan”.
Ellis abandoned his priestly studies and got a job at an engineering supply company. In 1981, he began studying to become a registered nurse, qualifying in 1984. He placed first in the state in the registration board exam.
Even as he worked as a nurse, he kept studying, beginning an economics/law degree at Sydney University the very next year. Despite having to balance work and study, he excelled. In 1990, he received his Bachelor of Economics, having placed first in a number of economics subjects. In 1992, he got his law degree, with first-class honours.
Ellis was snapped up by an international law firm, Baker & McKenzie, and was promptly seconded to work for the state Department of Public Works, where he performed at the highest levels of the bureaucracy.
In 1996, he went back to Baker & McKenzie as an associate. The next year he was promoted to senior associate and the year after that he was appointed a salaried partner.
By his mid-30s, John Ellis had assembled the CV of a very smart, very hardworking, maybe even driven man. Certainly a successful one.
But his private life spoke of something else.
He met his first wife while studying nursing and they married in January 1986. Father Duggan officiated.
The marriage was immediately rocky. They argued; he drank too much. There was a brief separation at the end of 1986. But they patched it up, and in January 1987, had their first child. Father Duggan baptised her.
Ellis and Duggan continued a close relationship. They talked on the phone and Ellis went to see him several times at the Camperdown presbytery in inner Sydney.
In his statement, Ellis says that to the best of his recollection, each time he saw Duggan between 1979 and 1987, the priest “initiated sexual contact”.
It was confusing for Ellis. In his statement he wrote that, while this sexual contact was unwelcome, “I found it difficult to stop him from touching me. I had considered that Father Duggan had been kind and generous to me and I did not want to hurt his feelings by rejecting his advances.”
The only way he felt he could control the situation was by minimising the times they met. And so, at age 26, Ellis cut off contact, except for occasional phone calls. He filled his life with other things. He was studying part-time, working as a nurse, working as a part-time lecturer or tutor. He had a new baby, and soon another one on the way. In June 1988, a son was born.
He held it together for another five years or so, this life that looked, from the outside, so successful. Then things began to fall apart.
In January 1994, he divorced his wife. The following year, he attended the first of a number of encounter weekends, which he described as “peer ministry” events for divorced, separated or widowed people.
He was invited back as a facilitator, and in that role prepared a talk for the program, on the topic of “Trusting myself and others”.
“It was in the course of writing this talk that I first recognised Father Duggan’s conduct towards me as being abusive and wrong,” he says.
Until then, he had understood only that he felt “ashamed, embarrassed and uncomfortable” and had thought he was maybe homosexual or bisexual. He had kept his secret and blamed himself.
Up to that point of writing, he says: “I had thought that I had been a willing participant in the sexual interactions and that other people wouldn’t understand what had happened.”
After more than 20 years, he had finally admitted the truth to himself, that he was not a willing participant but a victim. He was not yet able to admit it to others, however.
“I was not then emotionally able to face the details of the abuse or explore the impact of the conduct other than to recognise that it had caused me to emotionally shut down.”
So he “packed it away again”, along with the notes he had made –which have now been tendered as part of his evidence to the commission – for another four or so years. “I found it much easier to just leave the whole issue suppressed and to get on with the rest of my life.”
In mid-2000, he married again. But the trauma of his abuse could not lie dormant. His second marriage encountered difficulties almost immediately. Ellis experienced “deep anger and resentment”. Within months of the marriage, he began “quite serious” self-abuse. “One of the things that sticks with me is picking up a big book and just bashing myself around the head with it. I didn’t understand why that was happening, what was going on.”
His wife, Nicola, pointed him towards a counsellor, and from December 2002, he began seeing her twice a week. She quickly diagnosed traumatic stress, even though Ellis had not told her about his relationship with Duggan. It was nine months before he revealed to her that he had suffered sexual abuse as a child, and he made the revelation only by email.
A few days later, he saw another counsellor, John Murray, a psychologist and former priest. At first they talked about his marriage problems. “I felt anxious and unloved and was having angry outbursts. I felt depressed. I felt unable to cope or manage my emotions. I also had a number of physical problems which I felt were related to my anxiety. I suffered from irritable bowel syndrome, weakness in the legs, tension in the stomach and constrictions and soreness in the neck.”
It was not until their fourth session that they spoke about the sexual abuse by Duggan. It was hard. Ellis stuttered and choked, as though there was “a restriction or barrier in my neck and it is keeping everything down”.
Soon after, Ellis found himself able to reveal Father Duggan’s name, and some details of the abuse to his wife. His counselling continued, and continues still.
The second abuse
Now to the second abuse, committed through the ironically named Towards Healing process, set up by the church to deal with cases of abuse.
Despite what had happened, John Ellis continued to attend church, and in early 2002, he saw a brochure at his church about Towards Healing. He called the number on it and spoke to John Davoren, the director of the Professional Standards Office which ran the program. Then they met in Davoren’s office, where Ellis outlined what had happened to him.
It was not helpful. As Ellis told the commission, he got the impression “very, very clearly” that Davoren was trying to dissuade him from making a formal complaint.
According to Ellis, Davoren’s words were to the effect of: “It was so long ago. Father Duggan is a very old man. Probably the best thing for you is to just put it all behind you and get on with your life.”
Davoren gave him no literature explaining how the process worked, and sent him on his way with the suggestion that he think about it some more.
On June 3, 2002, Ellis lodged a complaint. He sought four things: assurance that Duggan was not in active ministry; that he would receive from the church a personal acknowledgement of the wrong that had been done to him; that Duggan would be confronted with the complaint and acknowledge the wrong; and that the church would provide help and support in addressing the effects of his abuse.
