From Schwartz Media. I'm Ruby Jones. This is seven am.
Are Catholic priests employed by the church or by the hand of God? This question was at the heart of a five year legal battle between a survivor of child sex abuse seeking compensation from the church and Bishop Paul Bird of the Catholic Diocese of Ballarat. The decision by the High Court in November last year that the church does not employ priests and is therefore not liable, came
as a surprise to lawyers and survivors alike. We're the only common law country, including Ireland, that feels this way today. Lawyer and advocate representing victims of institutional abuse Judy Corton on the far reaching consequences of this decision and how the courts continue to fail victim survivors. It's Thursday, March twenty and a warning this episode contains descriptions of abuse.
Judy, to begin with, could you.
Tell me a bit about how you came to be in this role representing victims of institutional abuse.
Sure, I didn't do law until late in life, until I was a bit of an old chick. But just as I was finishing my law degree, I was doing an honest thesis on research looking at the number of convictions of child sexual abuse in Victoria, New South Wales, and how many were appealed and why and so on. And one of my nephews was staying with me at home.
He was then about thirty one. I was telling him about the research, so he disclosed to me what happened to him when he was age eleven with Christian brothers, horrific, horrific sex crimes. I looked up the law in the area and realized that he had no pathway at all for accountability or justice. So I decided to practice. And when I started practice, role commission was on, so I was involved in that as well. And here I am.
And so in the time that you have been practicing, you've mostly been working with civil cases. Could you explain to me why these are civil cases rather than criminal What it takes to get a criminal conviction against the perpetrators of these kinds of abuses.
The reason we have more civil claims than criminal convictions is that it's really hard to get a conviction if we have, say, one thousand people in the community who were sexually assaulted as children. This is not just institutional but across the board. You'll get a maximum of one hundred of that thousand reporting to police. Once they've reported, there's this diminution all the way through the criminal process and we end up with about six and a half
convictions at the end of the day. Even if you get a conviction, there is a likelihood it will be appealed and it will be successful. Also, many offenders are dead because it makes ten twenty, thirty, forty fifty sixty years for a person to be able to talk about this. It means that a lot of offenders have died, but that does not necessarily stop a civil claim. And overall it's the institution that we sue because they have insurance. There's no one else to sue.
Right, But that is under a cloud now because of a recent High Court decision, the case of Bird versus DP. So can you tell me about that case and what it means for people pursuing civil claims against the church.
So Bird is the current Bishop of Ballarat, Bishop Paul byrd DP is a pseudonym for the plaintiff, the victim.
The survivor.
He was sexually assaulted on two occasions by the then assistant parish priest father Coffee in Port Fairy, and he was sexually assaulted both time in his home. Now he issued proceedings in the Supreme Court of Victoria in twenty twenty for psychiatric harm caused to him by Coffee's offending. Now DP said that the diocese should be negligent and that they should be also what's called vicariously liable. So negligence, we have to prove that the institution had a duty
of care to prevent harm to the child. But we also have to prove they breached the duty, and that can be a very difficult thing at times because it involves having evidence of a prior complaint. So someone has complained to the institution before DP was assaulted. For example, we learned from the Royal Commission that not only were complaints not documented, but where they were oftentimes that evidence has been destroyed. So if we don't have that evidence,
we then turn to what's called vicarious liability. It's a second sort of legal hook which iry and hang a hat on. Now, historically vicarious liability, we don't have to prove the institution was at fault. Rather, there are two boxes. We've got a tick. One is that there has to have been an employment relationship between the offender and the employer or the institution. And second that the offender committed the crimes or crime during or within the course of their employment.
Okay, So DP was arguing that the Catholic Church was vicariously liable for his assault because Father Coffee committed those crimes in the course of his employment by the Catholic Church.
Yeah, so DP. This was the first time our High Court has considered vicarious liability in a Catholic matter. Now, the Catholic Church has argued forever that priests, brothers, nuns or members of the clergy are not employed, there's no employment relationship, therefore there's no vicarious liability.
And what did the court find.
Well, we're pretty much all assumed our High Court would follow the trends in other common law countries in Canada and the UK, even Ireland, but it didn't. In fact, it went further backwards, a very much a retrograde decision, and it took the employment relationship component of vicarious liability very literally. And because they agree that priests and brothers and nuns are not employed, therefore there's no vicarious liability.
So if they're not employed, what are they exactly exactly.
You know, are they employed by God? Does canon law have the provisions for them to be employed? Certainly they are acting as if they are employed. They are appointed, They have a stipend, they have a car, they get holiday leave, they get private health insurance, they get sick leave. In an our eyes, they are employed. So it's quite extraordinary because if a twelve year old child is raped by a state school teacher and there's no prior knowledge of that offender, the state or the school will be
held vicariously liable. But that very very highly technical argument. There's no employment contract like there would be with the state school teacher. They're considered not employed.
