Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes

1. [1]

   BELL CJ: This is an appeal from a decision of Campbell J (the primary judge): Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 7) [2025] NSWSC 128 (PJ or the primary judgment).

2. [2]

   The alleged conduct before the primary judge related to events at Bourke from 1992 to 1994, more than 30 years ago. The core allegations raised by Mr John Albert Hartnett (the Appellant) were that, at St Ignatius Parish School, Bourke (St Ignatius School):

   1. (1)

      Sister Marietta Green (Sister Green), the Appellant’s Infant Aboriginal Class teacher, inflicted repeated assaults and batteries using her one-metre wooden ruler referred to as “Montgomery”; and

   2. (2)

      Mr Alex Dixon, also known as “Sweeney”, a teachers’ aide at St Ignatius School, also assaulted the Appellant.

3. [3]

   Although on their face statute barred by the operation of the Limitation Act 1969 (NSW) (Limitation Act), the amendments introduced by s 6A of that Act relevantly provided that an action for damages that relates to the personal injury to a person resulting from an act or omission that constitutes “child abuse” of the person may be brought at any time and is not subject to any limitation period under that Act. Relevantly for present purposes, “child abuse” is defined in s 6A(2)(b) and (c) as “serious physical abuse” perpetrated against a person when under 18 years of age and “any other abuse (connected abuse) perpetrated in connection with … serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the … serious physical abuse).”

4. [4]

   “Serious physical abuse” is not defined in the Limitation Act and its meaning was considered for the first time in the primary judgment.

5. [5]

   The key issues at trial were whether the alleged abuse occurred (the Factual Issues) and whether such abuse satisfied the definition of “serious physical abuse” for the purposes of s 6A (the Construction Issue).

6. [6]

   In relation to the Factual Issues, although the primary judge appeared to accept that the Appellant was “subjected to a degree of physical punishment by Sister Green and Mr Dixon by way of discipline” (although at PJ [215], the primary judge appears to qualify this proposition as an assumption), his Honour concluded that the Appellant had not proved on the balance of probabilities that he suffered “serious physical abuse” as alleged: PJ [12].

7. [7]

   This conclusion was reached after the primary judge had heard evidence from a large number of witnesses on both sides of the record (including the Appellant and Sister Green and Mr Dixon) in a trial which ran for almost three weeks. As his Honour observed at PJ [203]:

8. [8]

   In relation to the Appellant’s evidence, the primary judge observed at PJ [193]:

9. [9]

   One of the particulars of the alleged physical abuse was that “on occasions, Sister Green made the Appellant stand outside under the sun in high temperatures for a prolonged period of time.” The primary judge rejected this evidence as “not accurate” (at PJ [200]) and the Appellant retreated from his evidence in chief significantly in this regard: see [57] below.

10. [10]

    Another particular of the alleged abuse, which related to sexual abuse, was as follows:

11. [11]

    This allegation was withdrawn on the first day of the trial and the fact that it was originally made (and then withdrawn) was one of five substantive criticisms the Respondents made of the Appellant and his case: see at PJ [53]. These criticisms were accepted by the primary judge as having been “well made”: PJ [196]. In that paragraph of the primary judgment, his Honour observed:

12. [12]

    A feature of the case was the large number of witnesses called on both sides of the record, as remarked upon by the primary judge in the passage from his judgment extracted at [7] above. In relation to the body of evidence called on behalf of the Appellant, the primary judge observed (at PJ [192]) that:

13. [13]

    His Honour made much the same point at PJ [198]. Of the various teachers’ aides who gave evidence, the primary judge said that:

14. [14]

    One of the witnesses called on behalf of the Appellant was Mr Martin Haimes who was taught by Sister Green in the mid-1970s at St Scholastica’s College, Mount Barker, South Australia. He was thus giving tendency evidence 50 years after the events about which he gave evidence, and 20 years before the events the subject of the Appellant’s allegations. The primary judge’s finding “accepting” his evidence (see PJ [197]) is the subject of challenge by the Notice of Contention.

15. [15]

    The primary judge further found that, while Mr Dixon (Sweeney) did, by his own admission, smack the Appellant once on his upper right thigh over his clothing, he did not do so in the manner alleged, nor did any misconduct amount to “serious physical abuse”, and so the claim against him failed by virtue of the Limitation Act: PJ [217]. His Honour also concluded that the Appellant had “not proved misconduct by Sweeney that in any way amounts to serious physical abuse” and that [the] claim against him must therefore fail “by virtue of the provisions of the Limitation Act 1969”: PJ [217]. The primary judge was influenced by the fact that none of the pleaded allegations against Mr Dixon “found their way into the plaintiff’s witness statement”: PJ [205]. His Honour observed, not unreasonably, that “[t]his may have been an oversight, but it does affect the weight I feel I can give to the evidence”.

16. [16]

    In relation to the Construction Issue, the primary judge held that any physical punishment effected by Sister Green and Mr Dixon did not fall within the statutory definition of “serious physical abuse” for the purpose of s 6A of the Limitation Act, and was therefore time-barred: PJ [12], [216]. His Honour’s interpretation of the phrase “serious physical abuse” is the subject of appeal ground 4.

17. [17]

    Finally, the primary judge contingently assessed damages at $180,500, including: general damages ($135,000); interest ($40,500); and future out-of-pocket expenses ($5,000): PJ [246].

Grounds of appeal and Notice of Contention

1. [18]

   By notice of appeal filed 27 May 2025, the Appellant raised 13 grounds of appeal which can be grouped into challenges against the primary judge’s:

   1. (1)

      construction of the expression “serious physical abuse” for the purpose of s 6A of the Limitation Act (ground 4);

   2. (2)

      factual findings in relation to Sister Green’s alleged assault and battery of the Appellant (grounds 1-3, 5-9); and

   3. (3)

      factual findings in relation to Mr Dixon’s alleged assault and battery of the Appellant (grounds 10 to 13).

2. [19]

   The Respondents, pursuant to leave granted in the course of the hearing of the appeal, filed a Notice of Contention in the following terms:

Mr Haimes’ evidence – Appeal Grounds 6, 7c, 8a and Notice of Contention

1. [20]

   It is convenient first to deal with Mr Haimes’ evidence as it is relied upon in appeal grounds 6, 7c and 8a as well as being the focal point of the Notice of Contention. The Appellant placed particular reliance on Mr Haimes’ evidence and the fact that he had no connection to the Appellant or St Ignatius School. As already explained, Mr Haimes was taught by Sister Green in the mid-1970s at St Scholastica's College, Mount Barker, South Australia.

