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

[2024] NSWSC 1183

Supreme Court

New South Wales

Medium Neutral Citation:

AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2024] NSWSC 1183

Hearing dates:

23, 26 – 28 August 2024

Date of orders:

20 September 2024

Decision date:

20 September 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

Judgment for the plaintiff. Parties to confer and provide proposed final orders that give effect to the conclusions reached within 14 days of this judgment.

(1) This judgment not be published before 2 October 2024, other than to the parties and the two tendency witnesses, or their legal representatives, so that submissions can be advanced about whether further orders should be made under s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and that this order applies in the Commonwealth, that being necessary to achieve the purpose for which it is made.

(2)   The grounds on which this order is made are that:

(a)   A question arose about the anonymisation of the names of the plaintiff and tendency witnesses, given the child sexual abuse with which the judgment deals, which had not been dealt with at the hearing. Such orders having been made in other cases where civil claims have been pursued in relation to distressing historical child sexual abuse.

(b) Given the child sexual abuse which the plaintiff and the tendency witnesses dealt with in their evidence and the distress and embarrassment it obviously caused them, it is in the public interest to make the order the parties sought, the public interest in that order significantly outweighing the public interest in open justice: s 8(1)(e).

(c) The evidence given in open court in these civil proceedings about various child sexual abuse did not attract the provisions of s 8(1)(d), which is restricted to criminal proceedings in which distressing or embarrassing evidence about offending of a sexual nature is given.

(d) That child sexual abuse could have been the subject of criminal charges, that also giving rise to the considerations which s 8(1)(d) addresses.

(e)   In the context of the publication of this judgment, I was satisfied that the public interest accorded with the short opportunity sought for submissions to be advanced about the appropriate orders to be made about the judgment when published. That was reinforced by the plaintiff’s very serious ill health.

(f)   The matter will be listed for further directions at 9.30 am on 1 October 2024 about any further orders sought.

Catchwords:

EVIDENCE — Tendency evidence — Significant probative value — Whether tendency evidence admissible under section 97 of the Evidence Act 1995 (NSW) — Evidence admissible

EVIDENCE — Witness evidence — Whether basis of expert opinion adequately disclosed — Whether evidence admissible under section 79 of the Evidence Act 1995 (NSW) — Evidence admissible

EVIDENCE — Witness evidence — Where evidence relates to historic events — Whether imperfections of evidence about past traumatic events should result in evidence being rejected

NEGLIGENCE — Vicarious liability — Where Diocese did not employ parish priest — Whether Diocese was vicariously liable for parish priest assaulting a minor — Vicarious liability established

NEGLIGENCE — Whether duty of care was owed to minor — Whether risk was reasonably foreseeable and not insignificant — Whether reasonable person would have taken precautions against that risk of harm — Whether duty breached

NEGLIGENCE — Damages — General exemplary and aggravated damages — Whether harm suffered justified award of aggravated or exemplary damages

NEGLIGENCE — Damages — Economic loss — Earning capacity — Where harm suffered claimed to have resulted in lost future earning capacity

TORTS — General principles — Negligence — Vicarious liability — Historical sexual assault — Assessment of damages

Legislation Cited:

Civil Liability Act 2002 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW)

Evidence Act 1995 (NSW)

Limitation Act1969 (NSW)

Cases Cited:

AA v PD [2022] NSWSC 1039

Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547; [2009] FCAFC 32

Bird v DP (2023) 69 VR 408; [2023] VSCA 66

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Bugmy v The Queen (2013) 249 CLR 37; [2013] HCA 37

Burns-Dederer v R [2023] NSWCCA 191

Buzzle Operations Pty Ltd v Apple Computer Australia Pty Ltd (2009) 74 NSWLR 469; [2009] NSWSC 225

Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Davie v Magistrates of Edinburgh 1953 SC 34

Diocese of Sale v WCB (2020) 62 VR 234; [2020] VSCA 328

DP v Bird [2021] VSC 850

Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15

Falco v Aiyaz; Falco v Falzon [2015] NSWCA 202

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32

Grayv Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70

Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

HML v The Queen (2008) CLR 334 [492]-[493]; [2008] HCA 16

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

JL v The King [2023] NSWCCA 99

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

KQG v Trustees of the Marist Brothers [2018] NSWSC 1013

Lamb v. Cotogno (1987) 164 CLR 1; [1987] HCA 47

M v M (1988) 166 CLR 69; [1988] HCA 68

Maga v Archbishop of Birmingham [2010] EWCA Civ 256; [2010] 1 WLR 1441

Malek v J.C. Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102

New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258

Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383

PP v DD (No 2) [2021] NSWSC 1312

Prince Alfred CollegeIncorporated v ADC (2016) 258 CLR 134; [2016] HCA 37

Ramsey v Denton [2021] NSWCA 310

Reed v R [2006] NSWCCA 314

SR v Trustees of the De La Salle Brothers [2023] NSWSC 66

State of New South Wales v Riley [2003] NSWCA 208

S1 v Trustees of the Marist Brothers [2016] NSWSC 970

The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

TL v The King (2022) 275 CLR 83; [2022] HCA 35

Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1

Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:

Cross on Evidence, 13th ed (2021)

Category:

Principal judgment

Parties:

AA (Plaintiff)
Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (Defendant)

Representation:

Counsel:
S Prince SC and PA Tierney (Plaintiff)
J Sheller SC and C Robertson (Defendant)
Solicitors:
Koffels Solicitors & Barristers (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s):

2024/00100043

Publication restriction:

Paragraph [370]

JUDGMENT

1. AA seeks damages, including exemplary and aggravated damages, for personal injury which he claims he suffered after he was physically and sexually assaulted by a parish priest, Father Ronald Pickin, at St Patrick’s Catholic Church, Wallsend in 1969, when he was a teenager. He also seeks damages for resulting economic and other losses.

2. The claimed abuse was not admitted by the Diocese, which also denied that it had the claimed duty of care. It also does not admit any breach or the claimed damages. Its claimed vicarious liability for the abuse, if it occurred, was also denied, Father Pickin not being an employee and, on its case, it not having placed him in a position akin to employment, or in any position of power, control or authority over AA. In closing submissions, however, the Diocese’s position was that the abuse did not take place.

