This matter was a joint hearing of three matters, as each plaintiff argued that they were sexually and or physically assaulted by the same lay schoolteacher.

Graeme Stuart Hawkins was a teacher at Parramatta Marist High School (‘the school’) between 1975 and 1993. He was suspended from that employment on 14 September 1993 following allegations made against him by a student. Those allegations were that Mr Hawkins had sexually abused the student whilst in his car “on the way to or from a canoe club outing”. The sexual abuse allegedly perpetrated by Mr Hawkins was not confined to the student who made that initial report. Soon after, other students reported that they too had been abused by him. Police were notified of these allegations against Mr Hawkins in late 1993. Investigations undertaken by them at that time revealed that there were 14 students from the school (including two former students) who had allegedly been sexually abused by Mr Hawkins. Mr Hawkins was summarily dismissed from his employment as a teacher at the school on 18 October 1993. He committed suicide in December 1993.

WJT (‘the first plaintiff’), WXC3 (‘the second plaintiff’) and GAC (‘the third plaintiff’) were formerly students at the school. The first plaintiff attended the school from 1990 (Year 7) to 1995 (Year 11), the second plaintiff from 1991 (Year 7) to 1996 (Year 12), and the third plaintiff from 1990 (Year 9) to 1993 (Year 12). They each allege that Mr Hawkins sexually or physically abused them, or both.

In the case of the first plaintiff, he alleges that he was sexually abused by Mr Hawkins whilst on canoe camps between 1991 and 1993. The alleged sexual abuse consisted of Mr Hawkins fondling him, typically before he showered. The first plaintiff also alleges that, on two occasions, the sexual abuse consisted of Mr Hawkins performing oral sex upon him and masturbating himself in front of the first plaintiff thereafter. The physical abuse which the first plaintiff alleges he was subjected to was in the form of unnecessary and excessive corporal punishment, whilst a student.

In the case of the second plaintiff, he alleges that he was sexually abused by Mr Hawkins whilst on a canoe camp with one other student sometime around Easter in 1992. The sexual abuse allegedly consisted of forceful squeezing, fondling and anal rape. He also alleges that Mr Hawkins separately fondled him in 1993. The physical abuse to which the second plaintiff alleges he was subjected to was in the form of Mr Hawkins squeezing his neck “very hard” on “around 20 occasions during class” in 1992.

In the case of the third plaintiff, he alleges that he was sexually abused by Mr Hawkins in and around the classroom and school grounds, during and after school hours. He specifically describes being assaulted in 1993 (when he was in Year 12) whilst taking steps to complete his Higher School Certificate (‘HSC’) major work for his woodwork subject, in the woodwork room or adjacent storage area. The abuse – which the second plaintiff alleges occurred on 17 occasions between July and August 1993 (approximately) – allegedly consisted of anal rape and oral sex. It sometimes involved Mr Hawkins using acetone and wood to silence him.

Vicarious Liability

As the relationship of employment between the school and Mr Hawkins was admitted, the contest turned upon whether the acts perpetrated by Mr Hawkins occurred in the course of his employment. 

Having appointed Mr Hawkins with the responsibility for canoeing and the canoe club, the second defendant Diocese – whether by conscious decision or neglect – left the running of it, including the activities the canoe club conducted, entirely up to him. 

The Court found as follows at [328]:  

Clearly, by appointing him to that role, Mr Hawkins had authority and power and, most importantly, the “ability to achieve intimacy” with the students who attended the canoe club camps. It is for those reasons, in line with the second plaintiff’s submissions, that I accept that the wrongdoing of Mr Hawkins should be regarded as committed in the course of his employment, with the consequence that the second defendant is vicariously liable for that wrongdoing.  

Assessing Vicarious Liability in Marist Brothers Abuse Case

As outlined at [17], the second and third plaintiffs sought damages against the second defendant (the Diocese). They alleged that the second defendant is directly liable for its failure to exercise reasonable care and is vicariously liable for the acts allegedly perpetrated upon them by Mr Hawkins. The second defendant seeks contribution from the first defendant (Marist Brothers) in respect of each of these claims, including the resolved claim brought by the first plaintiff.

The second defendant’s claim for contribution was founded upon two contentions, summarised as follows:

First, the overarching and primary contention is that, whilst the second defendant was the authority that operated the school, the school was “jointly operated and/or administered” with the first defendant, such that the “care, control and management” of it was shared with the first defendant: FA2XC at [24], [28](a) and (b). On this argument, the first defendant owed the second plaintiff a duty of care that was co-extensive with theirs because of the first defendant’s “operational control” of the school and their appointment, relevantly, of Principals during the time of the second plaintiff’s enrolment: FA2XC at [30] (at [447]).

