Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 Hearing dates: 16, 17, 18, 21 June 2021, 19 July 2021 Date of orders: 06 July 2022 Decision date: 06 July 2022 Before: Bell CJ, Gleeson JA, Brereton JA Decision: In proceedings 2020/310603 and proceedings 2020/311015 (Ms Clancy, Little Pigeon and Mr Bird's appeals against A and B): 1. appeals allowed with costs; 2. set aside the orders of the primary judge; 3. in lieu thereof, order that proceedings 2013/375445 be dismissed with costs. In proceedings 2020/310609 and 2020/310590 (Ms Clancy and Little Pigeon's appeals against C and D): 1. appeals allowed with costs; 2. set aside the orders of the primary judge; 3. in lieu thereof, order that: (a) proceedings 2013/375437 and 2020/65223 against the Second Defendant (Ms Clancy) be dismissed with costs; (b) proceedings 2013/375437 and 2020/65223 against the Third Defendant (Little Pigeon) be dismissed other than in respect of the claims against Little Pigeon based upon vicarious liability, with those claims to be remitted to be determined by a judge other than the primary judge with costs of the proceedings at first instance to be costs in the cause; 4. grant C and D a certificate under the Suitors' Fund Act 1951 (NSW). In proceedings 2020/311016 and 2020/311017 (Mr Bird's appeals against C and D): 1. appeals allowed with costs; 2. set aside the orders of the primary judge; 3. in lieu thereof, order that: (a) proceedings 2013/375437 and 2020/65223 against Mr Bird be remitted to be determined by a judge other than the primary judge with costs of the proceedings at first instance to be costs in the cause; 4. grant C and D a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: APPEALS – appeal by rehearing – functions of appellate court – orders on appeal – new trial – where appellate court has found error – court should resolve issue in order to avoid economic and emotional costs of re-trial to extent possible – torts – trespass to the person – battery – sexual assault against children – allegations attracting Briginshaw principles – where resolution of issue depends on questions of credibility of defendant – where plaintiffs entitled to test evidence and impugn credibility – whether appellate court should order a new trial EVIDENCE – admissions – civil proceedings – torts – trespass to the person – battery – sexual assault against children – where defendant participated in recorded interview with police – where certain answers given in that interview said to constitute admissions to inappropriate sexual dealing with children – where tendency for inappropriate sexual dealing with children alleged against defendant – where Briginshaw principles applied – reliance not to be placed upon indirect inferences of slender and exiguous proof – whether defendant made admissions as found by the primary judge EVIDENCE – admissions – civil proceedings – torts – negligence – admissibility against co-defendant – common purpose – s 87(1)(c) of the Evidence Act 1995 (NSW) – where admissions to inappropriate sexual dealing with children said to have been made by defendant during police interview sought to be admitted in claim of negligence against co-defendant – where no express authorisation to make admissions on co-defendant's behalf – where common purpose required to exist as at time the impugned admissions were made – where co-defendant learned of occasion of alleged admissions after the fact – whether alleged admissions were admissible against co-defendant EVIDENCE – hearsay – exceptions – witness unavailable – within the meaning of cl 4(1)(f) of pt 2 of the Dictionary in the Evidence Act 1995 (NSW) – where that definition properly encompasses the issue and service of a subpoena – where no subpoena had been served on the relevant witness – where the determination of the unavailability of a witness does not involve the exercise of direction – whether witness was unavailable to give evidence so as to render hearsay of disclosures admissible as tendency evidence EVIDENCE – standard of proof – civil cases – torts – trespass to the person – battery – sexual assault against children – at childcare centre – allegations of such gravity as to attract Briginshaw principles – s 140(2) of the Evidence Act 1995 (NSW) – where plaintiffs relied on substantial body of tendency evidence as to inappropriate sexual dealing with children – where certain witnesses as to tendency unable to be cross-examined – whether tendency evidence was admissible against defendant – where trial occurred some 10 years after events in question – whether allegations established to the requisite standard EVIDENCE – tendency evidence – civil proceedings – tendency rule – significant probative value – where evidence taken at its highest individually or cumulatively must strongly support existence of tendency asserted – where tendency must strongly support proof of material fact in issue – where distinction to be drawn between admissibility of tendency evidence and its use – where use of tendency evidence must have regard to Briginshaw principles EVIDENCE – tendency evidence – civil proceedings – torts – trespass to the person – battery – sexual assault against children – where plaintiffs relied upon substantial body of tendency evidence as to inappropriate sexual dealing with children – including disclosures of plaintiffs and two other children and certain answers given by defendant in police interview – where tendency evidence required to be of significant probative value of tendency – where tendency required to strongly support proof of material fact in issue – where some of the tendency evidence marked by inconsistency and unreliability – where certain witnesses as to tendency not able to be cross-examined – whether tendency evidence was admissible against