Supreme Court New South Wales Medium Neutral Citation: Hartnett v Trustees of the Roman Catholic Church Diocese of Wilcannia-Forbes [2023] NSWSC 1606 Hearing dates: 06 December 2023 Date of orders: 06 December 2023 Decision date: 06 December 2023 Jurisdiction: Common Law Before: Garling J Decision: See [27] Catchwords: CIVIL PROCEDURE – pleadings – amendment – where plaintiff seeks to add vicarious liability claim and claim for aggravated and exemplary damages against first defendant – where aggravated damages claim arises from conduct of first defendant making "fraud allegations" – amendment ought be permitted unless there is no prospect of establishing entitlement to aggravated damages – matter is arguable – application for amendment granted Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural rulings Parties: Albert John Hartnett (P) Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (D1) Trustee of the Marist Brothers (D2) Mercy Support Ltd (D3) Representation: Counsel: E Romaniuk SC / J Masur (P) M Robinson (D1) Z Brindle (D2) D Stretton (D3) Solicitors: North Start Law (P) Dentons Australia Pty Ltd (D1) Carroll & O'Dea Lawyers (D2) Mills Oakley (D3) File Number(s): 2022/288425 Publication restriction: Not Applicable EX TEMPORE JUDGMENT 1. This is an application by the plaintiff by Notice of Motion filed 6 October 2023, for leave to file a Second Further Amended Statement of Claim (the "2FASOC"). The Proceedings 1. The foundational proceedings involve a claim made by the plaintiff for damages for personal injury against three defendants, alleged to have arisen as a consequence of physical and sexual abuse of him whilst he was a student at the Saint Ignatius Parish School situated in Bourke in the period in about 1991 to 1997. 2. The three defendants are alleged to be legally liable to the plaintiff as a consequence of the behaviour of an identified nun who is a member of the Order for whom the third defendant is liable, and the conduct of an identified individual who was an Aboriginal liaison officer at the school, as well as other, unidentified staff members. 3. The first two defendants, being the Trustees of the Roman Catholic Church of the Diocese of Wilcannia‑Forbes ("the Trustees") and the Trustees of the Marist Brothers, are alleged to have been the relevant authorities under whose direction the school was conducted, or else by whom the school was conducted. The third defendant is alleged to be legally liable for the individual nun who is said to be a perpetrator. 4. The proceedings commenced in 2022 and have been fixed for final hearing on 5 February 2024. The Notice of Motion 1. The Motion concerns amendments which relate only to the claim against the first defendant. Accordingly, the positions of the second and third defendants can be put to one side. 2. The proposed amendments can be categorised in two ways. 3. First, the plaintiff seeks to add, in paragraphs 16A to 16I, a claim that the Trustees, employed the Aboriginal liaison officer who is alleged to have perpetrated some part of the abuse on the plaintiff and, accordingly, is vicariously liable as a matter of law for that employee's conduct. No objection is raised by the first defendant to the amendment insofar as it seeks to add such a claim. 4. The second group of amendments proposed to be made, again are only against the Trustees, raise a claim by the plaintiff that he is entitled to aggravated and exemplary damages as a component of any final judgment obtained. 5. It has been made clear in the course of submissions that the plaintiff accepts that he has no entitlement to aggravated or exemplary damages in respect of one of the two causes of action pleaded against the Trustees, namely a cause of action arising by way of direct liability for a breach of duty. 6. He accepts that he has no such claim for aggravated or exemplary damages by way of direct liability because the provisions of s 21 of the Civil Liability Act 2002 (NSW) prohibit this Court from awarding exemplary or aggravated damages in any such claim. However, the plaintiff seeks to add the claim for aggravated and exemplary damages to the claim it now makes by way of vicarious liability of the Trustees for the conduct of its employee. 7. It has not been argued before me that a claim for aggravated or exemplary damages is not, as a matter of principle, available if an award of damages is made based upon a vicarious liability allegation. In considering the proposed amendment, I do not pause to consider whether such a proposition is legally correct, because that would be a matter for argument at any trial. 8. The proposed amendment which is set out in paragraphs 57A to 57J inclusive, and also in paragraph 58(d) of the 2FASOC, is in large part, but not entirely, opposed by the Trustees. The Trustees do not oppose the addition of subparagraph (d) to the existing para 58. That subparagraph would mean that s 58 would read as follows: "The plaintiff claims, A, damages in the nature of compensatory damages; B, interest; C, costs; and D, aggravated and exemplary damages against the first defendant." 1. Counsel who appeared for the first defendant made it plain that his client did not suggest that it would not be open to the Court to award such damages or for the plaintiff to claim them. However, counsel did submit that paragraphs 57A to 57J should not be permitted. Those paragraphs plead as the basis for an award of aggravated or exemplary damages, the conduct of the first defendant in, it is alleged, making "fraud allegations" for which it is said there was no basis and which the first defendant has declined to particularise to any extent, has declined to withdraw and in fact, by correspondence, has repeated them. It is necessary to quote a little of what has been said. 2. Before doing so, I note that the first defendant has in its pleading denied that any abuse which it may be liable for has in fact occurred. 