Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman

Judgment 1ALLSOP P: These are appeals, and applications for leave to appeal, from a comprehensive and careful judgment by Elkaim DCJ concerning a female school teacher (Ms Blackburn) who was found to have had a sexual relationship with a pupil in her class (Mr Withyman), who turned 18 shortly after the relationship began. The school was a special care school located in country New South Wales. 2Ms Blackburn was found liable to Mr Withyman, against which she appeals. The claim of Mr Withyman against the State (Ms Blackburn's employer) was dismissed, against which Mr Withyman appeals. The State also appeals, contingently, against the dismissal of its cross-claim against Ms Blackburn. If Mr Withyman's appeal against the State is upheld, and if the State is liable to him, the State seeks indemnity or contribution from Ms Blackburn. 3Before dealing with the appeals, it is necessary to set out the essential facts from the reasons of the primary judge. The care and thoroughness of his Honour's reasons should be acknowledged at the outset.

Facts 4During 2002 and 2003, Ms Blackburn was a teacher at Carenne Public School in Bathurst. She was 29 years of age in 2003. Mr Withyman was a student at the school. He turned 18 at the end of March 2003. The school served students with severe to moderate intellectual or physical disabilities. It can be accepted that Mr Withyman had, at least, a behavioural disorder. For reasons which will become apparent in explaining why Ms Blackburn's appeal succeeds, the nature of any intellectual impairment of Mr Withyman is an issue for future determination. 5Mr Withyman's case was that between March and October 2003, there was a consensual sexual relationship between him and Ms Blackburn, the termination of which caused him significant psychological harm and damage. The primary judge summarised the claim at [6] of his reasons: "The nature of a relationship between the plaintiff and the second defendant is central to the case. The plaintiff alleges a passionate sexual liaison lasting about six months. Its termination by the second defendant precipitated a downward spiral into depression and crime." 6Ms Blackburn denied any sexual contact between them. This was the central factual issue in the case. As the primary judge put it at [7] of his reasons: "The second defendant denies any sexual activity. She says there was a friendship with the plaintiff that grew from her desire to help him with his learning problems. His descriptions of sex and romance are fanciful." 7The primary judge dealt with the resolution of this central issue at [360] - [379]. These paragraphs follow his Honour's analysis of each witness' evidence. 8Whilst the primary judge found Mr Withyman's evidence unreliable (see [362] - [363]), his Honour concluded that there had been a sexual relationship during the period March to September or October 2003, without any precise specificity of dates: [379]. As to findings of the primary judge as to dates, see [27] below. The reasons for that conclusion at [365] - [378] reveal a careful weighing of at least eight considerations, some contrary to others. Determinative for the primary judge was the evidence of Ms Minato. She was a former friend of Ms Blackburn from Teacher's College, to whom Ms Blackburn had spoken contemporaneously with the events and with whom Ms Blackburn communicated later in an attempt by her to obtain Ms Minato's evidence in a case before the Industrial Relations Commission (the "IRC"). The case was brought by Ms Blackburn following her dismissal from employment, which dismissal was based on a conclusion by the Department of Education that she had had a sexual relationship with Mr Withyman. Included in the evidence of Ms Minato in the proceedings before the primary judge were various emails between Ms Minato and Ms Blackburn. I will deal with them in due course, but I consider that the emails are fatal to, and destructive of, any attack on the finding of the occurrence of the sexual relationship. 9Whatever the precise nature and extent of Mr Withyman's disabilities, a number of matters are to be noted by way of background to the sexual relationship with Ms Blackburn in 2003. Mr Withyman sexually assaulted another female teacher in 2000. Mr Withyman was then 15 years old. It is not necessary to name the teacher in question. She is referred to by the primary judge at [297] - [301]. I will refer to her as Ms W. She was 41 years of age. The nature of the assault is, however, relevant in the assessment of what the State should have foreseen, or not, about Ms Blackburn and Mr Withyman. Ms W's evidence was that she had "personal space issues" with Mr Withyman from the time that she began to teach him in 2000 (Blue vol 5, 2428, para 22). She initially treated this as a lack of awareness on his part; but she became concerned. She said that his touching of her moved from being gentle to becoming more forceful (Blue vol 5, 2429 - 2430, para 29). On one occasion he touched her breast. She reported the incidents to the Principal, Mr Roxborough, in a conversation which included the following: "Me: Jock [Mr Roxborough] I want to talk to you about David Withyman. Jock: What's the problem? Me: I am concerned about David's behaviour towards me. There have been several incidents of touching from David, but the other day when we were getting ready for parent morning tea David touched my breast which I'm sure was not an accident. Jock: Well they are pre-pubescent boys and just get on with it, it's a social skills issue. Me: Well I have been teaching the class about personal space as part of their social skills. Jock: Don't let them call you [Ms W's name with a "y" added] as its overly familiar. Me: Thanks Jock, I'll just keep going." 10There were further minor incidents with Mr Withyman about closeness and personal space, until one incident in 2002, which Ms W described as follows in para 36 of her affidavit in the IRC proceedings: "I was standing in a still position in the playground monitoring the students, and David came out of the glass doors of the building at the back of the school leading to the playground and he came straight towards me. I was standing about 25-30 metres away from the doors. The fact that David was walking towards me did not concern me as he would often seek me out in the playground for a chat, or if for instance I was on bike duty he would approach me there. As David was approaching it appeared to me that he was about to enter my personal space because of the manner in which he was grinning at me and the fact that he continued walking at a reasonable pace, I placed my right arm out in a 'stop' gesture and at the same time as I extended my arm he pushed my arm aside and in the same motion grabbed my crotch with his other hand and his body pushed forward onto mine and I stumbled backwards. As I was stumbling back his hand remained grabbing onto my crotch area and his hand remained there for about 4 or 5 seconds. I regained my balance and I pushed forward with my upper body or shoulder, and David stepped back and let go at the same time. I immediately yelled at him 'That is really inappropriate' and I recall that he did not say anything to me either before, during or after the incident. He simply smiled and walked away." The only proper characterisation of the event was as a sexual assault, intended by Mr Withyman to be humiliating of Ms W. Ms W said that it was "excruciatingly painful". 11The response of the Principal, Mr Roxborough, was described by Ms W in para 40 of her affidavit in the IRC proceedings, as follows: "As I entered Jock's office I considered that I was visibly upset as my hands and voice were shaking and I had tears welling in my eyes. As I walked through the door I looked at Jock, and I said 'David Withyman has just assaulted me'. I remained standing and then a further conversation took place to the following effect: Me: He grabbed me forcefully between the legs. I then sat down. Jock: What happened? Me: I was on playground duty and David has walked up to me and just grabbed me between the legs. He then looked straight at me and said: Jock: Well did you kick him in the balls? I gave no response and then stood up and walked out of his office." He gave her no other support and took no other step. 12In February 2001, Mr Withyman was required to enter a "behaviour contract" to obey the school rules. He had also signed such a "contract" in 1999. 13During 2002, Ms Rowe, a teacher's aide, worked with Ms Blackburn. She assisted Ms Blackburn in a class of children aged five to seven years. Mr Withyman, then 17 years old, would visit Ms Blackburn in this class for up to 15 to 20 minutes a day, over a two week period. The primary judge described the consequences of this at [210] of his reasons: "During 2002, but she [Ms Rowe] was not sure when, she noticed that the plaintiff [Mr Withyman] would visit the classroom for up to 15 to 20 minutes a day. This occurred over about a two week period. She was concerned, not because of anything improperly done by the plaintiff, but rather because she wanted to maintain the privacy of the younger children. Some of them had personal needs, such as the changing of catheters, which she felt ought not take place in the presence of an older student. As a result of her concerns she spoke to Ms Lee Churches, the Deputy Principal, and also the teacher in the other classroom in the courtyard. She later said that she had, to some extent, spoken to Ms Churches both on her behalf and on behalf of Ms Blackburn. As a result of speaking to Ms Churches she understood that Ms Churches, in turn, spoke to the plaintiff. Following this conversation the plaintiff's attendance dropped off and he did not come as often for a couple of weeks. In this period he made one or two fleeting visits." 14After a period of two weeks, the visits began again. The primary judge described the circumstances and consequences of these visits at [211], as follows: "After the two weeks, however, he went back to his previous level of visiting. He would help put out equipment and generally chat. He spoke to both Mrs Rowe and Ms Blackburn. Mrs Rowe again became concerned and this time spoke to Mr Roxborough, the Principal. She said she was not comfortable having the plaintiff with the juniors. He said he would deal with it and obviously did because the plaintiff then did not come back for the rest of the year. She said that the whole episode of the plaintiff's visits covered about the length of a term but otherwise she could not be more specific in relation to timing. She said she told Ms Blackburn about speaking to Mr Roxborough. Ms Blackburn said that the plaintiff was just being pleasant." 15Ms Rowe's other observations of Mr Withyman were that, though he was courteous to her, he had behaviour problems and could act inappropriately with other students by fighting, bullying and teasing: [208] of the reasons. 16During the period of these visits or shortly beforehand, in August 2002, Mr Withyman visited Ms Blackburn at her house at 8 pm. Ms Blackburn said in her statement for the IRC proceedings that she was shocked when this occurred, that he had alcohol on his breath, but that after making tea and talking to him he left without trouble. Ms Blackburn reported the visit the next day to the Departmental District Guidance Officer, who told Ms Blackburn to tell Mr Withyman not to do this again, using words suggested to her by the Guidance Officer. 17In 2003, Ms Blackburn was allocated the senior class. This class contained Mr Withyman. She worked a three day week and shared the class with Mr Neal. During the first month of 2003, Ms Blackburn's involvement with Mr Withyman was to drive him to work experience locations: [73] of the reasons. The nature of Mr Withyman's course was to equip him with life skills, not to pass external examinations. Thus, work experience placements were an important part of his learning. 18Mr Withyman visited Ms Blackburn at her home in early 2003. 19In February or early March 2003 there was a school swimming carnival. There was an incident in which Ms Blackburn and Mr Withyman were, as the latter said in his evidence, "mucking around at the pool" and he "nudged her and she fell in": [76] of the reasons. 