MTH v State of New South Wales - [2024] NSWSC 1517

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: MTH v State of New South Wales [2024] NSWSC 1517
Hearing dates: 22, 23, 24, 25, 26, 29, 31 July 2024
1, 2 August 2024
5 September 2024
Date of orders: 28 November 2024
Decision date: 28 November 2024
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1)   Judgment for the first defendant.
(2)   Judgment for the second defendant.
(3)   Judgment for the third defendant.
(4)   The plaintiff is to pay the defendants’ costs.
(5)   All cross-claims are dismissed.
(6)   No order as to costs on the cross-claims.
(7)   Should any party seek a variation of the costs orders I grant liberty to apply on 3 days notice.

Catchwords:
TORTS – Trespass to the person – assault and battery – sexual assault – where plaintiff alleges she was physically and sexually abused by one of her foster carers whilst a ward of the State
CIVIL PROCEDURE – Abuse of process – where the alleged perpetrator of the abuse had been convicted of the conduct alleged by the plaintiff at a criminal trial – whether allowing the estate of the alleged perpetrator to deny that the abuse occurred would give rise to an abuse of process
NEGLIGENCE – Duty of care – where the plaintiff alleges the State breached its duty of care to her by failing to take steps to have her adopted in a timely manner and failing to exercise reasonable care for her health and well-being – whether the State’s duty of care to a ward of the State is non-delegable – whether the State is vicariously liable for the conduct of the plaintiff’s former foster carers

Legislation Cited:
Civil Evidence Act 1968 (UK), s 11
Civil Liability Act 2002 (NSW), ss 5B, 43A
Crimes Act 1900 (NSW), ss 63, 78
Evidence Act 1995 (NSW), ss 91, 97

Cases Cited:
A v State of New South Wales (2007) 230 CLR 500
AB v Curry & Anor [2015] NSWSC 1063
Arthur JS Hall & Co (a firm) v Simons [2002] 1 AC 615
Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256
Bird v DP (a pseudonym) [2024] HCA 41
Briginshaw v Briginshaw (1938) 60 CLR 336
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Croft v R [2021] NSWCCA 146
CXX v DXX (2012) EWHC 1535 QB
Fox v Percy (2003) 214 CLR 118
Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm)
Giannarelli v Wraith (1988) 165 CLR 543,
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857
Harper v R [2022] NSWCCA 211
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Johnson v Gore Wood & Co [2002] 2 AC 1
Massalski v The Owners SP 90255 & Ors [2023] NSWSC 23
Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21
PP v DD [2021] NSWSC 1157
Reichel v McGrath (1889) 14 App Cas 665
Rogers v the Queen (1994) 181 CLR 251
Soare v Ashley [1955] VLR 438
UBS AG v Tyne (2018) 265 CLR 77
Warner v Hung (No 2) (2011) 297 ALR 56
Watson v Foxman (1995) 49 NSWLR 315
Willmot v Queensland [2024] HCA 42

Texts Cited:
Hon Justice Peter McClellan, “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 Australian Law Journal 655

Category: Principal judgment
Parties: MTH (Plaintiff)
State of New South Wales (First Defendant)
Estate of the late Geoffrey Croft (Second Defendant)
Sandra Croft (Third Defendant)
Representation:
Counsel:
C P O’Neill with C Robertson (First Defendant)
K Andrews (Second Defendant)
P Tierney (Third Defendant)
Solicitors:
Makinson d'Apice Lawyers (First Defendant)
Keypoint Law (Second Defendant)
Moin Morris Schaefer Lawyers (Third Defendant)

File Number(s): 2020/00113788
Publication restriction: Statutory non-publication orders pursuant to s 578A Crimes Act 1900 (NSW) and s 15A Children (Criminal Proceedings) Act 1987 (NSW)

JUDGMENT

The plaintiff claims damages for physical and sexual assault (“the abuse”) said to have been perpetrated on her in 1979 whilst she was in foster care in regional New South Wales.
There are three defendants being:

the State of New South Wales, who is said to have been negligent in the management and supervision of the plaintiff as a ward of the State. It is also said to be vicariously liable for the conduct of both its officers and the foster carers. Aspects of the plaintiff’s case are not dependant on findings of sexual abuse but relate to alleged general trauma said to have been caused by the State’s treatment of the plaintiff;

the Estate of Geoffrey Croft - the foster carer who is said to have perpetrated the abuse in 1979; and

Sandra Croft - the wife of Mr Croft, who was also a foster carer, and is said to have owed a duty of care to her, which included protecting her from such conduct. The plaintiff alleges that Mrs Croft knew of Mr Croft’s abuse and knew of and was involved in abuse of a boy (RS) two years earlier when that boy came to stay during one school holiday. This latter allegation is not based on anything the plaintiff saw and was not the subject of any evidence in these proceedings.

The matter involves some complex questions of fact and law having regard to the breadth of the cases pursued by the plaintiff against the three defendants and some contradictory evidence which emerged in these proceedings.
Having said that, the central issues of fact are whether the abuse alleged happened and how the plaintiff was treated by the State (I will refer to the State as “the Department”).
The hearing took place over 10 days commencing on 22 July 2024, with a further short hearing on 5 September 2024.
The plaintiff appeared unrepresented. She had formerly retained two different firms of solicitors since commencing the proceedings in 2020.
For reasons which are not disclosed, her solicitors ceased to act after the matter had been prepared for hearing and after a mediation. It follows that, subject to some limited exceptions, most of the evidence on which the plaintiff sought to rely, including her own evidentiary statements, had been served. Similarly, the defendants’ evidence had been served.
The plaintiff presented as a person with an understanding of what was required. To say the least, she was quite capable of arguing about matters of fact and advocating her position whether that be from the bar table or in the witness box.
She informed me on a number of occasions that she was being assisted by a barrister. Some of her running commentary on what should be happening, what should not be happening and what I should be doing might add some credence to that idea.
She prepared a written opening statement and made extensive submissions at the end of the case. She continued to send in documents and further submissions well after the time for doing so expired (the case having finished weeks earlier and she having already filed extensive closing submissions). Nevertheless, subject to my ruling of 5 September 2024, I have had regard to all of that material.
Having said that, the plaintiff’s submissions were very much a long statement of her lifelong grievances against the Department, which she blames for every aspect of her traumatic childhood and the traumas that she has experienced during her adult life.
I do not doubt that the plaintiff experienced significant trauma in her childhood. Her removal from her mother and the removal from foster carers with whom she resided for 12 years, whom she considered to be her parents, must have been devastating for her. There is a lot of evidence about her feelings about all of that and the predominant theme of some of the medical evidence is the effect of those two events on her.
It is my function to determine the issues in the case having regard to the evidence in the proceedings. It is not my function to answer every criticism, statement or comment made by the plaintiff in the documents she has prepared.
The main hearing was conducted by the parties in such a way that the plaintiff was afforded an opportunity to present such evidence as she wished and in the manner she wished at any time within the allocated 10-day period. However, despite being afforded an opportunity to do so, she was unable to organise the attendance of RS, said to be another victim of Mr Croft.
At the commencement of the proceedings, I confirmed with the plaintiff that having regard to the amended statement of claim prepared and filed by her solicitors, she was seeking to pursue five essential allegations as follows:

the Department was negligent in placing the plaintiff with the Crofts and in failing to monitor, supervise or “check-up” on the plaintiff whilst she was supposed to be under the care of the Department;

the Department is vicariously liable or otherwise responsible for the conduct of persons representing it, including welfare officers and other members of the Department, who failed to properly supervise the plaintiff;

the Department is vicariously liable for the effects of the abuse perpetrated by Mr Croft on the plaintiff;

the Estate of Mr Croft is liable for the effects of the abuse perpetrated by him; and

Mrs Croft is liable for the effects of the abuse upon the plaintiff because Mrs Croft owed her a duty of care and she breached that duty by failing to take steps to stop or prevent the abuse, in circumstances where she was aware that Mr Croft had abused the plaintiff and other children.

The plaintiff then added a sixth allegation (which she said was always part of her case), being:

the Department was negligent in failing to properly manage the plaintiff's application for adoption and failing to put in place a means for her to reconnect with her siblings and her long-term foster parents, the Phelans.

The first defendant ultimately consented to the plaintiff relying on those additional particulars. The additional particulars are set out in a handwritten document provided by the plaintiff which was marked as MFI 1.
All of the parties agreed that the six aspects or central allegations represented the issues in the case. Of course, those allegations were based on the central claim made by the plaintiff that she had been physically and sexually abused by Mr Croft on a number of occasions. Despite the plaintiff suggesting that this could not really be in dispute, it was. None of the defendants admitted it in their defences. The Estate and Mrs Croft positively asserted that it did not occur.
I raised a further issue as to whether the second defendant should be permitted to maintain in these proceedings that the alleged abuse by Mr Croft did not happen.
In 2019, Mr Croft was convicted of criminal offences relating to the plaintiff as well as offences against RS (a 12-year-old boy) who had stayed with the Crofts during one school holidays in the 1970s.
Although he was convicted, Mr Croft maintained his innocence. He pursued an unsuccessful appeal to the Court of Criminal Appeal and then sought leave to appeal to the High Court. However, he died in prison in 2022 before the appeal to the High Court could be heard and the proceedings were dismissed.
The second defendant contended that, in the circumstances, it was entitled to and did assert that Mr Croft did not engage in the conduct which the plaintiff alleged. Mrs Croft adopted a similar position and adduced evidence to support her position.
There is significant documentary evidence from the Department’s file which is relied upon by the defendants as being quite inconsistent with many statements made by the plaintiff. There are a number of contemporaneous documents which are inconsistent with the plaintiff’s evidence. The plaintiff’s response to this is to suggest (in her submissions) that some documents have been altered or fabricated or perhaps just made up at the time.
Further, the plaintiff gave confusing evidence in these proceedings that her recollection of the abuse by Mr Croft only emerged from her “subconscious” in 2011, when it was “uncovered” through expert psychological counselling.
There is nothing in the medical reports obtained for the purposes of the proceedings (they were obtained when the plaintiff was legally represented) to that effect. There is nothing in the reports of the psychologist to whom she attributes this process to that effect.
As far as I am aware, her assertion that the abuse by Mr Croft were buried in her subconscious until 2011 was first raised by the plaintiff in these proceedings during cross-examination in response to questions as to when she first raised the abuse after leaving the Crofts.
Such an assertion may be true and it may not invalidate her recollection but in assessing the conflicting evidence it must be important to pay close regard to the circumstances in which the evidence emerged. This is particularly so in circumstances in which the plaintiff claimed to have a precise memory of so many other events around that time when, as will be apparent from this judgment, her evidence about a number of those events is incorrect.
It is important to observe that many victims of historical sexual abuse kept the abuse secret for many years. This Court is aware that a failure to report such events, even over a long period, is more common than exceptional. I would not consider that any failure to report even for 32 years is indicative of the likelihood that the events did not occur. It is just a fact that arises as a part of the overall consideration.
It is also important to acknowledge that victims of sexual abuse respond to that abuse in different ways (see the authorities collected by N Adams J in Harper v R [2022] NSWCCA 211 at [184]-[190]). Suggested norms or predictions based on standardised behaviours are of little assistance in assessing the veracity and behaviour of victims.
Having said that, this is not a case about the significance of the failure to report the abuse but a case which involves, on the plaintiff's assertions, some retrieving of her memory of the abuse many years after it occurred.
Again, I am not doubting the medical science which might be considered to try to understand how that could occur but this case has other nuances or complexities. Indeed, the second defendant asserts that this is a case involving a “false memory”, that is, the plaintiff may believe something happened, but her memory is false.
Unfortunately, despite the complexity of the issues relating to psychology and psychiatry and even though the plaintiff was legally represented when her statements and medical evidence were prepared, there is no reference in any of the medical reports prepared for the purposes of this case to her memory only coming back in 2011. The science relating to suppressed memory and/or false memory is not referred to in any of the medical reports. Perhaps this is something the plaintiff has only come to understand more recently but her evidence about this complicates the task of assessing her evidence generally.
Finally, the determination of the issues has also been made more difficult by the inconsistencies in the medical evidence seemingly arising from the difficulties in separating the plaintiff’s long held grievances against the Department for the way she was treated as a ward of the State and the consequences of the alleged abuse by Mr Croft.
In some of the medical reports, the fact of the abuse barely rates a mention when compared to the emphasis on her general treatment by the Department.
I will firstly consider the abuse of process issue as it presents as a threshold issue.

