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

[2025] NSWCA 72

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72

Hearing dates:

27 February 2025

Decision date:

15 April 2025

Before:

Bell CJ at [1];
Leeming JA at [18];
Ball JA at [253]

Decision:

1. Appeal allowed.

2. Set aside the judgment entered on 20 September 2024, and the costs order made on 14 November 2024, and in lieu thereof, order that the proceedings be dismissed.

3. In relation to any further orders sought, including costs at first instance and in this Court and the continuation of the orders made on 1 October 2024 under the Court Suppression and Non-publication Orders Act, direct the parties and BB to file and serve within 21 days of today any agreed short minutes of order, or alternatively the orders for which each party seeks, any supporting materials, and submissions not exceeding four pages, and direct the other party to file and serve any supporting materials and short submissions in response not exceeding three pages within seven days thereafter, with a view to any dispute about further orders being resolved on the papers.

4. Direct the solicitors for the plaintiff to advise BB of the paragraphs of these reasons concerning the non-publication orders and his entitlement to be heard as to their continuation, and the effect of setting them aside so far as concerns him, bearing in mind that the reasons will in any event continue to refer to him as BB.

Catchwords:

NEGLIGENCE – historical sexual assault – whether error in process of making findings of primary fact – whether removal of limitation period alters obligation of plaintiff to establish elements of cause of action – whether primary judge sufficiently paid regard to inconsistencies in plaintiff’s account

NEGLIGENCE – claim brought against “Diocese” – juristic nature of defendant – significance of defendant being proper defendant under Part 1B of Civil Liability Act 2002 (NSW) – whether defendant owed duty of care to plaintiff in 1969 – significance of litigation proceeding on basis that alleged abuser was a parish priest rather than an assistant priest – obligation to establish foreseeability of harm by assistant priest by evidence – no duty of care owed

NEGLIGENCE – non-delegable duties – whether appellant could owe non-delegable duty of care for intentional criminal act of assistant priest

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Civil Liability Act 2002 (NSW), ss 3B, 5D, 5E, 5Q, 6F, 6K, 6M, 6N, 6O, 18, Pt 1B, Pt 2, Sch 1

Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW)

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 8, 12

Evidence Act 1995 (NSW), ss 140, 153

Federal Court of Australia Act 1976 (Cth), s 50

Interpretation Act 1987 (NSW), s 33

Limitation Act 1969 (NSW), s 6A

Roman Catholic Church Trust Property Act 1936 (NSW), ss 3, 4, 8

Roman Catholic Diocese of Lismore Church Lands Act 1908 (NSW)

Statute Law (Miscellaneous Provisions) Act (No 2) 1995 (NSW), s 5A, Sch 1

Supreme Court Act 1970 (NSW), s 75A

Uniform Civil Procedure Rules 2005 (NSW), rr 7.4, 51.53

Workers’ Compensation Act 1926 (NSW), s 65

Cases Cited:

A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Ltd v A Lawyer (a pseudonym) [2020] NSWSC 1713

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

AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (No 2) [2024] NSWSC 1233

AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (No 3) [2024] NSWSC 1444

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

Aidzan Pty Ltd (in liq) v K. & A. Laird (N.S.W.) Pty Ltd (in liq) [2024] NSWCA 185

Anderson v Canaccord Genuity Financial Ltd (2023) 113 NSWLR 151; [2023] NSWCA 294

Australian Communist Party v Commonwealth (1951) 83 CLR 1; [1951] HCA 5

Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29

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

Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349

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

Caltex Refineries (Qld) Pty Limited v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258

CCIG Investments Pty Ltd v Schokman (2023) 278 CLR 165; [2023] HCA 21

CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313

Commissioner of Taxation of the Commonwealth of Australia v 4 Doonan Street Collinsville Pty Ltd (in liq) [2016] NSWCA 69; 332 ALR 349

Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5

Commonwealth Financial Planning Ltd v Couper [2013] NSWCA 444

Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40

DP v Bird [2021] VSC 850

DRJ v Commissioner of Victims Rights [2020] NSWCA 136

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48

Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2021] NSWSC 1204

GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857

Ha v New South Wales (1997) 189 CLR 465; [1997] HCA 34

Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 7) [2025] NSWSC 128

Hodgson v R [2022] NSWCCA 72

Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21

In re Spectrum Plus Ltd (in liq) [2005] 2 AC 680; [2005] UKHL 41

Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Lifestyle Equities CV & Anor v Amazon UK Services Ltd [2024] UKSC 8; [2024] 3 All ER 93

LL UP Pty Ltd v Kegland Distribution Pty Ltd [2024] VSC 651

Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60

MA v Director of Public Prosecutions (NSW); AD v Director of Public Prosecutions (NSW) [2025] NSWCCA 54

Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256; [2010] 1 WLR 1441

Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; 98 ALJR 956

Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500; [1995] UKPC 5

Miller v Miller (2011) 242 CLR 446; [2011] HCA 9

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61

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

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Police Member 1 (a pseudonym) v Mokbel [2025] VSCA 34

Prouten v Chapman [2021] NSWCA 207

RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43; (2024) 98 ALJR 1453

Samsoondar v Capital Insurance Company Ltd [2020] UKPC 33; [2021] 2 All ER 1105

South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8

State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47

State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4

Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1

Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59

The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210

Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117

Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407

Wong v National Australia Bank Ltd [2022] FCAFC 155; 318 IR 148

Woodland v Swimming Teachers Association [2014] AC 537; [2013] UKSC 66

Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277

Texts Cited:

Canon Law Society of Great Britain and Ireland, The Code of Canon Law in English Translation (1983, Collins)

T Bouscaren et al, Canon Law: A Text and Commentary (4th ed, 1963, The Bruce Publishing Company)

P Giliker, Vicarious Liability in Tort (Cambridge University Press, 2010)

F Hargrave and C Butler (eds) The First Part of Coke’s Institutes of the Laws of England (17th ed, 1817, W Clarke) vol 2

H Hazeltine (ed), Maitland: Selected Essays (Books for Libraries Press 1936)

C G Hebermann et al (eds) The Catholic Encyclopedia (1908, Robert Appleton Co) vol 4

J Munday, Ecclesiastical Property in Australia and New Zealand (Catholic University of America Press, 2014, PhD thesis originally submitted to the Catholic University of America, 1957)

J Power, “Corporate and Canonical Governance: Understanding Church Property” (2019) 21(2) University of Notre Dame Australia Law Review 1

C Sappideen et al, Fleming’s Law of Torts (11th ed, 2024, Thomson Reuters)

G Williams, “Liability for Independent Contractors” [1956] Cambridge Law Journal 180

Category:

Principal judgment

Parties:

Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (Appellant)
AA (Respondent)

Representation:

Counsel:
J Sheller SC with C Robertson (Appellant)
S Prince SC with P Tierney (Respondent)

Solicitors:
Makinson d’Apice Lawyers (Appellant)
Koffels Solicitors & Barristers (Respondent)

File Number(s):

2024/406824

Publication restriction:

See [277]

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2024] NSWSC 1183

Date of Decision:

20 September 2024

Before:

Schmidt AJ

File Number(s):

2024/100043

HEADNOTE

[This headnote is not to be read as part of the judgment]

The plaintiff (the respondent to this appeal) brought proceedings against the appellant for sexual assaults alleged to have been perpetrated on him in 1968 by Father Ronald Pickin, who was then an assistant priest in Wallsend, NSW, claiming that the appellant was liable in negligence, vicariously liable and liable for breach of a non-delegable duty. The assaults were alleged to have occurred when the plaintiff and a friend, Mr Perry, were invited by Fr Pickin into the presbytery of the local church on Friday nights to consume alcohol, smoke cigarettes and play on a gambling machine in the bedroom when they were teenagers. The plaintiff said there was no one else in the presbytery. The plaintiff alleged that Mr Perry was sent out to buy cigarettes during which time Fr Pickin committed penile-oral intercourse upon him, when the plaintiff was “paralytic drunk”. Fr Pickin, the parish priest and the Bishop all died years before the litigation commenced. Mr Perry was called in the defence case. He agreed that he had visited the presbytery on Friday evenings with the plaintiff, where Fr Pickin gave them alcohol and perhaps cigarettes, said that other youths were present, denied ever being sent out to buy cigarettes and denied having ever seen the plaintiff “paralytic drunk” or assaulted.

At trial, the primary judge accepted that the abuse occurred on the basis that the plaintiff’s account was “vivid” and was consistent with tendency evidence that Fr Pickin had touched other teenage male students’ genitals some years earlier and some years later. The primary judge found that Mr Perry was not sent out to buy cigarettes, and that there were other boys present, but that the assaults occurred while Mr Perry and the other boys were in an adjacent room.

The primary judge found that the appellant breached a duty of care owed by it to the plaintiff, and also held it vicariously liable for the assaults. Her Honour did not determine the claim that there was a non-delegable duty.

On appeal, it was accepted that judgment based on vicarious liability could not stand after the decision in Bird v DP [2024] HCA 41. The appellant submitted that the primary judge erred in finding that the sexual assaults occurred and that the appellant owed the plaintiff a duty of care which had been breached. By a notice of contention, the plaintiff sought to uphold the judgment based on a non-delegable duty.

The Court (Leeming JA, Bell CJ and Ball JA agreeing) held, allowing the appeal:

Per Leeming JA, Bell CJ agreeing:

1. The fact-finding process miscarried. The primary judge did not sufficiently address clear inconsistencies in the plaintiff’s account with the findings her Honour made, did not address the possibility that the plaintiff’s “vivid” recollection was a sincerely held but erroneous belief, and appeared to have relied on the removal of the limitation period to alter the process of evaluating the evidence: at [131]-[152] (Leeming JA), [16] (Bell CJ).

Wong v National Australia Bank Ltd [2022] FCAFC 155; 318 IR 148; Prouten v Chapman [2021] NSWCA 207; The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210; Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), considered.

Per Ball JA, contra:

2. The inconsistencies in the plaintiff’s evidence are explicable by the fact that the events occurred over 50 years ago. They do not shed significant light on whether the plaintiff was also mistaken about the abuse itself. The uncontested corroborative facts established that Fr Pickin had an interest in boys, that given the opportunity Fr Pickin would sexually abuse them and that he sought to create that opportunity by inviting the plaintiff and Mr Perry to the presbytery and supplying them with alcohol and cigarettes. The fact of the abuse explains why the plaintiff stopped going to the presbytery and had nothing further to do with Fr Pickin: at [253]-[271].

