The royal commission has brought to light the evolution of the Sydney archdiocese's pitiless legal strategy to defeat the victim of a paeodophile priest

St Mary’s was not overflowing at Cardinal George Pell’s farewell. The music was magnificent and 20 bishops followed the candles and banners in procession. But the governor general, prime minister and premier were somewhere else for the night. Rows of stack-away chairs stood empty.



Pell looked weary but cheerful. Less than four hours before appearing in cope and mitre under the arc lights of the cathedral, he had been in the witness box of the royal commission into institutional responses to child abuse delivering one last apology to John Ellis. Some of the time since had been spent praying at the shrine of St Mary MacKillop.

Officials last seen in the witness box gave readings and led prayers. Not among the familiar faces at the celebrations was Ellis, once a devout Catholic who came three times a week to mass is in this building. That life is behind him now.

Though they have faced each other at the commission over the past week, they’ve met only once. In a sense, the meeting was routine. It’s what victims of priests are offered when their battles with the church are done, every last detail settled, money paid and apologies made. As Pell’s chancellor Brian Rayner explained to the commission: “I would offer the person a discussion with the cardinal, a cup of tea, where he would then personally continue that apology.”

But the meeting with the cardinal archbishop in early 2009 had come after the longest, most expensive and most damaging dispute with a victim the church has fought in Australia; a dispute the church was never willing to settle; a battle in which lawyers on both sides racked up millions in costs; and a victory won at the gates of the high court which guaranteed the wealth of the church was beyond the reach of other victims of clerical sex abuse.

Facebook Twitter Pinterest John Ellis outside the royal commission after the cardinal offered him a formal apology. Photograph: Dean Lewins/EPA

Ellis came away from his cup of tea profoundly reassured. Pell had seemed so frank. He had expressed surprise at how little money Ellis had wanted when all this began and how unwilling the archdiocese’s lawyers had been to negotiate. The expression “legal abuse” was in the air; Pell promised no one would suffer in future as Ellis had suffered at the hands of the church and its lawyers.



“I left the meeting with the impression that Cardinal Pell was completely out of the loop on all of that decision making,” Ellis told the commission. So who did he think was making those decisions, asked the commissioner, Justice Peter McClellan. “I was left to ponder on that. The cardinal said he didn't know.”

That is hard to believe. Pell’s probity is directly at issue before the commissioners. Their verdict may not be known for years. But already on the table is the view Gail Furness SC, counsel assisting the commission, has taken of the vigorous defence by Cardinal Pell of Ellis’s claim: “It was to protect the coffers of the church.”



The complaint

John Ellis is a lawyer. He told the church in June 2002 that from the age of 13, when he was an altar boy at Christ the King, Bass Hill, he had been abused by Father Aidan Duggan. What began with hugs and kisses over Latin homework turned into a pattern of sexual abuse that didn’t end until Ellis was a man with a child and a failing marriage 13 years later in 1987.

Pell read the complaint within days.



The Professional Standards Office of New South Wales administers Towards Healing, the church protocol for dealing with complaints of sexual abuse. But all the decisions – what investigations would be made, who would be helped, what help would be given, which priests would be disciplined – were ultimately made for the archdiocese of Sydney by its archbishop, George Pell.

An independent assessor should, under the rules of Towards Healing, have been immediately appointed to investigate Ellis’s claims. That’s what John Davoren, a former priest who ran the Orwellian-sounding Professional Standards Office recommended. But it didn’t happen.

No coherent explanation has been offered by any of the players for this failure. Pell would talk of his own “muddled ignorance”. Davoren would say: “I hadn't run into a case with all the complications that this one had.”

A picture was forming in the archdiocesan mind of a blameless old priest being pursued by a brilliant lawyer who hadn’t complained to anyone for decades about being abused. It was assumed from the start that Ellis was after big money. And the relationship he revealed with Duggan was not just of a priest and a boy, but a priest and a man. That detail caught Pell’s eye early on. Sin was an issue here. So was a sense of affection betrayed. The church would be careful to alert its lawyers to “sporadic adult homosexual involvement”.