3. In 1969 AA was a student in 2^nd form, now year 8, at Wallsend High School, where he attended the class in which Father Pickin that year first gave students instruction in the Catholic faith. There is no issue that on some Friday nights he invited AA and his friend Mr Perry, as well perhaps, on some occasions other boys, to the presbytery where Father Pickin lived alone. But in which school year this occurred was not agreed.

4. It was also agreed that during those visits Father Pickin gave the boys beer and cigarettes and allowed them to play on an old poker machine which he had there and that there were no other adults ever present.

5. AA claims that on some six of those occasions he became drunk to the point that he fell unconscious or blacked out in the bedroom where the poker machine was kept. When he came to, he found Father Pickin forcing him to perform oral sex. He does not claim that Mr Perry was with them in that room on any of those occasions, or that he knew about the assaults. He remembers Father Pickin telling him that Mr Perry was not there because he had sent him to the shops to buy cigarettes, or that he had gone home.

6. Mr Perry denied ever leaving AA alone at the presbytery with Father Pickin. There is no suggestion that he ever witnessed any assault or that AA told him about the assaults, although his oral evidence was that he had tried to talk to Mr Perry, but he was not interested.

7. The hearing was expedited and evidence was taken from AA in June 2024 by an examiner, Mr Kalfas SC, because he is dying of motor neurone disease. AA was also further cross examined in Newcastle on the second day of the hearing, having served a third statement which he made after Mr Perry’s statement was served, following his first cross examination.

8. No evidence could be called from Father Pickin, who died some years ago, but evidence was called from Mr Perry and a number of other witnesses.

Conclusion

9. For the reasons which follow I have concluded that AA was sexually assaulted by Father Pickin; that the Diocese did owe him a duty of care which it breached; that it was vicariously liable for those assaults; and that while he is entitled to damages for the harm which he suffered as a result of the assaults, they cannot be assessed on the basis which he claimed.

Issues

10. The parties agreed a number of matters:

“Matters and Facts not in issue

1. The defendant is a proper defendant for the purposes of Part 1B of the Civil Liability Act 2002.

2.   At all material times, the Diocese of Maitland-Newcastle (the Diocese) had the care and control of Catholic Churches in the Diocese.

3.   The Bishop of the Diocese (the Bishop) had powers of direction and control over incardinated priests.

4.   At all material times, Fr Pickin was an incardinated priest of the Diocese.

5.   The Bishop appointed Fr Pickin as the parish priest of St Patrick’s Church.

6.   Fr Pickin attended Wallsend High School to provide religious scripture classes to students.

7.   In 1969 the plaintiff was in second form at Wallsend High School and received instructions in the Catholic faith from Fr Pickin.

8   There were occasions when the plaintiff attended St Patrick’s Church Presbytery with Alan Perry and Fr Pickin.

9.   The Plaintiff and Perry were given beer and cigarettes by Fr Pickin.

10.   Fr Pickin had a poker machine in the Presbytery which he made available to the boys to play.

11.   Fr Pickin invited boys to go on holidays with him around the time of the alleged assaults.

12.   Sexual abuse of the plaintiff by Fr Pickin, if it occurred, constituted battery.

13.   At all material times the 1917 Code of Canon Law and Presbyteroum [sic] Ordinis were in existence.”

11. What remained in issue was identified to be:

“Matters in issue

Battery and Vicarious Liability

1.   Can the Court be satisfied to the requisite standard that Fr Pickin sexually abused the plaintiff (the Abuse)?

2.   If so, is the defendant vicariously liable for the Abuse?

3.   If so, did the plaintiff suffer harm?

4.   What is the nature of that harm?

5.   What damages should be awarded to the plaintiff and should they be awarded in common law or under the Civil Liability Act?

Negligence

6.   Did the Diocese owe the plaintiff a duty of care?

7.   If so, what is the scope of such a duty?

8.   Was the duty of care non-delegable?

9.   Did the Diocese breach a duty of care owed to the plaintiff?

10.   If so, did the plaintiff suffer harm?

11.   If so, what damages (under the Civil Liability Act) should be awarded to the plaintiff?

Facts in issue

12.   What was the nature of the status and authority of Fr Pickin as a Catholic priest relationship with the defendant?

13.   Did the position and facility of Fr Pickin place him in a position of authority, power, trust and control with the plaintiff and enable him to achieve intimacy with the plaintiff?

14.   Did the sexual abuse of the plaintiff occur in connection with Fr Pickin exercising his functions or status as a priest of the Catholic Church?

15.   Did the sexual abuse of the plaintiff take place in premises under the control and de facto occupation of the defendant and Fr Pickin in connection with his functions or status as a priest of the Catholic Church?”

12. There were also issues at trial about the admissibility of the opinion evidence given by Father Dillon; the privilege the Diocese claimed in a draft of Mr Perry’s statement; and the admissibility of an unredacted version of a police Computerised Operational Policing System (COPS) record which had been served as part of the tendency notice AA had served.

13. I concluded that Father Dillon’s evidence was admissible, Mr Perry’s draft statement was privileged and the unredacted COPs record, only sought to be tendered during the course of final submissions, could not fairly be admitted.

14. Reasons for those conclusions follow.

The opinion evidence

15. There was no issue that Father Dillon had the expertise required by s 79 of the Evidence Act1995 (NSW) to express opinions about the matters dealt with in his reports. What was in issue was whether he had there disclosed, in the way it was argued was required, the basis of his opinions. The single objection taken to all aspects of his reports being that “the basis for the opinions expressed are not specified or not stated”.

16. The opinion rule provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed: s 76(1). Section 79(1) provides an exception to the opinion rule “if a person has specialised knowledge based on the person’s training, study or experience”, which permits the person to give evidence of an opinion “that is wholly or substantially based on that knowledge”.

17. To be admissible under s 79(1), the evidence must thus satisfy two criteria. First, the witness must have specialised knowledge based on his or her training, study or experience. Secondly, the witness’ opinion must be wholly or substantially based on that knowledge: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 at [32]; Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 at [209].

