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[2026] NSWSC 730
Supreme Court of NSW
2026-09-25
Coleman J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: DPC v Trustees of the Marist Brothers & Anor [2026] NSWSC 730
Hearing dates: 4 September 2026
Date of orders: 25 September 2026
Decision date: 25 September 2026
Jurisdiction: Common Law
Before: Coleman J
Decision: (1) The Amended Notice of Motion filed 24 June 2026 is dismissed.
(2) The Second Defendant is to pay the costs of the Plaintiff and First Defendant.
Catchwords: CIVIL PROCEDURE — application by the Diocese to withdraw an admission in its Defence — whether there is a satisfactory explanation was to why the admission was made — whether there will be some prejudice to the plaintiff and the Marist Brothers if the admission is withdrawn — application dismissed
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Candy v GIO General Limited [2013] NSWSC 810
Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268
Drabsch v Switzerland General Insurance Co Ltd (SC., unreported, 16 October 1996)
Inglis v English Language Company Australia Pty Ltd [2022] NSWSC 1538
National Australia Bank Ltd v Swed [2014] NSWSC 811
New South Wales Land and Housing Corporation v Reilly [2012] NSWCA 286
SLE Worldwide v WGB & Ors [2005] NSWSC 816
WJT v Trustees of the Marist Brothers [2025] NSWSC 1017
Category: Procedural rulings
Parties: DPC (Plaintiff)
Trustees of the Marist Brothers (First Defendant)
The Trustees of the Roman Catholic Church for the Diocese of Parramatta (Second Defendant)
Representation: Counsel:
E Anderson (Plaintiff)
C O’Neill (First Defendant)
D F Villa SC (Second Defendant)
Solicitors:
Koffels Solicitors & Barristers (Plaintiff)
Carroll & O'Dea Lawyers (First Defendant)
MCW Lawyers (Second Defendant)
File Number(s): 2025/00181753
Publication restriction: Nil
These proceedings arise from claims by the plaintiff [1] that he was sexually and physically abused whilst a student at Parramatta Marist High School (the School). The abuse is alleged to have occurred between 1980-1981. The alleged perpetrator of the abuse was a teacher at the school, Mr Graeme Stuart Hawkins.
This judgment concerns an application by the second defendant, the Trustees of the Roman Catholic Church for the Diocese of Parramatta (the Diocese), to withdraw an admission it has made in its Defence that Hawkins was employed by it. The application is resisted by each of the first defendant, the Trustees of the Marist Brothers (the Marist Brothers), and the plaintiff.
[3] The First Defendant, either by itself of together with the Second Defendant employed Graeme Stuart Hawkins (“Hawkins”) as a member of the School’s staff to teach, supervise and provide care to the students of the School.
The Statement of Claim then goes on to plead the alleged sexual abuse and the loss and damage suffered by the plaintiff. It pleads that each of the defendants are liable to the plaintiff in negligence, for breach of a non- delegable duty of care, and vicarious liability.
The Defence of the Marist Brothers was filed on 19 February 2026. In answer to [3] of the Statement of Claim, the Marist Brothers:
a. Denies that it, or the Institute employed Hawkins;
Particulars
i. Hawkins was an employee of the Archdiocese.
ii. Hawkins was paid through the [Archdiocese Catholic Building and Finance Commission]
b. denies that staff working at the School were servants, agents and/or employees of it or the Institute; and
c. otherwise does not admit the paragraph.
The reference to the “Institute” in the Marist Brothers’ Defence is a reference to the unincorporated association known as the Marist Brothers of the Schools (see [1](a) of the Marist Brothers’ Defence).
The Defence of the Diocese was filed on 19 December 2025. In answer to [3] of the Statement of Claim, the Diocese says:
(a) that Graeme Stuart Hawkins (Hawkins) was appointed and engaged by the Principal of the School, as a teacher at the School in approximately 1976;
(b) admits that the first and second defendant employed Hawkins at the material times; and
(c) otherwise, does not admit the balance of the paragraph.
By Amended Notice of Motion filed 24 June 2026, the Diocese seeks leave to withdraw the admission in [3](b) of the Defence. It also seeks leave to file an Amended Defence. Initially, Mr Villa SC for the Diocese said that the Amended Defence would deny that it employed Hawkins. He accepted, however, that because it was the position of the Diocese (as explained below) that it did not know whether it employed Hawkins at the relevant time and needed to make further enquiries, the Diocese would plead a non-admission of that fact.