Pell conferred with Davoren. He took the matter to his auxiliary bishops. He would later claim he was not a micromanager; that he liked to give a man a job and leave him to get on with it; but the Ellis claim would absorb an unusual amount of the archbishop’s attention for years.

He decided the course to be taken: Ellis would be fobbed off with the argument that Duggan was too senile to allow the complaint to proceed. The old priest was living with the Little Sisters of the Poor in Randwick, supposedly lost in a fog of Alzheimer’s. Again and again Ellis was told over the next 10 months that without Duggan’s participation, there could be no case. It couldn’t even begin.

This was a bold strategy. The commission would hear that 90% of complaints assessed by Towards Healing are against dead priests. Complaints are assessed against absent priests and unco-operative priests. Senility was no bar to assessing Ellis’s claim.

But that was the message of a brutal letter Pell sent Ellis a few days before Christmas 2002. An early draft by Davoren was leavened with kind words and regrets. Pell’s final version reads as a pitiless refusal to offer Ellis any help or any hope. Pell says he was merely being honest: “The whole point of this letter was to say the matter couldn't be resolved and I don't like talking out of both sides of my mouth, especially to a victim.”

Pell acknowledges now he was “quite mistaken” to think that Duggan’s senility was the end of the matter for Ellis. Pell blames Davoren – “a very good man [but] a muddler” – and birches himself for taking Davoren’s advice. “This is one of the very few instances in my life where I was too reverential,” he told the commission. “Certainly in retrospect now, I would look at this much, much more thoroughly. ”

Ellis was devastated by the letter. He was 40 and fragile. One marriage had failed and a second seemed heading for the rocks. After school he had trained, briefly, for the priesthood and then become a nurse. He was intelligent and driven. While still nursing he got a law degree with first-class honours. When he graduated he began working for a big international firm, Baker & McKenzie. He was now partner, earning about $300,000 a year, but his life was a mess.

I felt anxious and unloved and was having angry outbursts,” he told the commission. “I felt depressed. I felt unable to cope or manage my emotions. I was particularly frightened by the self-harm, self-loathing and suicidal thoughts I was experiencing. I had never before experienced anything of that nature.”

Not until his mid-30s did he begin connecting his troubles to Duggan’s abuse. But he spoke to no one about this until he began counselling in 2001 by a psychologist and former priest.

The memories were painful and frightening, and they came with strong physical memories of the abuse, particularly the anal intercourse. It made me feel ashamed and sick.”

Three times a week he was walking from his office at lunchtime to mass at St Mary’s cathedral. Somewhere he found a brochure for Towards Healing, the national protocol offering pastoral care to victims of abuse by priests and brothers. Ellis came to Towards Healing as a battered Catholic: “My spiritual life has been totally trashed by this.”

Towards Healing

He hit a brick wall but kept going. Inside the Professional Standards Office they rather marked Ellis down for not realising that Pell’s letter was the end of the matter. The man wasn’t getting the message. He rang in January 2003 to say he wanted to keep going. He rang again in February to say his mother had spent an hour or so with Duggan at the Little Sisters of the Poor and he seemed “well aware of where he was and what was happening about him”.

Davoren remarked: “I am concerned that Ellis may be warming up for a fight.”

Pell agreed to see what might be done to assess Duggan’s state of mind. Lawyers were asked to advise. They said it could be done. Yet Ellis was told it couldn’t be done – and that meant, once again, that the case was closed.

Not before time – it was now late March 2003 – Ellis put on his lawyer’s hat, downloaded the complete Towards Healing protocol and was “shocked and dismayed” to discover he had been denied what was promised to everyone who brought the church a complaint of abuse: an assessment of their claims.

