In the recent matter of Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72, the plaintiff, AA (a pseudonym), commenced court proceedings seeking damages against the defendant, the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle, for sexual assaults alleged to have been perpetrated on him in 1968 by Father Ronal Pickin, who was then as assistant priest in Wallsend NSW. The plaintiff claimed that the defendant 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.

Primary Hearing

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 defendant 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.

Primary Hearing Findings: Vivid Sexual Assault Evidence

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 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.

The key findings made by the Court of Appeal were as follows:

  • 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]
  • 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]
  • 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]; [196]-[197] and [228]-[241]
  • There is no non-delegable duty to ensure that a delegate does not commit an intentional criminal act: at [17]; [156]-[168]
  • 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. 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”.”

Ultimately, on 15 April 2025, the New South Wales Court of Appeal ordered as follows:

  1. Appeal allowed.
  2. Set aside the judgment entered on 20 September 2024, and the costs order made on 14 November 2024, and in lieu thereof, order that the proceedings be dismissed.
  3. In relation to any further orders sought, including costs at first instance and in this Court and the continuation of the orders made on 1 October 2024 under the Court Suppression and Non-publication Orders Act, direct the parties and BB to file and serve within 21 days of today any agreed short minutes of order, or alternatively the orders for which each party seeks, any supporting materials, and submissions not exceeding four pages, and direct the other party to file and serve any supporting materials and short submissions in response not exceeding three pages within seven days thereafter, with a view to any dispute about further orders being resolved on the papers.
  4. Direct the solicitors for the plaintiff to advise BB of the paragraphs of these reasons concerning the non-publication orders and his entitlement to be heard as to their continuation, and the effect of setting them aside so far as concerns him, bearing in mind that the reasons will in any event continue to refer to him as BB.

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