TT v The Diocese of Saint Maron, Sydney & SS

The evidence

1. The plaintiff's evidence was made up of a statement (Exhibit A), some additional oral evidence in chief, cross-examination, and re-examination. I do not propose to repeat every aspect of Exhibit A, although I think it important to set out what the plaintiff stated about the abuse at [21]-[27] of the statement: "To the best of my recollection the first time something happened with [SS] was when I was attending the Maronite church retreat. I was about 13 or 14 years old. I remember waking up during the night to go to the kitchen and [SS] appeared. He took me for a walk outside and we sat in a grassy area between large rocks. While we sat on the grass [SS] held my hand then put his other hand on my penis on the outside of my clothing. This is the first time I recall any physical touching by [SS]. This at the time felt like an innocent quick half of a second and it didn't seem wrong at the time for me and him. At the same retreat I recall a group photograph being taken, [SS] had his hand on my bottom while it was being taken. After the retreat whenever I was in [SS's] car, I always sat in the front passenger seat and [SS] would place his hand on my inner thigh. This happened several times. I was only ever in [SS's] car in relation to church activities. He was either dropping me home or driving me to a church related activity. On one occasion in the car [SS] grabbed my hand and placed it on his penis over his clothes. I pulled my hand away. I remember trying hard to pretend these things didn't happen and I'm crazy. He was smart and knew internally I was soft, and I wouldn't speak up. After the retreat [SS] often greeted me with a hug and then touched my crotch area. He would then say in Arabic 'kayf el baydoutt'. In English this translates to 'how are your balls?'. This usually occurred at St Joseph's church when we were preparing for mass. [SS] would often stroke my bottom, wink at me, and blow me kisses. I recall having mixed feelings of confusion and feeling special. [SS] was very friendly. He made me feel special, like the chosen one. He would hold my hand, grope my bum, put his hand on my inner thigh and over my clothes playfully tickle my testicles. I normalised this behaviour but did not tell anyone. When I was around 14, 15 years of age I recall being in the tabernacle of the church getting ready for 7pm mass and [SS] grabbed my penis. I smiled and moved away."
2. In October 2005, the Church was the host for a 'Relics Tour' which lasted a few days and nights. The Plaintiff said in his statement that the following occurred during the tour, at [34]-[41]: "[SS] asked my mother on the final night, more than once, if I could spend the night with him at the church, but my mother objected. What I mean by this is that, at the end of the mass, he would try and convince my mum. On the night I ended up sleeping, it was me who actually begged my mum to sleep there. By the final night I was exhausted, and I was literally falling asleep as I stood. I waited for [SS] because he was going to give me a lift home. This was not uncommon, and my mother knew that I was with the priest, and someone would make sure l got home. My family were at the church every day, but they did not stay all night. We closed everything up. [SS] and some other committee members were going to get some breakfast before [SS] drove me home. We frequently went to a Lebanese bakery that was close by. I cannot remember the name of it, but I remember the place we went to was closed. It was decided that we would go to the nearest McDonald's at Croydon on Parramatta Road. I remember we were trying to get breakfast before [SS] took me home. It was only me and [SS] in the car. [SS] drove a dark green or dark blue RAV 4. I was in that car all the time. So that morning was no different other than I was really exhausted, almost dead to the world. We were driving for breakfast and suddenly he pulled over. At this stage I was seated in the front passenger seat. I had my seat just a little back and had fallen asleep. When I woke up it was because I flinched as I felt pressure on my genital area. I froze and didn't want to open my eyes. I was scared. On a personal level, l was there but I was not there. What I felt was [SS] with his hand in my pants and he had a hold of my penis. The pants I was wearing had a shoestring at the top he couldn't get easy access or movement, he removed his hand from inside my pants and then grabbed hold of my penis from over the top of my trousers. I hate to admit this, and I felt sick, but my penis was aroused, and it was hard. My eyes were shut so I started squinting and could see [SS] with his hand leaning in towards me. [SS] did not say anything. I could hear him breathing heavily as his hand went inside my pants again. He kept a tight hold of my penis and started to rub it up and down. He did this with his right hand. [SS] continued to do this until I ejaculated. I ejaculated all over the inside of my pants. Nothing was said and he eventually stopped when he realised, I had ejaculated. He pulled up and sat back in his seat. I eventually opened my eyes completely and saw that we had ended up back on a street just past Acton Street, Croydon. [SS] had pulled over in a street just around the corner from the church. I don't know whether [SS] knew I was awake or not during the incident, but I know l was a statue, and my heart didn't even beat. After he finished, with his hand he wiped himself on my pants on my thigh area because I had ejaculated inside my pants, and they were wet down the front."
3. The cross-examination of the plaintiff, at least during the hearing in August 2023, concentrated on the background to the plaintiff's involvement at the church, on his interactions with various persons in the church (including the second defendant) and a general scrutiny of the allegations being made by the plaintiff.
4. When the matter resumed on 17 June 2024, the cross-examination extended to the specific allegations of abuse that had been made by the plaintiff. Particular emphasis was placed on the events of the final day of the Relics Tour when the plaintiff alleges that, in the early hours of the morning, he was driven in the second defendant's motor vehicle to a suburban location where he was abused.
5. The cross-examination was also directed at the plaintiff's pre-abuse circumstances and those that he asserts have existed since the abuse. In general terms, the plaintiff's allegation is that he was a happy young boy before the abuse, doing well at school and without any psychological problems. Since the abuse, on his case, he has had significant psychological problems which now leave him in a situation where he frequently requires rehabilitation, is entirely dependent on his mother for care and has become a gambling addict and a frequent user of alcohol and drugs.
6. In order to combat the plaintiff's allegations about the changes he has experienced, the first defendant sought to maximise the plaintiff's bad behaviour before the abuse and normalise his behaviour since the abuse. While the first defendant cannot be criticised for attacking all aspects of the plaintiff's allegations, there was a degree of inconsistency in the approach of asserting the plaintiff was badly behaved before the abuse but well-behaved after it.
7. As a general statement, the plaintiff was an unsatisfactory witness. He was often argumentative, sometimes rude to the cross-examiner and frequently asserted that he could not remember many of the events that were put to him.
8. An unsatisfactory witness is not necessarily a dishonest witness. This is particularly the case where a witness is giving evidence about historic allegations and has since been plagued, whatever the cause, by addictions and the frequent and overconsumption of drugs and alcohol.
9. At the resumption of his evidence the plaintiff gave this evidence: "Q. Equally it's part of your case that you've had a significant problem with drugs and alcohol since that time? A. Definitely. Q. Mainly marijuana, correct? A. Over the last eight to ten months it's actually changed. I've been doing a lot of ice lately and …"
10. It is impossible for me to say if the plaintiff was under the influence of ICE or any other drug while he was giving evidence, but he certainly displayed an agitation and irritation that was perhaps consistent with consumption of 'something'. One of the signs displayed by the plaintiff while in the witness box was a significant shaking of his legs. I note that Dr Klug refers to a "tremor of his legs" as being a characteristic of panic attacks.
11. The first defendant made much of minor inconsistencies in the plaintiff's evidence. For example, different versions, as to detail, were put to the plaintiff in regard to complaints made to various persons. The plaintiff, again as an example, said that he and the second defendant had not gone to the bakery to discover it was closed, or to McDonald's. However, he said to BT: "I was sleeping at the church of the last night of the Relics, and it was early in the morning. [SS] told me that I'm taking you to get breakfast. I entered his car and we arrived at the location for breakfast, but it was closed. So, he said I'll take you back to the church. While we were driving back, I fell asleep."
12. The plaintiff told NB: "(The plaintiff) said when he was in [SS's] car on the way to get some food, he had fallen asleep. (The plaintiff) told me he woke up because [SS] was rubbing his private parts over his pants, but he pretended to be asleep."
13. The history given to UT was: "[SS] was taking me to breakfast in his car in the early hours of the morning. I was sleeping and he pulled over to the side of the road not far from the Church and McDonalds. I felt [SS's] hand on my penis, and he began to masturbate me."
14. The complaint made to Monsignor TN has the plaintiff being abused at McDonald's, presumably in the car park: "(The plaintiff) explained that while at McDonald's he fell asleep in the front seat of the Priests car. (The plaintiff) said to me that he was woken up, but remained lying back still, when he felt a hand on his thigh … ."
15. It is important to note here that this being a civil proceeding, complaint evidence might be viewed in a different manner to a criminal proceeding. Section 66(2) of the Evidence Act 1995 (NSW) does not apply. However, no objection was taken to the complaint evidence. As just seen, the complaint evidence was used as a tool by the defendant to attack the credibility of the plaintiff. On the other hand, the complaint evidence can also be used by the plaintiff to show a consistency of complaint by the plaintiff and in turn can amount to some proof of what the plaintiff alleges. No limitation was sought by the defendant on the use to which the complaint evidence could be used.
16. This was the approach taken by Lee J in Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369. His Honour stated at [549]-[550]: "This is a civil proceeding and so s 66(2) EA, applicable to complaint evidence, is not relevant. In this civil case, no objection was made as to the admissibility of any evidence of complaint or alleged prior consistent statements made by Ms Higgins, and I was not asked to exercise my discretion to limit the use of any such evidence under s 136 EA. Hence the evidence of her contemporaneous representations to Ms Brown, Mr Payne, Mr Dillaway, Major Irvine, Mr O'Connor and, as we will see, the AFP on 1 April, can go beyond merely putting other post-incident conduct in proper context but can also be used to show consistency of conduct by Ms Higgins, some proof of the fact of what was asserted in the representations; in this way, the previous representations are relevant to the reliability of Ms Higgins in this aspect of her evidence."
17. I agree that the complaint evidence contained differences in detail. However, the complaints were not all made at the same time and were sometimes made some years after the incident. I do not think the inconsistencies necessarily suggest dishonesty or fabrication. Identical complaints would have been hard to accept.
18. I also think it relevant that the abuse complained of, while obviously reprehensible, is not as egregious as might have been the case. A person making an allegation of sexual abuse could potentially go a lot further, in details of the abuse, than the description given by the plaintiff. I stress that this is no more than a minor factor to be considered.
19. There is another 'pseudo-complaint' which I think is relevant. This is the suicide note written by the plaintiff to his parents. It is not in evidence, but Dr Klug refers to it as follows: "I note the suicide note written by (the plaintiff) which makes reference to the relevant abuse in the past."
20. The plaintiff was also attacked on the simple impossibility of his allegations. In relation to grooming the following points were made: 1. The plaintiff had not made any allegations of grooming conduct other than in his statement in 2023 (Exhibit A). In particular, they were not included in his statement to the police in 2013 nor did he give evidence of them during the criminal trial. Importantly the statement (Exhibit 1D25), states: "The actual incident was a one off incident." 1. The plaintiff's assertion that he only recalled the grooming incidents later, around 2016 or 2017, following eye movement desensitisation at a rehabilitation centre in Thailand was "uncompelling". One of the difficulties with this assertion is that the plaintiff saw Dr Klug on 2 July 2018 and did not give a history of the pre-October 2005 incidents. In fact, the history included this statement: "He enjoyed a secure childhood with good parenting and no other history of exposure to violence or abuse." (Emphasis added) 1. The plaintiff's allegations referred to him being in the second defendant's motorcar on several occasions when the second defendant would "place his hand on my inner thigh". I understand these allegations referred to a period when the plaintiff was 13 or 14 years old, therefore in 2003 or 2004. The difficulty is that the second defendant was on a learner's licence from 26 March 2004 until 28 September 2004 and then on a provisional ('Red Ps') licence until 23 November 2005. The rules regarding learner drivers would have required the second defendant to have a licensed driver (an adult) in the motor vehicle with him. 2. Numerous incidents such as touching the plaintiff's bottom or blowing him kisses were most unlikely because they were said to have occurred in locations where there would have been other persons about. These actions are fleeting and conceivably could occur notwithstanding the presence of other people. 3. The very first incident, said to have occurred at a retreat was unlikely because it was alleged to have occurred in a kitchen, separate from the sleeping area, and where it would have been most surprising that the second defendant was present.
21. I think the most important factor of those incidents just listed relates to the police statement. Referring to the October 2005 incident as a "one-off incident" is a plain statement that no other abuse had taken place. I would also add to this category of complaint, the discussion with Monsignor TN which occurred on 1 October 2013. A comprehensive record of the complaint was made (Annexure A to Exhibit 1D13) and contains no reference to any misconduct prior to October 2015.
22. I cannot discount the possibility of treatment releasing memories, but there is no expert evidence on this point and there is no evidence from the rehabilitation centre in Thailand to corroborate the emergence of the memories.
23. I intend to find that the plaintiff has not established the allegation of grooming. This conclusion might be seen as affecting the plaintiff's credibility in respect of the October 2005 incident. I think that is an important element but not one that necessarily destroys his credibility. I think it is as likely that he invented the grooming as that the memory of it as a reconstruction which the plaintiff may genuinely believe. The latter suggestion becomes more credible bearing in mind that the plaintiff's apparent memory arose during treatment, perhaps subconsciously affecting his belief in what he perceived as a memory of actual events.

