WJT v Trustees of the Marist Brothers; WXC3 v Trustees of the Marist Brothers; GAC v Trustees of the Marist Brothers (No 4)

[2025] NSWSC 1017

Supreme Court

New South Wales

• Amendment notes

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 4) [2025] NSWSC 1017

Hearing dates:

2-6, 10-13, 16-19, 30 June; 1, 4, 28-29 July; and 20-21 August 2025

Date of orders:

10 September 2025

Decision date:

10 September 2025

Jurisdiction:

Common Law

Before:

Chen J

Decision:

See [569], [709]-[710], and [713]-[714]

Catchwords:

NEGLIGENCE – direct liability – vicarious liability – joint hearing of three matters – where each plaintiff argued that they were sexually and physically assaulted by the same schoolteacher in the 1990s – where some of the assaults were said to have occurred at canoe club camps at Wisemans Ferry – where others were said to have occurred in the woodwork room or adjacent storage area at the school – where limited evidence was and is available to corroborate the accounts – questions of unreliability – where tendency evidence relied upon – whether the acts of the schoolteacher occurred in the course of his employment – whether a finding of direct liability necessarily excludes a finding of vicarious liability in the same claim involving the same defendant – where psychological and psychiatric injuries are said to have resulted from the assaults – whether the nature and extent of the harm experienced was as significant as argued – damages – cross-claim – whether the first and second defendant jointly operated the school – whether contribution followed – appointment of Principals – visitation – whether agency relationship existed

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Criminal Procedure Act 1986 (NSW)

Education Act 1990 (NSW)

Education and Public Instruction Act 1987 (NSW)

Education Reform Act 1990 (NSW)

Evidence Act 1995 (NSW)

Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Limitation Act 1969 (NSW)

Limitation Amendment (Child Abuse) Act 2016 (NSW)

Roman Catholic Church Communities Lands Act 1942 (NSW)

Social Security Act 1991 (Cth)

Cases Cited:

AA v PD [2022] NSWSC 1039

Amaca Pty Limited v State of NSW [2003] HCA 44; (2003) 77 ALJR 1509

Amaca Pty Ltd v Ellis (2010) 240 CLR 111; [2010] HCA 5

BCM v The Queen [2013] HCA 48; (2013) 88 ALJR 101

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

Bridge Printery Pty Limited v Mestre [1999] NSWCA 342

BriginshawvBriginshaw (1938) 60 CLR 336; [1938] HCA 34

Brooks v Burns Philp Trustee Co Ltd (1969) 121 CLR 432; [1969] HCA 4

Bugge v Brown (1919) 26 CLR 110; [1919] HCA 5

Cabot (a pseudonym) v R [2018] NSWCCA 265

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

Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-Operative Assurance Co of Australia Ltd (1931) 46 CLR 41; [1931] HCA 53

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

Connor v Blacktown District Hospital [1971] 1 NSWLR 713

Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320

Cullen v Trappell (1980) 146 CLR 1; [1980] HCA 10

Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218

EffemFoods Pty Ltd v LakeCumbelinePty Ltd [1999] HCA 15; (1999) 161 ALR 599

Ferguson v R [2024] NSWCCA 81

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

Franklins Pty Limited v Metcash Trading Limited (2009) 76 NSWLR 603, [2009] NSWCA 407

Gersbach v Gersbach [2018] NSWSC 1685

Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)

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

Graham v Baker (1961) 106 CLR 340; [1961] HCA 40

Gulic v Boral Transport Ltd [2016] NSWCA 269

Hollis v Vabu Pty Limited (2001) 207 CLR 21; [2001] HCA 44

James Hardie & Co Pty Limited v Roberts (1999) 47 NSWLR 425; [1999] NSWCA 314

James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; [1998] HCA 78

John XXIII College v SMA [2022] ACTCA 32

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

Kaplan v State of Victoria (No 8) [2023] FCA 1092

Leichhardt Municipal Council v Montgomery [2005] NSWCA 432

Lloyd v Thornbury [2019] NSWCA 154

M v the Queen (1994) 181 CLR 487; [1994] HCA 63

Malec v JC Hutton Pty Limited (1990) 169 CLR 638; [1990] HCA 20

Mason v Demasi [2009] NSWCA 227

MBP (SA) Pty Ltd vGogic (1991) 171 CLR 657; [1991] HCA 3

Medlin vState Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5

Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54

Morris v Hanley (2003) 173 FLR 83; [2003] NSWSC 42

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

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

OneSteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1; [2013] NSWCA 27

Palmer v R [2018] NSWCCA 205

Payne v Parker [1976] 1 NSWLR 191

Penrith City Council v Parks [2004] NSWCA 201

Phelan v Melbourne Health [2019] VSCA 205

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492

PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312

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

Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166

Ramsey v Denton [2021] NSWCA 310

Reed v R [2006] NSWCCA 314

SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132; (2017) 345 ALR 633

Southgate v Waterford (1990) 21 NSWLR 427

State of NSW v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

State of Victoria v Subramanian (2008) 19 VR 335; [2008] VSC 9

Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19

Tesco Supermarkets Ltd v Nattrass [1972] AC 153

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52

Transport for NSW v Hunt Leather Pty Ltd; Hunt Leather Pty Ltd v Transport for NSW (2024) 115 NSWLR 489; [2024] NSWCA 227

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

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

Wynbergen v Hoyts Corporation Ltd [1997] HCA 52; (1997) 72 ALJR 65

Zorom Enterprises Pty Ltd v Zabow (2007) 71 NSWLR 354; [2007] NSWCA 106

Texts Cited:

JD Heydon, Cross on Evidence (14th ed, 2024, LexisNexis Butterworths)

Peter Watts, FMB Reynolds, Bowstead & Reynolds on Agency (23rd ed, 2024, Sweet & Maxwell)

Category:

Principal judgment

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. Graeme Stuart Hawkins was a teacher at Parramatta Marist High School (‘the school’) between 1975 and 1993. He was suspended from that employment on 14 September 1993 following allegations made against him by a student. Those allegations were that Mr Hawkins had sexually abused the student whilst in Mr Hawkins’ car “on the way to or from a canoe club outing”.

2. As it happens, the sexual abuse allegedly perpetrated by Mr Hawkins was not confined to the student who made that initial report. Soon after, other students reported that they too had been abused by him.

3. Police were notified of these allegations against Mr Hawkins in late 1993. Investigations undertaken by them at that time revealed that there were 14 students from the school (including two former students) who had allegedly been sexually abused by Mr Hawkins.

4. Mr Hawkins was summarily dismissed from his employment as a teacher at the school on 18 October 1993. He committed suicide in December 1993.

5. WJT (‘the first plaintiff’), WXC3 (‘the second plaintiff’) and GAC (‘the third plaintiff’) were formerly students at the school. The first plaintiff attended the school from 1990 (Year 7) to 1995 (Year 11), the second plaintiff from 1991 (Year 7) to 1996 (Year 12), and the third plaintiff from 1990 (Year 9) to 1993 (Year 12). They each allege that Mr Hawkins sexually or physically abused them, or both.

6. In the case of the first plaintiff, he alleges that he was sexually abused by Mr Hawkins whilst on canoe camps between 1991 and 1993. The alleged sexual abuse consisted of Mr Hawkins fondling him, typically before he showered. The first plaintiff also alleges that, on two occasions, the sexual abuse consisted of Mr Hawkins performing oral sex upon him and masturbating himself in front of the first plaintiff thereafter. The physical abuse which the first plaintiff alleges he was subjected to was in the form of unnecessary and excessive corporal punishment, whilst a student.

7. In the case of the second plaintiff, he alleges that he was sexually abused by Mr Hawkins whilst on a canoe camp with one other student sometime around Easter in 1992. The sexual abuse allegedly consisted of forceful squeezing, fondling and anal rape. He also alleges that Mr Hawkins separately fondled him in 1993. The physical abuse to which the second plaintiff alleges he was subjected to was in the form of Mr Hawkins squeezing his neck “very hard” on “around 20 occasions during class” in 1992.

8. In the case of the third plaintiff, he alleges that he was sexually abused by Mr Hawkins in and around the classroom and school grounds, during and after school hours. He specifically describes being assaulted in 1993 (when he was in Year 12) whilst taking steps to complete his Higher School Certificate (‘HSC’) major work for his woodwork subject, in the woodwork room or adjacent storage area. The abuse – which the second plaintiff alleges occurred on 17 occasions between July and August 1993 (approximately) – allegedly consisted of anal rape and oral sex. It sometimes involved Mr Hawkins using acetone and wood to silence him.

9. Seven aspects of the procedural history of these matters should presently be noted.

10. First, the hearing initially involved claims for damages brought by the plaintiffs against two defendants – namely, the Trustees of the Marist Brothers (‘the first defendant’ or ‘the Marist Brothers’) and the Trustees of the Roman Catholic Church for the Diocese of Parramatta (‘the second defendant’). However, on 11 June 2025, each plaintiff compromised their claim against the first defendant but continued with their claims against the second defendant. Given the settlement between each plaintiff and the first defendant involved an agreement that judgment be entered in favour of the first defendant, no judgments were entered, so as to preserve the second defendant’s entitlement to pursue its claim for contribution: James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; [1998] HCA 78.

11. Secondly, on the eighth day of the hearing, the claim brought by the first plaintiff resolved and, on 17 June 2025, orders were made giving effect to that compromise.

12. Thirdly, notwithstanding the resolution of the first plaintiff’s actions against both defendants, and the claims by the second and third plaintiffs against the first defendant, the second defendant pursued its cross-claim against the first defendant in each action and sought contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (‘the LRMP Act’). Each cross-claim, however, involves the same substantive issues, and both defendants accepted that the decision in one cross-claim was determinative of all three.

13. Fourthly, on 18 June 2025, the third plaintiff and second defendant agreed upon the quantum of damages, subject to the determination of whether the sexual abuse occurred as the third plaintiff alleged.

14. Fifthly, the second defendant accepted that, if the respective plaintiff proved to the required standard that the abuse occurred, it had breached its duty of care owed to that plaintiff and, further, that “causation” had been demonstrated (albeit that the extent of the loss and damage suffered remained in issue).

15. Sixthly, the matters were heard together, with the evidence in one being evidence in the other (except in relation to the evidence on quantum and damages).

16. Seventhly, a number of former students gave evidence, some of whom alleged that they too had been physically and sexually abused by Mr Hawkins. To the extent that it is necessary to reference evidence from those living witnesses who experienced or allege misconduct by Mr Hawkins against them, they are referred to by initials.

17. Thus, by the remaining claims, the second and third plaintiffs seek damages against the second defendant. They allege that the second defendant is directly liable for its failure to exercise reasonable care and is vicariously liable for the acts allegedly perpetrated upon them by Mr Hawkins. The second defendant seeks contribution from the first defendant in respect of each of these claims, including the resolved claim brought by the first plaintiff.

18. Although there is a degree of factual overlap between the three claims – and, thus, common factual findings can be and have been made – differences nevertheless remain. Those differences notably relate to the circumstances of the alleged abuse.

19. As the primary claim between the first plaintiff and each defendant resolved (leaving only the cross-claim for contribution to be determined) and the claim brought by the second plaintiff raises particularly complex issues of fact and law (again noting that damages have been agreed in the claim brought by the third plaintiff: see [13], above), it is convenient to first address the second plaintiff’s claim, including the second defendant’s cross-claim.

