Institutional Child Sexual Abuse : The Church’s Defence

1 November 2025 in Criminal Law | 6 min read | skip to FAQs

In recent years, survivors of institutional child sexual abuse have encountered evolving laws and court decisions when seeking civil compensation from churches and religious organisations in relation to matters of institutional abuse. Although reforms have aimed to improve access to justice, recent judgments have exposed inconsistencies in how the law is applied and the defences still available to institutions.

This article explains the legal defences relied upon by churches, including the famous ‘Ellis defence’ and the more recent High Court of Australia decision of Bird v DP [2024] HCA 41, which has reshaped how institutional liability is handled in the courts. We also cover the recent case of Mendez v Diocese of Parramatta [2025] NSWSC 912, as well as future reforms that are expected in the near future.

What was the Ellis Defence?

Over several decades, survivors who attempted to bring proceedings against the Catholic Church in New South Wales faced significant difficulty due to the defence known as the ‘Ellis defence’. The Ellis defence arose from the 2007 case of Trustees of the Roman Catholic Church v Ellis. In that case, the Court of Appeal found that the Church could not be sued as it was not a legal person. This was on the basis that its assets were held by trustees, and those trustees were not legally responsible for the conduct of priests or members of the clergy.

This later became known as the “Ellis defence” and usually meant that even when matters of sexual abuse were proven to have occurred, victims could not recover compensation because there was legal entity to sue.

The ‘Royal Commission into Institutional Responses to Child Sexual Abuse’ condemned the use of the Ellis defence, describing it as denying justice to survivors of such abuse. The Commission recommended that the legislation was reformed to ensure that all institutions could be legally sued for claims involving historical child sexual abuse.

2018 Legislative Reform in NSW

In 2018, New South Wales introduced the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018, which introduced Part 1B into the Civil Liability Act 2002 (NSW). The introduction of this Act created two major reforms:

1. Religious and other unincorporated institutions are now required to nominate an entity with legal status and assets to be sued on their behalf. If they fail to nominate one, the court has the ability to appoint a suitable defendant.
2. Institutions responsible for children now must take reasonable precautions to prevent abuse by individuals associated with them, even if those individuals are not employees.

These changes to the legislation effectively ended the use of the Ellis defence in NSW and survivors could now bring claims against churches and other institutions that were previously beyond the reach of the law.

Bird v DP 2024 Introduced a New Limitation on Vicarious Liability

In the matter of Bird v DP [2024] HCA 41, the High Court of Australia revisited the issue of the circumstances in which an institution can be held vicariously liable for alleged abuse committed by members of its clergy. This case involved allegations of sexual abuse by a priest. The primary question was whether the Church could be held legally liable for the priest’s conduct. The Court ultimately ruled that vicarious liability only arises in true employment relationships, and that priests are not employees of the Church.

The Court relied largely on the idea that a priest’s relationship with the Church is spiritual rather than contractual. The High Court came to this conclusion largely for these reasons:

1. Priests do not receive wages in the ordinary sense.
2. Priests can be transferred between parishes.
3. Priests operate with significant autonomy in their roles.

The Court maintained that the Church could not be held vicariously liable for acts of abuse committed by a priest. The High Court in their judgement also made it clear that any extension of liability beyond employment relationships is an issue that is required to be dealt with through legislative reform in Parliament, not the judiciary.

The Impact of Bird v DP

This decision was significant as it now created a new loophole for churches. Even though the Ellis defence had been effectively abolished, institutions can now argue that they are not liable, as the abuser was not technically an employee. Many institutions associated with advocating for victims of institutional abuse have described this ruling as a major step backwards. Governments around Australia have pledged to introduce new legislation which will close this new gap.

Mendez v Diocese of Parramatta Upheld Bird v DP 2024

The effects of the decision in matter Bird v DP were felt shortly after in Mendez v Trustees of the Roman Catholic Church for the Diocese of Parramatta [2025] NSWSC 912.

In this matter, the plaintiff brought proceedings against the Diocese of Parramatta, alleging historical child sexual abuse by a priest of that Diocese. The claim was put forward on two bases:

1. Negligence by the Diocese; and
2. Vicarious liability for the acts of the priest.

Following the decision in Bird v DP, the plaintiff had difficulty proving vicarious liability because the priest was now not classed as an employee. The plaintiff sought to delay the hearing through an application to vacate, arguing that the proposed legislative reform from parliament may soon change the law to cover this loophole.

The NSW Supreme Court however, rejected that request, with Justice Richmond citing the long standing principle that courts must determine cases according to the law as it presently exists, not based on speculation about possible future reforms. His Honour cited the earlier authority in the case of Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527, which affirms that judicial proceedings must be determined under existing law.

At paragraph [62] of the judgement, Justice Richmond stated:

“In the application of the overriding purpose of the just, quick and cheap resolution of proceedings, absent some appropriate and compelling reason, this Court ought not tailor the timetabling of matters, or the hearing of matters once prepared, on the basis that the law may be changed by the passing of legislation at an uncertain time and in an uncertain way… Parties coming to this Court either as plaintiffs or defendants are entitled to expect that the proceedings will be commenced, prepared and prosecuted according to the law as it stands.”

Accordingly, the plaintiffs notice of motion was dismissed, and the matter was required to proceed under the current law.

The Law in NSW Today

Although the decision in Bird v DP limits the establishment of vicarious liability in these matters, survivors in NSW still have protection and alternative avenues under the existing legislation. This includes:

1. Under section 6F of the Civil Liability Act 2002 (NSW) which states that organisations that are responsible for children must take reasonable precautions to prevent abuse by anyone “associated with the organisation”. This can include volunteers, priests, contractors and any other individual working with children.
2. Institutions must nominate a proper defendant to be sued, and if they fail to do so, the court can appoint one on their behalf. This has ensured that there is always a financially viable entity that can meet any judgement.
3. Even if the argument of vicarious liability fails, survivors can pursue direct negligence claims where the institution knew or should have known of the risk of abuse and failed to act or put in place proper procedures and protection.

Following Bird v DP, several Attorney Generals across Australia have discussed options for reforming the vicarious liability laws. States including Victoria and Queensland have indicated their support for amending the legislation, but no actual framework has been introduced.

Advocates for these changes have argued that the delay is continuing to cause significant stress and hardship to survivors, who must continue to rely on the current NSW statutory framework and established negligence principles.

How can BSM Sydney Lawyer assist you?

At Brander Smith McKnight Sydney Lawyers our experienced criminal law team understands the legal complexity and sensitivity of these matters. Our criminal lawyers are able to advise you on the strength of your claim under NSW law. This includes whether the institution can be sued, who the proper defendant is, how recent Court decisions such as Bird and Mendez may affect your  prospects and any options you may have for pursuing compensation. Contact our office to arrange a free 20-minute consultation to discuss your matter.

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