AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle ABN 79469343054
[2025] HCATrans 53
[2025] HCATrans 053
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S94 of 2025
B e t w e e n -
AA
Appellant
and
THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF MAITLAND‑NEWCASTLE ABN 79469343054
Respondent
GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 7 AUGUST 2025, AT 10.00 AM
Copyright in the High Court of Australia
MR P.D. HERZFELD, SC: Your Honours, I appear with MR P.A. TIERNEY and MR J.A.G McCOMISH for the appellant. (instructed by Koffels Solicitors and Barristers)
MR J.T. GLEESON, SC: May it please the Court, I appear with MR J.C. SHELLER, SC, MS C.J. ROBERTSON and MS P.F. BRISTOW for the respondent. (instructed by Makinson d’Apice Lawyers)
GAGELER CJ: Yes. Thank you, Mr Gleeson. Mr Herzfeld.
MR HERZFELD: Thank you, your Honour. May we structure our oral submissions in this way. I will deal first with the question of whether the Diocese – and I will come back to that word – owed a relevant duty of care to the appellant. I will then deal with the question of whether, if so, that was a non-delegable duty and whether that can be breached by intentional conduct. Mr McComish will then deal with the notice of contention. As I go, I will at appropriate points locate my submissions by reference to the disputed facts document which was filed on 1 August, and I will also, as I go, deal with the respondent’s status of facts document filed on 5 August.
Starting with the duty of care, may we emphasise at once the significant effect of the Civil Liability Act on that question. Would your Honours take up, please. If your Honours turn in the Civil Liability Act to section 6I, your Honours will see the objects of Division 4 of the relevant Part. And in section 6J, may we draw attention to the definitions of “child abuse proceedings”, “legal personality”, and then “unincorporated organisation”. Your Honours will see that section 6K allows:
Child abuse proceedings –
to:
be commenced or continue against an unincorporated organisation –
and, as I will show your Honours in a moment, that provision ultimately was not needed here. Section 6L permits an unincorporated organisation to “appoint” an:
entity as a proper defendant –
and again, as I will show your Honours in a moment, that is, in substance, what appears to have happened here. Turning over to section 6N, that empowers the Court to appoint a proper defendant if one is not otherwise appointed, and that was not required here. Then section 6O is a most substantive provision. Your Honours will see that, by paragraph (a):
the proper defendant is taken to be the defendant . . . on behalf of –
the unincorporated organisation. Then, paragraph (b) makes clear two things, that:
anything done by the unincorporated organisation is taken to have been done by the proper defendant and –
importantly, that:
a duty or obligation of the unincorporated organisation in relation to the proceedings is –
taken to be:
a duty or obligation owed by the proper defendant –
And your Honours will notice that both paragraphs (a) and (b) assume that acts can be done and duties can be owed by the unincorporated organisation. That is then given effect by paragraph (d):
a court may make substantive findings in the child abuse proceedings against an unincorporated organisation as if the organisation had legal personality –
and then paragraph (e) again assumes, or proceeds on the basis that if the unincorporated organisation had legal personality, which this provision effectively deems it to have, and would have incurred a liability, that liability is to be borne by the proper defendant.
BEECH‑JONES J: Mr Herzfeld, with (b), “anything done” – you might be coming to this – how is something done by the unincorporated organisation? Is it done by those legal entities that are identified as the constituent members? Is that what it is?
MR HERZFELD: Your Honour asks a question, the answer to which is not entirely clear. But it is to be effectively treated in the same way as if the unincorporated organisation itself had a legal existence. And so, any way in which a legal entity could be said to have done something – that is, by individuals or other legal entities – is a way in which an unincorporated organisation can, for the purpose of this set of provisions, be taken to do something.
BEECH‑JONES J: Right. Perhaps in this case, who – my understanding is, on your case – and tell me if I am jumping ahead – is whether the unincorporated organisation included the Bishop and – I will call them the trustees.
MR HERZFELD: The trustees are not relevant to our case.
BEECH-JONES J: The Bishop?
MR HERZFELD: Yes.
BEECH-JONES J: And the priests.
MR HERZFELD: Yes.
BEECH‑JONES J: Including Father Pickin?
MR HERZFELD: Yes.
BEECH-JONES J: So, anything done by Father Pickin was, on your case, done by the unincorporated organisation?
MR HERZFELD: We do not put it quite that highly, that is why we need the non-delegable duty aspect.
BEECH-JONES J: I see.
MR HERZFELD: But I will come to that.
GORDON J: Is that because the people you have identified, other than Father Pickin, are the ones with authority?
MR HERZFELD: Yes.
GORDON J: Thank you.
MR HERZFELD: Would your Honours then turn to the appellant’s book of further materials, please. In volume 1, page 11, your Honours will see the amended statement of claim and your Honours will see that the named defendant was the trustees. If your Honours turn over to page 12, under the heading “The defendant” your Honours will see in paragraph 5 that it was alleged that:
the defendant –
that is, the trustees:
is a proper defendant to the claim, which relates to the Diocese . . . for the purposes of –
the relevant Part. And, so, that identifies the unincorporated organisation in question as:
the Diocese of the Roman Catholic Church for Maitland‑Newcastle –
and it identifies the proper defendant for that unincorporated association. The numbering of the next paragraphs is a little confused, but jumping over the paragraphs 3 and 4, there is then another paragraph 5 which alleges that:
At all material times, the Diocese was a Diocese of the Roman Catholic Church –
If your Honours then turn to page 72 in this volume, your Honours will see the defence. If your Honours turn to page 74, your Honours will see in the third paragraph on that page, paragraph 5 is admitted. That was the first paragraph 5. Then your Honours will see that in paragraph 8, the second paragraph 5 in the statement of claim was also admitted.
The effect of those pleadings when read against the background of section 6O is that it was common ground that the Diocese of the Roman Catholic Church for Maitland‑Newcastle – which, within the Church structure, is a separate diocese – was to be treated, for the purposes of making findings of fact and legal obligation, as if it were a separate legal entity.
It is for that reason that there is no difficulty in posing the question whether the Diocese owed a duty of care. The facts agreed the parties at trial indeed gave greater precision to the concept of “the Diocese”. Would your Honours turn to those agreed facts at page 79, please?
BEECH-JONES J: Just so I get it, Mr Herzfeld – and I think this was reflected in Justice Leeming’s judgment – the initial references to the Diocese is the geographic area of what is broadly known as the Catholic Church, is that right? And then, that became the – then the idea is that is the organisation. Is that right?
MR HERZFELD: Your Honour says the “initial references”, I think the first reference is in paragraph 5 ‑ ‑ ‑
BEECH-JONES J: Yes.
MR HERZFELD: ‑ ‑ ‑ which is actually to the organisational structure within the Church.
BEECH-JONES J: Of the Church within that area?
MR HERZFELD: Yes, yes. But your Honour is right that, at some other times, “diocese” is used, unsurprisingly, to mean also a geographic area. On page 79 is the list of matters and facts in issue from trial. If your Honours turn over to page 80, your Honours will see paragraphs 17 and 18, which were matters and facts not in issue – in other words, agreed matters. So, we agree, in the respondent’s status of facts document, we agree with points 1 to 3 of that document.
GLEESON J: What does:
care and control of Catholic Churches –
mean? Does that mean maintenance of the churches?
MR HERZFELD: Your Honour, there was some further evidence about that. I do not want to gloss what was agreed at this point, but I will come back to your Honour’s question.
EDELMAN J: Do you rely upon that, essentially for attribution purposes, that the Bishop is in the position of a controlling mind or a person whose conduct and knowledge can be attributed to the Diocese?
MR HERZFELD: Yes. And that aspect of attribution we do not think is in controversy. Some other aspects of attribution are in controversy, and I will come to those. In relation to the duty of care at issue here, would your Honours turn back to the statement of claim, please, at page 15 of this volume.
GAGELER CJ: Are you coming back to the Civil Liability Act at any stage?
MR HERZFELD: Yes, I will, but towards the end of my submissions.
GAGELER CJ: You will deal with Justice Leeming’s reference to section 6F?
MR HERZFELD: I will.
GAGELER CJ: Yes, thank you.
MR HERZFELD: So, page 15 of the book, your Honours will see that the duty of care was pleaded in paragraph 33, and the duty was pleaded in rather general terms. The respondent conceded, for instance, that the Diocese as the occupier of the premises of the presbytery at which the abuse occurred would owe the usual occupier’s duty, that is, to take reasonable care to avoid causing reasonably foreseeable harm to those on the premises as a result of the state of the premises.
But if one reads the particulars to paragraph 34 and then the pleading in paragraph 35, particularly in light of the facts of the case, the duty of care at issue here or, perhaps rather more precisely, the scope of the duty of care at issue here, is rather more focused: it is whether the Diocese owed a duty to take reasonable care to avoid reasonably foreseeable personal injury to children invited onto diocesan premises caused by the conduct of diocesan priests at those premises.
By “invited”, I mean invited by a person to whom the Diocese had given control of those premises or, put another way, whom the Diocese had authorised or armed to invite people onto those premises. And, of course ‑ ‑ ‑
GORDON J: So, can I just ask, that duty you have just outlined, is that your summation of 33 to 35?
MR HERZFELD: It is. And if I may put it generally, the way the case was conducted and what was in issue in the case.
GORDON J: Thank you.
MR HERZFELD: And I have sought to articulate it precisely, particularly given observations in a number of cases by this Court of the need for a duty of care to be framed at a sufficiently precise level.
BEECH-JONES J: But you do not frame it at a level of a duty to prevent harm from sexual assault.
MR HERZFELD: No.
BEECH-JONES J: You put it higher than that.
MR HERZFELD: I have put it ‑ ‑ ‑
BEECH‑JONES J: It is more abstract than that.
MR HERZFELD: In some ways, more abstractly and in some ways more precisely, because I have referred to additional elements.
BEECH-JONES J: I see.
MR HERZFELD: But what your Honour says is correct, the sexual assault was, in fact, the conduct at issue here, but no, that is not the way in which I have articulated the duty.
BEECH-JONES J: The defining character of the scope of the duty.
MR HERZFELD: Yes.
EDELMAN J: But these paragraphs of the pleading are kind of contradictory in a way, because either the duty of care is a duty to take reasonable care or it is a duty to ensure that reasonable care is taken. It cannot be both.
MR HERZFELD: It can be argued, the way that it is pleaded – your Honour is right, it is contradictory. Everybody running the case now – and I say “now” because of the way the trial was conducted – understands that the way that we put it is, firstly, there was a duty of care. We have to get to that hurdle. We accept the force of what the respondents put on that point, but we then say, in addition, it was of a non‑delegable kind. If that is right, then your Honour’s articulation is, with respect, correct.
I am going to address duty of care and then I will come back to the non‑delegable duty. The Court of Appeal rejected any such duty, so may we explain the features which we submit support it, and in the course of doing so, why the Court of Appeal erred.
BEECH‑JONES J: Sorry, Mr Herzfeld, could you just repeat slowly the way you formulate that duty?
MR HERZFELD: I wondered if we should have written it down, and the answer is yes.
GORDON J: I think I would be grateful if it could be provided, sooner rather than later, so that we can actually see the way in which you summarise those paragraphs.
MR HERZFELD: Yes.
GORDON J: Because I think the issue that arises is that put to you by Justice Edelman – there is a confusion, I think. If we are dealing with a non‑delegable duty then, in a sense, what you are starting with may be interesting but irrelevant, in the sense that we are asking whether or not there has been an entrustment of someone on the basis that they must ensure care is taken.
MR HERZFELD: Yes.
GORDON J: As distinct from a set of facts which give rise to a duty of care and arising out of a special relationship, whether it has knowledge attached to it or not.
MR HERZFELD: Yes. I am going to address both.
GORDON J: And so, what are we dealing with now?
MR HERZFELD: Just an ordinary duty of care, which I will say again but we will reduce it to writing – whether the Diocese owed a duty to take reasonable care to avoid reasonably foreseeable personal injury to children invited onto diocesan premises caused by the conduct of diocesan priests at those premises.
STEWARD J: And I think you also included: and had authority to invite.
MR HERZFELD: So, by “invited” – I could not put too much into the one sentence. By “invited”, I mean invited by a person to whom the Diocese had given control of the premises or, put another way, whom the Diocese had authorised or armed to invite the people onto the premises.
GAGELER CJ: You really must put it in writing and give it to us.
MR HERZFELD: Yes.
GAGELER CJ: At morning tea.
MR HERZFELD: We will do that. So, can I – I am so sorry, your Honour? Now, it was an agreed fact at trial that Father Pickin was the parish priest of St Patrick’s Church. Your Honours can see that on page 80 of the book of further materials.
BEECH‑JONES J: Was it admitted on the pleadings, before we get to trial?
MR HERZFELD: It was admitted on the pleadings and it was reflected in these agreed facts. Your Honours will see on page 80, paragraph 19:
At all material times, Fr Pickin was an incardinated priest in the Diocese.
And that is the proposition in point 5 of the respondent’s status of facts document. But then your Honours will also notice paragraph 20:
The Bishop appointed Fr Pickin as the parish priest of St Patrick’s Church.
Now, the significance of that fact for present purposes is that the case was conducted on the basis that Father Pickin had the authority of the Diocese to decide who was invited to the presbytery and what events could take place there because that was part of the authority of a parish priest.
STEWARD J: You do not say that the court or at least the Court of Appeal was bound by that paragraph? A judge can disagree.
MR HERZFELD: A trial judge can, the Court of Appeal could not – I will come back to that.
STEWARD J: When you do, would you also, if it is possible, identify the error in the factual reasoning of Justice Leeming in concluding that he was only an assistant priest?
MR HERZFELD: I am not going to seek to do so.
STEWARD J: Okay. All right, thank you.
BEECH-JONES J: Your argument is his Honour just should not have gone there.
MR HERZFELD: Yes.
GORDON J: Just so I am clear, there is an admission on the pleadings that he is a parish priest. You can see that by paragraph 5, numbered the third time, admitted on page 75 on the book of further materials.
MR HERZFELD: Yes.
GORDON J: There is then a document provided to the trial judge which says it is an agreed fact.
MR HERZFELD: And as I will show your Honours, that document was provided on day three of the trial, after all of the oral evidence.
GORDON J: Thank you. Then there is a finding by the trial judge, in a sense, relying on those facts, because no other evidence was adduced otherwise.
MR HERZFELD: Yes, paragraph 1.
GORDON J: Thank you.
MR HERZFELD: But the significance, for our purposes, is not so much the title. It was what influence that had on the way the case was conducted and, in particular, what influence it had as to the findings to be made about the authority of Father Pickin to decide who was invited to the presbytery and what would take place there.
Would your Honours please, in this volume, go to the expert report of Father Dillon starting at page 438. Father Dillon’s evidence – after there was a challenge to its admissibility – resolved favourably to the appellant by the trial judge. His evidence was not challenged in any way in cross‑examination and it was not challenged in the Court of Appeal.
What could be made of it was the subject of submissions, but the correctness was not the subject of challenge. Would your Honours, on page 439, look firstly at question (c) and then the answer to that, which is framed by reference to the parish priest:
In Australia in 1969, the Parish Priest was the highest local authority for the members of the Catholic Church, and was answerable only to the Diocesan Bishop.
Then, at letters U to V:
no question that the priest –
That is a reference to the parish priest:
was the centre and focus of what we might today call the “governance” of the Parish at its local level.
If your Honours then turn to the second report of Father Dillon, starting on page 445, on page 446 at letters I to N your Honours will see he gave evidence about:
The Bishop of the Diocese . . . the ultimate authority with regard to the use and administration of all properties in the Diocese –
and this is the beginning of the answer to your Honour Justice Gleeson’s question about property:
A property cannot be sold without his explicit permission, nor can it be used for any purpose in anyway contrary to the wishes or direction of the Bishop.
So, that is the Bishop. But then your Honours will see in letters K to N:
For those activities and uses that are directly part of the Church’s mission, the Parish Priest’s authorisation and permission would be normally sufficient . . . Placing a new building on the property would need –
the Bishop’s permission, and:
Should the Bishop disapprove of any use of parish property for which a Parish Priest had given permission, the bishop could and usually would prohibit the use of that property –
GLEESON J: For activities and uses that are directly part of the church’s mission.
MR HERZFELD: Yes. If your Honours turn back to page 447, there is then specific evidence about the use of presbyteries from E to P:
purposes other than being solely the priest’s residence.
Parish offices . . . administrative headquarters . . . with constant visits –
but then also:
Meeting rooms, kitchen facilities . . . for committee meetings, social gatherings, religious instruction –
et cetera:
indispensable components of the priest fulfilling both his pastoral and administrative responsibilities –
Then, particularly at O to P:
for the priest, the Presbytery/Parish House was not just where he lived – it was also where he worked in order to undertake the spiritual, pastoral and administrative responsibilities –
Would your Honours then take up volume 2 of the appellant’s book of further materials.
GLEESON J: Are there findings of the primary judge in relation this evidence?
MR HERZFELD: Yes.
GLEESON J: Why are we going to this?
MR HERZFELD: In a sense, because these findings are part of the respondent’s challenge in this Court, and so big matters, and so I need to take your Honours to the evidence.
JAGOT J: Do we have the pleaded canon law and other directions that are pleaded in the amended statement of claim, like ‑ ‑ ‑
MR HERZFELD: I do not understand your Honour’s question. I do not think they have been included in the bundle. Father Dillon’s first report extracts parts of them. We can see if we can supply them to your Honours.
JAGOT J: It is just that some of them were admitted – well, it is admitted that they applied, it is just that they rely on the whole of it, et cetera. I think it might be useful to have those things.
MR HERZFELD: Yes. I do not think we have included them in the bundle ‑ ‑ ‑
JAGOT J: Especially because 212 has been specifically ‑ ‑ ‑
MR HERZFELD: Yes, we will attend to that homework task, also.
JAGOT J: Thank you.
BEECH-JONES J: Were they tendered separately?
MR HERZFELD: I think so, but ‑ ‑ ‑
JAGOT J: Well, only ‑ ‑ ‑
MR HERZFELD: I am so sorry. I am told that they were not actually tendered ‑ ‑ ‑
JAGOT J: Sorry. I assumed they were tendered ‑ ‑ ‑
BEECH-JONES J: And they would be ‑ ‑ ‑
MR HERZFELD: I had too, and I do not think they are matters of law, so in any event ‑ ‑ ‑
BEECH‑JONES J: They are probably ‑ ‑ ‑
JAGOT J: I had assumed they were before the ‑ ‑ ‑
MR HERZFELD: I will not delay on this ‑ ‑ ‑
GORDON J: But you have extracts of them in the report.
MR HERZFELD: We do.
GORDON J: And that report was tendered.
MR HERZFELD: It was. And so, just to ‑ ‑ ‑
JAGOT J: That is enough. If they were not tendered, I do not ‑ ‑ ‑
GORDON J: And the accuracy of that report was not challenged?
MR HERZFELD: It was not, but I will make sure I find out the correct answer to all of those matters.
JAGOT J: Okay.
MR HERZFELD: Just to go back to volume 2, if your Honours turn to page 560 – this is part of Father Dillon’s cross‑examination – at lines 25 to 47, your Honours will see that Father Dillon gave evidence of the social gatherings that could take place, that “a lot” of it depended on:
the attitude of the priest . . . particularly the parish priest because it was his home –
and so some would have a “private approach”, and some would have a more open approach. Then, at lines 35 to 47, some examples were given of the kinds of activities that could take place. If your Honours then turn to page 562, at lines 24 to 35 he was asked about:
rules or stipulations . . . as to the use –
of presbyteries. He said there might have been “one or two” but, at line 30:
all of these things were left to the common sense and good judgement of the parish priest . . . the parish priest that had the say over what would – events, meetings, gatherings, would happen –
and so on.
STEWARD J: How was this evidence characterised? Was it led as opinion evidence, or is it lay evidence of someone who was a priest at the time?
MR HERZFELD: It was characterised as opinion evidence based on his experience, which included being a priest over a very long period of time.
STEWARD J: But these are not really opinions, these are direct observations of what he remembers.
MR HERZFELD: That may be so, although that would then only be observations of what he remembered. He was qualified to give opinions, which were then more generally applicable.
STEWARD J: Okay.
MR HERZFELD: In any event, this was the evidence. And what was significant to the existence of a duty of care, as I said, is not then so much the title “parish priest”, it is that Father Pickin’s being agreed to hold that position carried with it the fact that, subject to the Bishop’s direction, he was given, by the Diocese, control over the premises of the presbytery, who was invited to it and what activities took place there.
Your Honours will notice from that evidence that what the priest could permissibly authorise to occur there was not limited to – if I can put this in very large quotes – “church events” in the sense of religious events or events authorised by someone other than the priest. It included, effectively, all of the social gatherings that the priest decided were suitable, subject to prohibition by the Bishop. That then qualifies a point in the respondent’s status of facts document. If your Honours would look at paragraph 32 of the respondent’s status of facts document. Your Honours will see the fact asserted in paragraph 32 is that:
The gatherings at the presbytery were not church events.
That notion of “church events” is a rather imprecise one. The imprecision of that was evidently recognised by the trial judge, because ‑ ‑ ‑
GLEESON J: Where do these facts in the first column come from? Do they come from your submissions?
MR HERZFELD: No, the greyed ones are ones that are covered by the disputed facts document.
BEECH-JONES J: Ours are not necessarily greyed.
GORDON J: You mean the bolded ones?
MR HERZFELD: Yes – I think they should be greyed, that is regrettable for the respondent. But the ones that say “this is a disputed fact” are obviously the disputed facts.
GLEESON J: But just to take 32, that sentence, is that sentence replicating something that is said somewhere else, in a judgment?
MR HERZFELD: So, what the respondent says about it is:
The PJ accepted the submission that the Friday evenings were not Church events.
That is in second column. If your Honours take the core appeal book, please, at page 49. Your Honours will see at page 49, paragraph 190, it is said the Diocese case was – so, this paragraph is a summary of the case – in the second sentence:
Nor were the Friday evenings at the presbytery “Church events”.
And the primary judge puts that in quotes. The other paragraph in the primary judge’s reasons to which the respondent refers is paragraph 218, if your Honours turn to that. This is part of the primary judge’s reasons about vicarious liability being established.
BEECH-JONES J: Sorry, what was that paragraph, again?
MR HERZFELD: Paragraph 218. Part of her Honour’s reasoning as to the establishment of vicarious liability:
was the special role which the Diocese gave Father Pickin –
And then in the last sentence:
That the Friday nights he arranged were not “Church events” does not preclude the Diocese’s vicarious liability.
And so, the respondent in their status of facts document, in the left‑hand column, asserts a series of facts. I am identifying, as I go along, those which are agreed, but this one needs to be substantially qualified because of the imprecision in the notion – which the primary judge evidently recognised by use of her quote marks – in the language of “Church events”. And that imprecision is because of the evidence of Father Dillon about what the parish priest was authorised to do at the presbytery.
GORDON J: But the finding was not gatherings general. Is it not the finding limited to that “the Friday nights he arranged were not ‘Church events’”?
MR HERZFELD: It was, that is so, but what I am picking up is the whole notion of “Church events” carries with it an extremely imprecise ambit.
GAGELER CJ: Was that language used in the submission? Where does it come from?
MR HERZFELD: I think it is from the respondent’s submissions.
GLEESON J: But you are not saying that these Friday night events were “Church events”, whatever that means. You are not propounding a concept of “Church events”.
MR HERZFELD: No, but in a sense, the question was sexual abuse of children an authorised church thing to do? Of course not. But that is, as I am going to come to, the wrong question. One has to look at the more general milieu and the point that I am making is that having social functions at the presbytery with people the parish priest chose to invite was something that was part of what he was authorised to do by the Diocese. So, the notion of saying this was not a church event rather conceals a degree of factual information relevant to the question of the duty of care.
GLEESON J: Ultimately, we are much more concerned here with the relationship between the Diocese and the plaintiff than with the scope of the authority of the priest.
MR HERZFELD: Yes, but the parish priest, which Father Pickin was agreed to be, had authority of the kind that I have mentioned. And that is something that informs the first aspect of why we say a duty of care was owed by the Diocese, because of what it armed the parish priest to do.
This is not a case like Modbury, for example, where there are the actions of a third party who happens to be on the defendant’s property and there injures the plaintiff. It is not a case, to adopt the language in Modbury at paragraph 19, where the Diocese:
had no control over the behaviour of –
diocesan priests, or where such priests:
were strangers to the parties.
Now, just staying with the respondent’s facts document, we agree with what is said in point 33 – this is again referable to the Friday evening gatherings – and we agree that they:
were not for the purpose of religious instruction.
But the same is so for many of the events that might take place at the presbytery at the decision of the parish priest. It was pointed out in the hearing in the Court of Appeal that there are documents – a number of them – that indicate that Father Pickin was in fact an assistant priest under a Father O’Dwyer.
