WJT v Trustees of the Marist Brothers; WXC3 v Trustees of the Marist Brothers; GAC v Trustees of the Marist Brothers (No 4)

Graeme Stuart Hawkins was a teacher at Parramatta Marist High School (‘the school’) between 1975 and 1993. He was suspended from that employment on 14 September 1993 following allegations made against him by a student. Those allegations were that Mr Hawkins had sexually abused the student whilst in Mr Hawkins’ car “on the way to or from a canoe club outing”.

As it happens, the sexual abuse allegedly perpetrated by Mr Hawkins was not confined to the student who made that initial report. Soon after, other students reported that they too had been abused by him.

Police were notified of these allegations against Mr Hawkins in late 1993. Investigations undertaken by them at that time revealed that there were 14 students from the school (including two former students) who had allegedly been sexually abused by Mr Hawkins.

Mr Hawkins was summarily dismissed from his employment as a teacher at the school on 18 October 1993. He committed suicide in December 1993.

WJT (‘the first plaintiff’), WXC3 (‘the second plaintiff’) and GAC (‘the third plaintiff’) were formerly students at the school. The first plaintiff attended the school from 1990 (Year 7) to 1995 (Year 11), the second plaintiff from 1991 (Year 7) to 1996 (Year 12), and the third plaintiff from 1990 (Year 9) to 1993 (Year 12). They each allege that Mr Hawkins sexually or physically abused them, or both.

In the case of the first plaintiff, he alleges that he was sexually abused by Mr Hawkins whilst on canoe camps between 1991 and 1993. The alleged sexual abuse consisted of Mr Hawkins fondling him, typically before he showered. The first plaintiff also alleges that, on two occasions, the sexual abuse consisted of Mr Hawkins performing oral sex upon him and masturbating himself in front of the first plaintiff thereafter. The physical abuse which the first plaintiff alleges he was subjected to was in the form of unnecessary and excessive corporal punishment, whilst a student.

In the case of the second plaintiff, he alleges that he was sexually abused by Mr Hawkins whilst on a canoe camp with one other student sometime around Easter in 1992. The sexual abuse allegedly consisted of forceful squeezing, fondling and anal rape. He also alleges that Mr Hawkins separately fondled him in 1993. The physical abuse to which the second plaintiff alleges he was subjected to was in the form of Mr Hawkins squeezing his neck “very hard” on “around 20 occasions during class” in 1992.

In the case of the third plaintiff, he alleges that he was sexually abused by Mr Hawkins in and around the classroom and school grounds, during and after school hours. He specifically describes being assaulted in 1993 (when he was in Year 12) whilst taking steps to complete his Higher School Certificate (‘HSC’) major work for his woodwork subject, in the woodwork room or adjacent storage area. The abuse – which the second plaintiff alleges occurred on 17 occasions between July and August 1993 (approximately) – allegedly consisted of anal rape and oral sex. It sometimes involved Mr Hawkins using acetone and wood to silence him.

Seven aspects of the procedural history of these matters should presently be noted.

First, the hearing initially involved claims for damages brought by the plaintiffs against two defendants – namely, the Trustees of the Marist Brothers (‘the first defendant’ or ‘the Marist Brothers’) and the Trustees of the Roman Catholic Church for the Diocese of Parramatta (‘the second defendant’). However, on 11 June 2025, each plaintiff compromised their claim against the first defendant but continued with their claims against the second defendant. Given the settlement between each plaintiff and the first defendant involved an agreement that judgment be entered in favour of the first defendant, no judgments were entered, so as to preserve the second defendant’s entitlement to pursue its claim for contribution: James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; [1998] HCA 78.

Secondly, on the eighth day of the hearing, the claim brought by the first plaintiff resolved and, on 17 June 2025, orders were made giving effect to that compromise.

Thirdly, notwithstanding the resolution of the first plaintiff’s actions against both defendants, and the claims by the second and third plaintiffs against the first defendant, the second defendant pursued its cross-claim against the first defendant in each action and sought contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (‘the LRMP Act’). Each cross-claim, however, involves the same substantive issues, and both defendants accepted that the decision in one cross-claim was determinative of all three.

Fourthly, on 18 June 2025, the third plaintiff and second defendant agreed upon the quantum of damages, subject to the determination of whether the sexual abuse occurred as the third plaintiff alleged.

Fifthly, the second defendant accepted that, if the respective plaintiff proved to the required standard that the abuse occurred, it had breached its duty of care owed to that plaintiff and, further, that “causation” had been demonstrated (albeit that the extent of the loss and damage suffered remained in issue).

Sixthly, the matters were heard together, with the evidence in one being evidence in the other (except in relation to the evidence on quantum and damages).

Seventhly, a number of former students gave evidence, some of whom alleged that they too had been physically and sexually abused by Mr Hawkins. To the extent that it is necessary to reference evidence from those living witnesses who experienced or allege misconduct by Mr Hawkins against them, they are referred to by initials.

Thus, by the remaining claims, the second and third plaintiffs seek damages against the second defendant. They allege that the second defendant is directly liable for its failure to exercise reasonable care and is vicariously liable for the acts allegedly perpetrated upon them by Mr Hawkins. The second defendant seeks contribution from the first defendant in respect of each of these claims, including the resolved claim brought by the first plaintiff.

Although there is a degree of factual overlap between the three claims – and, thus, common factual findings can be and have been made – differences nevertheless remain. Those differences notably relate to the circumstances of the alleged abuse.

As the primary claim between the first plaintiff and each defendant resolved (leaving only the cross-claim for contribution to be determined) and the claim brought by the second plaintiff raises particularly complex issues of fact and law (again noting that damages have been agreed in the claim brought by the third plaintiff: see [13], above), it is convenient to first address the second plaintiff’s claim, including the second defendant’s cross-claim.

By amended statement of claim filed 28 April 2025 (‘SPASOC’), the second plaintiff alleges that he was sexually and physically abused by Mr Hawkins in 1992 and 1993. That alleged abuse is summarised as follows:

The second plaintiff alleges that he has suffered both physical and psychological harm in consequence of the sexual and physical abuse allegedly perpetrated upon him (SPASOC at [5]). He contends that the second defendant is directly liable for that abuse by its failure to exercise reasonable care, and is vicariously liable for the acts perpetrated upon him by Mr Hawkins.

Notwithstanding the way the claim was pleaded, the second plaintiff ultimately only sought damages for the psychiatric and/or psychological injuries he claimed to have suffered in consequence of the sexual abuse. Given the nature of what is alleged and the operation of s 3B(1)(a) of the Civil Liability Act 2002 (NSW) (‘the CLA’), the second plaintiff alleges that any damages awarded to him should be assessed independently of Part 2 of the CLA, and that this is so irrespective of whether the defendant’s liability is direct or vicarious: SPASOC at [20]. Subsequently, in written submissions filed, the second plaintiff accepted that any damages resulting from the second defendant’s direct liability to him are to be assessed in accordance with Part 2 of the CLA.

The duty of care that the second plaintiff alleges was owed to him by the school was put in two ways: first, that the duty of care owed to him was a duty “to take reasonable care for the safety of the [second plaintiff] whilst a student at the school…” (SPASOC at [6]-[14]) and, secondly and alternatively, that the duty owed to him was “a non-delegable duty of care”: SPASOC at [14A]-[14J]. During submissions, the second defendant expressly accepted that the duty it owed the second plaintiff was non-delegable, and was otherwise as described in Commonwealth v Introvigne (1982) 150 CLR 258, 269-271; [1982] HCA 40 (‘Introvigne’).

As to vicarious liability, the second plaintiff alleges that Mr Hawkins was employed by the second defendant as a school teacher and that – despite the abuse amounting to a criminal offence (in particular the sexual abuse, if accepted) – the second defendant was nevertheless vicariously liable for it given Mr Hawkins was, inter alia, in “a position of authority, power, trust and intimacy vis-à-vis the [second] plaintiff”: SPASOC at [16](b) and (c). In those circumstances, the second plaintiff argues that the alleged sexual and physical abuse occurred “in the course” of Mr Hawkins’ employment with the second defendant and, thus, that it is vicariously liable for the consequences of such conduct: SPASOC at [17]-[19].

The SPASOC, it should be noted, does not plead any specific cause of action against Mr Hawkins. Indeed, no cause of action in respect of any intentional tort is pleaded. Rather, the second plaintiff’s case was advanced (and only advanced) in “negligence”. The significance of the second plaintiff confining his cause of action to one in negligence is – in connection with alleged sexual abuse – of limited forensic materiality (given the limited and confined concession made by the second defendant: see [139], below). However, in connection with the allegation confined to physical abuse, the position is less straightforward. It will be necessary to return to consider the form of the pleadings when dealing with the specific circumstances giving rise to each cause of action sued upon.

Given the alleged conduct arose over 30 years ago and proceedings were only commenced by the second plaintiff in 2023, a short explanation of the second plaintiff’s entitlement to bring these proceedings is in order.

Ordinarily, in relation to damages for personal injury founded on tort that accrue before 6 December 2002 (the case for the second and third plaintiff), a six-year limitation period applies running from the accrual of that cause of action: see s 14(1)(b) of the Limitation Act 1969 (NSW) (‘the Limitation Act’). Where the injured party is a minor, the limitation period is suspended until that party attains the age of 18 years: ss 11(3) and 52 of the Limitation Act. Time commences to run thereafter.

By amendments to the Limitation Act, introduced by the Limitation Amendment (Child Abuse) Act 2016 (NSW), that commenced on 17 March 2016 (and which operate retrospectively), there is no limitation period applicable to proceedings where the action for damages relates to “personal injury to a person resulting from an act or omission that constitutes child abuse of the person…”: s 6A(1) of the Limitation Act. The background to this amendment was set out in Gersbach v Gersbach [2018] NSWSC 1685 at [9]-[13] and in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (‘GLJ’) at [29]-[33].

The second defendant, whilst accepting that sexual abuse of the kind alleged by the second plaintiff was within the terms of s 6A(1) and was therefore not subject to any limitation period (see [20](1) and (3), above), did not accept that any “squeezing” of the second plaintiff’s neck by Mr Hawkins was “serious physical abuse” or, to be clear, “connected abuse” within s 6A(2) of the Limitation Act. Thus, in relation to the second plaintiff’s claim for damages based upon that conduct, the second defendant relied upon the time bar provided by s 14(1) of the Limitation Act. However, as later explained, no limitation issue in fact arises because, during submissions, the second plaintiff abandoned any claim based upon Mr Hawkins “squeezing” his neck: see [285]ff, below.

Many of the background facts are uncontroversial. I set out such facts in what follows, which reflect my findings across all claims.

To the extent that certain facts are contested, they largely concern or relate to the alleged abuse, whether the second defendant is vicariously liable for the acts of Mr Hawkins, and issues of damages. The contested facts are resolved where they arise in those situations.

The second plaintiff was born on 8 June 1978. He enrolled in and commenced at the school in Year 7 in 1991. He remained at the school until he completed Year 12 in 1996.

The Marist Brothers were founded in France in 1817 for the “education and Christian formation of young people, especially the least favoured”. They first came to Australia in 1872. In Australia, “the principal focus of the Marist ministry has been primary and secondary education, provided as part of the Australian Catholic school system”.

The Government Gazette records that the Diocese of Parramatta was created on 19 May 1986 “out of a geographical area previously forming part of the Archdiocese of Sydney…”. Although this Government Gazette was only admitted on the cross-claims, the creation of the Diocese (and, therefore, the second defendant) was not contested.

The school is a Catholic school that has operated since late 1820. According to apparently “careful documentary research” it is the oldest Catholic school in Australia and is, reportedly, the second oldest Australian school of any type.

The school has a junior and senior campus. The senior campus is located in Westmead, NSW.

The relevant school Principals and the duration of their tenure were as follows:

The staff at the school consisted of “lay and church staff”. The second defendant’s submissions distinguished between what were described as “lay” teachers and those who were “Brothers”. This distinction reflected the fact that lay teaching staff were employees of the second defendant, whereas the Brothers were not. It will be necessary to return to discuss an aspect of the staffing “arrangements” of the school – notably, the appointment of school Principals – when addressing the cross-claim.

Graeme Stuart Hawkins, who apparently went by the name Stuart Hawkins, was a teacher at the school from 28 January 1975 until his suspension on 14 September 1993.

Mr Hawkins was employed by the Catholic Education Office (‘CEO’), Diocese of Parramatta. The second defendant nonetheless accepted that Mr Hawkins “was its employee”.

Although there was some evidence suggesting that Mr Hawkins was trained as a mathematics teacher, his application for employment with the second defendant records that his tertiary education was in military studies. Notwithstanding, Mr Hawkins indicated in that application that he was applying for a secondary school teaching position involving subjects including English, geography, commerce and history.

Following his employment though, the evidence appears to suggest that Mr Hawkins was classified (or principally classified) as a mathematics teacher. In the 1985 school magazine, for instance, Mr Hawkins was depicted in a photograph as part of the “maths department”. However, the evidence more broadly demonstrates – and I am satisfied and find – that Mr Hawkins taught other subjects too: including commerce, technics, and history.

Mr Hawkins was additionally associated with canoeing. Canoeing was a sport offered to students, including through a canoe club. As I later explain, there was ultimately no contest about the “association” between the canoe club and Mr Hawkins. It was accepted (and I find) that the canoe club, and canoeing as a school activity, was run by Mr Hawkins: see [66]ff, below.

In 1980, DC was a Year 7 student at the school. Mr Hawkins, who was his teacher, told him about the canoe club. DC subsequently joined it.

Towards the end of Year 7, DC and at least one other student were invited by Mr Hawkins to go “away with him the following weekend to go canoeing on Sydney Harbour and stay in a boat shed”. DC alleges that Mr Hawkins sexually abused him whilst away that weekend.

In about August 1993, DC told Brother Alexis Turton “what had happened with Mr Hawkins” on the trip. Brother Alexis was a Marist Brother who was the Provincial of the Marist Brothers at that time. DC subsequently reported what occurred to police in November 1993.

DC confirmed in his evidence that he provided Brother Alexis with “all details of what had happened. I gave him my belief that [Mr] Hawkins had been doing this to other boys as well, and that I was concerned because he was still teaching at the school…”. DC was not challenged about this evidence.

Brother Alexis, in his evidentiary statement dated 5 September 2024 (under the name Keith Turton), references a file note that he believes he wrote on 30 August 1993. The file note relates to a complaint made by an ex-student against Mr Hawkins that was received by him by telephone on that day. The file note itself was not tendered. I am satisfied that the file note referred to by Brother Alexis records the contact between him and DC, as well as the nature of the complaint against Mr Hawkins.

On 13 September 1993, a Year 12 student spoke with Michael Pate, who was a part-time student support officer at the school. The student reported that he had been sexually abused by Mr Hawkins. The allegation made was that Mr Hawkins “had on two occasions touched him on the genitals when the student was in Year 8”, and that this touching occurred in Mr Hawkins’ car “on the way to or from a canoe club outing”. The student also “claimed that this happened to other boys in the canoe club”.

Following that disclosure, Mr Pate spoke with the then Principal, Brother Green. The matter was subsequently escalated to the “Department of Community Services as it was then known and to the Marist Brothers and to the Catholic Schools Office”. I am satisfied that Mr Pate’s reference to the “Catholic Schools Office” is a reference to the CEO.

On 14 September 1993, Mr Hawkins was interviewed by Brother Green about the allegation. Brother Peter Corr, the then Deputy Principal, also attended. A file note of that interview records that Mr Hawkins “categorically denied” the allegations of sexual misconduct but did not, apparently, contest the “allegations of excessive drinking with students”. Mr Hawkins was directed to “take immediate leave”, collected his belongings, and was escorted from the school grounds.

Shortly after that initial disclosure to Mr Pate, other students came forward and disclosed further allegations of abuse involving Mr Hawkins to him. Mr Pate described those other disclosures as involving:

The allegations relating to Mr Hawkin’s conduct were contained in an annexure to Mr Pate’s statement titled “Allegations of Improper Conduct by Graeme Stuart Hawkins” (‘the Hawkins improper conduct document’). I am satisfied that that document, which was admitted without objection, was prepared by Patricia Crennan from the CEO, most likely following the interview she had with Mr Hawkins on 24 September 1993 (see [58]ff, below).

On 13 September 1993, Ms Crennan, an area administrator with the CEO, was advised about “a complaint that had been made about [Mr] Hawkins”. She described “being brought into the school to deal with” that complaint.

Ms Crennan’s evidence was that she was contacted by Brother Green, relevantly in the following terms:

On 24 September 1993, Ms Crennan and another staff member from the CEO, Kevin Hazel, conducted an interview with Mr Hawkins. A union representative was also present during the interview as an observer.

During the interview, Ms Crennan “put the allegations” to Mr Hawkins. A handwritten summary of the interview was taken by Mr Hazel, and annexed to Ms Crennan’s statement. Ms Crennan’s evidence was that she considered the summary to accurately reflect what occurred and what was said during the interview with Mr Hawkins.

Ms Crennan also annexed the Hawkins improper conduct document to her statement: see [53], above. Her evidence was that she believed she drafted this document, but she accepted that “it could have been drafted by someone else that worked at the [CEO]”. She had no reason to think it was other than accurate. Given this evidence, her position at the time, and her role in interviewing Mr Hawkins to “deal with” the complaints against him, I am satisfied that Ms Crennan was the author of the document.

Mr Hawkins’ employment was terminated on 18 October 1993.

There was some evidence that NSW police were immediately notified of the complaints made against Mr Hawkins. I am satisfied that police were reasonably promptly notified of the allegations by or on behalf of the school, but am unable to make a finding about precisely when that occurred (other than that the allegations were reported to the “Child Mistreatment Unit” on or around 24 September 1993, most likely by the CEO). I am also satisfied that, at about that time, the “school [was] to” alert the Department of Community Services and did so.

On 11 October 1993, Detective Robert Mulherin from the Child Mistreatment Unit (Major Crime Squad, North-West) was made aware of a complaint by Ms Crennan from the “Department of Catholic Education”. Part of that notification included the provision of the document headed “Allegations of Improper Conduct by Graeme Stuart Hawkins” (earlier referred to at [53] as ‘the Hawkins improper conduct document’). Detective Mulherin’s statement dated 20 February 1994 referred to a document with that title and having received that document from Ms Crennan, but the document itself was not annexed to his statement.

Detective Mulherin was shown a copy of the document with that title during his evidence. He was unable to confirm whether it was the document to which reference was made in his police statement. Notwithstanding, I am satisfied that the document that Detective Mulherin refers to is the Hawkins improper conduct document that was also attached to the evidentiary statements of Ms Crennan and Mr Pate.

Investigations undertaken by police determined that there were 14 students, two of whom were former students, who alleged that they had been sexually abused by Mr Hawkins between 1980 and 1993. Based upon the nature of the complaints made, police identified that there were approximately 125 offences allegedly committed by Mr Hawkins against the students.

In early December 1993, police executed a search warrant at Mr Hawkins’ residence. Mr Hawkins was not present at that time. His whereabouts were unknown, but he was thought to be “in country New South Wales”.

Mr Hawkins was located deceased on 15 December 1993, evidently from suicide.

There are several issues concerning “canoeing” that require discussion and about which findings must be made. Those issues are: canoeing as a school sport; the canoe club; the activities of the canoe club; the association between the canoe club and the school; and Mr Hawkins’ involvement with the canoe club.

Resolving these issues somewhat contextualises the second defendant’s acceptance that, if the sexual abuse is found to have occurred, it breached its duty to the second plaintiff. Resolving these issues also informs consideration of the second plaintiff’s case that the second defendant was vicariously liable for the wrongdoing of Mr Hawkins, in addition to being directly liable to him.

A considerable body of evidence was adduced during the trial that was directed to these issues. The evidence was essentially from three sources – former students, including each plaintiff; former “staff” members, to a significantly lesser degree; and (limited) documentation. To the extent that the defendants adduced evidence from former staff members, that evidence by and large did not squarely, or in detail, address the “canoeing” issues.

Ultimately, there was little to no controversy about each of the “canoeing” issues identified. It is therefore convenient to summarise the findings and, thereafter, briefly explain why I have made them.

I am satisfied and find that, in the period from at least 1980 to 1993, canoeing was offered as an organised school sport on Thursday afternoons. Such canoeing took place on the Parramatta River (which was a relatively short distance from the school), using canoes provided by the school.

I am also satisfied and find that Mr Hawkins was the teacher appointed to conduct and supervise canoeing, part of which involved him taking the canoes that were owned by and stored at the school from the school to the Parramatta River, and returning them at the end of the day.

Numerous former students gave evidence about canoeing as a school sport – in particular, that it was offered as a Thursday afternoon sport whilst they were there. None of them were cross-examined to the contrary. I will now refer to some of this evidence.

Gregory Pankhurst was a student at the school between 1981 (Year 7) and 1986 (Year 12). Mr Pankhurst recalled that canoeing “was part of school sports days in some years”. That is, irrespective of whether they were members of the canoe club, students “could choose canoeing as…[a] school sport”. Mr Pankhurst’s oral evidence was to the same effect – namely, that canoeing was offered as a school sport on Thursday afternoons “as an option and it was kind of a recruitment for the [c]anoe [c]lub as well…”. Mr Pankhurst’s evidence was that the only teacher responsible for and involved with Thursday afternoon canoeing was Mr Hawkins.

I was particularly impressed with Mr Pankhurst’s evidence and consider that he was well-placed to give evidence about the detail of canoeing and related topics. This impression partly emerged from the fact that he was a highly enthusiastic and committed canoeist who attained state and national titles whilst at school. He was also a disinterested witness in the sense that he was not subjected to any untoward conduct by Mr Hawkins during his time at the school.

JR was a student at the school between 1985 (Year 7) and 1988 (Year 10). When in Year 8, Mr Hawkins was JR’s mathematics teacher. JR’s evidence was that Mr Hawkins “told [him] that [he] could choose canoeing as a school sports activity”, which he did. He also confirmed that Thursday afternoon canoeing was supervised by Mr Hawkins on the Parramatta River “[w]here the weir is”. He recalled that Mr Hawkins was “in charge of the canoeing on a Thursday afternoon” and that there were no other teachers involved in that sport. JR used canoes “provided by the school. [He] saw those canoes stored on a trailer and on racks on the school grounds, next to the canoe club shed and the cadets shed”.

BW, who was a student at the school between 1990 (Year 7) and 1996 (Year 12), gave evidence that he was:

BW confirmed this evidence during cross-examination.

To the extent that one or other of the former students could not “recall” or “remember” whether canoeing was a Thursday afternoon sport, I do not consider that that detracts in any way from the considerable body of evidence that canoeing was offered as a Thursday sport. It certainly does not amount to positive evidence that canoeing was not offered at that time.

Reference should be made to the evidence from the former “staff” of the school. Their evidence on this issue (indeed, on the canoeing issues generally) was somewhat mixed. Many – perhaps most – of these witnesses made no reference to when canoeing was held (or “canoeing issues” generally) in their evidentiary statements, nor were they asked questions about it. To the extent that one such witness – Simon Breen, who was a teacher at the school from about 1989 until 2019 – doubted whether canoeing was offered as a Thursday afternoon sport, I am satisfied that he is more likely than not mistaken in his “recall”, particularly given the body of evidence to the contrary.

I am satisfied and find that the school had a “canoe club” that existed from at least the early 1980s – most likely from around 1980 – until 1993, when Mr Hawkins’ employment was suspended and then terminated.

Although I am satisfied about the existence of the canoe club, the evidence about the name of the club varied. The evidence disclosed three names: the “Parramatta Marist Canoe Club”, the “Parramatta Marist High School Canoe Club”, and the “Parramatta Marist High Canoe Club”.

The club was described in the title of an article in the 1984 school magazine as the “Parramatta Marist Canoe Club”. Within the body of the article, however, the club itself is referred to as the “Parramatta Marist High Canoe Club”. T-shirts and “canoe club patch[es]” were also worn by school students that described the club as the “Parramatta Marist High School Canoe Club”.

Evidence from former students about the name of the club similarly varied. For example, RB was a student at the school between 1979 (Year 7) and 1984 (Year 12). RB joined the canoe club, which he called the “Parramatta Marist High Canoe Club”. Consistent with that description, RB’s evidence was that club members “wore t-shirts emblazoned with, had stickers stuck to…[their] kayaks containing, and results were published in the press, as either ‘Parramatta Marist High Canoe Club’ or ‘PMHCC’”.

By way of further example, Mr Pankhurst described joining “the school’s canoe club, the Parramatta Marist Canoe Club” in around 1981. When cross-examined, however, Mr Pankhurst’s evidence was that the name of the canoe club was “the Parramatta Marist High Canoe Club”.

Ultimately, no party submitted that the difference in the club’s name was material: there was only one canoe club.

Whilst the canoe club appeared to focus on training for competitive canoeing events (in particular, marathon canoeing events), it also catered for those students who were interested in recreational canoeing.

MC, who was a student at the school between 1980 (Year 7) and 1985 (Year 12), annexed to his statement dated 31 July 2023 an article about the “Parramatta Marist High Canoe Club” contained within the 1980 school magazine. The article described the aims and objectives of the club in these terms:

The article then provided some examples of the successes and victories of the club. The article also contained several photographs, one of which seemingly shows Mr Hawkins operating an outboard motor on a “tinnie”.

The participation of students from the school in such races, and the canoe club generally, were routinely acknowledged during school assemblies. For example, KS was a student at the school between 1983 (Year 7) and 1986 (Year 10). His statement is dated 17 March 2025. He attended a race in 1984 as part of the support crew with Mr Hawkins and another student. KS described the race being discussed at a school assembly, relevantly as follows:

KS was not challenged about any of these matters during cross-examination.

Other students gave evidence to the same effect.

For example, Peter Mahoney was a student at the school between 1982 (Year 7) and 1988 (Year 12). Mr Mahoney’s evidence was that he recalled “the canoe club being mentioned [during assemblies] because of achievements in a race”. When cross-examined about these matters, Mr Mahoney’s evidence was that the person raising this was “mostly…the [P]rincipal”.

That was also the evidence from SA, who was a student at the school between 1988 (Year 7) and 1993 (Year 12). He indicated that the results of canoe club races were “announced during school assemblies” and that the announcement was made by “the Brothers, whoever held the assembly”.

The evidence also addressed other activities that were offered or undertaken by the canoe club, including the following.