2. [21]

   Appeal Ground 6 was in the following terms:

3. [22]

   Appeal Ground 7c was that “the trial judge erred by failing to make findings, and give reasons, for the trial judge’s decision to reject the Appellant's witnesses, in circumstance[s] where… [t]he trial judge failed to explain why the Appellant’s witnesses adduced for a tendency purpose were not accepted for the asserted tendency”.

4. [23]

   Appeal Ground 8a was that “the trial judge erred by accepting the evidence of Sister Marietta Green, in circumstances where… [t]he trial judge’s acceptance of Mr Martin Haimes’ evidence that Sister Marietta Green hit him (assaulted) with an implement when he was a student in South Australia in 1976 incontrovertibly contradicted Sister Marietta Green’s evidence denying ever using an implement to administer physical discipline (assault) to any student over the course of her entire teaching career.”

5. [24]

   The importance placed on Mr Haimes’ evidence by the Appellant warrants it being set out in full. His signed witness statement was in the following terms:

6. [25]

   The primary judge described this evidence (at PJ [197]) as “potentially significant … despite the obvious deficiencies in his memory that I have detailed”. The reference to the “obvious deficiencies” of memory previously detailed was to PJ [93] where the primary judge observed:

7. [26]

   This conclusion was consistent with Sister Green’s evidence that Sister Claire taught years 3 and 4 (a composite class) and that Sister Green was always an infants teacher who taught reception and years 1 and 2 (also a composite class), and never taught years 3 and 4. Sister Green also gave unchallenged evidence that she did not recall either teaching Sister Claire’s class or primary students being sent to her, they being in a separate building from the infants class.

8. [27]

   At PJ [197], the primary judge expressed satisfaction that Mr Haimes’ evidence “was accurate” but added that “his evidence really fell a long way short of providing support for the ‘reign of terror’ described by the witnesses at St Ignatius”. His Honour was also “not persuaded that what [Mr Haimes] described offended the standards of those times”.

9. [28]

   In submissions, Mr Walker SC, who appeared for the Appellant, submitted albeit faintly that this last statement by the primary judge was a reference to the times of the conduct complained of by the Appellant, namely in the early 1990s at St Ignatius School. I would reject that submission. When the primary judge referred to “those times”, he must have been referring to the times Mr Haimes was describing in his evidence, namely the mid-1970s. That was significant in the primary judge rejecting the forensic significance for tendency purposes of Mr Haimes’ evidence, even accepting, as his Honour did, the accuracy of Mr Haimes’ recollection of having once been struck with a foot-long wooden stick on the fingers by Sister Green in the mid-1970s when Mr Haimes was in second class.

10. [29]

    Returning to the primary judge’s acceptance of the “accuracy” of Mr Haimes’ account, that conclusion was squarely challenged by the Notice of Contention and in submissions advanced by Mr Lloyd SC for the Respondents. The Respondents’ first point was to place emphasis on the fact that “Mr Haimes was demonstrably mistaken as to who his class teacher was.” This was in essence consistent with the primary judge’s conclusion at PJ [93] that Mr Haimes “is likely to be mistaken in that detail”. The Respondents’ point was not only that Mr Haimes was mistaken but, perhaps more importantly, that the identity of his permanent teacher in Year 2 was no mere point of “detail”. This was because Mr Haimes’ strong recollection was that it was not his permanent teacher but another teacher in the school from more senior years who substituted for his permanent teacher and who applied the stick to his fingers. Whoever that may have been, on the primary judge’s findings, it was not Sister Green whom his Honour held, supported by photographic evidence, was Mr Haimes’ permanent year 2 teacher (that is, the teacher of the composite years 1 and 2 class when Mr Haimes was in year 2). This was also supported by Sister Green’s unchallenged evidence that she only taught years 1 and 2.

11. [30]

    Mr Haimes’ mistake as to the basal fact as to the identity of his permanent teacher in year 2 was despite him being adamant under cross examination that it was Sister Claire and not Sister Green. If he was mistaken as to the identity of his permanent teacher, but confident that the teacher who he recalled administering the stick to him on one occasion in year 2 almost 50 years beforehand was not his permanent teacher (Sister Green) but a substitute teacher, the quality of his strong recollection was not only problematic but mistaken in a critical regard. Sister Green also gave unchallenged evidence that she did not substitute for Sister Claire since she had her own class to teach: see [26] above.

12. [31]

    Given the “obvious deficiencies” in Mr Haimes’ evidence, the conceded application of the principles from Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw) (PJ [46]-[47]), “the eroding effect of the passage of time on memory” (PJ [203]), as well as Mr Haimes’ young age at the time of the incident, I accept the Respondents’ submission that it was not open, on the evidence, for the primary judge to reach an actual degree of satisfaction that it was Sister Green as opposed to another teacher who applied the stick to Mr Haimes’ fingers when he was aged 6 or 7 almost 50 years ago. His Honour erred in that regard.

13. [32]

    It should also be noted that Mr Haimes was only briefly cross examined. Given the brevity of that cross examination, it is difficult to accept that the primary judge formed a particular view as to his credit that would warrant especial caution against interference with his Honour’s conclusion that Mr Haimes’ recollection was accurate. Further, the primary judge did not give any reasons for that conclusion. Indeed, the only analysis (as opposed to conclusion) that his Honour undertook led to the observation that there were “obvious deficiencies” in Mr Haimes’ recollection: see [25] above.

14. [33]

    In view of the above, I would uphold the Notice of Contention. It follows from this that appeal grounds 6 and 8a necessarily fail.

15. [34]

    Even if my conclusion in relation to the Notice of Contention were different, however, I would not have found that the primary judge was wrong to find that Mr Haimes’ evidence was not probative of the tendency for which it was relied upon. It was evidence which, if accepted, was of a single incident suffered by Mr Haimes which occurred in a different school, almost 20 years earlier than the allegation which it was contended to support by way of tendency. It would be unsafe to assume that attitudes to, and the practice of, corporal punishment did not change significantly in the 20-year period between the mid-1970s and the mid-1990s, and were necessarily uniform as between States.

