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

[2025] HCATrans 47

[2025] HCATrans 047

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S58 of 2025

B e t w e e n -

AA

Applicant

and

THE TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF MAITLAND‑NEWCASTLE ABN 79469343054

Respondent

Application for special leave to appeal

GAGELER CJ
GORDON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON TUESDAY, 17 JUNE 2025, AT 11.10 AM

Copyright in the High Court of Australia

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

MR J.A.G. McCOMISH appears with MR P.A. TIERNEY for the applicant.  (instructed by Koffels Solicitors & Barristers)

MR J.T. GLEESON, SC appears with MR J.C. SHELLER, SC and MR C.J. ROBERTSON for the respondent.  (instructed by Makinson d’Apice Lawyers)

GAGELER CJ:   I do not have vision of Mr Gleeson.  Are you present, Mr Gleeson?

MR GLEESON:   Yes, I am, your Honour.

GAGELER CJ:   Thank you.  We will call on Mr McComish first.  Mr McComish, speaking for myself, I have a concern as to whether the case presents as a suitable vehicle for considering the non‑delegable duty point, principally because of the absence of findings of fact directed specifically to that issue.  If you could concentrate on that, I would appreciate it.

MR McCOMISH:   As the Court pleases.  I am most grateful for that indication.  As this Court is aware, and it seems not to be disputed, the application raises fundamental questions of law relating to institutional liability, and the question about non‑delegable duties is one which Justice Leeming acknowledged could only be resolved by this Court.

So far as the question of fact‑finding on the non‑delegable duty is concerned, the existence of such a duty was, of course, expressly pleaded, and was expressly identified by the judge as an issue in dispute.  The relevant role pleaded and put in issue was straightforwardly that of incardinated diocesan parish clergy.  The nature of that role and the evidence in support of it was, of course, not seriously controverted by the respondent, and I need to develop that.  The pleaded role, of course, was that Father Pickin, the alleged abuser, had duties as a priest at St Patrick’s Church as part of his apostolate, which included giving religious instruction on the Catholic faith.  The applicant’s claim ‑ ‑ ‑

GAGELER CJ:   Mr McComish, may I just ask – we do not have the pleading I think, or at least I have not seen it.  Does the case you wish to run in this Court differ in any way from the pleaded case at first instance?

MR McCOMISH:   No, your Honour.

GAGELER CJ:   Do you have findings of each of the elements in your pleaded case?

MR McCOMISH:   Yes, I do, your Honour, and that is because, firstly, the pleaded case relied generally on the role of Father Pickin as a parochial clergy of the Diocese, incardinated – that is to say, under the authority of the Bishop – and it was not pleaded by us, nor alleged by the respondent, that he had any special or distinctive role – for example, in relation to youth ministry or the like – that was different from that of an incardinated priest of the Diocese.

That is, of course, the role to which Father Dillon’s evidence spoke, which was, of course, accepted by the judge.  Those findings are set out particularly around paragraph 39 of the judgment.  And then, of course, in relation to vicarious liability and general negligence duty of care, at paragraphs 204, 218, 219 of the primary judgment are the factual matters upon which we rely.  Now, we submit that, in the usual way, a case about non‑delegable duty relies on the task entrusted to the delegate by the party said to be liable; here, the Diocese.  Of course, the Court appreciates that one of the central questions in this case of urgent need of this Court’s attention, in my submission, is the effect of the Civil Liability Act (NSW), and equivalently in other States, on creating from an unincorporated organisation an entity capable of bearing duties.

We say, simply, the task that was delegated to Father Dillon is the same task in respect of which the finding of vicarious liability was made and, of course, it cannot stand in the face of this Court’s decision in DP v Bird, namely, the priestly ministry of pastoral and religious education entrusted to Father Pickin as parish clergy of the Diocese.  That is why I say both in relation to what was pleaded, which identified a straightforward case, that the role delegated the substance of the non‑delegable duty is the task of every member of the parish clergy – that was the evidence that Father Kevin Dillon gave, which was accepted by the judge – which is the set of findings upon which I rely in respect of the non‑delegable duty.

As I say, it is the particular role of the parish clergy in relation to young people and their education that was the very thing that was put in evidence that was identified by the judge as a matter of dispute and upon which submissions were made and evidence was put.  Of course, I must candidly acknowledge that the judge did not, in terms, draw any legal conclusion in respect of non‑delegable duty – her Honour did not consider, herself, that it was necessary for her Honour to do so, given the existence at that point in time of vicarious liability.