Abuse of process

I raised with the parties whether permitting the second defendant to deny that Mr Croft abused the plaintiff would give rise to an abuse of process, considering Mr Croft was convicted of that conduct in a criminal trial. I raised this issue as I considered that it was an issue that the plaintiff might have raised if legally represented. I asked the State to act as contradictor to the position advocated by the second and third defendants. The position adopted by the State, having regard to its detailed and thorough consideration of this issue, was that the law remained somewhat unclear. There appears to be no higher determination on the issue in similar circumstances.
I considered the issue in slightly different circumstances in PP v DD [2021] NSWSC 1157 (“PP”). I rejected the plaintiff’s contention in PP that the defendant was precluded from asserting that he did not abuse the plaintiff as asserted by the plaintiff in the civil proceedings.
Before considering the principles that might apply, it is appropriate to say something about the evidence on the abuse.
The plaintiff’s evidence may be summarised as assertions that, almost from the time the plaintiff commenced residing with the Crofts, Mr Croft would discipline her by hitting her across the bare bottom with his belt in a severe and violent manner. After the first few occasions (although there is uncertainty as to how many), Mr Croft engaged in digital penetration of the plaintiff that then proceeded to penile-vaginal penetration on a number of occasions.
On the plaintiff's case, this was all done whilst Mrs Croft was not there, although included in the plaintiff's evidence are statements that Mrs Croft knew about the physical beatings on some occasions when they occurred and was ultimately told about the sexual abuse by the plaintiff towards the end of 1979 (after which the plaintiff says she was removed from the Crofts’ farm).
The plaintiff says that she first reported the abuse to the police in 2012, although in her first statement in the criminal proceedings she said that it had previously been reported (that is long before that) but there was no record of any earlier reporting. Earlier reporting would be contrary to her evidence in this case.
Mr Croft was charged and convicted of the following offences in relation to the plaintiff:

three counts of indecent assault against a female person contrary to s 78 of the Crimes Act 1900 (NSW); and

two counts of rape contrary to s 63 of the Crimes Act.

As the plaintiff says, following her coming forward the police carried out an investigation and at some later stage located another young person (RS) who had stayed at the Crofts’ farm before her (in 1977). He said he was a victim of physical and sexual abuse at the hands of Mr Croft when he was 12 years old. Mr Croft was charged and convicted of offences against him. Having regard to the judgments in the criminal proceedings, the abuse said to have been perpetrated on RS by Mr Croft was of an extreme nature, involving severe regular beatings particularly to the head of RS (as a 12 year old boy) by Mr Croft (as a man in his twenties) and severe sexual abuse, all committed over the one school holiday period (in 1977) when RS and PS (RS’s brother) stayed with the Crofts as a break from the orphanage. The fact of Mr Croft’s conviction for offences against RS is not in dispute in these proceedings but evidence of the conviction is not evidence of the facts behind the conviction.
The fact of the abuse on the plaintiff, that is the alleged conduct of Mr Croft, is in dispute in these proceedings, but the fact of the charges, the convictions, and the sequence of events leading to the charges is not.
It is also not in dispute that Mr Croft has always maintained his innocence. That is, from the time the matter was first raised with him by the police in 2017 to the time he died in prison, he has always maintained his innocence.
The plaintiff sues Mr Croft’s estate. There has been application for freezing orders in respect of property owned by Mr Croft. The value of the estate is not relevant to any issue in these proceedings. I was informed by Mr Andrews that, prior to filing its defence, the second defendant sought a confidential judicial advice as to whether it could file a defence denying the alleged conduct. The executor and trustees filed a defence in accordance with the confidential advice. Again, the content of that confidential judicial advice is not known to me and is not relevant and not evidence in these proceedings.

Mrs Croft was only joined to the proceedings as the third defendant in 2023. Much of what the plaintiff says about what happened in 1979 at the Crofts’ farm was the subject of contrary evidence from Mrs Croft. Mrs Croft was not charged with any criminal offence. She has always maintained that the events the subject of the criminal proceedings did not occur. She has always maintained that she had no knowledge of any instances of alleged abuse including events involving RS and that such abuse did not occur.
Section 91 of the Evidence Act 1995 (NSW) precludes admission into evidence of a decision, or a finding of fact, in an Australian proceeding to prove the existence of a fact that was in issue in that proceeding. The second and third defendant objected to evidence of the conviction as evidence of the fact of the conduct/abuse. Whilst I admitted the evidence of the convictions, I did so not on the basis that it was evidence of the facts in issue.
During the course of the trial, the plaintiff sought to tender the transcript of the criminal proceedings as evidence of the fact of the abuse. I rejected the tender of the transcript.
Prior to the commencement of the proceedings and when the plaintiff was legally represented, a tendency notice under s 97 of the Evidence Act had been served by the plaintiff. The plaintiff sought to rely on the evidence of RS and his brother PS. The plaintiff sought to merely tender the statements without calling RS or PS. Whilst there was also an issue as to the tendency notice itself raised by the second defendant, both the second defendant and Mrs Croft objected to the statements of RS and PS being tendered as hearsay. I explained to the plaintiff that I would not permit her to simply tender the statements of RS and PS made in the criminal proceedings as evidence in these proceedings, whether for the purposes of the tendency notice or other purposes, such as the case against Mrs Croft.
There were daily exchanges with the plaintiff about her attempts to obtain RS’s attendance at court. I informed her how she might go about that and what she needed to do but in the end, she was unable to arrange his attendance. As I understand from what she told me, his former solicitors declined to assist. She did not know his address and her conversation with him resulted in some form of abuse of her by him. He did not give evidence.
All that I know about RS is that at some point he was living in a local orphanage and at some stage he stayed with the Crofts over the school holidays. After the plaintiff came forward, he was identified as part of the police investigation as a person who had stayed with the Crofts over a school holiday. What he said to the police ultimately led to the charges and conviction against Mr Croft. He gave evidence at trial. He has settled his claim for damages against Mr Croft’s estate.
It is also important to identify at this point, and for the purposes of this threshold question, that as far as I can determine there are differences in the evidence in these proceedings to the evidence in the criminal proceedings.
In circumstances in which Mr Croft is now dead, the second defendant did not cross-examine the plaintiff in any detail as to her evidence of his abuse. Rather, the second defendant merely put to the plaintiff that the abuse did not occur. She disagreed.
The question is whether, having regard to Mr Croft’s earlier convictions, it is an abuse of process for the second defendant to deny the facts underlying those convictions in these proceedings.
The Court has the power to strike out any aspect of a party's defence if it represents an abuse of process.
As the High Court observed in UBS AG v Tyne (2018) 265 CLR 77 at [1] ("UBS"), "[t]he varied circumstances in which the use of the court's processes will amount to an abuse … do not lend themselves to exhaustive statement." Thus, the categories of abuse of process remain open and to adopt the words of the majority in Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 at [9] "development continues".
Whilst the circumstances in which an abuse of process may arise cannot be exhaustively defined, the court's power will be enlivened where either "the use of the court's procedures occasions unjustifiable oppression to a party, or where the use serves to bring the administration of justice into disrepute" (UBS at [1]).
Whether an aspect of a party's defence gives rise to an abuse of process turns upon all of the circumstances and involves a "broad, merits-based judgment which takes account of the public and private interests involved" (UBS at [7] quoting Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31). A determination of whether the circumstances amount to an abuse of process is an evaluative decision, albeit it is not discretionary (see GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 at [15] ("GLJ")).
Whilst the power to strike out is not in issue, such a power must be exercised cautiously. As observed recently in GLJ per Kiefel CJ, Gageler and Jagot JJ at [18]:

“The doctrine of abuse of process is one element in a court’s armoury to protect the administration of justice, but it is to be understood as a measure of last resort to be exercised only in exceptional circumstances.”

Perhaps the leading English case on abuse of process is Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (“Hunter”). In Hunter, the House of Lords held that, in the absence of certain exceptions, the use of civil proceedings by a plaintiff to launch a collateral attack on the decision of a criminal court is ordinarily an abuse of process.
In Massalski v The Owners SP 90255 & Ors [2023] NSWSC 23, Chen J explained at [56] the meaning of a collateral attack as follows:

“A collateral attack occurs where a party seeks to challenge or impugn the result of the previous judgment, not through an appeal, but through subsequent litigation. That is, a party invites a court, in those later proceedings involving that party, to “arrive at a decision inconsistent with that arrived at” in that earlier case: Arthur J S Hall & Co v Simons (a firm) [2002] 1 AC 615, 743. In the end, the concept describes inconsistency, albeit of a fundamental and impermissible kind.”
(Emphasis in original)

Hunter concerned a civil action for assault brought by one of the Birmingham Six who had been convicted of taking part in a bombing that occurred in Birmingham in 1974. The basis of the plaintiff's claim was that he was assaulted by police during his questioning in connection with the offence. At the criminal trial, the other defendants similarly contended that confessions they gave during their police interviews were inadmissible because they were beaten by police whilst in custody. Following a voir dire, the trial judge found that the defendants had not been assaulted. Further, the jury's verdicts necessarily implied that they too had rejected the fact of the assaults. The men did not appeal against the evidentiary ruling. The civil claim was therefore based on the same allegation that had been rejected during the criminal trial. The civil action was accordingly struck out as an abuse of process on the basis that the plaintiff was seeking to relitigate an issue that had already been decided against him in a criminal trial.
The conduct of the plaintiff which was said to amount to an abuse of process was described by Lord Diplock at 541 as:

"[T]he initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made."

Lord Diplock found that as a "general rule of public policy" a civil action could not be used to challenge the final decision of a criminal court. In support of this general proposition, Lord Diplock cited the following passage from Lord Halsbury’s speech in Reichel v McGrath (1889) 14 App Cas 665:

"I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again."

Whilst "it would ordinarily be an abuse of process for a civil court to be asked to decide that a subsisting conviction was wrong" (Arthur JS Hall & Co (a firm) v Simons [2002] 1 AC 615 at 706 per Lord Hoffmann), the English courts have identified a number of exceptions to that general rule. They can be summarised as follows:

where there is fresh evidence which "entirely change[s] the aspect of the case" (Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21 (“Mueen-Uddin”) at [45]);

where the prior proceedings were unfair in a relevant sense (Mueen-Uddin at [63]); and

where the party has not "had a full opportunity of contesting the decision" (Mueen-Uddin at [63] quoting Lord Diplock in Hunter at 541).

