Plaintiff v Defendant

PRACTICE AND PROCEDURE - Admissibility of evidence - Tendency - Whether asserted tendencies are relevant - Whether evidence is otherwise relevant - Evidence Act 2008 (Vic) s 97 - DP (a pseudonym) v Bishop Bird [2021] VSC 453 - Evidence of earlier complaint of abuse by priest - Person who made representations deceased - Whether probative value outweighed by prejudice to defendants - Evidence Act 2008 (Vic) s 135 - Admissions - Representations made by former Archbishop of Melbourne in a statement and evidence to Royal Commission into Institutional Responses to Child Sexual Abuse - Whether representations are admissions made with authority of Archdiocese - Royal Commissions Act 1902 (Cth) s 6DD not applicable - Evidence Act 2008 (Vic) ss 48(1)(c), 81, 82, 87, Dictionary - Regina v Cassar; Regina v Sleiman (Judgment No 17) [1999] NSWSC 436 - Registrar of Aboriginal and Torres Strait Islander Corporations v Ponto [2012] FCA 1500; (2012) 208 FCR 346 - Schulz v The Queen [2019] VSCA 179.

1 Between 1968 and 1970 the plaintiff, Stephen O'Connor, was sexually abused on three occasions by Desmond Gannon.

2 At the time of the abuse, O'Connor was a pupil at the Catholic primary school in Kilmore, and served as an altar boy at the local church. Gannon was a Catholic priest in the Archdiocese of Melbourne appointed as assistant priest in the Kilmore parish.

3 O'Connor brings this proceeding claiming damages for injuries he suffered as a result of the abuse. He alleges there was negligence by the Archdiocese which was a cause of the abuse and his injuries, and that the Archdiocese is vicariously liable for the abuse perpetrated by Gannon.

4 The defendant is the current Archbishop of the Archdiocese. Because the Archdiocese is unincorporated, the defendant is named as a proper defendant under the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) ('Legal Identity Act').

5 Gannon was ordained as a priest in the Archdiocese in 1956, and was then appointed to parish positions. Part of O'Connor's case involved a claim that in about 1960, when he was assistant priest in the Glenhuntly parish, Gannon sexually abused a young Catholic boy, referred to in this proceeding as BTS, and that BTS and his mother reported the abuse to Father Connellan, the parish priest at the adjoining Ashburton parish (the 'BTS complaint'), who dismissed them and took no action. O'Connor claimed that Father Connellan's knowledge of the report of abuse by BTS was the knowledge of the Archdiocese, or alternatively that the Archdiocese was directly or vicariously liable for Father Connellan's failure to report the abuse and take action. O'Connor argued that a reasonable response to the BTS complaint would have prevented him being abused by Gannon. The defendant submitted the documents relating to the BTS complaint were inadmissible, and even if admitted did not establish BTS and his mother made a report of sexual abuse by Gannon to Father Connellan. Alternatively, the defendant argued that the Archdiocese was not directly or vicariously liable for any failure by Father Connellan to respond reasonably to the BTS complaint.

6 O'Connor also claimed the Archdiocese was vicariously liable for the abuse on the basis that Gannon was employed by, or in a relationship that was akin to employment with, the Archdiocese. Relying on the decision of J Forrest J in DP (a pseudonym) v Bird ('DP v Bird'),[1] O'Connor submitted that the role to which Gannon was appointed by the Archdiocese placed him in a position of power and intimacy vis-à-vis O'Connor such that the apparent performance of the role as assistant priest gave the occasion for him to abuse O'Connor. In response the defendant submitted that Gannon was not employed by the Archdiocese, the decision in DP v Bird was wrongly decided and should not be followed, that binding authority led to the conclusion that vicarious liability did not arise on the relationship between the Archdiocese and the priests, and the case brought by O'Connor must fail. The defendant further argued that no special role was assigned to Gannon that led to the abuse, which was the product of evil criminal intent not associated with the apparent performance by him of his role as assistant priest.

7 The Archdiocese cannot be sued at common law because it is an unincorporated association or body, and does not exist as a juridical entity.[2] The parties disagreed about whether, and if so to what extent, the common law position has been modified by the Legal Identity Act. O'Connor submitted that for the purpose of determining his claim the Archdiocese was to be treated as if it were a corporation now and historically, giving him the same rights against the Archdiocese as if he were suing an incorporated entity. The defendant submitted that the Legal Identity Act is directed only to the issue of recovery of damages, and does not have the effect of retrospectively making the Archdiocese an incorporated entity capable of being held directly or vicariously liable for abuse perpetrated by Gannon against O'Connor between 1968 and 1970. Further, the defendant submitted that the Archdiocese could not be found to owe a duty of care to O'Connor, that it did not have a role or function in relation to the appointment, supervision or direction of priests, and could not be found directly or vicariously liable for the conduct of Gannon or Father Connellan.

8 The defendant admitted that O'Connor was owed a relevant duty of care by Archbishop Mannix, who was Archbishop of the Archdiocese when Gannon was ordained, and when BTS allegedly made the report to Father Connellan, and by Archbishop Knox, who appointed Gannon to the role of assistant priest in the Kilmore parish. The defendant argued there was no basis upon which he could be held legally responsible for any direct or vicarious liability established by O'Connor against either of the Archbishops. However, in closing submissions the defendant conceded that he would accept responsibility for any finding and award of damages made in favour of O'Connor against the Archbishops. Relying on that concession O'Connor amended his statement of claim to plead in the alternative against the Archbishops.

9 O'Connor's family moved a number of times when he was a young child requiring that he change primary school. His parents separated before the abuse occurred. After leaving school when he was just 15 years old, O'Connor associated with a group of peers who drank alcohol heavily. In his late teens and 20s, O'Connor was charged with and pleaded guilty to criminal offences that were most often related to alcohol, driving and car theft. As a result he was imprisoned for periods of time, first in juvenile detention and later in adult jails. Until he turned 40 O'Connor's history of intimate relationships, lifestyle and work history could be described as itinerant. He has not worked since his late 30s. In the mid-1990s, he was assaulted on a number of occasions, leaving him with a chronic lower back complaint. In the late 1990s, O'Connor commenced a more stable, longer term relationship. In the early 2000s, O'Connor became involved in country music as a singer, president of community music clubs, and volunteer radio presenter. In 2011, O'Connor required treatment for a squamous cell carcinoma on his left vocal cord. As a result he was unable to continue singing. It is not in issue that O'Connor suffered significant psychological injury resulting from the abuse. However, there were issues between the parties about how these matters should be reflected in any award of damages for pain and suffering and loss of earning capacity.

10 O'Connor was born in 1957. He is the oldest of five siblings. His youngest brother was born with significant health problems, and has since died.

11 When O'Connor was a young child his father worked as a ganger for the railways. The family lived in railway station houses, and moved frequently. As a result O'Connor attended a number of primary schools in his early school years.

12 When O'Connor was about eight or nine years old his parents separated. He said he remembered normal family arguments, and on one occasion saw his father push his mother. After they separated his mother took the children to stay with his aunt in Melbourne for a few months, before they moved to Kilmore to live with his grandparents.

13 O'Connor did not go to school while they were in Melbourne. In Kilmore he attended St Joseph's Catholic Primary School, and later transferred to St Patrick's Catholic Primary School, which was new.

14 O'Connor said his grandparents' house had three bedrooms. His aunt, who was blind, also lived in the house. He said the children were able to do their homework in the lounge room.

15 After his parents separated O'Connor and his brother stayed with his father during school holidays.

16 O'Connor said he was a happy child. He enjoyed going rabbiting with his father, making billycarts and playing sport with his mates.

17 He said he had a lot of friends as a young boy. He loved school, and was a good student. He said he was a good little boy at school.

18 O'Connor said he was pretty good at football, swimming and running. They used to train at the Assumption College ground, and Ray Carroll, who coached football at Assumption College, said he was going to be an alright player, and gave him encouragement. He wanted to go to Assumption College because of its history of producing VFL players that had been coached by Carroll. O'Connor said when he was young he wanted to be a policeman.

19 O'Connor was recruited to be an altar boy by the nuns at the primary school. He said he respected religion and loved the church. O'Connor said he was proud of being an altar boy and proud to be a part of serving God. He was given instruction by the priest when serving.

20 O'Connor said you always had to respect the priest by calling him Father, or the nuns by calling them Sister. If you disrespected them they would correct you.

21 Gannon was born in 1929, commenced training in Corpus Christi College Seminary, Werribee in 1949, and was ordained in St Patrick's Cathedral Melbourne in July 1956.

22 Gannon was appointed to the Kilmore parish as assistant priest in October 1968 where he remained until January 1971.

23 O'Connor said to his knowledge Gannon did not have a special role at the school, but he always seemed to be around the school and was just like a teacher. Sometimes he would come to the school in his priest garments, and at other times he would be dressed more casually. He did not have an office at the school, but would just come over. He remembered Gannon giving religious instruction on one occasion. Gannon also talked to them when they were doing their altar boy training.

24 O'Connor said Gannon always seemed to be around the children's sports, and used to drive children on a bus to a swimming pool in Broadford. He remembered travelling on the bus one day when Gannon looked straight at him in the rear-vision mirror, and that he felt it was creepy and unnatural.

25 O'Connor said one day in 1968 he was in class at school when a nun came in and said something to the teacher, who then told him he was wanted outside. The nun then said to him that Gannon was going over to Lancefield to pick up some typewriters, and asked if O'Connor would like to go. O'Connor said he felt he had little choice, and agreed to go and give Gannon a hand. He thought this happened around 2pm, close to the end of the school day.

26 O'Connor said after he got into Gannon's car and they had driven off, he noticed they were not travelling towards Lancefield. Gannon drove down a dirt road, then another, and they were 'way out in the whoop-whoops' when he stopped the car. Gannon said he knew O'Connor was sad about his parents breaking up, and that he wanted to talk to him about sex. Gannon told him to take his pants down, then pulled down his underpants and started fiddling with O'Connor's penis. He said to O'Connor '[t]his is your penis, and these are your testicles'. He then instructed O'Connor to pull up his pants, and said they would go to a quieter place.

27 Gannon drove down another dirt road, got out of the car and pulled out a picnic blanket. He said to O'Connor '[s]o, we'll just go in here and we can talk in here where it's nice and quiet'. They walked to a clearing, where Gannon laid the blanket down, and said '[n]ow, we'll talk some more about sex and I'd like you to take your clothes off'. They both took off their clothes and lay on the blanket. Gannon then said 'I'm going to teach you now how to tongue kiss'. O'Connor said Gannon kissed him, stuck his tongue right in O'Connor's mouth and sucked O'Connor's tongue back into his mouth. Gannon did this a few times, then masturbated. O'Connor was thinking 'I want to go home'. Gannon made O'Connor touch his penis, then instructed him to lie on his stomach. O'Connor said Gannon was on top of him and tried to insert his penis into O'Connor's bottom, it hurt, and he yelled '[j]ust stop! Just stop it!'. O'Connor said Gannon got his penis in a little way, and it felt like 'a hot iron was stuck to me in the back'. He started crying and said '[s]top! It's hurting!'. Gannon then closed O'Connor's legs, put his penis between them and continued to thrust. He could hear Gannon panting like a dog, and he just kept going. O'Connor said he wished he could disappear. After Gannon was finished, O'Connor said '[w]hat's going on?' and '[t]ake me home'. He wanted to run, but there was nowhere to go. He could not stop crying and shaking. He said Gannon was a priest, like God, and had just done this to him. Gannon told O'Connor to get dressed. O'Connor said he was terrified, and thought Gannon would get a shovel, kill him, and bury him with the blanket.

28 O'Connor said Gannon took him back to the car, and said '[h]ere, have a cigarette, it will calm you down'. He could not sit on the car seat because his bottom was hurting, and he had to lean to one side. O'Connor said he was 'crying his eyes out', and said to Gannon '[w] hat have you done? It's hurting, it's sore'. Gannon told him not to tell anyone what had happened, and said they would not believe him. Gannon said '[d]o you want to have a drive and stop crying?' He replied '[o]kay'. Gannon said '[o]kay what?', and O'Connor replied '[o[kay, Father'.

29 O'Connor said all the other children had gone home when they got back to school. He tried to ride home on his bike, but could not sit on the seat, so he stopped halfway and walked. He could not understand what had happened. He wondered whether he should say something but remembered Gannon told him not to tell anyone because they would not believe him. He thought this made sense because everyone respects a priest. When he got home he went to the toilet and saw there was blood on his underpants. He said he could not explain the blood to his nan if she saw it, so he put his underpants in the old thunderbox toilet and used a stick to poke them down the chute. He then went to the laundry and washed himself up. He said his bottom was all sticky and there was blood. He washed as best he could, then put a hankie between his bottom cheeks because he was so sore. A couple of days later, he threw the hankie in the bin.

30 O'Connor said after the rape, he felt he was being stalked by Gannon. Gannon often waited for him outside the primary school and offered to drive him home. He tried to hide from Gannon, or to arrange to walk with another boy for protection.

31 On the second occasion he was abused by Gannon, O'Connor was in the church getting dressed to serve as an altar boy. He said Gannon came over to him, gave him 'a great big tongue kiss', put his hands in O'Connor's pants, rubbed his penis and testicles, and said '[w]e've got to go out for another drive Steve. You and I, go for a drive.' The other altar boy came in and Gannon stopped. O'Connor said he felt paralysed by fear during the service and that was the last day he served as an altar boy.

32 The third abuse occurred when O'Connor and his cousin went to the Assumption College pool on a non-school day. O'Connor said Gannon was there supervising, sitting on a chair near the pump house. His cousin, who smoked, said '[l]et's go and ask the priest for a smoke'. Gannon beckoned them over, and said '[o]kay. Well, Steve, you come into the pump house with me and I'll give you a cigarette'. Gannon directed O'Connor's cousin to stay outside. O'Connor said he went into the pump house because he was numb with fear of Gannon. When they went into the pump house, Gannon grabbed him and said '[w]e've got to go for another drive, Steve'. Gannon kissed him again, which he said was revolting, and grabbed him. He struggled and managed to slip out of Gannon's grasp, and leave the pump house. He said to his cousin '[l]et's go', and left as fast as he could.

33 There were four disputes about evidence that O'Connor sought to admit and rely on.

34 First, in the days before trial, O'Connor filed notices under s 97 of the Evidence Act 2008 (Vic) ('Evidence Act') of intention to adduce evidence of witnesses who were sexually abused by Gannon in the 1960s when they were young boys, and to tender the transcript of an interview of Gannon by a person acting on behalf of the Archdiocese conducted at Sale jail in July 1995 as evidence that Gannon had a tendency to act in a particular way. The defendant objected on the basis that he was prejudiced by the late service of tendency notices that did not comply with the requirements of the Evidence Act and reg 8 of the Evidence Regulations 2019 (Vic), and that the evidence was not relevant to a fact in issue, or not sufficiently probative to justify its admission.

35 Second, O'Connor sought to rely on the same evidence for a non-tendency purpose. O'Connor submitted the evidence was relevant to establish Gannon's role as an assistant priest in the Archdiocese. The defendant submitted the relevant fact in issue on the pleadings was Gannon's role as an assistant priest in the Kilmore parish. Because the evidence related to other parishes, it was not relevant to the fact in issue and should not be admitted.

36 Third, O'Connor sought to tender three documents to establish that BTS was sexually abused by Gannon in about 1960, the BTS complaint occurred and Father Connellan rebuffed BTS and his mother. The BTS documents are:

(a) police statement of BTS dated 28 August 1996;

(b) letter allegedly written by BTS's mother dated 26 February 1996;

(c) transcript of interview of BTS by Peter O'Callaghan of the Melbourne Response dated 3 April 1997;

37 BTS, his mother and O'Callaghan are now deceased.

38 The defendant submitted the BTS documents should not be admitted because the probative value of the evidence was substantially outweighed by the danger that the evidence might be unfairly prejudicial to it.[3]

39 Fourth, O'Connor sought to tender a witness statement and transcript of evidence of Archbishop Hart to the Royal Commission into Institutional Responses to Child Sexual Abuse (the 'Archbishop Hart evidence'). O'Connor argued the evidence was an admission by Archbishop Hart relevant to the BTS complaint. The defendant objected to tender of the Archbishop Hart documents on four grounds: First, the evidence was not an admission; second, if the evidence was an admission, it was not made by the defendant as a party to the proceeding; third, evidence to the Royal Commission was rendered inadmissible by s 6DD(1) of the Royal Commissions Act 1902 (Cth) ('Royal Commissions Act'); and fourth, evidence of the representations by Archbishop Hart upon which the plaintiff seeks to rely is rendered inadmissible by s 69(3) of the Evidence Act 2008 (Vic).

40 Two of the witnesses relied on for a tendency purpose gave evidence, by agreement, subject to my ruling as to admissibility. The first witness (Witness 1) said his family, who lived in Wonthaggi, were befriended by Gannon who visited them regularly. Witness 1 said he was sexually abused on one occasion when Gannon accompanied he and other member of the family on a trip to Sydney to see his sister take her vows as a nun.

41 The second witness (Witness 2) said when he was a young Catholic boy in Braybrook in the early 1970s he was sexually abused by Gannon, who was the parish priest.

42 In the transcript of interview Gannon gave some detail of his role as assistant priest, or the way that he performed it, at the Braybrook, Ashburton and Glenhuntly parishes and on a summer camp with boys. Other than boys that were discussed during the interview Gannon said there may be another 10 boys that he abused at the Alphington, Glenhuntly, Ashburton, Braybrook and Kilmore parishes.

43 Also appended to the tendency notice were three statements to police by persons who said they were abused by Gannon in the 1960s. One of those persons was BTS. BTS's police statement is admissible under s 63 of the Evidence Act if it meets the test of relevance. The other two persons were unidentified, and their availability to give evidence was not established. In the absence of evidence about availability, the two remaining police statements are not admissible.

44 The tendency rule is set out in s 97 of the Evidence Act:

(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 -

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and

(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.

(2) Subsection (1)(a) does not apply if -

(a) the evidence is adduced in accordance with any directions made by the court under section 100 ...

45 O'Connor submitted that if there was any deficiency in the tendency notices the Court should exercise the discretion in s 100 of the Evidence Act to allow the evidence.

46 The relevant principles were recently considered by J Forrest J in DP v Bird, where his Honour said:

For the purpose of the adducing of tendency evidence in a civil proceeding of this type I consider that the following conditions must be met:

• First, the tendency and the fact (or facts) in issue which it is said to prove must be identified. That evidence, if accepted, must rationally affect the assessment of the probability of the existence of the fact (or facts) in issue.

• Second, the tendency evidence (which should be viewed as a whole, and not piecemeal, and in light of the other evidence adduced in the case ) must be capable of sustaining the conclusion that the relevant person had an identified tendency to:

(a) act in a particular way; and/or

(b) have a particular state of mind.

• Third, the tendency must be one of some specificity and not at a high level of generality. This means that a feature or features of the tendency evidence must link that evidence with the allegation(s) in the proceeding.
• Fourth, it is necessary to establish that the tendency evidence is of significant probative value. So it is fundamental that the evidence increases the likelihood of the asserted conduct of the relevant person as alleged to such an extent that it is of significant probative value.
• Fifth, and for completeness, the common law test for propensity is to be ignored.
• Finally, if the tendency evidence is shown to have significant probative value, this (in an appropriate case) must not be substantially outweighed by the danger that the evidence might either be unfairly prejudicial to a party; be misleading or confusing; or, cause undue waste of time in the proceeding, such that the court is persuaded to exercise its discretion to exclude the evidence irrespective of its admissibility.[4]

47 O'Connor alleged the tendency evidence was relevant to the issue of vicarious liability which is pleaded in the amended statement of claim as follows:

By reason of the appointment, supervision and control of Father Gannon by the Defendant, as well as Father Gannon being a representative of the Defendant, the Defendant is vicariously liable for the sexual abuse.

PARTICULARS

(i) The Plaintiff was a child who was in a position of extreme vulnerability to acts of sexual abuse;

(ii) The Defendant placed Father Gannon in a position of trust, control, and power over children in the Parish, including the Plaintiff;

(iii) The Defendant gave Father Gannon the authority and opportunity to achieve intimacy with children in the Parish, including the Plaintiff;

(iv) The abuse occurred in the course or scope of Father Gannon's role as Assistant Priest of St Patrick's Parish.

48 Gannon's alleged tendencies were expressed in the notices as follows:

(a) to act in a particular way, namely, to access and abuse male child parishioners under the guise of giving them sexual education;

(b) to act in a particular way, namely, to target male child parishioners who were emotionally vulnerable in some way, for example because they came from single parent families, and sexually abuse them;

(c) to act in a particular way, namely, to target male child parishioners who were altar servers and sexually abuse them;

(d) to act in a particular way, namely, to target male child parishioners by isolating them from other adults.

49 In oral submissions, counsel for O'Connor articulated the application as follows:

Your Honour, I have already addressed the issue that the tendency of Father Gannon to take advantage of his position and abuse students, altar boys, just as he did with other boys, increased the risk of harm to the complainant. In other words, his role as a priest placed him in the position of authority and intimacy, vis-à-vis, the plaintiff that gave him the opportunity and enabled him to take advantage of the plaintiff, just as it did with other boys. So we say this material is probative of the issue in dispute, which is the vicarious liability of the defendant for Father Gannon.

Counsel asserted that the common threads which would appear from the tendency evidence included the use of the church environment for the initial contact; the pre-text of the legitimate task being sex education or an errand; the isolation of the child; initial interactions commencing at school, the church and away from those environments; that the children concerned were members of the church community, including serving as altar boys; and pursuit by Gannon of the boys away from the church. Counsel submitted that 'those modes of operations of Father Gannon, placing himself in a position of trust, and authority and misusing that role, is relevant to the question of vicarious liability in this case.'

50 Gannon's tendency to act in a particular way may be relevant and significantly probative of whether, on the occasions in issue, Gannon acted in the particular way by abusing O'Connor.[5] In other words, an established tendency may make it more likely Gannon acted in the same way by abusing O'Connor. However, the fact of the abuse, and the circumstances in which it occurred, have been admitted and are not in issue.

51 The vicarious liability claim requires consideration of the role assigned to Gannon by the Archdiocese, and the position in which Gannon was thereby placed vis-à-vis O'Connor, in order to determine whether the apparent performance of Gannon's role as assistant priest in the Kilmore parish could be said to give the occasion for his abuse of O'Connor.[6] The focus of the inquiry is the relationship between the Archdiocese and Gannon, his role as assistant priest and the association of his conduct with that role. Whether Gannon had a tendency to act in a particular way once in the role of assistant priest is not relevant to, or at least not significantly probative of the vicarious liability issue. On that basis I reject O'Connor's application to rely on the evidence to establish the asserted tendencies.

Evidence admissible as relevant to Gannon's role

52 I reject the defendant's submission that evidence of witnesses describing Gannon's role as an assistant priest in other parishes in the Archdiocese could not rationally affect, directly or indirectly, the assessment of Gannon's role as an assistant priest in the Kilmore parish. A great deal of evidence was led in this case by both parties, without objection, about the role of an assistant priest in the Archdiocese. Canon Law expert Dr Rodger Austin, who said he had no particular knowledge of the operation of the Archdiocese, gave detailed evidence about Canon Law and the roles of Archbishop, parish priest and assistant priest. Two priests of the Archdiocese, Father Dillon and Father Caddy, neither of whom professed particular knowledge of the Kilmore parish in the late 1960s, or of Gannon's appointment there as assistant priest, both gave detailed evidence about the operation of the Archdiocese and the roles of priests. There was no evidence that Gannon's appointed role as assistant priest varied in any material way between parishes. I conclude the evidence of Witness 2 who said he was abused by Gannon in Braybrook parish and the transcript of interview with Gannon are admissible because that evidence could rationally affect assessment of Gannon's role as an assistant priest in the Kilmore parish.

53 The interaction between Witness 1 and Gannon did not take place within the Archdiocese, or while Gannon was undertaking his role as assistant priest. I conclude that the evidence of Witness 1 inadmissible.

54 The copies of the three BTS documents that the plaintiff seeks to tender are partially redacted to obscure names and other identifying information.

55 In his police statement dated 28 August 1996, BTS said:

When I was roughly 8 - 10 years old, I can't remember exactly how old I was but I was young. I was living with my mother, [REDACTED] in a flat at [REDACTED] Ashburton. I went to St Michaels School in Ashburton, and to the Catholic Church, St Michaels, Ashburton, I think this was around 1960, I remember the residential Priest was Father CONNELLAN. In the Parish I'm not sure what was going on but there was always someone different there. Father CONNELLAN was old and pretty crook a lot of the time so I suppose the other Priests came in to take over when he couldn't take services.

BTS then described his initial contact with Gannon:

The first contact I had with Father GANNON was when it was announced from the pulpit one Sunday, I think in winter, that GANNON was going to be giving religious instruction and sex education for boys. My mother and I went to find out what it was about and I had to go after school, I think about twice a week. There were two other boys also going. They were from flats in Alamain, but I wouldn't have a clue of their names now. These classes were for boys without fathers.

Father GANNON initially showed us films and talked about sex. There was no religious content, it was just about sex education.

Later in the statement BTS described being sexually abused by Gannon. Towards the end of his police statement BTS said:

I have not really been able to tell anyone about it. My mother knew it happened, but I haven't told anyone except now, the Police about what really happened. ...

I never told anyone at the time because of his/position as a Priest and I thought that he was teaching me sex education. He also said to me on one occasion that even if you tell anyone they will never believe you, so I didn't tell anyone.

56 In October 1996, the Archdiocese established the Melbourne Response, an initiative to respond to complaints of abuse committed by priests of the Archdiocese or any religious or lay person working within the Archdiocese. The Melbourne Response involved consideration of applications by persons who had been abused. The independent commissioner and compensation panel appointed as part of the Melbourne Response operated independently of the Archdiocese, and made recommendations to the Archbishop on whether applications should be accepted, and as to compensation and counselling services. O'Callaghan was appointed as independent commissioner of the Melbourne Response.

57 BTS applied to the Melbourne Response in early 1997. On 3 April 1997, he attended an interview with O'Callaghan in relation to his application. In the interview O'Callaghan referred to BTS's police statement, and asked when he first decided to go to the police. BTS responded:

Well, I really didn't. I went to the Police when I was 7 years old. Between 7 and 10 years old, something like that when the thing happened and nothing was done about it then and I just got on with my life then, and my mother went to Broken Rights I think it was, and they're the ones got onto me and then [REDACTED], a Police officer.

58 The following exchange took place during the O'Callaghan interview:

POC[7]: You'd told your mother about it.

[REDACTED] My mother knew at the time.

POC: Then did you say you were taken to the Police or you went to the Police when you were 7 or 8 years old.

[REDACTED] Well my mother took me to the [REDACTED] Police Station when I was a young fellow and basically we were told if we were to go on with it my life would have been Hell and um, the doctor I saw at the time, he was a Catholic, practising Catholic and he basically didn't want to go on with it either.

POC: Do you remember his name.

[REDACTED] Dr. [REDACTED] One of the other doctors

POC: Is he still in practice is he.

[REDACTED] Oh yes, yes.

[REDACTED] [REDACTED]

POC: [REDACTED]

[REDACTED] [REDACTED]

POC: Not surprising there are a number of [REDACTED] doctors.

[REDACTED] There was another doctor there he wanted to go on with it too, but they both got together and decided not go.

POC: Do you remember the Police you saw at the time.

[REDACTED] Yes, I think his name was Detective [REDACTED] or something like that, that was a long time ago, that was at [REDACTED] Police Station.

POC: That would be about [REDACTED] years ago.

[REDACTED] Yes.

POC: And do you remember, they wouldn't have taken a statement from you at that age I suppose, would they, but you talked to them did you. You talked to the Police and told them what happened.

[REDACTED] Basically, how the story goes is, I was only a young fellow [REDACTED] my mother, it can't be all bad because Father Gannon's doing it to me.

POC: [REDACTED]

[REDACTED] That's right, yes.

POC: So it was then that in response to that you said, well this is what Father Gannon's been doing to me, or words to that effect.

[REDACTED] That's right.

POC: Was it the first time your mother had learn't of it.

[REDACTED] Yes, just then.

POC: [REDACTED]

[REDACTED] That's what happened, that's how it all came to light.

POC: But then, they, then nothing happened to you, they didn't charge you with anything or

[REDACTED] No, a [REDACTED], who was very high up in the St. Michaels Catholic Church at that stage, he picked me up from the Catholic Church and we went back to see Father Canallan and Father Canallan basically told my mother well, there's other men been in your flat and what have you, there hasn't been, and it went on from there and it was all over, and that was it, it went nowhere.

POC: Well what did, did you tell Father Canallan what Father Gannon had done to you.

[REDACTED] Yea.

POC: What did he say to that.

[REDACTED] Well he just called me a liar and what have you and that was it, and then after awhile Father Gannon wasn't there any more he just seemed to have disappeared.

POC: What year was this, can you identify the year.

[REDACTED] No, not really. I think I was in about [REDACTED] grade at St. Michaels at the time.

POC: You said in your Police statement that it was when you were roughly 8 to 10 years old, can't exactly remember how old I was but I was young. When you made this statement to the Police last August did you tell them about having been to the Police previously when you were 7 or 8 or 8 to 10.

[REDACTED] Oh yes.

POC: But they left that out of this statement though. It's not, it's not, it may not have been relevant as they saw it I suppose.

[REDACTED] Well [REDACTED] told me that he had gone to the [REDACTED] Police Station but the records would have been that old he had no hope of getting anything, so.

POC: Yea. Um, but did you tell [REDACTED] really what you've told me today.

[REDACTED] Oh yes.

59 It is evident from the O'Callaghan transcript that an unidentified third person was present during the interview by O'Callaghan with BTS.

60 During the interview O'Callaghan referred to a lengthy discussion he had had with BTS's mother, and to a letter she had written which he noted was dated 26 February 1996. BTS said that he had asked his mother to write something, and that she wrote the letter in 1997, at the same time that he wrote a statement. I conclude BTS's mother wrote the letter to support his Melbourne Response application, and that the date on the letter is an error.

61 The brief handwritten letter is addressed 'To whom it may concern'. The letter commences with 'Father Gannon first came to my home and ask if he could give Religious instructions.' The letter briefly describes the mother picking BTS up from the police station, and him saying when they got home: 'It can't be wrong mummy, as Father Gannon has been doing it too [sic] me.'

My local Doctor was called. He examined him. The worst part was no one would believe me. I recalled then why my bed was wet. I got rid of the bed, and bought a new bed. The parish Priest accused me of having sex in front of my child. I told him no man had ever been in my bed.