20Following this incident Mr Withyman spoke to Mr Roxborough, who required him on 14 March 2003 to agree to or accept a behavioural contract, some of the content of which was specifically directed to Ms Blackburn. It was read to him. It was as follows: "I understand that my relationship with all staff is that of a pupil to staff relationship. This means that: ● I cannot be alone with any staff member at any time (unless I have approval from my principal or parents), nor invade their personal space (i.e. I must not touch them, visit their homes and not speak to them in an improper manner). ● When I arrive at school I will start my work and if I need assistance I will ask for help from Mr Neal, Mrs Sweeny and Mrs Luther. ● From this point on there is to be no contact by me with Miss Blackburn. I have read the above, it has been explained to me, and I understand what it means." On the document in Mr Roxborough's hand under the heading "Issues" the following was written: " ● Visits to Ms Blackburn's home after being told this was inappropriate and not to happen, as far back as August 2002. ● Inappropriate touching of Ms Blackburn e.g. swimming carnival/pushing teacher into pool. ● Violent outbursts and inappropriate language on a number of occasions e.g. broken windows." 21Shortly prior to the meeting between Mr Withyman and Mr Roxborough, on 11 March 2003, Ms Blackburn compiled notes of all her interactions with Mr Withyman. The document was two pages long and concluded with a document of a similar character to the behavioural contract that Mr Roxborough drafted. The two page document recounted the contact from 2000, referred to the August 2002 incident and contained the following: "David has never made 'a pass' at me and has mostly treated me with respect as far as language is concerned. This year 2003, I was given the Senior Class with Terry Neal and Ross Luther. David made me aware that he liked me and I explained that I am his teacher, which means I have a responsibility to all students to be professional. David understands that is as far as our relationship goes." 22She described the swimming pool incident as follows: "During the school swimming carnival, I encouraged all the students to participate in their age races. Other staff and myself got in the water to help with the swimming. David helped me with another student to lift her in and out of the water. He was friendly, as usual but not causing trouble. In jest David pushed me into the pool. In my experience, this is a very common, although undesirable action at carnivals. Before I had a chance to express myself regarding that, another teacher stepped in. I observed David to swear at the other teacher and walk off. Jock was called and while we waited for him to arrive, I explained to David that it was wrong to push me in the water even though it was just a joke. When Jock arrived I observed David to refuse to come with him and swear and act violently towards him. Then afterwards, a number of students and teachers went over to David outside the fence. I was asked to go over to the fence. I asked the students to go away from David and then to David said 'what do you want'. He said 'I want to come back'. I then went over to Terry Neal, the organiser of the carnival and passed this on to him. He said that it was up to Jock now, which I did not know at the time. My observations of my actions and those around me was that the more significant, following incident could have been avoided, had I been allowed to deal with the student myself. Later David apologised to me for pushing me in the water." 23The balance of the document sought to convey her professional view as to the better handling of Mr Withyman through personal engagement. The document continued: "David continues to talk [to] me about his life outside of school and seeks my advice at times. As do many of the students in my care. At school, I have asked David to be aware that I am his teacher not his friend. I choose to mostly ignore minor attention seeking behaviour but react immediately to behaviour which endangers other students. David chooses to participate in my groups during group times and complies with my requests to complete work. At times, I have heard David swear at other staff. I always comment to him that it is inappropriate to swear but there is little I can do after the words are out. With all the students who have shown aggression, I spend a great deal of my teaching time suggesting strategies for how they deal with issues in their lives. Other staff would observe me to be joking and laughing with students who are at other times extremely violent and oppositional. They may have missed the fact that my influence over these students is because of my validity with them. They may also miss that the majority of these students complete their work with me when historically, they have refused to work. As most teachers who have had experience with teaching behaviour disordered students would know, the most successful teaching occurs when the students want to be in the learning situation. As a professional I am aware that over-familiarity is a problem for teachers who have not been able to exercise classroom management skills and control over the students. Therefore, I have prepared a document (attached), that David will sign to demonstrate his awareness that he can not be over-familiar with me." 24The document she created was in the following terms: "I, David Withyman, will do the following: ● I will not be alone with Miss Blackburn at school ● I will not touch Miss Blackburn while at school ● I will not hold private talks with Miss Blackburn ● I will let Miss Blackburn get on with teaching the whole class ● When I get to school I will start my work. If I have trouble I will ask for help from either Mr Neal, Mrs Luther or Miss Blackburn I will not be over-familiar with Miss Blackburn." 25The primary judge found that the sexual relationship commenced "some time before the end of April 2003 and continued until at least September 2003": [377] of the reasons. 26Within a week of the acceptance of the behavioural contract to which Mr Withyman agreed and which Ms Blackburn signed, she was directed to drive Mr Withyman to work placements and to conduct a cooking class in which he was a student: [285 (b)] of the reasons. Within a few days of the creation of the behavioural contract, Ms Blackburn was seen watching Mr Withyman play pool in a recreation room. 27There is some imprecision in the findings as to the time of the commencement of the sexual relationship. The finding at [377] was "some time before the end of April 2003". At [285 (c)] the primary judge refers to "a seduction by [Ms Blackburn] of the student" two weeks after she wrote the document of 11 March 2003. On the latter finding, the sexual relationship can be seen to have commenced shortly before his 18th birthday in late March 2003. 28In April 2003, Ms Minato (whom the primary judge described as "a key witness, if not the key witness, in [Mr Withyman's] case") had conversations with Ms Blackburn which the primary judge set out at length at [94] of the reasons. These contemporaneous conversations about which Ms Minato gave evidence included statements by Ms Blackburn that she had had sex with someone younger than she who was a student at her school. Ms Minato also said that in early October she said to Ms Blackburn that she had to stop the relationship and that Ms Blackburn had agreed and had said that she knew it was wrong, "but for whatever reason something keeps drawing me back to him". 29Other important evidence was from a Ms Mahoney, an intern at the school for 6 weeks in August/September 2003. She gave evidence that Ms Blackburn told her that she had "a relationship with David [Mr Withyman] outside school"; and that she saw them arguing at school and on another occasion they were chasing each other and laughing. She brought this to the attention of Mr Neal who said "David's just having nesting problems", meaning difficulties leaving "the nest" being the school, since it was his last term. 30The relationship ended in October 2003 in an ugly scene at Ms Blackburn's house. The police were called. The events are described by the primary judge at [36] - [38]. Two days later Mr Withyman physically assaulted Ms Blackburn; an apprehended violence order was made, and assaults of her later occurred, of which he was convicted and imprisoned. 31The evidence of Senior Constable Erin Lloyd was important. She attended the events of 12 October 2003. She spoke to Ms Blackburn, who made what could be seen to be admissions that are described at [194] - [197] of the reasons. 32In 2007, after she was dismissed, Ms Blackburn commenced proceedings in the IRC alleging wrongful dismissal. The Department sought to justify the termination by reference to the relationship. In the course of these proceedings, Ms Blackburn and Ms Minato corresponded by email. Ms Blackburn requested Ms Minato to swear an affidavit to the effect that she was aware that Ms Blackburn had not had a sexual relationship with Mr Withyman. She repeated the requests. Ms Minato said that she would not do so, because she would not lie. Later Ms Minato received a further email from Ms Blackburn saying that she may be subpoenaed to give evidence. At this point Ms Minato contacted the Department and provided a statement that contained evidence of direct admissions by Ms Blackburn of having sex with Mr Withyman.

The resolution of the controversy by the primary judge 33Mr Withyman succeeded in his case against Ms Blackburn. The claim was found by the primary judge as one of breach of duty, but as one that fell within the Civil Liability Act 2002 (NSW) (the "CL Act"), s 3B(1)(a), as "liability in respect of an intentional act that is ... other sexual misconduct". Thus, the CL Act did not apply to the claim against Ms Blackburn. The primary judge accepted that there had been damage of an emotional or psychological nature - depression and distress, requiring psychiatric treatment. The primary judge awarded $75,000 and interest on a proportion of it. Mr Withyman had also claimed that his later criminal conduct and drug abuse were a compensable and causally related consequence of the breach of duty and the broken affair. The primary judge rejected this and no appeal was brought from that conclusion. The primary judge rejected the whole claim for economic loss: see [433] of the reasons. The primary judge did award aggravated and exemplary damages of $20,000, plus interest. Together with minor sums for out of pocket and future medical expenses, Mr Withyman's judgment against Ms Blackburn was for $120,293.65. 34Ms Blackburn's claim against Mr Withyman for his assaults upon her (which I have not detailed) was successful in large part. She was awarded $69,475, being substantially general damages of $60,000. No appeal lies against this judgment. 35Mr Withyman's claim against the State, both for breach of its own duty of care and for vicarious liability for the actions of Ms Blackburn, was dismissed. Appeal is brought against both of these conclusions. The primary judge assessed damages under the CL Act against the State, on the hypothesis that he was wrong on liability, as $18,433.65. Appeal is brought against that assessment by Mr Withyman, if his appeal is successful on liability. Mr Withyman does not appeal against the award of damages against Ms Blackburn.

Ms Blackburn's appeal 36Mr Jeremy Morris, who appeared for Ms Blackburn, put her appeal both in written and oral submissions. The latter refined and limited the former. In the written submissions there was a general attack on the conduct of the trial arising from Ms Blackburn being a litigant in person. The submission was put that she had been denied procedural fairness. That submission was not pressed orally; and a more focused submission was put about the calling of Ms Minato and the treatment of Ms Minato's evidence. 37Mr Morris put three arguments. First, it was said that while the pleadings were restricted to negligence, submissions were made and the award of damages was made on the basis of an intentional tort or sexual misconduct which was not adequately or properly pleaded. Secondly, it was said that Ms Minato's evidence was dealt with in a way that was not fair to Ms Blackburn and that the finding of sexual misconduct to which it was central should be set aside. Thirdly, it was said that Ms Blackburn had a limitation defence that was not dealt with by the primary judge because of a mistaken view, with which counsel for Mr Withyman and the State concurred, that the issue had been conclusively dealt with by another judge in an earlier interlocutory application. 38For the reasons below, the first two grounds fail and the third succeeds. This necessitates a new trial restricted to the question of the operation of the Statute of Limitations.

