Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA

1. [1]

   BELL CJ: The amendment of the Limitation Act 1969 (NSW) and cognate statutes in other states and territories to remove any limitation period for common law claims of historic sexual assault was a response to the Royal Commission into Institutional Responses to Child Sexual Abuse.

2. [2]

   A body of case law relating to stays of proceedings, litigated through to the High Court, has grappled with some of the forensic challenges which can confront a defendant or defendants in such cases as a result of litigation in relation to events many decades ago: see, for example, GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (GLJ); Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407 (Willmot); RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43; (2024) 98 ALJR 1453; see also Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102.

3. [3]

   Forensic challenges also confront plaintiffs in such cases. The frailties of the human memory, the complexity of which is increasingly recognised and remarked upon by courts on the basis of scientific studies, are generally more pronounced with the passage of time: see, in this regard, Willmot at [30] and the cases there cited. The degree of assurance that Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw) and s 140(2) of the Evidence Act 1995 (NSW) (Evidence Act) (and its State and Commonwealth equivalents) requires in cases involving serious allegations of what would amount to criminal or gravely immoral conduct is not qualified or modified in cases of historic sexual assault by the abolition of the limitation period for common law claims based upon such conduct: see generally GLJ at [56]-[60]. As a matter of practicality, Briginshaw and s 140(2) of the Evidence Act present a forensic challenge to those who seek to establish serious allegations, decades after the event.

4. [4]

   In the present case, Justices Leeming and Ball have reached different conclusions as to whether the challenge to the factual findings by the primary judge were made out. I shall return to that difference.

5. [5]

   What is clear, however, is that justified community outrage at established or admitted cases of historic child sexual abuse does not assist in the case by case assessment of claims of historic sexual abuse. Great care must be taken in individual cases to exclude generalised views which may have been formed (outside the evidence in the case) about particular institutions and their degree of knowledge of serious misconduct. Great care must also be taken to avoid the temptation to analyse both factual and legal issues with the benefit of hindsight.

6. [6]

   Another particular difficulty confronting plaintiffs in cases involving claims of historic sexual assault is where the claim is founded on breach of a duty of care said to be owed not by the perpetrator of the sexual assault but by an organisation of which he was not an employee (claims for vicarious liability not being available in such cases after the High Court’s decision in Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349 (Bird)).

7. [7]

   Just as the evaluative inquiry involved in applications for a stay of proceedings in such cases has been described as “unique and highly fact-sensitive” (Willmot at [17]), so too may be the question of the existence of a duty of care and the content of any such duty, if found to exist. As the High Court observed in Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [50]:

8. [8]

   The importance of pleading and proving the factual basis for an alleged duty of care was emphasised in Bird in rejecting the respondent’s notice of contention: see at [42]. Justice Leeming’s reasons in the present case highlight the need for close attention to detail in the formulation and proof of a duty of care and its content. That will require, amongst other matters, a precise understanding of the defendant, its juridical nature (if it is not an individual or corporation) and its position, powers, control and state of knowledge as at the time of the alleged breach(es) of duty, including as to the foreseeability of relevant risks. For example, one obvious question necessary to be addressed and answered affirmatively in the present case was whether the risk of harm of the kind alleged to have been suffered by the plaintiff was foreseeable by the defendant in the sense that it was not insignificant in 1969 when the sexual assaults upon him were alleged to have occurred. Many superior court judges were not even born at that time. Historical evidence will invariably be required, absent formal admissions. It may be elusive.

9. [9]

   As a general proposition, as Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 illustrates, questions of knowledge of risk are an “obvious example” of the kind of question that may take on considerable importance in determining whether a defendant owed the plaintiff a duty of care: see at [64]. Ascertaining the answer to such a question may be acutely difficult in cases where the relevant time period by reference to which the question is to be answered was decades beforehand. That is not to say that an answer may not be ascertained but it is to identify what may be a real forensic difficulty for a plaintiff in such a case. It was a critical difficulty in the present case.

10. [10]

    Gleeson CJ’s judgment in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 (Modbury) furnishes another example of the close and detailed analysis often required to be undertaken in order to be satisfied that a relevant duty of care exists. That case involved a question of whether a duty of care was owed to an individual criminally assaulted by third parties on land occupied by the defendant, his Honour noting (at [26]) “the general rule that there is no duty to prevent a third party from harming another”. In the present case, as in Modbury, the duty of care asserted by the plaintiff was in part based upon the defendant’s ownership of the presbytery where the assaults were alleged to have occurred. One important matter emphasised by the Chief Justice in Modbury was that, in the determination of whether or not a duty of care was owed, question-begging by reference to the particular facts of the case was to be avoided: see at [35].

11. [11]

    I agree with Leeming JA that it may readily be accepted that, even in 1969, a Bishop with power to appoint and remove a priest to a parish, who knew that a particular priest had a history of committing sexual assaults upon children, would have been under a duty to take reasonable care to prevent those assaults recurring. But that was not this case, or at any rate, the evidence fell far short of establishing that it was.

12. [12]

    I also agree with Leeming JA’s assessment that, in finding the existence of a duty of care, the primary judge’s reasoning was, with respect, compromised by the incorrect basis upon which the parties had described the status of Fr Pickin and her Honour’s incorrect statement that he lived and was allowed to live alone. I also agree with what Leeming JA has said (i) as to the lack of any cogent evidence as to the state of knowledge of the Bishop at the relevant time as to the risks of wrongdoing by priests generally, let alone any knowledge in respect of Fr Pickin, and (ii) his Honour’s observations as to the exiguous and speculative nature of Fr Dillon’s evidence relied upon by the primary judge in this regard: see at [208]-[210] below.

13. [13]

    For the reasons given by Leeming JA and with which Ball JA also relevantly agrees, this appeal should be upheld on the basis that no duty of care was established.

14. [14]

    This makes it strictly unnecessary to address the question upon which Leeming JA and Ball JA have diverged, namely whether the primary judge erred in finding that the sexual assaults were established on the balance of probabilities. Given the significance of the case and the detail and care with which it was argued, it is appropriate for me to express my position briefly.

15. [15]

    Leeming JA has persuasively highlighted a number of significant difficulties with the primary judge’s reasoning leading to her Honour’s acceptance, on the balance of probabilities, that the sexual assaults occurred. These difficulties were in addition to the difficulties with the plaintiff’s evidence which the primary judge herself acknowledged in her reasons for judgment. While accepting that the unchallenged (and indeed corroborated) evidence of both the plaintiff and Mr Perry as to the fact of visits to the presbytery and the availability of alcohol there unquestionably provided the opportunity for the sexual assaults to occur, a point strongly emphasised by Ball JA in his reasons, the existence of that opportunity did not mean that the sexual assaults did occur nor did it provide a sufficient basis to conclude on the balance of probabilities that they did.

16. [16]

    I am inclined to agree with Leeming JA’s careful and detailed analysis in relation to the challenge to the primary judge’s findings of sexual assault although it is important to emphasise that the success of that challenge does not mean that the assaults did not occur but simply that there were material errors in the fact-finding process which vitiated the primary judge’s findings in this regard. Because, however, of the finding of an absence of any duty of care, it was neither necessary for his Honour (or me) to resolve the factual questions in a rehearing under s 75A of the Supreme Court Act 1970 (NSW) nor to remit the matter for a retrial.

17. [17]

    I agree with the orders proposed by Leeming JA.

18. [18]

    LEEMING JA: This appeal is brought as of right from a judgment of $636,480 entered against the appellant following a final hearing in the Common Law Division of this Court: AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2024] NSWSC 1183. The appellant challenges findings of sexual assault 56 years ago, by a priest who died a decade ago, upon the plaintiff (now the respondent) “AA” who was then aged 13. I shall follow the parties’ usage and refer to him as “the plaintiff”. The plaintiff first complained about the priest in 2023. Proceedings were commenced in 2024 and were expedited in light of his poor health (he suffered a probable stroke in 2013, and was later diagnosed with motor neurone disease). The appellant was found liable on two bases: it was vicariously liable for the priest’s intentional wrongdoing, and it was directly liable in negligence for breach of a duty to take reasonable care owed directly to the plaintiff. The judgment amount reflects damages on the former basis; damages for negligence are substantially less by reason of the operation of the Civil Liability Act 2002 (NSW), notably because of the absence of interest on damages for non-economic loss suffered some 55 years ago (s 18(1)(a)).

19. [19]

    The plaintiff accepts that the judgment insofar as it is based on vicarious liability cannot stand in light of Bird v DP [2024] HCA 41; 98 ALJR 1349, which was delivered some eight weeks later. The primary judge was aware of the fact that the High Court had reserved in an appeal in which the reasoning of the Victorian Court of Appeal upon which the plaintiff relied was challenged, but acceded to his request for an early determination. The plaintiff seeks to uphold the judgment below by reason of a non-delegable duty rendering the appellant liable for the priest’s assaults. In relation to the alternative cause of action in negligence, the appellant challenges, and the plaintiff seeks to maintain, the findings of the primary judge in relation to duty, breach, causation and damages. But most of the appeal was occupied by the appellant’s challenges to the primary findings of fact.

20. [20]

    Enough has been said to make it clear that this appeal and notice of contention give rise to many issues, some of which are novel questions of principle. They were efficiently presented by both sides, enabling the hearing to be completed in a single day.

Overview

1. [21]

   In 1969 at the time of the alleged assaults, the appellant was known as “the Trustees of the Roman Catholic Church for the Diocese of Maitland”. Despite the plurality of its name, the appellant was and is a body corporate, constituted as such on 1 August 1936 by s 4(2)(f) of the Roman Catholic Church Trust Property Act 1936 (NSW). Section 8 of that Act vested in it all Church trust property situated within the Diocese of Maitland. Previously title was vested jointly in the Bishop and the Diocesan Consultors: see eg recitals to the Roman Catholic Diocese of Lismore Church Lands Act 1908 (NSW) and James Munday, Ecclesiastical Property in Australia and New Zealand (Catholic University of America Press, 2014, being a thesis originally submitted in 1957), pp 23, 33-34, which falls within the class of “serious studies and inquiries and historical narratives” to which the Court may have regard: Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 196; [1951] HCA 5.

2. [22]

   The appellant’s name changed on 21 December 1995 with the insertion of s 5A into the statute (by Schedule 1 of the Statute Law (Miscellaneous Provisions) Act (No 2) 1995 (NSW)). Subsections (1), (3), (4) and (5) of s 5A of that Act have at all times provided:

3. [23]

   Subsection 5A(5) may reflect a change to the Diocese which was effective as a matter of canon law, but if that were so, there was no evidence of it. However, this Court may (pursuant to s 153 of the Evidence Act 1995 (NSW)) have regard to p 156 of the Government Gazette dated 12 Jan 1996 which contains a notice referring to the change of name to “Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle”. By either or both of that notification and s 5A, the name change was effective as a matter of civil law, and the appellant thereafter continued in existence under its new name.

4. [24]

   Section 3 of the Act provides that “[t]here shall be for each diocese trustees of Church trust property, who shall be the Bishop of the diocese and the Diocesan Consultors of the diocese”. Extracts from “The Official Year Book of the Catholic Church of Australia, New Zealand and Oceania” for 1968-1969 and 1969-1970 were in evidence, which showed that the Diocesan Consultors in both years included the Right Rev Monsignor Daniel Forde PP, VG, PA, the Right Rev Mgr Vincent Casey PP, VG and the Very Rev Philip Ryan PP, BA. In the earlier year, the Very Rev G P Youll PP and the Very Rev M J Fitzgerald PP were also Consultors. In the latter year, Rev Patrick Cotter PP, VF, Rev Gerard Flatley PP, VF, Rev Francis Coffey PP, VF and Very Rev Paul Simms DCL, Adm and Rev Terence Sylvester were also Consultors. The men’s titles show that all Consultors in 1968-1969, and at least the majority in 1969-1970, were relatively senior priests. The significance of this is that neither Fr James Doran nor Fr Michael O’Dwyer was a Consultor; they were merely parish priests under whom Fr Ronald Pickin worked as an assistant priest in the parishes of Adamstown and Wallsend between 1965 and 1973.

5. [25]

   The plaintiff was born in November 1955 and attended Plattsburg Primary School until the end of 1967 and then Wallsend High School in 1968, 1969, 1970 and 1971, in what was then described as “First Form”, “Second Form”, “Third Form” and “Fourth Form” but to which I shall refer anachronistically as Years 7-10.

6. [26]

   A half-yearly report from the primary school, dated December 1966, placed the plaintiff 5th in his class of 39 and 6th in his grade of 78 with the comment “A very pleasing report – good results in all subjects”. His high school academic performance failed to fulfil the promise in the primary school report. He left with a School Certificate in 1971 with passes in Mathematics, Geography, Technical Drawing and Metalwork, a credit in Science and a fail in English.

7. [27]

   The plaintiff claimed that the sexual abuse perpetrated upon him led to truancy, alcohol, illicit drugs, his leaving school at the end of Year 10 and a lost opportunity of a different career. A number of difficulties lay in the way of acceptance of that case, because of the unfortunate events which had occurred in his life. They are relevant to the last ground of appeal, and may be summarised as follows.

8. [28]

   The plaintiff’s mother died from melanoma when he was 7 or 8. The plaintiff told the psychiatrists who gave evidence at this trial that his father drank at the pub every night and came home drunk, whereupon the plaintiff was exposed to domestic violence between his father and his stepmother, and was in fear of his father. Two paternal uncles died from suicide. It was common ground between the psychiatrists called by each side at trial that all of those aspects of his history contributed to his psychiatric condition.

9. [29]

   The plaintiff had also himself been exposed to licit and illicit drugs from an early age. By his own account, his father provided wine to him each evening from the age of 5 and he drank alcohol heavily while at high school. He told a consultant psychiatrist retained by his solicitors that he was consuming up to 150g of alcohol each day, taking his first drink at 10am, and that he took LSD and cannabis from the age of 15. He served a 12 month prison sentence for possession of heroin in 1978, suffered a serious motor vehicle accident shortly after his release and was unable to work for two years and sustained a back injury in 1990 which when treated revealed a large empyema. The plaintiff and his wife had operated a soccer shop for some five years in the mid 1990s, without success; ultimately he lost his house and was declared bankrupt. Then in around 1999 the plaintiff suffered a serious workplace injury and at least from July 1996 and for many years thereafter received a disability pension. He continued to drink alcohol until his wife died, reporting that “his alcohol use was not a negative influence on his marriage as his late wife … also drank”. The psychiatrist recorded this history of his drinking as a young man:

10. [30]

    The plaintiff’s wife was diagnosed with lung cancer in 2005 and he cared for her until her death in 2011.

11. [31]

    At the time of the trial, the plaintiff did not have a good relationship with his son, and he had broken up with his partner in November 2023, after she had taken out two apprehended violence orders against him.

12. [32]

    It is difficult not to feel sympathy for a man whose life has contained so many misfortunes: familial, emotional, medical and financial. It remains the case that in order to obtain damages for the assaults he claimed were inflicted upon him in 1969, the onus rests on the plaintiff to establish that they caused loss. Sections 5D and 5E of the Civil Liability Act 2002 (NSW), which require the plaintiff to establish factual causation and scope of liability and impose upon him the onus of proof of any fact relevant to causation, apply retrospectively: Civil Liability Act, Schedule 1, cl 6(1).

13. [33]

    The plaintiff first made complaint of the abuse in around 2023. Thereafter the litigation has proceeded with a high degree of expedition. Most of the plaintiff’s evidence was taken on commission and recorded on video on 12 June 2024, prior to a trial over parts of four days in August 2024, at which the plaintiff was recalled and subjected to further cross-examination. The primary judge delivered judgment promptly thereafter, on 20 September 2024, and made orders on 18 October 2024. An appeal was lodged on 4 November 2024 and was heard in this Court on 27 February 2025.

14. [34]

    Fr Ronald Pickin, whom the plaintiff claims sexually assaulted him more than half a century ago, died in 2015. The Bishop who appointed Fr Pickin as assistant priest to the Wallsend Parish within what was then the Diocese of Maitland, the Most Reverend Dr John Toohey, died in 1975. The parish priest whom Fr Pickin was assisting at the time, Fr O’Dwyer, died more than 40 years ago. However, the plaintiff said that the abuse occurred when he and his best friend at the time, Alan Perry, visited Fr Pickin at the presbytery. Mr Perry is alive, and was called in the defence case. He confirmed the visits, confirmed that Fr Pickin had given the boys beer and cigarettes, but denied witnessing any abuse, saying that the two boys arrived and left the presbytery together.