defendant – where admissibility of one piece of tendency evidence affects probative value of all others and of asserted tendency – where judge's reliance on one piece of tendency evidence unable to be separated from remainder of tendency evidence NEGLIGENCE – duty of care – owed by corporate licensee of childcare centre and its director to attendees of centre – where volunteer alleged to have committed sexual assaults against children at the centre – where regulation required volunteer to be "accompanied" by member of primary contact staff when in the presence of children – where that regulation required no more than that children not to be under supervision of volunteer alone – where no internal complaints made regarding conduct of volunteer – where policies and procedures of childcare centre substantially in accordance with regulation – whether licensee and director breached duty of care NEGLIGENCE – vicarious liability – employer and employee – where employer was corporate licensee of childcare centre – whether director of licensee also vicariously liable for conduct of employee – principle of dual vicarious liability not adopted in the common law of Australia NEGLIGENCE – damages – economic loss – earning capacity – future economic loss – by way of a buffer – requires compliance with s 13 of the Civil Liability Act 2002 (NSW) – where assumptions on which buffer is based must be stated – where identical buffers awarded to different plaintiffs – whether proper account taken of plaintiffs' particular circumstances TORTS – general principles – damages – trespass against the person – battery – sexual assault – against child – damages awarded to child and parent – for future economic loss – by way of a buffer – requires compliance with s 13 of the Civil Liability Act 2002 (NSW) – where assumptions on which buffer is based must be stated – where identical buffers awarded to different plaintiffs – whether proper account taken of plaintiffs' particular circumstances TORTS – trespass to the person – battery – sexual assault – against two children – at childcare centre – by defendant volunteer – alleged that defendant kissed one child with open mouth and pulled down child's pants – alleged that defendant tickled other child on underwear – defendant alleged to have tendency for inappropriate sexual dealing with children – substantial body of tendency evidence admitted – including disclosures of plaintiffs and two other children and certain answers given by defendant in police interview – whether certain tendency evidence was admissible against defendant – where certain witnesses unable to be cross-examined – where trial occurred some 10 years after events in question – whether claims established to the requisite standard per s 140(2) of the Evidence Act 1995 (NSW) WORDS AND PHRASES – "accompanied" – Children's Services Regulation 2004 (NSW), cl 57(b) Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) s 27 Children's Services Regulation 2004 (NSW) cll 51, 57, 58, 104, Dictionary Civil Liability Act 2002 (NSW) ss 13, 15(2), 16, 32 Evidence Act 1995 (NSW) ss 63, 87(1), 97, 135(a), 136, 140(2), Dictionary pt 2 cl 4 Suitors' Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW) r 10.12 Cases Cited: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Andelman v R (2013) 38 VR 659; [2013] VSCA 25 Australian Competition and Consumer Commission v Mayo International Pty Ltd (1998) 85 FCR 327 Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171; [2018] NSWCA 146 Bannister v Walton (1993) 30 NSWLR 699 Bazley v Curry [1999] 2 SCR 534 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bryant v The Queen (2011) 205 A Crim R 531; [2011] NSWCCA 26 Burton v Brooks [2011] NSWCA 175 Commissioner of the Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3 Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250 Deatons Pty Ltd v Flew (1949) 79 CLR 370; [1949] HCA 60 Elomar v The Queen (2014) 300 FLR 323; [2014] NSWCCA 303 Fegan by her tutor Rozenauers v Lane Cove House Pty Ltd [2007] NSWCA 88 Gersbach v Gersbach [2018] NSWSC 1685 Gordon v Truong [2014] NSWCA 97; (2014) 66 MVR 241 Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 Higgins v R [2020] NSWCCA 149 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90 Lamb v Cotogno (1987) 164 CLR 1; [1987] HCA 47 Longhurst v Hunt [2004] NSWCA 91; (2004) 42 MVR 267 M v M (1988) 166 CLR 69; [1988] HCA 68 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Mindshare Communications Ltd v Orleans Investments Pty Ltd [2007] NSWSC 976 Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 New South Wales v Hathaway [2010] NSWCA 184 New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34 Penrith City Council v Parks [2004] NSWCA 201 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 R v Alchin (2006) 200 FLR 204; [2006] ACTSC 53 R v Basanovic (No 4) [2015] NSWSC 1100 R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 R v Suteski (2002) 128 A Crim R 275; [2002] NSWSC 218 Rabay v Bristow [2005] NSWCA 199 Roo-Roofing Pty Ltd v Commonwealth (Ruling No 2) [2018] VSC 219 Saba v Plumb (2018) 97 NSWLR 278; [2018] NSWCA 60 Seafood Imports Pty Ltd v ANL Singapore Pte Ltd (No 1) [2009] FCA 435 Sorbello v South Western Sydney Local Health Network [2016] NSWSC 863 Sretenovic v Reed [2009] NSWCA 280 Taylor v R [2020] NSWCCA 355 Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd (2009) 258 ALR 598; [2009] NSWSC 769 Varmedja v Varmedja [2008] NSWCA 177 Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510; [2006] 2 WLR 428; [2005] 4 All ER 1181 White v Johnston (2015) 87 NSWLR 779; [2015] NSWCA 18 Whitlam v Australian Securities and Investments Commission (2003) 57 NSWLR 559; [2003] NSWCA 183 WK v SR (1997) 22 Fam LR 592 Category: Principal judgment Parties: In proceedings 2020/310603