Plaintiff's functioning pre-abuse

1. I will now turn to the evidence concerning the plaintiff's pre-abuse functioning, in particular at school. The plaintiff stated that "before the assault I performed well at school and had good grades". The plaintiff was taken to his school records which indicated many acts of bad behaviour, leading to suspensions and a threat of expulsion. The plaintiff said he was a "good boy" before the abuse although he was also "cheeky". The contents of the school reports suggest the plaintiff was not the model, if perhaps a little mischievous, student that he suggested. I have the impression the plaintiff, while perhaps achieving some reasonable grades, was also disruptive and often unruly. The plaintiff did suggest that perhaps the bad behaviour was somehow connected, subconsciously, to the grooming that he was being subjected to. As will be seen below, there is some support for this suggestion in the expert evidence.
2. Notwithstanding this support, the difficulty faced by the plaintiff is that the unruly behaviour highlighted by the reports precedes the alleged grooming. According to the amended statement of claim the grooming started in 2002. The plaintiff's evidentiary statement says it started when he was 13 or 14 years of age. The starting date, on this basis, would be in the second half of 2003.
3. With these dates in mind, it is necessary to look at the reports. They are from Christian Brothers' High School Lewisham (Exhibit 1D21). The plaintiff was in Year 5 in 2000. The reports for this year do have some positive elements. For example, he did quite well in literacy and very well in numeracy. But there was also this report of unsatisfactory conduct: "(The plaintiff) has been thoroughly warned about acceptable behaviour, however he has consistently chosen to ignore it. I am very disappointed with (the plaintiff's) attitude at the moment. Considering (the plaintiff) had a formal detention last Thursday, then I don't think that he is learning his lesson."
4. Again in 2001 there are some positive comments, but also some which contain reservations. At the end of the first semester his class teacher wrote: "(The plaintiff) is a student who enjoys participating in all aspects of his schooling. He enjoys the social interactions and generally gets on well with others. (The plaintiff) is always happy to participate in class activities and discussions and I know that whatever the task he will give it a go. In overseeing (the plaintiff's) progress he shows signs of having a range of abilities that with nurturing and challenge will develop into unique talents. He has a great capacity to learn and to comprehend and often makes valuable contributions to class discussions. He demonstrates an ability to apply a range of thinking skills and can deal with abstract concepts. The challenges for (the plaintiff) in his schooling are to be able to remain focused on his work and not to succumb to the temptation of being distracted. He also needs to take greater care in the preparation and presentation of his work. Far too often he doesn't plan and organize his ideas and then he rushes his work decreasing his chance to fully comprehend and utilize his learning to its greatest potential. If (the plaintiff) can apply himself fully to working harder at organizing and presenting his work then I believe that he will flourish as a student and establish himself in preparation for next year."
5. In the first semester of 2002 the plaintiff seems to have performed slightly under the average for his class with comments ranging from "A capable student who has earned this pleasing result" to "More application is required for improvements in progress or results". Notably in Catholic studies the plaintiff was "commended for his participation in class discussion".
6. An interim report in Term 1 of 2002 has the plaintiff achieving satisfactory academic progress but in every subject except "PH/H/PE CORE" his behaviour is in the category of "Improvement Needed".
7. A further interim report in 2003 suggests the plaintiff had a generally satisfactory academic progress but his behaviour again often fell into the "Improvement Needed" category. For example, his history teacher wrote: "(The plaintiff) is capable of making a positive contribution to every lesson. However (the plaintiff) has a problem with his attitude and behaviour. He is often late to class and is easily distracted from his studies. The (plaintiff) is often very argumentative when corrected for disrupting the lesson."
8. In May 2004, a teacher asked the principal to take action against the plaintiff after she had asked him to sit down, and he responded: "I think you should shut the f*** up."
9. In the same month a different teacher (in religious studies) made a note that: "(The plaintiff) was very rude and insolent. He was displaying silly behaviour … He refused to leave the room. He was verbally abusive - challenging me."
10. In November 2004 the plaintiff's parents received a Student Demerit Slip which stated: "Constant complaints from teachers about poor behaviour in class, disobeying instructions, not having a diary and rudeness, not working in class out of uniform again."
11. The plaintiff's parents responded "(the plaintiff) said I am very sorry and will not happen again."
12. On 26 November 2004, in another demerit slip, it is said that the plaintiff: "Put a piece of paper into overhead projector and set fire up."
13. The plaintiff's parents responded: "(The plaintiff) is sorry and will do better next year."
14. In February 2005 the deputy principal wrote to the plaintiff's parents stating: "Your son (the plaintiff) was involved in an incident last week in which he engaged in unacceptable behaviour whilst on detention, which involved the use of threatening language to a teacher."
15. On 4 March 2005 the principal wrote to the plaintiff's parents: "Your son (the plaintiff) was involved in an incident yesterday in which he engaged in unacceptable behaviour whilst at sport, which involve the use of highly inappropriate language. I am writing to advise that he has been suspended from school effective immediately and has been withdrawn from classes today…. (The plaintiff) must understand that such instances of poor judgment will place his position at Christian Brothers in jeopardy."
16. On 7 March 2005 a note was put in the plaintiff's student file about disrespectful behaviour while on a school excursion. The following day the principal wrote to the plaintiff effectively threatening expulsion if the plaintiff's behaviour did not improve: "Mr Roberts also made it clear that if you seriously, wilfully or repeatedly breach the promises that you made this morning, then your enrolment at CBHS Lewisham may be terminated immediately."
17. The school reports obviously contradict the plaintiff's assertions about his pre-abuse performance at school. The plaintiff's mother, in her statement (Exhibit L1) said the plaintiff was "smart and he was honest, and he showed respect." The latter attribute seems to have often been absent at school. The plaintiff's mother added that "He was a good student, and he was definitely loud and happy." He certainly seems to have been "loud and happy", but perhaps not as good a student as she suggests.
18. The overall impression I have from the school reports is that the plaintiff and his mother have somewhat glossed over the plaintiff's behaviour before October 2005 and that the inappropriate behaviour extends to a period well before any possible act of grooming by the second defendant might have taken place.

Plaintiff's conduct since leaving school

1. In relation to the plaintiff's conduct since leaving school, his case is that since losing his job in 2017 with a security firm (SNP) he has not been able to work, he has found it difficult to leave the home, he has been wholly dependent upon his mother, and he has been dependent on assorted persons for finances.
2. The plaintiff said that when he did go out, he was in a "disassociated state", sometimes effectively wandering, or driving, in a meandering fashion without purpose. He said he never wore a seatbelt because of the abuse that he had suffered while being in the motorcar with the second defendant. He said he was frequently stopped by the police for speeding and not wearing a seatbelt. It was put to him that this evidence was inconsistent with there being only one recorded charge of failing to wear a seatbelt in his driving record. He said this was because he had managed to persuade the police not to proceed on the seatbelt charge. They sympathised with him after he told them the reason for his not wearing the seatbelt.
3. Another apparent inconsistency highlighted by the first defendant was the plaintiff's assertion of uncontrolled defecation. He said this happened frequently. It was pointed out to him that none of the institutions where he had spent time had any record of this condition. The plaintiff responded that the institutions provided a different environment than his bedroom and the Valium he was prescribed at the institutions assisted in preventing this condition. He said: "Q. I want to put to you that on not a single occasion that you were in one of those facilities is there a record of you soiling the bed at night, is there? A. Definitely not a record but it's definitely happened plenty of times. And I might add, I'm - I think Valium helps a lot with my brain and helping me with sleep and they did put me on - she tried me on a lot of crazy medications, which I kept refusing as much as I could but it's definitely a different environment than my bedroom."
4. Somewhat surprisingly, the plaintiff does not receive any government assistance by way of social security payments or a disability pension. He said this was because he could not be bothered with the questions in the application process. I found this answer to be almost extraordinary, bearing in mind his persistent need for money for his gambling addiction and the purchase of illicit drugs. This was an example of the plaintiff's obviously illogical evidence perhaps supporting his case rather than contradicting it.
5. The plaintiff's mother confirmed his attitude to obtaining government assistance.
6. In respect of work, it was put to the plaintiff that he had received many supportive references and he had lasted in different places of employment for far longer than he had suggested. The first defendant posed the question of how he could obtain good references against his assertions that he could not hold a job for very long and was frequently dismissed for bad behaviour. The plaintiff responded that he would lie in respect of employment in order to obtain other jobs and that he was effectively bluffing his way into a new prospect of work.
7. The plaintiff's assertions that he was housebound and entirely dependent on his mother for care were tested by outlining to him the various trips that he had undertaken, usually alone, and to distant destinations. The plaintiff was also cross-examined in detail about his expenditure, as revealed in the transactions with a CBA account.

Plaintiff's travels

1. Starting with travel, the plaintiff accepted that he had travelled alone but said that he was generally travelling to a destination where he would be met on arrival and farewelled by a relative.
2. Exhibit 1D39(B) is a schedule of the plaintiff's overseas travel. The first trip is to Lebanon in June 2009 for a month. The plaintiff would then have been 18 years of age. There are then 16 more trips, the last having been between 25 April 2024 and 13 May 2024 when the plaintiff went to Bali. The travel to Lebanon involved staying with relatives. During his two trips to the United States the plaintiff was either accompanied by family or stayed with his sister at the convent in Massachusetts. It is unclear why, and for how long the plaintiff visited Dubai and the United Arab Emirates. These may have been short trips associated with travel to other places. The plaintiff's trip to Italy in May 2017 was to attend a friend's wedding. I note that three days after returning from Italy the plaintiff was admitted to Concord Repatriation Hospital for four days.
3. There are seven trips to Thailand, presumably associated with rehabilitation treatment at 'The Cabin' Chiang Mai. There are some discrepancies, however. For example, the plaintiff travelled to Thailand from 3 June to 5 October 2017. His admission at The Cabin was from 5 July 2017 to 4 October 2017. He seems to have been in Thailand for about a month before going into the rehabilitation centre. But according to Exhibit 1D39(A), the plaintiff was in Concord Repatriation Hospital from 20 to 27 July 2017, a period during which the schedule of plaintiff's travel (Exhibit 1D39(B)) suggests he was in Thailand. I note from the bank records (Exhibit 1D34) that on 12 June 2017 a transfer was made to The Cabin on the plaintiff's CBA card.
4. It is also notable that immediately before leaving for Thailand the plaintiff had been at Concord Repatriation Hospital for a week.
5. The first defendant prepared the schedules of travel and hospital admissions, and no doubt used its best endeavours to ensure they were accurate. As stated, they are not accurate. The records were apparently produced from reliable documents emanating from the Department of Immigration and the various medical facilities. I do not know why there are discrepancies, but I do bear in mind the possibility of inaccuracies especially when having regard to the first defendant's submissions concerning the plaintiff's conduct.
6. There were some destinations, such as two trips in 2023 to Surfers Paradise, where the plaintiff was not being chaperoned by family. On the first trip, in February, he flew but on the second trip he drove to Surfers Paradise. The plaintiff said that he had attempted to go away as an act of rehabilitation, but he soon found himself on a "bender", consuming copious amounts of drugs and alcohol, and gambling.
7. The plaintiff's gambling seems to be through organisations such as Sportsbet which allow him to place wagers online, probably through an app.
8. The plaintiff seems to receive large sums of money, in particular from his mother. For example, when he was in Surfers Paradise in February 2023, he received $5,633 from her over an 11-day period. I have little doubt that the plaintiff has taken significant advantage of his parents, in particular his mother. He has obviously lied to her about where he has travelled and how he has used the money she has given him. She has unfortunately taken him at his word and not exercised greater control in providing him with funds.
9. I have already referred to Exhibit 1D39(A) which is the schedule of the plaintiff's in-patient admissions in Australia. There have been 19 admissions between 20 December 2016 up to 6 November 2023. Most of the earlier admissions were to Concord Repatriation Hospital; most of the latter admissions are to St John of God Hospital in Richmond. There is one admission to Kedesh Rehabilitation service, two admissions to Lives Lived Well and one admission to the South Coast Private Hospital. Some of the admissions are fairly short but others are lengthy, such as the admission to St John of God Hospital from 3 June to 10 July 2022. I also note that the plaintiff was admitted to Concord Hospital on 23 March 2022 and then discharged to St John of God Hospital on 28 March 2022 where he remained for a month.
10. I observe here that the normality of the plaintiff asserted by the first defendant, through the plaintiff's daily habits and travel, are significantly at odds with his medical history and in particular his frequent admissions to psychiatric and rehabilitation institutions. As seen above, a trip to Italy for a wedding may be seen as an act of significant independence but must be weighed against the plaintiff being admitted to hospital three days after his return.

