MTH v State of New South Wales

1. [1]

   MITCHELMORE JA: I agree with Adamson JA.

2. [2]

   ADAMSON JA: The appellant, MTH, appeals against the judgments entered in favour of the first respondent, the State of New South Wales (the State), the second respondent, the estate of the late Geoffrey Croft (the estate), and the third respondent, Sandra Croft, by Cavanagh J (the primary judge) on 28 November 2024. She also appeals against the costs orders made that she pay the State’s costs on the ordinary basis up to and including 30 July 2020 and on an indemnity basis thereafter and that she pay the costs of the estate and Mrs Croft on the ordinary basis.

3. [3]

   The notice of appeal contains 33 grounds of appeal. It is not necessary that they be addressed separately since, as submitted on behalf of the estate, they fall into seven discrete categories as follows:

   1. (1)

      alleged failure to allow evidence from the criminal proceedings and tendency evidence to be admitted (grounds 1, 4, 26, 27 and 29);

   2. (2)

      alleged failure to find that Mr Croft, and since his death his estate, liable for the alleged tortious conduct of Mr Croft (ground 25);

   3. (3)

      alleged failure to find that the estate abused the process of the Court by disputing that he sexually assaulted the appellant;

   4. (4)

      other alleged failures relating to the admission or rejection of evidence (grounds 2, 5-19, 21, 23, 24 and 27);

   5. (5)

      alleged erroneous assessment of damages (ground 28);

   6. (6)

      alleged errors with respect to costs orders (grounds 17, 20, 28 and 30-32); and

   7. (7)

      other miscellaneous errors (grounds 3, 22, 29 and 33).

4. [4]

   For the reasons given below, I consider that the appeal in respect of the estate ought be allowed and judgment entered in favour of the appellant against the estate with costs. I also consider that the primary judge’s assessment of damages was erroneous and can be reviewed by this Court. The appeals against the State and Mrs Croft ought be dismissed.

Introduction

1. [5]

   MTH’s claim in the Court below was for damages in tort arising from events which occurred while she was a ward of the State. MTH was born in August 1962 and became a ward of the State in 1967 when she was four years old. Shortly after becoming a ward she was placed with foster parents, Mr and Mrs Phelan, who wanted to adopt her. However, when MTH was 16, Mr and Mrs Phelan’s circumstances changed and she was moved from the Phelan household and placed with short-term foster parents, Mr and Mrs Croft.

2. [6]

   Mr Croft was subsequently convicted of five offences committed against MTH during the period 1 February 1979 and 30 April 1980: two offences of rape contrary to s 63 of the Crimes Act 1900 (NSW) and three offences of assaulting a female over the age of 16 years and committing an act of indecency against her contrary to s 76 of the Crimes Act. In the same proceedings, Mr Croft was also convicted of four sexual assaults against RS, who with his brother had been fostered by the Crofts for a period which included the period between 17 November 1976 and 1 October 1977. Mr Croft’s appeal against his convictions was dismissed by the Court of Criminal Appeal: Croft v R [2021] NSWCCA 146. He later applied for special leave to appeal to the High Court. However, as he died on 22 April 2022 before the application was determined, the High Court dismissed the application on 16 June 2022 (Croft v The Queen [2022] HCASL 120), pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), as it was no longer possible to grant the relief he sought: Singh v The Queen [2020] HCA 25; (2020) 94 ALJR 714.

3. [7]

   MTH alleged that the State:

   1. (1)

      breached the non-delegable duty which it owed to her by:

   2. (2)

      was vicariously liable for the conduct of its welfare officers and of Mr Croft (the vicarious liability case).

4. [8]

   MTH alleged against Mr Croft that he committed the intentional tort of assault against her by sexually and physically assaulting her while she was in his foster care. MTH alleged against Mrs Croft that she knew of the abuse perpetrated against RS, a boy who was in the Crofts’ foster care at least between 17 November 1976 and 1 October 1977, and that, notwithstanding this knowledge she failed to take steps to stop or prevent the abuse on her by Mr Croft. MTH also alleged that Mrs Croft should have protected her from Mr Croft when she told her of the assaults.

5. [9]

   The primary judge found that none of the allegations of assault had been made out as he did not accept MTH’s evidence as to the assaults and RS had not been called. The primary judge was not satisfied that either the State or Mrs Croft was in breach of the duties of care which they owed to MTH. His Honour entered judgment for all defendants accordingly.

6. [10]

   The initial difficulty with the primary judge’s findings and orders was that it appears that at an early stage of the proceedings, his Honour inferred that MTH was not seeking to rely on the convictions against Mr Croft to prove that he had committed the offences for which he was convicted. Additionally, it appears that his Honour was under a misapprehension (which appears to have been engendered and supported by the respondents’ legal representatives) that a conviction could not prove that the offence had been committed by the offender. This misapprehension affected not only MTH’s claim against the estate (which could have been established by the certificate of conviction alone, there being no probative evidence directly to the contrary) but also MTH’s allegation that Mr Croft had also sexually assaulted RS. Because this error has the potential to affect the entire trial (since it inevitably affected the trial judge’s assessment of MTH’s reliability and credibility), it will be addressed first.

The probative value of the convictions against Mr Croft for offences against MTH and RS

1. [11]

   The certificate of conviction, which certified that Mr Croft had been convicted of the offences referred to above against MTH and RS while they were in the foster care of himself and his wife, was sufficient to establish not only the fact of conviction but also the elements of each offence. For the reasons given below, this is the effect of ss 91, 92 and 178 of the Evidence Act 1995 (NSW). The appellant tendered an email from the police officer who was involved in the criminal proceedings, Detective Acting Sergeant Robinson, which listed the nine charges against Mr Croft involving MTH and RS and noted that a conviction was proved in respect of them. However, the appellant did not tender the certificate of conviction in the Court below for reasons which will be addressed later.

2. [12]

   Part 3.5 of the Evidence Act relevantly provides:

3. [13]

   Section 178 of the Evidence Act provides:

4. [14]

   Section 178 provides that a certificate of conviction is also evidence of the particular offence. Section 92 only applies to civil proceedings and therefore does not permit a certificate of conviction to be used in subsequent criminal proceedings to prove guilt: Chevalley v Industrial Court of New South Wales (2011) 82 NSWLR 634; [2011] NSWCA 357 at [56]-[58] (Bathurst CJ, Allsop P, Beazley, Basten JJA and Sackville AJA agreeing).

5. [15]

   As set out above, s 91 provides that evidence of a decision is not evidence of a fact in issue in the proceedings and the decision must not be used to prove that fact. However, s 92 excepts certain facts, including convictions and orders, unless there is an appeal against the conviction which has been instituted and not finally determined.

6. [16]

   Mr Tierney, who appeared for Mrs Croft, submitted that the certificate of conviction was not admissible because it fell within the exception to the exception to s 92(2). He argued that because Mr Croft died before his special leave application was determined on the merits, it remained an appeal which had been instituted but had not been finally determined. In the alternative, he submitted that, if a special leave application was not an appeal, it was nonetheless a “review … (however described)” within the meaning of s 92(2)(a) because the High Court, in deciding whether to grant special leave would be required to “review” the conviction which is the subject of special leave to appeal.

7. [17]

   The construction of s 92 of the Evidence Act for which Mr Tierney contended must be rejected. A special leave application is not an appeal: United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [30]-[31] (Gleeson CJ, McHugh and Gummow JJ). Nor is it a review. The word “review” in this context is apt to refer to, for example, a review by way of application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). However, even if it were either an appeal or a review, it was finally determined when it was dismissed by the High Court. Further, the construction for which he contended would be at odds with the evident purpose of the section since its effect would be that a certificate of conviction could never be proved in a civil trial to establish the commission of the offences certified in the certificate if the perpetrator died while an application for special leave or an appeal had not been determined prior to the perpetrator’s death.

8. [18]

   Sections 92 and 178 were enacted to overcome the common law rule that convictions were not admissible to prove the commission of offences. This rule was criticised by the Australian Law Reform Commission (ALRC) in Evidence (Interim Report No 26, 1985) at 441:

9. [19]

   Thus, by reason of s 178 of the Evidence Act, MTH was entitled to rely on the certificate of conviction to establish, first, that Mr Croft had raped her twice and indecently assaulted her three times during the period specified; and, second, that Mr Croft had sexually assaulted RS four times during the period specified.

10. [20]

    This construction of ss 91, 92 and 178 of the Evidence Act is well established by authority and reflects the purpose of the amendments to these provisions which arose as a result of recommendations made by the ALRC. The utility of a certificate of conviction being able to be used to prove not only the conviction but also the fact of the offence, its date (or period) and the identity of the offender and victim is obvious. These provisions have been used principally in forfeiture cases (where there is a question whether a beneficiary can inherit under a will because of an allegation that the beneficiary has murdered the testator: a certificate of conviction of murder is sufficient to prove that matter); disciplinary cases (where the practitioner has been convicted of an offence); and, as in the present case, claims for damages by a victim of crime against the perpetrator, following the perpetrator’s conviction.

11. [21]

    In Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508, the plaintiff’s parents and sister had been killed in their own home. His father was the last to die. His parents made a joint will which, in the events that happened, appointed the defendant as executrix. The plaintiff, Sef, who was charged with the murder of the three family members, sought an advance from the estate to pay the legal costs of defending the criminal proceedings. Campbell J refused the application on the basis that if he were convicted of the murder of his father, the certificate of conviction could be tendered in the civil proceedings as proof that he murdered his father and he would therefore forfeit any benefit he would otherwise have inherited under his father’s will. His Honour explained the effect of s 92 of the Evidence Act as follows:

12. [22]

    This Court agreed with Campbell J’s reasons and dismissed the appeal: Gonzales v Claridades (2003) 58 NSWLR 211; [2003] NSWCA 227 at [16] (Mason P, Beazley JA and Foster AJA agreeing).

13. [23]

    Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 (Sukkar) concerned an application to remove a practitioner from the roll on the basis of his conviction for importing prohibited drugs. This Court (Hodgson JA, Tobias JA agreeing) referred to Gonzales v Claridades in the context of ss 91 and 92 of the Evidence Act. It set out the limits of what can be proved by a certificate of conviction at [9]:

14. [24]

    Sukkar was followed in the Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 (Livanes), a similar application where the practitioner had been convicted of ten counts of defrauding the Commonwealth. McColl JA (Campbell and Meagher JJA agreeing) said at [9]:

15. [25]

    In Edwards v State Trustees Limited (2016) 54 VR 1; [2016] VSCA 28, the application of the forfeiture rule arose following the conviction of the beneficiary for the manslaughter of the testator. Santamaria JA referred to ss 91, 92 and 178, Sukkar and Livanes and said, at [116]:

16. [26]

    In Osborne v Butler (2024) 73 VR 386; [2024] VSCA 6 the applicant was convicted in 2017 of two counts of sexual penetration of the respondent, who was then 15 years old. The respondent commenced proceedings against the applicant claiming damages for the assault and battery constituted by the offending. She relied on the applicant’s conviction of these offences to establish his liability. The Victorian Court of Appeal addressed the common law rule that evidence of a conviction was admissible only to prove the fact of the conviction but not the facts on which the conviction was based (Hollington v R Hewthorn & Co Ltd [1943] KB 587). It also referred to the recommendation by the ALRC that the Evidence Act should be amended to provide that evidence of convictions was admissible to prove the facts on which they are based ([24]-[29]).

17. [27]

    The Court held that the amendments that were made as a consequence of these recommendations displaced the common law rule and said:

18. [28]

    In Dajani v Dajani [2025] FedCFamC1A 28, the appellant (the husband) was convicted of multiple offences of sexual assault against his daughter prior to the final hearing of the Family Law Proceedings against his wife. The trial judge inferred that these assaults caused or contributed to the daughter’s difficult behaviour, which made the wife’s contribution as a parent more arduous. The Full Court (McClelland DCJ, Aldridge and Jarrett JJ) said at [27]:

19. [29]

    These decisions establish that a certificate of conviction is admissible to prove the fact of conviction and the fact of the commission of the offence, being the fact of each element of the offence, its date and the identity of the offender and, if there be one, the victim. Thus, the convictions of Mr Croft for the five offences against MTH were admissible to prove that he had raped her twice and committed three indecent assaults against her in the period 1 February 1979 to 30 April 1980 when she was 16 or 17 years old.