62 O'Connor submitted the BTS documents were relevant in three ways. First, they were evidence that Father Connellan knew of allegations concerning Gannon's paedophile behaviour. O'Connor argued that because of the structure of the Archdiocese and the status and role of a parish priest within it Father Connellan's knowledge of Gannon's behaviour constituted constructive knowledge of the Archdiocese.

63 Second, Father Connellan failed to act in accordance with Canon Law and the conditions of his appointment as parish priest by failing to report the BTS complaint to his superiors. It was submitted, taken together with other evidence that priests in the Archdiocese were inadequately trained in this regard and not informed about the requirements of Canon Law concerning the sexual abuse of minors, and the processes to follow to deal with those complaints, the BTS documents supported a finding of negligence against the Archdiocese.

64 Third, Father Connellan was an employee of the Archdiocese, or in a relationship akin to employment, such that the Archdiocese should be held vicariously liable for conduct by him in the apparent performance of his role as parish priest. It was submitted that the Archdiocese should be held vicariously liable for Father Connellan's negligent failure to report the BTS complaint.

65 The defendant submitted the BTS complaint was part of O'Connor's pleaded case in the statement of claim filed in February 2020. BTS died in November 2020. No attempt was made by O'Connor prior to BTS's death to clarify with him the inconsistencies and inaccuracies in the BTS documents. The defendant is now precluded from enquiring into these matters. Further, the level of inconsistency and inaccuracy, combined with the fact that the documentary evidence cannot be explained or challenged, mean that it is of little probative value. The defendant submitted the documents are an unreliable basis on which to prove the facts O'Connor seeks to establish.

66 The defendant submitted there were the following issues going to the reliability of the BTS evidence:

(a) BTS could not recall how old he was when he was abused by Gannon.

(b) There is no evidence, and now no ability to check, about whether Gannon played any role in the Ashburton parish when he was assistant priest in Glenhuntly in 1960.

(c) There is uncertainty about the identity of other priests who assisted Father Connellan in the Ashburton parish at the time.

(d) BTS recalls Father Connellan as being 'old and pretty crook a lot of the time'. In fact Father Connellan was only 51 years of age in 1960.

(e) There is no evidence about when BTS and his mother went to find out about the proposed sex education lessons, who they spoke to or what they were told.

(f) BTS refers to three boys attending the classes with Gannon. The other two boys are not identified, and in 1997 when he was interviewed by O'Callaghan he could not recall their names. The other two boys, if identified and located, could have provided corroborative evidence as to who gave the classes, the subject matter of the instruction, what occurred and for how long.

(g) Other persons to whom BTS allegedly reported the abuse are not identified, and it is unknown if they were available to give evidence at trial.

(h) It is not known whether BTS or his mother made a statement to police at the time.

(i) The assertion by BTS in his police statement that apart from his mother he told no one about being sexually abused by Gannon is inconsistent with the O'Callaghan transcript, where it is asserted BTS told his mother, police, a doctor and Father Connellan.

(a) It is unsigned.

(b) The letter was written six months before BTS made his statement to police. The purpose of the letter is unclear.

(c) The timing of events described is completely unclear.

(d) There is an inconsistency between the letter and BTS's evidence about the circumstances that led to the contact with Gannon.

(e) The letter provides an account of BTS being picked up by police, which does not feature in BTS's police statement.

(f) Reference in the letter to the circumstances leading to the need to buy a new bed does not feature in the evidence of BTS.

(g) It does not name the parish priest, or say that he was told about the abuse of BTS.

68 As to the O'Callaghan transcript, the defendant submitted:

(a) Given the inability to identify the number of attendees at the Interview, the Defendant is unable to scrutinise the true author of the representations;

(b) The redacted names of parties other than Mr O'Callaghan and BTS prevent the Defendant from being able investigate whether BTS' disclosure of the abuse to these various persons included the disclosure of a report to Father Connellan;

(c) For many of the statements made, there is a limited ability to ascertain any temporal context underpinning the statements. BTS is unable to indicate the time or location of his allegations, or his report. This is of particular significance in circumstances where these contextual matters are contested.

69 The defendant submitted that neither BTS's police statement nor the letter contained a direct statement that the abuse was reported to Father Connellan. The inconsistencies and uncertainties in those documents have the effect that they cannot be accepted as corroborative of one another in the absence of oral evidence from those witnesses. The police statement and the letter do not provide a basis upon which it can be concluded that BTS was abused by Gannon in 1960 and that Father Connellan was informed of that fact.

70 The defendant submitted he was prejudiced by an inability to investigate and test the evidence in the O'Callaghan transcript because the unidentified attendee was not called to give evidence and the names of relevant persons were redacted.

71 The defendant ultimately accepted the police statement and letter are admissible under s 63 of the Evidence Act, and the O'Callaghan transcript under s 69. However, the defendant submitted the court should exercise the discretion to exclude the documents under s 135 of the Evidence Act.

72 The consideration of whether the evidence should be excluded requires weighing the probative value of the evidence against the danger of unfair prejudice that might arise from admitting it. Because the danger of prejudice must substantially outweigh the probative value, the defendant bears a heavy onus of showing that the evidence should be excluded.

73 The first step in the analysis is to consider the probative value of the evidence, which is defined to mean: 'The extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.'[8]

74 Assessment of the probative value of the evidence is to be made in conjunction with all of the evidence adduced at trial.[9]

75 For the purposes of the analysis, the evidence is to be regarded as both credible and reliable.[10]

76 The evidence is hearsay. Therefore, the assumption of credibility and reliability applies to the evidence of the out of court representation, not to the representation itself.[11] This means it is to be assumed that the BTS documents are credible and reliable in that they accurately record the representations they contain. However, the credibility and reliability of the representations is not assumed for the purposes of the analysis.

77 I have already found that the letter was written by BTS's mother in early 1997 in relation to BTS's application to the Melbourne Response. I conclude the letter reliably records what BTS's mother wrote about his abuse by Gannon and subsequent related events.

78 On my reading of the O'Callaghan transcript, despite the redactions and the presence of an unidentified third person, it is clear that the responses to O'Callaghan are made by BTS in relation to how the abuse by Gannon came to light and who was told about it. I conclude the O'Callaghan transcript reliably records what BTS said about the matters discussed.

79 The evidence is centrally relevant in the ways submitted by O'Connor to the direct and vicarious liability cases. Unless the evidence is admitted, those aspects of O'Connor's case are likely to fail.

80 The real issue in contention was whether BTS and his mother reported the abuse to Father Connellan. The only basis for concluding that he did is the O'Callaghan transcript, read together with the police statement, the letter and the Archbishop Hart evidence that I will come to.

81 In the police statement, BTS said that at the time he was abused he told no one other than his mother. He went on to explain why. In the O'Callaghan interview, BTS said he told 'Father Canallan' what Gannon had done to him. The question is the extent to which this inconsistency, and the other matters referred to by the defendant, reduces the probative value of BTS's evidence in the O'Callaghan transcript. That assessment must be made on the basis that BTS was not on oath when he participated in the interview, is unavailable to give evidence, and cannot be questioned about the inconsistency and other aspects of the documents.

82 I conclude, for the following reasons, that despite the inconsistency and the unavailability of BTS to give evidence, the documents, in particular the O'Callaghan transcript, are significantly probative of whether the BTS complaint occurred.

83 First, while the fact of Gannon's abuse of BTS was not formally admitted, I do not understand it to be in issue. I note BTS told O'Callaghan that Gannon pleaded guilty to the charges of abusing him. I infer from what was said by O'Callaghan during the interview that the Melbourne Response accepted BTS was abused as alleged.

84 Second, the O'Callaghan transcript and the letter are consistent in the following important respects: BTS was abused by Gannon; the circumstances in which BTS's mother came to know of the abuse; that no one believed the complaint; that the abuse occurred in the family home, and on one occasion in the mother's bed (this is to be inferred in the case of the mother's letter saying Gannon came to her home, and the reference to her bed); and that the parish priest accused the mother. The letter is brief, and understandably does not include full details of the events or explain the reference in the letter to the issue with the mother's bed. However, that does not mean there is an inconsistency between the documents.

85 Third, in the O'Callaghan transcript BTS expressly said that he told 'Father Canallan' what Gannon had done. There is nothing of significance in the minor spelling error of Father Connellan's name. There is no doubt BTS was a pupil at the Ashburton Primary School at the relevant time, that he attended the Ashburton Catholic church, and that Father Connellan was the parish priest. The only reasonable conclusion is that BTS was talking about Father Connellan.

86 Fourth, the statement by BTS's mother in the letter that no one would believe her follows a description of BTS's disclosure of abuse by Gannon, and precedes the description of her being accused by the parish priest. It is reasonably clear that BTS's mother was complaining about the reaction of the parish priest, which must have been Father Connellan, when she made the BTS complaint. That is a further important element of consistency with BTS's evidence in the O'Callaghan transcript.

87 Fifth, for reasons I will come to, the reliability of the BTS evidence is further supported by admissions by Archbishop Hart.

88 It is now necessary to consider what prejudice the defendant will suffer if the BTS documents are admitted into evidence. The Archbishop Hart Royal Commission documents are relevant to the defendant's complaint that he cannot now investigate the BTS allegations. Archbishop Hart's evidence related to seven offending priests in the Archdiocese, one of whom was Gannon. In his statement to the Royal Commission, Archbishop Hart said:

In addressing the topics much of what I say is based upon information and belief having reviewed relevant documents of the Catholic Archdiocese of Melbourne that have been produced to the Commission pursuant to summonses to produce. The documents that I have reviewed include documents of my predecessor Archbishops going back to the early 1950s.

18 It is apparent from my review of the records relating to the Parish of Doveton, and relating to the seven priests the focus of this hearing, that common features emerge which point to the failure of process and the poor handling and response to complaints which came forward to the Archdiocese which, if they had been dealt with promptly and effectively, would have prevented further abuse and suffering from occurring. These features include:

• the absence of adequate policies, processes and procedures to deal with complaints of abuse when they were received;

• where policies, processes and procedures did exist, the failure to implement and follow their requirements;

• the failure by Church leaders to listen when complaints were made and then to have those complaints investigated and acted upon;

• the failure to act upon credible information which was indicative of risk, but instead requiring 'proof' of allegations or the involvement of police before being willing to act;

• in some cases discouraging those who wished to make complaints from doing so;

• procrastination and an unwillingness to confront difficult decisions particularly where they involved acting against priests; and

• the failure to withdraw priests from involvement with children or from ministry when the evidence of their inadequacies or wrong doing was clear.

19 I have previously commented that the Church failed to recognise that we had paedophiles in our midst. What is now apparent to me is that there was knowledge of their existence and that we failed to act to have them withdrawn from ministry and referred to the police. I am appalled by the actions of these criminal paedophiles against the weakest and most defenceless in our community, and by our failures to act which placed children at risk of abuse.

In preparing this statement I have reviewed the material to hand relating to the seven named offender priests as well as material relating to other complaints of sexual abuse. It is apparent that relevant pieces of information were transmitted to Archbishop Little from time to time, but there was no response or, at least, an inadequate response by him. In at least one case (Fr Baker), the response from Archbishop Little was entirely inappropriate. Certainly, none of the seven matters was properly investigated.

90 In his statement Archbishop Hart gave details of many complaints of abuse by Gannon made to the Archdiocese commencing in early 1993. It is evident Archbishop Hart had documents relevant to those complaints available when he made his statement. According to Archbishop Hart, the complaints were initially investigated by then Vicar-General Monsignor Cudmore. Archbishop Hart said:

244 Following his meeting with Gannon, Monsignor Cudmore appears to have spoken to Archbishop Little who suggested to Monsignor Cudmore that he ask Gannon to submit a resignation as Parish Priest on health grounds [CT JH.221 .06046.0181 at .0182]. Monsignor Cudmore also appears to have contacted Bishop Connors on 30 April 1993, who appears to have advised the Vicar General to tell Gannon that the Archbishop wanted his resignation, and to take him out of the parish. The note also says "don't admit accusation".

245 On 3 May 1993, Gannon sent a letter of resignation to Monsignor Cudmore [CT JH.221.06046.0158] which was accepted on 7 May 1993 by Monsignor Cudmore [CTJH.221.06046.0160] and Archbishop Little, who appointed him "Pastor Emeritus", thereby making him eligible for remuneration and allowances. [CTJH.221.06046.0177]. Also on 7 May1993, Monsignor Cudmore appears to have spoken to Gannon [CT JH.221.06046.0176].

...

248 Gannon appears to have admitted to sexual abuse, yet his resignation was publicly attributed to health reasons.

249 Following Gannon's resignation in 1993, the Archdiocese began to receive legal claims. Initially, the Archdiocese did not accept liability for those claims. After the Melbourne Response was commenced by Archbishop Pell, the Archdiocese of Melbourne provided compensation to at least 22 victims of Gannon. These victims were abused by Gannon from between 1954 and 1985 at the following parishes: Glenhuntly, Carnegie, Alphington, Ashburton, East St Kilda, Kilmore, Braybrook, and Rosanna East.

91 Specifically in relation to abuse of BTS, Archbishop Hart said:

It appears from information given to Mr O'Callaghan QC during the course of his investigations that a complaint against Gannon was made in about 1960 by the mother of a child victim to the Parish Priest at Ashburton, Fr Connellan [COM.0034.0001 .0057]. It appears that Fr Connellan rebuffed the complaint and never gave it proper consideration.

92 In his initial statement of claim filed in this proceeding in January 2020, O'Connor pleaded as a particular of knowledge of the Archdiocese of the foreseeable risk of sexual abuse being committed against children by Gannon:

In 1960, at which time he was the assistant priest at Glenhuntly parish, Father Gannon sexually abused a boy referred to in Royal Commission case study 35 as BTS. BTS disclosed the abuse to his mother, who then disclosed the abuse to Father Connellan. Father Connellan dismissed the complaint and took no further action.

93 For the following reasons I reject the defendant's complaint that if the BTS documents are admitted into evidence he would be prejudiced by an inability to investigate and respond to the evidence. First, Gannon was a priest in the Diocese for a period of almost four decades from the mid-1950s. During that period he was subject to the supervision and direction of the Archbishop and, when he was an assistant priest, the parish priest of the parish to which he was appointed. Father Connellan was a priest in the Archdiocese for over four decades until he died in 1987.

94 Second, the Archdiocese has been aware for almost three decades that Gannon abused numerous young Catholic boys from the mid-1950s in parishes including Glenhuntly and Kilmore. In 1993, the Archdiocese began to receive complaints and legal claims on behalf of individuals abused by Gannon. As Archbishop Hart said, at least initially, those complaints were not properly investigated.

95 Third, BTS's statement that he reported the abuse by Gannon to Father Connellan was made in early 1997. It was the Archdiocese that set up the Melbourne Response. If it chose to do so in a way that meant it was not provided with all documents and evidence relating to complaints, that was a matter for the Archdiocese. In his Royal Commission statement Archbishop Hart said:

As the Archbishop, I have the overall responsibility for the operation of the Melbourne Response, but in relation to individual claims, my role is limited to acting on the recommendations of the Independent Commissioner and the Compensation Panel, providing apologies to the victims, and authorising payments to them in accordance with the Panel's recommendations.

Until recently, the Archdiocese did not hold detailed information about particular claims of abuse and my knowledge of the details of any victim's abuse was limited to the amount of compensation recommended by the Compensation Panel. In recent years I have sought to address this issue by having more information about the particular person and their situation provided to me, so that a more personal apology can be sent.

It seems that the Archbishop could have arranged for certain information about complaints to be reported to him so that it could be acted upon. It would have been particularly relevant for the Archdiocese to be made aware of evidence about the earliest complaints made to it about a perpetrator so that the matter could be fully investigated, in order that appropriate remedial action could be taken both in relation to the perpetrator and more generally to prevent further abuse, and in light of the potential for legal claims.

96 Fourth, even if this were not so, it is apparent that the BTS documents, and other documents related to complaints of abuse by Gannon, were available to Archbishop Hart when he made his statement to the Royal Commission in 2015. There was a further opportunity for the Archdiocese to investigate, in the context of the Royal Commission, when abuse by Gannon was first reported to it.

97 Finally, O'Connor's pleaded case put the defendant on notice that the claim he had to meet included the allegation of the report by BTS to Father Connellan in about 1960.

98 The Archdiocese has been on notice of Gannon's offending for decades, and has had numerous opportunities to investigate its responsibility and potential legal liability to those who were abused by him as children. The Archdiocese, and therefore the defendant, is responsible for any prejudice resulting from the subject matter of BTS's evidence not having been fully investigated. Investigation of conduct by Gannon in the various parishes to which he was appointed, and of the numerous complaints of sexual abuse of young Catholic boys by him, was very much within the power and control of the Archdiocese.

99 It is relevant to consider what occurred at the time of the Royal Commission. It is not known what if any further investigation about Gannon's offences and the complaints of abuse was undertaken at the time. Whatever is the case the response of Archbishop Hart in evidence to the Royal Commission, which I conclude for reasons I will come to was given on behalf of the Archdiocese, was to accept as true the evidence of BTS, supported by his mother, that the BTS complaint occurred. O'Connor has had only a very limited opportunity to investigate these matters, and then only recently. The Archdiocese, having had decades to investigate the matter, and the much greater opportunity to do so adequately, accepted the truth of BTS's statement.

100 I conclude that the probative value of the BTS documents is not substantially outweighed by the danger of prejudice to the defendant if they are admitted into evidence.

101 Evidence in the Archbishop Hart documents is hearsay. O'Connor relied on the exception to the hearsay rule in s 81 of the Evidence Act:

(1) The hearsay rule and the opinion rule do not apply to evidence of an admission.

(2) The hearsay rule and the opinion rule do not apply to evidence of a previous representation -

(a) that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and

(b) to which it is reasonably necessary to refer in order to understand the admission.

Note

Specific exclusionary rules relating to admissions are as follows -

• evidence of admissions that is not first-hand (section 82)

102 Section 82 of the Evidence Act reads:

Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless -

(a) it is given by a person who saw, heard or otherwise perceived the admission being made; or

(b) it is a document in which the admission is made.

Note

Section 60 does not apply in a criminal proceeding to evidence of an admission.

103 The term 'previous representation' is defined as 'a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced'. [12]

104 The dictionary to the Evidence Act provides that:

For the purposes of this Act, a representation contained in a document is taken to have been made by a person if -

(a) the document was written, made or otherwise produced by the person; or

(b) the representation was recognised by the person as his or her representation by signing, initialling or otherwise marking the document.[13]

105 In effect the document which O'Connor seeks to tender is the aural recording of Archbishop Hart's evidence to the Royal Commission. One method by which that may be done is prescribed by s 48(1)(c)[14]:

(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods -

...

(c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing) - tendering a document that is or purports to be a transcript of the words;

106 Principles relevant to the operation of s 48(1)(c), summarised by Sperling J in R v Cassar; R v Sleiman (Judgment No 17), include:

(a) A document that purports to be a transcript of words recorded on a tape is admissible to prove the conversation;

(b) No oral or other evidence is necessary to validate such a transcript, it being sufficient that it purports to be a transcript of the words.[15]

107 The authenticity and accuracy of the transcript was not questioned.

108 Relevantly, s 88 of the Evidence Act provides that '[f]or the purposes of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.'

109 I am satisfied that, to the extent the transcript records admissions, they were made by Archbishop Hart in oral evidence to the Royal Commission. The recorded admissions are admissible if they satisfy the requirements of ss 81 and 87 of the Evidence Act, and are not rendered inadmissible by an exclusionary rule.[16]

110 The statement to the Royal Commission was signed by Archbishop Hart. I am satisfied that it is admissible if it satisfies ss 81 and 87 of the Evidence Act.

111 In the Evidence Act, 'admission':

(a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and

(b) adverse to the person's interest in the outcome of the proceeding;[17]

112 The representation made need not be an explicit admission of liability. A representation can be against the interests of the person if it is capable of rationally affecting the assessment of the probability of facts that tend to established liability.[18] Archbishop Hart's representations are clearly capable of affecting the assessment of liability, adverse to the defendant's interest in this proceeding.

113 O'Connor relied in particular on evidence given by Archbishop Hart in response to questions posed by counsel assisting the Royal Commission in the following exchange:

Q. ... Father Gannon was born in 1929 and ordained in 1956?

A. Correct.

Q. He was an assistant priest for some years, and then became a parish priest in the 70s, and then ultimately he was appointed Pastor Emeritus in May 1993?

A. Correct.

Q. He was convicted of a large number of offences and served multiple prison terms; that's right?

A. That's correct.

Q. You, in your statement, detail the knowledge in respect of Father Gannon. Firstly, at paragraph 239, you note that a complaint about him was made in about 1960 by the mother of a child to the parish priest, Father Connellan?

A. Yes.

Q. You note from the documents that it appears Father Connellan rebuffed the complaint and never gave it proper consideration.

A. That's correct, yes.

Q. Now, you don't doubt that occurred, do you?

A. No, I don't doubt that occurred, no.

114 In other words, Archbishop Hart expressed that he had no doubt that BTS and his mother reported to Father Connellan that BTS was abused by Gannon, and were rebuffed. That is clearly an admission for the purposes of this proceeding.

115 The potential admissions by Archbishop Hart are not confined to this exchange, but extend to what was said by him in his statement to the Royal Commission, in particular as set out in paragraphs 88 to 91 above.

116 The evidence given by Archbishop Hart is clearly adverse to the interests of the Archdiocese in this proceeding. Evidence of the BTS complaint is central to O'Connor's direct liability claim, and the claim that the Archdiocese is vicariously liable for the conduct of Father Connellan. Evidence of systemic failure by the Archdiocese to respond reasonably to complaints of abuse is relevant to one way in which the direct liability claim is made. I conclude that Archbishop Hart makes relevant admissions in his witness statement and in evidence to the Royal Commission. Further, Archbishop Hart's witness statement is related to, and is reasonably necessary in order to understand, the admissions made in evidence to the Royal Commission.

117 O'Connor's claim is made against the Archdiocese, rather than Archbishop Comensoli as proper defendant.

118 Section 87 of the Evidence Act concerns admissions made with authority:

(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that -

(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or

(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or

(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

(2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove -

(a) that the person had authority to make statements on behalf of another person in relation to a matter; or

(b) that the person was an employee of another person or had authority otherwise to act for another person; or

(c) the scope of the person's employment or authority.

119 Archbishop Hart was the Archbishop of the Archdiocese when he made the witness statement and gave evidence to the Royal Commission. It is clear from the contents of his witness statement, and from the evidence of other witnesses about the operation of the Catholic church and the Archdiocese that I will come to later in these reasons, that Archbishop Hart had authority to make statements on behalf of and to otherwise act for the Archdiocese. For example, in his witness statement Archbishop Hart said that as the Archbishop he was responsible for the pastoral care of the Archdiocese, had the ultimate responsibility and power to appoint a priest to a particular position or to remove his clerical faculties, the sole authority and capacity to act on serious complaints in relation to priests, and overall responsibility for the operation of the Melbourne Response. Further, the representations made by Archbishop Hart in the witness statement and oral evidence to the Royal Commission were made in furtherance of a common purpose with the Archdiocese, that is to respond as required to the Royal Commission in relation to abuse perpetrated by Catholic priests in the Archdiocese, and the response of the Archdiocese. I conclude the admission was made by Archbishop Hart with authority in accordance with s 87 of the Evidence Act.

120 The defendant submitted s 6DD(1) of the Royal Commissions Act renders the documents inadmissible. The effect of s 6DD(1) is that a statement or disclosure made by a person in the course of giving evidence before a Royal Commission is inadmissible in evidence against that person in any civil or criminal proceedings. O'Connor has not made a claim against, and does not seek to tender the documents as evidence against, Archbishop Hart as a natural person. Accordingly, s 6DD of the Royal Commissions Act has no application in this case.

121 The defendant relied on the decision of the New South Wales Court of Appeal in Thomas v State of New South Wales ('Thomas') in support of the submission that the documents were inadmissible because they contained representations prepared or obtained in connection with an Australian proceeding.[19] Thomas concerned the business records exception to the hearsay rule, and the Court's conclusion that in accordance with s 69(3)(a) the exception did not apply to a representation made in contemplation of or in a Royal Commission.

122 The decision in Thomas is clearly distinguishable. O'Connor does not seek to rely on s 69 to establish admissibility by reason of an exception to the hearsay rule. Rather, he relies on s 81, which means the hearsay rule does not apply. The reasoning in Thomas has no application in this case.

123 For the above reasons, I conclude the statement of Archbishop Hart to the Royal Commission and the transcript of his evidence are admissible.

124 The Legal Identity Act does not operate to clothe the Archdiocese with the traits of a corporation for any other purpose than to ensure that a plaintiff is able to issue a proceeding against the defendant that can be found legally liable.

125 Section 7 of the Legal Identity Act does not operate to treat an NGO, in this case the Archdiocese, as if it were a corporation at the time of the abuse. This means that, if Father Connellan had knowledge that Gannon had abused BTS, that knowledge remained personal to him. Further, if by some process of attribution, it was found that the knowledge of Father Connellan was somehow held to be the knowledge of Archbishop Knox, any such knowledge was extinguished on the death of Archbishop Knox and could not be passed to the current Archbishop. The position of the current Archbishop as the nominated proper defendant for the Archdiocese pursuant to s 7(2) of the Legal Identity Act does not alter this fact.

126 The Archdiocese is an amorphous 'thing' constituted by the Catholic community of that geographical region and juridical canon law. The nature of the Archdiocese as it existed in the 1960s is not altered by the Legal Identity Act.

127 The Legal Identity Act does not retrospectively alter legal principles to be applied in determining liability. Plaintiffs will still have to prove that an unincorporated NGO is liable for the abuse perpetrated by a member of that body. The Act is directed solely to providing a plaintiff with a means of recovery of damages if liability is established. This construction is supported by s 10 of the Legal Identity Act, which confirms that the proper defendant may rely on any defence or immunity that would have been available to the NGO.

128 As a matter of statutory construction, and by the plain words used in the statute, the Legal Identity Act does not have retrospective operation.

129 The construction for which the defendant contends would have the effect of subverting the intention and object of the Legal Identity Act by attempting to resurrect the Ellis[20] defence. The Act was clearly designed to rectify the historical impossibility of suing unincorporated church entities. It is remedial legislation, and should be construed remembering the evil it was directed to remedy, and given the fullest meaning that a fair reading of its language will allow.[21]

130 The plain language and intent of the Act has the result that unincorporated NGOs are capable of being sued as if they were corporations now and historically. This construction is supported by context provided by the second reading speech, where the Minister said that unincorporated NGOs should be treated like any other organisation, and that plaintiffs who wish to bring a claim for child abuse against such an organisation should be on the same playing field as plaintiffs who claim against incorporated organisations.[22]

131 If the distorted construction contended for by the defendant were accepted, then only Catholic church survivors sexually abused in the term of the current Archbishop and senior church officials would have a possible legal action.

132 The Legal Identity Act came into operation on 1 July 2018.

133 The purpose of the Act is set out in s 1: 'The main purpose of this Act is to provide for child abuse plaintiffs to sue an organisational defendant in respect of unincorporated non-government organisations which use trusts to conduct their activities.'

134 The Act applies to any proceeding for a claim founded on or arising from child abuse.[23]

135 The Act defines 'NGO' as a non-government organisation that is an unincorporated association or body.[24] Section 5 provides:

(2) An NGO does not need to have -

(a) a written constitution or fixed membership; or

(b) any other prescribed attribute.

(3) For the purposes of this Act, any power which is exercisable by an NGO may be exercised by any management member of the NGO.

136 Management member in relation to an NGO is defined to mean:

(a) a member of any management committee of the NGO; or

(b) if the NGO does not have a management committee, a person who is concerned with, or takes part in, the management of the NGO, irrespective of the person's title or position;[25]

(1) This Act applies to any proceeding for a claim founded on or arising from child abuse.

(2) This Act applies to an NGO if -

(a) a plaintiff commences or wishes to commence a claim against an NGO founded on or arising from child abuse; and

(b) but for being unincorporated, the NGO would be capable of being sued and found liable for a claim founded on or arising from child abuse; and

(c) the NGO controls one or more associated trusts.

(3) This Act applies to a claim founded on or arising from child abuse whether the child abuse occurred or occurs before, on or after the commencement of this section.

138 The Act provides for nomination or appointment of an entity as proper defendant to a claim on behalf of an NGO. Nomination is dealt with by s 7:

(1) An NGO to which this Act applies, in relation to any claim founded on or arising from child abuse, with the consent of the nominee, may nominate an entity that is capable of being sued -

(a) to act as a proper defendant to the claim on behalf of the NGO; and

(b) to incur any liability arising from the claim on behalf of the NGO.

(2) If an NGO nominates a proper defendant under subsection (1), that entity -

(a) is taken to be the defendant in the claim on behalf of the NGO for all purposes; and

(b) incurs any liability arising from that claim on behalf of the NGO as if the NGO had been incorporated and capable of being sued and found liable for child abuse.

(3) Unless the court otherwise orders, a nomination of a proper defendant may occur at any time within 120 days after the commencement of the proceeding for the claim against the NGO.

(4) A court may substantively determine a claim in a proceeding founded on or arising from child abuse for which there is a proper defendant under this section as if the NGO itself were incorporated and capable of being sued and found liable for child abuse in respect of the claim.

(5) The nomination of a proper defendant under this section does not relieve an NGO from any obligations it may have in relation to the conduct of the proceeding, including any interlocutory matters, and for that purpose, the NGO is taken to be incorporated and capable of being sued and found liable for child abuse in respect of the claim.

139 The question of defences available to a proper defendant is dealt with by s 10: 'A proper defendant under section 7 or 8 may rely on any defence or immunity that would have been available to the NGO as a defendant to the claim had the NGO been incorporated.'

140 Under s 13 of the Act a proceeding may be commenced or continued against an NGO pending nomination or appointment of a proper defendant.

141 In the second reading speech of the Legal Identity of Defendants (Organisational Child Abuse) Bill 2018, the Attorney-General noted the problems survivors can face seeking justice for child abuse perpetrated by a member of an unincorporated association, highlighted by the decision in Ellis, where the New South Wales Court of Appeal held that the Archdiocese of Sydney could not be liable, as it was unincorporated and could not be sued.[26] The Attorney-General said:

The current common-law position in Australia, based on the Ellis case, is that an unincorporated association that conducts its affairs by way of trusts cannot be held organisationally accountable in civil litigation for institutional child abuse.[27]

The Attorney-General said the Bill was directed to overcoming the Ellis defence, and that:

It will ensure that survivors of institutional child abuse can pursue compensation, and solve the problem in the existing common law that child abuse plaintiffs are, in many instances, unable to identify an organisational defendant to sue in respect of unincorporated non-government organisations (NGOs) that control trusts to conduct their activities.[28]

142 In relation to the operation of the Bill, the Attorney-General said:

It is appropriate that unincorporated NGOs that conduct their activities and arrange their assets via trusts should be able to be treated like any other organisation and be sued for claims of institutional child abuse, even if that abuse occurred in the past. ...

