Judgment Summary – Supreme Court New South Wales Court of Appeal
Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72
Bell CJ, Leeming JA, Ball JA
In 2024, AA brought proceedings against the Trustees for the Diocese of Maitland-Newcastle alleging that the Trustees had been negligent, had breached its non-delegable duty and was vicariously liable for sexual assaults alleged to have been perpetrated on AA in 1968 by Fr Pickin, who was then an assistant priest in Wallsend, NSW. AA alleged that Fr Pickin invited AA and his schoolmate, Mr Perry, to his bedroom in 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. AA said there was no one else in the presbytery. AA alleged that when Mr Perry was sent to buy cigarettes, Fr Pickin forcibly committed penile- oral intercourse upon him in the bedroom at a time when AA 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 AA, 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 AA “paralytic drunk” or assaulted.
The primary judge found that the appellant breached a duty of care owed by it to AA and also held it vicariously liable for the assaults. Her Honour did not determine the claim that there was a non-delegable duty.
On appeal, it was accepted that judgment based on vicarious liability could not stand after the High Court of Australia’s decision in Bird v DP [2024] HCA 41. The appellant submitted that the primary judge erred in finding that the sexual assaults occurred and that it owed AA a duty of care which had been breached. By a notice of contention, AA sought to uphold the judgment based on a non-delegable duty.
The Court allowed the appeal. Bell CJ and Leeming JA held that there was material error in the primary judge’s reasoning process toward the finding that the assaults occurred, in part because there was an insufficient attempt to reconcile AA’s account with Mr Perry’s account. Ball JA found that there was no such error.
The Court held that it was unnecessary on a rehearing to determine whether the assaults in fact occurred, because it was unanimously held that the Trustees at the time owed no duty of care and no non-delegable duty to AA.
This summary was prepared by the Supreme Court of New South Wales.