Other witness evidence

1. The conclusions I have just expressed were reinforced during the oral evidence of the plaintiff's mother (KU). KU was pressed in cross-examination to retract parts of her written statement (Exhibit L2) the suggestion being that the plaintiff is far more active and independent than asserted by both KU and the plaintiff. KU accepted that the plaintiff did go out from time to time, that he did visit shops and food outlets, but she was adamant that he preferred to be at home and spent most of his time at home. As to his periods out of Sydney, like the plaintiff, KU said that Sydney was a trigger for him and that he was happier, and more capable, outside of Sydney.
2. One of the trips about which questions had been asked, was the plaintiff's trip to Bali earlier this year. According to the plaintiff he had been accompanied by SU, a relative in the 40 to 50 year age group. KU said there were two relatives bearing the same name, one who was close to the plaintiff's age and the other who was about 65. The older relative was a real estate agent who KU could not contemplate as having accompanied the plaintiff on a "bender in Bali".
3. KU was not aware that the plaintiff had gone to Bali; she thought he had gone to Thailand because this is what he told her.
4. KU confirmed the plaintiff's opinion of his driving ability, stating that he was "reckless on the road". She was not aware that he had driven to Surfers Paradise in July 2023, and she was clearly kept in the dark by the plaintiff about a lot of his activities. KU knew that her son smoked marijuana, but she did not know about his consumption of ICE. KU often did not know where he was, feeling that if he was away for some days, he was safer because he was outside of Sydney.
5. KU agreed that the plaintiff defecated in his bed from time to time although I had the impression this was not as frequently as suggested by the plaintiff.
6. KU conceded that the plaintiff had problems at school before October 2005. There was a suggestion by the plaintiff and Dr Klug that it was possible that these problems were occurring while he was being groomed by the second defendant. However, the suggestion would be inconsistent with my conclusion that the grooming has not been established.
7. It was put to KU that she had exaggerated her evidence in order to support the plaintiff. I think she was endeavouring to give her total support to the plaintiff, but I did not think she did so dishonestly. In particular I accept that she does provide an average of four hours per day in assistance to the plaintiff and has done so for some years. I also accept that she will continue to do so for as long as she is able.
8. Importantly no challenge was made to KU suggesting that the plaintiff's complaints about the abuse were not made. KU was however challenged on her assertion about the conversation she alleges occurred on the evening before the abuse. According to her statement the second defendant had said that he would drive the plaintiff home and had added: "He will be safe with me, you can trust me."
9. It was suggested to KU that the conversation, in fact the whole incident, had not occurred. The first defendant sought to take advantage, in cross-examination, of the obvious confusion held by KU as to whether or not the plaintiff had slept over at the church on a night previous to the alleged conversation. I am satisfied that KU's evidence, after clarification, was that the plaintiff had not spent a night at the church before the night (and early-morning) of the alleged abuse.
10. The plaintiff has made two trips to the United States to visit his sister (NU) who lives in Massachusetts. The first trip was with his family. The second, in June 2023, was made alone. NU is a sister in the Maronite Servants of Christ Light Community. She resides in a convent which has cloisters for the sisters upstairs and a guestroom on the ground floor. The guestroom is large enough for a maximum of two persons.
11. The plaintiff resided in the guestroom for about five weeks during his 2023 visit. During this time he tidied his room, although there was a cleaner available for some of the time. The plaintiff went out frequently at night, using an Uber service or he was driven by Sister NU.
12. As with other witnesses, Sister NU was not challenged on the detail of the complaints of abuse made by the plaintiff. Sister NU confirmed that there were three youth groups at the church when she attended, and she had actually taught at one of them. She said she knew KN. He was a teacher of the group for teenagers.
13. Sister NU first went to America in June 2005. She returned a year later. She became friendly with the second defendant she said: "He was very active and worked hard to get things done in and around the Church. He was friendly towards me. At times he was playful with me."
14. Sister NU returned to America in 2008. She took her first vows as a nun 2013 and her final vows when she became "married to Jesus" in 2017. She stated that it was in 2013, during a trip to Australia, that the plaintiff told her he had been abused by the second defendant. She said: "I saw the emotion and tears in his eyes when he spoke to me and knew that it had affected (the plaintiff)."
15. Sister NU was an overwhelmingly impressive and honest witness. The first defendant said that Sister NU gave "compelling and frankly given evidence".
16. Following the plaintiff's evidence being suspended, the first witness called was KN. He is a devout Maronite Catholic, who is also a teacher and frequently delivers religious education. In around 2004 and 2005, KN gave talks to young persons on Saturday afternoons at the Church. These talks were often well attended, and KN seemed at pains to stress his contribution to their success.
17. In his statement KN describes an incident in 2011, which the plaintiff submitted, indicated the second defendant's interest in other males. The incident is described as follows at [9]-[15]: "I was standing in the Sacristy preparing to give Holy Communion. [SS] walked into the Sacristy, and he said "Hello". [SS] placed his hand on my lower chest and caressed it. This immediately made me feel uncomfortable and awkward. [SS] then touched me a second time, near my stomach. I then felt [SS's] hand move lower. I was uncomfortable with [SS] touching me this way and I instinctively pushed his hand away."
18. KN's statement also includes some complaint evidence. He states at [24]-[25]: "After 2005, I did not see (the plaintiff) for many years. The next time I saw him was around 2010. I saw (the plaintiff) outside the Church. We discussed his disclosure relating to [SS]. I said words to the following effect, (the plaintiff), you are an adult now, you should go to the Police if something inappropriate has occurred with [SS]. You should submit your complaint to the Police and then speak to the Bishop as well."
19. KN stated that he later spoke to Bishop CU and told the Bishop what the plaintiff had said to him.
20. The theme of the cross-examination was to undermine the credit of KN, to suggest that his evidence was biased against the defendants. This was said to arise from the Church hierarchy halting his progress from Sub-Deacon to Deacon. It was suggested to him that he had argued with the Bishop and had become angry about his lack of progress within the Church. He denied any ill will towards the church. He said he remained a devout Maronite Catholic and that he had not progressed because the then attitude of the Church in Australia was not to ordain married men.
21. KN was a loud and sometimes argumentative witness, but I did not think he was dishonest. He clearly valued his involvement with the Church, and I reject any notion that he would act with the intent of harming the Church.
22. The attack on KN's credit was sought to be substantiated through the later evidence of Monsignor NZ, the first defendant's Vicar General. According to Monsignor NZ, KN had acted in a violent way during an incident with Bishop BB. Monsignor NZ said he saw KN roughly deal with a gift that had been given to the Bishop (probably a box of cucumbers), rant and rave, and ultimately stomp on some religious garments.
23. KN denied he had acted in this way but did accept that there had been disagreements with the Bishop. As will be seen below, I was generally not impressed with the evidence of Monsignor NZ, but he did corroborate KN's assertion that, at the time, the Church in Australia was not ordaining married men.
24. Another witness who was subjected to criticism, almost character assassination, from Monsignor NZ, was Father KB. Father KB had worked with the second defendant at St Joseph's as his assistant.
25. The first statement tendered, as coming from Father KB (Exhibit C1), was unsigned and when read by Father KB was found to have some inaccuracies, leading to the preparation of a second statement (Exhibit C2).
26. In his second statement Father KB says he witnessed the second defendant "running the tips of his fingers along the chin line" of a young man. He also says that he "noticed that on several occasions [SS] was tactile with young men to an extent I considered abnormal". I asked Father KB what he meant by tactile, and he said he meant that when young men were touched by the second defendant he allowed his hand to linger longer than necessary. He specifically said that the manner in which the second defendant physically interacted with adult males was not normal in either Lebanon or Australia.
27. Father KB records a conversation he had with Monsignor NZ sometime after the second defendant's conviction but prior to the appeal decision. The conversation was as follows: "Msgnr NZ: I told [SS] that you are an atomic weapon and that he should use you more in the parish. Father KB: I found it distasteful the way [SS] kept hugging adolescent males, putting his head on their chest with a beatific smile on his face. Msgnr NZ: Yes, I have told [SS] about this before, and told him that it is not appropriate".
28. Monsignor NZ entirely denied the above conversation. His office was two doors away from that of Father KB. He even rejected the possibility of a casual conversation during the workday when the two men might have come across each other.
29. I prefer the evidence of Father KB. I have already made some comments about Monsignor NZ. I do not accept his evidence. He came across to me as an unswerving advocate for the Church, unwilling to countenance the possibility of one of their priests acting inappropriately.
30. Father KB's statement also contains a conversation with KN, in which he says the latter told him that "on a few occasions, when I was wearing my jibbeh [SS] placed his hand on my genitals." In his evidence KN did not recall this conversation, or SS placing his hand on his genitals. KN did however refer to SS touching him near his groin so that some confusion may have arisen in precisely what was said as between Father KB and KN. I do not think this inconsistency affects the credibility of either of these two witnesses.
31. Under cross-examination, Father KB said that he had been an assistant to SS and that there was friction between them. He felt that he was not being utilised sufficiently and that there were some issues with the Mass.
32. Father KB agreed that he did not like SS but said he had not made up his evidence and he bore no animus towards the second defendant. Having regard to his conversations with SS I do not find it the least bit surprising that Father KB did not like SS.
33. GT provided a statement (Exhibit D) and was cross-examined. He struck me as a young man doing his best to tell the truth and it seemed to me that he avoided embellishing the case when he had good opportunity to do so. This opportunity arose when he was cross-examined about the celebrations at the Church following the arrival of the Relics Tour from Lebanon in October 2005. It is to be remembered that it was during these celebrations that the plaintiff alleges the incident in the motor car occurred.
34. Under cross-examination, GT said that he too had been given a lift home, on a separate occasion during the celebrations by the second defendant. This fact is not included in his statement. When asked if anything had occurred on this occasion, thus being presented with an opportunity to make allegations against the second defendant, he said nothing untoward had happened.
35. In his statement, GT refers to many occasions when the second defendant would touch him on his thigh and on his leg. He was then about 13 or 14 years of age. He stated at [9]-[11]: "When [SS] would touch my leg, he would often slide his hand from my thigh area towards my groin. When [SS] did this, I would push his hand away. I pushed it away because his actions made me uncomfortable, and his hand was entering an area where it didn't belong, that is my genital area. He will try and run his hand up my thigh during conversations. He would be talking and just do it without hesitation. [SS] attempted to touch my penis and genitals on occasions. At the time I would push him away with my hands to stop him touching me there. I knew what he was attempting to do, and I knew it was wrong. I didn't tell anyone as I felt like I could hold my own against it. I just felt I could deal with it myself."
36. In his statement, GT also describes the complaint made to him by the plaintiff. He says that in about 2006 the plaintiff told him what the second defendant had done. The plaintiff had said: "We were in his car and [SS] thought I was asleep, and he reached down and played with me until I came."
37. Under cross-examination GT said he had been an altar boy from time to time, usually on Sundays for the 11:00am mass. GT would attend with his family. GT said the second defendant was a Deacon who was involved in the mass. GT described his duties, which included putting on white robes, lighting candles, preparing wine and water, and lighting incense and placing it in a container. GT said that he would get ready in the same room as the adult officials, and that dressing in a separate room only occurred at a later time.
38. GT said the arrival of the Relics Tour was very exciting. He went to the welcome ceremony where he was an altar boy. The plaintiff also took part. It was at this stage that GT gave evidence about being taken home by the second defendant. He said that the second defendant's motor car was, he thought, a Daihatsu, it was dark coloured and looked like a RAV 4. Notably, the plaintiff described the vehicle in which he was assaulted as a RAV 4.
39. The first defendant tendered photographs of the plaintiff's motor vehicle (Exhibit 1D7), a Daihatsu Terios, which appears to be a small SUV vehicle. The plaintiff also tendered photographs of a Toyota RAV 4 (Exhibit K), which to my inexpert observation looks at least similar in style to the Daihatsu.
40. GT was shown photographs to suggest the plaintiff's continued involvement in church events. This was to counter the suggestion that the plaintiff alienated himself from the second defendant, and the Church, following the alleged assaults upon him.
41. GT said he was still friends with the plaintiff but saw him rarely. I reject any suggestion that his evidence was influenced by his ongoing friendship with the plaintiff.
42. BT was about 13 years old when he attended Bible studies on Saturday evenings at St Joseph's. The second defendant was his teacher. At about the same time, BT met the plaintiff and they became close friends. They were "passionate" about their religious studies.
43. BT stated (Exhibit E) that he remembered the Relics Tour and thought that "it was around this time that I first noticed (the plaintiff) stopped attending Church altogether." The plaintiff initially refused to explain his non-attendance, but in about 2005, when in the swimming pool at DU's house, the plaintiff said: "I was sleeping at the church of the last night of the Relics, and it was early in the morning. [SS] told me I'm taking you to get breakfast. I entered his car and we arrived at the location for breakfast, but it was closed. So, he said I will take you back to the church. While we were driving back, I fell asleep. … When I woke up, I found myself in the side street of the church and I felt his hand on top of my pants on my dick. I was too shocked to move or open my eyes because I couldn't believe what was happening. I kept my eyes closed. He then started to rub my dick from the outside of my pants. He kept rubbing my dick until I had an erection and kept going until I blew. Then he wiped the cum off his hands on my pants. I kept my eyes closed and I couldn't believe what was happening. Then he woke me up once we were back in the church, but I was awake the whole time just too scared to move."
44. The plaintiff then told BT that the abuse was the reason he had stopped going to church. The plaintiff also said that the assault had occurred in SS's motor car.
45. In about September 2013, after a conversation with UT about a different priest, BT was told to contact the plaintiff to persuade him to disclose what had occurred. BT met the plaintiff, together with UT and NB at the airport where the plaintiff repeated what he alleged had occurred. The plaintiff was convinced to make a report.
46. Under cross-examination BT was asked about being an altar boy and some questions concerning KN. BT said that he had not stayed overnight during the Relics Tour.
47. BT said that the conversation in the pool had occurred after some alcohol had been consumed. However, he stated that nobody was "blind drunk".
48. NB's statement is Exhibit F. NB was also a friend of the plaintiff, BT and DU, the latter being the plaintiff's cousin. NB recalls the plaintiff as an altar boy. He thought the plaintiff "was very religious and was always helping at the Church".
49. NB remembered the Relics Tour and said that the plaintiff "was there for most of the time". NB was present at the pool incident described by BT. He heard the plaintiff's recollection of the events, and he also said that some alcohol was consumed.
50. NB said that after the disclosure the plaintiff, "started to change as a person. He started to gamble, and he would always be playing poker. Sometimes when I would see (the plaintiff) I thought he was off his face".
51. In 2012 NB spoke to the plaintiff and told him to report the abuse. The plaintiff said he did not wish to do so. "He told me he wanted nothing to do with the Church."
52. The cross-examination of NB concentrated on events at the church. He also said that although he met the plaintiff at church they went to different schools.
53. Notably, like all the other complaint witnesses, it was never put to him, that the plaintiff had not made the complaint of being abused.