15. [35]

    Despite the hearing taking place in open court, the primary judge invited submissions for the making of orders under the Court Suppression and Non-publication Orders Act 2010 (NSW): AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (No 2) [2024] NSWSC 1233. According to the transcript of 20 September 2024, following an email from her Honour’s chambers, counsel appeared on the morning the matter was listed for judgment, and her Honour confirmed that she had “raise[d] with the parties this morning something which it seemed to me might have been overlooked”, namely, orders preventing disclosure of the identity of the plaintiff and the tendency witnesses. At that stage counsel for the plaintiff had no instructions to seek such an order, but an email sent to the primary judge (with the consent of the other side) later that morning advised that the parties’ joint proposal was for an interim order for ten days after judgment was published, followed by a hearing on orders under the Act. The same email advised that counsel had “received instructions that the Plaintiff will seek a pseudonym order”. This Court was told that orders were subsequently made by consent, preventing the publication or disclosure of anything naming or otherwise identifying the plaintiff and a witness BB for a period of 40 years.

16. [36]

    The orders do not merely prevent “publication” of the names or anything which might identify the plaintiff and BB, although order (1)(e) does just that (s 3 defines “publish” to mean disseminate or provide access to the public or a section of the public by any means, and provides certain examples such as publication in various mass media or on the internet). In addition, order 1(c) provides that:

17. [37]

    That order goes further than a non-publication order. It is a “suppression order” which applies to communications which do not amount to publications. For example, it prevents BB from telling any member of his family anything which would reveal that he is the witness in this litigation for 40 years.

18. [38]

    The orders are difficult to reconcile with the statute.

19. [39]

    First, the reasons for the order contain no consideration of s 12(2) of the Act, which provides that “the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made”. When this was raised in this Court, neither party sought to defend the order’s duration.

20. [40]

    Secondly and more generally, the trial having been conducted in open court, in the ordinary course it will be inappropriate for any such order to be made, let alone one with a duration of 40 years. At least three considerations point against making any order.

    1. (1)

       The plaintiff chose to commence proceedings in this Court, to go to trial, to have the listing of hearing published each day in his own name, and to give evidence, without any order being sought under the Court Suppression and Non-publication Orders Act. Members of the public, including journalists, were able freely to report what occurred at the trial, no differently from most trials, and whether or not that occurred, there can no longer be any sound claim for confidentiality over anything that was said in open court or tendered without restriction.

    2. (2)

       The trial having taken place without any order being made, it is difficult to see how such an order could be necessary at the time of delivery of judgment to prevent prejudice to the proper administration of justice.

    3. (3)

       An order made after the event may have unfortunate consequences. The effect of such an order may be that it is an offence to repeat information which had formerly been able properly to be reported and discussed (for example, a law firm which had made a note of the case available to clients or on its website would be in breach, as would be a client who subsequently passed on that note to a friend).

21. [41]

    Thirdly, s 6 of the Act requires the court to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. Insofar as the reasons for judgment of the primary judge might be read as supporting the proposition that the public interest in open justice is satisfied merely by the trial taking place in open court, with orders made thereafter preventing publication of certain evidence after that event at the time judgment is delivered, it should not be thought that that is the law. To the contrary, ordinarily after a trial has taken place in open court there would no longer be any basis for orders under the Act. In Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 at [44], French CJ, Hayne, Kiefel, Bell and Keane JJ said that:

22. [42]

    Fourthly, only if one of the grounds in s 8 is made out may an order be made. Each of those grounds is framed in terms of an order being “necessary” for some purpose, including in the present case, the administration of justice. That is a relatively stringent criterion. It is not sufficient that the order be reasonable. Still less is it sufficient that the parties agree that it should be made. The Court making an order must be satisfied that it is “necessary”. In DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [40] this Court endorsed in relation to that test the following passage from Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30]-[31] where the High Court was addressing a cognate provision in the Federal Court of Australia Act 1976 (Cth):

23. [43]

    Recently, the New South Wales Court of Criminal Appeal and the Victorian Court of Appeal have separately confirmed that while it might appear reasonable to make an order under the Act, that is insufficient to satisfy the statutory test of necessity: Police Member 1 (a pseudonym) v Mokbel [2025] VSCA 34 at [68]; MA v Director of Public Prosecutions (NSW); AD v Director of Public Prosecutions (NSW) [2025] NSWCCA 54 at [36]. The latter decision also endorsed the proposition made in A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Ltd v A Lawyer (a pseudonym) [2020] NSWSC 1713 at [55] that “[m]ere embarrassment, discomfort, reputational damage or even financial loss are not sufficient (subject to the limited exception in s 8(1)(d) of the Act) to justify a departure from the principle of open justice”.

24. [44]

    Although the operation of the orders was raised during the hearing, the orders I propose will permit the parties to be heard on whether the order under the Court Suppression and Non-publication Orders Act should be revoked, with the result that this judgment will be amended so as to refer to the plaintiff’s name. However, in the first instance, these reasons will be published using the existing pseudonym “AA”.

25. [45]

    Separately from the above, the orders were made in part by reason of facts pertaining to a witness, known as “BB”, who is not a party to this appeal. BB’s evidence was also given in open court. Witnesses who are not parties are nonetheless entitled to procedural fairness: see the authorities in State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [39]-[40]. This Court should not vary or set aside the orders without first according BB an opportunity to be heard. The directions proposed below will give him that opportunity. Bearing in mind that he was merely a witness, I propose that the order be set aside, but on the basis that even if that occurs, BB will not be identified in these reasons. No aspect of the tendency evidence given by BB makes it necessary to identify him, and his evidence was of conduct by Fr Pickin which was accepted to have occurred and amounted to a serious criminal offence inflicted upon a child. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) does not apply in terms, but the policies underlying that legislation make it appropriate not to identify BB in these reasons when there is no need to do so. On the other hand, revoking the order may have advantages to BB. It will permit BB to tell his family, or a medical practitioner or a psychologist, if he so chooses, now or at some time in the next 40 years; as things presently stand those disclosures would be a breach of the order and therefore a serious offence.

26. [46]

    The reasons commence with the facts. Grounds 1 and 2 of the appeal challenge the findings of fact made by the primary judge, requiring this Court to conduct the “real review” explained in Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]; contrast the position in England and Wales: Lifestyle Equities CV & Anor v Amazon UK Services Ltd [2024] UKSC 8; [2024] 3 All ER 93 at [48]. If those factual challenges are made out, the appeal must be allowed. Ground 3 concerns an aspect of the way in which the primary judge treated Mr Perry’s evidence, which does not arise if grounds 1 and 2 are made out. Before addressing those grounds, these reasons start with what seems first to have been pointed out during the hearing of the appeal, which is that in 1969 Fr Pickin was not a parish priest, but merely an assistant priest in the parish of Wallsend.

27. [47]

    These reasons then turn to grounds 1-4 of the notice of contention, which proceeds on the assumption that the factual findings stand, but concedes that the finding of vicarious liability must be set aside following Bird v DP (this was ground 4 of the appeal). Grounds 1-4 of the notice of contention seek nonetheless to uphold the judgment (calculated at general law, rather than as governed by Part 2 of the Civil Liability Act) based on a breach of a non-delegable duty.

28. [48]

    Ground 5 of the notice of contention and grounds 5 and 6 of the appeal challenge the findings of duty and breach and causation. These grounds presuppose that the challenge to the factual findings has failed and that the judgment based on vicarious liability must be set aside.

29. [49]

    Finally, ground 7 of the notice of appeal challenges a component of the assessment of damages for negligence. Its premise is that all of the previous challenges have failed.

Contrary to the parties’ common position, Fr Pickin was not a parish priest

1. [50]

   The distinction between parish priest and assistant priest is basic. The office of parish priest traces to the parson, so-named because he was the legal persona of the church. Coke explained that “in his person the church might sue for and defend her right”: F Hargrave and C Butler (eds) The First Part of the Coke’s Institutes of the Laws of England (17th ed, 1817, W Clarke) vol 2, sect 528. Maitland’s famous essay “The Corporation Sole” deprecated the introduction at a very early stage of treating the parson as a corporation sole: see H Hazeltine (ed), Maitland: Selected Essays (Books for Libraries Press 1936) 73 at 82-83. This was (and is) reflected in the Code of Canon Law. I have relied on T Bouscaren et al, Canon Law: A Text and Commentary (4th ed, 1963, The Bruce Publishing Company) for the 1917 Code in the form it took in 1969, noting that the corresponding provisions in the 1983 Code have varied little. There could only be a single parish priest in each parish: “In one and the same parish there is to be but one pastor who exercises the care of souls”: §460.2 of the 1917 Code; §526.1 of the 1983 Code is to the same effect. The parish priest was obliged to live in the parish residence, which must be near the church: §465.1 of the 1917 Code; §533.1 of the 1983 Code is to the same effect.

2. [51]

   As will be seen below, the evidence in this case established that in many suburban parishes in Newcastle and Maitland in 1969, in addition to the parish priest there would be an assistant priest. The office was regulated under §476 of the 1917 code, and §§545-548 of the 1983 code, to much the same effect. The provisions are variously translated “parochial vicar” and “assistant priest” (the latter is found in Canon Law Society of Great Britain and Ireland, The Code of Canon Law in English Translation (1983, Collins)). The contemporaneous documents from the Diocese of Maitland use the term “assistant priest”, and these reasons adopt that usage.

3. [52]

   A number of high profile decisions based on claims of historical sexual abuse have been based on allegations against assistant priests. Assistant priests were alleged to have committed sexual abuse in Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117 (see at [1]), and in two recent decisions concerning historical sexual abuse decided by the High Court: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 (see at [86] and see [2021] NSWSC 1204 at [2]) and Bird v DP [2024] HCA 41; 98 ALJR 1349 (see at [9] and [11]). The most recent decision in this Court, CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313, also concerned an assistant priest.

4. [53]

   Some of the alleged breaches of duty squarely focus attention upon the distinction. The sexual assaults were claimed to have occurred in the presbytery, and it was pleaded that the breaches of duty included not “forbidding any priest to have access to a child in his residence”. The trial seems to have been conducted on the basis that Fr Pickin lived alone at the presbytery. But the parish priest was required to live in the presbytery, sharing that accommodation with Fr Pickin.

5. [54]

   The distinction between parish priest and assistant priest will be important when considering the extent to which some other person or entity is liable for the tortious conduct of the latter. This is a question of fact, not of law. Nonetheless, by way of example, the joint judgment in Bird v DP said at [13] concerning the assistant priest Fr Coffey, that “[t]he Bishop (and by him, the Diocese) exerted no direct control over Coffey’s hours of work, his day-to-day tasks or his manner of carrying them out. Such activities were subject to the supervision and direction of the parish priest, who in turn reported to the Bishop”.

6. [55]

   The foregoing is not to suggest that assistant priests were not subject to the direction of the Diocesan Bishop. The Bishop unquestionably had power to appoint a priest as assistant to a parish priest, and to remove him. But the immediate supervisor of an assistant priest located in a parish would be the parish priest.

7. [56]

   Unsurprisingly, there were very few contemporaneous documents from 1969 available at trial in 2024. But all of those which were relevant confirmed that Fr Pickin was an assistant priest in the parish of Wallsend. Those documents were as follows.

8. [57]

   First, an extract of “The Official Yearbook of the Catholic Church of Australia, New Zealand and Oceania 1968-1969” recorded the following:

9. [58]

   It may readily be seen that the Reverend Thomas Hayes was the parish priest (“P.P.”) at Adamstown, the parish church was the Church of Saint Columba, and Rev Ronald Pickin – whose name was not followed by “P.P.” – was an assistant priest. In that parish, the presbytery was on Lockyer Street. There is no reason to doubt that both the parish priest and the assistant priest lived in that presbytery, both men between them officiating at four services every Sunday and Holy Day.

10. [59]

    The yearbook identifies (at pp 149-155) some 55 parishes, each with its parish priest (a name followed by “P.P.”), most of which had another priest, in addition to the priests associated with the cathedral, those teaching in various schools, and who were members of other religious orders within the Diocese.

11. [60]

    Secondly, an extract of the minute book of the meetings of the Diocesan Consultors of Maitland for a meeting that took place on 1 January 1969 was in evidence. The Bishop, the Most Rev Dr J Toohey, presided over a meeting with three Consultors. At that meeting, two appointments of parish priests were made, recorded as follows: “Fr G. Martins (Denman) to be P.P. at Greta” and “Fr H. Coressy (army chaplain) to be P.P. of Denman”. A separate paragraph recorded: “the following appointments among the assistant priests were made: … Fr. R. Pickin Adamstown to Wallsend … Fr F Hinchy New Lambton to Adamstown”.

12. [61]

    Thirdly, and consistently with the decision recorded in the minutes of the Diocesan Consultors on 1 January 1969, the counterpart entry for Adamstown in the official yearbook for the following year, 1969-1970, states that the Rev Francis Hinchy was now located there, where Rev Thomas Hayes continued as parish priest. Under the entry for Wallsend was the following:

13. [62]

    Fourthly, the Diocesan records sheet for Fr Pickin stated that he was born on 31 May 1933, obtained a Leaving Certificate and then attended seminaries at St Columba’s Springwood and St Patrick’s Manly and was ordained on 18 July 1964, arriving in the Diocese on 22 December 1964. The record states the following chronological list of appointments in that Diocese (the following preserves the capitalisation and punctuation of the original document, which bears the hallmarks of being updated from time to time in different hands as Fr Pickin was appointed to different offices):

14. [63]

    Fifthly, a newly ordained graduate from a seminary would not, in the 1960s, ordinarily be appointed a parish priest. The entries in the Diocesan record sheet demonstrate that Fr Pickin was first appointed a parish priest in Wingham in 1978 some 14 years after being ordained. Fr Dillon, who gave expert evidence for the plaintiff, was an assistant priest for some 15 years after ordination, at three separate parishes, before being appointed parish priest. There is no reason to think that the “curacy” in the document reproduced above is anything other than a different, older, name for what is now normally described as an assistant priest. C G Hebermann et al (eds) The Catholic Encyclopedia (1908, Robert Appleton Co) vol 4 states at p 570:

15. [64]

    Sixthly, there is correspondence between Fr Pickin and the Bishop in mid 1978, after Fr Pickin had spent some five years as an army chaplain. The Bishop’s letter of 8 June 1978 to Fr Pickin, then based in Townsville at the Royal Australian Regiment, states:

16. [65]

    Fr Pickin responded by letter of 12 June 1978, stating that:

17. [66]

    As noted above, the Diocesan record states that Fr Pickin was first appointed a parish priest to the parish of Wickham on 8 July 1978. The documents shed no light on how that event, which according to the letters of 8 and 12 June four weeks earlier seemed so unlikely, came about. However, there are various letters written by Fr Pickin thereafter between October 1978 and 1982, all of which are on the letterhead of the Catholic Presbytery on Farquhar Street, Wingham. Letters from him dated 21 March 1983 and 26 June 1985 are on the letterhead of “St Joseph’s Presbytery, 34 Kenrick St, Merewether”.

18. [67]

    Seventhly, there is a letter from Fr Pickin to the then Bishop (the Most Rev Leo Clarke DD) dated 3 March 1981. The purpose of the letter was to write of a number of concerns Fr Pickin had about the way the Diocese was being run. It refers to his early years in the Diocese, before he was an army chaplain, and states:

19. [68]

    There is no reason to doubt that Fr Pickin was referring to his time as an assistant priest, first at Adamstown and then at Wallsend, working with those two parish priests. According to his Diocesan record sheet, he spent eight years at those locations, then some five years as an army chaplain before being appointed a parish priest at Wingham.

20. [69]

    Eighthly, there is the evidence of Mr Stephen McClung. I shall address the significance of his evidence and the use made of it by the primary judge in more detail later. Put shortly, his statement referred in terms to Fr Pickin becoming the assistant priest at St Columba’s (Adamstown) in 1965, following which he said that Fr Pickin repeatedly placed his hand on the outside of his trousers and felt his genitals while he was preparing for services or conducting a dress rehearsal. He said that in 1966, he went to speak to Fr Doran at St Columba’s. At that stage, Fr Doran was the parish priest. Mr McClung at least at that time was more closely engaged in Church affairs than an ordinary parishioner (which was why he was in the church outside ordinary times for Mass) and his statement discloses a familiarity with the distinction between parish priest and assistant priest. An issue arises in this appeal on paragraph 5 of the notice of contention, about whether the primary judge was correct to find that notice to Fr Doran did not equate to knowledge of the “Diocese”.

