AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle ABN 79469343054

[2025] HCATrans 50

[2025] HCATrans 050

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON TUESDAY, 29 JULY 2025, AT 9.30 AM

Copyright in the High Court of Australia

HIS HONOUR:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR J.A.G. McCOMISH appears for the appellant.  (instructed by Koffels Solicitors & Barristers)

MR J.C. SHELLER, SC appears with MS C.J. ROBERTSON for the respondent.  (instructed by Makinson d’Apice Lawyers)

HIS HONOUR:   I have read the affidavit of Sarah McLellan filed 17 July and I have read the affidavit of Abigail Tisbury affirmed 28 July.  I have also read the submissions of the appellant filed on 21 July and the submissions of the respondent filed on 28 July.

So, I understand that we are concerned only with information that would identify the appellant or the person who is referred to in the judgment of the Court of Appeal as “BB”, and that we are concerned only with information contained in the appellant’s book of further material or in the respondent’s book of further material.  Mr McComish, is that understanding correct?

MR McCOMISH:   Yes, save in one important respect, Chief Justice, and that is the identity of the persons whose identity might be the subject of the order.  Unfortunately, Ms Tisbury’s affidavit is materially inaccurate.  Could I invite the Court, if the Court has before it – the first volume of the appellant’s book of further materials, and could I invite the Court to go to page 120 of that book.  Is that convenient to the Court?

HIS HONOUR:   It may or may not be, Mr McComish, I ‑ ‑ ‑

MR McCOMISH:   All I can say is, at that page, the Court will see mentioned the names of three persons other than Mr AA or Mr BB.  That is simply an example of other persons alleged to have been the victims of child sexual abuse being mentioned in, relevantly, the appellant’s book of further materials.  That is the reason the form of order proposed by the applicant is proposed in the manner that it is.

As the Court appreciates, it is substantially the same form of order made in very similar circumstances by Justice Jagot in the GLJ proceeding, and that is why it is not agreed by the applicant that the restricted form of order proposed by the respondent should be made; there are people other than AA and BB identifiable from these materials.

HIS HONOUR:   All right.  I will hear what Mr Sheller has to say about that.  I am correct in understanding that it is the two books of further material alone that we are concerned with?

MR McCOMISH:   That is so, your Honour.  That is, the appellant’s book and the respondent’s book.

HIS HONOUR:   Correct.  That is the repository of any of this information.

MR McCOMISH:   Correct.

HIS HONOUR:   At least one other question:  I have looked at the judgment of the Court of Appeal and I notice quite some commentary by Justice Leeming on the orders that were made concerning non‑publication and suppression by the judge at first instance.  Does any of that commentary have a bearing on the application before me today?

MR McCOMISH:   In my submission, no, and for two reasons.  Firstly, as the Court appreciates, it is the Judiciary Act and not New South Wales legislation that governs the position in this Court.  Of course, the application is tailored to the legislation and circumstances presenting in this Court.  Secondly, insofar as there was criticism in the Court of Appeal of the circumstances in which orders were made, as it were, post facto at trial, that circumstance simply responds to the expedition with which the proceeding was brought on.

HIS HONOUR:   Yes, I see.

MR McCOMISH:   No doubt – and this is no criticism of either party or those appearing below – I was not one of them, but no doubt if the proceeding had occurred in a more standard pace, then everything would have been done in advance.  In my submission, that is not material to the circumstance before this Court, where at the earliest opportunity the application has been put on.

As the Court appreciates – precisely because the people in question, including those to whom I have referred this morning, were not named in open court in the matter below, and hence not named in the core appeal book, for example – there is a circumstance distinctive to the position of the books of further material that is obviously not relevant to anything that was before the Court of Appeal.  Those are my submissions on that point.

HIS HONOUR:   Then finally, at the time of granting special leave to appeal, I did encourage the parties to attempt to reduce to a single piece of writing a statement of facts to which there would be assent, with clear identification of those facts that are in issue that are not agreed.  Has that been taken on board?  Is it to occur?

MR McCOMISH:   That is so.  There is indeed such a document in preparation between the parties, identifying what is in fact disputed.

HIS HONOUR:   Good.  When are we likely to receive that, Mr McComish?

MR McCOMISH:   Without wishing to bind my learned leader, in the coming day or two.

HIS HONOUR:   Good.  All right.  Thank you.  Is there anything else you wish to say, Mr McComish?

MR McCOMISH:   No, save to rely on the application and read that affidavit formally.

HIS HONOUR:   Of course.  Thank you.  Mr Sheller.

