WJT v Trustees of the Marist Brothers; WXC3 v Trustees of the Marist Brothers; GAC v Trustees of the Marist Brothers (No 3)

[2025] NSWSC 838

Supreme Court

New South Wales

Medium Neutral Citation:

WJT v Trustees of the Marist Brothers; WXC3 v Trustees of the Marist Brothers; GAC v Trustees of the Marist Brothers (No 3) [2025] NSWSC 838

Hearing dates:

28 July 2025

Date of orders:

29 July 2025

Decision date:

29 July 2025

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) Grant leave to the second defendants, in each matter, to file and serve and rely upon a further amended second cross-claim, substantially in the form proposed in the further amended second cross-claim dated 11 July 2025, with the exception of the words “either in its own right or” in par 44 and par 65(f), by 31 July 2025, 4pm.

(2) Order that the first defendant, in each matter, file and serve a defence to the further amended second cross-claim by 5 August 2025, 4pm.

(3) Order that the costs of the applications, including any costs thrown away by reason of the amendment, be costs in each cross-claim.

Catchwords:

CIVIL PROCEDURE – pleadings – form and content of pleading – whether leave should be granted to amend pleadings – where parties are already making final submissions – where prior pleadings are “highly compressed” and economical – whether the pleadings “mirror” the case as put or are an enlargement of that case – whether granting leave would cause significant prejudice – leave granted

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

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

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

Dickens v State of New South Wales (No 3) [2018] NSWSC 485

Gunns Ltd v Marr [2005] VSC 251

Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230

Leotta v Public Transport Commission(NSW) (1976) 9 ALR 437

McGuirk v The University of New South Wales [2009] NSWSC 1424

Xie v Qin [2024] NSWCA 26

Young v Hones [2013] NSWSC 580

Category:

Procedural rulings

Parties:

WXC3; GAC; WJT (plaintiffs)
Trustees of the Marist Brothers (first defendant)
Trustees of the Roman Catholic Church for the Diocese of Parramatta (second defendant)

Representation:

Counsel:
R Sheldon SC / E Anderson (plaintiffs)
C O’Neill (first defendant)
J Sheller SC / J Whealing (second defendant)

Solicitors:
Koffels (plaintiffs)
Carroll & O’Dea Lawyers (first defendant)
Makinson d’Apice Lawyers (second defendant)

File Number(s):

2023/00108744 (WXC3)
2023/00185560 (GAC)
2022/00262159 (WJT)

Publication restriction:

Pursuant to s 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the publication of any names of the children referred to in the evidence given is prohibited.

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the disclosure by publication or otherwise of any information as to the name and identify of the plaintiffs, except as may be necessary, is prohibited.

JUDGMENT

Introduction

1. These reasons deal with applications by the Trustees of the Roman Catholic Church for the Diocese of Parramatta (‘the second defendant’) for leave to amend its cross-claims against the Trustees of the Marist Brothers (‘the first defendant’), and to rely upon a further amended second cross-claim (‘FA2XC’) in each matter.

2. The first defendant opposes the grant of leave, albeit its opposition is confined to specific paragraphs of each FA2XC. The proposed amendments are uniform across each of the cross-claims, as are the objections taken to the leave sought. It is, therefore, convenient to address the applications by reference to the pleading in one of the matters, as the parties did: namely, the FA2XC in WJT.

3. The second defendant relied upon an affidavit from its solicitor, Jacqueline Waugh, sworn 21 July 2025. That affidavit was read without objection, and she was not required for cross-examination.

4. The first defendant did not read any evidence on the applications.

Background

5. I will outline some of the key facts and relevant matters of background, so far as they concern the applications.

The claims brought by the plaintiffs

6. The plaintiffs allege that they were sexually and physically abused between 1990 and 1993 by a teacher, whilst students at Parramatta Marist High School (‘the school’).

7. The plaintiffs originally sought damages from the first and second defendants. During the trial, however, each plaintiff resolved their claim against the first defendant, but persisted with their claims against the second defendant.

8. The second defendant operated and conducted the school. The plaintiffs allege that it is directly liable for its failure to exercise reasonable care and is vicariously liable for the acts perpetrated upon them by the teacher. Put simply, the first defendant is the Trustees of the Marist Brothers, and the second defendant argues that they ran the school with them. Hence, it is argued, if the second defendant is liable to the plaintiffs (or any of them), then so too is the first defendant.