It is only fair that institutional child abuse plaintiffs who wish to bring a claim against that type of organisation should be on the same playing field as plaintiffs who claim against incorporated organisations, where this problem does not arise.[29]

143 The Explanatory Memorandum to cl 4 of the Bill states:

This means that any claim founded on or arising from child abuse can be brought in reliance on the provisions of the Bill, including negligence, vicarious liability or direct liability.[30]

In relation to cl 4(2) of the Bill, the Explanatory Memorandum states:

The Bill therefore applies to any NGO that fulfils all the criteria in subclause (2), with effect that the NGO, despite being unincorporated, may be sued and found liable for a claim founded on or arising from child abuse as if it were incorporated at the relevant time.[31]

And in relation to cl 4(3), the Explanatory Memorandum states:

This means that any claim founded on or arising from child abuse can be brought in reliance on the provisions of the Bill, regardless of when the child abuse occurred.[32]

144 In relation to cl 7(4), the Explanatory Memorandum states:

This means that a proceeding may run against a nominated entity as a proper defendant, but the substantial determination of the proceeding will turn on the conduct of the NGO itself.[33]

Generally as to cl 7, the Explanatory Memorandum states:

The effect of clause 7 is to allow claims against unincorporated associations, that turn on the conduct of those organisations (including their membership and leadership), to be litigated against entities that are capable of being sued, on behalf of the unincorporated entity, in circumstances where an entity agrees to be nominated as the proper defendant to the claim on behalf of the NGO.[34]

145 I do not accept the defendant's submission that the Legal Identity Act is directed only to recovery of damages, and not to the liability for damages of a plaintiff making a claim against an NGO founded on or arising from child abuse.

146 Construction of the provisions of the Act begins with a consideration of the text.[35] However, the context, policy and purpose of the provisions is also important.[36] In Roman Catholic Trusts Corporation for the Diocese of Sale v WCB,[37] the Court of Appeal said:

Consistently with those principles, s 35(a) of the Interpretation of Legislation Act 1984 provides that a construction that would promote 'the purpose or object underlying the Act' is to be preferred to a construction that would not promote that purpose or object. Pursuant to s 35(b) of that Act, the object and purpose of the legislation may be ascertained with the assistance of the Second Reading Speech or the Explanatory Memorandum. Nevertheless, in applying that provision, it has been emphasised that such extrinsic material may not be used to displace the plain meaning of the statutory text.

147 The text of the Act makes it clear that it is directed to the question of liability.

148 A condition for application of the Act is that, but for being unincorporated, an NGO would be capable of being sued and found liable for a claim by a plaintiff founded on or arising from child abuse.[38]

149 A proper defendant nominated under s 7 of the Act must be an entity capable of being sued and incurring liability arising from the claim on behalf of the NGO.[39] Once nominated the proper defendant incurs liability arising from the claim on behalf of the NGO as if the NGO had been incorporated and capable of being sued and found liable for child abuse.[40] A court is to determine a claim, which in substance is against the NGO, as if the NGO were incorporated and capable of being sued and found liable.[41]

150 The text of ss 4 and 7 is unambiguously directed to the issue of liability, which is to be determined as if the unincorporated NGO was incorporated at the relevant time, and is to be incurred by the proper defendant.

151 If there were any ambiguity in the text of these provisions the context provided by the balance of the Act, and by the extrinsic materials, mean that it would be resolved by construing ss 4 and 7 as being directed to questions of liability and recovery.

152 Contrary to the submission of the defendants, s 10 does not have the effect that a proper defendant can defend a claim for child abuse by a plaintiff against an NGO on the basis that the NGO does not exist as a juridical entity, cannot owe a duty of care, and is not liable to be sued.[42] As the text of s 10 makes clear, the defences and immunities available to a proper defendant are those 'that would have been available to the NGO as a defendant to the claim had the NGO been incorporated'.

153 What is not made available to a proper defendant by s 10, or any other provisions of the Legal Identity Act, is a defence to a claim for child abuse based on the NGO being unincorporated and therefore unable to be sued.

154 The stated purpose of the Legal Identity Act is also consistent with what I have concluded is the correct construction of ss 4 and 7. The purpose of the Act is to provide for child abuse plaintiffs to sue a proper defendant in respect of an unincorporated NGO. In other words the main purpose of the Act is directed to suing or bringing a claim, and is therefore addressed to the question of liability.

155 Context provided by the extrinsic materials is also consistent with the construction I have adopted. The Attorney-General's second reading speech states that the Act was directed to removing the barrier to recovery of compensation by child abuse plaintiffs recognised in Ellis, and that it was appropriate that it did so by providing for unincorporated NGOs to be treated like any other organisation and be sued for claims for institutional child abuse. Further, the Explanatory Memorandum states that clauses 4 and 7 have the effect that an unincorporated NGO may be sued and found liable for a claim founded on or arising from child abuse as if it were incorporated at the relevant time, and for the claim to be litigated against a proper defendant that is capable of being sued on behalf of the unincorporated entity.

156 This construction leaves alive as a factual question the structure of the NGO at the time of the events giving rise to the cause of action, and the nature of relationships between the NGO, the plaintiff, the offender and other persons relevant to questions of duty, breach and vicarious liability. Those questions will be answered on the basis of the evidence led in the proceeding as if the unincorporated association were incorporated.

157 That rule of statutory construction, that legislation changing the law would not be understood to retrospectively affect rights or liabilities,[43] does not apply where the legislation contains a clear statement as to its application and effect.

158 In the case of the Legal Identity Act, s 4(3) clearly states the Act applies to a claim founded on or arising from child abuse that occurred before commencement of that section. The clear effect of s 4(3) is confirmed by the content of the second reading speech and Explanatory Memorandum set out above. There is nothing in the Act or the extrinsic material that renders those clear statements ambiguous.

Further evidence relevant to direct and vicarious liability

159 Evidence about the Catholic church, the Archdiocese, and priests was given by Canon Law expert Dr Rodger Austin and two ordained priests in the Archdiocese, Father Kevin Dillon and Father Joseph Caddy. Dr Austin also prepared a report that was tendered.

160 Dr Austin obtained a doctorate in Canon Law at the Pontifical Urban University in Rome in 1972, and has lectured in Canon Law since then. He has appeared as an advocate and sat as a judge on ecclesiastical regional and appeal tribunals, and has been a Canon Law advisor and consultant to diocesan bishops, other church organisations and individuals.

161 Father Dillon was ordained a priest in the Archdiocese in 1969, and has since worked mainly as a parish priest.

162 Father Caddy was ordained a priest in the Archdiocese in 1990. He is a parish priest and holds the position of Vicar-General of the Archdiocese.

163 Dr Austin explained that the Catholic church comprises the entire Catholic community of laypersons, clergy and religious throughout the world. A Diocese or Archdiocese is a constituent element of the hierarchical and organic structure of the church made up of the people of God within a defined territory. In other words the Archdiocese of Melbourne is the community of Catholics, made up of laypersons, clergy and religious, who reside in the geographical territory covered by the Archdiocese. Dr Austin said in that sense the Archdiocese is a voluntary unincorporated association.

164 Dr Austin explained that an Archdiocese has a second characteristic. He said whenever an Archdiocese is established, it is at the same time constituted a legal entity within the church's canonical system with rights and obligations defined by law. This means the Archdiocese of Melbourne has the status in Canon Law of a juridical person. The fundamental purpose of the legal entity is to provide standing before the law and to hold ownership of the assets of the Archdiocese to be used for the purpose of the church. The legal entity has no competency to deal with matters relating to the life and ministry of priests.

165 Dr Austin said the Code of Canon Law for the Latin church is the primary source of Canon Law governing the church. He explained that the Code of Canon Law which applied at the time of the events in question was promulgated in 1917 (the 'Code'), and ultimately replaced and abrogated by a revised code that came into force in 1983. He said that in addition to the Code other laws may apply within an Archdiocese. Laws could be promulgated outside the Code by the Holy See, that is the Diocese of Rome, as the supreme authority of the church, the plenary council of the provincial council of bishops for a region, and by bishops and Archbishops in their particular Diocese.

166 Father Dillon said the Archbishop or Archdiocese may have published legislation from time to time. Otherwise direction was in the form of approved customs, which may cover many areas, and may be across the whole Archdiocese, or more specific to part of the Archdiocese.

167 Dr Austin said a parish created by an Archbishop is, as a general rule, a geographical territory, and the people within that territory are the parochial community.

168 Archbishop Hart's statement included the following evidence about the role of the Archbishop in the period 1974 to 1996:

36 The Archbishop of Melbourne is responsible for the pastoral care of the Archdiocese. He is vested with all powers necessary for the exercise of his pastoral office save for matters reserved to the Pontiff or to some other ecclesiastical authority. The power to laicise a priest is an example of such a power reserved to the Pontiff.

37 Among the Archbishop's ultimate responsibilities is the power to appoint a priest to a particular position or transfer him within the Archdiocese, or to remove his clerical faculties. The exercise of the Archbishop's powers of appointment of clergy is not subject to the sanction of any other person or body within the Archdiocese.

169 Dr Austin said the Archbishop is the pastor of the archdiocesan community, who by virtue of his office has immediate and proper power for the governance of the Archdiocese that he exercises subject to the authority of the Pope. As pastor, the Archbishop has authority and power to govern the church that has been entrusted to his care, and to delegate his power to other persons. The Archbishop is responsible for establishing parishes, and for allocating ministries to the priests in the Archdiocese. Governance of an Archdiocese can be regarded as the complex of the authority of the Archbishop in regard to the preaching of the word of God, celebration of all sacraments, and regulation of the life of the archdiocesan community. The Archbishop is given the power of jurisdiction, and is entrusted with governance of the Archdiocese, to ensure the teaching of the church is presented authoritatively by all parish priests and at parish schools.

170 Dr Austin said an Archbishop could give instruction or direction to priests and assistant priests in relation to the guidance of parishioners in pastoral matters. Sometimes that was a general statement made by the Archbishop to all priests, but it could also be a specific statement to an individual.

171 Dr Austin said the Archbishop has no role in the day-to-day conduct of the ministry of parish priests. It is the autonomy of the parish priest to carry out those functions in accordance with Canon Law. Subject to instructions given by the Archbishop in regard to certain things the parish priest has responsibility to conduct the ministry of the parish in accordance with the church's teaching and law. The Archbishop does not interfere unless there is negligence on the part of the parish priest in some area, but there is the power for the Archbishop to intervene if the parish priest is failing in some way.

172 Dr Austin said under the Code the Archbishop could appoint a person to the office of Vicar-General. The Vicar-General has the same authority as the Archbishop except in certain matters reserved for the Archbishop by Canon Law. It is the authority of the Archbishop that the Vicar-General exercises.

173 On the role of the Vicar-General in the period of 1974 to 1996, Archbishop Hart's statement included:

41 The Vicar General is the principal vicar of the Archbishop and his role is to assist the Archbishop in matters of general and personnel administration. The Archbishop can delegate much of his executive power to the Vicar General but the Vicar General works in accordance with the mind of the Archbishop and subject to his direction.

42 The Vicar General is the Chair of the Personnel Advisory Board, the Diocesan Pastoral & Development Fund and the Planning Building and Finance Committee. He also deals with matters such as dispensations, special appeals and clergy personnel management.

174 Father Dillon said his evidence related to life as it had been truly lived in parishes in the Archdiocese, not purely Canon Law. In the 1960s and 1970s the Archdiocese was a very big operation with about 200 parishes, 300 churches and 250,000 or more people attending mass every weekend. He said much like any other large organisation the Archbishop did not make decisions about the day-to-day running of parishes, and had to rely on the capacity of the staff, that is the parish priests and assistant priests, to operate the parishes.

175 Father Dillon said in practice the authority of the Archbishop was total, and when he said jump, you asked how high. That was true of both parish priests and assistant priests. When he was appointed to positions as a young priest, he was simply told that was what he was to do, and was given no choice by the Archbishop. He said even up to the late 1970s parish priests were just appointed to roles by the Archbishop whether they liked it or not.

176 Father Dillon likened the parish priest to a branch manager, and the Archbishop to chairman of the board. He said the Archbishop is the one who carries ultimate responsibility for anything and everything that happens in the Archdiocese. If something comes to the attention of the Archbishop that he thinks warrants further investigation, criticism or action on his part he had the power and would feel obliged to act. A phrase that bishops used from time to time was that priests should 'reflect the mind of the bishop'. The parish priest might make an educated guess about what is in the mind of the Archbishop, or correspond with him to seek guidance, advice or permission.

177 Father Dillon said the Archbishop also communicated instructions by letter, or via the Vicar-General, possibly through the monthly newsletter. There was an expectation that instructions about priests' behaviour or cultural changes communicated by the Archbishop, the Vicar-General and other senior officials would be followed. He said the basis of this was just the way an organisation with a hierarchical structure operated.

178 Father Caddy said sometimes the requirements of the Archbishop in terms of the practice of priests were communicated through correspondence to an individual priest, or at other times more broadly to parishes in the Archdiocese. The parish priest was required to act in conformity with those communications.

179 Father Caddy said as Vicar-General he had some equivalence with the standing of a bishop. He explained that he was giving evidence with the authority to act on behalf of the Archdiocese, and was speaking on behalf of the Archbishop. The role of the Vicar-General was to assist the Archbishop in the governance and administration of the Archdiocese.

180 Father Caddy said there is no chain of command in the Archdiocese. The parish priest really rules the parish. As Vicar-General he is not like a CEO, in that he has no line management. He said if he were a CEO of the Archdiocese he would have 350 people reporting directly to him, and that was an image that did not work.

181 Father Caddy said the Archdiocese generally has the power to manage disputes that might be described today as 'human relations'. For example, if a problem arose with an appointment of a priest within a parish an application may be made to the Archbishop to address the issue.[44]

182 Father Dillon said the Archbishop can terminate the appointment of an assistant priest or anyone other than a parish priest at his own whim. A parish priest has some rights and privileges that make that a little more complicated, and has a right of appeal if dismissed. The Archbishop exercised oversight through the appointment of people such as parish priests, whose judgement, integrity and example he trusts. There were times when parish priests were removed because the bishop did not consider them the appropriate person to be overseeing an assistant priest. The Archbishop had oversight of the life of an assistant priest virtually at all times through surveillance by the parish priest.

183 Father Caddy said if push came to shove the appointment of a priest to a particular office was and remains the unfettered right of the Archbishop. There was an expectation that as the senior priest of the Archdiocese the Archbishop had the right to control activities within the Archdiocese and give directions to a parish priest. The Archbishop could ask a parish priest to accept another appointment, but did not have unfettered power to direct a priest to leave his parish. Father Caddy said a parish priest has tenure, whereas an assistant priest can be moved on a whim by the bishop. Under Canon Law, directing a parish priest to leave their parish could only be done for very grave reasons. Subject to canonical processes being followed, and the canonical protection of a fair hearing and the right to make a response being observed, the Archbishop did have that power. This meant the power of the Archbishop with respect to the movement and appointment of parish priests was more nuanced. Those restrictions did not apply to the Archbishop's power to appoint or remove an assistant priest. If an assistant priest was considered unsuitable for service in a particular parish he could be dismissed from that office by the Archbishop. Dismissal of a priest from the priesthood required a much more serious investigation process and conclusion. The Archbishop could compel a priest to participate in the ecclesiastical courts and canonical processes concerning his behaviour.

184 Father Connellan trained at Corpus Christi College Seminary, Werribee, from 1933 to 1940, and was ordained a priest at St Patrick's Cathedral, Melbourne, in July 1940.

185 Gannon was trained at the same seminary from 1949 to 1956. He was ordained to the priesthood at St Patrick's Cathedral in July 1956.

186 Dr Austin said the seminary was responsible for teaching priests before their appointment, which it did with the oversight of the Archbishop. He said the Archbishop, or the group of bishops, were responsible for the academic, spiritual and personal formation of seminary students.

187 Father Caddy spent seven years in the seminary and was ordained a priest in the Archdiocese in 1990. The seminary had an approved curriculum and program run by priests and laypeople on behalf of the Archbishop, who had the right to obtain reports on the progress of candidate priests. The Archbishop had the power to require a candidate for priesthood to undertake seminary training, and to consider a priest for appointment to the Archdiocese. He had the right to single out students who showed promise for overseas studies or appointments. On appointment, the Archbishop could direct a priest to offer a promise or an oath of obedience, and require the priest to read the creed before taking appointment.

188 Father Dillon said there was an assessment process for entry to the seminary. Most entrants were in their final year of schooling and had no great experience of the world or work. He spent eight years training in the seminary, and was ordained to the priesthood in the second half of 1969. The sacrament of holy orders was split into minor orders that occurred about four years into training, and major orders, being sub-deaconate, deaconate and then priesthood. He said it was only when you became a deacon that there was any sense of actual formal ministry to people.

189 Father Dillon said authority to conduct training at the seminary came from the bishops of the province, of whom the Archbishop of Melbourne was the most senior. Reports on the intellectual and spiritual progress and character of seminarians were provided to the Archbishop to determine if they would continue.

190 Dr Austin said in his experience training of priests did involve instruction and tuition about interactions with the community, how to foster relationships with community members, and the delivery of pastoral care. Time was also set aside for pastoral preparation or pastoral formation, which was really about relationships with people and how you dealt with them. In his own experience, seminary training only addressed the issue of children in terms of their care and education particularly at parish schools. This was discussed as being part and parcel of the priests' duties. He suspected that in the 1960s the training of priests did not give attention to the issues of sexual abuse of minors, and the obligation to refer any report to the Archbishop. However, he said he had no personal knowledge of the training provided in the Archdiocese in the 1960s.

191 Father Caddy said they did have a bit of an idea what their role would be on leaving the seminary, but pastorally they were still fairly green. Father Caddy said these days there is a great deal of attention at the seminary on areas of personal and spiritual growth, psychosexual development and maturity.

192 Father Dillon said there was little emphasis on pastoral skills at the seminary, and they had to be quick learners when they were appointed to a parish. He said the first time he had any major involvement in a parish was after being ordained a deacon, which was six months before being ordained as a priest. In his training he could not recall any emphasis on interaction with children that either encouraged, shocked or scared him. He said it was just taken that you interact with children the same way you do with adults. He did not hear the words 'child abuse' or anything like that in his eight years at the seminary. He said it was something that was simply not addressed.

193 Father Dillon was asked about the letter from Gannon petitioning for reception into the order of sub-deaconate, where he wrote that he would obediently observe all that his superiors command and ecclesiastical discipline requires. Gannon would have given this undertaken without thinking, because there was a chain of command that priests accepted unquestioningly.

194 Dr Austin said the relationship between the Archbishop and priests is marked by respect and obedience. Every priest is under an obligation by virtue of that relationship to have reverence for the Pope and for the bishop of the Diocese in which he serves. There is a subordination of one to the other which arises out of the sacrament of ordination and is expressed in law. The ordination ceremony includes a sort of promise of fidelity or obedience to the Archbishop.

195 Father Dillon said at ordination he took a vow of obedience to the Archbishop.

196 Father Caddy said when he was ordained he took a vow of obedience to the Archbishop. He explained that meant that he trusted the Archbishop would ask him to do things that were going to be for the good of the Diocese and the spiritual welfare and care of the people of the Archdiocese. He said this meant his disposition was to answer yes when asked to do various roles by the Archbishop, even if it was not what he really wanted to do. He said in his experience the Archbishop was always prepared to engaged in some dialogue about appointments.

197 Dr Austin said priests are the primary co-workers of the Archbishop. He explained the word 'delegation' is not appropriate in terms of the role and activities of a priest. The phrase 'primary co-workers' comes out of church teaching. The Archbishop and priests share the one priesthood of Christ, but the Archbishop is regarded to have the fullness of that priesthood, and the priests as having that in the second degree.

198 Dr Austin said that although a priest would be aware of his obligation to obey the instructions of the Archbishop and church law, his freedom meant that he could ignore those obligations and do the very opposite of what was required of him. The consequences of ignoring instructions or violating a law he was bound to obey would depend on the issue and the circumstances.

199 Dr Austin said a priest appointed to a parish is obliged to reside in the parish. If the priest was going to leave the parish for any reason for at least a few days he had to do so with the permission of the Archbishop. For example, priests were entitled to a vacation, but they had to get the permission of the Archbishop to go on vacation, and find another priest to fill in for them for masses on Sunday.

200 Dr Austin said priests were bound by Canon Law to make an annual retreat, which in most cases was organised at archdiocesan level. In 1957 Gannon wrote a letter about a period of ill health and hospitalisation in which he sought permission to be absent from his appointed parish, and to be exempt from the general retreat, in accordance with a medical certificate. Dr Austin said it was very typical for a priest or assistant priest to notify someone above them in the hierarchy about their movements and to make necessary arrangements for a return to work. A priest would require permission to change the week that they were allocated to attend a retreat, or to be exempt from attendance. He said another letter from Gannon asking for permission to be absent from his parish for annual vacation was typical.

201 Dr Austin said there was no such thing as an employment contract with a priest.

202 Father Dillon said apart from the letter of appointment to a parish he did not have a contract of employment. He said the letters from the Archbishop told him where he was to work, who he was to work with, who he should obey in terms of the Archbishop, and where he was to live. The letter of appointment now goes out of its way to state that it does not constitute an employment arrangement. He said: 'I and many other priests feel resentful that on the one way we're being told where to live, who to work with and what to do, but on the other, if things go pear-shaped, we don't want to know you or take responsibility for that.'

203 Father Caddy said the statement in the current letter of appointment, to the effect that it did not constitute an employment arrangement, was intended to make the position perfectly clear. The Australian Tax Office had recently investigated some parishes for non-payment of superannuation for priests. The explanation by the Archdiocese that priests were not in an employment relationship, and that retirement is managed in a different way to superannuation was accepted by the Australian Tax Office.

204 Father Dillon said when he was first ordained the normal day-to-day dress for a priest was a black suit with a Roman collar. Later it became more common for a priest to wear an open neck shirt with a cross on the collar, usually a white shirt and black pants.

205 Father Dillon was asked about a letter from Gannon seeking permission, with the approval of his parish priest, to purchase a car. He explained that owning a car gave an assistant priest a degree of independence in terms of movement. He said there was a strong emphasis on the authority and control of the Archbishop and, the power he had to supervise his priests.

206 Father Dillon agreed the Archbishop did not set the hours of work of a priest. Father Caddy said it was very difficult to regulate the hours of work for priests because they could be called out at any time for duties if there was an emergency or an anointing of the sick in a hospital.

207 Father Caddy said it was common for priests to have their own set of vestments and perhaps a chalice that they might have got at their ordination. However, there was also an expectation that the parish would have a set of mass vestments and other items for sacraments.

208 Dr Austin explained that while the fundamental responsibilities of a parish priest are set out in Canon Law. The Archbishop gives instructions to all parish priests, and there may be a need for further instructions in a particular parish. The parish priest assumes the pastoral care of the parochial community and has the rights and obligations established in Canon Law. Pastoral care centres on the teaching of the Catholic faith, the celebration of the eucharist and other sacraments, the spiritual guidance of parishioners and the special care of those who are in need in any way. Under the Code parish priests were appointed for an indeterminate time.

209 Father Dillon said the care of individual people and of families was a pre-eminent part of parish work for a priest. This was done reactively when people came to the parish for various social functions, sporting events and parish fetes, and proactively by visiting parishioners in their homes, which was a constant part of what priests were expected to do. The unpredictability of people's lives, and of the requests they made of the priest made this a tricky area. The rights and rituals of the church, including liturgy, were very central to the role of the priest.

210 Father Caddy said the parish priest has a degree of autonomy in the way that he conducts his ministerial duties. He does not have autonomy as to the nature or scope of the duties of parish priest in the sense that he has to look after the people of the parish, provide the sacraments, provide pastoral care, and look after the assets and finances of the parish. However, there is no manual to tell the priest how to do his duties, and each one does them differently. While there may not be direction or day-to-day instructions about tasks, the Archbishop could, if he wished, give orders and directions, and there are policies of the Diocese that had to be followed. Communications of those policies occurred from time to time in various ways, sometimes directly by personal contact, correspondence, and sometimes through news or other bulletins.

211 Father Caddy said the parish priest had autonomy about when he takes annual leave. The parish priest would generally communicate with him as Vicar-General to say when they were going, how long they would be away, and who they have arranged to look after the parish in their absence. Because the letter of appointment entrusts the spiritual care of the people to the parish priest, he has the responsibility to ensure there is a locum to cover his absence. Father Dillon agreed, and said that some parish priests would approach it on the basis they had to get permission from the Archbishop for leave, whereas others would consider they only had to inform the Archbishop they were taking leave.

212 Gannon was appointed to the following positions as assistant priest:

213 Dr Austin said Canon Law made provision for the appointment of assistant priests to parishes. He said that prior to such an appointment the Archbishop was obliged to discuss the matter with a parish priest. The IVth Plenary Council of Australia and New Zealand explained the ministry of the assistant priest as preaching, the celebration of the sacraments, visiting schools, caring for the sick, teaching Christian doctrine to adolescents, assisting in the collection of donations, and devoting himself to the spiritual wellbeing of all.

214 Dr Austin said the Archbishop could determine the duties of an assistant priest more specifically in his letter of appointment, having regard to the particular needs or circumstances of the parish and the parish priest. Usually an assistant priest was assigned to serve the parish community by assisting the parish priest in the entire parochial ministry. The parish priest provided instructions to the assistant priest in respect of their duties. The assistant priest was subject to the parish priest, who was paternally to instruct and advise him in regard to his pastoral ministry and to watch over him and provide a report to the Archbishop at least annually.

215 Father Dillon said the relationship with assistant priests depended very much on the personality of the parish priest, who could present himself as commanding general, or as a fellow worker.

216 Father Caddy said the assistant priest was at the disposal of the parish priest, and would take instructions on all sorts of reasonable things that were part of his role. The parish priest would determine the mass roster, who was going to the local hospital for anointing of the sick, and what other duties should be allocated.

217 Dr Austin said the Canon Law did not specify a process to address issues relating to the performance of an assistant priest. If the cause was something personal to the assistant priest, such as issues of physical or psychological health, the parish priest would have to refer the matter to the Archbishop. If the parish priest was unable to help an assistant priest bring about any improvement in the manner in which he exercised the pastoral ministry in the parish, he did not have the authority to discipline the assistant priest. That matter had to be referred to the Archbishop who, depending on the circumstances, had authority to revoke the appointment of the assistant priest, transfer him to another position, or if the situation warranted remove the assistant priest from his ecclesiastical office.

218 Dr Austin was asked about a letter appointing Gannon assistant priest at St Kilda East parish in January 1968, that referred to him being given 'all the faculties, duties and rights given to an assistant priest via the Code'. He said when a priest is ordained he has the right and obligation to do certain things, such as preaching the gospel, but not the power. By giving him the 'faculties', the letter of appointment from the Archbishop gives the assistant priest the power to do those things.

219 Father Dillon said the ministry to young people, and formation of youth groups, was in most cases considered the domain of the assistant priest, because of their age and ability to communicate effectively with young people. In the 1960s and 1970s, young people made up a large proportion of the church. When he was assistant priest at East Bentleigh, he started a youth group that was open every night of the week and had 360 registered members.

220 Father Caddy agreed with Father Dillon's evidence that assistant priests were encouraged to engage with students and staff at schools, to attend to church duties relating to young people, and to engage in outside activities including sports and home visits for a variety of purposes. This might include offering special care to those in need, for example by paying attention to the children of single mothers. In earlier decades it may have included offering spiritual guidance to children in situations where they would be on their own with a priest, for example in confession, as an altar boy preparing for mass, or as part of out of school activities. Now there is a much greater consciousness on avoiding situations where there is a lack of line of sight to a priest with a child because the church is more aware of the risk of child abuse. That consciousness was not present in the 1950s and 1960s. At that time a parish priest was given no guidance about how to interact with child parishioners, and no preordination training on those matters.

221 Father Dillon said home visitation was almost a given for assistant priests, and was seen as a very effective and valuable way of going to people in their own territory. The reason for home visits was to get to know your parishioners, so that you could be more aware of their lives and a more effective carer. He said the role of parish priest is part counsellor, part confidante, part social worker and a lot of other things as well. Part of the role of the priest involves getting to know parishioners fairly closely and you certainly do that more effectively if you are sitting at their kitchen table. Father Dillon said building these social connections has resulted in him attending on holidays with families.

222 Dr Austin said the church was obliged to provide somewhere for a priest to live, and for him to be cared for. The stipend paid to a priest from church collections was his own personal money. The II Vatican Council spoke about the need to ensure that priests had a proper livelihood that was more equitable. One principle was that priests under the same circumstances should receive the same remuneration.

223 Father Dillon said traditionally the first collection taken at mass on a Sunday was for the support of local priests. Some parish priests were being unfair and unjust in the amount they allocated to assistants. In some parishes the priests did very well from the collection, and in others the amount collected was insufficient to support the priests. When he was appointed in 1967 Archbishop Knox introduced the priests remuneration fund which was a new scheme to ensure a more balanced, reasonable and fair distribution of funds to priests. Father Caddy said 12.5% of the first collection was paid into the priests' remuneration fund to ensure that every priest received a minimum stipend of $20,000 plus a car capital allowance of $6,400. He said a further 12.5% was contributed to the Priests Retirement Foundation. The parish also paid for the priest's food, household expenses and cleaning.

224 Father Caddy said the Archbishop could set any special remuneration and privileges attaching to a non-parish priest role.

225 Father Caddy said priests do not have entitlements such as long-service leave or overtime, but there is an opportunity to apply for sabbatical leave. A decent sabbatical proposal would include education and professional development opportunities. He said the priest's parish would pay part of the costs of sabbatical leave, the priest would personally contribute, and the Diocese would make a contribution.

226 Father Caddy said the parish priest lived in the presbytery which was owned and provided by the parish. Retired priests can receive financial assistance from the Priests Retirement Foundation, and may be provided with accommodation.