Per Leeming JA, Bell CJ and Ball JA agreeing:

3. No duty of care was owed to the plaintiff in 1969. The primary judge’s reference to the “awareness which Bishops and other senior members of the Church then had about the risks which its priests could pose to children” in 1969 was not supported by the evidence admitted at trial. Knowledge of each and every priest is not taken to be the knowledge of the appellant. The fact that Parliament has already chosen to impose a duty of care under Part 1B of the Civil Liability Act 2002 (NSW), but only prospectively, is a powerful consideration against a retrospective reformulation of judge-made law to impose a novel duty of care on the appellant: at [12]-[13] (Bell CJ); [196]-[197] and [228]-[241] (Leeming JA); [253] (Ball JA).

Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256; [2010] 1 WLR 1441, considered. South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8, applied.

4. There is no non-delegable duty to ensure that a delegate does not commit an intentional criminal act: at [17] (Bell CJ); [156]-[168] (Leeming JA); [253] (Ball JA).

Bird v DP [2024] HCA 41; 419 ALR 552 at [38]-[43]; New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4, applied.

Consideration of:

5. The consequences of the removal of statutory limitation periods in establishing duties of care: at [1]-[13] (Bell CJ).

6. The legal personality of the appellant and the need to ensure clarity when referring to “the Diocese” in pleadings and its consequences for the formulation of a duty of care: at [171]-[177] (Leeming JA).

JUDGMENT

1. BELL CJ: The amendment of the Limitation Act 1969 (NSW) and cognate statutes in other states and territories to remove any limitation period for common law claims of historic sexual assault was a response to the Royal Commission into Institutional Responses to Child Sexual Abuse.

2. A body of case law relating to stays of proceedings, litigated through to the High Court, has grappled with some of the forensic challenges which can confront a defendant or defendants in such cases as a result of litigation in relation to events many decades ago: see, for example, GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (GLJ); Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407 (Willmot); RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43; (2024) 98 ALJR 1453; see also Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102.

3. Forensic challenges also confront plaintiffs in such cases. The frailties of the human memory, the complexity of which is increasingly recognised and remarked upon by courts on the basis of scientific studies, are generally more pronounced with the passage of time: see, in this regard, Willmot at [30] and the cases there cited. The degree of assurance that Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw) and s 140(2) of the Evidence Act 1995 (NSW) (Evidence Act) (and its State and Commonwealth equivalents) requires in cases involving serious allegations of what would amount to criminal or gravely immoral conduct is not qualified or modified in cases of historic sexual assault by the abolition of the limitation period for common law claims based upon such conduct: see generally GLJ at [56]-[60]. As a matter of practicality, Briginshaw and s 140(2) of the Evidence Act present a forensic challenge to those who seek to establish serious allegations, decades after the event.

4. In the present case, Justices Leeming and Ball have reached different conclusions as to whether the challenge to the factual findings by the primary judge were made out. I shall return to that difference.

5. What is clear, however, is that justified community outrage at established or admitted cases of historic child sexual abuse does not assist in the case by case assessment of claims of historic sexual abuse. Great care must be taken in individual cases to exclude generalised views which may have been formed (outside the evidence in the case) about particular institutions and their degree of knowledge of serious misconduct. Great care must also be taken to avoid the temptation to analyse both factual and legal issues with the benefit of hindsight.

6. Another particular difficulty confronting plaintiffs in cases involving claims of historic sexual assault is where the claim is founded on breach of a duty of care said to be owed not by the perpetrator of the sexual assault but by an organisation of which he was not an employee (claims for vicarious liability not being available in such cases after the High Court’s decision in Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349 (Bird)).

7. Just as the evaluative inquiry involved in applications for a stay of proceedings in such cases has been described as “unique and highly fact-sensitive” (Willmot at [17]), so too may be the question of the existence of a duty of care and the content of any such duty, if found to exist. As the High Court observed in Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 at [50]:

“Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle.” (footnotes omitted)

8. The importance of pleading and proving the factual basis for an alleged duty of care was emphasised in Bird in rejecting the respondent’s notice of contention: see at [42]. Justice Leeming’s reasons in the present case highlight the need for close attention to detail in the formulation and proof of a duty of care and its content. That will require, amongst other matters, a precise understanding of the defendant, its juridical nature (if it is not an individual or corporation) and its position, powers, control and state of knowledge as at the time of the alleged breach(es) of duty, including as to the foreseeability of relevant risks. For example, one obvious question necessary to be addressed and answered affirmatively in the present case was whether the risk of harm of the kind alleged to have been suffered by the plaintiff was foreseeable by the defendant in the sense that it was not insignificant in 1969 when the sexual assaults upon him were alleged to have occurred. Many superior court judges were not even born at that time. Historical evidence will invariably be required, absent formal admissions. It may be elusive.

8. As a general proposition, as Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 illustrates, questions of knowledge of risk are an “obvious example” of the kind of question that may take on considerable importance in determining whether a defendant owed the plaintiff a duty of care: see at [64]. Ascertaining the answer to such a question may be acutely difficult in cases where the relevant time period by reference to which the question is to be answered was decades beforehand. That is not to say that an answer may not be ascertained but it is to identify what may be a real forensic difficulty for a plaintiff in such a case. It was a critical difficulty in the present case.

9. Gleeson CJ’s judgment in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 (Modbury) furnishes another example of the close and detailed analysis often required to be undertaken in order to be satisfied that a relevant duty of care exists. That case involved a question of whether a duty of care was owed to an individual criminally assaulted by third parties on land occupied by the defendant, his Honour noting (at [26]) “the general rule that there is no duty to prevent a third party from harming another”. In the present case, as in Modbury, the duty of care asserted by the plaintiff was in part based upon the defendant’s ownership of the presbytery where the assaults were alleged to have occurred. One important matter emphasised by the Chief Justice in Modbury was that, in the determination of whether or not a duty of care was owed, question-begging by reference to the particular facts of the case was to be avoided: see at [35].

10. I agree with Leeming JA that it may readily be accepted that, even in 1969, a Bishop with power to appoint and remove a priest to a parish, who knew that a particular priest had a history of committing sexual assaults upon children, would have been under a duty to take reasonable care to prevent those assaults recurring. But that was not this case, or at any rate, the evidence fell far short of establishing that it was.

11. I also agree with Leeming JA’s assessment that, in finding the existence of a duty of care, the primary judge’s reasoning was, with respect, compromised by the incorrect basis upon which the parties had described the status of Fr Pickin and her Honour’s incorrect statement that he lived and was allowed to live alone. I also agree with what Leeming JA has said (i) as to the lack of any cogent evidence as to the state of knowledge of the Bishop at the relevant time as to the risks of wrongdoing by priests generally, let alone any knowledge in respect of Fr Pickin, and (ii) his Honour’s observations as to the exiguous and speculative nature of Fr Dillon’s evidence relied upon by the primary judge in this regard: see at [208]-[210] below.

12. For the reasons given by Leeming JA and with which Ball JA also relevantly agrees, this appeal should be upheld on the basis that no duty of care was established.

13. This makes it strictly unnecessary to address the question upon which Leeming JA and Ball JA have diverged, namely whether the primary judge erred in finding that the sexual assaults were established on the balance of probabilities. Given the significance of the case and the detail and care with which it was argued, it is appropriate for me to express my position briefly.

14. Leeming JA has persuasively highlighted a number of significant difficulties with the primary judge’s reasoning leading to her Honour’s acceptance, on the balance of probabilities, that the sexual assaults occurred. These difficulties were in addition to the difficulties with the plaintiff’s evidence which the primary judge herself acknowledged in her reasons for judgment. While accepting that the unchallenged (and indeed corroborated) evidence of both the plaintiff and Mr Perry as to the fact of visits to the presbytery and the availability of alcohol there unquestionably provided the opportunity for the sexual assaults to occur, a point strongly emphasised by Ball JA in his reasons, the existence of that opportunity did not mean that the sexual assaults did occur nor did it provide a sufficient basis to conclude on the balance of probabilities that they did.

15. I am inclined to agree with Leeming JA’s careful and detailed analysis in relation to the challenge to the primary judge’s findings of sexual assault although it is important to emphasise that the success of that challenge does not mean that the assaults did not occur but simply that there were material errors in the fact-finding process which vitiated the primary judge’s findings in this regard. Because, however, of the finding of an absence of any duty of care, it was neither necessary for his Honour (or me) to resolve the factual questions in a rehearing under s 75A of the Supreme Court Act 1970 (NSW) nor to remit the matter for a retrial.

16. I agree with the orders proposed by Leeming JA.

17. LEEMING JA: This appeal is brought as of right from a judgment of $636,480 entered against the appellant following a final hearing in the Common Law Division of this Court: AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2024] NSWSC 1183. The appellant challenges findings of sexual assault 56 years ago, by a priest who died a decade ago, upon the plaintiff (now the respondent) “AA” who was then aged 13. I shall follow the parties’ usage and refer to him as “the plaintiff”. The plaintiff first complained about the priest in 2023. Proceedings were commenced in 2024 and were expedited in light of his poor health (he suffered a probable stroke in 2013, and was later diagnosed with motor neurone disease). The appellant was found liable on two bases: it was vicariously liable for the priest’s intentional wrongdoing, and it was directly liable in negligence for breach of a duty to take reasonable care owed directly to the plaintiff. The judgment amount reflects damages on the former basis; damages for negligence are substantially less by reason of the operation of the Civil Liability Act 2002 (NSW), notably because of the absence of interest on damages for non-economic loss suffered some 55 years ago (s 18(1)(a)).

18. The plaintiff accepts that the judgment insofar as it is based on vicarious liability cannot stand in light of Bird v DP [2024] HCA 41; 98 ALJR 1349, which was delivered some eight weeks later. The primary judge was aware of the fact that the High Court had reserved in an appeal in which the reasoning of the Victorian Court of Appeal upon which the plaintiff relied was challenged, but acceded to his request for an early determination. The plaintiff seeks to uphold the judgment below by reason of a non-delegable duty rendering the appellant liable for the priest’s assaults. In relation to the alternative cause of action in negligence, the appellant challenges, and the plaintiff seeks to maintain, the findings of the primary judge in relation to duty, breach, causation and damages. But most of the appeal was occupied by the appellant’s challenges to the primary findings of fact.