MR SHELLER:   Your Honour, we agree with our friend’s observation that the observations of his Honour Justice Leeming on the question of suppression in the Court of Appeal do not have any effect upon your Honour’s task today.  In relation to the form of the order and whether people are identified or not as alleged victims in the appellant’s book of further materials or the respondent’s book of further materials, that sounds like a fairly arid debate.

We have endeavoured to identify who the people we think are identified and who are not, but that should not really, with respect, trouble your Honour.  So, we would not have any objection to your Honour making the broader order that our learned friends seek; such order to cover off both the appellant’s book of further materials and the respondent’s book of further materials.

HIS HONOUR:   Yes.  Very well.  Thank you, Mr Sheller.

MR SHELLER:   Thank you, your Honour.

HIS HONOUR:   The substantive appeal in this matter is from the decision of the Court of Appeal of the Supreme Court of New South Wales in Trustees of the Roman Catholic Church for the Diocese of Maitland‑Newcastle v AA [2025] NSWCA 72. It is scheduled for hearing before the Full Court on Thursday, 7 August 2025. Before me today is an application under section 77RE of the Judiciary Act for suppression and non‑publication orders.  The application is made by the appellant, it is supported by the respondent.

Section 77RG(2) of the Judiciary Act confers an entitlement on certain non‑parties to appear at a hearing of an application for a suppression or non‑publication order.  To facilitate exercise of that entitlement, the application was listed for hearing in a notice identified as an application for suppression orders.  The notice was published by the Registry on the website of the High Court on 24 July 2025.  No person has appeared at the hearing today other than the parties.

Information sought to be made the subject of the suppression and non‑publication orders is limited to information which would tend to disclose the identity of the appellant or any other person disclosed in the appellant’s book of further material or the respondent’s book of further material against whom a sexual offence is alleged to have been committed.  The ground on which the orders are sought is that the orders are necessary to prevent prejudice to the proper administration of justice.  I am satisfied that ground is established.

As Justice Jagot said in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCATrans 040:

Alleged victims of child sexual abuse may suffer serious psychological harm if their identity is disclosed against their wishes.

Moreover, as her Honour said:

Such disclosure may also discourage other potential victims of child sexual abuse accessing the justice system to ascertain if they can vindicate their allegations.

In the circumstances in which the trial was conducted with expedition, I am satisfied that those considerations are compelling, despite the trial having been conducted in public. Having regard to the requirement of section 77RI(2) of the Judiciary Act, to ensure that the suppression or non‑publication order operates:

no longer than is reasonably necessary to achieve the purpose for which it is made.

I am satisfied that the orders now to be made should be made for a period of 10 years, subject to provision for variation on application.  The orders I therefore make are as follows:

1. Pursuant to section 77RE of the Judiciary Act 1903 (Cth) and on the ground in section 77RF(1)(a) of that Act, that the orders are necessary to prevent prejudice to the proper administration of justice:

(a)the name and identity of the appellant and any other person disclosed in the appellant’s book of further material or respondent’s book of further material against whom a sexual offence is alleged to have been committed, other than Mr Stephen McClung, be supressed; and

(b)there be no disclosure other than disclosure in accordance with order 2, whether by publication or otherwise, of any information tending to reveal the identity of the appellant or any other person disclosed in the appellant’s book of further material or respondent’s book of further material against whom a sexual offence is alleged to have been committed, other than Mr Stepehen McClung (the sensitive information).

1. Order 1 does not prevent:

(a)the Court, any Justice of the Court, the Registrar of the Court, and such Court staff as the Court or a Justice of the Court considers appropriate; and

(b)the parties and their legal representatives

from disclosing the sensitive information as between themselves and so far as is necessary to conduct, regulate or otherwise participate in this proceeding, as the case may be.

1. Subject to any further order, the period for which these orders will operate that is specified for the purposes of section 77RI of the Judiciary Act is 10 years from the date of this order.

1. Liberty is reserved to any party to the appeal proceedings or any person listed in section 77RG(2) of the Judiciary Act to apply by summons and supporting affidavit for an order varying orders 1 to 3, including by extending the period of 10 years specified in order 3.

1. The costs of and incidental to the making of these orders be costs of the appeal.

Those are the orders.  Is there anything else, Mr McComish?

MR McCOMISH:   No, thank you, Chief Justice.

HIS HONOUR:   And Mr Sheller?

MR SHELLER:   No, thank you, your Honour.

HIS HONOUR:   Very well.  The Court will now adjourn.

AT 9.44 AM THE MATTER WAS ADJOURNED