20. [30]

    These decisions also establish that other documents containing facts relating to the convictions, including those referred to in the sentencing remarks, are not admissible to prove the facts stated in them. Thus, while MTH could prove that she had been raped and indecently assaulted by relying on the convictions of Mr Croft for those offences, she could not, for example, use the following passage from the sentencing remarks of McLennan SC DCJ to show that Mrs Croft knew about Mr Croft’s offending behaviour against RS (which she denied in cross-examination):

21. [31]

    These reasons are sufficient to address the grounds relating to the admission or rejection of evidence in relation to matters arising in the criminal prosecution of Mr Croft (grounds 26, 27 and 29).

The proceedings in the Court below

1. [32]

   On 15 June 2023, Mrs Croft filed a notice of motion seeking a permanent stay of the proceedings as against her. The application was heard on 4 September 2023 by Garling J, orders were made by his Honour on 8 September 2023 (dismissing the application and ordering Mrs Croft to pay MTH’s costs of the application) and reasons were published on 15 September 2023: MTH v State of New South Wales [2023] NSWSC 1124. At that stage, MTH was represented by Mr Sharpe of counsel and Carroll & O’Dea, solicitors (she was previously represented by Kelso Lawyers and Greg Walsh & Co). Garling J was unpersuaded that any prejudice which Mrs Croft would suffer would be sufficiently exceptional to warrant a permanent stay and refused Mrs Croft’s application.

2. [33]

   Throughout the appeal, the appellant made reference to what Garling J had said and done in the course of case management hearings and the hearing of the permanent stay application by Mrs Croft, contending, for example, that Garling J had admitted the transcript of the criminal trial via case management and the primary judge erred in refusing to allow it as evidence in the trial. She also referred to evidence which had been adduced on the stay application. I confirm that the evidence that Garling J considered on the stay application was not, by reason of that fact, admitted in the trial itself before the primary judge. There being no indication that any rulings on evidence under s 192A of the Evidence Act were sought or made in advance of the trial, the admission of evidence in the trial was a matter for the primary judge. This Court is limited, in its consideration of the appeal, to the evidence adduced before the primary judge at the trial of the proceedings. For this reason, it is not necessary to address further the application for a permanent stay. Ground 1 has not been made out.

3. [34]

   MTH had solicitors acting for her in the proceedings in the Court below until relatively shortly before the hearing. Her then solicitors served a tendency notice dated 3 November 2023 on the respondents in which they identified Mr Croft’s alleged tendency as follows:

4. [35]

   The evidence identified in the notice to be relied on in support of the tendency comprised the police statements of RS and his brother PS which had been prepared for the criminal prosecution of Mr Croft, and her previous solicitors had included them in the Court book. However, objection was taken to them and the primary judge ruled that the statements were not admissible unless their makers were called to give evidence. Although the appellant took issue with this ruling on appeal (ground 4), his Honour’s rejection of the statements from the criminal trial on the basis of hearsay was correct. The way in which the objection to this evidence was put, along with the appellant’s further ground of appeal relating to her efforts to have RS attend and give evidence is addressed below.

5. [36]

   The appellant’s solicitors do not appear to have obtained a certificate of Mr Croft’s convictions in respect of the five offences against MTH and the four offences against RS and did not refer to the convictions in the tendency notice. The appellant herself was apparently ignorant of this means of proof, which would, to borrow the words extracted above from the ALRC report, amount to “evidence of high probative value”, which was readily available to her. This is also returned to below.

6. [37]

   In her submissions in this Court, the appellant contended that it was unfair that she was obliged to submit herself for cross-examination on her medical records on the first day of the hearing (after objections to evidence had been dealt with). She said that this procedure took her by surprise. As she was the plaintiff in the Court below, her evidence was adduced first. Accordingly, each of the defendants’ counsel had a right to cross-examine her, including by reference to documents which had been produced in answer to subpoenas issued at the request of other parties. The appellant also submitted that access ought not to have been given to the other parties to her medical records. Having regard to the issues in the case, procedural fairness to the defendants in the Court below required that they be given access to all non-privileged documents, including the appellant’s medical reports. For these reasons, ground 11, which alleged that the primary judge had denied procedural fairness by allowing the second respondent to engage in what the appellant described as excessive questioning on unrelated or irrelevant topics, has not been made out.

7. [38]

   The appellant also submitted that the publication of the reasons of the primary judge, in substance, amounted to an invasion of her privacy because they disclosed “distressing events in a childhood matter”. The appellant’s response is an understandable one for a litigant in person who may not have appreciated the extent to which litigation exposes the private matters of litigants, both in open court and in the reasons for decision. The use of a pseudonym is designed to protect her from identification as the victim of a sexual assault. However, the primary judge was obliged, as this Court is obliged, to set out the reasons for decision, which necessarily included a consideration of the evidence.

8. [39]

   The appellant made several submissions which referred to the Civil Liability Amendment (Child Abuse) Act 2021 (NSW). That Act has the effect of empowering a court to set aside judgments and settlements of claims for child sex abuse in circumstances where there were legal barriers to the person being fully compensated through a legal cause of action. As the appellant had not previously resolved proceedings or entered judgment, the Act did not benefit her in this respect.

9. [40]

   The relevance of Mr Croft’s convictions was first raised by the primary judge with Mr O’Neill, who appeared with Ms Robertson in the Court below and alone in this Court, in the following passage:

10. [41]

    The primary judge then raised the same matter with Mr Andrews, who appeared for the estate in the Court below and in this Court, as follows:

11. [42]

    Mr Tierney appeared for Mrs Croft in this Court and in the Court below. When asked what his client’s position was with respect to the offences committed against MTH, he said that the effect of ss 91 and 92 was that evidence of the convictions was not evidence of the underlying elements of the offences. This was consistent with the position he took in this Court (as appears from the summary of his submissions set out above).

12. [43]

    The following exchange occurred on 22 July 2024 (the first day of the trial):

13. [44]

    It appears from this exchange that the primary judge misapprehended the fact and may have misapprehended the law. First, his Honour misapprehended the fact by incorrectly inferring from the circumstance that MTH had put on evidence of Mr Croft’s offending conduct that she did not rely on the conviction to prove the conduct (without having checked this matter with MTH). Secondly, his Honour misapprehended the law by apparently accepting Mr Tierney’s submission that MTH could not use the conviction to establish that the offending conduct had actually occurred in any event because he had died before the special leave application was determined.

14. [45]

    Further, the primary judge was evidently concerned, as appears from the last passage in the extract, about whether the estate was estopped by the conviction from denying the conduct. That question occupied a substantial amount of time in the hearing and was addressed at length in the reasons. Section 93(c), which exempts res judicata and issue estoppel from the operation of Part 3.5 of the Evidence Act, was neither raised by the parties nor addressed by the primary judge. In these circumstances, it is not necessary to address whether s 93(c) also includes the category of abuse of process which involves the re-litigation of an issue already decided against the party. In any event, the Evidence Act allows a certificate of conviction to be admitted as proof of the elements of the offence but does not provide that it is conclusive evidence.

15. [46]

    The only evidence tendered by the estate or Mrs Croft to directly dispute the commission of the offences was evidence of Mr Croft’s denials when first accused of them. This evidence was admissible under s 63 of the Evidence Act because Mr Croft, being dead, was unavailable to give evidence. However, it was of low probative weight as it was self-serving and therefore did not amount to an admission (which would have been admissible as an exception to the hearsay rule). Whether or not the estate of Mr Croft was estopped from challenging the fact of the offending, the estate adduced no contrary evidence to rebut the proof of the elements of the offences constituted by the convictions, save, as referred to above, the first-hand hearsay evidence of his denials. While the convictions were not conclusive proof that the offences were committed, in the absence of direct evidence to the contrary, they were sufficient to prove the fact of the offending conduct.

16. [47]

    The State objected to the convictions of Mr Croft for offences against RS being used to establish the fact of the offences on the basis of the hearsay rule and also the alleged tendency of Mr Croft, referring his Honour to s 91 of the Evidence Act but not s 92. The primary judge upheld the objection and provided the following explanation of the law to MTH:

17. [48]

    Although his Honour’s explanation of s 91 was correct, his Honour did not refer to the exception regarding evidence of a conviction in s 92 of the Evidence Act. This error was repeated in several rulings made by the primary judge, who continued to inform MTH that “evidence of the earlier conviction is not evidence of the fact”. MTH continued to seek to rely on Mr Croft’s convictions to prove the elements of the offences he committed against her and RS. The primary judge continued to misstate the law, as is evident from the following passage:

18. [49]

    The primary judge said further on 25 July 2024 (the fourth day of the trial):

19. [50]

    On Monday 29 July 2024, (the sixth day of the trial), the topic of the probative value of the convictions was revisited, including in the following exchange:

20. [51]

    Because of the primary judge’s rulings, MTH tried to persuade RS, whom she did not know except through having been complainants in the same criminal trial against Mr Croft, to give evidence at the hearing. He refused to come. The primary judge refused MTH’s request that RS be subpoenaed on the ground that insufficient notice had been given to RS and that MTH had been unable to ascertain how he could be served (this matter is addressed in more detail below).

21. [52]

    The primary judge confirmed again on 31 July 2025, the seventh day of the trial, that the following matters were not in dispute:

22. [53]

    Counsel for the defendants indicated that they agreed with this summation of the matters which were not in dispute. MTH continued to reiterate the importance of the convictions to the proceedings. On 31 July 2024, she said:

23. [54]

    In the pre-hearing written submissions for the estate dated 16 July 2024, Mr Andrews confirmed his agreement that Mr Croft had been convicted, his appeal to the Court of Criminal Appeal had been dismissed and that, after his death, his application for special leave to appeal to the High Court was dismissed. He submitted:

24. [55]

    In the estate’s final submissions, Mr Andrews did not refer to the convictions as being evidence of the fact of the offences and submitted that MTH’s evidence of the offences was insufficient to discharge her onus, having regard to Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.

25. [56]

    In her pre-hearing written submissions dated 19 July 2024, MTH said, of her case against the estate:

The primary judge’s reasons regarding MTH’s claim against the estate

1. [57]

   The primary judge relevantly found:

2. [58]

   The primary judge did not accept MTH’s evidence of the abuse perpetrated on her by Mr Croft and therefore dismissed her claim against the estate. His Honour noted that there was no direct evidence about the abuse which was directly contrary to MTH’s evidence. Nonetheless, his Honour was not satisfied that MTH was a reliable witness, including because of the evidence given by others (including TH, a regular visitor to the Croft property, and Mrs Croft) about the surrounding circumstances and because of contemporaneous departmental documents about what happened during the time she was at the Croft residence. His Honour said:

MTH’s challenge in this Court to the finding that she had not discharged her onus of proving that Mr Croft had sexually assaulted her

1. [59]

   MTH’s grounds of appeal are numerous and varied. They include complaints that MTH was denied procedural fairness. It was accepted, at least by the State, that although MTH appeared to make no challenge to the finding at [281], “by reason of her challenges to the way in which the hearing was conducted and the rulings on evidence, it is implicit that she seeks to impugn that finding”. The estate sought to defend the primary judge’s finding that MTH had not discharged the onus of proving abuse by Mr Croft by submitting that his Honour “carefully addressed the inconsistencies in the appellant’s evidence and … was entitled to find as he did that the appellant had failed to discharge her onus of proof in relation to the critical issue, namely whether the abuse had occurred”. Mrs Croft expressly accepted in her written submissions in this Court that because MTH was “a self-represented litigant, a degree of care was required by the [primary judge] to ensure that the appellant was not the subject of a miscarriage of justice because of the actions of the Court”.

2. [60]

   The primary judge’s finding that MTH had not discharged the onus of proving the abuse was plainly affected by his Honour’s assumption about the way MTH was putting her case, together with his Honour’s misconception about the effect and operation of ss 91, 92 and 178 of the Evidence Act.

3. [61]

   His Honour should have started with the convictions which, had a certificate under s 178 of the Evidence Act been tendered, would have amounted to prima facie evidence of the elements of each offence. To the extent to which MTH gave evidence of those elements, her evidence would have been corroborated by the certificate. There being no direct evidence to the contrary, the convictions were sufficient to discharge MTH’s onus that they occurred. Other evidence was sufficient to establish that these acts must have occurred while she was living with the Crofts and therefore while she was under the age of 18 years and in their foster care. By starting with MTH’s oral evidence and finding her an unreliable witness, the primary judge disregarded the probative weight of the convictions to prove the elements of the offence.