19. Enough has been said to make it clear that this appeal and notice of contention give rise to many issues, some of which are novel questions of principle. They were efficiently presented by both sides, enabling the hearing to be completed in a single day.

Overview

Parties

21. In 1969 at the time of the alleged assaults, the appellant was known as “the Trustees of the Roman Catholic Church for the Diocese of Maitland”. Despite the plurality of its name, the appellant was and is a body corporate, constituted as such on 1 August 1936 by s 4(2)(f) of the Roman Catholic Church Trust Property Act 1936 (NSW). Section 8 of that Act vested in it all Church trust property situated within the Diocese of Maitland. Previously title was vested jointly in the Bishop and the Diocesan Consultors: see eg recitals to Roman Catholic Diocese of Lismore Church Lands Act 1908 (NSW) and James Munday, Ecclesiastical Property in Australia and New Zealand (Catholic University of America Press, 2014, being a thesis originally submitted in 1957), pp 23, 33-34, which falls within the class of “serious studies and inquiries and historical narratives” to which the Court may have regard: Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 196; [1951] HCA 5.

22. The appellant’s name changed on 21 December 1995 with the insertion of s 5A into the statute (by Schedule 1 of the Statute Law (Miscellaneous Provisions) Act (No 2) 1995 (NSW)). Subsections (1), (3), (4) and (5) of s 5A of that Act have at all times provided:

(1) If the name of a diocese is changed, the Bishop of the diocese concerned is, by notification signed by the Bishop and published in the Gazette, to announce the change of name of the diocese and of the body corporate consisting of the trustees of Church trust property for the diocese.

…

(3) The body corporate of the diocese concerned continues in existence under its new name so that its identity is not affected.

(4) A reference in any Act or instrument, or in any other document, to the diocese (or body corporate) under its former name is to be read (except in relation to matters that occurred before the change took place) as a reference to the diocese (or body corporate) under its new name.

(5) Subsections (3) and (4) apply to the change of name of the Diocese of Maitland to the Diocese of Maitland-Newcastle (and the corresponding change of name of the body corporate of that Diocese) as if the change of name had been announced in accordance with subsection (1).

23. Subsection 5A(5) may reflect a change to the Diocese which was effective as a matter of canon law, but if that were so, there was no evidence of it. However, this Court may (pursuant to s 153 of the Evidence Act 1995 (NSW)) have regard to p 156 of the Government Gazette dated 12 Jan 1996 which contains a notice referring to the change of name to “Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle”. By either or both of that notification and s 5A, the name change was effective as a matter of civil law, and the appellant thereafter continued in existence under its new name.

24. Section 3 of the Act provides that “[t]here shall be for each diocese trustees of Church trust property, who shall be the Bishop of the diocese and the Diocesan Consultors of the diocese”. Extracts from the “The Official Yearbook of the Catholic Church of Australia, New Zealand and Oceania” for 1968-1969 and 1969-1970 were in evidence, which showed that the Diocesan Consultors in both years included the Right Rev Monsignor Daniel Forde PP, VG, PA, the Right Rev Mgr Vincent Casey PP, VG and the Very Rev Philip Ryan PP, BA. In the earlier year, the Very Rev G P Youll PP and the Very Rev M J Fitzgerald PP were also Consultors. In the latter year, Rev Patrick Cotter PP, VF, Rev Gerard Flatley PP, VF, Rev Francis Coffey PP, VF and Very Rev Paul Simms DCL, Adm and Rev Terence Sylvester were also Consultors. The men’s titles show that all Consultors in 1968-1969, and at least the majority in 1969-1970, were relatively senior priests. The significance of this is that neither Fr James Doran nor Fr Michael O’Dwyer was a Consultor; they were merely parish priests under whom Fr Ronald Pickin worked as an assistant priest in the parishes of Adamstown and Wallsend between 1965 and 1973.

25. The plaintiff was born in November 1955 and attended Plattsburg Primary School until the end of 1967 and then Wallsend High School in 1968, 1969, 1970 and 1971, in what was then described as “First Form”, “Second Form”, “Third Form” and “Fourth Form” but to which I shall refer anachronistically as Years 7-10.

26. A half-yearly report from the primary school, dated December 1966, placed the plaintiff 5^th in his class of 39 and 6^th in his grade of 78 with the comment “A very pleasing report – good results in all subjects”. His high school academic performance failed to fulfil the promise in the primary school report. He left with a School Certificate in 1971 with passes in Mathematics, Geography, Technical Drawing and Metalwork, a credit in Science and a fail in English.

27. The plaintiff claimed that the sexual abuse perpetrated upon him led to truancy, alcohol, illicit drugs, his leaving school at the end of Year 10 and a lost opportunity of a different career. A number of difficulties lay in the way of acceptance of that case, because of the unfortunate events which had occurred in his life. They are relevant to the last ground of appeal, and may be summarised as follows.

28. The plaintiff’s mother died from melanoma when he was 7 or 8. The plaintiff told the psychiatrists who gave evidence at this trial that his father drank at the pub every night and came home drunk, whereupon the plaintiff was exposed to domestic violence between his father and his stepmother, and was in fear of his father. Two paternal uncles died from suicide. It was common ground between the psychiatrists called by each side at trial that all of those aspects of his history contributed to his psychiatric condition.

29. The plaintiff had also himself been exposed to licit and illicit drugs from an early age. By his own account, his father provided wine to him each evening from the age of 5 and he drank alcohol heavily while at high school. He told a consultant psychiatrist retained by his solicitors that he was consuming up to 150g of alcohol each day, taking his first drink at 10am, and that he took LSD and cannabis from the age of 15. He served a 12 month prison sentence for possession of heroin in 1978, suffered a serious motor vehicle accident shortly after his release and was unable to work for two years and sustained a back injury in 1990 which when treated revealed a large empyema. The plaintiff and his wife had operated a soccer shop for some five years in the mid 1990s, without success; ultimately he lost his house and was declared bankrupt. Then in around 1999 the plaintiff suffered a serious workplace injury and at least from July 1996 and for many years thereafter received a disability pension. He continued to drink alcohol until his wife died, reporting that “his alcohol use was not a negative influence on his marriage as his late wife … also drank”. The psychiatrist recorded this history of his drinking as a young man:

He has been drinking alcohol daily, mainly beer and then vodka. He drank at a pub and then at a nightclub where he would go with some people from the pub on weekends. He would have 10 to 12 schooners of beer and then half a dozen vodkas on top, on weekends. During the week he would go to a pub, have half a dozen schooners and go home.

He said that alcohol did not affect his relationships, and Leslie was drinking as well. She would have six to eight wines at night. She would drink from a cask of wine, half a dozen glasses every night. He stopped drinking when he was 54 years old.

30. The plaintiff’s wife was diagnosed with lung cancer in 2005 and he cared for her until her death in 2011.

31. At the time of the trial, the plaintiff did not have a good relationship with his son, and he had broken up with his partner in November 2023, after she had taken out two apprehended violence orders against him.

32. It is difficult not to feel sympathy for a man whose life has contained so many misfortunes: familial, emotional, medical and financial. It remains the case that in order to obtain damages for the assaults he claimed were inflicted upon him in 1969, the onus rests on the plaintiff to establish that they caused loss. Sections 5D and 5E of the Civil Liability Act 2002 (NSW), which require the plaintiff to establish factual causation and scope of liability and impose upon him the onus of proof of any fact relevant to causation, apply retrospectively: Civil Liability Act, Schedule 1, cl 6(1).

33. The plaintiff first made complaint of the abuse in around 2023. Thereafter the litigation has proceeded with a high degree of expedition. Most of the plaintiff’s evidence was taken on commission and recorded on video on 12 June 2024, prior to a trial over parts of four days in August 2024, at which the plaintiff was recalled and subjected to further cross-examination. The primary judge delivered judgment promptly thereafter, on 20 September 2024, and made orders on 18 October 2024. An appeal was lodged on 4 November 2024 and was heard in this Court on 27 February 2025.

34. Fr Ronald Pickin, whom the plaintiff claims sexually assaulted him more than half a century ago, died in 2015. The Bishop who appointed Fr Pickin as assistant priest to the Wallsend Parish within what was then the Diocese of Maitland, the Most Reverend Dr John Toohey, died in 1975. The parish priest whom Fr Pickin was assisting at the time, Fr O’Dwyer, died more than 40 years ago. However, the plaintiff said that the abuse occurred when he and his best friend at the time, Alan Perry, visited Fr Pickin at the presbytery. Mr Perry is alive, and was called in the defence case. He confirmed the visits, confirmed that Fr Pickin had given the boys beer and cigarettes, but denied witnessing any abuse, saying that the two boys arrived and left the presbytery together.

Non-publication order

35. Despite the hearing taking place in open court, the primary judge invited submissions for the making of orders under the Court Suppression and Non-publication Orders Act 2010 (NSW): AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (No 2) [2024] NSWSC 1233. According to the transcript of 20 September 2024, following an email from her Honour’s chambers, counsel appeared on the morning the matter was listed for judgment, and her Honour confirmed that she had “raise[d] with the parties this morning something which it seemed to me might have been overlooked”, namely, orders preventing disclosure of the identity of the plaintiff and the tendency witnesses. At that stage counsel for the plaintiff had no instructions to seek such an order, but an email sent to the primary judge (with the consent of the other side) later that morning advised that the parties’ joint proposal was for an interim order for ten days after judgment was published, followed by a hearing on orders under the Act. The same email advised that counsel had “received instructions that the Plaintiff will seek a pseudonym order”. This Court was told that orders were subsequently made by consent, preventing the publication or disclosure of anything naming or otherwise identifying the plaintiff and a witness BB for a period of 40 years.

36. The orders do not merely prevent “publication” of the names or anything which might identify the plaintiff and BB, although order (1)(e) does just that (s 3 defines “publish” to mean disseminate or provide access to the public or a section of the public by any means, and provides certain examples such as publication in various mass media or on the internet). In addition, order 1(c) provides that:

Their full names and any particulars which might enable AA and BB to be identified is not to be disclosed to any person other than the parties to the proceedings, their legal representatives or the Court, except as may be necessary for the proper conduct of these proceedings.