But as I say, the factual findings and the nature of the claim put, and the identity of the role delegated, and the nature of that delegation relies on the facts as found by the judge and, in particular, the evidence of Father Dillon not controverted by the respondent in circumstances where, of course, the respondent did not allege that Father Pickin had any particular role different from that pleaded by the plaintiff.

The Court would, of course, be aware that Justice Leeming found it important, in his Honour’s view, that there was a misidentification in his Honour’s view of Father Pickin as parish priest rather than assistant priest.  In my submission, if that be a misidentification, it is both irrelevant to the legal claim put by the plaintiff here, namely, it was a claim that relied on the role of parish clergy generally and did not depend on any particular status of Pickin as being an incumbent of a parish or parish priest.

Secondly, of course, the particular salience that Justice Leeming took from the apparent existence of a parish priest who was not Father Pickin was about the presence of some other adult in the presbytery at the relevant times.  Now, of course, that was never put in issue by the respondent.  It was never put to any of the witnesses, and each of the witnesses gave evidence to the effect that Father Pickin was the only person present at the time and, therefore, insofar as there is any issue now raised in the respondent’s response – taking up, of course the matters identified by Justice Leeming – in my submission, that does not render this case an unsuitable vehicle in any respect.

Firstly because the claim put was a simple one which did not rely on Father Pickin being a parish priest; second, because the facts in fact found by the primary judge are, in my submission, sufficient for this Court’s consideration of the issue of principle; and thirdly and fundamentally, insofar as it raises an issue about the judge’s fact‑finding about the occurrence of the abuse, it is now put on a false and misleading basis, in my submission, because, of course, there never was a case run at trial and there ought not be a case put in this Court about the existence of some other person at the presbytery at the time.  That was not the evidence, that was not what was accepted by the judge.  What was accepted by the judge is sufficient, in my submission, for this Court to consider the role of delegation.

In any case about non‑delegable duty, one of course inquires about what was the task delegated but, in my submission, the respondent’s submissions invite a level of artificial particularity which is inconsistent with the way non‑delegable duty cases are decided in other mainstream areas of the law.  For example, in the hospital cases, one does not require specific evidence – perhaps of a documentary kind – of what is delegated to the triage nurse, as opposed to the surgeon in a hospital.  Similarly, in an educational case, one does not ask what in particular was delegated to the art teacher as distinct from anybody else.  In each case, the delegated task is clear:  the hospital delegates the task of treating the patient; the school delegates the education and supervision of the pupil.

Here, we say what is delegated is the priestly ministry – the word used was “apostolate” – of the Catholic clergy to, relevantly, Father Pickin as an incardinated clergyman of the Diocese of Maitland‑Newcastle.  In my submission, that is a sufficient factual basis for this Court to consider the matter.  We never pleaded any different claim.  We never put in evidence any different claim.  No different claim, no different status or role, was ever put against us either as a matter of law or as a matter of fact and evidence in the courts below, and I simply rely on the facts already found by the judge – admittedly put to work for a different legal purpose, but the factual findings – the nature of the role, the evidence in support of it both from Father Dillon and, relevantly, from each of the lay witnesses who spoke to the role of the parish clergy of a Catholic diocese at the time in question is what I rely upon before this Court.

So, in my submission, insofar as any impediment put against us by the respondent, it seems to relate to essentially three topics, the first of which I have, of course, canvassed in response to your Honour the Chief Justice’s question about an insufficient foundation to consider any non‑delegable duty.  I will, of course, reply to what Mr Gleeson says, but I rely on the same facts that have already been found.

It is also said that this application is said to proceed on assumed facts in relation to the occurrence of abuse, but, of course, it was agreed or proven and not now denied that a great many of the contextual factors relied on, of course, by Justice Ball were perfectly sufficient to establish the occurrence of abuse, including, of course: the fact that Father Pickin was an incardinated priest of the Diocese, subject to the Bishop’s power of direction and control; that he was a priest in the parish of St Patrick’s, Wallsend; that he did attend the school to offer religious instruction; that there was no doubt about Father Pickin’s identity as the relevant priest; that he did have a sexual interest in teenage boys; that he sought out opportunities to have intimacy with them; that he did make use of the church premises for that purpose; that he did ply the boys with drink and cigarettes; that he committed assaults on church premises in respect of both Mr BB and Mr Stephen McClung; that he did invite boys to go on holidays with him; that, in 1969, the applicant was in the second form at Wallsend High School, that Father Pickin’s involvement with him did start, as it did with Mr Perry, in that year.