18. The requirement that the opinion be based wholly or substantially on specialised knowledge is thus “an explicit precondition of admissibility” which must be established by the party tendering the evidence in examination in chief: Dasreef at [98]. The links between the expert’s training, study and experience and the opinion “should be spelt out unless they are apparent from the nature of the specialised knowledge”: Dasreef at [99].

19. In some cases, that an expert is expressing an opinion which is based on his or her specialised knowledge requires little explicit articulation or amplification, once the witness has described his or her qualifications and experience, given the subject matter of the opinion expressed: Dasreef at [37].

20. I was satisfied that the s 79 requirements had been met in Father Dillon’s case, given that he was expressing opinions about his experiences of the matters about which he was asked, his report disclosing as it did that his answers were based on his specialised knowledge training and experience in respect of those matters, rather than on any assumptions which he had made.

21. In his first report, Father Dillon explained his unchallenged 55 unbroken years of pastoral work in Catholic Church Ministry, almost all of it in a parish setting, which he believed had afforded him substantial ‘hands-on’ knowledge, experience and awareness of Catholic Church practices and customs in Australia. His CV outlined his philosophical and theological training, as well as his experience of parish life and other church ministries.

22. Father Dillon attended Catholic schools to his matriculation in 1961. He attended the Corpus Christi Seminary Werribee and Glen Waverley from 1962 to 1969 and was ordained to the priesthood in June 1969. He was then an assistant priest at a number of parishes from 1970 to 1983 and the administrator of another parish in 1984. From 1985 until 2022, once retired from fulltime parish duties, he was a parish priest for three different parishes and still now assists regularly at a number of other parishes.

23. Father Dillon has also held a number of other Church positions since 1974. He was for some years the Director of Vocations for the Archdiocese of Melbourne and the Episcopal Vicar for Media of that Archdiocese. In 2013 he was the Founder and Chair of “Lifeboat Geelong” which provides practical, personal and spiritual support for child abuse survivors. He was the Co-Founder and a Board Member of crisis accommodation for the homeless from 2013 to 2017. Over the years he has also been a radio media contributor and a weekly weekend columnist for a newspaper.

24. Father Dillon explained his extensive involvement over the past thirty years with people who had been sexually assaulted as minors by priests, religious seminarians and others operating under the authority of the Church. It was not challenged that while he was not a canon lawyer, he was “very familiar with the laws, rules and customs of the Catholic Church, especially in its management and operation of Parishes”.

25. Father Dillon’s reports were structured by him responding to questions posed. The objection to his reports was explained by way of example, by reference to the answer given to question (b):

Do you recall whether in the 1960’s, that the instruction in Canon 209 (that members of the Catholic laity should maintain communion with the Church) was widely promulgated by the Church as one of its teachings?

26. Father Dillon’s answer was:

[t]hroughout its history, the Catholic Church has strenuously insisted upon the importance of baptised Catholics maintaining an ongoing spiritual connection with the Church, a connection established initially in Baptism. This connection is meant and expected to be maintained and strengthened by weekly Sunday Mass attendance, regular reception of Holy Communion, periodical reception of the Sacrament of Penance (Confession), daily prayer and participation in a wide spectrum of parish-based activities.

27. The deficiency of the report so structured was argued to be that the basis for this and other answers Father Dillon gave about the Catholic Church’s position about the matters raised was “not specified or not stated”.

28. In other questions, Father Dillon was also asked about his recollections, knowledge or opinions about the position which existed in the 1960’s. For example, he said that parish priests were then “under the authority and direction of the Diocesan Bishop”: question (f). Other questions went to his knowledge about matters such as whether priests ministering to Catholic children in State schools were restricted from having interactions with those children beyond such instruction: question (h).

29. It was argued that Father Dillon’s answers to the questions might be right or wrong, but his opinions were not admissible, the basis for them not having been disclosed in the necessary way. The result was argued to be that because Father Dillon answered the questions posed without specification of the facts or assumptions he relied on, his answers were impermissibly “bare ipse dixit”: Dasreef at [93].

30. I was satisfied that this submission could not be accepted.

31. This observation in Dasreef came from the much-cited words of Lord Strachan in Davie v Magistrates of Edinburgh 1953 SC 34 at 39-40:

[The] duty [of expert witnesses] is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. ... [T]he bare ipse dixit of a scientist, however eminent, upon the issue In controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert. (My emphasis).

32. Father Dillon was not giving scientific evidence. It was apparent from his answers that they did not rely on assumptions which he had made and he was not simply giving an opinion on the issue in controversy.

33. What Father Dillon was asked about in question (b) and other questions was his experiences of the Church’s teachings in the 1960s, as well as their practical implementation and how other of its practices were then implemented. Thus in his answer to question (b), he explained his experience of the promulgation of Canon 209 in the 1960s.

34. His training and experience qualified Father Dillon to give the opinion which he expressed by that answer. He gave it by reference to the various forms of communion by which, in his experience, it was then expected that members of the Catholic laity would maintain their connection with the Church.

35. In other answers Father Dillon explained his experience of the implementation of Church teachings in relation to a range of other matters in the 1960s, including in State schools, and the resulting expectations of parish priests. He was also asked about how the Church then managed the use of its properties in a Diocese.

36. In some of his answers Father Dillon explained how certain Church practices in the 1960s were affected by its teachings, after the Second Vatican Council 1962-65. For example in question (f). He also explained some of the problems which he had observed having resulted, including in relation to complaints and allegations made against priests, brothers and nuns. He also gave personal examples, to explain some of his answers, including in relation to the use of Church property.

37. Father Dillon’s answers to the questions posed could no doubt have been better expressed. But that there was any further basis for the answers which he gave which he had to divulge, in order for his reports to be admissible, could not be accepted.

38. I was satisfied that Father Dillon’s opinions, based as they plainly were on his own experiences, training and knowledge, required little further explicit articulation or amplification, given his description of those qualifications, his experiences and the subject matters about which he was asked to provide his opinions.