Ground 4: Construction of “serious physical abuse” under s 6A of the Limitation Act

1. [35]

   It is next appropriate to deal with questions of statutory construction which are raised by appeal ground 4. That ground contends that the trial judge erred in construing the statutory definition of “serious physical abuse” as defined in s 6A of the Limitation Act, in circumstances where:

2. [36]

   The full text of s 6A of the Limitation Act is as follows:

3. [37]

   The primary judge dealt with the expression “serious physical abuse” at some length, but the essence of his consideration emerges from PJ [15]-[16]:

4. [38]

   The Appellant’s criticisms under appeal ground 4 were in fact very narrow and, for the following reasons, I would reject them.

5. [39]

   First, in ground 4a, the Appellant contended that the primary judge erred by failing to have regard to the extrinsic materials referred to by the Appellant at first instance – most notably the Second Reading Speech relating to the introduction of s 6A of the Limitation Act. The Second Reading Speech relevantly stated that the “term ‘child abuse’ should be interpreted in a beneficial manner”, and that:

6. [40]

   The Appellant contended that the primary judge’s construction of “serious physical abuse” at PJ [15] as requiring a “high degree of misconduct” was contrary to parliamentary intention, as evidenced in the Second Reading Speech. That asserted failure to advert to the Second Reading Speech in his Honour’s written reasons was contended to be especially unorthodox given that there had been no authority which had construed s 6A of the Limitation Act in the context of “serious physical abuse”.

7. [41]

   The premise of ground 4a, namely that in any case or on any question of statutory construction, regard must be had to the second reading speech such that any failure to do so constitutes appellable error, should not be accepted. The appeal ground itself is somewhat misdirected. This Court is undertaking an appeal by way of rehearing, not judicial review examining whether some mandatory relevant consideration has been considered. Whether or not the primary judge was obliged to consider the Second Reading Speech, the issue in question in this Court is whether some construction adopted by his Honour was in error and, if so, whether that had any material effect on the outcome. A failure to consider extrinsic materials might explain how or why a judge fell into error in adopting a particular construction but that would only be of historical interest. Here, the primary judge closely hewed to the statutory text in considering the issues before him. The Appellant has not established that his Honour adopted any erroneous construction.

8. [42]

   But beyond this answer to the ground of appeal, it is by no means clear that the primary judge did not have regard to the Second Reading Speech in considering s 6A of the Limitation Act. The Second Reading Speech was referred to at PJ [190] where the primary judge correctly located the origin of s 6A as a response to recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. Reference was made to the Second Reading Speech in the Appellant’s submissions at first instance and, at PJ [15], extracted above, the italicised sentence directly reflects the language of the Second Reading Speech as referred to in the Appellant’s submissions at first instance, namely that serious physical abuse “may consist of a series of relatively minor injuries over a period that cause the conduct to become serious, as well as serious one-off conduct”. The primary judge’s observation at PJ [14], moreover, that the “words are to be understood as having their ordinary meaning in their statutory context” also directly reflects the Attorney General’s statement that “the bill requires courts to determine whether or not abuse has occurred having regard to the circumstances of each individual case and the ordinary meaning of the terms”.

9. [43]

   The second aspect of the Appellant’s challenge to the primary judge’s construction of s 6A of the Limitation Act drew attention to what was said to be the conflation of the notion of “serious physical abuse” with “severe physical abuse”. The primary judge used the expression “severe physical abuse” twice in what were lengthy reasons for judgment. The first was at PJ [215] where his Honour said:

10. [44]

    The expression “severe physical abuse” as used in this passage reflects the case that had been argued by the Appellant, namely that Sister Green “hit, punished and tortured” him daily. Viewed in this context, I would not read it as involving any conflation by the primary judge of the language of the statute and the notion of severe physical abuse.

11. [45]

    The second instance of the primary judge using the expression “severe physical abuse” was at PJ [224]. In circumstances where the primary judge had dealt extensively with questions of statutory interpretation in the reasons for judgment and had used the expression “serious physical abuse” no less than 44 times in those reasons, the reference to “severe physical abuse” at PJ [224] must be regarded as a slip in language, as I understood Mr Walker SC in effect to concede in the following exchange:

12. [46]

    The third aspect of appeal ground 4, namely that “the trial judge held that only conduct amounting to criminal conduct could satisfy the statutory notion of ‘serious physical abuse’”, must be rejected. Not only is it not supported by the language of the primary judgment, it is directly contradicted by it. Thus, at PJ [16], as also set out above, the primary judge noted that it was “not necessary to consider whether misconduct said to constitute the serious physical abuse in a given case constitutes a crime, although experience suggests that it very frequently will”.

Challenged factual findings in relation to Sister Green’s alleged physical abuse of the Appellant: Grounds 1-3 and 5-9

1. [47]

   The Appellant alleged at first instance that Sister Green “hit, punished and tortured” him, involving:

2. [48]

   In his witness statement, the Appellant said that Sister Green would hit him on his hands, back and bottom with a ruler “every day” and punished him “every day”. Other witnesses called in the Appellant’s case also suggested that Sister Green beat them and other children, with some claiming such abuse occurred on a daily or nearly daily basis. These included Janine Monaghan, Catrina Dixon, Charles Edwards, Pagan Burford, Lesley Leonard and Terence Hines. It was their collective accounts which led the primary judge to characterise the Appellant’s case as involving Sister Green in a reign of terror: see PJ [192], extracted at [12] above.

3. [49]

   The primary judge considered each of the witness’ evidence; had observed them giving evidence and indeed, in some cases, expressly made reference to their body language or expression in assessing their evidence: e.g. Mr Hines at PJ [123]; Ms Marcia Dixon at PJ [107]. In Mr Hines’ case, his Honour also concluded that it was difficult to accept his evidence as an accurate account and noted that, when questioned by a Justice Health psychologist in 2008 about physical and emotional abuse he’d suffered as a child, he said nothing of what he later claimed happened to him at St Ignatius School: PJ [125]-[126].

4. [50]

   The accounts advanced in support of the Appellant were contested in a detailed fashion by a large number of witnesses who had worked at St Ignatius School at the time Sister Green taught the Appellant. A number of those witnesses worked in the very same classroom as Sister Green as teachers’ aides where much of the abuse was alleged to have taken place. They gave evidence that they did not witness the extreme conduct of the kind alleged by the Appellant and the witnesses called on his behalf and which was submitted to constitute “serious physical abuse”. They gave evidence that such conduct would have been out of character for Sister Green. While there was some inconsistency between some of this body of evidence and Sister Green’s own account (this is the subject of appeal ground 9b), a lack of uniformity given the passage of time was not surprising, and the primary judge was cognisant of and took into account the fact that a number of the teachers’ aides had a strong sense of loyalty to Sister Green: see, for example, [67] below. It should also be observed that evidence was given in support of Sister Green by fellow teachers and school principals as well as teachers’ aides.