227 Father Caddy said if a priest is impecunious and cannot support himself the Archbishop is obliged to provide sustenance. There is no sick-leave, but the health of priests is something that the Archbishop has to have an eye to because he has entrusted the care of people to the priest. One reason a priest can be removed from an appointed position is if he is too unwell to do it.

228 Father Caddy said in his time the Archdiocese has provided private health care cover for priests. The Archdiocese does not provide workers compensation. If a priest is injured at work and still in the parish he has access to parish funds. If the priest is removed from the parish the Archbishop would have to look after them.

229 Dr Austin said parish assets are not available for priests to spend on whatever they wish. Those assets are subject to administration by the parish priest who is required to give an annual report to the bishop. There are regulations made by each Diocese in regards to the expenditure of parish funds. A parish priest may have authority to spend up to a certain amount, but beyond that must seek permission of the bishop. It is usual for bishops to give directions about the spending of community funds.

230 Father Dillon said the parish priest had discretion for day-to-day expenditure within the parish, for example for employment of people or maintenance of property. However, there was financial accountability, and an annual financial report, usually prepared by the parish accountant, was submitted to the Archbishop. More significant expenditures by a priest required direct approval from the Archbishop.

231 Dr Austin said the Code did not provide a specific role for assistant priests in relation to schools. The Plenary Council spoke of the obligation to have a school in every parish if possible. Schools were under the control of the parish priest who was responsible for everything that related to the school. Priests would visit schools to provide the opportunity for children to attend mass or other sacraments, or to teach catechism. One of the roles of the assistant priest was to do whatever was necessary to ensure the children at the school were able to receive a Catholic education. It was typical for a parish school to be located next to the church.

232 Dr Austin said it was consistent with his evidence that Gannon would be on the school grounds from time to time, and may enter a classroom to speak to the nuns, or to ask a student to undertake certain tasks. That would have to be done in consultation with the principal, because a priest could not simply walk in and disrupt a school program. If a priest wanted to speak to a student during school hours he would normally speak to one of the nuns first.

233 Father Dillon said priests were constantly being invited into the school community for any number of reasons, including providing religious instruction to children, preparation for sacraments, and attendance at weekday mass.

234 Dr Austin said the position of the Catholic church is that the priest has personal autonomy and is personally responsible for all his actions. Therefore, if a priest contravenes his obligations in any shape or form, for instance by abusing a child parishioner, responsibility has to rest with the priest. Dr Austin said a bishop cannot be held juridically responsible for the actions of a priest unless the bishop had been made aware of the priest's behaviours and did not adopt adequate measures in Canon Law to deal with the situation.

235 Dr Austin said sexual abuse of a child by a priest is a canonical crime. The Canon Law required that abuse be reported to the Archbishop, who had ultimate responsibility to ensure that priests fulfilled their obligations. A parish priest who received a report of sexual abuse of a minor had no discretion to decide he did not believe the report, or that nothing should be done about it, but was obliged to refer the matter to the Archbishop. Canon Law required that the Archbishop, or the Vicar-General on his behalf, conduct a special investigation into a report that a child had been abused by a priest.

236 Dr Austin said it was well known that abuse by priests did occur in the context of the exercise of the priestly ministry, such as in classes where the priest was teaching students, in the context of liturgy or in personal meetings with students presented as part of the exercise of ministry. He said from this perspective abuse could be said to have occurred in the context of the priest's ministry. Dr Austin said in some Diocese the church was aware in the 1960s of allegations of child sexual abuse.

The circumstances relating to the statement of claim of Mr O'Connor refer to his being taken away from the school in respect of one instance whilst the other two occasions refer to abuse within the school precincts. As far as the Church is concerned, a priest is at all times a priest and is obligated to act in conformity with what is demanded of him by reason of his vocation. When abuse occurs by reason of the fact that the priest has been appointed to a ministry in respect of the person he abused, it is correct to say that the abuse occurred in the context of the priest fulfilling his duties as an assistant priest.

238 Father Dillon said an act of sexual abuse of a child by a priest would be a sacrilege, and could not be countenanced in any way as being part of the role of a priest.

239 Father Dillon explained that the standing of the priest in the perception of Catholic people in past decades was very high. This was exemplified by referring to the priest acting 'in persona Christi', in other words in the person of Christ, or that the priest is an 'alter Christus', which means another Christ. He said from today's perspective those phrases would not be used, but in earlier decades that was commonplace. Whether or not laypeople in the church were aware of those phrases they nonetheless were given to treat priests with enormous respect, even if the priest was very newly ordained and still wet behind the ears. He said he recalled when he was first ordained people would stand when he came into the room, for instance at a youth group meeting or parish council. He said a young child's sense of the authority held by a priest, from things such as seeing the priest in vestments and speaking from the pulpit, would have been very significant.

240 Father Caddy said he was aware that in the 1960s Gannon offended against a number of boys. He accepted that Gannon's history of offending and the fact that it could occur at all raised legitimate questions about the church's processes for managing complaints. Gannon's abuse of O'Connor represented a gross breach of trust that was permitted, in part, by the inherent imbalance of power between a child and a priest, and the level of trust people had in the church. He said trust in the institution of the church had been built up over many centuries and was probably misplaced.

241 Father Dillon said if there was an invitation to attend for religious education, or an offer of sex education, announced by a priest from the pulpit, you would assume that was done with the approval and consent of the parish priest. He said he recalled priests who undertook this sort of education in their own right, but in his time this was done in a class situation with a number of people involved, never just the priest alone.

242 Father Caddy said an offer for Gannon to give sex education to boys was very unusual, and should have raised some red flags. He was not aware of the church having any system in place to assist a parish priest identifying those red flags. He said:

I've mentioned earlier in evidence that a lot of this emerged because of the huge trust the Church had built up over many years, and people trusted that the Church would be safe and ... would care for the children. I think even when I was a young person if a priest or a brother had offered sex education ... the flags would've gone up then as well ... even though there was that ... huge trust in those times ... I think the flags still should have gone up if a priest was offering, especially to such vulnerable fatherless boys.

Sex education for young boys would not be offered by a priest now. If a priest had a particular expertise (i.e. as a psychologist) or was going to bring some perspective of Catholic social teaching, or Catholic teaching on sexuality, he might be invited to participate in a component of sex education, but not in an unsupervised environment.

243 Father Caddy said he would not be surprised by presbyteries being used for this sort of activity. The delineation between the working spaces and living spaces in presbyteries was very poor. Parish meetings might be held in one of the larger rooms of the house.

244 Father Caddy said he was not aware of any education or guidance that was available to Father Connellan in the 1960s to help him recognise the risks or red flags associated with Gannon giving sex education to young boys, or how to deal with a complaint that Gannon had sexually abused a boy. However, from his understanding as a priest of 20 years' experience, he believed Father Connellan would have heard and seen things, and had sufficient life experience to recognise the red flags associated with these circumstances. Father Connellan would have known human nature to a large extent, would have heard thousands of confessions, and would know what the human capabilities for evil are. However, he could not contradict Father Dillon's evidence that there was not a single mention of the fact of sexual abuse of children, or how to deal with a complaint, in his eight years at the seminary.

245 Father Dillon said he spent eight years living in a presbytery with Father Connellan, and saying mass in the same church. He described Father Connellan as a kindly and thoughtful person who had enormous loyalty and fidelity to the church itself, and to the structure of the church. Father Dillon said he had no personal knowledge of child abuse being part of the history of clerical behaviour in any shape or form until 1988 when priest Michael Glennon was charged with offences. He remembered being absolutely gobsmacked that a priest would ever be accused of such behaviour, let alone be guilty of it. Father Connellan, who was a very holy and spiritual priest, would have found the idea of sexual abuse of a child by a priest enormously abhorrent, and very difficult not just to deal with but to believe.

246 Father Caddy said that if Father Connellan as parish priest was aware of sexual abuse by an assistant, namely Gannon, he had an obligation to report that matter to the relevant authority. In particular, there was an obligation to report a credible allegation because only the bishop can appoint a canonical investigation and remove Gannon. He would find it extremely odd if a parish priest did not know of his obligation under law to report a complaint of abuse to the Archbishop.

247 Witness 2 was a grade 4 or 5 student at Christ the King School in Braybrook when Gannon was appointed parish priest in 1971.

248 Witness 2 said the primary school and the church were located on the same block of land. Gannon often visited the school. When Witness 2 was in grade 6 Gannon came to the classroom to ask if anyone was interested in becoming an altar server, and he put his hand up. Later Gannon came to the classroom and took the boys to the church during school hours for altar boy practice.

249 Witness 2 said Gannon asked him to go to the presbytery every weekday after school to answer telephones, and paid him one dollar an hour to be there from 4pm to 6pm. More often than not Gannon was there at the same time. Witness 2 said that, when being paid on Fridays, '[Gannon] would try and put his arm around me and tell me that I was doing a good job'. Witness 2 said he had to give Gannon a cuddle before he got his pay.

250 Witness 2 said Gannon often visited his family home.

251 Witness 2 said Gannon asked his family over to the presbytery to watch the Wizard of Oz because he had a colour TV, and later on Gannon's request Witness 2's parents let Witness 2 stay at the presbytery for the night. Following this, he stayed overnight at the presbytery on a number of occasions.

252 Witness 2 said Gannon had a book about the birds and the bees, with drawings about changes in body functions that Gannon sometimes showed him.

253 Witness 2 said Gannon gave him presents, and took him away on trips with other altar boys. Gannon took them on a trip to Alice Springs for two weeks, and to Adelaide and Hobart for an altar servers' seminar for one week, and a further week for a holiday. These trips took place when Witness 2 was in early secondary school. When he was 14 or 15 years old, Gannon took him and another boy to stay on a farm in Ararat.

254 Witness 2 described being sexually abused by Gannon at the presbytery and on the trips away.

255 Gannon was interviewed on behalf of the Archdiocese at the Sale jail in July 1995. He said when he was at St Michael's parish in Ashburton in 1966 and 1967, he had a lot to do with the grade 6 children and generally looked after the interests of the boys at school. The parish priest asked him to teach a group of boys Latin. Given their age, Gannon thought he should say something to the boys about the difference between girls and boys, and give them a bit of sexual instruction. He described this was how he came to sexually abuse one boy.

256 Gannon described taking boys on end of year camping trips to Philip Island.

257 Gannon said in 1957 a shy primary school boy had somebody ask on his behalf whether he could become an altar boy. Gannon became friendly with him and took the boy under his wing. He said,'[u]nfortunately, things developed from there.'

258 The boy was doing extra study on Saturday mornings for a scholarship and Gannon offered to help with his catechism. Gannon said the boy later made a whole lot of allegations that he had no recollection of, but agreed that he had probably touched him.

259 Gannon said he took an interest in an altar boy when he was parish priest at Braybrook, and that there was some truth in the allegations made by the boy. He said the boy used to come to the presbytery to work after school, answering telephones and giving out keys.

260 A letter from Gannon to Reverend Moran, Administrator, St Patrick's Cathedral, dated December 1957 reads:

This is to inform you that I was discharged from St. Vincent's Hospital yesterday after six weeks illness. I have been advised by the doctors, however, not to return to parochial duty until the first weekend in February and have a certificate to that effect. I am seeking permission therefore to be absent from the parish until that date and also to be exempt from the general retreat, and to make a retreat at a later date.

261 In February 1957, Gannon wrote to Reverend Moran seeking permission, with the support of his parish priest, to buy a car. The reply from Reverend Moran reads in part:

As requested in your letter of the 19th February, permission is granted to you to purchase a motor car for your duties in the parish of Glenhuntly. ...

Should you be transferred to another parish at any 'time, you should make a further application for the use of a car.

262 In November 1967, Gannon wrote to Reverend Murray, Episcopal Vicar, St Patrick's Cathedral, seeking to change or postpone the date of his attendance for an annual retreat, and to be absent from his parish for six days. Gannon stated he had the approval of the parish priest.

263 A letter from L Hartnett, who I infer was parish priest in East St Kilda, to the Vicar-General in September 1968 reads in part:

I would appreciate the change of Father D Gannon to another parish. I have had enough of his arrogance, his attitude and challenge, and his disgusting table manners.

Shortly after this letter was written Gannon was appointed assistant priest in the Kilmore parish.

264 There are two letters from Archbishop Knox to Gannon appointing him to positions within the parish. The first, dated 12 January 1968, appoints Gannon to the position of assistant priest in St Kilda East. The letter states in part:

By virtue of the present letter, I appoint you as Assistant Priest in the Parish of St. Mary in ST. KILDA EAST with all the faculties, duties, and rights given to an Assistant Priest by the Code, by the approved customs in our Diocese, and by the commission of your Parish Priest. You will function as the Assistant Priest until my revocation or my successor's revocation.

You will kindly report to your Parish Priest on Saturday, January 20.

The second letter, dated 9 January 1971, appointed Gannon parish priest in Braybrook. It relevantly reads:

By virtue of this letter, I appoint you as Pastor of the Parish of - Christ the King, Braybrook and I commit to you the full care of souls in that Parish with all the faculties, duties, rights and privileges, according to the Code, to our Diocesan Statutes and to the approved customs.

...

You will please proceed to your new Parish on Saturday 23rd January next at midday.

In the letter Archbishop Knox required Gannon to make a Profession of Faith to fulfil the requirements of Canon Law.

265 The defendant submitted that the Archbishop was not the Archdiocese, and conversely, the Archdiocese was not the Archbishop. It was submitted that the Archdiocese was an amorphous, undefined thing to which liability could not attach. Further the potentially relevant relationships were between the Archbishops, priests and parishioners. There was no relationship between the Archdiocese and priests, or the Archdiocese and parishioners.

266 I reject the defendant's submissions. As I have explained, the Archdiocese is to be treated as if it were incorporated at the relevant time. The Archdiocese had a structure imposed by Canon Law. The Archbishop was the pastor of the Archdiocese, and had the power to govern the Archdiocese. The rights, duties and obligations given to and imposed on the Archbishop were not personal to him, but resulted from his appointment. The Archbishop could delegate his power. The priests were appointed to roles by the Archbishop exercising the power that resulted from his appointment to the role he held in the Archdiocese. In other words, the Archbishop did not exercise the power and authority given to him unconnected from his role representing the Archdiocese. The priests were appointed to roles as priests of the Archdiocese. The role of the Archbishop and the priests was to minister to the parishioners of the Archdiocese.

267 I conclude that the operation of the Legal Identity Act, together with the evidence in this case, establishes that the relationships relevant to the issues of direct and vicarious liability are those between the Archdiocese, the priests and parishioners.

268 I adopt, with respect, the analysis of risk of harm by J Forrest J in relation to relevantly similar circumstances in DP v Bird.[45] In this case, the risk of harm was that Gannon, in the course of his pastoral duties as an assistant priest at Kilmore, might assault a parishioner's child.

269 As in DP v Bird, a critical issue between the parties is whether the identified risk was foreseeable to the Archdiocese.

270 O'Connor's case on foreseeability relied on acceptance of the BTS evidence that he reported the abuse by Gannon to Father Connellan. The reasons I have already given for admitting the BTS documents into evidence are also relevant to whether that evidence is to be accepted.

271 I again note the inconsistency between BTS's police statement and the O'Callaghan transcript in relation to whether he told anyone about the abuse, that BTS was not under oath when interviewed by O'Callaghan, and that he is not available to explain or be challenged on the evidence in the tendered documents. These matters go to the weight of the BTS evidence and dictate that there should be a degree of caution about acceptance of it.

272 Keeping those matters in mind I conclude, for the following reasons, that BTS did report the abuse to Father Connellan in the early 1960s.

273 First, for reasons already stated I conclude BTS was abused by Gannon as alleged. I note, in addition to the matters referred to in paragraph 83 above, that in his statement to the Royal Commission, Archbishop Hart said that in 1997, which was one of four such occasions, Gannon pleaded guilty to sexual offences against former parishioners.

274 Second, there is consistency, in the important respects that I have already identified, between the evidence of BTS in the O'Callaghan transcript, and the letter written by his mother. I accept that the O'Callaghan interview was conducted in the setting of an application to the Melbourne Response, and not in the context of a court proceeding or formal claim by BTS based on an alleged cause of action. However, the purpose of the interview was to allow O'Callaghan to establish the truth of the allegations by BTS, and to make a recommendation about whether his application should be accepted. During the interview, O'Callaghan, who was of course very experienced and skilled counsel, inquired broadly about the circumstances in which the abuse by Gannon came to light, and who was told about it. In that context, he made reference to the mother's letter and the lengthy conversation he had with her before the interview. Importantly, O'Callaghan did not raise any significant issue challenging or bringing into doubt the reliability or credibility of what BTS told him. I infer from the transcript that O'Callaghan was satisfied that BTS had been abused as alleged.

275 Third, during the interview, BTS said when he made his police statement in 1996, he told the police about previously being taken to the police station when he was 'between 7 and 10 years old ... when the thing happened'. O'Callaghan did not further explore whether BTS said anything else to the police in August 1996 that did not appear in his statement. The inconsistency between the police statement and the O'Callaghan interview was not expressly addressed by O'Callaghan with BTS, or fully explained by him. However, it is relevant that, according to what he said to O'Callaghan, not all of the history relayed to the police appeared in the police statement.

276 Fourth, while a reasonable question might arise about the reliability of BTS's memory as a young child, the same issue does not affect his mother's recollection. The mother's letter bolsters the reliability of BTS's childhood memory.

277 Fifth, there is no apparent reason for BTS and his mother to falsely claim that the abuse was reported shortly after it occurred. In the context of his application to the Melbourne Response, there is nothing to suggest that BTS or his mother alleged that he suffered further harm, or should be entitled to greater compensation, because an earlier report of the abuse was rejected.

278 Sixth, the evidence of Archbishop Hart to the Royal Commission is important. Archbishop Hart was trained in the Corpus Christi College seminary from 1960 to 1967, ordained at St Patrick's Cathedral in 1967, and worked as a priest in the Archdiocese from that time until he gave evidence to the Royal Commission. Archbishop Hart was appointed Vicar-General of the Archdiocese in 1996, consecrated as a bishop in 1997, and appointed Archbishop of Melbourne in 2001. In giving evidence he spoke on behalf of the Archdiocese.

279 Archbishop Hart was aware the Royal Commission was inquiring into the response by the Archdiocese to the sexual abuse of children by priests. I infer that when he made the statements and admissions, which I have set out earlier in these reasons, Archbishop Hart understood he was giving evidence about a matter that was of central importance to the inquiry being conducted by the Royal Commission, and of great significance to the Archdiocese. It is evident that when he made his witness statement and gave evidence to the Royal Commission, Archbishop Hart had relevant historical records of the Archdiocese available to him, including the BTS documents.

280 The weight to be attributed to the admissions made by Archbishop Hart, set out in paragraphs 113 to 115 above, must be considered in the context of the preparation of Archbishop Hart's comprehensive witness statement. It is likely that there was at least some investigation undertaken of the systemic failures of the Archdiocese to respond to complaints that he identified. The grave seriousness of the issues Archbishop Hart was discussing, would have been apparent to him.

281 The defendant did not call any evidence to explain the admissions or undermine the weight to be attributed to them. I conclude that significant weight attaches to the admissions.

282 Seventh, Father Caddy said it would be extremely odd if a parish priest, such as Father Connellan, did not know of his obligation under Canon Law to report a credible allegation of sexual abuse so that the Archbishop could arrange for the matter to be properly investigated. It is notable that Dr Austin expressed the obligation in more absolute terms, that a priest receiving such a report had no discretion to decide whether or not it should be accepted as accurate, but was obliged to simply refer it to the Archbishop. Father Dillon said, and Father Caddy agreed, that at the relevant time there was no instruction given to priests about these matters as part of their training. I accept Father Dillon's description of Father Connellan, a priest he had lived with for eight years and obviously knew well. The context of the report to Father Connellan included BTS having attended the police station apparently in relation to engaging in a sexual activity unrelated to Gannon. While a finding cannot be made about why Father Connellan rebuffed BTS and his mother, Father Dillon's evidence provides the basis of a credible explanation for him doing so.

283 For the above reasons, I accept that in or about 1960, shortly after he was abused by Gannon, BTS and his mother reported the abuse to Father Connellan.

284 There is no evidence to suggest Father Connellan told Archbishop Mannix or any other person about the BTS complaint. The evidence of BTS and his mother to the effect that they were rebuffed by Father Connellan suggests he did not report the matter.

285 O'Connor submitted that when Father Connellan received the report of abuse from BTS, he was a long-serving parish priest in the Archdiocese, and would have had standing and influence among other priests. In the words of Father Dillon, the parish priest was in the position of branch manager for the Archbishop, or as Dr Austin explained was a primary co-worker of the Archbishop. O'Connor submitted that where a senior parish priest of the Archdiocese knew that Gannon had been accused of sexually abusing a child that knowledge was attributable to the Archdiocese.[46]

286 The defendant submitted any knowledge held by Father Connellan was his alone, and could not be attributed to the Archdiocese, an amorphous thing constituted by the Catholic community, or to the Archbishop of the day, Archbishop Mannix. As Dr Austin said, any knowledge acquired by a parish priest by reason of his office, if unreported, is the knowledge of the parish priest and never becomes the knowledge of the Archdiocese.

287 The defendant's submission amounts to a proposition that because the Archdiocese was at the time an unincorporated association, it cannot be held organisationally responsible for the knowledge acquired by Father Connellan. That submission does not take into account what I have found is the effect of the Legal Identity Act, and disregards the structure and rules that governed the operation of the Archdiocese.

288 I have already determined that the effect of the Legal Identity Act is to treat the unincorporated Archdiocese as if it were a corporation at the time of the cause of action.

289 At the time of the BTS complaint, Father Connellan was clearly acting in the role of parish priest, filling a relatively senior position within the structure of the Archdiocese. The rules by which the Archdiocese operated required that Father Connellan report an allegation of abuse of a child to the Archbishop. That obligation is to be understood in the context that there was a degree of supervision of assistant priests in the Archdiocese by parish priests, and a requirement for an annual report to be made to the Archbishop. In other words, the Archdiocese had a structure and a system of rules in place to supervise the performance of assistant priests, who represented and conducted the work of the Archdiocese. In this important respect, the Archdiocese gave authority to and acted through the parish priest. The parish priest was the primary co-worker of the Archbishop and was given considerable authority in relation to the operation and management of the parish, and the wellbeing of its parishioners. He had authority to receive a complaint of abuse by an assistant priest from a parishioner, and responsibility on behalf of the Archdiocese to report that complaint to the Archbishop. Applying the usual rules of attribution and agency, Father Connellan's knowledge of the complaint by BTS and his mother is the knowledge of the Archdiocese.

290 The BTS complaint meant the identified risk of harm was foreseeable. Clearly the risk to young Catholic boys in parishes to which Gannon was appointed was not insignificant. A reasonable response to the risk required action by the Archdiocese. At a minimum, this should have involved taking steps to prevent Gannon being able to achieve intimacy with young boys by being alone, unsupervised or isolated with them. I conclude a reasonable response to the BTS complaint would have prevented O'Connor being abused by Gannon.

291 The second way that the direct liability case was put by O'Connor related to alleged systemic failures by the Archdiocese which, it was submitted, resulted in the BTS complaint being dismissed by Father Connellan. For the purposes of this analysis, the risk of harm may be expressed as follows: If a complaint that he had sexually abused a minor was not reported to the Archbishop for investigation and action, Gannon, in the course of his pastoral duties as an assistant priest at Kilmore, might assault a parishioner's child. That risk was foreseeable. Abuse of a child by a priest was a canonical crime. Canon Law required that a priest who received a complaint of abuse report the matter to the Archbishop, and that the Archbishop investigate the complaint. In other words, the Canon Law itself acknowledged the existence of the risk that eventuated when O'Connor was abused by Gannon.

292 Priests were given no training, instruction or guidance in relation to child abuse in the seven or eight years they were at the seminary, or subsequently when they were appointed to positions in the Archdiocese. The Canon Law requirement to report complaints of abuse to the Archbishop was not drawn to the attention of priests, and there were no systems or procedures in place to ensure that this was done. Dr Austin said in some Diocese the church was aware in the 1960s of allegations of child sexual abuse. Archbishop Hart's evidence is to the effect that the Archdiocese was aware of complaints but failed to act on them. I conclude the risk of harm from failing to act on a complaint of abuse was not insignificant. The circumstances required a reasonable person in the position of the Archdiocese to take precautions against the risk. As Archbishop Hart said, there were no adequate policies, processes or procedures to deal with complaints of abuse, and there was a systemic failure by church leaders to listen when complaints were made and to have those complaints investigated. While the analysis was undertaken by Archbishop Hart when he made his statement in 2015, he was in my view speaking of failures by the Archdioceses when the complaints were made, and not with the benefit of hindsight. I conclude that the systemic failure by the Archdiocese to take precautions against the risk of harm was a breach of its duty to O'Connor.

293 Father Dillon described Father Connellan as a holy and spiritual priest, who had enormous loyalty to the church. I conclude that had there been reasonable training, instruction and systems in place and enforced, it is likely Father Connellan would have recognised that loyalty to the church required that the BTS complaint be reported to the Archbishop. Adopting what was said by Archbishop Hart, and applying it to the facts of this case, a prompt and effective response to the BTS complaint would have prevented the abuse of O'Connor and the injuries he sustained from occurring.

294 I find the Archdiocese directly liable for the abuse of O'Connor in these two ways.

295 For the same reasons, if it is necessary, I conclude that Archbishop Mannix, who occupied the position when the BTS complaint was made, was directly liable in the same way for the abuse of O'Connor.

296 A claim that a defendant is vicariously liable for the conduct of a person raises two fundamental questions for consideration.

297 First, is the relationship between the defendant and the third party such that it gives rise to vicarious liability?

298 In this case, it is necessary to consider the relationships between the Archdiocese and Father Connellan as parish priest at Ashburton, and Gannon as assistant priest at Kilmore.

299 O'Connor submitted Father Connellan and Gannon were employed by the Archdiocese, or in the alternative that they were in a relationship so akin to employment as to make a claim for vicarious liability available. The defendant submitted the first question must be answered no because an employment relationship was the only basis on which a defendant could be held vicariously liable, and neither Father Connellan nor Gannon were employed by the Archdiocese.

300 Second, is the association between the impugned conduct of the person and the relationship with the defendant such that the defendant should be held vicariously liable?

301 O'Connor submitted that Gannon abused his power to obtain unsupervised access to O'Connor at parish schools and the church, so that his role as assistant priest should be understood as providing the opportunity and being the occasion for him to perpetrate the abuse. The defendant submitted that Gannon's abuse of O'Connor was the product of evil criminal intent not associated with the apparent performance of his role as assistant priest.

302 O'Connor submitted that it was within Father Connellan's role as parish priest to respond to an allegation of sexual abuse of a minor by another priest, and that the Archdiocese should be held vicariously liable for his failure to act on the BTS complaint. The defendant submitted that there is no evidence Father Connellan's response to the BTS complaint was directly authorised by the Archdiocese, and therefore no basis for a finding of vicarious liability.[47] Alternatively, Father Connellan's wrongful act of silence did not form any part of his role as parish priest.

Were Father Connellan and Gannon employed by the Archdiocese or the Archbishops?

303 O'Connor's submissions relied on Stevens v Brodribb Sawmilling Co Pty Ltd ('Stevens')[48] and Hollis v Vabu Pty Ltd ('Hollis')[49] as emphasising the importance of considering the totality of the relationship between the Archdiocese and the priests to determine whether the features of the relationship were consistent with the indicia of employment. Stevens and Hollis involved consideration by the Court of the features of relevant relationships to determine whether the worker in question was an employee or independent contractor. In both cases, the starting point of analysis was an acceptance or finding of a contractual relationship between the relevant parties.

304 In Ermogenous v Greek Orthodox Community of SA Inc ('Ermogenous'),[50] the appellant, who was a minister of religion, claimed that he was employed by the respondent, a church organisation, and was entitled to amounts for annual leave and long-service leave. The High Court concluded the industrial magistrate who determined the case at trial did not err in finding that the parties intended to enter into contractual relations. In that regard the majority said:

'It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty.' To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet '[t]he circumstances may show that [the parties] did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts'.[51]

The Court pointed out that although the relationship between a minister and church may be pre-eminently spiritual, there may be aspects of that relationship which give rise to legally enforceable rights and duties.[52] Further, the 'essentially spiritual' relationship may take on a different character if one of the parties is not itself a spiritual body, but an incorporated body having the characteristics of the respondent in that case.[53] It was of relevance that the respondent in Ermogenous employed clergy to provide a fundamental element in the preservation of Hellenic and Orthodox culture, a purpose for which it had been formed.[54] The respondent was not a 'church', and its members were not all observant practitioners of the Greek Orthodox faith.[55] The decision in Ermogenous recognises the possibility that a minister of religion may be engaged under a contract of employment.

305 An intention to create a legally binding relationship is a necessary condition to a finding of employment. In the absence of there being a contract of employment, O'Connor cannot establish that Father Connellan and Gannon were employed by the Archdiocese simply by pointing to features of the arrangements between those parties that would otherwise be consistent with an employment relationship.

306 In his final submissions in relation to this issue, O'Connor relied on a document headed 'indicia of employment'. One indicia were letters, such as those set out at paragraph 264 above, appointing priests to roles in the Archdiocese. O'Connor also relied on Gannon's letter sent in 1956 applying to enter the priesthood, which reads in part: 'I wish to make application for the Sacred Order of Priesthood. I do this entirely of my own free will and with full knowledge of the obligations attached to this Sacred Order.'

307 And the evidence of Father Dillon where he said:

My letters of appointment told me where I was to work, who I was to work with, who I should obey in terms of the bishop and in large degree the parish priest to whom I was assigned at the time, where I was to live, ah, I had to get permission to go on holidays. Now, ah, that's, ah, I would - under normal circumstances of the English language I would call that 'employment' with a capital E. Not a small E.

308 I accept that the Archbishop was able to exercise significant control over diocesan priests, and that the relationship gave rise to rights, obligations and duties. However, the relationship of the priests was with the church, not an associated organisation with an independent purpose. Further, the evidence does not support a conclusion that the relationship between priests and the Archdiocese involved an intention that the rights, duties and obligations associated with the relationship would be legally enforceable and subject to adjudication of the courts.

309 I conclude the priests were not in an employment relationship with the Archdiocese or the Archbishops.

Does vicarious liability arise on the non-contractual relationship between the priests and the Archdiocese?