First, as earlier noted, canoeing was part of Thursday afternoon school sport.

Secondly, canoeing was an activity during the end of year school “activity week”. This arrangement was confirmed by SA and Mr Mulligan (see, for instance, Mr Mullligan’s evidence that students could choose canoeing as “an end of year at school activity [or] as a day activity”).

Thirdly, training camps were held on weekends and during school holidays. This arrangement was confirmed by Mr Pankhurst.

Fourthly, the club conducted weekend “outings”. Mr Mahoney described that the canoe club “had outing[s] on weekends” and that he “saw students gathering for these trips at the school”. BW also gave evidence that the “school canoe club also held overnight camps, often starting on a Friday afternoon after school”, and that he attended around “a dozen school canoe club camps, most[ly] held at Windsor and Wisemans Ferry” but also, on one occasion, at Bega.

JR described being “invited by [Mr] Hawkins to attend a school canoe club camp on a weekend” and that he “ended up going to a number of such camps, including at Wisemans Ferry and on the Nepean River”.

Finally, RB described the canoe club in his oral evidence as a “[w]eekend/school holiday opportunity”. Some, but not all, former students gave evidence about where these camps were held: a number identified Wisemans Ferry (for example, and in addition to BW and JR, the second plaintiff and the third plaintiff) or on the Nepean River (for example, and in addition to JR, PW). The evidence did not, however, specify whether the locations identified, say, at Wisemans Ferry, were one and the same.

During submissions, the second defendant accepted that the evidence demonstrated that the canoe club was officially associated with the school.

I am satisfied and find that the canoe club was officially associated with, and sanctioned by, the school.

The evidence from the former students consistently made the connection between the canoe club and the school. For example, RB described the “canoe club was just like every other sporting or extracurricular activity at the school, whether football, cricket, or cadets”. He also gave the following evidence about the canoe club and its connection to the school:

When cross-examined in relation to paragraph eight of his evidentiary statement, RB was taken through this paragraph and was essentially invited to confirm its correctness – which he did. I raise this simply to emphasise that the second defendant did not seek to challenge the propositions raised within this paragraph by RB, nor did it adopt that approach when cross-examining any of the other former students who gave evidence to that same effect.

Thus, drawing upon RB’s evidence and, particularly, the evidence from former students, the canoe club’s association with and sanctioning by the school derives from the following matters.

First, the canoe club and its activities were consistently the subject of announcements made to the school, including by the school Principal during assemblies. The first plaintiff recalled two occasions when “all the members of the canoe club, including myself, were asked to stand up while other students remained seated and applauded us”.

By way of further example, Mr Mahoney recalled “the canoe club being mentioned [during assemblies] because of achievements in a race” and that the school had a newspaper that was issued “every two weeks [that] had the canoe club and other sports updates” in it.

Secondly, it should be remembered that the canoe club was interchangeably described as the “Parramatta Marist High Canoe Club”, the “Parramatta Marist Canoe Club”, or the “Parramatta Marist High School Canoe Club”, and was expressly referenced as such in school assemblies (I infer), magazines and literature. The club was the school’s club and was described and regarded as such by the school itself.

Thirdly, those types of magazines and literature, including the 1984 article referred to at [82], above, were described by MC as “typical of occasional articles that the school issued in its newsletters or pamphlets from time to time”. Mr Mahoney gave evidence that the school had a newspaper that was issued “every two weeks [that] had the canoe club and other sports updates”.

Fourthly, the school owned canoes for use by the students. Further, there were various sheds on the school grounds that were used to store the canoes and canoeing related equipment.

On this matter, for example, RB gave evidence about canoes being stored in a shed on the school grounds, that another shed was used to house a boat that Mr Hawkins used “during training, or generally, with the club”, and that part of another shed was used by Mr Hawkins “as the canoe club office”, from which he would “often conduct canoe club business from the shed, during and after school hours”. Attached to RB’s statement is an annotated aerial photograph showing the school layout at the time he attended, including the storage sheds and the canoe club office that he described.

Some of the former students, for instance, KS (a student at the school between 1983 (Year 7) and 1986 (Year 10)) and Martin Reyerink (a student at the school between 1980 (Year 7) and 1983 (Year 10)) described the location of the shed as near the school canteen or tuckshop. Mr Pankhurst described there being a canoe club “shed at the school, next to the school canteen, which was full of camping gear and equipment used in the course of racing and paddling trips”. His evidence was that the club also stored its canoes, trailers and safety boats “on school grounds”.

For completeness, it should also be noted that this evidence was consistent with that given by some former staff members. For example, Mr Gately’s evidence was that there “was a shed on the [s]chool premises where canoes were stored”. Mr Breen similarly recalled “there being a canoe shed” at the school but conceded that he never saw inside of it.

Fifthly, the teacher that ran the canoe club was Mr Hawkins – as I next explain.

The only teacher at the school referred to in evidence as having any association with the canoe club, or canoeing as a Thursday afternoon school sport, was Mr Hawkins.

The consistent theme in the evidence given by the former students (and each plaintiff) was that Mr Hawkins ran and was responsible for canoeing and the canoe club. I am satisfied and find that he did, from at least the early 1980s – most likely from around 1980 – to 1993. I am also satisfied and find that he was the only teacher with any association with, or responsibility for, canoeing or the canoe club.

My reasons for this finding are best illustrated by reference to some of the evidence given by the former students.

Mr Pankhurst described joining the canoe club in around 1981. His evidence was that Mr Hawkins “ran the canoe club”. When cross-examined, Mr Pankhurst agreed with the proposition put to him that Mr Hawkins “was running the club at the time you joined it” and that he was unaware of “any other members of staff at the school” who were part of the operation of the canoe club – albeit that, on “one or two occasions”, one of the Brothers attended and “helped out at a canoe race”. Mr Pankhurst also agreed with the proposition that the only person at the school involved in the running of the canoe club during his time at the school was Mr Hawkins.

Mr Mahoney gave evidence that Mr Hawkins “was the teacher for the school canoe club” and recalled “canoes being kept on the school grounds”, despite never joining the canoe club himself.

BW described Mr Hawkins as “the teacher who ran the school canoe club”.

ML remembered there being a canoe club that was run by Mr Hawkins, but did not give evidence that he ever joined the club.

The evidence from these former students was consistent with the way in which the school recognised Mr Hawkins’ role with the canoe club. For example, in the 1984 school magazine, Mr Hawkins’ role was described as:

There was no evidence explaining how or why Mr Hawkins came to be, in effect, responsible for the Thursday afternoon canoeing and the canoe club. There was some suggestion in the evidence that canoeing emerged as an offshoot from the school cadet unit, but the evidence remained unclear and I am unable to make a finding about this. There was also no evidence about the extent to which there was any oversight of Mr Hawkins’ canoeing activities or his conduct of the canoe club.

After Mr Hawkins’ employment was suspended, I accept and find that the canoe club ceased operating. Mr Pankhurst’s evidence was that “the club folded” after “Mr Hawkins was accused of sexual[ly] abusing children and he committed suicide”. BW similarly gave evidence that the canoe club stopped running when Mr Hawkins left the school in 1993.

The second plaintiff alleges that he was sexually and physically abused by Mr Hawkins. I have already explained why, notwithstanding the effluxion of time, the proceedings brought by the second plaintiff are maintainable so far as they relate to “child abuse”: see [26]ff, above. The corollary to this, however, is “the attendant reality that child sexual abuse claims may be commenced many years after the alleged abuse occurred”: Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407 at [20] (‘Willmot’).

Some introductory observations are in order.

Resolution of the second plaintiff’s claim – particularly, whether the sexual abuse on the canoe camp occurred – is not straightforward. Far from it. I will outline some of the difficulties that are presented.

Sometimes – not always – there are witnesses available to be called to directly corroborate aspects of an account. That is not this case. Three of the four individuals involved in or around (to varying degrees) the events the second plaintiff alleges occurred are dead. This leaves only the second plaintiff’s evidence.

Sometimes – not always – there are also witnesses available to be called to corroborate, less directly, aspects of an account or its sequelae. Here, with the exception of the second plaintiff’s wife (and, even then, only to a limited degree), no such witnesses were called.

Sometimes – not always – there is a disclosure or a report of the abuse to a third party, such as police, a friend, a family member, or a health practitioner consulted for treatment, that may provide some degree of corroboration of the account (the extent to which it does is obviously fact-sensitive). That is also not this case. The first disclosure made by the second plaintiff – to anyone – about the allegations was when the second plaintiff met with his solicitor shortly prior to commencing proceedings, in or around 2023. The second plaintiff has also never – at any time – sought any form of treatment for the alleged psychological or psychiatric injuries that he says has resulted from the abuse.

Given the above matters and what is alleged by the second plaintiff, together with its timing, it is important to emphasise the following five matters about the process required for determining his claim.

First, the process to determine facts ordinarily involves consideration of “contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]. Where a significant period of time has elapsed between the alleged events and the giving of evidence, a court will, if possible, “place primary emphasis on the objective factual surrounding material and the inherent…probabilities, together with the documentation tendered in evidence”: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15 at [15]; (1999) 161 ALR 599.

Given what is alleged to have occurred and when, there is unsurprisingly no documentation that directly bears upon the events that the second plaintiff alleges occurred. In those circumstances, the objective factual surrounding material and the apparent logic, and inherent probabilities, of the events are the prominent considerations derived from these authorities.

Secondly, it is important to identify the standard of proof necessary to prove causes of action that accrued many years ago involving, as they do, conduct giving rise to a breach of the criminal law.

In civil proceedings, “the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities”: s 140(1) of the Evidence Act 1995 (NSW). In applying the civil standard of proof, the Court may take into account matters including those listed in s 140(2), one of which is “the gravity of the matters alleged” (s 140(2)(c)). These provisions are a statutory restatement of the principles in Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362; [1938] HCA 34; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171 (‘Neat Holdings’). In Neat Holdings at 171, it was said that “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”. Those principles apply to the present case – specifically, as it does, involving a serious allegation of non-consensual sexual abuse that occurred over 30 years ago – and I have approached the fact-finding process with these principles clearly in mind.

Thirdly, and partly overlapping with the second matter above, in “cases where there has been a passage of time between the events alleged to give rise to the claims and the commencement of proceedings”, there are “principles and techniques available to trial judges to deal with evidentiary imbalances”: Willmot at [29]-[30]. Those principles and techniques were summarised in Willmot at [30], as follows (internal citations omitted):

Fourthly, not all matters pull in one direction. Thus, the fact that there is delay in making a complaint is not, in and of itself, inconsistent with the credibility or reliability of the second plaintiff and his evidence. In a criminal context, it has been remarked that “…courts now well understand that victims of sexual assault all react differently in terms of when complaint is made, to whom it is made, the detail of the complaint, and how they behave subsequent to the assault…”: Ferguson v R [2024] NSWCCA 81 at [92]; see also s 293A of the Criminal Procedure Act 1986 (NSW). In my view, these remarks apply equally to civil proceedings. Consistent with this, as was observed in Willmot at [21], s 11A of the Limitation Act recognises (that is, “directly addresses”) the fact “that many victims of child sexual abuse do not disclose their abuse until many years later, often when they are well into adulthood and long after the previous limitation periods expired”.

Fifthly, as earlier noted, the onus of proof in respect of the matters alleged rests upon the second plaintiff (s 140(1) of the Evidence Act) as the “adversarial system requires a plaintiff to prove its case”: GLJ at [56].

Towards the end of the trial, the second defendant narrowed the area of contest in the second plaintiff’s claim by making two limited (and contingent) concessions.

The first was that, if it were found that the sexual abuse occurred, the second defendant breached its duty of care. That is, that it was directly liable to the second plaintiff. To be clear, the second defendant, however, disputed that it was vicariously liable for the wrongdoing of Mr Hawkins.

The second was that “causation” was not in issue. That is, the second defendant accepted that, if it were found that the sexual abuse occurred, some loss and damage resulted. That said, the nature and extent of that loss remained significantly in issue.

Given the narrowing of the contest in this way, it is appropriate to move directly to resolving whether the second plaintiff has proven that Mr Hawkins physically and sexually abused him, as he has alleged. Once that broad issue is resolved, it will be necessary to return to, and expand upon, the second defendant’s concessions.

I will start with the second plaintiff’s account.

In 1992, the second plaintiff was in Year 8 at the school. One of his teachers was Mr Hawkins. The evidence did not explicitly address the subject that he taught the second plaintiff. Based upon some events that occurred later in the school year, however, it appears that Mr Hawkins taught the second plaintiff “computer class”.

The second plaintiff described that, during “the first half of the year during class, [Mr Hawkins] handed out a leaflet for the school canoe club and again promoted the club to the class”. His evidence was that the leaflet “identified a school canoe club camp that was to take place at Wisemans Ferry on a given date” and that Mr Hawkins spoke about “the school canoe club and encourag[ed] students to join”.

The second plaintiff described the leaflet as having “some handwriting on it”, a “picture of a canoe”, the “particular destination and a time” for the camp, and a space for “parents’ signatures at the bottom”. Mr Hawkins invited the second plaintiff to take that leaflet to his parents for them to look at and to give him permission to attend the camp. The second plaintiff gave the following evidence about this leaflet:

Having received that leaflet, the second plaintiff and a school friend, Lance Hanna, agreed to go to the camp. The second plaintiff took the leaflet home and “discussed going to the school camp with [his] parents, who permitted [him] to attend”. His evidence was that he returned the form to Mr Hawkins and gave him the money for the camp, which he described as either “ten or twenty bucks”, and that he joined the canoe club when he was in Year 8.

On the day the canoe camp was to commence, the second plaintiff’s father took him and Mr Hanna to Wisemans Ferry. The second plaintiff described this happening “a few weeks or a bit more after the leaflet was handed to [him] in class”. His evidence, at least initially, was also that he attended this canoe camp in around Easter 1992. It was suggested to him during cross-examination that it must have occurred “after August 1992”, to which the second plaintiff responded: “I’m not sure specifically what date it was. I can’t recall that”.

Mr Hawkins was “already there” when they arrived. He gave the boys and the second plaintiff’s father “an induction of the activities planned for the weekend”. The second plaintiff’s evidentiary statement said very little about the location of the canoe camp and its general layout. During oral evidence though, he provided a limited description of the layout and set-up that he observed when he arrived: Mr Hawkins had already pitched his tent; the “toilet facility” was behind them; and there were two canoes on a “tinny”, which was on a trailer and attached to Mr Hawkins’ car.

As it happens, the second plaintiff and Mr Hanna were the only students who attended the camp. There was no discussion about who else was to attend while the second plaintiff’s father was present. According to the second plaintiff, it was not until later that Mr Hawkins was asked who else was attending and he responded: “No, you’re the only two”.

The second plaintiff described the location as “a secluded space with public facilities” and that there were no others “using the area or present near” where they were to camp. The second plaintiff and Mr Hanna each brought their own tent.

The second plaintiff and Mr Hanna went canoeing and had something to eat upon their return to the camp site “around mid-afternoon”. The second plaintiff’s evidence was that Mr Hawkins commenced both smoking and consuming alcohol, and that he offered alcohol and cigarettes to them both. They both accepted them. The second plaintiff’s evidence was that he “probably drank [five] or [six] beers and was very drunk”.

After it became dark, the second plaintiff, Mr Hanna and Mr Hawkins had dinner, which the second plaintiff described as a “casserole…like, a stew sort of dinner that we had over the campfire”.

The second plaintiff then “went for a shower at the public shower block”. In his oral evidence, the second plaintiff described that the reason he went to shower was because he was affected by the alcohol: he “obviously became sick and that’s when [he] ended up in the shower block having to have a shower”. Mr Hanna did not accompany him, as he “was at the campfire still”. The second plaintiff described being sexually abused by Mr Hawkins whilst showering.

The second plaintiff’s evidence about what occurred was contained in his evidentiary statement, as follows:

The second plaintiff said that Mr Hanna was “[s]till at the campfire smoking” when he returned from the shower after the alleged abuse. He did not say anything to Mr Hanna “about where [he had] been or what had happened”.

The second plaintiff’s evidence was that he told Mr Hanna that he “wanted to go home” the next morning and that Mr Hanna “said the same thing”. During cross-examination, however, he remarked that Mr Hanna “just wanted to keep drinking to be honest” and “wanted to keep drinking on the Sunday”.

Given what the second plaintiff has said, the alleged sexual abuse can only have occurred on a Saturday night. The second plaintiff’s father collected him and Mr Hanna “sometime in the mid-afternoon on Sunday. The second plaintiff “did not tell…[his] father or anyone about what happened to [him]…by [Mr] Hawkins at the canoe camp”.

The second plaintiff also did not report what occurred at the time. His evidence was that he “didn’t say anything to anyone. The first people I told…[was] like Sharon in the team, and then I told my wife. That’s all I’ve told”. The reference to “Sharon” is a reference to his solicitor.

The second plaintiff submitted that the Court should accept his evidence and find that he was sexually abused by Mr Hawkins whilst on a canoe camp at Wisemans Ferry in or around Easter 1992. The second plaintiff’s essential argument was that aspects of his account were corroborated, that tendency reasoning lent considerable support to his evidence about the abuse and the manner in which it occurred, and that his overall account itself was neither inherently implausible nor, in any material respect, contradictory. The second plaintiff thus submitted that the Court should be satisfied, on balance, that the abuse described by him in his evidence occurred, and find that it did.

The second defendant submitted to the contrary, and essentially advanced two arguments.

The first argument was that the Court should be unpersuaded that the second plaintiff attended a canoe camp with Mr Hawkins “sometime during 1992” as he alleged. The second defendant argued that doubt attaches to his account given his uncertainty as to the exact timing of the camp and, by extension, the related sexual assault.

The second argument was that the Court should be unpersuaded that the second plaintiff was sexually abused as alleged. The second defendant argued that the second plaintiff’s account of the sexual abuse was “inconsistent with other instances of abuse, said to have been suffered by other students…whilst on canoe or other Hawkins directed camps”.

The second defendant’s overarching argument was that the second plaintiff was not “a reliable witness” and that his account should not be accepted “absent independent and corroborative evidence”. The second defendant identified a host of instances that were argued to justify the finding that it sought. Given the number of matters raised, it is necessary to defer consideration of some of them for organisational purposes when dealing with the second plaintiff’s account. I have nevertheless had regard to such matters here. Further, given what were argued to be “evidentiary imbalances”, the second defendant called in aid some of the “techniques and principles” that were relevant to assessing whether the second plaintiff had proven his case (see [132]-[136], above).

The second plaintiff’s account essentially contains, and can be broken down into, three parts: (i) the events leading to the camp; (ii) the camp itself; and (iii) the sexual abuse.

It is convenient to approach and assess the second plaintiff’s account in this way because, putting to one side the contention that the second plaintiff and his evidence is unreliable, the second defendant’s arguments focused upon confined aspects of that account: the second part (viz., the timing of the camp) and the third part (viz., whether the second plaintiff was sexually abused, given the abuse as alleged was argued to be at odds with the type of sexual offending perpetrated by Mr Hawkins upon other school students whilst attending canoe club activities).

Consistent with this approach, and as emphasised during submissions by Mr Sheldon SC, the cross-examination of the second plaintiff only embarked upon a targeted challenge to his account.

The first part of the second plaintiff’s account relates to the events leading to the camp at Wisemans Ferry. The second plaintiff’s evidence about the events leading to the camp is set out earlier: see [145]-[147], above.

The second plaintiff’s evidence did not, at least explicitly, identify the length of time involved in the canoe camp, but it is clear from his overall account that it took place over the course of a weekend.

There is little doubt, as I have found, that Mr Hawkins conducted “camps”, including canoe camps and weekend “outings”, whilst he was a teacher at the school (see [98], above). The second defendant did not submit or suggest to the contrary. The evidence from former students was that the canoe club, through Mr Hawkins, routinely conducted training camps and canoe club outings on weekends during their time at the school. That evidence, which I accept, included evidence from Mr Pankhurst that canoe club training camps were “run on weekends”; from MC that canoe club activities were held “on weekends and overnight”; from Mr Mahoney that the canoe club “had outing[s] on weekends” and that he observed “students gathering for these trips at the school”; and from BW that the “school canoe club…held overnight camps, often starting on a Friday afternoon after school” and that he attended around “a dozen school canoe club camps, most[ly] held at Windsor and Wisemans Ferry” (albeit that this ceased in around 1993 when Mr Hawkins left the school).

There is other evidence that I consider firmly supports this finding that is contained within the Hawkins improper conduct document. As outlined previously, that document records the complaints made by students following their initial disclosure to Mr Pate (see [52]-[53], above). It also mentions the following about “canoe trips” and “camping trips” conducted by Mr Hawkins:

The evidence that supports the finding I have made about Mr Hawkins organising and conducting canoe club camps also supports the further finding which I make: namely, that they were usually held at Windsor or Wisemans Ferry and, on some occasions, on the South Coast of NSW.

The second plaintiff’s case (and his evidence) was that the canoe camp he attended was merely the occurrence of one such weekend outing to Wisemans Ferry that was organised and conducted by Mr Hawkins during his time at the school. He argued, as has been noted, that his attendance at this camp was “corroborated”. It is necessary to explain what this means in this situation, and whether, as argued, there was indeed corroboration.

Here, as mentioned in [148]-[153], above, three persons were involved in the second plaintiff’s account: Mr Hanna, Mr Hawkins, and the second plaintiff’s father (albeit their “involvement” varied). Each of them, I am satisfied and find, are deceased: Mr Hawkins died in December 1993 (see [64]-[65], above); Mr Hanna died at an unknown time (it was suggested to the second plaintiff during cross-examination that Mr Hanna had passed away “about 10 years ago or so”, but he did not know); and the second plaintiff’s father died “about 12 years ago”. Thus, direct corroboration of any aspect of the three parts of the second plaintiff’s account is not available. No party suggested that there were any documents available to corroborate any part of the second plaintiff’s overall account, as I have earlier noted: see [133], above.

The second plaintiff’s submissions did not expressly identify in what ways the second plaintiff’s account was corroborated. Implicitly though, the submission invites the drawing of a further inference from the findings that I have made in [170] and [172], above. The inference sought was essentially to the effect that, based upon the earlier occurrences and the location of those canoe club camps and outings, it should be inferred that Mr Hawkins organised and conducted such a camp, as the second plaintiff indicated. Put another way, given Mr Hawkins “held” many weekend outings during the course of a given year or years (under the auspices of the canoe club), it should be inferred that he organised one on the occasion that the second plaintiff gave evidence about.

The second defendant’s submissions did not address this aspect of the second plaintiff’s case – possibly because the occurrence of the canoe club camps and weekend outings and their frequency was considered beyond controversy, which I consider it to be.

In my view, the evidence, which I have accepted, is available to establish that Mr Hawkins organised and conducted such camps as a matter of practice. The operative principle, which relates to usual or general practice, was described in Connor v Blacktown District Hospital [1971] 1 NSWLR 713, 721:

It is, of course, important to emphasise a number of matters deriving from this passage.

First, evidence of a practice informs and is “relevant as bearing on the probability of a particular fact in issue”: Phelan v Melbourne Health [2019] VSCA 205 at [83]; SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132; (2017) 345 ALR 633 at [150]. Here, the “particular fact” is Mr Hawkins holding a canoe club camp at Wisemans Ferry.

Secondly, such evidence may be given by those who observed the act or thing done. That is the case here: it is the evidence of the former students who attended those camps that provides the basis for the inference to be drawn.

Thirdly, the weight to be attached to such evidence is necessarily case and fact specific. The present evidence does not require consideration about, or discussion of, the possible limitations of evidence of this kind in instances relating to whether certain words were used: see Morris v Hanley (2003) 173 FLR 83; [2003] NSWSC 42 at [70].

Fourthly, when assessing evidence of this kind, it is recognised that a court must consider whether the particular instance before it “may stand apart from the ordinary”: Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [54] (‘Drivas’), citing Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5 at [62].

I am satisfied and find that it was the practice of Mr Hawkins to organise and conduct canoe club camps and outings on weekends at Wisemans Ferry and that they were regular, frequent and approximately every fortnight, including during 1992. I make that finding for the following reasons, and their combination.

First, I consider that the evidence was consistent and reasonably uniform in relation to the existence of weekend camps or outings, and the fact that those camps or outings were commonly held at Wisemans Ferry. I am, of course, mindful that the former students were giving evidence about events that occurred many years ago. The relative consistency and uniformity in their evidence nonetheless persuades me that the effluxion of time has not diminished the accuracy of their evidence. That is particularly apparent, I consider, given its consistency with the evidence in the Hawkins improper conduct document. Additionally, I have also taken into account that there was no challenge made to any part of their evidence when cross-examined, nor was any submission made to that effect.

Secondly, again as I have pointed out above, the evidence from the former students about canoe club camps or training (or otherwise) on weekends established that they occurred for at least 12 or so years (between at least the early 1980s – most likely from around 1980 until 1993). They were described in the Hawkins improper conduct document as happening, for example, “as frequently as every fortnight” and on a “regular” or “frequent” basis.

Thirdly, I have taken into account the fact that the second defendant did not seek to challenge the drawing of that inference or advance any submission as to why it ought not be drawn.

Fourthly, and following on from the last matter, there are no matters raised that suggest that the present case should “stand apart from the ordinary”: Drivas at [54].

Given what I have set out above, and the findings that I have made, the next issue is whether it should be inferred and found that Mr Hawkins organised and conducted a canoe club camp at Wisemans Ferry, in line with the second plaintiff’s evidence that he did, and that he attended that camp. I draw that inference and make such findings, for the following reasons.

First, this part of the second plaintiff’s account is entirely consistent with the practice that I have found Mr Hawkins had in connection with canoe club camps or weekend outings at Wisemans Ferry. Secondly, the evidence did not identify any other explanation for how the second plaintiff was placed to give this account, other than through personal experience. For example, it was not suggested in cross-examination or during submissions to be the product of information acquired other than in this way. Thirdly, I consider that my later acceptance of matters relating to the second part of the second plaintiff’s account also assists in persuading me to draw the inference and make the findings that I have.

In drawing the inference and making the findings set out in [188], above, I have not overlooked the second defendant’s submission that the second plaintiff’s evidence was unreliable in connection with when the camp (and, thus, the related abuse) is said to have occurred. That submission overlaps, to some degree, with that finding. It is convenient to now address the submission in the context of that finding, and more generally.