In Australia, the threat to the administration of justice posed by conflicting decisions of civil and criminal courts has been considered in a number of cases. For example, in Giannarelli v Wraith (1988) 165 CLR 543, Wilson J at 574 commented on the difficulties posed by the re-litigation of criminal convictions that could be occasioned by allowing actions against counsel to run:

"Suppose a person is convicted, the jury being satisfied of guilt beyond a reasonable doubt. All avenues of appeal are pursued without success. The convicted person then institutes an action for negligence against the defence counsel, assuming the onus of proof on the balance of probabilities. If the action succeeds but the conviction remains, public confidence in the integrity of the law must be seriously and adversely affected. Even if a way is found to have the conviction set aside notwithstanding the earlier unsuccessful appeals, the end result is that the civil action is converted into a de facto avenue of appeal outside the carefully constructed statutory framework of criminal appeals. It may be noted that there is a long-standing policy of the common law against allowing the re-trial of criminal cases by collateral means…"

Similarly, in Rogers v the Queen (1994) 181 CLR 251, the High Court observed per Deane and Gaudron JJ at 274:

“[I]t is an abuse of process to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial. At least that is so unless there is a less onerous burden of proof or there is fresh evidence or proof of fraud.”

I considered a similar issue in PP. The plaintiff, a victim of historical sexual abuse, sought to strike out parts of a defence which purported to dispute the facts underlying the defendant's prior conviction for sexual assault. In that case, the plaintiff sought to rely on the recorded conviction and no more.
I repeat what I said at [45]-[47]:

“… I do not consider that it is an abuse of process for the defendant to continue to dispute the conduct giving rise to the cause of action in these civil proceedings, merely because he was found guilty by a jury. Apart from anything else, it is not clear and cannot be clear merely by reason of the jury verdict, precisely what acts the jury might have accepted were committed by the defendant.
A jury verdict does not represent an express finding of fact by a tribunal of fact in earlier proceedings for the purposes of subsequent civil proceedings.
I thus do not consider that the continued denial by the defendant of the acts said to give rise to the sexual assaults constitutes an abuse of process.”

An attempt by a party to re-agitate an issue which has already been the subject of litigation and, indeed, the subject of a final judgment could constitute an abuse of process.
Such conduct calls into question the principle relating to the finality of litigation.
In Soare v Ashley [1955] VLR 438, the Court considered whether a defendant to an action for damages for an assault was estopped from denying that he had sexually assaulted the plaintiff following a conviction for such an assault. Herring CJ held that no such estoppel followed because the parties to the action were different. His Honour rejected the submission from the plaintiff that by analogy, the victim could be in the position of the prosecutor, in some limited circumstances, such that the parties would be the same.
Plainly, if the parties to the litigation were the same, then an issue of estoppel might arise. The elements of the tort of malicious prosecution include that the proceedings of the kind in which the tort applies (generally criminal proceedings) were initiated or maintained against the plaintiff by the defendant (A v State of New South Wales (2007) 230 CLR 500 at [1] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ (“A v NSW”)).
In some circumstances, a complainant in a criminal case might be considered a prosecutor for the purposes of the tort of malicious prosecution. The plaintiff would need to establish that the person being sued, that is, the defendant, “play[ed] an active role in the conduct of the proceedings, as by ‘instigating’ or setting them in motion” (A v NSW at [34]).
Whilst that may be so for the purposes of the tort of malicious prosecution, I do not think that an issue estoppel arises in the circumstances of this case. The plaintiff, as the complainant in the criminal proceedings, should not be viewed as a party to the litigation, that is, as the prosecutor, for the purposes of subsequent civil proceedings. The parties are not the same in these proceedings as they were in the earlier criminal proceedings.
There has been some consideration in the United Kingdom as to whether a defendant in a civil action may seek to resist a claim having already been convicted of a criminal offence in respect of the same facts.
In CXX v DXX (2012) EWHC 1535 QB, Spencer J held that it could not automatically be an abuse of process for a defendant to a claim for damages to deny the facts underlying a criminal conviction in subsequent civil proceedings (at [34]). However, that case turned very much on the construction of s 11 of the Civil Evidence Act 1968 (UK) which Spencer J held gave a defendant the right to challenge a conviction in subsequent civil proceedings by showing that the conviction was wrong.
Drawing together all of these cases, it seems to me that the position is as follows:

What may be an abuse of process is not prescribed or confined. Each case depends on its own facts and the categories of cases which might be termed an abuse of process is not closed.

A plaintiff, having been convicted of a criminal offence, who commences civil proceedings for the purposes of re-agitating and disputing the same matters, may find that the proceedings are struck out as an abuse of process. The subsequent civil proceedings may represent a collateral attack by the plaintiff on the court’s earlier judgment.

However, the position of a defendant who has always maintained his innocence may be different. The convicted person has not instituted proceedings with the purpose of re-agitating the same issues.

In the end, each case must turn on its own facts.
In this matter, I do not consider that the maintenance of a denial of the underlying facts by the second defendant in these proceedings constitutes an abuse of process as:

whilst I am uncertain as to what evidence was adduced in the criminal trial, as far as I am aware the process of memory recovery spoken of by the plaintiff in this matter was not the subject of any evidence in the criminal trial (otherwise there would be some reference to it in the medical reports). The investigating officer said in these proceedings that he had not been informed of it. It appears to be fresh evidence;

Mr Croft has always maintained his innocence. There was no admission by him in the criminal proceedings; and

Mr Croft continued to appeal his conviction, but died in prison before his final appeal could be heard.

In the circumstances, I do not consider that the second defendant is precluded from maintaining its defence that the abuse the subject of the case against Mr Croft did not occur.
I will now consider the central issue being whether Mr Croft sexually and physically abused the plaintiff. That necessarily involves a consideration of the evidence.

The plaintiff’s narrative

The plaintiff’s allegations of abuse by Mr Croft are intertwined with a complex narrative she presents of life on the Croft farm generally and her treatment by the Department whilst she was a ward of the State. It is not possible to consider her evidence about the abuse by Mr Croft in isolation. This is because her description of Mr Croft’s conduct is not of an isolated act or acts of sexual abuse of her as a 16/17 year old girl but of a pattern of behaviour with physical violence leading to sexual assault upon her arising as a result of her failure to properly perform work or chores on the farm and in the context that she was deliberately kept isolated on the farm and treated like a full-time farm hand rather than a foster child. The abuse is said to have started as a form of punishment of her for not performing her work properly.
In this section of the judgment, I will set out the plaintiff’s narrative based essentially on her evidence. I will come back to the evidence contrary to that narrative later in the judgment.
The plaintiff's evidence in chief consisted of three evidentiary statements dated 3 November 2023, 14 June 2024 and 17 July 2024. Attached to her first statement were five statements which had been signed by her as part of the criminal proceedings. She was cross-examined at length, although the cross-examination was extended significantly by the way she chose to respond to the questioning.
The plaintiff was born in 1962.
At the age of four, she was removed from the care of her mother or, as she describes it, handed over to the Department. She was made a ward of the State. She was placed in foster care with Mr and Mrs Phelan. She remained in the care of the Phelans until 1979 (at which time they were living in Tenterfield) when she was placed on a temporary basis with the Crofts as foster carers. The plaintiff viewed Mr and Mrs Phelan as her parents and referred to them as such. Mr Phelan died in 1986. After Mrs Phelan died 25 years later, the plaintiff brought proceedings in this court seeking a share her estate.
She maintains in these proceedings that she has a clear recollection of being handed over to the Department at the age of four and the trauma that that involved has never left her. She complains that she should never have been separated from her siblings and that the Department never did enough to reconnect her with her siblings.
There is no suggestion that she would not have experienced significant trauma leaving her mother. She has also said that it came as a shock to her when at the age of 12 she was informed by the Phelans that she was not their natural child. It came as a shock to her because she said she was unaware of that at that time. This must have also been a momentous event in her childhood.
During the few years prior to 1978, the Phelans had raised and pursued with the Department the adoption of the plaintiff. Alas, that did not happen and when the Department, perhaps belatedly, initiated the process the plaintiff’s birth mother did not consent.
Another momentous event about which she is plainly aggrieved and traumatised was her removal in 1979 from the Phelans. There is considerable focus on these events in the plaintiff’s evidence and the medical evidence. The plaintiff was moved by the Department from the Phelans (at their request) and went to live with the Crofts in 1979. The events within the Phelan household which led to this are set out in the contemporaneous documents, although perhaps understandably the plaintiff appears not to accept the accuracy of the reasons for her move.

She was moved at the request of Mr Phelan following conflict in the home. Mr Phelan was a strict disciplinarian and appears to have insisted on a standard of behaviour within the house. There is evidence that he used physical punishment as a form of discipline.
The Phelans had no children of their own. There was disharmony within the home in the year before the plaintiff was moved. Indeed, as recorded in the Department’s notes of meetings at the Phelan house, Mr Phelan used the threat of the plaintiff being handed back to the Department as a means of obtaining compliance from the plaintiff. That must have been particularly upsetting to the plaintiff. The plaintiff says that the first she knew of being moved was when a person turned up one day and told her she was leaving. The Department’s records are not consistent with that recollection but whatever occurred must have been deeply upsetting for her.
Shortly before her move, the relevant officer at the Department changed. Mr Mewton had been responsible for her as a ward of the State. He recorded regular visits to the Phelans checking on the plaintiff. Other than the plaintiff's criticisms and claim in respect of the adoption process against the State, the plaintiff makes no other criticism of Mr Mewton.
For reasons that I am unaware, Mr McIlveen took over the responsibility for the plaintiff. He was the person involved in her move to the Crofts. There is a dispute between plaintiff, the State and Mrs Croft as to the extent of Mr McIlveen’s care, supervision, monitoring and performance involving the plaintiff.
The plaintiff arrived at the Crofts in February 1979. The plaintiff says that whilst at the Crofts, she was treated like a hired worker, regularly physically and sexually assaulted, and did not receive any money by way of allowance at all from anyone the whole time she was there, despite the extensive work she undertook on the property and her entitlement to a benefit having regard to her age.
She denied ever going anywhere or doing anything other than working on the property 10-12 hours a day. The plaintiff denies ever travelling to attend TAFE during 1979, despite the records saying that she undertook a number of subjects. She says that she was kept completely isolated by the Crofts.
The plaintiff describes the assaults against her in her statements prepared for these and the criminal proceedings. There are inconsistencies as to dates, times and circumstances in the various statements. This may ordinarily be explained having regard to the passage of time but she continued to maintain a very precise recollection of everything that happened at the Crofts’ farm even when presented with objective conflicting evidence. Her evidence as to the abuse is that:

It started shortly after she arrived, with Mr Croft deciding that she needed to be disciplined for a failure to properly perform her chores. She alleges that with the knowledge and consent of Mrs Croft she was taken into her bedroom and made to lie on the bed. Mr Croft took off his belt and beat her severely across the bottom with the belt. She says he did this because he said she needed to be punished for not properly performing her chores.

On the next occasion, she was again punished by Mr Croft, similarly for apparently not performing her chores. He pulled down her pants and hit her across the bare bottom with the belt with considerable force and frequency. He then rubbed her bottom as if to assist with easing her pain.

Thereafter, again seemingly as part of a punishment regime for not performing her chores, the conduct of Mr Croft progressed from belting her bare bottom and then rubbing it to digital penetration and then penile penetration, that is belting, rubbing, and then sexual intercourse. The belting was so severe that it drew blood as did the intercourse.

