Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 6) [2024] NSWSC 1609

Supreme Court New South Wales

Medium Neutral Citation: Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 6) [2024] NSWSC 1609 Hearing dates: 5-9, 12-16, 19-20, 22-23 February, 10 December 2024 Date of orders: 10 December 2024 Decision date: 10 December 2024 Jurisdiction: Common Law Before: Campbell J Decision: (1) Grant leave to the first defendant to withdraw the concession appearing at T1028.1-10 made on 23 February 2024. (2) Grant leave to the plaintiff to reopen the argument and address further submissions in writing in relation to the employment of Sister Green by the second or third defendants, and the applicability of the principles concerning non-delegable duty to the question of the liability of the first defendant with the defendants to have a right of reply in writing, so far as the plaintiff's submissions touch upon their respective liability. (3) Counsel to confer to agree upon a timetable for the exchange of the written submissions and upon agreement, to have liberty to forward a form of consent order encapsulating their agreement to my chambers by email without the need for any party to appear for the orders to be made. Catchwords: CIVIL PROCEDURE – withdrawal of concession – where a concession was made by defendant during closing address based on an intermediate appellate court's decision – where that decision has now been overruled by High Court – where the party now wishes to withdraw the concession – concession not accepted or acted upon by the plaintiff – conditional leave to withdraw granted Legislation Cited: Civil Liability Act 2002 (NSW), Pt 1B, Div 4 Limitation Act 1969 (NSW), ss 6A, 18A Cases Cited: Attorney-General (WA) v Marquet (2003) 217 CLR 545; [2003] HCA 67 Bird v DP (a pseudonym) (2023) 69 VR 408; [2023] VSCA 66 Bird v DP (a pseudonym) [2024] HCA 41 CGIG Investments Pty Ltd v Schokman (2023) 278 CLR 165; [2023] HCA 21 Drabsch v Switzerland General Insurance Co Ltd (Unreported, Supreme Court of New South Wales, Santow J, 16 October 1996) Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 3) [2024] NSWSC 126 O'Connor v O'Connor [2022] NSWCA 97 Sweeney v Boylan (2006) 226 CLR 161; [2006] HCA 19 The Commonwealth v Introvigne (1982) 150 CLR 258; [1982] HCA 40 Category: Procedural rulings Parties: Albert John Hartnett (Plaintiff) Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (First Defendant) Trustees of the Marist Brothers (Second Defendant) Mercy Support Limited (Third Defendant) Representation: Counsel: E Romaniuk SC with J Masur (Plaintiff) D Lloyd SC with M Robinson (First Defendant) M Slattery (Solicitor) (Second Defendant) D Lloyd SC (Third Defendant)