More Developments In Australia

by jonahstourguide 12 Replies latest watchtower child-abuse

  • jonahstourguide

    Some results of the Royal Commission in Australia

    Catholic Church Ellis defence scrapped in 'momentous day' for abuse survivors
    By Michelle Brown
    Posted about 2 hours ago

    John Ellis speaks to the media outside the NSW Supreme Court.
    PHOTO: John Ellis, a former lawyer, tried to sue the Catholic Church for negligence (AAP: Paul Miller)
    RELATED STORY: NSW child abuse survivors to be allowed to sue churches
    After an 11-year battle, survivors of institutional child abuse locked out of suing for compensation will be able to launch civil claims from today.

    Key points:

    The Ellis defence prevented abuse survivors from suing unincorporated organisations including churches and other institutions
    The move to scrap it came after recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse.
    From today, an institution must nominate a defendant with sufficient assets to pay a survivor's claim.
    The so-called "Ellis defence", which prevented abuse survivors from suing unincorporated organisations including churches and other institutions, is today abolished after the NSW Government removed a legal road block.

    The move came after recommendations from the Royal Commission into Institutional Child Sex Abuse.

    John Ellis, whose failed Court of Appeal case against the Catholic Church in 2007 gave rise to the defence, has praised the Government's action.

    "It's fantastic news," he told the ABC.

    "It really is a momentous day to have those changes finally commence.
    "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 that opportunity before.

    "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."

    A long road to redemption

    Mr Ellis, a former altar boy, had waited years before deciding to sue the Catholic Church for abuse he had suffered at the hands of a priest.

    Ribbons outside St Patrick's in Ballarat, in support of survivors and victims of child sex abuse.
    PHOTO: The reforms will enable abuse survivors to sue for compensation (ABC News: Danielle Bonica)
    However, the priest responsible for the crimes had died, and the Archbishop of Sydney was not considered responsible for the actions of his predecessor.

    By the time Mr Ellis decided to take legal action, he had no-one to sue.

    In 2007, on appeal lodged by the Catholic Church, the court found the church did not legally exist because its assets were in a legally protected trust.

    A new era

    From today, an institution must nominate a defendant with sufficient assets to pay a survivor's claim.

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    If not, the court can appoint associated trustees who can get access to trust property to pay the compensation.

    NSW Attorney General Mark Speakman said the changes to the law were retrospective, making them accessible to survivors of past, present and future child abuse.

    "This means all survivors of institutional child abuse in NSW will now have the same access to compensation through civil litigation, no matter what kind of organisation is responsible," he said.

    John Ellis said his quest for redress took a heavy personal toll.

    "We took the church on through the courts and we were unsuccessful," he said.

    "Personally I thought I'd done a great disservice to survivors, because now it was in black and white that you can't sue the church.
    "More recently, through the period of the royal commission, and through the recognition of the community [and] the support of the NSW Government in quickly implementing the changes that have been recommended, I've felt very supported.

    "I've felt very grateful for living in a country where that's possible."


  • Slidin Fast
    Slidin Fast

    I can hear the gates squeaking as the rusty hinges are forced to give way.

  • cofty

    This sounds really significant.

  • ScenicViewer
    The Ellis defence prevented abuse survivors from suing unincorporated organisations including churches and other institutions
    The move to scrap it came after recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse. (Bold added)

    It's been said a few times that the Royal Commission, although doing good work in exposing child abuse, actually has no teeth to bring about change - a 'toothless tiger' I think it was called. This ruling proves just the opposite, that the ARC is influencing great change, and hopefully it will reach to Watchtower.

  • no-zombie

    While I'm not a lawyer by any means (nor a current Elder privy congregational arrangements), I do think that legally the Australia Branch doesn't know what to do. Relatively recently, Kingdom Halls/Congregations became individual charities, to no doubt separate Watchtower assets from the Branch. Similar to what has been done in other countries, as I understand.

    The paperwork for maintaining these charities is renewed every year. However I heard a few days ago that our congregation was told to hold off on doing it. Whether its linked to the Ellis Defense and the commencement date for the liability of parent organizations to assume responsibility for congregational child abuse claims, I don't know. But it does seem suspicious to me. But if that is linked, then perhaps paying the government fees for continuing the 786 individual charities in the country, rather pointless.

