Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (4)

[2024] NSWSC 127

Supreme Court

New South Wales

Medium Neutral Citation:	HARTNETT v TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF WILCANNIA-FORBES (4) [2024] NSWSC 127
Hearing dates:	5 - 13 February 2024
Date of orders:	13 February 2024
Decision date:	13 February 2024
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Reject the plaintiff’s objection to paragraphs 12 to 16 of the witness statement of Sister Marietta Green dated 5 September 2023.
Catchwords:	EVIDENCE – context evidence – opinion rule – where contextual background of proposed evidence capable of informing the likelihood of events the subject of proceedings – no unfair prejudice occasioned
Legislation Cited:	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):	2022/288425

EX TEMPORE JUDGMENT

1. I am determining objections to the witness statements of Sister Marietta Green who is about to be called to give evidence in the defendants’ case. Mr Romaniuk, of Senior Counsel, who appears with Mr Masur, for the plaintiff has objected to paras 12 to 16 of the witness statement of 5 September 2023. In those paragraphs Sister Green describes her impressions of the home and social conditions in general terms experienced by the Aboriginal children in her care at the school and by reference to her appreciation of those matters goes on to explain her approach to education of the Aboriginal children at the school. It is certainly fair to say that the material may include matters of opinion. I am rather inclined to think that those matters of opinion are permissible lay opinion, given that it would be almost impossible for a witness to break down each of the component parts of such impressions for the purpose of giving detailed evidence.

2. Mr Romaniuk’s objection is not just that these are matters of opinion but that they are not relevant to any fact in issue and, in particular, he submits that if I accepted the evidence in paras 12 to 16 it would not of itself tend to prove that the physical abuse of which the plaintiff complains did not occur. He submits that it is really self-serving evidence of Sister Green putting forward her own good character, as effectively not anti-tendency evidence but evidence of a tendency to be kind. I should add he also submits that admission of the evidence would be unfairly prejudicial to the plaintiff and that that consideration would outweigh any probative value that the evidence has.

3. It is regrettably notorious, at least in the courts of this State, that many - not all, of course - Aboriginal children have suffered profound childhood deprivation in their living conditions and their general experience of life. While these are matters which inform the approach of the criminal law primarily to certain aspects such as sentencing, they nonetheless, in my opinion, may be relevant in this civil case to the extent to which they provide some context to the approach to teaching Aboriginal children that was taken at St Ignatius Parish School in the 1990s and the reason for the adoption of a voluntary – “opt in” as it has been put - separate teaching of Aboriginal students, at least in the infant years.

4. I am also of the view that it is relevant in a general sense to the question of the reasonableness of the approach to educating Aboriginal children that was adopted so far as the case in negligence against the named defendants is concerned. It seems to me that if one accepts that as a reason for the style of education adopted, that does say something about the likelihood that conduct that amounts to severe physical abuse, in accordance with s 6A of the Limitation Act1969 (NSW), occurred at the school. It is necessary for the plaintiff to show abuse rising to that level to maintain this claim.

5. I did permit as context evidence from some of the witnesses called in the plaintiff’s case in relation to their home circumstances and their background, in terms of what might be described as domestic and social conditions which are consistent with what we would hope would be the norm for all children in Australia, and it seems to me that this evidence broadly falls into the same context category. Although it does not, of itself, as Mr Romaniuk correctly argued, disprove the plaintiff’s case it is relevant in my opinion to the resolution of the likelihood of such events having occurred, for the reasons I have described.

6. I am not of the view that the evidence is unduly prejudicial. It is largely background or context and does not really need to be individually challenged. I think it is appropriate to say that in our egalitarian society there is a natural tendency for one to feel uncomfortable about circumstances where it may be suggested that some people in the community are being treated differently from others, either to their advantage or disadvantage. In particular in our egalitarian society the idea of any form of segregation is anathema, at least at a general level. But there are many forms of “separation” for education purposes which are accepted as reasonable and appropriate, at least by large sections of the community, such as the segregated high school education of boys and girls, although not always uncontroversial. I make these comments to say that despite one’s wish to adhere to the Australian egalitarian ethos, for Sister Green to speak about the conditions that some children lived in as she found them is not prejudicial to the plaintiff’s case in any way, in my judgment at least.

7. For those overly long reasons I will allow paras 12 to 16.

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Decision last updated: 20 February 2024