HARTNETT v TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF WILCANNIA-FORBES (3) [2024] NSWSC 126

Supreme Court New South Wales

Medium Neutral Citation: HARTNETT v TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF WILCANNIA-FORBES (3) [2024] NSWSC 126 Hearing dates: 5 - 12 February 2024 Date of orders: 12 February 2024 Decision date: 12 February 2024 Jurisdiction: Common Law Before: Campbell J Decision: Grant leave to the plaintiff to file and rely on the Third Further Amended Statement of Claim save for paragraphs 16J to 16N inclusive. Catchwords: CIVIL PROCEDURE – pleadings – amendment – late application for amendment – inadvertence of counsel in preparing previous versions of pleadings – where all defendants, through a Heads of Agreement, agreed to contribute one third of damages payable irrespective of final judgment – where first defendant's financial position remains unaffected by proposed amendments – no prejudice occasioned by delay NEGLIGENCE – vicarious liability – relationship akin to employment – whether the owner of a school can vicariously be liable for the conduct of a teacher belonging to an order of Catholic nuns – vicarious liability to be determined based on factual evidence led Legislation Cited: Civil Liability Act 2002 (NSW), Pt 1B Div 3, cl 44 Pt 14 Sch 1 Civil Procedure Act 2005 (NSW), ss 56, 64 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Limitation Act 1969 (NSW), s 6A Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Bird v DP (a pseudonym) (2023) 69 VR 408; [2023] VSCA 66 CCIG Investments Pty Ltd v Schokman [2023] HCA 21; 410 ALR 479 CM v The Trustees of the Roman Catholic Church for the Diocese or Armidale [2023] NSWCA 313 Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194; 162 FLR 173 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Karl Suleman Enterprizes Pty Ltd (in liq) v Pham [2013] NSWCA 93 Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 O'Connor v Comensoli [2022] VSC 313 Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 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)