The Second Defendant

1. The second defendant prepared two statements which became Exhibits 1D5 and 1D6 respectively. In his first statement, prepared on 12 December 2020, the second defendant relays that he came to Australia in 2002 with the intention of becoming a priest. He had completed a degree in theology and philosophy in Lebanon. He was ordained as a Sub-Deacon in Tripoli.
2. In 2003 the second defendant started attending St Joseph's. He began assisting at the Church on weekends. At the end of 2004, or early 2005, Monsignor FT asked him to join the church in Australia. After receiving approval from an archbishop in Lebanon, he was ordained, on 14 May 2005, as a Deacon at St Joseph's. He was ordained as a priest on 6 May 2006.
3. After becoming a Deacon, the second defendant became more involved in the services and assisted with youth groups. However, he stated that his main role was to ensure "that the church was properly prepared for mass."
4. The second defendant stated that he knew the plaintiff, but he denies all the allegations made against him. The second defendant heard about the allegations at the end of 2013. He was charged and pleaded not guilty. After being convicted and sentenced, his conviction was overturned on appeal. After his release from prison, he returned to Lebanon.
5. In addition to denying the allegations the second defendant stated that after the Relics Tour he thought he had a good relationship with the plaintiff.
6. In his second statement, dated 26 May 2023, the second defendant again denies the plaintiff's allegations, and also denies allegations made by other witnesses called on behalf of the plaintiff. He specifically denies that any physical action he took, such as "a hug on occasions" had "any sexual connotation or involved molestation". Hugs were given by way of "emotional support". He denied kissing adolescent males and as a general statement, all of the allegations made by the plaintiff's witnesses.
7. In respect of HC, the second defendant admitted to the exchange of text messages referred to by HC (Exhibit T) but said that the messages concerning circumcision and the offers to assist in the shower were made in jest. There were other reasons, but SS said he could not reveal them because they were protected by the rules of the confessional.
8. Strangely, under cross-examination, the second defendant was asked to read Matthew chapter 12 verse 34 aloud to the court. I am not sure what was behind this request.
9. The cross-examination of the second defendant was generally constituted by putting to him the assorted allegations made against him. In each such circumstance, he simply denied the accusation. The manner of the cross-examination made it difficult to assess the second defendant as a reliable, or otherwise, witness.
10. The first defendant tendered a number of witness statements from persons who were not required for cross-examination. Some of them read like character references for a person about to be sentenced.
11. BC was appointed as the first defendant's financial administrator in 2006. In 2013 she became the Child Protection Officer. Shortly thereafter she was told about the allegations made by the plaintiff. The second defendant had been stood down from his duties. BC states that the second defendant was an "enthusiastic and well liked member of the choir …" She continues: "I also observed [SS] from time to time around the Church and with Parishioners and I did not ever see any conduct on his part which caused me any concern in relation to the safety of children in the parish. If I had such concerns I would have raised them with the Parish Priest. I can recall attending St Joseph's church during the Relics Tour in 2005. It was a very busy period, a number of services were being held and many people attended the Church both from within the Parish and from outside. I do not recall seeing any altar server in and around the church during that time on his own late at night and after a service had concluded, and I do not recall seeing any altar server getting into a car with priests or deacons."
12. Suffice to say that if events were as busy and bustling during the Relics Tour as BC suggests, the fact that she did not see people getting into cars is meaningless. Not only does the plaintiff say he went to the vehicle, but so too did GT, who I found to be a very believable witness.
13. Like Monsignor NZ, there is a distinct air about BC's statement of an overriding desire to protect the reputation of the Church.
14. Monsignor FT was ordained as a Priest in 1999 in Lebanon. In 2004 he came to Australia where he was initially an Assistant Priest and then appointed as a Parish Priest at St Joseph's in September 2004. When he started at St Joseph's it was a busy parish with three assistant priests and the second defendant as a sub-Deacon.
15. Monsignor FT never noticed any inappropriate behaviour at the parish. The allegation made by the plaintiff is the only allegation that he has encountered in respect of St Joseph's.
16. Monsignor FT has a good recollection of the Relics Tour in October 2005, he stated that "it was a very significant moment for Maronites, similar to the Pope visiting." There were lots of services, the Church was open during the day and night, the staff was very busy and there were kiosks for souvenirs and food.
17. Monsignor FT has no recollection of the plaintiff during the Relics Tour. Nevertheless, he continues: "I would regard it as extremely improbable that (the plaintiff) would have been alone at the Church overnight during the Relics' Visit. Whilst I could not observe the Church 24 hours a day, I cannot see why anyone would have permitted that to occur or for what reason he would have been there without his family as a teenager."
18. Surprisingly, the just quoted passage had not been objected to. Nevertheless, the plaintiff was part of a devout family and a special request had been made for him to remain at the church overnight. The extreme improbability envisaged by Monsignor FT is at odds with the second defendant requesting that the plaintiff remain, and the plaintiff requesting permission from his mother. I also see no inconsistency, or improbability, in a young man being given a lift home by a church official, apparently concerned for the welfare of the youth.
19. As to the second defendant, Monsignor FT stated: "In my observations he was a very committed person who was very passionate about his ministry and well-suited for the pastoral work. He was much loved and respected by the parishioners and I received positive feedback about his contribution to the Church. Prior to his ordination in 2006 as a priest, I was asked whether I would recommend him for priesthood. I did so without hesitation. I had observed the way in which he treated children and adults alike and had no concerns at all in relation to that. I had heard no allegations about him conducting himself inappropriately and had observed nothing unusual about his behaviour."
20. Monsignor FT's recommendation that the second defendant be a priest is reminiscent of Monsignor NZ's sponsorship of Father KB, an action taken it would seem more as a formality than an endorsement.
21. Monsignor TN lives in Lebanon. He was to give evidence by Audio Visual Link, but the plaintiff chose not to require him for cross-examination. Monsignor TN became the Parish Priest at St Joseph's in 1998 and continued in that position until 2004. He remembered the plaintiff's family, consistent with my observations in respect of Monsignor FT, as "active parishioners" who regularly attended services at the Church. He also recalls the plaintiff as an altar boy from time to time.
22. In relation to the second defendant's status at the church, Monsignor TN stated: "While I was Parish Priest at Croydon, I also came to know [SS]. I recall at the time he had already been ordained in Lebanon as a Subdeacon and not long after arriving in Australia he became involved in helping St Joseph's Parish, on a part-time and volunteer basis. After my time at St Joseph's, he was ordained a Deacon and commenced full-time ministry in the Parish and was subsequently ordained a Priest and again appointed to serve in the Parish."
23. The important words in the passage just quoted are "on a part-time and volunteer basis". They are directly relevant to the first defendant's submission that, as at October 2005, the second defendant was not employed by the first defendant and therefore the first defendant could not be vicariously liable for his actions.
24. Monsignor TN also remembers the second defendant as "a helpful participant in pastoral administration in the Parish and was a well-liked and enthusiastic worker." He went on: "I was able to observe [SS] first hand in and prior to 2004 and I did not see anything which caused any concerns to me as regards risks to children in the parish. I found [SS] to be of significant assistance in the work of the Parish. He was a hard worker, responsible, reliable, and committed to his pastoral work and I regarded him as a valuable member of the pastoral team. I was surprised some years later when told of the allegations made against him by (the plaintiff)."
25. This passage also has some relevance to the vicarious liability question. Assuming the first defendant did not employ the second defendant, it is nevertheless clear that the first defendant involved him in the work of the church and in dealing with the parishioners. The first defendant made the second defendant a part of its "pastoral team".
26. Notwithstanding Monsignor TN's obvious admiration for the second defendant, the church executives asked him to be the plaintiff's pastoral support during the criminal trial. In an annexure to his statement, Monsignor TN gives details of the plaintiff's complaint to him on 1 October 2013. The details of the complaint are generally consistent with the plaintiff's evidence.
27. Monsignor TN relates that the plaintiff was crying when making the complaint and it was only after some "initial hesitation" that the plaintiff gave him permission to take up the matter with the Church. My reading of the annexure reveals a young man reluctant to describe the abuse, and markedly moved by his oral recollection of it. I think it amounts to significant complaint evidence.
28. TL has been a parishioner at St Joseph's church for the last 35 or 40 years. She remembers the Relics Tour. She worked with the second defendant whom she thought of as a "close friend and support." She said: "We would get coffee together, he came for dinner at my home, and we sometimes worked alone together in his office or in the sacristan."
29. TL said the Relics Tour was a "very busy and exciting time for the parish, a huge event." She said the Church was open day and night. She worked under the supervision of the second defendant, she said that "he was on the move and was usually busy answering people's queries or assisting with preparation and activities. There was a constant flow of worshippers and parishioners whenever I was at the Church."
30. I note that TL said she remained at the event until about 10pm so that she is clearly unable to comment on events later in the night.
31. TL was "shocked" to hear about the accusations against the second defendant. She saw him "as a man of strong character and decency and regarded him very highly."
32. CT is another person who was a regular attendee at St Joseph's. She became close friends with the second defendant. She thought "he was a kind and trustworthy person."
33. CT remembered the plaintiff. She "did not see any indication that he had a particularly close relationship with SS". SS never gave her children a lift home and she never "saw him giving another parishioner a lift."
34. The comments in the preceding paragraph are of little assistance. The fact that her own children were never given a lift, or that she didn't see other persons given a lift is irrelevant to my decision about whether the plaintiff was ever taken home by the second defendant.
35. CT also has a good recollection of the Relics Tour. She said: "I was part of a group of parishioners that was there all three nights during the all night vigil, overseeing the visual and praying. We had been asked to attend and be there during the time so the priests could go back to their house and sleep. I did not see any children at the Church during the all night vigil, including the plaintiff. I knew the plaintiff, and I would have recognised him if I had seen him. If I had seen any children by themselves, I would have been concerned and made arrangements for them to be picked up by their parents."
36. CT cannot exclude the possibility of the second defendant giving the plaintiff a lift home while he was supposed to be in his house sleeping. The arrangements that she poses for children to be picked up by the parents is not inconsistent with a parent giving permission for another person to give the child a lift home.
37. CT, like the other 'character witnesses', does not overly assist with the issues before me. The second defendant may well have been a decent person to them, but that does not exclude his alleged actions in relation to the plaintiff. Once again, there is also an aura of a need to protect the Church. These parishioners were devout members of the Church and no doubt formed loyal and trusting relationships with the clergy. Their desire to protect the Church is not surprising and to some degree perhaps affords them a degree of insulation from matters they might have missed.
38. The final lay witness to give evidence was DU. He is the plaintiff's first cousin and also his friend. His statement is Exhibit V. He states at [5]-[8]: "(The plaintiff) and I attended youth group on Saturday afternoons together. I also helped as an altar boy. We were both very involved in the Church and spent a lot of time there. (The Plaintiff) said to me words to the effect "he touched me man and I didn't know what to do". I asked (the plaintiff) what he meant by that statement, and he said words to the effect "He touched me on my inner thigh. I was too embarrassed and frozen to act, and I blew". I could see (the plaintiff) was emotionally distraught. (The plaintiff) told me that it occurred in [SS's] car after the Relics."
39. In his oral evidence DU said that the disclosure had been made within a few days of the incident. DU said to the plaintiff "bury it and do not tell anyone". The disclosure was repeated on other occasions including by the swimming pool at his home. BT was present.
40. During the cross-examination of DU, an attempt was made to present the plaintiff as acting in a generally normal fashion, by going out during the day. DU agreed that the plaintiff put money in DU's account from time to time and that DU would place bets for the plaintiff and buy cannabis for him. DU would also drive him places from time to time although DU had never travelled with the plaintiff.
41. DU was unaware that the plaintiff had been to Surfers Paradise in 2023 and he did not know that the plaintiff was using ICE. He did know the plaintiff used Xanax but did not know where he sourced it from.

Notice to admit facts (Exhibit U)

1. Subject to the qualification that the facts referred to a period prior to 6 May 2006, the second defendant admitted that, in respect of the first defendant: 1. it had not conducted a working with children check; 2. it had not obtained a full psychological and medical report; and 3. it had not conducted any police checks in any country where the second defendant had lived for the previous five years, relevantly referring to Lebanon.
2. These admissions were tendered to support the allegation of negligence on the part of the first defendant. Assuming the checks were required at the time, the failure to carry them out could suggest negligence on the part of the first defendant. The difficulty is that there is no evidence of what the checks might have produced. Any negligence therefore could not be seen as having caused any harm.
3. As to not obtaining a psychological and medical report, again it is unknown what such a report might have revealed.
4. The most that can be made of the first defendant's failure to obtain the checks is that it had a somewhat casual attitude to ensuring its employees could work safely with children. Such a finding is not a basis for a finding of negligence causing harm to the plaintiff.