The procedural context

9. The evidence in these matters has closed. The second defendant is currently in, and the first defendant is yet to commence, its final submissions. To this point, the second defendant relied upon an amended second cross-claim (‘A2XC’), filed without objection in each matter on 19 June 2025. The allegations in each matter were relevantly the same. For consistency, reference will also be made to the version filed in WJT.

10. During final submissions, and during the trial itself, clarification of the precise basis for the second defendant’s claim for statutory contribution was sought by me. At least one difficulty that emerged was that the A2XC was, on my assessment, insufficiently particularised to enable a clear understanding, and thus a fair and just determination, of the issues. That was, I considered, no mere technicality or irregularity; rather, I regarded the A2XC as inadequately identifying the second defendant’s case against the first defendant.

11. To concisely explain why I considered that to be so, reference must be had to the A2XC. By way of summary, and putting to one side allegations relating to alleged physical abuse, the structure and content of the A2XC is as follows:

1. The second defendant noted that it had been sued by WJT, including that he was physically and sexually abused whilst a student at the school: A2XC at pars 1 and 7.

2. The second defendant (relevantly here) admitted, in its filed defence, that it owned and managed the school, but nevertheless alleged that the school was “jointly operated and/or administered” with the first defendant, and that the first defendant “shared” the “care, control and management” of the school: A2XC at pars 8(a) and (b).

3. The second defendant alleged that, if it had a liability to WJT, the first defendant is liable to [WJT] in respect of any “proven injury, loss and damage” sustained by him: A2XC at par 9. The A2XC then provides three “particulars”, namely:

1. first, the first defendant “exercised shared control over the [s]chool”: A2XC at par 9(a);

2. secondly, the first defendant was “liable for the acts and/or omissions of its appointed [p]rincipals and [d]eputy [p]rincipals, and other religious Brothers appointed to positions at the [s]chool”: A2XC at par 9(b); and

3. thirdly, the first defendant “exercised control over” the teacher who allegedly perpetrated the sexual abuse: A2XC at par 9(c).

12. Before moving to explain why it follows that there is a need to amend the pleadings in these matters, it should be noted that it is unnecessary, for present purposes, to dwell upon the second and third ways in which the second defendant alleges that the first defendant is, relevantly, a tortfeasor liable to make contribution, other than to note what follows.

13. In relation to the second basis for alleged liability, no relationship of agency has been pleaded, despite it being foreshadowed in the course of submissions that that was “[o]ne way of characterising” the relationship between the first and second defendant.

14. In relation to the third basis for alleged liability, the second defendant admits that it (and not the first defendant) employed the teacher who perpetrated the sexual abuse, with the consequence that the decision in Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349 forecloses any vicarious liability, as the second defendant ultimately accepted. Nevertheless, it maintained that, in some (as yet) unspecified way, there was a “measure of control” over the activity of the teacher.

15. The issue that has arisen derives from the first way in which the second defendant seeks contribution – namely, what it has alleged was “joint control” of the school.

16. On any view of it, the A2XC is a highly compressed pleading. In relation to the case based upon alleged joint control, it is acutely so. Whilst economy of expression is ordinarily an admirable objective, in the case of a pleading, any economy must necessarily comply with the general principles that inform the nature and function of a pleading (see Young v Hones [2013] NSWSC 580 at [79]-[80] and Dickens v State of New South Wales (No 3) [2018] NSWSC 485 at [36]), as well as the pleading requirements prescribed by the Uniform Civil Procedure Rules 2005 (NSW): see rr 14.6-14.20.

17. The A2XC did not achieve what was required by those principles and rules.

18. The shortcomings in the pleading can be illustrated by reference to the first basis for alleged liability (for ease of expression, ‘joint control’), and some of the submissions that were put to establish that the first defendant exercised joint control of the school.

19. As it happens, the second defendant’s case, in fact, invited consideration of the relationship between it and the first defendant starting from about 1820 but, more particularly, from 1875. During the next 150 or so years, and noting that the second defendant was created in 1986, the second defendant’s case included contentions that:

1. by “whatever means, it was a view of the [first defendant] that they were to have a role, partly dependent, partly independent, in the operation of” the school; and

2. there were “agreements” in place between it and the first defendant. During submissions, and after having raised such a contention, there were a number of exchanges including the following:

“HIS HONOUR: Why is it a term of an agreement? Why couldn’t it just be a practice? What is the agreement? Frame it. Express it. Identify it.