Secondly, the additional or alternative contention is that, if the first defendant was not jointly operating the school with it, the acts and omissions of the school Principals could be attributed to the first defendant by application of the principles of agency: FA2XC at [49](b) (at [448]).

At [507] the Court held as follows:

In my view, contrary to what was argued by the second defendant, the evidence does not establish that the Provincial (and, thus, the first defendant) appointed the Principal. Rather, the evidence tends to establish that the Provincial would make a recommendation and consult with the Director of the CEO of the Diocese, who was “responsible” for that appointment. The fact that the Provincial rather than, say, the Director of the CEO, would make the announcement does not materially add to, less still alter, the position.

The Court did not accept the argument of the Diocese that there was a joint operation of the school (at [529]).

In relation to child protection policies as an aspect of joint control, the Court provided at [544] – [546] as follows:

The second defendant made multiple submissions about, or in connection with, child abuse matters or policies.

These included a submission that the first defendant, at least by the late 1980s, was “confronted with a large number of complaints of child sexual abuse” which led to its making changes within its own structures and improving its child protection strategies by way of response. It also included a submission that the Provincial Council was “practically involved in the operation of its various schools…to ensure this emphasis on child safety carried through”. To this end, the second defendant argued that it was the “expectation of the Provincial Council” that the school Principal would take active steps, for example, “to promote child safety” and, by way of further example, to “implement adequate supervision and be receiving update reports from the Provincial and from the Bishop’s Committee in the area of child protection”.

The matters raised in these submissions are, in my view, of limited significance and do not demonstrate, as the second defendant argued, the first defendant having joint control of the school.

There was a further argument in which the Diocese sought to argue that the Principal was the agent of the Marist Brothers. That argument also failed.

Ultimately, on 10 September 2025, the New South Wale Supreme Court ordered as follows:

First Plaintiff’s claim

In proceedings 2022/00262159, the orders are:

  1. Order the first cross-claim filed 17 July 2023 and third cross-claim filed 10 April 2025 be dismissed.
  2. Make no order as to costs in relation to the first and third cross-claims.
  3. Order the amended second cross-claim filed 31 July 2025 be dismissed.
  4. Order the second defendant to pay the first defendant’s costs of the amended second cross-claim.
  5. Grant liberty to apply, on or before 12 September 2025, 4pm, via the associate to Chen J, in relation to the form of the orders made (including costs).
  6. Order that the exhibits and subpoenaed material be returned forthwith. Any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined [713].

In relation to the agreed orders resolving the action by first plaintiff against the first defendant:

  1. Judgment for the first defendant.
  2. Order that each party pay his or its own costs [714].

Second Plaintiff’s claim

For the above reasons, in proceedings 2023/00108744, I make the following orders:

  1. Judgment for the plaintiff (WXC3) against the second defendant in the amount of $613,387.00.
  2. Order the second defendant to pay the plaintiff’s costs of the proceedings.
  3. Order the further amended second cross-claim filed 31 July 2025 be dismissed.
  4. Order the second defendant to pay the first defendant’s costs of the amended second cross-claim.
  5. Order the third cross-claim filed 14 April 2025 be dismissed.
  6. Make no order as to costs of the third cross-claim.
  7. Grant liberty to apply, on or before 12 September 2025, 4pm, via the associate to Chen J, in relation to:
    a. the calculation of the judgment sum;
    b. the form of the orders made (including costs).
  8. Order that the exhibits and subpoenaed material be returned forthwith. Any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined [569].

Third Plaintiff’s claim

For the above reasons, in proceedings 2023/00185560, I make the following orders:

  1. Verdict and judgment for the second defendant.
  2. Order the plaintiff (GAC) to pay the second defendant’s costs of the proceedings.
  3. Order the third cross-claim filed 10 April 2025 be dismissed.
  4. Order the amended second cross-claim filed 31 July 2025 be dismissed.
  5. Make no order as to costs in connection with the amended second and third cross-claims.
  6. Grant liberty to apply, on or before 12 September 2025, 4pm, via the associate to Chen J, in relation to the form of the orders made (including costs).
  7. Order that the exhibits and subpoenaed material be returned forthwith. Any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined [709].

As I have earlier noted, the third plaintiff resolved his claim against the first defendant on 11 June 2025. Given I have determined the third plaintiff’s action against the second defendant, those agreed orders should now be made and entered – namely:

  1. Judgment for the first defendant.
  2. Order that each party pay his or its own costs [710].

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