Plaintiff v Defendant

PRACTICE AND PROCEDURE - Summary judgment application made at close of evidence during jury trial - Test to be applied - Civil Procedure Act 2010 (Vic), ss 62, 63 - Naxakis v Western General Hospital (1999) 197 CLR 269.

1 In this proceeding, Adam Kneale claimed damages from the Footscray Football Club Ltd for injuries, loss and damage he suffered as a result of being sexually abused by Graeme Hobbs and others. Mr Kneale's family moved to West Footscray in 1984 when he was 11 years old. From that time, he went regularly to the nearby Western Oval as a spectator, both on game days and to watch training during the week. At the Western Oval, Mr Kneale met Hobbs, who was a volunteer with the Club. Hobbs groomed Mr Kneale and, between 1984 and 1989, sexually abused him and trafficked him for abuse by others. Much of the abuse took place on game days at the Western Oval, in the Club's administration offices in the EJ Whitten Stand.

2 The trial of the proceeding commenced on 17 October 2023, before me and a jury of six. The jury retired to consider its verdict on 8 November 2023, the fifteenth day of the trial, and gave its verdict the following day. It found that there was negligence on the part of the Club that was a cause of Mr Kneale's injuries. It assessed damages of:

(a) $3,250,000 for pain and suffering and loss of enjoyment of life;

(b) $2,605,578 for past loss of earnings and loss of earning capacity; and

(c) $87,573 for future medical and related expenses.

3 Accordingly, on 9 November 2023, I ordered that there be judgment for Mr Kneale in the sum of $5,943,151, with $10,554 of that amount repayable to Medicare.

4 At the commencement of the trial, Mr Kneale's pleaded case was that the Club was liable in negligence and also that it was vicariously liable for the torts of assault and battery committed by Hobbs. In addition to his claim for compensatory damages, Mr Kneale claimed aggravated and exemplary damages.

5 Towards the end of the plaintiff's case, senior counsel for the Club foreshadowed an application under s 62 of the Civil Procedure Act 2010 (Vic), for summary judgment in respect of the vicarious liability claim. I scheduled a day to hear that application at the close of the defendant's case, and made orders for the exchange of written outlines of submissions.

6 On 1 November 2023, I heard argument on the Club's application for summary judgment in relation to the claim based on vicarious liability, and the claims for aggravated and exemplary damages. That afternoon, I ruled that I would not be putting vicarious liability, aggravated damages, or exemplary damages to the jury, and indicated that I would publish written reasons for that ruling as soon as I was able. Those reasons are provided at [11] to [52] below.

7 Also on 1 November 2023, I indicated that I would direct the jury that:

(a) damages for past loss of earnings should be calculated on the basis that past losses are indexed to their current value; and

(b) damages for loss of future earning capacity should be discounted at the rate of 3%.

My reasons for those rulings are at [53] to [61] and [62] to [67] below.

8 Finally, the Club requested that I provide reasons for what it described as my 'ruling' that it owed a general duty of care rather than an occupier's duty. I did not make any ruling about the duty of care owed by the Club. Rather, I directed the jury on the basis of the duty of care admitted by the Club in its defence. For completeness, my reasons for doing so are set out at [68] to [79] below.

9 Under s 62 of the Civil Procedure Act, a defendant may apply for summary judgment in the proceeding on the ground that the plaintiff's claim or part of that claim has no real prospect of success. The Court may give summary judgment under s 63(1) if satisfied that a claim or part of the claim has no real prospect of success. The power should be exercised with caution and only in a clear case, where the plaintiff's prospects of success are no more than fanciful.[1] Summary judgment will rarely be appropriate in a case involving the application of the law to a novel context, at least where the application must be determined without the benefit of evidence.[2]

10 Ordinarily, a summary judgment application is made and determined before the trial of a proceeding, when it is not known what evidence the plaintiff will adduce in support of a claim. In this case, the application was made during a jury trial, and was heard and determined after both parties had called all of their witnesses, but before closing addresses to the jury. In those circumstances, I accepted the Club's submission that summary judgment should only be given if there was no evidence on which the jury could reasonably find for the plaintiff.[3] In other words, I applied the settled test for determining whether a question should be put to a jury, which required me to take the view of the evidence most favourable to Mr Kneale.

11 Although Mr Kneale pleaded that Hobbs was employed by the Club, he did not advance that case at trial. He opened his case on the basis that Hobbs was a 'well‑known and special volunteer' at the Club.[4]

12 Leaving aside the abandoned claim that Hobbs was an employee, the pleadings relevant to the vicarious liability claim were:

(a) From in or about 1981 to about 1991 (the period), Hobbs was engaged by the Club to perform various roles including as a member of the Club's fundraising committee, as a room steward and 'jack of all trades' for the Under 19 squad, and as a member of the training staff for the Under 19 squad;[5]

(b) At all times during his various appointments with the Club, Hobbs was under its supervision, direction, and control;[6]

(c) The Club repeatedly and continuously over the period:[7]

(i) permitted Hobbs to have unrestricted access to change rooms, training facilities, administration offices, social rooms and other parts of the premises;

(ii) supplied Hobbs with season tickets to VFL games at the Western Oval, which Hobbs was at liberty to distribute and which were honoured by the Club in permitting the recipients, including Mr Kneale, access to the Western Oval and the premises;

(iii) permitted Hobbs to bring guests, including Mr Kneale, otherwise unsupervised, into the premises, without any restriction of access or movement, both on training nights and at VFL games at the Western Oval;

(iv) in its official annual reports and other official publications, acknowledged Hobbs as a valuable member of the Club in a variety of roles, including those referred to at (a) above;

(d) Throughout the period, Hobbs was in a relationship akin to employment with the Club;[8]

(e) In the course of his various appointments with the Club, Hobbs was able to achieve a high degree of power over, and intimacy with, Mr Kneale, specifically that:[9]

(i) Hobbs held several formal positions with the Club over an extended period of time;

(ii) Hobbs was given a high level of access to Club property, including money and season tickets, within the Club's administration wing of the John Gent stand;

(iii) Hobbs gave money and tickets to Mr Kneale from within the administration wing and the John Gent stand at the premises;

(iv) Hobbs used his role within the Club to have private access to Mr Kneale;

(v) there was a close connection between the duties that Hobbs carried out for the Club and the sexual abuse of Mr Kneale, as Hobbs merged his duties into the sexual abuse of Mr Kneale;