But the position that procedural fairness requires be adopted was conceded in the Court of Appeal by then‑counsel for the respondent here. Would your Honours take up the respondent’s book of further materials, please.
GORDON J: I am sorry, Mr Herzfeld. Could you just give me that reference again?
MR HERZFELD: Yes, it is the respondent’s book of further materials at page 190.
GORDON J: Thank you.
MR HERZFELD: At 190, line 18, Justice Leeming, who had raised the factual issue by this time in reply – Mr Sheller’s reply – identified that there were pleadings and admissions that:
Father Pickin was the parish priest –
And that, he said:
explains why there’s no evidence on the point.
And Mr Sheller says:
We’re stuck with the admission.
And then Justice Leeming said he understood how the:
litigation should be determined –
and it included that:
Father Pickin was the parish priest and lived alone in the presbytery at the relevant time –
And the response:
There was no evidence of anyone else living at the presbytery. Whether that’s because of the passing of time or what have you. That wasn’t established, but we’re stuck with the admission we made.
And so, notice that what was conceded was not only that there were no other adults present during the gatherings at the presbytery, that is the point in the respondent’s status of facts documents at point 34:
There were no other adults present during the gatherings at the presbytery.
We agree, but as is apparent ‑ ‑ ‑
STEWARD J: Mr Herzfeld, Mr Sheller may have been stuck, but why was the Court of Appeal?
MR HERZFELD: For the same reason. The reason why ‑ ‑ ‑
STEWARD J: In the light of the breadth of section 75A of the Supreme Court Act?
MR HERZFELD: The reason why one cannot, as a party, raise a new matter on appeal which could have been met by evidence below is procedural fairness, and that is not ‑ ‑ ‑
STEWARD J: Is that the submission that was made? I do not know whether you appeared below, but ‑ ‑ ‑
MR HERZFELD: I did not.
STEWARD J: No.
MR HERZFELD: But Justice Leeming himself accepted the point appears to be “good”, and Justice Leeming himself was accepting that that was the basis upon which the court ought to proceed as a matter of procedural fairness. Because otherwise one has this position: the respondent – or the appellant – cannot raise an issue but the court, absent anyone being able to raise the issue, can itself determine the case on a manner that could have been met by evidence below.
STEWARD J: Is a breach of procedural fairness one of your grounds in your notice of appeal?
MR HERZFELD: We do not need that, because we simply say the Court of Appeal was wrong in the outcome for deciding the cases – as I will show your Honour in a moment – not on the basis that was the agreed position between the parties. Whether that was a denial of procedural fairness is a step to the ultimate conclusion, which is they were wrong to do it.
STEWARD J: But just so I am clear, leaving aside the procedural fairness point, which I understand, you do not deny that the court had the power to find its own facts under section 75A?
MR HERZFELD: As a general matter, of course not.
STEWARD J: Right. Thank you.
BEECH-JONES J: Just to be clear, though, so we are all getting procedural fairness, as far as I am concerned, Akhil was very clear that these issues are defined by pleadings, and it is not just a matter of procedural fairness, it is the scope of what their fundamental function is.
MR HERZFELD: Yes.
GORDON J: That is why I took you back earlier. You start with the agreed statement of facts, but the pleadings pleaded it and it was admitted.
MR HERZFELD: I am not disagreeing with any of that. There is a whole series of problems with what occurred. But if there had been no possibility that the matter could have affected the evidence below, there is at least power in the Court of Appeal, if necessary, even to grant the amendment of pleadings and leave to withdraw an admission, but none of that could possibly occur here because of the way that the matter was conducted, as was conceded.
So, what, as I say, is the significant point out of this is not so much the title, the significant point is that in the context of an agreed position – pleaded, admitted, agreed facts, in the context that Father Pickin was the parish priest – there was no evidence or even suggestion that there was anyone else living at the presbytery.
JAGOT J: You referred to an agreed fact at, maybe, paragraph 34, that he was alone. I am trying to find that.
MR HERZFELD: Yes. So, in the respondent’s status of facts document ‑ ‑ ‑
JAGOT J: The status of facts.
MR HERZFELD: ‑ ‑ ‑ in this Court ‑ ‑ ‑
JAGOT J: Not the agreed facts – in this Court.
MR HERZFELD: ‑ ‑ ‑ it was said that:
There were no other adults present during the gatherings –
and that is true. But I am making a slightly more fundamental point ‑ ‑ ‑
JAGOT J: Yes.
MR HERZFELD: ‑ ‑ ‑ which is about no one else living there and, therefore, no one else having the authority which the evidence showed that a parish priest would have. Had that been an issue which was in issue at trial – the suggestion that there was another priest who was living there who was more senior than Father Pickin – then that matter would have had to be thoroughly explored, and that not having done, the position is as Mr Sheller conceded it in the Court below.
To be clear, while the title may have been incorrect, it is not an all clear that the substantial fact that Father Pickin lived alone at the presbytery and had control of it was incorrect. It was entirely possible that Father O’Dwyer – who was, it appears, the parish priest – did not live there and that Father Pickin lived there alone as the assistant priest.
STEWARD J: Can you just remind me, was there a finding of fact by the trial judge that he lived alone?
MR HERZFELD: I think the answer is yes.
JAGOT J: Yes, according to – no:
found that there were no other adults when the assaults occurred: PJ [85] –
according to that.
STEWARD J: That is different to living alone.
JAGOT J: I accept that.
MR HERZFELD: Yes. Your Honour will see, at paragraph 68 ‑ ‑ ‑
JAGOT J: Of the primary judge?
MR HERZFELD: ‑ ‑ ‑ of the primary judge’s reasons. This is in dealing with one of the evidentiary objections. Your Honours will see, in dealing with it, the primary judge said:
In this case the disputed evidence concerned . . . uncharged acts –
and so on:
but also the surrounding conduct including have repeatedly invited him and Mr Perry to the presbytery where he lived alone –
STEWARD J: Thank you.
MR HERZFELD: So, the primary judge was proceeding, unsurprisingly, on the basis – consistent with the fact that he was the parish priest, consistent with the fact that there was no suggestion anyone else was living there – that he did live alone and exercised all the power.
STEWARD J: This is one of those findings which Justice Leeming disagreed with, from memory.
MR HERZFELD: Yes. Justice Leeming – and I will show your Honours this, this is the whole point of what I am going through. Your Honours will see also at paragraph 137 ‑ ‑ ‑
GORDON J: I was going to say, the third bullet point is there is an agreement.
MR HERZFELD: That is an agreement between the evidence of Mr Perry and the appellant, and in the third bullet it was clear that their evidence was in agreement that Father Pickin “lived alone”.
GORDON J: So, who is that agreement of, again?
MR HERZFELD: The appellant and Mr Perry.
GORDON J: Thank you.
MR HERZFELD: Your Honours will see that in the previous paragraph. So, that is why I say that even if the title was wrong, the substantial fact may well have been correct, because the two parties who gave the most direct evidence about the matter – the appellant and Mr Perry – gave evidence that he lived alone. That was not suggested to anyone that he did not.
STEWARD J: Do not the primary facts support your proposition? Whether he is the parish priest or assistant priest, the fact is he did invite them into the presbytery, and no one seemed to have objected to it.
MR HERZFELD: But I am going a little bit further than that, which is that the way the trial was conducted and the evidence showed that that was part of his function – not to invite people to sexually abuse them, but to control the activities and people at the presbytery.
GORDON J: Do you rely on paragraph 228 of the primary judge in core appeal book 59?
MR HERZFELD: We do. We do.
GORDON J: Especially the last sentence.
MR HERZFELD: We do, and this is one of the findings that the Court of Appeal criticised, so let me take your Honours to that immediately now. Would your Honours turn, in the core appeal book, to page 191. If your Honours actually start at page 190, your Honours will see, in paragraph 201 of the Court of Appeal’s reasons, there is a quote from the primary judge’s reasons, including the paragraph to which your Honour Justice Gordon has directed my attention. Your Honours will see that in paragraph 203, Justice Leeming identified that that paragraph to which your Honour Justice Gordon has directed attention:
presupposed wrongly that Fr Pickin was a parish priest, who lived alone in the presbytery, without other adults present –
GORDON J: So, can we just break that up for the moment:
wrongly that Fr Pickin was a parish priest, who lived alone in the presbytery –
So, there is a number of facts there that are the subject of challenge. Do you read that as challenging each and every one of those facts?
MR HERZFELD: Yes, and your Honours will see that in the next – Justice Leeming was challenging each of those facts ‑ ‑ ‑
GORDON J: Sorry, I meant to say that.
MR HERZFELD: Yes. Your Honours will see that in paragraph 204. His Honour said:
the reasoning of the primary judge if it were based on the facts would not be without force.
And then your Honours will see, dropping down halfway through that paragraph:
But Fr Pickin was an assistant priest sharing a presbytery with Fr O’Dwyer PP –
parish priest:
in suburban Newcastle. Insofar as the primary judge’s reasons give emphasis to the . . . sole power to control who else entered Fr Pickin’s residential accommodation –
that was effectively wrong. That reasoning is impermissibly both procedurally but also substantively, substantively because it assumes the incorrectness in the proposition that Father Pickin lived alone, absent any evidence.
So, what I have said so far, then, tracking back to the disputed facts document in this Court, that deals with our oral submissions on items 1 to 4 of the disputed facts documents – not the respondent’s status of facts document, that is their document. The disputed facts document is an agreed document which catalogues the disputed facts in this Court, and what I have said deals orally with items 1 to 4 of the disputed facts document.
GLEESON J: Those facts, I am wondering precisely how they are relevant to the relationship between the Diocese and the plaintiff.
MR HERZFELD: Yes.
GLEESON J: Was there a finding, for example, that the Diocese held out or offered or made the presbytery available as a place of sanctuary for parishioners?
MR HERZFELD: Not in those terms. The way they are relevant is in the way that is really reflected in paragraph 228 of the primary judge’s reasons. That is, that the Diocese authorised ‑ ‑ ‑
GLEESON J: Let Father Pickin do whatever he wanted to in the presbytery.
MR HERZFELD: In broad terms, yes.
GLEESON J: And that is said to give rise to something about the relationship between the Diocese and the plaintiff?
MR HERZFELD: Yes, that is the first point that I am relying on for the duty, to demonstrate that this is not a case of the priest at some other location, completely unconnected with the Diocese, abusing someone. This is as part of – at the premises that he was authorised to occupy, control and invite people to, effectively, for the functions that he deemed were appropriate.
EDELMAN J: You would have to go a lot further than that. I mean, that is just a landlord relationship.
MR HERZFELD: As I said, I have just started. So, that is point number one about duty. The next point which we point to is the role which the Diocese and the Church more generally required priests – not really parish priests, but priests – to perform in connection with children.
So, would your Honours again turn to Father Dillon’s first report in the appellant’s book of further materials, volume 1, and would your Honours turn to page 440. Your Honours will see in question (d), it extracts a papal ordinance, and may we draw attention particularly to paragraph (b) of that ordinance. Then the answer which was given underneath was that:
The responsibilities of priests –
of all those paragraphs:
were consistent with the normal and traditional practice of the Church –
Would your Honours then turn over to page 441.
BEECH‑JONES J: Mr Herzfeld, just that opening question – what is the question? It says:
Do you recall whether –
MR HERZFELD: Yes. There seems to be a slightly missing ‑ ‑ ‑
BEECH‑JONES J: Question.
MR HERZFELD: Missing question, but what he answered ‑ ‑ ‑
BEECH‑JONES J: He just affirmed it.
MR HERZFELD: ‑ ‑ ‑ affirmed that, as a matter of fact, that was how churches behaved.
BEECH‑JONES J: All right.
MR HERZFELD: I am not sure if the question was defective or if just the reproduction of the question in this report was defective. I will see if I can clarify that.
BEECH‑JONES J: Thank you.
MR HERZFELD: Can I then direct attention to question ‑ ‑ ‑
EDELMAN J: I think the words at the end of paragraph (d) would just need to be in a separate paragraph, and that structures the question.
MR HERZFELD: I think your Honour is quite right. Probably “informed the instruction” and so on should be a tailpiece to all of (a) to (d).
BEECH‑JONES J: I see.
MR HERZFELD: In question (g), your Honours will see what was asked, and your Honours will see:
In many parishes, it was common practice, provided there was agreement of local State School authorities, for priests to give Religious Instruction lessons to Catholic students at the school –
GORDON J: I am so sorry, is this question (g)?
MR HERZFELD: Yes, question (g). But that has to be read with the previous answer to question (f) on the previous page. Your Honours will see there that priests – it is expressed in terms of “parish priests” in the question, but the answer is given in terms of “priests” – were subject to:
the authority and direction of the Diocesan Bishop . . . in terms of determining a priest’s duties, responsibilities and priorities. He was expected to go where he was sent and to do what he was told by the Bishop.
Notice then, in the answer to question (g) – and I will come back to this – while they had too, of course, the agreement of local school authorities, in light of the previous answer, whether a priest could take up the position at a State school was ultimately under the control of the Bishop to appoint a priest to a particular role.
The answer to question (h) makes clear that doing that role was viewed as part of the priest’s responsible as part of his ministry. Your Honours will see that in the answer at letters Q to V. If your Honours then turn over to page 442, your Honours will see what was asked in question (j) and then the answer:
standard expectation of all priests that their engagement with the young people of the parish was a most important and valued part of their ministry . . . youth groups, movie nights, camps, sporting teams, Choirs –
and so on. And notice that this evidence – that is, the evidence that I have just taken your Honours to – is expressed generally about priests, not merely about parish priests, to the extent that matters.
Now, that evidence is the context for what appears in what was agreed between the parties. If your Honours turn back to the agreed facts at page 80, your Honours will see the agreed facts at paragraphs 21 to 23. Again, just to situate these by reference to the respondent’s status of facts document, we agree with the matters that are in items 16 to 18 and 20 of that document.
But this evidence reveals something of a misfocus, with respect, in the Court of Appeal’s reasons. Would your Honours take up the Court of Appeal’s reasons at core appeal book 191. At paragraph 205, criticising, again, the primary judge’s reasons, particularly at 228:
Secondly, and it is a small point, but the decision to permit Fr Pickin to conduct scripture classes at a government school was ultimately a decision of the head of that school and the State government.
That is not right, in a relevant sense. Of course, there had to be agreement of school authorities, but that is rather beside the point. The point is that performing that role was part of the responsibility ‑ ‑ ‑
GLEESON J: Paragraph 205.
MR HERZFELD: I am sorry, paragraph 205, your Honour, is what I was directing attention to.
GAGELER CJ: Thank you.
MR HERZFELD: And the point is that performing that role, while of course requiring the agreement of the head of the school, was part of the role of the priest as part of his mission to interact with children, ultimately at the direction of the Bishop. And that is actually ultimately conceded at the end of paragraph 205, which was an inference which Justice Leeming drew, that it was a matter for the headmaster or headmistress to choose whether to have such a class at school, but then it was:
left . . . to the various denominations to determine who would attend.
Precisely, it was ultimately a decision of the Bishop as to whether anyone, and if so, who, would attend to fulfil that role, and in doing so as part of the religious mission of the Diocese. And so ‑ ‑ ‑
GLEESON J: But is there not another element there, which comes back to this question of non‑delegable duty – or, probably, anterior duty of care – how does the child come to be in the scripture class? That, one might think, would be because the parents gave permission for the child to be in the class or, possibly, because the child – without the parents’ permission – decided to be in the class. That is how the priest comes to have some degree of care for the child in relation to that scripture class.
MR HERZFELD: That is so.
GLEESON J: Not just because the Diocese has given a priest a roving missing of pastoral care in relation to children.
MR HERZFELD: That is so. But the way that the child comes to be at the presbytery is the decision of the priest. That is why – as your Honours will recall – that the framing of the duty is important. So, to that extent – that is, to the extent that I have qualified what appears at paragraph 205 – the same qualification is necessary in the respondent’s status of facts documents to what appears at item 19 of that document. So, what I have then said so far addresses, in the disputed facts document, item 5 of the disputed facts document.
The converse of the priestly role to which I have drawn attention is the then‑societal attitudes by which priests were figures of serious and unquestionable authority, particularly for those of the Catholic faith. We have given your Honours references to the evidence in paragraph 29 of our written submissions‑in‑chief and, also, the disputed facts document at point 6. I am not going to take your Honours through all of that evidence, but we ‑ ‑ ‑
GORDON J: What is that evidence directed to?
MR HERZFELD: The then‑societal attitudes ‑ ‑ ‑
GORDON J: I see.
MR HERZFELD: ‑ ‑ ‑ by which priests were figures of serious and unquestionable authority, particularly amongst those of the Catholic faith. In relation to the respondent’s status of facts document, we agree with what appears at items 15 and 23.
Now, those societal attitudes increased the power imbalance that would exist in any event between a priest on one hand and a child on the other, but I want to be clear about this: our submissions do not turn on how religious the appellant was or even whether the children in question were of the Catholic faith. Likewise, they are not defeated by a submission, which is made by the respondent, that the appellant did not regularly attend mass. Quite apart from any religious deference to priests, the class of people with whom this duty is concerned – that is, children – is a well‑recognised class of vulnerable people in any event, quite apart from that religious aspect.
GAGELER CJ: So, do you need item 6 as part of your case?
MR HERZFELD: We do not, we do not. It helps, but we do not need it, because cases like Geyer v Downs recognise that children per se are a vulnerable class which can generate a duty extending to the control of third parties.
Now, those matters, together with the points that I have already made about Father Pickin’s control of the presbytery and the ministry that he was expected to undertake directed to children, address what we want to say about the disputed facts documents fact 12A. Staying with that disputed facts document, just looking at points 13 and 14, those disputed factual matters are irrelevant to the question of whether a duty was owed. It is ‑ ‑ ‑
GAGELER CJ: So, we can cross those out with 6?
MR HERZFELD: For our part. The respondent may say that they are relevant, but even if it were so that 13 and 14 were true, they do not matter. Can I then, as the next point tending in favour of the existence of a duty, point to the control which the Diocese in the person of the Bishop had over both priests, not merely parish priests, but also diocesan premises, I have already pointed out the material which demonstrates that both in the agreed facts and in Father Dillon’s evidence.
Again, this is not a case in which it is suggested the Diocese had a duty to prevent harm being caused by an independent third party. It is a case involving harm being caused by people who were hierarchically part of the Diocese but subject to its control through the person of the Bishop.
GLEESON J: It is almost – it bears a strong analogy to the hazardous activities cases.
MR HERZFELD: It does. It is one of the analogies I am going to come to when it comes to non-delegable duty, but yes. Finally, may we make some points about awareness of risks. As for the general awareness of the Church, would your Honours turn back to Father Dillon’s first report in volume 1 in the appellant’s book of further materials.
GORDON J: So, this is an element of knowledge.
MR HERZFELD: Yes.
GORDON J: This is the knowledge element you need for this duty.
MR HERZFELD: I may not need it, because “ought to know” is sufficient.
GORDON J: So, we need some form of knowledge, you accept that, and you put it on two bases, ought to know or knew?
MR HERZFELD: That is so.
GORDON J: And this is the evidence or the findings.
MR HERZFELD: Yes.
GORDON J: The findings that are going to be – you are going to take us to, on that element.
MR HERZFELD: Yes.
GORDON J: Thank you.
MR HERZFELD: Would your Honours turn to Father Dillon’s first report at page 442. Your Honours will see, on page 422, at lines N to O, he accepted that:
community awareness of the potential for abuse by priests and religious was minimal at the time, if not totally unknown.
But then – would your Honours turn to page 443 – your Honours will see that he says at letters D to F, that:
Among Catholic people –
that was:
still virtually unknown –
the crimes and so on, but then he says:
a likely exception to this overall lack of awareness would be the knowledge of some people in positions of high authority in the Church, such as Bishops, Religious Superiors and Provincials etc. who would have been aware of complaints and allegations made against other priests, brothers and nuns.
Then he repeats at I to K that they would not have:
reached the attention or awareness of the general Catholic populace.
STEWARD J: But that is not a statement about every bishop.
MR HERZFELD: It is not. It is a statement about the likely knowledge of bishops generally.
STEWARD J: So, do we not need a finding about the knowledge of the Bishop of Maitland at the time?
MR HERZFELD: We do, but this is evidence ‑ ‑ ‑
STEWARD J: Or what he ought to have known? I beg your pardon.
MR HERZFELD: Yes, so this is evidence from which both of those findings can be made.
STEWARD J: It may promote an inference.
MR HERZFELD: That is so. So, the first point we make ‑ ‑ ‑
GORDON J: So, just so I am clear, this is the extent of the evidence?
MR HERZFELD: There is more evidence; this is the first part of the evidence.
GORDON J: Thank you.
MR HERZFELD: So, this evidence simply shows at a general level there was awareness within the Church at the Bishop level, and a difference in knowledge ‑ ‑ ‑
GAGELER CJ: Of what?
MR HERZFELD: As he says:
of complaints and allegations made against other priests, brothers and nuns.
And the complaints he is obviously talking about, in the context of the previous paragraph, is complaints to do with sexual abuse of children. If your Honours then go to the Court of Appeal’s reasons, please, at page 192, in paragraph 207, there is criticism here of the findings the primary judge made, which are extracted on the previous page. The criticisms which are being made are what appear at paragraphs 231 to 232. Your Honours will see the finding was about Father Dillon’s evidence about:
“awareness which Bishops and other senior members of the Church then had about the risks which its priests could pose to children”.
Given complaints which they had received, which was not widely known in the community. Your Honours will see, in paragraph 207, that was criticised. The first reason it was criticised was:
The reference to Bishops in the plural –
which suggests:
that her Honour did not confine her analysis . . . to the people within the geographical Diocese of Maitland –
of which there was only one Bishop. But that is, with respect, an unfair criticism, because what her Honour was clearly doing was reasoning from the knowledge of bishops generally to an inference either about the actual knowledge of this Bishop or what this Bishop ought to have known.
There is then a criticism that the primary judge’s reasons misstate the evidence. That is expanded upon in 209. Your Honours will see there is a long quote from Father Dillon’s evidence, bolding the passage to which I have drawn attention, and in paragraph 210, Justice Leeming criticised the primary judge for elevating:
Fr Dillon’s “likely” exception . . . to a finding of actual knowledge.
But there is nothing wrong in a civil case with reasoning from likely, to proceeding on that basis. The balance of the paragraph, as I have said, is addressed by the fact that there is nothing wrong with reasoning from a statement about the knowledge of bishops generally, in the absence of any evidence being put forward by the respondent to the contrary to the likely knowledge of this Bishop or to what this Bishop ought to have known.
So, the criticism – there is an additional criticism which is made here, that Father Dillon “did not provide any reasons” for his opinion, but that is, with respect, unfair, given his vast experience – I will not take your Honours back to it, but at the beginning of his report it sets out his 55 years of experience in the Catholic Church both generally at a parish level, but then, in later years, dealing with child abuse complaints in particular. That is the general matters. Can I now come to the evidence specific to this Diocese. We point to two matters. The first ‑ ‑ ‑
GAGELER CJ: Can I just ask, what were the precise findings of the primary judge, in summary form, in relation to the risk and the magnitude?
MR HERZFELD: Yes, it is paragraph 231 where this finding, particularly, is made. That was the paragraph that Justice Leeming was specifically directing himself to. So, paragraph 231 of the primary judge’s reasons.
BEECH-JONES J: Mr Herzfeld, that paragraph refers to:
given the complaints which they had received –
Is that what you are about to take us to?
MR HERZFELD: So, that is a reference, still, to Father Dillon’s general evidence ‑ ‑ ‑
BEECH-JONES J: I see.
MR HERZFELD: ‑ ‑ ‑ that that was why bishops generally would have had knowledge. I am now about to take you to some specific evidence, and that is what her Honour the primary judge says. She says:
That accords with the Cunneen Report, where reference was made to the then Bishop of the Diocese having to deal with the risks which priests posed in the 1950’s.
BEECH-JONES J: So, can I just go back – is 231 a finding of actual knowledge of a finding of constructive – because the conclusion is an acceptance of a duty of care.
MR HERZFELD: Yes. The first part of 231 is not a finding of actual knowledge of this Bishop.
BEECH-JONES J: Right.
MR HERZFELD: The second part does relate specifically to this Bishop – as I am about to show your Honours.
BEECH-JONES J: The reference to “That accords”?
MR HERZFELD: Yes.
BEECH-JONES J: I see, thank you.
GORDON J: And you are going to have to address Justice Leeming’s criticism of the Cunneen Report.
MR HERZFELD: I am, I am. So, if your Honours turn in the book of further materials, please, to page 296.
JAGOT J: The appellant’s?
