Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 5)

[2024] NSWSC 148

Supreme Court

New South Wales

Medium Neutral Citation:	HARTNETT v TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF WILCANNIA-FORBES (No 5) [2024] NSWSC 148
Hearing dates:	5 - 19 February 2024
Date of orders:	10 February 2024
Decision date:	19 February 2024
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	Reject the defendants’ objection to Ms Margaret Dixon giving oral evidence in reply, subject to the scope of Ms Dixon’s evidence being limited to topics raised in Sister Green’s evidence
Catchwords:	EVIDENCE – course of evidence – evidence in reply – credibility rule – where the scope of proposed evidence is broader than the evidence it seeks to address – proposed evidence relevant for a non-hearsay purpose
Legislation Cited:	Evidence Act 1995 (NSW), ss 60, 97, 106
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 dealing with questions relating to the admissibility of the proposed evidence of Margaret Dixon who was an infants school student at St Ignatius Parish School at Bourke (“School”) in the late 1980s or early 1990s and taught by Sister Marietta Green. We are at a stage in the hearing where we are approaching the close of the oral lay evidence to be called on behalf of all defendants. It is also the 11th day of the hearing. Following Sister Green's evidence, Mr Romaniuk of learned Senior Counsel who appears with Mr Masur for the plaintiff indicated that he may have evidence in reply. The proposed witness is Ms Dixon.

2. The context in which Ms Dixon’s evidence may be in reply is that in the course of Sister Green giving oral evidence, she denied using physical means of hitting a child as a form of discipline at any time other than on one occasion which she described involving Ms Dixon. The physical measure adopted was smacking Ms Dixon on the bottom over her clothing when she had, contrary to instruction, absented herself from the classroom on more than one occasion on the same day to consult the school nurse who was provided by the School. Sister Green has always denied using a ruler or other wooden implements to discipline children and so much was clear from her first statement which is dated 5 September 2023.

3. There was a second statement of Sister Green dated 18 January 2024 which deals with her response to specific matters raised in other evidence in the plaintiff's case that was served after the date of her first statement. That first statement, I infer, had been in the possession of the plaintiff's legal advisors for some months and it may be a fair inference that it was in response to that first statement that a large number of witnesses statements were obtained from other students taught by Sister Green at various times. Much of that evidence was introduced as permissible tendency evidence under s 97 Evidence Act 1995 (NSW).

4. As I have been discussing with Mr Romaniuk and with Mr Lloyd of Senior Counsel who appears for the third defendant but has been more or less advancing the case for each of the defendants before me, the issue is really how much of Ms Dixon's statement is properly admissible in reply. It is a very detailed statement of some four and one third pages in length dealing with a number of various issues which have been ventilated in the case of each party. But it certainly goes beyond the single incident to which it is said to be evidence in reply.

5. Under s 106 Evidence Act, the credibility rule does not apply to evidence which is relevant to a witness's credibility, and which is adduced other than from the witness on certain grounds being satisfied and if I grant leave. I am not suggesting that this evidence is tendered purely as credibility evidence, although obviously, it would potentially affect the credibility of Sister Green's evidence were the contradicting evidence to be accepted in due course. The evidence is not strictly credibility evidence. It is also relevant because it would tend to, if admitted under s 60 Evidence Act, contradict Sister Green more generally in terms of what she said about the difference between a light whack, and my words, not hers, a proper smack.

6. It seems to me that the evidence which might properly be elicited from Ms Dixon in reply goes to any different account that she would give about the single incident which Sister Green gave evidence of affecting Ms Dixon. It would, I think, extend some way beyond that to the extent to which Ms Dixon can give evidence about other occasions on which she was smacked by Sister Green and the occasions on which she may have seen other children smacked by Sister Green.

7. I must say, having reviewed the statement there are some difficulties of semantics in as much as Ms Dixon uses the word "whack" in a different sense from Sister Green. Allowing for those differences I am prima facie of the view that her evidence in reply should be restricted to those topics and on that basis, I propose to go through the various objections raised by Mr Lloyd and rule accordingly.

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Decision last updated: 23 February 2024