21. [70]

    The yearbook for 1966 was not in evidence. The 1969 yearbook states that by that time Fr Doran had become the parish priest at Wickham.

22. [71]

    There were not many documents from the late 1960s and early 1970s in evidence. The entirety insofar as light is shed on Fr Pickin’s activities at that time has been reproduced above. All point to his having been appointed an assistant priest in 1969. None suggests he was a parish priest.

23. [72]

    Indeed, it is likely that the change of location of Fr Pickin in 1969 came to the attention of the plaintiff and his lawyers in advance of trial, because the amended statement of claim that went to trial changed the timing of the sexual assaults from 1968 to 1969, and the plaintiff himself changed his account of when the abuse of which he complained took place from 1968 to 1969, coinciding with the transfer of Fr Pickin to the parish.

24. [73]

    Yet notwithstanding all of the contemporaneous documentary evidence, and the particular attention given to the office to which Fr Pickin was appointed in 1969, not to mention the testimonial evidence of Mr McClung, the plaintiff alleged that Fr Pickin was the parish priest at Wallsend. This was explicit in his pleading: “The Bishop appointed Pickin as Parish priest at St Patrick’s Church” (amended statement of claim, para 6). The pleader was evidently familiar with the distinction between parish priest and assistant priest, because para 10 alleged that canon law “conferred on the Bishop the power to appoint, remove and transfer[] parish priests and assistant priests in the Diocese, including Pickin”.

25. [74]

    Moreover, and again notwithstanding all of the evidence referred to above, not to mention the familiarity the defendant might be expected to have had with the organisation of the Catholic Church including a general appreciation of the normal trajectory of offices held by a Catholic priest, the defence admitted that Fr Pickin was a parish priest.

26. [75]

    The trial was conducted on that incorrect basis. The parties’ agreement affected the evidence. Expert evidence was adduced as to the role and responsibilities of the parish priest. Fr Dillon said that “in Australia in 1969, the Parish Priest was the highest local authority for the members of the Catholic Church and was answerable only to the Diocesan Bishop”. Obviously, that opinion does not apply to an assistant priest, who was directly answerable to the parish priest for his day to day conduct. As much was reflected in what Mr McClung in fact did in 1966 when making a complaint about Fr Pickin, then the assistant priest at St Columba’s in Adamstown. He did not go to the Bishop. Instead he went to the parish priest, Fr Doran.

27. [76]

    The parties’ agreement also affected the findings of the primary judge. Her Honour is not to be criticised for acceding to what had been common ground between the parties in an expedited trial. So far as I can see, at no stage was her Honour directed in terms to any of the documents mentioned above. They were included in what was described as “two bundles comprising Fr Pickin’s personnel file” at the end of the third day of the trial. When Fr Pickin’s status as an assistant priest was raised during the hearing of the appeal, it was said that the question whether Fr Pickin was an assistant priest or a parish priest was never explored below. It is regrettable that litigation of this nature, involving issues of the utmost seriousness to all parties, has been conducted on a materially incorrect basis.

28. [77]

    Parties may agree that their legal relations proceed on a counterfactual basis. A familiar example is a counterfactual recital to a deed. The response of the legal system is nuanced: broadly speaking, parties are bound at common law by their recitals, but an estoppel by deed was not available in equity: see the authorities collected in Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 at [53]-[54]. In litigation, parties may likewise admit factual allegations which are incorrect, and bearing in mind the role of courts to resolve issues, generally speaking the parties’ error does not relieve this Court from its obligation of deciding the litigation on the factual basis selected by them (see Commissioner of Taxation of the Commonwealth of Australia v 4 Doonan Street Collinsville Pty Ltd (in liq) [2016] NSWCA 69; 332 ALR 349 at [23]-[25]). However litigation may have an effect upon third parties, which is important to bear in mind when approaching a factually incorrect agreed position between the parties. Although parties can conduct litigation on a counterfactual basis, if that basis leads to findings of serious wrongdoing, especially by non-parties who cannot be heard, then in my view two consequences are to be borne in mind.

    1. (1)

       First, not lightly should such a finding which turns on a fact known to be false be made, especially in respect of a non-party who has not contributed to the incorrect basis on which the litigation has been conducted.

    2. (2)

       Secondly, if such a finding is to be made, then it should be made clear that the finding is based upon a counterfactual premise.

29. [78]

    This simply reflects the fact that non-parties might not choose to participate in litigation on the same counterfactual basis chosen by the parties.

30. [79]

    It will be seen below that the reasoning supporting the conclusion reached by the primary judge that there was a duty of care, which was breached, depended in part upon the factually incorrect agreed position that Fr Pickin was a parish priest. For example, two of the particulars of breach of duty which were emphasised in the plaintiff’s closing submissions were “Forbidding any priest to have access to a child in his residence” and “Properly supervising the conduct and practices of Pickin in the performance of his functions in the Diocese” (written submissions dated 20 August 2024, para 44). The facts that Fr Pickin would have been supervised by the parish priest Fr O’Dwyer, and if he lived in the presbytery would have shared that accommodation with Fr O’Dwyer, bear upon those particulars of breach. If the findings sought by the plaintiff were to be made, it would be desirable to note that the litigation was conducted on the basis, probably incorrect, that Fr Pickin lived alone in the presbytery.

31. [80]

    However, on the view I take, the status wrongly attributed to Fr Pickin does not alter the outcome of this litigation.

Reasons of primary judge resulting in factual findings

1. [81]

   A deal of the reasons of the primary judge addressed interlocutory rulings to which no challenge was made (including as to the admissibility of Fr Dillon’s reports, whether privilege in a draft statement of Mr Perry had been waived and whether Mr McClung’s evidence was admissible as tendency evidence). There is no occasion to review the reasoning, addressed to which the Court received no submissions, on those topics which occupy [15]-[88] of her Honour’s reasons. The evidence that was admitted was that of the witnesses Mr McClung and BB. I shall summarise their evidence, and the tendency reasoning that was authorised in respect of it, below.

2. [82]

   Paragraphs [89]-[182] constitute a section headed “Was AA sexually abused by Father Pickin?”. The finding that the plaintiff was sexually abused was the subject of sustained challenge in grounds 1 and 2 of the notice of appeal, and was the main subject of oral and written submissions in this Court, making it necessary to summarise the testimonial and documentary evidence bearing on the point, and her Honour’s process of reasoning in some detail.

3. [83]

   In his first statement, dated 15 March 2024, the plaintiff explained how the abuse occurred (in what follows I have corrected the spelling of “Pickin”):

4. [84]

   The plaintiff said that he had been placed in the top stream in Year 7. He said that:

5. [85]

   The plaintiff made a second statement on 31 May 2024, around a fortnight before his evidence was taken on commission. In that statement he corrected his evidence about timing. He said that Fr Pickin came to Wallsend High School at the end of Year 7 but started teaching scripture at the start of Year 8, and it was in that year, in 1969, that the sexual abuse occurred.

6. [86]

   That is a significant change from the unequivocal statements that the abuse occurred on the first ten or twelve Fridays of his first term at high school. It is not unusual for a complainant to be uncertain about precise dates. What makes the change significant is that this complainant expressed a high level of confidence that the abuse occurred at a particular time which would be memorable – Fridays in the first term of his first year at high school, but then came to appreciate that that must be wrong. There is no reason to doubt that it reflected an appreciation of the appointment of Fr Pickin as an (assistant) priest at Wallsend in January 1969. There is also no reason to doubt that the plaintiff in March 2024, when he made his first statement, genuinely and sincerely had come to believe that the abuse occurred in the first weeks of 1968. The plaintiff’s evidence of timing was, of course, demonstrably unreliable. Imperfection of recollection as to precise dates or even years is not an uncommon characteristic of many complainants of childhood sexual assault, and if that were the only defect, it would not greatly detract from the probative value of his evidence.

7. [87]

   The plaintiff was cross-examined about the change from 1968 to 1969, about how long it would take for him to drink six or seven glasses of beer so as to be paralytically drunk, about whether he saw anyone else in the presbytery, about either himself or Mr Perry being sent away to the shops each occasion, about being woken up with Fr Pickin’s penis in his mouth, and on the times when he was sent away, about returning and seeing Fr Pickin and Mr Perry in the living room of the presbytery.

8. [88]

   When the cross-examiner returned to the correction of the 1968 date, the plaintiff denied being told anything about when Fr Pickin was transferred to Wallsend, and said that he was thinking about it one night and knew that there was an error.

9. [89]

   The plaintiff said he did not recall telling a forensic psychiatrist retained by the defendant that (a) sometimes there was a third boy at the presbytery, (b) that the abuse occurred only in Year 7 and in the middle of the year, and (c) that he had lost interest in school in the second half of Year 7 and had then been dropped to 8B. There is no reason to doubt that the psychiatrist correctly recorded what the plaintiff had told him about the timing of the abuse, especially since the report goes on to express views by reference to school reports about a decline in performance in the second half of Year 7.

10. [90]

    The friend who had attended the presbytery with the plaintiff was Mr Alan Perry, who made a statement confirming that he and the plaintiff had attended the presbytery as high school students. He said:

11. [91]

    The plaintiff made a third statement in response which disputed the last paragraph of Mr Perry’s statement. It also referred to Mr Perry’s denial that he was sent to the shops, as follows:

12. [92]

    As a result, the plaintiff was further cross-examined, this time before the primary judge. He maintained that on some occasions he had left the presbytery to go to the shops, leaving Mr Perry alone with Fr Pickin, and that on other occasions he had been told by Fr Pickin that Mr Perry had gone home. It was squarely put to him that his account of Mr Perry leaving him while he was in the presbytery was untrue, and that his account of the abuse perpetrated by Fr Pickin was not true.

13. [93]

    Mr McClung said he was brought up Catholic by his father, and attended St Columba’s Church every Sunday. He said that he had been abused as a young teenager, aged around 14, by a priest, Fr Hodgson, at his Catholic high school. He said that when he was aged around 15, he confessed to the abuse in church. He said that in around 1965, Fr Pickin became the assistant priest, that he as well as other priests and nuns sometimes visited his home, and that for two Christmases and one Easter he was to deliver lessons to the congregation. The portions of his statement which were admitted pursuant to the tendency notice were as follows:

14. [94]

    (I note for completeness that another paragraph of Mr McClung’s statement (para 25) was included in the notice, but the plaintiff did not ultimately seek for that paragraph to be admitted. This was recorded in MFI4 – the document recording the defendant’s objections and the plaintiff’s response to them.)

15. [95]

    Mr McClung said that he was not affected so much as he had been by the abuse by the other priest at high school, because he was older.

16. [96]

    Later, as a first year university student, he went to speak to the parish priest, Fr Doran, who had also been his science teacher at high school, who was “a practical, level-headed guy who I respected a lot”. He said that he told Fr Doran of the sexual touching by Fr Pickin, but not the earlier abuse by the other priest at high school. In cross-examination, he said that his last year of school was 1965, and his first year of university was 1966.

17. [97]

    Although his church attendance dropped off while he was at university, Mr McClung married in 1972, with Fr Pickin officiating. There were two sons of the marriage, who attended a Catholic school at Merewether where, coincidentally, Fr Pickin was now the parish priest. He said that his family was involved with the Church and he sometimes delivered the Epistle on Sundays.

18. [98]

    In 1988, after Mr McClung was divorced, Fr Pickin moved from Merewether to Beresfield, but nonetheless he visited Fr Pickin and took him out for dinner or a coffee. He said that on a couple of occasions “Ron became very physical with me and attempted to touch my genitals”. Further, on two or three occasions he went with Fr Pickin to his beach house on Fingal Bay, and that after a few drinks “Ron got handsy and again tried to touch my genitals”. Each time he refused Fr Pickin’s advances.

19. [99]

    In cross-examination, Mr McClung accepted that he had been involved in civil and criminal proceedings in relation to the first priest, but had not made any complaint concerning Fr Pickin until his statement in these proceedings. He was asked to explain why that was, and said:

20. [100]

    BB was born in August 1965 and said he had lived in Wingham all his life. It will be recalled that the contemporaneous documents (the record sheet, and the correspondence between Fr Pickin and the Bishop of June 1978) establish that Fr Pickin was transferred to Wingham, his first parish as a parish priest, in July 1978 when BB was about to turn 13. BB gave the following evidence.

21. [101]

    BB was cross-examined and re-examined briefly. He said that he had made no complaint until 2022, in order to avoid embarrassing his mother. He had brought proceedings based on the abuse, which were compromised before trial. In those proceedings he had only identified a single act of touching in the presbytery. He said that “when I did that, I thought one was enough”, and that “I was just getting sorted out with it all” and “I just thought that was enough said”. BB was not cross-examined to suggest that the abuse he described had not occurred.

22. [102]

    Senior counsel at trial said, candidly, that “We don’t make any submissions about [BB] or Mr McClung to suggest your Honour shouldn’t accept their accounts”. Accordingly, the trial proceeded on the basis that Fr Pickin had, years before and years after the assaults to which the plaintiff attested, sexually molested other teenage boys on premises owned by the Church. I proceed on the same basis. The tendency reasoning that was authorised in respect of that evidence was that Fr Pickin had a sexual interest in boys, and sought out opportunities to achieve intimacy with boys, including by using Church premises for that purpose, and had a tendency to sexually abuse boys who were in his care when he was able to do so, and exploited his position as a priest by asserting his authority to enable him to act on his sexual interest in boys.

23. [103]

    The reasons resolving the central factual contest were divided into three sections. First her Honour addressed whether the plaintiff’s account must necessarily be rejected. Secondly, her Honour collected principles applicable to findings of fact in historic sexual abuse cases. Thirdly, her Honour turned to whether the plaintiff had established that the assaults he recalled had occurred.

24. [104]

    First, at [107]-[114], her Honour addressed the proposition that parts of the plaintiff’s evidence were untrue and other parts were unreliable, such that it could not be accepted. Those parts of the reasons did not address or resolve the attacks that had been made about what were said to have been the lies deliberately told when evidence was taken on commission, including about when the plaintiff had last seen Mr Perry and the circumstances in which the plaintiff came to have pleaded guilty to a charge of possession of heroin. Her Honour said merely at [108] that “There were problems with AA’s evidence, it must be accepted, but still I have concluded that the Diocese’s submissions cannot be accepted”. Her Honour concluded this section of her reasons with the conclusion at [114] that:

25. [105]

    Secondly, the primary judge then moved to a more general discussion of applicable principles in cases concerning events many decades ago, of which no criticism was made, and which need not be reproduced or summarised, save in one respect. This section concludes at [133] with the propositions that:

26. [106]

    If those sentences are to be understood as meaning that the removal of the limitation period alters the way in which evidence is to be assessed, or the way in which a plaintiff may discharge a burden of proof, then I would respectfully disagree. Courts for many years have evaluated the recollections of complainants in cases of child sexual assaults, notably in criminal prosecutions (hence the direction required by Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60). The removal of a limitation period for a class of civil litigation does not create a special regime for the evaluation of evidence in those cases. Nothing in the text of s 6A of the Limitation Act 1969 (NSW) produces such a result. Consistently with this, it may be noted that s 6A(6) explicitly provides that the section does not limit any jurisdiction or power of a court, which is difficult to reconcile with the section impliedly altering the fact-finding process. There is no reason in principle for the removal of a limitation bar to alter the way in which a plaintiff’s case is to be proved. In particular, the fact that, as the foreseeable consequence of the change in the law, hundreds of claims are pending in the Supreme Court of New South Wales invariably based on recollections of many decades ago, does not alter the way in which a trial at common law is to proceed. Were authority required for that conclusion, it may be found in the joint judgment in Willmot v Queensland at [30] (which post-dated the decision of the primary judge) and which confirmed that, contrary to one reading of her Honour’s reasons, GLJ did not alter the way courts deal with evidentiary imbalances. Willmot was dealing with an application for a permanent stay, but much of the reasoning applies to a trial. Referring to the “principles and techniques available to trial judges to deal with evidentiary imbalances”, the joint judgment said at [30]:

27. [107]

    The other members of the High Court agreed.