4. [62]

   Indeed, it is difficult to conceive of an instance where the estate could displace the evidence of the convictions in circumstances where there were no witnesses to the rapes and indecent assaults and Mr Croft was unable to give evidence. However, this matter need not be further explored in circumstances where there was no direct evidence to contradict the convictions and MTH’s evidence of the rapes and indecent assaults.

5. [63]

   Proof of the elements of the five offences committed against MTH was central to proof of MTH’s case against the estate and important in her case in negligence against the State and Mrs Croft. She also wished to prove that Mr Croft had committed offences against RS. As Mr Croft was tried for offences against MTH and RS together, the certificate of conviction set out all the offences of which he was convicted. The effect of ss 91, 92 and 178 of the Evidence Act was that the elements of these offences could have been readily proved by the tender of a certificate of conviction, which was admissible for that purpose. MTH as a litigant in person was not aware of the particular provisions of the Evidence Act which would produce that result but it was obviously what she was trying to achieve by her constant references to the convictions of Mr Croft for offences against her and RS.

6. [64]

   The question arises whether the primary judge denied MTH procedural fairness by not alerting her to the evidentiary pathway which the Evidence Act allowed to enable her to prove the commission of the offences by tendering a certificate of conviction.

7. [65]

   While a trial judge is not permitted to give legal advice to a litigant in person (or, indeed, to any litigant) since this would compromise judicial impartiality, a trial judge may explain matters of practice and procedure for the benefit of the parties. The parameters of what is allowable are determined by reference to the circumstances of the particular case and are not readily susceptible of general statement.

8. [66]

   An unrepresented party is subject to the same rules as any other litigant. The court must ensure that the rules are obeyed, subject to any proper exceptions, since to do otherwise would be unfair to the represented litigant. However, the primary judge had an obligation to ensure that the appellant did not, because of lack of legal skill, fail to claim rights or put forward legal arguments: Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) (Kirby P, Samuels and Mahoney JJA), cited with approval by the High Court in Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [47].

9. [67]

   A judge must also be alert to a misconception exhibited by a litigant in person which may have negative forensic consequences. In Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94, the Court of Appeal in Victoria (Beach JA, Kennedy JA and Forrest AJA) allowed an appeal against the dismissal of the appellant’s case on the basis of a no case to answer submission by the defendant. It held that the trial judge erred by not enlightening a litigant in person who made it clear that he proposed to prove his case by cross-examining witnesses whose statements had been served by the defendant and who obviously did not appreciate that it was open to the defendant not to call evidence.

10. [68]

    There are undoubtedly some differences between the obligations of a judge conducting a criminal trial to ensure the fair trial of an accused and the obligations of a judge conducting a civil trial. However, Basten JA in Lee v Cha [2008] NSWCA 13 applied statements of principle in criminal appeals to civil trials and said:

11. [69]

    In the present case, it is not necessary to outline or seek to determine the bounds of necessary or appropriate judicial assistance to a litigant in person since, whatever those limits, it is of signal importance that a judge not positively mislead a litigant in person as to the effect of the law. The reason for this is that a litigant in person generally lacks the wherewithal to argue against a proposition of law put by the judge and may have little choice but to accept it. This is to be contrasted with the position of represented parties: legal representatives have a duty to correct any misapprehension by a judge as to the facts or the law.

12. [70]

    It is not suggested that the primary judge in the present case deliberately misled the appellant. The source of the difficulties in the present case derived from the two errors that I have already identified.

13. [71]

    First, the primary judge inferred and communicated to the parties that the appellant was not relying on the convictions as proof that the offences were committed (this is evident in several places in the transcript, including in the passage extracted above where the primary judge told Mr Tierney that “[the appellant is] not relying on evidence of the conviction to prove the fact”). No basis for this inference or assumption is evident from the transcript. It does not appear to arise from anything the appellant said or did. The only available inference is that the primary judge considered that, as the appellant was proposing to give evidence as to the assaults, she was not relying on the convictions as proof of them. The difficulty with this conclusion is that it can hardly be supposed that a plaintiff suing a defendant in tort on the basis of conduct which has been the subject of criminal convictions would not seek to rely on the convictions to prove the commission of the offence: such a course would be forensically irrational. A plaintiff in that situation who tenders a certificate of conviction will have the benefit that the elements of the offence are proved to a prima facie level and will also amount to corroboration of any evidence which the plaintiff might give as to the commission of the offences.

14. [72]

    Second, MTH’s reliance on the convictions to prove the elements of the offences is plain from the transcript, as is her ignorance of the admissibility of a certificate of conviction to achieve that forensic objective. So, too, is the primary judge’s misapprehension as to the effect of the relevant provisions. The primary judge repeatedly told the appellant that she could not rely on the convictions as proof of the commission of the offences.

15. [73]

    In effect, the primary judge informed the appellant that the only way in which she could prove the sexual assaults was to give evidence of them herself and the only way she could prove that RS had also been indecently assaulted by Mr Croft was to call RS to give evidence of them. This was incorrect since the Evidence Act permitted the appellant to prove the fact of the offences against her and RS by tendering the certificate of conviction. Had his Honour told the appellant that the convictions alone could not prove the commission of the offences but that, if she tendered a certificate of conviction, it would be evidence of the commission of the offences, it cannot be doubted that she would have tendered a certificate of conviction.

16. [74]

    His Honour’s failure to appreciate the effect of the Evidence Act led his Honour into the error of considering that the abuse, insofar as it was constituted by the elements of the offences for which Mr Croft was convicted, could only be proved by MTH’s own oral evidence in the proceedings in the Court below, which his Honour did not accept. The primary judge compounded the appellant’s lack of understanding of the rules of evidence by misleading her as to their effect, although as noted above this was not deliberate. To this extent, grounds 17 and 26 have been made out.

17. [75]

    The further question arises whether it would be appropriate for this Court to approach the matter as if the appellant had tendered the certificate of conviction (which would have established the commission of the offences against her and against RS), having regard to the assurances his Honour gave the appellant that the convictions were not in dispute. I consider that this question ought be answered in the affirmative, for the reasons that follow. Mr O’Neill, who appeared for the State, agreed.

18. [76]

    I understood Mr Andrews, who appeared for the estate, ultimately to concede that the certificate of conviction was otherwise admissible to establish the elements of the offences because an application for special leave to appeal to the High Court did not amount to the institution of an appeal. However, he submitted that this Court ought not proceed on that basis as, had the certificate of conviction been admitted, the estate “could have called evidence to rebut it”. He submitted further that it was not incumbent on the primary judge to inform the appellant that the certificate of conviction would be admissible as proof of the elements of the offences committed against her and RS (they being dealt with in the single certificate). He submitted that this would amount to giving judicial advice and was antithetical to the role of a trial judge when dealing with litigants, including litigants in person.

19. [77]

    In addition to his submissions relating to the construction of s 92 which have been referred to above, Mr Tierney submitted that the certificate of conviction was inadmissible as its probative value was substantially outweighed by the danger that it would be unfairly prejudicial to the respondents. On that basis, he submitted it would have been excluded under s 135(a) of the Evidence Act had it been tendered.

20. [78]

    Mr Tierney also submitted that the evidence of convictions in respect of RS would not be admissible for a tendency purpose pursuant to s 97 as they did not meet the requirement of “significant probative value” in s 97(1)(b). He submitted that, having regard to the difference in ages and gender between RS and MTH at the time of the sexual assaults, the link between the assaults against each was insufficient to result in the offences against RS having significant probative value in respect of the offences against MTH.

21. [79]

    Mr Tierney adopted Mr Andrews’ submission that the primary judge was not permitted to give legal advice to a litigant in person since this would compromise judicial impartiality and, accordingly, the appellant ought not obtain the benefit of having this Court deal with the matter as if the certificate of conviction had been tendered since it was not.

22. [80]

    Mr Tierney’s argument that s 135(a) of the Evidence Act could be used to reject a certificate of conviction is both novel and unconvincing. The certificate of conviction established that Mr Croft was convicted on 22 November 2019 of offences against MTH and RS, what those offences were and the aggregate sentence imposed on him of 22 years’ imprisonment to commence on 30 August 2019 and expiring on 29 August 2041 with a non-parole period of 10 years. It was common ground that he was convicted following a trial by jury. It is difficult to conceive of how a certificate of conviction could, at least in the circumstances of the present case, be regarded as unfairly prejudicial against the respondents or how its probative value could be other than high. Indeed, the ALRC specifically recommended that the Evidence Act enable offences to be proved by a certificate of conviction on the basis that a conviction had “high probative value” by reason of “the high standard of proof that must be satisfied before a finding of guilt can be made.”

23. [81]

    Section 97 of the Evidence Act relevantly provides:

24. [82]

    The question of significant probative value of evidence tendered for a tendency purpose is to be determined on the assumption that the tribunal of fact (the judge in the present case) will accept the evidence. In the present case, the test can be formulated thus: does the tendency evidence support the alleged tendency; and does the commission of offences against RS make it significantly more likely that Mr Croft sexually assaulted MTH: Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644 at [24]. The tendency alleged in the tendency notice is extracted above.

25. [83]

    In order for one piece of conduct to have significant probative value with respect to another, a sufficient link, or common feature, between the two distinct events must be shown. It is not necessary that the link be peculiar: The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [58]. A tendency to act in a particular way may have significant probative value although the acts alleged to evidence the tendency are dissimilar in some respects while sharing common features: see Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [37]. In the present case, a common feature of the offences against RS (in the context which RS’s evidence could have provided) and those against MTH (in the context provided by MTH’s other evidence) was that the assaults were sexual and committed against foster children under Mr Croft’s authority, control and care, in circumstances where he was purporting to discipline them. I regard the offences against RS as having significant probative value, because they tend to show that Mr Croft had a propensity to act and think in a particular way. Thus, I do not accept that the certificates of conviction in respect of offences against RS were inadmissible under s 97 of the Evidence Act. Although notice under s 97(2) of the tendency was given, the certificate of conviction was not included in the list of evidence relied on to establish the tendency in the notice. However, the Court could have dispensed with the notice requirements under s 100 of the Evidence Act.

26. [84]

    I note that MTH also relied on the convictions in respect of RS in support of her case against Mrs Croft on the basis that RS could be expected, had he been subpoenaed to give evidence at the trial, to give evidence that at least some of the associated acts (making RS and his brother run around inside the house naked) occurred in Mrs Croft’s presence. This matter could not be proved, in the absence of an admission by Mrs Croft (who denied that she had ever seen any such thing), other than if RS or PS had given evidence to that effect.

27. [85]

    Mr Andrews’ submission that, had the certificate of conviction been tendered, he could have conducted the estate’s case differently, cannot be accepted. Whether Mr Croft had sexually assaulted MTH was the most significant fact in issue in her case against the estate. Mr Andrews adduced and relied on such evidence as was available to counter the appellant’s evidence, including Mrs Croft’s evidence that Mr Croft, when confronted by the allegations, had denied them, evidence from Mr Croft’s solicitor in the criminal proceedings about Mr Croft’s denial of the allegations, and evidence from a long-term friend of the Crofts in the nature of character evidence. The estate also relied on the evidence Mrs Croft called from a witness, TH, who resided at an orphanage and regularly visited the Crofts’ property on weekends, including in 1979, when she was 15 years old, who gave evidence of her impression that MTH enjoyed being at the property and never made any complaint to her about the Crofts. Mr Andrews was unable specifically to identify any witness whom he would have called or document he would have tendered had a certificate of conviction been tendered by the appellant that would have added materially to the evidence called before the primary judge. I reject his submission that the estate’s case could have been conducted differently.

28. [86]

    In dealing with the denial of procedural fairness grounds above I have addressed the substance of the submission advanced for the estate and Mrs Croft that the primary judge was not permitted to give legal advice to a litigant in person since this would compromise judicial impartiality. For these reasons, I consider that this Court ought approach the question as if the certificate of conviction had been tendered by the appellant.

MTH’s challenge to the judgment in favour of the estate

1. [87]

   The estate in its written submissions (extracted above) accepted that if MTH established the offences, she was entitled to judgment against the estate. On the basis set out above, the certificate of conviction established the two rapes and three indecent assaults. The only evidence directly to the contrary was Mr Croft’s denials, which were insufficient to displace the certificate or MTH’s evidence, which was corroborated by the certificate. It is not necessary to address the other evidence which related to the time when MTH was at the Crofts since it was not suggested that there were any witnesses to the rapes and indecent assaults.