An order was also sought to set aside a Notice to Produce, however, that notice was not called on and it is unnecessary to deal with that aspect of the motion any further.
There is no substantive dispute about the applicable principles.
Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 12.6(2) provides:
12.6 Withdrawal of matter in defence or subsequent pleading
(1) A party raising any matter in a defence or subsequent pleading may withdraw the matter at any time.
(2) Despite subrule (1), a party may not withdraw any admission, or any other matter that operates for the benefit of another party, except with the consent of the other party or by leave of the court…
1. Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted; Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 per Rogers CJ Comm D, followed in IOL Petroleum Ltd v O'Neill per Young J (Young J, 17 November 1995, unreported) and Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd (full Supreme Court of Victoria, 8 April 1988, unreported), and in that respect not following H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 at 703.
2. The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guideline being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded; IOL Petroleum Ltd v O'Neill (above), in the context of withdrawing a concession made before the Registrar.
3. Where a court is satisfied that admissions have been made after consideration and advice such as from the parties' expert and after a full opportunity to consider its case and whether the admissions should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn; Coopers Brewery Ltd v Panfida Foods Ltd (above) at 745 and 748. Thus a court will not lend its approval to the withdrawal of admissions where, by analogy with the making of amendments, this is actuated by purely tactical reasons; compare Devae Prufcoat Pty Ltd v Altex Industrial Paints Ltd (Cole J, 15 March 1989, unreported).
4. It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission; H Clark (Doncaster) Ltd v Wilkinson (above), in that respect not doubted.
5. Following Cohen v McWilliam and Anor (1995) 38 NSWLR 476, a court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with costs orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party.
[56] This remains a correct statement of the relevant principles after Queensland v JL Holdings Pty Ltd. (Jeans v Commonwealth Bank of Australia (2003) 204 ALR 327 at 330-331; Silver v Dome Resources NL [2005] NSWSC 265 at [8]-[9]). In Jeans v Commonwealth Bank of Australia, the Full Court of the Federal Court said that there was no principle that admissions might or might not be withdrawn, but that the court had a broad discretion to weigh up all matters, with the overall question being to ensure there was a fair trial. (At 330 [18]). Nonetheless, I approach the task of assessing what fairness to the parties requires, guided by the principles expounded by Santow J in Drabsch. It is legitimate and it may be necessary to consider whether the party making the admission did so deliberately, or whether he did so in error, whether the significance of the admission has changed since it was made, for example by reason of other amendments, (Silver v Dome Resources NL at [12]), or whether new evidence has come to light. In this case there is no suggestion that the admission was made in error. There has been no change to the pleadings which has altered the significance of the admissions. It is not suggested that new evidence has come to light which justifies their withdrawal. Where a party, who is legally advised and does not suffer any disability, deliberately and without mistake, admits liability in whole or in part, and there are no relevant changes of circumstance, prima facie, justice or fairness to both parties does not require that it be allowed to change its mind. That is why admissions made with deliberateness and formality are not ordinarily permitted to be withdrawn.
[57] I therefore start from the position that the admissions deliberately and formally made should not be permitted to be withdrawn, unless sufficient cause is shown why they should be. I accept that on some of the grounds upon which the case between SLE and WGB might be decided, or the cross-claim between WGB and Gerling might be decided, it is reasonably arguable, considering only the terms of the two agreements and the pleadings, that SLE might not be liable to indemnify Gerling in respect of the disputed deductions. I do not consider that to be a sufficient reason for permitting SLE to withdraw the admissions. The prejudice to Gerling cannot only be measured in terms of the additional cost which it will incur in the litigation, or the costs thrown away by reason of the amendments. The prolongation of the litigation, which has already been prolonged for too long, with the inevitable expenditure of executives’ time, is part of the prejudice which Gerling will suffer if the amendments are allowed.