Ellis now demanded this. After a confused month of stonewalling, Davoren retired unwell (triple bypass) and was replaced at the Professional Standards Office by an experienced facilitator, Michael Salmon. There was also a change of guard in Pell’s office. His new chancellor was a bluff former military chaplain, Monsignor Brian Rayner.

Together they put the matter on track. Both were convinced Ellis had been abused and both told the commission they never wavered in their belief. Together they put the matter on track. Duggan was finally examined – not by a psychiatrist, as Ellis was told – and found to be suffering “dementia and Alzheimer’s disease” but this was no longer considered a bar to weighing Ellis’s claims.

Pell approved the appointment of Michael Eccleston to investigate the case. Eccleston was one of the most experienced men used in this work by the Professional Standards Office. What ought to have been done within days of Ellis coming to Towards Healing was at last under way, nearly a year down the track. Eccleston didn’t rush. He spent five months on the task and his 16-page report landed on Pell’s desk a few weeks after his return from Rome, having been made a cardinal by Pope John Paul II.

Eccleston also backed Ellis’s claim of abuse. He did not reach this conclusion lightly. He wrote: “The allegations are very serious being criminal in nature and as such require a proof close to or approaching ‘beyond reasonable doubt’”. He was judging the matter by what’s known in law as the Briginshaw standard and concluded:

The allegations of improper sexual conduct by Father Duggan against Mr John Ellis when he was an altar boy at Christ the King Church, Bass Hill, from age 14 to 17 years and continuing on into his young adult years more likely than not occurred [and] the impact of this sexual conduct has more likely than not adversely affected Mr Ellis with regard to his mental, emotional and physical health.”

Justice McClellan called the Eccleston report: “Legally perfect.”

Pell accepted the Eccleston report. Under the rules of Towards Healing acceptance is the only basis on which the matter can then go forward to what’s called a “facilitation”, when the victim and representatives of the church discuss how best his needs might be met. Pell approved the facilitation and the appointment of a facilitator, Raymond Brazil.

Brazil never had any doubt of Ellis’s claims.

All loose ends are supposed to be tied up before the facilitation. That meant discussion of money. Compensation was not a possibility. The strategy behind Towards Healing was to keep claims out of court – where millions might be awarded in damages for past wrongs – and offer, instead, pastoral care plus a “financial gesture” to meet victims’ future needs.

Brazil met the Ellises in April 2004 and told them there was an effective cap on payments in the Sydney archdiocese of $50,000 but even this sum was rarely paid. Only the most extreme abuse qualified victims for such a sum. Ellis suggested he and his wife both qualified and should each be paid the maximum: a total of $100,000.

Who knew of that offer is the single most hotly contested fact in this narrative. Undisputed is the fact that a dispute about to rack up millions in costs, make legal history and come to deeply embarrass the church might have been settled at this point for a mutually agreed deed of release and a $100,000.

Pell has staked his reputation on not knowing about this offer.

The men who worked most closely with him on abuses cases say he ought to have known, though none gave evidence of actually telling him. His private secretary Dr Michael Casey told the commission: “All significant matters concerning child sexual assault would be discussed with Pell.” He added that he expected the cardinal to know about the $100,000.

Pell says the expectation was reasonable but he didn’t.

Salmon told the commission he assumed the $100,000 offer would be referred to Pell. “His expectations are not unreasonable,” Pell said. “But, in fact, it didn't occur like that.” Rayner told the commission he could not pay any victims anything without Pell’s permission. That Pell bluntly denies.

I can't remember ever being asked my opinion on how much money might be paid in reparation/compensation to a Towards Healing victim. I've thought very carefully about this. I've got no such recollection.”

The counter offer to Ellis was $25,000. Ellis remembers Brazil telling him as the offer was delivered: “They don’t consider your abuse to be that serious.” That offer was on the table when the next blow fell on Ellis. Despite him being a brilliant lawyer, his colleagues at Baker & McKenzie were finding him unbearable to work with and in May 2004 he was fired. At this point, the offer from the church was raised to $30,000.