In my view, the submission does not provide any, or indeed any partial, answer to the finding about the practice of Mr Hawkins conducting these camps, nor their frequency. That is simply because the second defendant’s submission was confined to an argument about the unreliability of the second plaintiff’s evidence about precisely when the canoe camp occurred during 1992.

In any event, and dealing with it independently of that factual finding, the submission is unpersuasive, and I do not accept it, for the following reasons.

It may be accepted that the second plaintiff’s evidence about precisely when the camp occurred was, to a degree, uncertain. To be clear, however, the second plaintiff’s account (and the suggested uncertainties with it) were confined to a period of months during 1992 and not the year itself: see [148], above. That is, the second plaintiff’s account was and remained that the camp and the sexual abuse occurred in 1992, but there were variations in his evidence relating to which month of that year. I regard those variations as largely inconsequential, particularly given there was no particular integer within the second plaintiff’s overall account that depended upon an accurate and fixed date about when the camp and related abuse occurred.

Partly overlapping with this, the second plaintiff’s evidence is to be assessed taking into account both his age (he was either 13 or 14 at the time of these events) and the effluxion of time since the events are alleged to have occurred: BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101 at [46]. Having done so, I regard the variation as to the precise month of the camp to be not unexpected, and very much in the territory of “tangential detail”: Reed v R [2006] NSWCCA 314 at [64] (‘Reed’). In my view, although those remarks of Spigelman CJ in Reed were made in criminal proceedings, their overall thrust applies with equal force here, and warrants repeating:

The second defendant also, perhaps somewhat tentatively, suggested during submissions that resolving this issue of fact should take into account the failure of the second plaintiff to call evidence from his mother and, possibly, also his older brother. The submission appeared to be that one or both of them may have been placed to give some evidence about the second plaintiff “going off to camp”. This argument invites an adverse inference to be drawn – essentially, to the effect that their evidence would not have assisted the second plaintiff – by reason of the failure of the second plaintiff to call evidence from his mother and older brother, or explain their absence: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.

In my view, there is no occasion to draw an inference of the kind sought by the second defendant because a precondition to the engagement of this principle has not been established – namely, that the witness “would elucidate a particular matter” or be “able to put a true complexion on the facts”: Payne v Parker [1976] 1 NSWLR 191, 201E and 202C (‘Payne’). Thus, unless the Court “is entitled to conclude that [the witness] probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call” the witness: Payne at 202D; JD Heydon, Cross on Evidence (14th ed, 2024, LexisNexis Butterworths) at [1215]. Here, I am unpersuaded that the second plaintiff’s mother would have been placed to give any evidence about the second plaintiff “going off to camp”. That is essentially because the second defendant’s mother – noting that the second plaintiff accepted that he had never disclosed the allegations to his mother – would now be invited to attempt to recall a somewhat unremarkable event from over 30 years ago. In my view, it would be an exercise in speculation to conclude that, in 2025, she “probably would have knowledge” of the second plaintiff “going off to camp” sometime in 1992.

The position is appreciably weaker, and my finding remains the same, in connection with the second plaintiff’s brother. There is no sound basis to find that he would have been placed to give any evidence at all about the second plaintiff “going off to camp”. To find otherwise would also be, in my view, speculative.

The position is not otherwise, in my view, in relation to what was contained in the clinical records of Dr Poon (the second plaintiff’s treating endocrinologist following his initial diagnosis that he suffered from diabetes in or around 1988). Based upon those records, the second defendant submitted that there was clear evidence of the second plaintiff’s unreliability in connection with the date of the camp. To give the second defendant’s submissions proper context, I will briefly explain some background matters.

As earlier noted, the second plaintiff’s initial account was that the camp occurred in around Easter 1992. Part of his evidence was that he was markedly impacted following the sexual abuse and, inter alia, ceased engagement in social activities such as school sport. The second plaintiff was cross-examined about the entry in Dr Poon’s clinical records, dated 27 August 1992, which recorded that the second plaintiff had occasional hypoglycaemic events “at tennis – plays for three hours…”. When confronted with this entry, and asked to assume its accuracy, the second plaintiff gave the following evidence:

This cross-examination culminated in the following:

As is apparent, the substance of this submission – the second plaintiff’s uncertainty about precisely when the camp occurred – has been earlier dealt with: see [193]ff, above.

For completeness, reference should be made to the second plaintiff’s evidence about the “leaflet”: see [145]-[147], above. The second defendant did not address its materiality (or lack thereof), whereas the second plaintiff argued that the provision of this leaflet by Mr Hawkins was “consistent with the other evidence…establishing the distribution of permission slips” and that there was no reason to doubt the accuracy of that evidence.

I am disinclined to rely upon that evidence, for the following reasons.

First, unlike other instances where it was open to find that Mr Hawkins had a practice to do certain things and that the second plaintiff’s evidence was consistent with that practice, I am unpersuaded about Mr Hawkins having a particular practice about handing out permission slips (or, as the second plaintiff described them, “leaflet[s]”). Contrary to what the second plaintiff argued, the evidence on this topic was somewhat mixed.

Some witnesses gave no evidence about permission slips in their evidentiary statements (and were not asked any questions about them when giving evidence). Some gave evidence about permission slips in fairly general terms, and did not address whether handing them out was a common practice or not. There was some other evidence that tended to suggest that the provision of permission slips, and the requirement to submit them in return, was somewhat haphazard. For example, as Mr Pankhurst described in his evidence, the requirement for school students to submit a permission slip for them to attend a canoe club camp was “pretty unreliably done” and “not everyone filled them out and they weren’t necessarily given out on every camp”.

Secondly, I have some doubts about, and remain unpersuaded by, the second plaintiff’s evidence relating to the “leaflet”, and his apparently strong recollection about it. His evidence, as earlier noted (see [145]-[146], above), was that he has spent his “entire life since [Y]ear 8 thinking about what happened on that camp…I still recall that leaflet”. The reservations and doubts I have about that evidence derives from the well-recognised observations about human memory referred to in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [15]-[17], which provided:

The second part of the second plaintiff’s account relates to the events at the camp.

The second plaintiff’s evidence described his arrival at the camp, its general layout, and some of the activities and events that occurred during the course of the first day: see [152]-[153], above. By way of short summary, the second plaintiff observed that there were two canoes on a trailer; that he and Mr Hanna were the only students who attended; that Mr Hawkins did not participate in any of the canoeing undertaken by the second plaintiff and Mr Hanna, nor did he supervise them albeit that, at some point, he “appeared” in a “tinny”; and that, in the mid-afternoon, Mr Hawkins began smoking “and started drinking”, and then offered alcohol and cigarettes to Mr Hanna and the second plaintiff.

The cross-examination of the second plaintiff, as Mr Sheldon SC emphasised during submissions, did not specifically challenge any aspect of this part of his account; indeed, by way of example, the fact that the second plaintiff and Mr Hanna were offered alcohol (beer) and cigarettes by Mr Hawkins was sought to be confirmed by the cross-examination – which it was.

Consistent with this, the second defendant’s submissions did not address this aspect of the second plaintiff’s evidence or his case – possibly because the overall account that the second plaintiff gave about the activities and what Mr Hawkins was alleged to have done were largely beyond controversy, which I consider them to be.

Given earlier findings made, I consider some matters within this part of the second plaintiff’s account to be inherently probable, and to accord with the apparent logic of events, given it was a canoe club camp.

One such matter is the fact that Mr Hawkins brought canoes from school to the camp for use, which I find he did. Another matter is the fact that Mr Hawkins brought a “tinny” to the camp, which I also find he did. As I have already explained, the school had a boat so-described that was stored in or near a shed on the school grounds. The evidence from RB, which I accept, was that a shed was used to house “the tinny (dinghy with outboard engine) or tinnies…that [Mr] Hawkins used to use during training, or generally, with the club”. The fact that this was a canoe club camp renders it likely that Mr Hawkins brought canoes and a “tinny” to the camp, as the second plaintiff said in his evidence.

The provision of cigarettes and alcohol by Mr Hawkins to the second plaintiff and Mr Hanna requires separate consideration.

The second plaintiff submitted that the provision of alcohol and cigarettes was evidence of a “pattern of behaviour” and that it should be accepted as being not improbable.

The “pattern of behaviour” was not sought to be proven by tendency evidence but, in my view, can be understood to mean the usual practice of Mr Hawkins – that is, it was the usual practice of Mr Hawkins at camps and on weekend outings of the canoe club to smoke and drink alcohol himself and to supply alcohol and cigarettes to the school students who attended. In respect of this practice, it is sufficient to refer to the evidence, essentially in two groups: first, the observations and evidence from former students and, secondly, evidence recorded in the Hawkins improper conduct document.

There is little doubt, and I find, that Mr Hawkins smoked and consumed alcohol whilst on canoe club camps (including weekend outings) but also provided cigarettes and alcohol to the school students who attended. The evidence from former students, which I accept, established these matters. It is sufficient, given that I consider these matters to be beyond any controversy, to refer to some examples only.

BW attended “around a dozen school canoe club camps” and gave the following evidence when cross-examined:

JR gave evidence that Mr Hawkins consumed alcohol and smoked and that he “was typically given alcohol and cigarettes” by Mr Hawkins when he attended the school canoe club camps. He was essentially invited to confirm the evidence that he gave in chief on these topics during cross-examination.

In relation to the Hawkins improper conduct document, the following is relevantly recorded about the supply of alcohol and cigarettes by Mr Hawkins to the school students who attended the canoe club camps or outings:

Consistent with this, a handwritten note dated 14 September 1993 records that, when Brother Green raised that an allegation “of excessive drinking with students had been made [Mr Hawkins] replied he could understand these”. This evidence – which was admitted without objection or limitation sought as to its use (and which was, in fact, tendered by the second defendant) – independently confirms what I have earlier found.

I am also, based upon the above evidence, satisfied and find that Mr Hawkins had a practice of supplying alcohol and cigarettes to school students who attended the canoe club camps, including the weekend outings that he organised and conducted over the years, including in 1992. I make that finding for the following reasons, and their combination.

First, the evidence from the former students, to which reference has been made, as well as the references in the Hawkins improper conduct document, satisfies me that Mr Hawkins had a consistent practice of consuming alcohol and cigarettes himself, and of supplying them to school students who attended the canoe camps. This evidence was not challenged; indeed, much of this evidence was specifically elicited by the second defendant during cross-examination.

Secondly, the evidence also establishes that the supply of alcohol and cigarettes by Mr Hawkins to the school students who attended the canoe club camps or weekend outings conducted by him occurred in the period that spanned the early 1980s – most likely from around 1980 – until 1993.

Thirdly, I have taken into account the fact that the second defendant did not argue against the making of that finding.

Fourthly, no matters were raised, or otherwise arise, in my view, which suggest that the present case should “stand apart from the ordinary”: Drivas at [54].

Given what I have set out above, and the findings that I have made, the next issue is whether it should be inferred and found that Mr Hawkins supplied alcohol and cigarettes to the second plaintiff when at the camp that I have found Mr Hawkins organised and conducted. That is an inference that I draw and a finding that I make for the following reasons.

First, this aspect of the second plaintiff’s account is entirely consistent with the practice that I have found Mr Hawkins had in connection with canoe club camps, or weekend outings, at Wisemans Ferry – namely, to supply alcohol and cigarettes to school students who attended. Secondly, the evidence did not identify any other explanation for how the second plaintiff was placed to give this account, except through personal experience. For example, it was not suggested to be the product of information acquired other than in this way. Nor, it should be added, was it suggested to the second plaintiff in cross-examination or during submissions. Thirdly, I have had regard to the fact that other aspects of this part of the second plaintiff’s account – viz., what I have described as the “canoe camp” – accord with the apparent logic of events and the overall probabilities: see [211]-[212], above.

For these reasons, I accept the second plaintiff’s evidence relating to this part of his account. I have also taken into account, by my acceptance of the second plaintiff’s evidence in this way, the fact that I have accepted his evidence in relation to the first part of his account.

The third part of the second plaintiff’s account relates to the sexual abuse itself.

The second plaintiff’s evidence about the abuse he said was perpetrated upon him by Mr Hawkins, is set out earlier: see [154]ff, above.

The parties’ submissions were fairly confined in connection with this specific issue, and the second plaintiff’s tendency notice dated 11 June 2025 (‘the tendency notice’) was itself not directly addressed.

The second plaintiff’s essential submissions were that the “pattern of behaviour” of Mr Hawkins was fairly typical and also included him undertaking what was described as “his signature move by applying pressure” to the second plaintiff’s neck”, that the “sequence of events bears similarities with other assaults which occurred in the showers”, and that there was “nothing unlikely about it”.

The second plaintiff also called in aid the tendencies of Mr Hawkins to support the probability of the abuse occurring.

The second defendant submitted to the contrary, advancing two submissions – a general and a specific one. The general submission was that the argued unreliability of the second plaintiff and his evidence was relevant to whether the Court should be satisfied that the sexual abuse occurred (the “unreliability” arguments are dealt with separately later: see [249]ff, below). The specific submission was that determining whether the alleged sexual abuse occurred “cannot be resolved…by simply relying on the tendency evidence admitted”: the argument being that, for several reasons, the alleged sexual abuse described by the second plaintiff was dissimilar to, and inconsistent with, the other sexual abuse perpetrated by Mr Hawkins.

What follows deals with the second defendant’s specific submission, and the reasons underpinning it.

The second defendant first argued that, given the nature of the sexual abuse that allegedly occurred here – involving anal rape – is “raised by only two other witnesses, [the third plaintiff] and [JR]”, the evidence is too confined to be probative and, in any event, there are significant dissimilarities between the second plaintiff’s account and JR’s account. Further, in relation to the account given by the third plaintiff, the second defendant submitted that his account is “affected by its own range of inconsistencies” (developed more fully in the reasons dealing with the third plaintiff’s claim), thereby negating the usefulness of his evidence in the present context.

As to the second defendant’s submissions relating to the evidence of the third plaintiff, I agree with them. At a minimum, his evidence is, as the second defendant submitted, “affected by its own range of inconsistencies”. Additionally, there are other problems with his evidence (that are developed more fully in the reasons dealing with the third plaintiff’s claim) and I am not prepared to act upon it. Accordingly, I propose to ignore his evidence when addressing this issue.

In relation to that part of the second defendant’s submission directed to the dissimilarities between the sexual abuse perpetrated upon other school students when compared to that which the second plaintiff alleges occurred, there are two steps in the argument. The first is that the “serious nature of the alleged sexual abuse, that of anal rape, is raised by only” JR (putting to one side the third plaintiff). The second is that there are “critical differences” between what occurred to JR and what the second plaintiff alleges occurred to him.

This part of the second defendant’s submission appeared to have as its focus the last tendency contained within the tendency notice (pars 4(a)-(d)). No submissions were directed to the first three of the tendencies – namely, Mr Hawkins’ tendencies to:

I am satisfied and find that Mr Hawkins had these tendencies and, as I have noted above, the second defendant did not submit or suggest to the contrary. They are amply borne out by the evidence of the numerous witnesses who gave evidence that they were sexually abused by Mr Hawkins whilst on canoe club camps or outings, and also by the content of the Hawkins improper conduct document.

The principal arguments of the parties appeared to have as their focus the tendencies alleged in par 4 of the tendency notice. That paragraph identified that Mr Hawkins’ tendencies were to:

The arguments of the parties tended to be somewhat removed from the form of this paragraph of the tendency notice, which involved numerous cumulative propositions. The second defendant’s arguments instead focused upon the dissimilarity between the kind of sexual abuse perpetrated upon JR and the sexual abuse allegedly perpetrated upon the second plaintiff. The second plaintiff’s argument, by way of response, emphasised the variety of contexts in which Mr Hawkins allegedly committed his assaults, as well as their different nature. The explanation for these arguments may well be that the parties understand the tendency notice to be read disjunctively.

Approaching the matter on the basis that the tendency sought to be proven involves sub-paragraphs (a)-(d), and is to be read conjunctively, I am unpersuaded that this has been demonstrated, given what was argued to be supportive of the existence of that tendency.

To the extent that the tendency notice is to be read disjunctively (the approach I have adopted, given the submissions and the approach of the parties), then I am satisfied and find that Mr Hawkins had the tendencies in sub-paragraphs (a) and (c). The second defendant did not submit or suggest to the contrary, and I consider that these matters were amply borne out by the evidence. I will provide two illustrations: first, the first plaintiff’s evidence; and, secondly, the evidence from BW. None of this evidence was challenged. It relates directly to the period between 1990 and 1993, whilst each of these two were on canoe club camps with Mr Hawkins.

Separately, the second defendant argued that “the lack of grooming prior to the alleged abuse is noteworthy”. The argument appears to be that Mr Hawkins had a tendency to engage in grooming prior to perpetrating sexual abuse upon those he had groomed. I do not accept this argument. The second defendant did not serve a tendency notice, nor seek leave to adduce tendency evidence directed to establishing that matter. In any event, and separately, the finding sought by the second defendant is not one that I am prepared to make, in part because, it should be noted, the second defendant did not identify any evidence to support the finding that it sought.

The second defendant also argued that, as Mr Hawkins “effectively went straight to the most serious form of sexual abuse, that of anal rape, and on the remaining tendency evidence, never repeated that same pattern to another student again”, this was “striking and completely at odds with the other tendency evidence”. I do not accept this argument. That is because, contrary to what the second defendant submitted, I have accepted that Mr Hawkins had a number of the tendencies alleged by the second plaintiff. Further, to the extent that the second defendant seeks to engage in tendency reasoning to negate the probability of the second plaintiff’s account – viz., because Mr Hawkins engaged in his predatory sexual abuse in a “particular way”, the fact that the second plaintiff’s account did not conform to this tends to prove it did not occur – no tendency notice was served, nor was the precise tendency identified.

In my view, the most significant matters that assist in resolving this issue are the following. First, I have accepted the first and second parts of the second plaintiff’s account, for the reasons earlier given. The cumulative weight of my acceptance of his evidence – including, in key respects, its inherent probability and its consistency with the “apparent logic of events” – is, I consider, contextually and forensically important. Secondly, the tendencies that I am satisfied Mr Hawkins had (the first three tendencies contained in the tendency notice) lend some support to the second plaintiff’s evidence that he was sexually abused by Mr Hawkins. I am, for these reasons, persuaded that the sexual abuse occurred, as the second plaintiff alleged.

In making that finding, I have been conscious of, and applied, the relevant legal principles that guide the process for determining his claim: see [132]-[138], above. Further, I have had regard to the various “unreliability” arguments advanced by the second defendant, and my findings in connection with them: as I earlier explained, essentially for organisational reasons, it was necessary to separate the second defendant’s arguments. Thus, although some of them are dealt with later in these reasons, they have been considered by me in making the findings that relate to the three parts of the second plaintiff’s account.

I have earlier noted parts of the second defendant’s “unreliability” arguments. I now address the balance of them.

The second defendant observed that the second plaintiff was, at the time of the alleged sexual abuse, “pretty drunk” and “pretty inebriated”. The second defendant also relied upon the following evidence that was elicited during the cross-examination of the second plaintiff:

The second defendant’s submission was that, at this time, the second plaintiff was 13 or 14 years old and that, despite this being “his first experience of alcohol, and despite not enjoying the taste, he managed to drink [five] or [six] beers in a short period of time”. The submission appears to be that, given his inexperience with alcohol, lack of enjoyment of the taste of beer, and the quantity consumed, this was an implausible account.

I do not accept the second defendant’s submission, for the following reasons.

First, there was no challenge – at least any clear challenge – to this evidence during the second plaintiff’s cross-examination, with the consequence that I am unable to assess what response the second plaintiff may have had to such a suggestion: it may have been firmly rebuffed, and an explanation provided for why it was.

Secondly, the premise of the submission appears to be that children of like age exercise moderation and restraint when consuming alcohol for the first time; or, perhaps, do not over-consume alcohol for the first time. I tend to doubt the correctness of such premise. That I do so may reinforce the importance of, as well as the need for, cross-examination of the second plaintiff.

Thirdly, to the extent that the submission perhaps implies that the second plaintiff had over-consumed (such that his recollection of the events that subsequently happened (relevantly here, the sexual abuse)) were impacted, I do not accept such an argument: the second plaintiff was not cross-examined to the effect that the consumption of alcohol had that – or indeed any – material impact upon his recollection or evidence, nor was there any expert evidence to establish that the consumption of that quantity of alcohol over a particular period of time necessarily would have that result. To illustrate these matters I note that, in the course of the second plaintiff’s cross-examination about his consumption of alcohol, the second plaintiff was asked about what was provided for dinner and gave evidence that it was “like, a casserole, so it had meat, potatoes. It was more, like, a stew sort of dinner that we had over the campfire”: the short point being that the second plaintiff’s evidence, including the manner in which he gave it, did not necessarily convey that the alcohol consumption impacted his recollection or evidence, and thus permit an inference being drawn to that effect absent cross-examination.

The second defendant also argued that the second plaintiff’s evidence about receiving an internal suspension also demonstrated unreliability in him and his evidence. An explanation of my assessment of that matter is necessary although, given I consider it to be an impossibly small issue, that explanation will be as brief as possible.

The second plaintiff’s evidence was that he was subject to an internal suspension essentially because he sought the permission of a substitute teacher – named either Mr Boyle or Mr Doyle – to go home when he was instead required to stay back to clean the classroom. The second plaintiff’s evidence was that he was placed in a room – which he described as like a “cupboard” across from the form master’s office – “for a whole week”. The form master at that time was Mr Breen.

When cross-examined, it was suggested to the second plaintiff that “it would be very unlikely…[according to Mr Breen’s] recollection, that someone would spend the whole week in the room”. The second plaintiff nonetheless maintained that he was put there “from Monday to Friday, which was the suspension period”.

The second defendant’s submission relied upon Mr Breen’s evidence to challenge – or at least dilute – that given by the second plaintiff, particularly in relation to the length of the suspension. When it was put to Mr Breen that the second plaintiff thought his suspension lasted for five days, Mr Breen responded: “I find that – I have no recollection of the incident, but I find that hard to believe. In my case, I would say three would be a maximum”.

In my view, the evidence from Mr Breen, even assuming its acceptance by me on this issue, is not necessarily inconsistent with the second plaintiff’s account. Although Mr Breen suggested that he found it “hard to believe” that a student in Year 9 would receive a five-day internal suspension, he did not altogether discount the possibility of that occurring. Additionally, he was not asked to explain why only three days was the usual maximum.

For those reasons, I am unprepared to accept, as the second defendant argued, that there is an inconsistency between the evidence from Mr Breen and the second plaintiff in connection with the internal suspension. Regardless, I consider the length of the suspension to be a minor and inconsequential matter. If anything can be drawn from this small “issue” it is, as Mr Sheldon SC argued, that there are aspects of it that tend to support the second plaintiff’s evidence on this topic (and its reliability more generally): he accurately described the internal suspension process, and where he was required to serve it.

The second defendant then argued that, because of what were contended to be these “various inconsistencies”, it was “telling to note that the psychiatrist experts had to adopt a ‘principle of charity’ in order to assume [the second plaintiff’s] provided history of the abuse was actually reliable”. The second defendant also submitted that the Court “is under no such obligation to do the same” – a submission that may readily be accepted.

The reference to a principle of charity is found in the joint report prepared by Associate Professor Michael Robertson (the plaintiff’s qualified psychiatrist) and Dr Alan Jager (the second defendant’s qualified psychiatrist) dated 29 April 2025, and is in the following terms:

I do not accept that the psychiatric experts “had to adopt” a “principle of charity”, as the second defendant argued.

It may be accepted that Dr Jager, in particular, held some reservations about aspects of the second plaintiff’s account, including by reason of the lack of records available to him to verify the history provided by the second plaintiff. So much is apparent from the content of his report dated 22 November 2023. For example, Dr Jager noted that, because “no medical records were provided” to place the second plaintiff’s alleged alcohol and polysubstance abuse “in context”, much “of the history, therefore, is unverified”. By way of further example, in relation to the second plaintiff’s report that his functioning at school declined, Dr Jager observed that there were “no school reports” provided and considered, in those circumstances, that “little weight should be accorded” to the second plaintiff’s account of his behavioural disturbances following the alleged sexual abuse.

But these examples are, I consider, somewhat different to what the second defendant submitted – namely, that the psychiatric experts found inconsistencies such that they were driven to approach an acceptance of the second plaintiff’s account only if his account was accepted. I nevertheless accept, as the second defendant submitted, that aspects of the second plaintiff’s evidence – largely on damages issues – require careful consideration.

The second defendant next argued that the second plaintiff and his evidence was unreliable broadly across four “damages” issues, summarised as follows.

As earlier noted (see [164], above), the second defendant’s ultimate and overarching submission was that the Court would find the second plaintiff and his evidence “unreliable” and, subsequently, conclude that he has failed to persuade me about his overall account, with the consequence that his action should be dismissed (see [134], above).

It is important to note, given the second defendant’s submissions, that questions relating to the reliability of a witness and their evidence do not necessarily present a binary choice. That is because it “is the everyday experience of the courts that honest witnesses are frequently in error about the details of events”: M v the Queen (1994) 181 CLR 487, 534; [1994] HCA 63; Cabot (a pseudonym) v R [2018] NSWCCA 265 at [60]. It is also for the reasons explained in Palmer v R [2018] NSWCCA 205 at [51]:

Thus, although I have not accepted most of the second defendant’s unreliability arguments, I have accepted some of them.

Those matters where I consider the second plaintiff’s evidence to be unreliable or unpersuasive do not, however, lead me to doubt his account (essentially across the liability issues) largely because, as explained, it appears to be consistent with objectively established facts, as well as the logic of events and inherent probabilities. Although the second defendant did not place any significant emphasis upon the principles and techniques recently summarised in Willmot at [30] (set out at [136], above) when addressing the liability issues, I have been particularly conscious of them in my examination of the second plaintiff’s account.

For completeness, the following three matters should be noted, lest it be thought that they have been overlooked.

First, I am alive to the fact that the second plaintiff, in connection with his case on damages, suggests that he was a significant user and abuser of alcohol and illegal and prescription drugs – including “marijuana, LSD, cocaine and ecstasy”, “crystal methamphetamine, amphetamine…MDMA, ketamine and other hallucinogens” and “heroin…diazepam, alprazolam (sedatives), panadeine forte, endone (potent analgesics)” – for around 20 years, until 2013. Although (as later explained) I have not accepted this part of the second plaintiff’s case (and his evidence), it was not sought to be argued that the second plaintiff’s memory was impacted by this apparent drug use. To be clear, not only was there no submission to that effect, but the second plaintiff was not cross-examined to that end, nor was any expert evidence, say, adduced on that topic.