The effect of her various statements is that this conduct by Mr Croft happened 8-10 times, although there are other suggestions that it occurred less. It sometimes resulted in there being blood on the bed or on her pants.
She did not tell anyone about the assaults when or whilst they were happening, although she maintains that Mrs Croft knew or ought to have known of them. On her own evidence, she first told anyone about the assaults when she informed Mrs Croft late in 1979, although the effect of her evidence about the first physical belting is that it was done with Mrs Croft’s knowledge and consent.
There is a dispute as to how long the plaintiff remained at the Crofts. The plaintiff says that at some time late in 1979, she informed Mrs Croft of the abuse being inflicted upon her by Mr Croft.
The context in which she told Mrs Croft is said by the plaintiff to be that Mrs Croft found some used and bloodied pads or pants in the wardrobe and admonished the plaintiff about better personal care. The plaintiff responded by telling Mrs Croft about Mr Croft’s behaviour, linking the sanitary pads to the assaults upon her.
The plaintiff says that immediately following that discussion she was removed from the Crofts’ property and taken elsewhere. Mrs Croft disputes this.
According to Mrs Croft, the plaintiff never made any mention of her husband’s alleged physical and sexual assaults upon her at any time. She never saw anything like it.
After the Crofts, the plaintiff moved to a property in Moree for a brief period. In these proceedings the plaintiff says that this was a forced move but there is other evidence to the effect that she left the Croft farm because she had obtained employment in Moree, working on the property as a farm hand with horses.
She only stayed in Moree for a short period before staying with her biological sister CS and her sister’s foster carers. That stay did not work out as might have been desired.
Thereafter, she moved to Bathurst and stayed in various places including a women’s refuge for a period.
On 25 August 1980, she was discharged as a ward of the State, it being her 18th birthday (see Discharge Report prepared by the Department dated 8 December 1980).
Thereafter, the plaintiff entered into a relationship. I understand that she ultimately married that person in 1981. They had two children.
The plaintiff says that she returned to the Crofts only once and that was because she had been instrumental in assisting with a dog and she thought the dog belonged to her and she wanted to get it back. This was in 1980.
She says that after that single return visit she had nothing to do with the Crofts. She says that she would not have gone back. There is evidence from two sources that she did return to see the Crofts more than she maintains.
The plaintiff then went about her life. As she explained, her husband was a prison officer. She said he took up with another prison officer and their marriage ended in 1986.
During the period 1987 to 1996 she was in a de facto relationship with another man. She says that her partner was violent and abusive towards her. Further, when she left, her eldest daughter refused to go with her seemingly wanting to stay with her partner (in a relationship).
The plaintiff is estranged from her children. I do not know when they became estranged although I understand that the desire of her daughter to stay with her former partner might have caused the breakdown in the relationship between her and that daughter.
The plaintiff appears to have been in regular work at least until 2008. She has worked in a number of different jobs and industries (which I will come to later). Having regard to her evidence under cross-examination, she takes pride in the work that she performed. There is no evidence that prior to 2008 she ever ceased or took time away from work because of any psychological condition.
Around 2008, she ceased work and pursued a claim for workplace bullying. There is no evidence that she had had any psychological treatment or counselling prior to that time.
There is no evidence that she was ever diagnosed with any psychological condition prior to that time although she says that the trauma that she experienced as a child (and she means all of the trauma) impacted upon her ability to develop and maintain relationships and in other ways.
There is no evidence that she has ever consumed drugs (at least in any substantial way, if at all). There is no evidence of any excess consumption of alcohol at any time. While the detail is somewhat vague, as far as I can determine she has not worked since 2008 or 2011, during which time she has complained of a myriad of physical complaints arising from various causes.
Since that time, she has pursued the following monetary claims or proceedings:

a claim for compensation in relation to bullying of her at the workplace;

a claim for workers compensation;

a number of separate claims for Total and Permanent Disability (“TPD”) unrelated to anything arising in these proceedings;

a Family Provisions claim against the Estate of Mrs Phelan (AB v Curry & Anor [2015] NSWSC 1063. That did not go well). Although she was awarded a sum, she had been offered more than she received and was subject to an adverse cost order, which I anticipate would have resulted in her receiving little from that claim;

two Victim Services compensation claims, one relating to the abuse by Mr Croft; and

these proceedings.

She appears to have spent the last 15 years in dispute with various persons and entities as to her entitlements relating to quite a number of different causes or claims.
The plaintiff now lives in Brisbane. The only treatment she receives is by way of regular consultations with her GP/psychotherapist Dr Ian Cheong. She has seen him more than 250 times on Medicare. She describes the treatment as in some way maintaining her mental health pending the outcome of these proceedings. I take this to mean that when the proceedings are over, she will consider other treatment.
She does not currently take antidepressants or any other medication for any psychological condition from which she may suffer. She says she has had adverse reactions to such medication in the past.
She is not working. She may have done some part time work since 2008 but the extent of that is unclear. She enjoys singing and seems to sing in front of other people from time to time.
The plaintiff says in these proceedings that her memory of the abuse by Mr Croft was suppressed or in her subconscious until it was extracted or brought to the surface during a series of counselling sessions with a psychologist from the Care Leavers Australasia Network (“CLAN”), Natalie Wallace, in 2011. As I will discuss later in this judgment the meaning of her evidence on this topic is uncertain.

The plaintiff’s work history

After leaving the Crofts, the plaintiff went to a farm in Moree where she worked with horses. It was her first job. I do not know why it ended so quickly.
Thereafter, she moved to Sydney for a short period, perhaps a couple of months, and lived with her sister. She obtained employment at Hawkesbury Racecourse as a strapper. She then obtained employment at Clarendon Racecourse. She later moved to Bathurst where she worked at the Rockley horse stud. She had been shown an advertisement for this position and applied for and obtained that work. It turned out only to be seasonal work. She says that at that time she was still not 18 years old. This all happened in 1980. Around this time, she met her first husband and they moved to Rockhampton.
After moving to Rockhampton, she obtained work at two separate meat works. Her first child was born in July 1981. By that stage they had moved back to Bathurst. She did not recall working between the time when her first daughter was born in 1981 and the time her second daughter was born in 1984. After her second daughter was born, she obtained part-time work with Telecom. Thereafter, she obtained work with the Catholic Education Office where she remained for around seven to seven and a half years. She said she worked full-time and only had school holidays off.
During this period, she was in a relationship with her second partner, having separated from her first husband in 1986. While at the Catholic Education Office, she worked in an administrative role undertaking the intake of teachers and assisting the Secretary to the Director. She worked 35 hours per week.
At some stage, she worked for a short period at Sofala undertaking casual work. After leaving the Catholic Education Office, she commenced work with an energy company. It started off as part-time work but she ended up working full-time hours in the emergency call centre.
There is some uncertainty as to when she was made redundant but it appears to have been between 1999 and 2001. She immediately obtained work with a security company in Bathurst. She was a customer service representative looking after customer issues and also working in the call centre. That job continued until 2001. Again, she was offered redundancy but she said she did not want to take the redundancy. She was offered a job in Queensland with Chubb.
She then moved to Brisbane and worked for Chubb in Queensland for a period of six or seven years. She worked as a customer service manager on the road looking after clients. She was given a car and was required to go out and see the clients. At some stage in the mid-2000s she left that work. She appears to have worked for an automotive company but only for a short period. At some point around 2008, she must have been employed by Magnetic Automation, being another security company.
Whilst she said she did not recall making a claim, she filled in a claim form for Workcover Queensland for psychological and psychiatric injury on 24 October 2008. She claimed that she was suffering from stress and anxiety as a result of bullying and unfair tactics by her manager. She said she suffered from anxiety, could not sleep, had headaches and loss of self-worth. This was said by her to be all caused by the bullying at work.
In the form, she specified that she had never had any psychological condition in the past. In cross-examination, she explained that she understood the question of whether she had ever had any psychological condition in the past to be asking her whether she had been diagnosed with any psychological injury in the past, rather than whether, as the question suggests, she had ever had any psychological condition. Her answer is difficult to accept .
The plaintiff maintains that the bullying claim happened in 2011 and that this led to a nervous breakdown around 2011 and started the process of the events of 1979 all coming back to her through psychological treatment.
Other than that claim form, there are no documents evidencing the plaintiff’s employment since 1980. However, the history I have recorded is the history to which the plaintiff has agreed or volunteered.

The plaintiff’s presentation

It is important in a case such as this to recognise two matters being:

The plaintiff was at a disadvantage during the hearing because she was representing herself. However, all parties, particularly counsel for the first defendant, cooperated with her in the presentation of her case. Further, she was permitted to call such evidence as she wished to call at any time during the two weeks. Similarly, whilst I endeavoured to keep her on track during her questioning of witnesses, she was generally allowed to explore the issues as she saw them with the witnesses in the manner and time that she determined.

The assessment of her evidence and her credibility should not be influenced by the way in which she represented herself. The outcome of the matter is determined on the evidence and not the plaintiff’s repeated complaints about the conduct of the defendants and those representing them, repeated assertions of her own entitlements, insistence that she could say what she wanted, often for extensive periods, none of which assisted her in terms of the presentation of her case.

Having said that, the plaintiff did not present well when giving evidence. I mean by that:

She regularly did not respond to questions in any sort of responsive way but rather digressed into making long, self-serving statements.

She sometimes made suggestions that the subject matter was sensitive to her rather than responding to the question or responded aggressively, questioning the cross-examiner, as if her time was being wasted and as if counsel was not entitled to question anything she said.

Surprising as it may seem, she was at times jovial and charming. At one stage, she exclaimed that she felt like “the star of the show”. Her frequent demonstrations of emotion only ever lasted seconds before she was seemingly able to respond without any hint of distress or anxiety.

At least according to the medical records, she has suffered from a number of physical injuries which have been so severe that she has pursued at least three separate claims for TPD and has herself identified to a general practitioner that she should be permanently unfit for work. Although I made it plain that she could have a break at any time during her cross-examination, she did not ask for one and my suggestions that she might like one were rejected. She demonstrated no physical discomfort whist in the witness box, other than suggesting at one stage that she could not see to read a document about which she was being cross-examined.

In the end, my impression of her was not of a person suffering from any significant psychiatric condition, albeit it might be consistent with the personality disorder which has been referred to in some of the medical evidence. Having said all that, whilst demeanour and impression play a role in assessing witnesses, facts far outweigh matters of demeanour.
In Fox v Percy (2003) 214 CLR 118, the Court per Gleeson CJ, Gummow and Kirby JJ observed at [30]:

“It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.
Thus, in 1924 Atkin LJ observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The ‘‘Palitana’’):
‘… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.’”

I have due regard to that in assessing her evidence.

Other evidence

The parties relied on the following evidence (in addition to the plaintiff’s written and oral evidence):

Statement of Philip Peter Harris dated 20 May 2024, the former solicitor for Mr Croft. Mr Harris gave oral evidence.

Statement of William Douglas Upjohn dated 21 May 2024, a friend of the Crofts. Mr Upjohn gave oral evidence.

Statement of Elaine Croft dated 21 February 2024. Mrs Elaine Croft gave oral evidence.

Statement of Mrs Croft dated 21 February 2021. Mrs Croft gave oral evidence.

Statement of TH dated 1 March 2024 (the person who said she stayed with the Crofts in 1979). TH gave oral evidence.

Statement of CS (the plaintiff’s biological sister) dated 20 November 2023. CS gave oral evidence.

Oral evidence from Detective Senior Constable Matthew John Robertson, a police officer who was involved in the criminal proceedings relating to Mr Croft, called by the plaintiff.

Voluminous medical and expert medical records and reports.

The plaintiff's current GP, Dr Cheong gave oral evidence, as did Dr Patricia Jungfer, an expert psychiatrist, on behalf of the plaintiff. The defendants also relied upon a report of a psychiatrist, Dr Mee Ling Khoo. That report was admitted into evidence although Dr Khoo was unavailable to give oral evidence.