Facebook Twitter Pinterest A still from the webcast feed of Pell giving evidence. Photograph: Dean Lewins/AAP

Pell was adamant that, despite testimony to the commission that the sums would have been passed by him for approval, he knew nothing about these offers and counter offers. “It's not a question of what's conceivable or logically possible. The fact is that I wasn't. I wasn't informed about any of this.” He described raising the offer by a mere $5,000 when Ellis lost his job as “grotesque and totally inappropriate”.

Ellis’s lawyer’s hat was now jammed firmly on his head. His career in ruins, he was now working full-time on his own case. The letters he sent to the church’s fortress-like headquarters, Polding House, were long and calm. The church was demanding he sign a deed of release before any “financial gesture” was made, a deed that would end forever any claims Ellis might have against the church. He suggested radical changes to the deed. The church refused.

Though the loose ends were far from tied up, the facilitation went ahead at Polding House in July 2004. Sydney bishop David Cremin acknowledged the abuse and apologised on behalf of the church. So did Pell’s chancellor, Brian Rayner. But the meeting reached no resolution because Ellis would neither accept the little money being offered nor sign the deed of release. There was talk of appointing a spiritual director for Ellis. That never happened.

Ellis now had a lawyer, David Begg, with long experience in fighting the church. Begg pointed out that if he was to take the church to court Ellis had to move quickly. Within weeks, the statute of limitations would bar any claim.

A week after the failed facilitation, Begg wrote a long letter to Pell’s chancellor that had reason to trouble the church. The solicitor pointed out that elsewhere in the world courts were becoming less tolerant of clerical abuse. They were sweeping away old technical defences. Large sums were being disgorged from church trusts to pay victims. A case fought all the way to the high court might breach the church’s hitherto impregnable defences in Australia.

Ellis now wanted $750,000. Pell knew of the counter offer, but the fact that it was for so much less than the millions he had somehow come to think were at stake here made no difference to his attitude. When these disputes “go legal”, as they say in the Sydney archdiocese, the work is usually handled by Monahan & Rowell, the solicitors for Catholic Church Insurance. Monahans wrote to Pell’s chancellor to “unhesitatingly and strongly recommend” negotiation.

Pell decided to fight.

Supreme court

Royal commissions have remarkable powers. Beyond the reach of almost any court are the internal memorandums of law firms and the correspondence that passes between clients and their lawyers as they prepare for litigation. Usually the inner history of strategy is entirely protected by legal professional privilege. But the royal commission has the power to bring these documents into the light.

They show the evolution of a pitiless strategy to defeat Ellis.

Pell called in Corrs Chambers Westgarth, a firm of solicitors he had worked closely with in his Melbourne years. He said: “I wanted high-class legal help in this case.” A memo seen by the commission shows how thrilled they were with the brief: “All of this provides a fantastic opportunity for Corrs to keep building its relationship with Sydney, by guiding Michael [Casey] and H[is] E[minence] as to how they can stick with us and defeat the historical supporters of other firms within the Archdiocese.”

Corrs told Pell that Ellis had no hope of winning, for neither the cardinal nor the trustees were responsible for Duggan’s misbehaviour. That despite this Ellis and his team continued to attack the trustees mystified and exasperated Pell. “Therefore, I suppose, I viewed every approach they made, to some extent, through this prism – that, well, we're not really dealing with entirely reasonable people.”

Pell told Corrs to reject Ellis’s request and make no counter offer. The case was heading for court. He made no secret of his reasons for fighting: he wanted to preserve the patrimony of the church and persuade other victims “they should consider the advantages of not going to litigation”.

Pell entered, at this point, a parallel moral universe. He would come to express his sorrow that the brawl was to prove so expensive for the church and so damaging to Ellis. But having decided to fight, the cardinal archbishop of Sydney was happy to let the contest be conducted according to the values of the law. Corrs advised and Pell accepted their advice. He knew what this might mean. “Litigation,” he told the commission, “can be an ugly business.”

