Citation: AA v MacDonald; BB v MacDonald [2026] NSWDC 1
Court: District Court of New South Wales
Date: 5 February 2026
Judge: Catsanos SC DCJ
Background
Two plaintiffs, identified only as AA and BB to protect their identities under non-publication orders, brought separate civil proceedings against the same defendant seeking damages for historical sexual abuse. The plaintiffs were childhood friends who had lived near the defendant. Both alleged they were subjected to repeated sexual assaults by him during their childhoods, spanning roughly from the late 1970s through to 1989.
The defendant denied all allegations and asserted that both plaintiffs had fabricated their accounts entirely. The central factual question was therefore whether any of the alleged assaults occurred at all. Causation and quantum were not in dispute: the parties had agreed damages figures in each matter in advance, conditional on liability being established.
Catsanos SC DCJ ordered both sets of proceedings to be heard together, with evidence in each matter admissible on the question of the defendant's liability in the other. The judgment addresses both claims in a single set of reasons.
Legal Issues
- Whether the plaintiffs established, on the balance of probabilities, that the defendant committed the alleged sexual assaults constituting the torts of assault and battery
- The correct application of the civil standard of proof under s 140 of the Evidence Act 1995 (NSW), including the Briginshaw principle regarding the gravity of allegations
- Whether certificates of conviction tendered under s 178 of the Evidence Act provided prima facie evidence of the offences involved
- The admissibility and probative weight of tendency evidence under s 97 of the Evidence Act, being the defendant's alleged tendency to have a sexual interest in female children and to act on it
- The admissibility and probative weight of coincidence evidence under s 98 of the Evidence Act, given the similarities between the two plaintiffs' accounts
- The assessment of credit, reliability, and corroboration across the competing accounts
Decision
Catsanos SC DCJ found in favour of both plaintiffs. His Honour accepted that AA had established all of her pleaded allegations of sexual assault and that BB had established all but one of hers. The defendant's denials were rejected, as was the contention that both plaintiffs had fabricated their accounts.
On the standard of proof, his Honour applied s 140 of the Evidence Act and the principle in Briginshaw v Briginshaw (1938) 60 CLR 336. The standard remains the balance of probabilities, but the seriousness of the alleged misconduct is relevant to the degree of satisfaction required. Certificates of conviction tendered under s 178 of the Evidence Act provided prima facie evidence of the offences to which they related.
The defendant had accepted, as a matter of admissibility, that the evidence in each proceeding was admissible in the other as tendency evidence under s 97 and as coincidence evidence under s 98 of the Evidence Act. His Honour took this evidence into account in assessing the overall probative picture. The close similarities between the two plaintiffs' accounts, the circumstances in which the alleged abuse occurred, and the consistency of the defendant's alleged conduct across both matters all bore on the court's assessment of credibility and reliability.
His Honour found both plaintiffs to be credible witnesses and rejected the suggestion that their accounts were fabricated. Corroborating evidence, including evidence from family members and the tendency and coincidence evidence drawn from the parallel proceedings, supported the plaintiffs' accounts. The defendant's denials did not displace the plaintiffs' evidence once that totality was weighed.
Orders Made
- Judgment for AA against the defendant in the sum of $1,898,701, with the defendant to pay AA's costs of the proceedings.
- Judgment for BB against the defendant in the sum of $993,741, with the defendant to pay BB's costs of the proceedings.
Key Takeaways
- The District Court confirmed that the civil standard of proof under s 140 of the Evidence Act 1995 (NSW) remains the balance of probabilities in historical sexual abuse claims; the gravity of the alleged conduct informs the degree of satisfaction required, consistent with Briginshaw, but does not alter the standard itself.
- Where two proceedings involving the same defendant are tried together, evidence from each matter may be cross-admissible as both tendency evidence (s 97) and coincidence evidence (s 98), provided the similarities between the alleged events make coincidental occurrence improbable. Here, the defendant conceded admissibility on both grounds.
- Certificates of conviction tendered under s 178 of the Evidence Act constituted prima facie evidence of the offences concerned, forming part of the evidentiary foundation for the court's findings.
- A defendant's bare denial and assertion of fabrication, without more, will not necessarily displace plaintiffs' accounts where those accounts are internally consistent, supported by corroborating witnesses, and reinforced by tendency and coincidence evidence from parallel proceedings.
- Agreed damages arrangements in historical abuse litigation can resolve quantum at an early stage, confining the trial to liability alone, and judgment will follow in the agreed sum once liability is established on any of the pleaded allegations.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 97, 98, 140, 178
- Crimes Act 1900 (NSW), ss 61D, 61E, 76
Cases
- Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
- Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66
- MTH v State of New South Wales [2025] NSWCA 122