The Catholic Church is facing renewed scrutiny over its legal strategies in response to sexual abuse claims. An investigation has revealed that the church attempted to revive a controversial legal loophole known as the "Ellis defence," which previously allowed it to avoid lawsuits from abuse victims. This loophole was closed by the Victorian government in 2018 following a royal commission into child sexual abuse.

Under the current legal framework, the church must designate a representative to be sued, with Archbishop Peter Comensoli serving in that role in Melbourne. He has not been accused of any wrongdoing. However, in 2022, the church sought to reinstate the Ellis defence during legal proceedings involving Archbishop Comensoli. The Victorian Supreme Court rejected this argument, labeling it a "distorted construction" of the law.

The number of historical abuse cases against Archbishop Comensoli has surged, with at least 84 individuals currently suing the church for alleged sexual abuse by priests or church officials. This increase follows a four-fold rise in institutional abuse cases since the introduction of the Legal Identity Act in 2018, which mandates that religious institutions nominate a proper defendant. The number of cases filed against various institutions has escalated from 125 in 2018-19 to 504 in the last financial year.

Despite the growing number of cases, many victims' ability to seek compensation has been jeopardized by a recent High Court ruling in the Bird v DP case. The court determined that churches cannot always be held liable for the actions of priests, as they are not considered employees. This ruling has raised concerns among advocates, who argue that the delay in legislative action to address this loophole is causing further trauma to victims.

Steve Fisher, a victim-survivor and head of the advocacy group Beyond Abuse, has urged state and territory attorneys-general to act swiftly. "This Bird decision is a huge decision and the government needs to help victim survivors out," he stated. Fisher expressed frustration that nearly a year has passed without legislative changes, calling the situation "disgusting."

Cases against Archbishop Comensoli represent about 10 percent of the institutional abuse claims filed since the 2018 law was enacted. The Supreme Court has provided a list of cases against him, but many details remain confidential due to legal restrictions on identifying abuse victims.

Recent court judgments have revealed shocking allegations of abuse by priests, alongside the church's attempts to exploit legal loopholes. In one notable case, the church argued that the 2018 law did not apply to conduct that occurred before Archbishop Comensoli's tenure. Justice Andrew Keogh dismissed this argument, affirming that the law was intended to cover past abuses.

In another case involving the late George Pell, the church contended that the law only applied to primary victims of abuse, not their families. Justice Michael McDonald rejected this claim, stating that the law's plain meaning encompassed all claims related to child abuse.

Financially, the stakes are high for the church. In November 2023, a jury awarded $4.1 million to a victim known as "TJ," who was abused by priest Vincent Kiss in the 1970s. The church initially denied the abuse but changed its position shortly before the trial. The Court of Appeal later reduced TJ's payout to $1.5 million.

The Bird ruling has complicated the church's liability for abuse committed by priests, prompting the Victorian government to pledge new legislation to close this loophole. Attorney-General Sonya Kilkenny has stated that the government is committed to supporting survivors of child abuse and is exploring legislative options.

However, Fisher fears that the issue is losing momentum on the national law reform agenda. He noted that while some state officials are monitoring the situation, the lack of urgency is detrimental to victims. "The psychological damage that that causes is akin to what we call secondary abuse," he said.

Archbishop Comensoli has not commented on the church's legal strategies but has expressed a commitment to addressing the harm caused by historical abuse. A spokesperson for the archdiocese stated that they aim to settle civil matters promptly to avoid further distress for victims, noting that less than 1 percent of claims proceed to court.