(vi) the progressive stages of intimacy which Hobbs created with Mr Kneale were possible because of the power imbalance between Hobbs and Mr Kneale, and the opportunities that his specific roles gave him;

(vii) Hobbs took advantage of his position of power and authority and his ability and opportunity to achieve intimacy with Mr Kneale to groom and abuse him;

(viii) the matters listed in (c) above;

(f) The Club is vicariously liable for the tortious conduct of Hobbs in respect of Mr Kneale during the period.[10]

13 Typically, vicarious liability arises in the context of an employment relationship, so that an employer is vicariously liable for torts committed by an employee acting in the course of their employment. Mr Kneale relied on the recent decision of Bird v DP[11] to support his contention that vicarious liability could apply to the relationship between the Club and Hobbs, even though Hobbs was not employed by the Club. In that case, the Court of Appeal upheld the trial judge's finding that the Diocese of Ballarat was vicariously liable for the tortious conduct of an assistant priest who was not an employee.[12]

14 After noting a division of opinion in Victoria as to whether vicarious liability may apply outside an employment relationship, the Court of Appeal said:[13]

It is evident that the question, whether vicarious liability is confined only to cases involving a relationship with employment, may not be resolved by the first seeking to identify the underlying rationale for the imposition of vicarious liability in such a relationship. As the High Court observed in Hollis, the modern doctrine relating to vicarious liability of an employer for the torts committed by an employee '... was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy'. The court also noted that the identification of a fully satisfactory rationale for the imposition of vicarious liability in the employment relationship has proven to be quite elusive.

Nevertheless, two important points do emerge from an examination of the cases, which we will discuss. First, it is evident that the principle of vicarious liability has not been confined solely and exclusively to cases in which the relationship between the tortfeasor and the principal is that of employer and employee. In particular, it has been recognised in the authorities that, in certain circumstances, vicarious liability may apply in respect of a relationship which is not that of employment. Secondly, the cases reveal, in large measure, a commonality of the factors that are central to the issue whether, in an appropriate case, the relationship is one to which the principle of vicarious liability may apply.

15 The first point was based on the decision of the High Court in Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Cooperative Assurance Company of Australia Ltd,[14] in which an assurance company was held to be vicariously liable for defamatory statements made by an agent. From that case, and the discussion of it in subsequent cases such as Hollis v Vabu[15] and Sweeney v Boylan Nominees Pty Ltd,[16] the Court of Appeal identified a relevant and significant criterion of vicarious liability that 'the particular tortfeasor's role was so closely tied with the enterprise of the employer that he or she was presented to the public as carrying out the work of, and representing, the employer'.[17] In other words, the extent to which the tortfeasor presented as an emanation of the principal was a central factor in determining whether the relationship was one in which the principal was vicariously liable for the actions of the tortfeasor.[18]

16 Based on the High Court's decision in Colonial Mutual Life, the Court of Appeal held that it was clear that:[19]

... in an appropriate case, a relationship may give rise to vicarious liability on the part of the principal, notwithstanding the tortfeasor was not an employee of the principal. In such a case, vicarious liability is imposed on the principal for the actions of the tortfeasor, on the basis that the work performed by the tortfeasor and the business of the principal were so interconnected that the tortfeasor represented the business of and/or the principal, and, by doing so, conducted the business of the principal.

17 In addition to the 'close connection' between the agent and the principal's business that was critical in Colonial Mutual Life, the Court of Appeal drew from the authorities two other indicia of a relationship that may give rise to vicarious liability:[20]

... first, the power of the principal to control the performance of work by the tortfeasor, and, secondly, the lack of a right by the tortfeasor unilaterally to delegate his or her work to a third person.

The importance of these two indicia was said to be illustrated by those exceptional cases where vicarious liability is not imposed on employees who exercise independent discretion in their role, which demonstrate that an employer may not be vicariously liable in every case.[21]

18 The Court of Appeal went on to apply these principles to the unique relationship between the Diocese and the assistant priest, and held that the relationship could give rise to vicarious liability in an appropriate case.[22] Important features of the relationship that led to that conclusion were:[23]

(a) The bishop appointed and had authority over all priests in the diocese.

(b) The relationship was governed by a strict set of normative rules, which enabled the assistant priest to embody the Diocese in his pastoral role.

(c) Canon law also permitted the bishop to exercise a high degree of supervision and control over the assistant priest, on a day-to-day basis through the parish priest.

(d) The Diocese provided for the assistant priest's livelihood, he wore the uniform of a Roman Catholic priest, and he was exclusively committed to the role.

(e) The assistant priest's role was 'necessarily and integrally interconnected with the fundamental work and function of the Diocese' and he was an emanation of the Diocese.

19 If vicarious liability could arise on the relationship between Hobbs and the Club, there would be a separate question whether the Club was vicariously liable for Hobbs' sexual abuse of Mr Kneale. In order to find that it was, the jury would have to have been satisfied that the Club provided the opportunity and the occasion for Hobbs' wrongdoing, because of some special role that the Club assigned to Hobbs vis-à-vis Mr Kneale.[24] Particular features to be taken into account in determining whether the apparent performance of that role gave the occasion for the wrongful act include 'authority, power, trust, control and the ability to achieve intimacy with the victim'.[25]

20 Before describing the evidence concerning Hobbs' role at the Club, it is necessary to consider the circumstances in which Mr Kneale encountered Hobbs at the Western Oval.

21 Mr Kneale's evidence was that he first went to the Western Oval soon after his family moved to West Footscray. The ground was about 15 minutes' walk from home. Mr Kneale said that he would go to the ground twice a week to watch training, and to kick a football around with friends after school. He also went to most games at the ground with his father.

22 Mr Kneale said that he came to know Hobbs through another kid at school called Jason. His evidence was:[26]

Jason spoke to me and wanted to tell me how it is that I'll be getting some money, easy money, and that's when he describe Graeme Hobbs, told me where I could meet him, when I could meet him.

And do you remember what he said when he described Graeme Hobbs to you?---He said he was a large man that would wear a big blue coat with a fur collar on it, and he'd be standing at the top of the stairwell adjacent to the John Gent Stand.

At the Western Oval?---At the Western Oval.