The experts

1. Five medical experts were retained by the parties. The plaintiff tendered reports from Dr Klug, Ms Curtain, and Dr Dilati. The first defendant tendered reports from Dr Brown and Mr Williamson. Drs Klug and Brown are psychiatrists. They produced a joint report and gave evidence concurrently. Ms Curtain and Mr Williamson are occupational therapists. They also produced a joint report and gave evidence together.
2. Dr Dilati is a psychologist. He was not required for cross-examination.
3. Ms Curtain is of the view that the plaintiff requires 24-hour care. Importantly this was not based on any physical need, but on the need for supervision necessary to prevent self-destructive behaviour. The plaintiff's addictions required him to be constantly supervised.
4. Mr Williamson had a very different view. He recognised that the addictive behaviours could be harmful but essentially said that the plaintiff was an adult who could make choices as he pleased and would not be assisted by permanent care. His formula, as expressed in the joint report, did not exceed four hours of assistance per day.
5. Importantly, when Mr Williamson was asked to make a number of assumptions he changed his view to decrease the amount of care down to three or four hours per week, other than during episodes of mental illness. Ms Curtain did not change her views although she did concede that the assumptions painted a different picture to that which had been presented to her by the plaintiff and his mother, but she nevertheless thought that the psychiatric opinion still justified the full-time care. Ms Curtain stated that she would have liked to have investigated the background to the various assumptions.
6. The assumptions put on behalf of the first defendant were said to have been derived from the evidence given in the case so far. Thus, for example the experts were told about the plaintiff's various trips, his ability to organise those trips and his apparent independence while on the trips. The assumptions however only contained the bare facts. Thus, while the plaintiff may have been able to get himself by motorcar to Surfers Paradise, it took him three days, involved very risky driving, and as I understood it, he was under the influence of alcohol or drugs.
7. The plaintiff may well have spent some time in Bali. However, if he was, as he says, on a "bender" due to the consumption of alcohol and drugs, conduct of that sort might be seen as emphasising the need for supervision rather than an indicator of a lack of such a need.
8. The plaintiff's frequent excursions from his home, again on the surface, might be seen as contradicting the histories given to the occupational therapists. However, if each expedition, in particular when he was alone, was to purchase drugs or alcohol or to consume fast food, then the asserted independence of his actions must be seen in a different light. This was a point made in the oral evidence of Dr Brown, which I deal with below.
9. It is important to note at this stage that on 15 August 2023 I made an order that the care claim could not exceed four hours per day and on 19 June 2024 I refused an application to extend this claim. I gave separate reasons for each of these decisions.
10. Drs Klug and Brown were given the same assumptions as Ms Curtain and Mr Williamson although in more detail and included specific dates of travel and residential treatment. Dr Brown's reaction to the assumptions was that they suggested that the plaintiff was less symptomatic, and more functional than she had gathered from the history she was given in assessing the plaintiff in 2019 and 2023. Dr Klug agreed that the assumptions portrayed a picture of a more active plaintiff, but he also said that they confirmed his "terrible" substance use and gambling.
11. Dr Brown accepted that the compulsions to take drugs and gamble could overwhelm any reluctance to leave the house. Therefore, leaving the house is not necessarily an indication of a lack of severity of the plaintiff's mental health issues.
12. Both doctors were asked to comment on the plaintiff's behaviour at school before October 2005 as being indicative, and perhaps causative, of his later addictions. Dr Brown, in her comments in the joint report had said: "Absent the abuse, (the plaintiff) would still have required treatment for depression, substance use and gambling disorder but not for post-traumatic stress disorder, which is allegedly associated with the abuse."
13. Dr Brown explained this passage as referring to other factors in the plaintiff's background which might have been the causes of his mental illnesses, other than the Post Traumatic Stress Disorder (PTSD). The plaintiff's behaviour at school before October 2005 was such a factor. She said that bad behaviour as a child can lead to substance abuse later in life.
14. Dr Klug agreed that factors other than abuse could have an effect on later addictions, but he pointed out, as had the plaintiff, that these behavioural problems had occurred at a time when the plaintiff asserts he was being groomed. Dr Klug said that the main response to abuse, which would include grooming, is anger. Therefore, if the bad behaviour highlighted by the first defendant had occurred while the plaintiff was being groomed by the second defendant, there would be a logical explanation for the behaviour.
15. The amended statement of claim says that the grooming took place from about 2002 up to the final incident in October 2005. In his evidentiary statement (Exhibit A) the plaintiff says he first met the second defendant in about 2002. He places the first incident when he was aged 13 or 14.
16. The school reports however show problems commencing before 2003. I have already dealt with the school reports which have critical entries extending back to 2000. Thus, even if Dr Klug is to be accepted as to the consequences of grooming, if it occurred, it is difficult to attribute the plaintiff's behaviour at school to the grooming.
17. Dr Dilati took a history from the plaintiff of alcohol use from the age of 15, cocaine use from 19 and cannabis use from 23. The report is dated 24 October 2022, so it precedes the plaintiff's use of ICE.
18. Dr Dilati made a diagnosis of "symptoms consistent with Schizophrenia, Post Traumatic Stress Disorder, Cannabis Use Disorder and Gambling Disorder." There is little doubt about the disorders concerning cannabis and gambling. The PTSD finding is dependent upon the identification and acceptance of the trauma. Neither Dr Klug or Dr Brown have considered the existence of schizophrenia. No submission was made on behalf of the plaintiff that I should accept the diagnosis of schizophrenia.
19. Dr Dilati's opinion includes the following at [76]-[78]: "Unfortunately, (the plaintiff) has not yet achieved rehabilitation for his symptoms, in particular his hyperarousal symptoms of agitation and reactivity to others who he perceives are authority figures, are intimidating or threatening, which is common in males who have a history of sexual trauma. Specifically, in (the plaintiff's) case, since the age of 15, he has engaged in chronic stimulant use to reduce his anxiety, depression, and negative affect related to his trauma. This maladaptive approach has continued into adulthood to treat his trauma symptoms as a form of self-medication. Due to his lack of insight and avoidance behaviours, (the plaintiff) continued to self-medicate with stimulants and cannabis to avoid his unwanted emotions, despite no improvement in his trauma symptoms."
20. Dr Dilati suggested a regime of treatment which included support in instilling "self-soothing techniques", pharmacological intervention, drug, and alcohol counselling, and "trauma informed psychological treatment".
21. None of the parties tendered any material from the various hospitals and rehabilitation services that the plaintiff attended. This is unfortunate, although a fair amount of detail can be ascertained from the expert reports.
22. Starting with Dr Klug, his first report is dated 2 July 2018 (Exhibit P(1)) and his second report is dated 29 March 2023 (Exhibit P (2)). For preparation of his first report Dr Klug had access to a suicide letter written by the plaintiff to his parents, discharge records from Concord Repatriation Hospital and a discharge summary from The Cabin dated 17 November 2017.
23. Dr Klug, addressing the plaintiff's solicitors, refers to the new memories said to have arisen at The Cabin but observes: "You note that he began to experience new memories when he commenced therapy in Thailand of being sexual abused that there is no corroboration that these events occurred."
24. In relation to the discharge records from the Concord Repatriation Hospital, Dr Klug says: "I note the mental health discharge/transfer summary from Concord Hospital noting his exposure to childhood sexual abuse at fifteen years of age, his various symptoms, ongoing treatment with reference to a post-traumatic stress disorder and depression. The suicide attempt was regarded as serious and it is noted he had no memory of the event … It is noted the suicide attempt was triggered by feelings of hopelessness in the context of attending his friend's wedding which highlighted to him his inability to experience intimacy due to "complex PTSD"."
25. The reference to the suicide attempt occurring after the trip to Italy is another example of a serious distortion of the picture that the first defendant had endeavoured to paint, of a person independently travelling and caring for himself.
26. In her first report of 19 March 2019 Dr Brown summarises some of the records she has been provided with. She notes that the plaintiff was initially diagnosed at Concord Repatriation Hospital with cannabis dependence. He presented to the hospital on 27 May 2017 "after being transferred from Canterbury ED." Dr Brown continues: "He had thoughts of ending his life for the past 10 years, however he had felt "particularly bad" during the last few days and was experiencing nightmares. (The plaintiff) reported that his mood had been low "since reliving the CSA when reporting to police/legal system/family" four years ago. He felt guilty that he had allowed the CSA to occur and "still heard" the perpetrators voice, despite him being in prison."
27. Dr Brown summarised some notes from St John of God Hospital. She noted: "(The plaintiff) achieved a score of 35 on the K-10 questionnaire (severe mental distress). He also achieved scores within the severe range for depression, the extremely severe range for anxiety and normal range for stress on the DASS questionnaire."
28. In her report of 21 February 2023 Dr Brown refers to more recent records from St John of God Hospital. She notes: "(The plaintiff) was admitted to SJG between 28 March and 28 April 2022. A Discharge Summary lists diagnoses of Cannabis Use Disorder and Complex PTSD. (The plaintiff) was admitted for mood stabilisation and treatment of a Cannabis Use Disorder, having previously undergone detoxification at Concord Hospital. … Apart from being admonished about taking an approved leave on 18 April (the plaintiff's) behaviour is otherwise recorded as being polite and appropriate. He was "struggling" with intrusive suicidal thoughts and reported nightmares in relation to "his trauma", associated with feelings of hopelessness and worthlessness. At the time of discharge (the plaintiff's) mood was "bright". (The plaintiff) was re-admitted to St John of God Hospital on 3 June 2022. He had a long history of MDD (Major Depressive Disorder), PTSD and anxiety and chronic THC use. He had also made use of "ice" in crystal form. His symptoms included low mood and anhedonia, however psychosis was not determined."
29. In her report of 9 October 2023 (Exhibit N) Ms Curtain refers to the plaintiff currently having "fortnightly psychological treatment via video link from St John of God hospital."
30. Mr Williamson, in his report of 21 December 2023 (Exhibit 1D31) gives more detail of the suicide attempt from the Concord Repatriation Hospital Discharge letter: "(The plaintiff) reported that after initially returning from the wedding on the Wednesday 3 days before the attempt everything seemed to be ok. However, that night while he tried to sleep he started to experience recurrent negative self-talk, he could hear the voice of the priest inside his head and he could hear him outside the window in the trees, he slept very poorly intermittently waking up due to vivid nightmares … . On Thursday night he purchased a large amount of cannabis (7g) and went to smoke in his car all night at the site at which the sexual assault occurred returning home at 6am. On Friday night after going out to dinner with his friends, he drove home and wrote a suicide note in his car and ingested an unknown quantity of sertraline tablets."
31. Mr Williamson also quotes from a report of a psychologist, Ms Walters in 2017: "(The plaintiff) has a history of substance and process addiction from a young age, following sexual abuse by a Catholic priest. (The Plaintiff) has tried to end his life prior to and between primary treatment episodes, which has escalated the addictive cycle."

Admissions

1. The plaintiff relied heavily on admissions made by the first defendant. This seems to have been almost to the exclusion of more direct evidence. As I have observed above, cross-examination of the second defendant seemed to have been largely an exercise in putting to him the plaintiff's allegations. There was no exploration, for example, of the details of the relationship between the defendants, whether, in October 2005 as a Sub-Deacon the second defendant was paid by the first defendant, or whether there existed any of the other indices of employment which would have gone a long way to assist the plaintiff in establishing vicarious liability on the part of the first defendant.
2. In oral submissions the plaintiff's advocate said: "I also say that something that just fell from my friend's mouth to the effect that the church was not accepting liability, I appreciate that. It's up to your Honour what you make of what I'll call the admission that was made on one view and that in fact informed my treatment of the transcript, where I took the view that there were substantive admissions, but we didn't want to capitalise on that in an inappropriate way. It's a matter for your Honour as to what weight you might give that admission and the circumstances of it. Of course the mere fact that the bishop wasn't the bishop at the time of the offending doesn't, in my mind, mean that he would have no capacity to make a subsequent admission subsequent to the event. That's all I really have to say."
3. The most substantive admission said to have been made by the first defendant is contained in the letter written by Bishop CU, the Maronite Bishop of Australia, on 4 June 2019. The letter is Annexure A to Exhibit L1. The letter to which it responds is not in evidence but seems to be a request, or perhaps a complaint, relating to counselling services for the plaintiff.
4. Here are some parts of the letter: "As I respond I am on leave in Lebanon but have in the interim undertaken enquiries of the Eparchy's counselling services to see how we can meet (the plaintiff's) concerns as relayed by you in your letter. It must be borne in mind that in writing to you I am compelled to do so on a without prejudice basis simply because the action brought by your son is before the courts and we are represented by our solicitors who have the carriage care and control of the matter. … It would be for me neither appropriate nor in order to respond to your complaints levelled against me and the Church as to the failure to provide medical and such further assistance of both counselling and spiritual support as they have been offered and by this letter is am (sic) re-offering them to (the plaintiff) and your Family. I do take issue with your statement I have done nothing as promised. … I offer to (the plaintiff) the service of MaroniteCare and White Capstone Incorporated which specialises in counselling people suffering from addiction related conditions. These services administer to the person in primary need as well as their families and I commend them to you. The issue of an apology is noted however as the case is before the Courts and it was commenced prior to the acquittal of the priest in question it has put beyond my ability to consider it as our lawyers were of necessity engaged when (the plaintiff) sued for damages (as is his right). … The events having come as far as they have with the litigation, puts it beyond my ability to do other than I have offered and will continue to offer, to ensure (the plaintiff's) mental health is monitored and treated as best we can with the resources available to us should he so wish. I again answer your final sentence in your letter by renewing our offer of assistance set out above. … In concluding it should never be forgotten that (the plaintiff) and you as a Family continually in our thoughts and prayers."
5. I am not satisfied that the contents of the letter amount to an admission on the part of the first defendant. The offering of support and counselling services might be seen as an acceptance by the first defendant of an obligation to provide the services because of a responsibility for their onset. But it must also be remembered that the plaintiff and his family were loyal churchgoers, and the church might have felt a pastoral duty to its flock.
6. Significance must also be given to the letter being without prejudice. Bishop CU wrote another letter to the plaintiff on 16 September 2019. It is Annexure C to Exhibit L1. The letter was given to the plaintiff when he met the Bishop for lunch together with his mother and other members of the family. The Bishop had two friends with him. According to the plaintiff's mother, this exchange occurred with the Bishop: "Mother: I have an obligation to protect my children just as you have an obligation to protect your church, how can you allow him to go. I do not wish for any victim or family to endure the pain and suffering our family has endured. How can you allow him to go?" Bishop: "The church has no money and I hope that the insurance will give (the plaintiff) millions of dollars. I can give you an apology, but I cannot give you closure, the church has no money … You have to forgive and forget."
7. The Bishop's words were said to be an admission on the part of the first defendant. I think there is some force in the submission, in particular the reference to the giving of an apology, although it could not be seen as an outright admission.
8. There was also a meeting between the plaintiff and Bishop CU on 5 October 2013. The plaintiff clandestinely recorded the conversation on his mobile phone. It was initially suggested that the conversation contained an offer by Bishop CU of $50,000 but this assertion was later withdrawn. In re-examination this exchange occurred: "Q. Could you please clarify that now for the Court? A. Yes, sir. Long story short, I think I believe, well, last night whilst smoking a joint, I had time to think and calm down and I believe I got mixed up with the whole mention of $50,000 was, was another incident about two or three or four weeks after the meeting with the bishop. At the meeting with the, the meeting at the bishop's house, there was no mention of the actual amount of money, now that I'm thinking about it. But the number of 50,000 is not a made up number. It is in my head, it did happen, where a gentleman came over to my house, who was mutual friends with my father and mutual friends with the bishop, and there was another attempt at buying my silence. That's the best way I can put it, and that wasn't the last time they attempted to buy my silence or asked me to drop the case many years ago."
9. The gentleman referred to by the plaintiff was not established to be a representative of the first defendant. The offer of $50,000, if it was made, does not help the plaintiff.

Did the sexual abuse in the motor car occur?

