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[2025] NSWCA 122
mixed. Appeal allowed in respect of the estate of Geoffrey Croft. Judgment for MTH against the estate for $1,346,000, with the estate to pay her costs below and on appeal. Appeal otherwise dismissed; MTH was...
The Court of Appeal concluded that the trial judge made a serious evidentiary error by repeatedly telling MTH that Mr Croft's convictions could not prove the underlying offending. Under the Evidence Act, a certificate of conviction could prove the elements of the offences in this civil case. The Court treated the certificate as if it had been tendered, found that the estate had not rebutted it, and entered judgment for MTH against the estate for $1,346,000. The Court dismissed her claims against the State and Sandra Croft. It held that the State's decisions did not meet the demanding statutory threshold for liability based on special statutory powers, and that the evidence did not establish Mrs Croft's liability.
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2,737 words · generated 06/10/2026
MTH's claim arose from her time as a ward of the State of New South Wales. She became a ward at four years old in 1967 and was placed with Mr and Mrs Phelan, who wanted to adopt her. The adoption did not proceed, including because her birth mother did not consent. By 1978 the Phelans' circumstances and MTH's relationship with them had become difficult. In 1979, when MTH was 16, the State placed her with Geoffrey and Sandra Croft.
36 cited instruments linked from this judgment.
Geoffrey Croft later faced criminal proceedings for offences against MTH and another former foster child, RS. He was convicted in 2019 of two rapes and three indecent assaults against MTH, and four offences against RS. His criminal appeal was dismissed. His later High Court special-leave application was dismissed after his death: [6].
MTH sued the State, Croft's estate and Sandra Croft. Her claims against the State concerned the failure to obtain an adoption order, placing her with the Crofts and matters relating to her relationships with her siblings. She also alleged vicarious liability for departmental officers and Mr Croft. Against the estate, she claimed damages for assaults. Against Mrs Croft, she alleged that she had failed to prevent or report the abuse.
The primary judge found for all defendants. A central issue on appeal was that the primary judge repeatedly told MTH that the fact of Croft's convictions was not evidence that the offences had occurred. The Court of Appeal held that this was wrong. The appeal was allowed against the estate, judgment was entered for MTH for $1,346,000, and the appeal was otherwise dismissed: [261].
The Court dealt first with the convictions because the error affected the central factual issue and the primary judge's assessment of MTH's credibility. Sections 91, 92 and 178 of the Evidence Act 1995 (NSW) had to be read together. Section 91 generally excludes evidence of a decision or finding to prove a fact in issue in the earlier proceeding. Section 92 provides an exception for certain convictions in civil proceedings, and s 178 permits proof by certificate. The Court held that a certificate under s 178 could prove the elements of the offence identified in it: [11]-[20], [29].
That evidentiary use is limited. The certificate proves the offence's elements, not every factual detail mentioned in the criminal proceeding or in sentencing remarks. The Court illustrated the distinction by saying that the conviction against Mr Croft could establish the offences against RS, but could not itself establish that Mrs Croft had seen other conduct described in sentencing remarks: [23]-[30]. This limitation mattered to MTH's claim against Mrs Croft, where proof of what Mrs Croft knew or saw required evidence beyond the bare convictions.
The Court rejected the submission that the convictions were unavailable because Mr Croft died before the High Court determined his special-leave application. It reasoned that an application for special leave is not an appeal or review for this purpose; in any event, the application had been dismissed: [16]-[17]. It also explained that ss 92 and 178 displaced the common-law position under which a conviction was not evidence of the facts on which it was based: [18]-[20].
The procedural-fairness error was not simply that the primary judge failed to volunteer legal advice. The judgment draws a distinction between assistance that would compromise impartiality and a judge positively misstating the law. The primary judge inferred that MTH was not relying on the convictions, despite her repeated attempts to establish their significance, and repeatedly told her that they could not prove the abuse: [43]-[53], [69]-[74]. Adamson JA said the judge's failure to appreciate the statute caused him to assess the case as if MTH had to prove the assaults solely through her own oral evidence: [74]. This distorted the credibility assessment because the convictions could have corroborated her evidence: [61], [90].
The Court then considered whether it could treat the certificate as if it had been tendered. It concluded that it could. The certificate was not excluded under s 135(a), since its probative value was high and the Court saw no unfair prejudice to the respondents: [80]. The convictions for offences against RS also had significant probative value for the tendency issue. The relevant common feature was that the offences were sexual and committed against foster children under Croft's authority and care, in a purported disciplinary context: [82]-[83]. Although the tendency notice had not listed the certificate, the Court noted that the notice requirements could have been dispensed with under s 100: [83].
The Court was not persuaded that the estate had suffered forensic disadvantage. The estate had already adduced the evidence it considered relevant to deny the assaults, including evidence of Croft's denials. It could not identify a witness or document that would have materially changed its case had the certificate been tendered: [85]. The estate had accepted that if MTH proved the offences, she was entitled to judgment. The certificate established the five offences, and the denials did not displace that proof: [87]. Judgment for the estate was therefore set aside: [88].
The State claims failed for different reasons. The Court accepted that the duty owed by a guardian to a ward is non-delegable: [157]. But the adoption, placement and family-reunification claims involved the exercise or non-exercise of special statutory powers. Section 43A(3) of the Civil Liability Act 2002 (NSW) required MTH to establish conduct so unreasonable that no authority with the relevant power could properly consider it a reasonable exercise or non-exercise of that power: [157]-[160].
On adoption, the Court considered the statutory framework and historical authorities concerning the serious consequences of adoption without a parent's consent: [94]-[104], [152]-[155]. It accepted that adoption might have been legally available, but found that the State's failure to pursue it did not meet the s 43A threshold. For years, MTH appeared settled and happy with the Phelans, while her birth mother withheld consent. The State could reasonably regard adoption as unnecessary or consider that a contested application might disturb the existing arrangement: [162]-[164].
On placement, the contemporaneous records showed that the Crofts lived relatively close to the Phelans, shared MTH's interest in horses and appeared suitable. The State hoped to support reconciliation with the Phelans. The investigations did not reveal a risk of harm, and the Court found no evidence the State knew Croft was violent or sexually abusive before his prosecution: [184]-[187]. The family-reunification claim also failed under the statutory threshold: [189]-[192].
The State was not vicariously liable for Croft because he was not its employee. The Court applied the employment-relationship requirement described in Bird v DP: [194]. It also found no pleaded conduct by the departmental officers capable of founding the alleged vicarious-liability case: [193].
Mrs Croft's appeal result turned on the evidence and the scope of the alleged duty. MTH did not say Mrs Croft witnessed the assaults. On MTH's account, she disclosed the abuse shortly before leaving the Crofts' care. The Court concluded that the evidence, even taken at its highest, could not establish that Mrs Croft was liable for failing to act in those circumstances: [211]-[214].
Finally, the Court reassessed damages because the primary judge's assessment was affected by the mistaken credibility evaluation and by treating the long period of suppressed memory as a period without suffering. It assessed general damages at $400,000, aggravated damages at $150,000, and included buffers for economic loss and future treatment expenses: [220]-[253]. The total was $1,346,000: [254].
The judgment describes the earlier common-law position as excluding a conviction from proof of the facts on which it was based. It draws on the Australian Law Reform Commission's 1985 interim report, which criticised that rule because convictions represent a judicial determination reached under a high criminal standard of proof and may be probative in later civil proceedings: [18]. The Court treated ss 92 and 178 as statutory changes intended to overcome that common-law restriction: [18]-[20].
The statutory position is not that a conviction conclusively determines civil liability. Rather, an eligible conviction certificate can prove the elements of the offence, while leaving the opposing party able to adduce evidence against it. The Court described the evidence as prima facie proof and noted that the conviction was not conclusive: [45]-[46], [61]. The certificate does not extend to all facts recited in sentencing remarks, trial transcripts or other documents: [23]-[30].
The judgment also clarifies the division between conviction evidence and tendency evidence. The RS convictions were relevant to the tendency question because of the shared features identified at [83]. That is distinct from using those convictions to prove the elements of the offences against MTH under ss 92 and 178. The Court considered the s 97 significant-probative-value test by asking whether the conduct supported the asserted tendency and made the alleged conduct against MTH significantly more likely, assuming the tribunal accepted the evidence: [82]-[83].
On self-represented litigants, the judgment recognises that the same rules apply to all litigants and that a judge cannot become an advocate. It nevertheless holds that a judge must not positively mislead an unrepresented party about the law. A failure to provide assistance may cause a trial to miscarry even without bias: [65]-[69]. The Court's decision is specific to the combination of circumstances here: MTH's repeated efforts to rely on convictions, the judge's incorrect statements about their effect, and the resulting impact on the principal credibility finding: [69]-[74].
For public-authority negligence, the judgment applies s 43A(3) as a heightened statutory threshold where the claim is based on the exercise or non-exercise of a special statutory power. It explains that this operates as an altered standard of care, not as a conventional defence: [157]-[160]. The judgment therefore distinguishes the existence of the State's non-delegable guardianship duty from whether liability could be established for the particular statutory decisions challenged.
At [13], s 178(3) says a certificate is evidence of the “particular offence” stated in it. In plain English, the certificate can establish the offence's legal elements, not just that a conviction was recorded.
At [29], the Court says the decisions establish that a certificate is admissible to prove the offence, its date and the identity of the offender and victim. This is the practical rule applied to MTH's civil claim. It does not mean every detail from the criminal trial becomes evidence automatically.
At [61], Adamson JA said the trial judge “should have started with the convictions”. The point is not that oral evidence became irrelevant. The convictions supplied prima facie proof and could corroborate MTH's account, so the evidence needed to be assessed cumulatively.
At [69], the Court said it was of “signal importance” that a judge not positively mislead a self-represented litigant about the law. In plain terms, judicial impartiality does not justify repeating a wrong legal proposition to an unrepresented party, particularly where that proposition affects how the party presents the case.
At [83], the Court identified common features between the offences against RS and those against MTH: both involved sexual assaults against foster children under Croft's authority, care and control, in circumstances connected with purported discipline. These features supported significant probative value for tendency purposes. The Court did not hold that dissimilarities are irrelevant in every case; it applied the statutory test to the features of this record.
At [163]-[164], the Court found the State's adoption decision did not meet s 43A's demanding standard. In plain English, showing that another course might have prevented harm was not enough. MTH had to satisfy the statutory test applicable to the State's exercise or non-exercise of power.
At [242], aggravated damages were awarded because the assaults involved power, sexual gratification and violence, causing terror and trauma. The award was compensatory and additional to general damages, with the Court expressly noting the need to avoid double-counting.
The evidentiary holding is most directly relevant where a civil claim concerns conduct for which the defendant was convicted, the conviction is not subject to one of the statutory exclusions, and a certificate under s 178 identifies the offence. A party relying on it must distinguish the elements of the offence from detailed facts in sentencing remarks or other materials: [23]-[30]. The judgment does not make the certificate conclusive; contrary evidence may still be relevant: [45]-[46].
The procedural-fairness reasoning is triggered by a combination of circumstances, not merely by a party appearing without a lawyer. Here, the litigant repeatedly indicated that convictions mattered, the judge incorrectly stated they could not prove the offending, and the misunderstanding affected the trial's central issue: [50]-[53], [69]-[74]. The judgment cautions against turning that fact-specific holding into a general rule that judges must identify every legal argument or evidentiary route for self-represented parties: [65]-[69].
The tendency discussion may matter where evidence of other offences is relied on to establish a tendency relevant to the disputed conduct. The Court focused on the connection between the alleged tendency and common features of the incidents, including the victims' foster-care status and Croft's authority over them: [82]-[83]. The threshold remains “significant probative value”, and the judgment does not remove the statutory notice requirements, although it notes the possibility of dispensing with them under s 100: [83].
The s 43A reasoning applies where a negligence claim is based on a public authority's exercise or non-exercise of a special statutory power. The judgment's analysis depends on identifying the particular power and showing why the conduct crosses the statutory threshold: [157]-[160]. It does not decide every claim against a public authority or eliminate a guardian's non-delegable duty.
The judgment is dated 6 June 2025. The supplied text contains no decisions after that date applying or distinguishing MTH v State of New South Wales. It would therefore be unsupported to describe its subsequent treatment or to claim that later courts have adopted its reasoning.
Within MTH itself, the Court relied on earlier decisions concerning the statutory use of conviction evidence. It referred to Gonzales v Claridades, Sukkar and Livanes when explaining that the certificate proves the elements of an offence but not additional detailed facts in sentencing reasons: [21]-[25]. It also considered the Victorian Court of Appeal's reasoning in Osborne v Butler and the Full Court decision in Dajani v Dajani: [26]-[28].
For procedural fairness, the Court cited Rajski and Nobarani on the obligations owed to self-represented litigants, and applied the reasoning in Lee v Cha and Turner v Norwalk Precast Burial Systems Pty Ltd: [66]-[69]. For tendency evidence, it applied Roder, Bauer and Hughes: [82]-[83]. For the State's statutory-power claims, it applied Hunt Leather and Della Franca: [160]. These are the authorities' treatment as described in this judgment, not evidence of later appellate endorsement of MTH.
The Court expressly left open whether s 93(c) of the Evidence Act, which preserves res judicata and issue estoppel, also covers a form of abuse of process involving relitigation of an issue decided against a party: [45]. It did not need to decide that question because the statutory evidence rules were sufficient to resolve the conviction issue.
The decision also does not establish that a conviction certificate will always survive an objection under s 135 or always satisfy the tendency threshold under s 97. It rejected those objections on the evidence and circumstances before it: [80]-[83]. The probative value and potential prejudice will depend on the particular certificate and the issues in the case.
The procedural-fairness holding leaves the general boundaries of judicial assistance to self-represented litigants unresolved. Adamson JA said it was unnecessary to define those limits generally, while identifying the specific obligation not to positively mislead a litigant about the law: [64]-[74]. The decision does not require judges to provide legal advice or conduct a party's case.
The State claims were decided under s 43A and on the evidence about the decisions made in MTH's circumstances. The judgment does not determine how that provision would apply to different statutory powers or different evidence concerning what a public authority knew or did. Similarly, its conclusion about Mrs Croft rests on the evidence about whether she witnessed abuse, what MTH allegedly told her, and when MTH left the Crofts' care: [211]-[214].
This is general legal information, not legal advice. Zoe can make mistakes, and a qualified Australian lawyer should check this before you act on it, rely on it, or use any draft.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: MTH v State of New South Wales [2025] NSWCA 122
Hearing dates: 7-8 May 2025
Decision date: 06 June 2025
Before: Mitchelmore JA at [1]
Adamson JA at [2]
Price AJA at [262]
Decision: (1) Allow the appeal in respect of the judgment in favour of the second respondent.
(2) Otherwise dismiss the appeal.
(3) Set aside the judgment ordered by Cavanagh J in favour of the second defendant and the order in respect of the second defendant’s costs and, in lieu thereof:
(a) Order judgment for the plaintiff on her claim against the second defendant in the sum of $1,346,000.
(b) Order the second defendant to pay the plaintiff’s costs of the proceedings in the Court below.
(4) Order the appellant to pay the first and third respondents’ costs of the appeal.
(5) Order the second respondent to pay the appellant’s costs of the appeal.
(6) Direct the parties to provide within 14 days short minutes of order proposing:
(a) a consent order to address the freezing order made in the proceedings in the Court below; or
(b) if consent cannot be reached, a draft minute of order which sets out the order for which the party contends together with a short written submission in favour of that party’s version, which the Court will determine on the papers.