WXC3: the second plaintiff’s claim

Introduction: an overview of the allegations and claim

20. By amended statement of claim filed 28 April 2025 (‘SPASOC’), the second plaintiff alleges that he was sexually and physically abused by Mr Hawkins in 1992 and 1993. That alleged abuse is summarised as follows:

1. in 1992, Mr Hawkins sexually abused him in a campground shower whilst on a canoe camp. The second plaintiff alleges that Mr Hawkins grabbed him “by the neck and fondled…[the second plaintiff’s] genitals”, anally raped him, and forced him “to fondle” Mr Hawkins’ genitals: SPASOC at [4](b).

2. in 1992, Mr Hawkins “squeezed the [second plaintiff’s] neck very hard” during class: SPASOC at [4](c).

3. in 1993, Mr Hawkins “grabbed the [second plaintiff] and fondled his penis in a storage area adjacent to the classroom”, following a technics class: SPASOC at [4](d).

21. The second plaintiff alleges that he has suffered both physical and psychological harm in consequence of the sexual and physical abuse allegedly perpetrated upon him (SPASOC at [5]). He contends that the second defendant is directly liable for that abuse by its failure to exercise reasonable care, and is vicariously liable for the acts perpetrated upon him by Mr Hawkins.

22. Notwithstanding the way the claim was pleaded, the second plaintiff ultimately only sought damages for the psychiatric and/or psychological injuries he claimed to have suffered in consequence of the sexual abuse. Given the nature of what is alleged and the operation of s 3B(1)(a) of the Civil Liability Act 2002 (NSW) (‘the CLA’), the second plaintiff alleges that any damages awarded to him should be assessed independently of Part 2 of the CLA, and that this is so irrespective of whether the defendant’s liability is direct or vicarious: SPASOC at [20]. Subsequently, in written submissions filed, the second plaintiff accepted that any damages resulting from the second defendant’s direct liability to him are to be assessed in accordance with Part 2 of the CLA.

23. The duty of care that the second plaintiff alleges was owed to him by the school was put in two ways: first, that the duty of care owed to him was a duty “to take reasonable care for the safety of the [second plaintiff] whilst a student at the school…” (SPASOC at [6]-[14]) and, secondly and alternatively, that the duty owed to him was “a non-delegable duty of care”: SPASOC at [14A]-[14J]. During submissions, the second defendant expressly accepted that the duty it owed the second plaintiff was non-delegable, and was otherwise as described in Commonwealth v Introvigne (1982) 150 CLR 258, 269-271; [1982] HCA 40 (‘Introvigne’).

24. As to vicarious liability, the second plaintiff alleges that Mr Hawkins was employed by the second defendant as a school teacher and that – despite the abuse amounting to a criminal offence (in particular the sexual abuse, if accepted) – the second defendant was nevertheless vicariously liable for it given Mr Hawkins was, inter alia, in “a position of authority, power, trust and intimacy vis-à-vis the [second] plaintiff”: SPASOC at [16](b) and (c). In those circumstances, the second plaintiff argues that the alleged sexual and physical abuse occurred “in the course” of Mr Hawkins’ employment with the second defendant and, thus, that it is vicariously liable for the consequences of such conduct: SPASOC at [17]-[19].

25. The SPASOC, it should be noted, does not plead any specific cause of action against Mr Hawkins. Indeed, no cause of action in respect of any intentional tort is pleaded. Rather, the second plaintiff’s case was advanced (and only advanced) in “negligence”. The significance of the second plaintiff confining his cause of action to one in negligence is – in connection with alleged sexual abuse – of limited forensic materiality (given the limited and confined concession made by the second defendant: see [139], below). However, in connection with the allegation confined to physical abuse, the position is less straightforward. It will be necessary to return to consider the form of the pleadings when dealing with the specific circumstances giving rise to each cause of action sued upon.

The removal of any limitation period for child abuse actions

26. Given the alleged conduct arose over 30 years ago and proceedings were only commenced by the second plaintiff in 2023, a short explanation of the second plaintiff’s entitlement to bring these proceedings is in order.

27. Ordinarily, in relation to damages for personal injury founded on tort that accrue before 6 December 2002 (the case for the second and third plaintiff), a six-year limitation period applies running from the accrual of that cause of action: see s 14(1)(b) of the Limitation Act 1969 (NSW) (‘the Limitation Act’). Where the injured party is a minor, the limitation period is suspended until that party attains the age of 18 years: ss 11(3) and 52 of the Limitation Act. Time commences to run thereafter.

28. By amendments to the Limitation Act, introduced by the Limitation Amendment (Child Abuse) Act 2016 (NSW), that commenced on 17 March 2016 (and which operate retrospectively), there is no limitation period applicable to proceedings where the action for damages relates to “personal injury to a person resulting from an act or omission that constitutes child abuse of the person…”: s 6A(1) of the Limitation Act. The background to this amendmentwas set out in Gersbach v Gersbach [2018] NSWSC 1685 at [9]-[13] and in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (‘GLJ’) at [29]-[33].

29. The second defendant, whilst accepting that sexual abuse of the kind alleged by the second plaintiff was within the terms of s 6A(1) and was therefore not subject to any limitation period (see [20](1) and (3), above), did not accept that any “squeezing” of the second plaintiff’s neck by Mr Hawkins was “serious physical abuse” or, to be clear, “connected abuse” within s 6A(2) of the Limitation Act. Thus, in relation to the second plaintiff’s claim for damages based upon that conduct, the second defendant relied upon the time bar provided by s 14(1) of the Limitation Act. However, as later explained, no limitation issue in fact arises because, during submissions, the second plaintiff abandoned any claim based upon Mr Hawkins “squeezing” his neck: see [285]ff, below.

Background facts

30. Many of the background facts are uncontroversial. I set out such facts in what follows, which reflect my findings across all claims.

31. To the extent that certain facts are contested, they largely concern or relate to the alleged abuse, whether the second defendant is vicariously liable for the acts of Mr Hawkins, and issues of damages. The contested facts are resolved where they arise in those situations.

The second plaintiff

32. The second plaintiff was born on 8 June 1978. He enrolled in and commenced at the school in Year 7 in 1991. He remained at the school until he completed Year 12 in 1996.

The first defendant

33. The Marist Brothers were founded in France in 1817 for the “education and Christian formation of young people, especially the least favoured”. They first came to Australia in 1872. In Australia, “the principal focus of the Marist ministry has been primary and secondary education, provided as part of the Australian Catholic school system”.

The second defendant

34. The Government Gazette records that the Diocese of Parramatta was created on 19 May 1986 “out of a geographical area previously forming part of the Archdiocese of Sydney…”. Although this Government Gazette was only admitted on the cross-claims, the creation of the Diocese (and, therefore, the second defendant) was not contested.

The school

35. The school is a Catholic school that has operated since late 1820. According to apparently “careful documentary research” it is the oldest Catholic school in Australia and is, reportedly, the second oldest Australian school of any type.

36. The school has a junior and senior campus. The senior campus is located in Westmead, NSW.

37. The relevant school Principals and the duration of their tenure were as follows:

1. Brother Nestor Littler: between at least 1979 and 1985.

2. Mr Terrence Mulligan: between 1986 and 1991.

3. Brother Michael Green: between 1992 and 1996.

38. The staff at the school consisted of “lay and church staff”. The second defendant’s submissions distinguished between what were described as “lay” teachers and those who were “Brothers”. This distinction reflected the fact that lay teaching staff were employees of the second defendant, whereas the Brothers were not. It will be necessary to return to discuss an aspect of the staffing “arrangements” of the school – notably, the appointment of school Principals – when addressing the cross-claim.

Mr Hawkins

39. Graeme Stuart Hawkins, who apparently went by the name Stuart Hawkins, was a teacher at the school from 28 January 1975 until his suspension on 14 September 1993.

40. Mr Hawkins was employed by the Catholic Education Office (‘CEO’), Diocese of Parramatta. The second defendant nonetheless accepted that Mr Hawkins “was its employee”.

41. Although there was some evidence suggesting that Mr Hawkins was trained as a mathematics teacher, his application for employment with the second defendant records that his tertiary education was in military studies. Notwithstanding, Mr Hawkins indicated in that application that he was applying for a secondary school teaching position involving subjects including English, geography, commerce and history.

42. Following his employment though, the evidence appears to suggest that Mr Hawkins was classified (or principally classified) as a mathematics teacher. In the 1985 school magazine, for instance, Mr Hawkins was depicted in a photograph as part of the “maths department”. However, the evidence more broadly demonstrates – and I am satisfied and find – that Mr Hawkins taught other subjects too: including commerce, technics, and history.

43. Mr Hawkins was additionally associated with canoeing. Canoeing was a sport offered to students, including through a canoe club. As I later explain, there was ultimately no contest about the “association” between the canoe club and Mr Hawkins. It was accepted (and I find) that the canoe club, and canoeing as a school activity, was run by Mr Hawkins: see [66]ff, below.

August 1993: an allegation is made about abuse perpetrated by Mr Hawkins against a student in 1980

44. In 1980, DC was a Year 7 student at the school. Mr Hawkins, who was his teacher, told him about the canoe club. DC subsequently joined it.

45. Towards the end of Year 7, DC and at least one other student were invited by Mr Hawkins to go “away with him the following weekend to go canoeing on Sydney Harbour and stay in a boat shed”. DC alleges that Mr Hawkins sexually abused him whilst away that weekend.

46. In about August 1993, DC told Brother Alexis Turton “what had happened with Mr Hawkins” on the trip. Brother Alexis was a Marist Brother who was the Provincial of the Marist Brothers at that time. DC subsequently reported what occurred to police in November 1993.

47. DC confirmed in his evidence that he provided Brother Alexis with “all details of what had happened. I gave him my belief that [Mr] Hawkins had been doing this to other boys as well, and that I was concerned because he was still teaching at the school…”. DC was not challenged about this evidence.

48. Brother Alexis, in his evidentiary statement dated 5 September 2024 (under the name Keith Turton), references a file note that he believes he wrote on 30 August 1993. The file note relates to a complaint made by an ex-student against Mr Hawkins that was received by him by telephone on that day. The file note itself was not tendered. I am satisfied that the file note referred to by Brother Alexis records the contact between him and DC, as well as the nature of the complaint against Mr Hawkins.

Further allegations against Mr Hawkins emerge

49. On 13 September 1993, a Year 12 student spoke with Michael Pate, who was a part-time student support officer at the school. The student reported that he had been sexually abused by Mr Hawkins. The allegation made was that Mr Hawkins “had on two occasions touched him on the genitals when the student was in Year 8”, and that this touching occurred in Mr Hawkins’ car “on the way to or from a canoe club outing”. The student also “claimed that this happened to other boys in the canoe club”.

50. Following that disclosure, Mr Pate spoke with the then Principal, Brother Green. The matter was subsequently escalated to the “Department of Community Services as it was then known and to the Marist Brothers and to the Catholic Schools Office”. I am satisfied that Mr Pate’s reference to the “Catholic Schools Office” is a reference to the CEO.

51. On 14 September 1993, Mr Hawkins was interviewed by Brother Green about the allegation. Brother Peter Corr, the then Deputy Principal, also attended. A file note of that interview records that Mr Hawkins “categorically denied” the allegations of sexual misconduct but did not, apparently, contest the “allegations of excessive drinking with students”. Mr Hawkins was directed to “take immediate leave”, collected his belongings, and was escorted from the school grounds.

52. Shortly after that initial disclosure to Mr Pate, other students came forward and disclosed further allegations of abuse involving Mr Hawkins to him. Mr Pate described those other disclosures as involving:

“…allegations of abuse that occurred prior to 1993 and during Canoe Club. There was no disclosure of alleged abuse that occurred at School and no disclosure of alleged abuse that had currently occurred at that time or shortly prior. The dates related to allegations mainly from the 1980s”.

53. The allegations relating to Mr Hawkin’s conduct were contained in an annexure to Mr Pate’s statement titled “Allegations of Improper Conduct by Graeme Stuart Hawkins” (‘the Hawkins improper conduct document’). I am satisfied that that document, which was admitted without objection, was prepared by Patricia Crennan from the CEO, most likely following the interview she had with Mr Hawkins on 24 September 1993 (see [58]ff, below).

The involvement of the CEO

54. On 13 September 1993, Ms Crennan, an area administrator with the CEO, was advised about “a complaint that had been made about [Mr] Hawkins”. She described “being brought into the school to deal with” that complaint.

55. Ms Crennan’s evidence was that she was contacted by Brother Green, relevantly in the following terms:

“Brother Michael Green informed me this morning that a Year 12 boy had disclosed to the School Counsellor on Friday that Mr Hawkins had on two occasions touched him on the genitals when the student was in Year 8.

The misconduct is alleged to have occurred in the teacher’s car on the way to or from a canoe club outing.

The student also claimed that this happened to other boys in the canoe club. He said that at particular times a certain boy would emerge as a favourite, would always sit in the front seat for example, and it was common knowledge that this boy would be receiving special attention”.

56. On 24 September 1993, Ms Crennan and another staff member from the CEO, Kevin Hazel, conducted an interview with Mr Hawkins. A union representative was also present during the interview as an observer.

57. During the interview, Ms Crennan “put the allegations” to Mr Hawkins. A handwritten summary of the interview was taken by Mr Hazel, and annexed to Ms Crennan’s statement. Ms Crennan’s evidence was that she considered the summary to accurately reflect what occurred and what was said during the interview with Mr Hawkins.

58. Ms Crennan also annexed the Hawkins improper conduct document to her statement: see [53], above. Her evidence was that she believed she drafted this document, but she accepted that “it could have been drafted by someone else that worked at the [CEO]”. She had no reason to think it was other than accurate. Given this evidence, her position at the time, and her role in interviewing Mr Hawkins to “deal with” the complaints against him, I am satisfied that Ms Crennan was the author of the document.

59. Mr Hawkins’ employment was terminated on 18 October 1993.

Police notification of the allegations against Mr Hawkins

60. There was some evidence that NSW police were immediately notified of the complaints made against Mr Hawkins. I am satisfied that police were reasonably promptly notified of the allegations by or on behalf of the school, but am unable to make a finding about precisely when that occurred (other than that the allegations were reported to the “Child Mistreatment Unit” on or around 24 September 1993, most likely by the CEO). I am also satisfied that, at about that time, the “school [was] to” alert the Department of Community Services and did so.

61. On 11 October 1993, Detective Robert Mulherin from the Child Mistreatment Unit (Major Crime Squad, North-West) was made aware of a complaint by Ms Crennan from the “Department of Catholic Education”. Part of that notification included the provision of the document headed “Allegations of Improper Conduct by Graeme Stuart Hawkins” (earlier referred to at [53] as ‘the Hawkins improper conduct document’). Detective Mulherin’s statement dated 20 February 1994 referred to a document with that title and having received that document from Ms Crennan, but the document itself was not annexed to his statement.

62. Detective Mulherin was shown a copy of the document with that title during his evidence. He was unable to confirm whether it was the document to which reference was made in his police statement. Notwithstanding, I am satisfied that the document that Detective Mulherin refers to is the Hawkins improper conduct document that was also attached to the evidentiary statements of Ms Crennan and Mr Pate.

63. Investigations undertaken by police determined that there were 14 students, two of whom were former students, who alleged that they had been sexually abused by Mr Hawkins between 1980 and 1993. Based upon the nature of the complaints made, police identified that there were approximately 125 offences allegedly committed by Mr Hawkins against the students.

64. In early December 1993, police executed a search warrant at Mr Hawkins’ residence. Mr Hawkins was not present at that time. His whereabouts were unknown, but he was thought to be “in country New South Wales”.

65. Mr Hawkins was located deceased on 15 December 1993, evidently from suicide.

“Canoeing” and related issues: introduction and overview

66. There are several issues concerning “canoeing” that require discussion and about which findings must be made. Those issues are: canoeing as a school sport; the canoe club; the activities of the canoe club; the association between the canoe club and the school; and Mr Hawkins’ involvement with the canoe club.

67. Resolving these issues somewhat contextualises the second defendant’s acceptance that, if the sexual abuse is found to have occurred, it breached its duty to the second plaintiff. Resolving these issues also informs consideration of the second plaintiff’s case that the second defendant was vicariously liable for the wrongdoing of Mr Hawkins, in addition to being directly liable to him.

68. A considerable body of evidence was adduced during the trial that was directed to these issues. The evidence was essentially from three sources – former students, including each plaintiff; former “staff” members, to a significantly lesser degree; and (limited) documentation. To the extent that the defendants adduced evidence from former staff members, that evidence by and large did not squarely, or in detail, address the “canoeing” issues.

69. Ultimately, there was little to no controversy about each of the “canoeing” issues identified. It is therefore convenient to summarise the findings and, thereafter, briefly explain why I have made them.

1. The school curriculum involved organised school sport on Thursday afternoons. As part of this, the school offered a range of sports to its students, including canoeing. Canoeing was held on the Parramatta River, and the school made available its canoes to students for that purpose: see [70]-[79], below.

2. Mr Hawkins was the teacher who was appointed to, and was responsible for, canoeing, when offered as a sport on Thursday afternoons: see [70]-[79], below.

3. There was a canoe club that went by the name “the Parramatta Marist High Canoe Club” or “the Parramatta Marist Canoe Club” from at least 1980 until 1993: see [80]-[85], below.

4. The activities of the canoe club during this time included canoeing (as an activity during the end of year school “activity week”); conducting training camps that were held on weekends and during school holidays; and weekend “outings”: see [86]-[94], below.

5. The canoe club was, in substance and in form, associated with and part of the school, and was accepted as such by the school: see [101]-[114], below.

6. Mr Hawkins “ran” the canoe club: see [115]-[124], below.

Canoeing as a Thursday afternoon school sport

70. I am satisfied and find that, in the period from at least 1980 to 1993, canoeing was offered as an organised school sport on Thursday afternoons. Such canoeing took place on the Parramatta River (which was a relatively short distance from the school), using canoes provided by the school.

71. I am also satisfied and find that Mr Hawkins was the teacher appointed to conduct and supervise canoeing, part of which involved him taking the canoes that were owned by and stored at the school from the school to the Parramatta River, and returning them at the end of the day.

72. Numerous former students gave evidence about canoeing as a school sport – in particular, that it was offered as a Thursday afternoon sport whilst they were there. None of them were cross-examined to the contrary. I will now refer to some of this evidence.

73. Gregory Pankhurst was a student at the school between 1981 (Year 7) and 1986 (Year 12). Mr Pankhurst recalled that canoeing “was part of school sports days in some years”. That is, irrespective of whether they were members of the canoe club, students “could choose canoeing as…[a] school sport”. Mr Pankhurst’s oral evidence was to the same effect – namely, that canoeing was offered as a school sport on Thursday afternoons “as an option and it was kind of a recruitment for the [c]anoe [c]lub as well…”. Mr Pankhurst’s evidence was that the only teacher responsible for and involved with Thursday afternoon canoeing was Mr Hawkins.

74. I was particularly impressed with Mr Pankhurst’s evidence and consider that he was well-placed to give evidence about the detail of canoeing and related topics. This impression partly emerged from the fact that he was a highly enthusiastic and committed canoeist who attained state and national titles whilst at school. He was also a disinterested witness in the sense that he was not subjected to any untoward conduct by Mr Hawkins during his time at the school.

75. JR was a student at the school between 1985 (Year 7) and 1988 (Year 10). When in Year 8, Mr Hawkins was JR’s mathematics teacher. JR’s evidence was that Mr Hawkins “told [him] that [he] could choose canoeing as a school sports activity”, which he did. He also confirmed that Thursday afternoon canoeing was supervised by Mr Hawkins on the Parramatta River “[w]here the weir is”. He recalled that Mr Hawkins was “in charge of the canoeing on a Thursday afternoon” and that there were no other teachers involved in that sport. JR used canoes “provided by the school. [He] saw those canoes stored on a trailer and on racks on the school grounds, next to the canoe club shed and the cadets shed”.

76. BW, who was a student at the school between 1990 (Year 7) and 1996 (Year 12), gave evidence that he was:

“…provided with a form by the school for the students to fill in what sports they would like to do on sports days and I chose canoeing. From then on, on sports days, I went to Parramatta Park with other students to paddle under the supervision of [Mr] Hawkins”.

77. BW confirmed this evidence during cross-examination.

78. To the extent that one or other of the former students could not “recall” or “remember” whether canoeing was a Thursday afternoon sport, I do not consider that that detracts in any way from the considerable body of evidence that canoeing was offered as a Thursday sport. It certainly does not amount to positive evidence that canoeing was not offered at that time.

79. Reference should be made to the evidence from the former “staff” of the school. Their evidence on this issue (indeed, on the canoeing issues generally) was somewhat mixed. Many – perhaps most – of these witnesses made no reference to when canoeing was held (or “canoeing issues” generally) in their evidentiary statements, nor were they asked questions about it. To the extent that one such witness – Simon Breen, who was a teacher at the school from about 1989 until 2019 – doubted whether canoeing was offered as a Thursday afternoon sport, I am satisfied that he is more likely than not mistaken in his “recall”, particularly given the body of evidence to the contrary.

The canoe club

80. I am satisfied and find that the school had a “canoe club” that existed from at least the early 1980s – most likely from around 1980 – until 1993, when Mr Hawkins’ employment was suspended and then terminated.

81. Although I am satisfied about the existence of the canoe club, the evidence about the name of the club varied. The evidence disclosed three names: the “Parramatta Marist Canoe Club”, the “Parramatta Marist High School Canoe Club”, and the “Parramatta Marist High Canoe Club”.

82. The club was described in the title of an article in the 1984 school magazine as the “Parramatta Marist Canoe Club”. Within the body of the article, however, the club itself is referred to as the “Parramatta Marist High Canoe Club”. T-shirts and “canoe club patch[es]” were also worn by school students that described the club as the “Parramatta Marist High School Canoe Club”.

83. Evidence from former students about the name of the club similarly varied. For example, RB was a student at the school between 1979 (Year 7) and 1984 (Year 12). RB joined the canoe club, which he called the “Parramatta Marist High Canoe Club”. Consistent with that description, RB’s evidence was that club members “wore t-shirts emblazoned with, had stickers stuck to…[their] kayaks containing, and results were published in the press, as either ‘Parramatta Marist High Canoe Club’ or ‘PMHCC’”.

80. By way of further example, Mr Pankhurst described joining “the school’s canoe club, the Parramatta Marist Canoe Club” in around 1981. When cross-examined, however, Mr Pankhurst’s evidence was that the name of the canoe club was “the Parramatta Marist High Canoe Club”.

81. Ultimately, no party submitted that the difference in the club’s name was material: there was only one canoe club.

The activities of the canoe club

86. Whilst the canoe club appeared to focus on training for competitive canoeing events (in particular, marathon canoeing events), it also catered for those students who were interested in recreational canoeing.

87. MC, who was a student at the school between 1980 (Year 7) and 1985 (Year 12), annexed to his statement dated 31 July 2023 an article about the “Parramatta Marist High Canoe Club” contained within the 1980 school magazine. The article described the aims and objectives of the club in these terms:

“The main aim of the club is recreation, which is followed with a view of entering interested parties in marathon events. The actual marathon races are not the prime importance of the club, rather the camping, training and comradeship are paramount…the races merely giving the team a chance to compete in healthy competition and gain some insight into how they ‘rate’ compared to juniors from other clubs. The results, however, are something we can be proud of”.

88. The article then provided some examples of the successes and victories of the club. The article also contained several photographs, one of which seemingly shows Mr Hawkins operating an outboard motor on a “tinnie”.

89. The participation of students from the school in such races, and the canoe club generally, were routinely acknowledged during school assemblies. For example, KS was a student at the school between 1983 (Year 7) and 1986 (Year 10). His statement is dated 17 March 2025. He attended a race in 1984 as part of the support crew with Mr Hawkins and another student. KS described the race being discussed at a school assembly, relevantly as follows:

“…I remember that on an assembly, it was mentioned that a boy from the school had participated in a race and won the race. The medal he won was shown in assembly. I recall the canoe club being acknowledged at school assemblies on other occasions”.

90. KS was not challenged about any of these matters during cross-examination.

91. Other students gave evidence to the same effect.

92. For example, Peter Mahoney was a student at the school between 1982 (Year 7) and 1988 (Year 12). Mr Mahoney’s evidence was that he recalled “the canoe club being mentioned [during assemblies] because of achievements in a race”. When cross-examined about these matters, Mr Mahoney’s evidence was that the person raising this was “mostly…the [P]rincipal”.

93. That was also the evidence from SA, who was a student at the school between 1988 (Year 7) and 1993 (Year 12). He indicated that the results of canoe club races were “announced during school assemblies” and that the announcement was made by “the Brothers, whoever held the assembly”.

94. The evidence also addressed other activities that were offered or undertaken by the canoe club, including the following.

95. First, as earlier noted, canoeing was part of Thursday afternoon school sport.

96. Secondly, canoeing was an activity during the end of year school “activity week”. This arrangement was confirmed by SA and Mr Mulligan (see, for instance, Mr Mullligan’s evidence that students could choose canoeing as “an end of year at school activity [or] as a day activity”).

97. Thirdly, training camps were held on weekends and during school holidays. This arrangement was confirmed by Mr Pankhurst.

98. Fourthly, the club conducted weekend “outings”. Mr Mahoney described that the canoe club “had outing[s] on weekends” and that he “saw students gathering for these trips at the school”. BW also gave evidence that the “school canoe club also held overnight camps, often starting on a Friday afternoon after school”, and that he attended around “a dozen school canoe club camps, most[ly] held at Windsor and Wisemans Ferry” but also, on one occasion, at Bega.

99. JR described being “invited by [Mr] Hawkins to attend a school canoe club camp on a weekend” and that he “ended up going to a number of such camps, including at Wisemans Ferry and on the Nepean River”.

100. Finally, RB described the canoe club in his oral evidence as a “[w]eekend/school holiday opportunity”. Some, but not all, former students gave evidence about where these camps were held: a number identified Wisemans Ferry (for example, and in addition to BW and JR, the second plaintiff and the third plaintiff) or on the Nepean River (for example, and in addition to JR, PW). The evidence did not, however, specify whether the locations identified, say, at Wisemans Ferry, were one and the same.

The association of the club with the school

101. During submissions, the second defendant accepted that the evidence demonstrated that the canoe club was officially associated with the school.

102. I am satisfied and find that the canoe club was officially associated with, and sanctioned by, the school.

103. The evidence from the former students consistently made the connection between the canoe club and the school. For example, RB described the “canoe club was just like every other sporting or extracurricular activity at the school, whether football, cricket, or cadets”. He also gave the following evidence about the canoe club and its connection to the school:

“8. The canoe was part of the school life and an extension of the school – it was promoted within the school just as every other extra-curricular activity was. It was part of school sport, was reported on and mentioned at assemblies, involved many students at the school, and was run by its teacher [Mr] Hawkins.

…

11. Early in my involvement with the club, when I decided to purchase my own kayak, I was encouraged to do so by [Mr] Hawkins, as many other members had, from the then Marist Brothers (Benedict Senior College) Auburn school. This further enforced (sic) in my, and my parent’s mind, that canoeing was a Marist’s schools supported activity.

12. I am certain there was not any instance of the school identifying the canoe club as an activity unrelated to the school, but many instances of the school integrating the canoe club within the school’s purview. Along with mentions at assemblies, the canoe club was the subject of articles in the school magazine and newsletters, and the equipment for the club was stored on the school grounds”.

104. When cross-examined in relation to paragraph eight of his evidentiary statement, RB was taken through this paragraph and was essentially invited to confirm its correctness – which he did. I raise this simply to emphasise that the second defendant did not seek to challenge the propositions raised within this paragraph by RB, nor did it adopt that approach when cross-examining any of the other former students who gave evidence to that same effect.

105. Thus, drawing upon RB’s evidence and, particularly, the evidence from former students, the canoe club’s association with and sanctioning by the school derives from the following matters.

106. First, the canoe club and its activities were consistently the subject of announcements made to the school, including by the school Principal during assemblies. The first plaintiff recalled two occasions when “all the members of the canoe club, including myself, were asked to stand up while other students remained seated and applauded us”.

107. By way of further example, Mr Mahoney recalled “the canoe club being mentioned [during assemblies] because of achievements in a race” and that the school had a newspaper that was issued “every two weeks [that] had the canoe club and other sports updates” in it.

108. Secondly, it should be remembered that the canoe club was interchangeably described as the “Parramatta Marist High Canoe Club”, the “Parramatta Marist Canoe Club”, or the “Parramatta Marist High School Canoe Club”, and was expressly referenced as such in school assemblies (I infer), magazines and literature. The club was the school’s club and was described and regarded as such by the school itself.

109. Thirdly, those types of magazines and literature, including the 1984 article referred to at [82], above, were described by MC as “typical of occasional articles that the school issued in its newsletters or pamphlets from time to time”. Mr Mahoney gave evidence that the school had a newspaper that was issued “every two weeks [that] had the canoe club and other sports updates”.

110. Fourthly, the school owned canoes for use by the students. Further, there were various sheds on the school grounds that were used to store the canoes and canoeing related equipment.

111. On this matter, for example, RB gave evidence about canoes being stored in a shed on the school grounds, that another shed was used to house a boat that Mr Hawkins used “during training, or generally, with the club”, and that part of another shed was used by Mr Hawkins “as the canoe club office”, from which he would “often conduct canoe club business from the shed, during and after school hours”. Attached to RB’s statement is an annotated aerial photograph showing the school layout at the time he attended, including the storage sheds and the canoe club office that he described.

112. Some of the former students, for instance, KS (a student at the school between 1983 (Year 7) and 1986 (Year 10)) and Martin Reyerink (a student at the school between 1980 (Year 7) and 1983 (Year 10)) described the location of the shed as near the school canteen or tuckshop. Mr Pankhurst described there being a canoe club “shed at the school, next to the school canteen, which was full of camping gear and equipment used in the course of racing and paddling trips”. His evidence was that the club also stored its canoes, trailers and safety boats “on school grounds”.

113. For completeness, it should also be noted that this evidence was consistent with that given by some former staff members. For example, Mr Gately’s evidence was that there “was a shed on the [s]chool premises where canoes were stored”. Mr Breen similarly recalled “there being a canoe shed” at the school but conceded that he never saw inside of it.

114. Fifthly, the teacher that ran the canoe club was Mr Hawkins – as I next explain.

The involvement of Mr Hawkins with the canoe club

115. The only teacher at the school referred to in evidence as having any association with the canoe club, or canoeing as a Thursday afternoon school sport, was Mr Hawkins.

116. The consistent theme in the evidence given by the former students (and each plaintiff) was that Mr Hawkins ran and was responsible for canoeing and the canoe club. I am satisfied and find that he did, from at least the early 1980s – most likely from around 1980 – to 1993. I am also satisfied and find that he was the only teacher with any association with, or responsibility for, canoeing or the canoe club.

117. My reasons for this finding are best illustrated by reference to some of the evidence given by the former students.

118. Mr Pankhurst described joining the canoe club in around 1981. His evidence was that Mr Hawkins “ran the canoe club”. When cross-examined, Mr Pankhurst agreed with the proposition put to him that Mr Hawkins “was running the club at the time you joined it” and that he was unaware of “any other members of staff at the school” who were part of the operation of the canoe club – albeit that, on “one or two occasions”, one of the Brothers attended and “helped out at a canoe race”. Mr Pankhurst also agreed with the proposition that the only person at the school involved in the running of the canoe club during his time at the school was Mr Hawkins.

119. Mr Mahoney gave evidence that Mr Hawkins “was the teacher for the school canoe club” and recalled “canoes being kept on the school grounds”, despite never joining the canoe club himself.

120. BW described Mr Hawkins as “the teacher who ran the school canoe club”.

121. ML remembered there being a canoe club that was run by Mr Hawkins, but did not give evidence that he ever joined the club.

122. The evidence from these former students was consistent with the way in which the school recognised Mr Hawkins’ role with the canoe club. For example, in the 1984 school magazine, Mr Hawkins’ role was described as:

“Home Room Teacher…Maths/Commerce/Technics, Canoe Club”.

123. There was no evidence explaining how or why Mr Hawkins came to be, in effect, responsible for the Thursday afternoon canoeing and the canoe club. There was some suggestion in the evidence that canoeing emerged as an offshoot from the school cadet unit, but the evidence remained unclear and I am unable to make a finding about this. There was also no evidence about the extent to which there was any oversight of Mr Hawkins’ canoeing activities or his conduct of the canoe club.

124. After Mr Hawkins’ employment was suspended, I accept and find that the canoe club ceased operating. Mr Pankhurst’s evidence was that “the club folded” after “Mr Hawkins was accused of sexual[ly] abusing children and he committed suicide”. BW similarly gave evidence that the canoe club stopped running when Mr Hawkins left the school in 1993.

Legal principles and introductory observations: the second plaintiff

125. The second plaintiff alleges that he was sexually and physically abused by Mr Hawkins. I have already explained why, notwithstanding the effluxion of time, the proceedings brought by the second plaintiff are maintainable so far as they relate to “child abuse”: see [26]ff, above. The corollary to this, however, is “the attendant reality that child sexual abuse claims may be commenced many years after the alleged abuse occurred”: Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407 at [20] (‘Willmot’).

126. Some introductory observations are in order.

127. Resolution of the second plaintiff’s claim – particularly, whether the sexual abuse on the canoe camp occurred – is not straightforward. Far from it. I will outline some of the difficulties that are presented.

128. Sometimes – not always – there are witnesses available to be called to directly corroborate aspects of an account. That is not this case. Three of the four individuals involved in or around (to varying degrees) the events the second plaintiff alleges occurred are dead. This leaves only the second plaintiff’s evidence.

129. Sometimes – not always – there are also witnesses available to be called to corroborate, less directly, aspects of an account or its sequelae. Here, with the exception of the second plaintiff’s wife (and, even then, only to a limited degree), no such witnesses were called.

130. Sometimes – not always – there is a disclosure or a report of the abuse to a third party, such as police, a friend, a family member, or a health practitioner consulted for treatment, that may provide some degree of corroboration of the account (the extent to which it does is obviously fact-sensitive). That is also not this case. The first disclosure made by the second plaintiff – to anyone – about the allegations was when the second plaintiff met with his solicitor shortly prior to commencing proceedings, in or around 2023. The second plaintiff has also never – at any time – sought any form of treatment for the alleged psychological or psychiatric injuries that he says has resulted from the abuse.

131. Given the above matters and what is alleged by the second plaintiff, together with its timing, it is important to emphasise the following five matters about the process required for determining his claim.

132. First, the process to determine facts ordinarily involves consideration of “contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31]. Where a significant period of time has elapsed between the alleged events and the giving of evidence, a court will, if possible, “place primary emphasis on the objective factual surrounding material and the inherent…probabilities, together with the documentation tendered in evidence”: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15 at [15]; (1999) 161 ALR 599.

133. Given what is alleged to have occurred and when, there is unsurprisingly no documentation that directly bears upon the events that the second plaintiff alleges occurred. In those circumstances, the objective factual surrounding material and the apparent logic, and inherent probabilities, of the events are the prominent considerations derived from these authorities.

134. Secondly, it is important to identify the standard of proof necessary to prove causes of action that accrued many years ago involving, as they do, conduct giving rise to a breach of the criminal law.

135. In civil proceedings, “the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities”: s 140(1) of the Evidence Act 1995 (NSW). In applying the civil standard of proof, the Court may take into account matters including those listed in s 140(2), one of which is “the gravity of the matters alleged” (s 140(2)(c)). These provisions are a statutory restatement of the principles in Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362; [1938] HCA 34; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171 (‘Neat Holdings’). In Neat Holdings at 171, it was said that “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”. Those principles apply to the present case – specifically, as it does, involving a serious allegation of non-consensual sexual abuse that occurred over 30 years ago – and I have approached the fact-finding process with these principles clearly in mind.

136. Thirdly, and partly overlapping with the second matter above, in “cases where there has been a passage of time between the events alleged to give rise to the claims and the commencement of proceedings”, there are “principles and techniques available to trial judges to deal with evidentiary imbalances”: Willmot at [29]-[30]. Those principles and techniques were summarised in Willmot at [30], as follows (internal citations omitted):

“Those principles and techniques have not changed because of the abolition of the limitation period or the decision in GLJ. What has changed is the legislative context, which carries the consequence that there are now likely to be more cases in which those principles and techniques will need to be deployed. For present purposes, it is sufficient to refer to five techniques. First, courts recognise that the degree of satisfaction required under the civil standard of proof may vary according to the gravity of the fact to be proved. Second, all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted. Third, a court is not bound to accept uncontradicted evidence and the “facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”. Fourth, courts are mindful that ordinary human experience exposes that human memory is “fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time”. And fifth, where a claim is based upon an interaction with a deceased person (or involving a deceased estate) the court will scrutinise the evidence very carefully”.

137. Fourthly, not all matters pull in one direction. Thus, the fact that there is delay in making a complaint is not, in and of itself, inconsistent with the credibility or reliability of the second plaintiff and his evidence. In a criminal context, it has been remarked that “…courts now well understand that victims of sexual assault all react differently in terms of when complaint is made, to whom it is made, the detail of the complaint, and how they behave subsequent to the assault…”: Ferguson v R [2024] NSWCCA 81 at [92]; see also s 293A of the Criminal Procedure Act 1986 (NSW). In my view, these remarks apply equally to civil proceedings. Consistent with this, as was observed in Willmot at [21], s 11A of the Limitation Act recognises (that is, “directly addresses”) the fact “that many victims of child sexual abuse do not disclose their abuse until many years later, often when they are well into adulthood and long after the previous limitation periods expired”.

137. Fifthly, as earlier noted, the onus of proof in respect of the matters alleged rests upon the second plaintiff (s 140(1) of the Evidence Act) as the “adversarial system requires a plaintiff to prove its case”: GLJ at [56].

Liability: the second plaintiff

Introduction

139. Towards the end of the trial, the second defendant narrowed the area of contest in the second plaintiff’s claim by making two limited (and contingent) concessions.

140. The first was that, if it were found that the sexual abuse occurred, the second defendant breached its duty of care. That is, that it was directly liable to the second plaintiff. To be clear, the second defendant, however, disputed that it was vicariously liable for the wrongdoing of Mr Hawkins.

141. The second was that “causation” was not in issue. That is, the second defendant accepted that, if it were found that the sexual abuse occurred, some loss and damage resulted. That said, the nature and extent of that loss remained significantly in issue.

142. Given the narrowing of the contest in this way, it is appropriate to move directly to resolving whether the second plaintiff has proven that Mr Hawkins physically and sexually abused him, as he has alleged. Once that broad issue is resolved, it will be necessary to return to, and expand upon, the second defendant’s concessions.

143. I will start with the second plaintiff’s account.

The second plaintiff’s account: the sexual abuse on the canoe camp in 1992

144. In 1992, the second plaintiff was in Year 8 at the school. One of his teachers was Mr Hawkins. The evidence did not explicitly address the subject that he taught the second plaintiff. Based upon some events that occurred later in the school year, however, it appears that Mr Hawkins taught the second plaintiff “computer class”.

145. The second plaintiff described that, during “the first half of the year during class, [Mr Hawkins] handed out a leaflet for the school canoe club and again promoted the club to the class”. His evidence was that the leaflet “identified a school canoe club camp that was to take place at Wisemans Ferry on a given date” and that Mr Hawkins spoke about “the school canoe club and encourag[ed] students to join”.

146. The second plaintiff described the leaflet as having “some handwriting on it”, a “picture of a canoe”, the “particular destination and a time” for the camp, and a space for “parents’ signatures at the bottom”. Mr Hawkins invited the second plaintiff to take that leaflet to his parents for them to look at and to give him permission to attend the camp. The second plaintiff gave the following evidence about this leaflet:

“[I have] spent my entire life since [Y]ear 8 thinking about what happened on that camp and how I found myself attending it, I still recall that leaflet”.

147. Having received that leaflet, the second plaintiff and a school friend, Lance Hanna, agreed to go to the camp. The second plaintiff took the leaflet home and “discussed going to the school camp with [his] parents, who permitted [him] to attend”. His evidence was that he returned the form to Mr Hawkins and gave him the money for the camp, which he described as either “ten or twenty bucks”, and that he joined the canoe club when he was in Year 8.

148. On the day the canoe camp was to commence, the second plaintiff’s father took him and Mr Hanna to Wisemans Ferry. The second plaintiff described this happening “a few weeks or a bit more after the leaflet was handed to [him] in class”. His evidence, at least initially, was also that he attended this canoe camp in around Easter 1992. It was suggested to him during cross-examination that it must have occurred “after August 1992”, to which the second plaintiff responded: “I’m not sure specifically what date it was. I can’t recall that”.

149. Mr Hawkins was “already there” when they arrived. He gave the boys and the second plaintiff’s father “an induction of the activities planned for the weekend”. The second plaintiff’s evidentiary statement said very little about the location of the canoe camp and its general layout. During oral evidence though, he provided a limited description of the layout and set-up that he observed when he arrived: Mr Hawkins had already pitched his tent; the “toilet facility” was behind them; and there were two canoes on a “tinny”, which was on a trailer and attached to Mr Hawkins’ car.

150. As it happens, the second plaintiff and Mr Hanna were the only students who attended the camp. There was no discussion about who else was to attend while the second plaintiff’s father was present. According to the second plaintiff, it was not until later that Mr Hawkins was asked who else was attending and he responded: “No, you’re the only two”.

151. The second plaintiff described the location as “a secluded space with public facilities” and that there were no others “using the area or present near” where they were to camp. The second plaintiff and Mr Hanna each brought their own tent.

152. The second plaintiff and Mr Hanna went canoeing and had something to eat upon their return to the camp site “around mid-afternoon”. The second plaintiff’s evidence was that Mr Hawkins commenced both smoking and consuming alcohol, and that he offered alcohol and cigarettes to them both. They both accepted them. The second plaintiff’s evidence was that he “probably drank [five] or [six] beers and was very drunk”.

153. After it became dark, the second plaintiff, Mr Hanna and Mr Hawkins had dinner, which the second plaintiff described as a “casserole…like, a stew sort of dinner that we had over the campfire”.

154. The second plaintiff then “went for a shower at the public shower block”. In his oral evidence, the second plaintiff described that the reason he went to shower was because he was affected by the alcohol: he “obviously became sick and that’s when [he] ended up in the shower block having to have a shower”. Mr Hanna did not accompany him, as he “was at the campfire still”. The second plaintiff described being sexually abused by Mr Hawkins whilst showering.

155. The second plaintiff’s evidence about what occurred was contained in his evidentiary statement, as follows:

“21. The shower facilities were a long row of showerheads without cubicles. I went in and stripped off. I started running the water when Hawkins walked in. He said something like ‘Aw, that’s cute’. He took his clothes off and came into the showers. I recall being shocked to see him in there with me with us both naked.

22. Hawkins grabbed what felt like a pressure point on my neck. He then grabbed my penis and started to fondle and rub my penis. He then tried to get me to place my hand on his penis and fondle and rub him also.

23. I tried to stop him but he kept hold of the pressure point on my neck. The pain went through my entire body. He rubbed his penis around my anus and then penetrated me. He was quite a big guy compared to me at the time. Somehow, I managed to get away from him after struggling and crying out. I got into one of the toilet cubicles with my clothes and put my clothes back on. I walked out and back to the campsite, where [Mr Hanna] was drunk and smoking.

24. My neck was quite painful and I had bruises on my neck the next day. I felt awful but I did not know what to say, so I did not say anything. Hawkins came back to the fire a bit later as if everything was normal. He offered us more beers. I sipped on a few more beers and smoked.

25. We sat around the campfire for a while before I said I was going to bed, but I didn’t sleep most of the night. I was still quite dizzy and questioning why it happened, and what would happen next. I was afraid it would happen again if I went to sleep. I stayed awake for the rest of the night”.

156. The second plaintiff said that Mr Hanna was “[s]till at the campfire smoking” when he returned from the shower after the alleged abuse. He did not say anything to Mr Hanna “about where [he had] been or what had happened”.

157. The second plaintiff’s evidence was that he told Mr Hanna that he “wanted to go home” the next morning and that Mr Hanna “said the same thing”. During cross-examination, however, he remarked that Mr Hanna “just wanted to keep drinking to be honest” and “wanted to keep drinking on the Sunday”.

158. Given what the second plaintiff has said, the alleged sexual abuse can only have occurred on a Saturday night. The second plaintiff’s father collected him and Mr Hanna “sometime in the mid-afternoon on Sunday. The second plaintiff “did not tell…[his] father or anyone about what happened to [him]…by [Mr] Hawkins at the canoe camp”.

159. The second plaintiff also did not report what occurred at the time. His evidence was that he “didn’t say anything to anyone. The first people I told…[was] like Sharon in the team, and then I told my wife. That’s all I’ve told”. The reference to “Sharon” is a reference to his solicitor.

The sexual abuse on the canoe camp: resolution

Introduction

160. The second plaintiff submitted that the Court should accept his evidence and find that he was sexually abused by Mr Hawkins whilst on a canoe camp at Wisemans Ferry in or around Easter 1992. The second plaintiff’s essential argument was that aspects of his account were corroborated, that tendency reasoning lent considerable support to his evidence about the abuse and the manner in which it occurred, and that his overall account itself was neither inherently implausible nor, in any material respect, contradictory. The second plaintiff thus submitted that the Court should be satisfied, on balance, that the abuse described by him in his evidence occurred, and find that it did.

161. The second defendant submitted to the contrary, and essentially advanced two arguments.

162. The first argument was that the Court should be unpersuaded that the second plaintiff attended a canoe camp with Mr Hawkins “sometime during 1992” as he alleged. The second defendant argued that doubt attaches to his account given his uncertainty as to the exact timing of the camp and, by extension, the related sexual assault.

163. The second argument was that the Court should be unpersuaded that the second plaintiff was sexually abused as alleged. The second defendant argued that the second plaintiff’s account of the sexual abuse was “inconsistent with other instances of abuse, said to have been suffered by other students…whilst on canoe or other Hawkins directed camps”.

164. The second defendant’s overarching argument was that the second plaintiff was not “a reliable witness” and that his account should not be accepted “absent independent and corroborative evidence”. The second defendant identified a host of instances that were argued to justify the finding that it sought. Given the number of matters raised, it is necessary to defer consideration of some of them for organisational purposes when dealing with the second plaintiff’s account. I have nevertheless had regard to such matters here. Further, given what were argued to be “evidentiary imbalances”, the second defendant called in aid some of the “techniques and principles” that were relevant to assessing whether the second plaintiff had proven his case (see [132]-[136], above).

The sexual abuse: discussion and consideration

165. The second plaintiff’s account essentially contains, and can be broken down into, three parts: (i) the events leading to the camp; (ii) the camp itself; and (iii) the sexual abuse.

166. It is convenient to approach and assess the second plaintiff’s account in this way because, putting to one side the contention that the second plaintiff and his evidence is unreliable, the second defendant’s arguments focused upon confined aspects of that account: the second part (viz., the timing of the camp) and the third part (viz., whether the second plaintiff was sexually abused, given the abuse as alleged was argued to be at odds with the type of sexual offending perpetrated by Mr Hawkins upon other school students whilst attending canoe club activities).

167. Consistent with this approach, and as emphasised during submissions by Mr Sheldon SC, the cross-examination of the second plaintiff only embarked upon a targeted challenge to his account.

The events leading to the camp at Wisemans Ferry

168. The first part of the second plaintiff’s account relates to the events leading to the camp at Wisemans Ferry. The second plaintiff’s evidence about the events leading to the camp is set out earlier: see [145]-[147], above.

169. The second plaintiff’s evidence did not, at least explicitly, identify the length of time involved in the canoe camp, but it is clear from his overall account that it took place over the course of a weekend.

170. There is little doubt, as I have found, that Mr Hawkins conducted “camps”, including canoe camps and weekend “outings”, whilst he was a teacher at the school (see [98], above). The second defendant did not submit or suggest to the contrary. The evidence from former students was that the canoe club, through Mr Hawkins, routinely conducted training camps and canoe club outings on weekends during their time at the school. That evidence, which I accept, included evidence from Mr Pankhurst that canoe club training camps were “run on weekends”; from MC that canoe club activities were held “on weekends and overnight”; from Mr Mahoney that the canoe club “had outing[s] on weekends” and that he observed “students gathering for these trips at the school”; and from BW that the “school canoe club…held overnight camps, often starting on a Friday afternoon after school” and that he attended around “a dozen school canoe club camps, most[ly] held at Windsor and Wisemans Ferry” (albeit that this ceased in around 1993 when Mr Hawkins left the school).

171. There is other evidence that I consider firmly supports this finding that is contained within the Hawkins improper conduct document. As outlined previously, that document records the complaints made by students following their initial disclosure to Mr Pate (see [52]-[53], above). It also mentions the following about “canoe trips” and “camping trips” conducted by Mr Hawkins:

1. Allegation 2: the complaint from the student included that he accompanied Mr Hawkins “on canoe trips to Wisemans Ferry on a regular basis during 1989 and 1990, when he [was] in Years 8 and 9. These trips were organised as frequently as every fortnight”.

2. Allegation 3: the complaint from the student included that he “accompanied Mr Hawkins on canoe trips on a regular basis [between] 1988 [and] 1990, when he was in Years 7, 8 and 9”.

3. Allegation 4: the complaint from the student included that he “accompanied Mr Hawkins on canoe trips on a regular basis [between] 1989 [and] 1990, when he was in Years 8 and 9”.

4. Allegation 5: the complaint from the student included that he “accompanied Mr Hawkins on canoe trips on a frequent basis when he was in Years 7 and 8” – which, given the student was then in Year 11, refers to these trips occurring between 1989 and 1990.

5. Allegation 6: the complaint from the student included that he “frequently accompanied Mr Hawkins on canoe trips and other camping trips on weekends and in school holidays since he was in Year 7” which, given the student was then in Year 10, refers to these trips occurring between 1990 and 1993.

6. Allegation 7: the complaint from the student included that he “accompanied Mr Hawkins on canoe trips and other camping trips since he was in Year 7” – which, given the student was then in Year 9, refers to these trips occurring between 1991 and 1993.

172. The evidence that supports the finding I have made about Mr Hawkins organising and conducting canoe club camps also supports the further finding which I make: namely, that they were usually held at Windsor or Wisemans Ferry and, on some occasions, on the South Coast of NSW.

173. The second plaintiff’s case (and his evidence) was that the canoe camp he attended was merely the occurrence of one such weekend outing to Wisemans Ferry that was organised and conducted by Mr Hawkins during his time at the school. He argued, as has been noted, that his attendance at this camp was “corroborated”. It is necessary to explain what this means in this situation, and whether, as argued, there was indeed corroboration.

174. Here, as mentioned in [148]-[153], above, three persons were involved in the second plaintiff’s account: Mr Hanna, Mr Hawkins, and the second plaintiff’s father (albeit their “involvement” varied). Each of them, I am satisfied and find, are deceased: Mr Hawkins died in December 1993 (see [64]-[65], above); Mr Hanna died at an unknown time (it was suggested to the second plaintiff during cross-examination that Mr Hanna had passed away “about 10 years ago or so”, but he did not know); and the second plaintiff’s father died “about 12 years ago”. Thus, direct corroboration of any aspect of the three parts of the second plaintiff’s account is not available. No party suggested that there were any documents available to corroborate any part of the second plaintiff’s overall account, as I have earlier noted: see [133], above.

175. The second plaintiff’s submissions did not expressly identify in what ways the second plaintiff’s account was corroborated. Implicitly though, the submission invites the drawing of a further inference from the findings that I have made in [170] and [172], above. The inference sought was essentially to the effect that, based upon the earlier occurrences and the location of those canoe club camps and outings, it should be inferred that Mr Hawkins organised and conducted such a camp, as the second plaintiff indicated. Put another way, given Mr Hawkins “held” many weekend outings during the course of a given year or years (under the auspices of the canoe club), it should be inferred that he organised one on the occasion that the second plaintiff gave evidence about.

176. The second defendant’s submissions did not address this aspect of the second plaintiff’s case – possibly because the occurrence of the canoe club camps and weekend outings and their frequency was considered beyond controversy, which I consider it to be.

177. In my view, the evidence, which I have accepted, is available to establish that Mr Hawkins organised and conducted such camps as a matter of practice. The operative principle, which relates to usual or general practice, was described in Connor v Blacktown District Hospital [1971] 1 NSWLR 713, 721:

“…evidence of a relevant practice may be given by a person who, on a sufficient number of occasions and over a sufficient period, has regularly and uniformly performed acts, or has observed the regular and uniform performance of acts by others, under the same circumstances and upon the same occasions, so as to make it appear probable in the minds of reasonable men that, given the same circumstances and occasions, the like acts will again be performed. Such evidence, if accepted by the tribunal of fact, will enable it to draw the inference that such acts were performed by that person or those others, as the case may be, where the same occasion and circumstances for their performance have subsequently recurred at a point of time connected sufficiently closely with the continuity of acts related in the evidence”.

178. It is, of course, important to emphasise a number of matters deriving from this passage.

179. First, evidence of a practice informs and is “relevant as bearing on the probability of a particular fact in issue”: Phelan v Melbourne Health [2019] VSCA 205 at [83]; SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132; (2017) 345 ALR 633 at [150]. Here, the “particular fact” is Mr Hawkins holding a canoe club camp at Wisemans Ferry.

180. Secondly, such evidence may be given by those who observed the act or thing done. That is the case here: it is the evidence of the former students who attended those camps that provides the basis for the inference to be drawn.

181. Thirdly, the weight to be attached to such evidence is necessarily case and fact specific. The present evidence does not require consideration about, or discussion of, the possible limitations of evidence of this kind in instances relating to whether certain words were used: see Morris v Hanley (2003) 173 FLR 83; [2003] NSWSC 42 at [70].

Supervision of and access to the woodwork room

658. The third plaintiff’s account involves Mr Hawkins perpetrating a number of sexual attacks upon him during school hours. Some were described as having occurred “at nighttime” or at “night”, and the third plaintiff could not remember whether others occurred during the day or night. This is the context to what follows.

659. Two related “supervision” issues arise. The first relates to why Mr Hawkins – rather than his actual teacher – was allegedly supervising the third plaintiff. The second relates to how it came to be that the third plaintiff and Mr Hawkins were together in the woodwork room – particularly at nighttime.

660. A somewhat unusual feature of the third plaintiff’s account is that, notwithstanding that Mr Gately was his Year 12 woodwork teacher, and that Mr Hawkins was not (nor trained to teach and thus supervise Year 12 students), Mr Hawkins, in fact somehow opened or somehow managed to be in the woodwork room and began to “supervise” the third plaintiff and, on occasions, sexually abuse him.

661. The cross-examination of Mr Gately was largely to the effect that it was possible that Mr Hawkins had the access code to the keypad lock on the door of the woodwork room and, through this means, Mr Hawkins – consistent with what the third plaintiff suggested – came to “supervise” the third plaintiff and the other students. At least one difficulty with that “theory” is that it was Mr Gately who was the Year 12 woodwork teacher, and it was only him who was qualified to supervise them.

662. If that were the only “issue” in relation to the third plaintiff’s account, it may have been possible to resolve the doubt that attaches to it favourably to him. But it is not the only “issue”. Other issues arise raising questions about the third plaintiff’s reliability and account more generally. Further, in relation to those attacks that allegedly occurred at nighttime, more significant questions arise – as I will explain.

663. The third plaintiff’s argument in connection with the nighttime attacks was essentially the same submission advanced for those that allegedly occurred during the daytime – namely, that Mr Hawkins had the “means to access the woodwork room whenever he wanted it”. In my view, whilst that is theoretically possible, it raises a number of questions that, respectfully, remain unanswered: why did Mr Hawkins apparently open the woodwork room? How did the third plaintiff know that he would do so and turn up? If the third plaintiff needed to work after usual school hours, why would he not raise that with his actual teacher and the department head, Mr Gately – at a minimum, to make sure the woodwork room would be kept open after school?

664. Mr Gately’s evidence (which, I emphasise, I have accepted) was that the woodwork room was only opened until 4:00pm by him and that, given his other commitments, he did not stay beyond that time. To be clear, his evidence was that he never returned to the school once his commitments had cleared to “re-open” the woodwork room. Further, as earlier noted, Mr Gately’s evidence was that, if he opened the woodwork room, then he “stayed in the woodwork room the whole time”: see [604], above.

665. It was not suggested to Mr Gately during his cross-examination, by way of example, that, on any occasion, Mr Hawkins simply wandered in and began to assist in the supervision of students or, say, agreed with Mr Gately to keeping the woodwork room open after Mr Gately left.

666. The third plaintiff’s case was that, notwithstanding Mr Gately's evidence, not only did Mr Hawkins "open up” the woodwork room after school hours (presumably without Mr Gately knowing) but without knowing that the room would be open, the third plaintiff came to use it. Quite how that came to be was not explained, at least in a way that I am prepared to accept.

667. The matters I have raised cause me to have considerable doubt and significant misgivings about the third plaintiff’s account relating to these alleged instances of abuse. It conflicts with the evidence from Mr Gately, which I have accepted and, independently of that evidence, I consider the account to be inherently improbable.

The hospital attendances and the alleged disclosure of abuse

668. There are a series of overlapping and interconnected issues about “disclosure” – or, as the case may be, non-disclosure – of “abuse”. I will, in what follows, introduce and outline those issues before returning to address the respective arguments in some more detail.

669. The third plaintiff gave an account to the effect that he told his “mum about the sexual abuse by…[Mr] Hawkins” in 1997 and that, when he did, she “confronted Brother Green about the abuse” allegedly perpetrated upon him by Mr Hawkins. His basic argument was that this disclosure provided significant corroborative support for his account as did, albeit to a lesser degree, aspects of what was disclosed when he attended Prince of Wales Hospital in 2000.

670. The second defendant argued for different findings, submitting there was no relevant disclosure in 1997 – there was only a disclosure during his attendance at Prince of Wales Hospital in 2000, about different abuse that allegedly occurred at a different time to what was claimed in these proceedings – and that it was simply not possible that the third plaintiff’s mother had a “confrontation” with Brother Green in 1997 because he left the school at the end of 1996. It essentially submits that the evidence about, and arising out of, those attendances is destructive of his account, and to the reliability of the third plaintiff and his evidence.

671. Having provided that brief outline of the issues raised, I now turn to deal with them. It is convenient to start with the content of the Prince of Wales Hospital records, and to first set out the key parts of these records relied upon by the second defendant.

672. The third plaintiff was admitted to the Prince of Wales psychiatric unit on 28 August 1997 and discharged on 16 September 1997. The records relating to the third plaintiff’s admission at that time were in evidence. On 13 December 2000, the third plaintiff attended the Prince of Wales Hospital due to a deterioration in his mental health but was not admitted on that occasion. The records relating to the third plaintiff’s presentation at that time were also in evidence.

673. A discharge summary, relating to the third plaintiff’s admission to the Prince of Wales Hospital in 1997, relevantly recorded the third plaintiff as having been diagnosed with major depression, gambling addiction and obsessive and dependent personality traits, and that the third plaintiff presented with suicidal ideation following his significant accumulation of debt and the realisation that his car was at risk of repossession. Additionally, the following history of psychiatric symptoms was recorded:

“The gambling had been a problem since 1993. There was a one year history of depressed mood, worse in the past two weeks. This was associated with insomnia, decreased appetite and poor energy and concentration. There was also a history of anxiety symptoms relating to food, with the [third plaintiff] being afraid to eat any food he had not seen prepared. This dated back to an incident several years ago in which his drink was apparently “spiked” with LSD, at a party, causing an extremely frightening experience”.

674. The clinical notes at admission related the third plaintiff’s “emotional state” to “financial/gambling problems”. The following was also noted:

“normal schooling to year 12, Marist Bros, Parramatta 1993 – pt claims he was at a party and someone “must have slipped LSD or something in my drink” – “I freaked out”

since then – pt very anxious + paranoid – won’t touch food, if he thinks there may be substances added to it → waits 1 hr after drinking to “see if anything happens”.

Gambling probs started after Year 12 – “schoolie week” in Queensland – won $800 at Casino. Failed HSC – because of “freak out”– LSD.

Next year – [third plaintiff] was stealing $400 a day to support gambling habit – from newsagency he was working at…”.

675. Thus, neither on admission, nor elsewhere in the clinical notes, is there a record of the third plaintiff disclosing any alleged abuse (as the third plaintiff accepted). Further, in connection with what was reported by the third plaintiff, it was that his schooling was described as normal and that his poor academic performance was related to the effect of the “drink spiking” incident.

676. The third plaintiff, it should be noted, did not draw attention to any entries in the clinical records, nor suggest that anything within them qualified or negated those entries relied upon by the second defendant.

677. The second defendant accepted that it is appropriate to carefully assess the content of the histories contained in the clinical records to determine their reliability and usefulness, consistent with decisions such as Container Terminals at [20] and Mason at [2]. The second defendant emphasised, however, that these records do not suffer from any self-evident limitations or any limitations of the kind referred to in those cases – for a number of reasons, including their detail and the particular context.

678. I accept that submission. The records cover an extended period of time when the third plaintiff was admitted to hospital (28 August 1997 – 16 September 1997) arising out of his “mental health” issues, yet none of the records from the various practitioners that the third plaintiff consulted during that admission contain any history – at all – of any alleged abuse. It cannot be said, given the reason for his admission, that its purpose would not necessarily have elicited a disclosure of that kind. Nor, in my view, can it be said that the records impress as being cursory, giving rise to the possibility that a potential disclosure may have been missed or not recorded. On the contrary, they impress as being detailed and thorough and, importantly, accurate. Nor, finally, can it be said that there may be an explanation for any apparent “non-disclosure” – for example, embarrassment or shame: such an issue does not arise simply because the third plaintiff did not suggest he held such concerns (in part reflected in his suggestion that he told his mother about “abuse”). Independently of this, the nature and extent of his disclosures do not necessarily provide a basis to infer that he did, in my view.

679. I am, therefore, satisfied and find, as the second defendant submitted, that the clinical records from the third plaintiff’s admission to Prince of Wales psychiatric unit in 1997 are an accurate record of what he disclosed at that time – and, to be clear, I am satisfied and find that the third plaintiff did not make any disclosure of sexual abuse by Mr Hawkins at all.

680. The third plaintiff also presented to the Prince of Wales Hospital on 13 December 2000 due to a deterioration in his mental health. Following his presentation, a “psychiatric clinical record” was completed by Dr Richard Perkins. The history covered numerous topics, including: “history of presenting episode”, “past psychiatric history”, “family history”, “family/personal history” and “current social circumstances”. Under the latter topic was a further category titled “history of physical/emotional/sexual violence”.

681. In the course of taking the third plaintiff’s “family/personal history”, the following was recorded:

“No physical abuse or sexual abuse at home.

Sexually assaulted (raped) by a schoolteacher at a canoe camp – age 15.

Never told anyone” (underlining in original).

682. Similarly, within the category ‘history of physical/emotional/sexual violence’, the following was recorded: “raped by schoolteacher age 15” (underlining in original).

683. It is convenient to refer now to the third plaintiff’s evidence about that disclosure and entry in the clinical records. When cross-examined, the third plaintiff disavowed any suggestion that he was sexually abused on a canoe camp and, to be clear, placed no reliance upon those events in these proceedings (there is, thus, no question of the case being litigated on a different factual basis to the pleadings).

684. When cross-examined further by Mr Sheller SC about that particular entry, the third plaintiff gave the following evidence:

“Q. Do you have a recollection at the time of this admission in 2000, saying something to a doctor at the Prince of Wales Hospital about sexual abuse?

A. It's possible, why it would be there.

Q. For whatever reason, the person [who has] written this note has referred to a canoe camp when you were 15

A. I possibly could have spoken about that.

Q. Do you deny saying to someone at the hospital that you were sexually abused by a school teacher at a canoe camp when [you were] 15?

A. I wouldn't deny that I didn't tell someone about the sexual abuse, but I wouldn't say especially with the day - sorry, the age and connection to the canoe camp, unless it was not done correctly, but no.

Q. It seems, do you agree, [the third plaintiff], that in this setting at the hospital that you were able to communicate to a doctor or some other staff member something about sexual abuse. Do you agree?

A. Yes.

Q. It appears at least from this document that the something you communicated did not include any mention of assaults at the school.

A. Sorry, could you say that again. I didn't understand--

Q. It seems to be the case from this record that during this attendance at Prince of Wales in 2000 you did not mention anything about a sexual assault which happened on school grounds?

A. Yes, I would agree with you on that.

Q. Is there anything you can offer by way of explanation as to why on this occasion you would not have told the person you were speaking to at Prince of Wales about sexual abuse suffered on the grounds of the school?

A. No”.

685. I am satisfied and find that, as the second defendant submitted, the third plaintiff did not disclose any abuse of the kind that he alleges occurred in these proceedings and, further, I am satisfied and find that what he did disclose was the account referred to in [681]-[682], above.

686. The parties made several submissions about the materiality of this evidence. Presently, I will address their significance in the context of the third plaintiff's suggestion that he made a disclosure to his mother in 1997, and the competing arguments advanced by the parties about that issue.

687. The third plaintiff submitted that his account of having disclosed being abused by Mr Hawkins to his mother in 1997 should be accepted, given it was argued to be supported by her evidence, and that that disclosure significantly corroborated his claim that he was subjected to abuse by Mr Hawkins.

688. The second defendant contested that there was any such disclosure. It argued that no such disclosure was made during his admission in 1997 – as I have found – a fact that tended to significantly undercut the prospect that the third plaintiff made the disclosure, as he alleged he did. As I will explain in what follows, I accept the second defendant’s submissions.

689. The second defendant also submitted that, in all probability, any disclosure about sexual abuse – putting to one side the content of what was disclosed, which raises separate issues and is addressed later: see [695]ff, below – occurred in 2000 and not in 1997. That submission was essentially anchored in what the clinical records from the Prince of Wales Hospital recorded or did not record at those times.

690. The second defendant next submitted that, to the extent that the third plaintiff’s mother sought to support his evidence by indicating that there was a disclosure of abuse made to her in 1997, that evidence should not be accepted because: (a) it is contradicted by the medical records; (b) her evidence, which linked her making of a complaint to Dr Green at that time, was wrong and was conceded to be wrong; and (c) her evidence generally was hesitant and likely to be unreliable. I accept each of these submissions.

691. I have already dealt with the content of the medical records and I am satisfied that they accurately record what was disclosed at that time and, importantly, what was not disclosed. My findings in connection with the clinical records from the third plaintiff’s admission to Prince of Wales Hospital, significantly undercuts the probabilities of the accuracy of his suggested "disclosure" to his mother at that time, and favour, as the second defendant submitted, any disclosure being made in 2000 and not in 1997. I deal with the second and third aspects of the second defendant’s submissions about the third plaintiff’s mother’s evidence in what follows.

692. To recap: the third plaintiff, in his evidentiary statement, stated that he told his “mum about the sexual abuse by…[Mr] Hawkins”. The evidentiary statement did not, however, identify the terms of what was disclosed by him to his mother. The third plaintiff’s mother, Julie Luckman, in her 2010 statutory declaration, states that she met with the third plaintiff’s doctors “in about 1997” and that, during “the meeting with the doctors”, she found out that the third plaintiff “had also been molested by his teacher while attending Marist Brothers Westmead”. She also stated that she left the hospital and:

“…went straight to Marist Bros Westmead and confronted the Principal Brother [Green]. I was should (sic) at his response ‘Sorry we cannot do anything as Stuart Hawkins is dead he took his own life’”.

693. To recap further: the third plaintiff thus contended that the disclosure that he made to his mother at that time, and the steps that she subsequently took to confront Brother Green about what she understood had occurred, provided significant corroboration to his account.

694. Ms Luckman’s evidence was, I consider, to a degree unreliable. For example, part of her evidence was that, following the disclosure said to have been made to her at this time by the third plaintiff (or, as she said in her statutory declaration, from “the doctors” with whom she had a meeting), she went to the school “and confronted the Principal”, Brother Green. Brother Green, I have earlier found, left the school at the end of 1996, as the third plaintiff accepted during submissions. Thus, at a minimum, she was mistaken in this respect. In my view, the more likely explanation, particularly given the finding that I have made about what was disclosed in 2000, is that she is mistaken as to the timing and that any disclosure made by “the doctors” was made at that time; that is, this “information” – the precise terms of which was not covered in her evidence – was conveyed to her in 2000, and not in 1997. I add the following. My assessment of Ms Luckman and her evidence was that she was somewhat hesitant in her recollection of these events. That is not intended as a criticism, but more likely reflects the fact that she was attempting to recall and give evidence about matters that – allegedly – occurred 25 or more years ago.

695. I return now to the further arguments about the disclosure and entry in the clinical records of the Prince of Wales Hospital in 2000: the second defendant emphasised the distinctly different account contained in those records of the abuse and when it is alleged to have occurred – in short, on a canoe camp when the third plaintiff was aged 15. Its submission, which I accept, was that this was yet another instance of inconsistency in the third plaintiff’s account – and a significant confounder to it – that further demonstrated unreliability.

696. The third plaintiff submitted that any criticism of him, based upon this history, was “ill founded”, although precisely why that was said to be so was not altogether clear. It appears to derive from the suggestion that, contrary to what the second defendant submitted, this history of the sexual abuse “at a canoe camp” when the third plaintiff was aged 15 was somehow supportive of the third plaintiff’s account: it was submitted to be, in fact, a “substantially corroborative piece of evidence…at an early time”.

693. I do not accept this submission. I do not regard it as corroborative in the way suggested, or at all. It is completely different. The third plaintiff accepted that he may have provided that history, but did not seek to explain why he gave such an account when cross-examined about it, as set out above, nor why he failed to provide an account of the abuse allegedly perpetrated whilst in Year 12 at school. There was no re-examination of the third plaintiff in connection with this issue.

694. Again, perhaps at risk of restating the obvious, this is not a simple question of giving the benefit of the doubt to a person who has allegedly been subjected to a sexual abuse being in error on matters of small detail (as to which see [194], above), but an instance of a person advancing a categorically different account, and being unable to provide any explanation as to why that occurred. In this last respect it should be observed that, in the course of his evidence, Dr Michael Diamond, the third plaintiff’s qualified psychiatrist, was invited to provide a possible explanation for the account but was unable to provide any: his evidence was that he did not “know what to make of that”.

Other instances of unreliability in the third plaintiff’s evidence

699. The second defendant submitted that the Court should approach the third plaintiff’s evidence with considerable caution given he has a substantial record of “general dishonesty and deception”, including that he had been charged, and had pleaded guilty to, 75 offences relating to larceny and fraud; had stolen between $30,000.00 and $40,000.00 from one of his previous employers over an extended period; that he would steal property of others by “watch[ing] for people to leave their table to dance or to go to the toilets” and, having taken their possessions, would then sell them; and that he stole his then girlfriend’s mother’s wedding ring. These matters do not reflect well on the third plaintiff, and he did not seek to argue to the contrary. Nevertheless, I prefer to base my assessment of the third plaintiff, and his evidence, principally on the matters referred to elsewhere.

700. The second defendant also argued that the setting for the offending – at least that said to have occurred in the woodwork storage area – tended to reinforce the inherent implausibility of those acts occurring and, by extension, significantly undercuts his account more generally. There is certainly cause for careful consideration and a degree of hesitation: in relation to the alleged offending that occurred in that area, as Mr Gately said, the rooms themselves were small and cluttered and, on the third plaintiff’s account, the door to the area was not closed when the attacks allegedly occurred, thereby carrying with it the distinct possibility of detection. That said, I am mindful of the fact that other instances of sexual abuse were allegedly perpetrated upon school students by Mr Hawkins in or around the canoe club shed, possibly suggesting that he may have been somewhat brazen in what he is alleged to have done. In the end, I am not persuaded that this particular argument about “inherent implausibility” has significance, as was argued by the second defendant.

701. Finally, the second defendant submitted that, by way of illustration, at least one of the responses that the third plaintiff made to the sexual assaults allegedly perpetrated upon him by Mr Hawkins (essentially, that he felt “comfortable” in Mr Hawkins presence – notwithstanding what had occurred as set out in [17] of his evidentiary statement) was outside the range of suggested responses that, at least from a psychiatric perspective, might be expected. The second defendant, in this respect, called some evidence from the consultant psychiatrist qualified, Dr Rosalie Wilcox, to the effect that the third plaintiff’s description of his behaviour was somewhat “bizarre”. In the end, although I was impressed by Dr Wilcox’s evidence, I do not consider that this matter materially assists in my assessment of the reliability of the third plaintiff and his evidence.

702. Standing back and assessing the above, I will now focus on two matters that I regard as prominent.

703. The third plaintiff claimed that he reported what had allegedly occurred to Brother Luke on two occasions who – essentially – assured the third plaintiff that he would “fix it”. I have not accepted the third plaintiff’s evidence on this topic and, to be clear, do not accept that he relevantly reported anything at all to Brother Luke or any other teacher. Separately, I have considerable reservations about the veracity of the third plaintiff’s evidence generally in connection with this topic, as I have earlier explained.

704. The third plaintiff also alleged that, at a minimum, he was sexually assaulted by Mr Hawkins at nighttime on seven occasions, being the eleventh to seventeenth sexual assaults. However, given the third plaintiff was unable to describe whether the sixth to tenth sexual assaults occurred during the daytime or nighttime, it is at least possible that up to twelve of the alleged seventeen sexual assaults happened at nighttime. This account raises serious questions – of which most, if not all, were not answered – about how those assaults could have come about, particularly given I have accepted the unchallenged evidence from Mr Gately that explained how the woodwork classroom was opened after school, and what occurred when it was.

705. I will briefly illustrate some of the serious questions raised about these alleged nighttime attacks.

706. Putting to one side for a moment Mr Gately’s evidence, the third plaintiff’s account is that, despite Mr Hawkins not being his woodwork teacher, despite Mr Hawkins not being qualified to teach Year 12 woodwork, and despite Mr Hawkins not knowing that the third plaintiff would apparently be staying back after school on a particular day to complete his major work, that Mr Hawkins was for some reason supervising students in the woodwork room and allegedly sexually assaulted the third plaintiff. Mr Sheldon SC, when invited to address these matters, was unable to explain how this had come about (not merely once but on seven (possibly twelve) occasions), nor could he provide answers to questions such as those just raised. My assessment is that the third plaintiff’s account itself was inherently improbable and, to be clear, I am entirely unpersuaded by it. Once Mr Gately’s evidence is factored in, the account itself cannot be sustained, and I do not accept it.

707. As is apparent from the above discussion (and the earlier discussion: see [637]ff, above), I have not accepted fundamental aspects of the third plaintiff’s overall account. I have considerable reservations about the reliability of the third plaintiff and his evidence not simply because of my non-acceptance of his case and significant parts of his account but in other respects as well, as I have earlier explained.

708. In the end, it is for the third plaintiff to “prove his case”. He has not: the third plaintiff has failed to persuade me that he was abused in the way he claimed to be. It follows, therefore, that his claim must be dismissed.

Orders: the third plaintiff’s claim

709. For the above reasons, in proceedings 2023/00185560, I make the following orders:

1. Verdict and judgment for the second defendant.

2. Order the plaintiff (GAC) to pay the second defendant’s costs of the proceedings.

3. Order the third cross-claim filed 10 April 2025 be dismissed.

4. Order the amended second cross-claim filed 31 July 2025 be dismissed.

5. Make no order as to costs in connection with the amended second and third cross-claims.

6. Grant liberty to apply, on or before 12 September 2025, 4pm, via the associate to Chen J, in relation to the form of the orders made (including costs).

7. Order that the exhibits and subpoenaed material be returned forthwith. Any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

710. As I have earlier noted, the third plaintiff resolved his claim against the first defendant on 11 June 2025. Given I have determined the third plaintiff’s action against the second defendant, those agreed orders should now be made and entered – namely:

1. Judgment for the first defendant.

2. Order that each party pay his or its own costs.

WJT: the first plaintiff’s claim

711. The first plaintiff resolved his claim against the first defendant on 11 June 2025, and against the second defendant on 17 June 2025. No orders have been made in connection with the first plaintiff’s settlement with the first defendant. Those orders, which provide for judgment being entered in favour of the first defendant with an order that each party pay his or its own costs, can now be made. In relation to the settlement between the first plaintiff and second defendant, orders were made on 17 June 2025.

712. In relation to the first cross-claim, given judgment is to be entered in its favour, that cross-claim falls away. In relation to the amended second cross-claim, given my conclusion when dealing with the cross-claim in the second plaintiff’s claim, the same result applies here.

Orders: the first plaintiff’s claim

713. In proceedings 2022/00262159, the orders are:

1. Order the first cross-claim filed 17 July 2023 and third cross-claim filed 10 April 2025 be dismissed.

2. Make no order as to costs in relation to the first and third cross-claims.

3. Order the amended second cross-claim filed 31 July 2025 be dismissed.

4. Order the second defendant to pay the first defendant’s costs of the amended second cross-claim.

5. Grant liberty to apply, on or before 12 September 2025, 4pm, via the associate to Chen J, in relation to the form of the orders made (including costs).

6. Order that the exhibits and subpoenaed material be returned forthwith. Any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

714. In relation to the agreed orders resolving the action by first plaintiff against the first defendant:

1. Judgment for the first defendant.

2. Order that each party pay his or its own costs.

Amendments

11 September 2025 - Correction to format