28. [108]

    Thirdly, her Honour turned to the longest section of her reasons, at [134], under the heading “Why AA’s evidence is persuasive”. The reasoning in this section is accurately described in the summary with which it commences:

29. [109]

    Her Honour thereafter summarised the evidence of the plaintiff and Mr Perry, identifying what was common ground and where they diverged.

30. [110]

    At [153]-[158] her Honour resolved a dispute as to when the visits to the presbytery occurred, favouring the plaintiff’s revised recollection of 1969 as opposed to Mr Perry’s recollection that they were 15 or 16.

31. [111]

    This reasoning was challenged in oral submissions, exemplified in the following exchange:

32. [112]

    The original statement of claim pleaded a case that the assaults took place in 1968, consistently with the plaintiff’s first statement. The amended statement of claim was filed on 4 June 2024, and pleaded that the assaults took place a year later in 1969. The plaintiff’s second statement, revising 1968 to 1969, was made a few days earlier. The defence to the original statement of claim (if there was one) was not included in the appeal books. Nor is it clear from the appeal books when the Diocesan records including Fr Pickin’s appointment as assistant priest at Wallsend in 1969 were produced. But there is no reason to doubt that, as counsel said, it was the defence that had pointed out that Fr Pickin was relocated to the Wallsend parish in 1969 which led to the changed pleading and to the plaintiff’s correcting statement.

33. [113]

    I shall return to the unreliability of the plaintiff’s recollection concerning the reason for his changed account from 1968 to 1969 below. But the presently relevant point from the passage above does not concern the shift from 1968 to 1969, but the shift to the middle of 1969.

34. [114]

    In response to those submissions, counsel for the plaintiff said, correctly, that Mr Perry accepted he couldn’t be clear about when the visits took place. He said that the plaintiff had later corrected his evidence from 1968 to 1969, and then asserted:

35. [115]

    Neither the plaintiff’s submissions, nor the reasons of the primary judge, adequately explain the finding that the assaults occurred in mid 1969. There are two difficulties with that finding.

    1. (1)

       The first is that it is clear that neither the plaintiff’s recollection nor Mr Perry’s was precise. The plaintiff had originally said the first weeks of Year 7, only to revise it to the beginning of Year 8, and earlier he had told a psychiatrist that it was the middle of 1968. Mr Perry said it was in 1970 or 1971 but couldn’t be sure. The result is that without more there is no rational way of preferring one account over the other.

    2. (2)

       The second is that the plaintiff’s amended recollection was that the visits to the presbytery occurred in the beginning of the year:

36. [116]

    The result is that including the history he gave to Dr Apler and both of his statements, the plaintiff identified three time periods: the beginning of 1968, the middle of 1968 and the beginning of 1969. The primary judge found the abuse occurred at a fourth time period, in the middle of 1969, without referring to the inconsistencies. Her Honour did so by relying on imperfections in Mr Perry’s recollection, which was (not unrealistically) more vague, but entirely consistent. The primary judge did not refer in terms to the fact that the plaintiff’s recollection was, on her own findings, unreliable on this point.

37. [117]

    The primary judge observed at [161] that Mr Perry could not recall the layout of the presbytery while the plaintiff could. Both recalled the poker machine. Mr Perry said he wasn’t much interested in it, but that the plaintiff was, and that “it was possible that there were times when AA might have gone to a different part of the presbytery, where he wasn’t present.” Her Honour thereafter stated at [163]:

38. [118]

    That reasoning may be accepted, but the possibility of the assaults occurring consistently with the evidence falls short of establishing that they did occur. Her Honour then turned to that point.

39. [119]

    The primary judge then said at [164]-[166]:

40. [120]

    The first two paragraphs of that reasoning turn on her Honour’s perception that the plaintiff’s memory was “vivid”, and the possibility that the alcohol coupled with guilt and shame led to his non-disclosure and the tendency evidence. The third paragraph is a conclusion about the quality of the plaintiff’s evidence concerning the assaults themselves, as opposed to the rest of his account, and (recalling the reasoning in the first part of the analysis at [107]-[114]) seems to be addressed to whether the plaintiff’s testimony was capable of sustaining a finding of fact, as opposed to whether such a finding should be made. Her Honour thereafter observed that there was opportunity for the assaults to occur when the plaintiff was playing on the poker machine, and that they would not necessarily have come to Mr Perry’s attention because of what was found in [169]:

41. [121]

    That paragraph is a finding that there were at least three boys, and possibly more, in the presbytery on the occasions of the assaults. No reasons are given for that finding, which is contrary to the plaintiff’s evidence in cross-examination and re-examination. It is not clear whether when finding that Mr Perry remained in the living room “with other boys drinking” her Honour was conveying that on some or all of the Fridays there were at least two other boys drinking in the living room with Mr Perry, or whether alternatively Mr Perry remained in the living room drinking with another boy each Friday, with the identity of that other boy varying on the various Fridays. Nothing turns on whether there were three or four or more than four. What is significant is that her Honour’s finding leads to another point in which the plaintiff’s recollection was demonstrably unreliable. In cross-examination, the plaintiff was asked whether there were others present, and maintained “I don’t remember any other person being there”, and in re-examination, any doubt about his recollection was clarified:

42. [122]

    Nowhere did her Honour identify that in addition to being wrong about when the assaults took place, and wrong about Mr Perry leaving the presbytery to buy alcohol or tobacco, the plaintiff was also wrong to recollect that there was never anyone other than himself and Mr Perry at the presbytery, aside from Fr Pickin. The plaintiff’s evidence “No, there never was” also contradicts the history taken from him by a psychologist not long before the trial.

43. [123]

    The primary judge then addressed newspaper reports decades later which mentioned Fr Pickin, which did not prompt the plaintiff to disclose the abuse, and did not cause Mr Perry to alter his positive opinion of Fr Pickin. Her Honour formed the view that Mr Perry’s evidence had to be approached “with a measure of caution”: at [181], because she identified “some resulting resentment towards AA”, and because Mr Perry “plainly did not believe that the abuse had occurred”. Her Honour had the advantage of seeing Mr Perry give evidence, and was entitled to form the view that there was a measure of resentment. From Mr Perry’s point of view, the plaintiff was advancing a case on a basis which Mr Perry considered to be false, and doing so without having spoken with him about it first, despite the fact that Mr Perry himself was a key participant in the central events, and so some annoyance or resentment would be quite natural. Despite her Honour’s statement that she would apply a “measure of caution” to Mr Perry’s evidence, she did not explicitly do so. Instead, she accepted his evidence, at no stage making any finding inconsistent with it, save for his belief that nothing untoward happened in the presbytery.

44. [124]

    Her Honour was conscious that since Fr Pickin did not mistreat Mr Perry, he had no particular reason to remember, but “by way of contrast, AA retained a vivid memory of what had happened to him when he regained consciousness on the floor of the bedroom, Father Pickin forcing him to perform oral sex, after he had been affected by the beer he had drunk”: at [177].

45. [125]

    Ultimately her Honour was persuaded by the “vividness” of the plaintiff’s account of the immediate aftermath of the sexual assault, as he regained consciousness and found Fr Pickin forcibly committing penile-oral intercourse upon him. This is perhaps clearest in the reasoning at [176]-[178] when seeking to reconcile the evidence of the plaintiff and Mr Perry:

46. [126]

    Her Honour concluded at [182]:

47. [127]

    In short, the primary judge’s reasons took the course anticipated by [134], the opening paragraph of the section. Her Honour considered whether there was a way of reconciling parts of the plaintiff’s account of what happened with the other evidence including that of Mr Perry, even if that were inconsistent with parts of the plaintiff’s account. This led to her Honour’s conclusion that the sexual assaults took place not while Mr Perry had been sent out to buy alcohol or cigarettes, but while he was in the next room of the presbytery with other boys. That was not inconsistent with Mr Perry’s evidence, although it was inconsistent with important aspects of the plaintiff’s case. In his sworn evidence (although not in the history given to a psychologist) the plaintiff denied that anyone was there other than Mr Perry; her Honour found that that was not so. The plaintiff asserted that the assaults took place when Mr Perry was acquiring alcohol or tobacco; her Honour found that did not occur. The plaintiff identified the beginning of 1968, the middle of 1968 and the beginning of 1969 as the times, ultimately settling on the beginning of 1969. Her Honour found that it was the middle of 1969.

48. [128]

    However, her Honour gave no explicit weight to the aspects of the plaintiff’s evidence that were demonstrably unreliable, save for a generalised mention at the beginning and end of the reasons. Her Honour did not identify the difficulties with the plaintiff’s account, including those which were a consequence of her Honour’s own fact-finding.

49. [129]

    The primary judge relied on the tendency evidence. Her Honour was entitled to do so. That evidence establishes that Fr Pickin was sexually interested in young boys, and was prepared to touch their genitals outside their pants, even when other people were nearby. That assists acceptance of part of the plaintiff’s case.

50. [130]

    Her Honour placed little weight upon the tendency evidence, mentioning it at [165] (“The tendency evidence also supports AA’s evidence about the oral sex he was forced to perform being accepted”). I respectfully agree that the tendency evidence was not especially probative. The position would be different if the plaintiff had claimed that Fr Pickin had touched him sexually while Mr Perry was in another room. That would be wholly consistent with the tendency evidence of Fr Pickin’s conduct in the church and vestry of St Columba when Fr Pickin was an assistant priest at a previous parish, and nine years later when he was a parish priest at Wingham. But the accounts of making 13 year old boys drunk and then performing penile-oral sexual intercourse upon them are quite different.

51. [131]

    The “vividness” of the plaintiff’s account plainly drove the fact finding process. There may in theory be occasions where one piece of testimonial evidence is found to have such cogency that it is determinative of all contested facts, especially where, as here, there was little by way of contemporaneous documentary evidence bearing upon the matter. Given the difficulty all people including judges have of distinguishing reliable testimony from sincerely believed but unreliable testimony, and from distinguishing either of those from false testimony, those occasions are apt to be rare. However, in such cases, it will be very important for the Court to explain why, if other evidence from that witness is demonstrably unreliable, nonetheless the portion of testimony relied on has the high level of cogency that is missing from the recollection of the same events by the same witness. It will also be very important for the Court to explain what it is about the witness’ evidence that gives it that quality of overwhelming cogency. Neither occurred in this case.

52. [132]

    As for the first, the primary judge did not in terms address the inconsistencies in the plaintiff’s own account of the sexual assaults, including those introduced by her Honour’s own findings (such as there always being at least one other boy in addition to the plaintiff and Mr Perry). It is far from clear on the face of the reasons that her Honour had regard to all of those inconsistencies, which were put to one side by passing references to “problems with AA’s evidence” at [108] and “despite the difficulties with his evidence” at [182]. In particular, nothing was said as to the inconsistency between the plaintiff’s account in cross-examination and re-examination and her finding at [169] that there were one or more boys in addition to the plaintiff and Mr Perry in the presbytery each Friday evening. The difficulties with the plaintiff’s evidence were so pronounced, and went so directly to the timing and opportunity for the sexual assaults, that it was not sufficient merely to put them to one side under the rubric of “problems” or “difficulties”.

53. [133]

    As for the second, for many decades both science and courts have emphasised the limited ability of judges to distinguish reliable truthful evidence from unreliable sincerely held beliefs, as well as from knowing lies. In Wong v National Australia Bank Ltd [2022] FCAFC 155; 318 IR 148 at [129] it was said by Katzmann, Charlesworth and O’Sullivan JJ that:

54. [134]

    In Prouten v Chapman [2021] NSWCA 207 at [12], Meagher JA and I made the same point, and emphasised that it was far from novel:

55. [135]

    A collection of decisions and writings is reproduced in The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 at [165] by Davies J, including by Lord Pearce, Leggatt J (as he then was), Sackar J, McLelland CJ in Eq, Keane JA, Hallen J, to which may be added Bell CJ’s comments in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [77] and those of Campbell J in Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 7) [2025] NSWSC 128 at [185]-[188] and Croft J in LL UP Pty Ltd v Kegland Distribution Pty Ltd [2024] VSC 651 at [18]-[24]. Each of Bell CJ, Davies J, Campbell J and Croft J referred to Leggatt J’s judgment in Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), where his Lordship said at [15]-[17]:

56. [136]

    At no stage in her Honour’s reasons is there consideration of the possibility that the plaintiff’s account was a sincerely held but unreliable belief of what had occurred half a century earlier, insufficiently probative to reach the state of satisfaction required. The description of the plaintiff’s recollection as “vivid” falls short of doing that, and illustrates precisely the error mentioned by Leggatt J.

57. [137]

    Moreover, the vividness upon which her Honour relied is a matter where this Court is, unusually, in a materially equivalent position. The plaintiff was not cross-examined on the sexual assaults when he was recalled at trial. The “vivid” evidence upon which her Honour relied was what she saw or read of the evidence taken on commission. I have seen that evidence, and I have seen it in precisely the same form that it was available to the primary judge. The plaintiff presents as giving the same unemotional account on this point as he did in relation to the balance of his evidence. It is the evidence of an ageing, extremely unwell, man. I accept that it was evidence of what the plaintiff sincerely believed when he gave it. But whether it is reliable is another issue.

58. [138]

    To reiterate, the plaintiff’s account was demonstrably unreliable in a number of respects.

    1. (1)

       The plaintiff’s original account that the offending happened in the first ten or twelve Fridays of his first term at High School in 1968 was demonstrably and concededly unreliable. That error was not a mere error as to timing. The error went to an issue in his case, because he had sought to establish that his decline in academic performance from Year 8 onwards was attributable to the abuse he suffered at the beginning of Year 7.

    2. (2)

       The proposition that the plaintiff independently and of his own accord came to the view, a fortnight prior to giving evidence on commission, that he had been a year out in his recollection, without any regard to the production of documents from the defendant, not to mention the amendments to his pleading, is highly implausible. It is more plausible that at some stage his lawyers, armed with the certain knowledge that Fr Pickin was transferred to Wallsend in January 1969, had raised with the plaintiff the possibility that Fr Pickin might have started taking religious education classes in the second year of high school, not the first, and that the plaintiff has forgotten that this is how he came to change his statement.

    3. (3)

       Thirdly, the plaintiff gave three different accounts of when the abuse occurred (the beginning of 1968, the beginning of 1969, and the middle of 1968), and her Honour’s finding (the middle of 1969) was inconsistent with all of them.

    4. (4)

       Fourthly, the plaintiff’s account was that either Mr Perry or the plaintiff himself would be asked to leave the presbytery to buy alcohol or cigarettes, leaving the other boy alone with Fr Pickin. That is squarely inconsistent with Mr Perry’s account which the primary judge accepted. It is not merely the implausibility of one or other of the boys being sent out at night to acquire beer or tobacco products, but the fact that on the plaintiff’s account the sending out of Mr Perry on the errand was the occasion for the sexual assault.

    5. (5)

       Fifthly, the plaintiff’s account in cross-examination and re-examination was that there was no one other than Mr Perry and Fr Pickin in the presbytery. That was rejected by the primary judge, who found that there was at least one other boy present on every occasion the plaintiff was assaulted.

59. [139]

    The foregoing points address the plaintiff’s evidence of events of 56 years ago. But the plaintiff’s evidence of much more recent events was also unreliable. In particular, it is very difficult to reconcile his account when giving evidence on commission that it could have been 10 years since he had last seen Mr Perry, with what was subsequently established, that they had in the last year met in a shopping centre and that he had visited Mr Perry at his home at which time the plaintiff was asked whether he wanted a dog he had bought. When confronted by this he gave this evidence:

60. [140]

    This Court has only the benefit of the transcript of the latter cross-examination, but I have seen the video of the plaintiff’s earlier cross-examination, which includes the following:

61. [141]

    There is nothing in those answers to suggest any lack of understanding. Counsel’s question “Was it 10 years ago?” responded to the plaintiff shaking his head and a movement of his hands which I would understand to emphasise his position that he has no memory of precisely when it was save that it was a long time ago. There is nothing in his answers, or in his gestures or in the tone of his voice to suggest any misunderstanding of what was a straightforward question, and indeed, one which was answered before counsel had finished asking it.