Catchwords: EVIDENCE — certificate of conviction — where certificate of conviction is admissible to prove elements of offences for which the perpetrator was convicted — where primary judge misled a litigant in person as to the effect of the Evidence Act 1995 (NSW) — where primary judge denied appellant procedural fairness — whether Court of Appeal ought approach the matter as if the certificate of conviction had been tendered — where primary judge misapprehended the effect of ss 91, 92 and 178 of Evidence Act — where primary judge’s failure to appreciate the admissibility of certificate of conviction to prove elements of offences compromised assessment of the credibility and reliability of the appellant — Evidence Act 1995 (NSW), ss 91, 92, 178
EVIDENCE — tendency evidence — civil proceedings — tendency rule — whether certificate of conviction had significant probative value — Evidence Act 1995 (NSW), ss 97, 100, 135
NEGLIGENCE — duty of care — vicarious liability — whether the State breached its duty of care to the appellant by failing to apply for an adoption order — whether the State breached its duty of care to the appellant by placing her with the perpetrator — whether the State breached its duty of care to the appellant by failing to foster her relationships with her natural siblings — whether the State is vicariously liable for the conduct of the appellant’s former foster carers — whether third respondent breached her duty of care to the appellant by failing to prevent or report the abuse
TORTS — trespass to the person — assault — battery — sexual assault — where appellant was physically and sexually abused by her foster carer while a ward of the State — where second respondent had been convicted of criminal offences against the appellant
APPEALS — where appellate court has found error — whether court should resolve issue to avoid economic and emotional costs of re-trial — Supreme Court Act 1970 (NSW), s 75A
TORTS — general principles –– damages –– aggravated damages –– buffer for past and future economic loss – earning capacity
Legislation Cited: Adoption of Children Act 1965 (NSW)
Child Welfare Act 1939 (NSW), ss 10, 23
Crimes Act 1900 (NSW), ss 63, 76
Evidence Act 1995 (NSW), ss 91, 92, 93, 97, 135, 178
High Court Rules 2004 (Cth), r 41.08.1
Cases Cited: Bennett v Minister of Community Welfare (1992) 176 CLR 408; [1992] HCA 27
Bird v DP [2024] HCA 41; (2024) 98 ALJR 1349
Black v Young [2015] NSWCA 71
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13
Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185; [1966] HCA 38
Chevalley v Industrial Court of New South Wales (2011) 82 NSWLR 634; [2011] NSWCA 357
Croft v R [2021] NSWCCA 146
Dajani v Dajani [2025] FedCFamC1A 28
Della Franca v Lorenzato; Burwood Council v Lorenzato [2021] NSWCA 321; (2021) 250 LGERA 136
Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644
Edwards v State Trustees Limited (2016) 54 VR 1; [2016] VSCA 28
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508
Gonzales v Claridades (2003) 58 NSWLR 211; [2003] NSWCA 227
Hollington v R Hewthorn & Co Ltd [1943] KB 587
Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20
Lee v Cha [2008] NSWCA 13
Mace v Murray (1955) 92 CLR 370; [1955] HCA 2
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3
Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501
Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36
Osborne v Butler (2024) 73 VR 386; [2024] VSCA 6
Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325
Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341
Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34
R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469
Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep)
Re B & the Adoption of Children Act 1965 [1979] 2 NSWLR 915
Re K (an infant) [1973] 1 NSWLR 311
Re S and the Adoption Act 2000 (NSW) (2006) 68 NSWLR 61; [2006] NSWSC 1062
Singh v The Queen [2020] HCA 25; (2020) 94 ALJR 714
State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57
The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40
Transport for NSW v Hunt Leather Pty Ltd; Hunt Leather Pty Ltd v Transport for NSW [2024] NSWCA 227
Troulis v Vamvoukakis [1998] NSWCA 237
Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94
United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60
Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407
Texts Cited: Australian Law Reform Commission, Evidence (Interim Report No 26, 1985)
Category: Principal judgment
Parties: MTH (Appellant)
State of New South Wales (First Respondent)
Estate of the late Geoffrey Croft (Second Respondent)
Sandra Croft (Third Respondent)
Representation: Counsel:
Self-represented (Appellant)
C P O’Neill (First Respondent)
K W Andrews (Second Respondent)
P A Tierney (Third Respondent)
Solicitors:
Not applicable (Appellant)
Makinson D’Apice Lawyers (First Respondent)
Keypoint Law (Second Respondent)
Moin Morris Schaefer (Third Respondent)
File Number(s): 2025/34755
Publication restriction: Publication of names and any information or material that may lead to the identification of the appellant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A
[This headnote is not to be read as part of the judgment]
MTH (the appellant) was made a ward of the State at the age of four and was placed with long-term foster carers, the Phelans. During most of the period of the twelve years MTH was living with them in northern New South Wales and Queensland, the Phelans wanted to adopt her. This did not proceed as her birth mother did not consent. In about 1978, there were difficulties between MTH and Mr Phelan which were compounded by his health problems which meant that the Phelans could no longer care for MTH. In 1979, the State placed her temporarily with Geoffrey and Sandra Croft on their rural property in northern New South Wales. During the period of this placement, Mr Croft raped the appellant twice and indecently assaulted her three times. Mr Croft was convicted of these five offences in 2019. In the same proceedings, Mr Croft was also convicted of four indecent assaults against RS (a foster child who stayed with the Crofts prior to 1979).
MTH brought claims against three defendants, who were the respondents on the appeal. Against the first respondent, the State of New South Wales, she alleged negligence in failing to apply for an adoption order in favour of the Phelans (the adoption case); in placing her with the Crofts (the placement case); and in failing to foster her relationships with her natural siblings (the family reunification case). She also sought to hold the State vicariously liable for Mr Croft’s acts and the failings of officers of the relevant Department (vicarious liability case). Against the second respondent, the estate of Geoffrey Croft, she claimed damages for the sexual and physical assaults perpetrated against her in 1979. As against the third respondent, Sandra Croft, she alleged negligence in failing to prevent or report the abuse.
At first instance, the primary judge entered judgments in favour of all the defendants. He found that none of the allegations of abuse had been made out as he did not accept the appellant’s evidence as to the assaults and RS had not been called to give evidence. Notably, his Honour erroneously inferred that the appellant was not seeking to rely on the convictions against Mr Croft to prove that he had committed the offences for which he was convicted. This significantly impacted the primary judge’s assessment of both the appellant’s reliability and credibility. In addition, his Honour did not correctly construe ss 91, 92 and 178 of the Evidence Act 1995 (NSW), which had the effect of making a certificate of conviction proof of the elements of each of the offences.
The Court held (Adamson JA, Mitchelmore JA and Price AJA agreeing) allowing the appeal against the second respondent with costs, but otherwise dismissing the appeal:
MTH’s challenge to the finding that she had not discharged her onus of proving that Mr Croft had sexually assaulted her
(1) The primary judge’s finding that MTH had not discharged the onus of proving the abuse was plainly affected by two errors. First, his Honour wrongly inferred that MTH was not relying on the convictions. Secondly, he misunderstood the effect and operation of ss 91, 92 and 178 of the Evidence Act: [60] (Adamson JA).
(2) The primary judge should have started with the convictions. Had a certificate under s 178 been tendered, it would have provided prima facie evidence of the elements of each offence. To the extent that MTH gave evidence of those elements, her account would have been corroborated by the certificate: [61] (Adamson JA).
(3) The effect of ss 91, 92 and 178 of the Evidence Act is that a certificate of conviction is admissible to prove the elements of Mr Croft’s offences: [63] (Adamson JA).
(4) The primary judge denied MTH procedural fairness by not alerting her to the evidentiary pathway which the Evidence Act allowed to enable her to prove the commission of the offences by tendering a certificate of conviction: [69]-[74] (Adamson JA).
(5) Accordingly, the Court ought approach the matter as if the certificate of conviction had been tendered considering that it: (i) was not inadmissible by reason of s 135(a); (ii) was not inadmissible for a tendency purpose under s 97; and (iii) would not have created a forensic disadvantage against the estate: [59]-[86] (Adamson JA).
Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94; Lee v Cha [2008] NSWCA 13; Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644, applied.
Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep); Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36; The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40; Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, cited.
MTH’s challenge to the judgment in favour of the estate
(5) The estate accepted that if MTH established the offences in respect of which Mr Croft was convicted, she was entitled to judgment against them. Accordingly, the certificate of conviction established that Mr Croft raped the appellant twice and indecently assaulted her three times. The only contradictory evidence was Mr Croft’s denials, which were insufficient to displace the certificate or MTH’s evidence: [87] (Adamson JA).
(6) Therefore, judgment in favour of the estate must be set aside and judgment must be entered in favour of the appellant: [88] (Adamson JA).
MTH’s challenge to the judgment in favour of the State
(7) The duty of care owed by a guardian to a ward is non-delegable.
Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407; Bennett v Minister of Community Welfare (1992) 176 CLR 408; [1992] HCA 27; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13, applied.
(8) Each of the adoption, placement and family reunification cases concerned alleged negligence by the State in the exercise or failure to exercise a special statutory power (under either the Adoption Act 1965 (NSW) or the Child Welfare Act 1939 (NSW)). The effect of 43A of the Civil Liability Act 2002 (NSW) was to require MTH to show that the State’s exercise of, or failure to exercise, such a power is in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. MTH failed to discharge the onus in respect of any aspect of the case brought against the State.
Transport for NSW v Hunt Leather Pty Ltd; Hunt Leather Pty Ltd v Transport for NSW (2024) 115 NSWLR 489; [2024] NSWCA 227; Della Franca v Lorenzato; Burwood Council v Lorenzato [2021] NSWCA 321; (2021) 250 LGERA 136, applied.
(9) As to the adoption case, it was not unreasonable for the State to consider that an adoption order was unnecessary or that a contested adoption request (in spite of the appellant’s birth mother’s wishes) could disrupt the equilibrium which existed for many years between MTH and the Phelans and provoke her intervention. By the time MTH’s birth mother died, it was not unreasonable for the State to put the question of MTH’s adoption by the Phelans on hold: [163] (Adamson JA).
Re S and the Adoption Act 2000 (NSW) (2006) 68 NSWLR 61; [2006] NSWSC 1062; Mace v Murray (1955) 92 CLR 370; [1955] HCA 2; Re B & the Adoption of Children Act 1965 [1979] 2 NSWLR 915; Re an Infant, K [1973] 1 NSWLR 311, applied.
(10) As to the placement case, it was not unreasonable for the State to consider the Crofts to be suitable since they lived in relative proximity to the Phelans, thereby increasing the prospects of a reconciliation between MTH and Mr Phelan. There was no suggestion that the State was aware at any time until the prosecution of Mr Croft that he was violent or sexually abusive. The investigations and enquiries which the State performed in relation to the Crofts did not reveal any risk of harm in the placement: [184], [185] (Adamson JA).
(11) As to the vicarious liability case in respect of the officers of the Department, there was no act or omission alleged against them which could found a case against the State. As to the vicarious liability case in respect of Mr Croft’s conduct towards MTH, the State was not liable for that conduct as Mr Croft was not an employee of the State.
Bird v DP [2024] HCA 41; (2024) 98 ALJR 1349, cited.
MTH’s challenge to the judgment in favour of Mrs Croft
(12) The appellant’s evidence is not capable of establishing that Mrs Croft is liable for failing to prevent or report the abuse for two main reasons. First, the appellant did not give any evidence that Mrs Croft saw Mr Croft assaulting her, whether sexually or otherwise. Secondly, the duty of care which Mrs Croft owed to the appellant did not require her to do anything about an allegation of that nature in circumstances where the appellant, shortly after the allegation was said to have been made, was no longer in the care of the Crofts: [211]-[214] (Adamson JA).
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited.
MTH’s challenge to the primary judge’s assessment of damages
(13) The primary judge assessed damages in the event the findings on liability were overturned by this Court. The assessment was set aside and damages reassessed because the finding that no pain and suffering had been suffered in the period of almost thirty years after the abuse because MTH had, on her own evidence, suppressed it was not open. The assessment was also flawed because it was affected by the primary judge’s assessment of MTH’s credibility and reliability which disregarded the corroborative effect of the convictions.
(14) Aggravated damages awarded because of the cruel, violent and degrading manner of the wrong.
State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57, cited.
(15) A buffer for past and future economic loss was appropriate because the evidence did not permit a more precise award to be made.
Black v Young [2015] NSWCA 71, cited.
MITCHELMORE JA: I agree with Adamson JA.
ADAMSON JA: The appellant, MTH, appeals against the judgments entered in favour of the first respondent, the State of New South Wales (the State), the second respondent, the estate of the late Geoffrey Croft (the estate), and the third respondent, Sandra Croft, by Cavanagh J (the primary judge) on 28 November 2024. She also appeals against the costs orders made that she pay the State’s costs on the ordinary basis up to and including 30 July 2020 and on an indemnity basis thereafter and that she pay the costs of the estate and Mrs Croft on the ordinary basis.
The notice of appeal contains 33 grounds of appeal. It is not necessary that they be addressed separately since, as submitted on behalf of the estate, they fall into seven discrete categories as follows:
alleged failure to allow evidence from the criminal proceedings and tendency evidence to be admitted (grounds 1, 4, 26, 27 and 29);
alleged failure to find that Mr Croft, and since his death his estate, liable for the alleged tortious conduct of Mr Croft (ground 25);
alleged failure to find that the estate abused the process of the Court by disputing that he sexually assaulted the appellant;
other alleged failures relating to the admission or rejection of evidence (grounds 2, 5-19, 21, 23, 24 and 27);
alleged erroneous assessment of damages (ground 28);
alleged errors with respect to costs orders (grounds 17, 20, 28 and 30-32); and
other miscellaneous errors (grounds 3, 22, 29 and 33).
For the reasons given below, I consider that the appeal in respect of the estate ought be allowed and judgment entered in favour of the appellant against the estate with costs. I also consider that the primary judge’s assessment of damages was erroneous and can be reviewed by this Court. The appeals against the State and Mrs Croft ought be dismissed.
MTH’s claim in the Court below was for damages in tort arising from events which occurred while she was a ward of the State. MTH was born in August 1962 and became a ward of the State in 1967 when she was four years old. Shortly after becoming a ward she was placed with foster parents, Mr and Mrs Phelan, who wanted to adopt her. However, when MTH was 16, Mr and Mrs Phelan’s circumstances changed and she was moved from the Phelan household and placed with short-term foster parents, Mr and Mrs Croft.
Mr Croft was subsequently convicted of five offences committed against MTH during the period 1 February 1979 and 30 April 1980: two offences of rape contrary to s 63 of the Crimes Act 1900 (NSW) and three offences of assaulting a female over the age of 16 years and committing an act of indecency against her contrary to s 76 of the Crimes Act. In the same proceedings, Mr Croft was also convicted of four sexual assaults against RS, who with his brother had been fostered by the Crofts for a period which included the period between 17 November 1976 and 1 October 1977. Mr Croft’s appeal against his convictions was dismissed by the Court of Criminal Appeal: Croft v R [2021] NSWCCA 146. He later applied for special leave to appeal to the High Court. However, as he died on 22 April 2022 before the application was determined, the High Court dismissed the application on 16 June 2022 (Croft v The Queen [2022] HCASL 120), pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), as it was no longer possible to grant the relief he sought: Singh v The Queen [2020] HCA 25; (2020) 94 ALJR 714.
MTH alleged that the State:
breached the non-delegable duty which it owed to her by:
(a) failing to complete the adoption process with the Phelans (the adoption case); (b) placing her with the Crofts and failing to monitor, supervise or check-up on her while at the Crofts or for the period after she left the Crofts (the placement case); (c) failing to foster a closer relationship between her and her siblings or to inform her of her mother’s death (the family reunion case); and
was vicariously liable for the conduct of its welfare officers and of Mr Croft (the vicarious liability case).
MTH alleged against Mr Croft that he committed the intentional tort of assault against her by sexually and physically assaulting her while she was in his foster care. MTH alleged against Mrs Croft that she knew of the abuse perpetrated against RS, a boy who was in the Crofts’ foster care at least between 17 November 1976 and 1 October 1977, and that, notwithstanding this knowledge she failed to take steps to stop or prevent the abuse on her by Mr Croft. MTH also alleged that Mrs Croft should have protected her from Mr Croft when she told her of the assaults.
The primary judge found that none of the allegations of assault had been made out as he did not accept MTH’s evidence as to the assaults and RS had not been called. The primary judge was not satisfied that either the State or Mrs Croft was in breach of the duties of care which they owed to MTH. His Honour entered judgment for all defendants accordingly.
The initial difficulty with the primary judge’s findings and orders was that it appears that at an early stage of the proceedings, his Honour inferred that MTH was not seeking to rely on the convictions against Mr Croft to prove that he had committed the offences for which he was convicted. Additionally, it appears that his Honour was under a misapprehension (which appears to have been engendered and supported by the respondents’ legal representatives) that a conviction could not prove that the offence had been committed by the offender. This misapprehension affected not only MTH’s claim against the estate (which could have been established by the certificate of conviction alone, there being no probative evidence directly to the contrary) but also MTH’s allegation that Mr Croft had also sexually assaulted RS. Because this error has the potential to affect the entire trial (since it inevitably affected the trial judge’s assessment of MTH’s reliability and credibility), it will be addressed first.
The certificate of conviction, which certified that Mr Croft had been convicted of the offences referred to above against MTH and RS while they were in the foster care of himself and his wife, was sufficient to establish not only the fact of conviction but also the elements of each offence. For the reasons given below, this is the effect of ss 91, 92 and 178 of the Evidence Act 1995 (NSW). The appellant tendered an email from the police officer who was involved in the criminal proceedings, Detective Acting Sergeant Robinson, which listed the nine charges against Mr Croft involving MTH and RS and noted that a conviction was proved in respect of them. However, the appellant did not tender the certificate of conviction in the Court below for reasons which will be addressed later.
Part 3.5 of the Evidence Act relevantly provides:
Part 3.5 Evidence of judgments and convictions
91 Exclusion of evidence of judgments and convictions
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
Note—
Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.
92 Exceptions
…
(2) In a civil proceeding, section 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction—
(a) in respect of which a review or appeal (however described) has been instituted but not finally determined, or
(b) that has been quashed or set aside, or
(c) in respect of which a pardon has been given.
(3) The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.
93 Savings
This Part does not affect the operation of—
(a) a law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding (including a criminal proceeding) for defamation, or
(b) a judgment in rem, or
(c) the law relating to res judicata or issue estoppel.
178 Convictions, acquittals and other judicial proceedings
(1) This section applies to the following facts—
(a) the conviction or acquittal before or by an applicable court of a person charged with an offence,
(b) the sentencing of a person to any punishment or pecuniary penalty by an applicable court,
(c) an order by an applicable court,
(d) the pendency or existence at any time before an applicable court of a civil or criminal proceeding.
(2) Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or registrar or other proper officer of the applicable court—
(a) showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question, and
(b) stating the time and place of the conviction, acquittal, sentence, order or proceeding, and
(c) stating the title of the applicable court.
(3) A certificate given under this section showing a conviction, acquittal, sentence or order is also evidence of the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate.
(4) A certificate given under this section showing the pendency or existence of a proceeding is also evidence of the particular nature and occasion, or ground and cause, of the proceeding, if stated in the certificate.
(5) A certificate given under this section purporting to contain particulars of a record, indictment, conviction, acquittal, sentence, order or proceeding is also evidence of the matters stated in the certificate.
(6) In this section—
acquittal includes the dismissal of the charge in question by an applicable court.
applicable court means an Australian court or a foreign court.
Note—
Section 91 excludes evidence of certain judgments and convictions.
(Emphasis added.)
Section 178 provides that a certificate of conviction is also evidence of the particular offence. Section 92 only applies to civil proceedings and therefore does not permit a certificate of conviction to be used in subsequent criminal proceedings to prove guilt: Chevalley v Industrial Court of New South Wales (2011) 82 NSWLR 634; [2011] NSWCA 357 at [56]-[58] (Bathurst CJ, Allsop P, Beazley, Basten JJA and Sackville AJA agreeing).
As set out above, s 91 provides that evidence of a decision is not evidence of a fact in issue in the proceedings and the decision must not be used to prove that fact. However, s 92 excepts certain facts, including convictions and orders, unless there is an appeal against the conviction which has been instituted and not finally determined.