The parties relied on the Department’s historical file or at least documents from it for different purposes. Like all cases, some of the evidence might be viewed as of secondary importance or limited relevance. Other evidence must be viewed as critical to the outcome.
The plaintiff insisted on adducing evidence from Detective Senior Constable Matthew Robertson. I remain uncertain as to the relevance of the Detective’s evidence to the issues in these proceedings. He did say that the plaintiff had not informed him during the police investigation that her memory of the events had been suppressed for many years.
The plaintiff’s sister, CS, gave moving evidence about aspects of her life. Perhaps evidence from CS was adduced to establish some sort of contrast with how the plaintiff's life has turned out. The plaintiff did come and stay with CS and her foster parents for a brief period in 1980.
It is apparent that it did not work out. I need not comment further on that. As far as I can determine, CS does not have any ongoing or perhaps close relationship with the plaintiff. CS had a different experience in childhood and in her young adult life than the plaintiff. It may be, as the plaintiff maintains, that her life would have turned out differently if she had not been removed from the Phelans in 1979. That is part of her case against the State.
Mr Upjohn was a friend of Mr Croft. He gave evidence as to his knowledge and observations of Mr Croft and Mr Croft’s character. I have regard to Mr Upjohn’s observations about Mr Croft but, of course, the fact that a close friend of Mr Croft did not observe anything or believed that Mr Croft could not have performed such acts is hardly determinative (by this I mean of little comparative weight).
Mrs Elaine Croft is married to the cousin of Mr Croft. Her evidence was as to her recollections of Mr and Mrs Croft and the sort of people they were. She recalled the plaintiff living with Mr and Mrs Croft at Cleggswood. She recalled that the plaintiff went to TAFE. She recalled a number of discussions with Mrs Croft about dropping the plaintiff to the bus stop and that when the plaintiff got her driver’s license it made it easier for her to go to TAFE. On at least one occasion, she recalls the plaintiff coming to her house. The evidence of Mrs Elaine Croft as to her observations of the Crofts and the plaintiff is relevant but suffers from the limitation that she was not often at Cleggswood whilst the plaintiff was there.
I will now turn to the more critical evidence.

The evidence of the third defendant, Mrs Croft

Mrs Croft says that the plaintiff came to stay with them as a temporary arrangement because her long-term placement had broken down. She was initially told by Mr McIlveen that he hoped that the plaintiff may be able to go back to the Phelans and that it might only be a short-term placement.
The plaintiff arrived in February 1979. According to Mrs Croft she stayed until January 1980. She recalled that the placement was extended as arrangements were made for the plaintiff to attend TAFE at Armidale during 1979. She believes the decision for the plaintiff to attend TAFE was made between the plaintiff in discussions with Mr McIlveen.
Her first impressions of the plaintiff were of a polite and well-spoken young person who seemed to be mature and responsible. She was not sure why the arrangement with the Phelans had ended and the plaintiff was not forthcoming in terms of any information about that. She decided not to press the plaintiff for any further information as to why her placement with the Phelans had ended.
As far as Mrs Croft is aware, the plaintiff did not have any contact with anyone from her past during her stay except the occasional contact with the Phelans.
Mrs Croft says that she treated the plaintiff as she thought she should treat an older teenager, giving her the freedom to get out and about in the community as she wished. She and Mr Croft taught the plaintiff to drive, and the plaintiff had use of a car to drive herself into town as required or to attend TAFE or for any other reason.
The plaintiff was quite independent. She had an allowance paid to her to attend TAFE. This money was not received by Mrs Croft and she did not ask how much the plaintiff was receiving. She believes the money was paid directly into the plaintiff's bank account. Mrs Croft never asked what the plaintiff was doing with the money.
She recalled at one stage the plaintiff had an accident at a polo cross event which required stitches. She recalls driving the plaintiff to the family doctor’s practise in Uralla. Her memory of the plaintiff is her abiding interest in horses. Her husband was a superb horseman. He was very good at training and maintaining his horses.
At the time the plaintiff arrived, Mrs Croft had a five-month-old baby and was not doing much farm work or horse riding. She left it to her husband and the plaintiff to do stock work on Fridays, Saturdays and Sundays because they both enjoyed that.
On the remaining four days, the plaintiff went to TAFE. Mrs Croft recalled that the plaintiff spent a lot of time with her husband out on the farm doing stock work and riding horses. She would always be happy to do so. At the end of the day, she always spoke about what they had been doing. She always looked happy and animated.
During the evenings, Mrs Croft cooked most nights, although on occasion the plaintiff cooked. After dinner, the three of them would sit and watch television together.
In terms of the plaintiff going to TAFE, Mrs Croft usually drove the plaintiff 25km from Cleggswood to Uralla where she would catch a bus to Armidale. Sometimes she carpooled with other people. The plaintiff got her licence just after her 17th birthday.
From the time she got her P plates, the plaintiff would drive herself to TAFE unless the car was needed. There were no restrictions placed on the plaintiff staying in Armidale to socialise with friends, although she does not recall the plaintiff doing that.
Mrs Croft said that another young person, TH, spent a lot of time with them around the same time as the plaintiff. She was probably 18 months younger than the plaintiff. The two girls spent time together.
Mrs Croft also detailed the activities that the plaintiff participated in including community, social and sporting events. She remembered that the plaintiff, TH and her used to play Scrabble occasionally round the kitchen table. She regularly went to town with the plaintiff although the plaintiff did not show great interest in accompanying her in visiting town when she did her errands.
According to Mrs Croft, the plaintiff's interactions with her and her husband were a little strained initially but she gradually became comfortable and relaxed. She maintained the same countenance and composure throughout the time on the farm.
Mrs Croft did not observe any change in the way the plaintiff interacted with her or her husband. She never saw any signs that the plaintiff was uncomfortable with either of them. She says the plaintiff was not required to do any chores around the house, but she did chip in occasionally. She spent time in her room studying for TAFE.
She says that the plaintiff came back to Cleggswood three times to visit her and her husband. The plaintiff instigated those visits. On one occasion she brought her baby back.
She recalled that Mr McIlveen of the Department was in regular contact with the plaintiff and often visited Cleggswood to see and speak to her. He would ring and make a time to come. She was in the habit of leaving the plaintiff alone with Mr Mcllveen during the visit so they could speak privately. She considered that the plaintiff had a good rapport with Mr McIlveen. She remembers that Mr McIlveen also went to see the plaintiff when she was at TAFE. At no time did Mr McIlveen raise any concern about the placement.
Mrs Croft denies that the plaintiff ever told her about the abuse. She does recall one occasion earlier on in the placement where an issue arose as to the plaintiff's personal care, in particular, the stashing of used sanitary pads in the wardrobe. She spoke to the plaintiff about disposing of these pads in a more sanitary manner.
Mrs Croft denies any conversation with the plaintiff late in 1979 when the plaintiff revealed the abuse. Mrs Croft says that the plaintiff left in January 1980 because she had found a job which was of interest to her. She believed Mr McIlveen had been making enquiries on her behalf during the year about various agricultural colleges.
A couple of weeks after the plaintiff left the Crofts, Mrs Croft received a call from the plaintiff saying she was upset and wanted to come back. Mrs Croft suggested to her that she had to make a go of it and just buckle down because she wanted to work with horses. She thought the plaintiff was homesick. She did not think it was a good idea for the plaintiff to come back and retreat into Cleggswood. She needed to get on with her life.
She recalled the plaintiff came to visit one time in late 1980, having called in advance to say she would be coming to stay for a couple of hours. She remembered she had a man called “Ian” in her life. She told them about the work she had been doing in a horse stud in the Bathurst area. The plaintiff seemed very happy.
The second visit came quite a while later, around 1981 or 1982. On this occasion, the plaintiff had a baby with her. She said she had married Ian. She remembered a third visit. On that occasion, the plaintiff had a baby in her arms and one in a stroller. She also remembered that during one of the visits the plaintiff told her that her foster father, Mr Phelan, had become very unwell. Further, the plaintiff told her during one visit that her relationship with Ian had broken down and she was intending on leaving him.
The first time Mrs Croft heard about any allegation against her husband was when the police called the house at Cleggswood. She recalled that her husband immediately denied it. She says she believed her husband. She thought her husband treated the plaintiff with respect and that they were mates.
Mrs Croft gave oral evidence. Her evidence in chief consisted of identifying photographs in which the plaintiff was shown undertaking various activities with either her or her husband. Further, Mrs Croft identified an old address book in which there are a number of entries for the plaintiff’s new addresses after she left Cleggswood.
Mrs Croft was cross-examined briefly on behalf of the State. She confirmed that Mr McIlveen came and went to the property quite frequently. She became very familiar with him. He attended probably monthly.
She was cross-examined by the plaintiff. Most of the questioning involved the plaintiff repeating parts of the written statement and requiring Mrs Croft to confirm, repeat or explain it. There was some focus in the cross-examination as to how the plaintiff came to be at the Croft farm and who brought her there and what Mrs Croft knew when she arrived (I understand for the purposes of pursuing a submission that Mrs Croft might have had greater responsibility than she was maintaining or should have done more to understand the plaintiff's issues when she arrived).
The plaintiff did challenge Mrs Croft as to whether she left Cleggswood to take up a job working with horses. She was also asked how she remembered the plaintiff was there at Christmas. She identified that her son had a convulsion on 2 January 1980 and the plaintiff was there for that and left after that.
Mrs Croft agreed she did not inform the Department about MTH’s departure. She said she didn't feel the need to because the Department already knew about it. Mrs Croft reiterated that it was the plaintiff who was looking for employment, and she followed up on the job opportunity at Moree because she was 17 and a half years old and she was seeking to commence employment.
Mrs Croft was challenged on whether Mr McIlveen came to TAFE and then contacted her. Again, Mrs Croft confirmed she spoke to Mr McIlveen over the phone about it. She also had a conversation with the plaintiff about it.
Mrs Croft was cross-examined about the issue relating to the sanitary pads. She maintained that the conversation took place before Mrs Croft’s mother went away in April.
Mrs Croft confirmed that the plaintiff spent long periods alone with Mr Croft doing stock work. The plaintiff was not assigned regular chores and there was no consequences for her if she did not help out. She said she was sure she would have gone into town with the plaintiff in addition to taking the plaintiff to the bus stop for TAFE four days a week.
Nothing emerged in cross-examination which was inconsistent with Mrs Croft’s statement. Having said that, it is clear that the plaintiff spent significant periods alone with Mr Croft on the farm working with the horses. Mrs Croft identified that this was likely to happen generally on a Friday, Saturday or Sunday, as the plaintiff went to TAFE the other four days.
It is not possible to reconcile Mrs Croft’s evidence with that of the plaintiff.