5. [51]

   Most of this evidence was not to deny that Sister Green was strict and engaged in some discipline but what was significant to the primary judge was his lack of satisfaction that such discipline as was suggested by some of the evidence as having been administered by Sister Green did not rise to the statutory level sufficient to warrant the description of “serious physical abuse”. Thus, at PJ [201], the primary judge said:

6. [52]

   Moreover, a number of the witnesses called by the Respondents who denied any semblance of the picture painted by the Appellant’s witnesses about St Ignatius School at the time of the events the subject of the allegations were not relevantly challenged by the Appellant’s counsel at first instance. His Honour gave as an example aspects of the evidence of Ms Pat Mannix (at PJ [92]). Another example is the evidence of Ms Lisa Green, who had been both a student and teaching colleague of Sister Green (no relation) and whose evidence was summarised by the primary judge at PJ [152] as follows:

7. [53]

   Other aspects of the Appellant’s broad case were not put to the witnesses called on behalf of the Respondents, examples given by the primary judge being Mr Charles Edwards’ and Mr Lesley Leonard’s evidence about Brother Hollamby: PJ [78] and [81]. Another example given by the primary judge was in relation to Ms Alicia Monaghan: PJ [121].

8. [54]

   The primary judge was criticised (in appeal ground 7a) for referring to there being two “camps” of witnesses (although this was in fact a term used by the Appellant’s own counsel at first instance) and for considering the evidence on a “camp” basis. That did not mean that the primary judge did not give consideration to the evidence of each of the witnesses individually (as in fact he did: see, for example, [49] above), and it was not illegitimate for his Honour to generalise to some extent as is reflected at PJ [41]-[42] in respect of both “camps” of witnesses:

9. [55]

   The Appellant did not submit that his Honour was wrong in his assessment extracted immediately above that “very often, when propositions were put in cross-examination that were apparently incompatible with, or detrimental, to their own case theories, they were quick to reject them even when, in my view, appropriate concessions were warranted.” A review of the transcript of the trial bears that generalisation out.

10. [56]

    Reference has already been made at [12] above to the primary judge’s observation that “[i]f one was to take all of the plaintiff’s evidence together frankly, the sum of the evidence would suggest that Sister Green was conducting something in the nature of a reign of terror on infant Aboriginal school-children at St Ignatius.” His Honour rejected the likelihood of that picture of St Ignatius School and Sister Green in particular in the early 1990s being accurate on the basis that the extreme conduct described would have been observed by eyewitnesses such as various teachers and teachers’ aides who his Honour assessed as being honest and who he considered would have given evidence of such a reign of terror, had it in truth existed.

11. [57]

    The “reign of terror” characterisation was based upon the very strong language and descriptions of Sister Green’s alleged conduct in the Appellant’s witness statements and those of other witnesses called on his behalf. An attempt was made in the Appellant’s written reply submissions to downplay the extremity or hyperbolic nature of the descriptions of the alleged systematic abuse on the basis that the Appellant and some of the witnesses called by him had a “limited and unsophisticated vocabulary”. The written submissions referred to disadvantaged circumstances having “left enduring effects on their ability to give evidence”. It was not made entirely clear where this submission went – the primary judge had to deal with the evidence that was presented to him and in the terms in which it was presented. The written submissions were somewhat coy in this respect. For example, it was submitted in this context that “[f]or a Court to fail to acknowledge such a circumstance is to put form over substance, and to fail to assess the evidence of the witnesses in the proper context of that evidence.” The suggestion appeared to be that the Court should understand the written evidence in a different way to that conveyed by the language used. That seems to me to be a problematic submission but, in any event, the primary judge was evidently aware of the Appellant’s difficult background and thus could not be criticised in this respect. Indeed, at PJ [193], he said that “[m]aking every allowance for possible cultural differences, the plaintiff’s evidence has its problems.” His Honour also noted that “[r]egrettably, the plaintiff has experienced what is referred to in the criminal law as profound childhood deprivation”: PJ [196].

12. [58]

    The primary judge rejected at PJ [213] the Appellant’s allegation that Sister Green frequently struck him with “Montgomery” or any other implement:

13. [59]

    These conclusions are centrally challenged in appeal ground 1 which is that the primary judge erred in finding that that “the Appellant was not assaulted by Sister Marietta Green, including by the use of a long wooden ruler.”

14. [60]

    In relation to the “chalk circle” allegations about being made to stand outside under the sun in high temperatures for a prolonged period of time, the primary judge was not persuaded of this, observing that “[w]hile the evidence was conflicting with different versions given, I am of the view that the evidence of the plaintiff and the other witnesses who spoke of that form of discipline as extending for long periods in trying conditions, is not accurate. This is unsurprising given their young age then and the long passage of time”: PJ [200]. In fact, although not quoted by the primary judge, the Appellant accepted that he “can’t really say” how long he was made to stand in the sun and that “it might have been that it was for about ten minutes, but it just felt like longer”.

15. [61]

    Although the primary judge did make some specific findings that a particular incident or incidents had not occurred (see [51], [56] and [60] above), his Honour’s more general conclusion was that the Appellant had “failed to establish a case that he was subjected to serious physical abuse at the hands of Sister Green”: PJ [213]; see also PJ [12].

16. [62]

    Counsel for the Appellant rightly recognised that, in order to impugn the factual findings which turned upon an extremely experienced primary judge’s close assessment of the reliability and credibility of multiple witnesses after seeing and hearing them give evidence in the context of a lengthy trial, the significant constraints to appellate interference associated with Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]-[31] (Fox v Percy) needed to be overcome. See also Davey v Want [2026] NSWCA 12 at [6]-[16] (Davey v Want).