So what happened then?---I went there. Ah, we would go to most games. Ah, my dad used to stand in the standing area with, ah, colleagues of his, and then I was able to just wander around the ground, and I noticed him there, and I approached him.

And how old were you at that stage?---11 or 12.

And as you approached him, what sort of impression did he make?---Ah, friendly. He was a friendly guy who - who asked how I was, and asked if I needed some money to buy some pies and a drink, and he said that any time I could go up and meet up.

You can go up where?---Up the stairs to meet him during any of the home games, and I just saw that as an opportunity. He seemed relatively - and overly nice.

And when you say 'up the stairs', do you mean the John Gent Stand?---Up the stairs of the John Gent Stand.

...

Yes, and did you continue to have contact with Graeme Hobbs after you met him for that first time at the age of 11 or 12?---Yes. Regularly on the home games.

Did he arrange to get you football seats at the football? ---Yes, he could get us seats, or myself seats, at the stand, ah.

Was it just yourself, or did he get seats for others?---Now and again, if I had a friend with me. A lot of the time I'd - at the beginning, I would go to the games just with my dad, but as time went on and I established this friendship with Hobbs, and he made it clear that I was able to obtain tickets for the stands to sit with my friend.

And did you ever have to pay for those tickets?---Never paid for those tickets.

What were your observations of what Hobbs was like at football games when you were there with him? What did he do? Did he stay in his seat?--- He never sat in a seat. He always stood at the top of the stairwell next to the John Gent Stand, and there was just people - other kids that were approaching him. I remember that I would get to the - a landing at the stairs where you could either go into the John Gent Stand to sit, or you could go up to the offices, and I'd wait there for whoever he was talking to to leave, and most of that time were kids.

Yes. And as well as giving you tickets, did he give you anything else?---He gave me seasons tickets that I was able to give to my dad and a couple of friends each year. That - that wasn't a problem.

Would he give you money?---Oh, always would give me money. There was always $10 for the game. Any time I met him later on the training nights, it'd be $20, maybe 30.

23 The first time that Hobbs abused Mr Kneale was after half time on a game day in about June 1984. Hobbs took Mr Kneale into the office via the stairwell on the side of the stand, and abused him in the conference room and again in the bathroom. The office was the site of repeated abuse over the next six years, invariably after half time on a game day, when there was no-one else there.

24 Mr Kneale also described meeting Hobbs at the Western Oval on training nights:[27]

Who was training?---Ah, the Footscray Football Club was training. They'd have - the under 19s would train first, and I think the seniors trained afterwards, and at the main entrance of the ground where they had a big bulldog on the front of the, ah, verandah area, Graeme Hobbs would be standing there most afternoons about 4 o'clock, 4.30.

And so of all the times that you went back to Western Oval, how often was Hobbs there?---Every time.

And what sort of things was he doing?---I never really saw him do much. He spent - the training nights when I would meet him, he would just be standing outside the main office entrance.

25 Hobbs met Mr Kneale outside the entrance to the Western Oval during the week to establish a meeting on the following Saturday, or to take him elsewhere, often to a nearby hotel. On other occasions he met Mr Kneale there after a game, when the car park was generally empty, and took him in a taxi to the hotel or another place of abuse.

26 Mr Kneale himself knew very little about Hobbs' role with the Club. In 1993, he told police 'I don't know what his job was and I still don't now', although he did know that Hobbs handled a lot of money.[28] Mr Kneale said that Hobbs was able to provide him with free tickets to games, for himself and his friends, and on at least one occasion a season ticket for his father. He observed that Hobbs had access to the office during games, and saw him handle bags of money and put them into the office safe. His impression was that Hobbs was a well-known worker at the Club, because everybody knew him and would greet him by his nickname 'Chops'.

27 Other evidence revealed that Hobbs had two voluntary roles at the Club during the 1980s. He performed a fundraising role, and also had a role assisting the Under 19s team.

28 The Club's annual reports for 1981, 1982 and 1983 listed Hobbs as a member of the Fundraising Committee. Between 1984 and 1989,[29] he was listed as a fundraiser, one of the 'coterie groups' that were credited in the Club's annual report. Hobbs was one of only three fundraisers whose name appeared in every annual report between 1981 and 1989. The June 1990 issue of The Bulldog, a Club publication for supporters, contained a special mention for Hobbs and the army of workers who had co-ordinated and monitored the sale of membership tickets.

29 Dennis Galimberti, the Club's chief executive officer from late 1986, described the work of the volunteers who sold season's membership tickets from trestle tables set up at the entrances to the Western Oval on game days. These tickets included 'squadron' tickets for child members. At half time, office staff would go down and collect the unsold tickets and the money, then reconcile the unsold tickets, count the money, and put it in the safe. On occasions, the volunteers also sold raffle tickets in this way. Mr Galimberti recalled that Hobbs was one of the volunteers who assisted in the sale of membership tickets, including squadron tickets. Stephen Smith, who was the Finance and Administration Manager throughout the 1980s, also recalled Hobbs as one of the fundraising people who did the 'arms and legs work' for home games and special functions. Mr Galimberti and Mr Smith agreed that Hobbs could not subcontract or delegate his fundraising role to another person. Mr Smith said that he oversaw the work of volunteers on game days, as far as money was concerned, but not more generally.

30 When Hobbs was interviewed by police in February 1993,[30] he said 'I do tickets, look after the office when there's nobody else there, and bloody doorman type thing'.[31] He described selling tickets in various areas out on the street, both membership tickets and raffle tickets. He said that he gave tickets to Mr Kneale:[32]

Managed the membership tickets, which I purchased and give 'em. And I think one year, when we'd finished all the sales, it would've been towards the end of the season, I think I give him a bundle of bloody squadron tickets. I think he wanted some squadron tickets for some of the friends he had, and his brother, [redacted]. If I - if I recall. It might have been about that year. They were being thrown out because, you know once - once you're halfway through the season, there's no value in season tickets anymore. So we cut them up, and dump them in - in the bins.

