Solidarity Justice

Response by the Archdiocese of Sydney to the findings in the Royal Commission’s Report of Case Study No 8, January 2015

Catholic Communications
14 September 2015

No. Commission’s Report Archdiocese’s response 
1.  
“Cardinal Pell relied upon Mr Davoren to properly apply the procedures in Towards Healing.  He then followed Mr Davoren’s advice, assuming that such procedures had been followed.  After receiving a copy of Mr Eccleston’s report, Cardinal Pell became aware that such reliance was misplaced.” The Archdiocese accepts this finding.  In evidence, Cardinal Pell confirmed to the Commission that this was the case.
2.  
“Cardinal Pell’s letter to Mr Ellis dated 23 December 2002 was contrary to the procedures in Towards Healing (2000), as an assessor should have been appointed under clauses 38.7, 39.3 and 40 of the protocol, regardless of the inability of Father Duggan to respond.” The Archdiocese accepts this finding. 
3.  
“Between June 2002 and April 2003, Mr Davoren as Director of the Professional Standards Office NSW/ACT did not comply with the procedures in Towards Healing (2000) in the handling of Mr Ellis’ complaint by:
• not appointing a Contact Person to act as a support person for Mr Ellis after assisting with the making of the initial complaint (clause 35.4)
• not referring the complaint to an assessor (clauses 38.7, 39.3 and 40)
• poor case management, including not undertaking the process as quickly as possible, and poorly managing the question of Father Duggan’s lucidity (clauses 35.3.1 and 40.13)”
The Archdiocese accepts the Commission’s criticisms of the response by the Professional Standards Office to Mr Ellis in 2002 and 2003.
4.  
In not complying with these procedures, Mr Davoren did not make a compassionate response his first priority, as required by the principles of Towards Healing (2000) (clause 17)  
5.  
“Monsignor Rayner did not doubt that Mr Ellis was telling the truth and shortly after his meeting with Mr Ellis and Father Duggan – that is July or August 2003 – he advised at least Mr Salmon and Cardinal Pell of his belief.” Cardinal Pell gave evidence that while he had no recollection of that discussion, he did not dispute Monsignor Rayner’s evidence.
6.  
“Mr Salmon acted inconsistently with Towards Healing (2000) (clause 41.3) by not seeking Mr Ellis’s consent to the appointment of Mr Brazil as Facilitator.” The Archdiocese accepts the criticisms of the Professional Standards Office’s response to Mr Ellis in 2002 and 2003.
7.  
“In other respects, Mr Salmon actively and properly managed Mr Ellis’s complaint in that he assisted in the organisation of the medical assessment of Father Duggan; the appointment of an assessor; the appointment of a Contact Person, namely Mr Bill Johnson; arranged counselling for Mr Ellis; and appointed a Facilitator.” The Archdiocese accepts this finding in relation to the positive assistance the Professional Standards Office provided in its response to Mr Ellis.
8.  
“The determination of the figure of $25,000 had no reference to the needs of Mr Ellis as required by clause 41.1.  Accordingly, the process by which it was determined was not consistent with Towards Healing (2000).” The Archdiocese accepts this finding.
9.  
“We accept Cardinal Pell’s evidence that having “reflected on the course of the litigation”, several steps taken in the course of the litigation now cause him “some concern” as a priest.  One of those steps was that the Archdiocese should have responded positively to Mr Ellis’s request for assistance in finding a spiritual director.” The Archdiocese accepts this finding which reflects Cardinal Pell’s evidence.
10.  
