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

Published on May 21, 2025 by Jackson Gilbert

On 15 April 2025, the New South Wales Court of Appeal handed down Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 which will have profound implications for how Australian courts assess the liability of institutions in historical abuse claims.

This was an appeal of a decision of Schmidt AJ of the Supreme Court of New South Wales made on 20 September 2024.[1]

Background, Trial, Primary Judgment[2]

AA (pseudonym) initiated proceedings against the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle, asserting direct and vicarious liability for the alleged abuse at Wallsend High School in 1968 by Father Ronald Pickin, Assistant Priest.

The assaults allegedly 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. The Plaintiff and his friend were both teenagers at the time.

The Plaintiff alleged that Mr Perry was sent out to buy cigarettes during which time Fr Pickin committed the assaults upon him, when the Plaintiff was “paralytic drunk”. Fr Pickin, the parish priest and the bishop all died years before the litigation commenced.

Prior to trial, the Plaintiff filed an Amended Statement of Claim changing the timing of the sexual assaults from 1968 to 1969, after the Defence had pointed out that Fr Pickin had relocated to the Wallsend parish in 1969. This led to the changed pleading and correcting statement. The Amended Statement of Claim incorrectly pleaded Fr Pickin as the Parish priest instead of Assistant Priest.

During trial Mr McClung gave evidence that he disclosed abuse by Fr Pickin to Fr Doran, parish priest at St Columba’s, in about 1966 (before the Plaintiff was abused in 1968).

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 predominately on the basis that the Plaintiff’s account was “vivid” and was consistent with tendency evidence that Fr Pickin had abused boys.

The primary judge found that the Defendant breached a duty of care owed by it to the Plaintiff and held it vicariously liable for the assaults.

Her Honour did not determine the claim that there was a non-delegable duty.

Issues on Appeal

On Appeal, it was accepted that judgment based on vicarious liability could not stand after the decision in Bird v DP (a pseudonym) [2024] HCA 41.[3]

On Appeal, the Defendant submitted that the primary judge erred in finding that the sexual assaults occurred, and that the Defendant 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 of care.

Court’s Findings

The Plaintiff failed in his claim.

1. Whether the Sexual Assaults occurred?

The Court of Appeal held that the fact-finding process miscarried (notwithstanding the existence of tendency evidence of Fr Pickin abusing other children, the Plaintiff’s evidence concerning the abuse was not contradicted, and other corroborative witness evidence), as:

1. The primary judge did not sufficiently address clear inconsistencies in the Plaintiff’s account regarding various matters,
2. She did not address the possibility that the Plaintiff’s “vivid” recollection was a sincerely held but erroneous belief, with the errors having come about through the effluxion of more than half a century coupled with the Plaintiff’s unwellness and abuse of drugs, and
3. She appeared to have relied on the removal of the limitation period to alter the process of evaluating the evidence.[4]

The Plaintiff had identified three different time periods in his evidence as to when the assaults occurred.[5] The Plaintiff also misidentified the role of the alleged abuser in the pleadings, despite the pleader being evidently familiar with the distinction between parish priest and assistant priest.[6] The misidentification of the role also affected the expert evidence given, pleadings and conduct of the trial.[7]

Bell JA, on the other hand, did not accept that her Honour erred in concluding that the Plaintiff was sexually abused by Fr Pickin.[8] Bell JA relied upon the uncontested facts and tendency evidence which was said to provide strong corroborative evidence of that given by the Plaintiff.[9]

2. Whether a duty of care existed in 1969? Was the risk of harm foreseeable?

The Court of Appeal held that no duty of care was owed to the Plaintiff in 1969. No evidence admitted at trial by the Plaintiff that the Church had awareness of the risk’s priests might pose to children in 1969, including with respect to Fr Pickin.[10]

In fact, the Plaintiff served contradictor expert evidence from Father Dillon that the offences the subject of the claim were virtually unknown in the late 1960s.[11] The Plaintiff adduced no evidence that in 1969 a reasonable person in the position of the Bishop would have taken steps on the basis that every priest was a potential child abuser.[12]

The Court of Appeal found that knowledge on the part of its parish priest or assistant priest, even if they were an employee, was not knowledge of the Defendant and it should not be imputed to the Bishop.[13] In this case, Mr Clung did not disclose abuse in 1966 to the Defendant, but only the parish priest, Fr Doran.[14]

If there had been evidence that a Bishop with power to appoint and remove a priest to a parish, who knew in 1969 that a particular priest had a history of committing sexual assaults upon children, they would have been under a duty to take reasonable care to prevent those assaults recurring.[15]

3. Whether a non-delegable duty of care arose?

The Court of Appeal held that there is no non-delegable duty to ensure that a delegate does not commit an intentional criminal act.[16] The Court of Appeal did express that the issue may require revisiting,[17] however, it was quite clear from what was said in Bird v DP that it has not been impliedly overruled.[18]

The Court of Appeal stated at 164:

“In order to succeed on a case based on a non-delegable duty, the Plaintiff needs to establish that the appellant/defendant is taken to have owed a duty to ensure that Fr Pickin took reasonable care in supervising the Plaintiff and the other boy or boys on Friday nights in the presbytery, so as to engage s 5Q of the Civil Liability Act.”