Mr Tierney, who appeared for Mrs Croft, submitted that the certificate of conviction was not admissible because it fell within the exception to the exception to s 92(2). He argued that because Mr Croft died before his special leave application was determined on the merits, it remained an appeal which had been instituted but had not been finally determined. In the alternative, he submitted that, if a special leave application was not an appeal, it was nonetheless a “review … (however described)” within the meaning of s 92(2)(a) because the High Court, in deciding whether to grant special leave would be required to “review” the conviction which is the subject of special leave to appeal.
The construction of s 92 of the Evidence Act for which Mr Tierney contended must be rejected. A special leave application is not an appeal: United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [30]-[31] (Gleeson CJ, McHugh and Gummow JJ). Nor is it a review. The word “review” in this context is apt to refer to, for example, a review by way of application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). However, even if it were either an appeal or a review, it was finally determined when it was dismissed by the High Court. Further, the construction for which he contended would be at odds with the evident purpose of the section since its effect would be that a certificate of conviction could never be proved in a civil trial to establish the commission of the offences certified in the certificate if the perpetrator died while an application for special leave or an appeal had not been determined prior to the perpetrator’s death.
Sections 92 and 178 were enacted to overcome the common law rule that convictions were not admissible to prove the commission of offences. This rule was criticised by the Australian Law Reform Commission (ALRC) in Evidence (Interim Report No 26, 1985) at 441:
- The Rule. At common law, a conviction is not admissible in other proceedings to prove the facts on which it is founded ie guilt of the offence charged. The common law rule applies in New South Wales, Victoria, Western Australia and Tasmania. It is open to a number of criticisms.
• Excluding Probative Evidence. The rule is unsatisfactory because fundamentally a conviction deserves recognition as evidence that was more likely to be right than wrong that the person was guilty. A conviction is the result of the judicial procedure, designed over centuries to put the material needed to make a correct decision before the court which has a legal duty to form an accurate opinion on the question at hand. To admit this evidence would not conclude the issue but would make available evidence of high probative value. The probative value of a conviction lies in the high standard of proof that must be satisfied before a finding of guilt can be made. In Hollington v Hewthorn itself, a higher degree of carelessness was required to support a finding of criminal negligence than was required in the civil action in negligence. To exclude evidence of convictions is illogical and ‘scarcely comprehensible to the ordinary intelligent layman’. The common law rule can also lead to injustice where, as in Hollington v Hewthorn itself, a key witness dies after having given the relevant evidence in an earlier proceeding. If evidence of the conviction is not admitted, the plaintiff is forced to abandon his action, which is hardly a just or sensible result.
• Cost and Waste of Time. The common law rule can also lead to a waste of time and expense in duplicating proceedings, because it may lead to an issue being twice fully litigated; eg, in defamation proceedings, where the statement complained of is that the plaintiff is guilty of an offence for which he has been convicted. The defendant in setting up a defence of truth, is forced to reprove de novo the guilt of the plaintiff, because the plaintiff’s conviction is inadmissible to prove his guilt.
(Emphasis added and footnotes omitted.)
Thus, by reason of s 178 of the Evidence Act, MTH was entitled to rely on the certificate of conviction to establish, first, that Mr Croft had raped her twice and indecently assaulted her three times during the period specified; and, second, that Mr Croft had sexually assaulted RS four times during the period specified.
This construction of ss 91, 92 and 178 of the Evidence Act is well established by authority and reflects the purpose of the amendments to these provisions which arose as a result of recommendations made by the ALRC. The utility of a certificate of conviction being able to be used to prove not only the conviction but also the fact of the offence, its date (or period) and the identity of the offender and victim is obvious. These provisions have been used principally in forfeiture cases (where there is a question whether a beneficiary can inherit under a will because of an allegation that the beneficiary has murdered the testator: a certificate of conviction of murder is sufficient to prove that matter); disciplinary cases (where the practitioner has been convicted of an offence); and, as in the present case, claims for damages by a victim of crime against the perpetrator, following the perpetrator’s conviction.
In Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508, the plaintiff’s parents and sister had been killed in their own home. His father was the last to die. His parents made a joint will which, in the events that happened, appointed the defendant as executrix. The plaintiff, Sef, who was charged with the murder of the three family members, sought an advance from the estate to pay the legal costs of defending the criminal proceedings. Campbell J refused the application on the basis that if he were convicted of the murder of his father, the certificate of conviction could be tendered in the civil proceedings as proof that he murdered his father and he would therefore forfeit any benefit he would otherwise have inherited under his father’s will. His Honour explained the effect of s 92 of the Evidence Act as follows:
66 Section 92(3) thus removes the basis for continuing to apply Hollington v F Hewthorn & Co Ltd in this State in civil proceedings where the person convicted is a party, or a party through or under whom a party claims, and where none of the exceptions in section 92(2)(a)-(c) applies. The effect of section 92(2) is to impose an evidentiary onus on anyone who disputed the correctness of the conviction to produce evidence that it is incorrect …
67 Thus, if the outcome of Sef’s trial were to be a conviction, that conviction would be admissible in any civil proceedings to which he was a party in which there was an issue about whether he had forfeited the benefit under his father’s Estate. However anyone who was contending, in such proceedings, that a forfeiture had occurred would still bear the legal onus of so proving, and it would be open to Sef to call evidence, if he wished, with a view to showing that any such conviction was erroneous.
This Court agreed with Campbell J’s reasons and dismissed the appeal: Gonzales v Claridades (2003) 58 NSWLR 211; [2003] NSWCA 227 at [16] (Mason P, Beazley JA and Foster AJA agreeing).
Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 (Sukkar) concerned an application to remove a practitioner from the roll on the basis of his conviction for importing prohibited drugs. This Court (Hodgson JA, Tobias JA agreeing) referred to Gonzales v Claridades in the context of ss 91 and 92 of the Evidence Act. It set out the limits of what can be proved by a certificate of conviction at [9]:
The conviction of the opponent is evidence of the elements of the offence with which he was convicted, but not of the detailed facts found by the sentencing judge or by the Court of Criminal Appeal dealing with his appeal: Evidence Act 1995 (NSW) ss.91 and 92, Gonzales v. Claridades [2003] NSWSC 508, 58 NSWLR 188. The detailed facts set out in the Court of Criminal Appeal’s judgment R v. Sukkar [2005] NSWCCA 54 may have some relevance to the opponent’s reputation, but cannot support findings by this Court as to what the opponent actually did, beyond the bare elements of the offence with which he was convicted.
(Emphasis added.)
The certificate of conviction is evidence of the particular offences in respect of which the opponent was convicted and of the sentences passed upon him as well as of the particulars of the offences: s 178(3) and (5) Evidence Act. However the sentencing remarks are in a different category.
… Even if no regard is paid to the propositions of fact contained in the Sentence Reasons, there was evidence before the trial judge, upon the filing of the certificate, that the appellant had satisfied each of the elements of the crime of defensive homicide. …
In Osborne v Butler (2024) 73 VR 386; [2024] VSCA 6 the applicant was convicted in 2017 of two counts of sexual penetration of the respondent, who was then 15 years old. The respondent commenced proceedings against the applicant claiming damages for the assault and battery constituted by the offending. She relied on the applicant’s conviction of these offences to establish his liability. The Victorian Court of Appeal addressed the common law rule that evidence of a conviction was admissible only to prove the fact of the conviction but not the facts on which the conviction was based (Hollington v R Hewthorn & Co Ltd [1943] KB 587). It also referred to the recommendation by the ALRC that the Evidence Act should be amended to provide that evidence of convictions was admissible to prove the facts on which they are based ([24]-[29]).
The Court held that the amendments that were made as a consequence of these recommendations displaced the common law rule and said:
31 In its terms, s 92(2) only states that evidence of a conviction may be admitted and used, without identifying the specific use to which that evidence may be put. As we have seen, evidence of a conviction could already be admitted in a case where it was to be used as proof of the fact of conviction; such use is consistent with s 91(1). The ‘exception’ in s 92(2) plainly has a wider purpose, namely to enable that which s 91 would otherwise forbid. In other words, in denying the applicability of s 91, the effect of s 92(2) is that evidence of a prior conviction within s 92(2) is admissible to prove the existence of a fact that was in issue in the criminal proceeding. That is confirmed by s 92(3), which denies the applicability of the statutory hearsay and opinion rules. In other words, that provision specifically displaces the reasoning in Hollington.
…
34 It is important also to note the limitations of s 92(2). It concerns evidence that a person has been convicted of an offence. The exception to s 91 does not extend to evidence of other decisions or findings in the criminal proceeding. In particular, it does not extend to the sentence, sentencing remarks or evidence given in the criminal proceeding. It is the conviction itself which may be admitted, and treated as evidence of the existence of facts in issue in the criminal proceeding, namely the elements of the offence charged.
…
38 The judge was correct to find that, once the respondent adduced evidence of the convictions, the practical effect of s 92 was to impose on the applicant an evidentiary onus to prove that he was incorrectly convicted. The judge held that the applicant had not identified any evidence to rebut the fact of his conviction, noting also that the conviction had been upheld in this Court. He also held that the applicant did not at any stage ‘provide credible evidence to rebut or challenge the factual matters the subject of the conviction’. Accordingly, he accepted that the applicant committed the sexual assaults on the respondent.
…
40 … in so far as the judge observed that the applicant did not provide credible evidence to ‘rebut or challenge the factual matters the subject of the convictions’, that suggests a correct understanding of the operation of the provision.
(Footnotes omitted.)
It is therefore perfectly permissible to draw from the Certificate of Conviction in this matter that the appellant was convicted of many sexual assaults of his daughter over a long period when she was a child and also when she was an adult. The elements of the offences, and those alone, are sufficient for that purpose.
These decisions establish that a certificate of conviction is admissible to prove the fact of conviction and the fact of the commission of the offence, being the fact of each element of the offence, its date and the identity of the offender and, if there be one, the victim. Thus, the convictions of Mr Croft for the five offences against MTH were admissible to prove that he had raped her twice and committed three indecent assaults against her in the period 1 February 1979 to 30 April 1980 when she was 16 or 17 years old.
These decisions also establish that other documents containing facts relating to the convictions, including those referred to in the sentencing remarks, are not admissible to prove the facts stated in them. Thus, while MTH could prove that she had been raped and indecently assaulted by relying on the convictions of Mr Croft for those offences, she could not, for example, use the following passage from the sentencing remarks of McLennan SC DCJ to show that Mrs Croft knew about Mr Croft’s offending behaviour against RS (which she denied in cross-examination):
Apart from the sexual violence, to be described shortly, I am also satisfied, beyond a reasonable doubt, that [RS] was the subject of other degrading and humiliating conduct, which included being urinated upon by the offender and having the complainant and his brother strip naked and run around inside the house, while the offender’s wife was observing.
On 15 June 2023, Mrs Croft filed a notice of motion seeking a permanent stay of the proceedings as against her. The application was heard on 4 September 2023 by Garling J, orders were made by his Honour on 8 September 2023 (dismissing the application and ordering Mrs Croft to pay MTH’s costs of the application) and reasons were published on 15 September 2023: MTH v State of New South Wales [2023] NSWSC 1124. At that stage, MTH was represented by Mr Sharpe of counsel and Carroll & O’Dea, solicitors (she was previously represented by Kelso Lawyers and Greg Walsh & Co). Garling J was unpersuaded that any prejudice which Mrs Croft would suffer would be sufficiently exceptional to warrant a permanent stay and refused Mrs Croft’s application.
Throughout the appeal, the appellant made reference to what Garling J had said and done in the course of case management hearings and the hearing of the permanent stay application by Mrs Croft, contending, for example, that Garling J had admitted the transcript of the criminal trial via case management and the primary judge erred in refusing to allow it as evidence in the trial. She also referred to evidence which had been adduced on the stay application. I confirm that the evidence that Garling J considered on the stay application was not, by reason of that fact, admitted in the trial itself before the primary judge. There being no indication that any rulings on evidence under s 192A of the Evidence Act were sought or made in advance of the trial, the admission of evidence in the trial was a matter for the primary judge. This Court is limited, in its consideration of the appeal, to the evidence adduced before the primary judge at the trial of the proceedings. For this reason, it is not necessary to address further the application for a permanent stay. Ground 1 has not been made out.
The tendency sought to be proved is the tendency of Geoffrey Croft:
a. To act in a particular way, namely:
i. To engage in sexually inappropriate and sexually degrading behaviour directed towards children in his care from time to time both privately and in the presence and/or within earshot of the third defendant;
ii. To engage in behaviour that breached physical boundaries of appropriateness with children in his care both privately and in the company of the third defendant;
iii. To engage in sexual abuse of children in his care;
iv. To engage in physical abuse of children in his care both privately and in the company of the third defendant; and
v. To gain sexual gratification from engaging in sexually inappropriate and sexually degrading behaviour directed towards child in his care.
The evidence identified in the notice to be relied on in support of the tendency comprised the police statements of RS and his brother PS which had been prepared for the criminal prosecution of Mr Croft, and her previous solicitors had included them in the Court book. However, objection was taken to them and the primary judge ruled that the statements were not admissible unless their makers were called to give evidence. Although the appellant took issue with this ruling on appeal (ground 4), his Honour’s rejection of the statements from the criminal trial on the basis of hearsay was correct. The way in which the objection to this evidence was put, along with the appellant’s further ground of appeal relating to her efforts to have RS attend and give evidence is addressed below.
The appellant’s solicitors do not appear to have obtained a certificate of Mr Croft’s convictions in respect of the five offences against MTH and the four offences against RS and did not refer to the convictions in the tendency notice. The appellant herself was apparently ignorant of this means of proof, which would, to borrow the words extracted above from the ALRC report, amount to “evidence of high probative value”, which was readily available to her. This is also returned to below.
HIS HONOUR: Now could I ask one question then? [MTH] tells me that Mr Croft was convicted of a crime against her, is that right?
O’NEILL: That’s so.
HIS HONOUR: Do you accept that for the purposes of these proceedings that abuse of a type or nature described by [MTH] occurred at the hands of Mr Croft?
O’NEILL: We have pleaded back in the defence that that finding was made.
HIS HONOUR: Okay. So what I need to understand is, for [MTH’s] benefit obviously because she’s going to be giving evidence, are you challenging aspects of her evidence contained in her statement as to the nature and extent of the abuse, the timing, or generally not challenging the abuse that she sets out?
O’NEILL: I make no challenge in respect of the abuse.
HIS HONOUR: Okay, thank you. Mr Andrews, what’s your position in respect of the same question?
ANDREWS, We don’t accept that the abuse took place based on the instructions that we have. We do accept, as we set out in the position paper, that he was convicted.
…
HIS HONOUR: … What’s the basis on which you can, as you represent the estate so we’ll call it Mr Croft, you can purport to say that he didn’t abuse the plaintiff in circumstances in which he’s been found guilty of doing it in another court?
ANDREWS: Because Mr Croft always maintained that he had not carried out any of the abuse.
HIS HONOUR. Right.
ANDREWS: He maintained, and there will be evidence called in relation to this, he maintained that from the first moment it was raised, and he continued to maintain that right up until his death. Now we will call certain evidence consistent with the maintaining of that position.
Mr Tierney appeared for Mrs Croft in this Court and in the Court below. When asked what his client’s position was with respect to the offences committed against MTH, he said that the effect of ss 91 and 92 was that evidence of the convictions was not evidence of the underlying elements of the offences. This was consistent with the position he took in this Court (as appears from the summary of his submissions set out above).
The following exchange occurred on 22 July 2024 (the first day of the trial):
TIERNEY: … in this case, your Honour, there is an exception in s 92 in civil proceedings for and with respect to a prior criminal conviction, but if your Honour looks at subs (2), your Honour will see in sub-para (a) a carve-out from that exception, “in respect of which a review or appeal (however described) has been instituted but not finally determined”. The situation, your Honour, and I think it’s quite straightforward, is that an application for special leave was filed on behalf of Mr Croft but he passed away before the special leave hearing could be considered and two justices of the High Court then dismissed the application under the rules, but there was no final determination …
HIS HONOUR: I think the answer is bearing in mind the plaintiff I think has included in her statements that which she says occurred-
TIERNEY: Yes.
HIS HONOUR: -she’s not relying on evidence of the conviction to prove the fact.
TIERNEY: No, no, I don’t-
HIS HONOUR: So we don’t need to go down that road. The only issue I have is whether in circumstances in which, and this really applies to Mr Andrews’ client [the estate] rather than I would have thought your client, whether in circumstances in which the person who’s been convicted of the criminal offence, in this case, as I said, well call it Mr Andrews’ client, can seek to raise in civil proceedings that the events didn’t occur. But anyway, as I presently understand, that it wouldn’t bind your client, if I put it that way, Mr Tierney.
(Emphasis added.)
It appears from this exchange that the primary judge misapprehended the fact and may have misapprehended the law*.* First, his Honour misapprehended the fact by incorrectly inferring from the circumstance that MTH had put on evidence of Mr Croft’s offending conduct that she did not rely on the conviction to prove the conduct (without having checked this matter with MTH). Secondly, his Honour misapprehended the law by apparently accepting Mr Tierney’s submission that MTH could not use the conviction to establish that the offending conduct had actually occurred in any event because he had died before the special leave application was determined.
Further, the primary judge was evidently concerned, as appears from the last passage in the extract, about whether the estate was estopped by the conviction from denying the conduct. That question occupied a substantial amount of time in the hearing and was addressed at length in the reasons. Section 93(c), which exempts res judicata and issue estoppel from the operation of Part 3.5 of the Evidence Act*,* was neither raised by the parties nor addressed by the primary judge. In these circumstances, it is not necessary to address whether s 93(c) also includes the category of abuse of process which involves the re-litigation of an issue already decided against the party. In any event, the Evidence Act allows a certificate of conviction to be admitted as proof of the elements of the offence but does not provide that it is conclusive evidence.
