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

Supreme Court New South Wales

Medium Neutral Citation: AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2024] NSWSC 1183 Hearing dates: 23, 26 – 28 August 2024 Date of orders: 20 September 2024 Decision date: 20 September 2024 Jurisdiction: Common Law Before: Schmidt AJ Decision: Judgment for the plaintiff. Parties to confer and provide proposed final orders that give effect to the conclusions reached within 14 days of this judgment. (1) This judgment not be published before 2 October 2024, other than to the parties and the two tendency witnesses, or their legal representatives, so that submissions can be advanced about whether further orders should be made under s 8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and that this order applies in the Commonwealth, that being necessary to achieve the purpose for which it is made. (2) The grounds on which this order is made are that: (a) A question arose about the anonymisation of the names of the plaintiff and tendency witnesses, given the child sexual abuse with which the judgment deals, which had not been dealt with at the hearing. Such orders having been made in other cases where civil claims have been pursued in relation to distressing historical child sexual abuse. (b) Given the child sexual abuse which the plaintiff and the tendency witnesses dealt with in their evidence and the distress and embarrassment it obviously caused them, it is in the public interest to make the order the parties sought, the public interest in that order significantly outweighing the public interest in open justice: s 8(1)(e). (c) The evidence given in open court in these civil proceedings about various child sexual abuse did not attract the provisions of s 8(1)(d), which is restricted to criminal proceedings in which distressing or embarrassing evidence about offending of a sexual nature is given. (d) That child sexual abuse could have been the subject of criminal charges, that also giving rise to the considerations which s 8(1)(d) addresses. (e) In the context of the publication of this judgment, I was satisfied that the public interest accorded with the short opportunity sought for submissions to be advanced about the appropriate orders to be made about the judgment when published. That was reinforced by the plaintiff's very serious ill health. (f) The matter will be listed for further directions at 9.30 am on 1 October 2024 about any further orders sought. Catchwords: EVIDENCE — Tendency evidence — Significant probative value — Whether tendency evidence admissible under section 97 of the Evidence Act 1995 (NSW) — Evidence admissible EVIDENCE — Witness evidence — Whether basis of expert opinion adequately disclosed — Whether evidence admissible under section 79 of the Evidence Act 1995 (NSW) — Evidence admissible EVIDENCE — Witness evidence — Where evidence relates to historic events — Whether imperfections of evidence about past traumatic events should result in evidence being rejected NEGLIGENCE — Vicarious liability — Where Diocese did not employ parish priest — Whether Diocese was vicariously liable for parish priest assaulting a minor — Vicarious liability established NEGLIGENCE — Whether duty of care was owed to minor — Whether risk was reasonably foreseeable and not insignificant — Whether reasonable person would have taken precautions against that risk of harm — Whether duty breached NEGLIGENCE — Damages — General exemplary and aggravated damages — Whether harm suffered justified award of aggravated or exemplary damages NEGLIGENCE — Damages — Economic loss — Earning capacity — Where harm suffered claimed to have resulted in lost future earning capacity TORTS — General principles — Negligence — Vicarious liability — Historical sexual assault — Assessment of damages Legislation Cited: Civil Liability Act 2002 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Evidence Act 1995 (NSW) Limitation Act 1969 (NSW) Cases Cited: AA v PD [2022] NSWSC 1039 Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547; [2009] FCAFC 32 Bird v DP (2023) 69 VR 408; [2023] VSCA 66 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bugmy v The Queen (2013) 249 CLR 37; [2013] HCA 37 Burns-Dederer v R [2023] NSWCCA 191 Buzzle Operations Pty Ltd v Apple Computer Australia Pty Ltd (2009) 74 NSWLR 469; [2009] NSWSC 225 Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Davie v Magistrates of Edinburgh 1953 SC 34 Diocese of Sale v WCB (2020) 62 VR 234; [2020] VSCA 328 DP v Bird [2021] VSC 850 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 Falco v Aiyaz; Falco v Falzon [2015] NSWCA 202 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 HML v The Queen (2008) CLR 334 [492]-[493]; [2008] HCA 16 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 JL v The King [2023] NSWCCA 99 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 KQG v Trustees of the Marist Brothers [2018] NSWSC 1013 Lamb v. Cotogno (1987) 164 CLR 1; [1987] HCA 47 M v M (1988) 166 CLR 69; [1988] HCA 68 Maga v Archbishop of Birmingham [2010] EWCA Civ 256; [2010] 1 WLR 1441 Malek v J.C. Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 New Cap Reinsurance Corporation Ltd (In Liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258 Nicholls & Ors v Michael Wilson & Partners Ltd [2012] NSWCA 383 PP v DD (No 2) [2021] NSWSC 1312 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 Ramsey v Denton [2021] NSWCA 310 Reed v R [2006] NSWCCA 314 SR v Trustees of the De La Salle Brothers [2023] NSWSC 66 State of New South Wales v Riley [2003] NSWCA 208 S1 v Trustees of the Marist Brothers [2016] NSWSC 970 The Queen v Dennis Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 TL v The King (2022) 275 CLR 83; [2022] HCA 35 Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: Cross on Evidence, 13th ed (2021) Category: Principal judgment Parties: AA (Plaintiff) Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (Defendant) Representation: Counsel: S Prince SC and PA Tierney (Plaintiff) J Sheller SC and C Robertson (Defendant) Solicitors: Koffels Solicitors & Barristers (Plaintiff) Makinson d'Apice Lawyers (Defendant) File Number(s): 2024/00100043 Publication restriction: Paragraph [370]