Trustees of the Roman Catholic Church - Judge Patten AJ - Assignment Example

Critical Commentary Your name Course Instructor Institution Department Introduction The case of the Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis & Anor [2007] herein Ellis, was heard and determined by the New South Wales Supreme Court. The court considered legal issues such as the vicarious liability of the archbishop of the Archdiocese of Sydney (herein the Archbishop of Sydney) and the Trustees of the Roman Catholic Church in the Archdiocese of Sydney (herein the Trustees). It also considered the direct liability of the Trustees, the direct liability of the Archbishop of Sydney for the acts of his predecessor, Archbishop Freeman, on the basis that he was a corporation sole. The presiding judge upheld the appeal of the Trustees and dismissed the cross-appeal of the plaintiff. The case clearly sets out the legal position regards litigation of past sexual abuse cases by priests in the Catholic Church. The legal position of the courts is that the no litigation proceedings can be brought against the Catholic Church in many cases of past child sexual molestation. This is even where it was determined that the church was aware or should have been aware of instances of child sexual abuse and failed to take action. This legal position contravenes Halls argument that law is a formal mechanism through which the society is able to understand and explain wrongdoing.1 Summary The plaintiff, Mr. Ellis, brought claims of sexual abuse to and proceedings were commenced in the New South Wales Supreme Court in 2004.2 Mr. Ellis alleged that, he was sexually molested by Aidan Duggan, the assistant priest at Bass Hill in the alleged period from 1974-1979 while serving as an altar boy.3 Mr. Ellis sued the Archbishop of Sydney, His Eminence George Cardinal Pell, on various grounds in tort, in a representative capacity of the Roman Catholic Church of the Archdiocese of Sydney, which is an unincorporated association, alleging that he had breached his fiduciary and vicarious duties in equity.4 He also sued the Trustees, as the second defendants in the suit, on various grounds in tort both directly and vicariously.5 He further sued Aidan Duggan- the assistant priest at Bass Hill, as the third defendant, who was the alleged abuser, for negligence and assault. However, Aidan Duggan, the third defendant, died in 2004, and the plaintiff abandoned his intention to continue the proceedings against him or his estate.6 The plaintiff attained the legal age of eighteen years in 1979 and, as a result, his claims in tort became statute-barred in 1985 in accordance with ss 11(3), 14 and 52 of the Limitation Act 1969.7 The trial Judge, Patten AJ, found that the Trustees could be sued, since they were a statutory body corporate with perpetual succession as provided for in the Roman Catholic Church Trust Property Act 1936. The judge therefore, granted an extension of time to the plaintiff to pursue his claim against them.8 He however noted that there was no basis upon which the plaintiff would bring a claim in tort against the first defendant as he was not a corporation sole, nor could he be regarded as a representative of an unincorporated association.9 Consequently, the New South Wales Court of Appeal upheld the appeal of the Trustees but dismissed the cross-appeal of the plaintiff.10 Legal Issues Raised in the Case The first legal issue that is raised in the case is the issue of vicarious liability for sexual abuses by the clergy in religious institutions. The manner in which members of the church relate with individual office holders in that Church is regarded as being remote from any category that legal precedent has found to entail vicarious liability.11 Vicarious liability exists where an employee’s intentional tort is as a consequence of the relevant conditions of employment and the employment environment, which create a real risk that leads to the commitment of a tortious act.12 Legal precedent has indicated that the relationship between an assistant parish priest and the parish members is too weak and diffuse, hence making it difficult to establish the existence of vicarious liability in tort.13 Another legal issue raised in this case is the issue of representative proceedings. Judge Mason P noted that representative proceedings may only be brought in tort claims for damages, where the plaintiff clearly shows that the numerous persons, for whom the defendant is alleged to represent, bear the same liability in the proceedings.14 In this case, the plaintiff invoked Pt 8 r13 of the Supreme Court Rules 1970 as the basis of a representative order whereby he claims Archbishop Cardinal Pell was appointed to represent the Archdiocese of Sydney. Judgments Judge Patten AJ stated that the plaintiff failed to clearly define the terms of his representative order since he gave no indication whether he was seeking to bind all members of the Roman Church in the Sydney Archdiocese at the time of the alleged tort, the time when the proceedings were commenced, or the time of judgment.15 This omission, according to Judge Patten AJ, erected insurmountable obstacles to establishing liability against the intended class or classes.16 The Judge noted that tort claims against the members of an association with fluctuating membership can only be sustained where the court is able to formulate a representative order that confines relief that only binds the members at the date of an isolated tortious event. As such, it could not suffice that Archbishop George Cardinal Pell and the Trustees would be sued as representatives of the Archdiocese of Sydney, since they were not respective members of their then positions at the relevant time (1976-1979) of a tortious act. Judge Mason P held that there was no basis upon which the cause of action in tort could be maintained against Archbishop Pell, who was the first defendant in the case, but however held that held that