All of those matters are either agreed or uncontroverted and, critically, as I have said, there was no evidence that any other person, any other adult, was present in the presbytery at the relevant time.  It was a square contest at trial: either the applicant was abused as he said or, as the respondent expressly put, he was lying about it.  There was not any case put that he was mistaken about what had happened to him and that, therefore, if the respondent should wish to controvert that by way of a notice of contention we will, of course, resist that on its merits, but in our submission, the primary judge was right, and Justice Ball was right, for the reasons that they gave, and that therefore, in our submission, this application is not an unsuitable vehicle by reason of proceeding upon assumed facts.  The facts were agreed or sufficiently proven, and as I have already said, that includes the facts relevant to the role held by Father Pickin.

As I have said, the existence of some other person in the presbytery, which was influential to Justice Leeming’s reasons, is not, in my submission, one able to be raised by the respondent in this Court.  It is a classic case either of Blatch v Archer about the ability of one party to prove and the other to controvert, and it is also a typical Coulton v Holcombe point, having conducted its case on a particular basis on the pleadings and on the evidential contest at trial, it is not now open for the Diocese to contend differently on appeal.

Finally, perhaps, it might be said that the remaining questions in the respondent’s appeal to the Court of Appeal that, on one hypothesis, might remain to be determined after this Court resolves the questions put forward by the applicant – namely, breach and causation in respect of the claim in negligence – but in my submission, firstly, those matters would fall away if, as I submit, the claim about the non‑delegable duty were to succeed in this Court, and secondly, even if that were not so, those matters are capable of remitter, and there are, of course, many cases in which this Court has resolved important questions of principle and remitted any remaining matters for the determination in accordance with law by the Court of Appeal or by the primary judge.

That occurred most recently in Valuer‑General v WSTI, as your Honours would be aware, and there are many cases of that occurring in the common law context:  Deal v Father Pius Kodakkathanath, Pledge v RTA, Whisprun v Dixon, both in 2004.  So, in my submission, this application is a suitable vehicle to ventilate important questions of principle.  There would be an obvious unfairness, in my submission, in holding the applicant to be disadvantaged by the respondent’s forensic choices at trial, and in circumstances where, as I submit, there is a sufficient factual foundation and a sufficient foundation in the pleaded forensic contest at trial for this Court to consider those issues of principle, particularly in circumstances where Justice Leeming himself acknowledged the existence of a legal question that only this Court would resolve, given the importance of the application to a very large class of litigants in other matters, I invite the Court to grant special leave.

I am, of course, willing to respond to such further questions as the Bench may have.  Otherwise, I will respond to Mr Gleeson in reply.

GAGELER CJ:   Yes.  Thank you, Mr McComish.  Mr Gleeson.  We can hear you; for my part, I cannot see you.  Mr Gleeson, are you still with us?

MR GLEESON:   Your Honours, I have asked to have that corrected, but I do not appear to have succeeded.  I can hear your Honours.  If you cannot see me, I apologise.

GAGELER CJ:   You should proceed, Mr Gleeson.

MR GLEESON:   Thank you, your Honours.  Your Honours, our primary submission is the matter is not appropriate for consideration of overturning Lepore and establishing a non‑delegable duty because, the way this particular case was run, there are no fact findings at either level which would enable you to consider that question.

As it has been put this morning, the task that is described as “delegated” to Father Pickin is said to be identical to the task that has been relied upon by the primary judge for the vicarious liability part of the case that is now not available in law.  That has been described at a very high level of generality as the priestly ministry of pastoral care and religious instruction in the Diocese entrusted to every member of the clergy.

Your Honours will appreciate that at that extreme high level of generality, it is exceptionally difficult to understand whether the law would or would not impose a non‑delegable duty and whether any such duty would extend to criminal assaults because, if described at that level of generality, there is no real inquiry conducted into what was the assumption of responsibility by the Diocese to the plaintiff or persons in the plaintiff’s class, so, the attempt to avoid the lack of a factual foundation based on an over‑generalised statement of a non‑delegable duty, we would ask your Honours to reject.