Every step in the litigation was taken with the “knowledge and consent” of Cardinal Pell, Corrs partner Paul McCann told the commission. “Is there any instance in which your clients criticised you or your team for the approach that you took?” asked Gail Furness. McCann replied bluntly: “No”.

Corrs began digging deep into Ellis’s life. They subpoenaed the intimate records of his years of counselling; all the records of his troubles at Baker & McKenzie; and all the records of his divorce and custody battles. Pell placed no limits on this operation. Corrs was after everything the law allowed them to use to attack Ellis’s credit and find reasons other than Duggan’s abuse to explain the man’s professional troubles and fragile health.

No comparable investigation was made of Duggan’s past. The lawyers did little but sift through the files and make a few phone calls to check if the old priest had, as the church insisted, as a clean record. A determined investigation in Scotland might have revealed – as emerged later – that five boys at Fort Augustus Abbey school complained to the church in the 1970s that Duggan had sexually, physically and verbally abused them.

A more determined search might also have revealed that a pupil at St Mary’s cathedral in Sydney had accused Duggan in 1983 of sexually abusing him. At the time, Duggan was an assistant priest living at the cathedral, a rather romantic figure – a former monk with a fine voice and impeccable liturgical skills. His close relationship with the pupil was notorious at the time. SA – as he became known at the commission – put his complaint in writing. Nothing was done.

The onus is on Ellis to prove his assertions against Fr Duggan,” Corrs solicitor John Dalzell told Michael Casey. “There is no onus for us to show the good character of the Reverend Father.”

Litigation tactics make sense of the roughest decision Pell and the lawyers took and held to come what may, all the way to the finish. John Ellis was, in formal terms, only seeking an extension of the time usually given to victims to sue for damages. This was a fight for permission to fight the fight.

That would be granted more readily if there were no contest about the facts. But if the abuse was in dispute, the court might take the view that a contest over facts which may or may not have happened 30 or 40 years ago was inherently unfair to the church.

So despite the Eccleston report; despite the unwavering conviction of Rayner and Salmon that Ellis had been abused; despite the apologies and tears shed at the facilitation; and despite Pell’s claim never to have doubted the abuse once he read what Eccleston had to say – a formal notice denying the abuse was filed by Corrs on instructions from Pell in December.

He was careful, he told the commission, not to deny the abuse. “I was quite clear that if an offence had been admitted by the archdiocese, we could not deny that it took place.” But he accepted Corrs’ advice that in the world of litigation it was fine to dispute the facts even though he accepted by this time that the abuse had happened.

Cardinal, Corrs weren't your moral advisers, were they?” asked Furness.

No.”

To intensify the pressure on Ellis, the Sydney archdiocese also declined to admit he was once an altar boy at Bass Hill; that Duggan was at the parish back then; and that, despite working for the best part of 30 years around the city, Father Duggan had ever been “a priest in the service of the archdiocese of Sydney”. This was hardball litigation.

In the background, a review panel of the church’s national committee for professional standards was, at Ellis’s request, examining the handling of his original complaint. The report in March 2005 by two senior barristers and the retired head of the NSW public service, Gerry Gleeson, was deeply sympathetic to Ellis. They recommended the process start all over again with fresh mediation and apologies to Ellis from Pell.

That didn’t happen.

With the hearing only a month away, the lawyers addressed the problem of the Eccleston report. A long email written by Michael Casey in June 2005 suggests – on a plain reading – that the lawyers, with Pell’s co-operation, set about finding formal deficiencies in the report which might allow it to be put aside.

Under Towards Healing, Pell had discretion to reject Eccleston. Casey told the lawyers: “His Eminence asked me to check that the Towards Healing assessment had in fact found in favour of Ellis's allegations.” And he had good news: Michael Salmon had reservations about the report, “not least because of Fr Duggan's incapacity to respond and the absence of any prior evidence of predatory behaviour”.