Hobbs also said that he paid cash for season tickets that he gave to Mr Kneale.[33]

31 The evidence was less clear about Hobbs' role with the Under 19s squad. Former players Stephen Macpherson, Steven Kolyniuk, and Bradley Spear remember Hobbs having some role during their time on the Under 19s team in, respectively, 1981, 1986 to 1987, and 1988 to 1989. None of them was sure what his role was, although they all agreed that he was not a trainer. He was in the background in the changerooms; according to Mr Kolyniuk 'he was just always there'.[34] Mr Macpherson recalled Hobbs filling up water bottles, while Mr Spear said that Hobbs always had a clipboard with him. Mr Galimberti and Mr Smith were also unsure about Hobbs' role with the Under 19s team. In its answers to interrogatories, the Club said that Hobbs assisted with incidental activities such as setting out food and drinks for players after matches. Whatever Hobbs' exact role was, Mr Galimberti agreed that he would have reported to the head trainer, and through him to the senior head trainer of the Under 19s.

32 An Under 19s report in the April 1986 edition of The Bulldog thanked the 'hardworking support staff' of the Under 19s team, including 'Chops' as a person who had been 'ever reliable' in performing his (unspecified) duties.[35] Hobbs was included in a group photograph of Under 19s personnel in the June 1987 edition of The Bulldog.[36] The 1988 annual report gave special thanks to a number of coaches, trainers and other assistants, including Hobbs as the 'Jack Of All Trades' for the Under 19s team. The 1990 annual report listed him as one of the Under 19s training staff.

33 More generally, during the 1980s the Club had only a small paid staff and volunteers were very important to the running of the Club. Mr Smith said that the Club relied on volunteers to do 'the arms and legs work',[37] and agreed that it trusted its volunteers. Several witnesses spoke of the importance of volunteers to the Club during the 1980s, in particular during the 'Footscray Fightback' campaign in 1989. Graham Sherry, who served on the Club's board between 1977 and 1983, said that volunteers were 'absolutely critical', and that the whole Club revolved around voluntary labour. However, the Club did not have a list of volunteers, and no written policies about volunteers or anything else.

34 I have summarised the evidence concerning Hobbs' role at the Club in the way most favourable to Mr Kneale. Some of the evidence I have referred to was disputed by the Club. For example, the Club led evidence that the administration offices were locked after half time on game days, and that no volunteer had access to the safe. It was not necessary for me to resolve those factual disputes, because the question was whether there was any evidence on which the jury could reasonably find the Club vicariously liable for Hobbs' wrongdoing. There were three reasons why I concluded that there was not.

35 First, as the High Court observed in Hollis and the Court of Appeal reiterated in Bird, the modern doctrine of vicarious liability 'was adopted not by way of an exercise in analytical jurisprudence but as a matter of policy'.[38] I do not understand the Court of Appeal's decision in Bird to represent a departure from that position. Rather, the decision was that, as a matter of policy, it was just to extend vicarious liability to the relationship between a diocese and a priest or assistant priest - a relationship like no other, 'founded in the context of the hierarchical system of a Diocese of the Roman Catholic Church'.[39] That extension was not a general invitation to identify other non-employment relationships with indicia of vicarious liability, as an exercise of analytical jurisprudence. As a matter of law, I did not consider that the relationship between a sporting club and a volunteer was one to which vicarious liability could attach.

36 Second, the relationship between the Club and Hobbs in this case did not remotely resemble that between the Diocese and the assistant priest in Bird. I note in particular the following:

(a) Hobbs' roles with the Club were informal, undocumented, and uncertain. The Club had no written policies regarding the recruitment, supervision, or control of its volunteers. This informality contrasts with the 'strict set of normative rules' that enabled the assistant priest to embody the Diocese in Bird.[40]

(b) The work performed by Hobbs was to sell membership and raffle tickets to the public, along with other volunteers. Hobbs also claimed to have looked after the office when no-one was there and to have been a 'doorman type thing'. No‑one was quite sure what work he did for the Under 19s team. Although he was well known and a constant presence at the Club, it was not possible to say that the work he performed was so interconnected with the business of the Club that he was, in effect, conducting that business.

(c) Although the handling of money by volunteers was supervised, there was no evidence that the Club exercised control over Hobbs in relation to any other aspect of his work. Indeed, Mr Kneale's evidence that Hobbs had access to bags of money and the office safe suggests that even the handling of money was not as closely supervised as Mr Galimberti described in his evidence. The supervision of Hobbs' work with the Under 19s was so slight that no-one could say what work he in fact did.

(d) While there was a good deal of evidence that Hobbs exploited his access to Club premises and membership tickets, there was no evidence that the Club clothed him with authority to represent it in anything other than selling tickets and raising funds.

(e) There was no evidence that Hobbs wore a uniform or any garments associated with the Club. While most of the Under 19s personnel in the group photo in the June 1987 edition of The Bulldog wore some kind of uniform, Hobbs did not.[41]

37 For those reasons, I did not consider that there was evidence on which the jury could reasonably have found that the relationship between the Club and Hobbs was one in which vicarious liability could arise.

38 Third, there was simply no evidence that the Club assigned any role to Hobbs vis-à-vis Mr Kneale, let alone a special role involving authority, power, trust, control, or the ability to achieve intimacy with the victim. The Club was unaware of Mr Kneale's existence during the 1980s; he was not an Under 19s player, a member, or another volunteer with the Club. The Club did not bring Mr Kneale into contact with Hobbs, entrust him to Hobbs' care, or place him under Hobbs' power or control. Mr Kneale was merely a spectator at the Western Oval when, at the suggestion of a school mate, he first found Hobbs, and on each other occasion that he met Hobbs at the ground on a game day. The evidence that the Club trusted Hobbs with money was not to the point. I considered that there was no basis on which the jury could reasonably have found that Hobbs' voluntary roles with the Club provided the opportunity and the occasion for his abuse of Mr Kneale.

39 Aggravated damages may be awarded to compensate a plaintiff for increased suffering caused by the circumstances and manner of the wrongdoing. They may be awarded where the defendant has acted with malice, or in an insulting or high-handed way, either in committing a tort or afterwards. Aggravated damages are compensatory, not punitive.[42]

40 The particulars given in support of Mr Kneale's claim for aggravated damages were that:[43]

(a) the Club was notified of the abuse allegations against Hobbs in 1993 and knew that Hobbs had been arrested in the possession of Footscray membership tickets and medallions;

(b) in 1994, the Footscray paper covered the fact of Hobbs offending against a boy, that Hobbs had used his position at the club to molest the boy, that Hobbs had abused the boy on football club premises over several years, that Hobbs had introduced the boy to other men who had had sex with him, and his guilty plea to molesting the boy;

(c) at no time before 2022 did the Club contact Mr Kneale in relation to the abuse, or offer him assistance or counselling.