In terms of the four paragraphs of the primary judge that are said to be repurposed for non‑delegable duty, they are firstly paragraph 39, which concerns evidence of Father Dillon about the conduct of parish priests and their use of presbyteries - - - 

JAGOT J:   Sorry to interrupt, Mr Gleeson, do we not start with the admissions at paragraph 10 that were recorded by the – even leaving aside the assistant priest issue and whatever effect that has, that:

The Bishop appointed Father Pickin –

that Father Pickin attended the high school to “provide religious” – et cetera.  So, the points at 5 through to 11, is that not a starting point?  Those matters were admitted.

MR GLEESON:   That could be a starting point, your Honour, I accept that.  As to those matters, the matter in paragraph 5, while it was admitted, was explained by Justice Leeming, after giving procedural fairness to all parties, as being contradicted by every document in the case, and his Honour at paragraph 79 held that Father Pickin was not the parish priest.  There is no ground of proposed appeal to overturn paragraph 79 of Justice Leeming either on a ground of procedural fairness or because it was factually in error.  So, as it has been put this morning, the case really strikes out the word “parish” in front of “priest” in paragraph 5.

As to paragraph 6, Justice Leeming has explained that it was not as decision of the church whether Father Pickin would attend the local high school and provide religious scripture education classes.  That was a decision from the Department of Education, so it does not bear upon any assumption of responsibility by the Diocese to the plaintiff or persons of the plaintiff’s class to assume reasonable care was taken.

As to paragraph 7, that fact is unrelated to the way in which the non‑delegable duty is sought to be established.  It had nothing to do with that matter, that is, the same matter as paragraph 6.  As to paragraph 8, that is true – 9, 10, 11 and 12.  So, if that is not just the starting point but the high point of the case, one does not see on those facts what would be necessary, namely, an assumption of responsibility by the Diocese to the plaintiff or persons in the same class that priests would not assault and batter children when they were taken to the presbytery.

GORDON J:   You may be coming to this, Mr Gleeson, but I had understood that those admitted facts, plus 39, were to be read with 204, where there was a finding that the Diocese had, in effect, given him the “power, control and authority”.

MR GLEESON:   So, part of the problem, your Honour, with paragraph 204 is, as seen from the first bullet point and many others, this was evidence of Father Dillon directed to the role which a parish priest might have, not directed to the role of the assistant priest.  But beyond that, the important parts of Dillon’s evidence, as seen on page 49 of the judgment, the fourth and the last bullet points, and 50, the second and the fifth bullet points, were that Dillon was not saying that it was any part of the role delegated by the Diocese to a priest – parish priest or otherwise – to be conducting events in private which were not for church purposes.  And you see that in particular in 205 and 206.  Paragraph 206:

In his experience gatherings such as youth groups would always involve other adults –

And 208, conduct of:

consuming alcohol and cigarettes in the presence of children was totally foolhardy and irresponsible and out of order for a priest, reprehensible and to be condemned.

So, Dillon’s evidence in fact was that this was not a church event, this was not an example of religious education, there was nothing delegated by the Diocese to the priest when he carried out what occurred on the Friday night.  It goes further in the findings of the ‑ ‑ ‑

GORDON J:   Does that extend also to 210, which does deal with the assistant priest point?

MR GLEESON:   Paragraph 210 assumes he is the parish priest:

I am satisfied that like the assistant priest considered in Bird, the Diocese –

gave him:

a special role when it appointed him to the position of parish priest –

So, 210 and following is very heavily tied to the parish priest notion.  Paragraph 212 fails to consider that it is the Department which has invited him to do those other activities, and it could hardly seem to be a delegation by the Diocese that he carry out the Friday night activities.  Paragraph 214 is tied to “parish priest”, and each of 215 through 219 all hinge off that finding, as well, as you will see in 218:

That the Friday nights he arranged were not “Church events” does not preclude the Diocese’s vicarious liability.

So, the finding is that this was not a church event.  There was no finding he was bringing the people there for religious education.  There was no finding the plaintiff was coming there as a parishioner, in that capacity.  They are the types of matters that might have needed to be explored if one truly was seeking to set up a non‑delegable duty.