62. [142]

    One possibility which is consistent with the finding that Mr Perry and the plaintiff had met in the last 12 months or so and his evidence taken on commission is that the plaintiff, who has a poor life expectancy and who has abused drugs for much of his life, has a poor memory. That inference is consistent with a number of aspects of his evidence, including:

    1. (1)

       his seeming failure to recall that he had told the psychiatrist in March 2024 that there were other boys aside from Mr Perry present in the presbytery;

    2. (2)

       his failure to recollect that he had been prompted by his solicitors in May 2024 to reconsider whether the sexual assaults happened in 1969 rather than 1968, and

    3. (3)

       his failure to recollect when testifying in June 2024 that he had last seen Mr Perry in the previous 12 months, rather than ten or so years ago.

63. [143]

    A poor short term memory, in an ageing man suffering from a number of medical conditions, does not of itself preclude a reliable memory of disturbing events from his childhood. But when to those facts there is added a sustained abuse of alcohol from early childhood accompanied by illicit drugs as a teenager and young man, coupled with the frailty and malleability of much human memory, the possibility that the plaintiff has an imperfect memory of traumatic events of his childhood becomes quite real. And the possibility that the plaintiff’s memory of childhood traumatic events is poor needs to be evaluated in light of the fact that it is established that the plaintiff has an unreliable memory of the time of the traumatic events, and whether they occurred merely with Mr Perry or with other boys as well, and whether or not Mr Perry was with him in the presbytery when they occurred.

64. [144]

    For those reasons, I have concluded that the fact-finding process at first instance has miscarried. That is not because I do not accept the sincerity of the plaintiff’s account. Instead, it is because there was a deal of evidence to suggest that his evidence was insufficiently reliable, and the reasons of the primary judge do not disclose any real consideration of that issue save to acknowledge that there were problems with it but to reject the challenge to its reliability on the basis that his recollection was “vivid”.

65. [145]

    To be clear about it, my view reflects the fact that an adult’s recollection of even something so intrusive as a penetrative sexual assault can be quite wrong, despite that recollection being sincerely held. I am conscious of the malleability of memory, and that memory even of the most traumatic events can be distorted, especially with the passage of time and when the person is mentally unwell and has spent many years abusing licit and illicit drugs. I respectfully agree with Lord Leggatt, Bell CJ and Davies and Campbell and Croft JJ, that the “vividness” of a memory may be a poor indication of its reliability.

66. [146]

    The “real review” required to be conducted by this Court will occasionally warrant and require review of a credit-based finding of fact. That after all is the point of the observations in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29] and confirmed in Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55] that even if the facts fall short of being “incontrovertible”, there will be cases where the decision at trial is at least “glaringly improbable” or “contrary to compelling inferences”, such that an appellate court must not shrink from giving effect to its own conclusion, after making all due allowances for the advantages available to the trial judge. In other words, the fact that a finding is based on or informed by the demeanour of a witness does not immunise it from appellate review. It follows that there will be times when an appellate court can conclude that the fact-finding process has miscarried, even when the facts as found are demeanour-based findings, and notwithstanding the advantage of a trial judge.

67. [147]

    Such cases are likely to be rare. This Court said in Commonwealth Financial Planning Ltd v Couper [2013] NSWCA 444 at [67] that:

68. [148]

    By way of illustration, in Commonwealth Financial Planning Ltd v Couper a daughter gave evidence of her father’s consumption of beer which was contrary to financial records and contemporaneous records made by treating doctors. This Court said at [68] that:

69. [149]

    By way of further illustration, the appeal brought by Cardinal Pell proceeded on the assumption that the evidence of the complainant was credible and reliable. The High Court stated that the inquiry is whether notwithstanding that assessment – either by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence – the court is satisfied that the jury acting rationally ought nonetheless to have entertained a reasonable doubt of guilt: Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [39]. It is to be borne in mind that the complainant “A” gave evidence that when he was 13 the accused pushed him into a crouching position and pushed his penis into A’s mouth: see at [16]-[17]. The High Court reiterated that the analysis was to take place on the assumption that A’s evidence was “thoroughly credible and reliable”. There is no suggestion that A was mistaken in identifying his abuser, which he said took place after Sunday Mass in St Patrick’s Cathedral shortly after the accused was installed as Archbishop.

70. [150]

    In Hodgson v R [2022] NSWCCA 72 two brothers recalled distinctive sexual abuse which they said occurred when they were around 5 and 11, which was demonstrably unreliable in light of undisputed and objective testimony (for example the swimming pool they recalled where the offending occurred had not been built when the accused had left the area). The judge who conducted the trial said that the complainant who had been the older boy “did not appear to be exaggerating and his demeanour was consistent with the content of his responses” while the complainant who had been the younger boy “gave his evidence in a forthright and clear manner” and “impressed as a person who was confident of his recollection of events despite his age at the time”: see at [61]. There is no reason to doubt that the older brother had sincerely come to believe, decades later, that their former neighbour had sexually abused him when he was around 11. Unlike Pell v The Queen, the evidence supported the possibility that the boys had misidentified their abuser.

71. [151]

    Of course the plaintiff in the trial which gave rise to the present appeal did not have to discharge the burden of establishing what occurred in the presbytery beyond reasonable doubt. The criminal cases mentioned above illustrate that in principle a clear and sincerely held recollection of even something as invasive as a penetrative sexual assault may not be sufficient to discharge a legal burden of proof. I have concluded that in light of the difficulties with the evidence of the plaintiff, it was necessary in the circumstances of this trial to do more than to conclude that the plaintiff had a sincerely held and “vivid” recollection of the assaults. In particular, it was necessary to consider the possibility that the plaintiff had a sincerely held but unreliable memory of those assaults. This was not done, save by a cursory acknowledgement that the plaintiff’s evidence had “problems”. It follows that the process of fact-finding miscarried.

72. [152]

    In the present case, my conclusion that the fact-finding process has miscarried is based on (a) the suggestion by the primary judge that the removal of limitation periods affected the evaluation of evidence, (b) the failure explicitly to have regard to all of the inconsistencies in the plaintiff’s account, including those introduced by the findings made by her Honour, (c) the reliance on the plaintiff’s account as “vivid”, which, although I have seen the same recording as did her Honour, I am unable to perceive, and (d) the seeming acceptance that a “vivid” recollection is sufficient to exclude the possibility that the plaintiff was recounting a sincerely held but erroneous belief, the errors having come about through the effluxion of more than half a century coupled with the plaintiff’s unwellness and sustained abuse of licit and illicit drugs. I conclude that grounds 1 and 2 are made out.

73. [153]

    In many cases, that would lead to a consideration of whether this Court is able to make findings pursuant to s 75A of the Supreme Court Act 1970 (NSW), or whether instead it is necessary for there to be a new trial. A new trial is to be avoided, unless all other courses would result in some substantial wrong or miscarriage: UCPR r 51.53. However, as Basten JA noted in Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 at [17], while in some cases, where sufficient facts were incontrovertibly established by the evidence, a substituted judgment may be possible, it is also possible that an appellate court can detect error without being satisfied that a contrary finding was appropriate.

74. [154]

    Ultimately this turns on the weight to be given to Mr Perry’s evidence that the assaults described by the plaintiff could not have occurred, and his view that the plaintiff was giving unreliable evidence – matters which were the subject of ground 3. However, it is not necessary for me to reach a firm conclusion on whether there must be a retrial or to resolve ground 3, because I have also concluded that there was no duty of care owed to the plaintiff in 1969.

75. [155]

    In what follows I shall assume, favourably to the plaintiff, that the offending took place as her Honour found. It follows that he would have a claim for damages for intentional tortious conduct against Fr Pickin. That claim is not barred by the effluxion of time. However, the plaintiff did not seek to sue the personal representative of Fr Pickin, but instead sued the appellant. The primary judge found that the appellant was vicariously liable to the plaintiff for Fr Pickin’s tortious conduct, as well as directly liable in negligence.

Notice of contention – non-delegable duty (paragraphs 1-4)

1. [156]

   Senior counsel for the plaintiff sought to rely upon the reasoning and largely uncontroversial findings based upon the expert evidence of Fr Dillon in support of the proposition that the appellant owed the plaintiff a non-delegable duty of care to ensure that harm of the nature occasioned upon him did not occur. Such a duty had been pleaded, although no findings had been made. That was brought about by the plaintiff’s reliance on vicarious liability in accordance with the Victorian decisions of DP v Bird [2021] VSC 850 and Bird v DP (2023) 69 VR 408; [2023] VSCA 66. The plaintiff submitted at trial that J Forrest J’s decision was “comprehensive and convincing”, and that the appeal was dismissed, noting correctly that “the matter is currently reserved before the High Court”. Indeed, counsel for the appellant asked her Honour to reserve until the High Court judgment (which had by that point been reserved for five months) was delivered, but the plaintiff resisted that course, his counsel submitting “The state of the law is represented, we would say, by the reasons of the decision of the Victorian Court of Appeal. Your Honour is safe, in my respectful submission, to proceed on that basis”. The confidence of that submission was misplaced, bearing in mind that most applications for special leave fail, but if special leave is granted, there is as a matter of statistical probability a real chance the appeal will be allowed.

2. [157]

   The primary judge was of course obliged to accord considerable precedential weight to the decision of the Victorian Court of Appeal in the absence of any authority to the contrary from this Court, and notwithstanding the grant of special leave. It would also have been open to her Honour to delay delivering judgment until Bird v DP had been decided, although telling against this was the fact that the proceedings had been expedited in light of the plaintiff’s poor health. Nonetheless, his decision to seek judgment in advance of the High Court’s decision exposed him to the risk, which has eventuated, that through no fault of the primary judge, this aspect of her reasons cannot be sustained.

3. [158]

   The plaintiff’s reliance in this Court on a non-delegable duty was said to be consistent with what had been held in State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 and not precluded by the High Court’s more recent judgment in Bird. It was said on behalf of the plaintiff:

4. [159]

   The plaintiff emphasised that Bird did not address s 5Q of the Civil Liability Act, which provides that the extent of liability in tort of a defendant “for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task”. That section takes the concept of non-delegable duty developed in judge-made law, and treats the delegator’s liability as if he, she or it were vicariously liable. The plaintiff submitted that nothing in Bird v DP precluded reliance on deemed vicarious liability for intentional acts committed when there was a non-delegable duty. In that fashion the plaintiff submitted that s 3B of the Civil Liability Act was engaged, thereby permitting damages to be assessed other than in accordance with Part 2 of that Act, such that the judgment entered in his favour by the primary judge could stand.

5. [160]

   The submission was developed with some care, especially in oral submissions. However, in my view it is not open to any court below the High Court to accept it. As the law in Australia presently stands, a defendant cannot be liable for breach of a non-delegable duty based on an intentional wrong by the delegate (in this case, Fr Pickin). That was the force of Gleeson CJ’s reasoning in Lepore at [38]-[39], to the effect that a majority of the Court of Appeal had erred in relying upon a non-delegable duty for the sexual assaults committed at a school. Callinan J agreed at [339] with Gleeson CJ. Gummow and Hayne JJ were of the same view, stating at [265] that the understanding of a non-delegable duty “should not be extended to include responsibility for intentional defaults by delegates”.

6. [161]

   Very recently, in the joint reasons for judgment of Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ in Bird v DP (a pseudonym) at [42], the first reason given for rejecting the notice of contention sought to be relied upon by DP was that it

7. [162]

   True it is that Lepore may require revisiting in light of more recent cases culminating in Bird. But Lepore has not been explicitly overruled, and it is quite clear from what was said in Bird v DP that it has not been impliedly overruled. It follows that this Court is bound by that decision: Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48 at [17]. At one stage the plaintiff said that what was said at [42] was clearly obiter (transcript, 27 February 2025, 51.48). That is not so. It was the first reason for dismissing the notice of contention, and it was necessary for the High Court to address the notice of contention having overturned the reasoning based on vicarious liability. That is to say, the reasons for dismissing the notice of contention are part of the chain of reasoning which support the order that the appeal be allowed and the judgment of the Victorian Court of Appeal be set aside.

8. [163]

   For those reasons, paragraphs 1-4 of the notice of contention are not established. Even if the challenge to the findings of fact had failed, the judgment at first instance cannot be sustained.

9. [164]

   Nothing turns on this and the following four paragraphs, but in my view the position established by what has been said in Lepore and Bird is correct in principle. In order to succeed on a case based on a non-delegable duty, the plaintiff needs to establish that the appellant/defendant is taken to have owed a duty to ensure that Fr Pickin took reasonable care in supervising the plaintiff and the other boy or boys on Friday nights in the presbytery, so as to engage s 5Q of the Civil Liability Act. I shall pass over for present purposes the difficulties concerning the way the case has been pleaded against the appellant/defendant, which will recur when addressing the challenge to the finding of a duty to take reasonable care.

10. [165]

    A non-delegable duty amounts to a warranty that the person engaged by the defendant will exercise reasonable care. Sometimes indeed such duties are described as “vicarious”, although that label is unfortunate, as Edelman and Steward JJ observed in CCIG Investments Pty Ltd v Schokman (2023) 278 CLR 165; [2023] HCA 21 at [63]. Such a duty to ensure performance is owed directly by the defendant, and is breached when the person engaged fails to exercise reasonable care. Accordingly, there is nothing “vicarious” about it. But such a duty departs from the basic principles of liability and negligence, “by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken”: Commonwealth v Introvigne (1982) 150 CLR 258 at 271; [1982] HCA 40. That is consistent with Lord Sumption’s observation that non-delegable duties originated in the law of nuisance, in the 19th century, before the law of negligence was recast: Woodland v Swimming Teachers Association [2014] AC 537; [2013] UKSC 66 at [8].

11. [166]

    It is unsurprising that the conceptual foundation for a non-delegable duty is controversial. Fleming on Torts has consistently expressed the view that non-delegable duties represent “a disguised and fictitious form of vicarious liability” and that there is an “apparent absence of any coherent theory to explain when, and why, a particular duty should be so classified”: see now C Sappideen et al, Fleming’s Law of Torts (11th ed, 2024, Thomson Reuters) at [17.210]. “Common law resort to the notion of agency and non-delegable duties, it is suggested, derives from frustration at the limits of vicarious liability rather than any considered conceptual development of these doctrines”: P Giliker, Vicarious Liability in Tort (Cambridge University Press, 2010) at 144. Glanville Williams regarded the invention of non-delegable duties as a “typical piece of judicial legislation, designed to mitigate the mischief of the doctrine of common employment” by imposing a “personal” or “direct” liability by a process of assertion rather than clear reasoning: Glanville Williams, “Liability for Independent Contractors” [1956] Cambridge Law Journal 180; see also New South Wales v Lepore at [246]. The legislative abrogation (in this State by s 65 of the Workers’ Compensation Act 1926 (NSW)) of the doctrine of common employment meant that there was no occasion for the doctrine to survive. More generally, common law has long disfavoured strict liability, as observed in Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 at 30 (Mason J) and 42-43 (Wilson and Dawson JJ).

12. [167]

    None of the foregoing favours the creation of a non-delegable duty owed by a Bishop or other proper defendant to ensure that an assistant priest does not intentionally assault and batter a child by conduct which also amounts to a crime.

13. [168]

    What is more, any such duty would be incoherent with statute. For conduct committed after 2018, the Civil Liability Act imposes vicarious liability for such conduct upon a proper defendant, but subject to a presumption of breach if an individual associated with the organisation perpetrates child abuse, unless the proper defendant establishes that it took reasonable precautions: s 6F(3). That statutory response, and in particular the defence of reasonable precautions, cannot be reconciled with a non-delegable duty which of its nature is strict. Axiomatically, if the common law recognises a non-delegable duty, then it must apply at all times, including after 2018 when s 6F(3) commenced. In this country, judge-made law cannot be altered prospectively: Ha v New South Wales (1997) 189 CLR 465 at 503-504; [1997] HCA 34; Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29 at [55]; cf In re Spectrum Plus Ltd (in liq) [2005] 2 AC 680; [2005] UKHL 41 at [40]-[42] and Samsoondar v Capital Insurance Company Ltd [2020] UKPC 33 at [13]; [2021] 2 All ER 1105 (illustrating that the position in the United Kingdom is less absolute). To my mind, this consideration tells dispositively against the existence of a non-delegable duty.

The finding of duty of care (ground 5)

1. [169]

   The primary judge found that “the Diocese” owed a duty of care to the plaintiff. Although this was a novel case, the matter was treated as straightforward. By way of introduction, her Honour said at [220]:

2. [170]

   I shall return below to the reference to Fr Pickin being a parish priest and teaching at the local government school as a result. The starting point is to understand the language used by the primary judge, which conformed to that adopted by the parties in this litigation.

