The families of child abuse victims can sue the Catholic Church, a Victorian court has ruled in a matter brought by a deceased choirboy's father.
The father, who cannot be named for legal reasons, filed a civil suit seeking damages against the Catholic Archdiocese of Melbourne and Cardinal George Pell in the Supreme Court.
He claims to have suffered nervous shock upon finding out about his son's alleged abuse in the mid-1990s.
The Catholic Church wanted to be excused from the proceedings by relying on the Ellis defence, arguing the man cannot sue as he was not the direct victim of Cardinal Pell's alleged sexual abuse.
Up until 2018 the church could deny liability to sexual abuse victims using the Ellis defence.
The father's case is believed to be the first to test the whether the Legal Identity of Defendants Act, brought in to abolish the defence, applies to secondary victims including family members.
Lawyers representing the father, known under pseudonym RWQ, said the act's wording allowed for claims to be brought against the clergy "founded on or arising from child abuse".
Justice Michael McDonald on Wednesday ruled the law could extend to secondary victims of child abuse.
"The plain meaning of the words 'founded on or arising from child abuse' ... includes a claim for nervous shock brought by a parent of a child alleged to have been sexually abused," he told the court.
He said repeated usage of "founded on or arising from child abuse" in the act pointed strongly to a conclusion that the law was not confined to claims brought by primary abuse victims.
"To conclude otherwise renders the words 'arising from child abuse' otiose," Justice McDonald said in his written decision.
Cardinal Pell was in 2018 convicted of molesting two teenage choirboys in the sacristy at St Patrick's Cathedral while he was Archbishop of Melbourne in 1996.
He has always maintained his innocence and his conviction was quashed in a unanimous decision by the High Court in 2020. He walked free in April 2020 after serving 13 months in prison.
One of the two choirboys died of a drug overdose in April 2014 and his father has claimed he was informed about the boy's alleged abuse the following year by police.
He claims the church was vicariously liable for the alleged abuse and that he has lost money to medical expenses and earning capacity due to suffering from several psychological conditions.
The ruling will allow RWQ's civil case to proceed.
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