17. [63]

    Reference has already been made to the primary judge’s acceptance of the Appellant’s lack of reliability and the strength of criticisms of much of the Appellant’s evidence (see [8] and [11] above) even though his Honour did consider that the Appellant “did his best to tell the truth to the best of his recollection” and that it “was not my impression that he gave consciously false evidence” albeit that “the long effluxion of time since these events, his comparatively tender years then and the effects of traumatic incidents in his life adversely affected the reliability of his evidence”: PJ [48]. Conversely, the primary judge described Sister Green as a “quite impressive” witness although aspects of her evidence were not immune from criticism by the primary judge: at PJ [198]. Earlier, at PJ [62], he had said:

18. [64]

    Considerations of context and tone in answering questions will invariably be important in a primary judge forming impressions of witnesses: Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191 at [58] (Mt Pleasant). Review of a transcript by an appellate court, however conscientious, is a different exercise from that experienced by the judge presiding over a trial where factual issues are hotly in contest. Such a “desktop” review will generally not pick up characteristics such as sarcasm, arrogance, humour or humility in a witness’ answers nor, as Kirk JA pointed out by way of example in Mt Pleasant, will it necessarily lead to an appreciation “that an answer was given angrily in response to some provocation, such that its significance is not what might appear from the page” nor reveal the fact of pauses in answers to questions and what may be discerned from such pauses. This will be a matter of context and may also be influenced by matters such as the tone of the cross-examination which will not always be apparent from the pages of the transcript. All of this is to reinforce the wisdom underpinning the need for caution against appellate intervention in respect of findings of fact reached after a contested hearing where there have been major clashes in the evidence.

19. [65]

    An example of this can be seen in the record of cross-examination of Mr Hines, one of the witnesses called by the Appellant:

20. [66]

    It was not submitted by the Appellant that the primary judge’s conclusions were in the face of “incontrovertible facts or uncontested testimony”: Fox v Percy at [28]. In these circumstances, and where there were a large number of witnesses called on both sides of the record and a paucity of contemporaneous documentary evidence, it was incumbent on the Appellant to demonstrate that the primary judge’s conclusions were “glaringly improbable” or “contrary to compelling inferences”. In Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 the plurality said as follows (at [55]):

21. [67]

    Consistent with the above, the Respondents submitted that, even where demeanour is not expressly relied upon, if credit findings are clearly in issue – as here – “it is unlikely that ... presentation in the witness box was not keenly observed and taken into account”, citing J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 at [214] and Vagg v McPhee [2013] NSWCA 29 at [84]-[85]. One significant matter which his Honour formed a view about was the teachers’ aides. Although his Honour acknowledged that “some of the teacher’s aides were somewhat affected by their admiration for, and loyalty to, Sister Green”, he nevertheless held that, had the “reign of terror” that the Appellant’s witnesses deposed to in fact existed, “they would have noticed” and “would have told the truth”: PJ [198]. This is a significant finding based upon the primary judge’s extended opportunity of observing these witnesses give their evidence. It was, as the Respondents submitted, an orthodox and overwhelmingly probable finding.

22. [68]

    The challenge to the primary judge’s factual findings also needs to take on board the fact that the nature of the Appellant’s allegations against Sister Green and Mr Dixon meant that his Honour needed to feel an actual sense of satisfaction in accordance with Briginshaw and to be conscious, as he undoubtedly was, of the imperfections of human memory. In this latter context, his Honour referred to well-known and oft-cited observations by McHugh J and Leggatt J (as his Lordship then was) in Longman v The Queen (1989) 168 CLR 79 at 107–8; [1989] HCA 60 (Longman) and Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [16] (Gestmin) respectively. In the former case, McHugh J observed at 107-108 that:

23. [69]

    Returning to whether the primary judge’s conclusions were “glaringly improbable”, it is well to remember that his Honour’s conclusion, as observed at [61] above, was that “the plaintiff has not proved on the balance of probabilities he suffered serious physical abuse as alleged”: see also PJ [213]. This was not a “glaringly improbable” conclusion at all. The primary judge in the present case found himself in the same position as the primary judge in Briginshaw. To adopt the words of Sir Owen Dixon in his reasons in the High Court in that case (at 369), “[f]rom the whole tenor of his [the primary judge’s] reasons, I think that it clearly appears that his Honour found himself unable to arrive at any satisfactory or firm and definite conclusion that adultery had been committed”.

24. [70]

    Although the primary judge in the present case had a great deal of evidence in the form of affidavits and statements from witnesses who were tested under cross-examination, that evidence was about events which occurred many decades earlier and, in the case of one group of witnesses (including the Appellant), all of whom had been extremely young at the time of the events in question. His Honour had, on the other hand, a body of evidence from a series of teachers’ aides or teachers (including Sister Green and Mr Dixon) whose evidence was to a quite contrary effect. That is not necessarily to say that the latter body of evidence was superior or more reliable because the other body of witnesses were all very young children at the time of the events in question although his Honour was entitled to take into account the tender ages of the former group of witnesses at the time of the alleged events (as well as other traumatic events or debilitating experiences suffered by a number of them) when assessing whether he felt an “actual persuasion” of the occurrence of the allegations made by the Appellant against Sister Green and Mr Dixon.

25. [71]

    His Honour, conscious of the limits of reliance on demeanour in the witness box, nonetheless drew on this where he considered it was reasonable and appropriate to do so. He also drew on medical or Justice Health records to assist him in drawing his ultimate conclusion, pointing out in the case of the evidence of both the Appellant and Mr Hines that there was a telling absence of any reference to serious abuse at school in their accounts to psychiatrists and health care workers: see [11] and [49] above.

26. [72]

    Given the confidence of their apparent recall of events at St Ignatius School and the constant violence of those recollections, it was entirely legitimate for the primary judge to draw on the absence of similar recollections by those same witnesses and the Appellant in particular at earlier points in time to assist him to form his ultimate conclusion which was not so much that the serious physical abuse did not occur but that he was not satisfied that the Appellant had proved on the balance of probabilities that it had, bearing in mind Briginshaw and the need to feel an “actual persuasion” of “serious physical abuse”.

27. [73]

    The primary judge, consistent with authority and common experience, pointed to “the inevitable impoverishment of evidence [which] due to the long effluxion of time must affect the quality of the proofs available to establish the serious allegations made in the present case”: PJ 190]. His Honour also remarked that “[n]otwithstanding the large number of witnesses called on either side of the record, there is no suggestion before me that these allegations of serious physical abuse of the plaintiff (and others) had been made or aired until just prior to the commencement of the proceedings in 2022.” The Respondents had submitted before the primary judge (omitting footnotes) that:

28. [74]

    The collective extended silence was conspicuous especially in circumstances where, as the primary judge went on to say at [190], that “if made good, [these proofs] do involve ‘grave moral delinquency’ on the part of a respected teacher of good character and high reputation.” The reference to “grave moral delinquency” was to Sir Owen Dixon’s judgment in Briginshaw at 362.

