HARTNETT v TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF WILCANNIA-FORBES [2024] NSWSC 97

HARTNETT v TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF WILCANNIA-FORBES [2024] NSWSC 97

Paragraph 15 of Ms Fernando's statement was rejected because evidence that Sister Green refused to allow children to go to the bathroom was not identified in the tendency notice and did not significantly tend to prove, either by itself or with the other evidence, that Sister Green inflicted the specific physical treatment alleged by the plaintiff; the asserted tendency to engage in acts of serious physical abuse was expressed at too general a level of abstraction, and the bathroom evidence was greatly dissimilar and of a different order of magnitude from the alleged physical violence, so s 97 of the Evidence Act 1995 (NSW) was not satisfied.

Jurisdiction
Australia
Judgment Date
06 February 2024
Procedural Posture
Common Law Proceeding Claiming Damages for Personal Injuries Arising From Alleged Serious Physical Abuse / Procedural Ruling on Objection to Tendency Evidence During Hearing
Outcome
Paragraph 15 of the witness statement of Ms Sylvia Fernando dated 16 November 2023 was rejected.
Legal Topics
['tendency Evidence' 'tendency Notice' 'significant Probative Value' 'serious Physical Abuse' 'limitation Period']
['evidence' 'limitation' 'personal Injury'] ['tendency Evidence' 'tendency Notice' 'significant Probative Value' 'serious Physical Abuse' 'limitation Period']

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Procedural Posture

Common Law Proceeding Claiming Damages for Personal Injuries Arising From Alleged Serious Physical Abuse / Procedural Ruling on Objection to Tendency Evidence During Hearing

Legal Issues

  1. 1 ["Whether paragraph 15 of Ms Sylvia Fernando's witness statement was within the tendency notice served by the plaintiff." 'Whether evidence that Sister Marietta Green refused to allow children to use the bathroom had significant probative value under s 97 of the Evidence Act 1995 (NSW) to prove the alleged treatment of the plaintiff.' 'Whether the alleged tendency to engage in acts of serious physical abuse towards students was expressed at too general a level of abstraction to prove the facts in issue.']

Ratio Decidendi

Paragraph 15 of Ms Fernando's statement was rejected because evidence that Sister Green refused to allow children to go to the bathroom was not identified in the tendency notice and did not significantly tend to prove, either by itself or with the other evidence, that Sister Green inflicted the specific physical treatment alleged by the plaintiff; the asserted tendency to engage in acts of serious physical abuse was expressed at too general a level of abstraction, and the bathroom evidence was greatly dissimilar and of a different order of magnitude from the alleged physical violence, so s 97 of the Evidence Act 1995 (NSW) was not satisfied.

Court Disposition

Paragraph 15 of the witness statement of Ms Sylvia Fernando dated 16 November 2023 was rejected.

Orders

  • ['Reject paragraph 15 of the witness statement of Ms Sylvia Fernando dated 16 November 2023.']