Background
The plaintiff alleges he was sexually and physically abused by teacher Graeme Stuart Hawkins while a student at Parramatta Marist High School in 1980 and 1981. He sued the Trustees of the Marist Brothers and the Trustees of the Roman Catholic Church for the Diocese of Parramatta, alleging negligence, breach of a non-delegable duty and vicarious liability.
In its defence, the Diocese admitted that it and the Marist Brothers employed Hawkins at the relevant time. The Diocese later sought leave to withdraw that admission and replace it with a non-admission, relying principally on a 1966 draft agreement which it said raised a possibility that lay teachers were employed by religious congregations rather than the Archdiocese. Both the plaintiff and the Marist Brothers opposed the application.
The Court’s Holding
Coleman J dismissed the Diocese’s amended notice of motion. A party seeking to withdraw a formal admission must give a satisfactory explanation for how the admission was made and why withdrawal is justified, while the Court must consider fairness, prejudice and the statutory objective of the just, quick and cheap resolution of proceedings.
The Diocese had not provided an adequate evidentiary explanation. Its solicitor’s assertion that the admission had been made on instructions did not explain who gave those instructions, what advice or investigation preceded them, or why the Diocese later changed position. The Diocese had known of the 1966 draft agreement during earlier litigation concerning Hawkins, and there was no evidence that the draft agreement had ever taken effect. Although a different pre-1989 arrangement was possible, that possibility did not justify withdrawal on the material before the Court.
Withdrawal would also prejudice the plaintiff and Marist Brothers by requiring additional historical investigations, causing delay, and potentially affecting evidence from elderly witnesses. The fact that a separate proceeding involved a similar employment issue did not remove that prejudice or require the cases to be run together. The Diocese was ordered to pay the costs of the plaintiff and the Marist Brothers.
Key Takeaways
- A formal pleading admission cannot be withdrawn merely because a party wishes to make further inquiries.
- The applicant must provide evidence explaining both the original admission and the basis for changing it.
- Potential delay and the difficulty of investigating decades-old events can amount to material prejudice.
Why It Matters
The decision reinforces that parties in historical abuse litigation must investigate and formulate their pleaded positions carefully. A speculative possibility that historical arrangements differed, without evidence that they did, will not ordinarily displace a deliberate admission.
It also confirms the importance of case-management considerations under the Civil Procedure Act 2005 (NSW), particularly where reopening an admitted issue would prolong litigation and increase the burden on survivors and other parties.