Salmon read this at the time and never protested. But he told the commission he had no real reservations and merely told Casey that Brian Rayner had one or two about Eccleston’s methods. Casey did not check with Rayner, who told the commission that while “it would have been far tidier if Father had admitted the abuse” he had no reservations about Eccleston’s methods or his conclusions. As far as he was concerned the abuse happened.

Casey took what Salmon had told him to Pell and wrote later that day to the lawyers:

This information places us in a position where we can say that the Archdiocese has never accepted that Fr Duggan was responsible for the abuse Ellis alleges he suffered, either under the Towards Healing process or at law.”

When that paragraph went up on the screens in the commission hearing room, high above Phillip Street in Sydney, there were gasps from the public gallery. No point in Pell’s examination was more eagerly awaited than this: how could he justify this about face on Eccleston? It came on the second day of his interrogation. McClellan said: “This appears to be a contrivance so as to give the lawyers a capacity to argue that the allegations of Mr Ellis should be disputed?”

Not at all, said the cardinal. He never denied Ellis was abused. He knew Casey to be a good man though perhaps “quite muddled here”. What was on foot at this point was quite unclear to the cardinal. Over and over again he said: “It’s a mystery to me.”

The Ellis case began in the supreme court of NSW on 20 July 2005. Out of the blue that evening, Ellis’s lawyers had a call from the man known at the commission as SA. Over the objections of Pell’s lawyers, the judge heard SA’s evidence. He had been an altar boy at the cathedral in the early 1980s when Duggan began to abuse him. In 1983 he gave a statutory declaration detailing the abuse to the cathedral’s dean, Michael McGloin. The dean did nothing but make SA face Duggan. SA gave up at that point. He said: “I felt devastated … I felt that my complaint had not been taken seriously.”

Dalzell at Corrs thanked the church’s barristers for the hard work they had done in the first week of the trial: “It was greatly appreciated and you will be greeted with open arms at the Pearly Gates.” He had looked at the McGloin situation: “It turns out Father McGloin has a complaint file as big as the New Testament ... including some underage sex.” The priest had been effectively sacked and was living somewhere down south.

Even more stunning was the news that Corrs now knew of a woman who could directly corroborate of Ellis’s allegations. A Mrs Judith Penton had befriended Duggan in the late 1970s and had told the lawyers she had often heard the priest speak of loving boys and how they loved him. One night she saw Ellis kiss Duggan. But this evidence was never heard in court.

Pell would swear he only knew Penton’s story in vague outline. But he did concede that even SA’s information “changed things considerably” and that he told his advisers this at the time. But it didn’t lead him – as he now says it should have – to issue fresh instructions to the lawyers to abandon the hardline denials of Ellis’s abuse. “The general supposition I was starting from was that the management of the case was in their hands.”

Ellis was cross-examined for four days about the most private details of his life: his difficult childhood; the abuse that continued until he was in his late 20s; his marriage breakdown and his sacking by the law firm Baker & McKenzie. Questions about the abuse he found particularly distressing.

I had understood until then that those instructing the lawyers for the trustees and Cardinal Pell believed without a doubt that the abuse had happened.”

Pell thought Ellis would see this for the exercise it was: not denying, just disputing. “We were dealing with Mr Ellis as a senior and brilliant lawyer … I think he, as a lawyer, would have understood the distinction.”

Justice McClellan turned fiercely on Dalzell: “I'm putting squarely in issue how it can be that a solicitor, who has an obligation to the court not to do anything that could mislead in any way, can sit behind counsel and allow this to happen?” Dalzell was stunned. He explained he had instructions that Eccleston’s report wasn’t accepted. “I act in accordance with instructions,” replied Dalzell.

McClellan was not appeased: “You do understand that you cannot say, as a solicitor, all I did was act on instructions, when you have information to the contrary?”