    Regardless, it does seems that playing the shell game is over in Australia, and the attempts to legally hide its assets by deflection is not going to work any more ... as once more onus returns back to the branch to provide compensation. This, plus the retrospective ruling will making things a lot harder for the Organization here, which will undoubted lead to more civil actions against it and more sell-offs. Which may even include the Branch complex, which effectively does nothing more that administrative tasks, due to the fact that its printing work has be assigned to Japan and the Design office to an South Sea Island country. 2019 might be rather interesting, in our land down under.

    no zombie

  • jonahstourguide

    Looks like it got scrapped earlier in the state of Victoria,,,, I missed that. I will check how many other states are going this way here in Oz. Oh and yes no-zombie,, there does seem to be some vacillation and trepidation down here.

    'Ellis defence' scrapped as Victorian law change opens church up to abuse legal action
    By Danny Tran and Matt Neal
    Updated 28 May 2018, 9:18am

    John Ellis, wearing glasses and a hat, sits on an outdoor bench.
    PHOTO: John Ellis says it feels good to have his name unshackled from a legal loophole used by the Catholic Church. (ABC News: Danielle Bonica)
    RELATED STORY: The advocates and agitators who fought for child abuse survivorsRELATED STORY: Victoria moves to close loophole that prevents abuse survivors from suing churches
    It was only years later, long after he had been admitted to practise as a lawyer, that John Ellis decided to exercise his legal right to sue the Catholic Church.

    As an altar boy, he'd been abused by a paedophile priest. Now an adult, he sought damages.

    But Mr Ellis ultimately failed because the church successfully argued it did not legally exist as its assets were held in a trust, and that was protected from legal action.

    And in a galling circumstance of fate, Mr Ellis's name was unwittingly shackled to the method the church had used to avoid the legal action. Since then it's been known as "the Ellis defence".

    But last night, more than 16 years after the fact, the Victorian Government passed a law closing the legal loophole.

    "It's a red letter day … to have that shackle be broken," Mr Ellis said.
    Hundreds of colourful ribbons tied to a fence outside a church.
    PHOTO: Experts estimate the Ellis defence has saved the Catholic Church millions of dollars. (ABC Ballarat: Dominic Cansdale)
    "By taking away the legal defence that they have, that puts people in a much stronger position and it puts the church on the same footing as any other entity or organisation in society.

    "That's all we've been asking for, for all these years."

    Mr Ellis is hoping the move will inspire other Australian states and territories to follow suit.

    The new law marks a significant shift for survivors of clergy abuse who, until now, have had to rely on the goodwill of the church to nominate a legal entity, like a bishop, who would agree to be sued.

    Now, unincorporated organisations like religious groups must nominate a defendant with assets, capable of being sued.

    Defence saved church 'millions'

    According to Judy Courtin, a lawyer who represents victims of institutional abuse, the passage of the law represents a significant change to how the church will be held accountable.

    "This defence which they've hidden behind … I would say has saved the church millions and millions of dollars," Dr Courtin said.
    "Victims have never been on an equal footing particularly in terms of the law, and so this now hopefully provides … an access to the courts that's been denied them forever."

    Victoria's Attorney-General, Martin Pakula, said it was a "momentous" change.

    "We think the combination of this legislation and the legislation that removes the statute of limitations will make it so much easier for child abuse survivors to get appropriate compensation," he said.

    "It now means that organisations will have to nominate a proper defendant with assets that is capable of being sued, and if they don't the court will nominate one for them."
    The ABC has contacted the Australian Catholic Bishops Conference for comment.


  • cofty

    Keep us posted

  • jonahstourguide

    Ok, I've found this on Shine Lawyers web site.

    I have bolded and italicized their summary.

    Seems many of us here thought the ARC as another toothless tiger but the individual state governments have taken some note. Fantastic news for all affected.

    Changes to WA Abuse Limitation period

    On 18 April 2018 the Western Australian Government passed historic changes removing the three year statute of limitations for survivors of childhood sexual abuse. Until the passing of these changes Western Australian survivors had only three years from the date that they turned 18 to bring a claim for childhood sexual abuse. The recent changes mean that Western Australian survivors can now access their rights to compensation through the civil justice system.

    The passing of the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill (WA) 2017 has been a long time coming for Western Australian survivors following recommendations from the Royal Commission for removal of the limitation period in its Redress and Civil Litigation Report delivered on 14 September 2015.

    An overview of the legislation

    The bill amends the existing Civil Liability Act 2002 (WA) and the Limitations of Actions Act 2005 (WA).

    Changes to the Limitation period

    Amendments to the Limitation Act 2005 are in Part 3 of the Bill and remove the limitation period for bringing a civil action for childhood sexual abuse.