1. The defendant submitted that there was a list of objective factors, all of which combined to reach an inescapable conclusion that the abuse had not occurred. These factors included: 1. the plaintiff's credibility was such that he simply could not be believed. The source of his lack of credibility extended to the contradictions of his evidence in the school reports, the medical reports, his travel habits, and his bank records; 2. it was unlikely that the plaintiff had remained at the Church overnight. In his evidentiary statement (Exhibit A) the plaintiff says he was at church "all hours of the night". Even though the plaintiff possibly refined this evidence to the final night, it was still improbable. The program for the Relics Tour (Exhibit 1D18) suggests that on Wednesday 19 October the Relics Tour left the church at about 4pm following a farewell mass. The submission assumes that the abuse took place in the early hours of the Thursday morning. However, if it took place in the early hours of the Wednesday morning it would be consistent with the program which states that at 12am there would be "Midnight Prayer & Adoration all night"; 3. the witness evidence that the plaintiff had not been seen during the night and no children stayed at the church after midnight. This of course is contradicted by the fact that the witnesses may not have seen the plaintiff and the church was busy through the night; 4. the organised activities finished at 10.30pm so that the plaintiff was not required for any altar services. This is contradicted by the program which has events at 11pm and 12am with the Adoration to continue through the night; 5. the second defendant said he normally went to bed around midnight during the Relics Tour and he did not stay overnight. This evidence was unchallenged. Many things were regrettably unchallenged on behalf of the plaintiff and that is clearly a factor I must take into account. I do however note that GT said that he was also driven home by the second defendant on one of the nights of the Relics Tour although he did not say the time of the trip. Nothing untoward occurred on the trip; 6. there were numerous inconsistencies between the plaintiff and his mother about the conversation in which the second defendant allegedly offered to take the plaintiff home. The inconsistencies extended to the terms of the conversation, the time that had elapsed before it was remembered, the precise location of the conversation (in the hall or at the doors of the church) and the absence of the conversation from the plaintiff's statement to the police; 7. in his evidentiary statement, the plaintiff said that before leaving the church "we closed everything up". The first defendant posed the question of why it was necessary to close anything up if the church was open through the night. The submission ignores the possibility that there were only a few people left in the very early hours and they were all leaving. The plaintiff's evidentiary statement continues: "SS and some other committee members were going to get some breakfast before SS drove me home"; 8. there was significant confusion about precisely where the abuse took place, the route taken to that place and what the intentions in relation to having breakfast had been. The part played by the Lebanese bakery and McDonald's were unclear and reflected a fabricated memory on the part of the plaintiff. One matter that is constant is that the plaintiff says he fell asleep in the car. Any attempts by him to establish the route taken, including any stops on the way, could only be reconstructions. In addition, he was then 15 years of age and may not have been familiar with the precise road system; 9. the plaintiff's conduct after the abuse was inconsistent with the abuse having occurred. His assertions that he spent a good deal of time in bed following the abuse are inconsistent with the notes of his general practitioner which have him attending the doctor on 19 October 2005 complaining of ankle pain. The point made by the first defendant was not that the plaintiff did not mention the abuse to the doctor, but rather that he was up and about and seeing the doctor at all; 10. the plaintiff's assertions of not going back to church after the abuse were contradicted in a number of ways, which included photographs of him with the second defendant (for example Exhibit 1D2); and 11. the second defendant who was "barely challenged in cross-examination" said the abuse had not occurred and there was no reason to disbelieve him.
2. I have commented on some of the factors when listing them, but must acknowledge that, certainly cumulatively, they present a powerful case to reject the plaintiff's assertions.
3. But there is of course, the other side of the story. Very useful observations were made in CLH v KAG 2022 BCSC 994, a decision of Veenstra J in the Supreme Court of British Columbia at [216]-[217]: "In evaluating evidence, triers of fact regularly make generalizations and rely on common sense inferences about the way people think and behave. However, the courts and the legislature have recognized that many of what may at one time have been thought "common sense" beliefs about sexual behaviour and the behaviour of victims of sexual assault are misguided and discriminatory. As noted by McLachlin C.J. in R. v. Find, 2001 SCC 32 at para. 103: [103] These myths and stereotypes about child and adult complainants are particularly invidious because they comprise part of the fabric of social "common sense" in which we are daily immersed. Their pervasiveness, and the subtlety of their operation, create the risk that victims of abuse will be blamed or unjustly discredited in the minds of both judges and jurors. Among the now discredited myths and stereotypes are beliefs that a real victim of sexual assault will report the assault immediately and that they will thereafter avoid the perpetrator."
4. More generally, in relation to the recollection of events from years before I note these comments of Leggatt J in Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]-[22]: "An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does or does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose - though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth."
5. This is obviously not a commercial case. However, applying the approach suggested by Leggat J, the comparison of objective facts and the testimony of the first defendant's witnesses might be seen as the equivalent to a comparison of the plaintiff's evidence to "documentary evidence and known or probable facts". Taking this approach, the first defendant submitted that the plaintiff's evidence can only be seen as unreliable.
6. The difficulty with the approach in cases of historical sexual abuse is that recognition must be given to memories of adults talking about childhood experiences many years before, even if there are apparent inconsistencies and contradictions. The removal of the limitation period in respect of child sex cases is a reflection of an acceptance that reliable evidence can be given notwithstanding its internal inconsistencies. I am not suggesting that every adult who complains about being abused as a child must be automatically believed. I am suggesting that inconsistencies and contradictions are not necessarily fatal to a witness's evidence when they are given about matters that occurred many years before. This approach I think is consistent with the majority decision in the High Court in GLJ.
7. The delay of informally reporting the abuse in this case, has I think two related considerations: 1. the fact that there are minor inconsistencies in versions over time does not necessarily affect the core allegations. Obviously major inconsistencies could have the opposite result. In this case I think the inconsistencies are generally minor; and 2. complaints made by the plaintiff can be very persuasive and give substance to the proof of the alleged facts.
8. An example of minor inconsistencies includes whether a sleeping child remembers something as having occurred on the way to a bakery or to McDonald's or on one corner or another. I think inconsistencies have much less weight if the description of the active abuse remains constant. That is the case here.
9. The detail of the complaint is generally consistent. The plaintiff told: 1. DU, within days of the event, "He touched me on my inner thigh. I was too embarrassed and frozen to act, and I blew"; 2. GT, in the following year, "We were in his car and SS thought I was asleep, and he reached down and played with me until I came." I also note here that under cross-examination GT said that he had also been given a lift home by the second defendant on one of the nights of the Relics Tour; 3. BT, within months, "I was sleeping at the church on the last night of the Relics, and it was early in the morning. SS told me I'm taking you to get breakfast. I entered his car and we arrived at the location for breakfast, but it was closed. So, he said I'll take you back to the church. While we were driving back, I fell asleep ... When I woke up, I found myself in the side street of the church and I felt his hand on top of my pants on my dick. I was too shocked to move or open my eyes because I couldn't believe what was happening. I kept my eyes closed. He then started to rub my dick from the outside of my pants. He kept rubbing my dick until I had an erection and kept going until I blew …"; 4. NB, within months, "(the plaintiff) said that when he was in the second defendant's car on the way to get some food, he had fallen asleep. (The plaintiff) told me he woke up because SS was rubbing his private parts over his pants, but he pretended to be asleep. (The plaintiff) said that it kept going until he had finished"; 5. UT, on 30 September 2013, "SS was taking me to breakfast in his car in the early hours of the morning. I was sleeping and he pulled over to the side of the road not far from the Church and McDonalds. I felt SS's hand on my penis, and he began to masturbate me"; 6. Sister NU, in January 2013, "He told me a little about the incident in the car. He didn't go into too many details. (The plaintiff) did not tell me exactly when, but he mentioned that it was in his early teens and that they were in the second defendant's car"; 7. Monsignor TN on 1 October 2013, "(the plaintiff) explained that after staying at the Church till late with the Relics he helped a Priest to close up the Church around 3.00am and when they had finished the Priest offered to take him to McDonalds for something to eat then to drop him home. (The plaintiff) explained that while at McDonalds he fell asleep in the front seat of the Priests car. (The plaintiff) said to me that he was woken up, but remained lying back still, when he felt a hand on his thigh. (The plaintiff) said he saw it was the Priest's hand. Then the Priest moved his hand over (the plaintiff's) crotch and began rubbing his hand over (the plaintiff's) penis over his pants causing him to have an erection and then continuing to rub his hand caused (the plaintiff) to ejaculate within 2 minutes"; and 8. Monsignor NZ on 5 October 2012, "he was sleeping and SS put his hand near his dick and he slipt [sic] his hands to his dick and let him ejaculate, the incident happened in 2005 it was his first time." (Annexure A to the Exhibit 1D17).
10. As I have already discussed, a close examination of the content of each complaint would reveal differences in detail. But most details remain unchanged. These include the plaintiff being in the passenger seat, being asleep, the second defendant placing his hand on top of his trousers, rubbing his penis, and the plaintiff ejaculating. The last three details are the substance of the sexual abuse and there is no doubt that they are actions of sexual abuse.
11. This is a case going back to an allegation of an event in 2005. That is almost 20 years ago. I cannot imagine any examination of events occurring that many years ago that would not unearth a plethora of inconsistencies and divergent details. But what in my opinion is important is whether or not the essence of the abuse has remained constant and is consistent with the ongoing suffering of the plaintiff. Even if his addictions have their source in pre-existing conditions, his PTSD, his depression and his suicidal ideation and attempt, are all conditions consistent with the abuse having occurred.
12. I am satisfied, on the balance of probabilities, that the abuse occurred and that it included the second defendant having the plaintiff in his motor vehicle, the plaintiff falling asleep, the second defendant stopping the motor vehicle and then rubbing the plaintiff's penis (above his clothing) until the plaintiff had an erection and then ejaculated.
13. There are some other matters I need to cover in relation to the finding I have just expressed.
14. The plaintiff relied on other evidence in support of his case. This included the evidence of persons who asserted they had endured, or witnessed, inappropriate conduct on the part of the second defendant. This submission was made: "It is submitted that the words of [SS] evidenced in his text messages to KSC, together with the other incidents of sexualised conduct from [SS] betray [SS's] heart. He is a sexual predator who seeks opportunity of sexualised conduct with other males, (including minors). To this extent, it follows that the plaintiff was a very vulnerable person at the time of the abuse."
15. The text messages sent to KSC are in Exhibit T: KSC: "im home now about to have a shower and sleep for work!" SS: "Good have a nice shower! Do you need help:)? Lol N good night will have chat after ur shower."
16. The text message exchange seems to have occurred in early 2012. KSC was then 19 years of age. The second defendant was then an ordained priest. The plaintiff submitted that the exchange was "totally inappropriate" for the second defendant's "calling". The exchange is probably inappropriate, but it occurred between two adult males. I do not think it assists the plaintiff's case.
17. The other "sexualised conduct" relied upon by the plaintiff is to be found in the evidence of Father KB. As already described, he witnessed an incident in 2007, again after the second defendant had been ordained as a priest. He saw the second defendant do the following: "[SS] entered the sacristy when I was in there with KSC. When [SS] saw KSC, he gazed up at him, his eyes dilated, and he had a smile on his face. He raised his right hand and stroked the side of the youth's face, running the tips of his fingers along the chin line."
18. Father KB said the second defendant "was tactile with young men to an extent I considered abnormal." In his oral evidence Father KB said he was referring to: "Not just touching, but leaving his hand on them…"
19. Again, there could be elements of inappropriate behaviour in the second defendant's actions as described by Father KB, but I do not think they can be elevated to "sexualised conduct". Bearing in mind that the second defendant was then a priest, the conduct may have sent a warning to his superiors, but absent evidence of this conduct being known to his superiors before October 2005, I cannot see any assistance to the plaintiff's case.
20. The witness who gave the most relevant evidence in relation to "sexualised conduct" was GT. In his evidentiary statement he says at [9]-[11]: "When [SS] would touch my leg, he would often slide his hand from my thigh area towards my groin. When [SS] did this, I would push his hand away. I pushed it away because his actions made me uncomfortable, and his hand was entering an area where it didn't belong, that is my genital area. He would try and run his hand up my thigh during conversations. He would be talking and just do it without hesitation. [SS] attempted to touch my penis and genitals on occasions. At the time I would push him away with my hands to stop him touching me there. I knew what he was attempting to do, and I knew it was wrong. I didn't tell anyone as I felt like I could hold my own against him. I just felt I could deal with it myself."
21. Based on the plaintiff making his complaint to GT in "around 2006", suggests GT was about 14 years of age when the above incidents occurred. Despite an extensive cross-examination on other matters, the cross-examination of GT on the above passages from his statement was, to adopt the first defendant's criticism of the plaintiff's advocates' cross-examination, "perfunctory", simply suggesting the allegations were untrue.
22. From the plaintiff's side however, it is difficult to draw any helpful conclusions from GT's evidence. It was not submitted in final submissions to be tendency evidence and there is no suggestion that any other person was aware of the conduct. GT specifically says he did not tell anybody about the conduct.
23. I stated above that I thought GT was doing his best to give honest evidence and I accept his evidence. The difficulty I have is putting it to use in aid of the plaintiff's case. I think the best I can do is to say that it corroborates the plaintiff's allegations but does not play any part in proving them.
24. Looking back on the matters I have outlined there are obviously factors in favour and against a conclusion that the abuse in the motorcar occurred. The onus is on the plaintiff to prove his case. I think he has done so. I think his evidence combined with the complaint evidence, together with my dissatisfaction with a good deal of the defendants' evidence, has enabled the plaintiff to prove his case.

Was the first defendant negligent?

1. This question is governed by the CLA and in particular s 5B. The only way negligence could arise is through a finding that the first defendant had notice of abuse of the plaintiff or other underage children by the second defendant and failed to act to protect the children.
2. I have said on a number of occasions that I am against a finding that the grooming occurred. I formally find that the plaintiff has not established grooming on the part of the second defendant. I have also rejected any finding that any person in the church hierarchy was aware of any misconduct by the second defendant. I have also decided that the matters raised in the notice to admit facts, while possibly indicative of negligence, can be taken no further absent any evidence of what any checks, tests or inquiries might have revealed.
3. I think it must follow that the negligence action against the first defendant fails.

Is the first defendant vicariously liable for the abuse by the second defendant?