3. [171]

   To anticipate what follows, the primary judge and the parties used “the Diocese” in a special sense.

4. [172]

   The amended statement of claim contained the following allegations (the numbering and emphasis is that of the pleading which went to trial):

5. [173]

   The following matters may be noted.

6. [174]

   First, the plaintiff identifies “the Diocese”, twice, in the paragraph numbered 3. The second usage is the standard meaning of a geographical area. And indeed the evidence included, in p 126 of the yearbook, a description of the Diocese, as established in 1847, then extended, reduced and then extended again by Papal Briefs of 13 April 1866, 10 May 1887, and an undated brief of 1965, and a metes and bounds description of its 12,290 square miles (occupying the Pacific Coast from 10 miles south of Port Macquarie down to Catherine Hill Bay, with a border somewhat more than 100 miles to the west, including the townships of Scone, Merriwa and Singleton). However, the first use of “Diocese” in that paragraph is evidently not a geographical area. Rather it is said to be a legal person with functions of care, management and control over churches within the geographical area.

7. [175]

   Secondly, there is a grammatical ambiguity in the first-numbered paragraph 5 where “the Diocese” is defined. The most natural way of reading this paragraph is that the defined term “the Diocese” refers to the noun immediately preceding it, namely, “the Diocese of the Roman Catholic Church for Maitland-Newcastle”. Ordinarily, a defined term immediately follows the definition. Ordinarily, in the case of a lengthy name such as “the Diocese of the Roman Catholic Church for Maitland-Newcastle”, there would be a good reason to use an abbreviation, and a natural abbreviation to choose is “the Diocese”, since no other diocese is relevant to this litigation. The fact that the defined term is located in a relative clause is confirmatory of this. So too is the fact that in paragraph 4 and each of the second and third paragraphs numbered 5 (which refer to “parishes in the Diocese” and “a Catholic priest incardinated in the Diocese”) “the Diocese” is to be understood as a geographical area.

8. [176]

   But I have concluded that that is not how critical aspects of the pleading are to be understood. Instead, some references to “the Diocese” must be understood as references to the defendant – the body corporate established by the Roman Catholic Church Trust Property Act.

9. [177]

   I have reached that conclusion primarily because the substantive allegations in the pleading are framed in terms of “the Diocese”. Thus it was alleged that “the Diocese” owed a duty of care (para 33), the duty of care required “the Diocese” to take certain steps (para 36) and “a reasonable person in the position of ‘the Diocese’ would have taken reasonable precautions to prevent the Abuse” following which nine precautions are particularised (para 38). Those allegations make it clear that the pleader has chosen to define the term “the Diocese” but to use it sometimes to denote the geographical area, and elsewhere to denote a legal person. The pleading is not a model of clear drafting.

10. [178]

    As noted above, the amendments made by the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), which inserted Part 1A into the Civil Liability Act, apply retrospectively to civil liability arising before those amendments commenced (save where proceedings had already been commenced): Civil Liability Act, Schedule 1, cll 5 and 6.

11. [179]

    Further, Division 4 of Part 1B applies to “child abuse proceedings in respect of abuse perpetrated before the commencement” of that Division: Civil Liability Act, Schedule 1, cl 45. Division 4 comprises ss 6I-6P. Section 6I provides that the objects are to enable child abuse proceedings to be brought against unincorporated organisations, and to enable liabilities from those proceedings to be paid. “Child abuse proceedings” are defined in s 6J to mean proceedings for a civil claim arising from abuse of a child. Section 6K(1) authorises child abuse proceedings to be commenced against an unincorporated organisation. It may be noted that that is not how the plaintiff chose to commence the present proceedings.

12. [180]

    Sections 6L-6N address the appointment of a “proper defendant”, either by the unincorporated organisation or by the Court. Section 6P deals with what occurs when the trustee of an “associated trust” is appointed as the proper defendant. It was not suggested that anything turns on the provision, and I do not think that it does, and so there is no occasion to consider whether the appellant is an “associated trust”.

13. [181]

    The critical provision is s 6O:

14. [182]

    The plaintiff did not bring proceedings against an unincorporated organisation notwithstanding his entitlement to do so in s 6K. Instead, he sued the body corporate established by statute in which Church property located in the Diocese vests as the “proper defendant”.

15. [183]

    The appellant is an “entity” – it is a legal person constituted by the Roman Catholic Church Trust Property Act – and there is no reason to doubt that it satisfies the criteria in s 6M to be eligible as a proper defendant for an organisation. So far as I can see no order has been made in the proceedings pursuant to s 6N appointing the defendant/appellant as the proper defendant, and there is nothing in the evidence whereby the defendant/appellant has been appointed as a proper defendant by some unincorporated part of the Catholic Church or indeed that any such appointment complied with UCPR r 7.4. However, the first-mentioned paragraph 5 which alleged that the defendant/appellant was the “proper defendant” to a claim which relates to what was formerly the Diocese of Maitland has been admitted. It seems that the parties have proceeded upon the basis that the admission of the first-numbered paragraph 5 engages the deeming provisions of s 6O.

16. [184]

    That approach does not sit entirely conformably with statute. In particular, s 6O(a) deems the proper defendant so appointed to be the defendant in proceedings brought against the organisation. However, in the present case, proceedings have not been brought against an organisation, they have instead been brought against the body corporate constituted by the Roman Catholic Church Trust Property Act. I shall proceed, favourably to the plaintiff, on the basis that s 6O is engaged. If that is not so, and the defendant/appellant is to be taken to have merely the powers of the body corporate established by the 1936 statute, there can be no duty, whether non-delegable or otherwise, for central to the plaintiff’s case was that there was power to control and regulate a priest in a parish, and such power was vested in the Bishop, not the body corporate constituted by statute.

17. [185]

    Turning to s 6O(b), the words “anything done by the unincorporated organisation” are problematic, because the unincorporated organisation ex hypothesi is not a legal person and cannot itself do anything (as opposed to one of its members doing something). Likewise, an unincorporated organisation cannot owe a duty, because ex hypothesi it is a not a legal person. However, those provisions are to be construed so as to give effect to their purpose of permitting claims to be made against an unincorporated association. What follows was not the subject of argument, but so far as I can see accords with the joint approach adopted by the parties to this litigation.

18. [186]

    The allegations of duty and breach by “the Diocese” relied principally upon the power of the Bishop to appoint and remove and relocate and otherwise control priests in the Diocese, together with the property rights associated with ownership of the presbytery. The parties proceeded on the basis that there could be a duty owed by reason of the combination of powers of the Bishop and the legal owner of church trust property. This was illustrated by the following exchange:

19. [187]

    There was no identification of an “organisation” for the purposes of Division 4 of Part 1B. But the seeming intent of the pleader was to refer to that part of the Catholic Church within the geographical Diocese which was subject to the power and control of the Bishop of Maitland, as an unincorporated organisation, and for the defendant/appellant to be the proper defendant for a claim against that unincorporated organisation.

20. [188]

    A statement of “matters and facts not in issue” and a statement of issues were introduced at the commencement of the trial. It was agreed that “At all material times, the Diocese of Maitland-Newcastle (the Diocese) had the care and control of Catholic Churches in the Diocese”. This different definition of the same defined term adds to the confusion. Further, it is also clear that sometimes “the Diocese” was used to connote a geographic area (such as “At all material times, Fr Pickin was an incardinated priest of the Diocese”). Nonetheless, agreed issues 6 and 9 were “Did the Diocese owe the plaintiff a duty of care?” and “Did the Diocese breach a duty of care owed to the plaintiff?”

21. [189]

    The pleader proceeded on the basis that s 6O(d) entitled the Court to make findings against the Diocese as if the organisation had legal personality, with s 6O(b) having the effect that the things done by the organisation were deemed to have been done by the appellant, and likewise the duty said to have been owed by the organisation was a duty owed by the appellant.

22. [190]

    If that is in fact the nature of the case advanced by the plaintiff, then it would be highly desirable, both for clarity and because it is a material fact, to identify the particular unincorporated organisation that is said to be the organisation for the purposes of Part 1B. The problem is potentially acute because none of “the Diocese”, “the Church” and “the Bishop”, referred to in the five misnumbered paragraphs under the heading “The defendant”, was identified as an organisation for the purposes of Part 1B. While it is clear that the pleader was seeking in some way to engage the provisions of Part 1B insofar as conduct and duties are attributed to the appellant as a “proper defendant”, it may be arguable whether provisions like s 6O apply in the absence of identifying an organisation. The use of the defined term “the Diocese” in two distinct ways has not assisted a clear understanding of the plaintiff’s case.

23. [191]

    Division 4 of Part 1B of the Civil Liability Act performs a great deal of work – rendering possible what is impossible as a matter of law given the nature of unincorporated organisations. It is important for pleaders seeking to engage those provisions to think carefully, and to draft allegations with precision, especially when seeking to engage provisions which permit claims to be made against unincorporated organisations.

24. [192]

    The primary judge adopted the parties’ terminology, including the definition of “the Diocese” in the pleading, rather than in the statement of matters and facts not in issue. Her Honour seems to have labelled the defendant/appellant as “the Diocese”. This is clear from references to allegations and admissions by “the Diocese” (at [2]), a claim of client legal privilege made by “the Diocese” (at [12], [56]), and submissions made by “the Diocese” (at [99], [108]) and “the Diocese’s case” (at [107], [190]). Her Honour said that “the Diocese enabled [Fr Pickin] to invite boys to attend the presbytery he was given to live in alone on Church property”: at [189]. Her Honour recorded at [10]-[11] matters which were agreed and matters which were in issue. At no stage did her Honour refer to s 6O, or identify the unincorporated organisation to which the section applied, or define what was meant by “the Diocese”.

25. [193]

    As a matter of canon law, the Bishop was the public juridical person with power and responsibility to administer a diocese: see J Power, “Corporate and Canonical Governance: Understanding Church Property” (2019) 21(2) University of Notre Dame Australia Law Review 1. But it seems that the plaintiff wishes to proceed against that part of the Roman Catholic Church which operated in the Diocese of Maitland-Newcastle, including the Bishop with all of his powers, the appellant which owned Church property including the presbytery, and the priests and assistant priests appointed to offices within that Diocese. The organisation had procedures for keeping records, including a file for each priest showing his appointments, minutes of meetings of the Diocesan Consultors (including that of 1 January 1969 appointing Fr Pickin as assistant priest at Wallsend), and complaints about the conduct of priests and assistant priests. It is not clear beyond argument that s 6O can apply so as to agglomerate in a single “proper defendant” all of the aspects of the unincorporated organisation upon which a plaintiff relies, in circumstances where one separate legal entity (in this case, the body corporate established by the 1936 statute) has legal title to trust property and another (the Bishop) has powers of appointment and removal and control. However, in the absence of argument on the point, I shall proceed on that basis, which is favourable to the plaintiff.

26. [194]

    One final peculiarity in the pleading should be noticed. Although “St Patrick’s Church” was defined to be the church on Macquarie St in Wallsend, the pleading proceeded to conflate the church with the presbytery. Paragraph 23 alleged that Fr Pickin “invited the plaintiff and a classmate, Allan, to his residence St Patrick’s Church on Friday night” [sic]. Paragraph 29 alleges that “On each of those visits to see Pickin at St Patrick’s Church, Pickin gave the plaintiff” beer and cigarettes. The defence made it clear that the church was distinct from the presbytery, and the trial seems to have proceeded accordingly. However, one of the bases on which causation was alleged was:

27. [195]

    Once it is understood that the plaintiff must be referring to the presbytery rather than the church, that allegation is suggestive of something based on or analogous to the liability of an occupier.

28. [196]

    It is conventional when a plaintiff alleges a novel tortious duty of care to proceed incrementally. This has been the law in Australia since the demise of proximity as a useful informing principle: Miller v Miller (2011) 242 CLR 446; [2011] HCA 9 at [59]. Novel cases are difficult, and courts should proceed cautiously. Indeed, as six members of the High Court observed in Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; 98 ALJR 956 at [37]:

29. [197]

    It is far from clear that the primary judge adhered to that approach. In particular, one relevant consideration when addressing a novel tortious duty of care is the fact that a comprehensive statutory regime has now commenced, in the form of Part 1B of the Civil Liability Act. That regime deals squarely and innovatively with the difficulties of an absence of vicarious liability and the lack of incorporation of organisations, but for the most part applies only prospectively (ie to assaults alleged to have been committed by a member of an unincorporated association after 2018). That is a powerful consideration telling against a retrospective reformulation of judge-made law for those cases in which the legislature chose not to intervene. This falls within paragraphs (o) and (p) of the salient features enumerated in Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 at [103]. If Parliament had wanted radically to reformulate the liability of such organisations with retrospective effect, with corresponding consequences upon the insurance and record-keeping of those organisations, that could have occurred.

30. [198]

    The primary judge commenced her reasons under the heading “Did the Diocese owe AA a duty of care?” with [224]:

31. [199]

    That is a statement of conclusion. Reasons for judgment not uncommonly commence with the conclusion and then explain how it was reached. However, neither what precedes nor what follows explains why “the Diocese” owed a duty.

32. [200]

    The preceding reasoning concerning vicarious liability included the role to which Fr Pickin had been appointed giving him access to children, in church and at the local high school (at [210]-[211]), enabling him to invite them to the presbytery on Friday nights, “where the Diocese required him to live alone, because of his role as a parish priest”: at [212]. Her Honour noted that “[u]tilising the authority he had been given as a parish priest and the trust which parishioners had for him as a result, provided him the opportunity to assault AA as he did”, and that the beer and cigarettes involved an obvious breach of trust. Her Honour said that the Diocese “then knew” of risks which priests could pose to children, if alone with them: at [215]. Her Honour said that it was the Diocese which gave Fr Pickin the authority, power, trust, control and ability to achieve intimacy with the plaintiff, and opportunities to do so: at [216]-[217].

33. [201]

    The subsequent paragraphs addressed a submission advanced by the defendant that even if a duty were owed today, it was not owed in 1969. Her Honour said at [227]-[233]:

34. [202]

    I respectfully disagree with that reasoning, and the earlier reasoning concerning vicarious liability which substantially overlapped with it, upon which her Honour also drew in order to conclude that a duty was owed.

35. [203]

    First, it will be seen that the reasoning in [228] presupposed wrongly that Fr Pickin was a parish priest, who lived alone in the presbytery, without other adults present, and where “the Diocese empowered him alone to determine who he invited there”. Although the primary judge emphasised the solitary domestic situation of a parish priest, it is factually incorrect in the case of Fr Pickin (and many or most other assistant priests). Similarly her Honour’s repeated reliance in [229] on no other adults being present is factually incorrect.

36. [204]

    That said, the reasoning of the primary judge if it were based on the facts would not be without force. If an organisation took young men and placed them in positions of responsibility and isolation, including in regional and rural communities, it may readily be seen how this could be bad for the men and bad for the communities they served. Some aspects of the Church (for example, work on missions) did and do involve such isolation. But Fr Pickin was an assistant priest sharing a presbytery with Fr O’Dwyer PP in suburban Newcastle. Insofar as the primary judge’s reasons give emphasis to the privacy and sole power to control who else entered Fr Pickin’s residential accommodation in order to reach a conclusion on duty, it is highly regrettable that the litigation has been conducted on an incorrect factual basis.

37. [205]

    Secondly, and it is a small point, but the decision to permit Fr Pickin to conduct scripture classes at a government school was ultimately a decision of the head of that school and the State government. It may readily be inferred that the Headmaster or Headmistress chose, presumably conformably with the policy of the Department of Education at the time, to permit representatives of relevant religious denominations to attend government land on which the school was located, including Catholic priests (even though there was a Catholic high school in the area), and left it to the various denominations to determine who would attend.

38. [206]

    Thirdly, for the reasons already given, the factual matters in [230] are not made out, although the analysis in this section of my reasons assumes favourably to the plaintiff that the findings were as made by the primary judge.

39. [207]

    Fourthly, the primary judge turned at [231]-[232] to the “awareness which Bishops and other senior members of the Church then had about the risks which its priests could pose to children”. The reference to Bishops in the plural is suggestive that her Honour did not confine her analysis of duty to the people within the geographical Diocese of Maitland. But the unincorporated organisation in respect of which the parties have agreed the appellant was the “proper defendant” is, as explained above, to be understood as that part of the Catholic Church located with the geographic limits of the Diocese of Maitland, which had a single Bishop.

