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Introduction

This article is intended as part of a series reporting on both the decision at first instance (link below) the submissions before the High Court (dealt with in this article) and ultimately the High Court decision which is expected in the coming weeks or months.

Background

On 7 August 2025, the High Court of Australia heard the matter of AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle ABN 79469343054 – Case S94/2025.

This was an appeal by AA (pseudonym) of a decision of the New South Wales Court of Appeal from 15 April 2025 (CODEA Case Summary).

Grounds of Appeal

AA (the appellant), appealed on two grounds:

• Non-Delegable Duty
• General Duty of Care

Submissions made as to Non-Delegable Duty

The appellant submitted that the Diocese (respondent), did not delegate to strangers or passers-by, but delegated authority to its servant (Fr Pickin), whom it empowered, and over whom it exercised authority and control [1].

In order to establish this non-delegable duty, the Court will need to accept that this duty should be extended to actions of intentional wrongdoing by the Respondent, extending to more than merely a negligent act. If this is accepted, the High Court would need to reconsider the principles of Lepore[2].

The appellant stated that the majority in Lepore erred in their reasoning by narrowing the scope of non-delegable duty to only negligent acts, emphasising that there is authority prior to Lepore that is consistent with the approach they advance [3].

In contrast, the respondent submitted that Lepore is a complete answer to the appellants case, that a non-delegable duty cannot be owed to ensure that a delegate does not commit an intentional criminal act [4]. The respondent did not dispute the relevant principles to establishing a non-delegable duty but disputed whether the requisite level of responsibility for the care, supervision and control of the appellant was established; stating that the activity that produced the risk of criminal wrongdoing, had no connection to the respondent’s ‘enterprise’ [5].

Submissions made as to General Duty of Care (Ordinary Duty)

The appellant submitted that the Court of Appeal erred in stating that ‘no duty would arise unless there was knowledge or belief or suspicion by the Bishop or senior priests in the Diocese that Father Pickin posed a risk to children’. It was contended that the proper construction of a duty of care was “whether the defendant and plaintiff are so placed in relation to each other that it is reasonably foreseeable as a possibility that careless conduct of any kind on the part of the former may result in damage of some kind to the person or property of the latter” [6].

The appellant raised the general awareness of risk posed to children who interact with priests and parish priests, relying on evidence that there was a general risk that priests may sexually abuse children, as well as the attribution of knowledge of Father Doran to the respondent, regarding a complaint about Father Pickin in 1966 (two years prior to these allegations) [7].

In reply, the respondent submitted that no ordinary duty was owed.

The nature of a general duty of care was broken down as follows:

Defining the Duty

The respondent submitted that:

• a distinction ought be made between the Diocese’s knowledge and that of clergy members generally.
• The specified harm is foreseeable and not insignificant; the duty must be referrable to harm of the kind or class that was suffered.
• The person to whom the duty is owed is children “in the care” of the Diocese’s priests, or young people “entrusted” to the pastoral or educational care of the Diocese [8].

Reasonable Foreseeability

The respondent submitted that the specified harm (sexual abuse by a priest) was not reasonably foreseeable by the Diocese during the relevant period. The appellant argued that the Diocese knew or ought to have known of the risk of the specified harm, because of complaints made about that priest’s sexual misconduct.

The respondent contended, relying on the Court of Appeal’s decision that there was no cogent evidence that the Diocese knew of the risks posted by priests generally or by the perpetrator specifically [9].

Attribution

The appellant argued that the knowledge of Father Doran, by operation of S6O of the Civil Liability Act should be attributed to the Diocese, the respondent argued that they were not a senior member of the Diocese and Doran’s role did not include receiving complaints [10].

Further Factors

The respondent argued that there was a lack of assumption of responsibility or entrustment which could speak against the existence of an ordinary duty. The respondent argued that there was a limited relationship with the appellant, stating that it was limited to attending weekly scripture classes arranged by the school, and intermittent attendance at mass; and consequently, did not exercise exclusive control of the appellant’s care [11].

Conclusion

The imminent decision from the High Court will provide a clearer construction of the nature of non-delegable duty and duty of care and will determine which submissions ought to be accepted. If the claim as advanced by the appellant is accepted it may establish the existence of certain novel duties being owed which were not previously recognised or clearly set out and otherwise the re-evaluation of the principles espoused in Lepore.

The High Court has yet to hand down their decision on this Appeal which is anticipated to be made in February 2026.

(A summary of the Primary Judgment and New South Wales Court of Appeal decision can be found here).

[1] AA, ‘Appellant’s submissions’, Submission in AA v. The Trustees of the Roman Catholic Church for the Diocese of Maitland, S94/2025, 8 July 2025, [38].

[2] New South Wales v Lepore (2003) 212 CLR 511.

[3] AA ‘Appellant’s submissions’ (n 1) [44]

[4] The Trustees of the Roman Catholic Church for the Diocese of Maitland (Diocese), ‘Respondent’s submissions’, Submission in AA v. The Trustees of the Roman Catholic Church for the Diocese of Maitland, S94/2025, 18 July 2025, [21].

[5] Ibid [61]

[6] AA ‘Appellant’s submissions’ (n 1) [49]-[50].

[7] AA, ‘Appellant’s Outline of oral argument, Submission in AA v. The Trustees of the Roman Catholic Church for the Diocese of Maitland, S94/2025, 7 August 2025, [3] – [6].

[8] Diocese, ‘Respondent’s Outline of oral argument, Submission in AA v. The Trustees of the Roman Catholic Church for the Diocese of Maitland, S94/2025, 7 August 2025, [3].

[9] Ibid [4].

[10] Ibid [5].

[11] Ibid[6]