41 Mr Kneale said that it always hurt that no-one from the Club reached out and contacted him after Hobbs was convicted, to discuss what had happened to him at the Western Oval. It played on his mind a lot. There was no closure for him, because no‑one from the Club actually acknowledged what had happened, and he could not believe that the Club did not know what Hobbs had done. Mr Kneale's hurt was compounded by the knowledge that Peter Gordon, who was president of the Club in 1994 when Hobbs was convicted, was Mr Kneale's father's cousin.[44]

42 Mr Kneale acknowledged that the Club and Mr Gordon personally had reached out to him after the publication of a story about Mr Kneale by the ABC in May 2022, through the journalist Russell Jackson. However, by then Mr Kneale had commenced this proceeding, and did not feel able to engage with the Club or Mr Gordon.[45] Mr Kneale agreed that his family had been estranged from Mr Gordon's and that they had never met.[46]

43 There was evidence that the Club had been notified of the abuse allegations against Hobbs at around the time of his arrest in 1993. Inspector Damien Christensen gave evidence that in February 1993 he attended the Club's premises in Footscray and spoke with Mr Smith. Inspector Christensen said that he told Mr Smith that Hobbs had been interviewed in relation to paedophilia offences and would be charged, and that he was looking for support through the Club to identify and support witnesses or potential victims who might come forward.[47] Although Mr Smith had no memory of any such conversation, the evidence included a statement taken from Mr Smith by Inspector Christensen on 16 February 1993 in relation to unsold membership tickets that had been found in Hobbs' possession.[48] However, Inspector Christensen did not suggest that he had identified Mr Kneale as one of Hobbs' victims.

44 On 25 May 1994, the front page of The Western Times carried a report of Hobbs' plea hearing in the County Court.[49] The lead article read:

Child molester used footy club

A 50-year-old Maidstone man used his position at the Footscray Football Club to lure a young boy into a web of sex, the County Court heard last week.

Graeme Barry Hobbs, of Omar St, pleaded guilty to 13 charges of indecent assault, one of buggery and one of possessing child pornography.

...

The Court was told that Hobbs had sexually assaulted his latest victim in offices at the back of the grandstand at the Western Oval while football matches were being played.

He initially befriended the boy, who was 12 at the time, by offering him free season tickets for the football club. He would also give the boy sums of money up to $20.

Offences against the boy had taken place between 1984 and 1987.

According to the statement read to the court, the boy had said he had met a man called "Chops" at the start of the 1984 football season.

He said "Chops" had given him free season tickets to the football and "as many as I wanted for my friends".

The court was told that Hobbs was a single man whose passion through life had been the Footscray Football Club.

He had been involved in various positions at the club, including that of chairman of fundraising.

When police raided his home on February 9, 1993, they discovered 39 Footscray Football Club membership cards and 14 Footscray Football Club membership medallions.

...

45 Consistent with the Judicial Proceedings Reports Act 1958 (Vic), the article did not identify Mr Kneale. There was no indication in the article that the Club had been contacted for comment.

46 Anthony Wells, formerly a journalist and sub-editor with The Western Times, gave evidence that it was an independent community newspaper with a circulation of nearly 100,000 that was distributed to homes and businesses throughout the western suburbs of Melbourne. The Club was one of many businesses to which the paper was delivered each week.

47 While there was evidence that The Western Times was delivered to, or at least left outside, the Club's offices at the Western Oval, there was no evidence that anyone in authority at the Club had seen or was aware of the May 1994 article. Each of Mr Galimberti, Mr Smith, and Mr Gordon denied having seen the article, and having been aware of the matters it reported. Each of them gave evidence to the effect that they would have remembered if the article had been drawn to their attention. Mr Gordon said that, had he known of the contents of the article, and that Mr Kneale was the person involved and wanted to hear from the Club, he 'would have bent over backwards to find a way to reach out to him'.[50]

48 I concluded that there was no evidence on which the jury could reasonably have awarded aggravated damages in this case, for the following reasons:

(a) The only basis on which the Club could be held liable was in negligence, for failing to notice or act on 'red flags' raised about Hobbs as early as 1981, and failing to exclude him from the Club before 1992. While there was a case to go to the jury that the Club ought to have known of the risk of a child spectator being sexually abused by Hobbs, there was no evidence that it had actual knowledge at any time before 1993. If the jury were to find the Club liable in negligence, it would be because of its omissions, and not due to any deliberate or conscious wrongdoing.

(b) There was no evidence that anyone at the Club other than Hobbs knew of Mr Kneale's existence before May 2022. It might have been different if he was a player, a member, or a volunteer with the Club, but that was not this case.

(c) There was some evidence that the Club knew that Hobbs had been charged and convicted. It was open for the jury to find that Mr Smith was told that Hobbs had been questioned in relation to child sex offences committed at the Western Oval. The jury could conceivably have inferred that someone at the Club must have been aware of The Western Times report of Hobbs' plea hearing, although that would have been against the weight of the evidence. However, there was no evidence that anyone at the Club knew that Mr Kneale was the victim, or had any means of identifying or contacting him.

(d) While I accepted that Mr Kneale's suffering was increased by the lack of any acknowledgement from the Club, it was impossible to characterise the Club's indifference as malicious, deliberate, insulting, or high-handed.

49 Exemplary damages are punitive rather than compensatory. They may be awarded to denounce a defendant's conduct and to deter its repetition, where a tort is committed in circumstances involving a deliberate, intentional, or reckless disregard of the plaintiff's rights.[51] Mere carelessness is not a sufficient reason to award exemplary damages.[52]

50 Mr Kneale gave the following particulars of his claim for exemplary damages:[53]

(a) the Club's negligence showed contumelious disregard for the rights of Mr Kneale and are deserving of condign punishment;

(b) the abuse was extensive and occurred among other places at the Club's premises at the Western Oval including in the office areas, women's toilets, players' toilets, and the old trainers' room, during matches and during training;

(c) children other than the plaintiff were groomed at the Club's premises and subsequently exposed to graphic sexual abuse including watching Hobbs having anal and oral sex with the plaintiff.