39. Father Dillon was only shortly cross examined and the Diocese did not call any evidence to rebut his opinions. I am satisfied that his evidence established that in the 1960s the Church had few written rules and regulations about the conduct of parish priests or their use of presbytery premises and that parish priests were given little training in relation to their use, or about their interaction there with children. The eight years of seminary training Father Dillon described was directed towards academic preparation in matters such as theology, philosophy, scripture and canon law, rather than parish life and involvement, with the result that young priests learnt as they went, effectively while they were “on the job”.

40. There is no evidence of any practice or requirement that parish priests not invite young people such as AA and Mr Perry to the presbyteries, even when they lived there alone. That being left to individual priests who were under the control of the Bishop. It should be noted that the Bishop having exercised such control in a variety of ways in Father Pickin’s case was supported by a personnel file.

Mr Perry’s draft statement

41. There was no issue that until Mr Perry’s statement was served the draft statement in issue was privileged, containing as it did confidential written communications between the Diocese’s lawyers and him. Those communications having been made for the dominant purpose of the Diocese being provided with professional legal services relating to these proceedings: s 119 Evidence Act. Namely, in respect of the evidence which Mr Perry might be able to give about matters in issue in the proceedings.

42. AA’s case was that this privilege was lost once Mr Perry’s final statement was served in compliance with the Court’s orders, s122(5)(a)(iii) of the Evidence Act then applying. Section 122 relevantly provides:

122   Loss of client legal privilege: consent and related matters

(1)   …

(2)   Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.

(3)   Without limiting subsection (2), a client or party is taken to have so acted if—

(a)   the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or

(b)   the substance of the evidence has been disclosed with the express or implied consent of the client or party.

(4)   …

(5)   A client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because—

(a)   the substance of the evidence has been disclosed—

(i)   …

(ii)   …

(iii)   under compulsion of law, or

…

43. There was no authority cited in which it has been held that service of a final statement in accordance with a Court’s orders results in privilege in a draft statement which has not been disclosed, being waived.

44. To establish the claimed loss of privilege in such a draft, reliance was placed on what was decided in Buzzle Operations Pty Ltd v Apple Computer Australia Pty Ltd (2009) 74 NSWLR 469; [2009] NSWSC 225, especially at [30], and New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258.

45. In Buzzle, the privilege in issue concerned statements which had been served, not drafts of such statements. It was accepted that privilege might attach to drafts, but that it did not attach to final statements once served, following Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547; [2009] FCAFC 32: at [11]. White J referred at [19] of Buzzle to what he had decided in New Cap at [28-29], observing:

28   A lawyer will provide professional legal services in relation to a witness’ statement of evidence where the lawyer is asked to advise on what the statement should contain and settle the form of the statement. The deployment of the final report by the plaintiff’s lawyers through its service on the opposite party and its tender into evidence will also constitute the provision of professional legal services relating to the proceeding.

29 Section 119 directs attention to the dominant purpose for which each confidential communication or confidential document comes into existence. The dominant purpose for which a final expert’s report or final witness statement is brought into existence would presumably be for the purpose of being laid before the Court as the witness’ evidence. Prima facie, it would not be privileged (Attorney-General (NT) v Maurice [(1986) 161 CLR 475] at 480).”

46. In New Cap, it was privilege in the draft of an expert’s report which was in issue. White J did not accept that service of the final report resulted in privilege in draft reports and prior communications between the plaintiffs’ solicitors and the expert being waived: at [42]-[44] ff.

47. In my view, consistently with White J’s approach, privilege in a draft statement in which a legal adviser communicates with a witness about the evidence the witness may be able to give about the matters dealt with in the statement, is also not waived by later service of the final statement, in accordance with a Court’s orders.

48. Consistently with s 122(5)(a)(iii), serving a witness’ final statement in accordance with such orders may result in disclosure of the substance of only part of what was contained in an earlier draft statement. For example, the final statement will not disclose earlier confidential communications between the lawyer and the witness about what his or her final statement might deal with, which was communicated in the earlier draft. Service of such a final statement thus will also not involve the client or party acting in a manner which is inconsistent with an objection to adducing the draft statement being maintained, if the confidential communications between the party’s lawyer and the client have not been disclosed by service of the final statement.

49. In the result I was satisfied that it had to be concluded that privilege in Mr Perry’s draft statement had not been waived by service of his final statement, given the confidential communications in the draft which had not been disclosed by service of his final statement.

The tendency evidence

50. AA served two tendency notices, relying on s 97 of the Evidence Act. The first was amended at the hearing, without objection. It specified the claimed tendency to be:

“That while he was a priest, the late Father Ronald Pickin had the following particular state of mind and/or tendency to act in the following particular ways:

1.   Father Pickin had a sexual interest in boys;

2.   Father Picking [sic] sought out opportunities to achieve intimacy with boys, including by inviting boys to come to his private residence and to accompany him on holidays;

3.   Whilst under his control in a private setting, Father Pickin provided alcohol and cigarettes to boys who were underage;

4.   Father Pickin had a tendency to sexually abuse boys who were in his care when he was able to do so;

5.   Father Pickin exploited his position as a priest by asserting his authority to enable him to act on his sexual interest in boys;

The tendency evidence sought to be adduced bears upon the facts in issue in the plaintiff’s claim including whether: Father Pickin sexually abused the Plaintiff; and the nature of the interactions between Father Pickin and the Plaintiff.”

51. This notice identified the evidence to which it was directed to be paragraphs 14, 15 and 16 of AA’s 15 March 2024 statement; paragraphs 9 and 18 of Mr Perry’s July 2024 statement; evidence given in criminal proceedings in the District Court in 2015 in the prosecution of Father John Denham; a complaint made to police by “a person” of sexual abuse by Father Pickin between 1983 and 1987 when the complainant was a child; and a complaint to police by “a person” of sexual abuse by Father Pickin between 1979 and 1991, when that complainant was a child.