2. [88]

   Thus, the judgment in favour of the estate must be set aside and judgment be entered in favour of the appellant on her claim against the estate. The assessment of damages will be addressed later in these reasons.

3. [89]

   The reasons given above are sufficient to address ground 25.

The balance of the appeal

1. [90]

   The evidence of the convictions was not only sufficient to prove that the offences had been committed, but it also constituted significant corroboration of MTH’s evidence that the offending conduct had occurred. It was therefore also relevant to an assessment of her credibility. Thus, the failure to attribute probative value to the evidence of the convictions led to his Honour’s assessment of the oral evidence of witnesses being compromised.

2. [91]

   With one exception, counsel for each of the respondents ultimately submitted that, as the adverse view which the primary judge formed of the appellant’s credit arose from alleged inconsistencies rather than from her demeanour, it was open to this Court to assess the appellant’s credit for itself. Mr Tierney submitted that this Court ought not disturb the finding in Mrs Croft’s favour that the appellant had not told her that she had been sexually assaulted by Mr Croft.

3. [92]

   The question whether this process can be undertaken fairly pursuant to s 75A of the Supreme Court Act 1970 (NSW) or whether it is necessary to order a re-trial (a result which no party favoured), can only be determined by reference to the grounds of appeal to which I will now turn. It is convenient to address each in the context of the challenge to the judgments in favour of the State and Mrs Croft.

MTH’s challenge in this Court to the judgment in favour of the State

1. [93]

   As referred to above, MTH made various cases against the State which will be addressed in turn.

2. [94]

   At the relevant time (before the appellant turned 18), the Adoption of Children Act 1965 (NSW) (the Adoption Act) applied. As the appellant was made a ward of the State in 1967 and was placed with the Phelans that year, the question of her adoption arose only at that time. Prior to that time, the Adoption Act was relevantly amended by the Adoption of Children (Amendment) Act 1966 (NSW) (the 1966 amendment). From that time until August 1980 when the appellant turned 18 and ceased to become a ward of the State, the Adoption Act was relevantly amended by the Minors (Property and Contracts) Act 1970 (NSW) (the 1970 amendment); the Adoption of Children (Amendment) Act 1971 (NSW) (the 1971 amendment); and the Children (Equality of Status) Act 1976 (NSW) (the 1976 amendment). Although amendments to the Adoption Act were also made in 1980 by the Adoption of Children (Amendment) Act 1980 (NSW) (the 1980 amendment), the timing of the amendments could not have affected the duties owed by the State to the appellant as she turned 18 in August 1980.

3. [95]

   Section 17 of the Adoption Act, which was not amended, provided:

4. [96]

   Section 19(1) of the Adoption Act provided that an adoption order shall not be made otherwise than in favour of a husband and wife jointly. Section 19(2) provided an exception that a Court could make an adoption order in favour of one person if it is satisfied that “exceptional circumstances make it desirable so to do”. Section 19(2) was amended by the 1971 amendment to substitute the words “in the particular circumstances of the case it is” for the italicised words in the Act as passed.

5. [97]

   Section 26 of the Adoption Act prohibited the Court from making an order for the adoption of a child unless consent has been given by an appropriate person. In the case of an illegitimate child who has not previously been adopted, the consent of “every person who is the mother or guardian of the child” was required under s 26(3) of the Adoption Act unless the Court dispenses with the requirement for the mother’s or guardian’s consent under s 32(1) of the Adoption Act. The 1976 amendment removed the reference to “an illegitimate child” and substituted the words, “[i]n the case of a child … whose parents were not married to each other at the time of the child’s conception and have not subsequently married each other”. However, it did not otherwise change the substance of s 26(3).

6. [98]

   Section 26(6) of the Adoption Act provided that the section did not apply if the child had turned 21 before the adoption order was made. The 1970 amendment changed the relevant age to 18 years.

7. [99]

   By the time the appellant became a ward of the State, s 32(1) of the Adoption Act (which had already been amended by the 1966 amendment) relevantly provided:

8. [100]

   The 1980 amendment substituted s 32(1)(e) with the following:

9. [101]

   However, this amendment did not commence until 31 March 1987 and therefore cannot affect the duties owed by the State to the appellant as she turned 18 in August 1980.

10. [102]

    Section 33 of the Adoption Act provided, until 1970:

11. [103]

    The reference in s 33(1) to “twenty one years” was amended by the 1970 amendment to “eighteen years”.

12. [104]

    Section 26(3) was considered by Palmer J in Re S and the Adoption Act 2000 (NSW) (2006) 68 NSWLR 61; [2006] NSWSC 1062 at [17]. His Honour said at [17]:

13. [105]

    Before turning to the adoption case as put by the appellant, I propose to summarise the evidence drawn from contemporaneous records.

14. [106]

    On 30 November 1966, the Child Welfare Department prepared a home report on the Phelan’s application for a ward who was a girl from 2 to 4 years. The Phelans then lived in Armidale where they managed a motel. The report noted that both Mr and Mrs Phelan had been interviewed and that they had been married for 16 years without children and were both “anxious to have [a child] in their own care”. It was also noted in the section regarding the “estimation of both applicants” that they were “well educated people of considerable charm and excellent personal presence” and were “very highly regarded in the community for their personal worth.” Their application was verified by referees whose reaction was described by the Department as “very enthusiastic” and who “consider[ed] that any child placed with the [a]pplicants would be really fortunate”.

15. [107]

    On 29 March 1967, a report was prepared of an interview with the appellant’s birth mother, who reported that she, her husband and her children (including MTH) had been evicted and she could no longer care for the children.

16. [108]

    On 26 April 1967, MTH was committed to the care of the Minister at the Metropolitan Children’s Court as “neglected, [with] no fixed place of abode”. Her birth certificate described her as “illegitimate”. Her birth mother did not surrender her for adoption.

17. [109]

    On 10 May 1967, a “Ward Assessment Sheet” was completed, in which MTH was described as “speak[ing] well and coherently for her age” and as “an extremely affectionate little girl, very extroverted”.

18. [110]

    A further Departmental document, entitled “Ward Placement” and dated 16 May 1967, confirmed that MTH had been placed with Mrs Phelan, who lived at the Zebra Motel in Armidale. MTH was described as “an affectionate child seeking attention”.

19. [111]

    On 13 June 1968, a report was prepared by the Department regarding maintenance for MTH and her younger brother and sister. The officer noted that, when visiting MTH’s birth mother on 12 June 1968, MTH’s putative father returned to the house. However, MTH’s birth mother told the officer that the man could be MTH’s father but that her father could also be someone else.

20. [112]

    A periodic report on MTH was completed following a home visit on 11 November 1968. The report noted that the Phelans were “very keen to adopt if possible” and that MTH was “apparently very happy in the home environment”. A year later, on 5 November 1969, a similar observation was noted in a periodic report prepared following a home visit on that day. The author noted:

21. [113]

    A periodic report on MTH following a home visit on 6 October 1970 noted:

22. [114]

    In this report, MTH was described as “an appealing child”, “lively and friendly” and “affectionate [and] demonstrative”.

23. [115]

    A further Departmental file note of August 1971 recorded that MTH’s birth mother’s whereabouts had been unknown since 9 May 1968 and that the “PF [putative father] has signed birth registration”. The author of the file note recommended:

24. [116]

    The file note bears a handwritten endorsement, apparently from a more senior officer than its author, which said:

25. [117]

    This note reflects the requirement in s 26(3) of the Adoption Act that MTH’s mother consent to the adoption unless she could not be found or the Court dispensed with her consent.

26. [118]

    A file note bearing various dates between August and December 1971 noted that the result of the search (for MTH’s mother) would need to be submitted before the approval of preliminary adoption action could commence. The file note also recorded that Mr Phelan, MTH’s foster father, phoned and said that he was “anxious for adoption action to proceed as soon as possible”.

27. [119]

    A periodic report on MTH following a home visit on 9 December 1971 noted:

28. [120]

    A Departmental file note bearing dates of December 1971 and 6 January 1972 recorded:

29. [121]

    In about December 1971, Mr Phelan notified the Department and asked whether he and his wife would be permitted to take MTH with them to Queensland as they proposed to work in a motel there. The Phelans moved to Queensland and took MTH with them. The Queensland Department of Children’s Services visited Mrs Phelan and MTH at Main Beach, Queensland, on 2 October 1972 and reported back to the Department (in NSW). The letter reported in part:

30. [122]

    By June 1974, the Phelans had moved back to NSW and were living at a motel in Tenterfield. A Periodic Report on MTH following a home visit on 11 June 1974 reported that she was “making excellent progress” at school. The report noted:

31. [123]

    MTH turned 12 in August 1974. Accordingly, pursuant to s 33 of the Adoption Act, she became capable of providing consent for adoption (although her mother’s consent was still required unless the court dispensed with it). On 11 December 1974, a Departmental file note recorded that MTH was illegitimate, her mother had not surrendered her for adoption and her mother’s whereabouts had been unknown since 23 September 1968. The author noted that before adoption could be proceeded with, MTH would have to be interviewed (as she was then 12 years old) and her views ascertained. A request was made for a further report once MTH had been interviewed. Another copy of this file note bore a handwritten endorsement dated 4 April 1975 in which the word “adopt” is circled.

32. [124]

    In 1975, the appellant started high school at Tenterfield High School.

33. [125]

    A home visit was made to the Phelans on 4 March 1975. A report of the visit noted:

34. [126]

    A further Departmental file note dated 27 August 1975 (by which time MTH was 13 years old) noted that adoption action would be in the ward’s best interests. It concluded:

35. [127]

    The file note was endorsed by handwritten signatures, including that of a Senior Executive Officer, indicating approval to the proposed course of action.

36. [128]

    While the Phelans were still living in Tenterfield, they made a formal application for adoption (the date of which does not appear from the evidence).

37. [129]

    In 1976, Mr Phelan suffered a stroke. In May of that year, the appellant moved to a property near Tenterfield called Springbrook.

38. [130]

    On 27 September 1977, Mr Mewton, the Departmental District Officer for the area which included Tenterfield, visited the Phelans to complete his annual report on MTH. He was told that the couple had decided to separate as Mr Phelan, who had suffered a stroke, was planning to move away from Tenterfield (where the winters were cold) to the Gold Coast (where the climate was more temperate). MTH told Mr Mewton that she would like to keep living with Mrs Phelan at Tenterfield. On 12 October 1977, Mr Mewton returned to see the Phelans. By that time, the property was already on the market. He recorded that “the couple are still determined to separate”. He also noted that MTH understood the family situation and that “it would be heartbreaking to her if she had to be separated from Mrs Phelan”. The file note concluded:

39. [131]

    Mr Mewton’s subsequent file note dated 21 October 1977 confirmed that he had spoken with Peter O’Hehir of the Adoption Branch but that he had not discussed adoption at length with the Phelans “as the position with [MTH] has to be clarified”. The file note concluded:

40. [132]

    In a subsequent file note signed by Mr O’Hehir, he referred to the reports of Mr Mewton of 18 October and 20 October 1977 and said:

41. [133]

    Mr O’Hehir recorded, in a file note dated 15 November 1977:

42. [134]

    On 7 December 1977, Mr Mewton prepared an annual report on MTH, detailing the history of her placement with the Phelans, as well as a report on her health (good), natural family contact (none), recreation (loves horse riding, including at a competitive level). He also summarised the difficulties which had recently been experienced. Mr Mewton noted that Mr Phelan’s health difficulties had made him difficult to live with and that he had gone to the Gold Coast for a short holiday for a couple of weeks but that, on his return, he and Mrs Phelan had talked things over and decided that it was in MTH’s interests and their own that they stay together. When evaluating the placement, Mr Mewton said in his report:

43. [135]

    In January 1978, Mr McIlveen replaced Mr Mewton as the Departmental District Officer for the area which included Tenterfield, where the Phelans were living. He visited them regularly. His file note dated 28 April 1978 noted:

44. [136]

    On 23 October 1978, Mr Phelan wrote a letter to the Department (which was said to be from both Mr and Mrs Phelan) in which he recounted the history of their foster care of MTH and her worsening conduct (MTH was then 16 years and 2 months old). He continued:

45. [137]

    This letter bore a Departmental date stamp of 25 October 1978 and what appears to be a recommendation that Mr McIlveen make “early contact please”.