SHELLER: The agreement is, as it were, (a) unwritten, (b) drawn from the various correspondence between the two organisations and other organisations, bearing upon the manner in which Catholic schools operate.

HIS HONOUR: Mr Sheller, I’m going to ask you to prepare by Friday an outline of what you say is this agreement. I haven’t picked up that you’ve pleaded that there is an agreement in terms expressly at all.

SHELLER: That’s correct, your Honour, because we’ve pleaded our case based on a joint operation giving rise to a –

HIS HONOUR: I’m not trying to put you into a different case. I’m trying to actually put what you’re telling me into your case; that is that the reason why the Marist Brothers are jointly running [the school] at the relevant time is because there was an agreement in place between them that they would do so, and the terms of that agreement…[are] to be drawn from various sources.

SHELLER: Yes.

HIS HONOUR: That [is] what I want you to identify.

SHELLER: Yes, your Honour.

HIS HONOUR: Because that’s presumably what your whole case is; that is there’s been this arrangement irrespective of whether it’s custom [or] agreement, informal or formal, that this is what happens, and there are elements of it, but what are the elements? You appoint the principal. What are the other elements of it?

SHELLER: Yes”.

3. there were alleged to be oral variations of various agreements.

20. Nothing more need be said about that pleading given the second defendant, by the current applications, accepts that it requires amendment. Independently of whether it did so, I required a revised pleading to reflect and “mirror” the case run with the required level of detail necessary to clearly identify the issues for resolution. I gave directions about the service of amended pleadings that required the second defendant to file and serve a statement of issues, facts and law contended for, together with the evidence relied upon to support any findings sought.

The nature of the amendments

21. The proposed amendments are rather extensive. Whereas the A2XC spanned two and a half pages, the FA2XC now extends to 21 pages. It is presently unnecessary to summarise it.

22. Although the second defendant anticipated that the proposed amendments would be uncontroversial, that has turned out not to be so: the first defendant objects to particular paragraphs. Ultimately, putting to one side some minor objections raised, the first defendant submits that the second defendant is seeking to impermissibly change its case, by departing from one based upon joint control to a distinctly different and new claim based upon an “assumption of responsibility”, which the first defendant localised to four paragraphs of the FA2XC: at pars 63 and 65 (specific sub-paragraphs only), and pars 66 and 67 (‘the challenged paragraphs’). The paragraphs are identified at [54]ff, below.

23. It will be necessary to expand upon how the first defendant argues that there has been such a pronounced shift in the second defendant’s case against it but, before doing so, reference will be made to the relevant principles and statutory provisions that apply to the current application.

Principles: leave to amend

24. Unsurprisingly, the parties agreed about the relevant principles. They may be summarised as follows.

25. The Court may, at any stage of the proceedings, grant a party leave to amend any document in the proceedings: s 64(1) of the Civil Procedure Act 2005 (NSW) (‘CPA’). Section 64(2) relevantly provides that “…all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings…”. In relation to these provisions, two matters should be noted.

26. First, the power contained within s 64 of the CPA is conditioned upon a requirement that the Court follow the dictates of justice (as prescribed in s 58 of the CPA) in deciding whether to make any order including, relevantly here, “any order for the amendment of a document…”: s 58(1)(a)(i) of the CPA.

27. Secondly, regard to both the overriding purpose of the CPA and the objects of case management (ss 56 and 57) is “statutorily compulsory” pursuant to s 58(2)(a) of the CPA: see Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 at [38].

28. The factors to be considered in the exercise of discretion to grant leave to amend include (see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [102] (‘Aon’)):

1. the nature and importance of the amendments to the party applying;

2. the delay in making the amendments and the explanation for it; and

3. any prejudicial effect on the opposing party.

29. Another issue, bearing in mind the High Court’s statements in Aon and s 57 of the CPA, is that any leave to amend is not to be granted without considering the requirements of case management and efficiency of the conduct of proceedings: see Aon at [5], [23], [93], [95] and [111].