51 In his submissions in opposition to the Club's summary judgment application, Mr Kneale argued that the Club's conduct was sufficiently egregious as to warrant punishment and denunciation. He relied on evidence that Mr Macpherson told Mr Smith in 1981 that Hobbs was a sleaze and a 'quintessential dirty old man', a report that demanded a response but received none. This failure to act on a clear red flag meant that Hobbs was able to groom and sexually abuse Mr Kneale at the Western Oval in plain view on dozens of occasions over many years. Mr Kneale argued that the Club's ongoing, persistent negligence, which had allowed him to be handed to a paedophile ring, warranted punishment in the form of exemplary damages.

52 Contrary to this submission, I did not consider that there was any evidence on which the jury could reasonably have awarded exemplary damages. I accepted that it was open to the jury to find that the Club had been negligent, and that its negligence had caused profound injury to Mr Kneale. However, there was nothing to support a finding that the Club's negligence had been deliberate, or intentional, or involved a reckless disregard of Mr Kneale's welfare. There was no evidence that the Club knew during the 1980s of Hobbs' sexual abuse of Mr Kneale or any other child. The red flags that were raised about Hobbs, in particular by Mr Macpherson, were not that definitive. They did not amount to evidence that anyone at the Club knew or even suspected that Hobbs was a sexual predator of children. On the evidence, the jury could not reasonably have found that the Club had deliberately, intentionally, or recklessly exposed a child spectator such as Mr Kneale to the risk of being sexually abused by Hobbs. At most, it could reasonably have found that the Club ought to have known of the risk and failed to do anything to respond to that risk.

53 Each party relied on the expert evidence of a forensic accountant to calculate economic loss. Mr Kneale called Mark Thompson of Vincents Chartered Accountants, while the Club called Melinda Bowman of the Australian Forensic Accounting and Advisory Service of FTI Consulting. Mr Thompson and Ms Bowman agreed on the method to be used in calculating both past loss of income and loss of future earning capacity. The differences in their calculations were attributable to different assumptions they were instructed to make.

54 One such difference was that Mr Thompson was instructed to index Mr Kneale's past losses to today's value, on the basis that plaintiffs are entitled to be compensated for past losses in today's money. While Ms Bowman was not instructed to prepare her calculations on that basis, she accepted that indexation was a matter for the Court, and agreed to provide loss calculations that included indexation. Those calculations were subsequently provided to the jury.

55 Mr Thompson's report referred to the following passage from Professor Harold Luntz's book, Assessment of Damages for Personal Injury and Death:[54]

Before the spread of the practice of awarding interest in cases of damages for personal injury, it was, perhaps, considered that, when deductions are not made for the possibility that various contingencies might have prevented the plaintiff earning the money in any event, a just (albeit crude) compromise was reached by ignoring inflation in this respect. This might still be so in jurisdictions where interest cannot be made to run from the date of the loss or at a sufficiently high rate. If the rate of inflation over the period exceeded the statistical chances of loss of income due to sickness, unemployment, etc (see [7.4.13]-[7.1.16]), the plaintiff would in such jurisdictions suffer from the compromise. If we assume that increases in earnings are due solely to the need to counteract the effects of inflation and it is impossible to compensate for this through an award of adequate interest, the plaintiff should be entitled to have the loss calculated on the earnings at the date of the trial, and not at the lower rates current at various times since the date of injury. This is because the plaintiff has been deprived of the opportunity to turn the wages into goods and services (or investments to counteract inflation). Those goods and services (or investments) have, ex hypothesi, increased in cost and, in order to be compensated for the deprivation, the plaintiff should receive their current equivalent in wages, together with additional compensation for the postponement of their enjoyment. Such additional compensation need then be only at a rate of interest that excludes an allowance for inflation.

56 In his evidence at trial, Mr Thompson explained that a peculiarity of the Victorian system is that interest is not available for historic losses, and that indexation is another methodology that can be employed to ensure that compensation better matches its intention.[55] He described indexation as compensation for the loss of purchasing power: 'giving you the money so that you could go and buy the same goods and services as you could have bought with those earnings back when you would have earned them'.[56]

57 The Club did not take issue with the method used by Mr Thompson to index past loss of earnings for inflation. Rather, its position was that past losses should not be indexed, as this was not the usual practice in Victoria. Counsel for the Club could not refer me to any authority to support that submission, beyond the fact that there is no provision in Victoria for statutory interest on losses suffered before the commencement of a proceeding.

58 The purpose of an award of damages is to compensate the plaintiff for the wrong they have suffered. Where that wrong is a tort, damages are to be assessed so as to put the plaintiff in the position they would have occupied had the tort not been committed. In Haines v Bendall,[57] a majority of the High Court said:[58]

The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed: ... Compensation is the cardinal concept. It is the "one principle that is absolutely firm, and which must control all else": .... Cognate with this concept is the rule ... that a plaintiff cannot recover more than he or she has lost.

59 It appears to me that indexation of past loss of earnings to allow for inflation gives effect to the 'cardinal concept' of compensation. In some other jurisdictions, this is achieved by legislation that allows the award of interest on damages between the date the loss was suffered and the date that damages are assessed.[59] The fact that Victorian legislation does not provide for this form of statutory interest does not modify or exclude the application of settled common law principle to the assessment of damages for past economic loss.

60 In this case, Mr Kneale's economic loss extended back more than 30 years, and included a period between 1993 and 2000 when he was unable to work at all. Indexation of those losses to counter the effects of inflation achieved the purpose of compensation, while ignoring those effects would not have put Mr Kneale in the position he would have been in had his earning capacity not been impaired by the Club's negligence and Hobbs' abuse.

61 For those reasons, I ruled that past loss of earnings should be indexed for inflation, so that damages assessed in today's money would reflect the value of past losses, and instructed the jury on that basis.

62 Mr Thompson was instructed to discount future losses at the rate of 3%. Ms Bowman calculated future losses by applying two alternative discount rates, of 3% and 5%.

63 A discount rate of 5% must be applied to an award of damages for future economic loss to which Pt VB of the Wrongs Act 1958 (Vic) applies.[60] It was common ground that, if Pt VB of the Wrongs Act did not apply, the appropriate discount rate was 3%.[61]

64 Part VB of the Wrongs Act applies to an award of personal injury damages, except an award that is excluded by s 28C(2). Section 28C(2) provides:

The following awards of damages are excluded from the operation of this Part -

(a) an award where the fault concerned is an intentional act that is done with intent to cause death or injury or that is sexual assault or other sexual misconduct;

...