1. My finding that the abuse occurred must mean that the second defendant is liable to the plaintiff for any damages caused by the abuse.
2. There is no dispute that as at October 2005 the second defendant was not employed by the first defendant. The first defendant submitted that by virtue of this fact alone there could not be a finding of vicarious liability. The first defendant conceded that the submission was contrary to the finding of the Court of Appeal in Victoria in Bird v DP (2023) 69 VR 408; [2023] VSCA 66. The first defendant also accepted that I was bound to follow this decision unless I thought it was "plainly wrong".
3. If I did not think it was "plainly wrong", the first defendant submitted that even by applying the principles in Bird, I could not find the existence of vicarious liability. An appeal in Bird was heard by the High Court on 14 March 2024 but the decision remains reserved. I have decided that it is not in the interests of justice, and it was not submitted that I should do so, to delay judgment until the decision is handed down.
4. It is necessary to look at Bird in some detail. The case arose from a claim by DP "in which he claimed damages for psychological injuries he sustained as a result of assaults committed by a Catholic priest Father Bryan Coffey at the home of his parents in Port Fairy in 1971." The proceedings were commenced against the Diocese in which the priest had 'worked'. Father Coffey was an assistant parish priest at the time of the abuse.
5. The trial judge (Forrest J) found that the abuse had occurred. Forrest J found that the Diocese had not employed Father Coffey. His Honour found that the Diocese had not been negligent in that the Bishop of the Diocese had not failed "to exercise reasonable care in his authority, supervision and control of the conduct of Coffey." Thus far the basic facts are very similar to the present case.
6. Forrest J did find that the Diocese was vicariously liable for the acts of the priest. The Court of Appeal, at [41] described his Honour's finding in this way: "In that respect, the judge rejected the proposition, relied on by the applicant, that vicarious liability is confined solely to the employment situation. His Honour considered that in Sweeney the High Court did not lay down an absolute rule to that effect, and that the Court had stated, in relation to independent contractors, that 'the person engaging the contractor will generally not be vicariously liable'. In support of that proposition, the judge referred to the decision of the High Court in Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Cooperative Assurance Company of Australia Ltd."
7. The trial judge's attitude was summed up in this way, at [50]: "In conclusion, the judge was satisfied that on the occasion of the two assaults on the respondent, Coffey was engaged in a pastoral visit, in that his participation in Catholic social life in the community was as much a part of his role as celebrating Mass. The respondent's parents permitted Coffey to be alone with the respondent in his bedroom and in the tent, because of their implicit trust in him as a priest of the church."
8. The Court of Appeal referred to the High Court case of Hollis v Vabu Pty Ltd (2001) 207 CLR 21 and stated at [81]-[83]: "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. The first point is 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, and, in particular, the landmark judgment of Dixon J."
9. The conclusions that vicarious liability is not confined to cases where the tortfeasor is employed by the principal and that Bird is correctly derived from Colonial Mutual Life are the conclusions that the first defendant says I should find are "plainly wrong".
10. After discussing Hollis and Colonial Mutual Life the Court of Appeal stated, at [94]: "A number of those factors, of course, are not applicable to the relationship between Coffey and the Diocese. It is for that reason that Coffey could not be considered to be an employee of the Diocese. However, the decision in Hollis is important, because it demonstrates the relevance and significance, as a criterion of vicarious liability, of the circumstance 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. In that respect, their Honours referred with apparent approval to the passage in the judgment of McLachlin J of the Supreme Court of Canada in Bazley v Curry that an employer may be held vicariously liable where the employer's enterprise created the risk and where the employee's conduct was closely tied to the risk, which the employer's enterprise placed in the community."
11. Then at [114]: "However, the decision of the High Court in Colonial Mutual Life, and in particular the judgment of Dixon J, makes it clear that, in an appropriate case, a relationship may give rise to vicarious liability on the part of a 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."
12. At [116]-[117] the Court of Appeal stated: "Although identification of the underlying rationale that explains why vicarious liability is imposed in one setting but not another has proven elusive, central to the application of the principle to employees is that, inherent in the relationship, is a contractual right of the employer to control the performance of the duties of the employee. By being subject to such control, the employee necessarily forms part of or represents the enterprise of the employer. By contrast, a hallmark of the independent contractor is independence in the performance of work. The importance of the power of a principal to control and the inability of the tortfeasor to unilaterally delegate is readily demonstrated by those exceptional cases, in which vicarious liability is not imposed on employees who, by virtue of their particular role, exercise independent discretions. Those cases also demonstrate that the so-called rule, that an employer is vicariously liable, does not apply in every case."
13. The Court of Appeal then turned to the relationship between a diocese and a priest, at [120]: "The relationship between a diocese and a priest or assistant priest is, necessarily, sui generis. It does not exist in the context of a commercial relationship, such as was the case in Sweeney, nor in the context of a purely social relationship, as was the case in Scott v Davis. Rather, the relationship is founded in the context of the hierarchical system of a Diocese of the Roman Catholic Church. The decisions to which we have referred, and the principles outlined in them, reveal that that consideration of itself does not necessarily preclude the implication of vicarious liability on the diocese for the wrongful acts of a priest or assistant priest within its domain. Although undoubtedly secular, the law has not always treated religion and religious orders as if they were a form of a club or social organisation. The furtherance of religion is a recognised charitable purpose. The legal nature of the institution of marriage has its genesis in the ecclesiastical courts and the common law courts 'absorbed much Canon law learning'."
14. The Court of Appeal noted that "the Bishop has authority over all the priests in his Diocese" and stated, at [125]: "The relationship between Father Coffey and the Diocese through the person of the Bishop was governed by a strict set of normative rules that each of them had subscribed to, and which enabled Coffey to embody the Diocese in his pastoral role. Those rules of Canon law also permitted the Bishop to exercise control over Coffey that was at least as great as, if not greater than, that enjoyed by an employer. The formal structures that were in place allowed the Bishop to exercise control over, and to limit the area of independent action on the part of, the priest. The Bishop had the means to do so by providing instruction, supervision, transfer, limitation on authority, and ultimately by seeking sanctions, including expulsion, from church authority. In return the priest was clothed with the authority of the church."
15. After a further review of relevant authorities, the Court of Appeal stated, at [148]: "Applying those principles to the evidence in the present case, we consider that the judge was well justified in concluding that the position of power and intimacy, invested in Coffey as an assistant priest of the parish, provided him not only with the opportunity to sexually abuse the respondent, but also the occasion for the commission of those wrongful acts."
16. It is now necessary to return to the present case and to see if the evidence allows a conclusion that the position of power and intimacy, invested in the second defendant as a Sub-Deacon of the parish, provided him not only with the opportunity to sexually abuse the respondent, but also the occasion for the commission of those wrongful acts.
17. These I think are relevant parts of the evidence: 1. The plaintiff stated: "As time progressed with (the second defendant) being at St Joseph's, I started helping on occasional weekdays. At the time I was attending Christian Brothers Lewisham High School. (The second defendant) formed a close relationship with the church community as a Deacon and people were beginning to know him better. My mother and father know him and saw him quite frequently at the church." (Exhibit A). 2. The plaintiff's mother said she trusted the second defendant because he was a priest and also because the youth looked up to him. (Exhibit L1) 3. GT stated: "I first met SS at St Joseph's Maronite Church in Croydon. This was before he was a Deacon. At that time he was very involved in all the activities within the church, from decorating the church at different times of the year, helping with youth group, or helping with mass." (Exhibit D [3]). 4. BC was appointed as Business Manager of the Maronite Catholic Diocese in Australia in October 2006. In his statement (Exhibit 1D11) he refers to "considerations concerning the Royal Commission into Institutional Responses to Child Sexual Abuse" and says the Diocese upgraded its Child Protection Policies. This occurred in 2013 and he says: "A couple of times per year I make a presentation to the Priests and Deacons working within the Diocese as to our policies and what they should and should not be doing in terms of Child protection." Although he is talking about 2013, the relevance is that the presentations are made to Deacons as well as priests. 5. Monsignor FT emphasised, in relation to child protection, the equivalence of priests and Deacons. He was the parish priest at St Joseph's from September 2004 until 2012. In Exhibit 1D12, he states: "8. When I commenced at St Joseph's Croydon, it was a busy parish. There were three Assistant Priests, Father CB, Father QFL and Father BG and [Sub-deacon SS], and we would generally have several services in the Church each week … . … 11. … In relation to child protection, we did not have a written policy or procedures at that time. I believe that the formal working with children checks came in later, however it was made clear to us by the Bishop in our training, that there should be no unsupervised contact by Priests or Deacons with children, and that more than one adult should be present if any of the Deacons, Assistant Priests or Priests were with minors. This would have included Deacons or Assistant Priests driving children in their private motor vehicles. This was not permitted and was against the Bishop's directives. I never saw it occur. … 23. I had not ever seen [Deacon SS] or any Assistant Priests alone in their car with children. This would have been a breach of the directives that had been given to them. [Deacon SS] certainly never asked me for permission to do that, and if he had, I would have said: "No". … 27. In 2004, [SS] was a subdeacon. He was ordained as a Deacon in 2005. As a Deacon his role was to provide assistance to Priests serving the parish. [SS] to the best of my recollection during his time as a Deacon was involved in the publishing of the Parish Newsletter, with the Choir, the liturgy committee and training the leaders and teachers of the kids' group. The children themselves were not present when he trained the leaders of the group." 1. Monsignor TN was the parish priest at St Joseph's from 1998 until 2004. He says that the plaintiff's family were "active parishioners and attended services weekly and parish events … ." He states that SS helped at St Joseph's as a Sub-Deacon "on a part-time and volunteer basis." After he left SS became a Deacon. During his time Monsignor TN observed at [6]-[7]: "[SS], as I recall in my time in the Parish, was a helpful participant in the pastoral administration in the Parish and was a well-liked and enthusiastic worker. He assisted in the production of the Parish Newsletter, singing, and playing the organ for services, leading the choir, setting up the altar and church for services and Feast days, preparing the PowerPoint for the services. During this period, I recall he lived mainly with his family at Belmore. … I found [SS] to be of significant assistance in the work of the Parish. He was a hard worker, responsible, reliable, and committed to his pastoral work and I regarded him as a valuable member of the pastoral team." 1. In his statement, Exhibit 1D5, the second defendant states at [12]: "From May 2005 when I was ordained as a Deacon, my role within the Parish changed, in that I stood at the altar with the Priests during services. I lived in the presbytery, except generally on Mondays (my day off) when I usually went home. I also assisted with the Parish's liturgy committee, assisting with liturgical activities in the Church such as preparing for mass. I continued to have the role I described above in the choir and the Bulletin." 1. CT has two sons about the same age as the plaintiff. She states, in Exhibit 1D15, that she saw SS: "around children and young adults on many occasions. He was very good with them. He formed a very good friendship with my two sons and he was a great support to them… . I have a good recollection of the Relics tour in 2005 … . I was there each of the four nights, including when the Relics went to Mount Druitt on the final evening … . At the time of the Relics tour, I was a member of the liturgy committee will (which was headed by [SS]) and the sodality committee…".
18. The following conclusions emerge from the evidence I have just set out: 1. unlike KN, for example, SS did not have a separate occupation when he was a Deacon at St Joseph's. He was essentially there on a full-time basis, albeit as a volunteer, but also as part of his progression to priesthood; 2. in particular, in relation to the Diocese's attitude to child protection, it did not distinguish between Deacons and priests. They were both subject to the same regimen of directions to take great care to avoid the abuse of children; 3. SS, according to his own statement, was living in the presbytery (except for Mondays) from the time he became a Deacon. This was May 2005. Unfortunately, there is no evidence of him paying or not paying rent. If he did not, the benefit might be viewed as akin to a wage; 4. SS, as at October 2005, was involved in many aspects of church life including the liturgy committee (which he headed), the newsletter, the choir and youth groups; 5. SS had many dealings, and interactions, with youth in the community; 6. SS formed close relationships with many families in the community. He was trusted; and 7. SS's roles, in particular in relation to youth, were subject to direction from the parish priest.
19. The ultimate result from the conclusions I have just set out is that SS, for all intents and purposes, but other than the receipt of remuneration, held a position and was treated as if he was an employee of the church. In addition, the trust that his position allowed him to build up with the community provided him both with "the opportunity to sexually abuse the respondent, but also the occasion for the commission" of the abuse in October 2005.
20. It might be argued that an important distinction from the facts in Bird is that in Bird the perpetrator of the abuse was visiting the child's family as part of his pastoral duties. This is to be compared with the second defendant carrying out the abuse in the motorcar, which might be seen as an independent and unconnected expedition. However, it is to be remembered that he was taking the plaintiff home as an act of pastoral care, being a trusted member of the church community (in particular by the plaintiff's mother) and had the plaintiff in his car as part of the exercise of carrying out an obligation arising from that trust. The second defendant only had the plaintiff in his motor car because he had been entrusted to take the plaintiff home as a responsible leader figure in the church.
21. The result is that I think the first defendant is vicariously liable for the actions of the second defendant.
22. This conclusion is obviously a product of me taking the path dictated in Bird. I do not think it appropriate for me to find that Bird is plainly wrong. The result in Bird is a product of analysis as set out in the judgment. The case is currently before the High Court; it is up to the High Court to decide if it is plainly wrong or not. I would not presume to make such a decision. Obviously if the High Court takes the view that the decision should be overturned and vicarious liability is restricted to cases involving employment, then my decision will be wrong. That is a matter out of my hands and for the future.