46. [138]

    A record of a home visit which Mr McIlveen made to the Phelans on 1 November 1978 noted the following:

47. [139]

    A further note was made by Mr McIlveen on 12 November 1978 which recorded that Mr Phelan had rung Mr McIlveen at home and told him that he wished MTH to be removed. Mr McIlveen noted that arrangements were made for MTH to be collected on 14 November 1978.

48. [140]

    On 14 November 1978, Mr McIlveen visited MTH’s school. He was told that MTH would have to satisfy the attendance regulations and remain in attendance at that school until 1 December 1978 in order for her to qualify for the School Certificate. He discussed alternative arrangements with the principal.

49. [141]

    On the same day, he made a home visit to the Phelans. His record noted the following:

50. [142]

    Mr McIlveen recorded making enquiries on 15 November 1978 at residential agricultural colleges where MTH could live but the cost was an obstacle, as was the requirement that students provide their own horse. He also recorded that Mr Phelan had called him again on 26 November 1978 and asked that MTH be removed. He noted that arrangements were made for MTH to be removed on 27 or 28 November 1978.

51. [143]

    When Mr McIlveen visited the Phelans on 30 November 1978, he found that there had been something of a reconciliation between Mr Phelan and MTH. However he noted that Mr Phelan wanted to use the threat that MTH would be removed from their home as a way of getting MTH to conform to the standards of behaviour which he expected of her and that MTH resented these threats.

52. [144]

    Later that day, Mr McIlveen contacted the foster parents of MTH’s younger brother, who said that they could have MTH to stay for the holiday period. Mr McIlveen noted:

53. [145]

    The appellant’s birth mother died on 9 December 1978. Neither the Department nor MTH became aware of her death until the following year (see below).

54. [146]

    The appellant was removed from the care of the Phelans in February 1979. Mr McIlveen’s annual report on MTH dated 20 March 1979 noted:

55. [147]

    Mr McIlveen also noted that MTH had completed her School Certificate at Tenterfield High School and “received above average marks and excellent school reports from the school staff”. She was enrolled in an accounting course at Armidale Technical College, although the original intention was that she gain work experience in handling horses while at the Crofts. Under the heading, “Dynamics of Placement”, Mr McIlveen documented the breakdown of MTH’s placement with the Phelans in the following terms:

56. [148]

    The appellant’s evidence was, inevitably, subjective. She submitted that the Phelans had always wanted to adopt her and had never, in fact, separated. She submitted that the State’s deferral of an adoption application was, in all the circumstances, negligent and that she had suffered substantial loss as a consequence.

57. [149]

    The appellant submitted that the State had a duty to progress her adoption with more expedition than it did and that, had it done so, she would have been adopted by the Phelans before their marital discord had arisen. She submitted that, in those circumstances, she would have been able to remain at least with Mrs Phelan and would not have suffered the trauma and distress of losing the only parents she had ever known or could recall and would not have been placed with the Crofts, in whose “care” she suffered the major trauma of the sexual assaults perpetrated on her by Mr Croft.

58. [150]

    The State denied that it had breached any duty which it owed to the appellant with respect to her adoption case. Further, it argued that any decision which the State made with respect to adoption was made in the exercise of a special statutory power conferred upon it, with the result that s 43A(3) of the Civil Liability Act 2002 (NSW) applies. In addition, the State submitted that s 6A of the Limitation Act 1969 (NSW), which extends time indefinitely for child abuse matters where there is a sexual element (its terms are set out below when the placement case is addressed), does not apply to the adoption case. Even if MTH had established the adoption case, the State relied on the limitation period under s 50C of the Limitation Act, which was effective to extinguish MTH’s claim for damages 30 years after the cause of action arose. As the 30 year period has expired since MTH was under the care and control of the State as its ward, any claim which she might have had against the State has been extinguished.

59. [151]

    Had the State applied for MTH to be adopted by Mr and Mrs Phelan, the Adoption Act authorised the Court to make an order for adoption, notwithstanding MTH’s birth mother’s opposition if it appeared to the Court that any one of the matters in s 32(1) of the Adoption Act referred to above was made out. It would appear from the evidence that it was at least arguable that MTH’s birth mother was unfit to discharge the obligations of MTH’s parent, having abandoned MTH (by giving her up to the State because she could not care for her) (s 32(1)(c)); by failing to make suitable arrangements for MTH (unless it could be said that by giving her up to the State she made suitable arrangements) (s 32(1)(d)); or because by dispensing with the consent so that an order for the adoption of the child may be made, the interests and welfare of MTH will be promoted (s 32(1)(e)).

60. [152]

    However, the authorities on adoption in the 1950’s, 1960’s and 1970’s reveal a reticence on the part of judges to make an adoption order contrary to the wishes of the mother because of the gravity of the consequences of the order. For example in Mace v Murray (1955) 92 CLR 370; [1955] HCA 2, the High Court (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ) considered at 380-381 the “drastic effect of an adoption order” which deemed the child to be the child of the adopting parent as well as having the following effects:

61. [153]

    The Court continued at 385:

62. [154]

    Decisions of this Court have emphasised the gravity of the step of making an adoption order. In Re B & the Adoption of Children Act 1965 [1979] 2 NSWLR 915, Reynolds JA, with whom Hutley JA agreed, said:

63. [155]

    The relevance of whether an adoption order was necessary was also addressed in Re an Infant, K [1973] 1 NSWLR 311. Hutley JA said at 351:

64. [156]

    The effect of the Adoption Act is that it was open to the State to apply for an adoption order in respect of MTH in favour of the Phelans at any time after the Phelans expressed a wish to adopt MTH. While the State was obliged to seek the consent of MTH’s birth mother, it could still have applied without that consent, since the Court had power under s 32(1)(e) to dispense with the mother’s consent. Further, when it became clear that the Phelans were not of one mind about MTH continuing to live with them, it was open to the State to seek an adoption order in favour of Mrs Phelan alone. This is because the requirement that the adopted parents be a couple was also susceptible to dispensation, as outlined in the Adoption Act.

65. [157]

    The duty of care owed by a guardian to a ward is non-delegable: Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407 at [49]-[50] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ); see also Bennett v Minister of Community Welfare (1992) 176 CLR 408; [1992] HCA 27 for a discussion of the duties owed by a guardian to a ward. The duty therefore requires not merely the taking of reasonable care but also ensuring that reasonable care is taken: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); [1994] HCA 13. However, s 43A of the Civil Liability Act applies because the State is a public authority and the powers it exercised with respect to MTH were special statutory powers.

66. [158]

    Section 43A(3) of the Civil Liability Act relevantly provides that for the purpose of proceedings for civil liability (such as the claim brought by the appellant against the State in the Supreme Court) “any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.”

67. [159]

    Section 43A of the Civil Liability Act was inserted into the Act by the Civil Liability Amendment Act 2003 (NSW). Clause 15(1) of Sch 1, Part 4 of that Act provided that Part 5 (which included s 43A) applies in relation to civil liability whether arising before or after 13 November 2003. Thus, the State can rely on s 43A in these proceedings in respect of its conduct from the 1960’s onwards.

68. [160]

    While s 43A must be pleaded as a defence (to indicate that it is being relied upon), it is not a defence. In Transport for NSW v Hunt Leather Pty Ltd; Hunt Leather Pty Ltd v Transport for NSW (2024) 115 NSWLR 489; [2024] NSWCA 227 at [175], this Court said, citing Basten JA (Macfarlan and Brereton JJA agreeing) in Della Franca v Lorenzato; Burwood Council v Lorenzato [2021] NSWCA 321; (2021) 250 LGERA 136 at [8], [107], [147] that “… s 43A(1) imposes an altered standard of care, attenuating the standard of care required to be proved when establishing the ‘civil liability in tort’ to which s 40(1) refers”. This Court also said in Hunt Leather at [179]:

69. [161]

    The hypothesis posited by MTH was that it was negligent of the State not to apply for an adoption order from the Court because, had such an adoption order been made, the psychological harm she suffered as a consequence of being separated from the Phelans and the physical and psychological harm she suffered as a result of the sexual assaults by Mr Croft would have been avoided. While in these circumstances the consequences of counterfactuals are not easily proved, it may be accepted that had the Phelans adopted MTH before she became adolescent and before Mr Phelan became ill, it is unlikely that when these events or stages ensued she would have been sent away from them, or at least from Mrs Phelan. However, it does not follow from the fact that if a different course of action had been taken harm might or would have been avoided, that it was negligent not to take that course. Nor does it establish that it was so unreasonable for the State to defer the application for an adoption order that no reasonable public authority in its position could have considered deferral to be a reasonable exercise of its power.

70. [162]

    In the present case, the appellant’s birth mother withheld her consent at all material times. She died on 9 December 1978 at which time her attitude to adoption became immaterial. The Phelans were keen to adopt the appellant from at least November 1968, when the appellant was six years old, until about late 1977, when she was 15 years old when their preparedness to adopt her changed following conflict between the appellant and Mr Phelan and Mr Phelan suffering a stroke. During that period of nine years, the State had no reason to believe either that the appellant was not happy and well settled at the Phelans (indeed, all the evidence from both sides was that she was) or that the appellant’s birth mother would seek to upset the foster care arrangements with the Phelans. While the Phelans were keen to adopt the appellant, the fact that she was a foster child rather than their natural child appears to have had little or no effect on the appellant for this period since she used their surname, called them “Mum and Dad”, lived wherever they lived and had her emotional and material needs met by them.

71. [163]

    In these circumstances, it was not unreasonable for the State to consider that an adoption order was not necessary (for the reasons adverted to in Re K (an infant). Further, the State may have also considered that a contested adoption request (in spite of the appellant’s birth mother’s wishes) may upset the situation and bring about some intervention by the appellant’s birth mother, who appears to have been otherwise content to have others look after her children but who, whenever asked, withheld her consent to MTH being adopted. By the time the appellant’s birth mother had died, the situation with the Phelans had deteriorated to such an extent that Mr McIlveen had to plead with Mr Phelan to allow MTH to remain with them until December 1978 so that she could qualify for her School Certificate.

72. [164]

    The State is entitled to succeed as MTH has not established that the State’s exercise or failure to exercise its statutory powers under the Adoption Act was unreasonable in the sense stated by s 43A(3) of the Civil Liability Act.

73. [165]

    The State relied on the time bar pursuant to s 50C of the Limitation Act in respect of her adoption case. This defence would have been effective to extinguish the State’s liability to her, had any such liability been established.

74. [166]

    The appellant has failed to make out any of her grounds relating to her adoption case, including grounds 23 and 24.

75. [167]

    The appellant argued at trial and on appeal that the State was negligent for placing her with the Crofts and also for failing to care for her and monitor her movements after she left the Crofts (in early 1980) until she turned 18 in August 1980.

76. [168]

    The State, in its written submissions to the primary judge, identified the special statutory powers which arose for consideration in MTH’s placement case, being its powers to “board out” its wards (ss 10 and 23 of the Child Welfare Act 1939 (NSW)).

77. [169]

    The annual report dated 20 March 1979 (referred to above) also addressed the placement with the Crofts which is the subject of a separate claim against the State:

78. [170]

    In his evaluation of the placement with the Crofts, Mr McIlveen said:

79. [171]

    On 13 July 1979, Mr Phelan wrote to Mr McIlveen, inviting him to call in when he was next in the area. Mr McIlveen responded on 3 August 1979 to say that he no longer covered the Tenterfield area but would be happy to speak with him on the phone and answer any questions about MTH. Mr McIlveen invited him to call the office reverse charges.

80. [172]

    On 18 July 1979, the Department of Community Welfare Services, Victoria wrote to the Department to inform it that the appellant’s birth mother died on 9 December 1978. This appears to have been communicated to the Adoptions Branch on 24 July 1979. Mr McIlveen noted that he told MTH on 2 August 1979. MTH denied that she was ever informed of her mother’s death. I accept the file note made by Mr McIlveen that he told her.

81. [173]

    On 14 August 1979, Mr Phelan wrote to Mr McIlveen thanking him for his letter of 3 August 1979. He mentioned MTH’s “expected youthful romanticisms of vocations” and expressed his hope that Mr Phelan would be able to “[set] her up in her own business rather than have her face demoralising unemployment … assuming she has a liking for the undertaking”. He concluded:

82. [174]

    On 12 September 1979, Mr McIlveen made enquiries of Orange Agricultural College to see if MTH could enrol in a horse management course. On 26 September 1979, he also provided a reference for MTH to the college.