4. The consequences of the removal of statutory limitation periods in establishing duties of care and assaults.

The Court of Appeal held that the question of the existence of a duty of care and the content of any such duty, if found to exist, is “unique and highly fact sensitive” and emphasised the importance of pleading the factual basis for an alleged duty of care.[19]

The Courts will assess the content of and breach of duty of care as the time of the alleged breaches.[20]

Furthermore, the removal of the limitation period will not alter the way in which evidence is to be assessed, or the way in which a Plaintiff may discharge a burden of proof with respect to proving the assaults.[21]

5. Whether the correct unincorporated organisation was identified?

The Court of Appeal considered sections 6I-6P of Division 4 of Part 1B of the Civil Liability Act in detail which permits claims to be made against unincorporated organisations.[22] The critical provision was section 6O.

The pleader did not identify any organisation for the purposes of Part 1B,[23] and chose not to commence proceedings against an unincorporated organisation.[24]

The parties proceeded upon the basis of an admission made in the Defence that the Defendant identified engaged the deeming provisions of section 6O.[25]

The Court of Appeal disagreed with the approach, as proceedings were not commenced against the organisation but instead against the body corporate constituted by the Roman Catholic Church Trust Property Act.[26]

While the Court of Appeal decided to proceed favourably to the Plaintiff, it found that, if that was not so and the defendant is to be taken to have merely the powers of the body corporate, there could be no duty, whether non-delegable or otherwise, for central to the Plaintiff’s case was that there was power to control and regulate a priest in a parish, and such power was vested in the Bishop, not the body corporate constituted by statute.[27]

The Court of Appeal considered that it would be highly desirable to identify the unincorporated organisation that is said to be the organisation for the purposes of Part 1B and in the absence of doing so it may be arguable whether provisions like section 6O apply in the absence of identifying an organisation.[28]

Key Learnings

• Establishing a duty of care: The importance of pleading and proving the factual basis for an alleged duty of care required a precise understanding of the Defendant and its position, powers, control, and state of knowledge as at the time of the alleged breach(es) of duty, including as to the foreseeability of relevant risks.[29] The recognition of a duty of care in 1969 highlights that institutions may be held accountable for their actions or omissions even in historical cases, provided the elements of the cause of action are established.​
• Thorough investigations: The frailty and malleability of human memory, and the possibility of imperfect memories of traumatic events, means that practitioners ought to conduct considerable investigations at the commencement of claims to ensure corroboration and consistency of evidence, and evidence of the state of knowledge of the institution obtained. Thorough investigations into the claim and institution before commencing proceedings would have likely highlighted inconsistencies in the Plaintiff’s evidence regarding the role of the perpetrator, timing of the assaults, and state of knowledge of the institution.
• Consistency of evidence and standard of proof: Care should be taken by practitioners when assessing the evidence of witnesses through the lens of the Briginshaw standard and s140(2) of the Evidence Act, even in matters involving the availability of substantial tendency evidence and corroborative witness evidence. The removal of the limitation period for this class of civil litigation did not create a special regime for the evaluation of evidence in those cases. The Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw) and s 140(2) of the Evidence Act 1995 (NSW) (Evidence Act) will continue to present a forensic challenge to those who seek to establish serious allegations, decades after the event.
• Clarity of pleadings and identification of the correct Defendant: The Court of Appeal was critical of aspects of the pleadings for the Plaintiff throughout, and the decision serves as a reminder to practitioners to “think carefully, and to draft allegations with precision, especially when seeking to engage provisions which permit claims to be made against unincorporated organisations.”[30] Practitioners should to identify unincorporated organisations before commencement of proceedings for the purpose of Division 4 of Part 1B of the Civil Liability Act.

Update: Special Leave Application

On 13 May 2025, an Application for Special Leave was filed by the Plaintiff in the High Court of Australia in relation to the Decision of the Court of Appeal.

The Application will likely raise issues concerning the existence and nature of the duty of care, and non-delegable duty of care, owed by Catholic Dioceses.

Conclusion

The decision in Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA sets a precedent for future litigation involving institutional responsibility for abuse.

Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you. If you or a loved one have been injured, use our Personal Injury Claim Check now.

Disclosure and important note: This article is based on our own legal research and thinking. Some of its content has been generated with the assistance of artificial intelligence. The authors have checked and approved this article, including the AI generated content, for publication.

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

[2] Ibid, Headnote.

[3] On 13 November 2024, the High Court handed down its decision in Bird v DP [2024] HCA 41 and found that it was not appropriate to expand the boundaries of vicarious liability beyond a relationship of employment.

[4] AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2024] NSWSC 1183 [151].

[5] Ibid [116].

[6] Ibid [73].

[7] Ibid [71]-[73].

[8] Ibid [253].

[9] Ibid [257].

[10] Ibid [13] and [154].

[11] Ibid [235].

[12] Ibid [218].

[13] Ibid [229], [231], [233].

[14] Ibid [75].

[15] Ibid [217]and [241].

[16]  Ibid [17] (Bell CJ); [156]-[168] (Leeming JA); [253] (Ball JA).

[17] Ibid [162].

[18] Ibid [162].

[19] Ibid [7]-[8].

[20] Ibid [237].

[21] Ibid [106].

[22] Ibid [178] – [195].

[23] Ibid [190]. See 6O of the Civil Liability Act.

[24] Ibid [179]. See 6K (1) of the Civil Liability Act.

[25] Ibid [183].

[26] Ibid [184]

[27] Ibid [184].

[28] Ibid [190].

[29] Ibid [8].

[30] [73]-[74], [164], [171]-[177], [180]-[192], [194], [195].