Secondly, and as referred to elsewhere, the second plaintiff came to disclose the abuse to his solicitor, in or around 2022. It was common ground that he did so in connection with him responding to a request to be a witness in another matter. The second plaintiff was not, however, cross-examined to suggest that, through this process, he acquired some – or any – of the details about that claim that he was using in his claim; indeed, he was not cross-examined at all about any of the detail of his involvement as a witness for that other matter. In those circumstances, it followed, as Mr Sheldon SC essentially submitted, that no issue arose about his involvement as a witness equipping him with information and knowledge that he did not acquire other than through his own experience.

Thirdly, as earlier noted, the second plaintiff said that he “told [his] wife” about the abuse after he spoke with his solicitor about it (see [159], above). The second plaintiff’s wife, in her evidentiary statement dated 20 May 2024, made reference to this disclosure, as follows:

By its terms, this version refers to the location of the abuse as being at school. The second plaintiff’s wife, when called to give evidence, did not elaborate on this evidence – in particular, she was not asked to give evidence about that disclosure. Nor was she cross-examined about it. The second defendant did not place any reliance upon that evidence during submissions. It is, thus, unnecessary to determine whether it was inconsistent with the second plaintiff’s overall account.

To sum up: for the reasons I have given, I am satisfied that the second plaintiff was sexually abused by Mr Hawkins, in the way he described, whilst on a canoe club camp at Wisemans Ferry in 1992.

The second plaintiff’s evidence was that, when he was in Year 9 in 1993, Mr Hawkins was his metalwork teacher, when a further incident occurred. The second plaintiff described this further interaction with Mr Hawkins as follows:

The second plaintiff’s evidence, when cross-examined, was that Mr Hawkins “basically tried to fondle me again”.

The second defendant did not address this event, or cause of action more generally, in its written submissions, nor were they referred to during oral submissions. The second plaintiff’s written submissions similarly did not address the matter. Nevertheless, as explained during submissions by Mr Sheldon SC, this was largely driven by two practical considerations: first, the overall thrust of the second plaintiff’s evidence is that the injuries, loss and damage were suffered in consequence of the events that occurred on the canoe camp at Wisemans Ferry; and, secondly, the expert evidence had proceeded on a largely similar basis.

To illustrate this last point, Mr Sheldon SC emphasised that Dr Jager obtained a history from the second plaintiff about the events on the canoe camp and the alleged fondling whilst at school. He then proceeded to address various questions raised, and express opinions on, the basis of both events.

It should be noted that it was not suggested by either party that these injuries were “divisible” for the purpose of assessing damages, nor did they require separate assessment.

The second plaintiff gave somewhat confined evidence about this. His evidence about what allegedly occurred was contained within his evidentiary statement, as follows:

There was limited cross-examination of the second plaintiff directed to this evidence. To the extent it was undertaken, it was principally directed towards confirming the second plaintiff’s evidence.

The following matters should be noted about this part of the second plaintiff’s claim.

First, as earlier noted, the second plaintiff did not seek to relate – and, importantly, plead – these acts as the basis for a separate cause of action in the SPASOC.

Secondly, the second plaintiff did not give an account of these events to either Associate Professor Robertson or Dr Jager; hence, neither addressed the materiality of them in their reports. The joint report prepared by them similarly did not address the “physical abuse”.

The second defendant did not address this event, or cause of action more generally, in its written submissions, nor were they referred to during oral submissions. Indeed, the second plaintiff’s position, as confirmed by Mr Sheldon SC during submissions, was that these events were not relied upon as conferring or creating a cause of action. The evidence was merely historical and factual.

Given no reliance was placed upon them, nor did either party suggest that they were material in any other way, nothing more need be said.

As earlier noted (see [139]-[141], above), Mr Sheller SC made two limited and contingent concessions during the course of the hearing – as follows:

In its written submissions, the second defendant sought to identify the basis of its “liability” to the second plaintiff, as follows:

The second defendant cross-referenced these “admissions” to the reasonable precautions pleaded by the second plaintiff in the SPASOC at [11](e), [11](f) and [11](i).

The following three matters should be noted about the second defendant’s concession. First, given the nature of the concession, the second plaintiff did not address the precise basis upon which the second defendant had breached its duty to exercise reasonable care towards him. That the second plaintiff did not do so is perfectly understandable: putting to one side questions relating to damages, the confinement of the issues by the second defendant in this way did not require him to prove any particular breach of duty for him to succeed; he was merely required to prove – as he has – that the sexual abuse occurred.

Secondly, no oral submissions were made by the second defendant about these specific “admissions” (including, by way of example, the evidence upon which they were based), nor their form (for example, pars (a) and (c) appear to substantially overlap).

Thirdly, no party invited me to make specific findings about the way or ways in which the second defendant was in breach of its duty to the second plaintiff, no doubt given the confinement of the trial issues in the way described.

The second plaintiff alleged that the second defendant was, in addition to being directly liable to him, vicariously liable for the wrongdoing of Mr Hawkins. The second defendant disputed that, given it has accepted that it is directly liable to the second plaintiff, vicarious liability could arise. Even if it could arise, it also disputed that it was not vicariously liable in the circumstances.

Vicarious liability identifies when the law holds one person liable for the wrongdoing of another even though the first person is without fault or blame: Prince Alfred College Inc v ADC (2016) 258 CLR 134, 148; [2016] HCA 37 (‘Prince Alfred College’); Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349 at [44] (‘Bird’). It thus involves a liability “based on the attribution of the liability of another”, not the attribution of acts: Bird at [44].

In the context of a relationship of employment (which is the only type of relationship that can underpin such a form of liability), vicarious liability relies upon demonstrating two interconnected matters: first, the establishment of the requisite relationship between the wrongdoer and the defendant; and, secondly, a connection between that relationship and the wrongdoer’s conduct – a connection defined by the course of employment: Bugge v Brown (1919) 26 CLR 110, 117; [1919] HCA 5 (‘Bugge’); Prince Alfred College at [40]; CCIG Investments Pty Limited v Schokman (2023) 278 CLR 165; [2023] HCA 21 at [12] and [14] (‘Schokman’). This last requirement reflects the “just limits” of the employer’s liability for the wrongdoing of its employee: Hollis v Vabu Pty Limited (2001) 207 CLR 21; [2001] HCA 44 at [34]; Schokman at [12], citing Prince Alfred and Bugge.

The arguments of the parties addressed vicarious liability in the way described. Strictly, however, liability imputed to the employer in this way requires demonstration of an additional matter – viz., that the wrongdoer committed a tort. This issue was not expressly pleaded in the SPASOC, nor squarely addressed in submissions – possibly for practical reasons, as I next explain. In relation to the sexual assault, the approach of the parties (unsurprisingly) was that the conduct of Mr Hawkins was unquestionably tortious. In relation to the second plaintiff’s evidence about the physical abuse, Mr Sheldon SC confirmed during submissions that he placed no reliance upon these matters as the basis for any award of damages. In relation to the “fondling”, he submitted that, again for essentially practical reasons, the second plaintiff’s substantive action for damages was for what occurred on the canoe club camp, rather than for the “fondling”. The second defendant, it should be noted, did not make any submissions about this aspect of the second plaintiff’s case, nor contest the approach suggested by him.

As the relationship of employment between the school and Mr Hawkins was admitted, the contest turned upon whether the acts perpetrated by Mr Hawkins occurred in the course of his employment.

Before considering that contest, it is necessary to address several threshold issues raised by the second defendant.

The second defendant’s first argument was that the judgment of the High Court in Schokman – in particular, the judgment of Edelman and Steward JJ –recognised and reflected a “better analysis” such that, in this area of law (essentially involving conduct of an employee of the kind in question), the approach should be to look at whether, and only whether, direct liability exists. In furtherance of this argument, it was additionally submitted that, particularly given Prince Alfred College was a decision principally concerning limitation issues, their Honours’ judgment contained the preferred analysis, was a considered statement of the law, and should be applied here.

There are numerous reasons standing against acceptance of the second defendant’s submission, including the following.

First, although the decision in Prince Alfred College was concerned with limitation issues, as the second defendant submitted, that was not its only focus. Rather, given the decision in New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 (‘Lepore’) was said to have resulted in “differing views” being expressed in connection with the basis for determining vicarious liability in cases involving sexual abuse perpetrated by a teacher upon a student, the High Court identified “a need for some guidance to be provided” on this question – which was provided by the joint judgment of French CJ, Kiefel, Bell, Keane and Nettle JJ. The guidance given in that area was described as “the relevant approach”: Prince Alfred College at [10]. Further, in that case, Gageler and Gordon JJ accepted the “relevant approach” would “now be applied in Australia”: Prince Alfred College at [130].

Secondly, a further difficulty with this argument is that it directly conflicts with the approach of Gleeson J in Bird: given her Honour’s conclusion about whether a relationship akin to employment could support vicarious liability, it was necessary for her Honour to address whether there was such liability – an analysis that involved the application of the principles derived from Prince Alfred College: Bird at [182]. The reasons of Gleeson J clearly demonstrate that the decision in Prince Alfred College has not been “overtaken” or impliedly overruled, as the second defendant in substance sought to argue.

It is unnecessary to address the second defendant’s argument any further, simply because it is not one that I am able to entertain, given the above. The decision in Prince Alfred College binds me and it is the fundamental duty of the Court to loyally follow and apply that decision unless and until the High Court decides otherwise: Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, 177-179.

The second defendant’s next argument was that, given liability was direct, no finding of vicarious liability – as a matter of principle – could be made. That is, the former liability necessarily excludes the latter. Mr Sheller SC submitted that what Gaudron J said in Lepore at [127] lent some support to this argument, namely:

Nevertheless, in advancing this submission, the second defendant acknowledged that it was unable to identify any authority (or academic writing) that supported the argued approach.

In my view, so long as the law recognises that there can be multiple causes – rather than a single cause – for the harm suffered by individual in instances of wrongdoing by an employee, it is at least open for direct liability and vicarious liability to co-exist in the same claim involving the same defendant.

However, whether direct liability and vicarious liability can co-exist in the same claim involving the same defendant involving the same conduct is less clear. Given the vicarious liability in an employment context was adopted “not by way of an exercise in analytical jurisprudence but as a matter of policy” and that the policy itself “is not and has not been fully articulated” (see Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 at [11] (‘Sweeney’)), resolving the question – unaided – is far from straightforward. As to this question, however, the following matters should be noted.

First, this was not the second defendant’s argument; rather, its argument was that a finding of direct liability, in and of itself, precluded a finding of vicarious liability. Secondly, the way the matter was conducted involved a narrowing of the “liability” issue that was accepted to turn, and only turn, upon whether the alleged abuse occurred. Having established that it did, the second plaintiff was not required to go further and show that that conduct amounted to a breach of the duty of care that was owed to him in any particular way, as I have earlier noted: see [293], above. It follows, therefore, that no question in fact arises about whether direct and vicarious liability can co-exist when it involves the same conduct in this case given the way the matter was litigated. Thirdly, whether the two forms of liability can co-exist may involve issues of fact, degree and ultimate characterisation about whether the “liability” to the injured party, as a matter of substance, should be of only one particular kind: see Sweeney at [25]. Fourthly, the question is likely to involve careful consideration of the interplay with the principle that “a non-delegable duty cannot arise for an action based upon intentional wrongs” by a delegate: Bird at [42], citing Lepore at [34], [38], [265] and [339]; Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 at [160]. Finally, the position of the second plaintiff was that he was entitled to maintain, and succeeded in, his claim based on vicarious liability for the wrongdoing of Mr Hawkins.

The second defendant submitted that it was not open to conclude that vicarious liability arose, given the nature of the alleged acts perpetrated upon the second plaintiff. Mr Sheller SC submitted that an act of that kind could never be within the course of Mr Hawkins’ employment.

As a matter of principle, two responses answer this submission – one general, the other specific.

The general response is that provided by Gleeson CJ in Lepore at [1]:

The specific response is that the decision in Prince Alfred College stands contrary to what the second defendant submitted.

The second defendant contested that vicarious liability arose, arguing that Mr Hawkins was “acting for his own benefit” and not for the benefit of the second defendant; that his conduct was “not an authorised activity within the scope of his duties or any engagement”; and that his conduct was “contrary to the terms of any engagement, and his duties as a teacher”, including “principles and moral standards” required by the second defendant. As such, the “behaviour” of Mr Hawkins was submitted to be the “antithesis of conduct in the course of his employment” and conduct properly characterised as a “frolic of his own”.

It may be accepted – and assuming the appropriateness of analysing or describing the present issue in terms of who may be characterised as the “beneficiary” of the act in question – that what Mr Hawkins did was not done for the “benefit” of the second defendant but, rather, for his own “benefit”. It may also be accepted that the sexual abuse committed by Mr Hawkins was not “authorised” in any way and was antithetical to what he was employed to do. Even so, acceptance of such circumstances, or any of them, does not necessarily foreclose a finding of vicarious liability. As much was confirmed by Gleeson CJ in Lepore at [73]:

The approach to be taken when considering whether the vicarious liability can arise in a case such as this, involving the sexual abuse of a student by a teacher, was identified in Prince Alfred College at [80]-[81], [84] as follows:

As earlier noted, the second defendant contested the application of these principles, whereas the second plaintiff argued that they should be applied to determine whether the second defendant was vicariously liable for the sexual abuse perpetrated upon him. The second plaintiff’s submission should be accepted, for the reasons earlier given.

Drawing on the above, two matters presently warrant emphasis.

First, any analysis of vicarious liability must commence with an identification of what Mr Hawkins was employed to do and was held out by the second defendant as being employed to do – an inquiry that is “central” to any determination about the course of Mr Hawkins’ employment: see, for example, Lepore at [232]; Prince Alfred College at [47], [55]-[56]. Secondly, it is clear from what has been set out above that the mere fact that employment creates the opportunity for the wrongful act is not, of itself, a sufficient reason to attract vicarious liability. On the other hand, where employment not only creates the opportunity but provides the “occasion” for the wrongdoing, vicarious liability remains a possibility. In this respect, the “occasion” is understood to mean placing the employee in a position “to do that class of act”. The example given by the plurality in Prince Alfred College, as possibly supporting vicarious liability where the employee commits a criminal act, is where “the employee used or took advantage of the position in which the employment placed the employee vis-à-vis the victim”.

I will start with the nature of Mr Hawkins’ employment, recognising that there are at least two aspects to this inquiry: what he was employed to do and what he was held out by the second defendant as having authority to do.

The submissions of the second defendant did not specifically address these questions, possibly explained by the fact that Mr Hawkins’ employment as a teacher was admitted and, in relation to his extra-curricular activities, it did not contest any of the canoe club findings earlier made (see [69]-[124]). The second plaintiff, on the other hand, submitted that the course of Mr Hawkins’ employment in effect extended “to taking students on canoe camps” in addition to his teaching responsibilities, and that he was “held out” by the second defendant as “being employed to conduct the canoe camps, including canoe camps on weekends and [on] school holidays”. As I explain in what follows, the second plaintiff’s submissions should largely be accepted.

Mr Hawkins was employed as a teacher and his role extended not only to teaching various subjects, as I have earlier found (see [39]-[42]), but to co-ordinating extra-curricular activities for school students – relevantly here, canoeing and “running” the school’s canoe club. In relation to canoeing as a school sport on a Thursday afternoon, he was required to conduct that activity and supervise the students who participated in it. In relation to the canoe club, he organised and conducted the activities run under its auspices, and supervised students who participated in those activities (see [69]-[124]). In this last respect, as I have earlier found, the canoe club was associated with and was part of the school in substance and in form, and was accepted as such by it: the canoe club was, to use the words of a former student, “just like every other sporting or extracurricular activity at the school, whether football, cricket, or cadets”. Further, I have also found that canoeing and the school’s canoe club was run – and solely run – by Mr Hawkins. That is, he was the only teacher with any association with, or responsibility for, canoeing or the canoe club.

Additionally, and acknowledging that there is a degree of overlap between the matters referred to above, there is no question about how Mr Hawkins was “held out” by the second defendant in connection with canoeing and the canoe club. He was held out, I find, as the teacher who ran and was thus responsible for canoeing and the canoe club. That responsibility was the consistent thread between the evidence of the former students, which aligned entirely with the way in which the school recognised the role of Mr Hawkins. For example, his duties were described in the 1984 school magazine as: “Home Room Teacher…Maths/Commerce/Technics. Canoe Club”. By way of further example, there is other material that identified Mr Hawkins as the “coach” of the canoe club and that the “achievements” of the canoe club were regularly celebrated at school assemblies.

As I have earlier noted, there was no evidence explaining how or why Mr Hawkins came to be, in effect, responsible for canoeing and the canoe club. Nor, more relevantly here, was there any evidence that there was any form of oversight whatsoever of Mr Hawkins in the way and manner in which he “ran” the canoe club, and the activities he organised and conducted under its auspices. In effect, I am satisfied and find that, having appointed Mr Hawkins with the responsibility for canoeing and the canoe club, the second defendant – whether by conscious decision or neglect – left the running of it, including the activities the canoe club conducted, entirely up to him.

Thus, the second defendant conferred responsibility for the extracurricular activities of canoeing and the canoe club upon Mr Hawkins and, in relation to the canoe club, that included the responsibility to conduct canoe club camps, essentially as and when he saw fit. Whilst these were perhaps initially confined to training camps for those students interested in competitive canoeing, the reach of the canoe club, over time, extended to include those students interested in canoeing as a recreational activity. The evidence does not permit a precise finding about when this “extension" of the canoe club’s activities commenced. It is also apparent that, from fairly early times (most likely from the early 1980s, given the experience of DC and the allegations referred to in the Hawkins improper conduct document (see [219], above), Mr Hawkins began to “offer” school students weekend outings that were ostensibly part of the canoe club activities; indeed, as I have found, he had a clear practice of doing so by 1992, such that they were held every fortnight.

The position reached may be summed up as follows: in performing and discharging his role as a teacher with the sole responsibility for the extra-curricular activities of canoeing and the canoe club, with no apparent oversight, Mr Hawkins used his position to organise and conduct frequent canoe club camps, including on weekends and school holidays, involving school students where he was the only adult present. Clearly, by appointing him to that role, Mr Hawkins had authority and power and, most importantly, the “ability to achieve intimacy” with the students who attended the canoe club camps. It is for those reasons, in line with the second plaintiff’s submissions, that I accept that the wrongdoing of Mr Hawkins should be regarded as committed in the course of his employment, with the consequence that the second defendant is vicariously liable for that wrongdoing.

By way of introduction and summary, the second plaintiff’s case is that the sexual abuse which he was subjected to resulted in him suffering psychiatric injury (in the nature of, or having symptoms consistent with, post-traumatic stress disorder (‘PTSD’)) and related sequelae (a substance use disorder), which has impaired – and continues to impair – him and his earning capacity. The second plaintiff seeks general damages (including aggravated damages; the claim for exemplary damages was abandoned in his written submissions); damages for loss of past and future earning capacity; and consequent loss of past and future superannuation entitlements, as well as damages for future medical and out-of-pocket expenses.

The second plaintiff claims substantial damages: he seeks to recover $2,418,307.00 for damages at common law or $1,771,072.00 for damages assessed under the CLA. The second defendant, on the other hand, submits that any entitlement that the second plaintiff has to damages should be confined to a comparatively modest sum, and a small fraction of what the second plaintiff seeks.

Before addressing the second plaintiff’s claim for damages, the following five matters should be noted.

First, the second plaintiff argued that the provisions of Part 2 of the CLA did not apply to any assessment of damages if I determined that the second defendant was vicariously liable for the wrongdoing of Mr Hawkins – an outcome that followed from the operation of s 3B(1)(a) of the CLA. This was common ground, with the second defendant submitting that this approach was consistent with the decision in Zorom Enterprises Pty Ltd v Zabow (2007) 71 NSWLR 354; [2007] NSWCA 106.

Secondly, although the second plaintiff claimed damages for both physical and sexual abuse, as earlier noted, the medical evidence adduced by the second plaintiff only addressed the sexual abuse, and the second plaintiff only pursued a claim for damages based upon such abuse (see [285]-[289], above). The assessment of damages, therefore, is only for the sexual abuse that was perpetrated upon him and, even then, relates only to the sexual abuse that occurred on the canoe club camp.

Thirdly, in relation to the sexual abuse that occurred on the camp, the damages sought were for psychiatric and psychological injuries and not for any physical injuries suffered in consequence of that abuse.

Fourthly, the second defendant made fairly confined submissions about damages (which drew heavily upon what were argued to be aspects of the unreliability of the second plaintiff and his evidence) and, although offering an assessment of damages under the CLA, did not address common law damages at all.

Fifthly, given there was a contest about whether vicarious liability arose on the facts and was legally available (see [301]ff, above), I have undertaken an assessment of damages in accordance with Part 2 of the CLA: Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7]; PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312 at [15]; Transport for NSW v Hunt Leather Pty Ltd; Hunt Leather Pty Ltd v Transport for NSW (2024) 115 NSWLR 489; [2024] NSWCA 227 at [99].

I will start with the arguments about the unreliability of the second plaintiff and his evidence, and my findings concerning these issues.

The second defendant raised specific instances where it was submitted that the Court should find the second plaintiff and his evidence to be unreliable and made an overarching submission that, generally, the Court should find him to be a less than satisfactory and unreliable witness.

In relation to some specific instances of (argued) “unreliability”, they arose in the context of his overall account of the sexual abuse perpetrated upon him at the camp (and were dealt with earlier in these reasons). In relation to the remaining instances of “unreliability” argued, they arose in the context of the second plaintiff’s case on damages (see [267], above). By way of summary, the second defendant particularly relied upon the second plaintiff’s evidence about his “subsequent drug and alcohol dependency after the abuse” (including the timing of when that began); his evidence about, or relating to, his apparent diminution in earning capacity; and discrepancies in his evidence, when compared to the evidence given by his wife.

The second defendant also called in aid some of the principles and techniques earlier referred to (see [136], above). It submitted that relevant considerations in this assessment included the forensic disadvantage that it faced in defending allegations dating back over 30 years that were only very recently made; the absence of relevant witnesses or the failure to explain their absence; and the fact that there is a distinct lack of corroboration across all aspects of the second plaintiff’s claim. It is convenient to deal first with these submissions, before addressing my assessment of the second plaintiff and his evidence.

As I have previously noted, the second plaintiff has not sought any form of treatment for the impact of the alleged abuse from any doctor (or health practitioner, such as a psychologist) at any time. In the present context, the absence of treatment means that no witnesses were potentially available to be called, nor records potentially available to be tendered. Evidence of that kind usually – not always – provides some evidence concerning the reason or reasons why that treatment is sought and, thus, some potential corroboration. That is not a criticism of the second plaintiff. Nor is this, in and of itself, fatal to the second plaintiff’s claim: it is well recognised that “while corroboration will always assist in such cases, there is no rule of law that there can be no claim without corroboration”: Willmot at [30], citing Plunkett v Bull (1915) 19 CLR 544, 550; [1915] HCA 14. The lack of corroboration has one practical consequence though: it confines the evidence, given that no “before and after” witnesses were called.

Another difficulty in assessing and evaluating the second plaintiff’s case on damages is that, despite the impact of the abuse precipitating what was claimed to be an immediate decline in his mental health and, in consequence, his schooling and ability to work (which led to him abusing alcohol and illegal and prescription drugs for some 20 or so years), there are no documents of any kind available to provide any form of corroboration, nor (with the exception of the second plaintiff’s wife) was any witness called to corroborate his account. Again, the absence of corroboration is not fatal, but the practical consequence and reality must be acknowledged, as noted above.

Thus, notwithstanding the strong challenge made to the reliability of the second plaintiff (and, relevantly here, his damages evidence) by the second defendant (in particular, through the cross-examination conducted by Mr Sheller SC), there is a distinct lack of corroborative evidence across the second plaintiff’s claim for damages. One example of where there is no corroboration relates to his claim that he engaged in significant drug use, and abuse, over 20 years.

The second plaintiff’s evidence was that, whilst still in Year 8, he began “smoking and drinking and doing drugs to try and cope” and that “over [his] teenage years” the drug taking included “marijuana, LSD, cocaine and ecstasy [and] anything [he] could get [his] hands on to try and cope…”. According to the history that the second plaintiff gave to Associate Professor Robertson, his drug taking extended to abusing drugs such as “crystal methamphetamine, amphetamine, cannabis, MDMA, ketamine and other hallucinogens”. According to the history that the second plaintiff gave to Dr Jager, it extended to abusing “cannabis, LSD, heroin and cocaine…He has also abused diazepam, alprazolam (sedatives), panadeine forte, endone (potent analgesics), but rarely has abused alcohol”.

The second plaintiff’s evidence was that he ceased using drugs in about 2013. This evidence is consistent with what he told Associate Professor Robertson and Dr Jager. His evidence was that, at that time, he travelled to Europe and stayed with a person who he was “in a personal relationship with” – someone he described as “Helena” – and “went overseas with the intention of getting off drugs”. There was no evidence from Helena, nor any explanation for why she was not called.

In relation to the second plaintiff’s work history, his evidence was that he worked in the insurance industry for a number of years between around 2003 and 2021 and, in that evidence, suggested that his employment was punctuated by “problems with drugs”, performance issues because he had “anger bouts” which involved him “yell[ing] at people” and “regularly…[taking] days off work while doing drugs” and that, when working for QBE, he “went weeks without turning up because…[he] was at home drug-affected”. Yet no employment records were tendered to show this (to the extent that some records were in evidence, I was not taken to any of them so as to support any part of the second plaintiff’s account), nor were any witnesses called to speak to or address these matters. No explanation was provided as to why these records were not in evidence and why any witnesses were not called.

The “new reality” of claims involving allegations of abuse dating back many decades requires the Court to apply the principles and techniques earlier referred to. They are not ornamental, but substantive and functional, with real work to do in a case such as this.

In the circumstances described, therefore, it is necessary to give the second plaintiff’s evidence careful attention and scrutiny.

The second defendant submitted that the second plaintiff’s failure to call evidence from his mother and brother, or to explain their absence, should result in an inference being drawn that their evidence would not have assisted his case.