“Cardinal Pell was involved in the following significant steps during Mr Ellis’s Towards Healing process.  Cardinal Pell:
• read Mr Ellis’ complaint on 7 June 2002
• formed the view that it was a plainly serious complaint
• discussed Mr Ellis’ Towards Healing complaint with Mr Davoren
• approved of a meeting between Father Duggan and Mr Ellis is Father Duggan could participate
• sought Mr Davoren’s advice on Mr Ellis wanting to meet with Father Duggan despite his dementia
• included Mr Ellis’s complaint as part of the agenda for a bishop’s meeting
• discussed the complaint at the bishop’s meeting, which Cardinal Pell agreed was not the usual course in a Towards Healing matter
• sought a briefing from Mr Davoren in relation to a facilitation
• received and considered the advice from Mr Davoren regarding Mr Ellis’ case in December 2002
• formed his own view as to the status of the complaint in December 2002
• wrote a letter to Mr Ellis on 23 December 2002 stating that nothing further could be done for him by the Archdiocese of Sydney
• met with others to discuss the process when Mr Ellis was disappointed with the December 2002 letter 
• considered and approved the medical assessment of Father Duggan
• was aware of the medical assessment of Father Duggan which confirmed that Father Duggan lacked capacity
• considered and approved a meeting between Mr Ellis and Father Duggan notwithstanding that Father Duggan had dementia
• was aware that a meeting had taken place between Father Duggan and Mr Ellis
• approved the appointment of Mr Eccleston as the assessor
• read Mr Eccleston’s report
• appointed Mr Brazil as the Facilitator
• appointed Monsignor Rayner to represent the Church Authority during the facilitation and was aware that he subsequently did so
• knew Monsignor Rayner believed that Mr Ellis had been abused by Father Duggan
• knew that the facilitation had occurred “
The Archdiocese accepts that Cardinal Pell was involved in the key decisions made in relation to the Towards Healing response to Mr Ellis.
11.  
“We are not satisfied that Cardinal Pell approved the amounts offered to Mr Ellis.” The Archdiocese accepts this finding.
12.  
“We are satisfied that Cardinal Pell was told of the amounts offered and the $100,000 proposed by Mr Ellis by 17 September 2004 at the latest.  We accept that Cardinal Pell does not have a current recollection of those matters.” The Archdiocese accepts this finding. 
13.  
“The Archdiocese of Sydney fundamentally failed Mr Ellis in its conduct of the Towards Healing process by not complying with clause 19 of Towards Healing (2000) and not giving him such assistance as was demanded by justice and compassion, including:
• not sufficiently referring to or responding to his needs in determining the amount of reparation (clause 41.1 of Towards Healing (2000))
• not providing Mr Ellis with a spiritual director, when that was plainly one of his needs.”
The Archdiocese accepts this finding.  Cardinal Pell gave evidence that there was a substantial failing of the Towards Healing process in Mr Ellis’ case.
14.   
“All failures identified by Mr Landa were serious and substantial failures, including: The failure to ‘case manage’ the complaint in relation to:
• the failure to appoint a Contact Person in the terms required by Towards Healing (2000) (Clause 36)
• the failure to provide Mr Ellis with a copy of the protocol at an appropriate or timely date
• the failure to appoint an assessor for 12 months
• the poor management of the issues surrounding Father Duggan’s lucidity
• The extensive delay in concluding the complaint and all of the matters above.”
The Archdiocese accepts this finding.  
15.  
“We agree with the Interim National Review Panel’s recommendations in relation to Mr Landa’s report, including:
• Mr Landa was justified in his findings as to the failure to observe the required processes under Towards Healing.  Fundamental to the processes under Towards Healing are justice and compassion for victims, and transparency through the failure to refer the matter to the Contact Person and the consequent absence of an explanation to Mr Ellis of the processes for addressing the complaint.  There was also an absence of justice for Mr Ellis through the extensive delays in undertaking the required process.
• Mr Landa was justified in finding that the issue of Father Duggan’s lucidity was poorly managed.  A medical assessment of Father Duggan should have occurred once it became clear that his mental state was impaired, which, in this case should have been readily apparent shortly after the receipt of the complaint.
• It was necessary for the review by Mr Landa to consider whether the outcome was vitiated by the failures of process.  Mr Landa was justified in finding that the earlier failures of processes created in Mr Ellis a mistrust of the process of the facilitation, which having had an appropriate process, was not vitiated by the earlier failures of process.