The only evidence tendered by the estate or Mrs Croft to directly dispute the commission of the offences was evidence of Mr Croft’s denials when first accused of them. This evidence was admissible under s 63 of the Evidence Act because Mr Croft, being dead, was unavailable to give evidence. However, it was of low probative weight as it was self-serving and therefore did not amount to an admission (which would have been admissible as an exception to the hearsay rule). Whether or not the estate of Mr Croft was estopped from challenging the fact of the offending, the estate adduced no contrary evidence to rebut the proof of the elements of the offences constituted by the convictions, save, as referred to above, the first-hand hearsay evidence of his denials. While the convictions were not conclusive proof that the offences were committed, in the absence of direct evidence to the contrary, they were sufficient to prove the fact of the offending conduct.
The State objected to the convictions of Mr Croft for offences against RS being used to establish the fact of the offences on the basis of the hearsay rule and also the alleged tendency of Mr Croft, referring his Honour to s 91 of the Evidence Act but not s 92. The primary judge upheld the objection and provided the following explanation of the law to MTH:
So what I’m going to do is strike out because section 91 of the Evidence Act says you can’t have - and I say this in general lay terms you will all understand for the benefit of [MTH] - you can’t have as evidence the fact that someone has been …convicted of a criminal proceedings and whilst tendency evidence can be adduced, it would be obviously subject to the witness being available for cross-examination.
HIS HONOUR: Okay, well I think there’s no dispute in this case that Mr Croft was convicted for offences against you and sentenced to a term of imprisonment arising out of those offences. I think there’s no dispute I think that he was convicted of offences in respect [of RS] and sentenced to a term of imprisonment, so you don’t have to prove that through the police officer. But as you heard at the outset of the case, the fact that someone has been convicted is not evidence of the fact, it’s not evidence that the abuse actually - because the Evidence Act precludes a party simply relying on the conviction, so there’s no dispute as to the fact of the conviction. I’m just trying to help you so you don’t go to a lot of trouble for no real reason.
(Emphasis added.)
This is a case which involves complex factual and legal issues. That requires me to determine matters of fact which are very much in dispute and matters of law which are very much in dispute.
…
Mr Andrews [counsel for the estate] raises as a contest whether or not you suffered any abuse at the hands of Mr Croft. They’re matters of fact I have to determine.
The fact that he was convicted is not evidence of the fact in this case.
(Emphasis added.)
PLAINTIFF: Well I thought it would be relevant for this case. I mean, I feel like - I do feel like this has been another case all over again. Everything that happened in that criminal case it seems to have gone out the window and we’ve started again in the civil case, including my right to establish the full aspect of this claim, and that is the fact that there’s two other victims - one of which it was - in attendance at the criminal case, and it was actually discovered, by way of me coming forward, that those other victims were abused first in timeline.
…
PLAINTIFF: So it is very relevant for my case that that be established … and I’m being blocked from having that established in this case.
HIS HONOUR: Well you are not, [MTH], but anyway-
… [J]ust to be clear for your benefit, [MTH], the fact that the defendants agree that Mr Croft was convicted, in respect of offences against RS and against you, is not agreement as to the fact of them occurring, because that’s not the evidence, but they agree he was convicted.
(Emphasis added.)
Because of the primary judge’s rulings, MTH tried to persuade RS, whom she did not know except through having been complainants in the same criminal trial against Mr Croft, to give evidence at the hearing. He refused to come. The primary judge refused MTH’s request that RS be subpoenaed on the ground that insufficient notice had been given to RS and that MTH had been unable to ascertain how he could be served (this matter is addressed in more detail below).
The primary judge confirmed again on 31 July 2025, the seventh day of the trial, that the following matters were not in dispute:
HIS HONOUR: Okay. It’s not in dispute that you came forward - so can everyone confirm this if I’m wrong? It’s not in dispute you came forward at some point in time and reported the allegations against Mr Croft to the police. It’s not in dispute that following on you reporting the allegations against Mr Croft, the police carried out inquiries of DoCS, obtained the address of [RS], interviewed him and obtained information from him which led to Mr Croft being charged with offences against you and against [RS], right?
It’s not in dispute that Mr Croft was convicted of offences against you and [RS]. It’s not in dispute that Mr Croft was sentenced to a term of imprisonment and sadly died in gaol. It’s not in dispute that … Mr Croft always maintained his innocence and appealed [sic] all the way to the High Court about that. It’s not in dispute that the High Court proceedings were dismissed following his death. Okay?
None of those things are in dispute in this case so you don’t have to worry about calling any further evidence to try and prove these matters. Everyone else agree with that?
All I’m saying though is that with the case, one of the things that does need to be kept relevant and I’ve had to insist on relevance the entire time is that the conviction occurred in 2019, the civil case commenced early 2020. That was two years before Mr Croft passed away. … So just so you understand that you know, it’s always meant to be a damages claim and it was started on the basis of a criminal convicted who was still in gaol.
(Emphasis added.)
12. The second defendant denies that Geoffrey Croft committed acts of abuse or sexual abuse upon the plaintiff and accordingly the second defendant maintains that the plaintiff is not entitled to a verdict [sic, judgment] in her favour against the second defendant.
13. In the alternative, should the court find that Geoffrey Croft had committed abuse and/or sexual abuse upon the plaintiff at the relevant time pleaded and in the manner pleaded in the statement of claim (both of which are denied) then the plaintiff would be entitled to recover damages assessed on common law principles.
14. The second defendant however maintains that any damages which the plaintiff may be entitled to are limited to general damages calculated having regard to what the court finds to be the acts allegedly perpetrated upon the plaintiff by Geoffrey Croft and that such damages do not give rise to a [diagnosable] psychiatric injury …
In the estate’s final submissions, Mr Andrews did not refer to the convictions as being evidence of the fact of the offences and submitted that MTH’s evidence of the offences was insufficient to discharge her onus, having regard to Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
In her pre-hearing written submissions dated 19 July 2024, MTH said, of her case against the estate:
The details of the abuse have been clearly documented, tested in a criminal court process with a jury and that was completed with significant conviction of Defendant 2.
42 Mr Croft was charged and convicted of the following offences in relation to the plaintiff:
(1) three counts of indecent assault against a female person contrary to s 78 of the Crimes Act 1900 (NSW); and
(2) two counts of rape contrary to s 63 of the Crimes Act.
43 As the plaintiff says, following her coming forward the police carried out an investigation and at some later stage located another young person (RS) who had stayed at the Crofts’ farm before her (in 1977). He said he was a victim of physical and sexual abuse at the hands of Mr Croft when he was 12 years old. Mr Croft was charged and convicted of offences against him. Having regard to the judgments in the criminal proceedings, the abuse said to have been perpetrated on RS by Mr Croft was of an extreme nature, involving severe regular beatings particularly to the head of RS (as a 12 year old boy) by Mr Croft (as a man in his twenties) and severe sexual abuse, all committed over the one school holiday period (in 1977) when RS and PS (RS’s brother) stayed with the Crofts as a break from the orphanage. The fact of Mr Croft’s conviction for offences against RS is not in dispute in these proceedings but evidence of the conviction is not evidence of the facts behind the conviction.
44 The fact of the abuse on the plaintiff, that is the alleged conduct of Mr Croft, is in dispute in these proceedings, but the fact of the charges, the convictions, and the sequence of events leading to the charges is not.
…
48 Section 91 of the Evidence Act 1995 (NSW) precludes admission into evidence of a decision, or a finding of fact, in an Australian proceeding to prove the existence of a fact that was in issue in that proceeding. The second and third defendant objected to evidence of the conviction as evidence of the fact of the conduct/abuse. Whilst I admitted the evidence of the convictions, I did so not on the basis that it was evidence of the facts in issue.
(Emphasis added.)
280 … My task is to assess the allegations against Mr and Mrs Croft.
281 I am unable to accept much of her evidence. Should I then just accept that the abuse occurred because there was no direct contrary evidence, that is Mr Croft did not give evidence? In my view, I should not. Having regard to my assessment of all of the evidence, I am not comfortably satisfied that the evidence of the plaintiff is reliable. I am not satisfied that the abuse complained of by Mr Croft occurred.
282 It is an important feature of these proceedings that the plaintiff bears the onus to the standard to which I have already referred. She has not discharged that onus.
(Emphasis added.)
MTH’s grounds of appeal are numerous and varied. They include complaints that MTH was denied procedural fairness. It was accepted, at least by the State, that although MTH appeared to make no challenge to the finding at [281], “by reason of her challenges to the way in which the hearing was conducted and the rulings on evidence, it is implicit that she seeks to impugn that finding”. The estate sought to defend the primary judge’s finding that MTH had not discharged the onus of proving abuse by Mr Croft by submitting that his Honour “carefully addressed the inconsistencies in the appellant’s evidence and … was entitled to find as he did that the appellant had failed to discharge her onus of proof in relation to the critical issue, namely whether the abuse had occurred”. Mrs Croft expressly accepted in her written submissions in this Court that because MTH was “a self-represented litigant, a degree of care was required by the [primary judge] to ensure that the appellant was not the subject of a miscarriage of justice because of the actions of the Court”.
The primary judge’s finding that MTH had not discharged the onus of proving the abuse was plainly affected by his Honour’s assumption about the way MTH was putting her case, together with his Honour’s misconception about the effect and operation of ss 91, 92 and 178 of the Evidence Act.
His Honour should have started with the convictions which, had a certificate under s 178 of the Evidence Act been tendered, would have amounted to prima facie evidence of the elements of each offence. To the extent to which MTH gave evidence of those elements, her evidence would have been corroborated by the certificate. There being no direct evidence to the contrary, the convictions were sufficient to discharge MTH’s onus that they occurred. Other evidence was sufficient to establish that these acts must have occurred while she was living with the Crofts and therefore while she was under the age of 18 years and in their foster care. By starting with MTH’s oral evidence and finding her an unreliable witness, the primary judge disregarded the probative weight of the convictions to prove the elements of the offence.
Indeed, it is difficult to conceive of an instance where the estate could displace the evidence of the convictions in circumstances where there were no witnesses to the rapes and indecent assaults and Mr Croft was unable to give evidence. However, this matter need not be further explored in circumstances where there was no direct evidence to contradict the convictions and MTH’s evidence of the rapes and indecent assaults.
Proof of the elements of the five offences committed against MTH was central to proof of MTH’s case against the estate and important in her case in negligence against the State and Mrs Croft. She also wished to prove that Mr Croft had committed offences against RS. As Mr Croft was tried for offences against MTH and RS together, the certificate of conviction set out all the offences of which he was convicted. The effect of ss 91, 92 and 178 of the was that the elements of these offences could have been readily proved by the tender of a certificate of conviction, which was admissible for that purpose. MTH as a litigant in person was not aware of the particular provisions of the which would produce that result but it was obviously what she was trying to achieve by her constant references to the convictions of Mr Croft for offences against her and RS.
The question arises whether the primary judge denied MTH procedural fairness by not alerting her to the evidentiary pathway which the Evidence Act allowed to enable her to prove the commission of the offences by tendering a certificate of conviction.
While a trial judge is not permitted to give legal advice to a litigant in person (or, indeed, to any litigant) since this would compromise judicial impartiality, a trial judge may explain matters of practice and procedure for the benefit of the parties. The parameters of what is allowable are determined by reference to the circumstances of the particular case and are not readily susceptible of general statement.
An unrepresented party is subject to the same rules as any other litigant. The court must ensure that the rules are obeyed, subject to any proper exceptions, since to do otherwise would be unfair to the represented litigant. However, the primary judge had an obligation to ensure that the appellant did not, because of lack of legal skill, fail to claim rights or put forward legal arguments: Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) (Kirby P, Samuels and Mahoney JJA), cited with approval by the High Court in Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [47].
A judge must also be alert to a misconception exhibited by a litigant in person which may have negative forensic consequences. In Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94, the Court of Appeal in Victoria (Beach JA, Kennedy JA and Forrest AJA) allowed an appeal against the dismissal of the appellant’s case on the basis of a no case to answer submission by the defendant. It held that the trial judge erred by not enlightening a litigant in person who made it clear that he proposed to prove his case by cross-examining witnesses whose statements had been served by the defendant and who obviously did not appreciate that it was open to the defendant not to call evidence.
There are undoubtedly some differences between the obligations of a judge conducting a criminal trial to ensure the fair trial of an accused and the obligations of a judge conducting a civil trial. However, Basten JA in Lee v Cha [2008] NSWCA 13 applied statements of principle in criminal appeals to civil trials and said:
48 The Court was invited to assess the conduct of the trial judge in part by reference to the principles said to govern the conduct of a trial where one party is a litigant in person and not fluent in English. The relevant principles, if they can be so described, derive from the obligation of a trial judge to take appropriate steps to ensure that a party appearing unrepresented has sufficient information about the practice and procedure of the court as is reasonably practicable for the purpose of ensuring a fair trial: see, in relation to an accused in a criminal trial, MacPherson v The Queen (1981) 147 CLR 512 at 523 (Gibbs CJ and Wilson J), 534-535 (Mason J) and 546-547 (Brennan J), (Aickin J agreed with Mason J and Brennan J). Application of that principle will vary depending on the circumstances of the case and particularly as between trials with and without juries. …
49 There will be cases where a failure to provide assistance to a litigant in person will give rise to a miscarriage, so that the trial may be overturned on appeal: MacPherson provides an example. However, it is important to note that although an appearance of partiality may be said to give rise to an unfair trial, a failure to provide sufficient information to an unrepresented litigant may result in the trial miscarrying without any suggestion of bias or apprehended bias on the part of the trial judge. …
(Emphasis added.)
In the present case, it is not necessary to outline or seek to determine the bounds of necessary or appropriate judicial assistance to a litigant in person since, whatever those limits, it is of signal importance that a judge not positively mislead a litigant in person as to the effect of the law. The reason for this is that a litigant in person generally lacks the wherewithal to argue against a proposition of law put by the judge and may have little choice but to accept it. This is to be contrasted with the position of represented parties: legal representatives have a duty to correct any misapprehension by a judge as to the facts or the law.
It is not suggested that the primary judge in the present case deliberately misled the appellant. The source of the difficulties in the present case derived from the two errors that I have already identified.
First, the primary judge inferred and communicated to the parties that the appellant was not relying on the convictions as proof that the offences were committed (this is evident in several places in the transcript, including in the passage extracted above where the primary judge told Mr Tierney that “[the appellant is] not relying on evidence of the conviction to prove the fact”). No basis for this inference or assumption is evident from the transcript. It does not appear to arise from anything the appellant said or did. The only available inference is that the primary judge considered that, as the appellant was proposing to give evidence as to the assaults, she was not relying on the convictions as proof of them. The difficulty with this conclusion is that it can hardly be supposed that a plaintiff suing a defendant in tort on the basis of conduct which has been the subject of criminal convictions would not seek to rely on the convictions to prove the commission of the offence: such a course would be forensically irrational. A plaintiff in that situation who tenders a certificate of conviction will have the benefit that the elements of the offence are proved to a prima facie level and will also amount to corroboration of any evidence which the plaintiff might give as to the commission of the offences.
Second, MTH’s reliance on the convictions to prove the elements of the offences is plain from the transcript, as is her ignorance of the admissibility of a certificate of conviction to achieve that forensic objective. So, too, is the primary judge’s misapprehension as to the effect of the relevant provisions. The primary judge repeatedly told the appellant that she could not rely on the convictions as proof of the commission of the offences.
In effect, the primary judge informed the appellant that the only way in which she could prove the sexual assaults was to give evidence of them herself and the only way she could prove that RS had also been indecently assaulted by Mr Croft was to call RS to give evidence of them. This was incorrect since the permitted the appellant to prove the fact of the offences against her and RS by tendering the certificate of conviction. Had his Honour told the appellant that the convictions alone could not prove the commission of the offences but that, if she tendered a certificate of conviction, it would be evidence of the commission of the offences, it cannot be doubted that she would have tendered a certificate of conviction.
I understood Mr Andrews, who appeared for the estate, ultimately to concede that the certificate of conviction was otherwise admissible to establish the elements of the offences because an application for special leave to appeal to the High Court did not amount to the institution of an appeal. However, he submitted that this Court ought not proceed on that basis as, had the certificate of conviction been admitted, the estate “could have called evidence to rebut it”. He submitted further that it was not incumbent on the primary judge to inform the appellant that the certificate of conviction would be admissible as proof of the elements of the offences committed against her and RS (they being dealt with in the single certificate). He submitted that this would amount to giving judicial advice and was antithetical to the role of a trial judge when dealing with litigants, including litigants in person.
In addition to his submissions relating to the construction of s 92 which have been referred to above, Mr Tierney submitted that the certificate of conviction was inadmissible as its probative value was substantially outweighed by the danger that it would be unfairly prejudicial to the respondents. On that basis, he submitted it would have been excluded under s 135(a) of the Evidence Act had it been tendered.
Mr Tierney also submitted that the evidence of convictions in respect of RS would not be admissible for a tendency purpose pursuant to s 97 as they did not meet the requirement of “significant probative value” in s 97(1)(b). He submitted that, having regard to the difference in ages and gender between RS and MTH at the time of the sexual assaults, the link between the assaults against each was insufficient to result in the offences against RS having significant probative value in respect of the offences against MTH.
Mr Tierney adopted Mr Andrews’ submission that the primary judge was not permitted to give legal advice to a litigant in person since this would compromise judicial impartiality and, accordingly, the appellant ought not obtain the benefit of having this Court deal with the matter as if the certificate of conviction had been tendered since it was not.
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
…
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
…
(Emphasis added.)
The question of significant probative value of evidence tendered for a tendency purpose is to be determined on the assumption that the tribunal of fact (the judge in the present case) will accept the evidence. In the present case, the test can be formulated thus: does the tendency evidence support the alleged tendency; and does the commission of offences against RS make it significantly more likely that Mr Croft sexually assaulted MTH: Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644 at [24]. The tendency alleged in the tendency notice is extracted above.