52. The admissibility as tendency evidence of AA and Mr Perry’s statements was in issue.

53. Of the other documents notified, it was only a COPS record, which had been redacted, which was sought to be tendered at the hearing. That tender was finally not pressed and attempts to obtain an unredacted copy of the record were pursued. As I have explained, the objection to the late tender of the unredacted document, served only during the course of submissions, succeeded.

54. The second tendency notice specified the claimed tendency to be:

That while he was a priest, the late Father Ronald Pickin had the following particular state of mind and/or tendency to act in the following particular ways:

1.   Father Pickin had a sexual interest in boys;

2.   Father Picking [sic] sought out opportunities to achieve intimacy with boys, including by using Church premises for that purpose;

3.   Father Pickin had a tendency to sexually abuse boys who were in his care when he was able to do so;

4.   Father Pickin exploited his position as a priest by asserting his authority to enable him to act on his sexual interest in boys;

The tendency evidence sought to be adduced bears upon the facts in issue in the Plaintiff’s claim including whether: Father Pickin sexually abused the Plaintiff; and the nature of the interactions between Father Pickin and the Plaintiff.

55. This notice was supported by paragraphs 7 to 10 of the July 2024 statement of BB and paragraphs 8 to 12 and 25 of the July 2024 statement of Mr McClung. Those statements were received provisionally when BB and Mr McClung were called, subject to resolution of the arguments about the tendency notices. A direction under s100 of the Evidence Act was also made at the hearing in respect of BB’s statement.

56. The Diocese’s position was that the evidence was inadmissible as tendency evidence because it did not have “significant probative value”, but the truthfulness of the evidence which Mr McClung and BB gave was not challenged. In Mr McClung’s case of events before AA was assaulted and in BB’s case of events which occurred afterwards. His evidence being supported by records kept by the Diocese of his 2021 complaints.

57. Section 97 of the Evidence Act relevantly provides:

97   The tendency rule

(1)   Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—

(a)   the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b)   the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2)   …

58. “Probative value” is defined in the Dictionary to the Evidence Act to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. “Significant probative value” is not defined. Section 97A applies in criminal proceedings. It has the effect that tendency evidence about the sexual interest a defendant has or had in children, or tendency evidence about the defendant acting on a sexual interest the defendant has or had in children, is presumed to have significant probative value: s 97A(2). That does not apply in these civil proceedings.

59. The admissibility of the proposed tendency evidence must be determined by reference to its capability to rationally affect the probability of the existence of a fact in issue: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [38]. For admissibility purposes, in the assessment of probative value, the court must take the evidence at its highest: at [47].

60. So approaching the disputed evidence, I am satisfied that it is admissible as tendency evidence, it having the capacity to affect the assessment of the probability of the existence of a fact in issue, namely, whether AA was assaulted by Father Pickin as he claims. I am also satisfied that it is of significant probative value, assessing it in the way explained in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [40]-[42].

61. That is, by considering whether the disputed evidence “should make more likely, to a significant extent, the facts that make up the elements of the offence charge”. The only qualification being that it is not necessary that the disputed evidence has this effect by itself. “It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.” That being because “[l]ogic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded.”: Hughes at [40].

62. This requires two interrelated but separate matters to be considered. First, the extent to which the evidence supports the tendency and the second matter, the extent to which the tendency makes more likely the facts making up the charged offence. There being “a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged”: at [41].

63. In The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40, the Court decided to speak with one voice about the admissibility of tendency evidence in single complainant sexual offences cases: at [47]. It observed at [49] that “it has long been the law that a complainant’s evidence of charged and uncharged sexual acts may be of significant probative value in the proof of other charged sexual acts. Taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant and a willingness to act on it which assists to eliminate doubts that might otherwise attend the complainant’s evidence of the charged acts”.

64. It was accepted that relationship evidence which shows an accused’s sexual interest in a complainant is relevant and has probative force. “It may reveal a tendency in the accused, sometimes described as a motive.” Where it shows “that the accused has carried out sexual acts upon the complainant, or undertaken acts preparatory to them, the tendency or propensity on the part of the accused may be taken as confirmed”: at [49] quoting HML v The Queen (2008) CLR 334; [2008] HCA 16 at [492]-[493].

65. The admissibility of evidence of uncharged acts rests on the very high probative value of that kind of evidence, which results from ordinary human experience that, where a person is sexually attracted to another and has acted on that sexual attraction and the opportunity presents itself to do so again, he or she will seek to gratify his or her sexual attraction to that other person by engaging in sexual acts of various kinds with that person: at [51].

66. Proof of an accused’s commission of a sexual offence against a complainant on one occasion thus makes it more likely that the accused may have committed another, generally similar sexual offence against the complainant on another occasion, “at least where the two are not too far separated in point of time”: at [50]. Where the accused is charged with a number of counts of generally similar sexual offences against a single complainant “evidence of each charged act is admissible as circumstantial evidence in proof of each other charged act and, for the same reason, evidence of each uncharged act is admissible in proof of each charged act”: at [50].

67. Since enactment of the Evidence Act such evidence is also admissible under s 97, it being of the required “very high probative value”: at [52].

68. In this case the disputed evidence concerned not only Father Pickin’s similar uncharged acts when he forced AA to have oral sex on a number of occasions, but also the surrounding conduct including having repeatedly invited him and Mr Perry to the presbytery where he lived alone; having there given AA sufficient beer to cause him to pass out or become unconscious in a bedroom; having invited him to play a poker machine kept under some clothes near that room; and being allowed to keep his winnings. There was no issue about the surrounding conduct.

69. In TL v The King (2022) 275 CLR 83; [2022] HCA 35 the Court explained at [28] that assessment of probative value of evidence requires that “the possible use to which the evidence might be put be taken at its highest”. That “assumes that the evidence is reliable and credible”, an assumption that “will only be displaced where the evidence could not be accepted by a rational jury”. This requires consideration of the evidence by itself and “having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence”. For evidence to have “significant probative value”, it “must be ‘important’ or ‘of consequence’ to the assessment of the probability of the existence of a fact in issue.”

58. It follows that all of the disputed evidence had to be assessed on the basis of the assumption that it would be accepted, including AA’s memory of the assaults.