The evidence of TH

TH was placed in an orphanage at the age of seven, along with her three brothers as a result of her mother dying of cancer. She first met the Crofts in 1975 when she was living at St Patrick's Orphanage in Armidale. Her older brother SH had begun visiting the Crofts at Cleggswood. One of the Crofts’ neighbours suggested that the Crofts might consider taking an orphanage child out for respite visits occasionally.
She recalled her brother SH’s chats with her about how wonderful the visits to the Crofts’ farm were and how nice Sandy and Joe were. She said it was SH who pestered the Crofts to have her visit as well. She first started visiting when she was 11. She would spend one day a month there.
By the time she was 15 in 1979, she was spending most of her weekends at Cleggswood except for during the school holidays when she would visit her stepbrother on a farm in Moree. She said she would have spent approximately 35 or more weekends at the Croft’s farm during 1979, using every opportunity to get out there as she loved it.
She spoke of getting the bus from Armidale to Uralla and being picked up by Sandy and being taken to hockey by Sandy or Joe. She said that Sandy was a mentor to her and Sandy and Joe were people she could trust. They gave her a safe place to be. She always felt safe and secure at their home.
She recalled that a teenage girl arrived at Cleggswood when she (TH) was about 15.
She remembers her name, being the plaintiff’s. She says she and the plaintiff spent many weekends at Cleggswood together in the year she was living there, although they were not particularly close as she was still at school, whereas the plaintiff had left school and was going to TAFE that year.
She recalled the plaintiff being very enthusiastic about horses. She recalled that the plaintiff sought out other friendships around her age, being people that were doing similar things to her. She recalled that the plaintiff spent a lot of time with the horses on the weekend and many of their conversations would be about horses. She thought the plaintiff was particularly fond of Daniel, Sandy and Joe’s baby. She appeared to be more responsible and confident with the baby. She says that they always spent meal time together and would often watch TV programs together after dinner.
She recalled the plaintiff cooking her birthday dinner and even recalled that it was roast apple stuffed with meringue. She recalled playing Scrabble with Sandy and the plaintiff. She remembered the plaintiff being quite direct with Sandy and Joe about what she wanted to do such as going to a horse event and being quite firm and adamant about it.
She did not recall Sandy or Joe saying no very often. TH did not find out that the plaintiff was a ward of the State until after 1979. TH says that she knows that the plaintiff went to TAFE whilst she was at Cleggswood although she couldn't remember how many days. She recalled the plaintiff being injured on a horse float at one stage and that Sandy and Joe went to horse events with the plaintiff which she didn't attend.
She recalls that they used to go to the neighbour’s property and the neighbours would come to their property. She recalled at one stage the plaintiff got dressed up and went to a social event away from the property.
She said she had the impression that the plaintiff enjoyed being at Cleggswood. She never got the feeling that the plaintiff was unhappy and the plaintiff never once made any complaint to her about the Crofts. She recalled the plaintiff left Cleggswood to get a job out of town. She also recalled that the plaintiff came back to visit the Crofts on one occasion when she was there. The plaintiff had a young child with her on this visit. She recalled the plaintiff going into the house with Sandy.
TH was called by the third defendant. She was cross-examined by the plaintiff. It was put by the plaintiff to TH that she had only seen the plaintiff once at the Crofts’ farm. TH disagreed saying that she spent weekends at the Crofts during that period, nearly every weekend apart from school holidays, and she was sure it was 1979. She knew it was 1979 because it was her last year at school and she was still in the orphanage at that time and the orphanage had relaxed the rules about weekend visits.
In the end, the plaintiff put to TH that she was not disputing that she was there but she was disputing that she was there whilst TH was there. The plaintiff seemed quite puzzled by TH’s evidence, saying that she just could not recall her.
The plaintiff challenged TH’s statement about the plaintiff returning to the Crofts’ property with a child some time later. During the questioning, TH said that she thought it would have been between 1981 and 1983 when the plaintiff returned to visit the Crofts’ with her baby.
TH was also asked by the plaintiff to identify some more of the things they did together and she did so, saying they spent their meals together, they went to a gymkhana or a polo cross event. Again, the plaintiff maintained during these exchanges that it was not her but was always met with the same response, that is that TH remembered it and she was there.
It is not possible to reconcile TH’s evidence with that of the plaintiff, not just in terms of TH’s views about the Crofts or treatment by the Crofts, but also her observations of the plaintiff and what the plaintiff was doing when she was there.
The plaintiff's evidence is that TH only came to the farm on one occasion while she was there and on that occasion, the Crofts insisted that the plaintiff remain in her room rather than have dinner with them.

The central issue - Was the plaintiff abused by Mr Croft?

It is important to state that the plaintiff bears the onus of proof on the civil standard, that is on the balance of probabilities.
Yet, although the standard remains the civil standard, in a case such as this, the plaintiff must prove the matters that she is required to prove to a high degree of satisfaction (see Briginshaw v Briginshaw (1938) 60 CLR 336). This is because the allegations made by the plaintiff involve serious and criminal conduct (see also s 140 of the Evidence Act).
I will now consider the central issue in the proceedings, being whether I am satisfied that the abuse of the plaintiff by Mr Croft happened.
I have already described the nature of the abuse. That description comes from a combination of the plaintiff’s criminal and civil statements. She did not add to the detail in her oral evidence.
There is substantial evidence inconsistent with the plaintiff’s evidence both as to her time on the Croft farm and her treatment by the Department.
That evidence includes the Department’s contemporaneous records which the plaintiff says could not be accurate or may have been altered. Further, there is evidence of TH and Mrs Croft which is generally in stark contrast to the picture painted by the plaintiff. Indeed, some of the plaintiff’s own written statements are inconsistent with her evidence in these proceedings.

When that became necessary, he made enquiries of other places to see whether the plaintiff could go to a college where she could pursue her interest in horses. That proved to be unsuccessful.

She was then placed with the Crofts, again on premises with horses where she could pursue her interest in horses.

It is not the position that the Crofts were not properly vetted. They were. They were approved foster carers between 1976 and 1992. They were approved for short-term or temporary care. There is no evidence of anyone on behalf of the State being aware of any of the alleged conduct or tendencies of Mr Croft prior to the plaintiff being placed with the Crofts. There is not even a suggestion of there being any complaint or report about the behaviour of Mr Croft until the plaintiff's first complaint arose in 2013.

I accept that, contrary to the plaintiff's assertions, Mr Mcllveen, as the officer responsible for the plaintiff, did take reasonable steps to ensure that the plaintiff was fostered to an appropriate home and further that he checked on her not just once in March 1979 but at different times in 1979. He could not have been reporting to Mr Phelan about his observations without having done so. Further, he would not been corresponding with the Orange Agricultural College in September 1979 on behalf of the plaintiff unless he was in contact with her.

Further, as is apparent from the records relating to the problems which emerged with the Phelans in 1977 and 1978, the plaintiff certainly knew who Mr Mcllveen was, she spoke to him directly. It was not Mr Mcllveen or anyone else on behalf of the Department who in some way forced the plaintiff to leave the Phelan property. She was removed at the specific request and demand of Mr Phelan. Again, nothing in this judgment should be interpreted as meaning that the events would not have been traumatic to the plaintiff or that she does not feel deeply aggrieved by what happened to her during the period when she was required to leave the Phelans and go to the Crofts but the plaintiff has not established that the State failed to take care for her in the processes which were adopted.

Further, the plaintiff’s assertions about the Department not doing more to place her with her biological family rather fall away having regard to the evidence about the Department arranging for the plaintiff to stay with her sister CS in early 1980 and what happened there. Again, even that must have been difficult for the plaintiff but the plaintiff has not established that the difficulties reconnecting with her sister have been caused by any negligence on the part of the Department. There is insufficient evidence to make any finding about why the plaintiff was separated from her siblings when placed with the Phelans at the age of four. Again, it must be that it would have been better if that did not occur but I am unable to simply infer that this occurred through some want of care on the part of the Department.

That only leaves the adoption claim.
I accept that Mr and Mrs Phelan indicated a desire to adopt the plaintiff some years before 1977. I accept there was a delay on the part of Department in commencing that process. I also accept that when the process was commenced in earnest, the plaintiff's natural mother said she would not consent to the adoption.
Thereafter, in 1977, the problems to which I have already referred in the Phelan household arose.
Although there was a delay, the plaintiff has not established the reason for that delay. She has not established the essential facts which she needs to establish to establish negligence. For example, there was no correspondence from the Phelans in those early years about what their intentions were. There is no evidence of what discussions might have taken place between the Phelans and the Departmental officers in those early years, other than that the plaintiff was doing well with the Phelans and the Phelans wanted to adopt the plaintiff.
Further, the type of claim which the plaintiff is pursuing against the State, that is the failure to process the adoption claim, is a claim which would be subject to s 43A of the CLA. However, again, it is not necessary to consider this issue further as the plaintiff’s claim against the State also fails on the facts.
In the end, the plaintiff may look at the Department records and see that the Phelans had made earlier requests for adoption which had not been progressed in a timely manner by the Department. She may feel aggrieved about that but to succeed in an action in negligence she must establish that:

the duty of care owed by the Department to her required the Department to have progressed the adoption process more quickly than it did;

the absence of a timely implementation of the adoption process constituted a failure to exercise reasonable care for her health and well-being; and

as a result of that failure, the plaintiff suffered injury. That is, as a result of the Department’s failure to progress the adoption by the Phelans at some earlier time than it did she has suffered some psychological injury.

She has not established any of these matters. It is important to observe that the question of breach of duty of any historical matters such as this must be approached with foresight. The court does not look back at what happened and then determine breach.
Further, it is clear that by 1977 Mr Phelan was having issues with the plaintiff. Having regard to Mr Phelan’s quite terrible threats to the plaintiff about her behaviour, which he obviously followed through with, no finding could be made that he would have adopted her in 1977. As such, the plaintiff would need to establish negligence on the part of the Department before 1977 (to enable a finding on causation i.e. the adoption would have gone ahead). There is no evidence to enable a finding of negligence on the part of the Department at any particular time in relation to the adoption process.
In respect of the case against the State:

Although the plaintiff is plainly aggrieved and there is significant medical evidence attributing much of her complaints to her views about her care as a ward of the State, the plaintiff has not established any negligence in respect of its care towards her; and

the State is not vicariously liable for any conduct on the part of Mr and Mrs Croft.

The plaintiff’s case against the State fails.

Damages

As the plaintiff has not succeeded, she is not entitled to damages but I will assess damages on the alternative basis, being that the abuse complained of occurred (lest I am wrong and the second defendant is precluded from asserting that it did not).
The task in assessing damages on different factual findings is difficult. Having said that, the medical evidence and documentary evidence remains the same as does the plaintiff’s own testimony, albeit I have not accepted parts of her evidence.
As set out in the statement of particulars, the plaintiff claims that she suffered physical injuries as a result of the repeated assaults by Mr Croft and that she developed psychiatric illness thereafter, including chronic post-traumatic stress disorder, major depression with chronic anxiety, intrusive recollections and thoughts and a broad range of related symptoms.
In a document labelled “Adjustment to Damages Claimed” dated 28 August 2024, the plaintiff provides a schedule of the amount she is claiming as follows:

Category of damages

Amount

General damages

$500,000

Interest on general damages

$322,000

Past economic loss

$2,947,806.24

Future economic loss

$675,305.51

Treatment expenses

$366,090.25

Adjusted aggravated and exemplary damages (First defendant)

$280,000

Adjusted aggravated and exemplary damages (Second defendant)

$220,000

Adjusted additional award of pain and suffering (Third defendant)

$60,000

Costs from third defendant (Permanent stay)

$77,000

Adjusted rent payback

$112,400

Super payback

$65,000

Adjusted self-represent allowance

$22,000 (110 hours at $200 per hour)

Adjusted travel and accommodation for hearing

$3,500

Payback for Victims Services

$40,000

Disbursement (Private Investigator Fee) (Third defendant)

$412

It must be said at the outset that, even assuming that the abuse occurred, this is not a matter in which the plaintiff would have been entitled to damages of the type she seeks. This is because:

The medical evidence is conflicting and very much affected by the history the plaintiff has provided. It is not all supportive of the plaintiff.

The plaintiff had a very good work history until she stopped work for reasons not associated with this claim in about 2008 or 2011.

She has suffered from a number of physical complaints since that time that she has maintained in other cases or claims which have rendered her unfit and, indeed, permanently unfit for work. In 2019, her doctor (Dr Cheong) said she was unfit for work because of physical injuries.

Even the supportive psychological evidence suggests that her present complaints are multifactorial with the alleged abuse being only one factor.

She does not take any medication for any psychological condition and her treatment is limited to regular consultations on Medicare with Dr Cheong who listens and records what she says. It is not apparent why the plaintiff has seen Dr Cheong on so many occasions.

