Page 3047 - Week 08 - Thursday, 16 August 2018
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Today’s bill implements recommendation 94 made by the Royal Commission into Institutional Responses to Child Sexual Abuse in its 2015 Redress and civil litigation report. The recommendation and the bill intend to address the challenges that survivors face in identifying a defendant to sue and accessing the opportunity for full consideration of the merits of their claim.
These challenges arise because the way an institution is structured may mean that it does not have legal personality and therefore cannot be sued—for example, if it is unincorporated, even if an institution has legal personality it may not have legal responsibility for the actions of the perpetrator of the abuse and, even if an institution is found to be liable, it may not have sufficient assets to meet a damages award, or assets are held in a trust and cannot be accessed.
The most well-known instance of the challenges this bill addresses was the position taken by the Catholic Church, which is an unincorporated body, in the Ellis case—Trustees of the Roman Catholic Church v Ellis and Anor, 2007, New South Wales Court of Appeal 117.
Mr Ellis, a survivor of abuse by a Catholic priest, was not able to establish a case against the individual perpetrator, who was deceased at the time the claim was brought; the archbishop, who could not be liable for the conduct of his predecessor; or the trustees of the property trust for the dioceses of Sydney, who were not liable for the actions of the perpetrator or the former archbishop because the relevant act did not confer power on the trustees to appoint, manage, discipline or remove priests.
The bill is aimed at ending the use of the Ellis defence and to ensure that plaintiffs are not unreasonably deprived of the opportunity for full consideration of the merits of their claim. This bill responds to these challenges by amending the Civil Law (Wrongs) Act 2002 to ensure that survivors of physical or sexual institutional child abuse are able to sue an entity, a proper defendant, that has the financial capacity to meet claims in relation to a personal injury arising from that abuse.
The bill enables an unincorporated body to nominate a proper defendant in a proceeding for a child abuse claim. An unincorporated body could include secular, religious or community-based organisations, volunteer-based organisations, unfunded or government-funded organisations and local, national or international organisations.
By providing the unincorporated body with the option to voluntarily nominate a proper defendant, the bill achieves the balance suggested by the royal commission: on the one hand recognising that institutions should retain the ability to conduct their affairs in a variety of ways; and on the other hand ensuring that plaintiffs have a reasonable fallback option that is not dependent upon the cooperation of the institution. If no nomination is made, or the nominated proper defendant is not suitable—for example, because it has insufficient assets to satisfy a successful claim—the bill provides the plaintiff with the option to apply for a court order to appoint a trust, related to the unincorporated body, as a proper defendant.
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