310 The defendant's submissions relied heavily on decisions of the High Court in Sweeney v Boylan Nominees Pty Ltd ('Sweeney')[56] and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd ('CFMMEU').[57]

311 The plaintiff in Sweeney sued the defendant for injuries sustained because of the negligent repair of a shop fridge by the mechanic it engaged. The majority concluded the mechanic was an independent contractor, not an employee of the defendant. Turning to a consideration of vicarious liability, the majority observed the difficulty in identifying any clear principle which underpinned the development of the doctrine, and that the vicarious liability of an employer for the torts of an employee was adopted as a matter of policy. The majority continued:

Nonetheless, as the decisions in Scott, Hollis and Lepore show, there are some basic propositions that can be identified as central to this body of law. For present purposes, there are two to which it will be necessary to give principal attention. First, there is the distinction between employees (for whose conduct the employer will generally be vicariously liable) and independent contractors (for whose conduct the person engaging the contractor will generally not be vicariously liable). Secondly, there is the importance which is attached to the course of employment.[58]

Whatever may be the justification for the doctrine, it is necessary always to recall that much more often than not, questions of vicarious liability fall to be considered in a context where one person has engaged another (for whose conduct the first is said to be vicariously liable) to do something that is of advantage to, and for the purposes of, that first person. Yet it is clear that the bare fact that the second person's actions were intended to benefit the first or were undertaken to advance some purpose of the first person does not suffice to demonstrate that the first is vicariously liable for the conduct of the second. The whole of the law that has developed on the distinction between employees and independent contractors denies that benefit or advantage to the one will suffice to establish vicarious liability for the conduct of the second. But there is an important, albeit distracting, consequence that follows from the observation that the first person seeks to gain benefit or advantage from engaging the second to perform a task. It is that the relationship is one which invites the application of terms like "representative", "delegate" or "agent". The use of those or other similar expressions must not be permitted to obscure the need to examine what exactly are the relationships between the various actors.

Referring to the use of terms like 'representative', 'delegate' and 'agent', the majority continued:

But when used in that way, they are statements of conclusion that do not necessarily proceed from an articulated underlying principle that identifies why there should be vicarious liability in one case but not another.[59]

312 The majority in Sweeney considered at length the earlier decision of the court in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd ('Colonial Mutual Life'),[60] in which it was sought to make the appellant vicariously liable for statements by a person engaged by it that were slanderous of the respondent, and were made in the course of the person attempting to induce customers to make proposals for life insurance by the appellant. The majority in Sweeney said:

The conclusion reached in Colonial Mutual Life, that the party engaging an agent (albeit as an independent contractor) to solicit for the creation of legal relationships between that party and others is liable for the slanders uttered in the course of soliciting proposals, stands wholly within the bounds of the explanations proffered by Pollock for the liability of a master for the tortious acts of a servant. It stands within those bounds because of the closeness of the connection between the principal's business and the conduct of the independent contractor for which it is sought to make the principal liable. The relevant connection is established by the combination of the engagement of the contractor as the agent of the principal to bring about legal relations between the principal and third parties, and the slander being uttered in the course of attempting to induce a third party to enter legal relations with the principal.[61]

313 Responding to the appellant's argument that 'if A "represents" B, B is vicariously liable for the conduct of A', the majority said:

These bounds should not now be redrawn in the manner asserted by the appellant. Hitherto the distinction between independent contractors and employees has been critical to the definition of the ambit of vicarious liability. The view, sometimes expressed, that the distinction should be abandoned in favour of a wider principle, has not commanded the assent of a majority of this Court.[62]

Referring to the Court's earlier decision in Hollis:

In Hollis, the Court amplified the application of the distinction between independent contractors and employees to take account of differing ways in which some particular enterprises are now conducted. As was said in the joint reasons:

"In general, under contemporary Australian conditions, the conduct by the defendant of an enterprise in which persons are identified as representing that enterprise should carry an obligation to third persons to bear the cost of injury or damage to them which may fairly be said to be characteristic of the conduct of that enterprise."

But neither in Scott nor in Hollis, nor earlier in Colonial Mutual Life, was there established the principle that A is vicariously liable for the conduct of B if B "represents" A (in the sense of B acting for the benefit or advantage of A). On the contrary, Scott rejected contentions that, at their roots, were no different from those advanced in this case under the rubric of "representation" rather than, as in Scott, under the rubric "agency". As was said in Scott of the word "agent", to use the word "representative" is to begin but not to end the inquiry.[63]

The majority observed that the circumstances in Sweeney were very different to Hollis, because the mechanic was engaged in a business other than that of the respondent. This was demonstrated by a number of matters including, importantly, that he invoiced the respondent for each job he did, and the respondent's concern to verify that the mechanic had proper workers' compensation and public liability insurance.[64] The majority concluded:

The mechanic was an independent contractor. He did what he did for the benefit of the respondent and in attempted discharge of its contractual obligations. But he did what he did not as an employee of the respondent but as a principal pursuing his own business or as an employee of his own company pursuing its business.[65]

314 CFMMEU concerned consideration of the contractual relationship between the respondent, a labour hire company trading as 'Construct', and McCourt, a worker engaged by Construct to work in the business of another company, Hanssen. The majority concluded the contractual relationship between Construct and McCourt was governed by the administrative services agreement ('ASA') that he signed. Ultimately the majority concluded it was an employment contract. The plurality considered the multifactorial test of employment and what was said in Stevens and Hollis about determination of the question of employment by reference to 'the totality of the relationship between the parties', and said:

It was not suggested that this assessment should proceed as if the court is running down items on a checklist in order to determine a balance of ticks and crosses. It has never been suggested that the factors identified to be relevant are of equal weight in the characterisation of the relationship. Some understanding as to the relative significance of the various factors is desirable, both to minimise the extent to which application of the test may produce an impressionistic and subjective outcome on the one hand, and to avoid the injustice of a mechanistic checklist approach on the other.[66]

The plurality preferred the 'own business/employer's business' dichotomy as a means of establishing whether the relationship was one of employment or independent contractor:

While the "central question" is always whether or not a person is an employee, and while the "own business/employer's business" dichotomy may not be perfect so as to be of universal application for the reason that not all contractors are entrepreneurs, the dichotomy usefully focusses attention upon those aspects of the relationship generally defined by the contract which bear more directly upon whether the putative employee's work was so subordinate to the employer's business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise. In this way, one may discern a more cogent and coherent basis for the time-honoured distinction between a contract of service and a contract for services than merely forming an impressionistic and subjective judgment or engaging in the mechanistic counting of ticks on a multifactorial checklist.[67]

315 The plurality observed that an employment relationship may not be defined exclusively by the contract between the parties, and may be affected by other considerations such as statutory provisions or awards made under statutes.[68] Further:

A contract of employment may be partly oral and partly in writing, or there may be cases where subsequent agreement or conduct effects a variation to the terms of the original contract or gives rise to an estoppel or waiver. In such cases, it may be that the imposition by a putative employer of its work practices upon the putative employee manifests the employer's contractual right of control over the work situation; or a putative employee's acceptance of the exercise of power may show that the putative employer has been ceded the right to impose such practices.[69]

316 The plurality referred to the decision of the court in WorkPac Pty Ltd v Rossato, in which it was said that resolution of the question of whether a person engaged to work for another is an employee or an independent contractor 'may depend upon the extent to which it can be shown that one party acts in the business of, and under the control and direction of, the other'.[70] Their Honours said: 'There is no reason in principle why the approach taken in Rossato should not be applied where the issue is whether the relationship in question is one of employment.'[71]

317 Considering whether McCourt served in the business of Construct, and responding to Construct's submission that it was 'simply a finder of labour', the plurality said:

Construct was authorised: to fix Mr McCourt's reward for his work (cl 2(a)); to act as Mr McCourt's paymaster (cll 1(d), 2(d)); and to terminate Mr McCourt's engagement should he fail in any respect to obey the directions of Construct or Hanssen (see cl 4(a), (c)). And, as will be seen, by cl 4(a) Construct retained a right of control over Mr McCourt that was fundamental to its business as a labour-hire agency. There would be no reason for the existence of such obligations if Construct were not in the business of labour hire, but rather in the business of "introducing" suppliers of labour to builders and leaving those parties to sort their own affairs.

In terms of the test suggested by Windeyer J in Marshall, it is impossible to say that Mr McCourt was in business on his own account. The core of Mr McCourt's obligation to Construct under the ASA was his promise to work as directed by Construct or by its customer. Mr McCourt's obligation to work was meaningful only because the benefit of that promise was ventured by Construct as an asset of its labour-hire business.[72]

318 In relation to the issue of control, the plurality said:

Like the "own business/employer's business" dichotomy, the existence of a right of control by a putative employer over the activities of the putative employee serves to sensitise one to the subservient and dependent nature of the work of the employee, so as to assist in an assessment of whether a relationship is properly to be regarded as a contract of service rather than a contract for services.[73]

The plurality observed Construct was entitled to determine for whom McCourt would work, and obliged him to cooperate with Hanssen in the supply of his labour and to work in accordance with Hanssen's directions. Further, McCourt's performance of that obligation was unambiguously central to Construct's business, which turned on its ability to supply compliant labour. Their Honours said:

That right of control was therefore the key asset of Construct's business. Its significance was not diminished by the circumstance that the minutiae of Mr McCourt's performance of daily tasks were at the direction of Hanssen. ...

As between Construct, Mr McCourt and Hanssen, it was only by reason of Mr McCourt's promise to Construct that Mr McCourt was bound to work as directed by Hanssen.[74]

319 Construct made a submission based on what it said were policy considerations underpinning vicarious liability. Responding to that submission, the plurality referred to the two steps or questions in the vicarious liability issue:

In many cases involving issues of vicarious liability in either sense above, whether or not the relationship is one of employment, the focus is upon the second step of the inquiry. It is essential in such cases to consider the conduct of the parties subsequent to the contract that establishes their relationship, especially the conduct of the person whose actions have caused the injury. Hollis was a case of such vicarious liability. Since the contract between the parties was not entirely in writing, the subsequent conduct of the parties was necessary to establish the terms of their agreement. But it was also separately necessary to establish satisfaction of the second step of the vicarious liability inquiry.[75]

320 The decisions in Scott v Davis ('Scott'),[76] Hollis, Sweeney and CFMMEU are concerned with the dichotomy between employee and independent contractor, and address vicarious liability in that context. Those cases authoritatively establish that an employer will generally be vicariously liable for the conduct of its employee, and that a principal will generally not be liable for the conduct of an independent contractor. The question that therefore arises is how to apply the reasoning of the High Court in Hollis, Sweeney and CFMMEU to the question of whether vicarious liability arises in this case, given the distinct relationship between the Archdiocese and the priests.

321 In many, perhaps most cases, and in this case, the relationship between priest and church is not a commercial industrial relationship governed by a contract. Rather, it is a relationship governed by the laws and customs of the church, and the arrangements between the priest and the church organisation to which they are attached. As J Forrest J said in DP v Bird, there is no binding authority in this country on the question of whether vicarious liability arises on a non-contractual relationship between church and priest.

322 In DP v Bird, J Forrest J was required to consider whether vicarious liability arose on the relationship between the Diocese of Ballarat and a parish priest. In the course of a detailed survey of the Australian authorities, his Honour drew attention to statements by the court in Hollis and Sweeney that he considered conceived of the possibility that vicarious liability might arise from a relationship other than employment.[77] After analysing in detail the decision of the High Court in Prince Alfred College Incorporated v ADC ('Prince Alfred College'),[78] his Honour concluded:

It seems to me to be tolerably clear that the Court in Prince Alfred College did not endorse a confined theory of vicarious liability (restricted solely to an employer/employee relationship) as contended by the Diocese.

This interpretation is confirmed by the statement of Gageler and Gordon JJ, in their separate judgment:

The course of decisions in this Court and the courts of final appeal in the United Kingdom and in Canada reveals that decisions concerning vicarious liability for intentional wrongdoing are particularly fact specific. Decisions in the United Kingdom and Canada recognise that resolution of each case will turn on its own particular facts and that existing cases provide guidance in the resolution of contestable and contested questions. The overseas decisions also expose a difficulty in undertaking any analysis by reference to generalised "kinds" of case. Why? Because the "[s]exual abuse of children may be facilitated in a number of different circumstances".

We accept that the approach described in the other reasons as the "relevant approach" will now be applied in Australia. That general approach does not adopt or endorse the generally applicable "tests" for vicarious liability for intentional wrongdoing developed in the United Kingdom or Canada (or the policy underlying those tests), although it does draw heavily on various factors identified in cases involving child sexual abuse in those jurisdictions.

The "relevant approach" described in the other reasons is necessarily general. It does not and cannot prescribe an absolute rule. It does not and cannot prescribe an absolute rule. Applications of the approach must and will develop case by case. Some plaintiffs will win. Some plaintiffs will lose. The criteria that will mark those cases in which an employer is liable or where there is no liability must and will develop in accordance with ordinary common law methods. The Court cannot and does not mark out the exact boundaries of any principle of vicarious liability in this case.

As has been seen, other jurisdictions have moved away from the position advocated by the Diocese. The statements of the High Court in Prince Alfred College demonstrate, I suggest, that there is room for an Australian court to adopt a robust and contemporaneous approach to vicarious liability drawing "heavily on various factors identified in cases involving child sexual abuse" in overseas jurisdictions. In such cases, courts will need to "make and develop the common law, as distinct from discovering and declaring it", which may involve making judgments about "[i]dentification, modification or even clarification of some general principle or test ... in the context of, and by reference to, contestable and contested questions".[79]

323 The overseas jurisdictions referred to were Canada and the United Kingdom. His Honour analysed the Canadian decision of Bazley v Curry ('Bazley'),[80] and the principles set out by McLachlin J to determine whether vicarious liability exists. Those principles was later applied in BN v Anglican Church[81] to hold that an Anglican diocese was liable for sexual assaults of a young girl by a priest while at Sunday school. The United Kingdom decisions analysed by J Forrest J were Maga v Archbishop of Birmingham ('Maga'),[82] and Various Claimants v Child Welfare Society.[83] In both cases, the church defendant was held vicariously liable for the sexual abuse of minors by priests who were not in an employment relationship with the defendant. The decisions in each jurisdiction considered the second vicarious liability step, resulting in development by McLachlin J in Bazley of the 'enterprise risk' test and confirmation in Maga of the test that the impugned conduct of the employee was so closely connected to employment that it would be fair and reasonable to hold the defendant liable. These tests differ from the 'relevant approach' described by the majority in Prince Alfred College, and have not been adopted in Australia. The real relevance of the Canadian and United Kingdom authorities to DP v Bird and this case relates to the first vicarious liability step and lies in consideration of whether vicarious liability arises on the particular relationship between priest and church, where the relationship is not contractual or one of employment.

324 Responding to a submission by the defendant that Sweeney was binding and confined vicarious liability to an employment relationship, J Forrest J said:

The only "door" that was shut by Sweeney was that limited to the relationships between persons engaged to perform work on behalf of others in the context of commercial and industrial settings as independent contractors. That door remains closed. Any broader construction, such as the one submitted by the Diocese which endeavours to limit vicarious liability outside of this context, is inconsistent with other statements of the High Court both before and after Sweeney.

...

Sweeney does not resolve the "contested or contestable" issues in this case. The facts of this case raise questions unanswered by Australian legal doctrine, namely whether the wrongs of a person who is clearly not an independent contractor can be imposed on a second person with whom that first person has an ongoing, defined and close relationship with authority vested in the first person, albeit that it is not one of employment (in an industrial or contractual sense). And, if so, how the imposition of liability is to be assessed. This is a crucial contested and contestable issue. These are issues that this Court, and not an appeal court, is uniquely placed to posit an answer - at least until it reaches a higher court.[84]

325 With respect, I agree with J Forrest J's analysis of the first vicarious liability step in DP v Bird.

326 The defendant criticised DP v Bird as being wrongly decided for three reasons. First, the decision in Sweeney, affirmed by Gordon J, Gaegler and Gleeson JJ in CFMMEU,[85] is authority for the principle that vicarious liability will only arise from an employment relationship. The defendant submitted the Sweeney distinction permits only two categories relevant to the first vicarious liability step, namely employees and independent contractors, reinforced by the High Court's approval of an earlier refusal in Scott to recognise 'a new species of actor, one who is not an employee, nor an independent contractor, but an "agent" in a non-technical sense'.[86] The defendant submitted on that authority that vicarious liability does not arise from a relationship that is 'akin to employment', because no such relationship is recognised by the law of vicarious liability in Australia.[87]

327 CFMMEU and the prior cases in that line of authority start from the position that there is a contract between the worker and the organisation. In this case the relationship between the Archdiocese and the priests is not contractual. Further, the employee or independent contractor dichotomy permits only two alternatives , neither of which apply in this case. The relationship between the Archdiocese and the priests was not one considered by the High Court in Sweeney or CFMMEU, and the decisions in those cases do not authoritatively dispose of O'Connor's vicarious liability claim.

328 The decisions in Hollis, Sweeney, and CFMMEU do remain relevant to the consideration of the first vicarious liability step on the facts in this case. As I have already noted, the plurality in CFMMEU indorsed as a test for employment whether the worker was acting in the business of, and under the control and direction of, the principal or was carry on a business for himself. Subject to the need to take into account the nature of the endeavour being undertaken by the Archdiocese and the priests, that test is relevant to the necessary inquiry into the relationships under consideration in this case. Further, the principles in Hollis, Sweeney and CFMMEU, together with the acknowledged policy foundation for vicarious liability of an employer for the conduct of an employee, provide the basis for consideration of whether, by analogous reasoning, the Archdiocese is vicariously liable for the conduct of the priests.[88]

329 The second purported error identified by the defendant in relation to the decision in DP v Bird was the conflation by J Forrest J of the two distinct vicarious liability steps when considering the indicia of the relationship between the Diocese of Ballarat and Coffey. I do not accept that his Honour erred as the defendant submitted. In any event, I am required to undertake the vicarious liability analysis on the facts of this case.

330 The defendant submitted J Forrest J erred in a third way by overstating the High Court's approval of the decision in Bazley, and the utility of the Canadian authorities. I disagree. The apparent approval, which J Forrest J was referring to, related to the consideration by McLachlin J of the policy underpinning vicarious liability.[89] This was referred to by the majority in Hollis as the provision of a just and practical remedy for the harm, and deterrence of future harm.[90] In Bazley, McLachlin J translated those high level policy considerations into an enterprise risk principle. It is that principle which the majority in Prince Alfred College noted had found no real support in Australia or the United Kingdom.

331 Contrary to the defendant's submissions, J Forrest J did not indicate in DP v Bird that the tests of 'sufficiently akin to employment' or 'sufficient connection' applied by the Supreme Court of the United Kingdom in Various Claimants v Catholic Child Welfare Society were approved by the High Court in Prince Alfred College. Rather, his Honour concluded that Hollis, Sweeney and Prince Alfred College were not authority for a principle that strictly confined vicarious liability to the employer/employee relationship, but left open for consideration whether vicarious liability arose on the type of relationship under consideration, by analogous reasoning from the Australian authorities and drawing on the approach in overseas jurisdictions to cases involving child sexual abuse. I agree with the observation of J Forrest J in DP v Bird that while the decision in Prince Alfred College was primarily concerned with the second vicarious liability step, the statements in the majority judgment and the separate judgment of Gageler and Gordon JJ 'were not intended to be viewed in isolation from the issue of vicarious liability generally'.[91]

332 The defendant's further criticism that J Forrest J overstated the utility of Canadian authorities is not justified. His Honour clearly recognised that vicarious liability in Bazley was decided in the context of an employment relationship. This does not mean the analysis by McLachlin J was irrelevant to the first vicarious liability step.

333 It is appropriate to briefly consider two cases concerning a claim of vicarious liability for the conduct of a volunteer - the first being the decision of Schmidt J in A & B v Bird ('A & B'),[92] and second, the decision of O'Meara J in PCB v Geelong College ('PCB').[93] In DP v Bird, J Forrest J placed some reliance on the conclusion of Schmidt J in obiter that she could see no reason why the defendant organisation should not be held vicariously liable for the conduct of the volunteer, who it engaged. The defendant in this case relied on the judgment of O'Meara J in PCB, where his Honour said: 'In my view, the presence of a relationship of employer and employee is a necessary intermediate step or foundation in the reasoning of the High Court in Prince Alfred College.'[94]

334 Two observations should be made about these decisions. First, it is notable that in A&B Schmidt J found that the volunteer was in fact an employee of the organisation sought to be held vicariously liable. In contrast, in PCB, O'Meara J concluded the offending volunteer was not held out by the defendant in that case as a teacher of the school, but had endeavoured to infiltrate the school for his own purposes, as much as could be achieved by an outsider. In other words, the relationship in PCB between the school and offending volunteer was far removed from that of employment. Second, while that aspect of Schmidt J's analysis in A&B was directed to the first vicarious liability step, in PCB O'Meara J was responding to a submission for the plaintiff directed to the second vicarious liability step, and the judgment in Prince Alfred College. O'Meara J rejected a submission that the 'special role' given to or adopted by the volunteer in that case was by itself a sufficient foundation for a finding of vicarious liability without the need to consider the 'distinct, assigned or formal relationship between the parties'.[95] O'Meara J's conclusion as to the necessary foundation for vicarious liability must be understood in the context that his Honour was concerned with a relationship that was far removed from, rather than akin to, employment, and was addressing a submission directed to the second step of the vicarious liability analysis.

Step one - Does vicarious liability arise in the relationship between the Archdiocese and the priests?

335 The defendant submitted as follows. First, the role of priest is a permanent vocation according to vows taken on ordination requiring compliance with Canon Law and obedience to the Archbishop. The following indicia of the relationship between the Archdiocese and the priests showed they had considerable independence in undertaking their duties, and were akin to independent contractors:

(a) A priest had personal autonomy and was personally responsible for his actions.

(b) There was no oversight or supervision by the Archbishop of the day-to-day tasks of a parish priest. The Archdiocese had no role in the day-to-day functioning of the parish;

(c) Day-to-day arrangements in the parish - such as who is to say the mass, conduct weddings and funerals - were determined by the parish priest;

(d) The substantive activities of a parish priest included performing the basic roles and duties set out by Canon law, rather than directed by the Archbishop, where:

(i) the way the parish priest performs his role was largely a matter for him, so long as religious duties were performed in accordance with Canon law; and

(ii) this extended to good governance of the parish to which he was appointed.

(e) Matters such as hours of work were determined by the parish priest himself, and not regulated by the Archbishop;

(f) Priests had an absolute obligation to report matters to the Archbishop, including allegations of abuse.

(g) The degree of independence priests had in the administration of parish assets.

336 Second, the parish priest was responsible for allocating duties and tasks to an assistant priest, and they were to support each other to serve the people of God. That relationship is one of guidance and mentorship rather than employment. The vow of obedience to the Archbishop did not oblige blind obedience. The power of an Archbishop to dismiss a parish priest was subject to canonical processes and regulations. The Archbishop's letter appointing parish priests entrusted them with the parish. Because it was part of a priest's ministry to perform Sunday mass he, and not the Archbishop, was required to arrange for a replacement priest during periods of leave. Archbishops communicated with parish priests and assistant priests by way of newsletters that were informative rather than directive.

337 In summary, the defendant submitted the relationship between the priests and the Archdiocese was not one of employment or so like employment as to satisfy the first vicarious liability step, and the court cannot impose vicarious liability on the basis there was a relationship 'akin to employment'.

338 The defendant's submissions fail to address the central question posed by the plurality in CFMMEU, namely in whose business or undertaking were the priests engaged? In other words, did the priests work in the undertaking or endeavour of the Archdiocese, or did each carry on an undertaking or endeavour of his own? In CFMMEU, the majority emphasised the obligations by which the parties are bound in a relationship, and the degree of control by an organisation over a worker are particularly relevant to an assessment of whether a relationship is properly to be regarded as a contract of service or a contract for services.

339 The Archdiocese was the Catholic church in the territory it covered. No other iteration of the church existed or operated within that territory. All Catholic laypersons, religious and priests in the territory of the Archdiocese were part of the Archdiocese.

340 The very significant control the Archdiocese enjoyed over the priests is evidenced by a number of features of the relationship.

341 First, a person was required to undergo lengthy seminary training and studies before being ordained a priest in the Diocese. There was a process for assessment of applicants for entry to the seminary. The seminary curriculum was controlled by the Archdiocese. It was necessary for a seminarian to apply to take orders, including for ordination to the priesthood. The Archbishop received reports on the progress of seminarians. Satisfactory completion of seminary training was necessary for appointment as a priest.

342 Second, at ordination a priest made a promise of fidelity or obedience to the Archbishop.

343 Third, after completion of seminary training and ordination, priests were appointed to roles by the Archbishop. Often on appointment a priest was required to make an oath of obedience to the Archbishop.

344 Fourth, as Dr Austin said, a priest was obliged to obey the instructions of the Archbishop and church law. Father Dillon said in practice, in the 1960s and 1970s, there was a strong emphasis on the control and supervision of priests by the Archbishop. I accept that while there may have been occasions when more senior priests questioned a direction from the Archbishop, there was an obligation that instructions be followed. Further, as Dr Austin explained, a priest ignoring instructions or violating the law he was bound to obey would face the consequences.

345 Fifth, a priest's fundamental responsibilities were set out in the Canon Law, comprised of the Code and other church laws, including those enacted at the level of the Archdiocese. Priests were also obliged to act in accordance with customs communicated by the Archdiocese.

346 Sixth, properly understood, the fact that a priest was obliged to minister to the Catholic community, and had some discretion about how to perform that role on a day-to-day basis, did not lessen the control of the Archbishop. As the plurality observed in CFMMEU, the rights and obligations under a contract of employment may in some circumstances be impacted by statutory or award provisions.[96] In this case the equivalent is the Code and aspects of the Canon Law enacted external to the Archdiocese. The only way in which a priest could become entitled to minister to the Catholic community in the Archdiocese was pursuant to the Archbishop's appointment. The Archbishop's letter of appointment expressly gave the priest 'the faculties, duties, rights and privileges, according to the Code, to our diocesan statutes and to the approved customs', and thus permitted the priest to minister to the faithful in the parish in accordance with Canon Law. The Archbishop had absolute control over whether a priest was appointed to perform a role in the Archdiocese, and was given the right to minister to the faithful. The significance of control by the Archdiocese was not diminished because a priest had some day-to-day discretion about how to perform his role in a parish. That discretion was confined by the Code, the Canon Law and the direction and supervision of the Archbishop. Further, a priest's discretion should not be overstated. He was not entitled to preach something other than the Catholic faith, or inconsistently with the Canon Law or customs communicated by the Archdiocese.

347 Seventh, the Archbishop could terminate the appointment of an assistant priest without reason. A parish priest had a right of tenure, fair hearing and appeal that made the process of terminating an appointment more complicated. However, in most instances priests accepted, without objection or resorting to an appeal, directions from the Archbishop changing their appointments. Further, the Archbishop had authority to initiate a process leading to termination if the parish priest objected.

348 Eighth, the Archbishop could direct where a priest was to live and, therefore, who he was to live with. The Archbishop did not control a priest's hours of work in the conventional sense applying to an employee. However, this should be understood in the context that a priest was always required to be on duty in case of emergency. Further, the priest was responsible for administering the sacraments, including Sunday mass.

349 Ninth, there was an even greater level of control and supervision of assistant priests. The Archbishop had power on appointment of an assistant priest to direct that he perform particular tasks. The parish priest supervised and directed the activities of an assistant priest within the parish, and provided reports to the Archbishop as to the assistant's progress. However, the authority to direct or discipline the assistant priest rested with the Archbishop.

350 Tenth, a priest was entitled to annual leave. Subject to important times of the year, such as Easter and Christmas, a priest had some autonomy as to when to take leave. However, the priest was obliged to arrange a locum for the period of his absence. Further, in practice, priests advised the Archdiocese in advance when they intended to take leave.

351 Eleventh, while there was no formal entitlement to sick leave, WorkCover or long-service leave, a priest was financially supported by his parish, or by the Archdiocese, during periods of incapacity caused by ill health or injury. I note that in 1957, as an assistant priest, Gannon sought permission to be absent from his parish, and to be exempt from a general retreat, during a period of ill health. Priests were entitled to apply for sabbatical leave which, if granted, was funded by the priest's parish, the Archdiocese and his own resources. A priest was expected to engage in some educational activity during the period of sabbatical leave.

352 Twelfth, in most circumstances priests were not paid by the Archdiocese. Priests working in parishes were paid from donations made by parishioners during the first collection at Sunday mass. However, the Archdiocese controlled a priest's remuneration in a number of ways. Access to the collection donations was only available if a priest was appointed to a parish position. The amount collected varied between parishes, so that a priest might receive a relative advantage if appointed by the Archbishop to a more well off or generous parish. In the 1960s Archbishop Knox developed an equalisation system, involving contribution of collection donations to a central fund, to ensure every priest received a minimum stipend and necessary financial assistance upon retirement. Each priest appointed to a parish was entitled to be accommodated at the presbytery, and to have his food and household expenses paid from collections. Priests were also provided with housing after retirement if required. The Archdiocese was obliged to provide a priest with sustenance and support in the event of impecuniosity.

353 Thirteenth, priests were required to wear vestments during sacraments. At other times priests could be identified by the form of their dress, including a Roman collar and lapel pins. The manner of operation of the Archdiocese encouraged identification of priests as representing the organisation that was the church.

354 The Archdiocese was the Catholic church in the territory it covered. As Dr Austin explained:

Therefore the Archdiocese of Melbourne is described as the community of Catholics, lay persons, clergy and religious, who reside in accordance with the norms of canon law within the territory that circumscribes the Archdiocese. The Pastor of the Archdiocesan community is the Archbishop who by virtue of his office has immediate and proper power for the governance of the Archdiocese that he exercises subject to the authority of the Pope.

...

As the Pastor of the Archdiocese of Melbourne, Archbishop Knox's role was expressed in relation to three fundamental ministries: the teaching of the Catholic faith ..., the celebration of the Church's worship ..., and the governance of the community ... which ministries were entrusted to him to carry out in the name and by the authority of Jesus Christ. In the carrying out of these ministries Archbishop Knox was assisted by the priests especially parish priests, and also by religious and lay persons.

The Archbishop had the responsibility to ensure that the Catholic faith was taught in fidelity to the teaching of the Church especially in regard to preaching in the parishes and religious education in schools and educational institutes. The Archbishop also had the responsibility to ensure that the public worship of the Church was celebrated to provide all the faithful with the opportunity and grow in their vocation as the followers of Christ. In respect of his ministry of governance canon law provided the structures to be established within the Archdiocese to enable the Church to carry on its mission.

As they share with bishops the one priesthood of Christ, priests are the primary co-workers of the Archbishop and thus a particular relationship exists between them marked by the respect and obedience of priests.