“I understood that, Your Honour, yes.”

When Ellis’s ordeal was over, counsel for the church accused him of being guarded, evasive and dishonest. The judge saw the man differently:

In my assessment, the Plaintiff was an honest witness who did his best to assist the court. In general terms, I accept his evidence as reliable.”

The judgment when it came was not what the church wanted. Ellis was given his extension of time. And the judge, looking to developments in the law overseas, found Ellis had an arguable case against the trustees of the Catholic church. Not Pell but the trustees. Ellis had a long haul ahead of him but the judge had cleared a path to the money.

Courts of appeal

After this victory in March 2006, Ellis once again offered to negotiate with the church. Pell decided to fight on. “I didn't think we could abandon the defence of the role of the trustees.” In April, the cardinal’s instructions were conveyed to Corrs: the appeal was to go “full steam ahead”.

Watching all this from a slight distance was Catholic Church Insurance. At the end of the day, it might be left to pay damages and legal fees. Their lawyers protested to Pell’s business manager, Danny Casey, about the costs being run up by Corrs – “a multiple of the fees which we would ordinarily expect to pay for similar matters” – and what they saw as a failure to make reasonable attempts “to investigate and/or consider the possibility of settlement. We would prefer to see some costs being devoted to reasonable settlement payments with claimants, rather than legal fees.”

For Pell, the decision to fight Ellis was absolutely vindicated when three judges of the NSW court of appeal in May 2007 unanimously upheld the “proper defendant” rule: that victims can’t sue the Catholic church (it doesn’t exist in law) or the trustees (who aren’t responsible for supervising priests) but only the offending priest (dead) or the offending priest’s supervising bishop (also dead).

The result was everything the church could have hoped for. The wealth of the church was secure beyond the reach of victims. Any payments made to meet “moral responsibility” would be gifts, not awards of the court. The church would set the tariff. At the urging of the lawyers, Pell’s office turned its attention to “the best strategy to capitalise on this result and on a media campaign”.

There was only one cloud on the horizon. Ellis was threatening to appeal. “I would be very happy for it to be tested in the high court,” he told the press in the aftermath of the court’s decision. “I just do not think it's right that the church can be above the law.”

The lawyers were a little nervous. “The issue is one of considerable social importance,” McCann warned the cardinal’s staff. And the practical result of the decision – that there was now no “substantial defendant” for victims to sue – “is likely to trouble at least some members of the Court”.

McCann proposed a deal: why not offer to forgo the $500,000 legal costs Ellis had been ordered to pay the church in return for his promise to not appeal to the high court? The offer was put to Ellis. Dalzell at Corrs believes this was done on Pell’s instructions. It was a hard decision for Ellis. He was broke. Another terrible tragedy had befallen him: while he was waiting for the court of appeal’s decision, his 18-year old son died. But he decided to fight on: “I made a conscious decision to risk everything I owned to do what I believed was right.”

The high court takes few of the cases that come knocking at its doors. Lawyers get half an hour or so with a couple of judges to try to persuade them to take their case. In November 2007 the court said no to Ellis. He was overwhelmed by a sense that he had only made things worse for other victims by fighting his case. He told the royal commission: “I was finding it very difficult to cope with day-to-day life and the impacts of my decision.”

The archdiocese and its lawyers, on the other hand, were thrilled their earlier victory was now set in stone. They wrote to Pell’s office to say the high court’s decision would protect the assets of the Catholic church not only in Australia but throughout the common law world. Insurance premiums could come down. More than ever, abuse victims would be compelled to focus the resolution of their claims on Towards Healing.

Corrs immediately demanded Ellis pay their costs: in excess of $500,000. Begg thought his client too vulnerable to risk passing on the demand.

We would have genuine and grave concern for his welfare if the letter is sent to him,” Begg told Corrs. “We believe that the prospect of self harm would be greatly increased.” He asked that in the light of Ellis’s health Corrs “take instructions again from those who instruct you”.