In relation to the failure to call the second plaintiff’s mother, the second plaintiff resisted the drawing of any adverse inference, essentially submitting that the second plaintiff did not raise being sexually abused by Mr Hawkins with her because of a sense of “shame”. I do not accept this submission. As Mr Sheller SC submitted, the broad topic of her evidence would be his suggested decline in all aspects of his life since 1992. In any event, again as the second defendant submitted, I consider that that evidence sits somewhat uneasily with the fact that he has spoken to his lawyers, to doctors, to this Court, and to his wife about these matters. On this version, as Mr Sheller SC submitted, the second plaintiff “has wanted to keep every detail effectively of his adolescence out of the mind of his mother”.

Put a little differently, but to the same end, I do not accept the second plaintiff’s evidence that was elicited during re-examination (which I found unconvincing, and which is referred to above) as it sits uneasily – and does not, to my mind, quite square – with the fact that the second plaintiff was able to make such a disclosure to various other persons.

Although not expressly relied upon during submissions, for completeness, I will briefly address two other matters relating to the failure to call the second plaintiff’s mother or explain her absence.

First, when cross-examined by Mr Sheller SC about the availability of his mother to give evidence in connection with damages issues, the second plaintiff attempted to suggest that, perhaps, her memory “isn’t that great”. I do not accept that evidence – in part because it was, at least to a degree, contradicted by the second plaintiff’s evidence that he was unsure whether her suggested difficulties with memory were “her own choice not to recall it” and, in part, because my assessment of the second plaintiff was that he was trying to downplay the potential materiality and relevance of his mother’s evidence when he gave his evidence.

Secondly, although the second plaintiff gave some evidence that he was “not on good terms with [his] mother and only talk[ed] to her on and off”, I do not accept that evidence – particularly given the evidence he gave, when cross-examined, that the stability of his personal relationship with his partner had helped “improve the relationship with [his] mother”. Separately, I do not accept that this evidence sufficiently explains why she was not called.

For these reasons, I draw the inference sought by the second defendant in relation to the second plaintiff’s mother.

In relation to the failure to call the second plaintiff’s brother, I am not prepared to draw the adverse inference that the second defendant submitted I should. That is essentially because, although the second plaintiff’s brother went to school at the same time, he was some years older, and their connection was not significantly explored during evidence.

I return now to address the second defendant’s arguments about the unreliability of the second plaintiff and his evidence.

In terms of the second plaintiff’s evidence, there were aspects of it that I found to be either unreliable, unpersuasive, or both. I will give some illustrations.

The second plaintiff’s evidence was that he aspired to become a doctor, specialising in endocrinology. The second plaintiff, at least for a time, pursued a loss of earning capacity case based upon that scenario (and tendered an expert report from Lucinda Smith (consultant vocational assessor) dated 15 March 2024 that sought to demonstrate and quantify that loss). The amended statement of particulars filed 27 March 2025 withdrew such a claim and, notwithstanding the report of Ms Smith, Mr Sheldon SC confirmed that the claim was not sought to be reinvigorated.

It is unnecessary, given the loss of earning capacity claim advanced, to dwell on whether that career was ever a realistic option for the second plaintiff. However, what has been set out gives some context to what follows.

The second plaintiff described himself as being “at least average academically at primary school” and that, during high school, his “marks were fine”. In the joint report by the psychiatrists, they expressed the view that “[t]aking into account the neuropsychological assessment…demonstrated he had low average IQ, there has been no demonstrable adverse effect noticed on the [second] plaintiff’s capacity for employment, earning capacity or ability to seek advancement”.

During cross-examination, Mr Sheller SC asked the second plaintiff questions about the list of “three top performing students” in 1991, as well as the list of students who obtained particular rankings for effort, and pointed out that the second plaintiff did not appear on either.

When asked specifically about some of the three top performing students, the second plaintiff sought to suggest that he was “pretty much…on par with, like, academically” some of those boys, and, when it was suggested to him that they were “performing at a much higher academic level than” him at that time, the second plaintiff’s evidence was that he “wouldn’t say by much”. In my assessment, this was a clear occasion when the second plaintiff sought, somewhat opportunistically, to give exaggerated evidence to bolster his case. To be clear, I do not accept this evidence. In particular, I do not accept that the second plaintiff was at any time at or near the top performing students, as he suggested.

The second defendant submitted that the second plaintiff’s evidence about his drug use (and the intensity of it) and alcohol consumption upon returning home from the canoe camp was implausible. I will give some context to this submission: the second plaintiff’s case on damages is that the alleged sexual abuse precipitated an all but immediate decline in his functioning, and he resorted to drugs and alcohol as a form of “coping”. In short, the second plaintiff claims that, more or less immediately after he returned home from the canoe camp, he commenced a descent into a maelstrom of drug and alcohol use.

The second defendant emphasised aspects of the second plaintiff’s evidence that were argued to demonstrate the implausibility of his account, including the following:

The second defendant submitted that this evidence, and the account generally, was implausible and essentially exaggerated. I agree. I find this evidence to be extraordinary. That a young boy would be consuming the type and quantity of alcohol (not to mention drugs) that he suggested he was and without anyone noticing it – at all – strikes me as remarkable. I am quite unpersuaded that this accurately depicts any kind of decline that may have been experienced by the second plaintiff at this time, and throughout the balance of the second plaintiff’s time at school.

The second defendant submitted that there were inconsistencies in the way the second plaintiff reported when his drug and alcohol abuse allegedly commenced. To illustrate this, the second defendant contrasted the version contained in his evidentiary statement – to the effect that it commenced directly following the sexual abuse and, thus, in 1992 when he was still in Year 8 – to the version given to Associate Professor Robertson, which was that it commenced “from age 15”. To be clear, based upon the history contained within this report, the second plaintiff reported that he was sexually abused when “aged 13”.

The second defendant also contrasted the version contained within the second plaintiff’s evidentiary statement, referred to above, with the history contained within the report from Ms Smith – namely: “I have been on drugs or medication for about 12 or 13 years. I was trying to get off it before…about 2009.…”. As the second defendant submitted, that history would place the commencement of the second plaintiff’s alleged drug abuse at around 1996 or 1997. During her evidence, Ms Smith confirmed that this understanding of the history was correct.

I am mindful of the caution that has been expressed about the use of histories contained in medical reports (see Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] (‘Container Terminals’); Mason v Demasi [2009] NSWCA 227 at [2] (‘Mason’)). The second defendant did not suggest that these general cautionary remarks were inapt but emphasised that, in relation to Ms Smith, her evidence was that her standard practice was to secure a careful history, including by putting the “account back to” the second plaintiff to ensure she was “getting the account accurately”. I am satisfied, based upon Ms Smith’s evidence, that the history she secured was an accurate account of what she was told by the second plaintiff. It is difficult to explain how and why this history could have been given, other than reflecting, as the second defendant submitted, a measure of unreliability in a not unimportant aspect of the second plaintiff’s account.

The second defendant also argued that the second plaintiff’s evidence, contained in his evidentiary statement dated 29 May 2025, also cast considerable doubt upon his reliability, and the reliability of his evidence. In short, the second defendant submitted that this unreliability was demonstrated in several ways in his evidence: for example, the evidence was said to evince an intent to “downplay” the impact of the second plaintiff’s diabetic condition on his earning capacity and minimise the success of his current business. In the end, particularly as I have not accepted the second plaintiff’s loss of earning capacity case as advanced and largely accepted the second defendant’s submissions about the unreliability of the second plaintiff and his evidence in connection with his damages claim, it is neither profitable nor necessary to descend into any further detail.

The second defendant next submitted that there were a series of inconsistencies between the second plaintiff’s evidence and the evidence given by his wife. This included submissions directed to her assessment of the second plaintiff’s capacity to work full-time, the circumstances and impetus behind the second plaintiff leaving his employment with Nautilus Marine and commencing his own landscaping business (being brought on by the COVID pandemic, rather than a consequence of the effects of the sexual abuse), the management of the second plaintiff’s diabetic condition, and his apparent issues with alcohol.

In relation to the reason for the second plaintiff leaving his employment with Nautilus Marine, his evidence was that he “resigned from that role after feeling that I just could not cope…”, whereas his wife’s evidence was:

In relation to the second plaintiff’s apparent issues with alcohol, his wife’s evidence was essentially that he has ongoing problems with alcohol, whereas the second defendant drew attention to a history given to Dr Jager that he “rarely drinks alcohol”.

There are certainly differences in the evidence between the second plaintiff and his wife, as the second defendant submitted but, based upon them (including their combination), I am not persuaded that they significantly impact upon the reliability of the second plaintiff or his evidence.

Given the above, I have approached the second plaintiff’s claim for damages with a degree of caution: he had a tendency to exaggerate his evidence with a view to trying to bolster aspects of his case and, further, aspects of his evidence were unreliable to the point that I am unpersuaded by, and thus cannot accept, those parts of his evidence.

Associate Professor Robertson and Dr Jager prepared a joint report dated 29 April 2025 (‘the joint report’).

In relation to the second plaintiff’s diagnosis, each expert largely adhered to the diagnosis they had made following their assessment of the second plaintiff. Thus, Associate Professor Robertson expressed the opinion that the second plaintiff “endorsed symptoms consistent with a diagnosis of Persistent Depressive Disorder, noting he also described some features of Post-Traumatic Stress Disorder”. Dr Jager expressed the opinion that the second plaintiff “described symptoms sufficient to diagnose Chronic…[PTSD] but from the history he obtained and the documents subsequently provided there was insufficient evidence to diagnose Persistent Depressive Disorder (Dysthymic Disorder)”. Both experts were satisfied, based upon the second plaintiff’s “self-report, that he had previously demonstrated Polysubstance Abuse Disorder; however, an examination of the records does not reveal any clinical entries suggestive of that diagnosis”. For that reason, Dr Jager was unwilling “to confidently diagnose a past history of Polysubstance Abuse”.

In relation to attribution, each expert considered that the symptoms of the diagnosed psychiatric or psychological injuries, including the reported polysubstance abuse, manifested following the alleged abuse, albeit that that condition ended following the second plaintiff’s cessation of drug use in 2013. Further, Associate Professor Robertson noted that, at the time of his assessment of the second plaintiff in 2022, “his depressive symptoms and cross-cutting PTSD symptoms were ongoing” and that the “ongoing symptoms” reported by the second plaintiff were “suggestive of Persistent Depressive Disorder. Dr Jager noted that “the Chronic PTSD [was] continuing to the present day”.

As to prognosis, Associate Professor Robertson expressed the opinion that this was “poor”, given the nature of the trauma and the reported duration of the symptoms, and that there was a “risk of potential relapse of substance use”. Dr Jager expressed the opinion that the second plaintiff was “likely to experience some symptoms of Chronic PTSD indefinitely regardless of treatment and he remains at risk of a relapse of Polysubstance Abuse”. Neither expert quantified the risk of “relapse”.

It is important to emphasise, however, as the second defendant did during submissions, that the experts approached the second plaintiff’s “account of the abuse as valid” and given what, at least, Dr Jager considered were “significant inconsistencies between what was evident in the documents and the history obtained by both experts, raising concerns about the reliability” of his complaints about his mental health and drug abuse problems, the experts adopted a “principle of charity” – the effect of which was to assume the validity of the second plaintiff’s overall account.

In relation to the second plaintiff’s damages case, I entertain considerable doubt about his evidence. In the end, I remain unpersuaded that the second plaintiff’s drug use and abuse was as extensive as he said, nor as debilitating as he claimed. I also entertain doubt about the nature and extent of the second plaintiff’s symptomatology.

In my view, given the experts broadly accepted the various signs and symptoms that the second plaintiff continues to experience, the difference between the diagnostic label attached to the psychiatric condition is not, in my view, material. No party submitted otherwise. In any event, there is little difference between the respective positions: on the one hand, Associate Professor Robertson considered that the second plaintiff had “depressive symptoms and cross-cutting PTSD symptoms” whilst, on the other hand, Dr Jager considered that the second plaintiff suffered from chronic PTSD. Neither expert gave evidence that the difference was material. That is emphasised by the fact that the experts agreed that “the alleged abuse was a major contributing factor to the [second plaintiff’s] psychiatric problems” irrespective of the diagnostic formulation.

I turn now to address, and make findings about, the nature of the second plaintiff’s injuries.

I accept, as the second plaintiff submitted, that he has suffered and continues to suffer from symptoms consistent with PTSD following on from the sexual abuse. To that end, I am prepared to accept that the second plaintiff has experienced symptoms including anxiousness, sadness, sleepless nights, mood swings, feelings of worthlessness, guilt and episodes of panic and nervousness that are consistent with that working diagnosis. I am, however, unpersuaded that they are as entrenched and debilitating as what the second plaintiff appears to suggest. That is partly informed by the finding that I have made about the unreliability of the second plaintiff and his evidence. It is also informed, as the second defendant argued, by the lack of any treatment undertaken or even sought by the second plaintiff.

In relation to the existence of the polysubstance abuse disorder, the second plaintiff submitted that “both experts were of the view that [he] had previously demonstrated symptoms” of that disorder. It is correct to say, as the second plaintiff did, that both experts formed the view that the second plaintiff had such a disorder. It is also correct to say, however, that they offered such diagnosis based upon, and only based upon, the second plaintiff’s self-report of his drug abuse. I have not, however, been persuaded about the nature and extent of the second plaintiff’s self-reported drug abuse. In those circumstances, I am not prepared to find that he suffered from that condition.

Given the findings that I have made, I assess general damages at $200,000.00.

The second plaintiff is entitled to interest on this amount in accordance with the principle in MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657, 663-664; [1991] HCA 3; Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54, 58-59.

For the purposes of calculating interest, I allocate 50% of those damages to the past (which takes into account that the abuse occurred around 30 years ago, and that there is an assumed life expectancy of around 37 years, according to the Median Life Expectancies Tables, 2024). The reduction in rate is to reflect the fact that I am allowing the interest over the entire period of the claim.

The calculation, therefore, is: 2% x $100,000.00 x 30 = $60,000.00.

The second plaintiff also claimed the amount of $100,000.00 for aggravated damages, given the conduct of Mr Hawkins.

The second plaintiff relied upon the summary of principles applicable, as set out in AA v PD [2022] NSWSC 1039 at [126]-[128] (‘AA’). The second defendant made no submissions about aggravated damages (except to observe that, in relation to any assessment under Part 2 of the CLA, they could not be recovered). Given the approach of the parties, I will proceed on the basis of the summary of principles from that decision.

The second plaintiff’s short submission was that, given Mr Hawkins’ conduct and the fact that he had led evidence of “his feelings of shame, insult, humiliation, embarrassment and guilt” about the abuse, which “was not subject to extensive cross-examination”, he ought to be awarded the amount claimed.

There are two difficulties with this submission, in my view. First, at least some of the evidence relied upon by the second plaintiff to support this award of damages – essentially, in connection with his drug abuse – I have not accepted. Secondly, as aggravated damages, like compensatory damages, are directed towards injury to (or hurt) feelings, the Court must take care not to “double count”. The position was explained in AA at [128]:

Here, however, I have assessed the second plaintiff’s entitlement to general damages based upon the evidence that is also relied upon to support an award of aggravated damages; that is, to the extent I have accepted the second plaintiff’s evidence, I have awarded damages for hurt feelings as part of ordinary compensatory damages: see [384], above. The second plaintiff did not identify any particular evidence that was relevant only to aggravated damages. In those circumstances, I have approached this claim on the footing that there has been an unspecified degree of injury to the second plaintiff’s feelings, and I have made appropriate allowance for this by assessing his entitlement to general damages at the upper end of what I consider to be reasonably available – consistent with the authorities referred to.

The second plaintiff claims past and future economic loss.

For the second plaintiff to recover damages for loss of earning capacity, he is required to establish that he has sustained a diminution in earning capacity which is or may be productive of a loss: Graham v Baker (1961) 106 CLR 340, 347; [1961] HCA 48; Medlin v State Government Insurance Commission (1995) 182 CLR 1, 3; [1995] HCA 5.

The claims, as set out in the statement of particulars, are as follows.

For the past, the second plaintiff claims that, by reason of “the sexual abuse” and the development of “serious psychiatric injuries, his earning capacity has been diminished”: his interest in and attendance at school waned, resulting in a decline in his “academic performance and confidence”. He alleges that he would have secured an “approximately average” result in the HSC but, because of the abuse, instead secured a result that was appreciably below that. The second plaintiff thus argues that “his vocational pathways and career progression have been severely impeded” and that, had he not been subjected to the abuse and all that followed, he likely would have earnt at least average weekly earnings.

Accordingly, the second plaintiff claims past economic loss based upon the difference between average full-time adult total earnings from 1997 to date, less the income in fact derived. The amount claimed is $718,040.00.

The second defendant submitted that any award of damages made for past economic loss should be appreciably more circumscribed than what the second plaintiff claimed, and should be limited to $100,000.00 (inclusive of superannuation) – to be awarded by way of “buffer”. Although an award of damages quantified in this way is typically encountered in assessments of loss of earning capacity into the future (as to which see Penrith City Council v Parks [2004] NSWCA 201 at [3]-[5]; Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [2]), there is “no principle which prohibits the awarding of a buffer for past economic loss in an appropriate case”: Ramsey v Denton [2021] NSWCA 310 at [61] and [112]; John XXIII College v SMA [2022] ACTCA 32 at [189].

For the future, the second plaintiff claims economic loss on the same basis – that is, the difference between his current earnings ($1,290.00 net per week) and average weekly earnings ($1,560.00 net per week), until age 70. The amount claimed is $199,894.50.

The second defendant submitted that any award of damages made for future economic loss should be limited to $50,000.00 (inclusive of superannuation). Again, the second defendant submitted that this amount should be awarded by way of “buffer”.

In relation to the second plaintiff’s retirement age, and the calculation of future economic loss to that notional date, a number of matters should be noted.

First, the second plaintiff did not give any evidence about the topic – at all. Secondly, Courts ordinarily approach the calculation of future economic loss with an assumed end point being the date that a person would be entitled to secure the “old age pension”. The entitlement to future economic loss is calculated by reference to, and is limited to, the “pension age”, as that term is defined in the Social Security Act 1991 (Cth): see s 23(5A), which defines “pension age”, in relation to a person born on or after 1 January 1957, as 67 years of age: Bridge Printery Pty Limited v Mestre [1999] NSWCA 342 at [2] (‘Bridge Printery’). Claims for future economic loss beyond that time are approached differently: Bridge Printery at [2]-[5]. Thus, although it would be open to find that the second plaintiff would have worked beyond normal retirement age in a given case, the evaluation of future economic loss beyond this time requires careful consideration of work intent and capacity beyond that age. This evaluation would need to be undertaken in line with the principles in Malec v JC Hutton Pty Limited (1990) 169 CLR 638; [1990] HCA 20.

Notwithstanding the claim advanced in the statement of particulars, however, it appears from the second plaintiff’s written submissions that the future economic loss claim is only advanced until 67 years of age (albeit that the 3% multiplier used to calculate damages thereby assumed working life until age 77). Even if that were not so, for the reasons given in [403], above, I would only award damages until 67 years of age.

As is evident from the outline of the respective cases, there is something of a chasm between the parties.

The second plaintiff’s past economic loss claim is based upon my acceptance that, in addition to having symptoms of PTSD, he developed a polysubstance use disorder – a condition that he alleges led to what I infer was his drug meddled and chaotic lifestyle, and his inability to undertake work. I have not accepted that part of the second plaintiff’s case. Rather, I have accepted that he has suffered from symptoms of PTSD, as earlier described.

I accept that the symptoms of PTSD have had some effect on the second plaintiff’s earning capacity; that is, that it has diminished to a degree. The quantification of that loss, however, is a particularly difficult exercise, given the evidence and submissions were essentially presented on the basis that his evidence in all respects should be accepted: they did not seek to distinguish between the respective conditions (at least before 2013 – the position after that time is simplified given the second plaintiff does not suggest that he abused drugs then).

Further, at least some aspects of the second plaintiff’s case were unclear. For example, the second plaintiff appears to claim that he was totally incapacitated for work and derived no income in 2004. I am quite simply unprepared to accept this to be so.

The absence of evidence, or difficulties in its quantification, do not necessarily preclude an award of damages: State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 at [66]. Nevertheless, it provides a degree of constraint to assessing this claim.

As earlier noted, the joint report expressed the opinion that, taking “into account the neuropsychological assessment that demonstrated…[the second plaintiff] had below average IQ, there has been no demonstrable adverse effect noticed on the plaintiff’s capacity for employment, earning capacity or ability to seek advancement”. Further, in the joint report, Associate Professor Robertson expressed the opinion that, based upon the self-report, there had been “instability of his employment” related to, relevantly here, “chronic depression”. Whilst I have not accepted that the second plaintiff suffers from “chronic depression”, I am prepared to accept, based upon my earlier “injury” findings, and the symptoms and disabilities I have accepted, that they have resulted in confined and limited periods where he has been unable to work or work effectively.

In the circumstances, I am prepared to find that this has equated to an inability to work for approximately four weeks per year due to the symptoms of PTSD. I do not doubt that this might have varied but, given the limitations that I have earlier referred to, I am satisfied that this more than reasonably compensates any diminution in earning capacity.

I have approximated average weekly earnings to be $1,000.00 net per week and have commenced that claim as per the statement of particulars – that is, from 1997 to date – approximately 29 years.

For completeness, it should be noted that I have recognised that the second plaintiff commenced self-employment in his lawn mowing business in 2021. Notwithstanding, I have approached the past quantification of the diminution in earning capacity in the same way: the interference in capacity would be for the same reasons, in my view. I address this further in the context of the second plaintiff’s claim for future economic loss.

The calculation, therefore, is $4,000.00 x 29 years = $116,000.00.

The second plaintiff is entitled to interest on past economic loss. The conventional method is to use the average rate of interest in s 100 of the Civil Procedure Act 2005 (NSW) for half the period on the entire amount or for the full period on half the amount: Cullen v Trappell (1980) 146 CLR 1, 19; [1980] HCA 10.

The second plaintiff accepted the above approach and invited the calculation to be made for the full period on half the amount, applying the rate of interest of 8.35%.

The calculation is: $58,000.00 x 8.35% x 29 = $140,447.00.

In my view, the claim for future economic loss should be approached and assessed in the same way – that is, an annual loss of $4,000.00 (being a weekly loss of $77.00). The second plaintiff’s claim was that, although the business “has been reasonably successful”, he “regularly” did not attend work “because of his psychological symptoms and would simply push back jobs to the next available day”.

In terms of the actuarial factors used for this calculation, the following should be noted: first, the second plaintiff accepted that there should be a discount for vicissitudes (adopting the conventional figure of 15%); and, secondly, when calculating the future economic loss, used the 3% multiplier for 30 years (1038.1), rather than for 20 years (787.9).

The calculation is: $77.00 x 787.9 x 0.85 = $51,568.00.

The second plaintiff claimed damages for loss of employer funded superannuation entitlements and claimed those damages by adopting the “rule of thumb” rates – namely, 11% for the past and 14% for the future.

The second defendant did not contest the “rule of thumb” rates claimed by the second plaintiff and, further, took no objection to the fact that, beyond 2021, the second plaintiff was self-employed and would not ordinarily have those entitlements.

I allow $12,760.00 – being 11% of the award for past loss of earning capacity (11% x $116,000.00).

Interest on this amount, adopting the same approach for interest on past economic loss, is $15,449.00 (the calculation is $6,380 x 8.35% x 29).

I allow $7,163.00 – being 14% of the award for future loss of earning capacity.

The second plaintiff seeks damages for out-of-pocket expenses.

There is no claim for past expenses because none have been incurred.

For the future, the second plaintiff claims the amount of $150,764.00, essentially to cover ongoing psychiatric and psychological consultations for the balance of his projected life expectancy and for the cost of consultations with his general practitioner, and medication. Specifically, the damages sought as set out in the statement of particulars filed 27 March 2025 are as follows:

In my view, this claim is a significantly overinflated one, for the following reasons.

First, as I have noted, the second plaintiff has not engaged in any form of treatment – at all. Nor is there any suggestion that he has made any enquiry to do so.

Secondly, the second plaintiff gave no evidence in his evidentiary statements – at all – about his desire to seek any treatment. It is simply unknown whether he is even aware that he has made such a claim. To the extent that there is a history contained in Associate Professor Robertson’s report that the second plaintiff “has indicated his motivation to engage in psychological therapy”, that history was not relied upon during submissions. Separately, given it was not elaborated upon by the second plaintiff, I do not accept it.

Thirdly, in relation to depressive illnesses, Associate Professor Robertson expressed the opinion that such illnesses “become more brittle as a patient ages with declining benefits from treatment”. Thus, to the extent that “depressive” type symptoms are within the disabilities I have accepted, this evidence tends to doubt its usefulness, at least for the symptoms of that broad kind.

Fourthly, to the extent that there was a claim for “medication”, the psychiatric experts noted in the joint report that the second plaintiff had “communicated reluctance to take psychotropic medication”.

Fifthly, the psychiatric experts addressed future treatment in these more constrained terms:

In my view, given the above matters, an appropriate award of damages for this head is the amount of $10,000.00.

The following table summarises the common law damages I have awarded:

Given there was a contest about whether vicarious liability arose on the facts and was legally available, I have undertaken an assessment of damages under Part 2 of the CLA, as follows.

In terms of non-economic loss, this is to be assessed in accordance with s 16 of the CLA. That section essentially requires a two-step process – namely, orthodox findings about non-economic loss and then a comparison to a most extreme case: Southgate v Waterford (1990) 21 NSWLR 427, 440; Lloyd v Thornbury [2019] NSWCA 154 at [162].

Picking up the findings that I have made in connection with general damages, I assess non-economic loss at 30% of a most extreme case. That translates into award of damages of $175,000.00.

Otherwise, the substantive findings across each of the heads of damages for the common law claim apply here, albeit that there is no entitlement to interest on non-economic loss and a different discount rate and multiplier is required for the calculation of future losses.

The following summarises the CLA damages I have awarded:

In relation to this assessment, I add the following:

The orders and judgment to be entered are addressed later: see [569], below.

The second defendant, by further amended second cross-claim filed 31 July 2025 (‘the FA2XC’), seeks contribution from the first defendant pursuant to s 5 of the LRMP Act.

The second defendant’s claim for contribution is founded upon two contentions, summarised for introductory purposes as follows.