37. That order goes further than a non-publication order. It is a “suppression order” which applies to communications which do not amount to publications. For example, it prevents BB from telling any member of his family anything which would reveal that he is the witness in this litigation for 40 years.

38. The orders are difficult to reconcile with the statute.

39. First, the reasons for the order contain no consideration of s 12(2) of the Act, which provides that “the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made”. When this was raised in this Court, neither party sought to defend the order’s duration.

40. Secondly and more generally, the trial having been conducted in open court, in the ordinary course it will be inappropriate for any such order to be made, let alone one with a duration of 40 years. At least three considerations point against making any order.

1. The plaintiff chose to commence proceedings in this Court, to go to trial, to have the listing of hearing published each day in his own name, and to give evidence, without any order being sought under the Court Suppression and Non-publication Orders Act. Members of the public, including journalists, were able freely to report what occurred at the trial, no differently from most trials, and whether or not that occurred, there can no longer be any sound claim for confidentiality over anything that was said in open court or tendered without restriction.

2. The trial having taken place without any order being made, it is difficult to see how such an order could be necessary at the time of delivery of judgment to prevent prejudice to the proper administration of justice.

3. An order made after the event may have unfortunate consequences. The effect of such an order may be that it is an offence to repeat information which had formerly been able properly to be reported and discussed (for example, a law firm which had made a note of the case available to clients or on its website would be in breach, as would be a client who subsequently passed on that note to a friend).

41. Thirdly, s 6 of the Act requires the court to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. Insofar as the reasons for judgment of the primary judge might be read as supporting the proposition that the public interest in open justice is satisfied merely by the trial taking place in open court, with orders made thereafter preventing publication of certain evidence after that event at the time judgment is delivered, it should not be thought that that is the law. To the contrary, ordinarily after a trial has taken place in open court there would no longer be any basis for orders under the Act. In Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 at [44], French CJ, Hayne, Kiefel, Bell and Keane JJ said that:

The rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances.

42. Fourthly, only if one of the grounds in s 8 is made out may an order be made. Each of those grounds is framed in terms of an order being “necessary” for some purpose, including in the present case, the administration of justice. That is a relatively stringent criterion. It is not sufficient that the order be reasonable. Still less is it sufficient that the parties agree that it should be made. The Court making an order must be satisfied that it is “necessary”. In DRJ v Commissioner of Victims Rights [2020] NSWCA 136 at [40] this Court endorsed in relation to that test the following passage from Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30]-[31] where the High Court was addressing a cognate provision in the Federal Court of Australia Act 1976 (Cth):

As it appears in s 50, ‘necessary’ is a strong word. Hence the point made by Bowen CJ in Australian Broadcasting Commission v Parish, that the collocation of necessity to prevent prejudice to the administration of justice and necessity to prevent prejudice to the security of the Commonwealth ‘suggests Parliament was not dealing with trivialities’. Further, as indicated earlier in these reasons: (a) s 50 is an example of a provision authorising the Federal Court to make orders for the exercise of its jurisdiction other than in open court as mandated by s 17(1); and (b) ‘the administration of justice’ spoken of in s 50 is that involved in the exercise by the Federal Court of the judicial power of the Commonwealth; this is a more specific discipline than broader notions of the public interest.

It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some ‘balancing exercise’, the order appears to have one or more of those characteristics.

43. Recently, the New South Wales Court of Criminal Appeal and the Victorian Court of Appeal have separately confirmed that while it might appear reasonable to make an order under the Act, that is insufficient to satisfy the statutory test of necessity: Police Member 1 (a pseudonym) v Mokbel [2025] VSCA 34 at [68]; MA v Director of Public Prosecutions (NSW); AD v Director of Public Prosecutions (NSW) [2025] NSWCCA 54 at [36]. The latter decision also endorsed the proposition made in A Lawyer (a pseudonym) v Director of Public Prosecutions NSW; Nationwide News Pty Ltd v A Lawyer (a pseudonym) [2020] NSWSC 1713 at [55] that “[m]ere embarrassment, discomfort, reputational damage or even financial loss are not sufficient (subject to the limited exception in s 8(1)(d) of the Act) to justify a departure from the principle of open justice”.

44. Although the operation of the orders was raised during the hearing, the orders I propose will permit the parties to be heard on whether the order under the Court Suppression and Non-publication Orders Act should be revoked, with the result that this judgment will be amended so as to refer to the plaintiff’s name. However, in the first instance, these reasons will be published using the existing pseudonym “AA”.

45. Separately from the above, the orders were made in part by reason of facts pertaining to a witness, known as “BB”, who is not a party to this appeal. BB’s evidence was also given in open court. Witnesses who are not parties are nonetheless entitled to procedural fairness: see the authorities in State of New South Wales v Hunt (2014) 86 NSWLR 226; [2014] NSWCA 47 at [39]-[40]. This Court should not vary or set aside the orders without first according BB an opportunity to be heard. The directions proposed below will give him that opportunity. Bearing in mind that he was merely a witness, I propose that the order be set aside, but on the basis that even if that occurs, BB will not be identified in these reasons. No aspect of the tendency evidence given by BB makes it necessary to identify him, and his evidence was of conduct by Fr Pickin which was accepted to have occurred and amounted to a serious criminal offence inflicted upon a child. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) does not apply in terms, but the policies underlying that legislation make it appropriate not to identify BB in these reasons when there is no need to do so. On the other hand, revoking the order may have advantages to BB. It will permit BB to tell his family, or a medical practitioner or a psychologist, if he so chooses, now or at some time in the next 40 years; as things presently stand those disclosures would be a breach of the order and therefore a serious offence.

Structure of these reasons

46. The reasons commence with the facts. Grounds 1 and 2 of the appeal challenge the findings of fact made by the primary judge, requiring this Court to conduct the “real review” explained in Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]; contrast the position in England and Wales: Lifestyle Equities CV & Anor v Amazon UK Services Ltd [2024] UKSC 8; [2024] 3 All ER 93 at [48]. If those factual challenges are made out, the appeal must be allowed. Ground 3 concerns an aspect of the way in which the primary judge treated Mr Perry’s evidence, which does not arise if grounds 1 and 2 are made out. Before addressing those grounds, these reasons start with what seems first to have been pointed out during the hearing of the appeal, which is that in 1969 Fr Pickin was not a parish priest, but merely an assistant priest in the parish of Wallsend.

47. These reasons then turn to grounds 1-4 of the notice of contention, which proceeds on the assumption that the factual findings stand, but concedes that the finding of vicarious liability must be set aside following Bird v DP (this was ground 4 of the appeal). Grounds 1-4 of the notice of contention seek nonetheless to uphold the judgment (calculated at general law, rather than as governed by Part 2 of the Civil Liability Act) based on a breach of a non-delegable duty.

48. Ground 5 of the notice of contention and grounds 5 and 6 of the appeal challenge the findings of duty and breach and causation. These grounds presuppose that the challenge to the factual findings has failed and that the judgment based on vicarious liability must be set aside.

49. Finally, ground 7 of the notice of appeal challenges a component of the assessment of damages for negligence. Its premise is that all of the previous challenges have failed.

Contrary to the parties’ common position, Fr Pickin was not a parish priest

50. The distinction between parish priest and assistant priest is basic. The office of parish priest traces to the parson, so-named because he was the legal persona of the church. Coke explained that “in his person the church might sue for and defend her right”: F Hargrave and C Butler (eds) The First Part of Coke’s Institutes of the Laws of England (17^th ed, 1817, W Clarke) vol 2, sect 528. Maitland’s famous essay “The Corporation Sole” deprecated the introduction at a very early stage of treating the parson as a corporation sole: see H Hazeltine (ed), Maitland: Selected Essays (Books for Libraries Press 1936) 73 at 82-83. This was (and is) reflected in the Code of Canon Law. I have relied on T Bouscaren et al, Canon Law: A Text and Commentary (4^th ed, 1963, The Bruce Publishing Company) for the 1917 Code in the form it took in 1969, noting that the corresponding provisions in the 1983 Code have varied little. There could only be a single parish priest in each parish: “In one and the same parish there is to be but one pastor who exercises the care of souls”: §460.2 of the 1917 Code; §526.1 of the 1983 Code is to the same effect. The parish priest was obliged to live in the parish residence, which must be near the church: §465.1 of the 1917 Code; §533.1 of the 1983 Code is to the same effect.

51. As will be seen below, the evidence in this case established that in many suburban parishes in Newcastle and Maitland in 1969, in addition to the parish priest there would be an assistant priest. The office was regulated under §476 of the 1917 code, and §§545-548 of the 1983 code, to much the same effect. The provisions are variously translated “parochial vicar” and “assistant priest” (the latter is found in Canon Law Society of Great Britain and Ireland, The Code of Canon Law in English Translation (1983, Collins)). The contemporaneous documents from the Diocese of Maitland use the term “assistant priest”, and these reasons adopt that usage.

52. A number of high profile decisions based on claims of historical sexual abuse have been based on allegations against assistant priests. Assistant priests were alleged to have committed sexual abuse in Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565; [2007] NSWCA 117 (see at [1]), and in two recent decisions concerning historical sexual abuse decided by the High Court: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 (see at [86] and see [2021] NSWSC 1204 at [2]) and Bird v DP [2024] HCA 41; 98 ALJR 1349 (see at [9] and [11]). The most recent decision in this Court, CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313, also concerned an assistant priest.

53. Some of the alleged breaches of duty squarely focus attention upon the distinction. The sexual assaults were claimed to have occurred in the presbytery, and it was pleaded that the breaches of duty included not “forbidding any priest to have access to a child in his residence”. The trial seems to have been conducted on the basis that Fr Pickin lived alone at the presbytery. But the parish priest was required to live in the presbytery, sharing that accommodation with Fr Pickin.

54. The distinction between parish priest and assistant priest will be important when considering the extent to which some other person or entity is liable for the tortious conduct of the latter. This is a question of fact, not of law. Nonetheless, by way of example, the joint judgment in Bird v DP said at [13] concerning the assistant priest Fr Coffey, that “[t]he Bishop (and by him, the Diocese) exerted no direct control over Coffey’s hours of work, his day-to-day tasks or his manner of carrying them out. Such activities were subject to the supervision and direction of the parish priest, who in turn reported to the Bishop”.