When the primary judge comes to the ordinary duty of care – which is 224 and following – you see similar problems in repurposing those findings for the non‑delegable purpose.  For instance, in 228, that is hinged upon in being the parish priest – that is what gave him the access and so on.  At 229:

There is no suggestion that he invited the boys there for religious instruction.

They are the problems in trying to repurpose these paragraphs into a subject which has simply not been explored or tested at either level below.

JAGOT J:   Sorry, Mr Gleeson – Justice Leeming’s findings were not entered into by the Chief Justice below, nor Justice Ball.  How do you get to rely on them?  My understanding of the situation would be, therefore, the primary judge’s findings stand.

MR GLEESON:   With respect, no, your Honour.  The Chief Justice agreed with Justice Leeming at paragraphs 11 and 12.

JAGOT J:   Did he go that far?  He did not actually make a finding, did he?  That is not a principal issue, is it?

GORDON J:   At 16, he says:

I am inclined to agree with Leeming JA’s . . . analysis –

about:

the primary judge’s findings of sexual assault –

MR GLEESON:   I think two different things have happened, your Honours.  At 16, the Chief Justice has agreed with Justice Leeming:

that there were material errors in the fact‑finding process –

in relation to the assault.

JAGOT J:   I am not sure about that, I have to say.  He is “inclined to agree”, but he does not need to agree and therefore he has not agreed, because he has already dismissed it as a matter of principle which, on my reading, would be, if you want to now challenge something – the fact of the primary judge – you cannot just rely on Justice Leeming, he is on his own.  You would have to file – assuming special leave is granted, you would have to file a notice of contention.

MR GLEESON:   Could I put the submission as we would see it, your Honours.  The occurrence of the assault on the one hand and the existence of a duty as pressed below are dealt with differently.  Paragraph 16 is an agreement, as I would submit, that the:

material errors in the fact‑finding process –

on the assault – and, as the Chief Justice says:

it was neither necessary for his Honour (or me) to resolve the factual questions in a rehearing under s 75A . . . nor to remit the matter for a retrial.

So, the Chief Justice has contemplated the material errors were such that there would either need to be a rehearing under 75A or a remittal for retrial.  That is an agreement, we would submit, that there were material errors in the fact‑finding process, and that does not require a notice of contention.

As to the other question, which is really 11 and 12, that is his Honour’s agreement that the evidence did not support the duties of care which were pressed, which was, particularly, the ordinary duty of care.  A particular part of that 11 and 12, which you have not been addressed upon this morning, is the question of knowledge, because part of the primary judge’s findings on vicarious liability and the like had within them a question of or a finding of knowledge which Justice Leeming has overturned and which the Chief Justice has agreed with at paragraph 12.  Can I show you where that is.  In the primary judge, at paragraph 215:

The opportunity for that behaviour was given to Father Pickin by the Diocese, despite the risks which it then knew priests could pose to children, if alone with them.

So, that is a finding of knowledge, and that is one of the findings that Justice Leeming overturned, as you can see from paragraph 208 of the Court of Appeal, in a very detailed analysis of what emerged from Father Pickin’s evidence and from all other evidence on that topic.  In particular, you can see at 210 that Father Dillon’s evidence was of “little weight”, because he was ordained in Victoria, he did not have expertise about the knowledge which the bishop in the relevant diocese would have.

Now, those overturning of the findings on knowledge is what the Chief Justice has agreed with in paragraph 12, and that would be a matter that would not be a matter of a notice of contention, that is a matter of finding.  Justice Ball has agreed with, we would submit, everything in Justice Leeming except for the question of the assault – that is at paragraph 253, first sentence.

So, our submission would be, if your Honours grant leave, the position you are left in is you do not have findings of facts purposed to what would be the relevant question for the non‑delegable duty of care.  You have a proposition about delegation expressed this morning, which is at far too high a level of generality to lead to the possibility in law of a non‑delegable responsibility for criminal assaults.

The findings from the primary judge are in part overturned because they are infected by error, that is particularly in relation to both the parish priest question and the question of knowledge which the Diocese would have at the time, and what one simply does not have are any factual findings about an assumption of responsibility by the Diocese in respect to the matter which counted, which was how AA and Mr Perry came to be in the presbytery on the Friday night.

So, for those reasons, there would be an unsatisfactory basis to decide any question as well as, we would submit, what Justice Leeming has expressed at paragraphs 164 to 168 about the incoherence in allowing a non‑delegable duty of care both in the face of statute and given vicarious liability for the very same conduct has been rejected by this Court, are reasons why the case would fail.