First, the overarching and primary contention is that, whilst the second defendant was the authority that operated the school, the school was “jointly operated and/or administered” with the first defendant, such that the “care, control and management” of it was shared with the first defendant: FA2XC at [24], [28](a) and (b). On this argument, the first defendant owed the second plaintiff a duty of care that was co-extensive with theirs because of the first defendant’s “operational control” of the school and their appointment, relevantly, of Principals during the time of the second plaintiff’s enrolment: FA2XC at [30].

Secondly, the additional or alternative contention is that, if the first defendant was not jointly operating the school with it, the acts and omissions of the school Principals could be attributed to the first defendant by application of the principles of agency: FA2XC at [49](b).

The FA2XC raises two sequential issues. The first issue is whether the first defendant is “a tort-feasor who…would if sued have been, liable in respect of the same damage” given the second plaintiff has not pursued a claim against the first defendant: s 5(1)(c) of the LRMP Act. The short argument of the second defendant is that the first defendant would be directly liable to the second plaintiff – based upon one or both of its contentions – with the consequence that it is a tortfeasor who would, if sued, have been liable to him. Assuming the first defendant is within that statutory description, the second issue involves determining “the amount of contribution recoverable” by the second defendant from the first defendant: s 5(2) of the LRMP Act.

When undertaking this last step – viz., an apportionment of liability – the Court is required to evaluate the relative blameworthiness and relevant causal potency of the negligence of each party: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, 494; Wynbergen v Hoyts Corporation Ltd [1997] HCA 53; (1997) 72 ALJR 65, 68; James Hardie & Co Pty Limited v Roberts (1999) 47 NSWLR 425; [1999] NSWCA 314 at [90]. Findings of this kind ‒ that is, findings built upon the primary findings of liability – are minimum preconditions to the making of an apportionment under ss 5(1)(c) and 5(2) of LRMP Act: Amaca Pty Ltd v State of NSW [2003] HCA 44; (2003) 77 ALJR 1509 at [20].

Before addressing the substance of the second defendant’s arguments, the following matters of context should presently be noted about the claim for statutory contribution.

First, each defendant accepted that, independently of any duty owed by the school authority (at a minimum here, the second defendant), the school Principal would owe the second plaintiff a duty of care. The basis for this concession on the part of the second defendant derived from the decision in State of Victoria v Subramanian (2008) 19 VR 335; [2008] VSC 9 at [9]-[10]. It may also be traced to Introvigne at 263 and 279 (see also the general discussion in Kaplan v State of Victoria (No 8) [2023] FCA 1092 at [119]-[124]). Notwithstanding, the second defendant did not pursue any claim for contribution directly against one or other school Principal.

Secondly, the second defendant accepted that, to the extent obligations were cast by statute, they were not directed to the first defendant, but to it. In relation to statutory obligations, the second defendant accepted that, for at least part of the claims brought by one or other plaintiff, the Education and Public Instruction Act 1987 (NSW) applied to it and that, pursuant to that Act, the second defendant was a “registered school” within the meaning of Part 4 and that the students were enrolled with it. Similar provisions were also contained within the successor Act (the Education Reform Act 1990 (NSW) or, as it became known, the Education Act 1990 (NSW)). There is, nevertheless, nothing in the statutory scheme that precludes the kind of arrangement that is here argued to exist nor, as a corollary, anything in the statutory scheme that precludes the existence of a co-extensive duty of care, as the second defendant submitted. The first defendant did not submit otherwise.

Thirdly, aspects of the second defendant’s claim are somewhat unusual: it does not rely upon any agreement and, to the extent that there was an agreement between the parties that dealt with the operation of the school, the second defendant sought to side-step it by suggesting that it was “non-exhaustive”. At no point, however, did the second defendant actually identify what it alleged was an exhaustive statement of that agreement. Rather, the second defendant’s approach was merely to argue that the evidence established various features that were said to indicate “operational involvement” by the first defendant in the school and, thus, invite an inference to be drawn that what occurred was the first defendant jointly operating the school. This argument was identified as merely a factual one; to be clear, it did not involve any suggestion, or any claim that, one or other of these “features” were in any way contractual.

Fourthly, given the second defendant’s approach was unconstrained by any agreement, the means of proving the various features argued to establish “operational involvement” tended to draw upon a vast array of material including “views”, “expectations”, “beliefs” or “opinions” expressed by a number of individuals about aspects of the “arrangements” and, on occasions, sought to call in aid “views” or “opinions” apparently expressed by groups of individuals. An example of the latter approach is evident from the FA2XC at [14] where, notwithstanding the existence of Document MS/003 and the agreement contained within it (see [458]ff, below), the second defendant alleged that “there remained a strongly held view by many staff and others (including parents)…that the school was still in the control” of the first defendant. The permissibility of the second defendant’s approach and reliance upon these matters – putting to one side its form – in the teeth of the agreement was not identified, merely assumed. There is every reason to doubt the legitimacy of the approach and think that much – if not most – of the evidence relied upon, such as it is, is irrelevant: see generally Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [35]. Given the conclusion I have reached, however, it is unnecessary to address it further.

Fifthly, the means through which the second defendant’s “joint operation” argument (or, as it was sometimes expressed during submissions, “operational involvement”) was to be assessed was never clearly identified, particularly as the case advanced was not based upon the existence of an agreement. Nor did the second defendant call in aid any relevant statutory provision fulfilled or discharged by the first defendant that had that result. The premise of the case was simply that if one or more of the matters relied upon were proven, it would be open to find a “joint operation” without any clear explanation for why that should follow in the circumstances – one of which was the fact that the second defendant was the school authority and was operating, within the relevant statutory framework, the school. The overall approach of the second defendant may be doubted but, given the conclusion I have reached, it is unnecessary to address it further.

I now turn to discuss the agreement between the parties.

On 14 September 1989, an agreement was entered into between the first and second defendant, titled “Basic Principles for an Agreement between Religious Institutes and the Diocese of Parramatta in respect of the Responsibility for the Conduct, Operation and Financial Management of Catholic Systemic Schools and the Services of Religious Personnel in Catholic Systemic Schools”. It is convenient to describe the agreement, as the parties did, as “Document MS/003”.

The parties adopted opposite positions on the effect of this agreement.

The second defendant’s position was that the agreement was essentially a “non-exhaustive statement of the agreement” between the parties relating to the operation of the school – albeit that, as noted, it did not plead what it alleged was an “exhaustive” statement of the agreement. Consistent with its argued characterisation, the second defendant placed confined reliance upon Document MS/003 in the FA2XC, as follows:

The first defendant, on the other hand, submitted that the terms of this agreement – notably, cl 1.1 – provided a complete answer to the argument that there was operational control vested in the first defendant.

Given the stance of the parties, it is useful to set out the terms relied upon and address the submissions so far as they relate to the meaning of particular clauses within Document MS/003.

Document MS/003 has three parts (A-C), summarised as follows:

Before dealing with the way in which the defendants sought to deploy or distance themselves from the terms of Document MS/003, the following four matters should be noted that were either common ground or admitted in connection with it. First, Document MS/003 “was in effect between 1990 and 1993”. Secondly, for the purposes of Document MS/003, the school was a “Catholic systemic school”. Thirdly, Document MS/003 “was applicable to the arrangements under which the school was governed and conducted”. Fourthly, Document MS/003 refers to the CEO more fully as “the [CEO] of the Diocese of Parramatta”. The precise status of the CEO was not the subject of submission, nor did either defendant seek any specific finding about that entity other than in connection with the employment of Mr Hawkins: the matter proceeded on the basis that the CEO was, for all intents and purposes, the second defendant.

The submissions of the parties were confined to the preamble to, and Part A of, Document MS/003 – specifically, to two clauses within that part: cll 1.1 and 2.1.

In relation to the preamble, the second defendant relied upon the part of the preamble which has been underlined, and which is relevantly extracted below:

The second defendant submitted that the above was a “clause” incorporated into the agreement. A more accurate description is that it forms part of the preamble (or recitals) to the agreement: irrespective of whether it is classifiable as a preamble or a recital, its function is merely to provide context for the agreement.

Putting that matter to one side, the materiality of this part of the preamble was not developed. It is possible that the argument was that, because on other occasions and in other situations there was an “acceptance of responsibility” for a particular school, that fact was in some way relevant to the determination of who conducted (or accepted “responsibility for”) this school. Assuming that was the argument, why that result followed was not explained. Nor was it explained how that part of the preamble could be used to control the meaning of clauses within the agreement itself (as to which see Franklins Pty Limited v Metcash Trading Limited (2009) 76 NSWLR 603, [2009] NSWCA 407 at [29] and [379]; OneSteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1; [2013] NSWCA 27 at [63]). That is particularly the case when, as I later explain, the meaning of clause 1.1 was agreed upon during submissions: see [473], below.

Given the above, I regard the statement relied upon within the preamble to be of negligible assistance in determining whether, as the second defendant argued, the first defendant was jointly operating the school.

I turn now to address the various clauses within Document MS/003 that were relied upon or referred to by the parties that were argued to throw light on the “joint operation” issue.

Clause 1.1 was at the forefront of the arguments of both parties. Relevantly, that clause provides:

The second defendant relied upon clause 1.1.2 by arguing that, in substance, this clause confirmed the responsibility of the Principal for the “conduct, operation and financial management” of the school. Perhaps, in a limited way, that might strictly be so: subject to who the Principal “is accountable to” – that is what the clause says. But the meaning of clause 1.1 involves a somewhat broader inquiry: see the discussion in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 at [46]-[50].

The operation and meaning of cl 1.1 is as follows.

First, cl 1.1.2 must be read with cl 1.1.1 – which essentially provides that the Director of Schools (being the delegate of the Bishop) “is responsible for the conduct, operation and financial management” of the school. Thereafter, a Principal is “responsible” for such conduct by virtue of cl 1.1.2, but only “as delegated by the Director of Schools” (the submissions did not address whether “as delegated” meant that specific delegation from the Director to the Principal was required to occur or whether it meant that delegation of those matters was taken to have occurred. Nothing turns upon this).

Secondly, upon delegation by the Director of Schools under cl 1.1.2, the Principal “is accountable to the Director [of Schools]”.

Thirdly, cl 1.1.3 serves to confirm that all personnel within the school are required to comply with, inter alia, the directives and policies of the Director of Schools. That overall explanation of the meaning and operation of these clauses was, in substance, argued by the first defendant and accepted by Mr Sheller SC during submissions.

In my view, this clause makes plain that upon (or by) delegation of the “conduct, operation and financial management” of the school, the Principal remains “accountable” to the Director of Schools. In short, the Principal reports and remains answerable to the Director, but is otherwise responsible for those matters identified.

However, why – in and of itself – cl 1.2 demonstrates that the first defendant was operating the school (which presumably is what the submission is directed towards establishing) was unexplained. To be clear, I do not accept the second defendant’s submission that it does.

The second defendant’s submissions did not squarely address that next step, but merely observed the existence of the clauses in Document MS/003 that I have identified and, having done so, submitted that there were two “instances” of the “relative lack of importance placed upon” Document MS/003 “after this agreement” by the first defendant. These “instances” are addressed below (see [488]) but, even assuming that was expressed as a “view” by “the first defendant”, precisely how that advanced the matter was neither explained nor self-evident.

The second defendant next relied upon cl 2.1.3 of Document MS/003. Clause 2.1, which is headed “Service of Religious in Catholic Systemic Schools”, (relevantly) provides:

The second defendant, although setting out cl 2.1.3 in its written submissions, did not make any submissions about it. In those circumstances, nothing more need be said about it here. However, I will return to it later when addressing the second defendant’s argument about the appointment of the Principals to the school (see [503]ff, below).

The second defendant made numerous other submissions relating to Document MS/003 – some relate solely to the document itself, whereas others relate to the document informed by evidence said to aid the second defendant’s “operational control” arguments. The arguments relating solely to the document are dealt with in what follows, and the other arguments are dealt with later (see [516]ff, below).

The second defendant argued that Document MS/003 was a “non-exhaustive statement of the agreement” and that this was evident by the document not addressing, by way of example, “the operation of Parramatta Marist” and, by way of further example, providing “indemnities” in their favour.

As to the example that the agreement does not address “the operation of Parramatta Marist”, it is difficult to grasp the overall thrust of this submission given the terms of cl 1.1 of Document MS/003 specifically address the “conduct, operation and financial management” of Catholic systemic schools – the school being within that description, as the second defendant expressly admitted.

As to the example that the agreement does not address “indemnities”, I regard the presence or otherwise of indemnities as immaterial. Whether parties to an agreement include an indemnity in that agreement does not, in my view, bear in any way upon whether the agreement can be characterised as “exhaustive”. The absence of an indemnity would simply mean that the general law would ordinarily apply in connection with a failure to perform a term of the agreement, and that allocation of responsibility for any loss and damage associated with that failure would occur in that way.

The second defendant also sought to suggest that it was relevant to consider what a Provincial Council in 1987 (that is, some two years before Document MS/003 was entered) thought about a proposed draft of Document MS/003, as well as two “instances” – in 1996 and then in 1998 – where the first defendant was argued to have placed a “lack of importance” upon that document: FA2XC at [11] and [13].

In relation to the reference to the proposed draft of Document MS/003, nothing more was said about it aside from pointing out that there was a Provincial Council meeting on 30 October 1987 where that draft was apparently discussed. My consideration of these matters will be similarly constrained.

In relation to the two “instances” where the first defendant was argued to have placed a “lack of importance” on Document MS/003, there are numerous difficulties with the submission, one of which is that the phrase lacks precision. Its meaning (and its argued effect upon Document MS/003) was not explained. For example, it was not suggested that the agreement had been repudiated, varied or that, say, the first defendant was estopped in some way from relying upon the terms of that agreement, by its conduct or otherwise. Nor was it suggested that, in some unspecified way, despite the objective theory of contract and the confined way in which post-contractual conduct can be used, that any such conduct was in some way “interpretive” of Document MS/003 or a particular term within it.

Another difficulty with the submission relates to its timing. By its terms, the argument invites a finding about the first defendant apparently expressing the view that Document MS/003 (which was entered in 1989) lacked “importance”, in 1996 and in 1998.

A further difficulty with this submission relates to the evidence itself. This can be sufficiently illustrated by reference to the 1998 “instance” – a letter from Brother Green dated 4 August 1998 to Greg Nethery, Director of Human Services from the CEO – which made suggestions on a “draft of the Principal Appraisal document”. The second defendant relies upon statements in that letter by Brother Green, including: “Where a religious institute has been given the conduct of a school by the Bishop – such as at Parramatta Marist High School…” and the performance of the Principal as being “a matter of responsibility for the institute as well as for the Diocese”.

As the first defendant pointed out, much of what was raised was contested by Mr Nethery in his letter of response dated 28 August 1998, particularly in connection with “appropriate authority structures and lines of accountability for…Catholic systemic schools within the Diocese of Parramatta”. His response, inter alia, was:

Thus, passing over all the earlier difficulties with this submission and the assumption that Brother Green was in fact expressing a “lack of importance” in Document MS/003, the evidence ultimately amounts to no more than one person’s “understanding” of what aspects of Document MS/003 were said to mean. In my view, this evidence is legally and factually irrelevant.

I turn now to address the various matters argued by the second defendant to support the conclusion that the school was jointly operated by the first and second defendants. There were four such matters:

The combination of the above matters was said to mandate the conclusion that the first and second defendants “jointly operated” the school (or exercised “shared control” over it: FA2XC at [49](a)): FA2XC at [23]-[24].

As I will explain in what follows, there was no significant contest in connection with the first and fourth matters; rather, the substantive contest was in connection with the second and third matters.

In relation to the first matter, the evidence about it was either agreed or not significantly in issue. What follows are my findings.

The first defendant is the body corporate, pursuant to s 4 of the Roman Catholic Church Communities Lands Act 1942 (NSW), for the unincorporated association known as the Marist Brothers of the Schools. The first defendant holds the assets of the Marist Brothers and is responsible for their operations in Australia (the parties accepted that there was no need to distinguish between the body corporate and the unincorporated association and that, for all purposes, it could simply be considered as the first defendant).

The Provincial is both the canonical and civil leader of the Marist Brothers Order in Australia and has direct authority over all Marist Brothers in Australia. The Provincial Council has six members (including the Vice Provincial) who advise the Provincial.

As earlier noted (see [33], above), the Marist Brothers came to Australia in 1872 and the principal focus of the Marist ministry “has been primary and secondary education, provided as part of the Australian Catholic school system”.

The second defendant submitted, and the first defendant accepted, that, save for one lot owned by the first defendant, the second defendant owned the land upon which the school at Westmead was and is situated.

In the FA2XC, the second defendant alleged that the land owned by the first defendant was the lot that covered “the swimming pool and playing fields”. The second defendant also sought to rely upon the evidence from Brother Alexis, which was somewhat less specific than what was pleaded, and was as follows:

In the end, no significant reliance was placed upon this evidence or the ownership of the land given the generality of that evidence. The first defendant submitted that, given the overall claim was not an occupier’s liability claim, the ownership of land was irrelevant. Whilst I accept that the materiality of land ownership was limited, it has some relevance in my view: it provides some evidence about links between the first and second defendant, there being no suggestion that the use of the land was an arm’s length transaction.

The second defendant submitted that the Principal – themselves a member of the first defendant’s Order – was an “appointee” of the first defendant. The argument was that the appointment of a person to that position was made, and only made, by the Provincial and, thus, by the first defendant. The argument was that not only was this a role and responsibility of the first defendant, but it also was a practical illustration of the operational control exercised by it.

Building upon this, the second defendant submitted that the first defendant “oversaw” the Principal’s role in two ways – first, through the Provincial Council and, secondly, through what it argued was “direct oversight” by attendances and visits upon the Principal from time to time.

The first defendant contested each step in this argument and submitted that, whilst it had a role in identifying a candidate suitable for the position as school Principal and may, in fact, recommend such a person, it was not ultimately the first defendant’s decision to appoint that person to that role; rather, the power to make that appointment vested in the second defendant. Further, in relation to “oversight”, the first defendant submitted that whatever interactions were had between the Provincial Council, the Provincial (or his delegate) and the Principal, it was appreciably less formal than what the second defendant argued, and did not amount to oversight or supervision.

The second defendant relied upon the evidence from Brother Alexis to support the finding that it sought – namely, that the Provincial would appoint and announce the Principal:

In my view, contrary to what was argued by the second defendant, the evidence does not establish that the Provincial (and, thus, the first defendant) appointed the Principal. Rather, the evidence tends to establish that the Provincial would make a recommendation and consult with the Director of the CEO of the Diocese, who was “responsible” for that appointment. The fact that the Provincial rather than, say, the Director of the CEO, would make the announcement does not materially add to, less still alter, the position.

The second defendant also relied upon the evidence from Mr Mulligan to the effect that he was “appointed” by the Provincial as the Principal of the school in 1986: that is, he was “told it by the Provincial rather than being asked by the Provincial” and that the “Provincial decided to” appoint him to the role.

I am unpersuaded that this evidence supports the second defendant’s contention that the appointment of the Principal was made by the Provincial, in the sense that the Provincial was vested with the power to appoint the Principal. Rather, the evidence was directed to how, within the first defendant, Mr Mulligan was selected for the position of school Principal. In my view, that evidence is not at odds with what Brother Alexis said – namely, that the Provincial and the Provincial Council would make a recommendation and, in the circumstances, that that recommendation was Mr Mulligan.

Further, that evidence is not, I consider, at odds with cl 2.1.3 of Document MS/003, which provides that the religious institute “selects, appoints and notifies the Director of schools of the placement…the Director confirms the appointment”, as the first defendant argued.

The second defendant also pointed out that there were discussions about the appointment of Brother Green as Principal, which are contained within the minutes of Provincial Council meetings. The various entries within the minutes are not significantly different. For that reason, it is presently sufficient to refer only to the most recent minutes of the meeting on 28 and 29 July 1991 which, under the heading “appointments”, records that:

Again, I do not consider that this evidence puts a different complexion on the arrangements for appointing a Principal, as I have described above.

In the end, the evidence relied upon by the second defendant fails to persuade me that the power to appoint a Principal at the school was vested in the first defendant. Rather, in my view, consistent with what the first defendant argued and the terms of Document MS/003, what occurred was no more than the first defendant selecting who they considered was an appropriate appointee but that the decision on whether they should be appointed was ultimately to be made by the second defendant. In so concluding, it should be emphasised that it was neither pleaded, nor suggested, that there was any variation to the terms of Document MS/003.

To buttress its argument, the second defendant sought to demonstrate that the practical operation of the school vested in the first defendant. It argued that this was apparent having regard to: first, witnesses who were said to have essentially “admitted” as much; secondly, through the first defendant’s oversight of the school Principals and visitations to them; and, thirdly, through the first defendant devising and implementing child protection policies.

I will deal with each of these arguments in turn.

The second defendant argued that the effect of the evidence from several witnesses – including those from, or aligned to, the first defendant – was such that they served to demonstrate that the first defendant exercised a considerable measure of “operational control” in connection with the Principal (by the fact of its appointment of them) and the school itself.

I have earlier addressed the “appointment” arguments. What follows addresses the second defendant’s submissions directed to “concessions” made by witnesses – Brother Alexis and Mr Mulligan – about who was broadly “responsible for the day-to-day operations of the school”.

Thus, the second defendant submitted that Brother Alexis agreed that the school was “operated” by the first defendant “on behalf of” the second defendant. I do not accept the submission that this evidence was demonstrative of the school being operated by the first defendant, in the way that submission was argued.

In my view, this evidence has minimal – to no – weight on its own for the following four reasons. First, it says nothing about what operating “on behalf of” the second defendant means. Secondly, although raised in a slightly different context to the present, the High Court has cautioned against the use of words or expressions such as “for”, “on behalf of” or “for the benefit of” as a means of defining or establishing a relationship between parties, given they have no “single and fixed meaning”: Sweeney at [16]-[17], [19]; Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-Operative Assurance Co of Australia Ltd (1931) 46 CLR 41, 50; [1931] HCA 53. Thirdly, although (again) raised in a slightly different context to the present, to approach the matter in this way, and to use the terms as a substitute for analysis, is to “invert the order of inquiry, and by so doing to beg the question, and allow linguistics to determine legal rights”: Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432, 458; [1969] HCA 4 cited in Bird at [194]. Fourthly, to the extent that Brother Alexis gave evidence that explained the basis for that arrangement, it was confined to the role that the first defendant had in the appointment of a Principal to the school and ownership of land – evidence that has been dealt with elsewhere.

A broadly similar submission was made by the second defendant in relation to Mr Mulligan’s evidence: it was argued that Mr Mulligan admitted during his cross-examination that, when he was Principal of the school between 1986 and 1991, he was “responsible for the day to day operations of the school”. The evidence, including evidence given immediately before it, was as follows:

I regard that evidence as unexceptional given what a school Principal would ordinarily be expected to do. Further, in the context of the present issue, I consider the evidence to be of limited significance given its generality and, more directly, having regard to the terms of cl 1.1 of Document MS/003 with which it conforms.

During submissions in reply, Mr Sheller SC also argued that various aspects of the evidence that Dr Mark Turkington gave when cross-examined was consistent with the “joint operation” of the school by the defendants, which he argued existed at the relevant time. The overall submission put was that the school was not simply conducted by the second defendant – to adopt the language used by Mr Sheller SC, “this wasn’t a Diocesan-run show” – but rather something of a collaborative endeavour (during the period when Brother Green was the Principal) or with a degree of resistance (during the period when Mr Mulligan was the Principal).

Ultimately, I am unpersuaded by this submission, essentially for two reasons. First, much of the evidence referred to and relied upon by the second defendant derived from cross-examination about the meaning of terms within Document MS/003 – and, putting to one side the doubtful legitimacy of such an approach, there was no clear separation between the evidence given about the meaning of the terms within the agreement and evidence that was not elicited on that footing. Secondly, the subjective characterisation of the relationship by Dr Turkington is itself problematic, and for the reasons given in [519], above.

The second defendant also sought to emphasise the practical involvement of the Provincial Council (and, thus, the first defendant) in the running of the school, including through issues of oversight and visitations as well as child protection. Numerous submissions were advanced on this broad topic. Before addressing them, it is important to note the following three matters.

First, the second defendant’s submissions ignored altogether Document MS/003 – perhaps reflecting the fact that its submissions and case more generally were premised upon its argument that that agreement was “non-exhaustive”. Secondly, the submissions did not engage at all with the source of the power to undertake visitations or to hold meetings with a school Principal and, importantly, to give directions to them that they were required to comply with when – and if – they were given. Thirdly, it was not suggested, nor pleaded, that the first defendant assumed some kind of supervisory responsibility which had been accepted by the second defendant.

I turn now to address the submissions.

The first group of submissions were directed to “the expectation of the Provincial Council” that the Principal, or the school itself, would do certain things – namely, “promote child safety” (including in connection with the school’s sports program), have systems “in the area of child protection” and that Principals “who were aware of physical abuse” would take action. These submissions had their foundation in the evidence given by Brother Alexis, including the following:

In relation to this group of submissions, I am unpersuaded about the usefulness of this evidence given it is premised upon “expectation” rather than, say, the existence of a power over the school Principal across these domains and the exercise of that power by giving directions. Put slightly differently, the fact there is an “expectation” says nothing about what informed it and, thus, whether that expectation was reasonably and legitimately held. The evidence was also pitched at a somewhat general level. For example, in relation to the “expectation” apparently held by the Provincial Council that Principals who were aware of physical abuse would take action, the second defendant relied upon Brother Alexis’ evidence that he “would assume that the [P]rincipal was doing the standard supervision that was carried out in our schools, whether it's physical activity or educational”.

It follows that I do not accept, as the second defendant argued, that the various matters argued are demonstrative of any form of “joint operation”.

The second defendant next relied upon the evidence that there was a body known as the Education Commission which, according to Brother Alexis, was “responsible for the oversight of the educational work of our schools, and the expectations of government and church”.

To contextualise this submission, the evidence relied upon was elicited during the cross-examination of Brother Alexis about minutes of a meeting of the Provincial Council in 1980 and a report provided by the Education Commission referred to in those minutes. Having had his attention drawn to those minutes and the entry contained within it about the Education Commission, Brother Alexis gave the following evidence:

Although the submission advanced was made in the terms identified in [530] above, it did not explain why the existence of that body was presently relevant. Nor did the cross-examination descend to determining whether the reference to “our schools” extended to Catholic systemic schools or only to schools that were in fact wholly conducted by the first defendant.