83. [175]

    At some time in late 1979 or early 1980, Mrs Croft’s second child was born. A Departmental report of 13 May 1980 noted that the Crofts were no longer able to have a foster child.

84. [176]

    MTH continued to communicate with the Phelans by letter. In a letter dated 1 May 1980 (which did not indicate her then address) she told them that she was living with a woman and her four children in a refuge house in Bathurst and going out four nights a week to clubs and discos.

85. [177]

    Mr Phelan wrote to the Department’s Bathurst office, expressing concern about the contents of MTH’s letter. He noted that, as she would soon turn 18 in August 1980, she would pass from the Department’s care. He sought the Department’s assistance in ascertaining MTH’s whereabouts and asked the recipient of the letter to “intercede for [the Phelans] in trying to get her to come home”.

86. [178]

    Mr Sutton, an officer of the Department in Bathurst, noted the correspondence and reported on contact with MTH and said:

87. [179]

    A handwritten endorsement on this report noted that in August 1980 (on MTH’s birthday) she was “discharged” (as a ward).

88. [180]

    Thomas McIlveen died in January 1993 at the age of 56 years. Warren Mewton died in February 2023 at the age of 83 years. Accordingly, neither was available to give evidence in the Court below.

89. [181]

    While the appellant was the subject of the placement she was, understandably, not privy to the checks which the Department made of the Crofts or, necessarily, the reasons for her placement with the Crofts. In these circumstances, her evidence does not materially affect her placement case against the State and therefore need not be summarised.

90. [182]

    The appellant gave evidence that, after the sexual assaults committed on her by Mr Croft, she felt that she could not see the Phelans or communicate with them. She said that she left the Crofts in early 1980 and that the State did not monitor her after that time.

91. [183]

    Her evidence was that after she left the Crofts, she moved to a farm in Moree. She then moved to Sydney where she stayed with her sister for a couple of months. While there, she worked as a strapper at the Hawkesbury Racecourse for less than a month. She then moved to Bathurst where she worked at a horse stud for a couple of months. She then moved to a Women’s Refuge in Bathurst. It would appear from the Departmental records that she presented at the FACS office in Bathurst at about the time she moved there, which is how Mr Sutton was able to pass on Mr Phelan’s concern about her welfare. She found a room in Bathurst before moving to Rockhampton where she worked casually as a meat worker. By this time she had turned 18 and was no longer a ward of the State.

92. [184]

    As appears from the contemporaneous documents summarised above, the State decided to place MTH with the Crofts because of the relative proximity between Uralla (where the Crofts lived) and Tenterfield (where the Phelans lived). Mr McIlveen hoped that the rift between MTH and the Phelans was temporary and that they would be reconciled in due course. He adjudged the prospect of such a reconciliation to be higher if MTH was placed sufficiently close to them to enable visits to occur rather than in Sydney. He was also aware of the appellant’s love of horses and considered, in so far as his file notes record, that the Crofts would be suitable because of the rural location and their apparent credentials.

93. [185]

    It was not suggested that the State was aware at any time until the prosecution of Mr Croft for offences against MTH and RS that Mr Croft was violent or sexually abusive. The investigations and enquiries which the Department performed in relation to the Crofts (which are summarised above) did not reveal any risk of harm in the placement. Indeed, the features of the placement referred to above appeared likely to be in the interests of MTH.

94. [186]

    The Departmental records summarised above indicate that Mr McIlveen visited MTH at the Crofts several times during her placement there. There is no suggestion in any of those documents that the placement was adverse to MTH’s welfare. Further, the appellant did not suggest at any time when she was being questioned by Mr McIlveen that she had disclosed the sexual assaults committed against her by Mr Croft to him. Mr McIlveen’s understanding was that when Mrs Croft gave birth to her second child, the Crofts no longer wanted a foster child or children. When MTH moved to Bathurst, Mr Sutton had contact with her through the FACS office at Bathurst.

95. [187]

    The appellant has failed to establish that the State’s exercise of its special statutory powers under the Child Welfare Act with respect to the placement of MTH were, within the meaning of s 43A(3) of the Civil Liability Act, so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

96. [188]

    The appellant has failed to establish any of her grounds of appeal relating to the placement case, including ground 25.

97. [189]

    As is evident from the narrative above, MTH’s natural siblings were also wards of the State. Accordingly, the State was aware of their whereabouts. Mr McIlveen contacted the foster parents of MTH’s brother who lived at Gum Flat (west of Armidale) and were prepared to have the appellant stay for the holidays after she finished school in December 1978.

98. [190]

    The appellant was also critical of the State for not informing her of her mother’s death (an allegation not made out) or helping her to visit her mother’s grave. She described herself in submissions in the Court below as “mov[ing] into adulthood, abused, demoralised [and] homeless”.

99. [191]

    The appellant’s principal case against the State was that it ought to have arranged for her to be adopted by the Phelans earlier, rather than that the State ought to have arranged for a foster family who could accept her and her siblings. It would appear from the contemporaneous evidence that FACS and the Phelans were endeavouring to foster an environment whereby the appellant would feel that she was the Phelans’ child, as it appeared she did. In these circumstances, it was not unreasonable (within the meaning of s 43A of the Civil Liability Act) for the State to choose not to exercise its special statutory powers to foster closer relationships between the appellant and her siblings, which would inevitably have led to the realisation that she was not the Phelans’ natural child. When the appellant was older, FACS divulged her true situation to the appellant and, as referred to above, made enquiries of the foster parents of her brother.

100. [192]

     For these reasons, the family union case has not been made out.

101. [193]

     The appellant also pleaded that the State was vicariously liable for the acts of Mr Mewton and Mr McIlveen. However, as the primary judge correctly found, she did not allege any acts by them which could establish liability. Accordingly, it is not necessary to address this matter further.

102. [194]

     The appellant alleged that the State was vicariously liable for the wrongful acts of Mr Croft. Vicarious liability is a form of strict liability because it results in a defendant, who is not at fault, being held liable for the wrongs of another: Bird v DP [2024] HCA 41; (2024) 98 ALJR 1349 (Bird) at [44] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ). Vicarious liability arises where there is an employment relationship and the employer is held liable for the wrongs of its employee committed within the scope of that employment: Bird at [46]. On no view was Mr Croft ever employed by the State. While the State placed MTH with the Crofts and therefore authorised them to be her foster parents for the period of the placement, this did not create an employment relationship. Accordingly, the State is not liable for the wrongs of Mr Croft on the basis of vicarious liability.

103. [195]

     For the reasons given above, the appellant’s challenge to the judgment in favour of the State fails.

MTH’s challenge to the judgment in favour of Mrs Croft

1. [196]

   The appellant’s case against Mrs Croft was, in substance, that Mrs Croft, having seen Mr Croft make RS and PS run around the house naked as punishment, ought to have protected the appellant from Mr Croft. In the alternative, the appellant submitted that, when she told Mrs Croft that Mr Croft had sexually assaulted her, Mrs Croft ought to have helped her.

2. [197]

   In order to prove the first aspect of her case against Mrs Croft, the appellant needed to prove that Mrs Croft was aware that Mr Croft had acted in such a way with respect to RS and PS as to make him unsuitable to be a foster carer of MTH. The appellant was reliant on RS and PS for this evidence. She had mistakenly believed that she could tender RS and PS’s police statements and the transcripts of their evidence in the prosecution of Mr Croft without actually calling them to give evidence (her previous solicitors had included them in the Court book but objection was taken to them). As far as the appellant knew, RS and PS had settled their civil claims and were reluctant to come and give evidence.

3. [198]

   On 22 July 2024, the first day of the trial, the primary judge explained to the appellant that RS’s witness statements could not be tendered in evidence unless he was called to give evidence. This resulted in the appellant asking for “the opportunity to subpoena the victim [RS]”. The primary judge confirmed that he would “deal with that later”. Subsequently, the appellant reiterated her request for a subpoena to be issued to RS. She told the primary judge that she thought that RS lived in Queensland and that she would prefer for him to give evidence via Audio-Visual Link (AVL). Mr Andrews identified RS’s lawyers (who had acted for him in his civil claim for damages against the State, the estate and Mrs Croft which had been resolved). The primary judge told the appellant that he would be prepared to issue a subpoena if RS could be found and that he would allow RS to give evidence by AVL. His Honour confirmed that no party objected to late service of the subpoena to RS.

4. [199]

   On 23 July 2024, the second day of the trial, the appellant reported to the primary judge that she had contacted RS’s solicitor who was going to get back to her. Later that day, the appellant informed the primary judge that she had been told by RS’s solicitors that he would not give evidence voluntarily. The primary judge suggested that she ask RS’s solicitors whether they would accept service of a subpoena on RS’s behalf. His Honour confirmed that he would not issue a subpoena without an address for service.

5. [200]

   On 24 July 2024, the third day of the trial, the appellant told the primary judge that she was still working on getting either RS or PS to come to give evidence. The primary judge informed the appellant that, unless she could call RS, she would not be able to prove that Mr Croft abused RS. On 26 July 2024, the fifth day of the trial, the appellant told the primary judge that RS would be giving evidence the following week.

6. [201]

   The matter was revisited on 29 July 2024, the sixth day of the trial. The appellant told the primary judge that she had an email address for RS but that RS did not want to give evidence because he was subject to a confidentiality agreement as part of his settlement of his own claim. Mr O’Neill confirmed that the State would not allege that, by giving evidence in the proceedings, RS would be in breach of his confidentiality undertaking in the terms of settlement which resolved RS’s claims. Mr Andrews and Mr Tierney both indicated that they would challenge RS’s evidence if he was called to give evidence but that their clients would not allege against RS that he was, by giving evidence, in breach of the confidentiality clause in the settlement agreement which resolved RS’s civil claims against them. The primary judge asked the appellant if she could arrange for RS to give evidence on Wednesday (31 July 2024). The appellant informed the primary judge that she had sent an email through to RS but that she did not have access to her emails on the device she had in court because it was an old device and therefore did not know whether he had responded.

7. [202]

   At this point, Mr O’Neill (to fulfil the State’s role as model litigant) submitted that RS’s statement might be admissible under s 64 of the Evidence Act on the ground that it would lead to undue expense and delay for the witness to be required to be called. The primary judge rejected that suggestion on the basis that there was “a substantial issue on cause and effect in this case”. The primary judge confirmed that the appellant needed to arrange for RS to give evidence by AVL on “Wednesday” (31 July 2024). The plaintiff asked the primary judge whether he would be prepared to issue a subpoena to RS. His Honour responded that he would not do so (apparently on the basis that he could not be satisfied that RS’s solicitors had instructions to accept service on behalf of RS; RS had not responded to the email; no address for him was known; and there was such “late notice”).

8. [203]

   On 31 July 2024, the seventh day of the trial, the appellant told the primary judge that “the other victim [RS] is actually not giving evidence” and that RS had “abused” her (verbally) when she contacted him about giving evidence. The primary judge then clarified with the appellant what her case against Mrs Croft was. At that point, Mrs Croft was recalled so that the appellant could put her case to her. Mrs Croft denied that she was aware of any abuse perpetrated by her husband against RS, PS or MTH. Mrs Croft said that there was “no risk whatsoever” in leaving the appellant with her husband. Mr O’Neill cross-examined Mrs Croft by reference to RS’s statements about what RS said that Mrs Croft had seen which she denied.

9. [204]

   Because the appellant could not call RS or PS to give evidence in the trial, she could not establish that Mrs Croft had witnessed Mr Croft abusing the children when they were in the couple’s foster care. As Mrs Croft denied what was put to her in that regard by the appellant and by Mr O’Neill, there was no evidence on which to establish Mrs Croft’s liability for that aspect of the case.

10. [205]

    As I understood the appellant’s submissions on appeal, she submitted that the primary judge ought to have assisted her to subpoena RS and ought not to have refused to subpoena him on 31 July 2024 on the grounds of “late notice” when it had been a live issue in the trial since the first day of the hearing and RS and PS’s statements had also been included in the court book.

11. [206]

    A review of the trial transcript reveals that the primary judge endeavoured to assist the appellant as to how she could obtain sufficient details to obtain a subpoena to be issued to RS, such as by asking RS’s solicitors whether they had instructions to accept service and by finding out where RS was so that he could be served with a subpoena. It is also apparent from a review of the transcript that the appellant did not appear to appreciate the gravamen of what the primary judge was saying although she hoped that she would be able to persuade RS to give evidence. The authorities regarding the assistance which a judge can, and should, give to a litigant in person have been addressed above. Given the adversarial nature of the system and the need for the judge to retain impartiality, I do not consider that it was incumbent on the primary judge to do more to assist the appellant in getting RS to give evidence than his Honour did.