Two days later, Davoren wrote to Pell, enclosing a copy of the complaint. Six weeks later, he wrote to say that Duggan, who was now in a nursing home, was in a poor mental state and had “variable memory”. Davoren went on to note that the next step in the process was usually to appoint an assessor to interview both parties, but that it appeared pointless under the circumstance to have Duggan interviewed.
In fact the protocols for Towards Healing required that an assessment be made even if the accused was unwilling to co-operate –indeed, even if the accused had died. Nor was there any discretion about appointing an assessor to investigate. Yet between June 2002, when the complaint was lodged, and May 2003, when he left the director’s job, Davoren did not appoint one.
Despite this failure to properly investigate, he wrote to Pell in December 2002, suggesting Ellis could not corroborate his version of events “in such a way that it would be possible to conclude on the balance of probabilities that the situation that he described did in fact take place”.
Pell in turn wrote to Ellis, expressing his regret that a clear resolution was not possible.
Ellis received that letter on Christmas Eve. He construed it as meaning the archbishop considered the matter over; that notwithstanding the lack of investigation, Pell had “slammed the door in my face”.
Still Ellis fought on. Having obtained for himself a copy of the Towards Healing protocol, he set about cataloguing the failures of process.
To cut a long story short, Davoren’s successor appointed an assessor and exactly 11 months after Pell’s brush-off letter, the assessor reported to the archdiocese that on the balance of probabilities, the abuse had occurred and had adversely affected Ellis’s mental, emotional and physical health.
By that time, Ellis had been separated from Nicola for more than two years. His work performance had suffered. But at least, under the Towards Healing process, he might now expect some acknowledgement of his suffering, some help with counselling, some spiritual guidance from the church. And some money.
When he and Nicola met with the church facilitator to discuss the issue, they were told there could be a gratuity payment – not damages or compensation in the legal sense, but a gesture of atonement and a means to help deal with the consequences. The payment would not exceed $50,000.
The couple figured they had spent somewhere between $125,000 and $160,000 on therapy and extra rental costs associated with their separation. They sought $100,000-$50,000 each. The church offered $25,000.
Then Ellis lost his job – Baker & McKenzie had required him to resign because of his declining relationships with other staff. The church upped the offer to $30,000.
As a condition of payment and of meeting Pell, the church’s offer required he sign a “deed of release”, giving up the prospect of future legal claims.
To again cut a long story short, he would not sign a deed for a paltry $30,000. But his lawyer wrote to the church, offering to sign a deed if they could reach a settlement that properly reflected Ellis’s loss and damage, and his anticipated future costs.
The letter was passed to the archdiocese’s insurers and in turn to their lawyers, Monahan and Rowell. But the matter was quickly transferred, at Pell’s personal instruction, to another legal firm, Corrs Chambers Westgarth.
And they played it very tough. At the very start of the process, before Corrs got involved, Ellis’s solicitor suggested mediation, something Monahan and Rowell strongly recommended. But on Corrs’ advice, the archdiocese rejected this. Also rejected was an offer to settle for $750,000.
And in court, notwithstanding the findings of the Towards Healing process, Corrs’ lawyers called into question Ellis’s “character and credit”, as Gail Furness put it. “They subpoenaed his former employer. They approached his former colleagues and ex-wife for statements. They issued a notice to produce documents relating to his divorce and custody dispute in the Family Court, and extensively cross-examined him during the hearing. That cross-examination included challenging him about whether he had been abused at all.”
In 2005, Catholic Church Insurance wrote to Danny Casey, the business manager for the archdiocese, fretting that Corrs were running the matter in a way “completely different” to long-standing practice, running up legal costs that were multiples of what might normally be expected, and doing it without having made a reasonable attempt at a settlement.
After they’d defeated Ellis, they informed him that he would likely be up for costs of up to $550,000. They offered to waive these costs if Ellis agreed not to seek leave to appeal to the High Court. The liability would have necessitated selling his house, where his wife and kids lived. He had to choose between putting his family at risk and doing what he thought was right. He consulted Nicola, and they rejected the offer.
Ellis went to the High Court and was refused leave. And for the next three years the threat of having to pay the costs hung over him. Eventually it was his wife who saved the situation. She went to the chancellor of the archdiocese, Monsignor John Usher, told him they could not pay, and advised that her husband was in a fragile psychological state.
And so ultimately they were not required to pay those legal costs, which amounted in the end to about $1.5 million. The church paid various costs for the Ellises, totalling $568,000 – for counselling, an overseas trip and renovations to their house. All because of a dreadful misunderstanding, we are to believe.
Still, it may not have been such false economy for the Sydney Archdiocese. Since Pell’s appointment in 2001, there have been 204 claims of child sexual abuse. Less than $8 million has been paid out.
Those who might contemplate legal action must first consider what happened to John Ellis.
Now Pell tells us he believes people ought to be able to sue the church. It will be interesting to see what exactly he means by that, and how he rationalises his new opinion against past practice, when he gets into the witness box.
Of course, it’s all going to be out of his hands soon anyway. For he has been summoned to Rome to take up the position of Prefect for the Economy of the Holy See, charged with overseeing the implementation reforms to the Vatican’s financial management.
Even his critics within the church think him a good man for the job. His pastoral care might have been heavily criticised over recent years, but no one has ever suggested he is not skilled at looking after the church’s money.
This article was first published in the print edition of The Saturday Paper on Mar 15, 2014 as "The long walk to justice". Subscribe here.