The endeavour being undertaken by the Archdiocese largely consisted of priest ministering to the faithful in parishes. The work of the priests was absolutely central to that endeavour. A priest could only work in the Archdiocese with the approval and by appointment of the Archbishop, in accordance with the laws of the church and the customs and instructions communicated by or on behalf of the Archbishop, and only after having made a promise of obedience to the Archbishop. It is impossible to say that a priest in the Archdiocese was undertaking an endeavour of preaching the Catholic faith and ministering to the Catholic faithful on his own account. The priest was working in the endeavour that was under the control of the Archbishop.

355 I conclude that priests, including Father Connellan and Gannon, were in a relationship with the Archdiocese that was akin to employment. I reach this conclusion by analogy from the principles enunciated by the High Court in Hollis, Sweeney, and CFMMEU relevant to the dichotomy between employee and independent contractor.

356 I conclude that vicarious liability arises on the relationship between the Archdiocese and the priests. I find for O'Connor on step one of the vicarious liability analysis.

**Step two - Did the priests' role provide the opportunity and occasion for the abuse - ** Prince Alfred College?

357 The defendant submitted that the Court could only get to the second step in CFMMEU on the exceptional basis as determined in Colonial Mutual Life, where the High Court held that a person is not liable for the conduct of an independent contractor unless the person has directly authorised the act that amounts to the tort. Because there was no such evidence in this case in relation to Father Connellan's failure to report the BTS complaint, or Gannon's abuse of O'Connor, the case should fail.

358 The simple answer to the defendant's submission is that I have not relied on the exception in Colonial Mutual Life to find for O'Connor on step one.

359 In relation to the abuse by Gannon, the defendant submitted the approach in Prince Alfred College requires consideration of:

(a) any special role that the employer has assigned to the employee and the position in which the employee is thereby placed, vis -à-vis the person abused; and

(b) whether the apparent performance of that role created the 'occasion' for the wrongful act. Relevant features include matters such as authority, power, trust, control and the ability to achieve intimacy with the person abused.

360 The defendant submitted no records exist as to the precise role allocated to Gannon as assistant priest at Kilmore. Gannon did not have any formal role at the primary school. At times he wore priest garments, and at other times was casually dressed. Gannon did not visit O'Connor's home, or have any relationship with his family.

361 The defendant submitted the first occasion of abuse was an elaborate ruse concocted by Gannon, using his role as an assistant priest to facilitate his criminal intention to take a child and abuse him. There was no special role assigned to Gannon that led to the first abuse and no apparent performance of his role at the time. From the outset this abuse was a product of evil criminal intent, not associated with the role of assistant priest. Similarly, the second and third occasions of abuse formed no part of Gannon's role as an assistant priest, and resulted from his ongoing criminal intent.

362 In relation to Father Connellan the defendant submitted that his wrongful act of silence, having heard the BTS complaint, did not form any part of his role as parish priest. Father Connellan had no connection with O'Connor at any time.

363 The relevant approach to the second step in the vicarious liability analysis was described by the majority in Prince Alfred College as follows:

In cases of the kind here in question, the fact that a wrongful act is a criminal offence does not preclude the possibility of vicarious liability. As Lloyd v Grace, Smith & Co shows, it is possible for a criminal offence to be an act for which the apparent performance of employment provides the occasion. Conversely, the fact that employment affords an opportunity for the commission of a wrongful act is not of itself a sufficient reason to attract vicarious liability. As Deatons Pty Ltd v Flew demonstrates, depending on the circumstances, a wrongful act for which employment provides an opportunity may yet be entirely unconnected with the employment. Even so, as Gleeson CJ identified in New South Wales v Lepore and the Canadian cases show, the role given to the employee and the nature of the employee's responsibilities may justify the conclusion that the employment not only provided an opportunity but also was the occasion for the commission of the wrongful act. By way of example, it may be sufficient to hold an employer vicariously liable for a criminal act committed by an employee where, in the commission of that act, the employee used or took advantage of the position in which the employment placed the employee vis-à-vis the victim.

Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the "occasion" for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.[97]

364 For the following reasons, I conclude that the Archdiocese is vicariously liable for Gannon's abuse of O'Connor.

365 First, Father Dillon described the enormous respect that was accorded to the position of priests in the Catholic community, and the very significant sense a young child would have of the authority held by a priest. Likewise, Father Caddy spoke of the huge trust built up by the church with the Catholic community over centuries, and the belief that the church would be safe and would care for children. Evidence of the priests was entirely consistent with that of O'Connor, who said in effect that he viewed the priests as God. Also consistent is Witness 2's evidence as to the trust and respect afforded to priests that gave Gannon the opportunity to achieve intimacy with him. Appointment by the Archdiocese as an assistant priest at Kilmore clothed Gannon with significant authority, power, trust and control over the children of parishioners, including O'Connor.

366 Second, Dr Austin, a well-qualified and expert Canon lawyer, said in terms that the abuse of O'Connor occurred in the context of Gannon fulfilling his duties as an assistant priest.

367 Third, both Father Caddy and Father Dillon spoke of relevant features of the assistant priest's role. These included the ministry to young people being in the domain of assistant priests, who were encouraged to engage with students at schools, attend to church duties to do with young children, and engage in outside activities with or including children such as sports and home visits. The role of the priest included offering spiritual guidance in a situation where he may be alone with a child, for instance with an altar boy during preparation for mass, or as part of an out of school activity. Dr Austin said schools were under the control of the parish priest, and one role of the assistant priest was to do whatever was necessary to ensure children at the school received a Catholic education. It was consistent with Gannon's role that he would be on school grounds from time to time, may enter a classroom to speak with nuns or teachers, and may ask a student to undertake certain tasks. Father Dillon said priests were constantly being invited into the school community for any number of reasons, including talking to children and providing religious instruction. I conclude that provision of unsupervised pastoral care of children in the context of parish schools and school students, the church and altar boys, and school sports and sporting facilities associated with the church, was part of Gannon's role as an assistant priest.

368 Fourth, Witness 2 gave evidence that as a schoolboy he was asked to perform tasks at the presbytery that were relevant to Gannon's role as assistant priest. This evidence sits comfortably with the evidence of Father Caddy and Father Dillon set out above.

369 Fifth, Father Dillon and Father Caddy both described the centrality of pastoral care to the role of a priest in a parish. As Father Dillon explained, that role could involve a priest developing close social connections with parishioners.

370 Sixth, Gannon himself described his role as including giving tuition to students, arranging for a student to undertake tasks for him, and taking boys away on camping trips.

371 Seventh, the authority, power, trust, control and ability to achieve intimacy associated with Gannon's role as assistant priest at Kilmore are directly relevant to his abuse of O'Connor. In the case of the first assault, Gannon's role as assistant priest allowed him to enter the school and O'Connor's classroom, and to arrange for O'Connor to be given in to his care and isolated with him during school hours. I infer the nun in question allowed this to occur because Gannon was an assistant priest. Gannon's role as assistant priest officiating at mass provided the opportunity for him to be isolated with O'Connor and to perpetrate the second abuse. His position of power and authority over O'Connor as a young altar boy was the occasion for the abuse. Similarly, the third abuse occurred in circumstances where Gannon was supervising the Assumption College pool.

372 It was only possible for Gannon to achieve intimacy with O'Connor because of his status and authority as an assistant priest. As a consequence, no one questioned him being alone with O'Connor.[98]

373 I conclude the special role of assistant priest at Kilmore to which Gannon was appointed by the Archdiocese provided both the opportunity and the occasion for his abuse of O'Connor. I conclude the Archdiocese is vicariously liable for Gannon's conduct.

374 I reach the same conclusion in relation to the failure by Father Connellan to report the BTS complaint. The parish priest was given the authority and responsibility to minister to the Catholic faithful in the parish in accordance with the Code. That authority and responsibility extended to receiving and responding to complaints of sexual abuse of a minor by a priest. In the ostensible exercise of that authority, Father Connellan received and rebuffed the BTS complaint.[99] I conclude the Archdiocese is vicariously liable for Father Connellan's failure to report the BTS complaint to the Archbishop as required by Canon Law.

375 I have concluded, for reasons stated above, that O'Connor's claim is properly made against the Archdiocese as if it were a corporation at the time of relevant events. If that conclusion is wrong then the relationships that require consideration are those between Archbishop Mannix and Father Connellan and Archbishop Knox and Gannon. In each case, for the same reasons I have already set out, my answer to the two vicarious liability questions would be the same. In that circumstance I would find that Archbishop Mannix was vicariously liable for Father Connellan's failure to report the BTS complaint, and that Archbishop Knox was vicariously liable for the abuse of O'Connor perpetrated by Gannon.

376 I have concluded that the direct and vicarious liability claims brought by O'Connor against the Archdiocese succeed. Before analysing the damages that should be awarded to O'Connor I will summarise evidence about the effect of the abuse on him, and other relevant events in his life.

377 O'Connor said after the first assault he felt like he was dead, that Gannon had murdered him, and that the little boy he used to be had gone forever. He said when he was a young boy a priest was like God to him, so it felt like God had abused him.

378 O'Connor said before being assaulted his grades were good, and he particularly enjoyed arithmetic, writing and spelling. After the first assault he could not concentrate at school, was always thinking about what had happened, and was scared Gannon would come in and ask for him to go for another drive. Gannon stalked him, trying to get him alone again. He had to hide from Gannon and was always trying to work out ways to avoid him when going home from school. He said the assaults tilted him on his axis. He always felt scared and fearful. He was no longer interested in learning, wagged school a lot and his grades went downhill.

379 O'Connor said before the abuse, he played games a lot with his sister, brothers, and friends. Afterwards he was not interested in playing, and just wanted to be by himself. He said he felt as if his family could see through him to his guilt and shame.

380 O'Connor said one day, when he was 12 years old, he thought about how he was going to handle the pain and shame he felt. He rode his bike to a quarry near Kilmore East, where he crawled out onto a very narrow ledge above a cliff. He said sorry to God, then counted down from 10, but could not jump. He tried again, saying to himself 'This time I'm going to jump', but he could not do it. He was crying as he crawled back along the ledge. When he got back to his bike he felt exhausted. He did not tell anyone about what happened at the quarry. He said he only had himself, and that he did not trust adults too much.

381 O'Connor attended Assumption College for a year. He did not see Gannon there as often as he had at primary school, but remained terrified of being near Gannon, and felt he had to get away. He was often in trouble and being disciplined at school. When he was 13 years old he went to Broadford High School. He said it was easier there because he did not have to be worried about Gannon being around, but he did not join in the sports, seemed to be different to the other boys and was a bit of an outcast. He continued to wag school a lot.

382 Occasionally O'Connor stayed with his Uncle Bill and Aunty Pat in Shepparton. He remembered his Uncle Bill telling him if anything was wrong he always had a home with them. When he got back to Kilmore he felt everything was closing in on him and decided he was getting out of this place. When he was 13 or 14 years old, he took the 40 cents his mother gave him for lunch, put some clothes together, got out on the highway after midnight and hitchhiked to Shepparton. He stayed with his uncle and aunt, and they enrolled him in school at Shepparton.

383 O'Connor said he had smoked since Gannon gave him his first cigarette on the day of the first assault. He is trying to reduce his smoking and is down to 15 to 20 a day. When he was younger he smoked 30 to 35.

384 He started sneaking his mother's beer when he was about 12 years old. He took as many as he thought he could get away with, and also pinched beer from the fridge at his friend's house. He said it did not take much to get him drunk at that age. By the time he was 15 years old he could afford to buy beer and big flagons of wine, which he would 'spew up' when he first started drinking because it made him sick, but he persevered. He drank because of the pain, and because he could not get Gannon out of his head. It seemed like the only way he could numb the pain and forget for a time. He drank until he could not drink any more. He said that pattern has continued to the present.

385 O'Connor said he tried to leave school before he turned 15 years old, but was not given an exemption. He left on the day he turned 15 as he was not learning anything, and was always getting in trouble.

386 O'Connor described his life after school continuing in a pattern involving grossly excessive alcohol intake, many relationships with women, itinerant low skilled work, consuming alcohol at work and being disciplined or sacked, and committing offences under the influence of alcohol.

387 While he was still at school his uncle got him a part-time job at Woolworths, and when he left school he started working full-time. He then went to work at Campbell Soups, which was boring, but the pay was much better. He bought a mini bike with his wages, and would buy boxes of beer or bottles of wine, and ride out to an old house and sit and drink on the weekends. During a drinking session with a fellow who was a few years older, they agreed to chuck in their jobs, buy a car and drive around Australia. O'Connor said they were arrested when they got to South Australia, held for a week, then put on a train home.

388 Next he worked as a farmhand on a dairy farm near Shepparton. The farmer drank a lot, and always had a fridge full of beer, but nothing to eat in the house. He and the other farm worker were told by the farmer they could help themselves to the beer. One day the farmer went into town to get them something to eat, but he did not come back. They drank beer until they were drunk, then decided to drive the farm tractor into town to get something to eat. He was arrested, charged with larceny of the tractor, exceeding 0.05 and unlicensed driving, and sentenced to probation for 12 months.

389 In March 1974, he was convicted of theft of a motor vehicle, driving under the influence and driving unlicensed. O'Connor thought that was an occasion when he was drunk, stole a dry-cleaner van, drove out into the country and when the clutch gave way, abandoned the van, and walked to an old railway station where he drank the rest of his beer and spent the night. In July 1974, he was convicted of theft of a motor vehicle and driving unlicensed. He was in Mooroolbark, drunk, and decided to take a car and drive back to Kilmore.

390 O'Connor said around this time he got a tattoo on his right forearm that reads 'Born to Lose', because that is how he felt. He said he knows he mucked up his life. He feels worthless and cannot put up with what is inside him, and drinks to blot it out.

391 In 1974, O'Connor was sentenced to a period of youth detention in Turana Youth Training Centre. O'Connor said he was held in Turana for about a month or two while he was classified, and was then sent to Morning Star Catholic Boys' Home in Mount Eliza. Somebody brought a hacksaw into the dormitory, and he escaped with a group of boys. He was apprehended in Shepparton, convicted of escape, returned to Turana, then brought back to Morning Star. He received an additional two months' sentence, which was reduced to seven days on appeal.

392 After he was released from Morning Star, O'Connor went to live with his father in Ballan, who got him a job with a carpenter, building cabinets. He became friendly with the publican's son because they drank together. One day he went to a local football match where his friend was the boundary umpire. O'Connor said he was drinking, but ran out of beer, and decided that he would go and get more. Without asking, he took his friend's motor vehicle, drove to a pub that was closed, then decided to drive to Shepparton. He said he got as far as Bendigo when he was noticed by the police. There was a chase, and he crashed into a police car. O'Connor said he was pretty drunk and was glad the police stopped him. He was convicted on 7 April 1975 at the Bendigo Magistrates' Court with theft of a car, driving under the influence and dangerous driving, and was sentenced to six months' imprisonment.

393 O'Connor said when he was 17, he had a $300 fine that he could not pay, and a fellow that he drank with suggested they go to New Zealand, so he agreed. He said they drank port wine and brandy, which they called mellow moons. They had a job teed up in a blood and bone factory in Dunedin. They were given overalls and boots, and they worked until smoko on the first day, but his companion could not cope with the work so they went to the pub.

394 He then got a labouring job at a new hospital that was being built, which he quit after about two months to work as a cook in Wanaka. However, at a party before going to Wanaka, he decided to stay, and gave the job to a friend. Later he got a part-time job at a printing firm, then worked as a delivery driver for the same firm for about six months until he left New Zealand. During his stay O'Connor lived and was associated with a group involved in illegal gambling and other similar activities.

395 After he returned to Australia in about late 1976, O'Connor discovered that a girlfriend he was with in New Zealand was pregnant. He said they kept in contact by correspondence, and he sent money for the baby. Some years later he helped her migrate to Australia and they married and had three more children.

396 In January 1977, O'Connor was convicted of wilful damage and sentenced to three months' imprisonment at Pentridge. He had gone out with his girlfriend and a mate drinking, and his girlfriend left because she said she felt sick. At closing time he got a taxi to her place, to find there was a big party going on inside. When he knocked on the door his girlfriend opened it, told him the relationship was over, and slammed the door in his face. He picked up a stone and threw it at the window, breaking it. A number of men came out and they had a fight. In February 1977, he was convicted of theft of a motor vehicle and driving while disqualified, and sentenced to two months' imprisonment.

397 O'Connor said he was in many relationships that broke up because he drank too much, and his girlfriends would not put up with it. When he was drunk he was 'a complete idiot', and disrespectful to his girlfriends. He was violent towards women on two occasions, about which he was ashamed and had apologised on many occasions.

398 O'Connor said when he was about 19 he started a relationship, and in 1979 his son was born. He and his partner moved to Melbourne, and he worked at a hotel until they sacked him for drinking. He then worked part-time at another hotel in Ascot Vale, which was attended by a lot of racing people and sportspeople. This led to a job with a catering company working at race meetings. He was there about six months. One night he got drunk sitting in his backyard, and went to sleep in a paddock. When he woke up he discovered that his partner and son had gone, and he could not find them. He packed up and went back to Shepparton, but still could not find his partner. He said he continued to drink heavily.

399 O'Connor said he made two further suicide attempts around this time. On one occasion he cut his wrists and on another he took a large amount of his brother's medication. Following the overdose, he was in intensive care and then in hospital for about a week where he saw a psychiatrist who wanted to make an appointment for him. O'Connor said he thought that if he saw the psychiatrist they would put him away forever because he was just a useless drunk. He said it was Gannon, and the demons inside him that made him want to kill himself.

400 In the early 1980s O'Connor was living in Sydney. He worked as a hotel porter and lift attendant for a few years. He said he would drink sweet sherry or whatever else was available with homeless men in Kings Cross. One night they were drinking at Bondi Beach. At the time, he was working as a lift operator at the West End Hotel, and it was his pay night. It was warm, so he took off his clothes and went for a swim, then returned to the sand, drank some more and passed out. He awoke the next day about lunchtime because the sun was beating down, and there was a big semicircle of people around him. He was burnt to a crisp. He had to find his clothes. When he did, he discovered somebody had stolen his pay money. He got a taxi home and paid the driver from money he had given his partner the previous day.

401 In the mid-to-late 80s O'Connor worked as a hotel porter and bar attendant at a motel in Shepparton.

402 O'Connor obtained his last real job in February 1988, working as a factory hand for a lighting company. He started on the day shift, but later moved to the night shift because it paid more money. Because of his drinking and taking time off he was warned at least four times, and was nearly sacked. However, the boss, who was a good bloke and favoured him, told him he should come to work more often and not have so many days off. He was retrenched in September 1991, and was given a reference by the boss that reads in part:

We have found Mr O'Connor to be an excellent and loyal employee and would gladly recommend him to any prospective employer.

It is with regret that we have had to retrench Mr O'Connor with the closure of our night shift due to reduction in our workload. We wish him every success in the future.

403 In 1992, O'Connor said he drew on his superannuation to buy a car. The next day, on his way back from visiting his cousins in Albury, he ran into the back of another car. He was charged with driving under the influence and reckless driving, sentenced to nine months, to be served as an intensive corrections order, with a requirement that he attend alcohol and drug treatment. The drug rehabilitation was at Benalla where he stayed for about three weeks. When he was allowed to have a weekend off he went straight to a pub with a mate who was also in the program, which put an end to the rehabilitation program.

404 O'Connor said in the early 1990s he did a bit of fruit picking work to get money for drink, and was on unemployment benefits.

405 Between 1995 and 2002, O'Connor was treated at the emergency department of the Goulburn Valley Hospital on numerous occasions following assaults. On each occasion the clinical notes record that O'Connor was intoxicated.

406 O'Connor was challenged on the basis that it was his decision-making that led to him being involved with a group of boys binge drinking, leaving jobs, leaving relationships and not having contact with his biological children, stealing vehicles, getting into trouble with police and being jailed for periods of time. O'Connor agreed and said that he was just crying out for help, that he could not think straight, and 'I was drunk all the time and I'm to blame, and I'm ashamed'.

407 O'Connor was asked in cross-examination about his description of his life in New Zealand in the 36 years document:

So, as far as the wine, women and song and having a good time and life being comfortable, that's the life that you chose to live and that's the way you described it. Used later, when putting this together, correct?---Well, you make it, ah, sound as if it was good, then, but I was always drunk. You just let the world go by, you get drunk and let the world happen.

The disability support pension, alcohol abuse and back injury

408 O'Connor said in September 1993 he was assaulted by a group of men and taken to hospital. He said the assault included being kicked in the base of his back, and this caused some back pain. The hospital notes record facial injuries, a complaint of tenderness at the left 10th rib posteriorly, and that O'Connor was 'intoxicated++'. The recorded history included that O'Connor had been drinking for approximately 12 hours.

409 On 4 October 1995, O'Connor was seen at the hospital emergency department complaining that he had been assaulted. Recorded observations refer to a wound to the right wrist and fifth finger, facial and knuckle abrasions and a complaint of back pain. The notes record O'Connor had been drinking that night, and was intoxicated. On my reading the notes suggest that the finger was the major injury and the focus of treatment. O'Connor reattended for further treatment to the finger on 6 October and 16 October. There is no reference in the hospital notes on either of those occasions to back pain. The notes of the 16 October attendance record he smelled strongly of alcohol.

410 On 24 October 1995, O'Connor's treating GP, Dr Guymer, completed a sickness allowance medical certificate for social security purposes. Dr Guymer diagnosed the presenting problem as alcohol abuse and certified O'Connor unfit for work. Under 'prognosis' Dr Guymer ticked boxes indicating O'Connor would be able to work in three months, and that there were unlikely to be long-term limitations on his ability to work.

411 In November 1995, O'Connor applied to transfer from Newstart benefit to the disability support pension. On 30 November 1995, Dr Guymer completed a more comprehensive medical report in support of O'Connor's pension application in which he diagnosed chronic alcohol abuse with a date of onset 25 years ago, lower back pain and left shoulder pain. Under major historical and clinical features of these conditions Dr Guymer wrote:

Patient dates problem from 13 years old.

...

History of - driving over 0.05

• disqualified for 6 years

• marriage breakup

• job loss due to alcohol

best job from 1987 to 1990 (very understanding boss and wife helped)

• lots of car accidents related to alcohol

• various assaults

412 Dr Guymer listed the long-term conditions as alcohol abuse and back pain. He wrote that O'Connor's ability to work was limited by 'Unreliable attendance, poor concentration, lower back pain.'

413 He wrote that O'Connor's condition was deteriorating progressively 'with development of medical complications of alcohol abuse.

414 Dr Guyer wrote, as reasons for his opinion that O'Connor was unfit for work: 'Long term alcohol abuse. No partner to support patient. Isolated.'

415 In December 1995, an Australian government health service medical officer report was prepared by Dr F Harder, who gave the following general assessment:

This 38 year old applicant has had an alcohol abuse problem for 25 years which has proved refractory to many attempts at rehabilitation. He has also suffered a number of injuries as a result of falls and assaults when intoxicated and these have left him with a painful left shoulder, deformed right fifth finger and mildly restrictive low back pain. His family relationships have been disrupted and he has not been able to hold down a job for many years.

Under the circumstances I do not believe this applicant employable in any category at this time, a circumstance which will continue for two years, at least, when a review would seem appropriate.

416 In October 2005, Dr Guymer completed a further report supporting O'Connor's ongoing pension entitlement. He made a diagnosis of chronic alcoholic dependence, and wrote that O'Connor was then drinking 24 standard drinks per day. He wrote: 'Alcohol prevents him from getting job.' Dr Guymer made no reference in that report to O'Connor suffering a low back condition.

417 The clinical notes of some of O'Connor's treaters were tendered. Dr Guymer's records, from Wyndham House Clinic in Shepparton relate to attendances between 2001 and 2020. The notes record prescriptions of Celebrex for back pain in October 2005, August 2006, February 2007, March 2008 and July 2010. An entry on 7 October 2005 records: 'Standard drinks on a day drinking alcohol: 24' and 'Days a week patient usually drinks alcohol: Every day'.

418 The reason for contact in that entry is recorded as: 'Back pain - Lumbar', 'Gastritis' and 'Alcohol addiction'.

419 There are seven entries in the Tatura Medical Centre records between 2000 and 2005. There is no reference in those notes to back pain or alcohol. The notes do record prescriptions of Voltaren, but it is not clear what for.

420 The SANA Medical Centre records include entries between 2011 and 2022. Relevantly the notes record:

(a) A history in January 2011 of two months' back pain.

(b) Two entries in March 2011 for back pain. No reference to back pain in later entries in 2011.

(c) August 2017, back pain, Celebrex prescribed.

(d) Under social history, in relation to alcohol, the notes record 'Twelve drinks per day, one days per week.' It is not clear when this history was recorded.

421 O'Connor said since the mid-1990s his back ached occasionally. He could still garden, mow the lawn and do most other things, but avoided lifting anything too heavy. He said if he had back pain, he just took Panadol or something like it, the same as if he had a headache, and drank more.

422 O'Connor said he got the disability pension because of alcohol abuse. He said his back pain could have played a part but added that it was the alcohol abuse that stopped him from working, not the condition of his back. In cross-examination O'Connor was asked:

MR RUSH: Why do you get the disability pension?---Because I'm a drunk and I've got a bad back.

Do you not get the disability pension in 2022 because you've got a musculoskeletal problem being your back?---I might've. I might. Because I - I'm on the disability pension because I'm a drunk and I've got a bad back.

423 O'Connor said in the late 1990s he commenced a relationship with a woman named Bev, who was about 15 years senior to him. Bev was a member of a local country music club, and encouraged him to go along. He felt good while attending his first function, and after drinking a couple of beers, he got up and sang. He enjoyed it, so kept going back. O'Connor was vice-president of one club for a year and president of another club for five years. He said the clubs were mainly for elderly people. Functions were held once a month, you paid a small entrance fee, and sandwiches, tea and coffee were served. Any money raised went to charity. The club had a stage with equipment and some musical instruments. O'Connor said you could buy alcohol at the functions, which he did.

424 As president O'Connor ran monthly meetings and arranged functions. At functions he sang and did some of the MC-ing. He also attended functions at other country music clubs where he sang. O'Connor said it was like a great big community where the clubs would support one another. He said you were given two cans of beer to sing, and he would drink those then buy his own. He drank during club afternoons, and would take a slab of beer home to keep drinking.

425 O'Connor agreed he would sometimes be responsible for contacting guest artists who performed at the club's monthly functions. He agreed the boys in the committee would set up the stage and equipment, put out the tables and chairs, and that he helped along with everyone else. He agreed he would arrange for publicity through the Shepparton News and the local council.

426 O'Connor said his name was put forward to sing at the Mildura Country Music Festival, which he did on one occasion. He was paid $200, which covered his petrol but not his accommodation. He sang at a number of venues, just a couple of songs each time. He also attended the Tamworth Country Music Festival one year where he sang a number of quarter-hour shows.

427 O'Connor said a friend offered to be his manager under the name Country Edge Promotions. His friend worked as an orchard hand, and had no idea about country music or managing anyone.

428 O'Connor said he had two of his own CDs produced, and sang songs that were included on two other compilation CDs. The first compilation CD was arranged by a friend he met in Tamworth who said he would get it played on radio stations around the world. He paid about $500 to have two of his tracks included on the compilation. He did not know anything about the airplay it received, and he was never paid any royalties.

429 O'Connor said his first solo CD was called For The Good Times. He said he paid about $1,500 to record the album at a backyard studio in Clunes in about 2004 or 2005. He said over the years he had sold about 20 copies for about $20 each, and had given away many more. His second solo CD, called Memories, was released recently, but the songs were recorded over 10 years ago. The Memories CD came with a DVD of him performing in Ballarat which ran for about 45 minutes. He said he sang the songs with a karaoke backing track. He had sung some of the songs so many times that he knew them, but he had a folder with the words in a music stand on stage. Two of the songs from O'Connor's Memories CD were tendered from a webpage that showed a total of 159 views, a significant number of which were associated with the proceeding. On the DVD O'Connor is seen dropping the microphone on stage, then saying 'I've had too many wines'. He said 'I always - always drank before - before I got up. You had about seven or eight beers before you got up with - you can see I was half shot there.'

430 O'Connor agreed that on the same day he released the Memories CD at a country music club, he was interviewed on the Shepparton community radio station about the CD and his involvement in country music. He said he was comfortable speaking on the radio, and that he had had a few drinks by the time he was being interviewed. He agreed he said to the interviewer that he was devastated by the fact he was unable to sing anymore, which he said was because he got enjoyment out of it and it was a release.

431 O'Connor said that from around 2000 he worked as a volunteer radio presenter for the local community radio station. He did this for about five years, working one shift a week. Eventually he was asked to leave because he was drinking alcohol during his shifts.

432 O'Connor agreed that life was better when he was living with Bev, and was involved with the music club. He said compering at the music club was a bit of fun, and he enjoyed being centre of attention. O'Connor was asked about photographs of him singing and with other artists. It was put to him:

So that's what you were doing, you were engaging with people, meeting with people, getting people to Mooroopna Country Music Festival, that was all stuff that you could do?---It kept you occupied, it kept you occupied.

433 O'Connor said in the late 2000s his singing was deteriorating. He went to the doctor who found a growth on his vocal cord. A biopsy revealed the growth was cancerous, so he had a second operation to cut it out. He had to go to Peter MacCallum Cancer Centre ('Peter MacCallum') in Melbourne, then to Bendigo for six weeks of radiation therapy. The surgery was performed in May 2011 and radiotherapy commenced a month or so later. After the treatment he went back a couple of times to the country music clubs, but he could not sing, so he did not continue going.

434 The clinical records of Peter MacCallum contain a note from Southern Health indicating weekly consumption of 10 glasses of alcohol. In a letter to his GP in July 2011 O'Connor's radiation oncologist noted 'He is an occasional binge drinker'. Clinical entries in the course of O'Connor's radiation therapy showed he was experiencing some issues with weight matters and oral intake, and had some reluctance to provide an accurate nutritional history.

435 The Goulburn Valley Health records from around this time include an entry in April 2011 that records 'C2H5OH [ethanol] ++'. An entry in early June relating to alcohol records 'Yes - weekly (24 binge)'. A pre-anaesthetic assessment in December 2012 recorded 'ETOH socially'.

436 O'Connor said recently when he was receiving dental treatment, the dentist noticed a growth on his tongue and suggested he have a biopsy to check for recurrence of the cancer. The GP records show the diagnosis was haemangioma. There is no indication of malignancy or connection to the earlier throat cancer.

