Alleged St Alipius abuse victim calls court ruling a 'retrograde step'

Last week justices Beach, Macaulay and Lyons handed down their findings into the matter of The Christian Brothers vs DZY (a pseudonym) after DZY made a claim for economic loss stemming from alleged childhood sexual abuse.

DZY, a student at a St Alipius Primary School between 1964 and 1968, claimed he was sexually assaulted by Brother Robert Best and Brother Gerald Fitzgerald during his time there.

The court was told in 2012 and 2015, DZY signed two out-of-court deeds of release with The Christian Brothers for amounts of $80,000 and $20,000, respectively.

Signing such deeds were commonplace prior to legislation changes in 2015 and 2018 - such as the scrapping of the "Ellis defence" where the church claimed it was an unincorporated association and therefore couldn't be sued in the same way as a company or organisation.

Another issue facing survivors seeking compensation was a statute of limitations on abuse claims, which was also scrapped following the Royal Commission into Institutional Responses to Child Sex Abuse.

Each deed expressly noted DZY was not making a claim for "economic loss", that is a loss of income as a result of issues stemming from the alleged abuse.

The most recent Court of Appeals hearing came about after DZY made a personal injury claim against The Christian Brothers for economic loss between $1,814,528 and $2,207,466.2.

DZY claimed the settlement agreements were inadequate, due to the imposition of the Ellis defence and statute of limitation laws existing at the time the deeds were signed.

In 2021, when the claim was made, The Christian Brothers sought to use the terms of the 2012 and 2015 deeds as a defence, and said DZY was barred from making further claims under the deeds.

At a subsequent hearing, a Supreme Court Justice sided with DZY, and set aside the two deeds, allowing the personal injury claim to proceed.

Last weeks' judgement came after The Christian Brothers appealed the ruling.

Among their reasonings, justices Beach, Macaulay and Lyons found DZY did not end up signing the 2012 and 2015 deeds of release due to the Ellis defence or statute of limitations - instead they said it was over a concern an economic loss claim would affect Centrelink payments DZY had been getting.

The justices allowed the appeal, which would allow DZY to make a personal injury claim, but not claim for economic losses.

DZY called the justices' ruling the "Ellis Defence version two".

"This decision of the court of appeal is taking us back to the days when the church could rely on the Ellis defence and not pay proper compensation to victims of institutional child sexual abuse. I call it 'Ellis Defence version two'," DZY said.

"I cannot understand why the Supreme Court of Appeal did not find those paltry payments unfair and unjust. The court has relied on highly technical legal arguments which benefit the Christian Brothers at the expense of victims."

Dr Judy Courtin, whose firm is representing DZY in the case, called the ruling a "retrograde step" for victims seeking compensation.

"What the institutions, including the Christian Brothers, don't appreciate, is that highly traumatised victims of child sexual assaults are being traumatised all over again as they must bear the brunt of these decisions. DZY's trial date was first listed in March 2023. That had to be vacated because the Christian Brothers relied on the prior settlement agreements and argued that DZY could not claim economic loss," Dr Courtin said.

Dr Courtin said DZY would be seeking to appeal the ruling in the High Court.

"DZY is concerned not only for himself, but for those many other victims in his position. DZY is instructing us to make an application to the High Court of Australia for special leave to appeal this recent Victorian appeal court decision. This reflects DZY's lionheartedness and unselfishness for all victims of child sexual abuse," Dr Courtin said.

The Christian Brothers decline to make comment on the matter.