Supreme Court New South Wales Medium Neutral Citation: HARTNETT v TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF WILCANNIA-FORBES (No 2) [2024] NSWSC 98 Hearing dates: 5 - 8 February 2024 Date of orders: 8 February 2024 Decision date: 08 February 2024 Jurisdiction: Common Law Before: Campbell J Decision: Reject the defendants' objection to Mr Martin Gregory Haimes' giving of oral evidence Catchwords: EVIDENCE – tendency evidence – tendency rule – proposed tendency evidence precedes the events the subject of proceedings by almost 20 years – significant probative value – proposed evidence capable of proving facts in issue either alone or in conjunction with other evidence – where defendant's statement indirectly addresses allegations raised in proposed evidence – no unfair prejudice occasioned Legislation Cited: Evidence Act 1995 (NSW), ss 97, 135, 192 Limitation Act 1969 (NSW), s 6A Cases Cited: GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 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 EX TEMPORE JUDGMENT 1. Mr Romaniuk of Senior Counsel has called Mr Martin Gregory Haimes to give evidence. The evidence sought to be adduced from Mr Haimes falls into the category of tendency evidence governed by the provisions of s 97 of the Evidence Act 1995 (NSW). 2. Mr Lloyd of Senior Counsel, on behalf of each of the defendants in this regard, objects to the evidence of Mr Haimes on two grounds. First, learned Senior Counsel argues the evidence is not capable of supporting the tendency identified in the plaintiff's tendency notice, which is expressed in these terms: "a tendency to excessively, gratuitously and without any proper reason dispense corporal punishment by use of striking students with a wooden ruler at the school". The school must be interpreted as being St Ignatius Parish School, Bourke ("School"). 3. The second ground relied upon is the discretion conferred in the Court by s 135 of the Evidence Act to exclude evidence which would otherwise be admissible on various grounds. The ground invoked by Mr Lloyd is that the probative value of Mr Haimes' evidence, if it passes through the s 97 threshold, is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendants. Mr Lloyd has reminded me of the High Court decision in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [16] and [17] in respect of both grounds of objection. 4. Mr Haimes was a student at St Scholastica's College, Mount Barker, South Australia, where Sister Marietta Green, whose conduct is central to the allegations made against the defendants in this case, taught for a period of time prior to the mid‑1970s. Mr Haimes is now 55 years of age and in his statement gives evidence of events which occurred when he was in the infant school, which in all probability must have been before Sister Green moved to the School. 5. His proposed evidence is that at that time Sister Green was teaching in the primary school but from time to time relieved and taught Mr Haimes' infants class when his usual teacher was absent. This happened on a number of occasions although that number is unspecified. The gravamen of his evidence is contained in paras 7 and 8 of his statement; I will summarise it. Mr Haimes says that Sister Green came equipped with a wooden stick, which he describes, and told the children that if they did not behave, she would punish them, using the stick. On one occasion he was "disciplined" with the stick. He does not remember his infringement of school rules, but after he was hit, he was in a lot of pain. He recalls seeing classmates dealt with in a similar manner for what he describes as "minor things". 6. I am told that the statement was served toward the end of November 2023. It is apparent that Sister Green's response was sought in relation to the matter because a second statement of hers, dated 18 January 2024, has been served. She acknowledges teaching at St Scholastica's in 1975, because she kept a record of all of her placements. I interpolate 1975 may be broadly consistent with a person born in 1968 being in infants' class. Inferentially, Mr Haimes speaks of her hitting small children aged 6 or 7 years. 7. In her second statement, Sister Green recalls the teacher identified by Mr Haimes, although her recollection is that she taught the junior primary school and that Sister Green herself taught the infants classes. Sister Green seeks to answer the proposed evidence of Mr Haimes by referring to what may be important circumstances, including that she was not a primary school teacher and, relying upon her recollection, that it was not the practice at that school for teachers assigned to one class to relieve an absent teacher of another class, instead students were distributed amongst classes when a teacher was absent. 8. She does not directly answer the evidence about whether she used some wooden implement to discipline children in those days but says that she did not have a ruler named "Montgomery" at St Scholastica's, which perhaps one might think rather talks around the question. Mr Haimes does not refer to "Montgomery" in his statement. He describes a wooden stick being a foot long and one centimetre in diameter of a light timber colour. Without casting any comment whatsoever on either his proposed evidence or the proposed evidence of Sister Green at this stage, the statement in response by Sister Green does not directly answer Mr Haimes' evidence. 