29. [75]

    At PJ [202], the primary judge indicated that he had:

30. [76]

    There was much evidence supporting the view that Sister Green was a “respected teacher of good character and high reputation” who, in 1995, as his Honour noted, had been awarded the Medal of the Order of Australia for her services to education, including to Aboriginal children. That, of course, was not determinative or definitive evidence but it was relevant within the meaning of s 55 of the Evidence Act 1995 (NSW) (the Evidence Act) in the sense that it was evidence that "could rationally affect (directly or indirectly) the assessment of the probability" that Sister Green perpetrated the conduct the subject of the allegations made by the Appellant and a number of witnesses called by the Appellant: see TKWJ v R (2002) 212 CLR 124; [2002] HCA 46 at [35].

31. [77]

    His Honour, moreover, accepted as “well made” specific criticisms of aspects of the Appellant’s evidence going to its plausibility and accuracy. Tellingly, no cogent reasons were advanced on appeal as to why he was wrong to do so: see PJ [52]-[56] and [11] above. All of these matters fed into his Honour’s ultimate evaluative conclusion.

32. [78]

    For the foregoing reasons, I would reject the first ground of appeal.

33. [79]

    The second ground of appeal was in these terms:

34. [80]

    This ground, which was essentially restated in the Appellant’s written submissions without any substantive argument being advanced in support of it, appeared to be based upon PJ [215] where the primary judge said:

35. [81]

    The third appeal ground was really an amplification of the second; it was not the subject of any specific written submissions tied to that ground as formulated and should be rejected for essentially the same reasons as ground 2. It does not establish an underlying glaring improbability of the kind that would be required to warrant this Court overturning the primary judge’s conclusions.

36. [82]

    Appeal ground 5 was in the following terms:

37. [83]

    Reference has already been made to the primary judge’s (limited) reliance on evidence of good character. This ground of appeal does not challenge the fact of the primary judge giving some weight to good character as a matter of principle; rather, it relies on two instances over a multi-decade career as an infants school teacher to negative the large body of testimony as to good character as was in evidence.

38. [84]

    In relation to Ms Margaret Dixon, at PJ [66], the primary judge referred to Sister Green’s evidence that “there was only one instance where she ‘smacked’ a student in her entire teaching career.” His Honour continued: “[t]his involved a St Ignatius pupil by the name of Margaret Dixon (T568.50-569.19), who had run away from Sister Green’s class three times to the nurses’ office (T579.50).” Ms Dixon was called in the Appellant’s case in reply. The primary judge held at PJ [212] that:

39. [85]

    Much was made in the Appellant’s written submissions about an incident which relevantly involved the grandmother of a student, Ms Janine Monaghan, and in respect of which Brother Daniel Hollamby gave evidence, he being the principal of St Ignatius School from 1993 until 1998. The grandmother evidently complained to Brother Hollamby that Sister Green had smacked Janine on her bottom with an open hand, and Brother Hollamby gave evidence of speaking to Sister Green about this. He said that Janine was “a cheeky and disobedient child, and her misbehaviour must have been ‘reasonably extreme’ to [elicit] a smack from Sister Green”: PJ [180]. Sister Green did not recall the incident nor did Janine give any evidence about this occasion (as the primary judge pointed out at PJ [120]). So, too, two teachers’ aides, Ms Mannix and Ms Cubby, did not recall this specific incident, as the primary judge noted at PJ [130] and [139], and nor, for that matter, did fellow teachers, Mr Foley and Ms Ward.

40. [86]

    In his written submissions, the Appellant put that the primary judge failed to consider the impact of Brother Hollamby’s “irreconcilable evidence with Sister Green’s.” This was a significant overstatement. Sister Green did not deny that Brother Hollamby had cause to counsel her on one occasion; she simply did not recall it. There is a significant difference between an outright denial and a failure to recall. Further, Sister Green’s failure to recall was not surprising given the passage of time (decades) and that the incident to which Brother Hollamby referred was, on his own account, not one involving more than a smack on the bottom.

41. [87]

    The incident about which so much was sought to be made in written submissions should be put into context which is supplied by [15]-[16] of Brother Hollamby’s evidentiary statement of 31 October 2023:

42. [88]

    Ground 5 should be rejected. The two incidents relied upon to found that ground do not negative the wealth of evidence of good character to which the primary judge afforded some weight. It was open to his Honour to do so. Nor does the fact that two teacher’s aides, Ms Mannix and Ms Cubby, did not recall this specific incident affect the reliability of their evidence otherwise. Appeal ground 9a was to the effect that the evidence of teachers’ aides which was otherwise accepted should not have been accepted because they could not remember the reprimand of Sister Green, in relation to Janine, about which Brother Hollamby gave evidence. Again, the Appellant sought to raise a false conflict. Their position was one of non-recollection, and from the Brother’s account of the matter, it was unsurprising that they might not recall it, it having been relatively innocuous and having occurred 30 years ago. Ground 6 has been dealt with above.

43. [89]

    Ground 8b should also be rejected. It also related to the reprimand by Brother Hollamby of Sister Green in relation to Janine Monaghan. The Appellant submitted that his Honour should not have accepted Sister Green’s evidence in the face of Brother Hollamby’s evidence about this incident. But as already explained, the evidence was not contradictory.

44. [90]

    Reference has already been made to appeal ground 7a: see [54] above. Appeal Grounds 7b and c were as follows:

45. [91]

    As to Mr Hines, the primary judge noted that his evidence did “not seem to be relied upon in any respect by the plaintiff, but his evidence was referred to by counsel for the defendants and they submit that he was an unsatisfactory witness in very many respects.” His Honour also noted at PJ [123] that his “body language exhibited a strong disinclination to be in court giving evidence” and he referred to T467.30 – 468; 468.40 - 469.25 in this regard, before concluding that it was “difficult to accept Mr Hines’ evidence as an accurate account”: PJ [126]. See also [65] above.

46. [92]

    As to Mr Charles Edwards and Mr Lesley Leonard, their evidence formed part of the “reign of terror” picture which his Honour did not accept existed for reasons he explained. This included Mr Edwards’ evidence that, in the playground, Sister Green allegedly hit at least one student every day with a ruler which was not Montgomery (including Mr Edwards once a week), and that Brother Hollamby dragged Mr Edwards to the principal’s office multiple times by the ear – all in view of other teachers: T.213 [5]-[50], 214 [1]-[3]. The extreme picture painted which occurred, on many accounts, in the presence of multiple eyewitnesses, undermined its credibility, and so much was reinforced by the fact that there was no evidence of either witness having formally or informally recalled the alleged abuse in the 30 years since it was said to have occurred, with both witnesses agreeing that their witness statements were the first time that they had put down on paper what they said had happened to them and others 30 years ago: T 224 [32]-[45], 436 [26]-[30].