[58] I do not accept that on an application of this kind, a party opposing the withdrawal of admissions must necessarily adduce specific evidence of particular prejudice, such as the unavailability of a named witness or loss of identified documents. The conduct to be investigated goes back eight years. Although there was no specific proof that evidence may be unavailable to Gerling because witnesses memories have dimmed, or witnesses or records are no longer available, I can assume that there is a serious risk that that will be so. (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551). On the other hand, it is likely that any evidence that is now unavailable would also have been unavailable to Gerling had its right to an indemnity been put in issue by SLE when it filed its defence to Gerling’s cross-claim one year ago. However, I do not consider that that is the relevant comparison. There are three parties with an interest in WGB’s right to make the deductions: WGB, SLE and Gerling. If, when it instituted proceedings in 2002, SLE had contended that it was not liable to indemnify Gerling in respect of the disputed moneys withdrawn by WGB, then Gerling would have been a proper party to the Summons. If SLE had not joined it, Gerling would have been entitled to apply for an order that it be added as a party to the proceedings, and that application is likely to have been successful. However, on the basis on which SLE maintained its claim, Gerling had no occasion to make such an application. I do not consider that the question of prejudice to Gerling from the late raising of the issue can be assessed only by reference to the time between SLE filing its defence to Gerling’s cross-claim, and its applying for leave to amend the defence.
Consistent with what was said by Santow J in Drabsch v Switzerland Insurance, a party who makes a clear and distinct admission on a factual question, which is accepted and acted upon by the opponent, should not be permitted freely to withdraw that admission. Whether or not it is appropriate to grant leave will depend upon the particular circumstances of the case and an assessment of the interests of justice. The relevant circumstances include the nature of the admission, how it came to be made (for example, whether it was made deliberately or inadvertently), when and why the party seeks to withdraw the admission and the impact of any withdrawal on the other parties to the litigation.
These principles have been followed and applied, noting that regard must now be had to ss 56-58 and 64 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act): see New South Wales Land and Housing Corporation v Reilly [2012] NSWCA 286 at [52] (per Beazley JA) and the High Court’s decision in Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 27. Also see National Australia Bank Ltd v Swed [2014] NSWSC 811 at [9] (per Davies J)
In Candy v GIO General Limited [2013] NSWSC 810, Campbell J, after referring to the authorities setting out the general principles, said at [59]-[61]:
[59] All of these statements of principle, of course, precede the enactment and commencement of the Civil Procedure Act and the discussion of the legal effect of similar efficiency provisions of the Court Procedure Rules 2006 (ACT) in Aon Risk Services Australia Limited v. Australian National University [2009] HCA 27; 239 CLR 175. The principle enunciated by Bowen LJ in the passage I have quoted has survived the realignment of relevant considerations effected by ss.56 - 58 Civil Procedure Act. Later comments by his Lordship about the curative effect of costs orders have not (AON at 189[25] per French CJ; at 211[93] and 213[99] - 214[101]).
[60] The statutory imperative, and the High Court's explanation of it in AON, may require an approach somewhat different from that explained by Santow J. In particular, his reference to case management considerations not being decisive obviously needs to be reviewed; clearly in some, perhaps many, cases such considerations will be decisive. AON provides a clear example. However, only the plaintiff, of all the parties opposing Zurich's application, argued case management considerations were of other than some, not decisive, relevance. GIO, the party entitled to the benefit of the admission, as it were, did not argue that such considerations were decisive in the present case.
[61] Too much should not be read into Santow J's observations about admissions "contrary to the actual facts". An application for leave to withdraw will most often be made before the facts have actually been determined following a trial. Sometimes at an interlocutory stage, the true facts will appear with certainty. But usually, the best that can be said is that they are contestable. Consistently with the approach taken to other instances of interlocutory relief, it may be sufficient if it appears from the material presented in support of the application that there is a reasonable prospect that evidence will be lead at the trial which, if accepted, will support a finding which contradicts the admitted fact: Yu v Speirs [2001] NSWCA 373. Naturally, a consideration expressed this way could rarely be decisive.
The authorities have recognised that a significant matter in determining where the interests of justice lie in an application for leave to withdraw an admission, is whether the facts admitted are contrary to the evidence or the actual facts: Drabsch summary point 4; For The Good Times Pty Ltd v Coltern Pty Ltd [2007] NSWSC 108 at [4] (‘For The Good Times’); Candy at [61]; Swed at [10]. The rationale that underpins this guiding principle has been variously expressed, and includes because “the court is after the truth” (For The Good Times at [3]) and its concern to avoid a “case being determined on a false premise” (Hill End Gold Ltd v First Tiffany Resource Corp [2008] NSWSC 866 at [59]).