• The Panel agreed with the recommendation of Mr Landa that the complaint should have been case managed.  Case management would have helped to ensure that there were no unreasonable delays in the implementation of the process.”
The Archdiocese accepts this finding.
16.  
“Cardinal Pell accepted the advice of Corrs Chambers Westgarth to vigorously defend the claim brought by Mr Ellis.” The Archdiocese accepts this finding.
17.  
“A major part of Cardinal Pell’s decision to accept the advice of Corrs Chambers Westgarth to vigorously defend the claim brought by Mr Ellis was his conviction that Mr Ellis was seeking ‘exorbitant damages’ of millions of dollars.” The Archdiocese accepts this finding.
18.  
“Another reason Cardinal Pell decided to accept the advice of Corrs Chambers Westgarth to vigorously defend the claim brought by Mr Ellis was to encourage other prospective plaintiffs not to litigate claims of child sexual abuse against the Church.” The Archdiocese accepts this finding.
19.  
“Cardinal Pell accepted the advice of Corrs Chambers Westgarth at the outset of the litigation in September 2004 that mediation was no longer a viable option and that an approach from Mr Ellis’s lawyers to mediate should be rejected.” The Archdiocese accepts this finding.
20.  
“Cardinal Pell accepted the advice of Corrs Chambers Westgarth to reject the offer of compromise put forward by Mr Ellis in December 2004 and not make a counteroffer.” The Archdiocese accepts this finding.
21.  
“We agree with Cardinal Pell’s ultimate opinion that neither the decision of Mr Ellis and his legal advisers to sue the Trustees and Cardinal Pell, nor their decision to appeal the decision of the New South Wales Court of Appeal to the High Court, was unreasonable or lacked judgment.” The Archdiocese accepts this finding.
22.  
“Whether or not specific instructions were sought before the Notice Disputing Facts was served, the dispute of the fact of Mr Ellis’ abuse was consistent with the general instructions of the Trustees and the Archbishop to defend the case vigorously.” The Archdiocese accepts this finding.
23.  
“Instead of disputing that Mr Ellis had been abused, it was open to the Trustees and the Archbishop to admit the fact of Mr Ellis’ abuse and defend the case on other grounds.” The Archdiocese accepts this finding.
24.  
“Cardinal Pell accepted the advice of Corrs Chambers Westgarth in June 2005 to continue to dispute the fact that Mr Ellis had been abused.” The Archdiocese accepts this finding.
25.  
“The Archdiocese wrongly concluded that it had never accepted that Father Duggan had abused Mr Ellis, either at law or under Towards Healing, and that this would have been made clear to Mr Ellis at his facilitation. This conclusion allowed Cardinal Pell to instruct Corrs Chambers Westgarth to maintain the non-admission of Mr Ellis’s abuse which Corrs Chambers Westgarth had advised was in the Church’s interests in the litigation.   We are satisfied that he Archdiocese contrived this outcome by relying solely on its understanding of Mr Salmon’s comments in circumstances where:
• The Archdiocese was aware that the Church –appointed assessor had found, on the balance of probabilities, that Mr Ellis had been abused as alleged
• Under Towards Healing a complaint will only proceed to facilitation if the Church Authority has accepted that the abuse occurred
• Mr Salmon had not attended Mr Ellis’ facilitation and was not part of the Archdiocese
• Mgr Rayner and Mr Brazil who attended Mr Ellis’ facilitation, had not been consulted.
The Archdiocese accepts that in circumstances where Monsignor Rayner believed Mr Ellis, it should not have disputed the fact of the child sexual abuse.
26.  
“The Facilitator of Mr Ellis’ Towards Healing facilitation took notes which were available to the Archdiocese and which made it clear that Monsignor Rayner, who represented the Archdiocese at the facilitation, had accepted that Father Duggan had abused Mr Ellis.” The Archdiocese accepts this finding.