47. [93]

    The primary judge’s non-acceptance of this body of evidence also accounted for his Honour’s non-reliance on it as tendency evidence. In this context, his Honour noted that “there was an absence of consistency in essential matters and inconsistency in the details of some. To my mind, this was an inevitable effect of the passage of time impoverishing the available evidence”: PJ [191].

48. [94]

    Further, his Honour’s rejection of this body of evidence was not glaringly improbable and a case such as the present which went for a considerable length of time with a large number of witnesses is a classic example of a case where appellate deference to the primary judge’s fact-finding advantages is warranted.

49. [95]

    For these reasons, I would reject appeal grounds 7b and c.

50. [96]

    Grounds 8a and b have already been dealt with. Grounds 8c and d were that the primary judge erred by accepting Sister Green’s evidence in circumstances where:

51. [97]

    These two sub-grounds of appeal relate to PJ [67] in which the primary judge stated:

52. [98]

    The portions of this paragraph to which I have added emphasis highlight the overstated nature of these two sub-grounds of appeal. His Honour’s expression was couched and qualified. Paragraph [67] must also be understood in the light of the primary judge’s ultimate assessment (at PJ [198]) that he found Sister Green to be:

53. [99]

    These sub-grounds of appeal should be rejected.

Grounds 10 to 13: Did Mr Dixon assault the Appellant as alleged?

1. [100]

   Appeal grounds 10-13 focussed on the case against Mr Alex “Sweeney” Dixon although the amount of time devoted to this aspect of the appeal in oral submissions was evanescent. The case against Mr Dixon was that “[o]n multiple occasions, [Mr Dixon] hit the Plaintiff, twisted his ears and kicked him in the bottom.” The primary judge’s findings rejecting this aspect of the Appellant’s claim have already been noted briefly at [15] above.

2. [101]

   To recapitulate, the primary judge found that, while Mr Dixon did smack the Appellant once on his upper right thigh over his clothing, he did not do so in the manner alleged: PJ [217]. His Honour also concluded that the Appellant had “not proved misconduct by Sweeney that in any way amounts to serious physical abuse” and that [the] claim against him “must therefore fail by virtue of the provisions of the Limitation Act 1969”: PJ [217]. The primary judge was influenced by the fact that none of the pleaded allegations against Mr Dixon “found their way into the plaintiff’s witness statement”: PJ [205]. His Honour observed, not unreasonably, that “[t]his may have been an oversight, but it does affect the weight I feel I can give to the evidence.” I agree. Earlier in the judgment, the primary judge had noted (at PJ [33]) that:

3. [102]

   Mr Dixon’s evidence of once having disciplined the Appellant with a smack was as follows:

4. [103]

   The primary judge ultimately held at PJ [217] that:

5. [104]

   His Honour’s acceptance of the criticism of the Appellant’s evidence more generally (see [11] and [77] above) no doubt contributed to this lack of satisfaction.

6. [105]

   In written submissions, the Appellant put that “both the factual and legal findings in respect of Mr Dixon suffer the same defects as those identified in respect of the Sr Green findings above”. For the reasons advanced in respect of the appeal against Sister Green, to the extent that similar attacks are mounted in respect of the primary judge’s reasoning in the case against Mr Dixon, they should equally be rejected but the position is compounded in respect of the case against Mr Dixon by reason of the absence of evidence against him in the Appellant’s principal witness statement and his explanation for that omission.

7. [106]

   As with the case against Sister Green, the primary judge was faced with bodies of evidence tending in very different directions. His Honour, unlike this Court, had the opportunity to observe that evidence and carefully balance the probabilities. His Honour treated and evaluated Mr Dixon’s evidence “with some caution”: PJ [69].

8. [107]

   Ground 10 of the Appellant’s notice of appeal is in generic terms in relation to the finding that the Appellant was not assaulted by Mr Dixon. Grounds 11 and 12 supplemented Ground 10 by focusing not on any evidence by the Appellant but on the one piece of evidence given by Mr Dixon as set out in the passage extracted at [102] above. That evidence could not have sustained a finding of serious physical abuse and, indeed, these two grounds of appeal nor the written submissions in support do not suggest otherwise.

9. [108]

   At PJ [208]-[209], the primary judge held:

10. [109]

    The Appellant attacked the primary judge’s finding of good character in ground 13 on a number of bases. First, he relied on Mr Dixon’s own admission of smacking the Appellant on one occasion. This did not mean he was not of good character. Second, it was contended that Mr Dixon admitted to assaulting the Appellant in the manner pleaded. This was not so. Third, he referred to Brother Hollamby admitting to cautioning Mr Dixon against the use of physical violence against students. This again represented a degree of forensic over-reach and exaggeration. The caution was animated by a concern that Mr Dixon, an indigenous man, did not apply in the context of his school duties any force of the kind that the Brother deposed that he was aware was used in some of the local communities. The Brother’s counselling was essentially precautioning rather than chastisement. The final matter relied upon related to Mr Dixon’s admission to having a conviction for a domestic violence incident in 1993. The primary judge noted at PJ [73] that it was not a matter that required incarceration. It is plain that the primary judge took this into account and weighed its significance against a wealth of evidence which supported the finding of good character. The primary judge expressed his view as to good character “on the whole” which was an appropriate form of evaluation, well open to his Honour who was in a vastly superior position to this Court to form a view about the matter.

11. [110]

    For the foregoing reasons, I would reject appeal grounds 10-13.

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

1. [111]

   After judgment in this matter had been reserved, the High Court delivered its reasons for judgment in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 (AA).

2. [112]

   Unsurprisingly, the Appellant in the present case sought leave to file supplementary submissions in light of that important decision. Leave was granted. Somewhat surprisingly, however, the legal representatives for the Appellant filed supplementary submissions of some 12 pages, only 3 paragraphs of which were directed to the significance of the overruling in AA of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 and what was said in AA in relation to non-delegable common law duties.

3. [113]

   In St Paul’s College Ltd v Allan [2026] NSWCA 22 at [77]-[92], Kirk JA (with whom Payne JA and Price AJA agreed) explored in some detail the significance of AA including the “profound consequences” of aspects of the reasoning in that decision “for the potential liability of school authorities with respect to abuse of students by those for whom the authorities are responsible.”