MR HERZFELD: Yes, I am so sorry, appellant’s book of further materials, volume 1, page 296. Your Honours will see here, this is a letter of 5 November 1987 sent to the then‑Bishop of this Diocese. Your Honours will see that it is about a Father McAlinden.
Your Honours will see from the second paragraph, at letters L to P, it is about allegations of sexual activity with children. What is significant about this letter is not what occurred in 1987. What is significant is what is on the next page of the letter. Your Honours will see that at letters H to J:
In any case according to –
that priest:
there had been previous similar allegations, the first one occurring in 1954, when the late Bishop Toohey had cause to discuss the issue with –
him:
at that time.
Now, Bishop Toohey was the Bishop of the Diocese relevant at the time of this matter. And we agree in that regard with what is said in point 4 of the respondent’s status of facts document. If your Honours then go to what the Court of Appeal said about this – your Honours will see that on page 194.
GAGELER CJ: Could you give the paragraph number, please?
MR HERZFELD: Paragraph 211. His Honour picked up the fact that her Honour was wrong to refer, in terms, to the Cunneen Report. The Cunneen Report was not in evidence.
STEWARD J: Was this a letter that was attached to the report?
MR HERZFELD: It was included in both.
STEWARD J: Right, thank you.
MR HERZFELD: That is how the error has occurred, because, I think during opening submissions, it might have been intended to tender the whole report, but the relevant thing was actually, this letter. So, there is a slip in the primary judge’s reasons in referring to the Cunneen Report, per se. But substantively, what the primary judge said was correct, based on this letter, that it provided evidence that there had been a complaint to the then‑Bishop about precisely this kind of activity.
STEWARD J: But Justice Leeming said the Cunneen Report was not in evidence, and that includes the letter.
MR HERZFELD: No, the letter was tendered separately.
STEWARD J: Separately, okay, thank you.
MR HERZFELD: But the Cunneen Report was not in evidence. What your Honours will then see in paragraph 214 is that ‑ ‑ ‑
EDELMAN J: Was it put in the Court of Appeal that the reference to the Cunneen Report by the primary judge was really intended to be a reference to the letter?
MR HERZFELD: I am not sure. I will check. What your Honours will see, though, in paragraph 214, is Justice Leeming seeking to deal substantively with the letter.
GORDON J: Well, he acknowledges that all that was tendered was the letter.
MR HERZFELD: Yes.
GORDON J: He says that in 213, in the second sentence.
MR HERZFELD: That is so. But then, at paragraph 214, he seeks to deal substantively with the letter. What he says is that it does not show what was said:
It seems reasonable to assume that –
the priest:
denied all wrongdoing.
That may be true, but it is not significant, for present purposes. What is significant is not whether the priest denied all wrongdoing or whether Bishop Toohey rejected the allegations or investigated them.
What is significant for our purposes is that the allegations were made, and the very making of those allegations must have given rise to knowledge that there was a risk that a priest might abuse children or, at the very least, that it ought to have done so. So, the criticisms that the Court of Appeal made at paragraph 214 are, with respect, not sound, and the same is so about 215. In paragraph 216, it is said, at the end of the paragraph:
Thus even if Bishop Toohey knew or believed or suspected that –
that priest:
preyed upon children, in 1969 he was no longer in the Diocese.
And again, that is a misfocus, because the relevant thing is what this complaint showed not about this priest in particular but about the risk generally posed by priests.
BEECH‑JONES J: The “he” is Father McAlinden, not Bishop Toohey?
MR HERZFELD: Yes.
BEECH‑JONES J: Right.
MR HERZFELD: The second matter to which we point about this Diocese in particular is the evidence of Mr McClung. Would your Honours, in the appellant’s book of further materials, volume 2, please turn to page 692. Before I start this, I can see the time, your Honour. Is that a convenient time?
GAGELER CJ: Yes, it is a convenient time, thank you. We will take the morning adjournment.
AT 11.14 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.29 AM:
MR HERZFELD: I am conscious of time. So, can I deal with Mr McClung’s evidence rather briefly. He gave evidence that in 1966 he had complained to the then‑parish priest, Father Doran, about being abused by Father Pickin himself. There was no challenge to that evidence – see appellant’s book of further materials volume 2, page 692 – and the evidence itself, which I am not going to go to in the interest of time, is at volume 1, page 354.
EDELMAN J: But where does that go? Because Father Doran is not a person to whom you can attribute any knowledge to the Diocese.
MR HERZFELD: That is the point that I now want to tackle.
EDELMAN J: All right.
MR HERZFELD: Your Honours ‑ ‑ ‑
GORDON J: Sorry, I am being slow, and I know you are short of time, but I do think it is important that you identify what you say is the evidence in its precise form.
MR HERZFELD: Yes. So, I will give your Honours the paragraphs to his affidavit which, as I say, is at volume 1, page 354. The relevant paragraphs are paragraphs 4, 6, 9 to 12 and then 14 to 16. Your Honours have seen Father Dillon’s evidence that a:
Parish Priest was the highest local authority for the members of the Catholic Church –
The Diocese of Maitland contained 57 parishes at the time. The evidence for that is at page 186. So, treating the Diocese a bit like a body corporate to whom knowledge may be attributed, it is in our submission unthinkable that the knowledge of those 57 parish priests would not be attributed. They are immediately hierarchically placed below the Bishop, and if their knowledge is not attributed, then it would seem that only the Bishop’s knowledge could count, and that is inconsistent with treating the Diocese as an incorporated institution.
Can we commend to your Honours the analysis in O’Connor v Comensoli [2022] VSC 313, at paragraphs 235 to 246, 282 and 289 to 295. If that attribution is correct, then in fact the Diocese here had knowledge of risk posed by Father Pickin himself. Can I show your Honours what the Court of Appeal said about this, at appeal book page 198. Your Honours will see at paragraph 229 that what was said was:
The knowledge of each and every priest is not taken t be the knowledge of the institution as a whole.
The institution there being the Roman Catholic Church, but that focuses on the wrong question, because what is here at issue is a much narrower question of attribution to the Diocese. In paragraph 230, it said that:
The plaintiff’s case turned on establishing knowledge by the Bishop or senior members of the Diocese.
That is not correct insofar as it suggests that attribution was not in play.
BEECH-JONES J: Mr Herzfeld, does this involve treating the organisation, for the purposes of the Civil Liability Act, as extending to the bishop and then the priest?
MR HERZFELD: There is two different ways of viewing it. If one is trying to identify individuals as part of the organisation, that is one. Probably the better way of viewing it is treating the organisation, for these purposes, as a separate legal entity separate from any of those individuals – a bit like a company – and then the question is: whose individual knowledge can be attributed to that company? Either approach is sufficient for our purposes.
GAGELER CJ: Who are the members of the unincorporated association?
MR HERZFELD: Well, there are not members, because it is not in truth an unincorporated association.
GORDON J: I will ask a different question. Who are the identified people within the organisation that you rely upon?
MR HERZFELD: I do not rely on any people within the organisation. I rely on the organisation as an entity, and I identify individuals with it in the same way that I can identify individuals with any other body corporate.
GORDON J: Sorry, if you just take a body corporate, I can say to you: please identify who are the individuals within that body corporate who I might attribute to, and I say, well, there is board of directors, there is directors, I can look at senior management; I can identify by their position or role. That is the question I am asking, rather than any legal formulation of it.
MR HERZFELD: I understand, and I would identify, at least, the Bishop and the parish priests.
GORDON J: Of the whole of the diocese.
MR HERZFELD: Of the diocese.
EDELMAN J: That is not the relevant defendant. The relevant defendant is this Diocese, so what you are doing is, for the purposes of attribution, including all of the priests in all of the dioceses.
MR HERZFELD: No, no. Only the priests of this Diocese. Father Doran was a priest of this Diocese.
GORDON J: Just to be clear, the organisation is the Diocese of Maitland‑Newcastle ‑ ‑ ‑
MR HERZFELD: Yes.
GORDON J: ‑ ‑ ‑ and the people within it that you identify are the Bishop of the Diocese of Maitland‑Newcastle, and then the parish priests within that Diocese.
MR HERZFELD: Yes. Although, as I said, I have resisted the need, given this statutory structure, to do that task, but yes.
STEWARD J: Can I ask you a question. I am sorry, Mr Herzfeld. I can understand how your reliance upon the Civil Liability Act would apply prospectively, but how does it apply to fact‑finding in 1969?
MR HERZFELD: Because the Act applies retrospectively. So, the Act requires us to treat the ‑ ‑ ‑
STEWARD J: I thought I read, in Justice Leeming’s judgment, it is prospective only.
MR HERZFELD: Different part of the Act. These provisions of the Act apply retrospectively.
STEWARD J: And we know that from?
MR HERZFELD: I will turn up the reference.
STEWARD J: Thank you for that. I am very grateful to you.
GLEESON J: Mr Herzfeld, what is the risk that you say was known on the basis of Father Doran’s knowledge?
MR HERZFELD: That Father Pickin himself might abuse children on church property.
GLEESON J: That is expressed at a very high level of generality, having regard to what Mr McClung says about his experience. In particular, the fact that he says that he did not feel like a naïve child at the time of the abuse.
MR HERZFELD: He was slightly older, but, in our submission, once those facts are known, the risk as I have articulated it was one that was in fact known to this Bishop.
GLEESON J: Child – anything from baby to 18.
MR HERZFELD: Yes, yes. Can I just deal quickly ‑ ‑ ‑
EDELMAN J: So, do we have any – this is obviously a very important question of attribution. I understand your submission to be that the 57 or so parish priests, their acts and knowledge are acts and knowledge of the Diocese, as well as, obviously, the Bishop.
MR HERZFELD: Yes.
EDELMAN J: Do we have any findings of fact or any evidence that you can take us to that establishes that hierarchical relationship, other than what you have already taken us to?
MR HERZFELD: There is some documentary evidence which lists people, but it does not do any more than the evidence that I have already taken your Honours to.
EDELMAN J: So, what is wrong then with 232?
MR HERZFELD: I was going to come to 232. The first thing that is wrong with 232 is that it is not correct that no submission of the kind was put. I will give your Honours the reference. It is the respondent’s book of further materials, page 114, paragraph 60. The second thing that is wrong is that it assumes there is no duty to communicate the complaint.
In the reference to O’Connor v Comensoli that I have given to your Honours, that topic is dealt with. Your Honour, the answer to your Honour Justice Steward’s question about the application of these provisions is section 45 ‑ ‑ ‑
STEWARD J: Thank you for that.
MR HERZFELD: ‑ ‑ ‑ of the Civil Liability Act.
GLEESON J: Just coming back – I am sorry – to my question about the level of generality, is the test nothing more than what is within the class of injury?
MR HERZFELD: Yes, and here, even at this very specific level, which is even more specific than I need, there is the attribution of knowledge of the risk of sexual assault by priests of children.
GORDON J: Of Father Pickin by children.
MR HERZFELD: If Father Doran’s evidence is – sorry, Father Doran’s knowledge is attributed. If that knowledge is not attributed, there is still other material pitched at the more general level that I have taken your Honours to.
GORDON J: So, the submission that is put is: I have taken you to the general evidence and the findings in relation to that, that is sufficient to my case; if that is not, then I rely further on the evidence of Father Doran to make good any – to improve the specificity of the risk.
MR HERZFELD: That is so.
STEWARD J: Mr Herzfeld, did you say 45?
MR HERZFELD: Yes.
STEWARD J: That might need to be checked.
MR HERZFELD: I think it is in schedule. I am so sorry. I think it is section 45 of the schedule to the Civil Liability Act.
STEWARD J: Thank you for that clarification.
MR HERZFELD: I am so sorry.
STEWARD J: Not at all.
MR HERZFELD: Can I just finally, on ordinary duty of care, say this. It is not an answer for the respondent to say that Father Pickin’s particular conduct – that is, supplying cigarettes and alcohol to children and sexually abusing them – was utterly out of order for what a priest could properly be doing on the premises of the presbytery.
That approaches the question of duty of care with too narrow a focus. The fact that a surgeon conducts surgery in a grossly negligent manner does not deny that the surgeon owed a duty of care when performing that surgery. Indeed, that is likely to be evidence of a breach of duty of care. It is the more general circumstances which call forth the duty, not the particular way in which the wrongdoer breached it on a particular occasion, that is relevant.
MR HERZFELD: Can I then turn to non‑delegable duty, and can I hand up – I understand your Honours have now been ‑ ‑ ‑
GAGELER CJ: We have your note, yes, your one‑page note.
MR HERZFELD: Yes, thank you. So, just focusing on that, and can I frame that as a non‑delegable duty, it is: did the Diocese owe a duty to ensure that reasonable care was taken to avoid reasonably foreseeable physical injury to children invited onto Diocesan premises caused by the conduct of Diocesan priests of those premises?
That non-delegable duty was pleaded, and it was put in issue in the list of issues document, but of course was not the subject of a great deal of attention because, at the time of the trial, intermediate appellate authority accepted that vicarious liability was available. The respondent suggests a couple of times in the disputed facts documents that if we had focused more squarely on non‑delegable duty, their evidence might have been different.
That should not be accepted for two reasons. The first is that the respondent could not have known, until closing submissions, whether the appellant would focus on non‑delegable duty or not, because non‑delegable duty was pleaded and identified by the parties as an issue. That document identifying the list of issues was not handed up until the third day of trial, after the close of evidence.
Secondly, and in any event, in this case, all of the factors relevant to a non‑delegable duty were the same as those which were relevant to the question of an ordinary duty of care or vicarious liability. So, the suggestion that there may have been some different evidence advanced by the respondent, which was relevant only to non‑delegable duty but not to the cases, was ultimately more fully pressed, is just not a credible one.
GAGELER CJ: Why do you confine a non‑delegable duty to the conduct of priests at the premises?
MR HERZFELD: Because that is all I need. It would be possible to frame it more broadly, but all I need in this case is that. We are also conscious of comments, again, that have been made about the need for reasonably precise framing in a duty, particularly of a non‑delegable time.
GAGELER CJ: On your case, the priests are part of the organisation that is to be treated as an entity for this purpose. So, it is a very odd non‑delegable duty, I think.
MR HERZFELD: Well, if I was dealing with the conduct of the priest at a school, for example, during one of the lessons, this would not be sufficient. For the present purposes, it is sufficient. It is sufficient because I am identifying something squarely within the conduct of the hypothesised organisation. That is, engaging with children, in particular, at Diocesan premises.
EDELMAN J: So, why would it not be sufficient if the Diocese sends a priest out into a school and the abuse occurs in the school?
MR HERZFELD: It may be. It just creates a matter which is not part of this case and has less of a degree of control by the Diocese, and I am aiming at the point that I need to be.
GORDON J: So, could we just take the school example.
MR HERZFELD: Yes.
GORDON J: For the non‑delegable duty there are – as is explained in Bird at [37] – in effect, two requirements. There is the entrusting by the parent of the child to the school and then the adoption by the school of the care giving rise to a duty to ensure that care is taken.
MR HERZFELD: Yes.
GORDON J: What happens here, you adopt both – you do not dispute those elements?
MR HERZFELD: No.
GORDON J: And what happens here in the application of both those elements in terms of the facts and where you say you get to?
MR HERZFELD: Yes, the Diocese had determined to engage upon an educational ministry directed to children. It had decided to do so via priests, to whom it had delegated that task. As an aspect of that, subject to the control of the Bishop, parish priests were permitted to hold events as they saw fit, including children at Diocesan property – namely, presbyteries at which they lived – and the Bishop retained control of all of the priests of the Diocese and the Diocesan property. That, at a punchy level – if I can put it that way – is the highlights of the material that I have taken your Honours through, which we rely on as the analogy to a school case.
GORDON J: Where is the entrusting by the parent of the child to the Diocese?
MR HERZFELD: That is obviously a particular feature with schools, but is not an essential feature of a duty of care which is owed to children. In fact, there is – as I mentioned in one of the particular features of a duty of care – evidence which shows how parents, particularly Catholic parents, did do that. This is not a case where there is any formal entrusting by enrolling your child in a school.
GLEESON J: Mr Herzfeld, in the duty of care that you have formulated, you have used:
invited onto Diocesan premises –
So, you have used the passive voice. You are not saying that the children were invited onto the premises by the Diocese.
MR HERZFELD: Well, I said “invited” in the sense of invited by someone that the Diocese authorised to do that; in this case, the parish priest. Just to go back to your Honour Justice Gordon, there is obviously not the same degree of formal enrolment by a parent of their child in a school.
GORDON J: I do not suggest you need a formal enrolment. There has to be some, I think, entrusting of the child by the parent. It may be that you have facts which identify it informally.
MR HERZFELD: The only facts which identify it informally are, one, the facts here that the children went, and the parents believed they were going to – the plaintiff said that he had been going to religious class, or scripture class, or something like that. The more general point about the duty is only the one about societal attitudes to priests and the educational ministry that the Diocese had set itself on.
BEECH-JONES J: Is there an entrustment by the school? The school had – leaving aside whether it had any liability, the parents entrust to the school, the school then entrusts part of, effectively, its function to the priest.
MR HERZFELD: In that exercise, and that formed part of a broader educational ministry by the Church. There was also, of course, the aspect that Church teaching would have required Catholic parents, at any rate, to trust priests, but I have made clear that this is not suggestive that the duty is limited to Catholic children.
BEECH-JONES J: So that if a school was to entrust some part of its function – say, a group of courses or PE – to an organisation who then accepted that entrustment. Sure, the school might have a non‑delegable duty, but you would say the receiving organisation may have one, as well.
MR HERZFELD: Yes.
BEECH-JONES J: Is that the kind of analogy we are in?
MR HERZFELD: It is, but I do not want to put too much emphasis only on the school communion classes ‑ ‑ ‑
BEECH-JONES J: I understand that.
MR HERZFELD: ‑ ‑ ‑ because the ministry here included that but was not limited to that.
GLEESON J: You have to be very precise, or at least sufficiently precise, about what the task is that is delegated by the Diocese and entrusted by the plaintiff or the parents.
MR HERZFELD: Yes, and I identified in my answer to Justice Gordon what the high points of that is.
GORDON J: We know from the past cases – we have been told so much of it depends on a really close scrutiny of the facts – a whole range of past authorities in relation to this issue. So, to pick up on the question you were asked by Justice Gleeson in response to me, at a general level – and I am not saying this is this case – one can have intimacy and control in relation to a vulnerable child which one could see in relation to a pastoral relationship between a particular person and a Diocese in the context of the people you identified, giving rise, in the circumstances, to some form of entrusting of care. One could identify particular facts.
So, I want to be abundantly clear what you say are your facts that give rise to that kind of analysis, and if it is not that analysis, what is it? You may want to take it on notice, Mr Herzfeld.
MR HERZFELD: I can. I am also conscious that I am in the next 10 minutes going to tell your Honours that Lepore was wrongly decided. So, I want to leave a bit of time to do that. I will see if I can do better than that afterwards.
GORDON J: Thank you.
MR HERZFELD: Can I come to that point, because we obviously, despite everything else for a non‑delegable duty of care, also need to succeed on the point on which we failed in the Court of Appeal, which was whether a non‑delegable duty can be breached, if I can put it that way, by intentionally wrongful conduct.
GAGELER CJ: By?
MR HERZFELD: Intentionally wrongful conduct.
GAGELER CJ: By whom?
MR HERZFELD: By the delegate.
GAGELER CJ: By the delegate.
MR HERZFELD: Yes.
EDELMAN J: Why do you need to establish that? Why do you need to say that Lepore is wrong? Lepore was argued on the basis that an intentional tort itself was something that gave rise to this so‑called non‑delegable duty. It was not argued on the basis that a non‑delegable duty is a duty for which one party has assumed a responsibility – independently of whether or not the tort is intentional or not – to ensure that care is taken.
MR HERZFELD: Yes. That is how we put it. It did seem to us that, at least the way that it was reasoned in Lepore, it would stand against that, and so let me deal with that. Can I make, firstly, my submissions about matters of principles and then a restraint about overruling.
As to matters of principle, there are authorities prior to Lepore in which a non‑delegable duty has been breached by reason of intentional and unlawful conduct of the delegate. One, which your Honours noted in Bird v DP at paragraph [52], is Morris v C W Martin & Sons. That is the case about the furrier who gave the fur for cleaning to a cleaner, the employee of the cleaner made off with it, and the plaintiff sued the cleaner.
That was analysed by the Master of the Rolls as a non‑delegable duty case, and that is the better analysis of it, as this Court noted in Bird. The Supreme Court of the United Kingdom took the same view of it, or at least that it was a possible view of it, in Woodland at paragraph 7. There is actually a second case to which we will draw attention mentioned in the reasons of this Court in Burnie Port Authority 179 CLR 520. Would your Honours take that up, please.
BEECH-JONES J: What volume, Mr Herzfeld?
MR HERZFELD: Volume 3, tab 13. If your Honours turn to page 551 of the CLR print, their Honours were there discussing the rule in Rylands v Fletcher – so, the dangerous activity cases – and assimilating that within the ordinary law of negligence, in particular so as to give rise to a non‑delegable duty of care.
If your Honours turn to page 553, their Honours refer to a previous decision of this Court, McInnes v Wardle. What your Honours will see is that what occurred there was that the delegate started a fire, even though it was unlawful and dangerous activity. It was done for a good reason – that is, clearing the property – but it was nonetheless an intentional act done which was unlawful, and that was nonetheless said to give rise to a breach of the rule in Rylands v Fletcher, now understood as breach of a non‑delegable duty of care. So, previous authorities do not stand for the proposition that one cannot have a breach of a non‑delegable duty of care for intentional tort.
Could your Honours then take up Lepore 212 CLR 511 itself. That is volume 4, tab 24. Can we start with the dissenting reasons of Justice McHugh on page 572 of the CLR print. Your Honours will see on page 572, at the end of paragraph 161, his Honour correctly identified Morris v C W Martin & Sons as an example. In paragraph 162, his Honour correctly explained that prior to the abolition of the forms of action, a plaintiff could frame a cause of action either as a trespass or an action on the case depending on whether the plaintiff alleged intention.
It was not about the facts, it was about the allegations – of course that being essential in the era of the forms of action – but his Honour then went on to observe that after their abolition, there is no reason why you cannot:
sue in negligence for the intentional infliction of harm.
And his Honour gave as an example, in footnote (248), the decision of this Court in Gray v Motor Accident Commission. That case was, of course, about exemplary damages, but there was no suggestion that there was anything defective about the framing of the negligence claim, even though what it involved was deliberate running down by a car of one person by another – which in fact led to a criminal prosecution.
GORDON J: The point being that, as I understand what Justice McHugh was saying is, it was sort of illogical that you could have breach of duty for a negligent breach but not for gross or flagrant breach.
MR HERZFELD: That is so, and I will come back to that point, but in terms of authority, what his Honour said was correct. His Honour then, at paragraph 164, particularly over the page, identified that to subject educational authorities to a non‑delegable duty of care, even extending to intentional torts, did not mean that educational authorities were helpless to take preventative actions. Your Honours will see what his Honour said about it.
The reasons of the majority – in the interest of time, can we point to five significant errors in those reasons, and I will give your Honours the references to the paragraphs without actually going through them. Firstly, the majority seem to think there was a conceptual problem with saying there was a breach of a non‑delegable duty of care by the school in the case of an intentional wrongdoing by the teacher. The references are particularly apparent in the reasons of Chief Justice Gleeson, with whom Justice Callinan agreed at paragraph 31.
That, as your Honour Justice Edelman raised with me, really fails to recognise that the duty is a personal duty to the school to ensure that reasonable care is taken for the student. The school fails in that duty whether the conduct of the teacher is well intentioned or negligent just as much as if the conduct of the teacher is intentional. In terms of the duty‑holder – the school – the quality of the failure is the same. That is, that the school has failed to ensure that reasonable care was taken for the student. There is no conceptual problem.
EDELMAN J: That is three members of the majority. The other two members – this is not said against you, but the other two members, Justices Gummow and Hayne, are more equivocal on this point.
MR HERZFELD: On this particular point, there is not a conceptual problem. That is why I identified only Chief Justice Gleeson and Justice Callinan. That is the first problem. The second problem is that at least Justices Gummow and Hayne seem to take the view that one could not plead as a negligence case intentional wrongdoing. Their Honours said that at paragraph 270.
Now, even if that point is correct, it is an irrelevance for the reason I have just given. It is just not material whether one could bring a negligence claim against the teacher in this example. In any event, the reasons are not correct, as Justice McHugh explained. As for Williams v Milotin, which Justice McHugh referred to, that was a pleading point. It was not a substantive point because the Court was referring to a time prior to the abolition of the forms of action, because that is what the South Australian statute in question required.