40. [208]

    Fifthly, the reasons misstate the evidence concerning knowledge. The reasoning at [231]-[232] assumes that senior members of the clergy were in fact aware in 1969 of the risks priests posed to children. The conclusion is based on Fr Dillon’s report. The primary judge had summarised Fr Dillon’s evidence on this point in [204]:

41. [209]

    However, in fact, what Fr Dillon had said was the following, in answer to “Question (i)”:

42. [210]

    It will be seen that Fr Dillon’s “likely” exception to an overall lack of awareness of Bishops, Religious Superiors and Provincials etc has been elevated in [204] and [231] to a finding of actual knowledge. Fr Dillon is not to be regarded as expressing an opinion of the actual or even likely knowledge of Bishop Toohey in 1969 of complaints made concerning priests in his Diocese. If that were how his opinion is to be read, it can be given very little weight. Fr Dillon was ordained on 1 June 1969, in Victoria, did not purport to have expertise of the level of knowledge of the Bishop of Maitland (or any other senior clergy in New South Wales) in 1969, and did not provide any reasons for any such opinion.

43. [211]

    Sixthly, in [231] her Honour referred to the Cunneen Report. That document was not in evidence. No submission was made that either the primary judge or this Court could have regard to it.

44. [212]

    This error most likely derives from a submission made by the plaintiff in the following terms:

45. [213]

    The submission overstated the evidence. All that was tendered was a report from a consultant psychiatrist, Dr Derek Johns, dated 5 November 1987, to the then Bishop of Maitland, Bishop Clarke, following consultations with Fr McAlinden. The context appears to have been allegations of sexual abuse of children, but the detail of those allegations is unspecified. The psychiatrist reported that Fr McAlinden “steadfastly maintained his innocence”, although admitting that during his work as a missionary in New Guinea from 1968-1976, he “may have become a little over familiar with children”. The report addressed the possibility that Fr McAlinden had suffered a psychiatric disorder or organic cerebral impairment, and concluded that he had not, doing so on the basis of the psychiatrist’s “initial impression” that “the alleged behaviour had occurred only relatively recently”. The psychiatrist then wrote:

46. [214]

    Taking that paragraph at face value, it may be assumed that Fr McAlinden served in the Diocese of Maitland in 1954, and that there was a discussion between the two men at that time. What was alleged and what was said between the two men is not known. It seems reasonable to assume that Fr McAlinden denied all wrongdoing, because that was the stance he took 33 years later and seems consistently to have maintained in the intervening years. But what was known or believed or suspected by Bishop Toohey prior to 1969 in relation to Fr McAlinden was otherwise not disclosed by the evidence.

47. [215]

    The paragraph of the 1987 report does not establish that Bishop Toohey knew or believed or suspected in 1969 that one of the priests in his Diocese was abusing children.

48. [216]

    The contemporaneous documents shed some tangential light upon this issue. The yearbook for 1968-1969 identifies Fr McAlinden as the parish priest at Greta. The yearbook for 1969-1970 shows Fr Cornelius Martens had become the parish priest at Greta, and Fr McAlinden was no longer in the Diocese. The minutes of the meeting of Diocesan Consultors for 1 January 1969 record “Fr D McAlinden (Greta) to New Guinea; Fr C Martens (Denman) to be PP at Greta”. Thus even if Bishop Toohey knew or believed or suspected that Fr McAlinden preyed upon children, in 1969 he was no longer in the Diocese.

49. [217]

    It may readily be accepted that a Bishop with power to appoint and remove a priest to a parish, who knows that a particular priest has a history of committing sexual assaults upon children, is under a duty to take reasonable care to prevent those assaults recurring. (I shall pass over the nuance in the previous sentence, for there will be many gradations of knowledge in such cases, but I would not confine the circumstances which engage a duty to those where there is certain knowledge of such crimes.)

50. [218]

    The melancholy fact is that some Catholic priests, prior to 1969, sexually abused children, thereby breaching fundamental aspects of their vocation as well as committing serious crimes. But it does not follow without more that in 1969 a reasonable person in the position of the Bishop would have taken steps on the basis that every priest was a potential child abuser. This turns on evidence. The plaintiff adduced no evidence of the prevalence of such priests in the 1960s and earlier. The only instances in the evidence were Fr McAlinden, which is addressed above, and what Mr McClung reported of Fr Pickin, which is addressed below.

51. [219]

    The plaintiff relied on the knowledge of Fr Pickin’s misconduct, which Mr McClung had reported at the time, to support the existence of a duty. This was the subject of paragraph 5 of the notice of contention, which was:

52. [220]

    Mr McClung was not cross-examined so as to invite the rejection of his account, and the primary judge regarded Mr McClung’s evidence as credible and reliable. Mr McClung said that Fr Pickin touched his genitals, outside his trousers, repeatedly, in 1965, when he was 16 or 17, when Fr Pickin was an assistant priest at St Columba’s Church in Adamstown.

53. [221]

    The primary judge accepted Mr McClung’s evidence, but did not rely upon it to establish that there was a foreseeable risk.

54. [222]

    Mr McClung said that in 1966:

55. [223]

    The plaintiff submitted that Mr McClung’s disclosure to Fr Doran ought to have led to a finding of actual or, at least, constructive knowledge by the Diocese, because Fr Doran was a priest in the Diocese, and, according to Fr Dillon, “the responsibilities of priests towards their parishioners … were consistent with the normal and traditional practice of the Church and the expectations of the people of the Parish”.

56. [224]

    The plaintiff submitted that child sexual abuse was abhorrent, and any right-thinking person would find any disclosure of such conduct deeply disturbing, and requiring report and investigation. He asserted that “it cannot be said that a reasonable person would have taken a contrary view in 1969”.

57. [225]

    The plaintiff submitted that:

58. [226]

    The appellant disagreed. The appellant submitted that what Mr McClung told Fr Doran was insufficient. It was not suggested that Fr Doran was a senior member of the clergy, “let alone a Trustee”, or that he in fact told anyone. The appellant’s submissions continued:

59. [227]

    (It was said or at least implied by both sides during the hearing that Mr McClung’s reporting of abuse during the confessional concerned Fr Pickin (including 27 February 2025 T 58.6 “reported the same thing to Father Doran and to another Father who had been giving confession”; see also T 25.23). That was an (inadvertent) error. Mr McClung said that he had been sexually abused by another priest, Fr Hodgson, in 1963, while a student at St Pius X High School, and had confessed that. That did not concern Fr Pickin, and in any event nothing was put to suggest that the priest who took Mr McClung’s confession was at liberty to pass on the information concerning that other priest to anyone.)

60. [228]

    I shall pass over the lack of precision in the submissions as to the meaning of “actual” or “constructive” knowledge of “the Diocese”, which were asserted but not explained in submissions. This issue may be resolved on the basis that (a) the mere report to Fr Doran of itself did not amount to the imputation of any form of knowledge to “the Diocese”, and (b) it was not established that Fr Doran was under any obligation to report what Mr McClung told him.

61. [229]

    Knowledge on the part of Fr Doran is not knowledge of the appellant, whether in its own right or as the “proper defendant”. The Roman Catholic Church was and is hierarchical. The knowledge of each and every priest is not taken to be the knowledge of the institution as a whole.

62. [230]

    Fr Doran was a parish priest. The plaintiff’s case turned on establishing knowledge by the Bishop or senior members of the Diocese. No attempt was made by the plaintiff to establish who they were. Whoever they were, it was not suggested that Fr Doran was one of them. So far as the evidence suggests, he was not. The yearbook for 1969-1970 identifies seven Diocesan Consultors, the Diocesan Chancellor, and the members of a large number of committees (including the Vicars Forane, the Synodal Judges and Examiners, the Pro-Synodal Judges and Examiners, the Parish Priest Consultors, the members of the Tribunal for Matrimonial Causes, the Diocesan Commission for Sacred Liturgy, the Censor of Books, the Diocesan Director of Pontifical Mission Aid Societies, the Diocesan Directorate of Education, the Director of the Diocesan Priests’ Eucharistic League, the Director of Pastoral Course for Priests, the Director of Priestly Vocation Campaign, the Catholic Family Welfare Bureau and the Sick Clergy Relief Fund Trustees) and Fr Doran was a member of none of them.

63. [231]

    If Fr Doran were an employee, it would not follow that his knowledge would be imputed to his employer. The question of imputation of knowledge of a company’s officers and employees to the company depends in every case on context, and is not automatic. That fundamental proposition was emphasised by Lord Hoffmann in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500; [1995] UKPC 5 and has been repeatedly applied in this jurisdiction: see for example Anderson v Canaccord Genuity Financial Ltd (2023) 113 NSWLR 151; [2023] NSWCA 294 at [255] and Aidzan Pty Ltd (in liq) v K. & A. Laird (N.S.W.) Pty Ltd (in liq) [2024] NSWCA 185 at [70]. In South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8, Basten JA said for this Court at [112] that:

64. [232]

    Parish priests are not employees, and there is no reason why, in the absence of a duty to communicate a complaint, more senior priests within a diocese should have the parish priest’s knowledge attributed to them. No submission was made that the effect of s 6O(b) was that the knowledge of each and every priest in a diocese was to be imputed to the proper defendant. If so, that would place unincorporated associations in a different position than incorporated organisations, which would be contrary to s 33 of the Interpretation Act 1987 (NSW). It would also be unrealistic. It is to be borne in mind that the Diocese of Maitland took in the entirety of one of Australia’s largest cities, and more than 12,000 square miles, and there were in the order of 55 parishes and some 200 priests and nuns.

65. [233]

    The analysis of the position at law is not assisted by invoking metaphor. The Bishop may as a matter of canon law be in “communion” with a priest who learns of an allegation (just as he may be in “communion” with the assistant priest who committed the assault). That does not mean as a matter of the law of negligence that the knowledge of the priest (or the assistant priest) is imputed to the Bishop.

66. [234]

    Nor do I accept the assertion that in the late 1960s it was clear beyond any argument that a priest to whom a complaint was made of sexual abuse such as that told to him by Mr McClung, a first year undergraduate, concerning touching of his genitals the previous year when he was around 17, should have been passed on.

67. [235]

    This is a question of evidence. It turns on what a reasonable person in the position of Fr Doran in 1969 would have done. It is important not to assess what a reasonable person in Fr Doran’s position in 1969 would have done against the expectations and knowledge of 2025. The plaintiff did not adduce any evidence that in response to the report of the abuse described by Mr McClung, Fr Doran or some other parish priest would take the matter further. Such evidence as there was pointed in the opposite direction. As the appellant pointed out, Fr Dillon confirmed that in the late 1960s, “[a]mong Catholic people and even among the vast majority of Priests, Religious Brothers and Sisters, the tragic catalogue of offences and crimes which have been so well documented and proven since the mid-1980’s was still virtually unknown”.

68. [236]

    A further matter bearing upon whether a reasonable person in the position of Fr Doran would have taken further steps was the attitude of Mr McClung. There was no reason to think that Mr McClung sought to take the matter further. To the contrary, Fr Pickin officiated at Mr McClung’s wedding in 1972, and his family continued to be involved in the church, including with Mr McClung reading Epistles on Sundays at Merewether where Fr Pickin was parish priest in the 1980s. Of course, Mr McClung’s subsequent conduct was not known in around 1966. Nonetheless, Mr McClung’s conduct after 1966 tends to confirm that when he reported the allegation to Fr Doran he did not expect any further steps to be taken.

69. [237]

    I am inclined to agree that what was said by Lord Neuberger MR in Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256; [2010] 1 WLR 1441 at [65] was equally applicable in Newcastle in 1969:

70. [238]

    It is to be borne in mind that the abuse of which Mr McClung complained was the repeated touching of his genitals, outside his trousers, when he was aged around 16 or 17. It was very wrong of Fr Pickin to do so. It was a crime, it was contrary to Fr Pickin’s vocation, and it was contrary to the relationship of trust which Mr McClung was entitled to expect from a priest. But the wrongness of what Mr McClung reported does not mean that the plaintiff is released from his obligation to establish by evidence all elements of his case.

71. [239]

    The issue is whether the plaintiff established that Fr Doran was under any obligation to report what he had been told. Let it be assumed that Fr Doran considered that Mr McClung’s account of what Fr Pickin had done a year before was credible. He should have raised it with Fr Pickin. He may have done so. Fr Pickin may have denied it. He may have said that he could recollect a time when he accidentally touched Mr McClung, but denied any intention to do so. He may have said that he had touched him deliberately, had been in a deal of internal turmoil about it, and said that it would not recur. It is most unlikely that Fr Pickin told Fr Doran that he took every opportunity to indecently assault children entrusted into his care, and would continue to do so. All this is speculation, serving to emphasise what is absent from the evidence relied on at trial.

72. [240]

    It may fairly be said that establishing that Fr Doran did something, or ought to have done something, some 60 years ago, is a heavy burden for the plaintiff in a case such as the present. But it is a consequence of the fact that the plaintiff has sued someone other than Fr Pickin in relation to a tort committed many decades ago by Fr Pickin, of which he made no complaint until 2023, leading to the result that he needs to establish that the Bishop or senior priests in the Diocese of Maitland had some level of knowledge, in 1969, that Fr Pickin posed a risk to children.

73. [241]

    In the absence of evidence of any knowledge or belief or suspicion by the Bishop or senior priests in the Diocese that Fr Pickin posed a risk to children, I do not see how the appellant, making every assumption in the plaintiff’s favour as to the effect of Part 1B of the Civil Liability Act and the parties’ agreement that it was the “proper defendant” for a claim against the Catholic Church insofar as it operated in the Diocese of Maitland in 1969, owed a duty of care to the plaintiff. Ground 5 is made out.

Remainder of appeal

1. [242]

   The appellant also challenged the findings of breach and causation. The essence of the challenge was that the primary judge erred in her main conclusions of breach, which were that the Bishop should have forbidden priests to have access to a child in his residence, and that senior members of the Church should have informed parents and guardians of the nature of child sexual abuse and implemented mandatory reporting and professional standards. Her Honour concluded at [264] and [270]:

2. [243]

   This is problematic. Not permitting a priest to have children in the presbytery without other adults present presupposes, contrary to the fact, that Fr Pickin lived alone. Moreover, it may be doubted that the position is as black-and-white as those reasons suggest. Many parents and step-parents inflict physical and sexual abuse upon their children (indeed, the plaintiff on his own case was an example of this). There will be cases where a child will need the advice and perhaps protection of a priest or nun who can take steps to prevent an abusive domestic situation. Was the Bishop to issue a command denying any priest to open the door to a child in his parish who was in evident need? And it is far from obvious that if the Bishop had done so, it would have made any difference to Fr Pickin’s conduct.

3. [244]

   It is also doubtful that it has been established that a programme of community education was a precaution which a reasonable person in the position of the defendant in 1969 would have taken. The appeal must be decided on the basis of the evidence adduced at trial. The evidence of knowledge in 1969 was a complaint by Mr McClung, and a much earlier complaint concerning Fr McAlinden who had by 1969 been removed from the Diocese, and the opinion of Fr Dillon which confirmed that among “the vast majority of Priests, Religious Brothers and Sisters, the tragic catalogue of offences and crimes which have been so well documented and proven since the mid-1980s was still virtually unknown”, subject to the “likely exception” of “some people in positions of high authority in the Church, such as Bishops, Religious Superiors and Provincials etc”.

4. [245]

   However, in light of what has already been said above, nothing turns on the appellant’s grounds based on breach of duty and causation. Further, the litigation has been conducted on an incorrect factual premise, and there is limited utility in reviewing a finding of breach by not forbidding a priest to be alone with children in a residence when the priest in question did not live alone in the presbytery. Finally, these matters were far from the forefront of the appeal. I conclude that it is not appropriate to resolve these issues.

5. [246]

   Ground 7 contended that the primary judge erred in finding that the plaintiff had suffered any loss of earning capacity as a result of the acts or omissions of the appellant after 1 January 1996. This relates to a component of $90,480, and turns on the plaintiff’s unfortunate financial and medical history, not all of which could be attributed to anything done by Fr Pickin. The appellant complained that the plaintiff’s written submissions “do not appear to address that matter”. That submission has force, on my reading of the submissions. Neither side elaborated the position orally.