The basis for the grant of leave: the competing positions

Introduction

30. Given the principles that apply to whether leave should be granted to amend were not in issue, the arguments advanced in favour of a grant of leave (and those advanced to resist that course) focused upon forensic disadvantage and prejudice that may be occasioned by permitting the amendments to include the challenged paragraphs.

31. The respective arguments were essentially as follows.

32. On the one hand, the second defendant described the first defendant’s position as “fluid”, any suggestion of prejudice to be “opportunistic”, and any argued forensic detriment to “reflect a mischaracterisation” of how the second defendant puts – and has always put – its case against the first defendant (second defendant’s submissions at [25]).

33. The second defendant argued that the FA2XC merely brings the pleadings into line with not only the evidence but, more relevantly, the case against the first defendant that it advanced in all earlier iterations of the pleadings and, importantly, had always advanced during the trial. To the extent that any pleading does not admit to that characterisation, it is inconsequential and does not occasion any forensic detriment or prejudice, as the first defendant contended.

34. On the other hand, the first defendant argued for a radically different characterisation, and submitted that the second defendant’s application to rely upon the FA2XC was an unvarnished attempt – during the course of closing submissions and after evidence had closed and forensic elections had been made – to advance “a new case on duty and breach” (first defendant’s submissions at [2]). The essential submission put by the first defendant was, therefore, that the Court should refuse the second defendant leave to rely upon the challenged paragraphs of the FA2XC because to do otherwise would cause significant prejudice to it.

Discussion and consideration

35. I accept that the need to amend the cross-claims and the present applications arose out of concerns expressed by me about what I perceived to be the lack of correlation between the submissions, directed to the case sought to be advanced by the second defendant against the first defendant, and the A2XC.

36. I also accept that amendment is important for two overlapping reasons: it is said to reflect the case that the second defendant advances against the first defendant and, secondly, and no less importantly, facilitates a proper understanding of that case and its key integers. As to the first matter, the importance of the pleadings reflecting the issues actually litigated is undoubted: Leotta v Public Transport Commission(NSW) (1976) 9 ALR 437, 446. In Xie v Qin [2024] NSWCA 26, the currency and importance of that principle was recently restated at [49]:

“…Where a trial is conducted on issues other than those pleaded, the pleadings should be brought into line with the issues as fought, even if that is done after the evidence is closed, or even after judgment and an appeal”.

37. I also am satisfied that there are no particular case management considerations raised, nor are there any particular issues of efficiency in the conduct of the proceeding that were raised in submissions or evidence, that would tell against a grant of leave.

38. The first defendant’s opposition was not directed to any of the above matters but, as I have noted, was directed to what it contends is an attempt by the second defendant to belatedly recast its case, particularly in relation to the role of the principal. Its essential contentions are that the challenged paragraphs were not litigated, and that the first defendant approached its defence of the cross-claims on that footing: thus, to allow the amendments now would create unfairness and prejudice to it.

39. The first defendant’s objections are threefold.

40. First, it was argued that the FA2XC contains instances where there are difficulties with its “form”, said to be of “observations made by witnesses in witness statements pleaded as fact” (first defendant’s submissions at [21]). The complaint was left in general terms as no specific paragraphs were identified. That is, the first defendant’s approach was that, whilst ordinarily “they would be the subject of objection”, it determined not to advance any paragraph-specific submissions. Given that approach, nothing more need be said about this “ground” of opposition to the application. Nevertheless, it will, however, be necessary to return to the form of the pleading later in these reasons.

37. Secondly, it was argued that the FA2XC contains instances where there are difficulties with two “inconsistencies” with the “form”.

38. Thirdly, that the FA2XC “sets out new obligations” that the first defendant is alleged to have owed, giving rise to “fresh precautions” over a new period between 1975 and 1993. This is said to be the “primary” objection to the second defendant being granted leave to rely upon the challenged paragraphs in the FA2XC.

39. I address the first defendant’s second and third objections in what follows.

The form of the pleading: the alleged inconsistencies

44. The first defendant raises two small arguments about inconsistency in the FA2XC.

45. The first inconsistency argument is this. On the one hand, par 28 alleges that, through the Directors of Schools, the second defendant was responsible for the “conduct, operation and financial management of all Catholic systemic schools” yet, later, the second defendant inconsistently alleges in par 39 that its involvement with the school “was almost exclusively limited to paying the salaries of the lay teachers”.