12. [207]

    Accordingly, the appellant has failed to establish this aspect of her case against Mrs Croft. Grounds 5, 6, 27 and 29 have not been made out.

13. [208]

    There was a factual dispute in the trial between the appellant and Mrs Croft regarding whether the appellant ever told Mrs Croft that she had been sexually assaulted by Mr Croft.

14. [209]

    At its highest, the appellant’s evidence was that she had hidden a bloodied sanitary napkin in the wardrobe in her bedroom at the Croft residence following a sexual assault by Mr Croft which had resulted in her bleeding. Mrs Croft found the sanitary napkin and chastised her for poor hygiene, at which point the appellant told her that she had put it there after having been sexually assaulted by Mr Croft. The appellant’s evidence was that, at that point, she was told to leave the Croft residence. The appellant’s recollection of the conversation was that it occurred in late 1979 or early 1980.

15. [210]

    Mrs Croft recalled a conversation with the appellant about a sanitary napkin but she said that it had happened relatively early in 1979, shortly after the appellant had started studying at the technical college. She denied that the appellant had told her anything about being sexually assaulted by Mr Croft. Her evidence was that the first time she heard any suggestion that her husband had sexually assaulted MTH was when Constable Hall rang her and told her that MTH had alleged that Mr Croft had sexually assaulted her. Mrs Croft then raised the matter with Mr Croft who vehemently denied it.

16. [211]

    For the reasons given above, the trial judge’s assessment of the appellant’s credibility was flawed (which occupied a substantial part of the judgment from [84]-[282]). Therefore, his Honour’s preference for Mrs Croft’s version cannot be given the weight which would ordinarily be given to evidence which may reflect the advantage enjoyed by the primary judge of seeing and hearing the witnesses: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. In these circumstances, if the appellant’s evidence, accepted at its highest, was capable of establishing liability in tort against Mrs Croft, it may be necessary to order a re-trial of this aspect of the appellant’s case against Mrs Croft. However, in my view, the appellant’s evidence is not capable of establishing that Mrs Croft is liable.

17. [212]

    First, the appellant did not give any evidence that Mrs Croft saw Mr Croft assaulting her, whether sexually or otherwise. Indeed her evidence was that Mr Croft waited until Mrs Croft had left the house before assaulting her, physically and sexually. Second, according to the appellant, she left the Croft residence soon after disclosing the abuse to Mrs Croft. At that time, all Mrs Croft knew (if the appellant’s evidence were to be accepted) was that a foster child under their care had alleged that Mr Croft had sexually assaulted her.

18. [213]

    I do not consider that any duty of care which Mrs Croft owed to the appellant required her to do anything about an allegation of that nature in circumstances where the appellant, shortly after the allegation was said to have been made, was no longer in the care of the Crofts.

19. [214]

    For these reasons, I am not persuaded that the grounds of appeal (including ground 22) associated with the judgment in favour of Mrs Croft have been established. I consider that the appeal against this judgment ought be dismissed.

Other alleged procedural fairness and evidence grounds

1. [215]

   As referred to above, the appellant challenged several of the primary judge’s rulings on the ground of procedural fairness.

2. [216]

   In ground 2, the appellant challenged the primary judge’s admission of Dr Khoo’s report dated 20 April 2016 notwithstanding that she was unable to give evidence at the hearing on the grounds of mental incapacity. In a separate judgment, his Honour allowed the report, over the appellant’s objection but indicated that his Honour would have regard to the fact that Dr Khoo could not be cross-examined when assessing the weight of her report. The appellant has not made out any error in the primary judge’s ruling. This ground has not been made out.

3. [217]

   In grounds 8 and 9, the appellant seeks to challenge what she alleged was the primary judge’s ruling that she was not permitted to call Natalie Wallace, her counsellor at Care Leavers of Australasia Network (CLAN), to give evidence. The appellant’s application to call Ms Wallace was made on 1 August 2024 after the primary judge had admitted the report of Ms Wallace dated 15 March 2015 into evidence (in which Ms Wallace noted that in the first session in 2011, the appellant disclosed to Ms Wallace that she had been sexually abused). The primary judge took a short adjournment to enable MTH to contact Ms Wallace to ascertain whether she could give evidence by AVL that day. At that point, MTH renewed her application to rely on the transcript of the criminal trial, which was refused by the primary judge. When the primary judge offered to take another short adjournment to permit MTH to ascertain whether Ms Wallace was available to give evidence that day, MTH responded, “Don’t bother”. MTH did not reagitate her application to call Ms Wallace as a witness. For these reasons, grounds 8 and 9 have not been made out.

4. [218]

   The appellant alleged in ground 10 that the primary judge had not viewed or correctly interpreted the documents from her file as a ward of FACS. It cannot be inferred that the primary judge did not carefully review the adoption records of FACS. His Honour was entitled to summarise the evidence rather than set it out in full. Ground 10 has not been made out. The appellant was also critical of the State for its conduct with respect to documents in the ward file in ground 19. This ground has not been made out.

5. [219]

   The appellant alleged in ground 21 that the primary judge formed an adverse view of her for making a claim against the estate of the late Mrs Phelan. Even if this ground were made out, it has not affected this Court’s assessment of the appellant’s credibility on the rehearing. In any event, ground 21 has not been made out. Although the primary judge referred to the appellant making the claim, the reasons do not indicate that his Honour relied upon it to form an adverse view of her, as the appellant alleged.

Assessment of damages for the intentional torts committed by Mr Croft against the appellant

1. [220]

   As referred to above, Mr Andrews’ primary submission was that this Court ought not alter the primary judge’s assessment of damages as his Honour accepted, for the purposes of assessing damages, that the assaults had occurred and assessed damages on that basis. In the alternative, he submitted that this Court could review the assessment of general damages but ought not make any award for loss of earning capacity. I reject these submissions. Although the primary judge purported to assess damages on the basis that the appellant had established that Mr Croft was liable, his Honour’s assessment of damages was, nonetheless, affected by the adverse view which he had formed of the appellant’s credibility (which was, in turn, affected by his erroneous view of the effect of the Evidence Act).

2. [221]

   I consider there to be another significant error in the primary judge’s assessment of damages which arose from the submission made by Mr Andrews on behalf of the estate in the Court below. In the Court below, Mr Andrews submitted that, if the sexual assaults were established, an appropriate range for general damages would be $175,000 – $200,000. He submitted that these figures (and not greater figures) were appropriate because there was a gap of 33 years from 1979 to 2011 during which the appellant was not suffering because she had, on her own evidence, suppressed her memory of the assaults. He also submitted that there ought be no allowance for interest in that period.

3. [222]

   The primary judge largely accepted this submission and found at [368]:

4. [223]

   The primary judge also found at [391]:

5. [224]

   Somewhat inconsistently, the primary judge does not appear to have deprived the appellant of interest on general damages for the whole period of the past.

6. [225]

   The genesis of Mr Andrews’ submission and his Honour’s finding was the appellant’s evidence that when she was disciplined at work in either 2008 or 2011 (there was differing evidence about the date), she had an extreme reaction, which she said resulted in her having suppressed the memory of the sexual assaults by Mr Croft. Her evidence was that those memories later resurfaced from her subconscious when she was being counselled by Natalie Wallace, at which time she felt substantial trauma associated with them. The appellant’s evidence included the following:

7. [226]

   The appellant’s evidence that she “locked away” the memory of the abuse is, plainly, a lay opinion which indicates her own subjective assessment of why and how she was able to function between 1979, when the assaults occurred, and 2008, or 2011 when she revealed that they had occurred to the counsellor whom she saw following the work incident. The counsellor adjudged that her reaction was so extreme as to give rise to the suggestion that she had previously suffered a deeply traumatic event.

8. [227]

   Delay in complaint is typical of those who have suffered sexual abuse as minors. The delay in reporting of some thirty years is not uncommon. Mr Andrews accepted that there was no expert evidence which supported the primary judge’s reasoning that the appellant’s explanation (lay, as it inevitably was) justified the finding that she was not suffering at all in the period of over thirty years since she was sexually assaulted. He also accepted that it would be wrong to regard the appellant as not having experienced any pain and suffering in the period from 1979 until 2008 or 2011. Although Mr Andrews conceded that the appellant must have suffered some pain and experienced some suffering during that period, he submitted that it was “almost nothing”.

9. [228]

   The primary judge’s decision not to make any allowance for pain and suffering for the period of over thirty years following the rapes and sexual assaults is wholly at odds with what is known by courts, including those who sentence offenders for child sex offences. For example, in R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court (Leeming JA, Johnson and Hall JJ) stated at [110]:

10. [229]

    In these circumstances, I consider that ground 33 has been made out. For the reasons given above, I consider that this Court is required to assess the damages afresh since his Honour’s assessment was affected by error. Ground 12 has been made out.

11. [230]

    As far as compensatory damages are concerned, the appellant is entitled, so far as money can do it, to be put in the position she would have been in had she not been raped and indecently assaulted by Mr Croft. This is the measure of damages in tort: Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191 (Taylor and Owen JJ); [1966] HCA 38.

12. [231]

    It was sufficient for the appellant to establish that her injuries were “caused or materially contributed to” by Mr Croft’s assaults: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 514; [1991] HCA 12. Further, if she has made out a prima facie case that her incapacity has resulted from Mr Croft’s tortious conduct, the onus of adducing evidence that her incapacity arises from a pre-existing capacity or would have resulted from that incapacity rests on Mr Croft: Purkess v Crittenden (1965) 114 CLR 164 at 168; [1965] HCA 34.

13. [232]

    McHugh JA said in Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 at 536-537:

14. [233]

    When the appellant came into the Crofts’ care she was a vulnerable 16-year old who was devastated by having been taken away from the Phelans. Her life, emotional attachments and education were disrupted by the move. She had neither sexual experience nor sexual education and she had no one to whom she felt she could go for assistance.

15. [234]

    The assaults committed by Mr Croft took place at some time in 1979 after February when the appellant moved to his property as a foster child. At that time, she was 16 years old. Until not long before the move, she had been living in a happy family situation with the Phelans and, despite the various moves they had made as a consequence of their occupation running motels, she had enjoyed a very stable family life with them, attended school consistently and had achieved her School Certificate at the end of 1978. MTH was noted to have a happy disposition and be a good student. While there was considerable conflict between her and Mr Phelan arising from his illness and incapacity to deal with her adolescent behaviour, she nonetheless regarded the Phelans as her parents, called them “Mum and Dad” and adopted their surname as her own, as she had done since she was four years old. She was understandably deeply distressed at having to be separated from them.

16. [235]

    She was fond of horses and experienced in riding them. Although the Crofts expected that she would work with the horses on the farm, MTH wanted to get a qualification in accounting from the local technical college. One of the reasons for the placement with the Crofts was that she was relatively proximate to the Phelans and Mr McIlveen wanted to continue to foster the long-term relationship between MTH and the Phelans, who were the only family which she could remember and with whom she had developed strong bonds.

17. [236]

    The appellant’s evidence, which was not challenged, was that, prior to the assaults by Mr Croft, she was a virgin and had neither sexual experience nor sex education. Her evidence of the sexual assaults (including penile/vaginal penetration) is corroborated by the convictions of Mr Croft for the five offences against her with which he was charged. Her evidence, which I accept, was of assaults which were violent and followed episodes of beating, and were characterised by Mr Croft as corporal punishments for her alleged shortcomings in performing domestic and other work tasks on the property. Her feelings of violation, alienation and isolation following these assaults were profound. Her guilt and shame at having been raped prevented her from seeking help from those best able to provide it: the Phelans and Mr McIlveen. She was too embarrassed to disclose the sexual assaults to them which created a deeper rift between her and the Phelans than her adolescent rebelliousness or Mr Phelan’s illness had brought about. The assaults disturbed her life in a substantial way, robbed her of self-esteem and prevented her from returning to the safety and support of the Phelan household (the correspondence referred to above indicates the extent to which the Phelans loved her and concerned themselves with her welfare).

18. [237]

    There is considerable force in the State’s submission following its summary of the medical evidence:

19. [238]

    The appellant made several criticisms of the primary judge’s assessment of the expert evidence, which are the subject of grounds 13-16. I consider that the primary judge’s analysis of the “gap” to be in error. To that extent, the grounds are made out.

