AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle
High Court of Australia · 2026
AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2
A priest abused a 13-year-old in the presbytery in 1969. The Diocese was not his employer, and a 2003 High Court decision said its duty could not reach a deliberate crime. Did that decision survive?
What happened?
AA was 13 in 1969 when Fr Ronald Pickin, a priest performing the function of parish priest at a parish within the Diocese of Maitland-Newcastle, sexually assaulted him several times in the presbytery where Pickin lived ([1], [52]). Pickin taught scripture at the State high school AA attended and invited boys, AA among them, to the presbytery on Friday nights, where he gave them alcohol and cigarettes and let them gamble on a poker machine ([1]). AA sued the Diocese's statutory representative, the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle, in 2024, more than fifty years later.
The primary judge found the assaults occurred and held the Diocese liable principally on the footing that it was vicariously liable for Pickin's acts ([9]). After the High Court's decision in Bird v DP (a pseudonym), AA accepted that holding could not stand ([10]). That left the claim that the Diocese owed AA a non-delegable duty of care. The Court of Appeal, applying New South Wales v Lepore, held unanimously that no such duty could be owed in respect of a priest's intentional criminal act ([10]). AA appealed by special leave, and also asked the High Court to re-open Lepore.
What did the Court decide?
The appeal was allowed with costs, by five Justices to two. Gleeson and Steward JJ dissented. The Court of Appeal's orders were set aside and, in their place, the appeal to the Court of Appeal was dismissed, except that the primary judge's award of $636,480 was varied to $335,960.
There were five judgments: Gageler CJ, Jagot and Beech-Jones JJ jointly, then Gordon J, Edelman J, Steward J and Gleeson J separately. The majority reached the same result by routes that differ in places, so read the separate reasons before treating one judgment as the Court's.
Proposition
What is the principle?
A non-delegable duty to ensure that reasonable care is taken can be breached by the intentional criminal act of the duty-holder's delegate, and the contrary holding in Lepore was overturned.
The joint reasons of Gageler CJ, Jagot and Beech-Jones JJ state at [4] that the majority decision in Lepore that there can be no common law non-delegable duty in respect of harm caused by an intentional criminal act "should be re-opened and overturned". They record at [6] that they, Gordon J and Edelman J "agree that a non-delegable duty may be breached by the intentional conduct of the duty-holder or their delegate". Gordon J at [287] would reopen and overrule it on the same ground, and Edelman J at [334] and [340] says it "must be re-opened and overruled". Steward J declined to reconsider it because AA's case failed on the evidence ([454]), though he thought there was much to be said for it ([456]); Gleeson J found it unnecessary to decide ([545]).
What the joint reasons say the duty still is. At [30]: "it is not right to conceive of the non-delegable duty as imposing absolute liability". The duty-holder "cannot be liable for breach of a non-delegable duty unless either the duty-holder personally or the delegate has defaulted in the taking of reasonable care in respect of the person to whom the duty is owed". What changed is the next sentence: "an intentional criminal act of a delegate which injures the person to whom the duty-holder owes the non-delegable duty is necessarily a failure by the delegate to take reasonable care and therefore a failure by the duty-holder to ensure that reasonable care is taken". Their Honours also say at [137] that liability is not derivative: "The non-delegable duty-holder's liability is a direct and personal liability of the duty-holder for not having ensured that reasonable care was taken."
What the duty requires. Six Justices agreed at [6] that a non-delegable common law duty requires the duty-holder to have undertaken the care, supervision or control of the person or property of another, or to be so placed as to assume a particular responsibility for their or its safety. The joint reasons found that the Diocese owed AA, in 1969, "a duty to a child to ensure that while the child was under the care, supervision or control of a priest of the Diocese, as a result of the priest purportedly performing a function of a priest of the Diocese, reasonable care was taken to prevent reasonably foreseeable personal injury to the child" ([2]), because there was "no principled basis to distinguish the position of the Diocese in 1969 from that of a school authority at that time" ([3]). Gordon J framed the duty more narrowly, around child parishioners in the care of a priest at the presbytery, and left open whether it went further ([300]). Steward J accepted that the Diocese owed a non-delegable duty but confined its scope to occasions when contact with children was authorised, permitted or required by the Church, and held that what Pickin did was beyond it ([447]). Gleeson J would have held that the common law recognised no duty in the terms proposed, or as found by other members of the Court ([468]).
Damages. On the issue that emerged late in the hearing, the joint reasons resolved the appeal "on the basis that s 3B(1)(a) of the NSW Civil Liability Act is not engaged in respect of the liability of the Diocese for breach of its non-delegable duty", so Pt 2 applied ([136]). That is what reduced the award. Edelman J says s 3B(1)(a) does not preclude reliance on those provisions "by a person such as the Diocese which does not commit, or have attributed to it, the sexual misconduct but is liable for breach of a non-delegable duty" ([401]).
Why does this case matter?
Re-opening a High Court decision is unusual, and the older case stays in textbooks and in students' notes. An answer that cites it is fluent and wrong, so the habit this case should build is checking what has since happened to a leading authority before relying on it.
It also shows how the Court goes about it. The reasons are a worked example of the factors for re-opening a decision, and of how a court treats an earlier majority whose reasoning was divided. A student who can reconstruct why the Court was willing to depart from Lepore, and why two Justices did not reach the question, is better placed on a precedent question than one who has only learned the result.
The case is also easy to over-read, and the next section says how.
Exam and application relevance
Date your answer. A question about what Lepore decided has an answer from 2003, and a question about the law now has the answer in this case. Say which one you are giving.
When you apply the case, work in this order. Ask first whether the defendant undertook the care, supervision or control of the plaintiff, or was so placed as to assume particular responsibility for their safety. Then ask whether the plaintiff was under that care as the relationship required. Then ask what the delegate did. Keep the first two steps even though the delegate's act was intentional, because the joint reasons at [114] and [116] tie the duty to the relationship and say that where a priest's being a priest is merely incidental to the child being in his care, the Diocese's relationship with the child is irrelevant to the harm.
Do not call the liability vicarious. The joint reasons say at [137] that it is direct and personal. Whether the non-delegable duty is open on other facts depends on what the defendant undertook towards the plaintiff.
Do not state the joint reasons' limit as if each of the five in the majority had said it. The "not absolute liability" sentences at [30] are in the joint reasons, and Gordon J says at [274] that the duty-holder's liability is strict in the sense that it does not depend on personal negligence by the duty-holder.
On damages, a New South Wales answer must deal with the Civil Liability Act 2002 (NSW), and the resolution of s 3B(1)(a) at [136] was reached in the circumstances the joint reasons describe. For another jurisdiction, check that jurisdiction's legislation before you apply it.
Check your understanding
1. A pupil is assaulted by a teacher and the school took reasonable care in appointing and supervising him. Before 2026, which Justices had held the school's non-delegable duty could not be breached by the assault, and what is the position now? 2. The Diocese in this case was not Pickin's employer. Why did that matter to the way AA's claim was put, and what did the primary judge's finding of vicarious liability become? 3. Which paragraph of the joint reasons records what Gageler CJ, Jagot and Beech-Jones JJ agree with Gordon and Edelman JJ, and who is not part of that agreement? 4. Why were AA's damages reduced from $636,480 to $335,960?