437 O'Connor said alcohol had been a feature of his whole life. When he was working, he would fill a flask with port instead of taking coffee. He was nearly discovered because people could smell it. He then put vodka and water in his flask, and would drink it at smoko.

438 O'Connor said he drinks whenever he can, as much as he can, to the extent he cannot move. If he had no money he would hock something in order to buy alcohol. He vomits regularly or passes out, and has nearly suffocated a few times. There were plenty of times where he had woken up not knowing where he was. Often he would wake up and he had wet himself and he has also soiled himself quite a few times. He does not want to stop drinking because it helps to suppress the pain. The only way he could deal with what Gannon had done was by drinking, which took some pressure off, so he drank and drank. He knows alcohol is slowly killing him, that it has lost him jobs and relationships, and got him into trouble with the police. But he said he cannot stop drinking because it is a crutch for him.

439 O'Connor said he tried to ring Gannon a number of times, and spoke to him once, but Gannon refused to meet with him. He said he wanted to give Gannon some of the hurt he had suffered. In 2007 he reported the abuse to the police. Gannon eventually pleaded guilty and was sentenced in June 2009.

440 In 2010, O'Connor applied for compensation through the Melbourne Response. He was awarded $75,000 from which he paid about $6,500 in fees to his lawyer. O'Connor said he felt unjustly done by, and that $75,000 was chicken feed for a life. He used the money to help pay off Bev's house, and they bought a car that Bev drove because he did not have a licence. He bought clothes, watches and rings for him and Bev. In 2017, he received a further payment of $64,000 from the Melbourne Response, less $1,500 for his lawyer's fees.

441 O'Connor said a couple of years after the first Melbourne Response payment Bev sold her house. Bev paid the proceeds into O'Connor's bank account as she did not have a bank card. O'Connor said there was nothing left of the money now, and he had hocked the watches, rings and other things he bought through Cash Converters, or sold them to people. He gambled a bit, but does not do that anymore, because it is a waste of money. O'Connor said there were heaps of times in the last 20 years when he had been down to his last dollar, and had to ask the Salvation Army for help.

442 O'Connor said he now lives alone in an old rented house, overlooking an airport runway. There is flat next door, but otherwise there are paddocks or businesses in the surrounding area.

443 He said he still has thoughts and nightmares about Gannon. O'Connor described dreams of being chased through the bush, falling, then waking up, which he said he had pretty often. He will not go to sleep with the light off. He gets angry because of what Gannon did to him, and he just cannot make himself happy. What makes him happy is sitting on his verandah listening to music, playing with his dogs and having a drink. He said he mostly drinks alone.

444 O'Connor said he looks after his mother, going around to her place four times a week, and ringing her every day to make sure everything is okay. He takes her to the doctors and for any tests she needs. He does her garden, pruning the roses she loves. He does some housework and cooking for her. He keeps her place nice and clean. O'Connor said he gets the carer's pension.

445 He has occasional contact with three of his children. He is not in a relationship, and feels lonely. He has a friend who will come around and help him clean his house, and his sister gives him a little bit of company. He can manage his daily chores of cleaning, cooking and shopping, and cutting the wood for his fireplace during winter. He is able to split wood as long as he does not overdo it.

446 O'Connor says he drinks until he falls asleep, but wakes a fair bit in the night. He does not feel motivated, keeps to himself, and does not trust a lot of people.

447 Jennifer Hutchinson is O'Connor's younger sister, born 18 months after him.

448 Hutchinson described her brother as a normal young boy who was very smart, loving and happy. She said they had a good life growing up in Kilmore. O'Connor was very caring and protective of his younger siblings.

449 Hutchinson said she could only remember one argument between her parents when she heard them yelling. She was not aware of any violence. Their father was a good dad, and the children were well mannered.

450 Hutchinson said it was great living with their grandparents in Kilmore, and they loved living there. They were sent to St Patrick's Catholic school because their parents wanted them to get a good education, and wanted religion to be part of that education. She remembered O'Connor being a good student, and she always heard that he was very smart. O'Connor was a great singer and a good dancer, and performed at school concerts. She could not remember anything about his job prospects as a young boy.

451 Religion was very important to the family and they were involved in church activities. As children they had a lot of respect for the Catholic church, the priests and the nuns. In those days the priests always wore pants, a shirt and a white collar.

452 Hutchinson said O'Connor changed as a teenager, became rebellious, and drank a lot. He was always in trouble. She did not know where O'Connor got his alcohol before he was 18 years old. She said O'Connor's drinking as a teenager definitely stopped him from achieving good things in his life.

453 Hutchinson said O'Connor is the black sheep of the family and is very different to his siblings. They have all had productive lives. O'Connor's whole life has been fuelled by alcohol. He was not the type of person to have a drink in the evening and go to work the next day. He goes on drinking 'for days, night and day, just drinking.' When he was younger, he used to pinch cars and all sorts of things while drunk. He would not remember doing those things the next day. She and her brothers have not had run-ins with the law, do not have problems with alcohol, and do not have mental health problems. Hutchinson said their parents were social drinkers, not alcoholics.

454 Hutchinson said five or six years ago, O'Connor turned up very drunk at a family Christmas function. He fell off a chair, was swaggering around and falling down, and swearing. This caused a rift between him and his siblings, because it was not right to behave that way in front of all the grandchildren, and they did not appreciate it on Christmas Day. Since then O'Connor has had little contact with his siblings. Hutchinson said she speaks to her brother when she sees him at their mother's house, but he is not invited to family catch-ups. She said O'Connor visits their mother a lot and does things for her.

455 Hutchinson said O'Connor was very good at his voluntary job with the local country radio station, and that she used to listen to him. That job finished because he would get drunk and not go back to work. She also saw O'Connor sing at music club functions. O'Connor was very talented and seemed to enjoy performing. Sometimes she saw him drink at those events.

456 Hutchinson said one younger brother completed a painting apprenticeship, then ran his own business and made good money. He had an accident 10 to 15 years ago and suffered serious injuries that stopped him working altogether. He and his wife of 35 years live in a nice house on an acre property which they own. They have two children.

457 Hutchinson said her other brother joined the navy after leaving school and served for six years. He then met his wife, left the navy and became a jeweller. He obtained qualifications and was the manager of a number of stores in Victoria. He lives with his wife of 32 years in a comfortable house that they own. They have five children. They own two cars and take holidays.

458 Hutchinson said she left school after year 10 and worked in a factory. She later obtained a Certificate III in childcare and worked in childcare centres and family day care. She now works three days a week at a private hospital in housekeeping, and otherwise cares for her grandchildren.

459 Hutchinson was a very direct, clear and helpful witness. I accept her evidence. Hutchinson spoke about her brother as a young boy with warmth and obvious affection. In contrast, there was a coolness and distance in the way Hutchinson spoke about her brother now. It seemed as if she was talking about two different people. This aspect of her evidence was strikingly poignant.

460 Eyre said he is a retired member of the police force who served for 46 years around Shepparton. He said as a younger man O'Connor was in and out of the cells fairly regularly. Anytime he saw O'Connor it was nearly always caused by excessive use of alcohol. At the time, O'Connor was part of a crew of people in Shepparton who had a problem with alcohol. His offending was probably more frequent than a lot of people. During interviews he never tried to hide from the fact or blame anyone else for his problems.

461 O'Connor attended with psychologist David Jones on three occasions in 2008. It appears this was arranged by O'Connor's then solicitor as part of an application to the Victims of Crime Assistance Tribunal. O'Connor prepared a document in support of that application, which he entitled '36 years of fucked up life' ('36 Years'). Jones prepared a report in which he diagnosed that, as a result of the abuse, O'Connor was suffering a depressive disorder, alcohol dependence and abuse, grief reaction, cognitive impairment and social adjustment disorder. He added the clinical sequelae of the abuse included impaired personal relationship skills and capacity, impaired occupational skills capacity, impaired cognitive function and significant loss of clarity of belief and capacity for faith in religious and moral domains. He said the mental health conditions he diagnosed continued to be active and disabling.

462 Psychiatrist Dr Tagkalidis interviewed O'Connor on one occasion in May 2020. The following is a summary of his evidence.

463 O'Connor suffers from a chronic dysthymic disorder (persistent depressive disorder), complex post-traumatic stress disorder with associated personality disruption and chronic alcohol abuse. O'Connor had also suffered from major depressive episodes into his mid-20s, but that these had abated and had not been a major feature of his emotional state in recent years. O'Connor remained vulnerable to future major depressive episodes given his ongoing underlying emotional vulnerabilities.

464 As a young child, O'Connor was developing in a somewhat compromised manner in life due to family disruption. The abuse caused a further very substantial and irretrievable detrimental effect on his developmental trajectory which resulted in major compromises in his functioning and emotional wellbeing. The abuse contributed 90% of O'Connor's long-term and ongoing emotional vulnerability, with the remaining 10% resulting from preceding family issues. The abuse had severely affected all aspects of O'Connor's life, including his personal capacity for sustained happiness and stress tolerance, intimate interpersonal relationships, social relationships and educational and vocational trajectory.

465 O'Connor had the intellectual capacity to complete his secondary schooling and possibly a tertiary degree. O'Connor certainly had the intellect to achieve a trade qualification or to become a policeman. The abuse caused disruption in a crucial period of education that caused academic learning to abruptly cease. O'Connor's career was very hampered by persistent alcohol abuse, very poor stress tolerance, erratic anger, low confidence and lack of tolerance of authority figures, all of which directly resulted from the abuse.

466 Given that O'Connor started drinking alcohol essentially straight after the period of abuse it is clear the abuse is a major direct cause of his alcohol abuse.

467 The abuse caused emotional disturbance and high levels of aggression and irritability. There is a very high association between alcohol abuse and criminal offending. It makes absolute sense that both are a direct consequence of the history of abuse.

468 Complex post-traumatic stress disorder indicates substantial early developmental traumatisation that affects the individual's personality development and entrenches dysfunctional coping strategies which become lifelong and typically influence most aspects of the person's internal and interpersonal reactions. In O'Connor's case the associated personality disruption, internal distress, interpersonal difficulties and chronic alcohol abuse have in combination had a very clear effect on the whole of his adult life. He is unable to sustain meaningful intimate relationships, is estranged from his children and has had a marginal career.

469 The early suicide attempts are very significant. Serious self-harm attempts during his teens and 20s indicate substantial emotional disturbance, personality disturbance and almost certainly major depressive periods.

470 Realistically O'Connor is stuck in chronic alcohol abuse as a horribly dysfunctional way of dealing with his emotional distress.

471 Dr Tagkalidis was asked about O'Connor's involvement in singing and country music. He said a person suffering chronic dysthymic disorder can momentarily have joy, and alcohol typically helps that process. The degree of functional capacity to play country music, organise things for the club, be a committee member and set up events does not mean O'Connor can engage in paid employment in any safe or consistent way. It is understandable that in an intoxicated state he may well be able to do something he enjoys that is music related. However, it is inappropriate that a person attend gainful employment while intoxicated. It is very commonplace that mentally ill people can function in a certain role, but continue to suffer very substantially internally. The evidence across the rest of O'Connor's life is overwhelming. He may have been able to function in a country music setting, including making superficial friends and socialising, by taking on a certain persona, aided by a substantial alcohol intake. However, that is very separate to the severe damage he has suffered underneath.

472 Dr Tagkalidis said in his clinical judgement, without hard evidence, the frequent moves O'Connor experienced as a young child, and his tense relationship with his father contributed to a degree of emotional vulnerability. If it were not for the impact of the abuse there is a high chance O'Connor would have overcome those early disruptions to live a consistent and fulfilled life. The ability of his siblings to manage successfully in terms of stable careers, relationships, being law abiding and not having substance abuse issues reinforces that those early minor disruptions were surmountable.

473 Peer groups develop as an extension of what occurs in an early family environment. Early attachment styles potentially predict the nature of the friendships that children develop into primary and secondary school years. That can be severely affected by early abuse, and certainly has been in O'Connor's case. Abuse has affected his interpersonal relationships across the whole of his life.

474 Psychiatrist, Dr Entwisle, examined O'Connor on one occasion in February 2021. The following is a summary of his evidence.

475 The following emotional state history was recorded:

Mr O'Connor described his quality of life as "sh*t." "I'm devastated." He said that he feels his life has been a waste. When very young he was happy but after the abuse he was angry, volatile and on-edge. He didn't trust people ...

There have been periods when he has been suicidal and he recalls at times feeling totally lost. At one point he enjoyed a social life and involvement with country and western music. They were his best days; that's when he had a sense of interest and enjoyment but even that was taken away from him by the cancer. ...

He is anxious. When younger he was frightened and terrified. He is still on-edge and wary.

476 Mr O'Connor was diagnosed chronic dysthymia, complex post-traumatic stress disorder of childhood, alcohol abuse and anti-social personality disorder.

477 He noted, but did not agree with, Dr Tagkalidis's opinion that O'Connor may have developed in a somewhat compromised manner due to family disruption. The conditions he diagnosed flowed from and were entirely related to O'Connor's experience of being abused by Gannon. In his opinion O'Connor's history of incarceration also flowed from the abuse by Gannon.

478 O'Connor was incapacitated for future employment.

479 O'Connor's early childhood was an itinerant existence with a certain level of instability, resulting in upheaval of normal family daily life. The breakup of his parents' marriage would have added to O'Connor's difficulties, and these were significant issues that were likely to have impacted on him in some respects. As a teenager in Shepparton he became involved with a group who his sister described as unsavoury and Eyre said had alcohol problems. This indicated there were cultural factors involved in O'Connor's offending, and that these things did not necessarily link back to the abuse.

480 The abuse had a major impact on personality development causing dysregulation, trouble with emotions, behavioural problems and having significant association with his drinking and lifestyle. There were other relevant factors in O'Connor's life, but the beginning of the change in him can be dated to the abuse. Some aspects of the trajectory of his life became reinforcing or self-fulfilling. Dr Entwisle was asked what relevance the abuse and O'Connor's reaction to it had on his life's trajectory:

Ah, it - it begins a process, I think, and he's changed, ah, he's hurt, ah, he's angry, ah, he - he can't control himself easily and he ends up associating with people who, in some - in some ways are - are perhaps not quite the same as that, but he ends up doing things and being part of a group which ultimately would be regarded as having - the choice for that is ultimately determined by aspects of the abuse, ah, and its impact upon him.

481 O'Connor's relationships with women were part of his lifestyle at that point, and his drinking and personality issues suggest that his ability to care and be trusting and trustworthy were not high. O'Connor's dysregulation is likely to be relevant and historically would have dated back to the abuse which set his life on a certain trajectory. The numerous relationships with women and poor relationships with his children indicate difficulties with intimacy and loyalty. O'Connor now expresses considerable regret about these issues, and how his life has worked out.

482 Dr Entwisle was asked about the lives of O'Connor and his siblings in the context of their early life experiences. He said some children react very badly to being uprooted and moving around, and parents arguing and separating, so he thought that was a significant consideration. The abuse O'Connor had experienced, which his siblings had not, was a very significant contributing factor to him and his life now. He said the mental illness he diagnosed related to the abuse. The fact that other siblings do not have issues with alcohol strengthens the link between the abuse and O'Connor's subsequent alcohol abuse.

483 O'Connor attended for assessment by specialist occupational physician Dr Slesenger in May 2021.

484 The following history is recorded under progress and current symptoms:

Mr O'Connor advised that the symptoms have been centred in the lower back, but do not radiate into either leg. He describes the pain as being dull, mild and very occasionally moderate. He advised that there is residual stiffness in the back and the pain is noticeable on 1-2 days a week and he attributes the exacerbations to overactivity (e.g. inadvertent lifting of heavy weights), forceful pushing and pulling (e.g. he recalls pulling a tent out of the underground after visitors came and stayed with him and advised that he suffered an aggravation for a day).

He advised that his symptoms are generally manageable and do not interfere with his ability to self-care or to engage in domestic tasks.

O'Connor took over-the-counter medication occasionally, has not been referred for physiotherapy treatment or specialist review, has not undergone radiological investigations for lumbar spinal impairment, or other treatment.

485 Dr Slesenger reviewed the relevant GP clinical records, which he said indicated periodic back pain in around 2012, and again in 2015, with symptoms that appeared to be short-lived.

Taking the evidence as a whole, I am of the opinion that his lumbar spinal impairment has been a minor factor throughout his adult life, commencing in 1995 and these symptoms would have impacted on his ability to work in a heavy manual role, but would have been unlikely to have impacted on his ability to attend to a lighter role (i.e. working as a working Porter in a hotel or in a light assembly/light manufacturing role). I do not anticipate him working as a Farm Hand, as a Cabinetmaker or as a Sawmill Operator and I do not anticipate him working as a Delivery Driver.

Other employment options could have included working in hospitality although I would have advised against him working as a Bar Worker as within this role, he may have been required to replenish bar stock, including kegs and boxes of wine. A job specific worksite assessment would have been required if he were to consider such a role.

487 In the absence of medical imaging it was reasonable to diagnose O'Connor's condition as non-specific lower back pain. The symptoms were mild, possibly at worst moderate and the exacerbations appeared to be self-limiting.

488 The defendant submitted that in some cases O'Connor's evidence was untruthful and lacked reliability, and on other matters was exaggerated. The defendant submitted O'Connor had 'a well-developed understanding of his own case for damages', and a capacity to deny or minimise evidence where he believed it was potentially harmful to his case on damages. The following examples were given by the defendant.

489 Dr Tagkalidis recorded being told by O'Connor that he smoked a quarter to half a gram of marijuana every second day from age 16 to his early 50s. In his report Dr Entwisle recorded that 'He got into drugs at one point but never used heroin, he never had a habit like that. He smoked marijuana but gave it away some years ago.'

490 In evidence O'Connor said he had smoked marijuana, but did not like it that much, and that he had probably had 10 marijuana cigarettes in his life. He said he did not tell Dr Tagkalidis he smoked marijuana regularly.

491 The defendant submitted that '[t]here is only one reason [O'Connor] would deny the unequivocal histories given to medico-legal psychiatrists - he believed a history of the regular smoking of marijuana detracted from his claim for damages.'

492 I reject the defendant's submission. It was not put to O'Connor that he believed a history of regular marijuana use would detract from his damages claim. O'Connor gave a frank, unvarnished account of his life, including his alcohol abuse, forensic history, numerous relationships, itinerant work, and fractured relationships with his children. He accepted responsibility for his frequent antisocial behaviour. A history of regular use of marijuana would have made no material difference to assessment of O'Connor's claim.

493 Further, there is nothing in contemporaneous records that indicates a history of marijuana use. The Goulburn Valley Hospital records go back as far as 1980. There are frequent references in those records to intoxication and alcohol abuse, but no entry that I could find referring to marijuana use. The 36 years document, which is a blunt and unflattering commentary by O'Connor on his own life, contains a single mention of marijuana use. Marijuana is not mentioned in the report of psychologist Jones. There was a great deal of evidence about offences committed by O'Connor. There is no evidence of convictions for drug use. If O'Connor used marijuana with anything like the frequency in Dr Tagkalidis's history there would almost certainly be some historical record of that fact. I do not accept the history of marijuana use recorded by Dr Tagkalidis is accurate. It is not clear how that history came to be recorded. However, I do not accept it reflects poorly on O'Connor's credit.

494 The second example relied on by the defendant related to O'Connor's experience of back pain since the assault in 1995. The letter of instruction from O'Connor's solicitors to Dr Tagkalidis said he was left with a chronic back injury after the assault, and '[i]n 1995/6 Mr O'Connor was put on a disability pension owing to his back injuries.' The solicitors' letter to Dr Slesenger stated '[t]he fight left him with a chronic back injury. Since December 1995 he has accessed the disability support pension.'

The [disability support pension] was granted to Mr O'Connor in 1995 because of an injury to his back, 'I was bashed pretty bad'. ... Mr O'Connor was subsequently assessed for CES (Commonwealth Employment Services) by Dr Harder who provided a report which resulted in him being placed on a DSP.

Apart from a back injury and arthritis Mr O'Connor was otherwise well. He smokes 20 cigarettes a day and can drink heavily at times to "numb the pain" from his back. He mostly drinks full-strength beer adding "I drink a fair bit." He consumes "quite a lot of Crown Lagers" at a time and occasionally he will drink up to six glasses of whiskey "to get tipsy."

496 Dr Tagkalidis reported being told by O'Connor that he was frustrated by the lower back pain and resultant physical limitations, and that 'he said that the pain is constant, is exacerbated with exertion, and is typically 7/10 in intensity.'

In cross-examination O'Connor agreed he said 7 out of 10, but said he must have misunderstood Dr Tagkalidis, because he meant 7 out of 10 good, not 7 out of 10 bad. The two paragraphs that follow in Dr Tagkalidis's report read:

He said that he has felt 'just angry and confused' inside 'I have trouble dealing with people, I'd rather be by myself' and [']you just feel ratshit.' He said that he is always flat underneath is 'always sad because I've fucked up everything,' feels 'worthless' and would rate his mood as 2-3 / 10 across his adult years (where 0 = severe depression with acute suicidality and 10 = a generally stable and happy mode state).

He said that he is tearful at night 'crying alone' and is frequently irritable, impatient and intolerant, shouts at times, but does not often act out in recent years.

497 The defendant submitted on the basis of this material that O'Connor was in no doubt his disability pension was awarded because of his back injury and associated pain. The defendant submitted:

At trial [O'Connor] was keen to promote a new case theory for obvious reasons, if the disability pension be provided for back injury it makes his claim for damages for past economic loss since the granting of the disability support pension problematic.

498 I reject the defendant's submission. While O'Connor's successful application for the pension followed the assault which caused the back injury, the objective contemporaneous evidence, including the reports of Dr Guymer and Dr Harder, clearly demonstrate the most significant condition justifying the pension was chronic alcohol abuse. The pension records, clinical notes and Dr Slesenger's opinion support O'Connor's evidence that while his back injury has persisted since the assault, it causes intermittent relatively mild symptoms, would prevent him from performing heavy work but not from working at all, and otherwise causes little restriction.

499 The defendant relied heavily on the report of 7 out of 10 back pain recorded by Dr Tagkalidis. O'Connor's explanation, that he meant 7 out of 10 good rather than 7 out of 10 bad, is consistent with the two paragraphs that follow in Dr Tagkalidis's report. Despite reporting very significant symptoms indicating poor mood O'Connor rated his mood as 2-3 out of 10, which Dr Tagkalidis noted was a stable and happy mood state. I conclude O'Connor misunderstood Dr Tagkalidis's pain and mood rating system, and believed a low number rating reflected more serious pain/lower mood, and a high number rating less serious pain/happy mood.

500 The third and fourth examples cited by the defendant relate to histories recorded by the psychiatrists about O'Connor's mother. Dr Tagkalidis recorded in his report being told by O'Connor that his mother had died. In evidence Dr Tagkalidis said '[c]learly that's an error. I looked at my - I've looked at my handwritten notes and I've used a signal indicating that his mother had died, so clearly that's an error. My apologies for that.'

501 The defendant submitted Dr Tagkalidis's evidence did not explain why he made a note that O'Connor's mother had died, and that this pointed to aspects of O'Connor's evidence being unreliable. I disagree. The obvious explanation, and my understanding of Dr Tagkalidis's evidence, is that the note was his error.

502 In his report, concerning the third abuse, Dr Entwisle wrote:

No further abuse occurred after that. Mr O'Connor recalled telling his cousin about it around that time. After that he told his mother who didn't believe him and said that a priest wouldn't do that kind of thing which left him with experiences "trapped within inside me."

In evidence in chief O'Connor said, in effect, that he did not tell family members about the abuse. In cross-examination he said he recalled on a school holiday starting to tell an aunty in Melbourne, but she told him not to talk rubbish, and that was as far as it got. He said he did not tell Dr Entwisle that around the time of the third abuse he told his cousin and his mother what had happened. He said he did not say anything to his mother until much later, in the 1990s. O'Connor was not cross-examined about how his mother reacted to being told about the abuse.

503 The only established inconsistency between O'Connor's evidence and this aspect of Dr Entwisle's report is whether O'Connor told his mother about the abuse shortly after the third assault, or years later. I accept the inconsistency does indicate the need for some care when trying to follow O'Connor's evidence about the chronology of his life events. That is understandable given the abuse occurred over 50 years ago, its devastating impact on O'Connor, and his long-term history of severe mental ill-health and chronic alcohol abuse. It is not surprising, in the context of a single psychiatric assessment conducted over an hour or two that the examiner may have experienced some difficulty following or nailing down the precise chronology of events being described by O'Connor. I had the opportunity to observe O'Connor give evidence at trial over four days. While I accept that a difficulty may have arisen in relatively brief medico-legal consultations caused at least in part by the way in which O'Connor described events, I do not accept this reflects adversely on his credit or significantly on his reliability as a witness.

504 Mark Thompson obtained a Bachelor of Business in 1992, and has been a chartered accountant since 1994. He has been a member of the Chartered Accountants of Australia and New Zealand since 1994, and a fellow since 2015.

505 Thompson has worked as a forensic accountant since 1995. He said 75% of the work he has undertaken has involved the assessment of damages in personal injuries cases.

506 Thompson prepared a report assessing O'Connor's loss in April 2021, and an updating memorandum in February 2022.

507 The total loss of earning capacity calculated by Thompson was $1,788,133. In relation to that calculation Thompson noted:

(a) past losses are stated after tax and before statutory interest;

(b) future losses are stated after tax and at present value as at 1 March 2022, discounted at 3%;

(c) the calculation assumes retirement at age 67; and

(d) no allowance has been made for contingencies or vicissitudes.

508 Thompson assumed that but for the abuse, O'Connor would have completed year 12 in 1975, commenced work in 1976, and earned average weekly earnings until retirement at age 67.

509 Actual earnings were calculated on the basis O'Connor left school in mid-1973 before completing year 10, worked as a sales assistant at Woolworths until mid-1974, then worked in various roles including as a factory hand, labourer, delivery driver, farmhand, in hospitality and hotels, as a factory hand until 1991, and as a seasonal fruit picker until 1994. He assumed O'Connor was unemployed or incarcerated for 50% of the time between 1974 and 1979, and incarcerated for four months in 1980. He assumed O'Connor was employed approximately 30% of the time as a fruit picker between 1992 and 1994. He understood O'Connor had not worked since 1995, and assumed he would not return to employment in any capacity in future.

510 Thompson did not have O'Connor's actual earnings figures from 1973 to 1988 and from 1992 to 1994. For these periods he used industry figures depending on the role in which he understood O'Connor worked. Earnings figures were available for O'Connor's last full-time job working as a factory hand for the lighting company.

511 Thompson assumed O'Connor had no earnings for the periods he was incarcerated. He reduced the claim for loss of earning capacity during those periods by a notional amount representing the benefit O'Connor received from being housed and fed. The total notional savings was $4,205.

512 Notional superannuation contributions were reduced by 15% for contributions tax.

513 Thompson was asked about the effect on O'Connor's without abuse earnings of the back injury sustained in 1995. He said in his experience people who work in trades-based roles usually do not spend their whole working life doing heavy manual work. In some roles the average working life may involve no manual labour at any point in the person's career, and a back injury would have no impact. For a person working in a manual role, opportunities can arise to move into a supervisory position, particularly after a longer period of work with the one employer. Generally, the stability of employment will impact on the prospect of obtaining supervisory roles. You cannot assume that back injuries such as that suffered by O'Connor would have any impact on the ability to earn if by that time he had a stable working life, and may be in a position to take steps to mitigate the impact of the injury.

514 Thompson was asked about the use of average weekly earnings. He said the average is based on a survey of 5,500 employers every half year. It excludes various categories such as self-employed workers, people working in construction trades and members of the Australian defence forces. Bonuses and irregular payments are excluded from earnings. A methodology is applied to reduce the value of very high income back within a statistical range so that, for instance, a CEO earning $2 million a year does not influence the average weekly earnings data. The group surveyed is rotated, and there is a statistical rigour applied to the way data is collected.

515 Thompson said the reason for using average earnings is that it takes into account the high and the low. Median weekly earnings are not a better reflection of potential earnings because they do not consider that a person has a chance of being a high income earner. The median figure is really an adjustment to the average on the basis the person could never have been successful.

516 Thompson said the principle factors affecting whether a person earns above or below average weekly earnings are school education, training and qualifications post-school, and stability of employment. He said the big issue was not whether a person completed year 12, but whether they obtained some form of post-school qualification. If you left school in grade 10 and then did a post-school qualification, the data suggests your earnings outcome will be improved. This includes qualifications such as a Certificate III or IV, an apprenticeship or a traineeship. Thompson said the sort of post-school vocational qualifications obtained by O'Connor's siblings are important in driving a person's earnings to average earnings or above.

517 The following issues are relevant to the assessment of O'Connor's damages. First, O'Connor's disrupted early childhood pre-abuse, including having to frequently move houses, attending a number of different primary schools, his father's physical abuse of his mother and O'Connor's strained relationship with his father and the difficult family circumstances living in crowded accommodation with his grandparents at Kilmore.

518 Second, O'Connor's adolescent circumstances in Shepparton, which involved him living with his mother and siblings for a period of time, a fact he neglected to mention in evidence. O'Connor's evidence about his adolescent life in Shepparton is in stark contrast to that given by his sister. He left school at an age consistent with his siblings because, as his sister agreed, school was not for him. At the time he was working, living with his mother and going along reasonably well, which militates against O'Connor's proposition that the abuse was the sole cause of a shortened education. There is no evidence that at this time his life was impacted by the consumption of alcohol. The culture in which O'Connor was living as an adolescent in country Victoria, the peer group with which he associated, and his own decision-making, are important factors that made a major contribution to O'Connor's drinking, police offending and subsequent imprisonment. For example, O'Connor's conduct when he took his friend's car at the football match in Ballan, cannot be simply explained by the abuse.

519 Third, the defendant cannot be held responsible for O'Connor's criminal behaviour and subsequent incarceration.[100] Any pain and suffering or pecuniary loss suffered by O'Connor as a direct or indirect consequence of illegal activity, including incarceration, is not compensable by the defendant in this proceeding.

520 Fourth, O'Connor has not provided a complete picture of his employment and earnings. It is not clear what work O'Connor was doing, and how much he was earning, for much of the 1980s. The reference letter from the owner of the lighting factory that states O'Connor was an excellent and loyal employee who the writer would gladly recommend to any prospective employer contradicts O'Connor's evidence to the Court.