EDELMAN J: Well, there is an ambiguity here, and it may be, on one view, that Justices Gummow and Hayne are not saying anything different on this point from Justice McHugh. The ambiguity is that prior to the abolition of the forms of action, what one might have thought of as negligence may not have included the notion of an assumption of responsibility. That concept was much more closely related to general assumpsit and promises.
MR HERZFELD: Yes, that is so, and we would love to embrace that reading, but at paragraph 270, Justices Gummow and Hayne do also say:
but the intentional infliction of harm cannot be pleaded as negligence.
And they cite a New Zealand case, Cousins v Wilson. That was not a form of action case, but it also does not stand for the proposition for which their Honours apparently cited it. That was a case where a trespass claim failed because the plaintiffs did not have possession of the land in question, and all that the High Court of New Zealand said was there is no duty of care which could be recognised in those circumstances, not because it was an intentional infliction of harm case but just because it was not a case involving salient features which gave rise to a duty of care. The third point ‑ ‑ ‑
EDELMAN J: Sorry to labour this, but I am not sure that is necessarily what they are saying. It is that when one talks about pleading something as negligence, to plead a non‑delegable duty is not comfortably described as a pleading of negligence. In other words, as I mentioned to you earlier, it does not matter whether it is negligent or not, it is an assumed duty to ensure that care is taken.
MR HERZFELD: And that is why I said the question of whether one could plead a negligence claim against the delegate is actually an irrelevance. It is my first answer to this point. The third point is the majorities considered that acceptance of liability for intentional wrongdoing was not necessary to achieving the policy objects of compensation or deterrence – see paragraphs 36 and 267 – but those objectives do not really explain non‑delegable duty per se.
It is incoherent to rely on them as a basis for limiting non‑delegable duty cases to exclude intentional wrongdoing. There is a related difficulty that Justices Gummow and Hayne seem to say, well, it is terribly unfair – at paragraph 267 – because the State has not engaged in any negligence, but that is so for any non-delegable duty case.
GORDON J: You would say, in relation to that, that that proceeds from a misunderstanding of the strict nature of liability under non‑delegable duty and that you do not have to establish negligence on the part of the duty‑holder.
MR HERZFELD: Precisely, whether the delegate was intentionally negligent – intentional wrongdoing or negligent. The fourth point is that the majority seemed to consider that if non‑delegable duty extended to intentional wrongdoing, it would out‑flank vicarious liability – you see that, particularly, at paragraph 269 – but to some degree, that could be said of any non‑delegable duty.
Even accepting that a non‑delegable duty cannot be breached by intentional conduct, there will be some cases where a non‑delegable duty claim succeeds, even though a vicarious liability claim would fail. In others both might succeed and in others both will fail. That is just a feature of the fact that there is a different legal doctrine which is not coincident with vicarious liability.
BEECH-JONES J: If your teacher was a contractor, you would probably be stuck with non‑delegable duty, would you not?
MR HERZFELD: Yes, but that might succeed where vicarious liability fails; it is not a problem. The fifth point is that it was said by the majority that recognising a non‑delegable duty for intentional wrongdoing would amount to an absolute duty to protect every student against any kind of harm. See particularly the reasons of Chief Justice Gleeson at paragraph 32, and the reasons of Justices Gummow and Hayne at 262 to 263.
Now, that fails to recognise that even a non‑delegable duty is not a duty of unlimited scope. Its scope is confined to the task or relationship which generates and that will be so ‑ ‑ ‑
GORDON J: And the entrusting.
MR HERZFELD: Yes, but my point here is just, however you generate it, it will be limited to the scope that has been identified. So, to take a case which is not about entrusting – for example, the non‑delegable duty of adjoining landholders – that is a non‑delegable duty which applies when one is doing work threatening support to common walls. It is not a non‑delegable duty that applies when you walk out your front door walking your dog. So, this ‑ ‑ ‑
GORDON J: So, your short point is it is not dealing with a trespasser, it is dealing with a person who has had the task delegated to them.
MR HERZFELD: And there may a whole series of other things it is not dealing with, as well. The point being that whether it covers intentional torts or not is not something that leads to an absolute duty in all cases.
BEECH-JONES J: If the priest – in this case, there had been a sexual assault of your client by the priest somewhere other than the presbytery or the school, is that the territory we would be in?
MR HERZFELD: Yes. So, it would depend on where, but – conceptually – yes. Can we make two other brief points. First, the decision of the majority in Lepore produces perverse results. It produces a perverse incentive on the part of the defendant to allege the wrongdoers conduct was intentional, and on the part of the plaintiff to say it was merely negligent.
More seriously than that, as the Supreme Court of the United Kingdom in Armes identified – I will just give your Honours the reference in paragraph 51 – it has the consequence that if you have a non‑delegable duty owed by someone, they can only breach it by acting negligently, but if they negligently entrust, say, a child to a third party, who intentionally abuses that child, then the delegate can nonetheless be liable for breach of non‑delegable duty.
GORDON J: Is that the passage where Lord Reid says:
That can hardly be right.
MR HERZFELD: It is, it is paragraph 51. The Court of Appeal really did not engage with these issues because they could not. Their real point only was that non‑delegable duty is academically controversial. That may be so, but while it is part of our law, it should be principled. If it is principled, it extends to intentional torts.
The other point the Court of Appeal made was about section 6F of the Civil Liability Act, which is the last point that I want to make. Would your Honours take up section 6F, please. Your Honours will see that it imposes a duty of care, and the content of the duty is for an organisation responsible for a child to:
take reasonable precautions to prevent an individual associated with the organisation from perpetrating child abuse –
And then there is a defence in subsection (3), if:
the organisation establishes that it took reasonable precautions –
This statute does not cover the field. Your Honours will see that there are definitions in section 6D and 6E which limit its ambit. What is even more limited is that, of course, it says only about:
Organisations that are responsible for a child –
it is not about non‑delegable duties generally. So, this section creates a new liability with its own defence in a particular and limited field. It is true that a school authority might be liable under both section 6F and the common law, even as the common law stands now.
There is no problem with that, you might succeed on one and fail on the other, but it does not freeze the possibility of the development of the law relating to non‑delegable duty, either in this field of care for children or more generally. It just produces a new cause of action which may be different from the common law in a particular field.
JAGOT J: It is prospective only, is it not?
MR HERZFELD: It is.
JAGOT J: From the date of the Act.
MR HERZFELD: Yes – 2018, I think is the date.
JAGOT J: Yes.
GAGELER CJ: So, you are saying this is simply cumulative upon the common law.
MR HERZFELD: Yes, and if Parliament had wanted it to be exhaustive, it could have said so, but it did not.
BEECH-JONES J: Mr Herzfeld, subsection (2) in the case of, let us say, a school, how would that be different, if at all, to a non‑delegable duty owed by a school if Lepore was overturned? It would simply correct, in your terms, Lepore, would it not?
MR HERZFELD: Yes.
BEECH-JONES J: Then (3) is a presumption – is an evidentiary effect.
MR HERZFELD: It is, but it does give a defence to this statutory cause of action which would not be available to a non‑delegable duty claim. But that is so already. Your Honours, I have left Mr McComish slightly less time than I think I had promised, but it is now his opportunity to address the notice of contention.
GORDON J: Mr Herzfeld, before you sit down – and I know you have not responded to my question – I think it would be useful, or I would find it useful, if you could prepare and provide us with just a list of the things that you would want to say in response to my question.
MR HERZFELD: Yes. If it is not already something that I can point to in our written material, we will do that.
GORDON J: Thank you.
GAGELER CJ: Mr McComish.
MR McCOMISH: Thank you, your Honours. I can be as brief as possible. There are two matters in relation to the notice of contention which, in my submission can be cleared away fairly quickly. The first is the faint contention in ground 1 that the Court of Appeal did itself reach a final conclusion that the appellant had not been sexually assaulted as was found.
In my submission, that is unsustainable precisely because of the language of Chief Justice Bell in paragraphs 13, 14 to 16, and Justice Leeming was equally explicit in paragraphs 153 to 154 of the Court of Appeal. Namely, that neither of their Honours reached a positive final conclusion to the contrary of the primary judge.
That is, of course, why item 11 in the respondent’s disputed facts document is the fact of whether the appellant was abused as was found at trial. I will, of course, come to develop why this Court should not itself make such a finding.
BEECH‑JONES J: But did they set aside her Honour’s finding, or did they just leave it hanging, at it were?
MR McCOMISH: Your Honour, it was expressly left hanging precisely because of the express finding by both of their Honours that the case was to be decided on the non‑existence of the relevant duties and therefore, their Honours never came to a point of conducting what they identified as a real review to decide for themselves whether the finding was to be sustained – they never got to that point.
BEECH‑JONES J: In Chief Justice Bell’s page 127 of the book, paragraph 16, in the third line, his Honour refers to the “success of that challenge”. What success is his Honour referring to?
MR McCOMISH: With respect, it is difficult to see. The challenge might be viewed as being an identification of something problematic put by the respondent in the process of fact‑finding, as distinct from a challenge to the finding made as a result of that process. But precisely because his Honour the Chief Justice is referring to Justice Leeming, and Justice Leeming, in return, is explicit at paragraphs 153 and 154 that he did not need to go to make such a finding ‑ ‑ ‑
GORDON J: That is what the last sentence of 16 says ‑ ‑ ‑
MR McCOMISH: Correct.
GORDON J: But where the Chief Justice says it is not only there is success:
which vitiated the primary judge’s findings in this regard.
What does that mean?
MR McCOMISH: That is difficult to understand, your Honour, because – and I need to develop this – the challenge in the court below was explicitly to the fact that abuse occurred. It was not a process‑based challenge, or an inadequacy of reasons challenge, and therefore, when one comes to the question of whether the finding was vitiated, that must surely mean a positive finding that the fact was wrong or some different fact was to be found, and their Honours in the majority never got to that point.
In my submission, the very circumstance with which I am discussing with your Honours is now manifest in this Court. I do not blame my opponents for this, but there are 19 express disputes now raised – your Honours will note in the disputed facts document of 1 August, there is an item 12A, so you get to 19 expressly raised facts because of the fatal ambiguity in the passages I am just discussing, plus 67 other findings, the status of which is now sought to be commented upon in the document of 5 August.
Can I say, then the second matter that in my submission can be disposed of quickly is the suggestion that there ought to be remitter of these matters to the lower courts. Given the circumstances known to this Court about why the matter has been expedited, in my submission, any further delay caused by remitter is much to be avoided if possible. That then leaves, of course, the substance of the contention raised in ground 2, in circumstances, of course, where the Court of Appeal declined to determine those issues, namely, the credit-based finding of whether the appellant was abused as he claimed and was found by the primary judge; second, the finding of the primary judge about breach; and third, of course, the finding of the primary judge about causation.
Can I turn to the first of those, the occurrence of the abuse. It is important to recall, as Justice Ball drew attention to in the Court of Appeal, what was agreed or found and what remains undisputed in this Court. Rather than recite those matters, can I draw the Court’s attention in the status of facts document to items – and your Honours will say there are a lot of them – 6, 16, 18, 20, 25, 37 to 40, 50, 53 and 58.
In essence, those are the matters engaging what Justice Ball in dissent in the Court of Appeal pointed to, namely, the undisputed engagement between the appellant, Mr Perry, Father Pickin, the circumstances of them being at the presbytery together, and the circumstances of them being students of religious instructions at the hands of Father Pickin. It is particularly important to remember in that context that Mr Perry’s statement was not made until after the appellant had already pleaded his claim, made two evidentiary statements, and been cross-examined upon them.
And critically, Mr Perry’s evidence corroborated many of the most surprising and disturbing aspects of the appellant’s case, particularly, of course, their attendance at the presbytery, the fact that they were plied with beer and cigarettes, the fact – rather unexpectedly – that Father Pickin had a poker machine in the dressing room of the presbytery, that he made it available to the boys to play, that the boys were invited to go on holidays with him, for example.
Pausing there. Even if nothing else were known about Father Pickin’s tendencies, it is hard – as Justice Ball pointed out – to see any wholesome reason that Father Pickin could have had for plying boys with alcohol and tobacco, or using the gambling machine as an allurement.
Turning then to the respects in which Mr Perry’s account differed, it must be recalled that it was never put to Mr Perry that he was a victim of abuse, nor that he ever saw the abuse of the appellant – that was never the appellant’s case – and he was never said to have been an eyewitness in that case. His evidence was he could not recall the layout of the presbytery; he could not recall how many times they visited, nor the precise timing of those occasions.
His denial that he ever left the appellant alone was specifically about his denial, accepted by the primary judge – I do not dispute that – that he was never physically absent from the presbytery because he had been sent away to the shops. But he could not say that he ever saw that the appellant was ever in the bedroom or playing the poker machine, and he sensibly conceded that he could not say definitively whether the appellant might have been in a different part of the presbytery where he, Mr Perry, was not present. One sees that in the appellant’s book of further materials, volume 2 – it is the transcript, page 638 to 639.
In those circumstances, even if accepted in full, Mr Perry’s evidence fell far short of evidence that made the acceptance of the appellant’s account impossible or incontrovertibly wrong. As I have said the respondent Diocese’s challenge in the Court of Appeal was expressly a frank challenge to the finding that the abuse occurred. It was not put on the basis of inadequacy of reasons, and it was squarely put both at trial and in the Court of Appeal that the appellant had lied.
It was not put that he was mistaken or of unreliable memory about the occurrence of the abuse, but Justice Leeming did not decide matters on that basis. In paragraph 154, Justice Leeming pointed to four matters to cast doubt on the primary judge’s finding. That was said to be, in paragraph 154:
the suggestion by the primary judge that the removal of limitation periods affected the evaluation of evidence –
what was said to be a:
failure explicitly to have regard to all of the inconsistencies in the plaintiff’s account –
what was said to be an error in describing the appellant’s:
account as “vivid” –
relying, importantly only on the video recorded aspect of his evidence taken on commission; and, finally, what was said to be the impossibility of excluding:
the possibility that the plaintiff was recounting a sincerely held but erroneous belief –
arising from the passage of time, his ill health, and what was said to be his sustained substance abuse.
GORDON J: I am sorry, could you just tell me what paragraph you are reading from?
MR McCOMISH: Paragraph 154 of Justice Leeming’s judgment of the Court of Appeal. It is the matters enumerated (a) to (d) within that paragraph.
STEWARD J: I think I have a different ‑ ‑ ‑
GORDON J: We have a different version.
STEWARD J: Are you thinking of 138?
GORDON J: I think so.
MR McCOMISH: I do beg your Honours’ pardon, it is paragraph 152. I am sorry, your Honours.
STEWARD J: Paragraph 152, okay.
MR HERZFELD: Paragraph 152.
STEWARD J: I have that.
GORDON J: I see, thank you.
MR McCOMISH: I do beg your Honours’ pardon. Your Honours will see what I have just listed are the enumerated subclauses (a) to (d). Taking that last matter – which seems to have been the most of concern to Justice Leeming – the failure to exclude the possibility of a mistaken memory. As I have said, that was not the way the trial was conducted by the respondent Diocese.
In my submission – as Justice Ball points out – it was hardly a matter of which judicial notice could be taken and certainly not in the absence of procedural fairness to the appellant by having the point taken at trial. One might have thought, as Justice Ball did, that if the topic were relevant and formed part of the Diocese’s case, it would have been canvassed in Dr Apler’s expert psychiatric report, but it was not. That is, of course, the force of the point made by Justice Ball in paragraph 268.
BEECH-JONES J: Sorry, what is the error in the primary judge relying on the plaintiff’s account as “vivid”?
MR McCOMISH: In my submission, it is not clear.
BEECH-JONES J: The primary judge had the – the plaintiff came in and gave some additional oral evidence in court, is that right?
MR McCOMISH: That is so, on the second day of the trial – which was not video recorded – on which he was cross‑examined precisely on the occurrence of the abuse. He maintained his account, and that was not available to be viewed by the Court of Appeal in the video form. Justice Leeming was mistaken in saying he had seen, in the form available to the trial judge, the whole of the evidence relevant to the credibility of the appellant’s account.
JAGOT J: Are you saying he did not see the same recording as her Honour?
MR McCOMISH: He saw the same recording, but only part of the appellant’s evidence was recorded, and Justice Leeming was mistaken to think he was not examined upon the occurrence of the abuse on the second occasion. The reason I would ‑ ‑ ‑
GORDON J: But your point is that AA gave additional evidence on the second day of trial, which is the subject of a transcript only.
MR McCOMISH: Correct.
GORDON J: And that is not referred to in paragraph 152.
MR McCOMISH: No, it is not. It is as simple as that, your Honours.
BEECH-JONES J: In other words, the primary judge had some advantages that Justice Leeming did not.
MR McCOMISH: Correct. There is the error of fact about what was before the Court of Appeal. There is an error or principle, because the Court of Appeal was squarely in Fox v Percy territory, a credibility-based assessment in which the atmosphere of trial and the totality of the evidence was in issue and was not referred to by the Court of Appeal. But there is, thirdly, an error of interpretation – and this might come to the point, I think, raised by Justice Beech‑Jones – “vivid” means life‑like, powerful, clear, and the appellant undoubtedly used graphic, clear language to describe what he experienced at the hands of Father Pickin.
Now, in my submission, the judge’s characterisation of that evidence as vivid – memorable, powerful, lifelike – was aptly contrasted by her Honour to the situation of Mr Perry – again, remembering – who was never said to have been the victim of abuse, who never experienced any memorably traumatic event, who had no particular reason to remember anything untoward that happened to the appellant, who was out of sight at the critical moments. That seems to the force of her Honour’s use of that language.
JAGOT J: I was just going to say, even if an appellate judge is unable to perceive some things that a trial judge – which is a matter of such a subjective ‑ ‑ ‑
MR McCOMISH: Yes.
JAGOT J: As I said, I am just not sure where that feeds into the error by the primary judge anyway.
MR McCOMISH: Exactly.
JAGOT J: The fact that I cannot perceive something as vivid is neither here nor there.
MR McCOMISH: That is exactly so, and that is the Fox v Percy error of principle. One cannot simply say: perhaps I would not have believed him. In the absence of other incontrovertible evidence or glaringly improbable, or contrary to compelling inferences – all of the usual things plus other reasons that a decision might be vitiated such as a denial of procedural fairness or legal error, whatever it might be.
GORDON J: So, your point is, if you take 152, you are left with – and one takes out this reliance upon (c) and (d) ‑ ‑ ‑
MR McCOMISH: Yes.
GORDON J: Do we need to address (a) and (b)?
MR McCOMISH: Yes, because each of them are equally erroneous. Now, if your Honour got to the point of accepting what I have said about what are plainly the most material aspects, namely, an issue about memory that was never in issue at trial, an issue about vividness which shows a defect in the appellate review of the evidence at trial, it might very well be that (a) and (b) are simply makeweights.
But my submission is, first, point (a) – which is a reference to what this Court decided in GLJ and then subsequent to the judgment reaffirmed and re-expressed in Willmot – was, in my submission, not a matter in which the primary judge erred. She appropriately identified all of the techniques by which evidence is to be assessed in cases of this kind.
That is, far distant in time to the moment at trial and, in my submission, was not to be criticised simply for saying that, by reason of this Court’s decision in GLJ, circumstances arose that had to be taken into account as a consequence of the lifting of the limitation periods. There was nothing objectionable, in my submission, about that. That is why, in my submission, point (a) is unsatisfactory on its own terms.
Point (b), of course, depends again on how the primary judge’s decision is to be characterised, and she of course expressly due attention to problems in the appellant’s evidence. They were evident. But it seems to be a requirement that every alleged inconsistency perceived by Justice Leeming had to be addressed individually and seriatim. And in my submission, that is not what the process of fact‑finding at trial or appellate review of such fact‑finding requires.
So, that is why, in my submission, Justice Leeming’s reasons for disturbing but not ultimately overruling or forming a different view than the primary judge’s conclusion on a credit‑based finding of fact ought not be interfered with by this Court.
STEWARD J: Mr McComish, can I ask you, at 137 of Justice Leeming’s reasons, his Honour says in the second sentence that:
The plaintiff was not cross‑examined on the sexual assaults when he was recalled at trial.
Is that wrong?
MR McCOMISH: That is wrong.
STEWARD J: Okay.
MR McCOMISH: That is simply wrong. He was indeed cross‑examined about that. Yes.
STEWARD J: And your point about 138, I think, in summary form, is that the trial judge was aware of all that but nonetheless it was open to the trial judge to accept his evidence.
MR McCOMISH: Yes, that is so.
STEWARD J: Yes, I see.
MR McCOMISH: Particularly in circumstances where the inconsistencies of those accounts perceived by Justice Leeming were, for the reasons identified by Justice Ball and for the reasons of the agreed facts even in this Court, to which I have drawn to your Honours’ attention, were not material. This was not a case where there was any doubt that this man was in the presbytery with that priest in those circumstances. That went a long way toward the finding.
Can I turn then to breach. I am sorry. I apologise to my learned friend. That being the case, I rely upon my written submissions. If anything arises, I will deal with it in reply.
As the Court pleases.
GAGELER CJ: Thank you. Mr Gleeson.
MR GLEESON: Your Honours, our first proposition concerns a matter which may now be common ground, by reason of what happened this morning. We pointed out in writing at paragraph 12, by reference to authority of this Court, that unless an ordinary duty of care is owed, there can be no question of the duty being non‑delegable.
We understand that now to be common ground. The authorities that we have given you are firstly Hollis v Vabu 207 CLR 21, which is in volume 3, tab 17, at paragraph 27, in the first two sentences. The point is explained at some length and correctly by Justice Giles in the New South Wales Court of Appeal in Elliott v Bickerstaff, which is in volume 6, tab 39, at paragraph 82, including discussing Chief Justice Brennan’s statement in Northern Sandblasting v Harris to that effect and, importantly, Justice Giles correctly concluded that paragraph by saying that:
the anterior question –
is:
what is the scope of the duty of care already owed.
If there is no duty of care, there can be no non‑delegable duty of care:
And it follows that the care which the defendant must ensure that the third party exercises can not be greater in scope than would have been required of the defendant if the defendant had been fulfilling the duty of care.
For that reason, we will start, as the appellant has this morning, with the ordinary duty of care. Our starting point is to take up some observations of the Court this morning, consistently with a matter which your Honour Justice Jagot raised in Bird, around paragraphs [255] to [256] in relation to the non‑delegable duty, but it is critical to define with precision a number of aspects of the duty.
Could we take your Honours to Brookfield Multiplex 254 CLR 185, which is in our supplementary materials, case 1, at paragraph 19, where Chief Justice French is picking up what the Court said in Sullivan v Moody. And, perhaps, more clearly, what your Honour the Chief Justice said at paragraph 169, that the:
duty of care at common law is a duty of a specified person, or a person within a specified class, to exercise reasonable care within a specified area of responsibility to avoid specified loss to another specified person, or to a person within another specified class.
If one applies that test firstly to the pleading and to the duty that has been found, and then secondly to this morning’s reformulated duty, your Honours can observe these points. The pleaded duty is at page 10 of the appellant’s further materials, and it suffered a number of defects. Under that duty, the duty‑ower is the Diocese. The persons to whom the duty are owed are the plaintiff in a capacity said to be:
as a child in the care of one of –
the priests of the Diocese, and then it is:
a duty of care to take reasonable care to avoid the plaintiff suffering foreseeable and not insignificant harm –
So, the most obvious defect with that pleaded duty is that there is no identification of the kind of harm which is the subject of the duty and there is also no clear identification of what is the area of responsibility within which the duty is owed, save for the reference to:
child in the care of one of its priests –
None of those problems are solved by paragraphs 34 or 35, and in turn, those problems flow through to the issue your Honour Justice Edelman raised about the pleading of this as a non‑delegable duty, because while 34 asserts that the 33 duty was non‑delegable, it does not frame it as a duty to ensure that reasonable care was taken in any identified respect, and if your Honours come to paragraphs 36, that is about:
content of the Duty –
paragraph 37 is about:
content of the Duty –
and 38 is about what:
A reasonable person in the position of the Diocese would have –
done by way of “reasonable precautions”, and there is nothing alleged about what the delegate did by way of an alleged failure of reasonable care which could have resulted in the Diocese being in breach of a non‑delegable duty.
BEECH-JONES J: Well, apart from sexually assault the plaintiff. That was the breach.
MR GLEESON: I am sorry, your Honour?
BEECH-JONES J: On the non‑delegable case, the breach was sexually assaulting the plaintiff.
MR GLEESON: That is one of the problems, because a non‑delegable duty is a duty to ensure that reasonable care is taken to avoid an identified harm. Now, you cannot collapse that into saying a duty to ensure that no sexual assault occurred, because then you make the very error that Chief Justice Gleeson pointed out in Lepore, that you have turned it into a duty to achieve a result that no sexual assault occurs.
