Supreme Court New South Wales Medium Neutral Citation: HARTNETT v TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF WILCANNIA-FORBES [2024] NSWSC 97 Hearing dates: 5 - 6 February 2024 Date of orders: 6 February 2024 Decision date: 06 February 2024 Jurisdiction: Common Law Before: Campbell J Decision: Reject paragraph 15 of the witness statement of Ms Sylvia Fernando dated 16 November 2023 Catchwords: EVIDENCE – tendency evidence – tendency rule – Evidence Act 1995 – where proposed tendency evidence not identified in tendency notice – where proposed tendency evidence incapable of proving facts in issue either by itself or in conjunction with other evidence Legislation Cited: Evidence Act 1995 (NSW), ss 94(4), 97 Limitation Act 1969 (NSW), s 6A Category: Procedural rulings Parties: Albert John Hartnett (Plaintiff) Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (First Defendant) Trustee of the Marist Brothers (Second Defendant) Mercy Support Limited (Third Defendant) Representation: Counsel: E Romaniuk SC with J Masur (Plaintiff) M Robinson (First Defendant) M Slattery (Solicitor) (Second Defendant) D Lloyd SC with D Stretton (Third Defendant) Solicitors: North Star Law (Plaintiff) Dentons Australia Limited (First Defendant) Carroll & O'Dea Lawyers (Second Defendant) Mills Oakley (Third Defendant) File Number(s): 2022/00288425 JUDGMENT 1. The plaintiff is claiming damages from the defendants arising from the treatment he says he received as an infant school pupil at St Ignatius Parish School in Bourke ("School"). His case is that his treatment amounted to serious physical abuse within the meaning of s 6A of the Limitation Act 1969 (NSW), and accordingly, he is entitled to bring these proceedings notwithstanding the expiration of the limitation period that would otherwise preclude a claim for damages for personal injuries said to have occurred in 1993 or 1994 when he was in years 1 and 2, respectively. 2. His case is that his infants' teacher, Sister Marietta Green, disciplined him for minor infringements in classroom by using excessive corporal punishment. The three forms of punishment of which he complains are: (1) infliction of corporal punishment by use of a ruler to smack or hit him including over his naked buttocks; (2) twisting or screwing of his ears to enforce compliance with requests; and (3) requiring him to sit or stand in the hot, outback sun in the playground within a circle referred to in some of the evidence as "the poison circle" for very extended periods. Although the case is founded upon the infliction of corporal violence, if successful there is no doubt that the specific consequence relied upon is psychological or psychiatric injury. The defendants have made common cause in wholly denying each of the plaintiff's claims. 3. The plaintiff wishes to rely upon tendency evidence within the meaning of s 97 of the Evidence Act 1995 (NSW). In that regard a large number of statements of lay witnesses have been served totalling about 21 persons. There is also evidence relating to acts of violence said to have been perpetrated by a liaison officer at the School known as Uncle Sweeney, but whose real name is Mr Tony Dixon. There are 7 witnesses whose evidence is relied upon as tendency evidence in regards to Mr Dixon. 4. The witness about to be called is a Ms Sylvia Fernando who was herself a student at the School at about the same time as the plaintiff. She was also taught at the infant school by Sister Green and had some dealings with Mr Dixon. She has provided a statement dated 16 November 2023 which contains her evidence in chief. Mr Lloyd of Senior Counsel, who appears for the third defendant with Mr Stretton, for the purpose of the present witness and for the purpose of this judgment, objects to para 15 which is in the following terms: "The bathroom was near the office, and we used to ask Sister Marietta to get to the toilet as quick as we could, but she would not let us. I don't remember wetting myself and not being allowed to use the bathroom, but my friend, Madison Boney, did and I had to go see and see Sister [Kylie] who was like a nurse or first aid person, to grab some fresh clothes from donation box (sic) for Madison." 1. Mr Lloyd contends that conduct of denying small children's use of the bathroom during class time is not a tendency the subject of the tendency notice which is found at Court Book tab 8, pp 155 to 157. There are eight categories of tendency specifically relied upon; none in the terms of a tendency to withhold - if I may put it this way - bathroom privileges from children. 2. Mr Romaniuk of Senior Counsel, who appears with Mr Masur for the plaintiff, contends that the evidence, or proposed evidence, is covered by sub‑para 4(a) of the tendency notice, which is in the following terms: "The plaintiff intends to lead the Marietta evidence to prove that at the time of the alleged assault and battery, occasioned by Sister Marietta in her role as a teacher at St Ignatius' Primary School in Bourke, between 1978 and 1999, she had: (a) the tendency to act a particular way, namely, to engage in acts of serious physical abuse towards students." Learned Senior Counsel submits that a person who refuses to allow children to use the bathroom when they need to, is the type of person who would inflict upon children under her care the type of treatment, as I have put it, of which the plaintiff complains to found his case. 1. Under s 97 of the Evidence Act, evidence of conduct of a person, or a tendency the person has, is not admissible to prove that the person has or had a tendency to act in a particular way, unless "[t]he Court thinks that the evidence will, either by itself or having regard to other evidence, adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value". 2. It has been said that tendency evidence is a form of circumstantial evidence. That is to say, it is admitted for the purpose of proving a fact in issue in the litigation. In criminal cases generally it is only admissible if it proves or tends to prove an element of the offence and significantly so. 3. As I have said, the evidence the subject of this judgment is tendered to prove indirectly in conjunction with the other evidence relied upon by the plaintiff: that Sister Green in fact treated the plaintiff in the manner I have described. I must say I am not of the view that evidence which tends to prove that Sister Green refused to allow children to go to the bathroom, is evidence which significantly tends to prove that she in fact conducted herself in the manner described by the plaintiff in his evidence. 4. I am of the view that a tendency to engage in acts of serious physical abuse towards students, an expression which picks up the language of s 6A of the Limitation Act, is, with respect, expressed at such a general level of abstraction that its establishment does not tend to prove either on its own, or in conjunction with the other evidence - which I expect, from the contents of the court book, will be led in the trial - that Sister Green in fact applied the type of specific treatment that the plaintiff complains of in his case. But more specifically refusing to allow children to go to the toilet, which I agree with Mr Romaniuk may be physical abuse, is of a different order of magnitude of abuse from the application of physical violence, as alleged in the plaintiff's case. 5. I fully appreciate that in determining whether tendency evidence is admissible, one is to avoid reasoning in terms of the common law principles that formerly governed the admissibility of propensity, or similar fact evidence, as s 94(4) of the Evidence Act makes clear. At the same time, in my judgment the great dissimilarity between the material objected to, and the treatment complained of by the plaintiff, is such that, as I have said, the evidence to which objection is taken, does not tend to prove the plaintiff's case. I am accordingly of the view s 97 is not satisfied and I reject that portion of Ms Fernando's statement. ********** 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: 14 February 2024