there was an arguable case against the Trustees of the Roman Catholic Church for the Archdiocese of Sydney.17 The presiding judge noted that liability in tort including vicarious liability is personal and as such actions in tort died with the wrongdoer. He consequently based on this legal reasoning dismissed the plaintiff’s submission that the Archbishop of Sydney is a legal person who is liable for the obligations of his predecessor based on perpetual succession. According to the presiding Judge, Patten AJ, the plaintiff did not present evidence to show that the assistant priest was engaged or employed by either the first or the second defendants, let alone by all of the members of the Church in the Archdiocese of Sydney, during the relevant years- (1974-1979). Judge Patten AJ however noted that it was arguable that the appointment of and licensing of Aidan Duggan as the assistant priest of Bass Hill by the then Archbishop Cardinal Freeman would render the appointing archbishop vicariously liable for the torts committed by the priest while executing his duties as a priest under the control of the Archbishop. The judge further ruled that the appointment, management and removal of priests in the Catholic Church are not functions that the law confers upon corporate or natural persons,18 and hence dismissed the representative order against the Trustees. He noted that although the Trustees are themselves agents of the wider Church, nothing in the Roman Catholic Church Trust Property Act 1936 makes them the universal representatives of the Church within the Archdiocese.19 Commentary There exists a deep connection between law and justice.20 The essence of law as a formal mechanism through which the society is able to understand and explain wrongdoing is important in addressing the issue of abuse of children under institutional care,21 as is the case in Ellis. Thus we can loosely say that the essence of the existence of law is to administer justice. In this respect, the fact that religious institutions have relied on the provision of law to seek the dismissal of tortious claims against them and the courts have heed to their requests is troubling. Further still, the extent to which a religious organization can be vicariously liable in civil law for the wrongdoings of its employees and agents are unclear in Australian law.22 Institutions should be held liable for their negligence in allowing their employees or agents to abuse children under their care, or for not recognizing and responding objectively to cases of child abuse.23 Hall (2006) further explains that the relationship between structural and willful institutional blindness, also justifies direct as opposed to vicarious liability regarding third party perpetrators of harms. Hall (2006) further states that there exists vicarious liability where an employee or agent of an institution commits an intentional tort as a result of the working conditions that create a real risk that what did happen would happen. The components of control, intimacy and isolation created the requisite risk/connection that led to the third defendant sexually abusing the plaintiff. The courts should consider the different types of justice as identified by Lawrence Solum such as distributive justice, corrective justice, political justice, procedural justice, and retributive justice to ensure that victims in sexual abuse cases by the clergy are served justice.24 For instance, distributive justice can be applied under tort law cases grounded on vicarious liability to ensure that the to ensure that the plaintiff's need for compensation, as one of the provisions of justice, is met regardless of whether the defendant was directly responsible for generating that need.25 The Court seems to have relied wholly on procedural justice in the case of Ellis, which to my opinion resulted in a miscarriage of justice for the victim. By relying on the omission by the plaintiff to disclose whether he was seeking to bind all members of the Church in the Sydney Archdiocese at the time of the alleged tort, the time when the proceedings were commenced, or the time of judgment,26 and dismissing the plaintiff’s representative order, the judge was only following procedural justice, which to my opinion was to justify their decision rather than relying on other forms of justice such as distributive justice that best protects the rights of the victims. The provisions for statutory time limits in child abuse cases as well as the provisions that allow the courts to extend these time limits only serve to deny legal remedies to these plaintiffs.27 Judge Patten AJ made orders extending the limitation period against the second defendants until 30th August 2004, but dismissed the limitation period for the causes of action pleaded against the first defendant citing the Limitation Act 1969, ss11(3), 14, 52.28 Peter Cane proposes a mixed theory approach to tort liability by explaining different conceptions of justice that form the basis of and justify the imposition of liability in the law of torts.29 According to Cane, the conduct based conception of justice in tort law emphasizes on the causation of damages on the part of the victim. This conception was premised on the fact that the defendant had knowledge of the circumstances under which he/she committed the tortious act and of the possible damage that would accrue as a result of the act. Peter Cane also notes that even where there was no intention or negligence on the part of the defendant, the defendant would sometimes be held liable as a matter of public policy, ideally where there was a need to circumvent the difficulties of proof of negligence or vicarious liability.30 This conforms to Lawrence Solum’s political justice.31 Relying on Cane’s conduct-based conception of justice in tort law, the plaintiff would base his argument on Cane’s proposition that the duty in negligence is not one to take care, rather one not to cause damage by failure to take