BEECH-JONES J: I understand you are talking about scope, but you said there was no relevant breach, and I thought, in the area of non‑delegable duty, the breach is the very act we are talking about.
MR GLEESON: Your Honours, that is one of the fundamental problems that has not been addressed this morning about the Civil Liability Act. I will mention the point now, but develop it this afternoon. One of the critical features of the original Civil Liability Act, Part 1A, which was introduced in 2002, was that it sharpened any doubt there may have been about the distinction between intentional wrongs and negligence. The whole of Part 1A is about negligence; “negligence” is defined in section 5 as:
failure to exercise reasonable care and skill.
Perhaps I will ask your Honours to go to it now, but section 3B made perfectly clear that the Act does not apply to civil liability in certain areas, the first one, paragraph (a), being:
of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual –
assault. The whole Act does not apply other than Part 1B. Part 1B came in as part of the 2018 amendments. So, what was there from 2002 was the sharp distinction between intentional wrongs, which are not regulated, and then Part 1A, which is about – the heading is “Negligence”, and it is about negligence in the sense of the:
failure to exercise reasonable care and skill.
And section 5A makes clear it applies to claims in negligence, however framed, and then section 5B, which is headed “Duty of care” – this Court has pointed out that is a misnomer, this is about breach:
A person is not negligent . . . unless –
And then we have the formulation of Wyong Shire Council v Shirt. So, if a non-delegable duty is an aspect of the tort of negligence, which we say it is, the Civil Liability Act requires that the analysis of that tort be done through the prism of Part 1A, where the negligence stage of the analysis will be done under the section 5B principles, and everything else in this Part would apply, including, for example, 5Q.
EDELMAN J: But I am not sure what it means to say a non-delegable duty is an aspect of the law of negligence. The content of a non-delegable duty must depend, surely, upon what it is, what responsibility was assumed. If the responsibility that was assumed was an absolute responsibility, irrespective of any failure of reasonable care by a priest or any other person, then there is going to be liability, because that is the promise or the undertaking that is made.
MR GLEESON: I agree in part with your Honour, but importantly, not in part. The concept of a non-delegable duty is most commonly seen as part of the tort of negligence, but that is not the only place in which the concept of non-delegation may emerge. So, the Court has referred to Morris v Martin, which is where in the concept of bailment it has some purchase, and in the concept of bailment, the first step is: what is the scope of duty of the bailor?
And because the bailor’s duty traditionally was not just to exercise reasonable care but to protect the goods from theft and depredation, that being the primary duty, one then asks: is it non-delegable? And if it is, that then has consequences for the action between bailor and bailee. So, bailment is one area where it can have that purchase. Another area might be occupier and invitee onto property.
The case before your Honours is about how can non‑delegable duty be deployed in the tort of negligence. And what I am seeking to point out, which has not been addressed by Lepore – because this came, in effect, after Lepore – is that a provision like 5Q has expressly directed itself to this question. Section 5Q is in the appellant’s notice of appeal, and what it says is that if:
The extent of liability in tort of a person (the defendant) for breach of a non‑delegable duty to ensure that reasonable care is taken . . . in the carrying out of any work or task delegated . . . is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task.
And we will give your Honours, after lunch, the extrinsic material where it was explained what this was trying to do. What it was trying to say was, because Part 1A is going to regulate the whole of the tort of negligence from which intentional torts have been excluded, to the extent people wish to use non‑delegable duty within negligence, this is the way they will have to do it. Namely, there will have to be negligence by the delegate measured by the section 5B principles and then the principal duty‑ower will be rendered liable as if it were vicariously liable for that negligence.
GORDON J: Mr Gleeson ‑ ‑ ‑
MR GLEESON: So, coming back to your Honour Justice – could I just finish – I am sorry, your Honour, it is a long way of answering Justice Beech‑Jones’ question, that if you are using non-delegable duty in tort, you still need to identify the negligence of the delegate for which you then have to say: we will treat it as if it were vicarious liability.
GORDON J: I do not know that that is – you started off by saying that was common ground, that there had to be an identification of the duty first. I did not understand Mr Herzfeld’s submissions to be put on that basis. That is the first thing I would say. I may be wrong about that, but that is not how I understood it to be put. I understood there were two pathways to his argument.
MR GLEESON: If that is not common ground – I thought he agreed with that, but if it is not, I would say to your Honours that the passage in Hollis v Vabu of this Court I took you to, Chief Justice Brennan in Northern Sandblasting, New South Wales Court of Appeal Justice Giles, and I will take you to additional authorities after lunch, establish that a non‑delegable duty is an aspect of the scope of a duty of care which otherwise exists in accordance with ordinary principles.
GORDON J: That is a different proposition. If you are saying, in terms of determining whether or not there is a non‑delegable duty, one has to identify, as I put to Mr Herzfeld, both an entrustment of someone for some purpose – ie, I, as a parent, entrust my child to you, the school, with the basis that you will ensure care is taken, and if care is not taken, then there is liability – if that is nothing more than what you are saying, then I understand that, but if it is more than that, then I do not understand it.
MR GLEESON: It is more than that. I am saying certainly that, to the extent we are in NDD, you do need the two elements your Honour put. You need the entrustment ‑ ‑ ‑
GORDON J: And the acceptance.
MR GLEESON: ‑ ‑ ‑ to the duty‑ower and the acceptance. Our short answer to the whole of NDD – apart from Lepore – is you do not have findings of either that entrustment or acceptance from the primary judge, you do not have them from the Court of Appeal, you cannot repurpose findings made for different reasons to achieve that end, and if you go to the evidence, it does not get there anyway. So, that is the reason why the NDD case ‑ ‑ ‑
GORDON J: I understand that, on your submission.
MR GLEESON: That is one case, but I am putting the anterior submission ‑ ‑ ‑
GORDON J: It is the anterior submission I do not understand at the moment.
MR GLEESON: Okay. The anterior submission is that a non‑delegable duty has been seen in the law in respect to different torts. It is most commonly seen in relation to the tort of negligence, but it is also seen in relation to bailment, and it has also been seen in, for example, the aspect of an occupier‑invitee – I will come to that, Burnie, Shire Council. But to the extent it is used in negligence, it is an aspect of the scope of the duty of care which otherwise exists.
So, the question in negligence becomes: do you have the conditions for a duty of care? If you do not, that is the end of the case. If you do, then you ask whether those conditions exhibit the additional features, the elevated features of entrustment and acceptance of responsibility, in which event it becomes non‑delegable, therefore, not just a duty to take care but to ensure care is taken.
GORDON J: Thank you.
MR GLEESON: And so the link of that into section 5Q is that if we are using non‑delegable duties in negligence, the Parliament has said the way that it must be done in order to preserve the integrity of the distinction between negligence, however framed, and intentional wrongs, is that you look for negligence of the delegate in the performance of the work under 5B, and then you treat it as if the primary duty‑ower had a liability. So, your Honour Justice Beech‑Jones, to complete my answer to the question, if you were to look at the notice of contention, which is in the core appeal book at page 111 to 112, paragraphs 2 and 3 were ‑ ‑ ‑
BEECH-JONES J: The notice of contention in ‑ ‑ ‑
MR GLEESON: In the Court of Appeal. They were the appellant’s two attempts to frame the non‑delegable duty which they said the primary judge should have found, and we submit neither of them adequately framed what could be a potential non‑delegable duty, even assuming an ordinary duty of care had been assumed.
GLEESON J: But we are now looking at the note that we got this morning, and it seems pretty clear that that is a negligence duty.
MR GLEESON: When your Honour comes to the note, it is pretty clear it is a negligence duty and, just before you adjourn, you will see the shifts that have occurred from the pleading and from the primary judge’s finding at paragraph 224. Firstly, it is any:
foreseeable personal injury –
it is not limited to sexual assault. So, in the pleading it was any injury, now it is any personal injury, but that does not capture the kind of harm that was in issue, which was sexual assault. That is the first problem with it.
BEECH-JONES J: It does capture it, it is just wider.
MR GLEESON: It is wider, and so you have heard nothing this morning on “reasonable foreseeability” in respect to injury of any kind. What you have heard is injury about sexual assault, so it is too wide in that respect. Then it is:
to children –
Mr Herzfeld has confirmed, in answer to your Honour Justice Gleeson, that is children of any age – zero to 18. He has also said it is children of the Catholic faith in full, or in part, or other religions or no religions at all, so it is any children of any kind. Then, he says:
invited onto Diocesan premises –
So, it is no longer, as per the pleading, entrusted into the care without limit, it has now become “invited onto Diocesan premises”, then it is:
caused by the conduct of . . . priests at those premises.
So, if we are narrowing it down in that way, the scripture classes in the school are not part of the duty; attending the mass – frequently or not – is not part of the sphere of responsibility, we are down to the invitation to the presbytery. And we have two major problems left with duty, which I will deal with after lunch.
Firstly, the evidence did not support a reasonably foreseeable risk of sexual assaults occurring in the presbytery or otherwise. But secondly, the concept of “invited” which is in paragraph 2, as explained this morning, is that the Diocese “armed” the parish priest or a person in the position of the parish priest with an unlimited authority to invite people to the presbytery for any purpose that the priest thought fit. There is no finding to that effect, and the evidence of Father Dillon was directly to the contrary to that proposition.
Finally, your Honour Justice Gleeson, all of that is supposedly the ordinary duty of care. As I heard Mr Herzfeld, what he says was that you would then reframe this for the non‑delegable duty of care by changing some words in the first line, but you would otherwise continue it on in the same fashion. May it please the Court.
GAGELER CJ: Mr Gleeson, we will finish today, will we not?
MR GLEESON: We are doing everything we can to finish. I think on the current agreement, Mr Herzfeld has not long in reply. He has three minutes. There is a lot to cover, your Honours.
GAGELER CJ: We will resume at 2 o’clock, and we will finish today.
AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 1.59 PM:
GAGELER CJ: Yes, Mr Gleeson.
MR GLEESON: Your Honour Justice Gordon, in relation to the question about proposition 2 on our outline, apart from Hollis v Vabu that we have cited, the footnotes in Hollis v Vabu at paragraph 27 are important, and they include a case we have given to your Honours – Jones v Bartlett (2000) 205 CLR 166 at 228 – paragraph 217, where Justices Gummow and Hayne make the point that Hollis v Vabu in turn makes.
Can I return, then, to paragraph 3 of our outline, and I was at the stage of going through the elements of the alleged duty as it is now being reformulated this morning and giving our response to the reformulating case. The first substantive response we have is that the specified duty‑ower must be the Diocese – that is, this Diocese – and we submit that the primary judge, and certainly the appellant in its written submissions –perhaps less so today – elided between the Diocese’s knowledge and that of clergy members generally.
If I can go to the primary judge to three critical findings which we say reveal the error that the Court of Appeal correctly pointed out. The first is paragraph 231, core appeal book 60, and in that paragraph her Honour said that when certain matters were:
considered together with Father Dillon’s evidence about the awareness which Bishops –
plural:
and other senior members of the Church –
that is apparently the Catholic Church generally:
then –
that is, in 1969:
had about the risks which its priests –
Whose priests? Supposedly, priests of the Church generally:
could pose to children, given the complaints which they had received –
that is, bishops and senior members of the Church generally:
not widely known in the community, I am satisfied . . . the Diocese did owe . . . duty of care.
Now, there was an attempt this morning to say that her Honour did not really mean what she said literally. What she meant was she was drawing an inference that, because Father Dillon had deposed to generalised knowledge of high‑level people across the Catholic Church, he was drawing an inference that Bishop Toohey in Maitland, in 1969, had the relevant knowledge.
That is simply not an available reading of that paragraph, nor, in the two places where her Honour returns to this critical theme, does her Honour suggest she is engaging any such process of inference – see paragraph 249 and paragraph 251. So, Justice Leeming in the Court of Appeal, and agreed by the Chief Justice and Justice Ball, was perfectly correct to say, at paragraph 207, that her Honour was not confining:
her analysis of duty to the people within the geographical Diocese of Maitland.
That was an appellable error. Can I come to the second aspect of it which is: what did Father Dillon’s evidence stand for? And you have not been given all of that evidence this morning, and I want to take your Honours to it in some detail. So, if you could go first to his reports, which were in the appellant’s materials commencing at page 438.
One point picked up by the Court of Appeal – but not her Honour, apparently – at 438, in terms of the experience of Father Dillon, which he says is 55 years – see letter Q – if one goes to his CV at page 444, he is clearly enough a Victorian – nothing wrong about that, of course. Born in Victoria, studied in Victoria, ordained in Victoria in 1969 – so, right on the cusp of the alleged time for which knowledge is critical – and then, as one might expect, he spent 15 years as an assistant priest in parishes in Victoria, graduated to a parish priest in Victoria in 1985, retired in 2002 and continues to perform certain important functions.
So, what the Court of Appeal correctly pointed out at paragraph 210, which was crossed over by the appellant, is his statement which was expressed in terms of a:
likely exception –
so, it is a most hesitant expression of opinion, was in respect to:
the knowledge of some people –
he never identified who:
in positions of high authority in the Church –
he never identified which positions, in which part of the church, in which state of Australia, who he says:
would have been aware of complaints –
And as the Court of Appeal correctly says, at 210, he:
is not to be regarded as expressing an opinion of the actual or even likely knowledge of Bishop Toohey in 1969 of complaints made concerning priests in –
Maitland. He simply does not express that because he cannot. If that is how his opinion was to be read, it can be given very little weight. He does not purport to be expressing opinion about the:
knowledge of the Bishop of Maitland (or any other senior clergy in New South Wales) in 1969, and did not provide any reasons for any such opinion.
So, for that second reason, that critical finding of her Honour at paragraph 231 was correctly found to be an error by the Court of Appeal. Just continuing, then, with Father Dillon, on the other aspects of his evidence that were relied upon.
This particularly concerns a submission put this morning, in these terms, that there is a finding or you should find that, as the parish priest or functional equivalent on the unsatisfactory facts of this case, he was given an authority – this is how it was put – an authority to determine who attended the premises for whatever purpose he thought appropriate.
So, it is said that when the appellant was invited to the premises, that was an invitation coming from the Diocese, whereas we would submit it was an invitation from Father Pickin. But let us look at this question of: did the parish priest have an authority of that unlimited character? If your Honours go to page 446 first, which is the second report, and you were taken to letters I to L:
The Bishop . . . is the ultimate authority with regard to –
relevantly:
the use –
of premises:
A property cannot be . . . used for any purpose in anyway contrary to the wishes or direction of the Bishop.
Then:
For those activities and uses that are directly part of the Church’s mission, the Parish Priest’s authorisation and permission would be normally sufficient –
Any doubt about the matter, you would go to the Bishop and get his approval. So, a parish priest or his functional equivalent did not have authority within the system of the Catholic Church to invite people to the presbytery for any and every purpose that the priest thought sufficient. It had to be something which could properly be considered to be directly part of the Church’s mission.
BEECH‑JONES J: Sorry, where do we get that? What we get is, it cannot be for something “contrary to the wishes or direction”.
MR GLEESON: And the next sentence, to the extent it is sufficient to go to the priest, it is where it is an activity that could reasonably be regarded as “directly part of the Church’s mission”. And then on page ‑ ‑ ‑
EDELMAN J: But if we are talking about attribution, this is just Rose v Plenty; this is just being on the milk truck and delivering it in a way that might be prohibited.
MR GLEESON: No, your Honour. What I am dealing with here is I am responding to a submission – the first time it has been clearly made is this morning – that as an element of the ordinary duty, it should be seen that the parish priest was given an unlimited authority to use the presbytery for any purpose he thought fit, including in respect to children. That is the way it was put. That is what I am trying to respond to. I am trying to say, if you look at Dillon – and I am going to take you to four or five places – this is the first bit: that is not what a parish priest was given authority to do.
EDELMAN J: Certainly, but I do not understand the submission to be suggesting – and I do not think you are even suggesting a submission saying – that the authority of the parish priest involves inviting children in to be abused, that ‑ ‑ ‑
MR GLEESON: It does not involve inviting them in to be abused. That is probably common ground.
EDELMAN J: Yes.
MR GLEESON: But where we are differing is to say the parish priest was not given an authority to choose to conduct a social function such as inviting children for beer and cigarettes with no aspect of any church event attached to it.
EDELMAN J: What about inviting children in for social functions generally?
MR GLEESON: No, because – if your Honour will bear with me ‑ ‑ ‑
EDELMAN J: Certainly.
MR GLEESON: ‑ ‑ ‑ I have to take you to five pieces of this evidence, and you have not been taken to it. It is the problem of this case where you do not have these findings of fact. So, that is plank 1. You then go to plank 2, which is page 447, which is where he says, to the extent that in the 1960s and the 1970s, the presbytery might be used:
for purposes other than . . . the priest’s residence.
The examples that he gives at letter I are remote from the present case. They are gatherings of groups of people. Then one takes that together with his first report ‑ ‑ ‑
GORDON J: Sorry, social gatherings is one of those?
MR GLEESON: Social gatherings, but let me – this is plank 2. So, let us look at the rest of what his evidence was. Then, when you come back to his first report at 497, question (i) ‑ ‑ ‑
BEECH-JONES J: What was that page again?
MR GLEESON: That is page 441.
BEECH‑JONES J: Page 441.
GORDON J: So, we are going back to 441 now?
MR GLEESON: Page 441 and 442, to his first report. So, he gives, in answer to question (i) and (j), it seems a common answer, to certain forms of “expectation” with:
young people of the parish –
which appear to be group activities. So, that is the third plank. Then, getting more specific, in answer to question (k) – and I do not think you were taken to (k) this morning, you may have been:
“Personal” i.e. “one‑on‑one” instruction of young people was not common in those days and even less so in the years since.
“One‑on‑one” was:
seen as at least “unwise” or “imprudent”.
And that is irrespective of any question of knowledge now about the risk of any form of abuse. And then in question (l):
was it permissible for parish priests to have adults and children attend on them in their residences . . .
On rare occasions, individual instruction could have been given by the local priest if a single student had to be prepared for Baptism –
and so on:
But even in the 1960’s having a number, even a small number of children and bringing them together for a Sacramental class was seen as a much more effective way of doing this.
From my personal experience, I cannot recall ever having an extended length of time with any individual student for after‑school lessons and or personal instruction. Use of the priest’s personal room or rooms would have been unheard of, even in those “innocent” times.
Priests:
were seen –
if at all, in a:
“parlour . . . near the front door –
So, once you start to put that claim together, the concept of priest taking a young person into the private room was completely unheard of, according to Father Dillon. Then he went further in his cross‑examination, because – if you could go, please, to pages 560 to 561 – at 560, line 35, he is asked about ‑ ‑ ‑
STEWARD J: This is volume 2 of the appellant’s?
GORDON J: Sorry, what line are we, Mr Gleeson?
MR GLEESON: Line 35, page 560.
GORDON J: Is this what we were taken to this morning?
MR GLEESON: You were taken to part of it only.
GORDON J: Thank you.
MR GLEESON: Line 35, he asked about these “social gatherings”, and there he explains they are with groups of people. Then he is asked, at line 50:
who were the type of people who would be attending at the social gatherings?
And then, over the page:
In the main, it would have been certainly adult people who were there for . . . committees . . . parish councils –
Then he is asked the specific question at line 14:
Q. What about social gatherings which involved only unsupervised children?
A. Well, from my recollection in most cases with youth groups and so on, there was certainly, in my early parishes in those years, there would always be other people around, not so much in the sense of supervision for the sort of reason that we might put these days because of the scandals that have emerged, but more from the perspective of just dealing with young kids, it’s going to be a bit of a handful. Where there was more than two or three, it was sensible to have volunteer parents or others available to assist.
Q. So is this right, father, that your expectation was that in the 1960s and 1970s, if there were children at the presbytery, there would be adults over and above the priest in attendance?
A. Yes . . . that would be the case –
Then he is asked about whether that would be “an unwritten rule”, and then – this is the final plank – at line 44 he is asked:
Q. What about a scenario in which alcohol and cigarettes were supplied to children within the presbytery?
He gives a Victorian answer and then says:
From the perspective of supplying alcohol or even consuming alcohol in the presence of children, let alone supplying it to them, and ditto with cigarettes and so on, that would seem . . . it was totally foolhardy and irresponsible.
And then over on page 562:
out of order for a priest to engage in?
A. Absolutely . . . out of order in every way possible.
BEECH-JONES J: But is it not saying: yes, you had children, but you should have other adults and you should not give them cigarettes and alcohol. That is just Justice Edelman’s point.
MR GLEESON: No, your Honour ‑ ‑ ‑
BEECH-JONES J: Yes, you do it, but not by this method.
MR GLEESON: No. What it is saying is, when you take those planks down, first of all, you do not have – contrary to what you heard this morning – an unlimited authority to invite people there for any social gathering you think useful. Your authority is limited to things which can be regarded as Church business – Church events, religious events. Then, when you make it more specific ‑ ‑ ‑
GORDON J: What are “Church events”?
MR GLEESON: Well, matters that would involve an element of religious instruction, spiritual guidance, gathering of a community as the church community. There is a whole range of things within “Church events”.
EDELMAN J: And social gatherings and movie nights.
GORDON J: But that is in the list.
MR GLEESON: Within – then you come to the more specific point that you are then within an environment where, as per children, it is perfectly clear you do not an authority to invite children there for any purpose you think fit, you do not have any authority to invite them into private spaces and you do not have an authority to invite them there for a function which on no view could be considered to be connected with any church purpose.
STEWARD J: Is that another way of saying if he had asked his Bishop, may I invite two boys in our Friday night for a purely social occasion – leave aside the alcohol and cigarettes, just a purely social – the Bishop must invariably have said no?
MR GLEESON: He must have said no. And he knew the Bishop would have said no – that the Bishop would have said no. That is what this evidence was, of Father Dillon – and he is their expert.
STEWARD J: And your case is that this shows that it took place beyond the authority of the Diocese.
MR GLEESON: Anywhere beyond the authority of the Diocese. What it gets to is that – your Honour Justice Gleeson asked about – this duty has got to be about the relationship between the Diocese and the appellant. This interaction was an interaction with Father Pickin. It was not an interaction with the Diocese, and the fact that it occurred on Diocesan premises merely meant that Father Pickin had acted beyond – far beyond – any role he might have had to be a representative of the Diocese.
EDELMAN J: It still seems a lot to me like the classic attribution, Rose v Plenty, situation:
“Children and young persons must not in any circumstances be employed by you in the performance of your duties.”
A child is taken on the milk truck; it is still attributed to the employer.
MR GLEESON: We are not quite in an attribution situation. What we are in is a situation where they are attempting to erect either an ordinary duty or a non‑delegable duty, and for each of those, they are trying to say this was the Diocese.
EDELMAN J: Because the scope of the authority of Father Pickin included generally social activities or inviting people, even if children are forbidden from that scope of authority.
MR GLEESON: Well, I would simply ask your Honour, when you come to re‑read this evidence, as you will, and you look at the report and you look at the cross‑examination, you could not get clearer evidence that inviting children unsupervised to a private part of the presbytery for a function that could have nothing to do with baptism, confirmation and so on could never be considered to be the Diocese of Maitland interacting with this person.
Now, can I show you, then, related to that, the evidence – and this comes back to your Honour Justice Gordon’s question about, perhaps, entrustment – of how it was that he came to be there. So, in the same volume at page 505 to 506 ‑ ‑ ‑
GORDON J: Sorry, what was the reference?
MR GLEESON: Page 505 to 506.
GORDON J: Thank you.
MR GLEESON: At page 505, line 35, he was asked, did he tell his parents why he was going there, and he gave some answers about – he told them something about a “youth club”. That is at the foot of that page, but then the evidence changed on page 506, at lines 15 to 20:
MR SHELLER SC: Did they ask why you were going to meet him?
[AA]: No. He was a priest.
Then, lines 40 to the end of the page:
MR SHELLER SC: Did –
they:
ask why you were coming home so late?
[AA]: No, it was Friday night. We were in high school.
So, in other words, he was free to do what he wished to do on a Friday night:
MR SHELLER SC: Did they ask you anything about what you’d been doing up at the presbytery?
[AA]: No, not really.
So, to the extent we are looking at the relationship between the parents and the Diocese, there was nothing in this evidence to support it. In terms of what actually happened on the commencement of the occasion, I would refer you to page 482, lines 15 to 40, where when he got there, the beer and cigarettes were laid out on the table.
Your Honours, the point I have reached, hopefully, is this within our paragraph 3, that the primary judge erred by not focusing specifically on the knowledge of the Diocese; she focused more generally upon the alleged knowledge of the priest. She erred because Father Dillon’s evidence did not provide any sound basis upon which that could be found.
