Historical Abuse – What is the ‘Ellis Defence’?

The ‘Ellis Defence’’ was commonly used by those associated with historical child abuse claims, but what does it mean?

The Ellis Defence arose in the case of Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis & Anor [2007] NSWCA 117 (“the Ellis Case”). In this case, Mr Ellis brought a claim against the Roman Catholic Church for the Archdiocese of Sydney (“the Diocese”) on the basis that he had suffered historic sexual abuse.

The Diocese argued that while all the property of the Church was held by the trustees in each diocese, who were incorporated under 1936 NSW legislation, those trustees were not responsible for the conduct of the clergy and there was no legal entity available to be sued in respect of the misconduct of the clergy themselves. The Court upheld the Diocese’s argument and Mr Ellis was ultimately denied the opportunity to have his case determined on its merits as it was found there was no proper defendant to sue.

Mr Ellis’ case was scrutinised in the Royal Commission into Institutional responses to Child sexual abuse and in 2018, law reform was made across Australia to protect the victims of institutionalised child sexual abuse. Legislation was enacted that forced unincorporated organisations including religious institutions to nominate a legal entity with sufficient assets for child abuse survivors to sue. In passing legislation of this nature in Victoria, Daniel Andrews noted at the time that the legislation was designed to, “Quash an unfair loophole preventing child abuse survivors from suing some organisations for their abuse.”

The demise of the Ellis defence saw a significant step in offering greater protection to the most vulnerable people in Australia and meant the Church were no longer allowed to hide behind the law.

If you or someone you know has been affected by historic sexual abuse, please reach out to Chamberlains Law Firm for abuse compensation claims.