In order for one piece of conduct to have significant probative value with respect to another, a sufficient link, or common feature, between the two distinct events must be shown. It is not necessary that the link be peculiar: The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40 at [58]. A tendency to act in a particular way may have significant probative value although the acts alleged to evidence the tendency are dissimilar in some respects while sharing common features: see Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [37]. In the present case, a common feature of the offences against RS (in the context which RS’s evidence could have provided) and those against MTH (in the context provided by MTH’s other evidence) was that the assaults were sexual and committed against foster children under Mr Croft’s authority, control and care, in circumstances where he was purporting to discipline them. I regard the offences against RS as having significant probative value, because they tend to show that Mr Croft had a propensity to act and think in a particular way. Thus, I do not accept that the certificates of conviction in respect of offences against RS were inadmissible under s 97 of the Evidence Act. Although notice under s 97(2) of the tendency was given, the certificate of conviction was not included in the list of evidence relied on to establish the tendency in the notice. However, the Court could have dispensed with the notice requirements under s 100 of the Evidence Act.
I note that MTH also relied on the convictions in respect of RS in support of her case against Mrs Croft on the basis that RS could be expected, had he been subpoenaed to give evidence at the trial, to give evidence that at least some of the associated acts (making RS and his brother run around inside the house naked) occurred in Mrs Croft’s presence. This matter could not be proved, in the absence of an admission by Mrs Croft (who denied that she had ever seen any such thing), other than if RS or PS had given evidence to that effect.
Mr Andrews’ submission that, had the certificate of conviction been tendered, he could have conducted the estate’s case differently, cannot be accepted. Whether Mr Croft had sexually assaulted MTH was the most significant fact in issue in her case against the estate. Mr Andrews adduced and relied on such evidence as was available to counter the appellant’s evidence, including Mrs Croft’s evidence that Mr Croft, when confronted by the allegations, had denied them, evidence from Mr Croft’s solicitor in the criminal proceedings about Mr Croft’s denial of the allegations, and evidence from a long-term friend of the Crofts in the nature of character evidence. The estate also relied on the evidence Mrs Croft called from a witness, TH, who resided at an orphanage and regularly visited the Crofts’ property on weekends, including in 1979, when she was 15 years old, who gave evidence of her impression that MTH enjoyed being at the property and never made any complaint to her about the Crofts. Mr Andrews was unable specifically to identify any witness whom he would have called or document he would have tendered had a certificate of conviction been tendered by the appellant that would have added materially to the evidence called before the primary judge. I reject his submission that the estate’s case could have been conducted differently.
In dealing with the denial of procedural fairness grounds above I have addressed the substance of the submission advanced for the estate and Mrs Croft that the primary judge was not permitted to give legal advice to a litigant in person since this would compromise judicial impartiality. For these reasons, I consider that this Court ought approach the question as if the certificate of conviction had been tendered by the appellant.
The estate in its written submissions (extracted above) accepted that if MTH established the offences, she was entitled to judgment against the estate. On the basis set out above, the certificate of conviction established the two rapes and three indecent assaults. The only evidence directly to the contrary was Mr Croft’s denials, which were insufficient to displace the certificate or MTH’s evidence, which was corroborated by the certificate. It is not necessary to address the other evidence which related to the time when MTH was at the Crofts since it was not suggested that there were any witnesses to the rapes and indecent assaults.
Thus, the judgment in favour of the estate must be set aside and judgment be entered in favour of the appellant on her claim against the estate. The assessment of damages will be addressed later in these reasons.
The reasons given above are sufficient to address ground 25.
The evidence of the convictions was not only sufficient to prove that the offences had been committed, but it also constituted significant corroboration of MTH’s evidence that the offending conduct had occurred. It was therefore also relevant to an assessment of her credibility. Thus, the failure to attribute probative value to the evidence of the convictions led to his Honour’s assessment of the oral evidence of witnesses being compromised.
With one exception, counsel for each of the respondents ultimately submitted that, as the adverse view which the primary judge formed of the appellant’s credit arose from alleged inconsistencies rather than from her demeanour, it was open to this Court to assess the appellant’s credit for itself. Mr Tierney submitted that this Court ought not disturb the finding in Mrs Croft’s favour that the appellant had not told her that she had been sexually assaulted by Mr Croft.
The question whether this process can be undertaken fairly pursuant to s 75A of the Supreme Court Act 1970 (NSW) or whether it is necessary to order a re-trial (a result which no party favoured), can only be determined by reference to the grounds of appeal to which I will now turn. It is convenient to address each in the context of the challenge to the judgments in favour of the State and Mrs Croft.
At the relevant time (before the appellant turned 18), the Adoption of Children Act 1965 (NSW) (the Adoption Act) applied. As the appellant was made a ward of the State in 1967 and was placed with the Phelans that year, the question of her adoption arose only at that time. Prior to that time, the Adoption Act was relevantly amended by the Adoption of Children (Amendment) Act 1966 (NSW) (the 1966 amendment). From that time until August 1980 when the appellant turned 18 and ceased to become a ward of the State, the Adoption Act was relevantly amended by the Minors (Property and Contracts) Act 1970 (NSW) (the 1970 amendment); the Adoption of Children (Amendment) Act 1971 (NSW) (the 1971 amendment); and the Children (Equality of Status) Act 1976 (NSW) (the 1976 amendment). Although amendments to the Adoption Act were also made in 1980 by the Adoption of Children (Amendment) Act 1980 (NSW) (the 1980 amendment), the timing of the amendments could not have affected the duties owed by the State to the appellant as she turned 18 in August 1980.
Section 17 of the Adoption Act, which was not amended, provided:
Welfare and interests of child to be paramount
For all purposes of this Part, the welfare and interests of the child concerned shall be regarded as the paramount consideration.
Section 19(1) of the Adoption Act provided that an adoption order shall not be made otherwise than in favour of a husband and wife jointly. Section 19(2) provided an exception that a Court could make an adoption order in favour of one person if it is satisfied that “exceptional circumstances make it desirable so to do”. Section 19(2) was amended by the 1971 amendment to substitute the words “in the particular circumstances of the case it is” for the italicised words in the Act as passed.
Section 26 of the Adoption Act prohibited the Court from making an order for the adoption of a child unless consent has been given by an appropriate person. In the case of an illegitimate child who has not previously been adopted, the consent of “every person who is the mother or guardian of the child” was required under s 26(3) of the Adoption Act unless the Court dispenses with the requirement for the mother’s or guardian’s consent under s 32(1) of the Adoption Act. The 1976 amendment removed the reference to “an illegitimate child” and substituted the words, “[i]n the case of a child … whose parents were not married to each other at the time of the child’s conception and have not subsequently married each other”. However, it did not otherwise change the substance of s 26(3).
Section 26(6) of the Adoption Act provided that the section did not apply if the child had turned 21 before the adoption order was made. The 1970 amendment changed the relevant age to 18 years.
By the time the appellant became a ward of the State, s 32(1) of the Adoption Act (which had already been amended by the 1966 amendment) relevantly provided:
The Court, on the request of the Director or of the principal officer of a private adoption agency may, by order, dispense with the consent of a person (other than the child) to the adoption of a child where it appears to the Court —
(a) after reasonable inquiry, that person cannot be found or identified;
…
(c) the person is, in the opinion of the Court, unfit to discharge the obligations of a parent or guardian by reason of his having abandoned, deserted, neglected or ill-treated the child;
(d) the person has, for a period of not less than one year, failed, without reasonable cause, to discharge … the obligations of a parent … of the child; or
(e) by dispensing with the consent so that an order for the adoption of the child may be made, the interests and welfare of the child will be promoted.
(e) the child is in the care of a foster parent or foster parents, the child has established a stable relationship with that person or those persons and the interests and welfare of the child will be promoted by the child’s remaining in the care of that person or those persons;
However, this amendment did not commence until 31 March 1987 and therefore cannot affect the duties owed by the State to the appellant as she turned 18 in August 1980.
Section 33 of the Adoption Act provided, until 1970:
33 Consent of child
(1) Subject to this Division, an order for the adoption of a child who has attained the age of twelve years shall not be made unless the child has consented to the adoption or, where the child has not attained the age of twenty one years, the Court is satisfied that there are special reasons, related to the welfare and interests of the child, why the order should be made notwithstanding that the child has refused to consent to the adoption or his or her consent has not been sought.
(2) Section 26 does not prevent the Court from making an order under this section without the consent of the child.
The reference in s 33(1) to “twenty one years” was amended by the 1970 amendment to “eighteen years”.
Section 26(3) was considered by Palmer J in Re S and the Adoption Act 2000 (NSW) (2006) 68 NSWLR 61; [2006] NSWSC 1062 at [17]. His Honour said at [17]:
The immediate predecessor of the Adoption Act 2000 was the Adoption of Children Act 1965 (NSW). Section 26 of that Act in its original form relevantly provided that a “Court shall not make an order for the adoption of a child” unless consent by “the appropriate person” is given. “Appropriate person” was defined to include … only the mother or guardian of an illegitimate child (subsection (3)) …. Section 33 relevantly provided that where the child was between the ages of twelve and twenty-one years, the child’s consent was also required, except where the Court was satisfied that there were special reasons that the order for adoption be made in the absence of such consent. Accordingly, the consent of at least the birth mother was always required except where the child was at least twenty-one years of age and was the applicant for adoption.
Before turning to the adoption case as put by the appellant, I propose to summarise the evidence drawn from contemporaneous records.
On 30 November 1966, the Child Welfare Department prepared a home report on the Phelan’s application for a ward who was a girl from 2 to 4 years. The Phelans then lived in Armidale where they managed a motel. The report noted that both Mr and Mrs Phelan had been interviewed and that they had been married for 16 years without children and were both “anxious to have [a child] in their own care”. It was also noted in the section regarding the “estimation of both applicants” that they were “well educated people of considerable charm and excellent personal presence” and were “very highly regarded in the community for their personal worth.” Their application was verified by referees whose reaction was described by the Department as “very enthusiastic” and who “consider[ed] that any child placed with the [a]pplicants would be really fortunate”.
On 29 March 1967, a report was prepared of an interview with the appellant’s birth mother, who reported that she, her husband and her children (including MTH) had been evicted and she could no longer care for the children.
On 26 April 1967, MTH was committed to the care of the Minister at the Metropolitan Children’s Court as “neglected, [with] no fixed place of abode”. Her birth certificate described her as “illegitimate”. Her birth mother did not surrender her for adoption.
On 10 May 1967, a “Ward Assessment Sheet” was completed, in which MTH was described as “speak[ing] well and coherently for her age” and as “an extremely affectionate little girl, very extroverted”.
A further Departmental document, entitled “Ward Placement” and dated 16 May 1967, confirmed that MTH had been placed with Mrs Phelan, who lived at the Zebra Motel in Armidale. MTH was described as “an affectionate child seeking attention”.
On 13 June 1968, a report was prepared by the Department regarding maintenance for MTH and her younger brother and sister. The officer noted that, when visiting MTH’s birth mother on 12 June 1968, MTH’s putative father returned to the house. However, MTH’s birth mother told the officer that the man could be MTH’s father but that her father could also be someone else.
A periodic report on MTH was completed following a home visit on 11 November 1968. The report noted that the Phelans were “very keen to adopt if possible” and that MTH was “apparently very happy in the home environment”. A year later, on 5 November 1969, a similar observation was noted in a periodic report prepared following a home visit on that day. The author noted:
[MTH] appears to enjoy excellent health and the headmistress speaks in terms of praise. Foster parents have continued their interest in adopting this ward at such time that [sic] this is possible.
Mr and Mrs Phelan are both extremely fond of [MTH] and accept her as their own child.
In this report, MTH was described as “an appealing child”, “lively and friendly” and “affectionate [and] demonstrative”.
A further Departmental file note of August 1971 recorded that MTH’s birth mother’s whereabouts had been unknown since 9 May 1968 and that the “PF [putative father] has signed birth registration”. The author of the file note recommended:
That preliminary adoption commence, and for an approach to be made to the Supreme Court to dispense with the mother’s consent, and to dispense with the natural mother’s husband’s consent in so far as it may be required.
This would not be a contested case if the mother, her husband and the PF [putative father] cannot be found. Search action should be completed before any adoption action could be considered.
This note reflects the requirement in s 26(3) of the Adoption Act that MTH’s mother consent to the adoption unless she could not be found or the Court dispensed with her consent.
A file note bearing various dates between August and December 1971 noted that the result of the search (for MTH’s mother) would need to be submitted before the approval of preliminary adoption action could commence. The file note also recorded that Mr Phelan, MTH’s foster father, phoned and said that he was “anxious for adoption action to proceed as soon as possible”.
A periodic report on MTH following a home visit on 9 December 1971 noted:
The placement continues to be satisfactory. Mr and Mrs Phelan are both extremely fond of [MTH] and would like to proceed with adoption. [MTH] accepts the foster parents as her family and presents as a lively and outgoing girl.
The foster father of the abovenamed ward recently contacted Head Office and indicated he was anxious for adoption to proceed as soon as possible.
Searches were being made for the girl’s mother, putative father and mother’s husband. Adoption action cannot proceed until the result of the searches are known. Please advise the foster father accordingly and assure him that the matter is being kept under notice.
Mr and Mrs Phelan are anxious to adopt [MTH] although they realize the parents have not signed the Consent. However, they hope that this can be arranged in the future.
Both Mr & Mrs Phelan asked about the possibility of adopting [MTH] and when informed that at 12 years of age she would have to give consent to her adoption, they agreed that this would be a very good thing for the girl and for themselves. [MTH] was not asked about the possibility of adoption, but from her attitude towards the foster parents and from her length of time with them, it seems obvious she would be quite willing to consent to their adoption of her.
MTH turned 12 in August 1974. Accordingly, pursuant to s 33 of the Adoption Act, she became capable of providing consent for adoption (although her mother’s consent was still required unless the court dispensed with it). On 11 December 1974, a Departmental file note recorded that MTH was illegitimate, her mother had not surrendered her for adoption and her mother’s whereabouts had been unknown since 23 September 1968. The author noted that before adoption could be proceeded with, MTH would have to be interviewed (as she was then 12 years old) and her views ascertained. A request was made for a further report once MTH had been interviewed. Another copy of this file note bore a handwritten endorsement dated 4 April 1975 in which the word “adopt” is circled.
In 1975, the appellant started high school at Tenterfield High School.
A home visit was made to the Phelans on 4 March 1975. A report of the visit noted:
[MTH] was most enthusiastic when asked if she would like to be adopted by Mr & Mrs Phelan and there is no doubt that adoption is desired not only by the foster parents but by the Ward concerned.
…
In view of the above it is recommended that approval be given for preliminary adoption action to commence subject to the ages of the foster parents not being considered a major disability. …
Submitted for approval to commence Preliminary Adoption Action and for the Supreme Court [to] be requested to dispense with the mother’s consent.
The file note was endorsed by handwritten signatures, including that of a Senior Executive Officer, indicating approval to the proposed course of action.
While the Phelans were still living in Tenterfield, they made a formal application for adoption (the date of which does not appear from the evidence).
In 1976, Mr Phelan suffered a stroke. In May of that year, the appellant moved to a property near Tenterfield called Springbrook.
On 27 September 1977, Mr Mewton, the Departmental District Officer for the area which included Tenterfield, visited the Phelans to complete his annual report on MTH. He was told that the couple had decided to separate as Mr Phelan, who had suffered a stroke, was planning to move away from Tenterfield (where the winters were cold) to the Gold Coast (where the climate was more temperate). MTH told Mr Mewton that she would like to keep living with Mrs Phelan at Tenterfield. On 12 October 1977, Mr Mewton returned to see the Phelans. By that time, the property was already on the market. He recorded that “the couple are still determined to separate”. He also noted that MTH understood the family situation and that “it would be heartbreaking to her if she had to be separated from Mrs Phelan”. The file note concluded:
I feel that there is not any need to do anything drastic at this stage regarding [MTH] and that if Mrs Phelan can organise suitable accommodation then the lass should remain in her care.
Mr O’Hehir informed me that the adoption action had been contested as the natural mother would not sign consents. I feel that any further action should be suspended indefinitely pending the separation of the foster parents.
In view of these reports I recommend that the adoption of [MTH] be discontinued indefinitely.
Adoption Action, in respect of [MTH], has been discontinued due to the foster parents break up and the DO’s [District Officer]’s recommendation of 21 October 1977.
I feel that over the years this has been an excellent foster home and hopefully the differences between the foster parents can now be resolved as I would not like to see [MTH] be removed from this home. [MTH] is regarded as their natural child and she has always received excellent care, love and attention from both Mr and Mrs Phelan and it would be a pity if all this good work was wasted due to the ill-health of Mr Phelan. [MTH] would not ever accept the fact of leaving the foster home especially Mrs Phelan, and hopefully this situation will now not arise.
The home has been visited on regular Wards supervision since taking over this area in January. Mr and Mrs Phelan decided against separation and are continuing to live together although at present Mrs Phelan is in Sydney nursing her sick mother. She returns to Tenterfield approximately every fortnight.
The Phelans themselves have not brought up adoption during visits in 1978 and at this stage it is felt that the matter be left. [MTH] continues to make satisfactory progress in this home and is obviously well cared for by her foster parents. [MTH] herself has expressed recent interest in her siblings and the matter of sibling contact will be looked into.
At the beginning we felt it was a transition period, and bore with her, however of late, she does not respond to any of the standard disciplines and advices.
As we both love her dearly, we now seek your assistance and ask that you send an experienced officer to talk with us. We look forward to your early reply.
(Emphasis in original.)
This letter bore a Departmental date stamp of 25 October 1978 and what appears to be a recommendation that Mr McIlveen make “early contact please”.