Then the next point I want to deal with is the kind of harm issue. So, coming back to the appellant’s note this morning, it looks like – and this comes back to your Honour Justice Beech‑Jones’ question – by generalising from sexual assault or assault and battery into the risk being foreseeable personal injury, what this form of duty seems to do, we think, is ask your Honours to find today a duty existed in those general terms, and then any question of the degree of foreseeability of the kind of harm that was suffered – namely, intentional assault – would be delegated to the breach stage.
So, they are seeking to define a duty where you hold that it is foreseeable that, if a child is invited into the presbytery, personal injury of any kind could occur. Then, once you have found that, there is then the question of applying the section 5B factors to the harm in the form of sexual assault. Now, that, we submit, is the very error which the Court has cautioned against in a series of cases.
We have referred to this in our written submissions, but can I give you some of them. The first of them is Tame v New South Wales 211 CLR 317, which is in volume 5, tab 29. In the Chief Justice’s judgment at paragraph 12, importantly in the judgment of Justices Gummow and Kirby at paragraph 203. In that case, it was necessary to identify the class of injury as:
psychiatric illness –
not just personal injury more generally. In the judgment of Justice Hayne at paragraph 249, where his Honour cited Justice Brennan in Heyman, that:
“a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member” (emphasis added).
And so ‑ ‑ ‑
BEECH‑JONES J: So, psychiatric harm there is used in contradistinction to physical harm, as I understand it.
MR GLEESON: Yes.
BEECH‑JONES J: What does sexual assault fall into?
MR GLEESON: I am responding to a formulation which says personal injury, which would capture all sorts of things.
BEECH‑JONES J: Indeed.
MR GLEESON: So, we would say that any acceptable formulation would have to either be the risk of intentional infliction of harm by assault and battery to the person or sexual assault.
EDELMAN J: Why?
MR GLEESON: Now, whether the harm then manifests in physical injury, psychological injury, that would still be within the kind of harm.
EDELMAN J: If you drop a child at a daycare centre, you do not expect that the care will be limited to preventing sexual assault, you expect all physical injury to be guarded against.
MR GLEESON: What that shows, your Honour, is that in each case – of course – where the duty is stated, one is looking at the relationship between the provider and the person, and one is bringing to account knowledge of the way in which risks to safety tend to occur in that environment.
EDELMAN J: There has to be an assumption of responsibility on the one hand and the entrustment on the other, but once you have that, why would it be limited to sexual assault?
MR GLEESON: Because it will link into reasonable foreseeability that I am coming to next, and this is the point the Court of Appeal correctly made. We are looking at 1969, your Honours are being asked to find what was the assumption of responsibility in 1969 based on knowledge of what risks there might be dropping a child to a childcare centre in 1969.
BEECH‑JONES J: But that is because we are starting to narrow. If it is a child, is it not just an assumption of a risk of some sort of physical harm? You do not ask all the types of physical harm, you just ask that. It is because the inquiries are much harder if you are talking about sexual assault that it kind of helps your case, because then that becomes a particularly – the foreseeability is much more difficult.
But to take Justice Edelman’s case of a childcare centre, you would simply just ask all the various ways that a child could suffer some sort of physical harm in that environment. If you have a couple, you do not have to foresee all 20 ways that could happen, you just have to have a generalised conception of that.
GLEESON J: What about psychiatric harm? Would there be a duty to take reasonable care to avoid psychiatric harm of a child at a childcare centre back in 1969?
MR GLEESON: Well, it presumably would have been unheard of that such harm would be suffered in 1969. So, to state the duty 55 years after the event – which was the Court of Appeal’s point – without carefully distinguishing current‑day knowledge from knowledge at the time, is an essential part of the process. At the stage of duty of care, of course, you are stating a proposition of law, not merely a proposition of fact at the breach stage. In a different context, your Honours in Mallonland ‑ ‑ ‑
BEECH-JONES J: That was economic loss.
MR GLEESON: Because it was a novel case, and your Honours said in Mallonland 98 ALJR 956 – it is in the supplementary book – at paragraph [29]:
An essential element of the tort of negligence is that the defendant owes the plaintiff a duty to take reasonable care when engaging in an activity to avoid causing the plaintiff a particular type of damage or loss that is reasonably foreseeable.
So, at the stage of duty, “particular type of damage or loss that is reasonably foreseeable”, and that is why it is linked to the next question I am coming to, which is reasonable foreseeability.
Before I come to reasonable foreseeability, so your Honour understands where we understand this appeal goes, if, contrary to our submissions, you were to find there was a duty of care as per this morning’s note – which we urge you not to do as a question of law – a couple of things follow. Firstly, that is not the duty of care which the primary judge found at paragraph 224. I am not here taking a Suttor v Gundowda point on this point, but it is a different duty of care.
The second thing is that the inquiry into breach of the duty was never done by her Honour with respect to this morning’s duty, so that part of the case has not yet been finished. The third is that – as Mr Sheller will show you – in any event, we have arguments on breach of duty which were entertained in the Court of Appeal and have not yet been resolved.
So, on any view, breach would have to be remitted on the ordinary duty of care, and we think that places us, and perhaps you, in as slightly different difficult position, because the submissions I am now going on to make about reasonable foreseeability, we submit, are relevant to duty of care, but if you were to adopt Mr Herzfeld’s formulation of duty, you might delegate all that and say, well, that is for breach of duty.
BEECH-JONES J: I think I will ask there, if there is a non‑delegable duty, the breach is in the sexual assault, is it not? That is the breach, if you are at that point.
MR GLEESON: With respect, that oversimplifies it, your Honour. That is how they put it. We say it is not quite as simple as that, because you are still trying to work out what is the ensuring of reasonable care by the delegate which did not occur, which requires you to attend to what the delegate did, and you have the question of whether sexual assault occurred – Mr Sheller is going to deal with that – that should also be remitted. I will come to this on Lepore, but there are grave problems – this is what Chief Justice Gleeson said in Lepore. An intentional assault is, in one sense:
a failure to take care –
but it is far more than a failure to take care. It is an intentional invasion of the other person’s security and liberty in their body. To say that we will grapple with an intentional assault and treat is as it if were just a failure to exercise due care within the Civil Liability Act, we submit – as Chief Justice Gleeson said – is not to grapple with the wrong that is before you. Now, I want to come back to that, but, your Honour Justice Beech‑Jones, there are still those questions, but can I then ‑ ‑ ‑
BEECH-JONES J: Sorry, you were saying 224 is different to the duty as formulated.
MR GLEESON: Yes, because 224 says, I accept, the pleaded duty. The pleaded duty had all the problems I started with. So, the breach of today’s duty is not being found by the primary judge. In any event, the whole of breach is still part of the rehearing under section 75A, where – because the Court of Appeal has not yet had to conclude its views on it – you really have to remit it.
We accept the force of the expedition argument. We have tried, via the notice of contention, to say if it were possible for you to finalise everything, that would be in the interest of the plaintiff. We have tried to cooperate with that, but I have to tell you, frankly, we do not think you can deal with all issues in this appeal. Leaving time aside, you do not have the advantages of even the Court of Appeal on some of these issues.
There has not been a full argument even on breach, and if you were to drop Mr Herzfeld’s duty this morning, we have an entire argument to give you about why that duty was not breached, because you then have to decide what was the true level of reasonable foreseeability. You then have to decide what were the reasonable precautions that the Church should have taken in 1969.
You then have to decide if those precautions would have made a difference to someone like Father Pickin who, on this material, was determined to treat the presbytery as his own plaything. We have tried to do our best, but none of that, we think, you can actually properly determine within your appellate function.
Now, can I come to reasonable foreseeability, and I will try and deal with it in the bite‑size pieces that your Honour Justice Gordon has encouraged Mr Herzfeld to frame his case in. He has his first case, which is his generalised case – that is his Father Dillon case – and that I have already giving you some submissions on, that ‑ ‑ ‑
GORDON J: You attack that by reference to paragraph 231, is that right?
MR GLEESON: That is the paragraph 231, yes, your Honour is correct, and then it is repeated variously; it is 249, 251 and so on. On that case, on the proper reading of what her Honour has done, she is not doing some process of inferring from this extremely thin evidence of Father Dillon to the knowledge of Bishop Toohey. She is just asking the wrong question. If she were trying to engage in that inference, without any reasons expressed, Justice Leeming was perfectly correct to regard it as not providing any satisfactory basis for making findings about Bishop Toohey in 1969. That is the first plank of it.
The second plank is Father Doran and the attribution argument. Now, this is the evidence of Mr McClung, and it is important that you have the evidence of the actual report to Father Doran. So, this is in the appellant’s materials, it is page 356, it is paragraphs 9 through to 17. Mr Herzfeld says 17 was not read. That can be checked. So, 16 was read as evidence that he made as complaint. Mr Herzfeld says – I accept 17 was not read. The highest the evidence went was a complaint in these terms was made to Father Doran.
We then look at how Justice Leeming most carefully analysed the significance of that evidence, and this commences at page 219 of the Court of Appeal. I should highlight that, on this point, the present appellant does not currently have a finding in its favour. It was attempting to get a finding in the notice of contention below.
So, the primary judge rejected this point. The Court of Appeal rejected it. At the moment, you have both courts rejecting it. So, Justice Leeming goes through the nature of the material. At 226 he records our submission:
It was not suggested that Fr Doran was a senior member of the clergy, “let alone a Trustee”, or that he in fact told anyone.
Paragraph 227 deals with an irrelevance. Paragraphs 228 through to 240 are the operative reasons that the appellant needs to find error in. They can be summarised at 228:
the mere report to Fr Doran of itself did not amount to the imputation of any form of knowledge to “the Diocese” –
And secondly:
it was not established that Fr Doran was under any obligation to report what Mr McClung told him.
The following reasons of Justice Leeming bear out those two propositions. His Honour makes the point which has not been contradicted today that:
The Roman Catholic Church was and is hierarchical. The knowledge of each and every priest is not taken to be the knowledge of the institution as a whole.
GORDON J: Mr Herzfeld said that is the wrong question. It is being asked at the wrong level.
MR GLEESON: It is part of the right question, because what one is saying is, if a report was made to Father Doran as the parish priest, what does that connote within the hierarchy of the Catholic Church? The point being made at 230, which is not being contradicted on the facts, is that – and this is part of the answer, not the whole of it – Doran was not the Bishop and was not a senior member of the Diocese.
Yes, he was a parish priest, but no, he did not hold a position in any of those senior Diocesan roles. That is part of what we need to bring into account. Paragraph 231 says ‑ ‑ ‑
GORDON J: So, 230 is the way they ran their case below?
MR GLEESON: Yes, they ran the case, they had to establish knowledge by the Bishop or a senior member of the Diocese. They did not attempt to say who they were, but they certainly did not suggest Father Doran was amongst them. This does not answer to the whole of their case, but it eliminates one possible plank of it – he holds none of those senior positions. Then 231, even if he were an employee, imputation of knowledge would be context‑specific. And 232:
Parish priests are not employees –
So, that respects what this Court has held in Bird:
and there is no reason why, in the absence of a duty to communicate a complaint, more senior priests . . . should have the parish priest’s knowledge attributed to them.
That is critical to the reasoning that there is an absence of a basis of a duty to communicate from Doran to the more senior people in paragraph 230.
GLEESON J: Mr Gleeson, just looking at paragraph 35(a) of the amended statement of claim, it does seem that, on foreseeability, the plaintiff was relying on knowledge of “members of the clergy in the Diocese”.
MR GLEESON: Your Honour is correct. They have referred to “members of the clergy”. The point the Court of Appeal is making is, absent a duty to communicate from the level of the parish priests to the Bishop or the senior priests, then they have failed to make up that case.
Your Honour Justice Beech‑Jones asked this morning, I think, how this attribution is occurring, and two answers were given: one tentatively and one more firmly. One answer seemed to be that any communication to any parish priest of any matter is deemed to be receipt by the Diocese without more – without any duty to communicate higher.
That, we submit, at least on the material proven in this case, would not respect the hierarchical structure within the Catholic Church. That would mean that we would have anything known by any one of the 55 parish priests – paragraph 232 – would be taken to be the knowledge of the Diocese.
GORDON J: Does that mean that, as a matter of fact, you would have to lead evidence to prove what – what is missing?
MR GLEESON: What is missing is that within the structures of the organisation, there was a duty on a parish priest to communicate any and every complaint irrespective of whatever assessment the parish priest may have made about its insignificance at the time.
EDELMAN J: Mr Gleeson, were all the people that are listed in 230 – the Diocesan consultors, the chancellor, the synodal judges and so on – are they all people that are within this Diocese? In other words, they are all people that hold their appointments within Maitland‑Newcastle.
MR GLEESON: Yes. I understand the yearbook that his Honour is referring to is the yearbook referencing this Diocese.
EDELMAN J: They are all, effectively, people who are more senior ‑ ‑ ‑
MR GLEESON: More senior.
EDELMAN J: ‑ ‑ ‑ in the organisational structure, to parish priests.
MR GLEESON: Yes.
EDELMAN J: Thank you.
GAGELER CJ: Mr Gleeson, one way I understood the argument – perhaps the only way I understood the argument being put by Mr Herzfeld this morning – was that this attribution arises through the operation of section 6O.
MR GLEESON: Yes. So, to deal with that, firstly we have checked the reference given this morning. His Honour is correct, 6O was not argued. But leave that aside, it does not come through 6O because 6O ‑ ‑ ‑
GAGELER CJ: Who is “his Honour”?
MR GLEESON: Justice Leeming in paragraph 232 ‑ ‑ ‑
GAGELER CJ: I see.
MR GLEESON: ‑ ‑ ‑ said there was no argument at trial on 6O. We have checked the reference given. There was no argument. So, he was correct to say not argued, but if – he is also correct on 6O, because 6O does not have this purpose of attributing the knowledge of people at various points within the organisation to the organisation. Its purpose is far simpler. The purpose is simply to say that we have an unincorporated association which, under traditional law, there may be difficulties suing.
We also may have difficulties in the Ellis world where the assets of the body are not in the unincorporated association; they are in the separate trustees. So, what we are going to do is to create a procedural mechanism by which a proper defendant can be appointed who will be answerable for the judgment, will be answerable for the legal responsibility, will have its assets at stake, but we will treat it as if the unincorporated association had in fact been the proper defendant. So, it is not intended to change any principles of attribution, which is Justice Leeming’s point.
BEECH-JONES J: What about (b):
anything done by the unincorporated organisation is taken to have been done by the proper defendant –
There is some attribution there, but ‑ ‑ ‑
MR GLEESON: It is done by the unincorporated association. It is not the next step of altering the rules by which something would be seen to be done by Pickin, as opposed to done by the unincorporated association.
STEWARD J: What does “organisation” mean in this context:
unincorporated organisation means an organisation that is not incorporated.
Okay. What does “organisation” mean here? I know what Mr Herzfeld would say: he would say every single parish priest.
MR GLEESON: No, it is not that.
STEWARD J: Does it connote some kind of leadership position within the organisation? Like a board of directors, for example.
MR GLEESON: It connotes the organised structure by which the Catholic Church in this geographical area fulfilled its mission, and so, functionally, it is the equivalent to finding who are the board of directors.
STEWARD J: So, the people listed at 230 would be the organisation that ‑ ‑ ‑
MR GLEESON: They would be the people whose knowledge ‑ ‑ ‑
STEWARD J: Would be the knowledge of the organisation.
MR GLEESON: ‑ ‑ ‑ would be the knowledge of the organisation, but to the extent – as 232 says – there are 55 parishes, there are 200 priests and nuns, and there is 1,200 square miles ‑ ‑ ‑
STEWARD J: And it is their knowledge which is then attributed to the defendant.
MR GLEESON: It is the 230 people whose knowledge is attributed, but it is not where one strand of the appellant’s argument goes, that anyone within the 55 parishes and 200 priests or nuns is the organisation and, therefore, its knowledge is then the knowledge of the proper defendant. So, your Honour the Chief Justice, our short answer is: 6O, had it been run, would be pushed far beyond its intended procedural purpose if it were to alter established principles by which attribution were to take place.
EDELMAN J: Well, it just picks up established principles because, in effect, it incorporates the organisation. Even the deeming may actually be an incorporation, as such, with a different person as proper defendant.
MR GLEESON: Approach it as if it were incorporated and, therefore – as your Honour Justice Steward said – what we would be thinking of with an incorporated body, we would immediately not be saying anything known to or done by a member of the general meeting is known and done by the body. One would be saying, if it has a hierarchy – which it does, under the Corporations Act – that would help inform whose acts and whose mind we are looking at.
BEECH-JONES J: And we might pick up some employees, depending on the scope of their duties.
MR GLEESON: We might; a managing director.
BEECH-JONES J: Or lower; manager, a regional manager.
EDELMAN J: All the executives.
MR GLEESON: Yes, I am not limiting it to that, but yes, you would be doing it by reason of their position, their responsibility to the board, but what ‑ ‑ ‑
STEWARD J: And their reporting obligations.
MR GLEESON: And their reporting obligations.
EDELMAN J: Parish priests start to look a lot like executives over such a broad, huge organisation.
MR GLEESON: Your Honour, I will give two answers. The first is, this is the difficulty of asking you to make findings of fact for the first time in this Court. What you will see from the paragraphs I am taking you to – and I know there has been some criticism of some parts of Justice Leeming, but in most of this judgment, he has done the most thorough job attempting, as he could, as an appellate judge – and the other two judges have agreed with him – to make the best of this necessarily unsatisfactory record.
He has looked at this, he has a series of reasons. Then, the second part of my answer is then what I was coming to, which is paragraphs 234 through to 240, which is ‑ ‑ ‑
GORDON J: This is of Justice Leeming?
MR GLEESON: Of Justice Leeming, which is whether on the evidence, as led in this case and within this organisation, there was a duty to pass it on. So, rather than pronouncing it at a level which is really not supported by the specificity of the evidence of whether there is a rule for all parish priests as against dioceses, his Honour looked correctly at the more specific evidence of:
what a reasonable person in Fr Doran’s position in 1969 would have done . . . The plaintiff did not adduce any evidence that in response to the report of the abuse . . . Fr Doran or some other parish priest would take the matter further.
Pausing there, although Dillon is their expert – unqualified, we would say, but although he is their expert, they did not lead evidence from him on this question, that it was the duty of the parish priest to pass on. To the extent he gave evidence, the evidence does not help them. You see that in 235.
Then goes into the facts further and said: if you would look at what we know as to what passed between Doran and Mr McClung, it tended to confirm that McClung was not asking Father Doran to expect any further steps to be taken. The observation of Lord Neuberger in Maga v the Birmingham Archdiocese, in 237, have resonance, as his Honour said, and 239 brings the key issue together. Now ‑ ‑ ‑
EDELMAN J: This is a causation point.
MR GLEESON: No, this is ‑ ‑ ‑
BEECH-JONES J: Is your duty point about knowledge?
GORDON J: Knowledge.
MR GLEESON: This is knowledge, as in ‑ ‑ ‑
GORDON J: Do you raise two arguments? As I understand, you say the knowledge is not within the relevant group of people identified in 230; neither pleaded or proved.
MR GLEESON: Yes.
GORDON J: So, you narrow the group of people, and in relation to those who fall outside that group – by reference to these other paragraphs – you say, even if they had the requisite knowledge, they are not within the group, and if they had the requisite knowledge, they did not pass it up the line.
MR GLEESON: And we are not required – within the rules and the circumstances of this organisation in 1969, on this body of evidence – to pass it up the line. That is what ‑ ‑ ‑
GORDON J: So, if you step back from the facts of this case, and on your analysis, one would have to plead and prove which people held the positions you have identified; identify what their knowledge was, if any. If others outside that group had knowledge, you would have to prove that they had that knowledge, and either they were obliged by reference to the rules of the Diocese or the Church, or some other rule, to pass that up. Or they did pass it up, regardless of a rule.
MR GLEESON: Yes.
BEECH-JONES J: When we say “knowledge”, we mean knowledge of the risk of sexual assault by a priest.
GORDON J: Thank you.
BEECH-JONES J: Is that what you mean, Mr Gleeson, in this context?
MR GLEESON: Yes, which we say goes to duty, but in an alternative world would be an essential first step in section 5B on breach.
EDELMAN J: And causation.
MR GLEESON: And thoroughly essential on causation. There was a strand in the criticism in writing that has not been pressed today, that Justice Leeming focused only knowledge of a risk posed by Pickin. That is unfair. Justice Leeming was saying you did not establish on the evidence knowledge of a risk posed by Pickin or priests generally. We have given you all the references in writing on that point.
But the conclusion of this strand of the judgment, which you will see at 240 to 241, is they did not prove knowledge that Father Pickin posed a risk to children. That is framed in that particular way because this is the answer to ground 5 of the notice of contention that had started back at paragraph 219. So, I think that is the second piece of the knowledge puzzle, which is Father Doran.
Then, the third piece is the 1954 report of Father McAlinden. That is at page 296 of the appellant’s book, and you read it out. The high point of it is page 297 between letters G to I. It is a record that some complaint was made to Bishop Toohey in 1954 which caused there to be discussion between Bishop Toohey and Father McAlinden. Now, as that was put this morning, correctly it was said that is proof that an allegation was made in 1954; one allegation about one priest to Bishop Toohey, and nothing more is known about that event.
Now, whether taken on its own or taken together with the other slender reads that I have just analysed, it is, we would submit, unacceptable in principle to erect reasonable foreseeability of risk of sexual assaults in 1969 15 years later, based on one allegation against one priest with no evidence of how that allegation was resolved or what the Bishop thought in response to it. We support what Justice Leeming has said about this at paragraphs 213 to 218. Paragraph 214, we can infer:
there was a discussion between –
them:
What was alleged and what was said . . . is not known. It seems reasonable to assume –
he:
denied all wrongdoing –
At 215, that single:
paragraph of the 1987 report does not establish that Bishop Toohey knew or believed or suspected in 1969 that one of the priests in his Diocese was abusing children.
And at 217 and 218, his Honour was alive to the possibility that you could have a case where you had sufficient knowledge of a risk of priests in general offending to give rise to a duty of care or reasonable foreseeability, but this evidence fell short – as per paragraph 218 – of proving that:
a reasonable person in the position of the Bishop would have taken steps on the basis that every priest was a potential child abuser.
The instances that were given were too slender to reach that conclusion in 1969. Now, in circumstances where Justice Ball and the Chief Justice have carefully reviewed the same material – come to the same conclusion – we would submit there is no basis for this Court, on a question of fact, to interfere with what is in paragraph 218, and there is no error of principle in the way in which the Court of Appeal has approached it.
GLEESON J: When you are dealing with the question of reasonable foreseeability, how, if at all, do you take into account the unlikelihood of a child being alone with a priest, or a child being invited into the Diocesan premises?
MR GLEESON: It is part of why a person in the Bishop or the senior clergy would not even reasonably consider these to be serious risks that needed to be guarded against, because the rules are clear: children will never be taken into that form of private exposed environment.
GLEESON J: So, you have to assume it is reasonably foreseeable that priests will deviate from that pattern.
MR GLEESON: Deviate from that, and this body of evidence in 1969 did not go anywhere near that.
BEECH-JONES J: Paragraph 218 is too highly pitched though, is it not? It does not have to be that a reasonable person and the Bishop would have taken steps on the basis that every priest was a potential child abuser. The focus at the duty stage is the existence of a risk of a priest or a portion of priests.
MR GLEESON: I agree with that, your Honour. “Every” is rhetorical there. It does not need to be “every”.
BEECH-JONES J: And it is not whether they “would have taken steps”. It is that they are aware of the risk.
MR GLEESON: Then I do defend Justice Leeming. I think what he is saying is that the risk of one or more priests, or a sufficient number to be concerned about doing it, were such to establish reasonable foreseeability, therefore you are into a duty. That is what he trying to convey.
BEECH‑JONES J: I see.
GORDON J: We only need one, do we not? It might be the one that has been the subject of the claim. That is all you need. You do not need more than that.
BEECH-JONES J: One out of 55.
GLEESON J: One what?
BEECH-JONES J: One priest.
GORDON J: One priest.
BEECH-JONES J: One priest out of 55. He has 55 parishes; he has one of an allegation.
MR GLEESON: I was going to say to your Honour: one what? We have to be a little precise, of course, about what it is. In the present case – which is why Justice Leeming analysed this – it is no more than, from what we know, an allegation, and it is one allegation with no knowledge of what then passed between Father McAlinden and the Bishop.
BEECH-JONES J: Well, it is allegations – 297 – the first one occurring in 1954.
MR GLEESON: I do not think we can construe that as a statute and say we know that the allegations continued between 1954 and 1969. This is a document being written in 1987.
BEECH-JONES J: I know, I am just dealing – it could be, and you might be right in saying it is allegations about one incident. You do not know.