The pleading ground 39The essential submission was that the findings that were made were not open on the pleadings. The substantive unfairness in the way the damages were assessed arose from a failure to plead matters outside the CL Act. 40Section 3B(1)(a) of the CL Act provides as follows: "(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person-the whole Act except: (i) section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and (iii) Part 2A (Special provisions for offenders in custody)." 41The primary judge concluded, correctly in my view, that the case was one of negligent conduct by Ms Blackburn in her entering into a sexual relationship with Mr Withyman and the intentional physical acts that that involved, in the light of Mr Withyman's vulnerable personality and the foreseeable psychological harm to him at the (inevitable) cessation of the relationship. I will come to the Crimes Act 1900 (NSW), s 73, in due course. 42The original statement of claim was filed in April 2008. Some months later an application was made under the Felons (Civil Proceedings) Act 1981 (NSW) (the "Felons Act"), s 4, for leave to proceed given that Mr Withyman was in prison at the time of the commencement of the proceedings. 43The argument put by Mr Morris had two elements to it: first, that the pleading was inadequate in terms to permit a claim outside the CL Act; and, secondly, that the proper construction of s 3B(1)(a) meant both that the pleading was inadequate and that the events as found did not satisfy the terms of s 3B(1). 44In my view, the pleading was adequate to raise fairly and squarely a claim outside the purview of the CL Act. The facts, as alleged in the amended statement of claim (being the pleading moved on at the trial), raised squarely the primary factual allegations: the teacher/pupil relationship (para 11), a degree of intellectual disability of Mr Withyman (para 12), the potential operation of the Crimes Act, s 73 (although the pleading in error contained a reference to s 72, repealed well before 2003) (para 13), the degree of authority and intimacy that the teacher/pupil relationship had in these circumstances (para 14), the engagement in an ongoing sexual relationship from March 2003 (when Mr Withyman was 17) to October 2003 (para 18), an asserted lack of consent or informed consent because of Mr Withyman's intellectual disability (para 19), that Ms Blackburn was negligent in having the sexual relationship (para 26) and that the relationship amounted to a sexual assault (particular (c) under para 26). Whilst the second amended statement of particulars identified a multiplier of 5 per cent for damages, which accorded with the requirements of the CL Act, s 14(2), thus indicating a claim under, not outside, the CL Act, the amended statement of claim contained claims (as had the original statement of claim) for aggravated and exemplary damages on the second page of the document under the heading "Relief Claimed", which were heads of relief outside the CL Act: s 21. 45The reference to the Crimes Act, s 72, was clearly an error. Section 72 was repealed on 23 March 1986. It had dealt with attempt carnally to know any girl above the age of ten and under the age of 16 years. Any practitioner upon receipt of that pleading would have understood that it was intended to be a reference to the relevant provision in the Crimes Act concerning sex between a teacher and child. That section was in fact s 73. Before 12 June 2003, s 73 was in the following terms: "73 Carnal knowledge by teacher etc Whosoever, being a schoolmaster or other teacher, or a father, or step-father, unlawfully and carnally knows any girl of or above the age of 16 years, and under the age of 17 years, being his pupil, or daughter, or step-daughter, shall be liable to imprisonment for 8 years." On and after 12 June 2003, s 73 was in the following terms: "73 Sexual intercourse with child between 16 and 18 under special care (1) Any person who has sexual intercourse with another person who: (a) is under his or her special care, and (b) is of or above the age of 16 years and under the age of 17 years, is liable to imprisonment for 8 years. (2) Any person who has sexual intercourse with another person who: (a) is under his or her special care, and (b) is of or above the age of 17 years and under the age of 18 years, is liable to imprisonment for 4 years. (3) For the purposes of this section, a person (the victim) is under the special care of another person (the offender) if, and only if: (a) the offender is the step-parent, guardian or foster parent of the victim or the de facto partner of a parent, guardian or foster parent of the victim, or (b) the offender is a school teacher and the victim is a pupil of the offender, or (c) the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or (d) the offender is a custodial officer of an institution of which the victim is an inmate, or (e) the offender is a health professional and the victim is a patient of the health professional. (4) Any person who attempts to commit an offence under subsection (1) or (2) is liable to the penalty provided for the commission of the offence. (5) A person does not commit an offence under this section if the person and the other person to whom the charge relates were, at the time the offence is alleged to have been committed, married to each other." 46Mr Withyman's birthday was in late March 2003. Thus, no criminal offence was or could have been committed by Ms Blackburn. If, however, one assumed that the form of the provision after June 2003 applied prior to June, Ms Blackburn would have been at risk of having committed a criminal offence by having sex with Mr Withyman before his 18th birthday. 47Whilst s 3B itself was not mentioned in the pleading, the clear assertion of all relevant facts made the primary judge's approach to damages entirely appropriate and fair, as long as his construction of s 3B in [384] - [385] of his reasons was correct. In those paragraphs his Honour said: "The plaintiff's submission is that Ms Blackburn's breach of duty was an intentional tort and thus exempted from most of the CLA. He also submits that if the first defendant is vicariously liable for Ms Blackburn's tort then the first defendant also loses the benefit of the CLA. Section 3B, as relevant, states the damages provisions of the Act do not apply to: '(a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person...'. I think the actions of Ms Blackburn were intentional and amounted to "sexual misconduct." This means that, all other requirements being satisfied, the plaintiff's damages against Ms Blackburn should be assessed at Common Law and he is eligible for exemplary and aggravated damages. I should add here that, for purposes of Ms Blackburn's cross claim, the assaults upon her and the breaches of AVOs are clearly intentional torts falling within the Section 3B exemption. Therefore any damages to which she is entitled are to be assessed at Common Law. She has also claimed exemplary and aggravated damages." 48The submissions below and, to a degree, in this Court were misdirected in the characterisation of what occurred as an intentional tort or as a sexual assault. The engagement of the two in the sexual relationship was entirely consensual. Such intellectual impairment as Mr Withyman had was not found by the primary judge to vitiate the consent he willingly gave. On the legislation in place, no crime was committed. No intentional tort was committed, though there were intentional acts. They were not "done with intent to cause injury or death", nor were they "sexual assault" for the purposes of s 3B(1)(a). Was it, however, "other sexual misconduct" by Ms Blackburn? The primary judge thought so. He was correct. 49No discussion of the phrase "sexual misconduct" appears in the Review of the Law of Negligence Final Report (September 2002) (the "Ipp Report"). The meaning of the phrase is to be taken from its text and its place in the CL Act, influenced by any purpose from the text and structure of the Act and any appropriate secondary materials. No secondary materials were identified as relevant to the mischief or purpose of s 3B, beyond that which is implicit in the Act itself. The CL Act contains various provisions designed to "reform" the common law, and reduce damages awards. The context and mischief to which the CL Act were directed can be seen from the first paragraph of the terms of reference of the Ipp Report: "The award of damages for personal injury has become unaffordable and unsustainable as the principal source of compensation for those injured through the fault of another. It is desirable to examine a method for the reform of the common law with the objective of limiting liability and quantum of damages arising from personal injury and death." 50It is unnecessary to discuss why each of the excisions from the limiting operation of the CL Act set out in s 3B was made. Some excisions are of types of liability having their own particular regime: see, for example, s 3B(1)(d), (e), (f) and (g). Others can be seen to be types of civil liability which should not have any restriction on full common law recovery. Paragraphs (1)(a) and (b) in s 3B are in this category. 51The word "misconduct" encompasses the meanings "improper conduct" or misbehaviour: see W Little, H W Fowler and J Coulson, The Shorter Oxford English Dictionary on Historical Principles, 3rd ed (Clarendon, 1973) vol 2. In conjunction with the adjective "sexual" it conveys the meaning of a breach of moral values sufficiently commonly recognised to be called wrong. In Andrew v Andrew [2012] NSWCA 308 at [12] - [13], in the context of legislation concerned with provisions in wills, I said the following as to the place of values and morality in the law: "Accepted and acceptable social and community values permeate or underpin many, if not most, of the individual factors in s 60(2) and are embedded in the words of s 59, in particular 'proper' and 'ought'. That such values may be contestable from time to time in the assessment of an individual circumstance, or that they may change over time as society changes and grows can be readily accepted. Customary morality develops 'silently and unconsciously from one age to another', shaping law: Benjamin N Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921) at 104-5. The relationship between law and morals or morality depends, of course, on the context of the enquiry: see for example R Pound, The History and System of the Common Law (New York: Collier, 1939) at 16-21. As Gleeson CJ said in Vigolo at 204 [25], the language of the statute is 'general but value-laden', operating in connection with 'community standards' that will see it given 'practical meaning', that is, to the people and community who and which the law serves. The values or morality of a civil society underpin or inform, at different levels and in different degrees of abstraction, law at all levels including interpretation of legal (including statutory) rules, evaluative assessment of standards (legal and factual) and discretionary judgments. To the extent that values are expressed by Parliament, they are interpreted and given limits and contours by the courts. Parliament may prescribe relevant factors to be taken into account, but community values are not the monopoly of Parliament. Ultimately they belong to civil society itself, to be ascertained or discerned by courts, whether by interpretation of statute or by the expression of the general law, when the application of judicial power requires it: cf Onus v Alcoa of Australia Ltd [1981] HCA 50; 149 CLR 27 at 42. Such does not obtain only in homogeneous or static societies. Diverse, tolerant and democratic societies governed by law and justice must, even more so, reflect the binding coherence of shared values and assumptions. Difficulty from time to time in accurate contemporaneous expression of such values and assumptions lessens not the need for the values or assumptions to be recognised or applied." 52Here, in s 3B(1)(a), the Parliament has used a phrase that necessarily requires application of a community moral standard. What its reach is at any given time and place will be a matter for the court to assess. Its limits need not, and should not, be defined, especially by rules drawn up in advance of the resolution of disputes from particular factual circumstances. Some activity that in a past era would have been seen as sexual misconduct, no longer may be so viewed. Here, however, a teacher with responsibilities for the intellectual and emotional care of a vulnerable young man intentionally engaged in a sexual relationship with him. If the Parliamentary calendar had been such as to have led to the amendment of the Crimes Act, s 73 but three months earlier, Ms Blackburn may have been guilty of a crime, if the findings made by the primary judge were to be made by a jury beyond reasonable doubt. The phrase does not require a criminal act as "sexual assault" would. The word "other" does not in my view require criminality as is implicit within the phrase "sexual assault". 53In these circumstances, I have no doubt that the found conduct was "sexual misconduct". 54Further, as a teacher, Ms Blackburn was bound by a Code of Conduct that was in written form and of which she can be taken to have been aware. The Code required that all staff must: "i. be conscious of their special duty of care to the students of the NSW public education system in all educational activities in and out of school; ... xviii. behave in such a manner to protect and enhance the esteem and standing of public education. In particular: staff must not, under any circumstances, have sexual relationships with students. - It is irrelevant whether the relationship is homosexual or heterosexual, consensual or non-consensual or condoned by parents or caregivers. The age of the students or staff member involved is also irrelevant. - Improper conduct of a sexual nature by a staff member against a student includes sexual intercourse and any other form of child sexual abuse (which must be notified) as well as but not limited to the following: ● Inappropriate conversations of a sexual nature; ● Obscene language of a sexual nature; ● Suggestive remarks or actions; ● Jokes of a sexual nature; ● Obscene gestures; ● Unwarranted and inappropriate touching; ● Sexual exhibitionism; ● Personal correspondence with students in respect of the staff member's sexual feelings for the student; and ● Deliberate exposure of students to sexual behaviour of others, other than in the case of prescribed curriculum material in which sexual themes are contextual; - staff must not give students alcohol or other drugs, nor will they encourage or condone the use of alcohol or other drugs by students. They may, however, administer or supervise the administration of prescribed medications consistent with Departmental guidelines. - staff must not, under any circumstances, use any form of discipline which involves corporal punishment or engage in any form of behaviour which could cause physical or emotional abuse to students." 55These were the clearest requirements of her employer. They also had statutory force, being regulations made under the Teaching Service Act 1980 (NSW), s 100(1). The Code therefore had a status as a form of law. 56The pleading ground therefore fails.

