MTH v State of New South Wales

The Court of Appeal of New South Wales considered an appeal by MTH concerning claims of negligence, vicarious liability, and trespass to the person, including sexual assault, arising from abuse suffered by the appellant while a ward of the State and placed in foster care with the second respondent. The appellant alleged breaches of duty of care by the State, vicarious liability for the conduct of her former foster carers, and breaches of duty by the third respondent. The second respondent had previously been convicted of criminal offences against the appellant.

The central legal issues before the Court of Appeal involved the admissibility and effect of a certificate of conviction under the *Evidence Act 1995* (NSW), particularly ss 91, 92, and 178, in civil proceedings. The court also had to determine whether the primary judge had denied the appellant procedural fairness by misapprehending the effect of these provisions and whether this error compromised the assessment of the appellant's credibility and reliability. Furthermore, the court considered the admissibility of the certificate of conviction as tendency evidence under ss 97, 100, and 135 of the *Evidence Act 1995* (NSW), and whether it possessed significant probative value. The court also had to assess the State's alleged breaches of duty of care, including failing to apply for an adoption order, placing the appellant with the perpetrator, and failing to foster sibling relationships, as well as the third respondent's alleged failure to prevent or report abuse.

The Court of Appeal found that the primary judge had erred in his understanding of the *Evidence Act 1995* (NSW), specifically regarding the admissibility of the certificate of conviction to prove the elements of the offences for which the second respondent was convicted. This misapprehension led to a denial of procedural fairness and compromised the assessment of the appellant's case. The court determined that it was appropriate to resolve the issue of the second respondent's liability to avoid the economic and emotional costs of a re-trial, applying s 75A of the *Supreme Court Act 1970* (NSW).

The appeal was allowed in respect of the judgment in favour of the second respondent, with the judgment in favour of the second defendant being set aside. Judgment was entered for the appellant against the second respondent in the sum of $1,346,000, with the second respondent ordered to pay the appellant's costs of the proceedings below and of the appeal. The appeal was otherwise dismissed, with the appellant ordered to pay the first and third respondents' costs of the appeal. The parties were directed to provide short minutes of order regarding a freezing order.