A record of a home visit which Mr McIlveen made to the Phelans on 1 November 1978 noted the following:
Home visit, foster parents and Ward seen separately and then together. The foster parents main complaints spring from Mr Phelan who states that [MTH] does not keep her room tidy. She only helps her mother about the house reluctantly, she has arrived home late (up to 1/2 an hour) on a few occasions and her manners generally ar[r]ogant and unco-operative. Foster mother backed up these claims to a lesser extent.
[MTH] spoke of her foster father as being completely disinterested in her, being grossly unfair in the manner in which he disciplined her in that he, in her opinion was [too severe] and tended to deprive her of things which she liked to do mainly in relation to her horses. She saw her foster mother as more understanding but stated that neither she or her foster mother could influence any of the foster father’s decisions. She stated that the foster mother and foster father were continually fighting and that on quite a few occasions they themselves had nearly separated.
It is obvious that relationships between the foster parents are not of the best in this home. [MTH] is now going through very difficult teenage years and her foster father in particular displays no sympathy or understanding what so ever and expects [MTH] to behave in all areas as she did as a younger girl. The matter was discussed with all parties in an effort to improve the communications [within] this family but it was obvious although [MTH] and her mother were prepared to make efforts to improve areas in which they possibly [exhibited] weaknesses the foster father would not move an inch from his position in the whole affair.
In this Officers presence he told [MTH] that if she did not shape up that he would have her removed from the home, and it was under this threat that the visit terminated. Arrangement were made for all to be seen [on] the 14.11.78.
A further note was made by Mr McIlveen on 12 November 1978 which recorded that Mr Phelan had rung Mr McIlveen at home and told him that he wished MTH to be removed. Mr McIlveen noted that arrangements were made for MTH to be collected on 14 November 1978.
On 14 November 1978, Mr McIlveen visited MTH’s school. He was told that MTH would have to satisfy the attendance regulations and remain in attendance at that school until 1 December 1978 in order for her to qualify for the School Certificate. He discussed alternative arrangements with the principal.
On the same day, he made a home visit to the Phelans. His record noted the following:
… on arrival Mrs Phelan attempted to see this Officer alone but Mr Phelan would not allow this. She however, manage[d] to whisper that she wanted [MTH] to remain if possible. It was obvious that the request for removal was coming mainly from the foster father, he stated that [MTH]’s attitude generally had not improved and that he was concerned about her association with a Butler family in the Tenterfield area who were also interested in horses. The matter of the School Certificate was discussed with the foster parents and reluctantly Mr Phelan agreed that [MTH] could remain in the home until the 1.12.78 to qualify for her School Certificate, he again reiterated that should her behaviour not improve he wanted her removed from the home at that date. [MTH] herself was seen at the home of the family Butler, mentioned earlier, she left this home with the Officer and the matter of this placement was discussed with her. She was obviously extremely upset about the whole foster placement, she was torn between the desire to remain in a home, the only home she has only known and desire to get away from a foster father who was now completely rejecting her. She criticised this department for the manner in which they had taken her away from her brothers and sisters and placed her in a home with no other children, where she had been reared mainly in Motels with no friends of her own except her horses which she had grown to love in the last few years. Very reluctantly [MTH] agreed to remain in this home until she qualified for her School Certificate. There was still strong ties between the foster mother and [MTH] and also [MTH] recalled the closeness that once existed between her and the foster father, for these reasons [MTH] was not removed immediately as it was hoped that communications and feel[ings] within this home would resolve themselves and the placement would remain intact.
Mr McIlveen recorded making enquiries on 15 November 1978 at residential agricultural colleges where MTH could live but the cost was an obstacle, as was the requirement that students provide their own horse. He also recorded that Mr Phelan had called him again on 26 November 1978 and asked that MTH be removed. He noted that arrangements were made for MTH to be removed on 27 or 28 November 1978.
When Mr McIlveen visited the Phelans on 30 November 1978, he found that there had been something of a reconciliation between Mr Phelan and MTH. However he noted that Mr Phelan wanted to use the threat that MTH would be removed from their home as a way of getting MTH to conform to the standards of behaviour which he expected of her and that MTH resented these threats.
Later that day, Mr McIlveen contacted the foster parents of MTH’s younger brother, who said that they could have MTH to stay for the holiday period. Mr McIlveen noted:
[MTH’s brother’s foster parents] have offered their home on future occasions if necessary to [MTH], it is a farm at Gum Flat with eight or nine horses on the property and two other foster children as well as [MTH’s brother] in the home and it seems as a[n] ideal spot to place [MTH] if she has to recover from the emotional shock of removal from the Phelan home.
The appellant’s birth mother died on 9 December 1978. Neither the Department nor MTH became aware of her death until the following year (see below).
The appellant was removed from the care of the Phelans in February 1979. Mr McIlveen’s annual report on MTH dated 20 March 1979 noted:
During the past six months this Ward has gone through a difficult time culminating with the breakdown of a long term placement in February this year and the replacement of [MTH] with Mr and Mrs Croft.
…
She has for some time been aware of her status as a Ward but this certainly has been brought home to her most forcefully in the last six months. She has throughout her long initial placement used the name [M] Phelan and even though this placement has now broken down she desires to continue using that name.
“Throughout 1977 and 1978 the relationship between Mr and Mrs Phelan had not been particularly sound and in fact both parties contemplated separating. They decided to remain together mainly to continue to provide a home for [MTH]. However these family arguments only served to aggravate feelings of uncertainty and insecurity [MTH] was beginning to experience as she entered her mid teens. [MTH] herself became difficult to control and in the latter half of 1978 this placement became volatile. [MTH], an only child who had been somewhat spoiled throughout the early part of this foster placement now found that the foster parents no longer succumb[ed] to her every wish. The foster father, in particular, with whom [MTH] had enjoyed a very close relationship was unable to handle the change in [MTH]’s attitude as she became more and more outspoken and sought more and more freedom in her out of home activities.
Although [MTH] and her general attitude must share some of the responsibility for the eventual breakdown the main area of difficulty appeared to be that Mr Phelan in particular was too rigid in the level of behaviour he expected from [MTH]. When the placement did eventually breakdown the Phelans’ and [MTH] were all extremely distressed.
Had the State applied for MTH to be adopted by Mr and Mrs Phelan, the Adoption Act authorised the Court to make an order for adoption, notwithstanding MTH’s birth mother’s opposition if it appeared to the Court that any one of the matters in s 32(1) of the Adoption Act referred to above was made out. It would appear from the evidence that it was at least arguable that MTH’s birth mother was unfit to discharge the obligations of MTH’s parent, having abandoned MTH (by giving her up to the State because she could not care for her) (s 32(1)(c)); by failing to make suitable arrangements for MTH (unless it could be said that by giving her up to the State she made suitable arrangements) (s 32(1)(d)); or because by dispensing with the consent so that an order for the adoption of the child may be made, the interests and welfare of MTH will be promoted (s 32(1)(e)).
However, the authorities on adoption in the 1950’s, 1960’s and 1970’s reveal a reticence on the part of judges to make an adoption order contrary to the wishes of the mother because of the gravity of the consequences of the order. For example in Mace v Murray (1955) 92 CLR 370; [1955] HCA 2, the High Court (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ) considered at 380-381 the “drastic effect of an adoption order” which deemed the child to be the child of the adopting parent as well as having the following effects:
… the order of adoption shall terminate all rights and liabilities existing between the child and his natural parents; and the adopted child shall take the surname of the adopting parent in substitution for his own surname. The natural parent thenceforth has no rights whatever with respect to the custody, control, training or education of the child, and cannot even have access to the child unless by the grace of the adopting parent; and the child can no longer expect from the natural parent any of the benefits which the natural relationship ordinarily yields. It must be a rare case in which the judicial mind can be satisfied to hold it just and reasonable that such a change should be brought about against the will of a mother.
It must be conceded at once that in the ordinary case the mother’s moral right to insist that her child shall remain her child is too deeply grounded in human feeling to be set aside by reason only of an opinion formed by other people that a change of relationship is likely to turn out for the greater benefit of the child. It is apparent, too, that a court which is invited to make an order of adoption must appreciate that the child is another’s, and that only the most weighty and convincing reasons can justify the involuntary breaking of a tie at once so delicate and so strong as the tie between parent and child. But these considerations cannot carry such overwhelming weight where the mother, with pre-meditation and full knowledge of what she is about, has excluded the child from her life from the moment of its birth. In such a case, and especially where others have taken the mother’s place both materially and emotionally during the period of her renunciation of him, her proved unfitness to be a mother to the child is clearly relevant to the question whether it is just and reasonable for the court to substitute those others for her in the parental status despite a new-found desire on her part to retrace her steps.
Section 32(1)(e) invests the Court with a general power to dispense with a mother’s consent. However, where she is available, not mentally or physically unfit nor unfit as a parent or guardian, due and full consideration must be given to the great seriousness of the step involved.
If there were no danger in this present situation being upset it might be contended with considerable force that adoption is not necessary for the welfare of the child and the foster parent relationship should it continue. Therefore the court should not use its powers under s 32(1)(e), because the making of an adoption order is not required to promote the interests and welfare of the child. If, for example, her status as a foster child was a source of real anxiety to the child or to the foster mother then the case for dispensing with the natural father’s consent would be much stronger than it is. …
The real question is, is it in the interest of K that there should remain available to her the possibility of being reunited to her own parents, if the Minister should so determine?
The principal justification for terminating the natural ties is to give security to the child by removing any temptation from A and B to continue to exert pressure for the return of the child.
The effect of the Adoption Act is that it was open to the State to apply for an adoption order in respect of MTH in favour of the Phelans at any time after the Phelans expressed a wish to adopt MTH. While the State was obliged to seek the consent of MTH’s birth mother, it could still have applied without that consent, since the Court had power under s 32(1)(e) to dispense with the mother’s consent. Further, when it became clear that the Phelans were not of one mind about MTH continuing to live with them, it was open to the State to seek an adoption order in favour of Mrs Phelan alone. This is because the requirement that the adopted parents be a couple was also susceptible to dispensation, as outlined in the Adoption Act.
The duty of care owed by a guardian to a ward is non-delegable: Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407 at [49]-[50] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ); see also Bennett v Minister of Community Welfare (1992) 176 CLR 408; [1992] HCA 27 for a discussion of the duties owed by a guardian to a ward. The duty therefore requires not merely the taking of reasonable care but also ensuring that reasonable care is taken: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); [1994] HCA 13. However, s 43A of the Civil Liability Act applies because the State is a public authority and the powers it exercised with respect to MTH were special statutory powers.
Section 43A(3) of the Civil Liability Act relevantly provides that for the purpose of proceedings for civil liability (such as the claim brought by the appellant against the State in the Supreme Court) “any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.”
Section 43A of the Civil Liability Act was inserted into the Act by the Civil Liability Amendment Act 2003 (NSW). Clause 15(1) of Sch 1, Part 4 of that Act provided that Part 5 (which included s 43A) applies in relation to civil liability whether arising before or after 13 November 2003. Thus, the State can rely on s 43A in these proceedings in respect of its conduct from the 1960’s onwards.
While s 43A must be pleaded as a defence (to indicate that it is being relied upon), it is not a defence. In Transport for NSW v Hunt Leather Pty Ltd; Hunt Leather Pty Ltd v Transport for NSW (2024) 115 NSWLR 489; [2024] NSWCA 227 at [175], this Court said, citing Basten JA (Macfarlan and Brereton JJA agreeing) in [2021] NSWCA 321; (2021) 250 LGERA 136 at [8], [107], [147] that “… s 43A(1) imposes an altered standard of care, attenuating the standard of care required to be proved when establishing the ‘civil liability in tort’ to which s 40(1) refers”. This Court also said in at [179]:
If a special statutory power is exercised negligently, or if it is alleged that it was negligent not to exercise a special statutory power, then the action for negligence is one that is based on the exercise or failure to exercise a special statutory power. In such a case, the effect of s 43A is that rather than needing to satisfy ss 5B and 5C, it is necessary to show that the exercise or failure to exercise the statutory power is unreasonable in the sense stated by s 43A(3). But the claim for nuisance in this case is not one which is based on the exercise of a special statutory power.
The hypothesis posited by MTH was that it was negligent of the State not to apply for an adoption order from the Court because, had such an adoption order been made, the psychological harm she suffered as a consequence of being separated from the Phelans and the physical and psychological harm she suffered as a result of the sexual assaults by Mr Croft would have been avoided. While in these circumstances the consequences of counterfactuals are not easily proved, it may be accepted that had the Phelans adopted MTH before she became adolescent and before Mr Phelan became ill, it is unlikely that when these events or stages ensued she would have been sent away from them, or at least from Mrs Phelan. However, it does not follow from the fact that if a different course of action had been taken harm might or would have been avoided, that it was negligent not to take that course. Nor does it establish that it was so unreasonable for the State to defer the application for an adoption order that no reasonable public authority in its position could have considered deferral to be a reasonable exercise of its power.
In the present case, the appellant’s birth mother withheld her consent at all material times. She died on 9 December 1978 at which time her attitude to adoption became immaterial. The Phelans were keen to adopt the appellant from at least November 1968, when the appellant was six years old, until about late 1977, when she was 15 years old when their preparedness to adopt her changed following conflict between the appellant and Mr Phelan and Mr Phelan suffering a stroke. During that period of nine years, the State had no reason to believe either that the appellant was not happy and well settled at the Phelans (indeed, all the evidence from both sides was that she was) or that the appellant’s birth mother would seek to upset the foster care arrangements with the Phelans. While the Phelans were keen to adopt the appellant, the fact that she was a foster child rather than their natural child appears to have had little or no effect on the appellant for this period since she used their surname, called them “Mum and Dad”, lived wherever they lived and had her emotional and material needs met by them.
In these circumstances, it was not unreasonable for the State to consider that an adoption order was not necessary (for the reasons adverted to in Re K (an infant). Further, the State may have also considered that a contested adoption request (in spite of the appellant’s birth mother’s wishes) may upset the situation and bring about some intervention by the appellant’s birth mother, who appears to have been otherwise content to have others look after her children but who, whenever asked, withheld her consent to MTH being adopted. By the time the appellant’s birth mother had died, the situation with the Phelans had deteriorated to such an extent that Mr McIlveen had to plead with Mr Phelan to allow MTH to remain with them until December 1978 so that she could qualify for her School Certificate.
The appellant argued at trial and on appeal that the State was negligent for placing her with the Crofts and also for failing to care for her and monitor her movements after she left the Crofts (in early 1980) until she turned 18 in August 1980.
The State, in its written submissions to the primary judge, identified the special statutory powers which arose for consideration in MTH’s placement case, being its powers to “board out” its wards (ss 10 and 23 of the Child Welfare Act 1939 (NSW)).
Foster Family (the Crofts’). Mr and Mrs Croft are a young couple with a six month old baby son. They live on a large property on the Kingstown Road some 20 miles out of Uralla. They run cattle but are mainly concerned in the breeding of blood horses. They are approved foster parents having been approved to foster a specific teenage girl who is to be made a Ward and placed with them from a local church home. Admission to Wardship in that particular instance fell through and the girl remains in the church home situation. The Crofts’ still keep contact with her.
The Crofts’ help was solicited in this matter when it was desired to prevent [MTH] from being dumped in Sydney and to keep her near her former foster parents where it was hoped she would remake some form of contact with them and also to enable her to pursue on the job training in horse management.
To date the placement has proved satisfactory. The Crofts’ are much more relaxed in their manner of discipline. Both share the same interests as [MTH] and are actively involved in horse breeding, training and showing. Their influence has already led to [MTH] reconsidering the giving up of her education altogether and she is now enrolled at Tech College in an Accounting Certificate Course. She also attends one night a week at a typing course in Uralla. They have encouraged her to talk openly about her former foster placement and in fact on the 16 of this month will take [MTH] to visit her former foster parents in Tenterfield.
It is too early to say yet whether this plan of action will prove eventually to be successful. However [MTH] appears to be very happy in the Crofts’ home. She undoubtedly misses the Phelans’ and is concerned about the manner in which they eventually left each other. She has written to them and they to her and as stated earlier they will see each other again this week. It is hoped that contact will continue but that [MTH] will remain with the Crofts’ until she completes her Tech course.
On 13 July 1979, Mr Phelan wrote to Mr McIlveen, inviting him to call in when he was next in the area. Mr McIlveen responded on 3 August 1979 to say that he no longer covered the Tenterfield area but would be happy to speak with him on the phone and answer any questions about MTH. Mr McIlveen invited him to call the office reverse charges.
On 18 July 1979, the Department of Community Welfare Services, Victoria wrote to the Department to inform it that the appellant’s birth mother died on 9 December 1978. This appears to have been communicated to the Adoptions Branch on 24 July 1979. Mr McIlveen noted that he told MTH on 2 August 1979. MTH denied that she was ever informed of her mother’s death. I accept the file note made by Mr McIlveen that he told her.
On 14 August 1979, Mr Phelan wrote to Mr McIlveen thanking him for his letter of 3 August 1979. He mentioned MTH’s “expected youthful romanticisms of vocations” and expressed his hope that Mr Phelan would be able to “[set] her up in her own business rather than have her face demoralising unemployment … assuming she has a liking for the undertaking”. He concluded:
I should very much like you to record that if [MTH] ever offend Mr and Mrs Croft or for any reason cease to fit into their pattern of life, her home will still be here.
I should also like to take this opportunity of thanking you for your efforts and humane vision in this matter.
On 12 September 1979, Mr McIlveen made enquiries of Orange Agricultural College to see if MTH could enrol in a horse management course. On 26 September 1979, he also provided a reference for MTH to the college.
At some time in late 1979 or early 1980, Mrs Croft’s second child was born. A Departmental report of 13 May 1980 noted that the Crofts were no longer able to have a foster child.
MTH continued to communicate with the Phelans by letter. In a letter dated 1 May 1980 (which did not indicate her then address) she told them that she was living with a woman and her four children in a refuge house in Bathurst and going out four nights a week to clubs and discos.