Mr Villa SC for the Diocese submitted that in line with the principles dealing with withdrawal of admissions, this is an appropriate case to grant leave. He submitted that this application needed to be considered in the context of two other proceedings in this Court dealing with claims of sexual abuse of students at the School by Hawkins. Those matters are:
WJT v Trustees of the M**arist Brothers [2025] NSWSC 1017 (WJT); and
KLS [2] v Trustees of the Marist Brothers (proceedings number 2025/00075066) (KLS).
In each of those cases, as here, the Marist Brothers are the first defendant and the Diocese the second defendant. Each proceeding concerned claims that Hawkins was the perpetrator of the sexual abuse on students at the School.
WJT was determined by Chen J after a hearing. In that case, the Diocese admitted that Hawkins was its employee. Mr Villa SC submitted, however, that the factual basis for that acceptance was different. He said it was based on an agreement that was in force between the Marist Brothers and the Diocese at the time the abuse in that case occurred (1991 to 1993). The agreement was first proposed in October 1987 and commenced in September 1989. The document embodying the agreement became known as Document MS/003 in the WJT proceeding.
Mr Villa SC submitted that in this case, the arrangements between the Marist Brothers and the Diocese are not governed by that agreement. He noted the allegations of abuse in this case occurred some 10 years prior to MS/003 coming into effect.
In terms of the explanation as to why the admission was made, Mr Villa SC referred to the affidavit of Bianca Wallace affirmed 15 May 2026. In that affidavit, at [5]-[10], the full extent of the explanation for the making of the admission in the defence is given as follows:
5. In these proceedings, the Diocese has accepted liability for the Catholic Archdiocese of Sydney, on the basis that the Diocese was formed out of the Archdiocese of Sydney in approximately May 1986 and the School is now contained in the geographical area previously forming the Archdiocese of Sydney.
6. In the matter of WJT v Trustees of the Marist Brothers [2025] NSWSC 1017, the Diocese admitted that it was the employer of Hawkins in relation to the abuse of WJT that took place between 1991 and 1993.
7. In the second defendant's Defence, filed in the proceedings on 19 December 2025, it was admitted that the Diocese was the employer of the plaintiff.
8. In the course of seeking documents for the purposes of the proposed cross claim between the first and second defendants, I discovered for the first time a document which appears to be a draft Agreement from 1966 between the Archdiocese and Religious Congregations (which refers to the first defendant, the Marist Brothers). Clause 12 of the draft Agreement relevantly stated:
'The Principal of each school will utilize the central fee billing system and the central lay teacher payment service established by the Catholic Building and Finance Commission and shall forthwith pay to the Commission the accounts rendered from time to time for these services.
It is agreed and declared that the service supplied by the Catholic Building and Finance Commission in respect of the payment of lay teachers shall not in any way constitute the relationship of employer and employee between the Commission and the teacher who shall at all times remain the employee of the Congregation...'
9. I had previously been instructed that, when the Diocese was formed, the Archdiocese was in the same position as the Diocese - with the engagement of teaching staff and an employment arrangement with the institution. Rather, this draft Agreement supports a position that lay teachers were employed by the religious congregation with their salary paid by the Archdiocese.
10. Given the discovery of this document, I have now received instructions to amend the Diocese's Defence. Annexed hereto and marked 'A' is the proposed Amended Defence.
In an affidavit affirmed on 8 April 2026, which was not read by the Diocese on this application but included in the evidence read by the Marist Brothers, [3] Ms Wallace says at [8]-[10] that she had previously been instructed that when the Diocese was formed, the teaching staff were employed by the Archdiocese in an arrangement with the School. She said the 1966 Draft Agreement supported a position that lay teachers were employed by the religious congregation with their salaries paid by the Archdiocese.
Mr Villa SC submitted this evidence establishes that Ms Wallace first came across the 1966 Draft Agreement through the production of a large number of documents belatedly produced by the Archdiocese of Sydney. This was in the context of the Diocese only coming into existence in 1986, being carved out of the whole area previously covered by the Archdiocese of Sydney.
Mr Villa SC says that the 1966 Draft Agreement casts some doubt upon whether or not the true position as at 1980/81 with respect to the employment of Hawkins was the same as it was in 1991/93. He submitted that further enquiries need to be made to ascertain the true position. These enquiries would be by way of subpoenas and other compulsory processes. Mr Villa SC explained that until the Diocese is given leave to withdraw the admission, it was not thought appropriate to use these processes.
