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THE WORST MIGRATION STORY – EVER!
This is the story of a recent class action in New York presented on behalf of a group comprising of the Australian Stolen Generation based on claims of improper mass child migration (children from Malta and England) for the purposes of human trafficking. The Court held, in effect, the “Stolen Generation” never took place, as understood by the Australian public and most importantly the victims. Children were never placed in institutions operated by international religious orders, such as the Congregation of the Christian Brother (CCB) and the Sisters of Mercy (SOM). Therefore such groups were not and could be guilty of any abuse.
NO LEGAL REMEDY IN AUSTRALIA
Regardless of whatever allegedly occurred to the children, a brutal regime of current Australian law destroys all possibility of legal remedy for the following reasons. Some of the legal impediments include:
- The Ellis Case. Orders that operated the institutions were structured as unincorporated voluntary associations so they cannot be sued.
- The 1935 Limitation Act of Western Australia. Apart from Ellis case this odious law destroys any remedy (even in most cases involving fraud) the Statute of Limitations (SOL) cannot in most cases be extended.
THE ISSUE
Considering the above, how then can our most marginalized commence a class legal action seeking recognition and compensation for what allegedly occurred?
NEW YORK! NEW YORK!
The destruction of the capacity for a remedy to be pursued in Australia can now act as a foundation for the commencement of proceeding in an overseas jurisdiction.
Thus we commenced class action proceedings in New York in the matter of Ellul (& Others) v. Congregation of the Christian Brothers (& Others).
GOD BLESS AMERICA!
The U.S. legal system provides a voice to the vulnerable. It is very sad that what is known as the “Natural Forum” for our most marginalized is the United States of America. There was immediate bitter objection at the commencement of proceedings on the basis we were “forum shopping”; that we chose the jurisdiction on the basis of the size of the possible damages. Sadly, and extraordinarily, once the harshness of Australian laws was explained the matter continued.
The primary defendants were the Congregation and SOM. For one brief moment the groups that comprise the “Stolen Generation” were empowered (thanks to the brilliant legal work of the firm Sharma De Young).
In real life seldom is there a happy ending.
How the residue of my faith in human nature was extinguished
THE DEFENCE OF THE CONGREGATION OF THE CHRISTIAN BROTHERS
by virtue of sworn affidavit evidence and written submission the Congregation successfully asserted amongst other thinks that they:
- Had always been known as the Rome Congregation and had always been based in Rome (not Ireland).
- Never had any presence in Australia as an international religious Order.
- Never operated any orphanages, institutions, work farms
- Never had an office in Australia and thus they
- Never participated in or were complicit in any form of abuse at any institution.
- Never operated as an international Order
- No centralized governance structure or agency relationship with any other group.
THE DEFENCE OF THE SISTERS OF MERCY
Similarly, the SOM have never been an international religious Order – there was no international or worldwide governance structure. Each national group is and always has been separate and independent of each other. To the best of my knowledge the “Ellul Defence” (that the Orders never existed as international Orders, but that other disconnected bodies independently operated the institutions) remains entirely unknown by the victims.
The effect of such defence is to challenge the integrity of any apology conveyed as to past behaviour. A Religious Order cannot concurrently be sorry and disavow their existence!
JUDGEMENT
The judgement of Justice Crotty of the United States Southern District accepted that as at the relevant time, during the operation of the institutions, the international Order of the Christian Brothers never operated as an Order in Australia and thus never operated any institutions and is thus obviously innocent of any claims of abuse.
Similarly, the Court accepted that the Sisters of Mercy never existed as part of an international Religious Order. Even the use of the words “Sisters of Mercy” was described as nothing more than a generic term. Thus as with the Congregation of the CB’s the Order never operated institutions and could not be liable for any abuse.
APPEAL
The Judgement of the Appeal was delivered on 8th December 2014, fortuitously during the conduct of the Royal Commission into Institutional Responses to Child Sexual Abuse (hereafter referred to as the Commission). The Appeal was dismissed upon the basis that the relevant (U.S.) Statute of Limitations applied, as the victims should have known whom to sue during time the abuse took place at the institutions.
With due respect to the Courts, the inherent weakness of the judgement is that the local (hitherto unknown) entities the victims are supposed to sue simply did not exist as at the time of the existence of the Institutions and when the abuse took place. For example, the entity named in the Judgement (that was supposed to have operated the Institution) was “Christian Brothers Oceania”. The problem is such group did not even come into existence until 2007.
ROYAL COMMISSION
Prior to the appearance of witnesses we ensured that the Royal Commission was appropriately briefed as to the nature of the Ellul Defence. Shortly after delivering the Judgement in the Appeal case in the United States the Congregation provided evidence to the Royal Commission, agreeing to the factual pattern asserted by the Plaintiffs (Ellul & the others) in New York (that is the opposite to the claims presented in New York).
For example, the Congregation conceded that they
- Were part of an International Order
- Had an international hierarchical structure
- Were originally operated from Dublin Ireland
- Conducted institutions in Australia where child labour took place.
WHAT IS THE PRECEDENT VALUE OF ELLUL?
All members of the various groups of the stolen generations of children placed in non-government religious institutions have been gravely and inexcusably misled. The victims remain entirely unaware that the relevant international Religious Orders were never present in Australia, never ran any institutions and are not liable for any abuse. It is fair to assert that the victims have never heard of the groups the Orders claim did operate the institutions.