care. A needs-based conception of justice forms the foundation of joint and vicarious liability32. He states that the objective of this conception of justice is to ensure that the plaintiff is adequately compensated regardless of whether the defendant was in any way morally responsible for the tortious act. He further notes that vicarious liability may be justified where there is reason to seek an equitable distribution of benefits and burdens. It has been noted that victims of sexual abuse may feel shame in engaging in civil litigation systems or the criminal justice system, or may mistrust the system.33 This may be in part due to a lack of understanding of the complexity of child sexual abuse matters within the court system.34 As such, there is a need for the development of alternative avenues that can serve justice to such victims outside the criminal justice system, such as restorative justice system proposed by Theo Gavrielides.35 The restorative justice system has advantages that are not available in the formal criminal justice system. For instance, restorative justice provides an opportunity to both the offender and victim to restore their relationship.36 Consequently, the focus of restorative justice is on the restoration of human relationships in a way that reunites two individuals as well as an individual’s relationship with the community at large.37 Conclusion The case of Ellis clearly demonstrates the law's perceived deficiency and incidental inability to befittingly respond to the range of needs created by child sexual abuse cases by the clergy. This is the exact opposite of Hall’s argument that law is the formal mechanism through which society understands and explains wrongdoing. The legal position of the courts that no litigation proceedings can be brought against the Catholic Church regards child sexual abuse cases even where the church was aware or should have been aware of instances of sexual abuse of children and failed to take action, is a blind-spot in the criminal justice system in Australia that needs to be addressed to ensure justice for victims of child abuse by the clergy. The case also highlights a number of legal issues that the criminal justice system has failed to effectively address under cases of sexual abuse by the clergy. Relying on the doctrine of precedent in such cases to establish the legal reasoning in such cases seems to rely on procedural justice and seems to result in the miscarriage of justice. Presumably so, the case raises a number of issues that have plagued the ability of victims of child-sex abuse to successfully sue religious organizations of the alleged perpetrators either on the basis of direct or vicarious liability, or in negligence. Among the issues identified and which are relevant to this case include: instances where there is no defendant to sue; where no assets of the potential defendants are available; lack of clarity regarding the vicarious liability of institutions; and the expiry of the set time limit for the claim to be lodged. In most of the historical sexual abuse cases, the person allegedly responsible for committing the abuse will have long been deceased by the time a claim is made. Further, the organizational structure of most religious organizations, as is the case of the Roman Catholic Church of the Archdiocese of Sydney, presents a barrier to civil law claims. This is because, religious organizations are ordinarily unincorporated associations with no legal ability to sue or be sued. The structure also stipulates that occupiers of religious organization’s offices may exist as sole corporations or have liability as individuals. Another issue is the fact that most religious organizations in majority of the Australian states have created trustee corporations with perpetual succession, tasked with the acquisition, disposal, holding and dealing with property on trust for them, and nothing outside these activities, with no legal entity to represent the organizations per se. This means that such corporations although legal entities in their nature cannot sue or be sued for activities outside their legislatively defined activities. Consequently, the case provides a justification for the need to adopt various recommendations for amendments of the civil litigation system in Australia, in a way that adequately addresses these issues and strengthens the civil system. Further concerns have been raised regards the success rate of civil cases for victims of child sexual abuse, because some victims feel shame to report the cases or simply mistrust the entire criminal and civil justice system. Propositions have been presented for the development of alternative avenues outside the formal justice systems to enhance access to justice by victims. One such alternative is the restorative justice system proposed by Theo Gavrielides. Bibliography Dr Ben Mathews (2003). Limitation periods and child sexual abuse cases: Law, psychology, time and justice, Torts Law Journal 11(3), pp. 1-21. Justin Gau, Ruth Arlow and Will Adam (2008). Trustees of the Roman Catholic Church v Ellis. Ecclesiastical Law Journal, 10, pp. 373-375. Law Council of Australia (2014). Civil Litigation: Issues Paper 5. Available at www.lawcouncil.asn.au accessed June 9, 2014. Solum, Lawrence . "Legal Theory Lexicon: Legal theory Lexicon 018: Justice." Legal Theory Lexicon. https://www.google.com/url?q=http://lsolum.typepad.com/legal_theory_lexicon/2004/01 legal_tFind a website by URL or keyword ... (accessed June 9, 2014). Margaret Isabel Hall (2006). Institutional Tortfeasors: Systemic Negligence and the Class Action, Torts Law Journal, 14 (2), pp 1-17. Peter Cane (1982). Justice and Justifications for Tort Liability, Oxford Journal of Legal Studies, 2(1), pp. 30-62. Theo Gavrielides. Clergy Child Sexual Abuse and the Restorative Justice Dialogue, Journal of Church and State, 55(4) pp. 617–639. Trustees of the Roman Catholic Church v Ellis & Anor [2007] NSWCA 117. Read More