Mr Villa SC submitted that in these circumstances, it was arguable that Hawkins was not employed by the Diocese at all, but instead was employed by the Marist Brothers at the time of the alleged abuse in this matter. He stressed the Diocese had not exhausted its enquiries into the issue, but that the strength of the argument and evidence in support of the proposition that Hawkins was employed by the Marist Brothers is not a question for this application.
Mr Villa SC noted that the Defence in the KLS proceedings denied that the Diocese employed Hawkins. The withdrawal of the admission will, Mr Villa SC submitted, remove an inconsistency between the Diocese’s pleading in respect of the employment of Hawkins between the pleadings in the two cases. The alleged abuse in the KLS proceedings occurred in 1983/84 and there is no material presently available to suggest the position was different between that time and the time of the alleged abuse in this case. Furthermore, in circumstances where it would be appropriate for the two matters to be heard concurrently or consecutively, with evidence in one being evidence in the other, it is appropriate for the pleadings between those two cases to be consistent.
Mr Villa SC submitted there would be no prejudice to the Marist Brothers or the plaintiff if leave was granted to withdraw the admission because the issue would be investigated and ventilated in the KLS proceedings in any event. If, as he anticipated, the two proceedings would travel together, then there could be no prejudice arising.
Mr O’Neill on behalf of the Marist Brothers submitted that leave should be refused. That is because the admission is not, in fact, wrong and there is no compelling or adequate explanation as to why the admission should be withdrawn.
Mr O’Neill referred in some detail to the analysis of the position undertaken by Chen J in his judgment in WJT. Senior Counsel for the Diocese in that case accepted that the 1966 document was only a draft and that there was no evidence that it was ever put into operation.
Further, Mr O’Neill submitted that whilst it may be that Ms Wallace saw the 1966 Draft Agreement for the first time after receiving documents to prepare the cross claim in this case, her client had sought to rely upon that document in WJ**T for the same purposes. That argument was rejected by Chen J.
Mr O’Neill submitted that there was simply no adequate explanation by the Diocese as to why the admission was made. He submitted it is not sufficient to say that it was on instructions, without further explanation, in light of the circumstances of the matter being known to the Diocese at least since WJT.
Mr O’Neill referred to the fact that in answer to a Notice to Admit Facts and Authenticity of Documents, the Diocese had admitted the authenticity of a “Teacher History Card” of Hawkins produced by the Diocese in the WJT proceedings. [4] That service card records Hawkins working as a teacher at De La Salle School in Bankstown from 30 January 1973 to 28 June 1974, and then at the School from 28 January 1975 through to at least 11 April 1986.
Mr O’Neill also referred to a “Statement of Service” from the Catholic Education Office, Diocese of Parramatta, dated 18 October 1993. This confirms that Hawkins was employed by the Catholic Education Office, Diocese of Parramatta, at the School from 28 January 1975 to 18 October 1993. [5] The Statement of Service records him as having been employed by the Archdiocese of Sydney at Bankstown from 30 January 1973 to 28 June 1974. The Diocese also admitted the authenticity of that document.
Mr O’Neill submitted that the relevance of the KLS proceedings is unclear. He observed that the Defence in those proceedings denying that the Diocese employed Hawkins was not filed until 15 May 2026, being some time after the admission in these proceedings.
Mr Anderson, Counsel for the plaintiff, also made submissions opposing the grant of leave to withdraw the admission. He submitted the admission previously made has not been explained, nor has the basis for the withdrawal of the admission. He noted that there is no suggestion that the admission was a product of inattention or carelessness. Mr Anderson observed that the admission is consistent with the current known facts of the case and other claims relating to Hawkins that have previously been heard and determined by the Court, including WJT.
With respect to the 1966 Draft Agreement, he submitted that no evidence is available to suggest that the draft document ever came into effect.
Mr Anderson submitted the plaintiff has relied upon the admission since it has been made. He says the plaintiff will be prejudiced if the admission is withdrawn because investigations will need to be made as to the position between the defendants as far back as 1966, if not earlier. Given the passage of time, he submitted that it will be difficult to locate records and/or witnesses on the issue.
