New legislation will have an impact on Sexual Abuse Claims

Parliament House in Melbourne, Australia

Recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse have led to a new Act that will aid child sexual abuse victims.

When John Ellis, a former altar boy, sued the Catholic Church for sexual abuse experienced at the hands of a priest, he began a lengthy process that has culminated in a change to laws that will help other child abuse victims to seek compensation.

By the time Ellis felt able to take legal action to highlight the abuse, the Catholic priest who perpetrated the abuse had died. In 2007, the Ellis case ended when the court found the Catholic Church had no legal identity so could not be sued. Ellis and his case came to a legal dead end.

The ramifications of this decision for other child sexual abuse victims was far-reaching. Essentially, the Ellis case meant that institutions and organisations that put their assets in a trust and that were unincorporated entities in the eyes of the law had no legal personality – so could not be sued for damages. This included churches, schools, charities, sporting clubs and many youth organisations.

The new Legal Identity of Defendants (Organisational Child Abuse) Act 2018 closes this loophole and opens the door for child abuse victims to begin legal proceedings against unincorporated non-government organisations that use trusts to conduct their activities. The Act came into force on 1st May 2019.

“At law, companies have legal personalities, like people – but a trust didn’t. So, you couldn’t sue a trust – you’d have to sue each of the trustees or members that made up the trust who were personally liable. For all legal purposes, a trust couldn’t be sued,” explains Thomas McCredie, Partner at Mazzeo Lawyers.

“In lay terms, this new piece of legislation allows for the trust to stand in the shoes of a proper defendant – so now the person bringing the claim can bring it against the trust, and the trust can act as a proper defendant to a claim.”

“The significance of the new Act is that anyone who was previously prevented from bringing a claim against a non-government organisation that used a trust to conduct its activities can now bring that claim. The intention is to assist victims of organisational child abuse in obtaining relief where they’ve previously been prevented from doing this by the difficulties in taking action against trusts.”

John Ellis, whose predicament highlighted the unfairness of the previous legal situation, was pleased with the legal change that will help future child abuse victims seek recognition and redress.

“It will mean [survivors] are able to get recognition from the Catholic Church and other institutions that are set up in the same way, where they haven’t had the opportunity before,” he told the ABC.

“Up until now, people have been relying on the good will of the institution or the willingness of the institutions to take accountability, and if an institution decides, as they did in my case, that they don’t want to take accountability, then they won’t be able to put that roadblock in the way of the survivor.”

Thomas McCredie is a Partner at Mazzeo Lawyers


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