The complaint about Ms Minato's evidence 57The complaint about Ms Minato's evidence focused on the importance of her evidence, how it came forward and the fairness of the trial in this respect in the light of the primary judge's reasons. 58Ms Blackburn appeared for herself at the hearing. She had previously engaged lawyers for the IRC proceedings, but had run out of money. The primary judge's reasons reveal an acute awareness on his part to alleviate any imbalance that may well arise from experienced counsel (here two silks with juniors, supported by solicitors) pitted against a litigant in person. No complaint was made as to the general conduct of the trial. The complaint concerned Ms Minato's evidence. 59A little further context is necessary. Ms Minato had, in 2008, provided a statement to the Department for use in the IRC proceedings. The statement was direct and unequivocal in its terms that Ms Blackburn had admitted in 2003 to having sex with Mr Withyman. Ms Blackburn could have been under no doubt that Ms Minato's evidence would be used against her interests in the trial. The bundles of documents circulated among the parties prior to and at the trial contained the contentious emails of 2008 (to which I will address further comment below) and Ms Minato's supportive email of 2004. Ms Blackburn must have understood (as the emails to which I will make reference later reveal) that she would have the opportunity to cross-examine Ms Minato. 60Ms Minato was interposed during the evidence of Mr Withyman. We were told on appeal (without demur from the other parties) that Ms Blackburn was told of the coming of Ms Minato on the morning of the day that the latter gave evidence. The transcript does not reveal that any contemporaneous complaint was made about unpreparedness. The primary judge recounted that the interposition was by consent: [92] of the reasons. The primary judge also recorded at [92] that in her submissions Ms Blackburn said that she had not been ready to cross-examine Ms Minato and that a degree of unfairness had arisen. The primary judge did accept that if he had appreciated the significance of Ms Minato's evidence, he would not have allowed her to be interposed. His Honour (with the particular advantage of having run the trial) then said at [92]: "...However I do not think Ms Blackburn suffered any prejudice. She was able to question Ms Minato with a good deal of 'admissibility' leeway and she made no application to have her recalled for further cross examination. The importance of Ms Minato would also have been evident to Ms Blackburn from Ms Minato's involvement in the Industrial Relations Commission proceedings. I also note that before Ms Minato was called, Mr Marshall said this: 'I'm seeking your Honour's leave to interpose an interstate witness. I have my learned friend, Mr Blacket's consent to that, and I've spoken to Ms Blackburn yesterday. I believe she consents to this course.' (T 405.15)" 61Mr Morris' submissions focused upon the unexplored meaning of a 2004 email from Ms Minato to Ms Blackburn. That email had been sent by Ms Minato to Ms Blackburn on 23 July 2004, shortly before a hearing of the case against Mr Withyman for assaulting and threatening Ms Blackburn. It stated: "Goodluck with the court thing. I'll be thinking of you. Remember to tell the truth and know that YOU'VE done nothing wrong!!!! Wish I could be there for you...." 62If Ms Blackburn had "done nothing wrong" as Ms Minato had said in that email, how could Ms Minato have been told by Ms Blackburn in 2003 the things in Ms Minato's statement? This was a cross-examination of some technical forensic subtlety to accomplish with the aim of showing that by 2008 the confusion had become embedded in Ms Minato's memory, possibly caused by the salacious publicity that the IRC proceedings had attracted. The point was expressed by Mr Morris at the appeal as follows (see Transcript 14.11.12, p. 22, p. 24): MORRIS: "Now that was her state of mind in the IRC. That was her state of mind when it came before the judge but the point is there was a big question as to whether that was her state of mind as at 27 July 2004 on the eve of the trial because she specifically says "With respect to the deterioration in the relationship between the only two people who were said to be involved in the sexual relationship, just remember tell the truth, you have done nothing wrong." So the short point is that was there and it was never exploited and it was never even take into - although it was in evidence, it was never taken into account and it tied in with Blackburn's statement to the judge, "I'm not saying she's telling lies, I'm saying she's either confused or confused about dates. ... It isn't just simply a question of saying these conversations didn't take place, right, because the trial judge said these conversations didn't take place. He didn't take it any further than that, he did a rolled up question and left it alone. Now we all know that the trial judge is of course constrained when dealing with a self-represented litigant. The point is the emails from July 2007 were in evidence and they undermine considerably the assertion by Minato about the reason and some of the details of the conversations which were said to have taken place back in April/May 2003 because if she had formed the view that it was unethical, irresponsible in April/May 2003 then on one view her view had changed by July 2004 on the eve of the trial, you have done nothing wrong." 63It is necessary to understand how Ms Blackburn conducted the cross-examination and to bear in mind the relevant hypothesis: that she did not have a sexual relationship with Mr Withyman. 64Ms Blackburn was aware of the 2004 email. She put it to Ms Minato in cross-examination: see Black vol 2, p. 558. Ms Blackburn's cross-examination of Ms Minato was not reticent; but she did not expressly challenge her on some of her evidence. This led to the following exchange between the primary judge and Ms Blackburn, which then led to further questions of Ms Minato: "HIS HONOUR: Well, just before you sit down again. Mr Marshall, you may not want me to ask this question. One of the most significant things that Ms Minato has given evidence about are the phone calls that she says she had with you back in 2003, remember her giving evidence about that? SECOND DEFENDANT: Yes. HIS HONOUR: Where she has said for example, that you said that you had slept, that it was exciting, something attractive and exciting about being with this younger man. You haven't suggested to Ms Minato that those conversations did not occur. Do you accept that they occurred? SECOND DEFENDANT: I think I've asked all the questions I want to ask, your honour. HIS HONOUR: Well-- SECOND DEFENDANT: I'm not going to confirm or deny anything which is a conversation between two people that's unrecorded. HIS HONOUR: Well, you see, this is the point, if you don't put to her that - if you don't suggest to her that those conversations were not true, then I am left in a position where I am almost bound to accept that they occurred. Do you follow? SECOND DEFENDANT: Okay, your Honour, I wasn't aware of that. HIS HONOUR: All right. SECOND DEFENDANT: But I do put to Ms Minato that the content of the conversations is confused by the past being so long and that the time in which Ms Minato has made those statements about, is not the time that is accurate, sorry, that's two questions but -- HIS HONOUR: Let's just do this -- SECOND DEFENDANT: --but firstly that you may have been confused -- HIS HONOUR: Ms Blackburn, let's just do it this way. Mr Blacket and Mr Marshall will tell me if they object. Do you suggest to Ms Minato that you never said anything to her about having sex with a younger man or having sex with David or anything along those lines? SECOND DEFENDANT: I am saying that I never told her that I had sex with David Withyman. A student at the time in March 2003. HIS HONOUR: Or any other time? SECOND DEFENDANT: Or any other time. I'm also saying that she's confused about the dates. HIS HONOUR: Let's just one thing at a time. All right. Q. What's being put to you is that those conversations, that you're wrong about them in essence. That she never said that she had sex with this man. She never said there was this younger boy, it was exciting and all of that. What do you say about that? Do you agree -- A. I disagree. HIS HONOUR: You disagree? Do you require her to be more specific? MARSHALL: No your Honour. HIS HONOUR: Carry on Ms Blackburn. SECOND DEFENDANT: I have no further questions your Honour." 65Mr Morris submitted that the blunt "Browne v Dunn" question put by the judge to Ms Minato meant that Ms Minato was never taxed by anyone putting the somewhat more subtle proposition identified by Mr Morris. That, however, does not identify error in process or fact-finding by the primary judge. Ms Blackburn was running her own case. Of course that had significant difficulties for her. But the line of cross-examination suggested by Mr Morris, though perhaps subtle and difficult to accomplish, was not complex in conception. It was to a degree obvious that Ms Blackburn should confront Ms Minato with her views in 2004 and to suggest that that reflected the truth and that there was confusion in her 2008 and 2010 evidence. The trial may not have been perfect; but it was as fair as the primary judge could conscientiously make it. Mr Morris referred to the helpful discussion of "credibility" by Lord Pearce in Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 at 431 as follows: ""Credibility" involves wider problems than mere "demeanour" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." 66These considerations, however, are embedded in the human reaction to, and resolution of, the apparent conflict in the 2004 and 2008 emails. Such was evident to Ms Blackburn. 67Lest I be wrong about any error in process, I would conclude that there has been no miscarriage of justice necessitating a new trial on this point. An examination of the email correspondence in 2008 leads me to the tolerably clear conclusion that there was no error in the finding by the primary judge that Ms Blackburn and Mr Withyman had had a sexual relationship. 68Ms Blackburn asked Ms Minato whether she would provide an affidavit in the IRC proceedings. The first request was by email on 22 July 2008. The email included the following: "I need a statement from you saying that you and I were very close during 2003 and to your knowledge I was not in a sexual relationship with David Withyman. I also need you to describe the times that you did see David, that he came to my house unannounced and refused to leave with out a lot of coercing when you were there in early October 2003." 69Ms Minato did not reply. On 18 August, Ms Blackburn sent her another email, saying the following: "I have just spent 2 days with a barrister in Sydney and find myself having to defend my actions of 2003. I wonder if you would want to do the same? Well I guess the fact that you haven't tried to contact me means that you don't really want to help me in this situation. Well I can understand that but you have been mentioned in both mine and David's statements and if I can't get a statement from you then you will probably be served with a subpoena from the Education Department and will be called as a witness against me. .... Once again I need a statement from you which says that when you met David he had arrived unannounced at the house when you were there and that he had to be coerced into leaving, a description of the house where you were and that we talked at length about most personal matters, that you would have known if I was in a sexual relationship with David and that I wasn't and that I told you that I was really worried about what he would do to stop him from contacting me. .... I attach my affidavit so far so you can see what I have written. I know this request demands a true act of friendship from you but my alternative is to allow them to proceed without trying to defend myself. I am so happy for you that you have found love and stability. I am sure you want the same for me. Anna PS Paul reads my emails usually before I do." (emphasis in original) 70Paul was, I infer, Ms Blackburn's partner. The draft affidavit that was enclosed (or that was sent shortly afterwards) contained the following paragraphs: "11. Throughout the material period I never observed Anna with David on any occasion apart from the time he turned up unannounced at Anna's house in late September or early October 2003. 12. On that occasion I observed that Anna was surprised to see David at her house and at no time did I observe any intimate contact or anything that suggested to me that Anna and David had conducted a sexual relationship during the preceding 6 months. 13. Over a long period of time Anna and I have confided in each other about many personal issues including intimate relationships we have had with third parties. 14. I am aware that David Withyman has alleged that he and Anna were engaged in a sexual relationship throughout the material period. I certainly had no knowledge of such a relationship at any time during the material period. 15. Had Anna engaged in a sexual relationship with David Withyman she would have disclosed that to me. At no time did Anna ever mention that she had any sexual relationship with David during the material period or any other time." 71At 1:13 pm on 1 September 2008, Ms Minato sent an email to Ms Blackburn as follows: "You realise that you're asking me to straight out lie and deny any knowledge of what went on seemingly without a second thought? That you're dropping me right in the middle of this and asking me to go against my principles....... I'm not really prepared to sign anything knowing that it is not truthful Anna. You should know me better than that - that my conscience is bigger than that....... I want to support you as much as I can but to go against the person that I am....... I still have some confusion in my mind about what you've written also. This is not as simple as what you're trying to make out. I shouldn't have to apologise for this but I'm sorry I'm really struggling and I have to say that I'm not very happy. Can't do this at the very minute." 