Finally, because of the Diocese’s position that it needed to make further enquiries, Mr Anderson submitted that the application to withdraw the admission is premature pending the result of those enquiries.
HIS HONOUR: What do I do with the explanation that’s given by Ms Wallace?
MR VILLA: What your Honour does with it, applying some common sense, is this.
HIS HONOUR: Because every pleading is drafted on instructions, Mr Villa.
MR VILLA: Your Honour, we live in a real world where in late 2025 Chen J delivers judgement in WJT and says to the Diocese of Parramatta, notwithstanding what Mr Sheller submitted an notwithstanding the evidence that was adduced in that case and the use that was attempted to be made of it, and that’s important in respect of the 1966 document, there is a finding that you were the employer and there is a rejection of the contention that it was the Marist Brothers who were, relevantly, exercising control or authority over the school and its personnel. In the face of that, [it is] perfectly understandable that the diocese gives instructions to admit employment of Mr Hawkins in these proceedings.
HIS HONOUR: But the diocese knew of the 1966 agreement, draft agreement.
MR VILLA: I accept that.
HIS HONOUR: When it gave those instructions, I mean.
MR VILLA: Yes, but Ms Wallace didn’t and so she didn’t have an opportunity to give any advice to the contrary, so you’ve got a circumstances where there is a finding in respect of the same employee at the same school. Those that it then instructs to prepare the defence is not aware of the 1966 document…
It’s discovery by Ms Wallace…
Your Honour, it’s, in my submission, perfectly plain what has occurred. Those who were given instructions to prepare the defence were not aware of the 1966 document and, therefore, had no reason to challenge or cavil with the instructions that had been given by the diocese and in circumstances where a finding employment had already been made.…
The fact that Ms Wallace only came across the 1966 Draft Agreement for the first time after the admission was made and considers that enquiries need to be made to see whether it, or a system reflecting it, was put into place at or around the time of the alleged abuse in 1980/81, does not provide a proper explanation. There is no evidence supporting the submissions made by Mr Villa SC in the passages extracted above. It would have been a simple matter for Ms Wallace or someone from the Diocese to have given one. There is no information as to who at the Diocese gave the instructions to make the admission, the fact that certain advice was given, and who at the Diocese gave instructions to seek to withdraw the admission and why. There is no evidence as to when the Diocese first became aware of the 1966 Draft Agreement. Ms Wallace does not give any evidence about what steps she has taken to date to ascertain whether the 1966 Draft Agreement did come into effect. Nor does she depose as to what steps she considers are necessary to undertake to further investigate that issue.
The Diocese was aware of the 1966 Draft Agreement from at least the time of the WJT proceedings. It was the subject of debate in those proceedings. Senior Counsel for the Diocese in WJT accepted that there was no evidence that it ever came into effect. [7] There is no explanation as to whether the person at the Diocese giving the instructions in WJT was the same person giving the instructions in this matter.
I accept that the document known as MS/003 came into effect later. It was proposed in October 1987 and commenced in September 1989. It is possible that a different arrangement existed at the time of the alleged abuse in this case as opposed to the time of the alleged abuse in WJT. Mr Villa SC referred to two items of evidence which supported, he submitted, a finding that it was at least arguable that the 1966 document may have come into effect.
First, he referred to an affidavit of Brother Kelvin Brian Canavan sworn 10 August 2010 which was prepared for another matter but tendered in the WJT matter. [8] Brother Canavan is a Marist Brother with extensive experience in the Catholic education system, including with respect to the Catholic Education Office. At [100]-[101] of that affidavit, Brother Canavan said:
100. From 1966, there was an attempt by the CBFC to have the religious orders teaching at Catholic schools in Sydney sign an agreement reflecting the relationship between the order and the CBFC. Two proposed draft agreements were drafted in or about early to mid-1966…
101. A further draft agreement, settled by a solicitor, was circulated in August 1966… However, as I state above, the “system” of Catholic schools suggested in this draft Agreement did not exist at the time, and it was many years before such a developed system existed. (Emphasis added.)