9. I will start with the first question, which is whether I am satisfied that the evidence relating to Sister Green's tendency to act in a particular way, that is to say to use a wooden implement to discipline infant aged children as far back as 1975, either by itself or having regard to other evidence adduced or to be adduced by the plaintiff has significant probative value. It is convenient to refer to the passage that Mr Lloyd referred me to from the decision of Hughes at [16]. As that passage in the majority judgment of Kiefel CJ, Bell, Keane and Edelman JJ makes clear, there is a significant difference between criminal cases like Hughes and civil cases like the one I am dealing with. Their Honours said: "The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability or the existence of a fact in issue. Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue. The capacity of tendency evidence to be influential to proof of an issue on the balance of probability in civil proceedings may differ from the capacity of the same evidence to prove an issue beyond reasonable doubt in criminal proceedings. The starting point in either case requires identifying the tendency and the fact or facts in issue which it is adduced to prove. The facts in issue in a criminal proceeding are those which establish the elements of the offence." (My emphasis.) 1. I have already referred to the tendency that is raised on behalf of the plaintiff. The fact in issue which Mr Haimes' evidence in conjunction with the other evidence I have heard and will hear is proffered to prove, is that Sister Green disciplined the plaintiff Mr Hartnett, inter alia, using a wooden implement, being one or more rulers at different times while he was a young student in the infants class at the School. 2. To my mind, Mr Haimes' evidence, although relating to matters in 1975, when taken together with the evidence I have already heard in this regard, and from the court book I am likely to hear in the future, does have significant probative value when viewed through the prism of the civil standard of proof of the balance of probability, a much less stringent standard, as is well-known, than the criminal standard of proof beyond reasonable doubt. 3. It is relevant to its probative value to consider that Mr Haimes' evidence is about events which preceded those in question by about, but not quite, 20 years. In my judgment, although that is relevant to its probative value, given the body of evidence that I have received so far and which I may receive during the trial, part of the relevance of the tendency evidence in the case will be to establish a continuity of Sister Green's tendency to act in a particular way. 4. At this stage, I am concerned only with the admissibility of the evidence, not its reliability nor any question about whether or not I will accept it due course. Admissibility depends upon the capacity of the evidence to prove a fact in issue, either alone or in conjunction with other evidence. The question of whether it will carry the day in due course is entirely irrelevant to that question. I am satisfied that the statutory condition of admissibility in s 97(1)(b) of the Evidence Act has been met. 5. I turn then to the question of whether the evidence should be excluded in the exercise of my discretion because it is unfairly prejudicial to the defendants. In this regard, Mr Lloyd relied upon what had been said by the Justices at Hughes, [17]. In particular, Senior Counsel relied upon the concluding sentence in these terms "…prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years." Mr Lloyd relies upon the relative remoteness of 1975 from the early 1990s and, perhaps more significantly in terms of forensic disadvantage, from 2024. 6. It is apparent that Sister Green does have a recollection of her time at St Scholastica's and has provided evidence which if accepted may be an effective answer to some of Mr Haimes' evidence. She has not directly answered the central aspect of his evidence, and there may be reasons for that which I need not tarry over at this time. 7. As the Justices pointed out, questions of significant probative value in civil cases are quite different from those in criminal trials; likewise questions of unfair prejudice, if I may say with respect, are quite different where the tribunal of fact is a jury compared to a judge who is required to make plain his or her reasoning process by which he or she arrived at the ultimate decision in the case. 8. All effluxions of time in litigation create a degree of prejudice. The question is whether the prejudice in this case is unfair. It seems to me that that consideration has to be at least partly weighed in the light of s 6A of the Limitation Act 1969 (NSW) and the abuse of process considerations referred to by the majority of the High Court in the recent decision of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857. 9. I am not satisfied that any prejudice in meeting Mr Haimes' evidence viewed in isolation is unfair. Naturally, when the time for decision comes, all proofs will be evaluated according to the capacity of each of the parties to provide, or rebut, it and I am not satisfied that I should exclude this evidence under s 135. In exercising that discretion, I have had regard to the considerations specified in s 192 of the Evidence Act. I overrule Mr Lloyd's objection. ********** 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