55. The foregoing is not to suggest that assistant priests were not subject to the direction of the Diocesan Bishop. The Bishop unquestionably had power to appoint a priest as assistant to a parish priest, and to remove him. But the immediate supervisor of an assistant priest located in a parish would be the parish priest.

The contemporaneous documents relating to Fr Pickin’s office

56. Unsurprisingly, there were very few contemporaneous documents from 1969 available at trial in 2024. But all of those which were relevant confirmed that Fr Pickin was an assistant priest in the parish of Wallsend. Those documents were as follows.

57. First, an extract of “The Official Yearbook of the Catholic Church of Australia, New Zealand and Oceania 1968-1969” recorded the following:

Adamstown (1925) – St Columba. Rev. Thomas Hayes, P.P.; Rev. Ronald Pickin. Parochial School conducted by Sisters of Mercy. Tel.: 57 1570. Number of pupils, 212. Presbytery, 153 Lockyer Street, Adamstown, 2289. Tel.: 57 1057.

Masses – Adamstown: 6 ¾, 8, 9 ½ & 5 ½ p.m. H’s: 6 ¾, 8, 9 ½, 5 ½ p.m. W’days: 6 ¾.

58. It may readily be seen that the Reverend Thomas Hayes was the parish priest (“P.P.”) at Adamstown, the parish church was the Church of Saint Columba, and Rev Ronald Pickin – whose name was not followed by “P.P.” – was an assistant priest. In that parish, the presbytery was on Lockyer Street. There is no reason to doubt that both the parish priest and the assistant priest lived in that presbytery, both men between them officiating at four services every Sunday and Holy Day.

59. The yearbook identifies (at pp 149-155) some 55 parishes, each with its parish priest (a name followed by “P.P.”), most of which had another priest, in addition to the priests associated with the cathedral, those teaching in various schools, and who were members of other religious orders within the Diocese.

60. Secondly, an extract of the minute book of the meetings of the Diocesan Consultors of Maitland for a meeting that took place on 1 January 1969 was in evidence. The Bishop, the Most Rev Dr J Toohey, presided over a meeting with three Consultors. At that meeting, two appointments of parish priests were made, recorded as follows: “Fr G. Martins (Denman) to be P.P. at Greta” and “Fr H. Coressy (army chaplain) to be P.P. of Denman”. A separate paragraph recorded: “the following appointments among the assistant priests were made: … Fr. R. Pickin Adamstown to Wallsend … Fr F Hinchy New Lambton to Adamstown”.

61. Thirdly, and consistently with the decision recorded in the minutes of the Diocesan Consultors on 1 January 1969, the counterpart entry for Adamstown in the official yearbook for the following year, 1969-1970, states that the Rev Francis Hinchy was now located there, where Rev Thomas Hayes continued as parish priest. Under the entry for Wallsend was the following:

Wallsend (1937) – St. Patrick; Rev. Michael O’Dwyer, P.P.; Rev. Ronald Pickin. Parochial School conducted by the Sisters of Mercy. Tel.: 55 8570. Pupils, 288. Presbytery, Macquarie Street, Wallsend, 2287. Tel.: 55 9575.

Masses – Wallsend: Sun. & H.’s: 6, 7, 8, 9 & 5 ¾ p.m. W’days: 6 ¾.

62. Fourthly, the Diocesan records sheet for Fr Pickin stated that he was born on 31 May 1933, obtained a Leaving Certificate and then attended seminaries at St Columba’s Springwood and St Patrick’s Manly and was ordained on 18 July 1964, arriving in the Diocese on 22 December 1964. The record states the following chronological list of appointments in that Diocese (the following preserves the capitalisation and punctuation of the original document, which bears the hallmarks of being updated from time to time in different hands as Fr Pickin was appointed to different offices):

22^nd Dec. 1964 – 15^th Jan. 1965. Merewether (Temp)

1.2.65 Curacy Adamstown; WALLSEND 15.1.69

Part time army chaplain & curate @ Muswellbrook 23.2.73

PART CHAPLAIN – CURATE SINGLETON 17.8.73

Chaplain Full-time army Jan 1977

P.P. Wingham 8/7/78

Merewether – P.P. 29/1/83

P.P. Beresfield 18/4/90

63. Fifthly, a newly ordained graduate from a seminary would not, in the 1960s, ordinarily be appointed a parish priest. The entries in the Diocesan record sheet demonstrate that Fr Pickin was first appointed a parish priest in Wingham in 1978 some 14 years after being ordained. Fr Dillon, who gave expert evidence for the plaintiff, was an assistant priest for some 15 years after ordination, at three separate parishes, before being appointed parish priest. There is no reason to think that the “curacy” in the document reproduced above is anything other than a different, older, name for what is now normally described as an assistant priest. C G Hebermann et al (eds) The Catholic Encyclopedia (1908, Robert Appleton Co) vol 4 states at p 570:

Literally, one who has the cure (care) or charge of souls, in which sense it is yet used by the Church of England, “All Bishops and Curates”. In France, also, the cognate curé (Spanish, cura) is used to denote the chief priest of a parish. In English-speaking countries, however, the word curate has gradually become the title of those priests who are assistants to the rector, or parish priest, in the general parochial work of the parish or mission to which they are sent by the bishop of the diocese or his delegate. Technically speaking the curate is the one who exercises the cure of souls, and his assistants are vicars and coadjutors; but in this article the word curate is used in its accepted English sense, viz. assistant priest, and corresponds, in a general way, to the vicarius temporalis, auxiliaris presbyter, coadjutor parochi.

64. Sixthly, there is correspondence between Fr Pickin and the Bishop in mid 1978, after Fr Pickin had spent some five years as an army chaplain. The Bishop’s letter of 8 June 1978 to Fr Pickin, then based in Townsville at the Royal Australian Regiment, states:

However, it has occurred to me that when you return here it will be as an Assistant at some parish, not as a Parish Priest. There are approximately nine priests who are senior to you and who will get parishes before you. …

65. Fr Pickin responded by letter of 12 June 1978, stating that:

I’d rather wait until I’m due for a parish before returning to the Diocese.

66. As noted above, the Diocesan record states that Fr Pickin was first appointed a parish priest to the parish of Wickham on 8 July 1978. The documents shed no light on how that event, which according to the letters of 8 and 12 June four weeks earlier seemed so unlikely, came about. However, there are various letters written by Fr Pickin thereafter between October 1978 and 1982, all of which are on the letterhead of the Catholic Presbytery on Farquhar Street, Wingham. Letters from him dated 21 March 1983 and 26 June 1985 are on the letterhead of “St Joseph’s Presbytery, 34 Kenrick St, Merewether”.

67. Seventhly, there is a letter from Fr Pickin to the then Bishop (the Most Rev Leo Clarke DD) dated 3 March 1981. The purpose of the letter was to write of a number of concerns Fr Pickin had about the way the Diocese was being run. It refers to his early years in the Diocese, before he was an army chaplain, and states:

Prior to [the years as an army chaplain] I had to go through the difficulties of making an effort to implement the changes brought about by Vatican II, teach at St Pius X College for which I was untrained and work in two parishes – one with a priest who was mentally ill – in another with a priest who was an alcoholic. In both those appointments I tried to do my work well and handle the situation in a compassionate way. For that I received the thanks of Bishop Toohey and some of the senior clergy who were aware of the situation. I have no regrets and I hope that those parish priests, now both dead, respected me as a friend.

68. There is no reason to doubt that Fr Pickin was referring to his time as an assistant priest, first at Adamstown and then at Wallsend, working with those two parish priests. According to his Diocesan record sheet, he spent eight years at those locations, then some five years as an army chaplain before being appointed a parish priest at Wingham.

69. Eighthly, there is the evidence of Mr Stephen McClung. I shall address the significance of his evidence and the use made of it by the primary judge in more detail later. Put shortly, his statement referred in terms to Fr Pickin becoming the assistant priest at St Columba’s (Adamstown) in 1965, following which he said that Fr Pickin repeatedly placed his hand on the outside of his trousers and felt his genitals while he was preparing for services or conducting a dress rehearsal. He said that in 1966, he went to speak to Fr Doran at St Columba’s. At that stage, Fr Doran was the parish priest. Mr McClung at least at that time was more closely engaged in Church affairs than an ordinary parishioner (which was why he was in the church outside ordinary times for Mass) and his statement discloses a familiarity with the distinction between parish priest and assistant priest. An issue arises in this appeal on paragraph 5 of the notice of contention, about whether the primary judge was correct to find that notice to Fr Doran did not equate to knowledge of the “Diocese”.

70. The yearbook for 1966 was not in evidence. The 1969 yearbook states that by that time Fr Doran had become the parish priest at Wickham.

The litigation was conducted on an incorrect basis

71. There were not many documents from the late 1960s and early 1970s in evidence. The entirety insofar as light is shed on Fr Pickin’s activities at that time has been reproduced above. All point to his having been appointed an assistant priest in 1969. None suggests he was a parish priest.

72. Indeed, it is likely that the change of location of Fr Pickin in 1969 came to the attention of the plaintiff and his lawyers in advance of trial, because the amended statement of claim that went to trial changed the timing of the sexual assaults from 1968 to 1969, and the plaintiff himself changed his account of when the abuse of which he complained took place from 1968 to 1969, coinciding with the transfer of Fr Pickin to the parish.

73. Yet notwithstanding all of the contemporaneous documentary evidence, and the particular attention given to the office to which Fr Pickin was appointed in 1969, not to mention the testimonial evidence of Mr McClung, the plaintiff alleged that Fr Pickin was the parish priest at Wallsend. This was explicit in his pleading: “The Bishop appointed Pickin as Parish priest at St Patrick’s Church” (amended statement of claim, para 6). The pleader was evidently familiar with the distinction between parish priest and assistant priest, because para 10 alleged that canon law “conferred on the Bishop the power to appoint, remove and transfer[] parish priests and assistant priests in the Diocese, including Pickin”.

74. Moreover, and again notwithstanding all of the evidence referred to above, not to mention the familiarity the defendant might be expected to have had with the organisation of the Catholic Church including a general appreciation of the normal trajectory of offices held by a Catholic priest, the defence admitted that Fr Pickin was a parish priest.