521 Fifth, at trial O'Connor presented a new theory for him being on the disability pension and not working, saying that was because of alcohol abuse rather than back pain. O'Connor failed to call his treating GP Dr Guymer, who completed a medical certificate for a sickness allowance in October 1995 which referred to alcohol abuse and indicated O'Connor would be fit for work in three months, with no limitation on his capacity for work after that time. In another report Dr Guymer refers to the onset of chronic alcohol dependence being in 1990. These contradictions are not explained, and an inference should be drawn that Dr Guymer's evidence would not have assisted O'Connor.

522 Sixth, the evidence concerning the years 1998 to 2011 is of a person in a stable relationship, with a capacity to participate in and enjoy country music, who had a greatly reduced alcohol intake. The Peter MacCallum clinical notes record an alcohol consumption of 10 glasses per week. O'Connor's ability to run a radio show, be the music club president and a regular performer are consistent with a greatly reduced alcohol intake. In the context of these issues, and the recently discovered lump on O'Connor's tongue that his dentist advised required investigation, the failure to call either of O'Connor's treating GPs is a conspicuous omission. The significantly decreased alcohol consumption since around 2000, the demonstrated capacity to excel at social engagement, and assume leaderships roles in groups and organisations is evidence of a level of enjoyment of life well above what O'Connor attempted to convey in his evidence to the Court.

523 O'Connor accepted in cross-examination that he had under-reported his drinking to doctors at Peter MacCallum, and that he had not wanted to 'say too much' about his drinking. The medical notes do not consistently record under-reporting of alcohol consumption. The evidence of Hutchinson is consistent with continued alcohol abuse. There is no basis for a finding that the frank disclosure by O'Connor about the devastating extent of his alcohol addiction is dishonest or unreliable.

524 O'Connor's evidence about his life at home and at school before the abuse, and his parents' relationship and separation, accords with the evidence of Hutchinson, and should be accepted. The attempt by the defendant to apportion responsibility for O'Connor's mental ill health, alcoholism and damaging life experiences ignores the evidence of O'Connor and his sister about their happy life before the abuse, O'Connor's immediate and profound descent following the abuse, and the evidence of the psychiatrists Dr Tagkalidis and Dr Entwisle. It is obvious the rape of O'Connor by Gannon at age 11 is the cause of the severe mental health injuries that have beset his life since. The defendant has not tried to establish, and could not possibly establish on the evidence, that any or all of the features referred to would have led to O'Connor suffering psychiatric damage, alcohol addiction, and the sort of life that he has experienced.

525 The best evidence about the reason for O'Connor being placed on the disability support pension is the contemporaneous notes of the doctors who examined him at the relevant time. Those notes are detailed and unambiguously support the conclusion that the pension was primarily granted because of O'Connor's alcoholism. In 2005, the pension was continued wholly in relation to alcoholism.

526 Dr Slesenger's assessment that the pain and impairment from the back injury was mild is corroborated by his review of the GP records. Dr Slesenger concluded there was no reason, from a physical perspective, that O'Connor should not be able to participate in work subject to restrictions on heavy manual tasks. It should be concluded that if not for his psychological impairment and alcohol abuse O'Connor would be able to work in most jobs.

527 The award of general damages should be informed by lifelong alcoholism and self-destructive behaviour, post-traumatic stress disorder and depression; suicidality including three suicide attempts; feelings of shame, self-loathing, confusion, distress and anger; impact on schooling and career; damage to romantic, family and friend relationships, and alienation; entrenched poverty; drunken offending, convictions and incarceration; and disturbed sleep and nightmares about Gannon.

Jones v Dunkel****[101] inferences

528 Both parties sought Jones v Dunkel inferences.

529 O'Connor submitted that the defendant's failure to call the expert witness, who had provided reports to the defendant relevant to the claim for loss of earning capacity, should lead to an adverse inference. Each of the experts was independent and the reports were prepared in accordance with the Expert Witness Code of Conduct. It was not explained why the experts could not be called by O'Connor to give evidence. In the circumstances, I draw no inference adverse to the defendant.

530 The defendant submits that O'Connor's failure to call evidence from his mother and his treating general practitioners should lead the Court to make an adverse inference that the uncalled evidence would not have assisted O'Connor in the following respects:

(a) The doctors would not have supported that O'Connor has been almost totally incapacitated by alcohol consumption for the last 20 years and his claim of continuing alcohol abuse. In light of this, the Court should more readily accept that O'Connor continues to receive the disability pension because of his back injury.

(b) O'Connor's mother would not have supported his evidence on key aspects of his claim for damages including what he was like as a child, when she was informed of the abuse, his academic abilities, her relationship with O'Connor's father, the family living circumstances, O'Connor's behaviour as a teenager in Shepparton and his alcohol consumption history.

531 For the reasons outlined below, I conclude there are no adverse inferences to be drawn in respect of O'Connor's election not to call his mother or his treating general practitioners to give evidence. O'Connor's evidence in relation to his life as a child, and his alcohol abuse as an adult was corroborated by his sister. On a fair reading the contemporaneous clinic records support ongoing alcohol abuse. Any controversy as to the cause of O'Connor's incapacity for work is resolved by the contemporaneous records and the opinions of the medico-legal specialists making it unnecessary to call O'Connor's treating general practitioners. Further, even if an adverse inference were to be drawn, based on the evidence to which I have referred, my conclusion about these matters would not change.

532 I accept O'Connor's description of his life before the abuse. I conclude O'Connor was an active, happy child who related well to his close family, was socially engaged and progressing normally at school. My conclusion is supported by Hutchinson's evidence.

533 I accept the evidence of the psychiatrists that moving house and changing schools a number of times as a young child, and his parents' separation, was somewhat destabilising and may have led to O'Connor experiencing a degree of emotional vulnerability. However, Hutchinson described a happy and loving family environment as a child. There is no evidence that she or her other siblings experienced any difficulty associated with or caused by their early family life. There is no reason to suppose that, but for the abuse, O'Connor's response to his childhood would have differed to that of his siblings.

534 The first incident of abuse by Gannon was horrific. It involved a physically painful and abhorrent assault on a young child by an adult in a position of almost absolute power and authority, in an isolated bushland setting, resulting in O'Connor fearing he would be killed. I fully accept O'Connor's description that the assault tilted him on his axis, that he felt the happy, innocent young boy he was died that day, and that he was never the same again.

535 The impact of the first assault was compounded by Gannon stalking O'Connor, attempting to get him on his own again, and by the further assaults.

536 I accept O'Connor's evidence of the immediate impact on him of the abuse, including disturbance of family relationships and friendships, isolation, behavioural deterioration, disruption of education and use of alcohol. I accept O'Connor felt he was alone with his experience of pain caused by the abuse. The abuse and the injuries it caused resulted in O'Connor attempting suicide as a 12-year-old.

537 I accept the evidence of both psychiatrists to the effect that the trajectory of O'Connor's life was determined by the abuse and its impact on him. By the age of 12 O'Connor was suffering complex post-traumatic stress disorder, major depression and had commenced a lifelong pattern of abusing alcohol. His injuries, and the emotional dysregulation resulting from the abuse, were a cause of O'Connor descending into a life characterised by fractured relationships, antisocial behaviour and unhealthy peer group associations. The changes to O'Connor's psyche and life in that very formative period were caused by the abuse, and were not the result of any rational or voluntary choice he made. A consideration of the lives experienced by O'Connor's siblings gives substantial support to these conclusions. The contrast is stark. Each of O'Connor's siblings has led a stable, productive and successful family and work life, without evidence of alcohol abuse or antisocial behaviour.

538 I reject, with one exception, the defendant's submissions that:

(a) the causal connection between the abuse, the injuries it caused, and the loss and damage suffered by O'Connor because of his life experiences was broken as a result of O'Connor's involvement with a heavy drinking peer group as an adolescent in Shepparton, and the choices he made in the following decade to engage in antisocial behaviour; or

(b) O'Connor should not be compensated for those matters because of normative or policy considerations.

539 The defendant's submission is inconsistent with the lay evidence and the expert opinions of the psychiatrists. The damage caused by the abuse was immediate and ongoing, resulting in O'Connor continuing to suffer complex post-traumatic stress disorder, chronic dysthymia with episodes of major depression, alcohol abuse and antisocial personality disorder. These conditions were entrenched in O'Connor's early and mid-teenage years, before he became associated with an unhealthy peer group in Shepparton. It was those conditions, and the associated dysregulation, emotional turmoil and behavioural issues that led to O'Connor being attracted to the peer group he associated with in Shepparton, and to engaging in antisocial behaviour.

540 The one exception is that, because of application of principles set out in State Rail Authority of New South Wales v Wiegold ('Wiegold'),[102] O'Connor is not entitled to recover damages for losses resulting directly or indirectly from findings that he was guilty of criminal offences.

541 Application of the principles in Wiegold on assessment of O'Connor's damages should not be overstated. While I accept being in jail was, by and large, not a happy or pleasant experience, there is no evidence that periods of imprisonment caused O'Connor additional psychological injury, or had any lasting material effect on the course of his life.

542 I reject the defendant's submission that the cause of O'Connor's incapacity for work from the mid-1990s, and the reason he was placed on the disability support pension, is the lower back injury. The contemporaneous records and the opinion of Dr Slesenger support O'Connor's evidence that from about the mid-1990s he has suffered a chronic lower back condition causing intermittent mild pain requiring little treatment and causing little restriction, apart from an incapacity to undertake heavy work or activity. I conclude the cause of O'Connor's incapacity for work is the ongoing severe mental ill health from which he suffers.

543 O'Connor's relationship with his partner Bev, which commenced in the late 1990s, did have a stabilising and positive impact on his life. With Bev's encouragement and support O'Connor obtained some enjoyment from performing country music and participating in two music clubs and a community radio station. I accept Dr Tagkalidis's analysis of this period of O'Connor's life. The mental ill health he suffered resulting from the abuse did not go away, and was never far below the surface. O'Connor's participation in country music, like most other activities in his life, was fuelled by alcohol. The release he felt when performing or engaging in music activities was superficial and not sustained. However, I do take account of this more positive period of O'Connor's life in the assessment of damages.

544 I reject the defendant's submission that O'Connor's alcohol intake reduced significantly after he began his relationship with Bev and became involved in country music. In 2005, Dr Guymer certified O'Connor for the purposes of the pension on the basis he was incapacitated for work by alcohol addiction, and consumed 24 drinks per day. In 2008, psychologist Jones diagnosed that O'Connor suffered alcohol dependence and abuse. The Peter MacCallum note in 2011 of 10 glasses of alcohol weekly must be considered in the following context. First, that note was taken in the acute period of treatment for throat cancer when O'Connor was experiencing difficulties with oral intake, and where there was a noted reluctance to provide an accurate nutritional history. Second, two of the Goulburn Valley Health notes from around that time indicate a significantly higher level of consumption. Evidence post-dating the Peter MacCallum entry strongly supports a continued high level of alcohol consumption. Hutchinson lives in the same country city as O'Connor. She said O'Connor's whole life was fuelled by alcohol, and described an incident about five years ago when he attended a family Christmas event while very drunk. Hutchinson continues to see her brother at their mother's house. She was not cross-examined on the basis that in more recent years O'Connor's alcohol consumption was reduced.

545 O'Connor submitted an appropriate award for pain and suffering damages was in the order of $400,000 to $450,000.

546 The defendant submitted the range of damages for pain and suffering is in the order of $275,000 to $325,000.

547 I am not satisfied that either of the suggested ranges reflect a reasonable award of damages. O'Connor was forced to experience horrific assaults by Gannon. Since the first assault he has suffered severe mental ill health. The impact of the abuse reshaped every aspect of his life in a dramatically destructive way. He will never be rid of the impacts of being abused as a boy. I conclude that a reasonable award of damages for pain and suffering is $525,000.

548 There is no evidence about what work O'Connor did during most of the 1980s. Thompson's use of average earnings for different occupations over this period amounts to little more than speculation. Thompson's assessment of $78,000 for the period 1982 to 1992 should be heavily discounted to reflect that uncertainty.

549 Over the last 20 years O'Connor has demonstrated a capacity for employment through his ability to socialise, organise, participate and travel. As a result there should be no award for loss of earning capacity for that period. In the alternative the claim for this period, assessed by Thompson at $1,154,933, should be heavily discounted because of the restrictions on O'Connor's ability to work caused by the unrelated back injury, a reduction in alcohol consumption.

550 If it is accepted O'Connor was incapacitated from 1995 because of the back injury, the total award for past loss should be $173,640. If a continuing loss is found beyond 1995, past loss should be assessed in the range $393,364 to $508,848. There should be no award of future economic loss.

551 After leaving school O'Connor spent almost 20 years barely hanging on to work mixing regular periods of unemployment with a long string of mostly basic, poorly paid jobs. The contemporaneous records and expert psychiatric evidence all supports the conclusion that from the mid-1990s O'Connor has been incapacitated for work because of his extremely poor mental health and entrenched alcoholism.

552 There was no evidence that O'Connor's back injury would have prevented him from working.

553 The severity of O'Connor's alcohol abuse and mental health problems mean he will never return to paid work.

554 Given the evidence about his siblings' stable lives and careers, Dr Tagkalidis's evidence about O'Connor's intellectual capacity, and the evidence about O'Connor pre-abuse, it is reasonable to assess but for injury earnings by reference to average weekly earnings.

555 There should be no discount for vicissitudes applied to the assessment of past loss of earning capacity. Given O'Connor's notional remaining working life is only two and a half years, a discount of only 5% should be applied to the assessment of future loss.

556 I conclude, consistent with the evidence of O'Connor, Hutchinson and the psychiatrists, that the abuse caused injuries that severely disrupted O'Connor's education and working life. It is possible, given the experience of his siblings, that but for the injuries O'Connor would have left secondary school at around the same time that he actually did. However, his experience of school would almost certainly have been more positive and productive, leaving him better equipped to transition to the workforce and progress his career.

557 I accept Thompson's evidence that at the time O'Connor left high school the most significant factors determining whether he achieved average weekly earnings or above were training and qualifications post-school, and stability of employment. Each of O'Connor's siblings, having left school without completing Year 12, undertook post-school training, obtained qualifications and appear to have had stable and productive careers.

558 I accept Dr Tagkalidis's evidence about O'Connor's intellectual capacity, which is consistent with my observation of him, and with Hutchinson's evidence about her brother as a young boy.

559 O'Connor had an itinerant work history from his mid-teens to his early 30s in relatively unskilled jobs that were likely to be poorly paid. He had periods of unemployment and incarceration. Given the severity of the injuries caused by the abuse the fact that O'Connor was able to work at all speaks to a generally industrious nature. I conclude that in the period from 1973 when he left school until 1995 when he was retrenched from the lighting company factory job, O'Connor was partially incapacitated for employment.

560 After leaving the lighting company O'Connor worked occasionally as a fruit picker for a few years. He has not worked since. I conclude O'Connor has been totally incapacitated for employment by his injuries from the mid-1990s to date, and that his incapacity is permanent.

561 Quantification of damages requires consideration of a hypothetical past and uncertain future.[103] Such an assessment is made more difficult by the age at which O'Connor suffered injury, the absence of any stable or settled work history, and the associated uncertainty about what work O'Connor would have done absent being injured.

562 I accept Thompson's evidence about average weekly earnings, and why that statistic is an appropriate basis for calculating O'Connor's without injury earning capacity.

563 O'Connor grew up in a generally stable, supportive and loving family. Before being abused, O'Connor was a reasonably intelligent, active, engaged and happy boy progressing normally at school. There is every reason to believe that absent the abuse and his injuries O'Connor would have progressed at least in the manner of his siblings, attaining post-school qualifications and training, and enjoying a stable work life. By doing so, for the reasons explained by Thompson, O'Connor would have had the capacity to earn average weekly earnings.

564 There are a number of reasons why the assessment of loss by Thompson requires adjustment.

565 First, as I have already explained, O'Connor is not entitled to recover damages caused by committing criminal offences. Loss of earning capacity damages are to be reduced accordingly.

566 Second, because no damages will be awarded for the period O'Connor was imprisoned, damages should not be reduced by the amount Thompson allowed to reflect the benefit of accommodation and food while in prison.

567 The total loss calculated by Thompson to 31 December 1981, which includes the periods O'Connor was imprisoned, is $21,880. O'Connor was imprisoned for a total of a little over two years between 1974 and 1981. During the period of incarceration, net average yearly earnings were around $8,500. Therefore Thompson's assessment would effectively award O'Connor around $20,000 loss of earning capacity for the period he was in prison. Taking into account these matters, and the principles expressed in Wiegold, I conclude it is appropriate that O'Connor be awarded no damages for loss of earning capacity for the period from the time he left school to 31 December 1981.

568 For the following reasons I reject the defendant's submission that the assessment of loss by Thompson in the period 1982 to 1992 should be discounted because of uncertainties in the evidence. First, Thompson assumed that in this period, up to the date he was retrenched from the lighting factory, O'Connor worked fulltime. Although it is not entirely clear, my appreciation of the evidence is that O'Connor was not working for the whole period.

569 Second, O'Connor gave evidence that during this period he worked as a hotel porter, lift attendant, hotel bar attendant and factory worker. Thompson had three sources of information to calculate actual earnings from that work. First, he used financial records that set out O'Connor's actual earnings in the last two financial years he worked at the lighting factory. When he started at the lighting factory O'Connor worked day shift, but in the later period was transferred to night shift, which is likely to have led to increased earnings. On this basis, Thompson is likely to have overestimated O'Connor's actual earnings for the early period of his work at the lighting factory. Second, Thompson used average industry figures as the basis for calculating O'Connor's earnings in other occupations such as hotel porter and lift attendant. A comparison to the known earnings from work at the lighting factory supports the reasonableness of Thompson's calculation of earlier earnings. For example, in the year to 30 June 1991 O'Connor's known net earnings were $17,295. In the year to 30 June 1984 Thompson calculated, based on industry figures, that O'Connor's net earnings were $14,406.

570 Third, Thompson assumed that in the period from late 1991 to mid-1995 O'Connor worked as a fruit picker 30% of the time. That estimate substantially overstates the amount of fruit picking work O'Connor actually did.

571 For these reasons I conclude it is likely Thompson overstated O'Connor's actual earnings in the period from 1 January 1982 to 30 June 1995, leading him to under assess O'Connor's loss of earning capacity for this period.

572 Thompson's calculation of loss from 1 July 1995 to date, and continuing to O'Connor's 67th birthday, is simply based on average weekly earnings. Thompson has assumed that during that period O'Connor has been and will remain totally incapacitated for work. For reasons already stated I accept that assumption.

573 I conclude, for the following reasons, that there is a degree of uncertainty about the assessment of loss of earning capacity. First, the lengthy period over which damages must be assessed. Second, the young age at which injuries were sustained which leads to the lack of established pre-injury work history or career path. Third, the impact of O'Connor's forensic history and imprisonment. Fourth, Thompson's calculation makes no allowance for periods of underemployment or unemployment. Fifth, the back injury caused incapacity for heavy work, which may have resulted in some loss of earnings, at least for a period of time. The residual uncertainty in relation to assessment of O'Connor's loss of earning capacity should not be overstated. Thompson assessed the loss against average weekly earnings, which will take into account variability in the background and capacities of workers. The back injury is mild, and is not a cause of major incapacity. Further, I conclude O'Connor had the capacity to achieve a higher level of qualification than his siblings have done.

574 I conclude it is reasonable to reduce Thompson's calculation of past economic loss by 15% to take account of uncertainty associated with the hypothetical assessment of without injury earning capacity and the resulting loss.

575 I conclude it is reasonable to assess but for injury earnings to retirement at age 67. Given there are only a few years to retirement it is reasonable to apply a 20% reduction to reflect the uncertainties referred to above and general vicissitudes.

576 Thompson's assessment and these findings lead to the following calculation of loss of earning capacity damages:

Past loss from 1 January 1982 to date, reduced by 15% $1,343,698

On this basis, I award O'Connor $1,500,000 for loss of earning capacity damages.

577 Both Dr Tagkalidis and Dr Entwisle recommended O'Connor access psychological counselling and psychiatric treatment. O'Connor submitted on the basis of Dr Tagkalidis's evidence that an appropriate award for future treatment was $18,725. The defendant submitted the award should be $15,000, being the approximate midpoint between the recommendations made by the two psychiatrists.

578 Both psychiatrists were doubtful about whether O'Connor would engage in and accept treatment. In the circumstances I accept the defendant's submission. I will award $15,000 for future medical expenses.

579 O'Connor applied to the Melbourne Response in early 2010. His application for compensation was accepted, and he was offered $75,000 by Archbishop Hart, described as 'ex gratia compensation in respect of the Abuse'.

580 O'Connor signed a deed of release, agreeing to accept the compensation payment in full and final settlement of his claims in respect of the abuse. The deed provided that each party bear their own legal costs of and incidental to O'Connor's application for compensation.

581 O'Connor received a further payment of just under $64,000 in 2017.

582 It is just and reasonable for the total sum of $139,353 received by O'Connor from Melbourne Response to be taken into account by reducing the award of damages to him. The payments were made to compensate O'Connor for the same damage as that for which a claim is made in this proceeding. O'Connor cannot recover twice for that damage.

583 The payments to O'Connor from Melbourne Response were ex gratia, and were not made to settle a cause of action. In those circumstances ss 27QE and 27QF of the Limitation of Actions Act 1958 (Vic) ('Limitations Act') do not apply.

584 The Melbourne Response scheme had an arbitrary cap on compensation that bore no relationship to the damage suffered by a claimant because of abuse. Applicants to Melbourne Response were not litigating, but were simply seeking an ex gratia payment from the Archdiocese.

585 O'Connor considered the amounts paid to him by Melbourne Response to be entirely insufficient. Given the very modest amounts paid, and the benefit to the defendant and related disadvantage to O'Connor from the inability to litigate his claim until recent legislative changes, it is neither just nor reasonable that the Melbourne Response payments be offset against his award of damages.

586 While the Melbourne Response payments were described as ex gratia compensation they were clearly made to O'Connor in respect of the abuse by Gannon. Further, the deed released the defendant and others from any cause of action, and O'Connor agreed that he would bring no action and make no claim for damages, in relation to the abuse. The effect of the deed was to settle O'Connor's cause of action in respect of the abuse. Accordingly, s 27QE of the Limitations Act applies.

587 The defendant does not oppose the deed and settlement being set aside.

588 I am satisfied, on the basis of findings set out in these reasons, that it is just and reasonable to wholly set aside the deed.

589 If it is just and reasonable to do so, I may take into account the compensation paid to O'Connor through the Melbourne Response when awarding damages.[104]

590 The payments to O'Connor via the Melbourne Response, while they fall well short of the damages assessed, were objectively significant, and in that sense represented real compensation to O'Connor for the abuse. O'Connor has had the benefit of the first payment for about 12 years, and the second payment for about five years. These features, and the absence of any disentitling conduct by the defendant, make it just and reasonable to take into account the Melbourne Response payments when awarding damages.

591 O'Connor paid about $8,000 for legal representation on his Melbourne Response application. Having regard to his significant mental ill health, the complex issues he was required to consider, it was reasonable, and probably necessary, that O'Connor be legally represented.

592 I conclude that the award of damages to O'Connor should be reduced by the Melbourne Response payments net of legal fees. The amount to be deducted from the assessment of damages is $131,353.

(a) General damages $ 525,000

(b) Future treatment expenses $ 15,000

(c) Economic loss damages $ 1,500,000

594 I will hear from the parties as to the form of order and any consequential matters, including costs and interest.

[1] [2021] VSC 850.

[2] Trustees of the Roman Catholic Church v Ellis & Anor (2007) 79 NSWLR 565, 576 [46]-[47] (Mason P) ('Ellis').

[3] Evidence Act 2008 (Vic) s 135.

[4] DP (a pseudonym) v Bishop Bird [2021] VSC 453, [20] (citations omitted).

[5] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338, 348 [16] (Kiefel CJ, Bell, Keane and Edelman JJ).

[6] Prince Alfred College Incorporated v ADC [2016] HCA 37; (2006) 258 CLR 134, 159-60 [81] (French CJ, Kiefel, Bell, Keane and Nettle JJ) ('Prince Alfred College').

[8] Evidence Act (n 3) Dictionary pt 1 (definition of 'probative value').

[9] IMM v The Queen (2016) 257 CLR 300, 313-14 [45] (French CJ, Kiefel, Bell and Keane JJ) ('IMM'); Director of Public Prosecutions (Vic) v Wearn [2018] VSCA 39, [14], [48].

[10] IMM (n 9) 313 [43]-[45] (French CJ, Kiefel, Bell and Keane JJ).

[11] Ibid 320 [73] (French CJ, Kiefel, Bell and Keane JJ).

[12] Evidence Act (n 3) Dictionary pt 1 (definition of 'previous representation').

[14] Schulz v The Queen [2019] VSCA 179, [44] ('Schulz').

[15] R v Cassar; R v Sleiman (Judgment No 17) [1999] NSWSC 436, [7]; Registrar of Aboriginal and Torres Strait Islander Corporations v Ponto [2012] FCA 1500; (2012) 208 FCR 346, 353 [35]-[40]; Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 2) [2009] FCA 424, [41]-[43]; Stephen Odgers, Uniform Evidence Law (Lawbook Co, 16th ed, 2021) 297 [EA.48.180].

[17] Evidence Act (n 3) Dictionary pt 1 (definition of 'admission').

[18] R v JGW [1999] NSWCCA 116, [39]-[41]; Odgers (n 15) 620 [EA.81.60].

[19] Thomas v State of New South Wales [2008] NSWCA 316; (2008) 74 NSWLR 34, 37 [8] (Hodgson JA), 47 [49] (Campbell JA).

[21] Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370, 383-4 (Isaacs J); Woolworths Ltd v Crotty [1942] HCA 35; (1942) 66 CLR 603, 619 (Latham CJ).

[22] Victoria, Parliamentary Debates, Legislative Assembly, 7 March 2018, 596 (Martin Pakula, Attorney-General).

[23] Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) s 4(1).

[24] Ibid s 5(1).

[25] Ibid s 3 (definition of 'management member').

[27] Victoria, Parliamentary Debates, Legislative Assembly, 7 March 2018, 594 (Martin Pakula, Attorney-General).

[29] Explanatory Memorandum, Legal Identity of Defendants (Organisational Child Abuse) Bill 2018, 4.

[35] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, 46-47 [46]-[47] (Hayne, Heydon, Crennan and Kiefel JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ).

[36] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ).

[37] (2020) 62 VR 234, 262 [96] (Beach, Kaye and Osborn JJA) (citations omitted).

[38] Legal Identity Act (n 23) s 4(2)(b).

[43] Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261, 267 (Dixon CJ), 285 (Fullagar J); Chang Jeeng v Nuffield (Australia) Pty Ltd [1959] HCA 40; (1959) 101 CLR 629, 637 (Dixon CJ); Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188, 194 (Fullagar J).

[44] Examples of correspondence dealing with human relations matters are set out in paragraphs 260 to 263.

[45] DP v Bird (n 1) [283]-[288].

[46] PCB v Geelong College [2021] VSC 633, [343] (O'Meara J).

[47] Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-Operative Assurance Co of Australia Ltd [1931] HCA 53; (1931) 46 CLR 41.

[48] (1986) 160 CLR 16.

[49] [2001] HCA 44; (2001) 207 CLR 21.

[50] (2002) 209 CLR 95.

[51] Ibid 105 [24] (Gaudron, McHugh, Hayne and Callinan JJ) (citations omitted).

[52] Ibid 110 [38] (Gaudron, McHugh, Hayne and Callinan JJ).

[54] Ibid 111 [40] (Gaudron, McHugh, Hayne and Callinan JJ).

[55] Ibid 111 [41] (Gaudron, McHugh, Hayne and Callinan JJ).

[56] [2006] HCA 19; (2006) 226 CLR 161.

[57] [2022] HCA 1.

[58] Sweeney (n 56) 167 [12] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

[59] Ibid [13], [19] (citations omitted).

[61] Sweeney (n 56) 171 [24] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

[62] Ibid 171-2 [27] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) (citations omitted).

[63] Ibid 172 [29] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) (citations omitted).

[64] Ibid 173 [31] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

[65] Ibid 173 [33] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) (citation omitted).

[66] CFMMEU (n 57) [34] (Kiefel CJ, Keane and Edelman JJ) (citation omitted).

[67] Ibid [39] (Kiefel CJ, Keane and Edelman JJ) (citations omitted).

[68] Ibid [41] (Kiefel CJ, Keane and Edelman JJ).

[69] Ibid [42] (Kiefel CJ, Keane and Edelman JJ) (citations omitted).

[70] [2021] HCA 23; (2021) 392 ALR 39, 61 (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ).

[71] CFMMEU (n 57) [62] (Kiefel CJ, Keane and Edelman JJ).

[72] Ibid [71]-[72] (Kiefel CJ, Keane and Edelman JJ) (citation omitted).

[73] Ibid [73] (Kiefel CJ, Keane and Edelman JJ).

[74] Ibid [76], [78] (Kiefel CJ, Keane and Edelman JJ).

[75] Ibid [83] (Kiefel CJ, Keane and Edelman JJ) (citation omitted).

[76] [2000] HCA 52; (2000) 204 CLR 333.

[77] DP v Bird (n 1) [132]-[136], [139]-[142], [172].

[79] DP v Bird (n 1) [176]-[178] (citations omitted).

[80] 1999 Can LII 692 (SCC); [1999] 2 SCR 534.

[81] [2020] MBQB 2.

[82] [2010] EWCA Civ 256; [2010] 1 WLR 1441.

[83] [2012] 3 WLR 1319.

[85] CFMMEU (n 57) [94] (Gageler and Gleeson JJ) and [191] (Gordon J).

[86] Sweeney (n 56) 172 [28] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).

[87] Ibid 173 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); CFMMEU (n 57) [94] (Gageler and Gleeson JJ).

[88] Prince Alfred College (n 6) 150 [46]-[47].

[89] DP v Bird (n 1) [145].

[90] Hollis (n 49) 39 [41] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ) and 57 [93] (McHugh J).

[92] [2020] NSWSC 1379.

[96] CFMMEU (n 57) [41] (Kiefel CJ, Keane and Edelman JJ).

[97] Prince Alfred College (n 6) [80]-[81] (citations omitted).

[98] Maga v Archbishop of Birmingham [2010] EWCA Civ 256; [2010] 1 WLR 1441, [84].

[99] Prince Alfred College (n 6) 159 [79]; Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370, 380-382.

[100] SRA of NSW v Wiegold (1991) 25 NSWLR 500, 514-515.

[101] [1959] HCA 8; (1959) 101 CLR 298.

[102] (1991) 25 NSWLR 500. See also Bailey v Nominal Defendant [2004] QCA 344.

[103] Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, [103]; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.

[104] Limitation of Actions Act 1958 (Vic) s 27QE(2).