4. [114]

   The Respondents to the present appeal properly submitted that:

5. [115]

   They noted that, if the primary judge’s factual findings were to be overturned and that “serious physical abuse” were established so as to overcome the limitation period that would otherwise apply, the First Respondent, the Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (the Diocese), would be liable for breach of its non-delegable duty. In this eventuality, however, there would need to be a reassessment of the primary judge’s contingent assessment of damages to take account of the operation of the Civil Liability Act 2002 (NSW).

6. [116]

   As I do not consider that any proper basis has been established for interfering with the primary judge’s factual finding that “serious physical abuse” was not established, AA does not impact any question of the Diocese’s liability.

7. [117]

   It remains to refer to the balance, and indeed the bulk of the Appellant’s Supplementary Submissions made in relation to AA. The essence of the Appellant’s argument was that AA established and mandated a new fact-finding methodology “to be applied in the determination of the foundational fact of abuse in historical child abuse litigation, brought against institutional defendants”, relying on [56]-[76] of the plurality and [189]-[220] of Gordon J’s reasons. It was submitted that:

8. [118]

   It would have been utterly heterodox for the High Court in AA to “prescribe”, as the Supplementary Submissions contended it did, a “governing methodology” for fact-finding for a distinct class of case where, “while inconsistency and unreliability remain forensically relevant … their forensic force [must] be assessed through a trauma-informed lens”. The High Court was not asked to take such a radical and highly problematic step with a host of implications unexplored, such as the impact on s 140 of the Evidence Act and Sir Owen Dixon’s famous dictum in Briginshaw at 361, as to the need for the trier of fact to reach a state of "actual persuasion" before a fact may be found, a tenet of fact-finding methodology the ongoing relevance of which was expressly recognised in the context of institutional abuse cases in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 at [60]. As Gordon J held in AA at [219]:

9. [119]

   The Appellant’s Supplementary Submissions equated and deprecated Leeming JA’s reasoning in AA in the Court of Appeal as “Gestmin-type” reasoning which it claimed the majority of the High Court in AA “repudiated”.

10. [120]

    The reference to Gestmin is to the well known decision of Leggatt J (as his Lordship then was) which was referred to by the primary judge and is noted at [68] above. The form of reasoning attributed to Gestmin in the Supplementary Submissions was the “elevation of delay, memory frailty and peripheral inconsistency to dispositive status”. Gestmin did no such thing. In that decision, Leggatt J said (at [15]-[22]):

11. [121]

    Some or all of these paragraphs have been referred to or cited in many Australian decisions including, for example, Davey v Want at [15]-[16]; Engadine Medical Imaging Services Pty Ltd v Ibrahim [2025] NSWCA 269 at [49]; Warne v ACN 603 541 411 Pty Ltd (t/as Chandlers International Lawyers) [2025] NSWCA 57 at [64], [74]; Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FCAFC 73 at [30]; Schrader v Broach [2024] NSWCA 14 at [68]-[69]; Moubarak v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [77]; Nominal Defendant v Cordin (2017) 79 MVR 210; [2017] NSWCA 6 at [169], [171]; Liberty Mutual Insurance Company Australian Branch (t/as Liberty Specialty Markets) v Icon Co (NSW) Pty Ltd (2021) 396 ALR 193; [2021] FCAFC 126 at [239]. Those paragraphs from Gestmin accord both with scientific research and common experience. They do not prescribe a methodology of fact-finding but point out the difficulties of establishing facts many years after the events.

12. [122]

    Gestmin was scarcely a novel decision. The essence of the reasoning underpinning Leggatt J’s observations had been articulated by McHugh J in Longman at 107-108 (see [68] above) and stated in the civil context by McLelland J in Watson v Foxman (1995) 49 NSWLR 315 at 319 (Watson v Foxman), a decision which has been cited in legion decisions throughout Australia and, perhaps most pertinently for present purposes, in GLJ at [59] where it was observed by Kiefel CJ, Gageler and Jagot JJ that:

13. [123]

    The Appellant’s Supplementary Submissions were at pains to point out that both Gestmin and Watson v Foxman were decisions involving “fundamentally different forensic contexts” and should be distinguished on that account as well as by reason of the fact that both decisions “pre-dated the abolition of limitation periods for historical child abuse claims”. That submission cannot be sustained: it is fundamentally inconsistent with the reference to Watson v Foxman in GLJ at [59], and the express embrace of Watson v Foxman by Gageler CJ, Gordon, Jagot and Beech-Jones JJ in Willmot v Queensland (2024) 98 ALJR 1407; [2024] HCA 42 at [30], another institutional abuse case, where their Honours referred to Briginshaw, Longman, GLJ and Watson v Foxman, and expressly observed that the “principles and techniques available to trial judges to deal with evidentiary imbalances…have not changed because of the abolition of the limitation period” under the Queensland equivalent of the Limitation Act. The submission is also inconsistent with the following observation by Gageler CJ and Jagot J in Automotive Invest Pty Ltd v Commissioner of Taxation (2024) 98 ALJR 1245; [2024] HCA 36 at [45]:

14. [124]

    The Appellant’s Supplementary Submissions went so far as to put that, in the posited prescribed category of case, where a complainant is found to have been honest (or, as here, attempting to give honest evidence), that evidence could be rejected “only by findings that the Appellant and the eyewitness and tendency witnesses were lying, delusional, or collectively mistaken”. That binary approach to fact-finding, apart from tending to reverse or subvert the onus of proof, overlooks that a tribunal of fact may simply not reach the requisite degree of satisfaction in a particular case. Where that is so, as the primary judge indicated was so in the present case, the tribunal of fact is not to resort to choosing between guesses “on the ground that one guess seems more likely than another or the others”: Jones v Dunkel (1959) 101 CLR 298 at 305; [1959] HCA 8 per Dixon CJ, quoted in GLJ at [60].

15. [125]

    I accept the Respondents submissions that the primary judge’s rejection or non-acceptance of the Appellant’s account was:

16. [126]

    His Honour did not treat memory frailty, delay, or the absence of contemporaneous complaint as determinative but legitimately made reference to each of these matters in the course of his careful and conscientious assessment of the evidence. One point consistently made in AA was the advantage of the primary judge in assessing the credibility and reliability of the evidence of competing witnesses over that of the Court of Appeal: see at [75], [208], and [394]. If that were so in AA, it is even more so in the present case given the length of the trial and the multiplicity of witnesses.

Conclusion

1. [127]

   For the foregoing reasons, the appeal should be dismissed with costs.

2. [128]

   KIRK JA: I agree with Bell CJ.

3. [129]

   BALL JA: I agree with the Chief Justice.