The precedent value of Ellul with respect to the issues of “Redress” and civil litigation considered by the Royal Commission may be viewed as appalling. These issues involve consideration of changes to the law to allow judicial review and providing compensation. Again, the victims remain totally ignorant that even if judicial review became available the Orders could then adopt the Ellul Defence again.
Further considering Ellul, how is it possible for the Orders to provide or even offer compensation whilst concurrently denying their existence in Australia?
It is a matter of grave concern that, unknown to the victims, the Royal Commission’s findings (for example as presented in a number of Case Studies) may or have been irrevocably contaminated.
The Ellul Defence remains deeply offensive to the victims. It remains a matter of concern as to how it is conceivable that an Apology can be presented to the victims.
If there is any benefit to be had from Ellul it is that it could be argued that the date of accrual (that is the date of awareness of certain events) as to abuse could commence as from the date of publication of this article!
SUMMER READING
You are requested to compare the Ellul Judgement and Appeal with the evidence presented to the Royal Commission. There is much more, but note the following.
http://www.law360.com/cases/4d8a06c57524f86441000002
caselaw.findlaw.com/US-2nd-circuit/1685873.html
Look to the transcript of evidence 6th May 2014, where the representative of the CCB concedes to the Royal Commission that amongst other things:
- Congregation exists as an International Order (page 2228)
- “I don’t know of any religious congregation that would go into litigation over this. This is people’s lives being ruined” (page 2232)
- When commenting on the consequence of the abusive behaviour of the Congregation ….. “I will never deny it, I will never defend it, I will never condone it” (Page 2258)
- Children turned into child labourers (exactly what we were asserting in New York (page 2298)
Sad reading.
Written for Migration Alliance, with the permission of Liana Allan. Author: Adrian Joel, the lawyer for the Australian end of the case.
Media: This email address is being protected from spambots. You need JavaScript enabled to view it.
Comments
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Tuesday, 29 November 2016Michael, As you are no doubt aware a statute of limitation period can only commence as at the time when the victim does or should become aware of the alleged wrong. As I said in the article, an issue in the Ellul matter is how could the time limit commence when the NY District Court held that the relevant international religious orders did not conduct the institutions where the abuse took place. How could the victims know that "this never happened" and that entities that "never existed at the time" were held to have operated the institutions? How could the victims know who to sue, if the Orders "did not do it".
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Tuesday, 29 November 2016
You may find yourself at odds with the language of the several cases quoted by the court or with the court's conclusion in paragraph 14; but the court clearly considered your position and rejected it.
"14. Similarly, we assume that a ten-year statute of limitations applies to all of Carmack's claims. While plaintiffs' concession that the ten-year statute of limitations from the TVPA applies to their claims is worded in terms of claims brought under the ATS, there is no suggestion in their briefing, let alone an argument, that a different limitations period applies to Carmack's substantively identical international law claims purportedly brought under § 1331."
The court makes it crystal clear that the fault in the appellant's argument arose from its lack of pleading in the lower court--or in its doing so in the current court. As the court states: "there is no suggestion in their briefing, let alone an argument, that a different limitations period applies..." If you don't bring it up below, it has no place in an appeal unless you are pleading inadequacy of counsel in the lower court. Australian courts view this somewhat differently. But the appellants chose the US venue--not the defendants.
The morality may differ from the legality, but the court was thorough and correct.
Immigration blog
The court dismissed on the correct legal grounds:
"13. District courts within our Circuit have similarly applied the ten-year limitations period from the TVPA. See Sikhs for Justice v.. Nath, 893 F.Supp.2d 598, 627 (S.D.N.Y.2012); Shan v. China Constr. Bank Corp., No. 09 Civ. 8566(DLC), 2010 WL 2595095, at *2 n. 8 (S.D.N.Y. June 28, 2010); Jesner v. Arab Bank, PLC, No. 06–CV–3869 (NG)(VVP), 2009 WL 4663865, at *3 (E.D.N.Y. May 1, 2009); In re S. African Apartheid Litig., 617 F.Supp.2d 228, 288 (S.D .N.Y.2009); Javier H. v. Garcia–Botello, 239 F.R.D. 342, 346 (W.D .N.Y.2006); Manliguez v. Joseph, 226 F.Supp.2d 377, 386 (E.D.N.Y.2002); Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386(KMW), 2002 WL 319887, at *19 (S.D.N.Y. Feb. 28, 2002); Karadzic, 2000 WL 763851, at *1 n. 3. But see In re “Agent Orange” Prod. Liab. Litig., 373 F.Supp.2d 7, 63 (E.D.N.Y.2005) (suggesting that no statute of limitations applies to ATS claims).
14. Similarly, we assume that a ten-year statute of limitations applies to all of Carmack's claims. While plaintiffs' concession that the ten-year statute of limitations from the TVPA applies to their claims is worded in terms of claims brought under the ATS, there is no suggestion in their briefing, let alone an argument, that a different limitations period applies to Carmack's substantively identical international law claims purportedly brought under § 1331."
It was a political filing and had no place in court.
This is not the worst decision ever.
It was a jurisdictional decision.