MR GLEESON: It could be about one incident, but even if it is more than one incident, all we know from that is something in 1954. We know nothing more about the incident or about what passed between Bishop Toohey and Father McAlinden before he left the Diocese in 1969 – paragraph 216. So, we would submit that when the Chief Justice cautioned at paragraph 12 that the evidence here was simply too “exiguous and speculative” and not sufficiently strong as of 1969, his Honour did not fall into error.
Your Honours, in terms of our outline, I have covered paragraph 4, and I have covered paragraph 5. So, the concluding aspect of the ordinary duty of care is where the evidence fell in respect to other factors. That is, other than reasonable foreseeability. Our submission here is that on the evidence, the relationship between the appellant and the Diocese was limited in character.
Firstly, there were the weekly scripture classes, but as the duty has developed this morning, we would submit they are essentially collateral to alleged duty of care, because it is no longer a duty to take care in an unlimited sense over the person. It is care in respect to inviting someone into the private aspect of the presbytery.
In any event, on the school side of it, we would support what Justice Leeming said at paragraph 205. The ultimate decision to allow any religious people into the schools to give these 45‑minute weekly classes lay with the headmaster or mistress or the Department of Education. We do not dispute Mr Herzfeld’s point that the Bishop, of course, has the ultimate control over which person goes there.
What tells us is, we are far removed from the types of cases where a vulnerable person is brought into the exclusive control of the alleged duty‑ower. In the 45 minutes, the appellant and Mr Perry were in the control of the Department of Education, who had delegated a particular function to this religious representative, as well as, of course, many other religious representatives.
GLEESON J: The plaintiff was in the temporary care and control of the priest when he was in the presbytery.
MR GLEESON: Yes, we do not deny that. I am sorry?
GLEESON J: In the presbytery the child is in the temporary care and control of the priest.
MR GLEESON: The presbytery is the only bit that we think really matters left in this case as has been reformulated. So, I am just trying to clear away the others.
GLEESON J: I am distinguishing the priest from the Diocese.
MR GLEESON: The priest – yes, we say, in the presbytery, he is in the temporary care and control of the priest, full stop. In that event, it is distant from any of the factors that would give rise to the ordinary duty of care. So, I have mentioned the weekly scripture classes. The intermittent attendance at mass, again we think that is largely irrelevant as the case has now been confined. Our point is not that he attended occasionally, as opposed to having the pleasure of attending every Sunday.
The point is that attendances at mass, whatever they were, are collateral to the issue that has now been joined about being under the temporary control of a priest in the presbytery. In any event, again in an attendance at mass, in the ordinary circumstance, he is there with his parents, and so there is no sense in which the priest has any form of exclusive control or access over the appellant.
As well as that, the evidence was exigent as to whether he in fact came into any contact with Father Pickin on those occasions when he attended at mass. So, what that leaves is simply the issue of the presbytery and the proper characterisation as to whether he is there under the temporary control of Father Pickin, as we would put it, or whether he is there, as it were, under the control of the Diocese.
Can I just put our concluding submissions on that topic, and this, to some extent, overlaps the entrustment question that I will come to shortly, necessarily. So, in terms of the findings that were made on the topic, we have the finding at paragraph 218:
That the Friday nights he arranged were not “Church events” –
Now, you were cross‑referred to the submission at 190. That is the submission our side made, which her Honour accepted; these are not “Church events”. Together with 218 ‑ ‑ ‑
BEECH‑JONES J: What do we get from the quotation marks?
MR GLEESON: I think it is really there for emphasis to say a Church event could have a fairly wide ambit, but it is an event which reasonably would be understood, objectively and subjectively, to be one associated with the mission of the Church, as opposed to Father Pickin engaging in his private social events. But it goes further than that, because if you take it together with paragraph 229, which you were not referred to this morning:
There is no suggestion that –
Father Pickin:
invited the boys there for religious instruction.
So, in terms of the findings that you have on this topic – and I should just indicate for completeness, if you compare paragraph 141, which is a statement of the plaintiff’s evidence – at paragraph 9, their Honour has clearly rejected that evidence that was given by the plaintiff. One of the areas where she found problems with his credit, and that topic ‑ ‑ ‑
BEECH-JONES J: What was that paragraph where her Honour rejected his evidence?
MR GLEESON: Paragraph 229.
BEECH-JONES J: I see.
MR GLEESON: And that was a matter which her Honour had explored in argument with counsel at page 698 of the appellant’s book. So, it was fully ‑ ‑ ‑
GORDON J: It would not need to be religious instruction; it could be a youth group.
MR GLEESON: “Church events” is broader than religious instruction.
GORDON J: Yes.
MR GLEESON: We have both, so I am referring to both in saying, in terms of what was the character of the event, both those findings would count against the finding of a duty. Then, as I put to your Honour this morning before the adjournment, if you ask the questions of entrustment and acceptance, you have an absence of any positive findings that the appellant would otherwise need from either court on those topics.
STEWARD J: Was there any finding made, or was there any evidence, about what youth groups looked in 1969?
MR GLEESON: We think not, but – perhaps for the reason that whatever Father Dillon was speaking of in 1969 – it bore no resemblance to this event. On no view could this be treated to be as a youth group.
GLEESON J: When you said “entrustment and acceptance”, do you mean entrustment and assumption of responsibility?
MR GLEESON: Yes. So, this is the point at which – although I am trying to keep them separate – the ordinary duty of care starts to blend into some of the discussion under the non‑delegable duty. What we have effectively got is we have the findings of not a church event, no religious instruction; we have the analysis of Father Dillon that I have been to, and I will not repeat. The appellant does not have the findings it would need on this topic, and for that reason, your Honours would confirm the conclusion of the Court of Appeal that the ordinary duty of care was not established.
Now, the only thing I want to say on the question of parish priest or not parish priest is, in our submission, it was neither determinative of the Court of Appeal’s judgment and is not determinative of this appeal. Justice Leeming made clear that his observations were not determinative of the outcome of litigation – that is at paragraph 80.
BEECH‑JONES J: What about the first sentence of Chief Justice Bell’s judgment at paragraph 12 on 126?
MR GLEESON: It is one of the reasons his Honour found error, but it was neither necessary nor sufficient for the error, because what Chief Justice Bell is agreeing with is effectively the whole of Justice Leeming’s five or six points which commence from paragraph 202. Of those points, 203 is the parish priest point, 205 is independent, 206 really does not take it very far, 207 and following are the ones that really matter, which is knowledge.
So, if we are correct that they failed to prove the knowledge case, that is sufficient reason to interfere with the primary judge’s decision. Another sufficient basis is that, looking at the duty as it is now being reformulated, they do not have the findings they need and such findings as are there are adverse to it. That leaves the question: what further needs to be done about the parish priest finding?
The way I have put it today – or sought to put it – it would not matter if he was on the agreement of these parties, contrary to the fact the parish priest, because that did not alter any of the questions of authority, attribution, and so on. That is the primary way I have put it.
GORDON J: So, this table that you have provided us with, we put aside?
MR GLEESON: That you can put aside, because Mr Herzfeld has candidly accepted that the finding that his Honour made – that he was not the parish priest – is the correct finding on the evidence in the case.
BEECH-JONES J: I do not think he made that concession.
GORDON J: No, nor do I.
BEECH-JONES J: He just said he is not going to argue the toss because we should not be there.
MR GLEESON: All right. Well, in that event, your Honour, please do not put the table aside. Put it at the front of your folder, if you would. What the table is to show you is, to the extent as a matter of fact on the evidence, his Honour found that the true parish priest was O’Dwyer and this man was the assistant priest. His Honour correctly analysed every document. We have simply given you the references in the bundle. We accept that does not answer the full point they are making.
BEECH-JONES J: But the real point is why should we even look at that document?
MR GLEESON: Well, can I come to that, your Honour, but I was asked about the table ‑ ‑ ‑
BEECH-JONES J: I understand.
MR GLEESON: ‑ ‑ ‑ and I want to explain why the table is there, and I want to do this in three steps. That is step 1. Step 2 is, to the extent there is a challenge of procedural unfairness, which is not raised in the notice of appeal, your Honours should not entertain it and your Honours should reject it. You were taken to one place this morning where his Honour Justice Leeming raised the question with the parties. If you are making a challenge of procedural unfairness, particularly outside your notice of appeal, it would serve you well to be fair to the judge.
Now, I do not want to lose too much of my time defending Justice Leeming. I am not his counsel, et cetera, but the fact is he put this point four times in argument to the parties. This is not a judge coming up with a stray thought in chambers and then it emerging in the judgment. His Honour put this to the parties. So, can I show you where his Honour put the point. Does not answer everything, but it is unfair to accuse him of unfairness when he is not being unfair.
Now, if you have the respondent’s book of further materials, and if you go first to page 156, at the foot of the page and over the page, is it correct that Father Pickin is the parish priest? Mr Sheller:
He was actually the assistant.
Justice Leeming raises the difference between the two, and he raises some of the evidence. So, he is actually taking counsel to what is in the document, and at line 28 says:
The parish priest seems to be Michael O’Dwyer.
And Justice Leeming says:
And Pickin is his assistant. The reason I got to that was I had understood normally when you had an assistant priest they lived in the same house as the parish priest. That is not this case though as I understand it.
So, his Honour asks in the negative, trying to seek clarification as to whether what would normally be the case for some reason was different, and Mr Sheller – may I say, to his credit – was completely candid with the court as to what evidence there was and there was not. The fact was that, in a case being run 55 years after the event, there was no evidence of fact as to whether someone else was resident, certainly no evidence that there was someone there.
So, for our part, whether we can be criticised for it or not, we said it does look like he is the assistant priest because of these documents, but we cannot put an affirmative argument about someone else being there at the relevant time, because this amount of time later we just do not have it. So, that is the first place. Then, if you go to page 175, it is not as if the point was not put to the appellant. At lines 20 to 37, Justice Leeming says:
A deal of the evidence in the case suggests that there was another adult living in the presbytery, the actual parish priest.
And Mr Prince says:
I think my friend accepts this, there is no evidence that the other parish priest was present in the presbytery, certainly not at the time that the assaults were alleged to have occurred.
So, that is about whether they were there when the assaults occurred:
I don’t think anyone ever suggested that there was another adult in the presbytery at the time.
And he goes on to make some other points, and then in that context, it is in reply that at page 190 – you were taken to the passage this morning between Justice Leeming and Mr Sheller.
GORDON J: And that passage, Mr Sheller correctly says: I am bound by the admission I have made, and that is the basis upon which it should be conducted.
MR GLEESON: Yes, so this is my step 2. Step 2 is just to say, if you are accusing Justice Leeming of a lack of procedural fairness, you should at least look at the way in which his Honour was troubled by this point, as a judge properly would be troubled under section 75A appeal.
All the documents pointed the other way. He raised with the parties, he was concerned about the question, and he raised what implication it had for whether another priest was there. He did it in a context where it was a central plank of her Honour’s findings on vicarious liability that Pickin was the parish priest.
BEECH-JONES J: And he got the final word on the topic, which was: it is not an issue, we are stuck with it. It was left there, and then his Honour went and wrote a judgment completely upending it. It is not a criticism of Mr Sheller. You could raise it, but if the final word was that we are stuck with the admission, and everyone packs up their books on that basis.
MR GLEESON: Well, I would simply put it this way, in defence of what his Honour did. He has raised the point three times, he has raised it with counsel on both sides, it is squarely in the ring as a matter troubling the court, and it was a matter which his Honour was then entitled to compose his best reasons, conscientiously resolving the issues before the court. As I have shown you, this was not essential to the ultimate decision.
GAGELER CJ: And as I understand it, Mr Gleeson, nor is it necessary for any part of your argument in response to Mr Herzfeld.
MR GLEESON: No.
STEWARD J: So, just to complete the issue, I do not know what the position is in New South Wales, but in the Federal Court, there is numerous authority that says the judge is under a duty to ensure that an agreed fact is also true.
MR GLEESON: Yes, and that is what he was saying to the parties, but ultimately it is not dispositive of this appeal.
GAGELER CJ: No.
MR GLEESON: Your Honours, can I come then to Lepore.
STEWARD J: Was there a third step in your argument?
GAGELER CJ: If there was, the moment has probably passed.
STEWARD J: The moment has passed? All right.
MR GLEESON: On the question about youth groups, I have already been to page 561 of the appellant’s book, but that is where Father Dillon confirmed that there would always be adults present if there were youth group functions. So, the point we have reached, at least on our analysis, is if there is no ordinary duty of care, the appeal should be dismissed.
If there is an ordinary duty of care, then there needs to be a remitter to deal with the remaining questions of breach and causation. If there is an ordinary duty of care, then – unless Lepore is, as we would put it, reopened and overruled – the non‑delegable duty of care case must fail. Even if Lepore is reopened and overruled, there was not a sufficient entrustment and assumption of responsibility to create a type of non‑delegable duty of care that could possibly extend to ensure that sexual assault did not occur. That is the structure of what we are putting, your Honours.
Can I ask your Honours to open Lepore. I realise Mr Herzfeld was short on time when he came to it, but it does deserve significant attention. Our first submission is your Honour Justice Edelman put something about the point not being argued. We think, if you look at what Mr Sexton at CLR 514 to 515 ‑ ‑ ‑
EDELMAN J: Yes, I have been back through that. I think the point was argued.
MR GLEESON: Yes, just let me say Mr Keane in his customary fashion put it a lot more succinctly than I could at CLR 517, and Mr Selway – who was no slouch – put it pretty well at 519, at the top. Those on Mr Herzfeld’s side, they put the counter argument pretty clearly at 520 to 521. So, it is in the ring.
We then come to Chief Justice Gleeson, and we rely upon paragraphs 2 and 3 as setting up the context of the case – and indeed this case – absolutely squarely and correctly, because what his Honour recognised was that when you were dealing with the relationship of the school authority and the pupil, you were already in the territory – see footnote (61), Modbury – where the ordinary duty of care required you to take care, or may require you to take care to protect others:
from the wrongful behaviour of third parties even if such behaviour is criminal.
So, the ordinary duty of care could well respond to the very situation we are dealing with if there was fault on behalf of the primary duty‑ower. Importantly, footnote (61) cites Modbury at page 265. In Modbury at 265, paragraph 26, one of the cases cited is Chomentowski.
That is the case that Mr Herzfeld relied upon to say that Lepore was always misguided because there were earlier cases where non‑delegable liabilities were found in respect to criminal acts. Chomentowski is no such case. It is a case which, as Chief Justice Gleeson says, is one where the primary duty‑ower was at fault for failing to take reasonable steps to prevent criminal behaviour by a third party.
So, his Honour says we are not in that territory – paragraph 3 – and we are assuming we are not in vicarious liability territory. The question is: does the non‑delegable duty of care provide for a duty which is more strict than vicarious liability?
EDELMAN J: It would be very odd, would it not, to say, well, an ordinary duty of care can extend to criminal acts, but if you assume a higher duty – you assume a duty to ensure – that cannot extend to criminal acts?
MR GLEESON: No, your Honour. Let me tell you why. The very point Chief Justice Gleeson is making is with the ordinary duty of care. In the realm of negligence, we are concerned with fault in terms of a failure to live up to the standard of reasonable care.
EDELMAN J: Not ‑ ‑ ‑
MR GLEESON: Could I just finish, your Honour. If the risk that I reasonably foresee – as in Chomentowski, as in Modbury – is that a third party, whether they be my employee, my contractor or an outsider, is likely to engage in intentional criminal conduct which is likely to harm my neighbour, if that is reasonable foreseeability and there are reasonable precautions available to me to protect against that behaviour and I do not take them, negligence perfectly appropriately responds and holds me liable. But it does that because it has made a finding of reasonable foreseeability, and it has made a finding of reasonable precautions in response to a case where that is the known risk.
The point the Chief Justice is making is, if we are in a case where as the primary duty‑ower I am not at fault – that is, there is no risk that I reasonably could or should have foreseen, there are no reasonable precautions I could or should have taken – and yet someone who in some way is associated with my enterprise has committed an intentional wrong, does the law simply say no difference here between being liable for intentional wrongs and liable for lack of care, or does the law say we are actually responding to conduct of a different kind qualitatively?
Conduct where to extend that liability is to make a significant policy judgment, because if you are making that judgment, you are not just making it for Maitland in 1969. You are making it for all organisations in like situations who may have people who are not employees, where you are not at fault, where you now become, in effect, strictly liable for their intentional torts.
Now, when his Honour, at paragraph 36 – if you could jump to that – correctly said if we adopt this principle, we have to say what effect will this be having on daycare centres, what effect on clubs providing recreational activities, what effect on all sorts of other organisations:
commercial, charitable, large or small, religious or secular, well‑funded or mendicant –
That is a fundamental difference where one is extending the liability for what the law normally does not hold you liable for: for the intentional wrong of another person. It is a big step to take.
For his Honour to recognise that, we submit, is not to make a category error. It is not to make a logical error; it is not to just miss what is staring you in the face. It is for his Honour to recognise a really significant policy step which – I have to say this to your Honours – if you open Fleming on torts, the 1965 version, or the earliest version of the 1970s – your Honours have them all in chambers, they are great books – you will not find a hint that the non‑delegable duty in negligence is a means to make a person liable for the criminal acts of another person.
Now, your Honours are being asked to restate that law 55 years after the event; you are being asked to reopen Lepore; you are being asked to, we would say, collapse a distinction between intentional tort and negligent tort; and you are being asked to do it, most importantly – and this has not been confronted today – the Parliaments of this country, following these terrible events that emerged in the Royal Commission, have all been grappling with, as a matter of law reform, what steps can and should be taken, particularly going back into the past to deal with this wrong.
Now, Mr Herzfeld can say: do not worry about 6F – that is just another cumulative form of liability, he told your Honours. We want to submit that a fundamental reason why Lepore should not be touched is that the Parliaments in 2018, in partially similar and partly different fashion, have directly addressed the problem of non-delegable duties, and they have chosen to solve it in a particular fashion. This Court should be very slow to retrospectively state the law 55 years ago, inconsistent with the choice the Parliament has made.
Now, I am jumping ahead, but time is short. Can I ask your Honour to go to the next part of the Civil Liability Act. This is really important to what happened in 2018. A couple of things happened, apart from 6O and the like. If you go to 6D to 6F – and this provision is replicated in the Victorian Act – what happened was in 6D, the Parliament created a statutory concept of responsibility.
So, it provided a definition of what it means to be responsible, which has elements of either exercising care, et cetera, which is a factual inquiry, purporting to exercise care, that is a factual inquiry:
or is obliged by law to do so –
That is a legal inquiry – “law”, of course, meaning Australian law, not canon law – and if you then delegate any part of that responsibility, you remain responsible. Then 6E extends the individuals associated with you to a range of people, and what 6F does is:
imposes a duty of care that forms part of a cause of action in negligence.
So, functionally it is the same thing as a non‑delegable duty because the scope of the primary duty now includes this statutory duty, and subsection (2) gives you a responsibility – if you have:
responsibility for a child –
you:
must take reasonable precautions to prevent an individual . . . from perpetrating child abuse . . . in connection with . . . responsibility –
Then what the Parliament has done – this is the first of the two critical choices in subsection (3) – is there is a reverse onus. There is a presumption of breach unless the organisation can establish:
it took reasonable precautions to prevent the child abuse.
Now, as Justice Leeming recognised at paragraph 168, if you restate the law in 1969, as the appellant seeks, you will be doing so inconsistently with 6F because, instead of the organisation having the chance to raise the defence and defeat the presumption, it will be liable anyway.
Now, Parliament in New South Wales and Victoria made that choice, and they combined with it a choice for which they are responsible to the people, which you will see in Schedule 1, clause 43, that it is:
only in respect of child abuse –
going forward. In an area where the Parliament has grappled with the very problem, has chosen to do it in a way which is not as strict as an NDD and where it has deliberately said they make this change going forward, we submit there is the most compelling case for you, as the ultimate custodians of the common law, not to go back and say we will restate the law in 1969 in a way no one could have known of in 1969. That is the first step of it.
The next step, which you have not been taken to so far but is critically important, is 6H. Your Honours, I do not think were taken to 6H in Bird for the good reason that in Victoria there is not, at the moment, a 6H. What 6G and 6H does is directly address the Bird problem by creating a statutory vicarious liability, in addition to the common law, which extends the liability from an employee to individuals “akin to an employee” – the very argument you heard and rejected at common law in Bird – and then 6H imposes the vicarious liability. If you read the terms of the vicarious liability in subsection (1), they are the very terms which are taken by the Parliament from this Court’s decision in Prince Alfred College.
JAGOT J: 6G and 6H.
MR GLEESON: 6G and 6H. The terms of the vicarious liability are the Prince Alfred College terms of vicarious liability, and if I can take you to what Mr Speakman told the Parliament they were attempting to do, which is in volume 9 at page 2350 to 2352 ‑ ‑ ‑
GORDON J: This is tab 55.
MR GLEESON: Yes. At the foot of 2530, he explained what 6F was doing, and he explained this was recommending the Royal Commission’s recommendation to shift the onus, but he said at the second‑last paragraph on page 2531 – in the middle – that it was “prospective only”. So, that is the deliberate parliamentary choice; “prospective only”. And then, in the second half paragraph of that second‑last paragraph, he switches to:
New Division 3 –
that is what is now 6G and 6H, and he says it:
will codify the common law of vicarious liability for child abuse perpetrated by employees and extend it to those who are akin to employees.
Again, it is “prospective only”. Then he explains the history, and what he says is the New South Wales Parliament was expressly responding to that separate recommendation of the Royal Commission that there be:
a non-delegable duty on certain institutions –
No one has done it to date. He says, at that time:
vicarious liability and non-delegable duties was unclear –
Since then, this Court has decided Prince Alfred College:
The High Court outlined the correct approach to . . . an organisation’s vicarious liability for child abuse perpetrated by an employee.
The Court provides:
a legally stable basis on which to implement the intent of the royal commission’s non-delegable duty recommendation.
That provides section 6H. Section 6H uses the language from Prince Alfred College and extends it to those akin to employees to close the loophole, which the court dealt with in Bird.
So, what has happened, given what this Court has said more recently about non‑delegable duty, you might regard it as an impure way in which to implement an NDD recommendation, but the choice of the New South Wales Parliament is that the way to grapple with the NDD problem is through vicarious liability but extending it to persons akin to employees, using the Prince Alfred College formulation of what is within the liability and what is without, and to do that prospectively.
Now, it is hard to think of a case where this Court has been asked not only to overturn a case that stood for over 20 years, to alter fundamental distinctions between intentional and negligent torts, to restate the law 55 years ago when you have the Parliament grappling with the very problem, addressing the problem, but doing it in what it considers to be the correct fashion. So, we would urge you to have the greatest of caution.
GAGELER CJ: Can I just ask, are these provisions replicated anywhere else, Mr Gleeson?
MR GLEESON: That is next bit, your Honour. Victoria did not have this provision when you considered Bird. If you go to the respondent’s supplementary material – further book of material at tab 7, there is a current Bill before the Victorian Parliament to introduce an equivalent provision to 6G and 6H. There is a proposal in that Bill, in clause 93H, that it would be retrospective, unlimitedly. That Bill is still on the table of the Parliament. In New South Wales ‑ ‑ ‑
GORDON J: But that has a retrospective operation as well as prospective.
MR GLEESON: That is my point. What is happening is the Parliaments – they have done what they have done to date. New South Wales, we would submit, has taken two steps. Victoria has taken one step. At the moment, each of them is non‑retrospective quite intentionally. What is on the table for Victoria is potentially that this one be retrospective. To complete the picture for New South Wales, which is tab 8.
JAGOT J: So, which book are you in? When you say tab 8, which ‑ ‑ ‑
MR GLEESON: I am sorry, your Honour, I am in something called respondent’s further bundle of authorities, not materials.
JAGOT J: I see. Sorry, I am in the wrong thing.
MR GLEESON: So, what is happening in New South Wales, there is a Bill – tab 8 – the effect of which would be to amend the non‑retrospectivity clause I told you about, which would make New South Wales also go back in time. Then, as to what is happening, you will see that best from tab 9, which is that the New South Wales Bill was introduced by the government, but the government ended up currently voting against it for the reason given in the first paragraph, that there is:
ongoing work being conducted through the Standing Council of Attorneys‑General –
and they are wanting to see if they can produce an Australia‑wise response. So, for that reason, the New South Wales Bill on the last page was defeated on the second reading speech. The end result is you have Parliament addressing the problem in various ways. You have Parliaments currently looking at the problem, including the very question of retrospectivity. You are being asked to restate what we would say is the law on the same topic in a radically different fashion, and you should not do it.
EDELMAN J: What if Parliament is responding to what is presently the law on non‑delegable duties on a mistaken assumption that it is narrower than it should be, and Parliament then narrows what ought to be the law to create a position which ‑ ‑ ‑
MR GLEESON: Your Honour should not restate the law 55 years ago, in a way no one could have foreseen at the time, on that sort of reasoning, I would submit. This is the most compelling case to leave this matter where it belongs.