    These changes implement recommendations 85 to 86 of the Royal Commission’s September 2015 Redress and Civil Litigation Report. The changes bring credence to the Royal Commission’s findings that:

    “Many victims do not disclose child sexual abuse until many years after the abuse occurred, often when they are well into adulthood. Survivors who spoke with us during a private session took, on average, 23.9 years to tell someone about the abuse …”[1]

    The amendments also strive to remedy injustices of the past caused by the previous strict operation of the limitation period by allowing survivors to commence a cause of action even though they may have previously received a court judgment preventing them from proceeding with their claim due to the expiration of the limitation period. In addition the changes allow survivors, on the meeting of certain conditions, to commence a court action where they have previously settled a claim for the childhood sexual abuse. This will allow survivors who have previously settled their claims on a compromised or reduced basis, due to the limitation hurdle, to seek the full compensation which to they are entitled.

    Changes to Defendant entities and access to assets

    Importantly, the legislation also introduced a new Part 2A to the Civil Liability Act 2002 (WA) entitled “Child Sexual Abuse Actions” which overcomes the difficulties that many survivors face in identifying a proper defendant to sue and in being able to satisfy a judgment or settlement from an institution’s particular asset holding structure.

    Part 2A allows survivors to bring a legal action against the current officer holder of both incorporated and unincorporated institutions regardless of whether that institution has now changed its name, organisational structure, incorporation status or geographic area. Part 2A also stipulates that any judgment or settlement may be satisfied out of the assets held by that institution, including assets of any trusts held by the institution. The amendments also allow survivors to take action against the successor of the institution, or the Head of the Institution, in circumstances where the specific institution where their abuse occurred no longer exists.

    These amendments are a very significant step forward for survivors of abuse where previously institutions have been able to avoid their legal responsibilities and protect their assets from being used towards satisfying a judgment or settlement through the “Ellis” Defence. The “Ellis” Defence arose from the New South Wales Court of Appeal decision of Trustees of the Roman Catholic Church, The Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 wherein the Court held that church assets could not be subject to orders for compensation for child abuse crimes perpetrated within the church, because church trustees could not be held to account for the crimes of individuals.

    Cap on legal fees

    For further protection of survivors, the new Part 2A to the Civil Liability Act 2002 also introduces a cap on legal fees which limits legal practitioners from receiving legal fees in any greater sum than is provided for by any costs determination. The costs determination will be made by a Legal Costs Committee comprising three independent members of the legal profession and three non-lawyers. These changes will ensure that legal fees charges to abuse survivors are just and equitable.

    How do the WA changes compare with other States?

    Despite the lengthy wait for Western Australia, the good news is that some aspects the WA legislation are far more beneficial than similar legislation which has been passed in other states. Most significantly, as discussed above, the WA government has introduced laws preventing institutions from using the “Ellis” Defence in avoiding legal claims. No other Australian state has yet enacted similar changes (although Victoria is likely to soon follow suit with the introduction of the Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 in March 2018).

    Unfortunately the Western Australian government has joined Queensland and the Australian Capital Territory in limiting the abolishment of the limitation period to claims for childhood sexual abuse. The Victorian, New South Wales and Northern Territory governments have all introduced legislation which abolishes the limitation period in respect of sexual abuse, serious childhood physical abuse and associated psychological abuse. It has been well recognised by the Royal Commission that physical and psychological abuse often go hand in hand with childhood sexual abuse and can have similarly devastating impacts upon survivors throughout their lives. It is disappointing that the Western Australian government has not legislated to include rights of action for survivors of childhood physical and associated psychological abuse.

    The legislative changes by the Western Australia government now leave South Australia as the only Australian State not to have implemented changes in some form in line with the Royal Commission’s September 2015 recommendations.

    [1] Royal Commission into Institutional Responses to Child Abuse, Final Report: Identifying and disclosing child sexual abuse, Volume 4, page 9.

    Written by Shine Lawyers on May 4, 2018. Last modified: September 6, 2018


  • zeb

    Phew! This does sound very significant.

    Er.. anyone put their hand up to be an Elder? The removal of this defence has just put huge cracks in the standard defence of the wt in these matters and I venture in its right to exist.

    This announcement must have put more shudders through the commune in NY.

  • waton

    This explains why wt did not want to admit that the governing body members personally hold power, the Faithful Slave does exist.etc. squirming, like nailing jelly to the wall, now these yellow masses as such are liable.

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