Your Honours, those are the submissions I intended to make, unless there were questions from your Honours.

GAGELER CJ:   Thank you, Mr Gleeson.  Mr McComish.

MR McCOMISH:   Thank you.  Just a few points by way of reply, your Honours.  The first, of course, is an obvious one, namely, the fact that a duty is breached does not deny that the duty exists.  Now here, of course, those Friday night events at which the boys were plied with alcohol and tobacco masqueraded as pastoral care, but the opportunity for them arose solely through the priestly ministry of Father Pickin, most relevantly as scripture teacher at Wallsend High School.  The fact that the duty was breached does not deny that it existed.

Then, secondly, the evidence of Father Dillon was firstly relevant to the ministry exercised by all priests and was explicit about the religious motivation, given the duties of an incardinated diocesan clergyman in relation to giving instruction in government schools.  One can see that summarised by the primary judge in paragraphs 28 and 35.  So, Father Dillon gave the evidence, not controverted by the respondent, about it being a church role – not a State school role – that put Father Pickin in the path of the applicant and the others.

In my submission, there is a sufficient factual foundation for that point and, of course, critically the respondent never controverted or sought to adduce any evidence to say, really, it is the blame of the State school system, for example.  That is why, in my submission, it is not accurate to say that the identification of the role and its delegation is too general.  That is the precise thing to which Father Dillon speaks and, critically, that evidence was not controverted at first instance.

Can I then come to the question about foresight for the purpose of the general duty of negligence.  That, of course, gets to the heart of our submissions on the existence of a duty of care precisely because the Court of Appeal, in our submission, got the wrong test of foreseeability.  We point to a number of matters beyond Father Dillon’s evidence as going to that question of foresight which, when properly analysed, gives rise to the duty of care question which we invite this Court to consider.  That, of course, includes the 1954 complaint to Bishop Toohey about Father McAlinden, the significance of which was misunderstood, in our submission, by Justice Leeming – what mattered was, even from 1954, the Bishop himself was alerted to accusations of wrongdoing by the clergy; the existence of such wrongdoing was not unforeseeable at that point in time.

Secondly, of course, there is the 1966 complaint by Mr Stephen McClung to Father Doran, the significance of which again, we say, was misunderstood by the Court of Appeal.  Then there is the evidence of Father Dillon himself about what was known to bishops and senior clerics – again, not controverted by the respondent – and, of course, the evidence, including from Father Dillon and the lay witnesses, about the structural aspects of hierarchy, intimacy and control that made abuse foreseeable.  Therefore, we say not merely is there a sufficient factual foundation for the primary judge’s finding of foreseeability, it highlights the importance of the question of principle for this Court’s consideration both in respect of non‑delegable duty and general duty in negligence.

Those are the matters by way of reply.

GAGELER CJ:   Thank you, Mr McComish.  We will adjourn for a short time to consider the course we will take.

AT 11.48 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.59 AM:

GAGELER CJ:   I can see Mr McComish.  Mr Gleeson, are you with us?

MR GLEESON:   I am with your Honours.  I have been told it is some link between my screen and your Honour’s screen, which is unhelpful, and I apologise for that, but I am told other people can see me, unfortunately.

GAGELER CJ:   I just need to know you are here.

MR GLEESON:   I am here.

GAGELER CJ:   There will be a grant of special leave to appeal in this matter.  The appeal will be listed for hearing in Canberra on Thursday, 7 August, for one day.  The Court will require, in advance of the hearing, a precise delineation of the questions of fact said to be in issue.  That may require an amendment to the proposed notice of appeal.  It may require a notice of contention.

Preferably, there would be an agreement between the parties, reduced to writing, which identifies those facts said to bear on the issues in the appeal that are agreed, those that are contentious and the scope of the dispute concerning the contentious facts.  If it would be of assistance to the parties in producing such a document, there is a possibility of a directions hearing.  That is not going to be foisted on the parties by the Court, but there is a firm expectation that issues of fact will be either resolved by agreement or reduced to the clearly differentiated positions of the parties.

Very well.  The Court will now adjourn until 10:00 am tomorrow for the delivery of judgments.

AT 12.01 PM THE MATTER WAS CONCLUDED