59. In Burns-Dederer v R [2023] NSWCCA 191 it was explained (at [51]) that in the assessment of the probative value of evidence “two interrelated but separate questions arise:

(i)   to what extent does the evidence support the tendency sought to be established?;

(ii)   to what extent does that tendency (if established) make more likely the facts making up the offence charged?”

72. I am satisfied that so approaching the disputed evidence Father Pickin’s repeated, similar assaults on AA and the evidence of his sexual interest in other teenagers on which he also acted, does help establish the notified tendencies. Further, those tendencies make it more likely that the assaults AA remembers occurred, given the pattern of Father Pickin’s conduct towards him, the circumstances in which each of those assaults occurred and how he had also acted on his sexual interest towards BB and Mr McClung.

73. When there are multiple complainants there will be a question about whether evidence that an accused has committed a sexual offence against one of them, is significantly probative of the accused having committed a sexual offence against another. The logic of probability reasoning dictating that for evidence of offending against one complainant to be significantly probative of the offending against the other, there must ordinarily be some feature of or about the offending which links the two together: Bauer at [58].

74. The mere fact that an accused has committed an offence against one complainant is ordinarily not significantly probative of the accused having committed an offence against another complainant. But if there is some common feature of or about the offending, that “may demonstrate a tendency to act in a particular way proof of which increases the likelihood that the account of the offence under consideration is true”: at [58].

75. In other cases offences alleged to have been committed against some groups of complainants may in significant respects, be different in kind and circumstance from the sexual offences alleged to have been committed against each other group of complainants: Bauer at [59].

76. The issue then being how much, if any, of each complainant’s evidence of the sexual offences and uncharged acts alleged to have been committed against that complainant is admissible as tendency evidence in proof of the sexual offences alleged to have been committed against the other complainants.

77. In Hughes, “taken as a whole, the evidence of each alleged sexual offence and uncharged act demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection”. The significance of that common feature leading to the conclusion that evidence of each alleged sexual offence and uncharged act had significant probative value in proof of each other charged offence: Bauer at [59], citing Hughes at [57]-[60].

78. Like in Hughes and Bauer, considering all these matters I am also satisfied that the disputed evidence is admissible as tendency evidence.

79. The evidence of both BB and Mr McClung does support the existence of the notified tendencies and also makes it more likely that the sexual abuse which AA described Father Pickin having inflicted on him, also occurred. As does AA’s evidence about Father Pickin repeatedly assaulting him at the presbytery, having arranged the opportunity to do so as he did.

80. There were differences between the assaults which BB and Mr McClung each described Father Pickin committing on them and those AA described. But still they did have common features which linked them together.

81. AA described undoubtedly more serious assaults involving oral sex, while BB and Mr McClung described Father Pickin engaging in repeated light fondling of their genitals. But each of them said that the assaults occurred when Father Pickin obtained access to them at church premises while they were teenagers, where there were no other adults present.

82. In Mr McClung’s case in 1965, the abuse occurring when he was aged 16 or 17, while Father Pickin was an assistant priest at St Columba’s Church, where he attended on Saturday nights and before some Easter and Christmas services, to prepare and dress rehearse for services in which Father Pickin involved him in delivering lessons. These assaults occurred in both the vestry and main Church area.

83. In AA’s case in 1968, the abuse occurring when he went with Mr Perry and on occasions other boys to the Wingham Church presbytery on Friday nights after dinner, while he was at high school aged 13. The assaults occurring when they were alone in a room off a bedroom.

84. In BB’s case in the 1970s, the abuse occurring when he was around 11 or 12, when he had sleepovers at Wingham Presbytery on a Saturday night with others, as well as when he went on holidays with Father Pickin.

85. This evidence accords with Father Pickin having a sexual interest in teenage boys on which he acted when he assaulted each of them, he having arranged the opportunities which gave him access to the three boys in the absence of other adults.

86. I am also satisfied that all the disputed evidence did have significant probative value in proof of the sexual assaults AA claims he suffered at Father Pickin’s hands, in supporting the notified tendencies and making it more likely that he had repeatedly assaulted AA, as he remembers. The disputed evidence was thus admissible under s 97 of the Evidence Act.

The COPS reports

87. That this conclusion was not available in relation to the redacted COPS report originally served was accepted and its tender was finally not pressed.

88. That document had been provided in response to a subpoena. I concluded that the unredacted report having only been obtained and sought to be tendered during the closing stages of the hearing, did not permit its receipt. That was because, contrary to what the statutory regime required, in the circumstances the Diocese had not been given any fair opportunity to consider or meet what was only then revealed about all that this document disclosed about other reported offending by Father Pickin.

Was AA sexually abused by Father Pickin?

89. There was no issue that if AA was sexually abused as he claims, that amounted to a battery. For the following reasons I am satisfied that it must be concluded that he was sexually assaulted when Father Pickin forced AA to engage in oral sex in the way he described, notwithstanding the problems raised by the evidence, which reflect the passage of time and the way in which memory works.

90. The only three people who could have given evidence about the claimed abuse were AA, Mr Perry and Father Pickin. Father Pickin died in 2015 and there is no suggestion that Mr Perry saw or was ever told about the abuse at the time.

91. On AA’s evidence it was only in 2024 that he revealed Father Pickin’s abuse to his brother and his son, having never revealed it to Mr Perry, his parents or even his wife, before her death. Although in re-examination AA did suggest that he had tried to discuss it with Mr Perry, who was not interested. That does not accord with Mr Perry’s recollection.

92. AA was cross examined on the basis that his evidence about the assaults was not true. The credibility and reliability of his evidence was thus in issue, as was that of Mr Perry.

93. While there was a question of when they met and became friends, on AA’s evidence at high school and on Mr Perry’s earlier, when they played soccer together at a time when they attended different primary schools, there was no question they were close friends at the time of the assaults. Or that they grew apart afterwards and then only had intermittent contact over the years. There was also a question about when they had most recently met.

94. There was no reason to doubt Mr Perry’s evidence about this, which AA also accepted, but it does not follow that the differences in their evidence must lead to the rejection of AA’s evidence about the assaults.