6. [247]

   The reasons for the principal judgment contemplated a further hearing concerning quantification of loss. In a subsequent judgment on costs, which I reviewed in the course of preparing these reasons, her Honour recorded that the parties agreed an amount of economic loss, including interest, of $90,480: AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (No 3) [2024] NSWSC 1444 at [1]. The appellant seemingly now contends that that was in error. However, the appellant made no submission explaining why, or even contending that, the primary judge was in error in stating that the amount of $90,480 was agreed.

7. [248]

   Had this ground arisen, I would have invited the parties to provide further submissions, neither having addressed what the primary judge said had been agreed. There is no utility in doing so in circumstances where the ground does not arise.

Conclusion and orders

1. [249]

   The appeal should be allowed because (a) the findings of fact by the primary judge cannot stand, (b) in any event, the judgment was based on a concededly unsustainable view of vicarious liability, and the submission that the appellant owed a non-delegable duty to prevent Fr Pickin’s intentional criminal acts is precluded by authority binding this Court, and (c) the appellant was not shown to have owed a duty of care in 1969.

2. [250]

   The orders made at first instance should be set aside, and in lieu thereof the proceedings be dismissed. There may in light of interlocutory decisions after judgment be a need for orders by way of restitution; if so, the parties should supply agreed orders, or alternatively a minute containing the further orders sought, and submissions not exceeding three pages in support of those orders, within the next 21 days, with submissions from the other side within seven days thereafter. It is clear from the earlier judgments that Calderbank offers were exchanged prior to trial. The parties should supply agreed orders as to costs at first instance and in this Court, or alternatively the regime identified above will apply to the costs orders.

3. [251]

   The orders I propose will also permit the parties, and BB, to be heard as to the revocation of the non-publication orders made in relation to the plaintiff and BB, such that the plaintiff’s identity would be disclosed in the coversheet of this judgment, although BB would continue to be referred in these reasons by that pseudonym.

4. [252]

   I propose these orders:

5. [253]

   BALL JA: I agree for the reasons given by Leeming JA other than in relation to grounds 1 and 2 of the notice of appeal that the appeal must be allowed. I also agree that for the reasons his Honour gives the parties and BB should be heard on the revocation of the non-publication orders made in relation to the plaintiff and BB. It follows that I agree with the orders proposed by Leeming JA. Moreover, I accept that there are some difficulties with the way in which the primary judge went about the fact-finding process. However, I do not accept that her Honour erred in concluding that the plaintiff was sexually abused by Fr Pickin on several occasions in the presbytery in the way that the plaintiff alleges (that is, by Fr Pickin forcing him to suck Fr Pickin’s penis).

6. [254]

   The conclusion that the plaintiff was sexually abused by Fr Pickin in that way depends, of course, entirely on acceptance of the plaintiff’s evidence that he was. In evaluating that evidence, it is important to bear in mind certain facts which are not in dispute.

7. [255]

   It is not in dispute that the plaintiff went to the presbytery with Mr Perry on 10 to 12 occasions on Friday evenings after dinner. The plaintiff says and it seems likely that they went at Fr Pickin’s invitation. Fr Pickin had met the boys while teaching Christian studies at their school. While the boys were at the presbytery, Fr Pickin supplied them with cigarettes and alcohol. He also had a poker machine that was kept in a dressing area off Fr Pickin’s bedroom. The plaintiff, but not Mr Perry, spent time in the bedroom playing with the machine. The plaintiff was 13 at the time.

8. [256]

   As Leeming JA explains, the tendency evidence of Mr McClung and BB established that Fr Pickin had a sexual interest in boys and sought out opportunities to establish intimacy with boys, including by using Church premises for that purpose, and had a tendency to sexually abuse boys who were in his care when he was able. The plaintiff stopped going to the presbytery after about 12 visits and apart from one occasion, which is the subject of dispute and which is said by Mr Perry to have occurred many years later in a nursing home, did not see Fr Pickin again. It is not suggested that the plaintiff lied in giving evidence concerning the abuse. Consequently, either the abuse happened or the plaintiff is mistaken about it.

9. [257]

   In my opinion, the uncontested facts provide strong corroborative evidence of that given by the plaintiff. Those uncontested facts establish that Fr Pickin had an interest in boys and given the opportunity would sexually abuse them. He sought to create that opportunity by inviting the plaintiff and Mr Perry to the presbytery and supplying them with alcohol and cigarettes. It is difficult to see what other plausible explanation there could be for the fact that Fr Pickin provided the boys with alcohol. The fact of the abuse explains why the plaintiff stopped going to the presbytery and (leaving aside the contested later meeting at a nursing home) had nothing further to do with Fr Pickin. The psychiatrists retained by the plaintiff and the appellant in a joint report prepared for the purposes of the proceedings below accepted that the plaintiff’s subsequent conduct was consistent with the abuse he said he suffered.

10. [258]

    I appreciate that in this context there was a factual dispute left unresolved by the primary judge concerning how much alcohol the plaintiff drank. The plaintiff says that he became paralytically drunk and on one or more occasions passed out. Mr Perry, on the other hand, gave evidence that he never saw the plaintiff paralytically drunk. But in my opinion nothing turns on this discrepancy. It was the plaintiff’s evidence that he had five to seven glasses of beer. The plaintiff also says he had a glass of wine each night at home with dinner. None of that evidence was contested. Two points follow from it. The first is that Fr Pickin encouraged or permitted the plaintiff to drink the quantity of alcohol he did at the presbytery. The second is that that quantity of alcohol was sufficient to make a 13 year old boy drunk.

11. [259]

    Justice Leeming has given a number of reasons for not being satisfied to the requisite standard that the plaintiff’s evidence of abuse was reliable notwithstanding the evidence I have referred to.

12. [260]

    First, his Honour points to the inconsistent and initially incorrect evidence given by the plaintiff of when he and Mr Perry went to the presbytery. In my opinion, nothing turns on those inconsistencies. It is not in dispute that when the plaintiff and Mr Perry were schoolboys they spent a series of evenings with Fr Pickin at the presbytery where they were supplied with cigarettes and alcohol. The question is when precisely that happened. Pinpointing the time when events occurred, particularly when they occurred more than 50 years ago, is notoriously difficult. Most people do so through a process of reconstruction by reference to known objective facts. It may be inferred that that is what the plaintiff initially did in this case, and that he did so by reference to when he commenced high school and his marks began to decline. In doing so, he was clearly mistaken. The likelihood is that the relevant events occurred not long after Fr Pickin started teaching the boys, which explains the plaintiff’s subsequent evidence. The plaintiff’s initial evidence was to attribute the decline in his marks to the abuse that he said he suffered. From an evidentiary point of view, that served two purposes. First, it added verisimilitude to the plaintiff’s evidence of abuse. The decline in marks to some extent could be said to corroborate the plaintiff’s evidence of abuse, since the abuse provides a plausible explanation for the decline in marks. Second, the evidence was significant because it helped establish a causal connection between the abuse and the later events in AA’s life.

13. [261]

    In some cases, discrepancies of this sort may provide telling evidence against a plaintiff’s case. But I do not think that that is so in this case. As I have said, the basic facts (attendance at the presbytery, the supply of alcohol, Fr Pickin’s tendencies) are not in dispute. Although the plaintiff’s school results began to decline when he started high school, the decline occurred over time and were not obviously related to a specific traumatic event. The continuing decline was consistent with sexual abuse. It is not surprising that the plaintiff could not remember precisely when those events occurred. Nor is it surprising that he has come to believe that the abuse he says he suffered is the cause of many of the misfortunes in his life. But I do not think that erroneous belief sheds significant light on whether the plaintiff is also mistaken about the abuse itself.

14. [262]

    The second type of evidence Leeming JA points to is the internal inconsistencies in the evidence given by the plaintiff of what occurred at the presbytery and the inconsistency between the plaintiff’s evidence of what occurred and the evidence given by Mr Perry. The inconsistencies relate to two main issues. The first was whether other boys were present at the presbytery at the time the abuse occurred. The second was whether on occasions Fr Pickin sent Mr Perry to the shops to buy cigarettes (or at least on one account, cigarettes and alcohol), thus creating an opportunity for the abuse to occur.

15. [263]

    Although the primary judge expressed some reservations about Mr Perry’s evidence, it appears that ultimately her Honour preferred his evidence over that of the plaintiff’s where there were inconsistencies. It follows that her Honour accepted Mr Perry’s evidence that there were other boys present at the presbytery, that Mr Perry was never left alone at the presbytery with Fr Pickin and conversely never left the plaintiff alone in the presbytery. I accept that this Court should proceed on the basis of those findings. However, like the primary judge, I do not regard them as sufficient to warrant rejection of the plaintiff’s evidence that he was abused.

16. [264]

    The primary judge’s findings are relevant in two ways. First, they go to the factual question whether Fr Pickin had an opportunity to carry out the abuse. Second, they go to the reliability of the plaintiff’s evidence and, in particular, the reliability of his evidence concerning the abuse.

17. [265]

    As to the first of these points, the findings are not inconsistent with the central tenet of the plaintiff’s evidence that the abuse occurred in Fr Pickin’s bedroom when the plaintiff was drunk and playing with the poker machine alone. The evidence made the abuse less likely because it would have involved a greater degree of risk on the part of Fr Pickin. But there is nothing about the evidence which suggests that the abuse could not have occurred without the other boys finding out about it. And a priest who is willing to supply alcohol and cigarettes to adolescent boys and on occasions sexually abuse boys if the opportunity arises was no doubt prepared to engage in behaviour which would be regarded as risky.

18. [266]

    Acceptance of Mr Perry’s evidence raises the question of what the other boys were doing while the abuse occurred. All that can be said consistently with the plaintiff’s evidence is that they were in another room doing what unsupervised adolescent boys in 1969 might do when supplied with cigarettes and alcohol. But it does not strike me as improbable that they were happy to continue to do what they were doing in the absence of Fr Pickin, or that they paid any particular attention to his absence for a period of time.

19. [267]

    As to the second point, in my opinion, it is necessary to draw a distinction between recollections of sexual abuse (or other traumatic events) and the circumstances surrounding them, particularly when the relevant events occurred so long ago. It is not surprising that with the passage of time the memory of many details fades or becomes confused. As Leeming JA points out, courts have often remarked on that phenomenon; and the unreliability of memory is part of everyday experience. So, frequently people cannot recall when events occurred or who was present or, for example, what was said. And there is a natural tendency for people subconsciously to reconstruct those events in a way that is favourable to them. However, the processing of traumatic events, such as childhood sexual abuse, is not necessarily the same. It is certainly not part of everyday life to which courts can reliably apply their own experiences.

20. [268]

    In the present case, the plaintiff gave consistent evidence concerning the abuse he suffered. That evidence was plausible having regard to the facts which were not in dispute. This is not a case where the plaintiff could have been mistaken about the identity of his abuser. His actual evidence concerning the abuse was not contradicted by other evidence. The plaintiff was examined by Dr Alex Apler, the psychiatrist called by the appellant. Dr Apler was not asked to and did not express an opinion on whether having regard to the plaintiff’s abuse of alcohol and drugs and the other traumatic events in his life it was possible or likely that he could have developed a false memory of sexual abuse. Absent expert evidence on the subject, and in the light of the other matters I have referred to, I would not be prepared to conclude that he did.

21. [269]

    I should add, in case it might be thought that I have overlooked the point, that I do not obtain much assistance from Hodgson v R [2022] NSWCCA 72 or Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12. Each case must depend on its own facts. Both those cases were criminal cases, where a different standard of proof applies. Hodgson involved two brothers who were around 5 and 11. The objective evidence that contradicted the boys’ testimony was quite different. It was the boys’ evidence that the applicant lived close by and they encountered him on the way home from school. But the uncontradicted evidence was that the applicant had a full time job and would have been at work at those times and did not live in the area at the time the younger brother said the abuse occurred. At least one of the judges hearing that appeal (Rothman J) accepted the evidence of abuse but was not satisfied (beyond reasonable doubt) that the applicant was the abuser: at [109]. In the circumstances of that case, that was a possibility open on the evidence, since it depended on the identification of the applicant by the boys 50 years later.

22. [270]

    In Pell, it was the Crown’s case that the abuse occurred at a time when and in circumstances where other evidence demonstrated that, contrary to the evidence of the complainant, it was not plausible that the complainant and Cardinal Pell would have been alone. That was sufficient to raise a reasonable doubt concerning Cardinal Pell’s guilt, even accepting that the complainant genuinely believed that he had been abused in the way alleged. On the other hand, in the present case, on the facts as found it remains plausible that the plaintiff was sexually abused in the bedroom while those who might have witnessed the abuse were in another room.

23. [271]

    For those reasons, in my opinion the plaintiff’s evidence on the critical question of his abuse should be accepted and grounds 1 and 2 of the notice of appeal rejected.

ADDENDUM (7 MAY 2025)

1. [272]

   THE COURT: In accordance with the timetable in order 3 made on 15 April 2025, the respondent provided submissions and an affidavit concerning a variation to the orders made under the Court Suppression and Non-publication Orders Act 2010 (NSW). The respondent did not seek to defend (a) the duration of the orders made by the primary judge, (b) any of the orders made by the primary judge insofar as they amounted to suppression orders as opposed to non-publication orders, (c) the reliance on s 8(1)(d) of the statute (which applies to criminal proceedings), or (d) the extension of the orders to the witness BB. However, the respondent sought a non-publication order that his name not be published until the time of his death, noting that it was uncontentious that he suffered from Persistent Depressive Disorder with periods of Comorbid Major Depression. The submissions referred to the respondent’s terminal diagnosis, the fact that this Court had not found that he had lied or had not been sexually abused as a teenager, and the regime which would apply under the Children (Criminal Proceedings) Act 1987 (NSW). The solicitor’s affidavit confirmed the litigation history summarised in this Court’s reasons for judgment and advised that she was not aware why the anonymity of the respondent had not been raised prior to 1 October 2024, after the conclusion of the trial. The affidavit advised that the solicitor who had had carriage of the matter during the trial had left the firm. The affidavit also confirmed that BB had no objection to the course proposed in the judgment (namely, excluding him from the operation of the orders, but leaving references to him in the judgment anonymised).

2. [273]

   Ordinarily, it will be wrong for non-publication orders to be made after a trial has taken place in open court. The material relied on by the respondent falls short of acknowledging that there was an error by the legal practitioners who acted for AA at trial. Even so, the likelihood is that it was those lawyers’ oversight which led to the position that no orders were sought in advance of a trial which took place in open court, and that this occurred without any fault on the part of the respondent. It would be wrong in circumstances where the client suffers from an undisputed serious mental illness for his lawyers’ oversight (if that is what occurred) to lead to further harm brought about by the revocation of orders, even if error attended the making of those orders, as in this case it concededly did. In the unusual circumstances of this case, it is appropriate to make orders for a limited period of time on the basis that they are necessary to protect the respondent’s safety.

3. [274]

   The orders proposed by the respondent were expressed to apply “until the death of the plaintiff”. Such an order satisfies the requirement of s 12 of the Court Suppression and Non-publication Orders Act to specify the order’s duration. However, it is problematic insofar as it will not be clear on the face of the order when a publication of the respondent’s name or information tending to reveal his identity is a criminal offence. A preferable course is for the order to specify a time period, and to direct the respondent’s solicitors to advise the Court prior to the expiry of that time period in the event that the respondent has not predeceased. There was no updated evidence of the respondent’s prognosis when the appeal was heard. The reasons of the primary judge concerning a stay of execution (AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (No 4) [2024] NSWSC 1632 at [20]) proceed on the assumption that there was a real risk that he would not survive until the judgment on the appeal was delivered. In those circumstances, doing the best we can, the appropriate time period for the order will be six months from today.

4. [275]

   The respondent also sought anonymisation orders, framed in terms of documents filed in these proceedings. There is no longer any need for such an order; the proceedings in this Court are complete.

5. [276]

   Finally, also in accordance with order 3 made on 15 April 2025, the parties supplied agreed orders as to costs. Those orders will be made in the terms agreed. The agreed short minutes of order contained a note concerning a “partial stay”. There was reference in AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (No 4) [2024] NSWSC 1632 at [22] to a partial stay, and the amount of $18,000 being a sum which the respondent’s litigation funder would not seek to have reimbursed. It may well be that the “partial stay” noted in the agreed orders reflects a continuation of the regime ordered by the primary judge pending determination of the appeal by this Court; however, it does not reflect any order made by this Court.

6. [277]

   The Court makes these orders: