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

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

Leave to withdraw the concession as to vicarious liability was granted because the concession was not accepted or acted upon by the plaintiff, and was based on an erroneous legal principle subsequently overruled by the High Court. Leave was conditioned on the plaintiff being permitted to reopen the case to advance arguments regarding the employment status of Sister Green and the applicability of the non-delegable duty principle.

Parties
Plaintiff: Albert John Hartnett; First Defendant: Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes; Second Defendant: Trustees of the Marist Brothers; Third Defendant: Mercy Support Limited
Jurisdiction
Australia
Judgment Date
10 December 2024
Procedural Posture
Civil / Procedural Ruling on Withdrawal of Concession and Leave to Reopen Case
Outcome
Interlocutory orders made - leave to withdraw concession granted, leave to reopen argument granted, directions for written submissions and consent orders made
Legal Topics
Vicarious Liability, Non Delegable Duty, Withdrawal of Concession, Procedural Rulings
Civil Procedure Vicarious Liability Non Delegable Duty Withdrawal of Concession Procedural Rulings

Case Brief

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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

Procedural Posture

Civil / Procedural Ruling on Withdrawal of Concession and Leave to Reopen Case

Legal Issues

  1. 1 Whether to grant leave to the first defendant to withdraw a concession as to vicarious liability
  2. 2 Whether to permit the plaintiff to reopen argument in light of new High Court authority affecting common law vicarious liability

Ratio Decidendi

Leave to withdraw the concession as to vicarious liability was granted because the concession was not accepted or acted upon by the plaintiff, and was based on an erroneous legal principle subsequently overruled by the High Court. Leave was conditioned on the plaintiff being permitted to reopen the case to advance arguments regarding the employment status of Sister Green and the applicability of the non-delegable duty principle.

Court Disposition

Interlocutory orders made - leave to withdraw concession granted, leave to reopen argument granted, directions for written submissions and consent orders made

Orders

  • Grant leave to the first defendant to withdraw the concession appearing at T1028.1-10 made on 23 February 2024.
  • 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...