Ellis v Pell - [2006] NSWSC 109

CITATION: Ellis v Pell [2006] NSWSC 109
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 25,26,27,28 July 2005
12,16,25, August 2005
10,11,12 October 2005

JUDGMENT DATE :
3 March 2006

JUDGMENT OF: Patten AJ at 1

DECISION: See page 56

LEGISLATION CITED: Limitation Act 1969
Roman Catholic Church Trust Property Act 1936

CASES CITED: Archbishop of Perth v A A & Ors (1995) 18 ACSR 333
John Doe v Bennett (2004) 236 DLR (4th) 577
Lepore v State of NSW (2003) 77 ALJR 558
Nobrega v Trustees of the Roman Catholic Church of the Archdiocese of Sydney (1999) NSWCA 75.
Brisbane South Regional Health Authority v Taylor
(1996) 186 CLR 541
Campbell v Paddington Corp (1911) 1KB 869
Trustees of the Roman Catholic Church for the Diocese of Sydney & Anor v Hogan (2001) 53 NSWLR 343
Ditchburn v Selstram Ltd (1989) 17 NSWLR 697 at 702

PARTIES: John Andrew Ellis - Plaintiff
His Eminence Gardinal George Pell Archbishop of Sydney for and on behalf of the Roman Catholic Church in the Archdiocese of Sydney - First Defendant
The Trustees of the Roman Catholic Church for the Archdiocese of Sydney - Second Defendant
Reverend Aidan Duggan OSB - Third Defendant

FILE NUMBER(S): SC 20308 of 2004

COUNSEL: Dr A Morrison SC with R Royle - Plaintiff
J. Rushton SC with R G McHugh - First, Second Defendant.

SOLICITORS: David Begg & Associates - Plaintiff
Corrs Chambers Westgarth - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

3 March 2006

No 20308 of 2004

John Andrew Ellis - Plaintiff
v
His Eminence Cardinal George Pell Archbishop of Sydney for and on behalf of The Roman Catholic Church in the Archdiocese of Sydney – First Defendant

The Trustees of the Roman Catholic Church for the Archdiocese of Sydney – Second Defendant

Reverend Aidan Duggan OSB – Third Defendant

JUDGMENT
Introduction:

1 By his Amended Motion filed in court on 25 July 2005, the Plaintiff seeks relief under s58 of the Limitation Act (the Act) or, alternatively, under s60G.

2 The Plaintiff was born on 14 March 1961. His Statement of Claim filed 30 August 2004 alleges that from 1974 when he was 13 years of age, until 1979 when he was 18, he was engaged as an altar server in the Roman Catholic parish known as Christ the King at Bass Hill. While so engaged, so the Plaintiff claims, he was subjected to frequent sexual assaults by a priest, Aidan Duggan (Father Duggan), joined in these proceedings as Third Defendant. The Plaintiff attained the age of 18 on 14 March1979.

3 Accordingly, s14 of the Act, in combination with s52, would have the effect of barring the Plaintiff on 14 March 1985 from commencing an action founded on a tort committed prior to 14 March 1979. This action was commenced more than 19 years after 14 March 1985, a very considerable period.

4 It…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ellis v Pell

Details

AGLC: Ellis v Pell [2006] NSWSC 109
Case: [2006] NSWSC 109
Decision Date: 3 March 2006

CaseChat Overview and Summary

This case concerns a lawsuit brought by John Andrew Ellis against the Roman Catholic Church in the Archdiocese of Sydney and others, alleging sexual abuse by Father Aidan Duggan during Ellis' time as an altar server from 1974 to 1979. The legal issues in the case were whether the court should grant an extension of the limitation period for Ellis' claims under sections 58 and 60G of the Limitation Act, and whether there was evidence to establish a cause of action in tort against the Church and its trustees. The court found that Ellis had established the conditions precedent for relief under sections 58 and 60G of the Limitation Act, and granted an extension of the limitation period for Ellis' claims against the Trustees of the Roman Catholic Church for the Archdiocese of Sydney. The court dismissed the motion seeking relief against Cardinal Pell, finding there was no basis to maintain the cause of action against him. The court found that there was evidence to establish a cause of action in tort against the Trustees, and that it would be just and reasonable to grant Ellis the relief he seeks. The court also rejected the argument that the claim for breach of fiduciary duty should be considered at this stage.

Orders