72Ms Blackburn sent a reply at 2:29 pm on the same day. The email is long but powerfully revealing: "Dear Diana, Sorry to take up your time in your job but just in case you forgot.. I DON'T HAVE A JOB AND COULD [sic: could not] GET ONE WITH CHILDREN IF I TRIED BECAUSE THEY'VE PUT ME ON A LIST NOT TO WORK WITH KIDS. HOW FAIR IS THAT? Well all my care of you in the past also has been wasted. Thanks a lot. I know it's not simple and I have not asked it for five years because I have wanted to keep everyone out of it but if I can say again. It cost me my career and I didn't care but now the price for not defending myself is too high. I've already sold two properties to cover the legal costs and I can't tell you what it's doing to my self esteem and how it's affecting how I am with Norah and Katherine. You may as well have said this has been my fault. Isn't that what you are thinking? This guy's father is the governor of the local jail. This is his defence for violent criminal behaviour. It's a big fat excuse for him to get away with hurting women. If I don't have affidavits from my supposed close friends and supposedly supportive family denying what he is alleging then I will face criminal charges and the Department of Education has grounds to sue me as well as the family of this arsehole. Would you like to see the truth.. on how he locked me in my house and bashed me? Or when he drove me off the road and bashed me and bit my nose so that it almost came off my face, when he grabbed me and bashed me another time in front of my office, when he came at me with his fists outside the bank in a busy street or when he brought a loaded rifle around to the house and was about to shoot us? I guess you think I don't really deserve to have a life where I don't have to look over my shoulder every day. Because I do Diana. I look over my shoulder wherever I go. I live in fear that he will just keep trying to hurt me. Or what about your truth and your principles? How do they stand up Diana? I've been happy to defend you and stay loyal and supportive and would happily defend your actions as it has related to your relationships. So now I know just where I stand with you. I get it. But don't pretend to be my friend OK. Your letter You realise that you're asking me to straight out lie and deny any knowledge of what went on seemingly without a second thought? That you're dropping me right in the middle of this and asking me to go against my principles....... What did you actually see? Anything? And what principles? Oh the ones where we don't defend our friends' rights to live life in peace and the ones where we can bring something bad to an end but don't have the balls to go through with it. I'm not really prepared to sign anything knowing that it is not truthful Anna. You should know me better than that - that my conscience is bigger than that....... I want to support you as much as I can but to go against the person that I am....... I don't know you at all. All those hours of phone calls when you were depressed over Chris and Mark and when you were single were just bullshit. I know that now. I am just sorry that I confided my feelings and my deepest wishes and thoughts in you. I am so deeply hurt that what I have confided in you is to be used against me. I still have some confusion in my mind about what you've written also. What I wrote is true. What don't you get it?* This is not as simple as what you're trying to make out. I shouldn't have to apologise for this but I'm sorry I'm really struggling and I have to say that I'm not very happy. You sound like you are disappointed in me? Are you joking? Can't do this at the very minute. Well I've only got until next week and if I don't have a statement signed by you then in November when the case runs you will probably be asked by the Department of Education to recall your interactions with me and with him. If you do sign a statement then it is unlikely you will be cross-examined and with all the other statements as well, it is likely the DET will reassess their own evidence. You understand at this point they have nothing except for his accounts of what happened to suggest that there was a sexual relationship. There are NO EYEWITNESS ACCOUNTS AND NO FORENSIC EVIDENCE. Only what I say and what he's said and some phone records." [Asterisk added, but italics and capitals in original.] 73Mr Morris said that one reason that Ms Blackburn may not have wanted directly to confront Ms Minato over the change from 2004 (on the continuing hypothesis of no sexual relationship having occurred) was that she did not want to upset someone who could help. But the angry and betrayed tone in an email full of confrontation contradicts that argument. The bitterness about Mr Withyman's violence is evident, and understandably so. But nowhere is there a clear denial of any sexual act. Rather, the bitterness that a friend will not help her by stating what is necessary. The "pleading" to the email of Ms Minato is damning. Subject to how one reads the line with the asterisk, there is no statement to the effect: "You know that there are no lies in the draft affidavit." Rather, there is evident bitterness about this favour not being done for a friend. The last comment is particularly revealing. It seeks to persuade Ms Minato that if she will sign a statement, it is unlikely that she will be cross-examined since Ms Blackburn says that there is no objective evidence to prove that anything occurred. This last entry, especially that in capitals, conveyed to Ms Minato that if she said what was asked of her there could be no contrary proof. This is not how a person innocent of the act would likely finish in the exchange. 74The reference to possible criminal charges can be inferred to be a reference to s 73 earlier referred to. Ms Blackburn's bitter desperation for help is at no time expressed to be founded on mutually known and appreciated innocence. 75The overwhelming inference is that this email is fundamentally inconsistent with Ms Blackburn being innocent of participation in a sexual relationship with Mr Withyman in 2003. 76The second ground of appeal therefore fails.

The Statute of Limitations Ground 77This requires close attendance to the procedural chronology. 78In April 2008, Mr Withyman filed his statement of claim. On 30 June 2008, he filed a notice of motion seeking leave to institute proceedings under the Felons Act, s 4, which was in the following terms: "A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application." 79The motion was called on for hearing on 20 August 2008. Both defendants (the State and Ms Blackburn) sought leave to appear given the terms of s 7 of the Felons Act, as follows: "At the hearing or determination of an application or appeal under this Act, except by the leave of the court to which the application or appeal is made: (a) the applicant or appellant, as the case may be, is not entitled to appear in person, and (b) the person who would, if the proceedings to the institution of which the application or appeal relates were instituted, be the defendant in those proceedings, is not entitled to appear or be represented." 80On that day, McLoughlin DCJ gave a short extempore judgment and granted leave for the State and Ms Blackburn to appear. 81The issue before McLoughlin DCJ was whether leave should be granted. The purpose of the leave provision was as set out in Patsalis v State of New South Wales [2012] NSWCA 307 at [4]: "The purpose of the leave provision was to ameliorate the perceived harshness of the doctrine of attainder. The leave requirement was also to prevent abusive proceedings: see s 7 and generally the Second Reading Speech of the Attorney General (New South Wales Parliamentary Debates, 1980-1981, Third Series, Vol 160 at 4813-4814)." It was in this statutory and forensic context that the issues were to be litigated. 82In that context, the defendants sought to show that the proceedings were abusive because they were statute barred. One of the matters that Mr Sergi took objection to in the debate about whether leave should be given was that the defendant "seeks ... to turn this into some form of mini hearing of the merits of the case": Transcript, 20 August 2008, p.8 (30). Mr Sergi correctly identified the limitation question as not one requiring a discretionary extension of time but the pleading of the cause of action and a defence being put on by reference to the new limitation period of three years from discoverability: Limitation Act 1969 (NSW), ss 50A-50F (Pt 2 Div 6). Of particular relevance are ss 50A, 50C, 50D and 50F which are in the following terms: " 50A Application of Division-kinds of causes of action (1) This Division applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise. (2) This Division applies only to causes of action where the act or omission alleged to have resulted in the injury or death with which the claim is concerned occurs on or after the commencement of this Division (as inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002). (3) This Division does not apply to a cause of action on a claim under the Motor Accidents Compensation Act 1999. (4) This section extends to a cause of action that: (a) is a survivor action, or (b) is a compensation to relatives action. .... 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. (2) For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times: (a) the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased, (b) the appointment of the plaintiff as the deceased's personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment, (c) the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased's personal representative. (3) For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased. 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased. .... 50F Effect of disability on limitation period (1) If a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability. (2) A person is under a disability while the person: (a) is a minor, but not while the minor has a capable parent or guardian, or (b) is an incapacitated person for a continuous period of 28 days or more, but not while the person is a protected person. (3) In determining when a cause of action is discoverable by a person who is a minor, or an incapacitated person, who is not under a disability, facts that are known or ought to be known by a capable parent or guardian of the minor or the guardian of the incapacitated person are taken to be facts that are known or ought to be known by the minor or incapacitated person. (4) In this section: capable parent or guardian of a minor means a person who is a parent or guardian of the minor and who is not under a disability (as referred to in subsection (2)). guardian of a minor includes a person who under a written law of the State is exercising the parental responsibilities of the Minister under the Children and Young Persons (Care and Protection) Act 1998 for the minor. incapacitated person means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (a) any disease or any impairment of his or her physical or mental condition, or (b) restraint of his or her person, lawful or unlawful, including detention or custody under the Mental Health Act 1990, or (c) war or warlike operations or circumstances arising out of war or warlike operations. protected person means: (a) a person in respect of whose person another person is guardian, whether under the Guardianship Act 1987 or any other Act or law, or (b) a person in respect of whom an order is in force under the NSW Trustee and Guardian Act 2009 or the Guardianship Act 1987 that the estate (or any part of the estate) of the person be subject to management under the NSW Trustee and Guardian Act 2009. (5) Sections 52 (Disability) and 53 (Notice to proceed) do not apply to a cause of action to which this Division applies." 83Having granted the defendants leave to appear, McLoughlin DCJ heard argument on the motion under the Felons Act. It is only necessary to examine how the parties treated the limitation question. After evidence was led, on 30 September 2008 (Black vol 1, p. 23) the judge asked what had to be established on the motion. Mr Sergi, for Mr Withyman, answered (substantially correctly) as follows: "SERGI: A prima facie case your Honour. Your Honour has to be satisfied there's a prima facie case. HIS HONOUR: That's all that's got to be established? SERGI: Yes your Honour, yes your Honour ..." 84The judge then proceeded on that basis. Mr Parker (for the State) accepted that framework saying (Black, vol 1, p. 25): "PARKER: In my submission it would be an abuse of process for two reasons. One is, the proceedings are out of time unless this person is incapable of managing his affairs. HIS HONOUR: So you say that it would be an abuse of process if the plaintiff had - PARKER: If the plaintiff was capable of providing instructions and doesn't require a tutor, then these proceedings are out of time. HIS HONOUR: Well it may or may not be, but are there any orders sought in respect of that? PARKER: No your Honour, remember your Honour will recall this was raised on the first hearing date before your Honour." The question of a relationship between the limitation question and the appointment of a tutor had already been raised. On 20 August 2008, Mr Parker had said to the judge (Black, vol 1, 1M): "PARKER: One of the issues in the case is whether the plaintiff is disabled or not, whether he requires a tutor." 85Mrs Withyman, who had been appointed as tutor, was cross-examined by Mr Parker (for the State) on 30 September. He asked her questions seeking to distinguish a learning disability from an intellectual disability, such matters being relevant to the question of discoverability. Medical evidence was also tendered by the defendants. 86In addressing the judge in the afternoon of 30 September, Mr White (for Ms Blackburn) commenced by directing himself to the limitation question, as follows (Black, vol 1, pp 61 - 62): "WHITE: Your Honour, in the statement of claim, the plaintiff relies upon section 50F of the Limitation Act to extend the usual three year period of discoverability which is under section 50D for the filing of his claim. And relies upon the fact that the plaintiff was under a disability in respect of being an incapacitated person as defined in section 50F(4) of the Act. In other words your Honour, the second limb of section 50F(2) that the plaintiff was under a disability in that he is an incapacitated person is the reason why this statement of claim was filed outside the usual three year period. Now it's my understanding your Honour that in relation to the application, the plaintiff's motion that the leave be granted in that he needs to show that it's not an abuse of process, it's the second defendant's submission that unless he can be shown to have filed his statement of claim within time it will amount to an abuse of process and oughtn't be ..." This recognised that the threshold was abuse of process. 87Submissions then took place as to whether there was a disability, including submissions on the medical evidence. In addressing the medical evidence on that question, the following exchange took place between the judge and Mr White (for Ms Blackburn) (Black, vol 1, p. 65): "HIS HONOUR: Is that issue just one on prima facie basis? WHITE: Well, yes, I think so, your Honour, yes. HIS HONOUR: Yes, under the legislation." Thus, the matter was still being addressed (correctly) as one of a prima facie view or whether it was an abuse of process. To view the matter thus, in effect, only required the plaintiff to persuade the judge that the likely defence under Part 2 Div 6 of the Limitation Act may not succeed, that there was a prima facie case for the plaintiff. If, of course, on the application, the defendants were able to persuade the judge that the limitation defence was bound to succeed, it would be open for the Court to conclude that there was no prima facie case in that it would be an abuse of process to allow it to proceed. 