It is accepted by Mr Villa SC that the draft agreement Brother Canavan is referring to in [101] is the 1966 Draft Agreement. He refers to the italicised part of that paragraph to support a submission that such a system as envisaged in the 1966 Draft Agreement may have existed. Even taking this at its highest, I would have expected that Ms Wallace, or someone from the Diocese, provide some explanation of what had been done to investigate what system may have been in place to support an argument that the admission was made in error or ought not to have been made. In any event, Mr Villa’s submission is contrary to the evidence of Mr Slattery referred to below, [9] which is that there is no record that the Marist Brothers ever received or agreed to the 1966 Draft Agreement.
Second, Mr Villa SC refers to a published thesis of a Mr J. J. Luttrell in 1992 titled “YOU’VE TAKEN OUR SCHOOLS! The Role and Development of the Catholic Education Office Sydney, 1939-1987”. [10] That thesis notes that it was in 1987 that the “present role and structure” of the Catholic Education Office stabilised and crystallised after decades of change and debate. [11] That is, it was possible that a different role and structure existed before 1987, including at the time of the alleged abuse in this case, such that the Diocese may not then have been the employer of Hawkins.
Despite the evidence of Mr Slattery and the absence of any evidence that the 1966 Draft Agreement took effect for the School, I am prepared for present purposes to accept the possibility that a system reflecting the 1966 Draft agreement may have existed. However, that possibility was known at the time of the determination of the WJT proceedings. I infer it would have been investigated at that time as Senior Counsel for the Diocese in those proceedings accepted that the 1966 Draft Agreement was “seemingly not entered into”. There is no explanation of what inquiries were made to reach that conclusion, but I presume it was made on instructions and after some investigation. If any such investigations in WJT only covered the period of abuse in that case, this could have been explained.
I do not consider the reference to the thesis above takes the matter any further for the Diocese. It provides no indication over and above the information already known as to whether the 1966 Draft Agreement was ever entered into.
Mr Villa SC criticises reliance on the Statement of Service letter I have referred to at [34] above. He says that it is a document on the letterhead of the Catholic Education Office of the Diocese of Parramatta, an entity that did not exist until 1986. He submits that where that letter says that Hawkins was employed by the Catholic Education Office of the Diocese of Parramatta from 28 January 1975, that cannot be an accurate statement of fact as that entity did not then exist. Rather, the relevant entity was the Archdiocese of Sydney until the Diocese was formed.
This submission ignores, however, that it is accepted that the Diocese is a proper defendant for the purposes of Part 1B of the Civil Liability Act 2002 (NSW) (see [2](f) of the Diocese’s Defence). This means that anything done by the Archdiocese is taken to have been done by the Diocese, and a duty or obligation of the Archdiocese is a duty or obligation owed by the Diocese for the purposes of the proceedings (s 6O Civil Liability Act). This must encompass duties and obligations owed by the Archdiocese if it was the employer of Hawkins at the time of the alleged abuse.
I accept that there will be some prejudice to the plaintiff and the Marist Brothers if the admission is withdrawn.
The solicitor for the Marist Brothers, Mr Slattery, in his affidavit sworn 23 June 2026, says that there are seven claims where the Marist Brothers have been sued where the plaintiff alleges they were sexually assaulted by Hawkins. The Diocese was (or is) a defendant in each claim. The Marist Brothers have denied being the employer of Hawkins in six of the claims, the seventh resolving before their Defence was filed. The Diocese have only denied it was the employer of Hawkins in one of the claims, being the KLS proceedings where it filed its Defence on 15 May 2026.
Mr Slattery deposes to his instructions that the Marist Brothers have no record of ever receiving, executing, or agreeing to the 1966 Draft Agreement. He says if he had known that employment of Hawkins was denied by the Diocese, he would have made further enquiries, particularly of the Marist Brothers who have knowledge of operational aspects of the School and the Diocese. He deposes that he would have spoken to Brother Canavan (who swore the affidavit in 2010 for different proceedings, but which was tendered in the WJT proceeding, as mentioned above at [44]) to obtain evidence about this issue. He says Brother Canavan is now of advanced age and has recent cognitive decline. Another Marist Brother who gave evidence in WJT, Brother Alexis Turton, is now 79 years old. Mr Slattery is unable to say what other Brothers may need to be interviewed if the admission is withdrawn and the Diocese seeks to rely on additional documentary material.