95. AA left school in year 10 and had a difficult life afterwards, while Mr Perry completed school and became a police officer. Mr Perry only became aware of the allegations about the assaults after AA brought these proceedings.

96. It was not suggested that AA’s delay, long after both the 2017 Final Report of the Royal Commission into the Institutional Responses to Child Sexual Abuse and the 2014 Cunneen Report in relation to the Special Commission of Inquiry into allegations raised about police handling of abuse by clergy in the Roman Catholic Church in the Hunter Region, adversely affected the credibility of his evidence.

97. That accords with what was discussed in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [75]. AA’s claim now not being precluded, either absolutely or contingently, by a limitation period or a limitation period subject to discretionary extension, no occasion arose for an explanation for any delay in AA bringing these proceedings. But he did give evidence about how it was that he only so recently disclosed Father Pickin’s abuse for the first time.

98. As Cavanagh J explained in SR v Trustees of the De La Salle Brothers [2023] NSWSC 66 (SR), such delay is now “a well-known and well-exposed pattern of behaviour which so many young men have endured, having regard to their feelings of guilt, shame and their fear of not being believed. That pattern of behaviour may continue, even when relationships develop”: at [124](2). That accords with AA’s evidence. But it does not preclude the possibility that his evidence was untrue or his memory inaccurate.

99. The Diocese urged that it be concluded that AA’s evidence about the assaults was not plausible, given changes in his evidence and his answers in cross examination, about what happened during the course of the abuse and whether he blacked out or became unconscious, as well as other problems with his evidence, including its inconsistency with that of Mr Perry. I am finally not able to accept this.

100. AA’s evidence was consistent both with his difficulty in revealing the abuse for very many years and not even having read Mr Perry’s statement, even though he had responded to it in the statement he later made and was cross examined about.

101. For his part Mr Perry plainly found it difficult to credit that Father Pickin had assaulted AA, given how close he and AA then were; his presence at the presbytery at the time AA remembered being assaulted; he not having gone to the shops or home as Father Pickin told AA he had; and AA never having told him about the assaults, in order to warn him.

102. This has to be considered in light of the shame and embarrassment AA described feeling about the assaults, as well as the high regard Mr Perry had for Father Pickin at the time and even now, and the breakdown of his relationship with AA. Mr Perry later developed a working relationship with Father Pickin while he was a police officer, Father Pickin having become a police chaplain. Father Pickin was also a family friend who Mr Perry continued to hold in the high esteem he explained, despite press reports which he had read about Father Pickin’s involvement in other child abuse.

103. That explains Mr Perry’s response to the claimed assaults, given views which he no doubt genuinely held. But that does not preclude AA’s evidence about the assaults being accepted. Or require the conclusion that Mr Perry’s lapses in memory were understandable, while those of AA must be regarded as discrediting his evidence. Given the passage of time it is likely that neither has a perfect memory of all that they gave evidence about. Pertinently, AA may have been more affected by the beer that he drank at the presbytery at relevant times than Mr Perry appreciated and AA may not have been quite as greatly affected on all those occasions as he remembered.

104. On Mr Perry’s evidence him were occasions when other boys were also present at the presbytery with he and AA. That accorded with AA’s earlier account to Dr Apler, but he did not remember others when he was cross examined.

105. The presence of other boys did not necessarily make the assaults unlikely. That may rather explain how Father Pickin was able to be alone in the bedroom with AA, while Mr Perry remained with the other boys in the living area of the presbytery.

106. The tendency evidence also supports AA’s case. But ultimately, it depends on AA’s evidence being accepted.

107. The Diocese’s case was that it would be concluded that AA’s evidence about the assaults was untrue, his evidence having been unsatisfactory and demonstrably false in a number of other respects. With the result that his evidence could not be accepted as being credible and reliable and so not being capable of being accepted as establishing the claimed abuse.

108. There were problems with AA’s evidence, it must be accepted, but still I have concluded that the Diocese’s submissions cannot be accepted.

109. It is certainly difficult to prefer AA’s evidence about matters such as whether he had accompanied Mr Perry when he went into the nursing home where Father Pickin was living, shortly before his death, over that of Mr Perry.

110. But I am not persuaded that accepting Mr Perry’s evidence about matters such as this, or what he remembered about the occasions, over 55 years ago, when AA claims he was assaulted, must lead to the rejection of his evidence about those assaults as untrue.

111. Mr Perry’s evidence corroborated aspects of AA’s evidence and also helped establish that it was possible that Father Pickin took the opportunity to sexually abuse AA when he was at the presbytery, while he and Father Pickin were together out of Mr Perry’s sight.

112. Mr Perry denied that he ever left AA alone at the presbytery, as Father Pickin told AA that Mr Perry had, having either gone to the shops to buy cigarettes or gone home. But on Mr Perry’s evidence in cross examination, it must be accepted that the assaults could have occurred while he remained in the living area of the presbytery talking to others and AA had gone into the bedroom to play the poker machine.

113. Both AA and Mr Perry must have been affected by the beer Father Pickin gave them to drink on each of those occasions and this, as well as the passage of time, carried with it the possibility that Mr Perry did not accurately remember all that he gave evidence about. That was confirmed by his cross examination. Also necessary to take into account is that his attitude to the claimed assaults was affected both by the high regard in which he continued to hold Father Pickin and AA’s failure to have disclosed them to him at the time. Neither provide a proper basis for rejecting AA’s evidence, supported as it is by the tendency evidence.

114. I am thus not satisfied that AA’s evidence about how he was assaulted by Father Pickin must necessarily be rejected as untrue. Or that Mr Perry’s evidence must lead to the conclusion that the assaults did not occur.

What AA had to prove

115. There is no issue that the onus falls on AA to establish, on the balance of probabilities, that he was sexually abused by Father Pickin, in accordance with the requirements of s 140 of the Evidence Act.

116. It requires regard to be had to the gravity of the matters AA alleges: Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 at [26]-[30]. That requires attention to be paid to what was decided in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34. Dixon J there observing that “In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.