75. The trial was conducted on that incorrect basis. The parties’ agreement affected the evidence. Expert evidence was adduced as to the role and responsibilities of the parish priest. Fr Dillon said that “in Australia in 1969, the Parish Priest was the highest local authority for the members of the Catholic Church and was answerable only to the Diocesan Bishop”. Obviously, that opinion does not apply to an assistant priest, who was directly answerable to the parish priest for his day to day conduct. As much was reflected in what Mr McClung in fact did in 1966 when making a complaint about Fr Pickin, then the assistant priest at St Columba’s in Adamstown. He did not go to the Bishop. Instead he went to the parish priest, Fr Doran.

76. The parties’ agreement also affected the findings of the primary judge. Her Honour is not to be criticised for acceding to what had been common ground between the parties in an expedited trial. So far as I can see, at no stage was her Honour directed in terms to any of the documents mentioned above. They were included in what was described as “two bundles comprising Fr Pickin’s personnel file” at the end of the third day of the trial. When Fr Pickin’s status as an assistant priest was raised during the hearing of the appeal, it was said that the question whether Fr Pickin was an assistant priest or a parish priest was never explored below. It is regrettable that litigation of this nature, involving issues of the utmost seriousness to all parties, has been conducted on a materially incorrect basis.

77. Parties may agree that their legal relations proceed on a counterfactual basis. A familiar example is a counterfactual recital to a deed. The response of the legal system is nuanced: broadly speaking, parties are bound at common law by their recitals, but an estoppel by deed was not available in equity: see the authorities collected in Kimberley Developments Pty Ltd v Bale [2023] NSWCA 25 at [53]-[54]. In litigation, parties may likewise admit factual allegations which are incorrect, and bearing in mind the role of courts to resolve issues, generally speaking the parties’ error does not relieve this Court from its obligation of deciding the litigation on the factual basis selected by them (see Commissioner of Taxation of the Commonwealth of Australia v 4 Doonan Street Collinsville Pty Ltd (in liq) [2016] NSWCA 69; 332 ALR 349 at [23]-[25]). However litigation may have an effect upon third parties, which is important to bear in mind when approaching a factually incorrect agreed position between the parties. Although parties can conduct litigation on a counterfactual basis, if that basis leads to findings of serious wrongdoing, especially by non-parties who cannot be heard, then in my view two consequences are to be borne in mind.

1. First, not lightly should such a finding which turns on a fact known to be false be made, especially in respect of a non-party who has not contributed to the incorrect basis on which the litigation has been conducted.

2. Secondly, if such a finding is to be made, then it should be made clear that the finding is based upon a counterfactual premise.

78. This simply reflects the fact that non-parties might not choose to participate in litigation on the same counterfactual basis chosen by the parties.

79. It will be seen below that the reasoning supporting the conclusion reached by the primary judge that there was a duty of care, which was breached, depended in part upon the factually incorrect agreed position that Fr Pickin was a parish priest. For example, two of the particulars of breach of duty which were emphasised in the plaintiff’s closing submissions were “Forbidding any priest to have access to a child in his residence” and “Properly supervising the conduct and practices of Pickin in the performance of his functions in the Diocese” (written submissions dated 20 August 2024, para 44). The facts that Fr Pickin would have been supervised by the parish priest Fr O’Dwyer, and if he lived in the presbytery would have shared that accommodation with Fr O’Dwyer, bear upon those particulars of breach. If the findings sought by the plaintiff were to be made, it would be desirable to note that the litigation was conducted on the basis, probably incorrect, that Fr Pickin lived alone in the presbytery.

80. However, on the view I take, the status wrongly attributed to Fr Pickin does not alter the outcome of this litigation.

Reasons of primary judge resulting in factual findings

81. A deal of the reasons of the primary judge addressed interlocutory rulings to which no challenge was made (including as to the admissibility of Fr Dillon’s reports, whether privilege in a draft statement of Mr Perry had been waived and whether Mr McClung’s evidence was admissible as tendency evidence). There is no occasion to review the reasoning, addressed to which the Court received no submissions, on those topics which occupy [15]-[88] of her Honour’s reasons. The evidence that was admitted was that of the witnesses Mr McClung and BB. I shall summarise their evidence, and the tendency reasoning that was authorised in respect of it, below.

82. Paragraphs [89]-[182] constitute a section headed “Was AA sexually abused by Father Pickin?”. The finding that the plaintiff was sexually abused was the subject of sustained challenge in grounds 1 and 2 of the notice of appeal, and was the main subject of oral and written submissions in this Court, making it necessary to summarise the testimonial and documentary evidence bearing on the point, and her Honour’s process of reasoning in some detail.

The plaintiff’s testimonial evidence

83. In his first statement, dated 15 March 2024, the plaintiff explained how the abuse occurred (in what follows I have corrected the spelling of “Pickin”):

I started seventh grade at Wallsend High School (the School) The classes were graded academically and I was placed in 7A, the top stream.

Father Ron Pickin [Pickin] attended the school to teach Christian Studies.

In the first week of Year 7, during the course of teaching, Pickin invited me and a classmate, Allan, to attend St Patrick’s Church Presbytery (the Presbytery) on Friday night.

The first time I visited Pickin I went to the Presbytery with Allan after dinner at home, when it was already dark.

When Allan and I got to the Presbytery, Pickin had bottles of Hunter Old Ale black beer and Peter Stuyversant [sic] cigarettes which he shared with us.

Pickin invited me and Allan to the Presbytery every [Friday] night for the first 10-12 weeks of year 7, and I went pretty much every week.

Myself, Allan and Pickin drank alcohol and smoked until I was paralytic drunk, which was after consuming around 6 or 7 beers.

Pickin made up excuses to send either myself or Allan to the shops to buy cigarettes. The shop was around a 20-minute walk away, so this meant that one of us was alone with Pickin for at least 40 minutes.

Of the 10-12 times I went to the Presbytery with Allan, he was sent to the shops 6 or so times and I was sent to the shops 4 or so times.

On around 6 occasions when I was alone with Pickin, he forced me to perform oral sex on him.

Despite the fact that I was so drunk when it was happening after a few occasions I realised how wrong it was that Pickin was doing this to me, and I stopped going to the Presbytery on Friday nights.

84. The plaintiff said that he had been placed in the top stream in Year 7. He said that:

After the abuse I went from being a straight-A student in primary school and Year 7 to not doing well academically. Each year I dropped a class stream at school, I was in 8B, then 9C, then 10C and D.

85. The plaintiff made a second statement on 31 May 2024, around a fortnight before his evidence was taken on commission. In that statement he corrected his evidence about timing. He said that Fr Pickin came to Wallsend High School at the end of Year 7 but started teaching scripture at the start of Year 8, and it was in that year, in 1969, that the sexual abuse occurred.

86. That is a significant change from the unequivocal statements that the abuse occurred on the first ten or twelve Fridays of his first term at high school. It is not unusual for a complainant to be uncertain about precise dates. What makes the change significant is that this complainant expressed a high level of confidence that the abuse occurred at a particular time which would be memorable – Fridays in the first term of his first year at high school, but then came to appreciate that that must be wrong. There is no reason to doubt that it reflected an appreciation of the appointment of Fr Pickin as an (assistant) priest at Wallsend in January 1969. There is also no reason to doubt that the plaintiff in March 2024, when he made his first statement, genuinely and sincerely had come to believe that the abuse occurred in the first weeks of 1968. The plaintiff’s evidence of timing was, of course, demonstrably unreliable. Imperfection of recollection as to precise dates or even years is not an uncommon characteristic of many complainants of childhood sexual assault, and if that were the only defect, it would not greatly detract from the probative value of his evidence.

87. The plaintiff was cross-examined about the change from 1968 to 1969, about how long it would take for him to drink six or seven glasses of beer so as to be paralytically drunk, about whether he saw anyone else in the presbytery, about either himself or Mr Perry being sent away to the shops each occasion, about being woken up with Fr Pickin’s penis in his mouth, and on the times when he was sent away, about returning and seeing Fr Pickin and Mr Perry in the living room of the presbytery.

88. When the cross-examiner returned to the correction of the 1968 date, the plaintiff denied being told anything about when Fr Pickin was transferred to Wallsend, and said that he was thinking about it one night and knew that there was an error.

89. The plaintiff said he did not recall telling a forensic psychiatrist retained by the defendant that (a) sometimes there was a third boy at the presbytery, (b) that the abuse occurred only in Year 7 and in the middle of the year, and (c) that he had lost interest in school in the second half of Year 7 and had then been dropped to 8B. There is no reason to doubt that the psychiatrist correctly recorded what the plaintiff had told him about the timing of the abuse, especially since the report goes on to express views by reference to school reports about a decline in performance in the second half of Year 7.

90. The friend who had attended the presbytery with the plaintiff was Mr Alan Perry, who made a statement confirming that he and the plaintiff had attended the presbytery as high school students. He said:

I attended the presbytery (attached to the St Patrick’s Church, Wallsend) on occasions. I recall this was in my third and fourth year of high school in around 1970 or 1971, when I was aged 15/16 years. I attended the presbytery at Wallsend in the evenings but cannot recall on how many occasions I attended, as it was not a regular thing. On reflection, Fr Pickin was a very approachable person and good natured and I enjoyed jovial banter with him during these lessons. Subsequently, my belief is that he became a friend to all the students.

I never attended the presbytery on my own, there were always other people in attendance but the person I can recall clearly is the plaintiff as we were closer friends. The plaintiff and I attended the presbytery for social meetings and get together[s] with other students and friends.

I observed there to be a poker machine in the presbytery, which Fr Pickin allowed us to play with coins he provided. These same coins were continually recycled through the machine.

When at the presbytery, Fr Pickin gave the plaintiff and I beer and we may also have been given cigarettes.

While at the presbytery, I never observed the plaintiff to be paralytically drunk.

On the occasions that I attended the presbytery with the plaintiff, Fr Pickin never told the plaintiff or I to go to the shops. I never left the presbytery on my own and I never left the plaintiff alone with Fr Pickin. I never saw the plaintiff leave the presbytery to go to the shops.