BEECH-JONES J: This is all directed to one particular species of liability: child sexual abuse. Lepore and Bird both have application beyond the particular focus of these Bills.
MR GLEESON: That is correct.
BEECH-JONES J: So, whatever might be perceived to be the problem with Bird, if that is perceived to be a problem that is not beyond the particular context, that will not be addressed, and whatever might be seen to be the problem with Lepore beyond on this particular context will not addressed by these Bills, no matter what happens, because they are all – is that right?
MR GLEESON: Yes.
BEECH-JONES J: So, we just sort of stay our hand and wait and see how Bills unfold over time?
MR GLEESON: No, your Honour, I am putting this at the more fundamental level. You are being asked to overturn a solid case that stood for a long time. I have only got to the first two paragraphs of the case. You have all the John factors as to why you should exercise the greatest of caution. We have put that in writing, there is no time to develop that orally.
I am just showing you extra material, which is you are being asked to do it for a reason in a particular context. If someone wants to change the law of non‑delegable duty in a non‑sexual assault context, you exercise your restraint by waiting until that matter comes before you. You do not do it because this case, which is sexual assault, gives an opportunity.
Now, can I just go to some other aspects of Lepore. I have dealt with the way the Chief Justice set up the problem, and if you could go to paragraph 22, his Honour said that:
the first step is to identify the extent of the obligation that arises out of a particular relationship –
And the fact that it may be delegable:
does not transform it into a duty to keep workers free from all harm.
Makes the same point at the bottom of 23. At 31, he makes the point that Introvigne was a case involving negligence by the delegate, and he says:
A responsibility to take reasonable care for the safety of another, or a responsibility to see that reasonable care is taken for the safety of another, is substantially different from an obligation to prevent any kind of harm –
Although it:
involves a failure to take care . . . it involves more.
And if you are to extend liability, the Court should face up to the fact that is the consequence of what is being sought. I have taken you to 36. Then I want to take you, if I might, to Justices Gummow and Hayne.
Importantly, at 241, their Honours explain why Morris v Martin might be regarded as a different sort of case. We would say, on Morris v Martin, that it has been interpreted by this Court sometimes as vicarious liability, sometimes as non‑delegability. That is understandable because Lord Denning was more of a non‑delegable man and the other justices were more of vicarious liability men.
Our critical point is, even if you treat it as a non‑delegable case, what it is saying is that because in bailment there has always been the higher duty, then the non‑delegability folds in behind that higher duty to say that if you do have a duty to protect the goods from theft, you cannot escape the duty by giving the goods to a servant who chooses to steal them. But that is a function not of its non‑delegability, it is a function of the higher duty which has been recognised in bailment.
Now, if you look at paragraph 245, their Honours carefully distinguished between the two different senses in which “ensure that reasonable care” might be understood, and the lesser sense is the one we contend for. The higher sense, which is what was argued for, was:
to ensure that –
the person was:
not harmed by any act or omission of those who actually have charge of the child.
Which is effective the way your Honour Justice Beech‑Jones was putting to me in argument; the NDD would work. Then they trace the history of it. At 254, they come to the cases in the High Court on it; 255, they identify the categories; and in 256, they make the important statement which has not been contradicted, which is that in all the cases in which non‑delegable duties have been considered in this Court, there:
have been cases in which the plaintiff has been injured as a result of negligence.
So, this is important in understanding that Lepore historically is sound because all the non‑delegable duty cases have been ones in which the plaintiff was injured as a result of negligence, which leads to the question at the end of 256: should you use the NDD principle to extend liability to:
deliberate criminal conduct of a teacher constituting a trespass –
There is then some further discussion, but the Court ultimately gives – the judgment ultimately gives four reasons, at 265 and following, why the law should not be extended to include responsibility for intentional defaults by delegates. The first reason is that you would be converting the tort of negligence into:
a duty to bring about a result that no person . . . engaged to take steps connected with the care of the plaintiff did anything to harm the plaintiff.
And as per over the page:
It would sever the duty from its roots in the law of negligence. It would make the employer –
the insurer in this circumstance. Now, that first reason we would say is now strengthened by the conceptual distinction in the Civil Liability Act 2002 I have been to. Paragraph 267, the second reason:
it would remove any need to consider whether –
the primary duty‑ower:
could or should have done something to avoid the harm.
The third reason – 269 – is that it would jar with vicarious liability. That third reason can now be strengthened by the 2018 Act that I have taken you to. It can also be strengthened by this Court’s decision in Bird, because the effect of Bird is that if you are an employee, you may lead to vicarious liability within the limits that the Court has set in Prince Alfred College, but if you are not an employee there will not be vicarious liability for the principle.
This new NDD principle effectively cuts across that by extending what is in substance the same liability to people who do not count as employees. Perhaps more troublingly, if a person is an employee but they are acting outside the course of employment – which was the issue dealt with by your Honour Justice Gleeson in that case – and therefore not liable under vicarious liability, the principal may now become liable because of the larger scope of what non‑delegable duty is. So, that is as conflict there. The fourth point which is ‑ ‑ ‑
BEECH-JONES J: Sorry, but would not the course of their employment define the scope of the duty?
MR GLEESON: No, no, that is part of the problem. The course of the employment is looking at the relationship between the primary duty‑ower and the employee. If NDD is allowed to sit over the top of that, we are looking at – in the first instance – a task assumed by the primary duty‑ower to the beneficiary, and we are then asking whether a relevant part of that task was delegated and, in the course of the delegation, a relevant wrong occurred. The two are not coterminous at all.
GLEESON J: But you would expect that to be narrower. The boundaries of the non‑delegable duty are the tasks that are undertaken, whereas in the vicarious liability concept, you would extend to torts that occurred in the course of the employment.
MR GLEESON: Your Honour, when we read Fleming, in 1965, he made that point that you would expect the NDD to be narrower in that way, but it may also be broader, depending on how the facts of the case occur. Our main point is that you are creating the potential for a jarring with that vicarious liability.
Their Honours’ final point is Williams v Milotin, and this is where they differ from Justice McHugh, but on our reading of Williams v Milotin, even under the old forms of action, it does not authorise pleading a trespass as negligence although it may authorise the reverse. The critical thing now is the Civil Liability Act has explained those distinctions are even clearer than they might previously have been.
Your Honours, my final submission is paragraph 9 of the outline, which is that even if Lepore was overturned based on the factual matters I have been to, you would not find that there was a relevant entrustment and a relevant assumption of responsibility so as to give rise to a non‑delegable duty. Your Honours, can I hand over to Mr Sheller to ‑ ‑ ‑
BEECH-JONES J: Mr Gleeson, can I ask you just quickly one question, just about what you first started with. Are you submitting, one way or another, whether this case falls within 3B(1)(a) – that is, it is a:
civil liability of a person in respect of an intentional act –
so that it is not covered by Part 1 of the Civil Liability Act but is by Part 1B? Or is that not part of your case, one way or another?
MR GLEESON: Could your Honour just give me a moment so I can be accurate on that.
BEECH-JONES J: Yes. I cannot recall – because I did not look at damages, so I cannot recall how this was run at trial on that basis.
MR GLEESON: Can I just check that while Mr Sheller deals with this part.
GAGELER CJ: And Mr Gleeson, can I just ask you one other related question and that is, is it part of your earlier submission to say that the definition of “negligence” in section 5 of the Civil Liability Act necessarily excludes a deliberate criminal act?
MR GLEESON: Yes.
GAGELER CJ: I see.
EDELMAN J: Can I just add one short question to that, which is that ‑ ‑ ‑
MR GLEESON: Sorry, the reason being, part of the reforms was designed to say that we are going to really tighten up negligence in the sense of failure to exercise due care, however it be pleaded, but we are not cutting across the more general law of intentional torts. I should have given an example, but if you look at section 21, what that says is if you are in personal injury damages, but the action that caused the death or injury was negligence, exemplary damages have gone.
So, the whole discussion in Gray’s Case has now been overtaken by section 21. If the substance of your case – the pleading does not matter – is a failure to exercise due care and skill, you cannot get exemplary damages, but if the substance of your case is an intentional trespass or assault, of course the Parliament has left exemplary damages alone, which might be part of the answer I was going to give your Honour Justice Beech‑Jones, that that is part of the divide.
EDELMAN J: Can I just ask very quickly, do you accept that negligence, even in a personal injury case, can arise in two quite different ways? One way is by imposition of a duty as a matter of law where it is reasonably foreseeable in the circumstances that a class of that type of person will suffer physical injury, and another way is by an assumption of responsibility where the defendant has assumed responsibility – maybe for that type of injury, maybe for a broader type of injury – to ensure that care is taken.
MR GLEESON: I do not think I can say yes, your Honour, for the reason the Chief Justice put to me, that under this Act negligence is a:
failure to exercise reasonable care and skill.
So, however you define the entry point, it has to be something that is capable of being breached by a failure to exercise reasonable care and skill.
JAGOT J: But you have to align that with – the definition of “negligence” with section 3B(1)(a)(ia). I mean, it is deliberately saying, yes, generally it cannot be an intentional act, but not in the case of child sexual abuse when it can be an intentional act. You cannot ignore that when looking at the definition of “negligence”.
GORDON J: That is what I would like you to think about, Mr Gleeson.
MR GLEESON: Yes, can I just hand over to Mr ‑ ‑ ‑
GORDON J: I think you have now got it from three judges.
MR SHELLER: Your Honours, the position of the respondent is that if in the event your Honours find that the respondent did owe the appellant a duty, whether it is ordinary or non‑delegable, there remains outstanding issues, and those outstanding issues should be remitted for finalisation in the Court of Appeal.
The first outstanding issue, obviously, is that captured in grounds 1 and 2 in the Court of Appeal, and that is whether the abuse occurred. If I could just, in that respect, take your Honours within the core appeal book to the manner in which those grounds 1 and 2 were dealt with by the Chief Justice and his Honour Justice Leeming.
If your Honours go within the core appeal book to paragraph 154 in the Court of Appeal judgment, which is at page 175, your Honours will see that it was the view of Justice Leeming that, if called upon to decide whether the abuse had occurred or not – that is, the Court of Appeal had to decide it or send the matter back for the trial judge to decide afresh – the question would ultimately turn on what weight was to be given to Mr Perry’s evidence on the one hand, and the appellant’s evidence on the other.
That was the question which his Honour envisaged would need to be addressed. Now, that is where the matter rested, because the view taken by this point in time was that, there being no duty owed, the question of whether the abuse occurred did not have to be decided by the Court of Appeal.
Can I then take your Honours back to what the Chief Justice did. I know this has been touched on already, but just to reiterate his Honour’s view, captured particularly in paragraphs 15 and 16 at core appeal book 127. At 15, the Chief Justice identifies that Justice Leeming has:
persuasively highlighted . . . significant difficulties with the –
trial judge’s:
acceptance . . . that the sexual assaults occurred.
And those are identified in detail by his Honour there. Then, at paragraph 16, his Honour, as Justice Beech‑Jones has already referred to, talks about the success of that challenge. That is the success of the challenge made by the present respondent in the appeal to the findings that the sexual assault had occurred. In his Honour’s view, were it not for the decision that there was no duty of care, the factual questions about whether the abuse had occurred at all needed to be resolved.
So, we say it is clear from these two judges that that view taken in the Court of Appeal. That is, error had been demonstrated in the fact‑finding on the question of whether the abuse had occurred, such that an intervention, either by the court itself or by sending the matter back, was required. Then if I could take your Honours just to some of the observations made by our learned friend Mr McComish, and in particular paragraph 137.
GORDON J: Sorry, you said there were some outstanding issues to be remitted. Are these some of the outstanding issues, or are we moving to a different topic?
MR SHELLER: Yes, these are some of the outstanding matters to be remitted. First, the question of whether the abuse had occurred.
GORDON J: Thank you.
MR SHELLER: If the abuse had occurred, was there a relevant breach of the ordinary duty, and if there was breach, depending on its form, was that breach causative of loss? Now, if I could take your Honours then to paragraph 137 in Justice Leeming’s judgment, core appeal book 168, our friends criticise his Honour here by saying that his Honour was wrong in saying in the second sentence that:
The plaintiff was not cross-examined on the sexual assaults when he was recalled at trial.
Can I just give your Honours some reference, and this will also pick up the relevant evidence which her Honour the primary judge described as “vivid”. Your Honours have the appellant’s book of further material. At page 488 ‑ ‑ ‑
GORDON J: That is book 2?
MR SHELLER: ‑ ‑ ‑ your Honours will recall that the process of taking the evidence was a little uneven because of expedition, evidence first taken on commission before Mr Kalfas, and this evidence recorded, including by video. What we think is the evidence to which the epithet of “vivid” was attached starts at about page 488, and that is where I was cross‑examining the appellant on some of the details of the alleged abuse.
That continues through to about page 492, and just perhaps this is what her Honour had in mind when talking about an example of “vivid”. At page 490, at about line 32 and below, there is some specific detail or some specific cross‑examination about some of the detail by reference to the evidentiary statement. The question is asked:
what do you say was happening?
to which the answer was:
Are you for real?
from the appellant. That evidence continues, in effect, to the bottom of 492. That is the cross‑examination of the appellant about the abuse, and that all happened on commission recorded by video. We understand or assume that that is what her Honour is describing as the “vivid” evidence.
Then, intervening before the appellant is recalled, this evidence emerges from Mr Perry, and the further hearing which took place before her Honour, if I can just identify, your Honour, where that evidence is. So, this was the opportunity for her Honour to see the appellant. The cross‑examination starts, still within the same appellant’s further materials, at page 576.
GAGELER CJ: What are you seeking to draw from taking us to this?
MR SHELLER: Simply that the cross‑examination on the abuse itself is almost entirely captured in the evidence on commission, which was then caught on video, which was then available for her Honour to see, and then available for the Court of Appeal to see. The further hearing involving the plaintiff, where her Honour got to see him give evidence, did not have as its subject matter the abuse itself, but rather what had been said by Mr Perry.
JAGOT J: It did, at 599.
MR SHELLER: At the very end, and it is simply a Browne v Dunn series of – three questions asked at the very end.
JAGOT J: You might say that is a vivid answer. Just looking, black and white, on the page:
I was the one that suffered. No one else. Not you or him –
It is pretty – you could call that vivid.
MR SHELLER: Well, the bulk of the evidence given on the question of the abuse was that captured on camera, and then when ‑ ‑ ‑
BEECH‑JONES J: Or at least you had to be there.
MR SHELLER: Yes, and then what her Honour was looking at, or was describing as “vivid” was, with respect, from looking at the video which was, of course, then available to the Court of Appeal. In terms of the process, though, going back to what the Court of Appeal had to say and what Justice Leeming had to say, at 138, on page 168, his Honour refers to or makes a finding that the:
account was demonstrably unreliable –
and there is no challenge in this Court by the appellant to his Honour’s finding there, and then that has five bases. It continues for the balance of that paragraph.
JAGOT J: They do not need to challenge it, because they have the – it does not overturn the primary judge or her findings.
MR SHELLER: In my respectful submission, the error in terms of the fact‑finding was made out before their Honours in the Court of Appeal such that their Honours should be given that opportunity to finish the task, which they commenced ‑ ‑ ‑
JAGOT J: I understand the point.
BEECH‑JONES J: So, are you saying we have this kind of position where two judges have set the findings aside but not made them, and one judge has said: no, the findings were right, or I found them ‑ ‑ ‑
MR SHELLER: Two judges have set aside the finding that the abuse had occurred, without then going on to either send the matter back for a finalisation of that finding or make the finding themselves, and then the remaining judge himself found error – he does not specify what – in the fact‑finding process, but then goes on to find no ultimate error on the question of whether the abuse had occurred.
So, that is the situation we are left in, and in our respectful submission, by reference to the notice of contention, we should be given that opportunity, as it were, to have this matter – this fundamental question of whether the abuse occurred or not – returned to the Court of Appeal so it can finish that exercise.
There were, before – as set out at paragraph 138 – sound reasons for the finding of error on the part of the trial judge such that this was a real issue that required determination. As I have shown your Honours already, by reference to 154, really, that question is, by comparing these two diametrically opposed accounts of events at the presbytery, on the one hand advanced by the appellant and on the other hand advanced by Mr Perry, whose evidence was by and large accepted – even by Justice Ball in his differing view on the factual matters determined – that Mr Perry was credible.
Fundamental to the appellant’s factual case about the abuse was that he was alone in the company of Father Pickin at the presbytery. That was an essential part of his case advanced throughout his evidentiary statements, in terms of, at least, the first evidentiary statement, accompanied by assertions that there were periods of 20 minutes or 40 minutes in which Mr Perry was away from the presbytery when the abuse occurred.
Those are serious matters advanced on behalf of the appellant to form a basis for an acceptance of his account that he was abused, which the Court did not accept, which the trial judge did not accept, and having not accepted it, nonetheless did not bring that into account in ultimately determining whether the abuse had occurred.
GAGELER CJ: Mr Sheller, are we still leaving Mr Herzfeld three minutes?
MR SHELLER: Yes. Your Honour, those are all the matters we wanted to say. We otherwise rely upon our submissions on the question of breach.
BEECH‑JONES J: Mr Sheller, you were at the trial, so you may know. On my quick reading of the pleadings and particulars and so forth, it does look as though there was an acceptance that the Civil Liability Act restrictions on damages applied. Is that so?
MR SHELLER: So, on damages, the trial judge allowed two different amounts. One was predicated on vicarious liability, so that can be put to one side. The other was on no vicarious liability, the restrictions under the Civil Liability Act were held to apply, because 3B does not click in because the Diocese is not the perpetrator of the intentional tort. So, that is how it worked.
BEECH‑JONES J: And that was the basis?
MR SHELLER: Yes.
BEECH‑JONES J: Yes. Thank you.
MR SHELLER: Thank you, your Honour.
GAGELER CJ: Thank you.
MR HERZFELD: Your Honour, I think I should have 18 minutes, given there was 15 extra minutes, but I will try to do it in five. Your Honour the Chief Justice asked where the language of “Church events” came from. It came from the respondent’s closing submissions to the primary judge – see respondent’s book of further materials, page 60, at paragraph 48.
Your Honour Justice Edelman asked whether it was put in the Court of Appeal that the primary judge’s reference to the Cunneen Report should be understood to be a reference to the 1987 letter. That was accepted by both sides – see respondent’s book of further materials, page 172, at lines 34 to 41, and 189, lines 26 to 35.
Your Honour Justice Gordon asked about the facts that we particularly rely on for non‑delegable duty, especially as to entrustment. Can I give your Honour these references in our written submissions in chief: paragraphs 25 to 29 and 38 to 40. Entrustment, in particular, is at paragraph 29. In reply, paragraphs 14 to 19; entrustment is dealt with particularly at paragraph 17. In addition, appellant’s book of further materials, volume 2, pages 505 to 506.
In relation to duty of care, there was an attack by Mr Gleeson on the weight to be given to Father Dillon’s evidence. That evidence was unchallenged and uncontradicted by any competing evidence from the party best able to lead it – namely, the respondent – either on the question of the role of the parish priest or on the knowledge of bishops and so on as to the risks of sexual abuse. Mr Gleeson placed an emphasis on that part of Father Dillon’s report referring to the power of a parish priest to have events at the presbytery:
directly part of the Church’s mission –
but when the whole of his evidence is read, it is explained how broad that was thought to be, really amounting to that which was decided by the parish priest to be suitable, including social activities. It is irrelevant that there were some limits placed on the parish priest’s authority if the course of conduct was sufficiently broad to capture the kind of task which was at issue here.
In relation to reasonable foreseeability, in principle it would be sufficient for a duty of care and reasonable foreseeability to be tested by asking simply about personal injury. That is, a kind of harm distinguished, for example, from economic loss, but we have in any event shown your Honours how sexual assault was reasonably foreseeable either because of the knowledge of the Diocese or that which it ought to have known in the circumstances.
If that is so, the duty of care follows a priori for other kinds of personal injury not caused by intentional sexual abuse. In this case, the breach, of course, was failing to prevent sexual abuse by the priest, and that was what the primary judge’s findings about breach addressed. Those findings were the correct finding to make, however the duty is framed, because the facts in this case involved sexual assault.
In relation to Father Doran and, in particular, his duty to report a complaint, I referred you in chief to the passages in O’Connor v Comensoli. In relation to paragraph 230 of Justice Leeming’s reasons, there was no evidence before the court that the various people that he mentioned on the various committees were senior to parish priests. The evidence from Father Dillon was that parish priests in the hierarchy were directly below the Bishop.
Those other committees would have been off to the side. The fact that there were such committees does not demonstrate that they were more
senior than parish priests. Again, no evidence from the party one would have thought best placed to controvert Father Dillon’s evidence on that point, if they wished to do so.
In relation to non‑delegable duty, Mr Gleeson sought to get something out of 5Q and the other provisions of Part 1A. That does not work, for the reason your Honour Justice Jagot pointed out, that those Parts are explicitly disapplied by section 3B in a case of this kind. It was accepted that provision applied – see the primary judge’s reasons at paragraph 273. You therefore get nothing out of those provisions.
We were criticised for our reference to Chomentowski. That was a case about an employer’s duty to ensure the safe system of work, and in that particular case, the employer failed to exercise reasonable care to prevent an attack by third parties. We now recognise that duty as a non‑delegable one, and if it were otherwise, an employer who leaves the safety of their workplace to a contractor will escape if one employee, while skylarking, intentionally and unlawfully and unlawfully injures another.
In relation to the Civil Liability Act reforms as a suggestion that your Honours should not correct the error in Lapore, as your Honour Justice Beech‑Jones pointed out, they are not on the same topic as was submitted by Mr Gleeson, they are on a limited topic – that is, child abuse proceedings – whereas the holding in Lapore applies to any kind of non‑delegable duty. Even if it was the case that it was limited to child abuse proceedings, there is no indication in the text of the legislation or the extrinsic material that Parliament was doing anything other than supplying an additional remedy to plaintiffs.
Finally, the cross‑examination before the primary judge about the assaults begins at – assault, rather – yes, the assaults – let me start that again, I am trying to do this too quickly, I am sorry. The cross‑examination before the primary judge of the appellant about the assaults begins at appellant’s book of further materials, volume 2, page 580, and goes all the way through to the page that your Honour Justice Jagot mentioned. It was extensive. I think I am two minutes behind. I am sorry, I did my best.
GAGELER CJ: Thank you.
MR HERZFELD: I think Mr Gleeson wants the last word.
GAGELER CJ: We did ask him a question, which he is yet to answer.
MR GLEESON: I do not want the last word. There is not a one‑line answer to the question. Mr Herzfeld just referred to paragraph 273 of the
primary judge, which says that at trial, your Honour Justice Beech‑Jones, the parties agreed the damages were assessed at common law.
BEECH‑JONES J: When it was vicarious.
MR GLEESON: When it was vicarious.
BEECH‑JONES J: And I was wondering, what is the position with non‑delegable?
MR GLEESON: What I had been trying to say in chief was if you are running a negligence case, you are within Part 1A, and “negligence” means:
failure to exercise reasonable care –
And then you are under the Act, but it has to be a negligence case you are running. I took you to 5Q, which cannot be simply disapplied, as Mr Herzfeld said, if his case is a case in negligence – in the tort of negligence – he is caught by 5A, and 5Q applies, and the damages would be capped under the Act.
Now, apparently there is some New South Wales Court of Appeal authority which says that 3B, so far as it is directed to the primary offender, carves that out of the Act, and then the exception brings back in the limited provisions of 6F, 6H and 6O, so that is ‑ ‑ ‑
GAGELER CJ: Mr Gleeson, I think we would need a note from you on this.
MR GLEESON: I am sorry I cannot do it better than that, your Honour. Yes, can we do that?
GAGELER CJ: How long do you want?
MR GLEESON: We will just do it – we will do it in two days, your Honour.
GAGELER CJ: In two days. And Mr Herzfeld?
MR HERZFELD: Yes, we will need an opportunity to respond to this, because it has the quite radical consequence that I think, on the respondent’s case, now 5Q is in play.
GAGELER CJ: You can put this in writing, Mr Herzfeld. How long do you want?
MR HERZFELD: Yes. We will need a week.
GAGELER CJ: Yes.
MR HERZFELD: This is not a small issue just relevant to damages down the track.
GAGELER CJ: Well, Mr Gleeson, you put in your note in two days, and Mr Herzfeld, you have a week after that.
MR HERZFELD: Thank you, your Honour.
GAGELER CJ: Thank you. The Court will consider its decision in this matter and will adjourn until 10.00 am next Tuesday in Perth.
AT 4.20 PM THE MATTER WAS ADJOURNED
0
3
0