Damages

1. Because I have found that the first defendant was not negligent but was vicariously liable for the actions of the second defendant, the assessment of damages falls to be made under the common law and not under the CLA. The only impact of the CLA, as I have mentioned above, relates to there being no interest permitted on past gratuitous care.
2. Starting with general damages the plaintiff suggested a figure of $400,000. The first defendant suggested $250,000. The difference between the two suggestions probably represents the limits of the appropriate range. Whether the figure should be closer to one end or the other probably depends on the degree to which the whole of the plaintiff's current condition can be related, or seen as having been caused by, the abuse.
3. The plaintiff says the whole of his current condition is related, including his addictions to gambling and drugs. The first defendant says these addictions are not related and just as likely to have been caused by a pre-existing susceptibility to the addictions. The differing views are well set out in the psychiatric expert conclave reports (Exhibits 1D33(A) and (B)). Dr Klug said this: "I regard the plaintiff as a profoundly psychiatrically unwell man. Even though I have diagnosed him with various conditions, it is a typical combination evident in adult victims of childhood sexual abuse. Although there was one incident of abuse which the plaintiff described, it gave rise to severe ongoing stresses for him in his adolescent life. He comes from a very religious family and religion dominated not only family life but the life of the community in which the plaintiff was raised. Abuse by priests in that situation represent abuse by a person who occupied a great deal of power, influence, dominance and reverence in the plaintiff's life. As with virtually all victims of childhood sexual abuse, he did not disclose the abuse to anybody probably because of shame and guilt which he experienced at the time. Consequently, this one incident gave rise to a severe and complex nexus of ongoing stresses in his life. This combination of trauma-related stresses has given rise to what I regard as a complex post-traumatic stress disorder and his personality-based dysfunction in adult hood as well as his other psychiatric conditions."
4. Dr Brown responded: "I reiterate the concerns that I have raised about diagnosing complex post-traumatic stress disorder in an individual who at the time of Dr Klug's report indicated that there had been one incident of sexual abuse. Although by the time of my assessment of the plaintiff in February 2019, he alluded to a number of other sexual contacts with the priest, I was unable to elicit sufficient history to confidentially assess these incidents as possible further traumas. … On the basis of the plaintiff's high-level emphasis of symptoms and impaired function in day-to-day life, I consider that his presentation had become complicated by his involvement in the legal proceedings. I did consider that many of the symptoms described by the plaintiff are attributable to his conditions of cannabis and alcohol abuse and a gambling disorder without invoking post-traumatic stress disorder is a relevant diagnosis."
5. Dr Brown later added: "I have identified psychiatric diagnoses which I consider are independently arising to any sexual trauma. … I have been unable to offer a confident association between the symptoms, conditions and disorders I have diagnosed, namely cannabis and alcohol abuse, a gambling disorder and a chronic depressive condition to the alleged abuse as compared to other factors. … In particular, I note that the plaintiff has a number of factors which are likely to have predisposed him towards developing psychiatric disorders as an adult."
6. Dr Brown identified the following independent factors: anti-social personality traits, sleep apnoea, a motor vehicle accident in which a pedestrian was injured, undiagnosed Attention Deficit Disorder. Dr Brown considered that the plaintiff's behaviour at school before the abuse is a strong indicator of independent sources of his later problems.
7. In her report of 22 December 2020 Dr Brown did accept that if the abuse had occurred "it would probably have increased the likelihood of SS developing the adult psychological symptoms and conditions he complains of." She considered the abuse would be "an aggravating factor to his pre-existing level of risk."
8. The plaintiff, in his statement, gives a description of his "Life Before and After" the alleged abuse.
9. In his oral evidence Dr Klug came much closer to Dr Brown's view then he had in his reports or in the conclave report. There was this passage of evidence: "HIS HONOUR: Dr Klug, just on that last point, your view seems to place the current problems squarely at the door of the abuse, obviously assuming that it happened. What do you say about the possibility of there being other factors that could at least have influenced the gambling addiction, or the drug addiction, the depression, all the things other than the post-traumatic stress disorder? WITNESS KLUG: Yes, I agree that there may very well be other pre-disposing factors from his childhood to those sorts of behaviours."
10. There is no doubt that the plaintiff has a number of severe psychiatric and psychological problems. These include depression, PTSD, a drug addiction, and a gambling addiction. Other than the PTSD, I do not think I can attribute them exclusively to the abuse, but I can say that, at the least, the abuse made the plaintiff more susceptible to the non-directly related conditions.
11. A good deal was made by the first defendant of the plaintiff's lifestyle, suggesting through his history of travel and daily activities that he was living a normal life and capable of living an independent life. In my view the evidence does not disclose this scenario. He may travel a lot, but usually to relatives and even when he travelled completely independently, such as the trip to Italy, he was soon in hospital upon his return. The plaintiffs many hospital admissions defy a conclusion of normality leaving him as a very troubled person, albeit one who has had a capacity to work and who can do usual activities like shopping and buying food and driving a car, but certainly not without difficulty and the continuing prospect of a return to hospital.
12. On this basis I think the plaintiff's figure is closer to the mark and I will allow general damages of $350,000. Interest on half of this amount at 2% over 19 years is $66,500.
13. For past economic loss the plaintiff's claim is $982,176, apparently based on average weekly earnings from the plaintiff turning 23. The defendant's suggestion is $275,000. The plaintiff was in fairly steady employment from 2010 until early 2017. His notices of assessment (Exhibit S) for these years reveal an average annual taxable income of $29,983. The income for each year does however fluctuate, the lowest being $3640 for the 2009/2010 year and the highest being $64,901 for the 2014/2015 year.
14. The first defendant accepts that the plaintiff has not had a capacity to work since January 2017 but says that up to that time the plaintiff was working in a manner consistent with what he might have been expected to achieve but for the abuse. The first defendant has calculated that the plaintiff had an average net income of $910 per week during his last three years of employment.
15. There are 391 weeks between 1 February 2017 and 1 August 2024. Using the $910 per week as a guide the result is $355,810. The first defendant says this figure should be discounted because of the contribution of other factors besides those related to the abuse. The first defendant's figure also includes interest. On the other hand, had the plaintiff continued working it is likely that his income would have increased since 2017 until the present. I think a fair compromise is to allow the $355,810 without any decrease plus a relatively small amount of interest to bring the figure to $400,000.
16. The plaintiff is also entitled to lost superannuation benefits which I calculate at 9% of the net loss. This is $36,000.
17. The plaintiff's claim for future economic loss is $1,711,418 which is based on average weekly earnings until age 67 less an allowance for vicissitudes. I note the calculation is made on the 3% tables consistent with a common law assessment.
18. The first defendant allows $100,000 for future treatment which is a significant amount and in fact is the same amount sought by the plaintiff. I think this allowance is generous even though the plaintiff will require significant and intensive treatment. However, assuming a degree of success of the treatment, the plaintiff should be able to return to some employment after about 10 years.
19. I think the first defendant's approach of a buffer is correct, but I do not think the sum is sufficient. If the plaintiff is given 10 years at $1100 per week, on the 3% tables and less 15% for vicissitudes, the result would be $422,433. I think if I allowed $350,000 for future economic loss as a buffer, but also including lost superannuation benefits then this is a fair assessment. It specifically takes into account the possibility that the plaintiff's inability to work may be the result of his addictions which are not necessarily a product of the abuse.
20. The next head of damages is past out-of-pocket expenses. The plaintiff's evidence came in after I had reserved my decision. No objection was taken to my receipt of the evidence although the first defendant does not concede any entitlement to any of the amounts claimed. I have marked the out-of-pocket expenses invoices as Exhibit W. The invoices all relate to The Cabin or The Dawn Rehab, both institutions being in Thailand. The invoices total $95,428.57. Based on the terms of the invoice and the receipts for some of them, they all appeared to have been paid.
21. The first defendant does not challenge the validity of the invoices but says that absent evidence of who paid the invoices and whether there is an obligation on the part of the plaintiff to repay the amounts, the claim should not be allowed.
22. The plaintiff's bank records (Exhibit 1D34) indicate, as did his evidence, that he receives a lot of money from other persons, in particular his mother. His mother was not asked whether she had made any loan type arrangements with the plaintiff although I suspect there would be an expectation that he would pay the monies back if he recovered compensation. I also note that Exhibit W refers to a payment on 18 February 2017 of $8,000 made by the plaintiff's mother.
23. Nevertheless, the first defendant's point is well made and there is no evidence of any obligation to repay the rehabilitation invoices. The plaintiff did however say that he was required to pay back $2,200 per month to "people I've borrowed off." He later said he was referring to an "uncle of mine that doesn't want to be mentioned.
24. I think I can infer from the repayments to the uncle and from the absence of any identified benefactor, that the plaintiff is obliged to repay the amounts spent on the rehabilitation in Thailand. I note that the plaintiff's parents do not appear to be wealthy. His mother stopped work following an injury and her compensation has been spent.
25. Another factor to be taken into account is that the addictions being treated in Thailand are not necessarily entirely related to the abuse, as propounded by Dr Brown and to some extent conceded by Dr Klug. Taking these matters into account I think allowing $30,000 is appropriate.
26. I have already noted that the plaintiff and first defendant agreed that future treatment should be assessed at $100,000. I will allow that amount.
27. The next head of damage is past gratuitous care, in this case provided by the plaintiff's mother. The plaintiff claims $65,000 per annum from January 2017 to June 2024. The first defendant says no allowance should be made.
28. The rate used by the plaintiff is $40 per hour. I did not understand there to be any suggestion the rate was unreasonable. The first defendant submitted that no reliance should be placed on the plaintiff's mother's evidence because "she was prepared to do and say anything to support her son" and the evidence of Mr Williamson was preferable to that of Ms Curtain. Ms Curtain did not actually assess past care. Mr Williamson said past care should not exceed four hours per week.
29. The first problem with the plaintiff's claim is that $65,000 per annum exceeds the four hours per day limit which I placed on the claim. I made two separate decisions to this effect.
30. The second problem for the plaintiff is that while I do not think the plaintiff's mother was so dishonest as to have totally, or effectively, invented a past care claim, I do think there was a degree of exaggeration which does not take into account the plaintiff frequently leaving the house and travelling.
31. I think I should allow Mr Williamson's formula of four hours per week for the 391 weeks from 1 February 2017 to 1 August 2024. At $40 per hour the resulting figure is $62,560. I have not discounted this amount for periods spent in hospital to reflect a degree of compromise because there are likely to have been times when more than four hours per week was provided by the plaintiff's mother.
32. Turning to the future, the plaintiff intends to spend six months in South Africa for rehabilitation and then to receive further treatment, all of which will hopefully enable him to live an independent life. I think I should take a roughly similar attitude to that in respect of future economic loss, that is to make an allowance for four hours per week for 10 years. I will also defer the 10 years for one year to take into account the plaintiff gaining into rehabilitation shortly after he receives his funds.
33. At $40 per hour for four hours per week for 10 years on the 3% tables, but then deferred for one year, the calculation is 40 x 4 x 451.8 x .971 = $70,191.65.
34. The last head of damages to be considered is aggravated damages.
35. In AA v PD [2022] NSWSC 1039, from [126] Chen J summarised the principles for the awarding of aggravated damages at [126]-[128]: "Aggravated damages are a form of general damages, given by way of compensation for injury to the plaintiff, which may be intangible, resulting from the circumstances and manner of the wrongdoing: State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). They are awarded for injury to the plaintiff's feelings caused by insult, humiliation and the like: Lamb v Cotogno (1987) 164 CLR 1 at 8 (Mason CJ, Brennan, Deane, Dawson and Gaudron JJ); [1987] HCA 47. That is, they are awarded when the harm done by the wrongful act was aggravated by the manner in which the act was done: Uren v John Fairfax (1966) 117 CLR 118; [1966] HCA 40; State of New South Wales v Abed [2014] NSWCA 419 at [231] (Gleeson JA, Bathurst CJ and Macfarlan JA agreeing). The entitlement to aggravated damages therefore turns upon establishment of these elements. The defendant's conduct In order to secure an award of aggravated damages, typically (but not invariably) there must be "conscious wrongdoing in contumelious disregard of another's rights": Gray v Motor Accidents Commission (1998) 196 CLR 1; [1998] HCA 70 at [14] (Gleeson CJ, McHugh, Gummow and Hayne JJ). In State of NSW v Riley (2003) 57 NSWLR 496; [2003] NSWCA 208 at [138] (Hodgson JA, Sheller JA and Nicholas J agreeing) ('Riley'), explained that whilst the presence of malice was not essential to ground an award of aggravated damages, and gave some guidance on the character of the defendant's wrongful conduct necessary to support such an award: "Conduct may be high-handed, outrageous, and show contempt for the rights of others, even if it is not malicious or even conscious wrong- doing. However, ordinarily conduct attracting exemplary damages will be of this general nature, and the conduct must be such that an award of compensatory damages does not sufficiently express the court's disapproval ..." Injury to feelings As aggravated damages, like compensatory damages, are directed towards injury to (or hurt) feelings, the Court must take care not to "double-count". This is particularly relevant in a case whether the injury relied upon to justify an award of damages is psychiatric, rather than physical, injury. This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach; that is, an award of so much as is necessary to bring the damages up to the upper end of the available range: Riley at [131]-[133] (Hodgson JA, Sheller JA and Nicholas J agreeing); State of New South Wales v Radford (2010) 79 NSWLR 327; [2010] NSWCA 276 at [95]-[96] (Sackville AJA, Beazley and Macfarlan JJA agreeing)."
36. I have already mentioned the trust that was imparted to the second defendant by the plaintiff's family, and in fact the community which included a number of parents. The abuse was a "contumelious disregard" of this trust. In addition, the abuse was attended by the humiliation felt by the plaintiff as well as the shame which prevented him from disclosing the abuse to any adult for some years. At the same time, I am aware that the general damages I have awarded are significant and I must avoid double counting. For these reasons I think the award of aggravated damages should be $15,000.
37. This is a table of the damages I have assessed: General Damages $350,000.00 Interest on general damages $66,500.00 Past economic loss $400,000.00 Past lost superannuation benefits $36,000.00 Future economic loss $350,000.00 Past out-of-pocket expenses $30,000.00 Future treatment $100,000.00 Past gratuitous care $62,560.00 Future care $70,191.65 Aggravated damages $15,000.00 Total $1,480,251.65

1. A final matter to be considered is whether there should be an order that the plaintiff's judgment sum not be given to him directly. It seems to me that a person with a gambling addiction and a drug addiction will take very little time to disperse the funds. I think it appropriate for the verdict sum to be paid into court and for the parties to then obtain such evidence as they wish in order to guide the path of the funds.

Orders

1. I make the following orders: 1. Judgment for the plaintiff against the first and second defendants, jointly and severally, in the sum of $1,480,251.65. 2. The judgment sum is to be paid into court within 28 days and is to remain in court until further order. 3. The defendants are to pay the plaintiff's costs of the proceedings. 4. All parties have leave to apply for a different costs order.

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