Medical evidence

The medical evidence comprised the following:

Reports of Dr A G Cook, dated 16 June 2014, 17 June 2016 and 7 September 2016;

A report of Dr M Khoo dated 20 April 2016;

Two reports of Dr P Jungfer dated 29 July 2020 and 19 December 2023;

Two reports of Dr I Cheong dated 11 May 2020 and 9 November 2023;

Medical records of Springwood Medical General Practice (primarily records of Dr Cheong);

Oral evidence from Dr Cheong and Dr Jungfer;

Report of Dr John Warlow dated 10 February 2021; and

Reports of N Wallace of CLAN dated 11 June 2014 and 19 March 2015.

The reports of Dr Cook and the reports of Ms Wallace of CLAN were obtained for the purposes of the plaintiff’s proceedings against the Estate of Mrs Phelan.
The reports of Ms Wallace are very much directed towards her relationship with the Phelans and her entitlement to a benefit from Mrs Phelan’s estate. Indeed, Ms Wallace expressly states that she is writing in support of the plaintiff.
The reports of Dr Cook constitute the earliest medical reports relating to the plaintiff, that is, Dr Cook says that he, a consultant psychiatrist, first saw the plaintiff in March 2013, having been referred by the plaintiff’s general practitioner, Dr Reynolds, in December 2012.
In his first report dated 16 June 2014, Dr Cook notes that he was also providing a report for the purposes of the claim being pursued by the plaintiff against the Estate of Mrs Phelan. He says he had seen the plaintiff on a monthly basis since their first consultation on 6 March 2013. When he first met the plaintiff, he asked her what her major problem was, she responded “I was fostered as a child, at the age of four”. Dr Cook then stated, “[t]o me, this is the core of her psychiatric distress”.
He made a diagnosis of major depressive disorder, suggesting that her symptoms of low mood, poor sleep, lack of enjoyment, guilty feelings, poor energy levels, poor concentration, irritability, and suicidal ideation were the surface manifestations of the problems which stem from a very disrupted childhood and adolescence. He opined that being placed in care has left the plaintiff with underlying beliefs of feeling alone and isolated, having difficulties in relationships, feelings of not being good enough, feelings of low self-esteem, feeling it was all her fault and an inability to trust others.
She also described to Dr Cook that she left home at the age of 16 and was placed with a younger family by the Department to assist as a farmhand. She was required to pay board. Dr Cook said he understood that she was abused at this place. There was no other mention of the abuse or its effect in Dr Cook’s report of 16 June 2014. Nothing in Dr Cook’s first report supports a causal connection between any abuse by Mr Croft and any psychological condition from which the plaintiff might suffer.
In the later report of 17 June 2016, Dr Cook was asked to respond to the opinion of Dr Khoo, who, as I will discuss, diagnosed a chronic adjustment disorder with mixed anxiety and depression. Dr Cook maintained his view that the plaintiff suffered a major depressive disorder. On this occasion, Dr Cook said that the major depressive disorder had its genesis in the difficulties the plaintiff faced during childhood and adolescence, particularly being rejected by the Phelan family and the sexual abuse that occurred at the Crofts’. These difficulties have been aggravated by a range of psycho-social adversity since that time. He went on to say “with respect to the significance of [MTH’s] experiences whilst in the care of the New South Wales Department of Family and Community Services, in my opinion, this is crucial to her current psychiatric distress”.
In his third report of 7 September 2016, he again said that the cause of the plaintiff's underlying psychiatric disorder lies in the way she was treated whilst under the care of the Department again referring to the way in which the Department removed her from the Phelans and the abuse she suffered at the Crofts’. Dr Cook opined that he was hopeful that with the resolution of the case, that is the case against the Estate of Mrs Phelan, there would be an improvement in the plaintiff’s psychiatric disorder and level of functioning.
He had been encouraging her to look at other employment options and interests, but her life was consumed by the claim against the estate of Mrs Phelan. He said, “unfortunately, she remains quite fragile, mainly of [sic] a result of attempting to deal with the abuse which has now been going on for more than five years”.
Plainly, on his analysis made during 2013-2016, Dr Cook believed that the cause of the plaintiff’s then psychological difficulties was multifactorial with the fact of the abuse reportedly being only one factor and not emerging as a relevant factor until his second report (the first being prepared for a case against the estate of Mrs Phelan).

Dr Khoo’s reports

Dr Khoo, consultant psychiatrist, examined the plaintiff in her rooms in Brisbane on 19 April 2016, on a joint basis on behalf of her solicitors and the solicitors for the first defendant. Dr Khoo obtained a much more extensive history of the assault (than Dr Cook) said to have been perpetrated by Mr Croft.
The plaintiff informed Dr Khoo that she initially put the abuse out of her mind as she was working 12 hour shifts. According to Dr Khoo, she repeatedly stated in the interview, “I live in an intertwined world”. She repeatedly attributed all of her subsequent failed relations and psychological symptoms to her perceived mismanagement by the Department. She said she did not know she was not the biological child of the Phelans until the age of 12 and the process of adoption was mismanaged by the Department.
She provided a family history of her relationships and the difficulties with her children. She says she saw a counsellor in 2008, when there were multiple stresses in her life. She did not recall seeing a psychiatrist in 2012. She said she divulged the abuse in 2011 when counselled for 12 months by CLAN.
She said her symptoms deteriorated in 2013 when Mrs Phelan died, particularly when she realised that her assumption that she would be a significant beneficiary did not eventuate.
According to Dr Khoo, the plaintiff did not disclose symptoms specifically related to the alleged assault by Mr Croft, although she proffered that she thought about them all the time. She did not proffer other symptoms of post-traumatic stress disorder. She says that over the years she has been passive, but she has now become more assertive.
The issue causing her most stress when interviewed (in 2016) was the unsuccessful resolution of her legal action against Mrs Phelan’s estate. According to Dr Khoo, she was prescribed Cymbalta, antidepression medication, 12 months earlier. She said she took the medication intermittently as it made her feel disconnected. She was prescribed Diazepam but only took it on one occasion because it made her feel like a zombie. She did not smoke and only drank minimal alcohol. She does not use drugs.
According to Dr Khoo, the plaintiff suffered symptoms in the form of anxiety and feeling numb and robotic. Dr Khoo did not consider there was sufficient evidence to support a diagnosis of major depressive disorder or post-traumatic stress disorder. There was evidence to support the diagnosis of bipolar affective disorder (which was disavowed by Dr Cook). She did not consider that she suffered from any psychiatric illness caused by the sexual abuse.

Dr Jungfer

Dr Jungfer prepared two reports dated 29 July 2020 and 19 December 2023. She also gave oral evidence.
Dr Jungfer examined the plaintiff on 14 and 29 July 2020 by FaceTime. She was again assessed by Dr Jungfer on 11 December 2023 by audiovisual link.
Dr Jungfer refers to the plaintiff suffering from PTSD on a long-term basis, but as I have already discussed, that opinion is based on the assumption that the plaintiff had since the time of the abuse continued to ruminate about the abuse or have flashbacks about it or relive it.
Mr Andrews on behalf of the second defendant cross-examined Dr Jungfer, Mr Andrews focused on two main points being:

the importance of obtaining an accurate history in terms of the actual diagnosis and prognosis; and

the idea that the plaintiff might be suffering from a false memory.

Of course, Dr Jungfer readily agreed with the proposition that it would be important to obtain an accurate history. The history she obtained is somewhat different to some of the evidence but those differences are not determinative, except to the extent that it seems clear from Dr Jungfer’s reports and oral evidence that one of the symptoms of PTSD is flashbacks or reliving the traumatic experience.
It could not be that the plaintiff was suffering from any form of PTSD causally related to the abuse by Mr Croft prior to 2011 because on the plaintiff's own evidence she had suppressed those memories and was not reliving the experience or having flashbacks in that 30-year period.
In any event, on a fair reading of the plaintiff's questioning of Dr Jungfer which consisted mainly of long and exhaustive statements about her beliefs and position, Dr Jungfer accepted the suggestion that, ultimately, she had not seen any evidence in this case which raised the possibility of a false memory. In that sense, the plaintiff's questioning of Dr Jungfer was effective.
Two other issues were raised with Dr Jungfer being:

Whether any of the conditions (and there are many and they are varied) of which the plaintiff has been diagnosed have as their symptoms, a tendency to be delusional or lie. In other words, was it a symptom of any condition that she may be suffering that she might be delusional (that is to have a genuine belief of something which is wrong).

Dr Jungfer did accept that individuals with personality dysfunction can be dishonest but did not accept that any of the conditions which she had diagnosed would make the plaintiff more likely to lie.

The second matter related to the plaintiff's evidence that her memory of the abuse was suppressed until 2011 but she maintained a very precise memory about many other things that happened to her at the Crofts’ in 1979.

Dr Jungfer suggested that such statements as to her memory, that is what she actually remembered and what was suppressed, would be inconsistent with what is known about memory and the process of for example, suppression, meaning as I understand it that a person such as the plaintiff could not selectively suppress things (that is the actual abuse) and always remember all of the other bad things that happened at the Crofts’ farm in 1979.

The cross-examination of Dr Cheong

Dr Cheong prepared two reports dated 11 May 2020 and 9 November 2023. Dr Cheong is a general practitioner with some expertise in psychotherapy, who the plaintiff appears to attend on a weekly basis. Each session is bulk billed. He appears to provide counselling or therapy to her.
The plaintiff described the benefit she obtained from seeing Dr Cheong on a weekly basis (now amounting to over 250 hours), as being that he keeps her in some way stable so that she can manage the litigation process before she goes on to other treatment once these litigation processes come to an end.
Dr Cheong says the next step will be to connect the plaintiff with a psychotherapist once the pressure of the legal processes is off the plaintiff. He also said that he expected an improvement in the plaintiff's mental health status once the legal process came to an end.
I confess to being a little uncertain as to what Dr Cheong is actually doing for the plaintiff. Perhaps he provides support which is of course valuable in itself. I did think that he had some expertise in psychotherapy, but he suggested the next step is that he will refer the plaintiff to a psychotherapist.
The focus of Mr Andrew’s cross-examination was, again, the proposition (generally accepted) that the attachment disorder from which the plaintiff suffers relates not to any physical or sexual abuse in 1979, but more to the long history of childhood insecurity experienced by the plaintiff. This was agreed to by Dr Cheong.
Mr Andrews also cross-examined Dr Cheong on the significance of the history provided. Dr Cheong said that in his experience these types of patients may accidentally give an incorrect history. Dr Cheong did not obtain any history from the plaintiff of her experiencing any trauma prior to physical abuse at the hands of Mr Croft. That is, unlike the other medical experts, he seemingly did not have a history of the plaintiff's deep sense of grievance and the trauma she suffered when being removed from the Phelans.
Dr Cheong also gave evidence as to the numerous physical complaints the plaintiff has made to him, including that, for example, in 2019, the plaintiff was struggling to get control of her pain, that she had an MRI and that she was unlikely to go back to work as at 2019. The doctor explained that this was not likely to be his opinion but really a recitation of what the plaintiff told him.
Dr Cheong also gave evidence as to his assistance in pursuing the TPD claim with AMP. Dr Cheong also agreed that, based on information provided to him, the plaintiff’s psychological distress was related to a number of factors including:

the plaintiff did not get anything from Mrs Phelan’s estate;

she was estranged from her daughters;

she was involved in fights with the insurance company;

she was involved in a fight with the Australian Taxation Office; and

she had a number of physical injuries.

According to Dr Cheong, these are all matters which impacted upon the plaintiff's mental health. The physical injuries were such that she could not work, and she informed the doctor that she was arranging to get domestic assistance to do the cleaning including the floors, bathroom, mowing, laundry, hanging sheets, and stripping the bed. The need for such assistance was reportedly based on the plaintiff’s back or shoulder injury.
In terms of the plaintiff’s own attribution of any psychological difficulties, my impression was that she tended to blame her general treatment by the Department more than the physical acts said to have been perpetrated by Mr Croft. At the very least, any psychological condition from which she suffers is multifactorial in origin.
The medical evidence does not really assist her both in terms of providing a consistent explanation for and diagnosis of her conditions:

Dr Khoo’s evidence does not assist her in terms of supporting her claim for damages based on any severe psychological condition.