65 In PCB v Geelong College,[62] O'Meara J held that the exclusion in s 28C(2)(a) of the Wrongs Act applied in a case very similar to this one, where the defendant had been found liable in negligence for injuries caused by sexual abuse of the plaintiff by a volunteer. His Honour held:[63]

Applying the statutory meaning of 'fault' - namely, act or omission - the section will exclude the operation of Part VB if the act or omission 'concerned' in the 'award' of damages is sexual assault or sexual misconduct. In this sense, it is unnecessary that the act or omission be that of the defendant, only that the defendant be liable in damages for it and that it be 'sexual assault' or 'sexual misconduct'.

It followed that the provisions of Pt VB of the Wrongs Act were excluded in that case.

66 The Club referred me to the Court of Appeal's decision in State of Victoria v Thompson,[64] and submitted that I should not follow O'Meara J's reasoning in PCB. I could only take that course if I was satisfied that his Honour's reasoning was plainly wrong, which I was not. To the contrary, I considered that O'Meara J's reasoning was consistent with that of the Court of Appeal in Thompson, in relation to s 28LC(2)(a) in Pt VBA of the Wrongs Act.

67 On that basis, I instructed the jury that damages for loss of future earning capacity should be discounted at the rate of 3%. The jury was provided with a set of calculations that applied that discount rate.

68 Mr Kneale pleaded both a non-delegable duty of care and a general duty of care.[65] His case at trial did not feature a non-delegable duty of care, and he formally abandoned that claim at the hearing of the Club's summary judgment application.[66]

69 The general duty of care was pleaded as follows, in paragraph 11 of the further amended statement of claim:

Further and in the alternative to 5B above, at all material times:

(a) the First Defendant; and

(b) Hobbs:-

owed to the Plaintiff, as a child attending the premises as a spectator, a duty to take reasonable care for his safety to ensure that the Plaintiff was not injured or exposed to unnecessary risk of injury due to being on the premises, including injury as a result of sexual abuse.

70 Earlier versions of the statement of claim pleaded the duty of care in the same terms.[67] In all versions of the statement of claim, 'the premises' were defined to be the premises at 417 Barkly Street, West Footscray, in the State of Victoria, from which the Club has operated since about 1883. That is the address of the Western Oval, now known as the Whitten Oval.

71 The Club responded to the pleaded duty of care as follows:[68]

(a) it admits that in the period 1983 to 1991 it owed a duty to take reasonable care to avoid foreseeable risks of injury of which it knew or ought to have been aware to persons attending the FFC club premises;

(b) it otherwise denies the allegations in paragraph 11.

72 On the sixth day of the trial I heard argument in the absence of the jury about how I should instruct the jury about the duty of care. I had anticipated a need to resolve the difference between the duty of care pleaded by Mr Kneale and that admitted by the Club. However, in the course of argument, senior counsel for Mr Kneale indicated that he would be content to proceed on the basis of the duty of care admitted by the Club.[69]

73 The Club submitted that it was not so simple, that the pleading in paragraph 11 of the statement of claim raised questions of occupier's liability, and that the Club had reasonably proceeded on the basis that it was an occupier's liability claim. It argued that it was necessary to read the admission in paragraph 11(a) of the defence in light of the denial in paragraph 11(b). The Club referred to Agar v Hyde[70] and Crimmins v Stevedoring Industry Finance Committee,[71] both cases in which the defendant had denied owing any duty of care to the plaintiff.[72] It contended that paragraph 11 of the defence was framed so as to admit the existence of an occupier's duty and to deny any wider duty of care. It sought to characterise the plea in paragraph 11 of the statement of claim as a state of the premises plea, and said that it should not be taken to have admitted a wider duty of care.

74 After hearing that argument, I indicated that I would instruct the jury that the defendant admitted a duty of care in the terms set out in paragraph 11(a) of the defence. Accordingly, I charged the jury as follows:[73]

In this case the Club admits that in the period 1983 to 1991 it owed a duty to take reasonable care to avoid foreseeable risks of injury of which it knew or ought to have been aware to persons who attended the Club's premises at the Western Oval.

The relevant risk of injury in this case was the risk of a child spectator such as Mr Kneale being sexually abused by Graeme Hobbs. Mr Kneale says that the Club ought to have known of this risk, and that it was reasonably foreseeable. The Club denies this, and this is the critical issue for you, really.

75 The duty of an occupier of premises was codified by the Occupiers' Liability Act 1983 (Vic) in the following terms:

An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.

This duty now appears in s 14B(3) of the Wrongs Act, and applies in place of the rules of the common law that previously determined the standard of care that an occupier was required to show towards persons entering on the occupier's premises in respect of dangers to them.[74]

76 It will be apparent that I did not accept the Club's submission that paragraph 11 of the statement of claim pleaded an occupier's duty. That was because the statement of claim did not plead that the Club was an 'occupier' of the premises at the Western Oval, and did not allege that Mr Kneale had been injured or damaged by reason of the state of the premises or of any thing done or omitted to be done in relation to the state of the premises. Rather, paragraph 11 alleged that both the Club and Hobbs owed a duty to Mr Kneale, as a child attending the premises as a spectator, to ensure that he was not injured or exposed to unnecessary risk of injury due to being on the premises, including injury as a result of sexual abuse. This formulation did not resemble an occupier's duty. Sexual abuse is plainly not a risk associated with the state of the premises. In addition, the duty was alleged to be owed by both the Club and Hobbs, with no suggestion that Hobbs was an occupier of the premises at the Western Oval.

77 It is the case that paragraph 11 of the statement of claim used the word 'premises', and referred to a 'risk of injury due to being on the premises', which are words that usually appear in an allegation of occupier's liability. However, in the context of the entire pleading in this case, 'the premises' clearly referred to the place at which the Club operated,[75] which Mr Kneale attended as a spectator between about 1983 and 1991,[76] and where Hobbs met Mr Kneale and sexually abused him on many occasions between June 1984 and 1989.[77]

78 For similar reasons, I did not consider that the admission in paragraph 11 of the defence was confined to an admission of an occupier's duty. The admission responded to the duty pleaded in the statement of claim. There was no admission, in paragraph 11, or elsewhere in the defence, that the Club was the 'occupier' of the premises. The duty of care that was admitted in paragraph 11(a) was generally 'to persons attending the FFC premises' and was not confined to risks of injury by reason of the state of the premises.