Whilst at the presbytery with the plaintiff, I never noticed anything unusual about the plaintiff nor Fr Pickin. By this I mean the plaintiff to have been highly intoxicated, distressed, fearful, anxious or angry.

I never saw Fr Pickin touch the plaintiff or exhibit behaviours consistent with grooming conduct. By this I mean giving the plaintiff special attention, favouring him or giving him gifts.

I am shocked and bewildered that the plaintiff has made allegations of sexual assault against Fr Pickin. The plaintiff has, ‘’never’’ said anything to me about this alleged matter.

Holidays with Fr Pickin

I did go on holidays with Fr Pickin to Queensland as did other boys, on occasions. The plaintiff was never invited to my knowledge. During these holidays, I never observed any boys being inappropriately touched or groomed by Fr Pickin. I was never touched or groomed by Fr Pickin.

I have recently caught up with other boys who went on holidays with Fr Pickin and none of them mentioned or have ever mentioned any inappropriate conduct, contact or grooming by Fr Pickin. Our discussions included the well-publicised sexual abuse within the Catholic Church.

I believe Fr Pickin to have been a very good man.

Visit to Fr Pickin

I recall inviting the plaintiff to accompany myself to visit Fr Pickin in his aged care facility at Dudley. We stayed with him for approximately half to three-quarters of an hour. At no stage prior to, during or after this visit did the plaintiff make any reference to me about any sexual abuse. This visit was quite convivial, all parties happily reminisced about ‘the old days’.

91. The plaintiff made a third statement in response which disputed the last paragraph of Mr Perry’s statement. It also referred to Mr Perry’s denial that he was sent to the shops, as follows:

I understand that Alan Perry claims that he and I went to see Father Ron Pickin when he was in aged care.

I never visited Pickin at any place at any time since leaving school.

I do recall an incident where I was with Alan Perry when he visited Pickin.

Sometime after my wife Lesley died, Alan Perry came to take me out for a drive. Alan said come for a drive, Lesley had died not long before that, I was down and out, so I agreed to go for a drive with him. I believe that Alan was being kind to me to try and get me out of the house and to give us a chance to have a chat.

After driving for around 30 minutes, Alan pulled up the car in Whitebridge on the main road and said “I’ll be back in a minute”. I told Alan that I would wait in the car.

Alan went into a brick building for a while. He came back to the car and said sorry to me for having to wait. After he started driving again, Alan said “Ronnie Pickin is in there and I talked to him”. I was filthy and said “so friggin what”.

He said “They are saying Pickin is a paedophile”. I told him “I just want to go home”.

Alan then drove me home.

I understand that Alan says that he was never sent to the shops by Pickin.

I believed Alan was sent to the shops because whenever I came out of the bedroom in the presbytery, after Pickin had had his way with me, Perry was gone. On one occasion I asked Pickin where Perry was. Pickin said to me “He’s gone down to the shops to get some things”.

I never waited for Perry to return before leaving the presbytery so I was not able to ask him if that was correct, but I never had any reason to think Pickin had lied about that.

92. As a result, the plaintiff was further cross-examined, this time before the primary judge. He maintained that on some occasions he had left the presbytery to go to the shops, leaving Mr Perry alone with Fr Pickin, and that on other occasions he had been told by Fr Pickin that Mr Perry had gone home. It was squarely put to him that his account of Mr Perry leaving him while he was in the presbytery was untrue, and that his account of the abuse perpetrated by Fr Pickin was not true.

The tendency evidence of Mr McClung and BB

93. Mr McClung said he was brought up Catholic by his father, and attended St Columba’s Church every Sunday. He said that he had been abused as a young teenager, aged around 14, by a priest, Fr Hodgson, at his Catholic high school. He said that when he was aged around 15, he confessed to the abuse in church. He said that in around 1965, Fr Pickin became the assistant priest, that he as well as other priests and nuns sometimes visited his home, and that for two Christmases and one Easter he was to deliver lessons to the congregation. The portions of his statement which were admitted pursuant to the tendency notice were as follows:

249. I propose these orders:

1. Appeal allowed.

2. Set aside the judgment entered on 20 September 2024, and the costs order made on 14 November 2024, and in lieu thereof, order that the proceedings be dismissed.

3. In relation to any further orders sought, including costs at first instance and in this Court and the continuation of the orders made on 1 October 2024 under the Court Suppression and Non-publication Orders Act, direct the parties and BB to file and serve within 21 days of today any agreed short minutes of order, or alternatively the orders for which each party seeks, any supporting materials, and submissions not exceeding four pages, and direct the other party to file and serve any supporting materials and short submissions in response not exceeding three pages within seven days thereafter, with a view to any dispute about further orders being resolved on the papers.

4. Direct the solicitors for the plaintiff to advise BB of the paragraphs of these reasons concerning the non-publication orders and his entitlement to be heard as to their continuation, and the effect of setting them aside so far as concerns him, bearing in mind that the reasons will in any event continue to refer to him as BB.

253. BALL JA: I agree for the reasons given by Leeming JA other than in relation to grounds 1 and 2 of the notice of appeal that the appeal must be allowed. I also agree that for the reasons his Honour gives the parties and BB should be heard on the revocation of the non-publication orders made in relation to the plaintiff and BB. It follows that I agree with the orders proposed by Leeming JA. Moreover, I accept that there are some difficulties with the way in which the primary judge went about the fact-finding process. However, I do not accept that her Honour erred in concluding that the plaintiff was sexually abused by Fr Pickin on several occasions in the presbytery in the way that the plaintiff alleges (that is, by Fr Pickin forcing him to suck Fr Pickin’s penis).

254. The conclusion that the plaintiff was sexually abused by Fr Pickin in that way depends, of course, entirely on acceptance of the plaintiff’s evidence that he was. In evaluating that evidence, it is important to bear in mind certain facts which are not in dispute.

255. It is not in dispute that the plaintiff went to the presbytery with Mr Perry on 10 to 12 occasions on Friday evenings after dinner. The plaintiff says and it seems likely that they went at Fr Pickin’s invitation. Fr Pickin had met the boys while teaching Christian studies at their school. While the boys were at the presbytery, Fr Pickin supplied them with cigarettes and alcohol. He also had a poker machine that was kept in a dressing area off Fr Pickin’s bedroom. The plaintiff, but not Mr Perry, spent time in the bedroom playing with the machine. The plaintiff was 13 at the time.

256. As Leeming JA explains, the tendency evidence of Mr McClung and BB established that Fr Pickin had a sexual interest in boys and sought out opportunities to establish intimacy with boys, including by using Church premises for that purpose, and had a tendency to sexually abuse boys who were in his care when he was able. The plaintiff stopped going to the presbytery after about 12 visits and apart from one occasion, which is the subject of dispute and which is said by Mr Perry to have occurred many years later in a nursing home, did not see Fr Pickin again. It is not suggested that the plaintiff lied in giving evidence concerning the abuse. Consequently, either the abuse happened or the plaintiff is mistaken about it.

257. In my opinion, the uncontested facts provide strong corroborative evidence of that given by the plaintiff. Those uncontested facts establish that Fr Pickin had an interest in boys and given the opportunity would sexually abuse them. He sought to create that opportunity by inviting the plaintiff and Mr Perry to the presbytery and supplying them with alcohol and cigarettes. It is difficult to see what other plausible explanation there could be for the fact that Fr Pickin provided the boys with alcohol. The fact of the abuse explains why the plaintiff stopped going to the presbytery and (leaving aside the contested later meeting at a nursing home) had nothing further to do with Fr Pickin. The psychiatrists retained by the plaintiff and the appellant in a joint report prepared for the purposes of the proceedings below accepted that the plaintiff’s subsequent conduct was consistent with the abuse he said he suffered.

258. I appreciate that in this context there was a factual dispute left unresolved by the primary judge concerning how much alcohol the plaintiff drank. The plaintiff says that he became paralytically drunk and on one or more occasions passed out. Mr Perry, on the other hand, gave evidence that he never saw the plaintiff paralytically drunk. But in my opinion nothing turns on this discrepancy. It was the plaintiff’s evidence that he had five to seven glasses of beer. The plaintiff also says he had a glass of wine each night at home with dinner. None of that evidence was contested. Two points follow from it. The first is that Fr Pickin encouraged or permitted the plaintiff to drink the quantity of alcohol he did at the presbytery. The second is that that quantity of alcohol was sufficient to make a 13 year old boy drunk.

259. Justice Leeming has given a number of reasons for not being satisfied to the requisite standard that the plaintiff’s evidence of abuse was reliable notwithstanding the evidence I have referred to.

260. First, his Honour points to the inconsistent and initially incorrect evidence given by the plaintiff of when he and Mr Perry went to the presbytery. In my opinion, nothing turns on those inconsistencies. It is not in dispute that when the plaintiff and Mr Perry were schoolboys they spent a series of evenings with Fr Pickin at the presbytery where they were supplied with cigarettes and alcohol. The question is when precisely that happened. Pinpointing the time when events occurred, particularly when they occurred more than 50 years ago, is notoriously difficult. Most people do so through a process of reconstruction by reference to known objective facts. It may be inferred that that is what the plaintiff initially did in this case, and that he did so by reference to when he commenced high school and his marks began to decline. In doing so, he was clearly mistaken. The likelihood is that the relevant events occurred not long after Fr Pickin started teaching the boys, which explains the plaintiff’s subsequent evidence. The plaintiff’s initial evidence was to attribute the decline in his marks to the abuse that he said he suffered. From an evidentiary point of view, that served two purposes. First, it added verisimilitude to the plaintiff’s evidence of abuse. The decline in marks to some extent could be said to corroborate the plaintiff’s evidence of abuse, since the abuse provides a plausible explanation for the decline in marks. Second, the evidence was significant because it helped establish a causal connection between the abuse and the later events in AA’s life.

261. In some cases, discrepancies of this sort may provide telling evidence against a plaintiff’s case. But I do not think that that is so in this case. As I have said, the basic facts (attendance at the presbytery, the supply of alcohol, Fr Pickin’s tendencies) are not in dispute. Although the plaintiff’s school results began to decline when he started high school, the decline occurred over time and were not obviously related to a specific traumatic event. The continuing decline was consistent with sexual abuse. It is not surprising that the plaintiff could not remember precisely when those events occurred. Nor is it surprising that he has come to believe that the abuse he says he suffered is the cause of many of the misfortunes in his life. But I do not think that erroneous belief sheds significant light on whether the plaintiff is also mistaken about the abuse itself.