117. Those observations were applied in M v M (1988) 166 CLR 69 at 76-77; [1988] HCA 68, in the context of an allegation of sexual abuse. Their application in circumstances where such abuse, committed even 55 years ago, may now be pursued, raises obvious problems, given the results of the passage of such time. The Court must thus, if possible, “place primary emphasis on the objective factual surrounding material and the inherent…probabilities, together with the documentation tendered in evidence”: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 at [15].

118. Account must also be taken of what is now understood about the way in which human memory works, the impact of trauma and how victims respond to it.

119. In Bugmy v The Queen (2013) 249 CLR 37; [2013] HCA 37 the experience of growing up in an environment surrounded by alcohol abuse and violence had to be considered, there in the context of sentencing. The joint judgment of French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ noted that experiences such as these “may leave its mark on a person throughout life” and that a “background of that kind may compromise the person’s capacity to mature and to learn from experience”: at [43]. Further, that “the effects of profound childhood deprivation do not diminish with the passage of time”: at [44].

120. On the evidence not only did AA’s mother die when he was aged 8, he was the victim of domestic violence at home, and from age 5 he was given wine to drink at every meal. This was consistent with Mr Perry’s evidence that when he went home with AA one night after they had left the presbytery where they had been drinking beer, AA’s father noticed that they had been drinking. The result when Mr Perry admitted this when questioned was that he was then forced by AA’s father to drink even more, to the point that he became drunk.

121. In Watson v Foxman (1995) 49 NSWLR 315 at 319, McClelland CJ in Eq. observed that human memory is “fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time.” In this case that both AA and Mr Perry’s memory of what occurred at the presbytery was also likely to have been affected by the beer Father Pickin gave them to drink, also has to be taken into account.

122. In JL v The King [2023] NSWCCA 99 Adamson JA (with whom Ierace and Sweeney JJ agreed) observed the Court’s ability to account for general experience, including “that it is not uncommon for victims to remember specific details about the assaults but not tangential details.”: at [96] quoting Reed v R [2006] NSWCCA 314 at [64] (Reed).

123. Cross-examination of sexual assault complainants which proceeds as if the reliability of their evidence about the assault can in some way be shaken by a failure to be precise about surrounding tangential detail is thus rarely appropriate. Memory of surrounding detail having few, if any, implications for a person’s reliability about the central details of a traumatic event, given what was even then known about human memory: Reed at [64].

124. In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32, the Parliament’s legislative responses to the findings and recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, amendments to the Limitation Act1969 (NSW) and the Civil Liability Act 2002 (NSW) introduced in order to reflect contemporary values, were considered. That was an appeal against the stay of proceedings in which another claim of historical sexual abuse during childhood had been pursued. In that case the alleged perpetrator had also died before any allegations had been made.

125. The problems of a defendant meeting such allegations and the onus falling on the plaintiff to establish the sexual abuse claimed to have occurred very many years ago during childhood, thus had to be considered. Inevitably such a claim having to be decided on incomplete evidence, it being observed that circumstantial evidence is still evidence: at [67].

126. It was accepted in GLJ, as part of the joint judgment of Kiefel CJ, Gageler and Jagot JJ, that in deciding issues of fact on the civil standard of proof, “the court is concerned not just with the question “what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision”: at [58] quoting Cross on Evidence, 13^th ed (2021) at 47 [1215] and Ho v Powell (2001) 51 NSWLR 572 at 576; [2001] NSWCA 168 [14]-[16].

364. I reached that conclusion because the evidence was given in open court in civil proceedings, which thus does not attract the provisions of s 8(1)(d), which is restricted to criminal proceedings in which distressing or embarrassing evidence about offending of a sexual nature. But the child sexual abuse about which the evidence was given, could have been the subject of criminal charges and also gives rise to the considerations which s 8(1)(d) addresses. Now in the context of the publication of this judgment.

365. In the result I am satisfied that the public interest accords with the short opportunity sought for submissions to be advanced about the appropriate orders to be made about the judgment, on publication. That was reinforced by AA’s very serious ill health.

Orders

368. For the reasons given I will enter judgment for the plaintiff.

369. The parties agreed that they would confer and provide final orders to reflect the conclusions which I have reached. In the event of any dispute, they should also approach.

370. I order that:

1. This judgment not be published before 2 October 2024, other than to the parties and the two tendency witnesses, or their legal representatives, so that submissions can be advanced about whether further orders should be made under s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and that this order applies in the Commonwealth, that being necessary to achieve the purpose for which it is made.

2. The grounds on which this order is made are that:

1. A question arose about the anonymisation of the names of the plaintiff and tendency witnesses, given the child sexual abuse with which the judgment deals, which had not been dealt with at the hearing. Such orders having been made in other cases where civil claims have been pursued in relation to distressing historical child sexual abuse.

2. Given the child sexual abuse which the plaintiff and the tendency witnesses dealt with in their evidence and the distress and embarrassment it obviously caused them, it is in the public interest to make the order the parties sought, the public interest in that order significantly outweighing the public interest in open justice: s 8(1)(e).

3. The evidence given in open court in these civil proceedings about various child sexual abuse did not attract the provisions of s 8(1)(d), which is restricted to criminal proceedings in which distressing or embarrassing evidence about offending of a sexual nature is given.

4. That child sexual abuse could have been the subject of criminal charges, that also giving rise to the considerations which s 8(1)(d) addresses.

5. In the context of the publication of this judgment, I was satisfied that the public interest accorded with the short opportunity sought for submissions to be advanced about the appropriate orders to be made about the judgment when published. That was reinforced by the plaintiff’s very serious ill health.

6. The matter will be listed for further directions at 9.30 am on 1 October 2024 about any further orders sought.

Addendum

371. Since the orders were made in this judgment on 20 September 2024, the name of the plaintiff and witness BB have been anonymised. At paragraph [332] the figure for the maximum amount of damages that can be awarded for non-economic loss has been amended in accordance with the Civil Liability (non-economic Loss) Amendment Order 2023.

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Decision last updated: 01 October 2024