3. To return to the "fraud allegation", in a letter from the solicitor for the first defendant to the solicitor for the plaintiff that was sent by email on 25 September 2023, the following paragraphs appeared: "It is the first defendant's case that the allegations of abuse advanced by the plaintiff are false. So too, on the first defendant's case, are the accounts of each of the tendency witnesses proposed to be called in the plaintiff's case. That being so, one component of the first defendant's proposed cross‑examination of the plaintiff and each of the tendency witnesses is likely to be that they have colluded with one another to offer false evidence or have otherwise made similar allegations as a consequence of their belief that some financial award may be achieved if they proffer false allegations of abuse. In circumstances where North Star Law has published advertisements concerning its investigation of alleged abuse at Saint Ignatius Parish School Bourke, including on local community pages in Bourke, you can expect that it will be put to those advancing allegations of abuse that they have colluded to offer false accounts of abuse after seeing an advertisement by North Star Law and forming the belief that they may achieve a financial benefit (or assist another person to achieve such a benefit) if they proffer a false account and/or collude with one another in respect of their evidence." 1. Those paragraphs appeared in the email in the context of a challenge being raised by the plaintiff to the existence of a legitimate forensic purpose for documents which were being sought by subpoena from the firm North Star Law. Those documents related to the published advertisements referred to in the letter just quoted. 2. The plaintiff submits that, in substance, these three paragraphs constitute an allegation of fraud by the plaintiff, which is baseless, and that such allegation is sufficient to ground a claim for aggravated damages on the basis of what has been written. The first defendant submits that no allegation of fraud has, as yet, actually been made. 3. The first defendant submits that in identifying a legitimate forensic purpose for the production of documents pursuant to subpoena, all that has happened is that it has indicated to the plaintiff that the allegations set out in the first three paragraphs earlier quoted may be made in the course of cross‑examination in the final hearing, but that they are not as yet being made. 4. Counsel submits that in the particular circumstances of this case, such a fine distinction can be readily discerned from the careful choice of words in the email. The plaintiff responded by saying, "This is not any careful choice of language, but on the contrary, on its face, is a clear allegation of fraud". 5. Section 64 of the Civil Procedure Act 2005 (NSW) permits the Court to order that leave be granted to a party to amend any document in the proceedings. Section 64(2) of the Civil Procedure Act requires that all necessary amendments are to be made for the purpose of determining the real questions raised or correct any defect in the proceedings so as to avoid any multiplicity of proceedings. In making an order for amendment, the Court is obliged by the provisions of s 58(1) to follow the dictates of justice. In so doing, the Court has to consider whether any order it makes complies with the overriding purpose of the Civil Procedure Act as set out in s 56, namely, to facilitate the just, quick, and cheap resolution of the real issues in the proceedings, and further, that any such order is to be made with the object of ensuring the efficient disposal of the proceedings as part of the business of the Court and the just determination of the proceedings. 6. Counsel for the first defendant accepts that in substance the amendment ought be permitted unless I am of the view that his argument about the proper interpretation of the three paragraphs of the email is so clear as would justify what would otherwise be posited as the test for summary dismissal of proceedings. In other words, as matters stand at this stage, counsel for the first defendant opposes the amendment saying there is simply no prospect of the plaintiff establishing any entitlement to aggravated damages based upon the email and the other facts pleaded. 7. Having listened to the argument mounted by the plaintiff and the opposing argument mounted by the first defendant, I am not presently persuaded that either argument is so obviously clear as would mandate one or other result. 8. Put differently, I am satisfied that the contents of paragraphs 57A to 57J inclusive, which are sought to be inserted into the Statement of Claim, raise an arguable issue. Whether or not ultimately that issue is made out will be a matter for the trial Judge based on all of the evidence before them. 9. I make no finding and I express no opinion on whether or not the plaintiff's claim for aggravated and exemplary damages, based on the matters intended to be inserted by the amendment, will be made out. I express no opinion and make no finding on whether, as the first defendant says, at trial this correspondence, properly understood, made no such allegation of fraud and is incapable of giving rise to a claim for aggravated damages. 10. My only finding is that the matter is arguable for the purposes of determining whether an amendment should be permitted. As the matter is arguable - and the first defendant does not suggest that to confront the argument will not be possible, nor that it suffers any procedural prejudice by the amendment and no-one suggests that the proposed amendment will cause any delay to the hearing of the matter presently fixed for 5 February 2024 - it seems to me that consistently with the provisions of s 64 and ss 56, 57 and 58 of the Civil Procedure Act, the application for the amendment should be granted. Orders 1. I make the following orders: 1. Grant leave to the plaintiff to file and serve a Second Further Amended Statement of Claim in the form presently Annexure G to the affidavit of Michelle Martin affirmed 27 October 2023. Any such leave is to be exercised no later than 4pm Friday 8 December 2023. 2. Order that any Defence to the Second Further Amended Statement of Claim be filed and served by the plaintiff on or before 27 January 2024. 3. Order that the costs of and occasioned by the amendment be paid by the plaintiff. 4. Reserve to the trial Judge the question of which party; namely, either the plaintiff or the first defendant, should pay the costs of this Motion. 5. Order the second and third defendants to pay their own costs of the Motion. ********** 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: 18 December 2023