Mr Phelan wrote to the Department’s Bathurst office, expressing concern about the contents of MTH’s letter. He noted that, as she would soon turn 18 in August 1980, she would pass from the Department’s care. He sought the Department’s assistance in ascertaining MTH’s whereabouts and asked the recipient of the letter to “intercede for [the Phelans] in trying to get her to come home”.
Mr Sutton, an officer of the Department in Bathurst, noted the correspondence and reported on contact with MTH and said:
The first knowledge that [MTH] was in the Bathurst district, occurred approximately four weeks ago when she visited the District Office. It appears she had been working on a horse stud at Rockley, which is approximately 15 miles from Bathurst. When the work at the stud ceased, [MTH] made her way to Bathurst and eventually finished up at the Bathurst Women’s Refuge.
…
Discussion was held with [MTH] in respect to a letter recently received through the former foster parents, Mr & Mrs Phelan. [MTH] appears to retain a reasonably positive attitude towards the Phelan family, however at this stage she said she would prefer to have time to “sort herself out” before any further meetings with them. She does appear quite keen at the idea of meeting with them again, but obviously at this stage wants to establish herself in employment and accommodation before any trip to Tenterfield. In view of the reasonably positive attitude she retains towards this family, I have suggested to her that she might like to correspond with them on a reasonably regular basis.
[MTH]’s general progress will be kept under notice, support and guidance will be offered where appropriate.
A handwritten endorsement on this report noted that in August 1980 (on MTH’s birthday) she was “discharged” (as a ward).
Thomas McIlveen died in January 1993 at the age of 56 years. Warren Mewton died in February 2023 at the age of 83 years. Accordingly, neither was available to give evidence in the Court below.
While the appellant was the subject of the placement she was, understandably, not privy to the checks which the Department made of the Crofts or, necessarily, the reasons for her placement with the Crofts. In these circumstances, her evidence does not materially affect her placement case against the State and therefore need not be summarised.
The appellant gave evidence that, after the sexual assaults committed on her by Mr Croft, she felt that she could not see the Phelans or communicate with them. She said that she left the Crofts in early 1980 and that the State did not monitor her after that time.
Her evidence was that after she left the Crofts, she moved to a farm in Moree. She then moved to Sydney where she stayed with her sister for a couple of months. While there, she worked as a strapper at the Hawkesbury Racecourse for less than a month. She then moved to Bathurst where she worked at a horse stud for a couple of months. She then moved to a Women’s Refuge in Bathurst. It would appear from the Departmental records that she presented at the FACS office in Bathurst at about the time she moved there, which is how Mr Sutton was able to pass on Mr Phelan’s concern about her welfare. She found a room in Bathurst before moving to Rockhampton where she worked casually as a meat worker. By this time she had turned 18 and was no longer a ward of the State.
As appears from the contemporaneous documents summarised above, the State decided to place MTH with the Crofts because of the relative proximity between Uralla (where the Crofts lived) and Tenterfield (where the Phelans lived). Mr McIlveen hoped that the rift between MTH and the Phelans was temporary and that they would be reconciled in due course. He adjudged the prospect of such a reconciliation to be higher if MTH was placed sufficiently close to them to enable visits to occur rather than in Sydney. He was also aware of the appellant’s love of horses and considered, in so far as his file notes record, that the Crofts would be suitable because of the rural location and their apparent credentials.
It was not suggested that the State was aware at any time until the prosecution of Mr Croft for offences against MTH and RS that Mr Croft was violent or sexually abusive. The investigations and enquiries which the Department performed in relation to the Crofts (which are summarised above) did not reveal any risk of harm in the placement. Indeed, the features of the placement referred to above appeared likely to be in the interests of MTH.
The Departmental records summarised above indicate that Mr McIlveen visited MTH at the Crofts several times during her placement there. There is no suggestion in any of those documents that the placement was adverse to MTH’s welfare. Further, the appellant did not suggest at any time when she was being questioned by Mr McIlveen that she had disclosed the sexual assaults committed against her by Mr Croft to him. Mr McIlveen’s understanding was that when Mrs Croft gave birth to her second child, the Crofts no longer wanted a foster child or children. When MTH moved to Bathurst, Mr Sutton had contact with her through the FACS office at Bathurst.
The appellant has failed to establish that the State’s exercise of its special statutory powers under the Child Welfare Act with respect to the placement of MTH were, within the meaning of s 43A(3) of the Civil Liability Act, so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.
The appellant has failed to establish any of her grounds of appeal relating to the placement case, including ground 25.
As is evident from the narrative above, MTH’s natural siblings were also wards of the State. Accordingly, the State was aware of their whereabouts. Mr McIlveen contacted the foster parents of MTH’s brother who lived at Gum Flat (west of Armidale) and were prepared to have the appellant stay for the holidays after she finished school in December 1978.
The appellant was also critical of the State for not informing her of her mother’s death (an allegation not made out) or helping her to visit her mother’s grave. She described herself in submissions in the Court below as “mov[ing] into adulthood, abused, demoralised [and] homeless”.
The appellant’s principal case against the State was that it ought to have arranged for her to be adopted by the Phelans earlier, rather than that the State ought to have arranged for a foster family who could accept her and her siblings. It would appear from the contemporaneous evidence that FACS and the Phelans were endeavouring to foster an environment whereby the appellant would feel that she was the Phelans’ child, as it appeared she did. In these circumstances, it was not unreasonable (within the meaning of s 43A of the Civil Liability Act) for the State to choose not to exercise its special statutory powers to foster closer relationships between the appellant and her siblings, which would inevitably have led to the realisation that she was not the Phelans’ natural child. When the appellant was older, FACS divulged her true situation to the appellant and, as referred to above, made enquiries of the foster parents of her brother.
For these reasons, the family union case has not been made out.
In order to prove the first aspect of her case against Mrs Croft, the appellant needed to prove that Mrs Croft was aware that Mr Croft had acted in such a way with respect to RS and PS as to make him unsuitable to be a foster carer of MTH. The appellant was reliant on RS and PS for this evidence. She had mistakenly believed that she could tender RS and PS’s police statements and the transcripts of their evidence in the prosecution of Mr Croft without actually calling them to give evidence (her previous solicitors had included them in the Court book but objection was taken to them). As far as the appellant knew, RS and PS had settled their civil claims and were reluctant to come and give evidence.
On 22 July 2024, the first day of the trial, the primary judge explained to the appellant that RS’s witness statements could not be tendered in evidence unless he was called to give evidence. This resulted in the appellant asking for “the opportunity to subpoena the victim [RS]”. The primary judge confirmed that he would “deal with that later”. Subsequently, the appellant reiterated her request for a subpoena to be issued to RS. She told the primary judge that she thought that RS lived in Queensland and that she would prefer for him to give evidence via Audio-Visual Link (AVL). Mr Andrews identified RS’s lawyers (who had acted for him in his civil claim for damages against the State, the estate and Mrs Croft which had been resolved). The primary judge told the appellant that he would be prepared to issue a subpoena if RS could be found and that he would allow RS to give evidence by AVL. His Honour confirmed that no party objected to late service of the subpoena to RS.
On 23 July 2024, the second day of the trial, the appellant reported to the primary judge that she had contacted RS’s solicitor who was going to get back to her. Later that day, the appellant informed the primary judge that she had been told by RS’s solicitors that he would not give evidence voluntarily. The primary judge suggested that she ask RS’s solicitors whether they would accept service of a subpoena on RS’s behalf. His Honour confirmed that he would not issue a subpoena without an address for service.
On 24 July 2024, the third day of the trial, the appellant told the primary judge that she was still working on getting either RS or PS to come to give evidence. The primary judge informed the appellant that, unless she could call RS, she would not be able to prove that Mr Croft abused RS. On 26 July 2024, the fifth day of the trial, the appellant told the primary judge that RS would be giving evidence the following week.
The matter was revisited on 29 July 2024, the sixth day of the trial. The appellant told the primary judge that she had an email address for RS but that RS did not want to give evidence because he was subject to a confidentiality agreement as part of his settlement of his own claim. Mr O’Neill confirmed that the State would not allege that, by giving evidence in the proceedings, RS would be in breach of his confidentiality undertaking in the terms of settlement which resolved RS’s claims. Mr Andrews and Mr Tierney both indicated that they would challenge RS’s evidence if he was called to give evidence but that their clients would not allege against RS that he was, by giving evidence, in breach of the confidentiality clause in the settlement agreement which resolved RS’s civil claims against them. The primary judge asked the appellant if she could arrange for RS to give evidence on Wednesday (31 July 2024). The appellant informed the primary judge that she had sent an email through to RS but that she did not have access to her emails on the device she had in court because it was an old device and therefore did not know whether he had responded.
There was a factual dispute in the trial between the appellant and Mrs Croft regarding whether the appellant ever told Mrs Croft that she had been sexually assaulted by Mr Croft.
At its highest, the appellant’s evidence was that she had hidden a bloodied sanitary napkin in the wardrobe in her bedroom at the Croft residence following a sexual assault by Mr Croft which had resulted in her bleeding. Mrs Croft found the sanitary napkin and chastised her for poor hygiene, at which point the appellant told her that she had put it there after having been sexually assaulted by Mr Croft. The appellant’s evidence was that, at that point, she was told to leave the Croft residence. The appellant’s recollection of the conversation was that it occurred in late 1979 or early 1980.
Mrs Croft recalled a conversation with the appellant about a sanitary napkin but she said that it had happened relatively early in 1979, shortly after the appellant had started studying at the technical college. She denied that the appellant had told her anything about being sexually assaulted by Mr Croft. Her evidence was that the first time she heard any suggestion that her husband had sexually assaulted MTH was when Constable Hall rang her and told her that MTH had alleged that Mr Croft had sexually assaulted her. Mrs Croft then raised the matter with Mr Croft who vehemently denied it.
For the reasons given above, the trial judge’s assessment of the appellant’s credibility was flawed (which occupied a substantial part of the judgment from [84]-[282]). Therefore, his Honour’s preference for Mrs Croft’s version cannot be given the weight which would ordinarily be given to evidence which may reflect the advantage enjoyed by the primary judge of seeing and hearing the witnesses: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. In these circumstances, if the appellant’s evidence, accepted at its highest, was capable of establishing liability in tort against Mrs Croft, it may be necessary to order a re-trial of this aspect of the appellant’s case against Mrs Croft. However, in my view, the appellant’s evidence is not capable of establishing that Mrs Croft is liable.
First, the appellant did not give any evidence that Mrs Croft saw Mr Croft assaulting her, whether sexually or otherwise. Indeed her evidence was that Mr Croft waited until Mrs Croft had left the house before assaulting her, physically and sexually. Second, according to the appellant, she left the Croft residence soon after disclosing the abuse to Mrs Croft. At that time, all Mrs Croft knew (if the appellant’s evidence were to be accepted) was that a foster child under their care had alleged that Mr Croft had sexually assaulted her.
I do not consider that any duty of care which Mrs Croft owed to the appellant required her to do anything about an allegation of that nature in circumstances where the appellant, shortly after the allegation was said to have been made, was no longer in the care of the Crofts.
As referred to above, the appellant challenged several of the primary judge’s rulings on the ground of procedural fairness.
In ground 2, the appellant challenged the primary judge’s admission of Dr Khoo’s report dated 20 April 2016 notwithstanding that she was unable to give evidence at the hearing on the grounds of mental incapacity. In a separate judgment, his Honour allowed the report, over the appellant’s objection but indicated that his Honour would have regard to the fact that Dr Khoo could not be cross-examined when assessing the weight of her report. The appellant has not made out any error in the primary judge’s ruling. This ground has not been made out.
In grounds 8 and 9, the appellant seeks to challenge what she alleged was the primary judge’s ruling that she was not permitted to call Natalie Wallace, her counsellor at Care Leavers of Australasia Network (CLAN), to give evidence. The appellant’s application to call Ms Wallace was made on 1 August 2024 after the primary judge had admitted the report of Ms Wallace dated 15 March 2015 into evidence (in which Ms Wallace noted that in the first session in 2011, the appellant disclosed to Ms Wallace that she had been sexually abused). The primary judge took a short adjournment to enable MTH to contact Ms Wallace to ascertain whether she could give evidence by AVL that day. At that point, MTH renewed her application to rely on the transcript of the criminal trial, which was refused by the primary judge. When the primary judge offered to take another short adjournment to permit MTH to ascertain whether Ms Wallace was available to give evidence that day, MTH responded, “Don’t bother”. MTH did not reagitate her application to call Ms Wallace as a witness. For these reasons, grounds 8 and 9 have not been made out.
The appellant alleged in ground 10 that the primary judge had not viewed or correctly interpreted the documents from her file as a ward of FACS. It cannot be inferred that the primary judge did not carefully review the adoption records of FACS. His Honour was entitled to summarise the evidence rather than set it out in full. Ground 10 has not been made out. The appellant was also critical of the State for its conduct with respect to documents in the ward file in ground 19. This ground has not been made out.
The appellant alleged in ground 21 that the primary judge formed an adverse view of her for making a claim against the estate of the late Mrs Phelan. Even if this ground were made out, it has not affected this Court’s assessment of the appellant’s credibility on the rehearing. In any event, ground 21 has not been made out. Although the primary judge referred to the appellant making the claim, the reasons do not indicate that his Honour relied upon it to form an adverse view of her, as the appellant alleged.
I consider there to be another significant error in the primary judge’s assessment of damages which arose from the submission made by Mr Andrews on behalf of the estate in the Court below. In the Court below, Mr Andrews submitted that, if the sexual assaults were established, an appropriate range for general damages would be $175,000 – $200,000. He submitted that these figures (and not greater figures) were appropriate because there was a gap of 33 years from 1979 to 2011 during which the appellant was not suffering because she had, on her own evidence, suppressed her memory of the assaults. He also submitted that there ought be no allowance for interest in that period.
The primary judge largely accepted this submission and found at [368]:
It could not be that the plaintiff was suffering from any form of PTSD causally related to the abuse by Mr Croft prior to 2011 because on the plaintiff’s own evidence she had suppressed those memories and was not reliving the experience or having flashbacks in that 30-year period.
On the plaintiff’s evidence in these proceedings, she had managed to suppress her thoughts of the abuse. I do not accept that the plaintiff would have been suffering from PTSD in relation to the abuse when on her own evidence she was not generally conscious of the abuse.
Somewhat inconsistently, the primary judge does not appear to have deprived the appellant of interest on general damages for the whole period of the past.
The genesis of Mr Andrews’ submission and his Honour’s finding was the appellant’s evidence that when she was disciplined at work in either 2008 or 2011 (there was differing evidence about the date), she had an extreme reaction, which she said resulted in her having suppressed the memory of the sexual assaults by Mr Croft. Her evidence was that those memories later resurfaced from her subconscious when she was being counselled by Natalie Wallace, at which time she felt substantial trauma associated with them. The appellant’s evidence included the following:
… it’s been explained to me by the psychiatrist that it’s like a filing cabinet and the brain is very, very high tech in the way that it can establish - and you live in a survival mode, so, so when you live in survival mode, you - the, the brain will, will say what it needs to do to help you protect yourself, and what it needs to do to help you deal with, with stuff that doesn’t need to be in the forefront.
So the forefront side of it, the suppression side of it is to protect me from feeling the, the fact that I’d attempt to try and talk about abuse and then nobody did anything, and the result of that was a negative result. So the brain establishes the locked away feeling of that and protects you from feeling that every single day. You still are subconsciously aware, which is why it affects relationships, so whatever it is that might have affected you as, you know, like, for me, it was - I had no relationships. I didn’t have any normal going out doing anything, you know, dating, nothing like that. This, this was very confronting for me. So by locking it away it allows you to not allow--
The appellant’s evidence that she “locked away” the memory of the abuse is, plainly, a lay opinion which indicates her own subjective assessment of why and how she was able to function between 1979, when the assaults occurred, and 2008, or 2011 when she revealed that they had occurred to the counsellor whom she saw following the work incident. The counsellor adjudged that her reaction was so extreme as to give rise to the suggestion that she had previously suffered a deeply traumatic event.
Delay in complaint is typical of those who have suffered sexual abuse as minors. The delay in reporting of some thirty years is not uncommon. Mr Andrews accepted that there was no expert evidence which supported the primary judge’s reasoning that the appellant’s explanation (lay, as it inevitably was) justified the finding that she was not suffering at all in the period of over thirty years since she was sexually assaulted. He also accepted that it would be wrong to regard the appellant as not having experienced any pain and suffering in the period from 1979 until 2008 or 2011. Although Mr Andrews conceded that the appellant must have suffered some pain and experienced some suffering during that period, he submitted that it was “almost nothing”.
The primary judge’s decision not to make any allowance for pain and suffering for the period of over thirty years following the rapes and sexual assaults is wholly at odds with what is known by courts, including those who sentence offenders for child sex offences. For example, in R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court (Leeming JA, Johnson and Hall JJ) stated at [110]:
This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the “long term and serious harm, both physical and psychological, which premature sexual activity can do”. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368–372 [26]–[39].
As far as compensatory damages are concerned, the appellant is entitled, so far as money can do it, to be put in the position she would have been in had she not been raped and indecently assaulted by Mr Croft. This is the measure of damages in tort: Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191 (Taylor and Owen JJ); [1966] HCA 38.
It was sufficient for the appellant to establish that her injuries were “caused or materially contributed to” by Mr Croft’s assaults: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 514; [1991] HCA 12. Further, if she has made out a prima facie case that her incapacity has resulted from Mr Croft’s tortious conduct, the onus of adducing evidence that her incapacity arises from a pre-existing capacity or would have resulted from that incapacity rests on Mr Croft: Purkess v Crittenden (1965) 114 CLR 164 at 168; [1965] HCA 34.
