Warning: This article contains descriptions of sexual abuse. The content may be distressing or triggering for some readers. Please take care when reading and consider whether this material is appropriate for you at this time.

By Hudson Digby, Senior Associate

Decision of Chen J in the Supreme Court of New South Wales delivered 10 September 2025.

These proceedings concerned allegations of historical sexual abuse of the plaintiffs as children by a teacher at Parramatta Marist High School. It involves a careful examination by the trial judge of two central factual issues:

1. How will a Court go about assessing a plaintiff’s account of the abuse, where the only other witness (the perpetrator) is long dead?
2. If a religious institute (the Marist Brothers) provides staff, including a Principal, to a school operated by the Diocese as the school authority, which organisation has the ‘care, control and management’ of the school?

Assessment of evidence of the abuse

A significant part of this judgment concerns the plaintiffs’ respective accounts of their abuse, which the second defendant had submitted was unreliable and ought not to be accepted. In the absence of the perpetrator (who died in 1993) to act as a contradictor on the primary allegations, his Honour considered other factual matters alleged as part of the plaintiffs’ overall case, and in respect of which evidence was actually available.

In particular, while the surrounding circumstances satisfied his Honour of the second plaintiff’s account. However, as to the third plaintiff:

• a key part of the third plaintiff’s case in negligence was that he had reported the abuse to a staff member who did nothing in response. His Honour was satisfied that the evidence showed that the report was never made; and
• the third plaintiff gave specific details of how he came to be alone with the perpetrator at the school at night on approximately half the occasions. His Honour found that unchallenged evidence regarding the operation of the school gave rise to serious questions as to how that could have occurred, which were unable to be answered by the third plaintiff.

In rejecting fundamental aspects of the third plaintiff’s overall account, his Honour held considerable reservations about the reliability of the third plaintiff generally, and was not persuaded of the central abuse allegations.

Care, control and management of the school

A further issue before the Court was a cross-claim from the Diocese against the Marist Brothers (who had otherwise settled with each of the plaintiffs).

His Honour considered who could properly be considered to control the school, where the Diocese was the ‘school authority’ (for the purposes of governing legislation), but the Marist Brothers provided the Principal of the school who, in effect, ran the school day-to-day. The Diocese submitted that as the Principal was responsible for the school, and was a Brother put forward by the Marist Brothers, the Marist Brothers jointly operated the school.

His Honour was satisfied that the control exercised by the Principal was subject to the authority of the Diocese only as the school authority. In doing so, his Honour had regard to a written agreement between the defendants, which was in place at the time of the alleged abuse (which documented the responsibility of the Principal as against the Diocese), and was not satisfied the matters raised by the Diocese (including the Marist Brothers’ visitation of the school, and the meetings with the Principal), evidenced joint control of the school.