88Mr Parker (for the State) put his submissions on the limitation question as the plaintiff being out of time. For the reasons just discussed, to succeed in resisting leave, he had to put it categorically. He also submitted that Mr Withyman did not need a tutor: Black vol 1, pp. 77-78. But Mr Parker clearly accepted that the matter was to be approached on a prima facie basis. In discussing discoverability, the following exchange took place between the judge and Mr Parker (Black, vol 1, p. 78): "HIS HONOUR: But again I take it it's a question on a prima facie basis. PARKER: Yes your Honour. HIS HONOUR: The onus being on the plaintiff? PARKER: Yes your Honour ..." 89Then Mr Sergi (for Mr Withyman) addressed the judge. He began by correctly characterising the relevant parts of the defendants' arguments, as follows (Black, vol 1, p. 84): "HIS HONOUR: Both the defendants say there's no prima facie case because (1) he's not disabled in accordance with the legislation and (2) is the question of he's outside the three year period. SERGI: They seem to be the issues. I will come to them - HIS HONOUR: And (3) Mr Parker submits that it's not - the conduct - the relationship is not tortious. SERGI: Yes." The judge accepted this (Black, vol 1, p. 84): "HIS HONOUR: They are the three main areas as I see the defendant's submissions." 90McLoughlin DCJ delivered judgment on 19 November 2008. Before analysing the terms of that judgment, the following is clear from the history of the application under the Felons Act that I have set out. First, the issue was one of a threshold point: Was the claim an abuse of process or was there a prima facie case? Secondly, all parties, at all times, accepted in argument that the issue was one of the stated threshold point. Thirdly, there was no suggestion that the plaintiff's motion under the Felons Act was being supplemented by some undocumented motion to try a substantive issue in a case that had not been granted leave. Indeed, defences were not filed until 2009. 91In a judgment carefully rehearsing the evidence, at pp 15ff his Honour recited the submissions about the relevant sections of the Limitation Act and Mr White's submission that the evidence did not disclose a disability. At pp 18ff the judge recorded Mr Parker's submission that the "matter is out of time". At pp 20ff the judge recorded Mr Sergi's submission that the injury was not discoverable until the receipt of Ms Robilliard's report on 8 January 2008. At pp 27ff the judge dealt with the limitation question. It can be accepted that his language was consistent with a resolution of the issue. At pp 34-35 his Honour said the following (White, pp. 43 - 44): "In those circumstances I am well satisfied the plaintiff would not have been aware of any serious injury until he was assessed by Ms Robilliard and would not have been in a position to determine the fault of the second defendant until some person was in a position to point out to him that teachers had a duty of care not to commence an emotional or physical relationship with a student, more so when student is somewhat psychologically impaired and suffer from behaviour problems. The plaintiff did not recognise this during the term of the relationship and when the history is given does not really appear to have understood that until recent times. As it is the plaintiff must know each of the facts set out in sub paras A, B and C and I am of the view the plaintiff did not know each of those facts until receipt by his solicitors of the report by Ms Robilliard in February 2008. I have dealt with the proposition that has been put that there was enough for the plaintiff to have done more to ascertain the proposition before that time, in my view there was not. When one looks at the psychiatric opinion that I have expressed and the impairment with which the plaintiff suffered I do not accept those propositions. Accordingly I am well satisfied that the cause of action was not discoverable as referred to under s 50D of the Limitation Act until February 2008 and there is no defence available to the defendants pursuant to the provisions of the Limitation Act." 92From the context I have given, it is plain that it was no part of the resolution of the motion for a decision to be made that a limitation defence would fail or failed. Rather, if the defendants could show that such a defence must succeed, it could be concluded that the institution of the proceeding was an abuse. No party argued the matter beyond it being necessary for the plaintiff to show that he had a prima facie case that was not an abuse of process in the context of the possibility of a limitation defence. The judge's reasons for the interlocutory order granting leave to proceed must be examined in that light. 93On 20 March 2009, the State filed a defence which pleaded that the claim was statute barred. 94On 2 April 2009, Ms Blackburn filed a defence without the assistance of a legal practitioner. It was a document of some pages that told her side of the story, denying any sexual relationship. It did not plead a limitation defence. On 16 September 2009, Ms Blackburn, now legally represented, filed an amended defence which pleaded that the claim was statute barred. 95On 22 February 2010, the plaintiff filed an amended statement of claim which once again pleaded facts relevant to the operation of the Limitation Act. 96There was no reply to the defences. 97On 15 May 2009, McLoughlin DCJ dismissed a motion brought by Ms Blackburn to remove Mrs Withyman as tutor. 98The matter was called on for hearing on 15 February 2010. Ms Blackburn was present and unrepresented. On the morning of the first day, the primary judge asked Mr Marshall, senior counsel for Mr Withyman, whether there was still a limitation point or whether it had been dealt with. Mr Marshall said (Black, vol 1, p.115): "MARSHALL: We say it has been dealt with implicitly by Judge McLoughlin in earlier proceedings. HIS HONOUR: Right". Mr Marshall continued (Black, vol 1, pp.115 - 116): "MARSHALL: Your Honour may need to look at the transcript for that. In those proceedings, Judge McLoughlin made orders that the plaintiff have leave to proceed, that a section of the Felons Act did not amount to a bar to proceedings. To do that, he had to satisfy himself that there was a valid course of action available to the plaintiff. HIS HONOUR: But there hasn't been a hearing specifically dedicated to the limitation question? I mean in other words, you haven't had a motion asking for leave to proceed out of time-- MARSHALL: No. HIS HONOUR: --or the defendant hasn't put on a motion saying you can't proceed because it's out of time? MARSHALL: No. But the point was, I'm told by Mr Sergi who appeared on the motion, argued at length before Judge McLaughlin. HIS HONOUR: All right." 99Mr Bridge, senior counsel for the State, then took issue with this, saying (Black, vol 1, p. 116): "BRIDGE: We take issue to that, your Honour." 100The parties then considered their position. Further discussion took place (Black, vol. 1, pp. 121 - 122): "HIS HONOUR: At first blush I would prefer to get on with the oral evidence but I must say I'm very concerned about the limitation point. From the point of view of whether there is a point or not, because I think that will effect the evidence. I will effect - BRIDGE: It will from our perspective - I didn't want to interrupt my friend, but quite obviously your Honour, we will be on one view - your Honour will see that there is an issue in the pleadings about whether the plaintiff is disabled within the terms of the Tutor provisions and also within the terms of Limitation provisions. Both matters are put in issue in the pleadings now. HIS HONOUR: There were some notions weren't there about removing the Tutor - BRIDGE: I don't know about - SECOND DEFENDANT: That's correct, your Honour, I put forward a motion. HIS HONOUR: You had a motion to remove the Tutor. SECOND DEFENDANT: I had a motion to remove the Tutor, yes. HIS HONOUR: And what happened? SECOND DEFENDANT: It was dismissed by McLoughlin DCJ." 101On the morning of the second day, Mr Bridge raised the matter with the primary judge. The following exchange took place (Black, vol 1, p. 141): "BRIDGE: Your Honour, in relation to the limitation issue, I have read the judgment, I can't raise that point. HIS HONOUR: Yes, I thought it was a clear issue estoppel, Mr Bridge, I read it again over night. BRIDGE: It's helpful to read the judgment, your Honour. HIS HONOUR: Okay, thank you for that. That will apply also to the second defendant. BRIDGE: I haven't raised it with her. HIS HONOUR: The limitation issue that we were talking about yesterday, Mr Bridge has said that he cannot raise it. Do you have a different position? SECOND DEFEDANT: Yes. I concurred. I have very little legal knowledge but I would imagine one judgment is made in the court, the following judgment can't be made in the same court, is that correct or am I mistaken? HIS HONOUR: That's called issue estoppel, thank you for that. Yes, what about the pleadings then?" 102On the appeal, Ms Norton SC sought to maintain this position against Ms Blackburn. The State (if I may say so, perfectly properly) did not seek to resile from the position it took at the trial. Mr Morris, on behalf of Ms Blackburn, did seek to resile from it. 103For the following reasons, the primary judge erred in his conclusion that the issue had been resolved in circumstances leading to an issue estoppel. Equally, counsel was wrong. Ms Blackburn was (of course, not intentionally) misled in this regard and should not be held to the error. 104In Blair v Curran [1939] HCA 23; 62 CLR 464 at 531 - 533, Dixon J said: "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. ... The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order." (emphasis added) 105There is no doubt about the continuing application of the distinction made by Dixon J in Blair v Curran: Murphy v Abi-Saab (1995) 37 NSWLR 280 at 288. 106Further, in Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 at 373ff, the Court (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) applied what Lord Guest had said in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935: "(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies." At 375 [25] the Court referred to finality as follows: A "final" decision, then, is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final. It must be "final and conclusive on the merits": "the cause of action must be extinguished by the decision which is said to create the estoppel". 107For one purpose, the decision to grant leave under the Felons Act is clearly interlocutory in that it does not finally decide the rights of the parties. But the conception of finality for these purposes of issue estoppel may be different. Is it completely effective (as an order granting leave) unless or until it was set aside on appeal?: Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; 109 CLR 285 at 298; Kuligowski at 374 - 375 [25] and 379 [39]. See also Maurice Blackburn Cashman v Brown [2011] HCA 22; 242 CLR 647 at 662 [40]. In Maurice Blackburn the question was of the finality of a decision (an opinion) of a medical board. It was not final because its determinacy went no further than the Act itself. Here, the decision which it is necessary to characterise as final or not is the decision to grant leave. Whether or not it is final in the relevant sense, the issue determined must have been legally indispensable for the decision. It was not. It was not a necessary or an indispensable part of the reasoning founding the grant of leave under the Felons Act to conclude that the action was not statute barred. The legal foundation for the leave to be granted was only that the claim was prima facie arguable and not an abuse of process in the face of the length of time since the events. No defence had been filed. No resolution of a joined issue was before the Court. The only issue decided between the parties was that the proceedings were not an abuse. 108It was argued that the parties had chosen to elevate a factual issue to a point and to an extent that placed it before the judge for disposition. There are two answers to that. First, from the terms of the argument that I have set out, the parties only ever approached the matter on a prima facie basis. The application began and ended with the express recognition of that from all counsel. The judge went beyond the argument and the issues before him for disposition. 109Secondly, given that issue estoppel is limited to what is legally necessary or indispensable, and that the fact of the matter not being statute barred does not fall into that category, any estoppel would have to be of a different type flowing from the conduct of the litigation: Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394. No such estoppel was pleaded. It was not what the primary judge or, apparently, counsel relied upon. 110During the appeal, Mr Morris filed in Court an amended notice of appeal dated 16 November 2012. For the reasons given above the appeal should be allowed on ground 11, that the primary judge erred in not determining Ms Blackburn's defence under the Limitation Act. The appeal otherwise fails. The consequence of this is that there needs to be a new trial limited to the limitation defence. It was accepted that this Court could not undertake this task. We did not have the relevant material that was before McLoughlin DCJ, and, more importantly, primary factual findings have not been made at a trial about the issues. 111As to costs of the appeal, Ms Blackburn has been successful in setting aside the judgment against her, but she failed on some issues. The problem arose (and I do not say this critically) in part because of the error of Mr Marshall. In these circumstances it is just and appropriate for Ms Blackburn to have the costs of the appeal. The costs of the first hearing should abide the result of the hearing on the limitation point and be within the power of the judge hearing the matter to award. 112The remitter should be to the primary judge. On the views that I have expressed, his Honour made no error other than the failure to deal with an issue. The parties (other than Ms Blackburn) led him into that error. Evidence was not called that was directed to that issue. It is true that findings in the nature of demeanour and credit findings have been made about Mr Withyman and his mother. None of those findings was attacked. It appears appropriate that the same judge finalise the issues that were before him, even though he has come to views on the evidence so led. This, however, is not a bar to any application that may be made before the primary judge if the matter is before him. 113The orders that I propose in Ms Blackburn's appeal are:

1. Appeal allowed.
2. Set aside the judgment for the plaintiff against the second defendant in the sum of $120,293.65 and set aside the order for costs against the second defendant.