McHugh JA said in Nader v Urban Transit Authority of N**ew South Wales (1985) 2 NSWLR 501 at 536-537:
… it is settled law that the defendant must take the plaintiff as he finds him …. The rule of the “egg shell skull cases” should not be confined to the physical or constitutional characteristics of the particular individual. When a defendant takes a plaintiff as he finds him, he does not take him as a naked human being divorced from his environment. Clearly enough taking the plaintiff as you find him involves taking him in at least his social and earning capacity setting. … I think that the defendant must take the plaintiff with all his weaknesses, beliefs and reactions as well as his capacities and attributes, physical, social and economic.
(Citations omitted.)
The assaults committed by Mr Croft took place at some time in 1979 after February when the appellant moved to his property as a foster child. At that time, she was 16 years old. Until not long before the move, she had been living in a happy family situation with the Phelans and, despite the various moves they had made as a consequence of their occupation running motels, she had enjoyed a very stable family life with them, attended school consistently and had achieved her School Certificate at the end of 1978. MTH was noted to have a happy disposition and be a good student. While there was considerable conflict between her and Mr Phelan arising from his illness and incapacity to deal with her adolescent behaviour, she nonetheless regarded the Phelans as her parents, called them “Mum and Dad” and adopted their surname as her own, as she had done since she was four years old. She was understandably deeply distressed at having to be separated from them.
She was fond of horses and experienced in riding them. Although the Crofts expected that she would work with the horses on the farm, MTH wanted to get a qualification in accounting from the local technical college. One of the reasons for the placement with the Crofts was that she was relatively proximate to the Phelans and Mr McIlveen wanted to continue to foster the long-term relationship between MTH and the Phelans, who were the only family which she could remember and with whom she had developed strong bonds.
The appellant’s evidence, which was not challenged, was that, prior to the assaults by Mr Croft, she was a virgin and had neither sexual experience nor sex education. Her evidence of the sexual assaults (including penile/vaginal penetration) is corroborated by the convictions of Mr Croft for the five offences against her with which he was charged. Her evidence, which I accept, was of assaults which were violent and followed episodes of beating, and were characterised by Mr Croft as corporal punishments for her alleged shortcomings in performing domestic and other work tasks on the property. Her feelings of violation, alienation and isolation following these assaults were profound. Her guilt and shame at having been raped prevented her from seeking help from those best able to provide it: the Phelans and Mr McIlveen. She was too embarrassed to disclose the sexual assaults to them which created a deeper rift between her and the Phelans than her adolescent rebelliousness or Mr Phelan’s illness had brought about. The assaults disturbed her life in a substantial way, robbed her of self-esteem and prevented her from returning to the safety and support of the Phelan household (the correspondence referred to above indicates the extent to which the Phelans loved her and concerned themselves with her welfare).
There is considerable force in the State’s submission following its summary of the medical evidence:
While there are differences in each doctor’s diagnosis, all of them indicate that there are multiple factors which have and do contribute to those diagnoses. Given the very long list of traumatic events in the plaintiff’s life, the highest it rises is that the alleged abuse was one of many other causes of her symptomology.
The appellant made several criticisms of the primary judge’s assessment of the expert evidence, which are the subject of grounds 13-16. I consider that the primary judge’s analysis of the “gap” to be in error. To that extent, the grounds are made out.
The expert evidence adduced in the Court below is not particularly helpful in identifying the damage which the appellant has suffered as a result of the sexual assaults by Mr Croft. This may be explained by the circumstance that MTH has brought a significant number of claims against various people (including against the estate of the late Mrs Phelan); her hurt at being sent away from the Phelans (which, for the reasons given above, is not compensable); and her reluctance to disclose and discuss the sexual assaults in the course of consultations, particularly those for medico-legal purposes. Nonetheless, Dr Jungfer ultimately made a diagnosis of Post-Traumatic Stress Disorder (PTSD) arising from the assaults, which I accept.
Further, as referred to above, the principle established by Purkess v Crittenden casts the onus on the tort-feasor (Mr Croft) to show that the appellant would have been in a similar position but for his tortious conduct. I do not consider that he has discharged that onus nor could Mr Andrews point me to any passage in the evidence which was capable of establishing that, but for the sexual assaults perpetrated on her by Mr Croft, the appellant would have been in a similar position. Having regard to the complexity of the question and the number of matters affecting the appellant, it is not surprising that the proof of causal effect is difficult. However, she has established (as the primary judge accepted she had, if the assaults had been proved) that the assaults caused her significant harm. The estate has not discharged the burden of showing that its effect has ceased. Nor has it established (for the reasons given below) that the effects of the assaults did not continue from the time of their perpetration.
The assessment of loss of earning capacity requires the comparison between the appellant’s earning capacity but for the sexual assaults and her earning capacity as a consequence of the sexual assaults. Her case at trial was that, but for the sexual assaults, she would have qualified as a veterinarian four years after leaving school in Year 12 and worked full time in that profession for her working life. Thus, she made a claim for damages for loss of earning capacity of $2,947,806.24 (the difference between $3,565,649 (what she would have earned) and $2,211,320 (what she in fact earned), being $1,354,329, to which interest and superannuation need to be added).
This claim was based on a counterfactual which has not been made out. The appellant’s case at trial was that, had she remained with the Phelans (on the hypothesis that she would have been adopted by them and would have remained with them), they would have sent her to New England Girls School (NEGS) (which required fees to be paid) for her Higher School Certificate (although she had attended Tenterfield High School for her School Certificate) and she would have gone to university and qualified as a veterinarian. The relevant counterfactual, as set out above, is that she was placed with the Crofts and Mr Croft did not sexually assault her. While she was closer to NEGS when she was living at Uralla, the Crofts’ expectation was that she would work on their property. She did, however, enrol in a course at the Armidale Technical College while living with them. In these circumstances, I do not accept that MTH’s earning capacity ought be assessed on the basis that she would have qualified as a veterinarian within four years of attaining the Higher School Certificate or that she would have attained the Higher School Certificate, except as a mature age student.
I accept the State’s summary in the Court below of the appellant’s work history from 1980 to 2013, which is derived from the appellant’s oral evidence:
The plaintiff’s evidence revealed a capable work history that included significant employment up until 2013. This included farming work and work with horses, and work at two meatworks in Rockhampton. The plaintiff also worked in the telecommunications industry and an energy company for some years. The plaintiff worked for the Catholic Education Office and a range of other companies. This work history was largely in the context of the plaintiff’s memory of the alleged abuse having been supressed.
As the primary judge noted, the appellant worked hard and was in regular employment from the time she began employment until 2008, or 2011. Subsequently, she stopped work as a result of being bullied, which caused the memory of the trauma she had suffered at the hands of Mr Croft to return with greater force. She then became unfit for work and made claims against various people and entities, including that she was unfit for work because of physical injuries as well as psychological ones. The appellant’s evidence in the Court below was that she suffered a breakdown as a consequence of the trauma of the sexual assaults emerging in 2011 and that, in effect, she was unable to work again and has been on a disability support pension ever since.
I accept the submission made by Mr Andrews in the Court below that the appropriate way of addressing the appellant’s loss of earning capacity from 2011 is by way of a buffer.
Because of her age at the time of the sexual assaults, the appellant’s likely path in life was uncertain, including because she had just lost the daily support and affection of the Phelans. It is difficult, in these circumstances, to work out with any degree of precision the likely path which she would have taken but for the sexual assaults. While the appellant appeared, when representing herself, to be at times focussed and articulate, she was also distracted and distressed. She had been well-educated and obtained the School Certificate (although not the Higher School Certificate) and could speak and write well. However whether, but for the sexual assaults, she would have obtained a tertiary education at some later stage, is very much a matter of speculation. I am satisfied that the psychological effect of the sexual assaults was such as to affect her earning capacity, at least from the time of the bullying incident at work which led to her disclosing the assaults by Mr Croft in counselling with CLAN. She was counselled by Natalie Wallace, a counsellor with CLAN, from 2011.
The trial judge calculated that for the period during which the appellant worked consistently (from 1982 to 2011) she earned an average of $70,000 per annum. It is, however, not possible to determine with precision to what extent her post-2011 earnings, such as they were, were caused by physical injuries (in respect of which she made claims) and which were the consequence of a diminished earning capacity arising from PTSD as a consequence of the assaults.
In these circumstances, a buffer is appropriate since an award based on a weekly sum would imply precision which is unattainable: see, for example, Black v Young [2015] NSWCA 71 at [58]-[59] (Sackville AJA, Basten JA and myself agreeing). The present case is very far removed from the category where more precise evidence of loss could have been adduced but was not. A rational basis for assessment of a buffer amount has been laid by the evidence although its quantification is necessarily lacking in firm integers. The assessment of damages for loss of earning capacity is, by reason of the nature and timing (in MTH’s life) of Mr Croft’s tortious conduct against her, difficult and involves “a pragmatic exercise of a kind traditionally left to the good sense of a jury”: [1998] NSWCA 237 at 14 (Gleeson CJ, Mason P and Stein JA agreeing). The evidentiary foundation in the evidence set out above as to the balance of MTH’s work history permits a buffer to be awarded.
| General damages | | | - Past | $300,000 | | - Interest on past | $276,000 | | - Future | $100,000 | | Aggravated damages | $150,000 | | Past loss of earning capacity, including superannuation and interest | $350,000 | | Future loss of earning capacity | $50,000 | | Past out-of-pocket expenses | Nil | | Future out-of-pocket expenses | $120,000 | | TOTAL | $1,346,000 |
The appellant challenged the primary judge’s order that she pay the costs of the State on the ordinary basis until 20 July 2020 and on an indemnity basis thereafter. The primary judge exercised his discretion with respect to costs having regard to the Offer of Compromise made by the State on 30 July 2020 in the amount of $125,000, to which no response was made. At that time Greg Walsh & Co was acting on behalf of the appellant.
In ground 7 of appeal, the appellant contended that the primary judge ought to have allowed her to cross-examine Ms Faunt, the deponent of the affidavit deposing to the Offer of Compromise and the circumstance that no response was received. No error has been demonstrated in the primary judge’s refusal to permit the appellant to cross-examine Ms Faunt. In any event, on appeal, Ms Faunt corrected this evidence to indicate that there had been a response to the State’s offer in the form of a request for an extension of time, which was not forthcoming. The proof of the offer required documentary evidence. There was no proper forensic basis on which to allow Ms Faunt to be cross-examined. Ground 7 has not been made out. Further, ground 18 alleges that, in some way, the State was responsible for her non-acceptance of its offer. This ground has not been made out.
The appellant submitted that it was unfair for the State to seek its costs against her. However, she has failed to establish any error in the primary judge’s exercise of discretion. Accordingly, her application for leave to appeal against the costs order fails. Grounds 30-32 have not been made out.
As there is no reason to depart from the usual rule that costs follow the event (Uniform Civil Procedure Rules 2005 (NSW), r 42.1), the appellant is entitled to an order that Mr Croft pay her costs of the proceedings in the Court below and in this Court. Accordingly, the costs order made against her in favour of the estate must be set aside and, instead, an order made that the estate pay her costs of the proceedings.
The appellant made reference to a pre-trial offer which had been made on her behalf by Mr Walsh when he was acting for her. As this offer appears to have been without prejudice, it is not relevant to the costs of the proceedings. Accordingly, ground 28 has not been made out.
For the reasons given above, I propose the following orders:
Allow the appeal in respect of the judgment in favour of the second respondent.
Otherwise dismiss the appeal.
Set aside the judgment ordered by Cavanagh J in favour of the second defendant and the order in respect of the second defendant’s costs and, in lieu thereof:
(a) Order judgment for the plaintiff on her claim against the second defendant in the sum of $1,346,000. (b) Order the second defendant to pay the plaintiff’s costs of the proceedings in the Court below.
(a) a consent order to address the freezing order made in the proceedings in the Court below; or (b) if consent cannot be reached, a draft minute of order which sets out the order for which the party contends together with a short written submission in favour of that party’s version, which the Court will determine on the papers.
PRICE AJA: The conduct of the trial below was not an easy task for a judicial officer. There were a number of complex issues to be determined and the appellant represented herself. The primary judge dealt with the parties with patience, courtesy and efficiency. Regrettably, his Honour was not assisted by the submissions made on the issue of Mr Croft’s convictions which gave rise to the misapprehension referred to by Adamson JA at [44] above.
I agree with the reasons of Adamson JA and the orders her Honour proposes.
**********
MTH
State of New South Wales [2025] NSWCA 122
(1992) 176 CLR 408
(2024) 98 ALJR 1349
(1938) 60 CLR 336
(1994) 179 CLR 520
(1966) 114 CLR 185
(2011) 82 NSWLR 634
(2021) 250 LGERA 136
Appeal allowed in respect of the estate of Geoffrey Croft. Judgment for MTH against the estate for $1,346,000, with the estate to pay her costs below and on appeal. Appeal otherwise dismissed; MTH was ordered to pay the State's and Sandra Croft's appeal costs. The parties were directed to provide proposed short minutes addressing the freezing order within 14 days.
His Honour’s failure to appreciate the effect of the Evidence Act led his Honour into the error of considering that the abuse, insofar as it was constituted by the elements of the offences for which Mr Croft was convicted, could only be proved by MTH’s own oral evidence in the proceedings in the Court below, which his Honour did not accept. The primary judge compounded the appellant’s lack of understanding of the rules of evidence by misleading her as to their effect, although as noted above this was not deliberate. To this extent, grounds 17 and 26 have been made out.
The State is entitled to succeed as MTH has not established that the State’s exercise or failure to exercise its statutory powers under the Adoption Act was unreasonable in the sense stated by s 43A(3) of the Civil Liability Act.
The State relied on the time bar pursuant to s 50C of the Limitation Act in respect of her adoption case. This defence would have been effective to extinguish the State’s liability to her, had any such liability been established.
The appellant has failed to make out any of her grounds relating to her adoption case, including grounds 23 and 24.
At this point, Mr O’Neill (to fulfil the State’s role as model litigant) submitted that RS’s statement might be admissible under s 64 of the Evidence Act on the ground that it would lead to undue expense and delay for the witness to be required to be called. The primary judge rejected that suggestion on the basis that there was “a substantial issue on cause and effect in this case”. The primary judge confirmed that the appellant needed to arrange for RS to give evidence by AVL on “Wednesday” (31 July 2024). The plaintiff asked the primary judge whether he would be prepared to issue a subpoena to RS. His Honour responded that he would not do so (apparently on the basis that he could not be satisfied that RS’s solicitors had instructions to accept service on behalf of RS; RS had not responded to the email; no address for him was known; and there was such “late notice”).
On 31 July 2024, the seventh day of the trial, the appellant told the primary judge that “the other victim [RS] is actually not giving evidence” and that RS had “abused” her (verbally) when she contacted him about giving evidence. The primary judge then clarified with the appellant what her case against Mrs Croft was. At that point, Mrs Croft was recalled so that the appellant could put her case to her. Mrs Croft denied that she was aware of any abuse perpetrated by her husband against RS, PS or MTH. Mrs Croft said that there was “no risk whatsoever” in leaving the appellant with her husband. Mr O’Neill cross-examined Mrs Croft by reference to RS’s statements about what RS said that Mrs Croft had seen which she denied.
Because the appellant could not call RS or PS to give evidence in the trial, she could not establish that Mrs Croft had witnessed Mr Croft abusing the children when they were in the couple’s foster care. As Mrs Croft denied what was put to her in that regard by the appellant and by Mr O’Neill, there was no evidence on which to establish Mrs Croft’s liability for that aspect of the case.
As I understood the appellant’s submissions on appeal, she submitted that the primary judge ought to have assisted her to subpoena RS and ought not to have refused to subpoena him on 31 July 2024 on the grounds of “late notice” when it had been a live issue in the trial since the first day of the hearing and RS and PS’s statements had also been included in the court book.
A review of the trial transcript reveals that the primary judge endeavoured to assist the appellant as to how she could obtain sufficient details to obtain a subpoena to be issued to RS, such as by asking RS’s solicitors whether they had instructions to accept service and by finding out where RS was so that he could be served with a subpoena. It is also apparent from a review of the transcript that the appellant did not appear to appreciate the gravamen of what the primary judge was saying although she hoped that she would be able to persuade RS to give evidence. The authorities regarding the assistance which a judge can, and should, give to a litigant in person have been addressed above. Given the adversarial nature of the system and the need for the judge to retain impartiality, I do not consider that it was incumbent on the primary judge to do more to assist the appellant in getting RS to give evidence than his Honour did.
Accordingly, the appellant has failed to establish this aspect of her case against Mrs Croft. Grounds 5, 6, 27 and 29 have not been made out.
For these reasons, I am not persuaded that the grounds of appeal (including ground 22) associated with the judgment in favour of Mrs Croft have been established. I consider that the appeal against this judgment ought be dismissed.
The plaintiff is now 61 years old. She was consistently employed for approximately 30 years after the sexual assaults until the trauma was apparently triggered by an incident at work which led to an almost total inability to work. The evidence does not permit the quantification of economic loss by reference to a weekly amount or a precise mathematical calculation. In these circumstances, a buffer is appropriate since I accept that the mental harm suffered by the appellant as a consequence of the assaults affected her work capacity in a material way from the time she stopped work in about 2011. In these circumstances, I consider that a buffer of $350,000 for the past, including interest and superannuation, and $50,000 for the future (allowing for a discount of 15% for vicissitudes) to be appropriate.
(2024) 98 ALJR 644
(2016) 54 VR 1
(2003) 214 CLR 118
(2003) 58 NSWLR 188
(2003) 58 NSWLR 211
(2017) 263 CLR 338
(1955) 92 CLR 370
(1991) 171 CLR 506
(1991) 171 CLR 657
(1985) 2 NSWLR 501
(2018) 265 CLR 236
(2024) 73 VR 386
(1965) 114 CLR 164
(2006) 68 NSWLR 61
(2020) 94 ALJR 714
(2006) 229 CLR 638
(2018) 266 CLR 56
(2001) 209 CLR 165
(2024) 98 ALJR 1407
(2024) 115 NSWLR 489
(1981) 147 CLR 512