Finally, the second defendant relied upon meetings and visitations that were arranged by the Provincial Council and involved the Provincial, or his representative, periodically visiting the school and, in doing so, meeting with the Principal and/or Deputy Principal.

In relation to these meetings and visitations, the second defendant relied upon the evidence from Brother Alexis, including as follows:

The second defendant submitted that, to the extent Brother Alexis sought to downplay the significance of the visitations and meetings in his further evidentiary statement dated 8 August 2025, that the Court should not accept that evidence and should be cautious about acting upon his oral evidence given on 20 August 2025 (to the extent that it sought to qualify or undercut the evidence relied upon by the second defendant).

I do not regard Brother Alexis’ evidence given on the first occasion as materially different to his evidence given on the second occasion and, further, am unpersuaded that, as the second defendant at least implicitly sought to argue, any apparent change or different emphasis reflects adversely upon Brother Alexis and his evidence.

The second defendant also sought to rely upon evidence given by Brother Crowe, arguing that it tended to support its argument about “joint operation” and in relation to visitations and meetings more generally.

In relation to visitations or meetings, this can best be illustrated by the cross-examination of Brother Crowe and his attendances at the school when Mr Mulligan was the Principal – which was as follows:

I return now to the second defendant’s submission about visitations and meetings.

It may be accepted that there were meetings, visitations and discussions between the Provincial (or his representative) and the school Principal from time to time, as the second defendant argued. That said, the precise basis for having them was not identified. It was not, however, suggested there was any obligation – legal or otherwise – for these to occur. To the same end, it can also be accepted that there were discussions of a general kind, including about “child abuse matters” and “educational matters”.

Further, precisely why these visits – whenever they might have been – translated into the first defendant jointly operating the school was never actually identified by the second defendant: the thrust of the case seems to be that, simply because there were episodic attendances or meetings and general discussions, it necessarily followed that the taking of those “steps” was demonstrative of joint operation of the school itself. That is a submission that I am unable to accept. I am also unable to accept the submission for each of the reasons identified in [525], above.

I add the following. The evidence from Ms Crennan was that she was appointed an area administrator at the CEO in 1993. As earlier noted, she became involved in dealing with Mr Hawkins following a complaint being made about him in September 1993: see [54], above. Her evidence, which I accept, puts a different complexion upon the arrangements to those sought to be advocated by the second defendant, and includes the following:

I consider that arrangement to be in line with the terms of cl 1.1 of Document MS/003. Ms Crennan’s evidence is a further reason why I am unable to accept the second defendant’s arguments about oversight, visitations and meetings.

The second defendant made multiple submissions about, or in connection with, child abuse matters or policies.

These included a submission that the first defendant, at least by the late 1980s, was “confronted with a large number of complaints of child sexual abuse” which led to its making changes within its own structures and improving its child protection strategies by way of response. It also included a submission that the Provincial Council was “practically involved in the operation of its various schools…to ensure this emphasis on child safety carried through”. To this end, the second defendant argued that it was the “expectation of the Provincial Council” that the school Principal would take active steps, for example, “to promote child safety” and, by way of further example, to “implement adequate supervision and be receiving update reports from the Provincial and from the Bishop’s Committee in the area of child protection”.

The matters raised in these submissions are, in my view, of limited significance and do not demonstrate, as the second defendant argued, the first defendant having joint control of the school. That is for the following reasons.

First, as noted and addressed elsewhere, evidence premised upon “expectation” is, I consider, of limited use absent any evidence explaining the basis for that expectation. Here, it is to be remembered that there is no suggestion of there being any obligation – legal or otherwise – for the first defendant to develop such policies and implement and enforce them in the school. Secondly, and overlapping with this last matter, the obligation to devise these policies rests upon the school authority, which is what in fact occurred (as the first defendant argued: see the document titled “Child Protection Guidelines for Catholic Schools: September 1987 – Notification of Child Sexual Assault and Other Forms of Child Abuse”). Thirdly, given the organisational and reporting structures imposed by cl 1.1.3 of Document MS/003, the obligation was upon the Principal to comply with this policy, and other like policies, by reason of that clause. Fourthly, the fact that the first defendant was concurrently developing policies across various fields, including child protection, on its own and was making them available is some evidence of good practice but, in the context of the present argument, I regard it as neutral.

As earlier noted, the second defendant argued that, independently of or in addition to any liability that the first defendant has through its joint operation of the school, the first defendant is directly liable for the acts and omissions of the school Principals by the engagement of the principles of agency.

That “case” is located in the FA2XC at [49](b) under the heading “causation”, and is somewhat compressed in its form. By its terms, it alleges that the first defendant was “liable for the acts and/or omissions of its appointed Principal and Deputy Principals, and other religious Brothers appointed to positions” at the school.

The second defendant’s explanation for the engagement of the principles of agency was identified in its written submissions, as follows:

Notwithstanding the above, Mr Sheller SC confirmed during submissions that the second defendant did not seek to impose a superadded requirement to its case based on “joint operation” to the effect that, having established that fact, it was thereafter required to attribute the acts of the school Principals in this way. Rather, agency was a separate, and freestanding, basis for the first defendant to be found (directly) liable.

The starting point in any analysis must commence with a clear identification of the relationship between the first defendant (as Principal) and the school Principal (as agent). The second defendant accepted that such a relationship was required to be established by conferral of authority by a Principal upon an agent – something that could occur expressly or impliedly, or by ratification (see Peter Watts and FMB Reynolds, Bowstead & Reynolds on Agency (23rd ed, 2024, Sweet & Maxwell) at 2.1 (‘Bowstead on Agency’)).

At one point, however, the second defendant tended to suggest that agency could be created by a less orthodox approach: namely, if it were established that person A was the “embodiment” of person B. It was said that that means of finding the existence of a relationship of agency was supported by what was said in Tesco Supermarkets Ltd v Nattrass [1972] AC 153, 170. During submissions in reply, however, Mr Sheller SC clarified that he only sought to establish the relationship by the orthodox means identified in [552], above.

As a result, given there is no question about ratification and no evidence to support a finding that there was an express conferral of authority by the first defendant (nor a submission that there was), the issue distils to whether there was impliedly a conferral of authority by the first defendant on the school Principal. Specifically, given the acceptance by the second defendant as to the applicability of the principle from Bowstead on Agency earlier referred to at [552], the implication is to be derived from “the conduct or situation” of the parties.

The evidence which the second defendant relied upon to support that finding was limited. It was argued that the appointment of the school Principal, the “relationship” between the Principal – who, the second defendant emphasised, was himself a Marist Brother – and the Provincial (and Provincial Council) and the dealings between them established that there was, on the part of the Principal, an “obligation to report matters to”, or “to communicate” with, the Provincial and Provincial Council.

During submissions, Mr Sheller SC “commended” the evidence given by Brother Alexis for this part of his argument. That evidence has largely been set out when dealing with the second defendant’s submissions. The argument here mounted was to the effect that, given the various matters relied upon to support a “joint operation”, the Court would also infer and find that the first defendant impliedly conferred authority upon each of the school Principals.

I do not accept this submission and, to be clear, do not accept that it should be implied from these matters that the first defendant conferred authority upon a school Principal, for the following reasons.

First, I have not accepted the second and third “matters” or any of the arguments directed to supporting findings consistent with each of those “matters” said to result in “joint operation” of the school (the first and the fourth were not argued to have any impact upon the second defendant’s agency argument). Necessarily, therefore, they cannot aid in establishing “agency”.

Secondly, although the second defendant emphasised that the school Principal was a Marist Brother, the submission did not go on to identify the materiality of that fact in the present context, nor was there any reference to any evidence that, relevantly here, illuminated any particular aspect of being a member of that Order.

Thirdly, to the extent that the second defendant rested this argument on a so-called “duty to communicate”, that phrase represented no more than the endpoint of the argument. It did not establish the necessary factual matters to support a finding in those terms. To the extent it was suggested to be a finding that should be made, I am not prepared to make it – based as it was upon the same evidence (commonly couched in terms of “expectation”) that was argued to support findings about other matters – which I have earlier rejected.

Fourthly, the submission simply ignored the terms of Document MS/003 and the operational and reporting structures imposed by that agreement through cl 1.1. To be clear, no attempt was made to reconcile this argument with the terms of that agreement. For example, and as earlier noted, by cl 1.1.2 of Document MS/003, the Principal “is accountable to the Director [of Schools]” and, by cl 1.1, is to “abide by and comply with”, inter alia, the directives, policies and procedures “issued or established by the Director of Schools from time to time”. In my view, and as the first defendant argued, these terms negate any suggestion of “agency” in the way argued by the second defendant.

It should also be emphasised that the second defendant’s argument involved a binary choice reducing to a question about whether the Principal was the agent of the first defendant. That is, it was not argued that the school Principal was, or could be, an agent of both defendants. The second defendant’s position impresses as being somewhat counter-intuitive – viz., in the face of Document MS/003 and the statutory scheme which designates it as the school authority that, in the way argued, the school Principal was in fact an agent of another body that was not the school authority. It is unnecessary to pursue this further, given the conclusion I have reached.

Fifthly, as part of this argument, the second defendant identified examples of the “engagement”, drawn largely from historical minutes of the Provincial Council.

One example was the meeting on 2 and 3 April 1982 – that is, around four years prior to the creation of the second defendant – when there was a report of school visits to the Provincial Council. Another example was the meeting on 5 and 6 October 1984 when there was a further report on school visitations, in the following terms:

In my view, there is nothing in the few entries within the Provincial Council minutes relied upon by the second defendant that supports the conferral of authority or the creation of a relationship of agency.

Given I have rejected that there was a conferral of authority to support a relationship of agency, it follows that the alternate basis for liability must fail.

Therefore, the FA2XC should be dismissed.

I am mindful that, where possible, all trial issues be determined but, having regard to the findings that I have made and conclusions reached on the FA2XC, it is simply not possible to assume different findings and conclusions in order to address issues of breach and contribution.

For the above reasons, in proceedings 2023/00108744, I make the following orders:

By amended statement of claim filed 27 March 2025 (‘TPASOC’), the third plaintiff alleges that he was sexually and physically abused by Mr Hawkins between “about January and October 1993” (TPASOC at [4]).

By way of summary, the third plaintiff, then a Year 12 student, alleges that he was repeatedly sexually abused by Mr Hawkins. The sexual abuse allegedly involved being forced “to perform oral sex” and “to masturbate” Mr Hawkins. It also allegedly involved instances where Mr Hawkins “anally raped” the third plaintiff, on some occasions using acetone and wood to silence him.

The sexual abuse is alleged to have occurred in the wood storage area – a room that adjoined the woodwork room – or in Mr Hawkins’ car that was parked either at or near the school. In total, the third plaintiff alleges that there were 17 occasions where Mr Hawkins sexually abused him.

The alleged abuse occurred at different times of the day: sometimes it was during recess, sometimes during lunch, and sometimes it occurred after school hours at nighttime. Put shortly, the third plaintiff's explanation for why he was using the woodwork room “outside scheduled class time” was because he needed the extra time to complete his HSC major work.

A key feature of the third plaintiff’s account is his allegation that he reported the sexual abuse perpetrated upon him by Mr Hawkins to a Marist Brother – Brother Luke Saker – on two occasions prior to October 1993. On the third plaintiff’s account, he alleges that Mr Hawkins continued to sexually abuse him despite reporting the abuse to Brother Luke (TPASOC at [5]-[7]).

Given their importance to the third plaintiff’s case, it is appropriate to set out the nature and timing of the disclosures that he allegedly made to Brother Luke, as pleaded in the TPASOC.

The first time that the third plaintiff alleges that he disclosed Mr Hawkins’ alleged conduct to Brother Luke was (TPASOC at [5]):

The third plaintiff alleges that, after this disclosure “and before October 1993, [Mr] Hawkins further abused” him: TPASOC at [6].

Following the further abuse alleged “and before October 1993”, the third plaintiff alleges that he “told Brother Luke…that [Mr] Hawkins had done sexual things to him since the [previous] disclosure”: TPASOC at [7].

Again, notwithstanding this further disclosure, the third plaintiff alleges that Mr Hawkins sexually abused him on “two further occasions” – each of which involved Mr Hawkins “anally rap[ing] the [third] plaintiff after school hours in his car parked at the school…”: TPASOC at [8].

The third plaintiff alleges suffering both physical and psychiatric/psychological harm in consequence of the sexual abuse allegedly perpetrated upon him (TPASOC at [9]). He contends that the second defendant is directly liable for that abuse by its failure to exercise reasonable care, and is vicariously liable for the acts perpetrated upon him by Mr Hawkins.

As with the second plaintiff, the second defendant accepted that if, contrary to its submissions, the Court finds that the third plaintiff was sexually abused as he alleged, then the third plaintiff was entitled to judgment for the agreed quantum – namely, $500,000.00 plus costs as agreed or assessed.

The legal principles applicable to the consideration of the third plaintiff’s claim have been previously set out: see [125], [131]-[138], above.

I have earlier made findings of fact common to all claims: see [30]ff, above. What follows are additional facts specific to the third plaintiff’s claim. They are largely uncontroversial. To the extent they are not, they nevertheless reflect my findings, unless otherwise indicated.

Before moving to address the background facts and to aid in what follows, a short explanation about the form of the third plaintiff’s evidence-in-chief should be made.

The third plaintiff’s evidence is contained in his evidentiary statement dated 9 September 2023. Attached to that evidentiary statement is a statement made by the third plaintiff to police signed 5 December 2008, albeit dated 10 June 2008 (the ‘police statement’). The structure of the third plaintiff’s evidentiary statement was to adopt the third plaintiff’s account contained within the police statement. Although the police statement forms part of the same exhibit, it is convenient to refer to the evidence on this topic by reference to it specifically.

The third plaintiff was born in 1976. He attended the school from 1990 (Year 9) to 1993 (Year 12).

The third plaintiff described Brother Luke as his “home room teacher in [Y]ear 11” and also “a religion teacher”. His precise teaching position at the school was not suggested to be material, and no party sought any finding in that respect.

I am satisfied and find that Brother Luke was a teacher at the school between 1 September 1990 and 15 October 1992. As I later explain, in the context of the alleged reports that the third plaintiff made to Brother Luke, the third plaintiff did not suggest or submit to the contrary; that is, the third plaintiff did not contest that Brother Luke had left the school at the end of 1992.

The third plaintiff’s evidentiary statement, particularly the police statement, gave content to the reports that he allegedly made to Brother Luke. According to the third plaintiff these alleged complaints to Brother Luke were said to have occurred following the fourth and fifteenth alleged sexual assaults perpetrated upon the third plaintiff by Mr Hawkins: see [622]-[624]; [632], below.

It suffices to note at the present time that I have not accepted the third plaintiff’s evidence on this issue. I do not accept that the third plaintiff made any complaint – whether to Brother Luke or any other teacher or staff member at the school – as he asserted in his evidence: see [638]ff, below.

The school had a Technical and Applied Studies Department (‘the TAS Department’) through which students were offered a range of subjects including woodwork, metalwork, plastics, electronics, design technology, and technical drawing.

John Gately was the head teacher of the TAS Department between 1987 and 1995. I was particularly impressed by Mr Gately and his evidence: he was disinterested, measured and fair. No material challenge was made to his evidence, which I accept.

The TAS Department was short-staffed from around 1990, such that Mr Hawkins, although principally a mathematics teacher, was asked to “fill in” and teach technical and applied studies subjects (‘TAS subjects’).

Mr Gately’s evidence was that Mr Hawkins was not permitted to teach the senior years – only the junior years: he “never taught higher than Year 9 or maybe Year 10”. This was because he was a mathematics teacher and had not been trained on all the equipment and safety procedures. To be clear, Mr Gately’s evidence was that Mr Hawkins never taught a Year 12 class and that he (being Mr Gately) was the only woodwork teacher who taught Year 12.

Mr Gately’s evidence on this matter is also consistent with evidence given by numerous former students that they were only taught by Mr Hawkins in TAS subjects in their junior years. For example, BW described Mr Hawkins as his “woodwork/metalwork teacher around Year 7 to 9”; ML described Mr Hawkins as his “woodwork teacher” from “Year 7 until the time…[he] left the school [in Year 9]”; and CK described Mr Hawkins as his woodwork teacher in Years 7, 8, and 10.

I am satisfied, and find, that Mr Hawkins only taught TAS subjects for the junior years and that the only woodwork teacher who taught Year 12 was Mr Gately.

The third plaintiff’s evidence was that, whilst Mr Hawkins was his woodwork teacher in Years 9 and 10, during Years 11 and 12 he “had a different teacher for wood technology” and that he did “not remember his name, but [understood] that he was the head teacher of technology (woodwork, metalwork etc) subjects”.

Initially, when cross-examined about who his woodwork teacher was in Year 12, the third plaintiff confirmed that he could not remember his name, nor whether it was Mr Gately when his name was specifically suggested to him. Subsequently, when shown a photograph of Mr Gately, the third plaintiff agreed that Mr Gately was his woodwork teacher in Year 12.

Given Mr Gately’s evidence – and my finding – that he was the only teacher who taught a Year 12 woodwork subject, I am satisfied and find that Mr Gately was the third plaintiff’s Year 12 woodwork teacher.

Mr Gately’s evidence was that the Year 12 woodwork subject essentially contained two parts – a major work and what he described as a “written component”, to be conducted by way of examination:

This evidence was not challenged, and I accept it. In particular, I find that Year 12 woodwork major works were required to be completed by July and were submitted for assessment and marked by the HSC examiners by the start of August.

The third plaintiff’s major work was “a large mobile chopping block for the kitchen”. I am satisfied and find that his major work was completed by the required time. The third plaintiff did not seek a contrary finding and, to the extent that the third plaintiff faintly sought to suggest that he had some doubt about whether his major work was submitted on time during cross-examination (that is, not in his evidence-in-chief), I do not accept that evidence given, essentially, my unfavourable view about, inter alia, his reliability and the reliability of his evidence.

Mr Gately’s evidence was that the woodwork room would, on occasions, be kept open outside class times and after usual school hours. If a teacher wanted to open a classroom after school, approval was needed from the department head and, ultimately, the Principal.

In terms of the woodwork room being kept open after school, Mr Gately’s evidence was as follows:

He confirmed such evidence in his later evidentiary statement dated 10 June 2025. I accept this evidence. It will be necessary to return to some of the detail of it when addressing what the second defendant submitted were the material inconsistencies and uncertainties in the third plaintiff’s overall account: see [658]ff, below.

Mr Gately’s evidence was that, from time to time, the woodwork room would be opened during recess and lunchtime, but that otherwise it would be locked.

As noted, the third plaintiff alleges that he was subjected to repeated sexual assaults perpetrated by Mr Hawkins in broadly two locations: first, in the wood storage area adjacent to the woodwork room; and, secondly, in Mr Hawkins’ car that was parked at or close to the school – the third plaintiff essentially accompanying him from the woodwork room to his car, following which the attacks allegedly occurred. To repeat: the third plaintiff’s evidence was that he was using the woodwork room “outside scheduled class time” because he was behind time to complete his HSC major work for that subject by the due date and, therefore, needed to spend more time attending to it.

The evidence about the woodwork room and the storage area was somewhat general. Possibly because the parties did not consider it to be forensically important, there were no photographs or drawings of this area in evidence. Some witnesses gave general descriptive evidence about the woodwork room, but whether that room was the same as the one described by the third plaintiff is unclear. Much of the questioning of the witnesses appeared to assume this to be so.

The third plaintiff, in the police statement, attached to it “a map of the wood technology area” that he had drawn. Notwithstanding the tender of the police statement as an attachment to his evidentiary statement, the third plaintiff’s drawing of the area was not tendered.

During the trial, when CK was giving evidence (including about when he undertook woodwork in Year 10 at the school), he gave some evidence about a woodwork room. Before he completed his evidence, I raised with the parties what I perceived to be the somewhat limited evidence about the configuration of the woodwork room and the adjacent wood storage area. No party sought to supplement the evidence either through that witness or at all.

Given the evidence was left in this way, my findings about the woodwork room and the wood storage area adjoining it are general and are as follows. There was, at least, one woodwork room. Some witnesses described it as the “wood tech room”, which was the description the third plaintiff commonly adopted. Nothing turns upon the different descriptions.

In relation to the wood storage area, although that area was sometimes referred to in the singular, it appears that there were a number of storerooms at the back of the woodwork room. That was the evidence from Mr Gately. His evidence about the woodwork room was as follows:

The evidence about the other location where the third plaintiff alleges he was sexually assaulted by Mr Hawkins – essentially in a carpark at or close to the school – was similarly left in somewhat general terms.

An annotated aerial photograph of the school was prepared by a witness, RB, that was attached to his statement. Notwithstanding the existence of this photograph, the third plaintiff did not identify the location of the carpark on or by reference to that photograph, or by any other evidence.

Again, that may simply reflect that the parties considered this to be unimportant. Consistent with this, nothing was said or raised during submissions about the carpark or its location, nor were any specific findings sought. Nothing more need be said about such matters.

Put shortly, the third plaintiff's explanation for why he was using the woodwork room “outside scheduled class time” was because he was running behind time to complete his HSC major work for that subject. When he attended the “wood tech” classroom (the terms “woodwork room” and “wood tech classroom were used by the parties interchangeably), his evidence was that he was supervised by “the head teacher of technology” – his actual teacher, being Mr Gately – or Mr Hawkins. It was when he was supervised by Mr Hawkins that he was allegedly sexually abused by him.

The third plaintiff described the circumstances of how – and why – he used the “wood tech” room outside of class time in the police statement at [28]-[29]:

As earlier noted, the third plaintiff’s evidence about the alleged sexual assaults was described in the police statement. The evidence is set out in what follows.

The first sexual assault allegedly occurred “in winter”, at lunchtime, and when the third plaintiff was using the woodwork room. He described being forced to perform oral sex upon Mr Hawkins in the wood storage area. The events were described by the third plaintiff in the police statement at [9]:

The second sexual assault allegedly occurred “a couple of weeks later during recess”, again in the wood storage area, and involved Mr Hawkins forcing the third plaintiff to masturbate him. The events were described by the third plaintiff in the police statement at [11]:

The third sexual assault “happened about [three] weeks later” and allegedly involved a violent sexual assault in the “wood storage area” – an assault that included the aggressive anal rape of the third plaintiff. As the third plaintiff “started to scream out”, Mr Hawkins allegedly grabbed a “blue singlet” infused with acetone and “shoved it” in the third plaintiff’s mouth to silence him. These events were described by the third plaintiff in the police statement at [12]-[13]:

The fourth sexual assault allegedly happened about three weeks later at lunchtime, whilst the third plaintiff was using the woodwork room to complete his major project, again in the wood storage area. It involved Mr Hawkins forcing the third plaintiff to perform oral sex upon him and forcefully anally raping the third plaintiff – during which the third plaintiff alleges that Mr Hawkins “shoved a piece of pine wood in [his] mouth”. The events were described by the third plaintiff in the police statement at [14]-[15]:

The third plaintiff alleges that, having been subjected to this sexual assault, he went to see Brother Luke “later that afternoon”. The third plaintiff’s evidence about the interaction he had with Brother Luke at this time was described by him in the police statement at [16]:

The third plaintiff alleges that a “few days after” he spoke with Brother Luke, Mr Hawkins walked past the woodwork room and waved at him. He then waved back. The third plaintiff explained this interaction in the police statement at [17], as follows:

The fifth sexual assault allegedly occurred “a few weeks later” at lunchtime, again in the wood storage area. It involved Mr Hawkins forcing the third plaintiff to perform oral sex upon him and, thereafter, forcefully anally raping the third plaintiff – during which the third plaintiff alleges that Mr Hawkins “shoved a blue singlet”, which “smelt of acetone”, into his mouth. The events, and some of its aftermath, were described by the third plaintiff in the police statement at [18]-[19]:

The sixth, seventh, eighth, ninth and tenth sexual assaults were described by the third plaintiff as having “unfolded [in] the same way” as the fifth sexual assault. The third plaintiff did not describe during what time of the day these assaults occurred, nor did he describe when they occurred relative to the fifth sexual assault, or each other.

The account of the third plaintiff was simply that he was in the woodwork room working on his major work, when Mr Hawkins would come in “and take [him] out to the wood storage area” and sexually assault him. He was unable to say whether Mr Hawkins made him perform oral sex on Mr Hawkins each time but confirmed that “on each occasion” he anally raped the third plaintiff.

The events were described by the third plaintiff in the police statement at [20]:

The eleventh sexual assault allegedly occurred at nighttime, when the third plaintiff was working in the woodwork room. Mr Hawkins asked him to assist in carrying some “sleeping bags up to his car”, which the third plaintiff described as having been parked “up the top in the Westmead university carpark”. After putting the sleeping bags in the back of Mr Hawkins’ van, Mr Hawkins closed the doors behind the third plaintiff and anally raped him. The events were described by the third plaintiff in the police statement at [21]:

The twelfth, thirteenth and fourteenth sexual assaults were described by the third plaintiff as happening “at night” when undertaking work on his “major project after school”. Each occurred in the wood storage area and allegedly involved Mr Hawkins forcing the third plaintiff to perform oral sex upon him, and then anally raping him.

The events were described by the third plaintiff in the police statement at [22]:

The fifteenth sexual assault occurred in the back of Mr Hawkins’ van which was parked in the “university carpark”. The third plaintiff alleges that, whilst working back in the woodwork room at night, Mr Hawkins invited the third plaintiff to “have a smoke”. He then followed Mr Hawkins to his car, where he was anally raped by him.

The events were described by the third plaintiff in the police statement at [23]:

Following this alleged sexual assault, the third plaintiff alleges that he spoke again with Brother Luke about Mr Hawkins “still sexually assaulting” him. The third plaintiff described this further interaction with Brother Luke in the police statement at [24]:

The sixteenth and seventeenth sexual assaults were described by the third plaintiff in his police statement at [25], albeit without identifying where they were alleged to have occurred:

The third plaintiff also described the impact of these sexual assaults allegedly perpetrated upon him by Mr Hawkins in his police statement at [26]:

There are a number of aspects of the third plaintiff’s account that I find to be unsatisfactory. Overall, I consider the third plaintiff, and his evidence, to be demonstrably unreliable and, in some respects, to lack credibility. What follows are the matters that I consider establish as much.