46. In my view, there is no inconsistency between pars 28 and 39. That is simply because par 28, contrary to what the first defendant argued, is directed to pleading the effect of a particular document (or attempting to do that) – namely, a document described as MS/003. Thus, par 28, which contains the apparently controversial words “conduct, operation and financial management”, is not pleading anything other than the effect of Part A of that document. During submissions, Mr Sheller SC for the second defendant confirmed as much.

47. Like the first inconsistency argument, the second inconsistency argument is also premised upon the first defendant’s characterisation of par 28. The argument advanced was that par 28 was inconsistent with par 63 – which alleges that the first defendant “assumed responsibility” for the second defendant by the principals that it appointed for the proper conduct of the school. In my view, as with the first argument, there is no inconsistency between these paragraphs given the first defendant’s erroneous characterisation of par 28. Further, the case that the second defendant wishes to advance is, I consider, sufficiently clear from earlier paragraphs of the FA2XC – notably from par 31ff.

48. It follows that I do not accept the first defendant’s inconsistency arguments.

The alleged “new obligations”

49. The first defendant then argued that, by par 63, “new obligations” have been raised which, in turn, gives rise to a number of “fresh precautions” in pars 65(a), (d)-(f) and (h)-(k), by extending par 66 to a “new extended period of 1975 to 1993” (first defendant submissions at [22]). Building upon this, the first defendant argues that there are “newly pleaded factual contentions as to knowledge” contained within par 67 (first defendant’s submissions at [22]).

50. The ultimate contention raised by the first defendant is that it is now faced with a “brand new case with a novel duty and new breach”, that it had approached the conduct of the trial on the basis that the case against it was essentially based upon joint control, and that the pleading – particularly, par 63 – should be viewed as something of a Trojan horse designed to permit the second defendant to run what is argued to be a different case. That different case was suggested by the first defendant to be a case where the first defendant’s liability arises “by function of assumed responsibility over the appointed principals and by the informal custom of history”: it was suggested that this was “novel” as it involved “consideration of a different relationship between the [first defendant] and the plaintiffs, and has not to date been pleaded or run” (first defendant’s submissions at [6]).

51. The first defendant submits that leave to rely upon these paragraphs should be refused because to do otherwise would occasion irremediable prejudice to it, by virtue of the forensic decisions it has made during the course of the trial to this point.

52. Two matters should be noted before dealing with the first defendant’s opposition to the grant of leave. First, obviously enough, the pleading needs to be considered not only by reference to the challenged paragraphs, but more generally when other parts of the FA2XC throw light upon the meaning and effect of the challenged paragraphs. Secondly, somewhat unusually, other paragraphs that seek to put a different case were not challenged. For example, par 44 of the FA2XC in fact alleges – in a manner that I regard as clearly inconsistent with the way the second defendant’s case was run – not merely joint control, but that the first defendant “in its own right…operated” the school. When this was pointed out, however, Mr Sheller SC very fairly indicated that no reliance would be placed upon those words, despite the absence of objection to them.

53. I will next deal with the challenged paragraphs in order.

Paragraph 63: the alleged “new obligations”

54. The first defendant objected to par 63 by arguing that the form of what was alleged amounted to “new obligations”.

55. During submissions, the second defendant essentially submitted that the paragraph is unexceptional and did nothing more than allege that, by the appointment of principals to the school, it carried with it certain responsibilities (which are particularised).

56. The language employed by par 63 (“assumption of responsibility”) appears in the part of the FA2XC where the second defendant addresses the duty of care (pars 53-63). Precisely why that form of words has been used is not altogether clear, given the earlier part of the pleading sets out the various matters that are alleged to support the conclusion that the first defendant, with the second defendant – picking up the language of par 44 – “jointly…operated” or – picking up the language of par 53 – had “operational control” of the school.

57. The notion of “assumption of responsibility” is typically alleged as a factor that supports the existence of a duty of care in what are often described as novel cases: see Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 at [103](f). Here, however, no novel duty is pleaded. The case against the first defendant is that it, with the second defendant, jointly operated the school and, therefore, if the second defendant is liable to one or other plaintiff, then the first defendant is as well.

58. The first defendant’s written submissions did not identify the nub of the complaint. During submissions, the first defendant submitted that the paragraph essentially amounted to an attempt to attribute the acts and omissions of the principal(s) to the first defendant, and that such an issue had not been pleaded or litigated during the trial.