3. Remit the matter to Elkaim DCJ (or if this is not possible to another judge of the District Court) to hear and dispose of the defence of the second defendant (the appellant, Ms Blackburn) under the Limitation Act 1969, such remitter to be limited to such issues, by way of completion of the hearing before the District Court.
4. The first respondent (Mr Withyman by his tutor Glenda Ruth Withyman) pay the appellant's costs of the appeal.
5. The first respondent to have a certificate under the Suitor's Fund Act 1951 (NSW).
6. The costs of the trial to date be decided by Elkaim DCJ (or such judge who hears the remitter) in the light of the disposition of the issues on remitter.

Mr Withyman's appeal 114Mr Withyman's appeal was only directed against the State. Given the sum that the primary judge would have awarded, Mr Withyman's appeal requires leave to appeal under the District Court Act 1973 (NSW), s 127(2)(c). The argument on the appeal was heard concurrently with the application for leave to appeal. 115The matter is one of significant seriousness. The misconduct of Ms Blackburn had an effect on Mr Withyman and arose from circumstances that reflect a degree of discredit (to adopt and paraphrase the Code of Conduct) on Ms Blackburn, and potentially on the State if it should be viewed as partly responsible. For these reasons, leave to appeal should be granted on the grounds asserting the State's liability. The appeal however, for the reasons expressed below, should be dismissed. 116Leave was also sought to challenge the quantum of damages assessed by the primary judge should he be wrong on liability. For the reasons shortly given later, I would not grant leave on that issue. The primary judge carefully considered and absorbed the evidence relevant to that topic. His views should not be interfered with. The asserted errors are doubtful and even if present would not substantially vary the award to a point worthy of granting leave.

The State's own duty and asserted breach 117Grounds 1, 2, 3 and 4 of the draft notice of appeal can be dealt with together. They all concern the complaint that the State breached its non-delegable duty of care. 118The State undoubtedly owed a duty of care to Mr Withyman. Some argument concerned the content of that duty. It can be accepted that the content of the duty required employees of the State - the Principal, Mr Roxborough, the Deputy Principal, Ms Churches, and the other staff - to be alive to the best interests of the students and to the proper conduct and behaviour of students and colleagues. 119The primary judge's findings and reasoning to the effect that the State did not breach its duty of care can be found at [393] - [414] of the reasons. The primary judge accepted that the school was to a point lax in enforcing the behavioural contract to which Mr Withyman agreed in March 2003, by directing Ms Blackburn to drive him to job placements. Ms W had been sexually assaulted by Mr Withyman in earlier years. Crucial, however, to the primary judge's conclusions was the following expressed at [402]: "The whole of the evidence leading up to the Behaviour Contract demonstrates a concern for the welfare of the teacher. It is not aimed at the plaintiff's wellbeing. I have criticised the school in relation to the Mrs [W] incident not out of any dereliction of duty to the pupil but rather because of the failure to meet the teacher's concerns. Similarly the genesis of the behaviour contract lies not in the protection of the pupil. It had, at its core, the protection of Ms Blackburn." 120In essence, I agree with his Honour's conclusions in this regard. Detailed written submissions and careful and helpful oral argument from counsel for Mr Withyman and the State analysed the evidence of what happened at the school in 2003, and in earlier years. There were interviews and statements from the teachers at the school taken in the course of the Departmental investigation. There was also the documentary evidence. To a significant degree, the assessment of what the State, through the other teachers, should reasonably have perceived is a matter of evaluation and emphasis. What impression should they have obtained if reasonably alert to the behaviour of Mr Withyman and Ms Blackburn, up to April 2003, when the sexual relationship had begun? Ms Norton, during argument, said that when one looked at everything said by the teachers in their interviews and statements, the "vibe" was that something inappropriate was or should have been evident. Ms Norton put it thus, and if I may respectfully say, perceptively so, because of the entire absence of observation, at least up to April 2003, of facts that should have alerted the staff to any interest of Ms Blackburn in Mr Withyman. 121It would lengthen inordinately this judgment to traverse all the matters of emphasis and inference from the various events and exchanges. The following matters are crucial, however, to understanding the correctness of his Honour's conclusions. 122The possibility of a sexual relationship between a young teacher and a 17 or 18 year old student is not of itself far-fetched or fanciful. The possibility of personal and sexual relationships between teachers and students is real. That, however, does not mean (the CL Act, s 5B) that it is foreseeable that there is a not insignificant risk against which a reasonable person would take precautions that any teacher will engage in sex with a pupil. If the State were to be found liable it was necessary to establish that the facts before, and evident to, those at the school were such as to make it reasonably foreseeable that there was a risk that the teacher/student relationship between Ms Blackburn and Mr Withyman may become consensually sexual. 123Mr Withyman had been overtly sexually aggressive to Ms W in the past. He had shown interest in Ms Blackburn. He came to her classes uninvited. He had come to her home uninvited after school hours in August 2002 with alcohol on his breath, and may have gone to her house in early 2003. He pushed her into the pool at the school swimming carnival. That Mr Withyman as an emotionally vulnerable, volatile and at times aggressive, and at times overtly sexually aggressive young man, may have posed a possible threat to a young 29 year old female teacher can be accepted. According to one teacher, Mr Neal, Mr Withyman considered himself "God's gift to women". The matter was put with clarity by Mr Ray, the Departmental investigator, in his conclusion: "The potential serious consequence of David's increasing infatuation with Ms Blackburn was well recognised by her supervisors. Mr Roxborough's input into the wording of the behaviour management contract leaves no doubt as to his intentions - it was directed as much to Ms Blackburn as David. As such, Ms Blackburn's disregard for the contract as established in points a - h of the allegation is clear indication that she acted without concern for David's fragile emotional/behavioural development or the disrepute that her actions could bring to the school and the Department. As such, the conduct as alleged is considered misconduct." 124The crucial question, however, is what was apparent or reasonably perceptible about Ms Blackburn's response to Mr Withyman and his evident liking for Ms Blackburn. 125A reasonable appreciation of Ms Blackburn's teaching style is crucial to this. In this regard, the interviews of Mr Roxborough and Ms Churches are important. Both said that she had a degree of firmness of view that a method of being friendly and showing interest in the children was best. Ms Churches said Ms Blackburn's attitude was that she knew best. Ms Churches said to her that Mr Withyman's conduct was inappropriate. This was a warning to her about him, not a warning that her (Ms Blackburn's) conduct was inappropriate. Ms Blackburn's response that she could help Mr Withyman, even if he was behaving inappropriately, was perceived by Ms Churches as her stubborn insistence and her teaching style. Her view was that Ms Blackburn had high integrity and was extremely caring. Ms Churches did make some remarks in her interview about Ms Blackburn being attractive, wearing mini-skirts and low cut tops and Mr Withyman being "quite a good looking kid". Ms Churches was not called. From the context of these remarks they may contain an element of musing in hindsight. Whether that is accurate or not, nowhere in Ms Churches' interview is there revealed a body of facts or an appreciation of facts which should reasonably have led Ms Churches to appreciate that there was a foreseeable risk that Ms Blackburn would consent to a sexual relationship. 126Much was made of the fact that only a day or two after the behaviour contract in March 2003, Ms Blackburn was seen watching Mr Withyman playing pool in the recreation room. According to Ms Churches in her interview Mr Roxborough was furious with Ms Blackburn when he observed this. I will not set out the text of what Ms Churches said, but the essence was that she was, to a degree foolishly putting herself at risk - that he was a young, very strong, very volatile, very aggressive young man "and you should never be alone with him": Blue, vol 1, p. 341. Mr Roxborough was not asked about the same incident, but there is no basis to think that Ms Churches' view on the incident was not his view as well. 127Mr Roxborough described Ms Blackburn as idealistic and naïve, and, to a degree, inexperienced. These are the considerations that permitted Mr Ray to say that the behaviour contract was as much for Ms Blackburn as it was for Mr Withyman. It was essential that she appreciate the importance of Mr Withyman keeping his distance because of the perceived danger to her, not to prevent her advances towards him. 128The behaviour contract was preceded by the memorandum from Ms Blackburn. This set out in an apparently professional way Ms Blackburn's approach to, and concerns about, Mr Withyman. It provided no foundation for a conclusion that the school should have foreseen a risk of her sexual misconduct. 129The later conduct in August of playfully running between the bushes, was well after the relationship had started. Also, it is likely to be vested with hindsight to say that it reflected behaviour mutually overly familiar that should have been seen earlier. 130Criticism was made of the school for failing to enforce the behavioural contract by informing Mr Withyman's parents. Mr Roxborough considered that but drew a conclusion at the time that there may be trouble if he did so. That was a reasonable judgment call. 131Mr Withyman's senior counsel at the time, Mr Marshall, described Ms Blackburn's conduct as an "act of madness". Reading the interviews of the teachers, that appears to be a fair statement. "Madness" is one way of putting it. The growth and movement of emotions, infatuation and desire can be unpredictable, swift and unforeseen. Such is the human condition. There is no basis, however, for the State to be criticised for failing to perceive the developing confluence of these emotions in Ms Blackburn. It was not reasonably foreseeable. The State was not negligent.