27.  
“Cardinal Pell was aware of, and generally agreed with, the advice of Corrs Chambers Westgarth that the Church’s lawyers should not help Mr Ellis identify a suitable defendant.” The Archdiocese accepts this finding.
28.  
“The Archdiocese prepared questions and answers about Mr Ellis’ litigation, which were provided to a spokesperson for the Archdiocese and which included an answer that completely mischaracterised Mr Ellis’ experience of Towards Healing.” The Archdiocese accepts this finding and comments that the content of the notes were never used or made public by any person on behalf of the Archdiocese.
29.  
“Cardinal Pell’s view, which was shared by everyone he spoke to, was that the evidence of SA significantly strengthened Mr Ellis’ legal case.  However, during the litigation neither he nor anyone else in the Archdiocese reconsidered whether to dispute the fact of Mr Ellis’ abuse.” The Archdiocese accepts this finding.  Cardinal Pell acknowledged in his statement that the Archdiocese failed to conduct the litigation with Mr Ellis in a manner that adequately took account of his pastoral and other needs as a victim of child sexual abuse.
30.  
“Cardinal Pell accepted the advice of Corrs Chambers Westgarth to refuse a further offer by Mr Ellis to mediate after Acting Justice Patten’s decision was handed down in February 2006.” The Archdiocese accepts this finding.
31.  
“On Cardinal Pell’s instructions, Monsignor Usher forwarded a memorandum prepared by Corrs Chambers Westgarth after the Court of Appeals’ decision to Metropolitan Archbishops of Australia and the Bishops of NSW and ACT.” The Archdiocese accepts this finding.
32.  
“Cardinal Pell had decided not to pursue costs against Mr Ellis by May 2008.  Monsignor Usher told Mr Ellis that costs would not be pursued against him in August 2008; however this was not confirmed in writing until August 2009.” The Archdiocese accepts this finding.
33.  
“We agree with Cardinal Pell’s evidence that ‘we’, which we take to be the Archdiocese, the Trustees and he as Archbishop, did not act fairly from a Christian point of view in the conduct of the litigation against Mr Ellis.” The Archdiocese accepts this finding which mirrors Cardinal Pell’s statement.
34.  
“The Archdiocese failed to conduct the litigation with Mr Ellis in a manner that adequately took account of his pastoral and other needs as victim of sexual abuse by:
(a) rejecting the first offer of mediation
(b) not making a counteroffer after receiving a written offer from Mr Ellis
(c) wrongly concluding that the Archdiocese had never accepted that Mr Ellis had been abused by Father Duggan, either at law or under Towards Healing, and that this would have been made clear to Mr Ellis at his facilitation
(d) instructing its lawyers in June 2005 to continue not to admit the fact of Mr Ellis’ abuse because of legal advice that this suited its interests in the litigation, in circumstances where:
(i) these instructions allowed Mr Ellis to be cross-examined and challenged as to whether the abuse occurred, in circumstances which were harmful and painful to him
(ii) it was not necessary to dispute the fact of Mr Ellis’ abuse in order to properly test whether an extension of the limitation period should be granted or whether the trustees were liable for Mr Ellis’ abuse
(e) not instructing its lawyers that Cardinal Pell thought SA’s affidavit strengthened Mr Ellis’ case and that the Archdiocese should reconsider whether to continue its non-admission of the fact of Mr Ellis’ abuse;
(f) maintaining the non-admission of the allegation of Mr Ellis’ abuse after the affidavit of SA and the account given by Mrs Penton were available
(g) rejecting an offer to mediate after Acting Justice Pattern’s decision in February 2006
(h) taking too long to resolve the issue of recovery of costs from Mr Ellis
(i) employing the measures set out in subparagraphs (a) to (h) above, which were disproportionate to the objective and psychological state of Mr Ellis.”
The Archdiocese accepts this finding which mirrors Cardinal Pell’s statement.