59. At least one difficulty with the first defendant’s submissions is that the A2XC expressly pleaded this: see par 9(b). That is, despite the overall economy with which the second defendant pleaded the cross-claim against the first defendant, what was contained was a clear allegation that the first defendant was “liable for the acts and/or omissions of its appointed principals…”. Precisely how that was said to arise was not identified in the A2XC and, at least at the present time, is yet to be explained in submissions.

60. As it happens, Mr Sheller SC indicated during submissions that the second defendant proposed to remove the (potentially) offending words “assumption of responsibility” and provide a different formulation. Given that stance, it is unnecessary to finally resolve this issue.

Paragraph 65: newly particularised allegations of negligence

61. The first defendant’s written submissions complained that the second defendant sought to advance new particulars of negligence. That is, that none of the matters now sought to be pleaded by the second defendant had been raised before now.

62. The first defendant’s written submissions were somewhat generally expressed and did not undertake any comparison between the “particulars of negligence” in the A2XC and the FA2XC. It should be noted that, by par 11(a) of the A2XC, the “particulars of negligence” alleged against the first defendant specifically picked up and incorporated those contained in pars 9-17J of the second amended statement of claim filed 27 March 2025 (‘2ASOC’).

63. The second defendant contested, except in a confined respect, that the particulars were new.

64. I will address the challenged particulars from par 65 in what follows:

1. Par 65(a), which is essentially a particular relating to the implementation of appropriate policies relating to “sexual and physical abuse”. In my view, this particular was sufficiently raised in A2XC at pars 9(b)(iii) and (iv). It was also raised, I consider, in the 2ASOC at pars 14(e) and (f).

2. Par 65(d), which is essentially a particular that the first defendant should have determined the suitability of the teacher to work at the school. In my view, this particular was raised in the 2ASOC at par 14(g).

3. Par 65(e), which is essentially a particular that the first defendant should have investigated Mr Hawkins given his “known behaviours”. The second defendant conceded that this was an entirely new particular but emphasised that, as this matter had been specifically pleaded in GAC, it was litigated in the proceedings (given the matters were heard together, with evidence in one being evidence in the others).

4. Par 65(f), which is essentially a particular that the first defendant should have disciplined or recommended the termination of Mr Hawkins’ employment on account of aspects of his behaviour, including drinking and smoking. The second defendant also conceded that this was an entirely new particular and, during the course of submissions, abandoned any reliance upon it.

5. Par 65(h), which is essentially a particular that the first defendant should have required additional staff members to be present on each canoe camp. In relation to this particular, the difficulty with the objection, in my view, is that it merely repeats, or is otherwise a variation of, pars 65(b) and (c). These particulars are not objected to. It follows, I consider, that this particular is sufficiently raised by those particulars.

6. Par 65(i), which is essentially a particular alleging that the first defendant should have investigated the details of each canoe camp, including the sleeping arrangements. In my view, this particular is substantially raised by par 65(g) – a particular that is not objected to.

7. Par 65(j), which is essentially a particular about the implementation of risk management assessments and protocols for off-campus excursions. In my view, this particular was sufficiently raised in the A2XC at pars 9(b)(iii) and (iv), and pars 14(e) and (f) of the 2ASOC.

8. Par 65(k), which is essentially a particular about supervising students and teachers, so as to prevent abuse. In my view, this particular was fully – or substantially – raised in par 65(c) (a paragraph that was not objected to), sufficiently raised in pars 9(b)(i) and (ii) of the A2XC, and also raised in par 14(d) of the 2ASOC.

65. Ultimately, following argument, the first defendant withdrew any objection to par 65. In my view, for the reasons given, each of the particulars were sufficiently raised and, therefore, litigated. To the extent they were not, the first defendant did not oppose the second defendant either obtaining leave to rely upon that particular (par 65(e), given it was raised in GAC), or the second defendant abandoned any attempt to rely upon that particular (par 65(f)).

Paragraphs 66-67: extending the alleged negligence to the “new extended period” of 1975-1993

66. The first defendant’s written submissions complained that, by these paragraphs of the FA2XC, the period over which the second defendant now alleges that the first defendant was in breach of its duty of care has been extended – to between 1975 and 1993. The first defendant’s written submissions did not identify the ‘time period’ of the case it suggested was conducted by the second defendant against it and the basis for such a contention to enable some comparison. Nevertheless, during submissions, the first defendant suggested the ‘time period’ only began in 1986 (presumably coinciding with the date of the second defendant’s creation).