Mr Villa SC submits that there is no prejudice to the plaintiff and the Marist Brothers because the issue of who employed Hawkins is a live one in the KLS proceedings. He says the investigations that need to be done referred to by the plaintiff and the Marist Brothers (and the Diocese) about that issue will be required in those proceedings in any event. He says it is likely those proceedings will travel with this one and anticipates that there will be an application that they be heard together, or consecutively, and that evidence in one be evidence in the other.
The plaintiff has prepared these proceedings on the basis of the admission. Whilst the proceeding has a significant amount of preparation to be undertaken before hearing, if the admission is withdrawn, there will be additional investigations and work to be done on the question of whether Hawkins was employed by the Diocese. That investigations may need to be done in KLS does not change the fact that this will lead to additional delay if the matters were to travel together and place additional burdens on the solicitors for the plaintiff. Such delays would also be a burden on the plaintiff himself who is entitled to have the proceedings dealt with as expeditiously as possible.
In any event, I do not consider that the position in KLS should dictate the result of this motion. The two proceedings have not been ordered to be heard together, or that evidence in one be evidence in the other. The Defence in KLS denies the Diocese employed Hawkins. Mr Villa SC accepted that this would need to be amended to plead a non-admission as the Diocese’s position is that it does not know, at the time of the alleged abuse in these proceedings and in the KLS proceeding, whether it was Hawkins’ employer. That Defence was filed on 15 May 2026. That is the same day the Diocese filed the Notice of Motion seeking to withdraw the admission in this proceeding, and after Ms Wallace had sworn her 8 April 2026 affidavit identifying a proposed Amended Defence in these proceedings pleading a denial of employment of Hawkins.
The Diocese can take whatever course it considers appropriate in the KLS proceeding as to its pleading on the issue of the employment of Hawkins. Of course, its pleading must either admit or not admit the employment of Hawkins, noting that it could not presently deny that fact as it says it does not know the true position. There may also be costs consequences if it maintains a position of non-admission of employment of Hawkins and is ultimately unsuccessful on that issue.
If the result of its investigations in KLS leads to the conclusion that the 1966 Draft Agreement was not entered into, or there is no other evidence to support a non-admission of employment of Hawkins at the time of the alleged abuse in KLS, the Diocese may seek to admit that fact or it can maintain that plea and put the plaintiff to proof on that issue in that proceeding. Alternatively, if the investigations lead to evidence that supports a finding that the Marist Brothers employed Hawkins at the time of the abuse, the Diocese can make another application in this proceeding to withdraw the admission. In that sense, there is force in the submission of Counsel for the plaintiff that this application is premature.
However, the position the Diocese takes in KLS, if different to the position in this proceeding, will have an impact on whether that case and this one run together. This proceeding, not facing delay by reason of investigating the employment status of Hawkins, may run to trial first. I understand there may be tendency and other witnesses that may be called in each proceeding. It would be unfortunate if they must give evidence twice, but the prospect of them doing so should not lead to the Diocese being given leave to withdraw the admission if it otherwise has not satisfied the Court that it is appropriate for it to have leave to do so.
I consider that the dictates of proper case management and the just, quick, and cheap resolution of this proceeding, in the circumstances described above, support a refusal of leave to withdraw the admission. As I have said, this outcome means that if the Diocese maintains its position in KLS, these two proceedings will not run together. However, the proper application of the relevant principles on withdrawal of admissions, the whole of the circumstances of the case and the other proceedings I have referred to, and the dictates of the relevant provisions of the Civil Procedure Act*,* lead me to conclude that leave to withdraw the admission must be refused.
The orders of the Court are:
The Amended Notice of Motion filed 24 June 2026 is dismissed.
The Second Defendant is to pay the costs of the Plaintiff and First Defendant.
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There is a non-publication order of the plaintiff’s name or any information or matter that may identify him.
The name of that plaintiff is subject to a non-publication order of any information or matter that may identify him.
See Court Book (CB) pp 181-192: Exhibit MS1 to the Affidavit of Martin Slattery sworn 23 June 2026.
See CB p 83.
See CB p 85.
Tcpt, 4 September 2026, pp 31(19) - 32(11).
See CB pp 81-82.
See CB p 223.
At [53].
See CB 302.
See CB 306.
DPC
Trustees of the Marist Brothers & Anor
[2009] HCA 27
(2009) 239 CLR 175
(1992) 26 NSWLR 738
(1995) 38 NSWLR 476
(2003) 204 ALR 327
(1996) 186 CLR 541