The third plaintiff alleges that he reported that he had been sexually assaulted by Mr Hawkins to Brother Luke on two occasions. He specifically pleaded the occurrence of those interactions in the TPASOC at [5]-[8]: see [576]-[579], above.

Consistent with what he alleged, the third plaintiff gave evidence about reporting the alleged sexual assaults to Brother Luke following the fourth and fifteenth sexual assaults.

The third plaintiff was cross-examined about these “reports” to Brother Luke. He was initially “adamant” that he had reported the sexual abuse, and was then cross-examined on the topic:

When further cross-examined, the third plaintiff accepted that the references to Brother Luke in his police statement were mistaken. He later volunteered the further surprising evidence when cross-examined about [24] of the police statement (which broadly concerned apparent bruises on the third plaintiff’s body) that, “as we all know, I didn’t tell Brother Luke”. I accept that this evidence, as the second defendant submitted, was further confirmation by the third plaintiff that his evidence about Brother Luke was (at a minimum) quite simply “wrong” and that no such “report” was ever made.

To be clear, as I have earlier accepted and found, Brother Luke was not at the school in 1993 – having left at the end of 1992.

In relation to this part of the third plaintiff’s account, the following matters are relevant.

First, given the third plaintiff specifically pleaded the reporting of the sexual abuse to Brother Luke, there is no question that it formed a key part of his case. That allegation was important, in his case against the second defendant (and the first defendant, whilst he maintained a claim against them), because it was alleged to demonstrate that the defendants were in breach of the duty to him by failing to terminate the employment of Mr Hawkins and failing to report Mr Hawkins to police after the first disclosure was allegedly made to Brother Luke: TPASOC at [15](k) and (l). On that footing alone, the fact that the third plaintiff disavowed his earlier evidence about the reports to Brother Luke (including the manner in which he did) and, necessarily, any case based upon it, I regard as having a significant effect upon the plaintiff’s reliability and, as I explain, his credibility.

Secondly, the third plaintiff did not suggest that he had Brother Luke’s name wrong and that he had reported it to another Marist Brother or, say, another teacher. He attempted to do so during the course of cross-examination by Mr Sheller SC by suggesting “I know I told someone” but, when pressed, he was unable to remember the name of the person and what he might have specifically said had such a report been made. I do not accept any of this evidence by the third plaintiff, so far as it went. In my view, it was nothing more than a disingenuous attempt to try and salvage something from the remnants of his somewhat tattered “evidence”.

Thirdly, during submissions and when invited to address the third plaintiff’s evidence about Brother Luke, Mr Sheldon SC accepted that Brother Luke “didn’t work there” in 1993 but submitted that the third plaintiff was “wrong about the timing of” the disclosures. I am not able to accept that this was merely an error in “timing”.

The timing of when the alleged sexual assaults occurred (and thus when any complaints were made) is an essential part of the third plaintiff’s overall account: it was the “timing” that created the apparent opportunity for Mr Hawkins to subject the third plaintiff to repeated abuse. Put simply, whilst it may be accepted that the precise dates during 1993 were not necessarily central to his overall account, the year 1993 was integral to it: that was the year when he was completing his HSC (and, thus, his woodwork major work) and when his apparent need to attend the woodwork classroom outside usual class hours arose. The suggestion that the timing of when he allegedly spoke to Brother Luke could somehow be related back to an earlier point in time – presumably sometime in 1992 or possibly before then – is entirely incompatible with the third plaintiff’s overall version of events.

Fourthly, following on from the above, the way that the third plaintiff accepted that he did not report anything to Brother Luke, when challenged during cross-examination, I regard as important. The manner in which the third plaintiff gave this evidence, and disavowed his earlier evidence, was rather remarkable. Much like the occasion when he volunteered the evidence “as we all know, I didn’t tell Brother Luke”, it strongly impressed me that the third plaintiff regarded it as very much a “matter of fact” that he was wrong, and as if he had merely made a minuscule error on a matter of trivial and inconsequential detail. I am unable to categorise the third plaintiff’s concession in that way, and to readily disregard how he could get a matter such as this so patently wrong.

In my view, the demonstrated inaccuracy in this part of the third plaintiff’s account reflects significantly – and negatively – upon his reliability and the reliability of his evidence. It also impacts, I consider, significantly – and, again, negatively – upon his credibility and the credibility of his evidence.

The third plaintiff’s evidence was that the need for him to attend the woodwork room arose because he was delayed in the completion of his Year 12 major work for that subject, and he needed to devote more time to completing that work. Thus, the third plaintiff attended the woodwork room at recess, lunchtime, and after school hours for that purpose. It was during these attendances that the third plaintiff alleged that he was sexually assaulted by Mr Hawkins.

The third plaintiff’s evidence was that these events took place “in winter”, consistent with, according to him, students being permitted to use “the wood tech room at night” from “around June”. The third plaintiff’s evidence was that the seventeenth and last sexual assault “happened in September”.

As I have earlier noted, the evidence from Mr Gately, which was not challenged, and which I accept, was that the major work for this subject was required to be completed “by about week [three] or week [four] of [term three], which is usually around the end of July. By the start of August, all major works were submitted and marked by the HSC examiners”.

It may be accepted that differences about the timing of when the sexual abuse occurred does not necessarily dictate that a complainant, and their evidence, lacks reliability and/or credibility. It all depends. But here, the position is somewhat different. On the third plaintiff’s account, the sexual abuse extended over many months – the first is alleged to have occurred “in winter” until around October 1993 – during the time he was endeavouring to complete his major work for the subject. As I have found, the major work for that subject was required to be completed by the end of July. If the first sexual assault occurred as the third plaintiff alleges, then all 17 sexual assaults must have occurred in the period of around two months.

The third plaintiff was cross-examined by Mr Sheller SC about this suggested timeline – essentially, the alleged sexual assaults must have occurred in only about a two-month period – and he agreed there was a “problem in the history” suggesting that he “could be wrong of the – when it first started, but that would be all I could remember”. This evidence – notably the explanation within it – was less than convincingly given, and I find it to be unpersuasive.

When pressed a little further about the number of alleged attacks in cross-examination, the third plaintiff gave the following evidence:

The second defendant submitted that the third plaintiff’s recollections of the alleged sexual assaults, such as they are, were “curious” – emphasising the above evidence and other instances where the third plaintiff’s evidence reflected a lack of recall – for example, the third plaintiff’s inability to recall whether the sixteenth and seventeenth assaults occurred during the day or night; he was uncertain about the month when the last assault allegedly occurred; and also that he was uncertain about whether the sexual assaults in fact stopped by the time his “major work was finished”.

In my view, although questions about or issues relating to the timing of sexual assaults may, generally speaking, be of confined significance, I am unable to lightly dismiss these matters as being of inconsequential or peripheral detail – particularly when regard is had to other evidence from the third plaintiff that I have found to be wrong and unreliable. In my view, the “concerns” raised by the second defendant cause me to entertain further doubts about the third plaintiff’s evidence and its (and his) reliability.

The third plaintiff’s account involves Mr Hawkins perpetrating a number of sexual attacks upon him during school hours. Some were described as having occurred “at nighttime” or at “night”, and the third plaintiff could not remember whether others occurred during the day or night. This is the context to what follows.

Two related “supervision” issues arise. The first relates to why Mr Hawkins – rather than his actual teacher – was allegedly supervising the third plaintiff. The second relates to how it came to be that the third plaintiff and Mr Hawkins were together in the woodwork room – particularly at nighttime.

A somewhat unusual feature of the third plaintiff’s account is that, notwithstanding that Mr Gately was his Year 12 woodwork teacher, and that Mr Hawkins was not (nor trained to teach and thus supervise Year 12 students), Mr Hawkins, in fact somehow opened or somehow managed to be in the woodwork room and began to “supervise” the third plaintiff and, on occasions, sexually abuse him.

The cross-examination of Mr Gately was largely to the effect that it was possible that Mr Hawkins had the access code to the keypad lock on the door of the woodwork room and, through this means, Mr Hawkins – consistent with what the third plaintiff suggested – came to “supervise” the third plaintiff and the other students. At least one difficulty with that “theory” is that it was Mr Gately who was the Year 12 woodwork teacher, and it was only him who was qualified to supervise them.

If that were the only “issue” in relation to the third plaintiff’s account, it may have been possible to resolve the doubt that attaches to it favourably to him. But it is not the only “issue”. Other issues arise raising questions about the third plaintiff’s reliability and account more generally. Further, in relation to those attacks that allegedly occurred at nighttime, more significant questions arise – as I will explain.

The third plaintiff’s argument in connection with the nighttime attacks was essentially the same submission advanced for those that allegedly occurred during the daytime – namely, that Mr Hawkins had the “means to access the woodwork room whenever he wanted it”. In my view, whilst that is theoretically possible, it raises a number of questions that, respectfully, remain unanswered: why did Mr Hawkins apparently open the woodwork room? How did the third plaintiff know that he would do so and turn up? If the third plaintiff needed to work after usual school hours, why would he not raise that with his actual teacher and the department head, Mr Gately – at a minimum, to make sure the woodwork room would be kept open after school?

Mr Gately’s evidence (which, I emphasise, I have accepted) was that the woodwork room was only opened until 4:00pm by him and that, given his other commitments, he did not stay beyond that time. To be clear, his evidence was that he never returned to the school once his commitments had cleared to “re-open” the woodwork room. Further, as earlier noted, Mr Gately’s evidence was that, if he opened the woodwork room, then he “stayed in the woodwork room the whole time”: see [604], above.

It was not suggested to Mr Gately during his cross-examination, by way of example, that, on any occasion, Mr Hawkins simply wandered in and began to assist in the supervision of students or, say, agreed with Mr Gately to keeping the woodwork room open after Mr Gately left.

The third plaintiff’s case was that, notwithstanding Mr Gately's evidence, not only did Mr Hawkins "open up” the woodwork room after school hours (presumably without Mr Gately knowing) but without knowing that the room would be open, the third plaintiff came to use it. Quite how that came to be was not explained, at least in a way that I am prepared to accept.

The matters I have raised cause me to have considerable doubt and significant misgivings about the third plaintiff’s account relating to these alleged instances of abuse. It conflicts with the evidence from Mr Gately, which I have accepted and, independently of that evidence, I consider the account to be inherently improbable.

There are a series of overlapping and interconnected issues about “disclosure” – or, as the case may be, non-disclosure – of “abuse”. I will, in what follows, introduce and outline those issues before returning to address the respective arguments in some more detail.

The third plaintiff gave an account to the effect that he told his “mum about the sexual abuse by…[Mr] Hawkins” in 1997 and that, when he did, she “confronted Brother Green about the abuse” allegedly perpetrated upon him by Mr Hawkins. His basic argument was that this disclosure provided significant corroborative support for his account as did, albeit to a lesser degree, aspects of what was disclosed when he attended Prince of Wales Hospital in 2000.

The second defendant argued for different findings, submitting there was no relevant disclosure in 1997 – there was only a disclosure during his attendance at Prince of Wales Hospital in 2000, about different abuse that allegedly occurred at a different time to what was claimed in these proceedings – and that it was simply not possible that the third plaintiff’s mother had a “confrontation” with Brother Green in 1997 because he left the school at the end of 1996. It essentially submits that the evidence about, and arising out of, those attendances is destructive of his account, and to the reliability of the third plaintiff and his evidence.

Having provided that brief outline of the issues raised, I now turn to deal with them. It is convenient to start with the content of the Prince of Wales Hospital records, and to first set out the key parts of these records relied upon by the second defendant.

The third plaintiff was admitted to the Prince of Wales psychiatric unit on 28 August 1997 and discharged on 16 September 1997. The records relating to the third plaintiff’s admission at that time were in evidence. On 13 December 2000, the third plaintiff attended the Prince of Wales Hospital due to a deterioration in his mental health but was not admitted on that occasion. The records relating to the third plaintiff’s presentation at that time were also in evidence.

A discharge summary, relating to the third plaintiff’s admission to the Prince of Wales Hospital in 1997, relevantly recorded the third plaintiff as having been diagnosed with major depression, gambling addiction and obsessive and dependent personality traits, and that the third plaintiff presented with suicidal ideation following his significant accumulation of debt and the realisation that his car was at risk of repossession. Additionally, the following history of psychiatric symptoms was recorded:

The clinical notes at admission related the third plaintiff’s “emotional state” to “financial/gambling problems”. The following was also noted:

Thus, neither on admission, nor elsewhere in the clinical notes, is there a record of the third plaintiff disclosing any alleged abuse (as the third plaintiff accepted). Further, in connection with what was reported by the third plaintiff, it was that his schooling was described as normal and that his poor academic performance was related to the effect of the “drink spiking” incident.

The third plaintiff, it should be noted, did not draw attention to any entries in the clinical records, nor suggest that anything within them qualified or negated those entries relied upon by the second defendant.

The second defendant accepted that it is appropriate to carefully assess the content of the histories contained in the clinical records to determine their reliability and usefulness, consistent with decisions such as Container Terminals at [20] and Mason at [2]. The second defendant emphasised, however, that these records do not suffer from any self-evident limitations or any limitations of the kind referred to in those cases – for a number of reasons, including their detail and the particular context.

I accept that submission. The records cover an extended period of time when the third plaintiff was admitted to hospital (28 August 1997 – 16 September 1997) arising out of his “mental health” issues, yet none of the records from the various practitioners that the third plaintiff consulted during that admission contain any history – at all – of any alleged abuse. It cannot be said, given the reason for his admission, that its purpose would not necessarily have elicited a disclosure of that kind. Nor, in my view, can it be said that the records impress as being cursory, giving rise to the possibility that a potential disclosure may have been missed or not recorded. On the contrary, they impress as being detailed and thorough and, importantly, accurate. Nor, finally, can it be said that there may be an explanation for any apparent “non-disclosure” – for example, embarrassment or shame: such an issue does not arise simply because the third plaintiff did not suggest he held such concerns (in part reflected in his suggestion that he told his mother about “abuse”). Independently of this, the nature and extent of his disclosures do not necessarily provide a basis to infer that he did, in my view.

I am, therefore, satisfied and find, as the second defendant submitted, that the clinical records from the third plaintiff’s admission to Prince of Wales psychiatric unit in 1997 are an accurate record of what he disclosed at that time – and, to be clear, I am satisfied and find that the third plaintiff did not make any disclosure of sexual abuse by Mr Hawkins at all.

The third plaintiff also presented to the Prince of Wales Hospital on 13 December 2000 due to a deterioration in his mental health. Following his presentation, a “psychiatric clinical record” was completed by Dr Richard Perkins. The history covered numerous topics, including: “history of presenting episode”, “past psychiatric history”, “family history”, “family/personal history” and “current social circumstances”. Under the latter topic was a further category titled “history of physical/emotional/sexual violence”.

In the course of taking the third plaintiff’s “family/personal history”, the following was recorded:

Similarly, within the category ‘history of physical/emotional/sexual violence’, the following was recorded: “raped by schoolteacher age 15” (underlining in original).

It is convenient to refer now to the third plaintiff’s evidence about that disclosure and entry in the clinical records. When cross-examined, the third plaintiff disavowed any suggestion that he was sexually abused on a canoe camp and, to be clear, placed no reliance upon those events in these proceedings (there is, thus, no question of the case being litigated on a different factual basis to the pleadings).

When cross-examined further by Mr Sheller SC about that particular entry, the third plaintiff gave the following evidence:

I am satisfied and find that, as the second defendant submitted, the third plaintiff did not disclose any abuse of the kind that he alleges occurred in these proceedings and, further, I am satisfied and find that what he did disclose was the account referred to in [681]-[682], above.

The parties made several submissions about the materiality of this evidence. Presently, I will address their significance in the context of the third plaintiff's suggestion that he made a disclosure to his mother in 1997, and the competing arguments advanced by the parties about that issue.

The third plaintiff submitted that his account of having disclosed being abused by Mr Hawkins to his mother in 1997 should be accepted, given it was argued to be supported by her evidence, and that that disclosure significantly corroborated his claim that he was subjected to abuse by Mr Hawkins.

The second defendant contested that there was any such disclosure. It argued that no such disclosure was made during his admission in 1997 – as I have found – a fact that tended to significantly undercut the prospect that the third plaintiff made the disclosure, as he alleged he did. As I will explain in what follows, I accept the second defendant’s submissions.

The second defendant also submitted that, in all probability, any disclosure about sexual abuse – putting to one side the content of what was disclosed, which raises separate issues and is addressed later: see [695]ff, below – occurred in 2000 and not in 1997. That submission was essentially anchored in what the clinical records from the Prince of Wales Hospital recorded or did not record at those times.

The second defendant next submitted that, to the extent that the third plaintiff’s mother sought to support his evidence by indicating that there was a disclosure of abuse made to her in 1997, that evidence should not be accepted because: (a) it is contradicted by the medical records; (b) her evidence, which linked her making of a complaint to Dr Green at that time, was wrong and was conceded to be wrong; and (c) her evidence generally was hesitant and likely to be unreliable. I accept each of these submissions.

I have already dealt with the content of the medical records and I am satisfied that they accurately record what was disclosed at that time and, importantly, what was not disclosed. My findings in connection with the clinical records from the third plaintiff’s admission to Prince of Wales Hospital, significantly undercuts the probabilities of the accuracy of his suggested "disclosure" to his mother at that time, and favour, as the second defendant submitted, any disclosure being made in 2000 and not in 1997. I deal with the second and third aspects of the second defendant’s submissions about the third plaintiff’s mother’s evidence in what follows.

To recap: the third plaintiff, in his evidentiary statement, stated that he told his “mum about the sexual abuse by…[Mr] Hawkins”. The evidentiary statement did not, however, identify the terms of what was disclosed by him to his mother. The third plaintiff’s mother, Julie Luckman, in her 2010 statutory declaration, states that she met with the third plaintiff’s doctors “in about 1997” and that, during “the meeting with the doctors”, she found out that the third plaintiff “had also been molested by his teacher while attending Marist Brothers Westmead”. She also stated that she left the hospital and:

To recap further: the third plaintiff thus contended that the disclosure that he made to his mother at that time, and the steps that she subsequently took to confront Brother Green about what she understood had occurred, provided significant corroboration to his account.

Ms Luckman’s evidence was, I consider, to a degree unreliable. For example, part of her evidence was that, following the disclosure said to have been made to her at this time by the third plaintiff (or, as she said in her statutory declaration, from “the doctors” with whom she had a meeting), she went to the school “and confronted the Principal”, Brother Green. Brother Green, I have earlier found, left the school at the end of 1996, as the third plaintiff accepted during submissions. Thus, at a minimum, she was mistaken in this respect. In my view, the more likely explanation, particularly given the finding that I have made about what was disclosed in 2000, is that she is mistaken as to the timing and that any disclosure made by “the doctors” was made at that time; that is, this “information” – the precise terms of which was not covered in her evidence – was conveyed to her in 2000, and not in 1997. I add the following. My assessment of Ms Luckman and her evidence was that she was somewhat hesitant in her recollection of these events. That is not intended as a criticism, but more likely reflects the fact that she was attempting to recall and give evidence about matters that – allegedly – occurred 25 or more years ago.

I return now to the further arguments about the disclosure and entry in the clinical records of the Prince of Wales Hospital in 2000: the second defendant emphasised the distinctly different account contained in those records of the abuse and when it is alleged to have occurred – in short, on a canoe camp when the third plaintiff was aged 15. Its submission, which I accept, was that this was yet another instance of inconsistency in the third plaintiff’s account – and a significant confounder to it – that further demonstrated unreliability.

The third plaintiff submitted that any criticism of him, based upon this history, was “ill founded”, although precisely why that was said to be so was not altogether clear. It appears to derive from the suggestion that, contrary to what the second defendant submitted, this history of the sexual abuse “at a canoe camp” when the third plaintiff was aged 15 was somehow supportive of the third plaintiff’s account: it was submitted to be, in fact, a “substantially corroborative piece of evidence…at an early time”.

I do not accept this submission. I do not regard it as corroborative in the way suggested, or at all. It is completely different. The third plaintiff accepted that he may have provided that history, but did not seek to explain why he gave such an account when cross-examined about it, as set out above, nor why he failed to provide an account of the abuse allegedly perpetrated whilst in Year 12 at school. There was no re-examination of the third plaintiff in connection with this issue.

Again, perhaps at risk of restating the obvious, this is not a simple question of giving the benefit of the doubt to a person who has allegedly been subjected to a sexual abuse being in error on matters of small detail (as to which see [194], above), but an instance of a person advancing a categorically different account, and being unable to provide any explanation as to why that occurred. In this last respect it should be observed that, in the course of his evidence, Dr Michael Diamond, the third plaintiff’s qualified psychiatrist, was invited to provide a possible explanation for the account but was unable to provide any: his evidence was that he did not “know what to make of that”.

The second defendant submitted that the Court should approach the third plaintiff’s evidence with considerable caution given he has a substantial record of “general dishonesty and deception”, including that he had been charged, and had pleaded guilty to, 75 offences relating to larceny and fraud; had stolen between $30,000.00 and $40,000.00 from one of his previous employers over an extended period; that he would steal property of others by “watch[ing] for people to leave their table to dance or to go to the toilets” and, having taken their possessions, would then sell them; and that he stole his then girlfriend’s mother’s wedding ring. These matters do not reflect well on the third plaintiff, and he did not seek to argue to the contrary. Nevertheless, I prefer to base my assessment of the third plaintiff, and his evidence, principally on the matters referred to elsewhere.

The second defendant also argued that the setting for the offending – at least that said to have occurred in the woodwork storage area – tended to reinforce the inherent implausibility of those acts occurring and, by extension, significantly undercuts his account more generally. There is certainly cause for careful consideration and a degree of hesitation: in relation to the alleged offending that occurred in that area, as Mr Gately said, the rooms themselves were small and cluttered and, on the third plaintiff’s account, the door to the area was not closed when the attacks allegedly occurred, thereby carrying with it the distinct possibility of detection. That said, I am mindful of the fact that other instances of sexual abuse were allegedly perpetrated upon school students by Mr Hawkins in or around the canoe club shed, possibly suggesting that he may have been somewhat brazen in what he is alleged to have done. In the end, I am not persuaded that this particular argument about “inherent implausibility” has significance, as was argued by the second defendant.

Finally, the second defendant submitted that, by way of illustration, at least one of the responses that the third plaintiff made to the sexual assaults allegedly perpetrated upon him by Mr Hawkins (essentially, that he felt “comfortable” in Mr Hawkins presence – notwithstanding what had occurred as set out in [17] of his evidentiary statement) was outside the range of suggested responses that, at least from a psychiatric perspective, might be expected. The second defendant, in this respect, called some evidence from the consultant psychiatrist qualified, Dr Rosalie Wilcox, to the effect that the third plaintiff’s description of his behaviour was somewhat “bizarre”. In the end, although I was impressed by Dr Wilcox’s evidence, I do not consider that this matter materially assists in my assessment of the reliability of the third plaintiff and his evidence.

Standing back and assessing the above, I will now focus on two matters that I regard as prominent.

The third plaintiff claimed that he reported what had allegedly occurred to Brother Luke on two occasions who – essentially – assured the third plaintiff that he would “fix it”. I have not accepted the third plaintiff’s evidence on this topic and, to be clear, do not accept that he relevantly reported anything at all to Brother Luke or any other teacher. Separately, I have considerable reservations about the veracity of the third plaintiff’s evidence generally in connection with this topic, as I have earlier explained.

The third plaintiff also alleged that, at a minimum, he was sexually assaulted by Mr Hawkins at nighttime on seven occasions, being the eleventh to seventeenth sexual assaults. However, given the third plaintiff was unable to describe whether the sixth to tenth sexual assaults occurred during the daytime or nighttime, it is at least possible that up to twelve of the alleged seventeen sexual assaults happened at nighttime. This account raises serious questions – of which most, if not all, were not answered – about how those assaults could have come about, particularly given I have accepted the unchallenged evidence from Mr Gately that explained how the woodwork classroom was opened after school, and what occurred when it was.

I will briefly illustrate some of the serious questions raised about these alleged nighttime attacks.

Putting to one side for a moment Mr Gately’s evidence, the third plaintiff’s account is that, despite Mr Hawkins not being his woodwork teacher, despite Mr Hawkins not being qualified to teach Year 12 woodwork, and despite Mr Hawkins not knowing that the third plaintiff would apparently be staying back after school on a particular day to complete his major work, that Mr Hawkins was for some reason supervising students in the woodwork room and allegedly sexually assaulted the third plaintiff. Mr Sheldon SC, when invited to address these matters, was unable to explain how this had come about (not merely once but on seven (possibly twelve) occasions), nor could he provide answers to questions such as those just raised. My assessment is that the third plaintiff’s account itself was inherently improbable and, to be clear, I am entirely unpersuaded by it. Once Mr Gately’s evidence is factored in, the account itself cannot be sustained, and I do not accept it.

As is apparent from the above discussion (and the earlier discussion: see [637]ff, above), I have not accepted fundamental aspects of the third plaintiff’s overall account. I have considerable reservations about the reliability of the third plaintiff and his evidence not simply because of my non-acceptance of his case and significant parts of his account but in other respects as well, as I have earlier explained.

In the end, it is for the third plaintiff to “prove his case”. He has not: the third plaintiff has failed to persuade me that he was abused in the way he claimed to be. It follows, therefore, that his claim must be dismissed.

For the above reasons, in proceedings 2023/00185560, I make the following orders:

As I have earlier noted, the third plaintiff resolved his claim against the first defendant on 11 June 2025. Given I have determined the third plaintiff’s action against the second defendant, those agreed orders should now be made and entered – namely:

The first plaintiff resolved his claim against the first defendant on 11 June 2025, and against the second defendant on 17 June 2025. No orders have been made in connection with the first plaintiff’s settlement with the first defendant. Those orders, which provide for judgment being entered in favour of the first defendant with an order that each party pay his or its own costs, can now be made. In relation to the settlement between the first plaintiff and second defendant, orders were made on 17 June 2025.

In relation to the first cross-claim, given judgment is to be entered in its favour, that cross-claim falls away. In relation to the amended second cross-claim, given my conclusion when dealing with the cross-claim in the second plaintiff’s claim, the same result applies here.

In proceedings 2022/00262159, the orders are:

In relation to the agreed orders resolving the action by first plaintiff against the first defendant: