Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 (Link to Caselaw).
Court headnote
The plaintiff (the respondent to this appeal) brought proceedings against the appellant for sexual assaults alleged to have been perpetrated on him in 1968 by Father Ronald Pickin, who was then an assistant priest in Wallsend, NSW, claiming that the appellant was liable in negligence, vicariously liable and liable for breach of a non-delegable duty. The assaults were alleged to have occurred when the plaintiff and a friend, Mr Perry, were invited by Fr Pickin into the presbytery of the local church on Friday nights to consume alcohol, smoke cigarettes and play on a gambling machine in the bedroom when they were teenagers. The plaintiff said there was no one else in the presbytery. The plaintiff alleged that Mr Perry was sent out to buy cigarettes during which time Fr Pickin committed penile-oral intercourse upon him, when the plaintiff was “paralytic drunk”. Fr Pickin, the parish priest and the Bishop all died years before the litigation commenced. Mr Perry was called in the defence case. He agreed that he had visited the presbytery on Friday evenings with the plaintiff, where Fr Pickin gave them alcohol and perhaps cigarettes, said that other youths were present, denied ever being sent out to buy cigarettes and denied having ever seen the plaintiff “paralytic drunk” or assaulted.
At trial, the primary judge accepted that the abuse occurred on the basis that the plaintiff’s account was “vivid” and was consistent with tendency evidence that Fr Pickin had touched other teenage male students’ genitals some years earlier and some years later. The primary judge found that Mr Perry was not sent out to buy cigarettes, and that there were other boys present, but that the assaults occurred while Mr Perry and the other boys were in an adjacent room.
The primary judge found that the appellant breached a duty of care owed by it to the plaintiff, and also held it vicariously liable for the assaults. Her Honour did not determine the claim that there was a non-delegable duty.
On appeal, it was accepted that judgment based on vicarious liability could not stand after the decision in Bird v DP [2024] HCA 41. The appellant submitted that the primary judge erred in finding that the sexual assaults occurred and that the appellant owed the plaintiff a duty of care which had been breached. By a notice of contention, the plaintiff sought to uphold the judgment based on a non-delegable duty.
Court summary of findings
Per Leeming JA, Bell CJ agreeing:
- The fact-finding process miscarried. The primary judge did not sufficiently address clear inconsistencies in the plaintiff’s account with the findings her Honour made, did not address the possibility that the plaintiff’s “vivid” recollection was a sincerely held but erroneous belief, and appeared to have relied on the removal of the limitation period to alter the process of evaluating the evidence: at [131]-[152] (Leeming JA), [16] (Bell CJ).
Wong v National Australia Bank Ltd [2022] FCAFC 155; 318 IR 148; Prouten v Chapman [2021] NSWCA 207; The Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210; Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), considered.
Per Ball JA, contra:
- The inconsistencies in the plaintiff’s evidence are explicable by the fact that the events occurred over 50 years ago. They do not shed significant light on whether the plaintiff was also mistaken about the abuse itself. The uncontested corroborative facts established that Fr Pickin had an interest in boys, that given the opportunity Fr Pickin would sexually abuse them and that he sought to create that opportunity by inviting the plaintiff and Mr Perry to the presbytery and supplying them with alcohol and cigarettes. The fact of the abuse explains why the plaintiff stopped going to the presbytery and had nothing further to do with Fr Pickin: at [253]-[271].
Per Leeming JA, Bell CJ and Ball JA agreeing:
- No duty of care was owed to the plaintiff in 1969. The primary judge’s reference to the “awareness which Bishops and other senior members of the Church then had about the risks which its priests could pose to children” in 1969 was not supported by the evidence admitted at trial. Knowledge of each and every priest is not taken to be the knowledge of the appellant. The fact that Parliament has already chosen to impose a duty of care under Part 1B of the Civil Liability Act 2002 (NSW), but only prospectively, is a powerful consideration against a retrospective reformulation of judge-made law to impose a novel duty of care on the appellant: at [12]-[13] (Bell CJ); [196]-[197] and [228]-[241] (Leeming JA); [253] (Ball JA).
Maga v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256; [2010] 1 WLR 1441, considered. South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8, applied.
- There is no non-delegable duty to ensure that a delegate does not commit an intentional criminal act: at [17] (Bell CJ); [156]-[168] (Leeming JA); [253] (Ball JA).
Bird v DP [2024] HCA 41; 419 ALR 552 at [38]-[43]; New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4, applied.
Consideration of:
The consequences of the removal of statutory limitation periods in establishing duties of care: at [1]-[13] (Bell CJ).
The legal personality of the appellant and the need to ensure clarity when referring to “the Diocese” in pleadings and its consequences for the formulation of a duty of care: at [171]-[177] (Leeming JA).
Comment in relation to non-delegable duty.
In referring to the argument regarding non-delegable duty, Leeming JA said at [160] that it is not open to any court below the High Court to accept it (the non-delegable duty argument). “As the law in Australia presently stands, a defendant cannot be liable for breach of a non-delegable duty based on an intentional wrong by the delegate (in this case, Fr Pickin). That was the force of Gleeson CJ’s reasoning in Lepore at [38]-[39], to the effect that a majority of the Court of Appeal had erred in relying upon a non-delegable duty for the sexual assaults committed at a school. Callinan J agreed at [339] with Gleeson CJ. Gummow and Hayne JJ were of the same view, stating at [265] that the understanding of a non-delegable duty “should not be extended to include responsibility for intentional defaults by delegates”.”
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