Dr Jungfer’s evidence does not assist her in terms of reconciling her evidence and its many inaccuracies and inconsistencies with some form of psychological condition.

None of the reports or records lend support for her version of a suppressed memory coupled with a precise memory of many other events.

I have already indicated that I am unable to accept many aspects of her evidence.

Assessment

The plaintiff claims that if she had remained with the Phelans rather than being moved to the Crofts, the Phelans would have transferred her schooling to NEGS in Armidale for years 11 and 12. Her interest in animals and agriculture would have been developed. She then would have pursued tertiary studies in veterinary science at Armidale University.
She says that as a result of what happened to her, she was unable to complete schooling past year 10 and unable to undertake tertiary studies. That could only be related to Mr Phelan’s decision to have her removed from his care rather than any conduct of the Crofts. On any view, any abuse by Mr Croft could not have caused her to drop out of school in year 10 and not proceed to university.
She then says that as a result of Mr Croft’s abuse there were significant disruptions to her employment and earning history from approximately 1984. Her own evidence does not support that assertion. Her claim is that, if not for what happened to her, she would have become a veterinarian within four years of leaving school in year 12 and would have earned $3,565,649.00. She says that she has earned during that same period $2,211,320.00.
She has claimed the difference in the sum of $1,354,329.00. With interest and loss of superannuation, this amounts to $2,947,806.24.
The basis of these calculations is uncertain, other than that the plaintiff must have calculated how much she would have earned as a veterinarian, assuming she became a veterinarian at the age of 22 and how much she has in fact earned over her working life. Her estimate of what she has earned (there are no documents to provide any verification) is reflective of her evidence as to her working life. Until 2008 she worked hard and was in regular employment. Based on her own calculations she earned a good income.
Averaged over the period of the 31 years that she did work (1982-2011), she estimates that she was earning on average $70,000 per annum. That must reflect periods when she was earning higher amounts as there were certainly periods when she would not have been earning that on her own evidence.
I am unable to accept the basis of her claim. The reality is that she had a good work history until she ceased work as a result of being bullied at work (that seems to have been in 2008 but she says it was in 2011).
There is no evidence that:

she ever stopped work or had any time off work because of any psychological condition prior to 2008; or

she was ever unable to work because of some psychological condition prior to 2008.

The only evidence that the plaintiff might have been suffering from any psychological condition during those years prior to 2008 is the retrospective opinion of Dr Jungfer that the plaintiff would have been suffering PTSD consequent on the abuse. The symptoms of PTSD include regular flashbacks as to the cause of the condition. On the plaintiff’s evidence in these proceedings, she had managed to suppress her thoughts of the abuse. I do not accept that the plaintiff would have been suffering from PTSD in relation to the abuse when on her own evidence she was not generally conscious of the abuse.
Whether she was suffering from any psychological symptoms referable to the general trauma she suffered as a child may be a different question but she has not succeeded against the State and I am not assessing damages on the basis that the cause of any long term problems is the failure of the State to progress the adoptions or her removal from the Phelans or her general treatment by the State.
As the plaintiff has not established that she took any time off work because of any psychological condition prior to 2008, then she is not entitled to any amount for loss of income prior to that time.
Further, even assuming the abuse by Mr Croft occurred, she has not established that she has remained off work since 2008 because of that abuse.
When she initially stopped work, she did so because she was being bullied. She maintained that she developed a psychological condition as a result of being bullied at work.
She then pursued a case against the Estate of Mrs Phelan. The medical evidence does not support the claim that she was unfit for work because of any abuse.
During the next period, that is right up until 2019, she sustained a number of physical injuries and pursued claims for TPD as a result of those injuries. That is, she was asserting to the insurance companies that she was totally unfit for work because of those physical injuries. Her physical condition was apparently so bad in 2019 that she remained unfit for any form of work.
Accordingly, she did not cease work in 2008 because of any psychological condition referable to the abuse and she has asserted for different cases and claims that she has been unfit for work for reasons not referable to the abuse by Mr Croft.
Further, she did not provide an accurate history to Dr Jungfer about:

the onset of any psychological condition;

her suggestion that she had suppressed her memory up until seeing CLAN; and

that she had been off work for a lengthy period for other reasons.

Dr Khoo does not support her complaint of PTSD and depression.
This only leaves the general practitioner who she has been seeing on a casual basis for 5 years, Dr Cheong. As I have already indicated, Dr Cheong agreed that the plaintiff’s psychological distress was related to a number of factors. Further, according to Dr Cheong her physical injuries were such that she could not work and she required domestic assistance for doing her housework because of the severity of her back or shoulder injuries.
The plaintiff bears the onus of establishing her loss. That necessarily requires her to prove that as a result of the conduct of Mr Croft she has suffered injury (in the nature of a psychological injury as well as the physical injuries arising at the time). Unfortunately for her, she is left with very little supportive medical evidence, that is medical opinion, which relates any ongoing psychological problems to the abuse.
The most supportive evidence comes from Dr Jungfer, who obtained a history which does not match her evidence in these proceedings. It is difficult to accept her diagnosis and opinion on that basis.
For the reasons set out, the plaintiff has not established that she has been unable to work at any time since 1979 as a consequence of the abuse by Mr Croft.
I repeat that she has maintained since 2008 that she has been unfit for various reasons (depending on the claim she was pursuing at any particular time). For the purposes of this claim she says she has been unfit for work because of the abuse of Mr Croft. I am unable to accept that, even the GP that she has been seeing for 5 years says that her physical injuries she has suffered are such that she could not work.
Similarly, she has not established that she will be unable to work in the future because of any psychological condition from which she may be suffering caused by the sexual abuse said to have occurred in 1979.
Of course, if the plaintiff was abused by Mr Croft she would be entitled to general damages. As the conduct was intentional, the restrictions on damages in the CLA would not apply.
On the alternative scenario, that is that she did suffer the abuse, the trauma at the time must have been significant and on her own case, at least since consulting CLAN, the abuse has been at the forefront of her mind.
It does not seem necessary to delve further into legal questions relating to causation and multifactorial trauma. I would have awarded the plaintiff the sum of $250,000 on account of general damages. She would be entitled to interest on that figure. I would assess past general damages in the sum of $150,000 and future in the sum of $100,000.
I would award aggravated damages of $50,000. She is not entitled to exemplary damages. Mr Croft is dead.
Other than that, she has not established any loss arising from the abuse. She sees Dr Cheong for a number of reasons and it is paid on Medicare.
For all the reasons I have set out, the plaintiff is not entitled to succeed. The orders I make are:

Judgment for the first defendant.

Judgment for the second defendant.

Judgment for the third defendant.

The plaintiff is to pay the defendants’ costs.

All cross-claims are dismissed.

No order as to costs on the cross-claims.

Should any party seek a variation of the costs orders I grant liberty to apply on 3 days notice.

Amendments

28 November 2024 - amended at [339], [343], and [370] to ensure accordance with certified judgment.

Decision last updated: 28 November 2024

Medium Neutral Citation:	MTH v State of New South Wales [2024] NSWSC 1517
Hearing dates:	22, 23, 24, 25, 26, 29, 31 July 2024 1, 2 August 2024 5 September 2024
Date of orders:	28 November 2024
Decision date:	28 November 2024
Jurisdiction:	Common Law
Before:	Cavanagh J
Decision:	(1) Judgment for the first defendant. (2) Judgment for the second defendant. (3) Judgment for the third defendant. (4) The plaintiff is to pay the defendants’ costs. (5) All cross-claims are dismissed. (6) No order as to costs on the cross-claims. (7) Should any party seek a variation of the costs orders I grant liberty to apply on 3 days notice.
Catchwords:	TORTS – Trespass to the person – assault and battery – sexual assault – where plaintiff alleges she was physically and sexually abused by one of her foster carers whilst a ward of the State CIVIL PROCEDURE – Abuse of process – where the alleged perpetrator of the abuse had been convicted of the conduct alleged by the plaintiff at a criminal trial – whether allowing the estate of the alleged perpetrator to deny that the abuse occurred would give rise to an abuse of process NEGLIGENCE – Duty of care – where the plaintiff alleges the State breached its duty of care to her by failing to take steps to have her adopted in a timely manner and failing to exercise reasonable care for her health and well-being – whether the State’s duty of care to a ward of the State is non-delegable – whether the State is vicariously liable for the conduct of the plaintiff’s former foster carers
Legislation Cited:	Civil Evidence Act 1968 (UK), s 11 Civil Liability Act 2002 (NSW), ss 5B, 43A Crimes Act 1900 (NSW), ss 63, 78 Evidence Act 1995 (NSW), ss 91, 97
Cases Cited:	A v State of New South Wales (2007) 230 CLR 500 AB v Curry & Anor [2015] NSWSC 1063 Arthur JS Hall & Co (a firm) v Simons [2002] 1 AC 615 Batistatos v Roads & Traffic Authority of New South Wales (2006) 226 CLR 256 Bird v DP (a pseudonym) [2024] HCA 41 Briginshaw v Briginshaw (1938) 60 CLR 336 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Croft v R [2021] NSWCCA 146 CXX v DXX (2012) EWHC 1535 QB Fox v Percy (2003) 214 CLR 118 Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Giannarelli v Wraith (1988) 165 CLR 543, GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 Harper v R [2022] NSWCCA 211 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Johnson v Gore Wood & Co [2002] 2 AC 1 Massalski v The Owners SP 90255 & Ors [2023] NSWSC 23 Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21 PP v DD [2021] NSWSC 1157 Reichel v McGrath (1889) 14 App Cas 665 Rogers v the Queen (1994) 181 CLR 251 Soare v Ashley [1955] VLR 438 UBS AG v Tyne (2018) 265 CLR 77 Warner v Hung (No 2) (2011) 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315 Willmot v Queensland [2024] HCA 42
Texts Cited:	Hon Justice Peter McClellan, “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 Australian Law Journal 655
Category:	Principal judgment
Parties:	MTH (Plaintiff) State of New South Wales (First Defendant) Estate of the late Geoffrey Croft (Second Defendant) Sandra Croft (Third Defendant)
Representation:	Counsel: C P O’Neill with C Robertson (First Defendant) K Andrews (Second Defendant) P Tierney (Third Defendant) Solicitors: Makinson d'Apice Lawyers (First Defendant) Keypoint Law (Second Defendant) Moin Morris Schaefer Lawyers (Third Defendant)
File Number(s):	2020/00113788
Publication restriction:	Statutory non-publication orders pursuant to s 578A Crimes Act 1900 (NSW) and s 15A Children (Criminal Proceedings) Act 1987 (NSW)

Category of damages	Amount
General damages	$500,000
Interest on general damages	$322,000
Past economic loss	$2,947,806.24
Future economic loss	$675,305.51
Treatment expenses	$366,090.25
Adjusted aggravated and exemplary damages (First defendant)	$280,000
Adjusted aggravated and exemplary damages (Second defendant)	$220,000
Adjusted additional award of pain and suffering (Third defendant)	$60,000
Costs from third defendant (Permanent stay)	$77,000
Adjusted rent payback	$112,400
Super payback	$65,000
Adjusted self-represent allowance	$22,000 (110 hours at $200 per hour)
Adjusted travel and accommodation for hearing	$3,500
Payback for Victims Services	$40,000
Disbursement (Private Investigator Fee) (Third defendant)	$412