262. The second type of evidence Leeming JA points to is the internal inconsistencies in the evidence given by the plaintiff of what occurred at the presbytery and the inconsistency between the plaintiff’s evidence of what occurred and the evidence given by Mr Perry. The inconsistencies relate to two main issues. The first was whether other boys were present at the presbytery at the time the abuse occurred. The second was whether on occasions Fr Pickin sent Mr Perry to the shops to buy cigarettes (or at least on one account, cigarettes and alcohol), thus creating an opportunity for the abuse to occur.

263. Although the primary judge expressed some reservations about Mr Perry’s evidence, it appears that ultimately her Honour preferred his evidence over that of the plaintiff’s where there were inconsistencies. It follows that her Honour accepted Mr Perry’s evidence that there were other boys present at the presbytery, that Mr Perry was never left alone at the presbytery with Fr Pickin and conversely never left the plaintiff alone in the presbytery. I accept that this Court should proceed on the basis of those findings. However, like the primary judge, I do not regard them as sufficient to warrant rejection of the plaintiff’s evidence that he was abused.

264. The primary judge’s findings are relevant in two ways. First, they go to the factual question whether Fr Pickin had an opportunity to carry out the abuse. Second, they go to the reliability of the plaintiff’s evidence and, in particular, the reliability of his evidence concerning the abuse.

265. As to the first of these points, the findings are not inconsistent with the central tenet of the plaintiff’s evidence that the abuse occurred in Fr Pickin’s bedroom when the plaintiff was drunk and playing with the poker machine alone. The evidence made the abuse less likely because it would have involved a greater degree of risk on the part of Fr Pickin. But there is nothing about the evidence which suggests that the abuse could not have occurred without the other boys finding out about it. And a priest who is willing to supply alcohol and cigarettes to adolescent boys and on occasions sexually abuse boys if the opportunity arises was no doubt prepared to engage in behaviour which would be regarded as risky.

266. Acceptance of Mr Perry’s evidence raises the question of what the other boys were doing while the abuse occurred. All that can be said consistently with the plaintiff’s evidence is that they were in another room doing what unsupervised adolescent boys in 1969 might do when supplied with cigarettes and alcohol. But it does not strike me as improbable that they were happy to continue to do what they were doing in the absence of Fr Pickin, or that they paid any particular attention to his absence for a period of time.

267. As to the second point, in my opinion, it is necessary to draw a distinction between recollections of sexual abuse (or other traumatic events) and the circumstances surrounding them, particularly when the relevant events occurred so long ago. It is not surprising that with the passage of time the memory of many details fades or becomes confused. As Leeming JA points out, courts have often remarked on that phenomenon; and the unreliability of memory is part of everyday experience. So, frequently people cannot recall when events occurred or who was present or, for example, what was said. And there is a natural tendency for people subconsciously to reconstruct those events in a way that is favourable to them. However, the processing of traumatic events, such as childhood sexual abuse, is not necessarily the same. It is certainly not part of everyday life to which courts can reliably apply their own experiences.

268. In the present case, the plaintiff gave consistent evidence concerning the abuse he suffered. That evidence was plausible having regard to the facts which were not in dispute. This is not a case where the plaintiff could have been mistaken about the identity of his abuser. His actual evidence concerning the abuse was not contradicted by other evidence. The plaintiff was examined by Dr Alex Apler, the psychiatrist called by the appellant. Dr Apler was not asked to and did not express an opinion on whether having regard to the plaintiff’s abuse of alcohol and drugs and the other traumatic events in his life it was possible or likely that he could have developed a false memory of sexual abuse. Absent expert evidence on the subject, and in the light of the other matters I have referred to, I would not be prepared to conclude that he did.

269. I should add, in case it might be thought that I have overlooked the point, that I do not obtain much assistance from Hodgson v R [2022] NSWCCA 72 or Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12. Each case must depend on its own facts. Both those cases were criminal cases, where a different standard of proof applies. Hodgson involved two brothers who were around 5 and 11. The objective evidence that contradicted the boys’ testimony was quite different. It was the boys’ evidence that the applicant lived close by and they encountered him on the way home from school. But the uncontradicted evidence was that the applicant had a full time job and would have been at work at those times and did not live in the area at the time the younger brother said the abuse occurred. At least one of the judges hearing that appeal (Rothman J) accepted the evidence of abuse but was not satisfied (beyond reasonable doubt) that the applicant was the abuser: at [109]. In the circumstances of that case, that was a possibility open on the evidence, since it depended on the identification of the applicant by the boys 50 years later.

270. In Pell, it was the Crown’s case that the abuse occurred at a time when and in circumstances where other evidence demonstrated that, contrary to the evidence of the complainant, it was not plausible that the complainant and Cardinal Pell would have been alone. That was sufficient to raise a reasonable doubt concerning Cardinal Pell’s guilt, even accepting that the complainant genuinely believed that he had been abused in the way alleged. On the other hand, in the present case, on the facts as found it remains plausible that the plaintiff was sexually abused in the bedroom while those who might have witnessed the abuse were in another room.

271. For those reasons, in my opinion the plaintiff’s evidence on the critical question of his abuse should be accepted and grounds 1 and 2 of the notice of appeal rejected.

ADDENDUM (7 MAY 2025)

272. THE COURT: In accordance with the timetable in order 3 made on 15 April 2025, the respondent provided submissions and an affidavit concerning a variation to the orders made under the Court Suppression and Non-publication Orders Act 2010 (NSW). The respondent did not seek to defend (a) the duration of the orders made by the primary judge, (b) any of the orders made by the primary judge insofar as they amounted to suppression orders as opposed to non-publication orders, (c) the reliance on s 8(1)(d) of the statute (which applies to criminal proceedings), or (d) the extension of the orders to the witness BB. However, the respondent sought a non-publication order that his name not be published until the time of his death, noting that it was uncontentious that he suffered from Persistent Depressive Disorder with periods of Comorbid Major Depression. The submissions referred to the respondent’s terminal diagnosis, the fact that this Court had not found that he had lied or had not been sexually abused as a teenager, and the regime which would apply under the Children (Criminal Proceedings) Act 1987 (NSW). The solicitor’s affidavit confirmed the litigation history summarised in this Court’s reasons for judgment and advised that she was not aware why the anonymity of the respondent had not been raised prior to 1 October 2024, after the conclusion of the trial. The affidavit advised that the solicitor who had had carriage of the matter during the trial had left the firm. The affidavit also confirmed that BB had no objection to the course proposed in the judgment (namely, excluding him from the operation of the orders, but leaving references to him in the judgment anonymised).

273. Ordinarily, it will be wrong for non-publication orders to be made after a trial has taken place in open court. The material relied on by the respondent falls short of acknowledging that there was an error by the legal practitioners who acted for AA at trial. Even so, the likelihood is that it was those lawyers’ oversight which led to the position that no orders were sought in advance of a trial which took place in open court, and that this occurred without any fault on the part of the respondent. It would be wrong in circumstances where the client suffers from an undisputed serious mental illness for his lawyers’ oversight (if that is what occurred) to lead to further harm brought about by the revocation of orders, even if error attended the making of those orders, as in this case it concededly did. In the unusual circumstances of this case, it is appropriate to make orders for a limited period of time on the basis that they are necessary to protect the respondent’s safety.

274. The orders proposed by the respondent were expressed to apply “until the death of the plaintiff”. Such an order satisfies the requirement of s 12 of the Court Suppression and Non-publication Orders Act to specify the order’s duration. However, it is problematic insofar as it will not be clear on the face of the order when a publication of the respondent’s name or information tending to reveal his identity is a criminal offence. A preferable course is for the order to specify a time period, and to direct the respondent’s solicitors to advise the Court prior to the expiry of that time period in the event that the respondent has not predeceased. There was no updated evidence of the respondent’s prognosis when the appeal was heard. The reasons of the primary judge concerning a stay of execution (AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (No 4) [2024] NSWSC 1632 at [20]) proceed on the assumption that there was a real risk that he would not survive until the judgment on the appeal was delivered. In those circumstances, doing the best we can, the appropriate time period for the order will be six months from today.

275. The respondent also sought anonymisation orders, framed in terms of documents filed in these proceedings. There is no longer any need for such an order; the proceedings in this Court are complete.

276. Finally, also in accordance with order 3 made on 15 April 2025, the parties supplied agreed orders as to costs. Those orders will be made in the terms agreed. The agreed short minutes of order contained a note concerning a “partial stay”. There was reference in AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (No 4) [2024] NSWSC 1632 at [22] to a partial stay, and the amount of $18,000 being a sum which the respondent’s litigation funder would not seek to have reimbursed. It may well be that the “partial stay” noted in the agreed orders reflects a continuation of the regime ordered by the primary judge pending determination of the appeal by this Court; however, it does not reflect any order made by this Court.

277. The Court makes these orders:

1. Vacate the orders made on 1 October 2024.

2. Order, pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), that the publication of the name of the plaintiff/respondent, and any information tending to reveal his identity, be prohibited except as may be necessary for the proper conduct of the proceedings.

3. Order 2 is necessary to protect the safety of the plaintiff/respondent.

4. Order 2 applies throughout the Commonwealth.

5. Order 2 is in place for a period of six months from today.

6. Direct the solicitors for the plaintiff/respondent to advise the Court, no later than 24 weeks from today, in the event that he is still alive, and if so to provide an update on his likely prognosis, with a view to extending the operation of order 2.

7. The respondent pay the appellant’s costs in the Supreme Court of New South Wales matter no 2024/00100043 on an ordinary basis as agreed or assessed.

8. The respondent pay the appellant’s costs in the Supreme Court of New South Wales, Court of Appeal matter no 2024/00406824 on an ordinary basis as agreed or assessed.

9. Note: The appellant will not seek recovery of $18,000 paid to the respondent pursuant to the partial stay until the High Court of Australia makes its final determination upon the respondent’s appeal or the respondent’s application for special leave is refused by the High Court, whichever is the first in time.

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Amendments

07 May 2025 - addendum inserted, [272]-[277], reflecting orders made on 7 May 2025.

Decision last updated: 07 May 2025