20. [239]

    The expert evidence adduced in the Court below is not particularly helpful in identifying the damage which the appellant has suffered as a result of the sexual assaults by Mr Croft. This may be explained by the circumstance that MTH has brought a significant number of claims against various people (including against the estate of the late Mrs Phelan); her hurt at being sent away from the Phelans (which, for the reasons given above, is not compensable); and her reluctance to disclose and discuss the sexual assaults in the course of consultations, particularly those for medico-legal purposes. Nonetheless, Dr Jungfer ultimately made a diagnosis of Post-Traumatic Stress Disorder (PTSD) arising from the assaults, which I accept.

21. [240]

    Further, as referred to above, the principle established by Purkess v Crittenden casts the onus on the tort-feasor (Mr Croft) to show that the appellant would have been in a similar position but for his tortious conduct. I do not consider that he has discharged that onus nor could Mr Andrews point me to any passage in the evidence which was capable of establishing that, but for the sexual assaults perpetrated on her by Mr Croft, the appellant would have been in a similar position. Having regard to the complexity of the question and the number of matters affecting the appellant, it is not surprising that the proof of causal effect is difficult. However, she has established (as the primary judge accepted she had, if the assaults had been proved) that the assaults caused her significant harm. The estate has not discharged the burden of showing that its effect has ceased. Nor has it established (for the reasons given below) that the effects of the assaults did not continue from the time of their perpetration.

22. [241]

    I consider that the award of general damages needs to be substantial to take account of the extent to which Mr Croft’s tortious conduct derailed the appellant from the life for which the Phelans had prepared her and disrupted her late teenage years, with lifelong consequences. I accept that the consequences of the sexual assault are lifelong and have compromised the appellant’s sense of self-worth, capacity to form intimate relationships and ability to live the life she would otherwise have been able to, had they not occurred. I consider that general damages ought be assessed at $400,000, comprising $300,000 for the past and $100,000 for the future. Mr Andrews accepted that the appellant was entitled to interest at Gogic rates (4%) for past general damages: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3. The figure for interest is $276,000 (being 4%/2 for the period of 46 years since 1979 to take account of the fact that the pain and suffering continued throughout that period).

23. [242]

    Aggravated damages are compensatory damages which are awarded to take account of the special humiliation suffered by a plaintiff due to the nature of the defendant’s conduct in the commission of a wrong: State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). They are awarded where the defendant’s conduct is so outrageous and blameworthy that an increased award is necessary. In the present case, where the underlying tort amounts to a crime, it is more difficult to distinguish between general damages and aggravated damages. The rapes and indecent assaults committed by Mr Croft against the appellant, who was then under his authority, involved an exercise of power and sexual gratification, accompanied by violence, causing her to be terrified and traumatised. The amount for general damages needs to be increased by an award of aggravated damages because of the horrifying circumstances in which the intentional torts were committed by Mr Croft against MTH. Bearing in mind the need to avoid double-counting between general and aggravated damages, I consider $150,000 to be an appropriate award for aggravated damages.

24. [243]

    The assessment of loss of earning capacity requires the comparison between the appellant’s earning capacity but for the sexual assaults and her earning capacity as a consequence of the sexual assaults. Her case at trial was that, but for the sexual assaults, she would have qualified as a veterinarian four years after leaving school in Year 12 and worked full time in that profession for her working life. Thus, she made a claim for damages for loss of earning capacity of $2,947,806.24 (the difference between $3,565,649 (what she would have earned) and $2,211,320 (what she in fact earned), being $1,354,329, to which interest and superannuation need to be added).

25. [244]

    This claim was based on a counterfactual which has not been made out. The appellant’s case at trial was that, had she remained with the Phelans (on the hypothesis that she would have been adopted by them and would have remained with them), they would have sent her to New England Girls School (NEGS) (which required fees to be paid) for her Higher School Certificate (although she had attended Tenterfield High School for her School Certificate) and she would have gone to university and qualified as a veterinarian. The relevant counterfactual, as set out above, is that she was placed with the Crofts and Mr Croft did not sexually assault her. While she was closer to NEGS when she was living at Uralla, the Crofts’ expectation was that she would work on their property. She did, however, enrol in a course at the Armidale Technical College while living with them. In these circumstances, I do not accept that MTH’s earning capacity ought be assessed on the basis that she would have qualified as a veterinarian within four years of attaining the Higher School Certificate or that she would have attained the Higher School Certificate, except as a mature age student.

26. [245]

    I accept the State’s summary in the Court below of the appellant’s work history from 1980 to 2013, which is derived from the appellant’s oral evidence:

27. [246]

    As the primary judge noted, the appellant worked hard and was in regular employment from the time she began employment until 2008, or 2011. Subsequently, she stopped work as a result of being bullied, which caused the memory of the trauma she had suffered at the hands of Mr Croft to return with greater force. She then became unfit for work and made claims against various people and entities, including that she was unfit for work because of physical injuries as well as psychological ones. The appellant’s evidence in the Court below was that she suffered a breakdown as a consequence of the trauma of the sexual assaults emerging in 2011 and that, in effect, she was unable to work again and has been on a disability support pension ever since.

28. [247]

    I accept the submission made by Mr Andrews in the Court below that the appropriate way of addressing the appellant’s loss of earning capacity from 2011 is by way of a buffer.

29. [248]

    Because of her age at the time of the sexual assaults, the appellant’s likely path in life was uncertain, including because she had just lost the daily support and affection of the Phelans. It is difficult, in these circumstances, to work out with any degree of precision the likely path which she would have taken but for the sexual assaults. While the appellant appeared, when representing herself, to be at times focussed and articulate, she was also distracted and distressed. She had been well-educated and obtained the School Certificate (although not the Higher School Certificate) and could speak and write well. However whether, but for the sexual assaults, she would have obtained a tertiary education at some later stage, is very much a matter of speculation. I am satisfied that the psychological effect of the sexual assaults was such as to affect her earning capacity, at least from the time of the bullying incident at work which led to her disclosing the assaults by Mr Croft in counselling with CLAN. She was counselled by Natalie Wallace, a counsellor with CLAN, from 2011.

30. [249]

    The trial judge calculated that for the period during which the appellant worked consistently (from 1982 to 2011) she earned an average of $70,000 per annum. It is, however, not possible to determine with precision to what extent her post-2011 earnings, such as they were, were caused by physical injuries (in respect of which she made claims) and which were the consequence of a diminished earning capacity arising from PTSD as a consequence of the assaults.

31. [250]

    In these circumstances, a buffer is appropriate since an award based on a weekly sum would imply precision which is unattainable: see, for example, Black v Young [2015] NSWCA 71 at [58]-[59] (Sackville AJA, Basten JA and myself agreeing). The present case is very far removed from the category where more precise evidence of loss could have been adduced but was not. A rational basis for assessment of a buffer amount has been laid by the evidence although its quantification is necessarily lacking in firm integers. The assessment of damages for loss of earning capacity is, by reason of the nature and timing (in MTH’s life) of Mr Croft’s tortious conduct against her, difficult and involves “a pragmatic exercise of a kind traditionally left to the good sense of a jury”: Troulis v Vamvoukakis [1998] NSWCA 237 at 14 (Gleeson CJ, Mason P and Stein JA agreeing). The evidentiary foundation in the evidence set out above as to the balance of MTH’s work history permits a buffer to be awarded.

32. [251]

    The plaintiff is now 61 years old. She was consistently employed for approximately 30 years after the sexual assaults until the trauma was apparently triggered by an incident at work which led to an almost total inability to work. The evidence does not permit the quantification of economic loss by reference to a weekly amount or a precise mathematical calculation. In these circumstances, a buffer is appropriate since I accept that the mental harm suffered by the appellant as a consequence of the assaults affected her work capacity in a material way from the time she stopped work in about 2011. In these circumstances, I consider that a buffer of $350,000 for the past, including interest and superannuation, and $50,000 for the future (allowing for a discount of 15% for vicissitudes) to be appropriate.

33. [252]

    The appellant claims the total amount of past benefits paid by Medicare which are said to be in an amount of $46,090.25. She claims that this figure relates to treatment sought and obtained as a consequence of the trauma she sustained. The evidence is insufficient to establish a connection between each item and the trauma sustained as a result of Mr Croft’s assaults on her. She has suffered a number of physical injuries during this period and has had a back operation. The physical injuries were such as to have required medical treatment. She has obtained counselling from CLAN for which I understand that she was not obliged to pay. In these circumstances, I am unable to award any amount for past out-of-pocket expenses.

34. [253]

    Dr Jungfer proposed a regime of treatment for the appellant of 2-3 appointments per week for “psychodynamic psychotherapy” for 3-5 years at a cost of between $300 and $400 per consultation. If three sessions per week at a cost of $350 per hour are allowed for the next three years, the figure is in excess of $150,000. I consider this figure to be reasonable but have discounted it slightly to make some allowance for vicissitudes to $120,000.

35. [254]

    For the reasons given above, I propose the following award of damages.

Costs

1. [255]

   The appellant challenged the primary judge’s order that she pay the costs of the State on the ordinary basis until 20 July 2020 and on an indemnity basis thereafter. The primary judge exercised his discretion with respect to costs having regard to the Offer of Compromise made by the State on 30 July 2020 in the amount of $125,000, to which no response was made. At that time Greg Walsh & Co was acting on behalf of the appellant.

2. [256]

   In ground 7 of appeal, the appellant contended that the primary judge ought to have allowed her to cross-examine Ms Faunt, the deponent of the affidavit deposing to the Offer of Compromise and the circumstance that no response was received. No error has been demonstrated in the primary judge’s refusal to permit the appellant to cross-examine Ms Faunt. In any event, on appeal, Ms Faunt corrected this evidence to indicate that there had been a response to the State’s offer in the form of a request for an extension of time, which was not forthcoming. The proof of the offer required documentary evidence. There was no proper forensic basis on which to allow Ms Faunt to be cross-examined. Ground 7 has not been made out. Further, ground 18 alleges that, in some way, the State was responsible for her non-acceptance of its offer. This ground has not been made out.

3. [257]

   The appellant submitted that it was unfair for the State to seek its costs against her. However, she has failed to establish any error in the primary judge’s exercise of discretion. Accordingly, her application for leave to appeal against the costs order fails. Grounds 30-32 have not been made out.

4. [258]

   As there is no reason to depart from the usual rule that costs follow the event (Uniform Civil Procedure Rules 2005 (NSW), r 42.1), the appellant is entitled to an order that Mr Croft pay her costs of the proceedings in the Court below and in this Court. Accordingly, the costs order made against her in favour of the estate must be set aside and, instead, an order made that the estate pay her costs of the proceedings.

5. [259]

   The appellant made reference to a pre-trial offer which had been made on her behalf by Mr Walsh when he was acting for her. As this offer appears to have been without prejudice, it is not relevant to the costs of the proceedings. Accordingly, ground 28 has not been made out.

6. [260]

   The primary judge ordered the appellant to pay Mrs Croft’s costs on the ordinary basis since his Honour considered that it was not unreasonable for MTH to refuse the joint offer made by the estate and Mrs Croft jointly. No error has been shown in the primary judge’s exercise of discretion with respect to this costs order. Accordingly, her application for leave to appeal against the costs order fails. Ground 20 has not been made out.

Proposed orders

1. [261]

   For the reasons given above, I propose the following orders:

   1. (1)

      Allow the appeal in respect of the judgment in favour of the second respondent.

   2. (2)

      Otherwise dismiss the appeal.

   3. (3)

      Set aside the judgment ordered by Cavanagh J in favour of the second defendant and the order in respect of the second defendant’s costs and, in lieu thereof:

   4. (4)

      Order the appellant to pay the first and third respondents’ costs of the appeal.

   5. (5)

      Order the second respondent to pay the appellant’s costs of the appeal.

   6. (6)

      Direct the parties to provide within 14 days short minutes of order proposing:

2. [262]

   PRICE AJA: The conduct of the trial below was not an easy task for a judicial officer. There were a number of complex issues to be determined and the appellant represented herself. The primary judge dealt with the parties with patience, courtesy and efficiency. Regrettably, his Honour was not assisted by the submissions made on the issue of Mr Croft’s convictions which gave rise to the misapprehension referred to by Adamson JA at [44] above.

3. [263]

   I agree with the reasons of Adamson JA and the orders her Honour proposes.