By Sonya Parsons, Partner and Luke Geary, Partner

A full copy of the case can be accessed here.

This case has been appealed.  Please see our further case note here

The facts of this case can be found in our prior case note, linked here.

By way of short summary, AA alleged that he was sexually abused by a priest of the Diocese of Maitland-Newcastle, Father Pickin, at a presbytery. It was said that Fr Pickin had invited boys back to the presbytery where he provided them with alcohol and in the case of AA, sexually abused him.

The primary judge, Schmidt AJ, found that:

1. The sexual abuse occurred;
2. The Diocese owed AA a duty of care; and
3. The Diocese breached that duty of care including on grounds that two reports had been made in the diocese to other priests about minors having been sexually abused by priests. Notably however, only one complaint had been made to a priest about Fr Pickin.

The Court of Appeal overturned the judgment, although only on a 2-1 basis as to whether the primary judge had a factual basis to accept AA’s account. Notably, the Court of Appeal concurred in finding that no duty of care was owed to AA.

This case will be foundational for historical abuse cases in New South Wales in terms of its commentary on negligence as well as how to plead such cases against proper defendants standing in the shoes of unincorporated associations.

Leeming JA found that the case at first instance had proceeded on an incorrect premise, which was that Fr Pickin was a priest, rather than an assistant priest.  That error was material because an assistant priest – as in the cases of DP v Bird [2021] VSC 850 and CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313 – is subject to the authority of the parish priest. Conversely, the parish priest is directly subject to the authority of the bishop of a diocese. It was also material as the error founded an assumption that Fr Pickin was living in the presbytery alone. However, he was actually living with the parish priest. That was relevant for both the factual underpinning of the findings that the sexual abuse occurred and also the basis for negligence. The relevance to the claim in negligence was that Fr Pickin alone did not determine who he invited to the presbytery.

Most important was Leeming JA’s finding, with which the other judges concurred, that the Diocese did not owe a duty of care to AA because it did not have knowledge, either actual or constructive, of any risk of harm to AA. That was because:

1. The evidence of Father Dillon, a priest who gave expert evidence for AA as to the potential knowledge by senior members of the Catholic Church, was overstated by the primary judge. Fr Dillon was not present in the Diocese of Maitland-Newcastle in 1969 and could not comment on specific knowledge of senior members of that particular diocese;
2. There was no evidence of knowledge by any relevant senior member of the Diocese. The knowledge of another parish priest could not be imputed to a senior member of the Diocese in the same way that every employee’s knowledge is not imputed to the company and instead is fact-dependent;
3. It was not established that in 1969 there was any obligation on the part of a priest to report sexual abuse by another priest to a senior member of the Diocese. Leeming JA stated ‘It is important not to assess what a reasonable person in Fr Doran’s position in 1969 would have done against the expectations and knowledge of 2025’.

As to the importance of pleading against the appropriate unincorporated association, the Court indicated that the dual use of ‘diocese’ to refer to a geographic area as well as the proper defendant – which was actually the Trustees of the Diocese of Maitland-Newcastle, incorporated by statute – was poor pleading. Drafters in these types of claims will need to pay particular attention to this issue.

This decision was significant because of the clear signal that the Court of Appeal has now sent plaintiffs in cases of this nature that involve untested allegations from many decades earlier. The Court indicated that such plaintiffs will be put to significant proof, even in circumstances where there is no living respondent to their allegations of abuse. In setting out their separate reasons, the Chief Justice and Justice Leeming each emphasised the frailties of human memory, the complexity of which is increasingly recognised and remarked upon by courts on the basis of scientific studies, [and which] are more pronounced with the passage of time. The Chief Justice indicated that the removal of the limitation period to permit bringing of cases of this nature does not qualify or modify the scrutiny that such allegations require for judicial determination.

The case indicates a willingness of the NSW Court of Appeal to require plaintiffs to fully grapple with the complex factual and legal issues involved in claiming against an unincorporated association for events that occurred many decades prior. Unlike perhaps in other jurisdictions, in New South Wales judicial leniency will not be given to plaintiffs in cases against unincorporated associations for the criminal behaviour of their members, despite the Court’s acceptance of the ‘justified community outrage’ of sexual abuse. Indeed, the case stands as one of the earliest tests since recent High Court authorities where that Court had faith that the common law process had significant tools to ensure fair trials could be had even in the absence of living respondents to serious allegations of this nature.