Pell was shown Begg’s letter. He let it ride for a few months. Begg sent a psychiatric report backing his grim view of Ellis’s health. Pell said he never saw it at the time. In May, senior officials of the archdiocese plus lawyers from Corrs gathered to hear Pell’s verdict. The cardinal archbishop was torn between two dangers, both significantly relating to the impact of all this on the public attitude to the church.

Dalzell took notes: “His Eminence wants to avoid any negative publicity associated with causing Ellis to go bankrupt or to causing him to experience an exacerbation of his psychiatric condition; and balanced against this, we do not want Begg and other plaintiff lawyers to think that the Church will simply roll over on its costs every time the plaintiff loses a case.”

That was a second moment when the sight of a document on the screens of the royal commission produced gasps in the audience. Pell told the commission the document was accurate. But he would never want to bankrupt anyone nor exacerbate Ellis’s condition, and if negative publicity had been his first concern the whole case would have been handled differently. How? “We would have paid up early, compromised the principle of the trustees.”

The next day, on Pell’s instructions, Corrs filed in the supreme court a notice of examination compelling Ellis to provide full details of his financial position. All Ellis had was his dilapidated house in the northern suburbs of Sydney. Ellis said: “The pursuit of the claim for costs had a severe negative impact upon me and my psychological condition worsened … ”

A cup of tea with the cardinal

Ellis’s second marriage, which seemed to heading for the rocks when he first took his troubles to Towards Healing, had strengthened immensely during the years of litigation that followed. Nicola Ellis worked for the Catholic Schools Office in the diocese of Broken Bay and knew the man who took over as Pell’s chancellor in 2005, Father John Usher.

After her husband was served with the notice of examination, and without his knowledge, she contacted Usher. A few days later Corrs had instructions to leave the pursuit of Ellis, at least for the time being. In August 2008, Usher told John and Nicola Ellis the costs would not be pursued. Ellis asked for this in writing. It didn’t happen.

In February 2009, Usher took the couple to Cathedral House to meet Pell. Ellis arrived feeling beset by the church. But Pell charmed him. He seemed so frank, so open, so willing to admit mistakes and acknowledge the harm the litigation had caused him. He looked him in the eye and said he had no idea how it had come to this. He apologised. He promised it would not happen again.

A few days later Ellis wrote to the cardinal that his admissions “reinforce the impression we had during the course of this matter that this was a runaway train that the Archdiocese did not have control of. How else could the expenditure of this obscene amount of legal fees whilst leaving the victim of admitted sexual abuse without any redress whatsoever be justified?”

Pell put his own position in writing. Casey wrote to Ellis:

Cardinal Pell wants you to know that although he believed that your claim was for many millions of dollars, he now knows that the truth of the matter was as stated in your letter … only $750,000.

Further, the Cardinal was distressed to learn that his submission was never responded to by the Archdiocesan lawyers. For this he apologises. Once again the Cardinal reiterated that he will do all in his power to ensure that this sort of legal abuse is never repeated again.”

So was the Ellis case conducted “with your clients' knowledge and consent”, McCann of Corrs was asked by the commission? Or was it “a case of the lawyers doing their own thing?” McCann replied: “Their knowledge and consent.”

Facebook Twitter Pinterest The mass of thanksgiving to farewell Pell at St Mary's cathedral on Thursday. Photograph: Jane Dempster/AAP

Mischievously, McClellan had asked a number of witnesses whether Ellis should now have another go. After all, they were saying he had been terribly abused and terribly shortchanged by the church and the courts. The general verdict was yes. Pell vacillated.

But in a late move it has been announced that he will add his voice to calls for the church to revisit the hundreds of little settlements immunity in the courts has forced on victims. But he is off to Rome. He is only one voice now. The Australian bishops will have to decide. And the price of justice could be hundreds of millions of dollars.