Vicarious Liability 132The accepted non-delegable duty of the State is to be determined as if the liability were the vicarious liability of the State for the negligence of Ms Blackburn: the CL Act, s 5Q. 133The primary judge dealt with this at [415] - [418] of his reasons. Though brief, the primary judge's remarks went to the heart of the matter at [416] - [417]: "For purposes of examining the possible vicarious liability of the school, and perhaps generally, Ms Blackburn's actions must, I think, be regarded as sexual abuse. The fact that the plaintiff was such a willing participant does not prevent this conclusion in the light of his immaturity, vulnerabilities and presence in a school for children with special needs. The Chief Justice in New South Wales v Lepore (2003) 212 CLR 511 did contemplate a circumstance where there might be vicarious liability:- "It cannot be said that the risk of sexual abuse ought to be regarded as an incident of the conduct of most schools, or that the ordinary responsibilities of teachers are such that sexual assaults on pupils would normally be regarded as conduct (albeit serious misconduct) within the scope of employment. However, there are some circumstances in which teachers, or persons associated with school children, have responsibilities of a kind that involve an undertaking of personal protection, and a relationship of such power and intimacy, that sexual abuse may properly be regarded as sufficiently connected with their duties to give rise to vicarious liability in their employers." Although a teacher at Carenne might have been called on to perform certain acts approaching intimacy with a student, they would have been restricted to students with particular physical or mental disabilities and not to a student like the plaintiff whose disabilities did not require such conduct. I do not think that the responsibilities of Ms Blackburn as the plaintiff's teacher were such as to create circumstances of the type described by the Chief Justice and which might give rise to a vicarious responsibility. It is trite to say that the school was not vicariously liable for Ms Blackburn conducting a sexual relationship with the plaintiff because this activity was outside the scope of her employment." 134The appeal was conducted on the basis that the guiding principles were to be found in New South Wales v Lepore [2003] HCA 4; 212 CLR 511. It was uncontroversial that the relevant principles were fully and pellucidly stated by Gleeson CJ in Lepore at [40] - [74]. 135Vicarious liability is imposed for a tort committed in the course of or within the scope of employment. If the act is authorised by the employer, the employer will be liable. The difficulty is in the consequence of unauthorised acts: [40] - [42] of Lepore. Unauthorised acts will found vicarious liability if they may be regarded as modes (although improper modes) of carrying out employment duties; but if the act is unconnected with the authorised act it may be independent: [42] where Gleeson CJ referred to the well-known test from Salmond on the Law of Torts (see J W Salmond, The Law of Torts: a Treatise on the English Law of Liability for Civil Injuries, 5th ed (Sweet & Maxwell, 1920). The Chief Justice, however, at [51]ff discussed some of the limitations of the Salmond test. One difficulty was the degree of generality with which the authorised acts are defined. The Chief Justice said at [52]: "When the specific responsibilities of an employer relate in some way to the protection of person or property, and an intentional wrongful act causes harm to person or property, then the specific responsibilities of a particular employee may require close examination." 136Speaking of schools, the Chief Justice said at [53]: "It is the element of protection involved in the relationship between school authority and pupil that has given rise to difficulty in defining the circumstances in which an assault by a teacher upon a pupil will result in vicarious liability on the part of a school authority. The problem is complicated by the variety of circumstances in which pupil and teacher may have contact, the differing responsibilities of teachers, and the differing relationships that may exist between a teacher and a pupil. Some teachers may be employed simply to teach; and their level of responsibility for anything other than the educational needs of pupils may be relatively low. Others may be charged with responsibilities that involve them in intimate contact with children, and require concern for personal welfare and development. The ages of school children range from infancy to early adulthood. Although attendance at school is compulsory for children between certain ages, many secondary school students remain at school for several years after it has ceased to be obligatory." 137The Chief Justice then referred at some length and with evident approval to the decision of the Supreme Court of Canada in Bazley v Curry [1999] 2 SCR 534. Bazley was a case in which a man worked in a residential facility for the treatment of emotionally troubled children. He was required to perform parental duties from general supervision to intimate functions such as bathing and tucking in at bedtime. He sexually abused a child. The employing organisation was held liable. At [56] - [57], Gleeson CJ cited the following passages from the judgment of McLachlin J (as her Ladyship then was): "[56] McLachlin J, who delivered the judgment of the Court, examined the considerations of policy underlying the concept of vicarious liability, and said: "Underlying the cases holding employers vicariously liable for the unauthorized acts of employees is the idea that employers may justly be held liable where the act falls within the ambit of the risk that the employer's enterprise creates or exacerbates. Similarly, the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence." [57] Later, McLachlin J elaborated her views on the concept of sufficiency of connection, saying: "The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer's desires." (emphasis in original) 138The Chief Justice continued at [58]: "Factors to be taken into account, relevant to sexual abuse, were said to include the opportunity for abuse afforded to the employee, relationships of power and intimacy, and the vulnerability of potential victims. The focus of the test for vicarious liability for an employee's sexual abuse was said to be "whether the employer's enterprise and empowerment of the employee materially increased the risk of the sexual assault and hence the harm". 139In ground 5 of the draft notice of appeal, Mr Withyman sought to draw himself within these principles. The ground was expressed as follows: "His Honour erred in failing to find that because of the special needs of the Appellant the relationship with the Second Respondent was a relationship of such power and intimacy as to give rise to vicarious liability in the First Respondent." 140The argument was that Ms Blackburn's employment included the emotional development of students in circumstances which invested the student/teacher relationship with a high degree of power and intimacy. The students were vulnerable and had special needs. There was therefore a sufficient connection with the creation and enhancement of risk. 141The first answer of the State to this was that this was a departure from how the case had been run before the primary judge. There is significant force in that argument. In his address, Mr Marshall, senior counsel for Mr Withyman, said the following: "That he came to her house, they had alcohol together, and then in a moment of absolute madness on her part they had sex, because here she is saying to the school, "Look, this is what's been happening. I myself don't see it as a particular problem. This is the way that I teach, this is the way that I deal with people." But the school - this special school - ought to have known this is difficult. There are problems here. This is a touchy-feely sort of school, we have lots of physical interaction going on with our students. They are special students, they don't fit into mainstream category." 142No attempt was made in the evidence to focus in detail upon the duties of a teacher such as Ms Blackburn in building emotional bonds with students. It can be accepted that Ms Blackburn's teaching style had a degree of gentle, forgiving familiarity with her students. That, however, is not a factor that promotes a risk of sexual intercourse. 143That the children at the school were or may have been more emotionally vulnerable than ordinary school students may perhaps be accepted. But the enterprise of teaching and guiding the young, even using gentle and forgiving familiarity does not create a new ambit of risk of sexual activity. Sexual activity is as divorced and far from the gentle caring teacher's role as it is from the stern, detached disciplinarian's. The connection and nexus was not such as to justify imposition on the State for Ms Blackburn's, apparently out of character, sexual misconduct. The school did not create or enhance the risk of such by her duties.

The quantum appeal 144Ground 6 of the draft notice of appeal was in the following terms: "His Honour erred in his assessment of the Appellant's damages in the following respects: (a) that in accordance with s 16 of the Civil Liability Act 2002, the Appellant's non-economic loss was just 20% of a most extreme case. (b) That the Appellant suffered no past economic loss. (c) That the Appellant suffered no diminution of his future earning capacity nor was the Appellant otherwise reasonably entitled to a 'buffer' for future economic loss." 145The findings on damage that are contained in the primary judge's reasons at [424] - [437] must be read in the light of the primary judge's detailed and careful analysis of the medical evidence at [302] - [359] of his reasons. The evidence of Dr De Saxe, Ms Robilliard, Dr Allnutt, Dr Roberts, Dr Samuels, Dr Corbett-Jones, Ms Johnson and Dr Frukacz and hospital records were carefully analysed. The trial lasted 28 days. The expert testimony of Mr Withyman's psychiatric state and the emotional and psychological consequences of the break-up of the relationship bore closely on each other. In this respect, the primary judge had the advantage of the contemporaneous absorption over time of related and interconnected evidence. Though the primary judge's conclusions on medical questions did not depend on demeanour, the review of his Honour's conclusions should be approached in accordance with the principles discussed by Beazley JA, Basten JA and myself in Gett v Tabet [2009] NSWCA 76; 254 ALR 504 at [10] - [22]. 146The first sub-ground of this ground, the complaint about the assessment by the primary judge of 20 per cent of a most extreme case, faces the formidable difficulty of the applicable standard of review. Reference only need be made to Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 at [49] and Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149. In Wynn Tresidder, McColl JA (with whose judgment Tobias JA and Young JA agreed) said the following at [110] - [111]: "The approach taken when an appellate court is asked to review a primary judge's conclusion as to the severity of a plaintiff's non-economic loss by reference to a "most extreme case" was discussed in Crystal Wall Pty Ltd v Pham [2005] NSWCA 449 (at [49]) as follows: "49 The exercise in which the primary judge was involved in determining non-economic loss is neither scientific nor normative. While it is not wholly at large, it involves an exercise of discretion with which the Court will rarely intervene: Southgate v Waterford (1990) 21 NSWLR 427 at 440. Having regard to the nature of the exercise, a finding that a particular case is or is not 'a most extreme case' has been said to be not 'readily ... susceptible of appellate review' as 'its resolution ... involve[s] questions of fact and degree, and matters of opinion, impression, speculation and estimation calling for the exercise of common sense and judgment': Dell v Dalton (1991) 23 NSWLR 528 at 533 per Handley JA (with whom Kirby P and Priestley JA agreed); Rabay v Bristow [2005] NSWCA 199 at [62] - [67]. Unless it can be demonstrated that the trial judge has erred in the application of principle, in order to attract appellate review it will be necessary to show that the conclusion reached by the primary judge was manifestly erroneous: Ellis v Rantzos (t/as Rantzos Hairdressing) [2005] NSWCA 266 at [43] per Basten JA (with whom Handley and Santow JJA agreed)." A like approach has been taken by the West Australian Court of Appeal: see Hammond Worthington v Da Silva [2006] WASCA 180; Den Hoedt v Barwick [2006] WASCA 196; (2006) 46 MVR 30; Insurance Commission of Western Australia v Weatherall [2007] WASCA 264." 147The only specific error pointed to by Mr Withyman was the conclusion at [430] that he had "substantially recovered" from the depths of despair to which he had sunk. The written submissions identified specific parts of the medical evidence in support of the submission. A review of all the medical evidence does not make good the ground. The primary judge used the word "substantially". That allowed for a recognition of a degree of residual anger in Mr Withyman about which the doctors speak. The judge, however, had to disentangle the emotional and psychological effects of incarceration, and of the other facts on Mr Withyman's mental state. I am not persuaded of any legitimate argument that his Honour fell into error. Even if he did, the sum involved would be minor; one could not legitimately increase the 20 per cent by anything other than a nominal amount. I would refuse leave to appeal on sub-ground 6(a). 148Nor has any foundation been shown for the interference with past or future earning capacity from the emotional distress brought about by the break-up of the relationship. He was undoubtedly badly emotionally distressed. But he was a violent, volatile and aggressive young man prone to alcohol, drugs and violence. His propensity to be violent led to his imprisonment. No appeal was brought against the primary judge's conclusion as to the lack of causal connection between his criminality and the breach of the duty of Ms Blackburn. 149I would not grant leave to appeal on sub-grounds 6(b) and (c). 150The orders that I propose in respect of Mr Withyman's appeal are as follows:

1. Grant leave to appeal on grounds 1 - 5 set out in the draft notice of appeal in the White Book.
2. Dispense with the need to file any notice of appeal.
3. Refuse leave to appeal on ground 6 set out in the said draft notice of appeal.
4. Dismiss the appeal with costs.

Other process 151The State sought leave to cross-appeal in respect of the decision of McLoughlin DCJ on leave under the Felons Act. It also sought leave to appeal against the primary judge's assessment of contribution of 50 per cent instead of 100 per cent indemnity. 152The first matter was abandoned. The second does not arise. 153The applications for leave to appeal and cross appeal by the State should be dismissed. 154MEAGHER JA: I have had the benefit of reading the thorough and measured reasons of Allsop P. I agree with those reasons and the orders that he proposes. 155WARD JA: I agree with Allsop P. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2013