Okay, And so how does this decision affect DP and his attempt to get compensation.
Well, DP has lost his case and there is nothing more that anyone can do for DP. We don't have any further avenues of appeal. So this is a massive, massive defeat. One of the important things to note here is that the High Court and the lower courts too believed DP. There's no question that the abuse didn't happen. So this is an example yet again where the Church will say yes, the abuse happened, but we're not going
to be responsible for it. So for DP, I can't imagine how this has affected him and will continue to affect him.
Coming up the ripple effect of this case on thousands of other victims.
Hi, I'm Daniel James. Seven Am tells stories that need to be told. Our journalism is founded on trust and independence, and now we're increasing our coverage. Every Saturday until the election will bring you an extra episode to break down the biggest political moments of the week. If you enjoy seven Am, the best way you can support us is by making a contribution at seven am podcast dot com, dot au slash support. Thanks for listening and supporting our work.
Judy, tell me more about the consequences of this decision by the High Court. How many people do you think are likely to be affected by.
This So at the moment, about a third of all my clients have been directly impacted. I mean my estimates are in Victoria alone, there would be at least two thousand people who have been directly affected by this decision. They're not all within the court system. Some will be just started, some will be in the middle and so on. That's just Victoria around the country. Who knows many thousands would have to be many thousands. One of the problems we have our clients who already have a claim in
the Supreme Court, they've got nowhere to go. It's not easy to get the trial vacated or adjourned because the court says you've got to use the law at the time. Now, interestingly, though, the High Court has handballed this legal problem to the states and the territories. So it is possible to have legislation which reverses the decision of the High Court. In fact,
that's what the High Court has suggested happen. And at the moment we're certainly campaigning very strongly for all the states and territories to introduce urgent, urgent legislation to change that outcome, which would show that Catholic clergy members their relationship is akin to employment and the diocese of the institution can be held vicariously liable.
Okay, So there's a real sense of urgency then to have the legislation changed before a lot of these cases go to court.
Absolute urgency. And you know our clients, I know some of them when we had to talk to them at the end of last year after this decision and what it would mean. They're very very distressed. A couple were even suicidal. You know, they've been fighting now for some of them have been in the legal system, the court system for three, four or five years, and for this to happen right near the end of their matter, very very distraught.
And so you've spoken about your clients, but there are also many people in the community who have never disclosed abuse and have never tried to seek justice. So what does this decision in the had Court, I mean, what does it say to them that this route has been effectively blocked, this compensation route.
At this moment in time.
I would still encourage people to come forward. Look, Victoria has been the forerunner in Australia, the state forerunner for really important critical legislative reforms. Victoria has been the first all the way. In fact, we were the only state to hold at the time, a parliamentary inquiry into non government organizations and child sexual abuse. We were pushing this is back in twenty eleven. We were pushing for a royal commission. Then we got a Victorian parliamentary inquiry and
they produce some very important recommendations. For example, in twenty fifteen, we got rid of what's called the Statute of Limitations. Three years later we got rid of another big legal defense to do with the Catholic Church, called the Ellis defense. So Victoria has a great history and it has the opportunity now to be the first again. This legislation has to pass, and I would encourage people to still come forward. We don't want more deaths and suicides. But the shame
here is with the church. All these pledges and promises through the Royal Commission, you know where the church was saying we'll be model litigants, will be compassionate, will be empathetic. It's just bullshit. I'm sorry, you know, it's just bullshit. They don't give a damn And to use a highly technical argument like this to further crush victims is totally unconscionable. It's just appalling. You didn't have to do it. He didn't have to do it.
Judy, thank you so much for your time.
Thank you.
The Survivors and Mates Support Network provides support for male survivors.
Of child sexual abuse.
You can call them on one eight hundred forty seven two six seven six. You can also call Lifeline at thirteen eleven fourteen for twenty four to seven crisis support. Also in the news today, Israel is vowing to maintain its renewed bombing of Gaza, saying the attacks won't stop
until all hostages seized by Hamas are returned. Israel strikes are the largest by far since a formal ceasefire took effect in January, with the Gazan Health Ministry putting the death toll at over four hundred and A new treatment for endometriosis will be added to the list of subsidized medicines in a move that is expected to benefit thousands
of Australian women. Roughly one in seven Australian women suffer from endometriosis, where tissue similar to the lining of the womb grows elsewhere in the body, causing extreme pain and affecting fertility. The government says the new treatment, ri Echo, will be added to the PBS on May one. I'm Ruby Jones. This is seven am.
Thanks for listening.