67. The A2XC did not (at least explicitly) confine the claim against the first defendant to a particular period albeit that, at least implicitly, it extended from at least the mid-1980s (by the allegation that the first defendant exercised control over the relevant teacher, through its appointment of a principal in 1985 or 1986: A2XC at par 9(c)(iii)). However, the 2ASOC did not confine the claim to that time period, nor did the first defendant suggest that it did.

68. The second defendant’s riposte was that, contrary to what the first defendant had argued, the cross-claim was clearly advanced on the footing that the alleged negligence began before 1986, and referred to the various ways in which evidence was elicited from witnesses to that end. In my view, the second defendant’s submission should be accepted: a body of evidence was adduced at trial, practically demonstrating that the broader time period was litigated.

69. The first defendant also argued that par 67 was a new case, directed to the first defendant’s actual or constructive knowledge. I do not accept this submission, for the following reasons.

70. First, no attempt was made to explain how it was that the case by any plaintiff or the second defendant did not involve broad allegations of this kind. Secondly, it is a little difficult to accept that these matters do not go hand-in-hand with what is alleged in par 65, over which there is no longer any objection. Thirdly, it is fair to say that, at least in some respects, evidence was led without objection directed to a number of the matters alleged (the measured expression is deliberate, given the matter is currently the subject of final submissions).

71. The first defendant asserted that it made a number of tactical and forensic decisions based upon what it submitted was the case the second defendant had run against it and that to allow the amendments – or any of them – in the terms objected to would be “significantly prejudicial”. As is apparent, I have not accepted the first defendant’s submission that the FA2XC involves the second defendant “recasting” its case against it. Nevertheless, I add the following.

72. Aside from advancing the submission in these terms, the first defendant did not, however, seek to illustrate how it was prejudiced to the degree suggested by reference to what occurred in the trial.

73. For example, it was not suggested that the first defendant refrained from calling evidence that it otherwise would have adduced, had it known that this was the real case the second defendant wished to advance against it (albeit that, during submissions, the first defendant suggested that it might have called Dr Green); nor, by further example, was it suggested that, in relation to a particular witness, the cross-examination occurred in a particular way that otherwise would have been different (albeit that, during submissions, the first defendant suggested that it might have asked some additional questions of Mr Mulligan); nor, by final example, was it suggested that investigations were required. These examples are not intended to be exhaustive – they serve merely to emphasise that the suggested significant prejudice was, I consider, very much in the realm of theory.

74. Notwithstanding that finding, to the extent that the first defendant wishes for any witness to be recalled, or to supplement its evidence, including by calling Dr Green to give evidence, any application for that to occur should be made forthwith.

The form of the pleading

75. During submissions, I drew attention – non-exhaustively – to the form of a number of paragraphs of the FA2XC, and expressed a measure of concern about whether those paragraphs were compliant with the principles and rules earlier identified. Following those exchanges, Mr Sheller SC indicated that the second defendant proposed to revisit the FA2XC with a view to refining those, and other, parts of the pleading.

76. It should be emphasised, and goes without saying, that it is not the role of the Court to assist parties in drafting pleadings which comply with the UCPR: Gunns Ltd v Marr [2005] VSC 251 at [57]; McGuirk v The University of New South Wales [2009] NSWSC 1424 at [35]. Nevertheless, it is important, particularly given where the proceedings are at, for any revised version submitted by the second defendant to provide a clear and properly structured and organised statement of its case.

Orders

77. For the above reasons I make the following orders:

1. Grant leave to the second defendants, in each matter, to file and serve and rely upon a further amended second cross-claim, substantially in the form proposed in the further amended second cross-claim dated 11 July 2025, with the exception of the words “either in its own right or” in par 44 and par 65(f), by 31 July 2025, 4pm.

2. Order that the first defendant, in each matter, file and serve a defence to the further amended second cross-claim by 5 August 2025, 4pm.

3. Order that the costs of the applications, including any costs thrown away by reason of the amendment, be costs in each cross-claim.

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Decision last updated: 05 August 2025