79 The denial in paragraph 11(b) of the defence did not somehow narrow the admission in the preceding paragraph. Its effect was to deny any duty beyond that admitted in paragraph 11(a), and to deny that injury as a result of sexual abuse was a risk of injury due to being on the premises. Separately, in paragraph 10, the Club denied that it knew or ought to have known that Mr Kneale was at risk of being sexually abused by Hobbs. The Club's pleaded response to the negligence claim was that it admitted a general duty of care to spectators attending the Western Oval, but denied that there was a foreseeable risk of a child spectator such as Mr Kneale being sexually abused by Hobbs. It was on that basis that I charged the jury.

[1] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, [35].

[2] Trkulja v Google LLC (2018) 263 CLR 149, [55].

[3] Naxakis v Western General Hospital (1999) 197 CLR 269, [16]-[17] (Gaudron J), [40]-[41] (McHugh J), [66]-‍[68] (Kirby J), [117]-[123] (Callinan J).

[4] Transcript, 17 October 2023, 41:15-16 (Address (Mr Hammond)).

[5] Further amended statement of claim dated 27 July 2023, [4].

[6] Further amended statement of claim, [5].

[7] Further amended statement of claim, [5A](a), (c)-(e). The allegation in [5A](b) was not pressed.

[8] Further amended statement of claim, [13].

[9] Further amended statement of claim, [14](a)-(h).

[10] Further amended statement of claim, [15].

[12] On 20 October 2023, the High Court granted special leave to appeal from the Court of Appeal's decision: DP v Bird [2023] HCATrans 145.

[13] Bird, [81]-[82] (citations omitted).

[14] [1931] HCA 53; (1931) 46 CLR 41.

[15] [2001] HCA 44; (2001) 207 CLR 21, [39]-[40], [42] (Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ), discussed in Bird at [90]-[94].

[16] [2006] HCA 19; (2006) 226 CLR 161, [14]-[19], [22], [24], [32] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ), discussed in Bird, [99]-[103].

[19] Bird, [114] (citations omitted).

[24] Prince Alfred College v ADC [2016] HCA 37; (2016) 258 CLR 134, [80]-[81] (French CJ, Kiefel, Bell, Keane and Nettle JJ).

[25] Prince Alfred College, [81] (French CJ, Kiefel, Bell, Keane and Nettle JJ).

[26] Transcript, 18 October 2023, 93:4-30, 94:12-95:12 (Plaintiff XN). Mr Kneale later clarified that these interactions took place in the EJ Whitten Stand, and not the John Gent Stand.

[27] Transcript, 18 October 2023, 99:5-17 (Plaintiff XN).

[28] Exhibit P20 - Police statement of Adam Kneale dated 29 January 1993, 1.

[29] Exhibits P24 to P33 were excerpts from the Club's annual reports for 1981 to 1985 and 1987 to 1991. No excerpts from the 1986 annual report were tendered.

[30] Exhibit P56 - Record of interview of Graeme Barry Hobbs dated 9 February 1993 (redacted).

[34] Transcript, 30 October 2023, 856:16 (S Kolyniuk XN).

[35] Exhibit P34 - Excerpts from the April 1986 edition of The Bulldog.

[36] Exhibit P35 - Excerpts from the June 1987 edition of The Bulldog.

[37] Transcript, 30 October 2023, 870:6 (S Smith XN)

[38] Hollis, [34], quoted in Bird, [81], at [14] above.

[42] State of New South Wales v Ibbett ([2006] HCA 57; 2006) 229 CLR 638, [31]; Carter v Walker [2010] VSCA 340; (2010) 32 VR 1, [283].

[43] Further amended statement of claim, [17](iv)-(vi).

[44] Transcript, 18 October 2023, 156:2-157:4.

[45] Transcript, 18 October 2023, 157:5-14; 19 October 2023, 200:5-204:26.

[46] Transcript, 19 October 2023, 199:23-200:4.

[47] Transcript, 19 October 2023, 271:8-273:30, 279:20-281:29.

[48] Exhibit P21 - Police statement of Stephen Smith dated 16 February 1993.

[49] Exhibit P23 - Front page of The Western Times dated Wednesday 25 May 1994.

[50] Transcript, 31 October 2023, 1006:29-1007:23.

[51] Carter v Walker, [284]. See also Erlich v Leifer [2015] VSC 499, [208]-[209], [221]-[224] and Cruse v State of Victoria (2019) 59 VR 241, [216]-[226].

[52] Midalco Pty Ltd v Rebenault [1989] VicRp 45; [1989] VR 461, 477 (Fullagar J).

[53] Further amended statement of claim, [17](i)-(iii).

[54] Harold Luntz and Sirko Harder, Assessment of Damages for Personal Injury and Death (LexisNexis, 5th ed, 2021) [8.1.9] (footnotes omitted).

[55] Transcript, 25 October 2023, 606:14-24.

[56] Transcript, 25 October 2023, 607:3-8.

[57] [1991] HCA 15; (1991) 172 CLR 60 (Haines).

[58] Haines, 63 (Mason CJ, Dawson, Toohey and Gaudron JJ) (citations omitted).

[59] For example, Civil Liability Act 2002 (NSW), s 18(2).

[60] Wrongs Act 1958 (Vic), s 28I.

[61] Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402.

[62] [2021] VSC 633 (PCB).

[64] [2019] VSCA 237; (2019) 58 VR 583.

[65] Further amended statement of claim, [5B]; [11].

[66] Plaintiff's submissions dated 31 October 2023, [1]; Transcript, 1 November 2023, 1030:8-1031:29.

[67] Statement of claim dated 2 May 2022, [11]; Amended statement of claim dated 16 May 2023, [11].

[68] Amended defence to further amended statement of claim dated 17 October 2023, [11]. The same response appeared in the earlier versions of the defence dated 16 August 2022 and 4 September 2023.

[69] Transcript, 24 October 2023, 501:8-502:22.

[71] [1999] HCA 59; (1999) 200 CLR 1.

[72] The Club also referred to Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, which concerned whether there had been a breach of duty.

[73] Transcript of charge, 8 November 2023, 1364:10-20.

[74] Wrongs Act, s 14B(1).

[75] Further amended statement of claim, [3].

[76] Further amended statement of claim, [6].

[77] Further amended statement of claim, [7].