Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 7) [2025] NSWSC 128
Background
The plaintiff, Mr Albert Hartnett, brought proceedings in the Supreme Court of New South Wales against three institutional defendants:
1. The Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (“Trustees”);
2. The Marist Brothers; and
3. Mercy Support Limited.
Damages Assessment
He alleged that, while a young student enrolled in the Infant Aboriginal class at St Ignatius Parish School in Bourke between 1992 and 1994, he was subjected to “serious physical abuse” at the hands of his teacher, Sister Marietta Green (“Green”), and a liaison officer, Mr Alex Sweeney (“Dixon”). The plaintiff sought compensatory, aggravated and exemplary damages for psychiatric and psychological injury arising from the alleged abuse.1
The plaintiff’s case against the defendants was advanced on multiple bases, including:
a) Negligence through failure to establish safe disciplinary systems,
b) Breach of a non-delegable duty of care, and
c) Vicarious liability for the alleged intentional torts of Sister Green and Mr Dixon.2
The claim was brought pursuant to s 6A of the Limitation Act 1969 (NSW), which removes the limitation period in relation to actions for damages arising from child abuse.3
The Trustees admitted that Dixon was employed under a contract of service but denied such a relationship existed with Sister Green.4
The plaintiff alleged that Sister Green had subjected him to verbal abuse, corporal punishment with a metre-long ruler (named “Montgomery”), ear twisting, prolonged forced standing in the heat, and smacking on the bare buttocks.5 He also alleged that Mr Dixon had retrieved him from truancy by “karate chopping” and kicking him.6 The defendants denied the allegations in full, submitted that any corporal punishment was light and lawful at the time, and contested that any conduct amounted to “serious physical abuse” within the meaning of s 6A.7
The Decision
Justice Campbell dismissed the proceedings on the basis that the plaintiff had not proven, on the balance of probabilities, that the conduct amounted to “serious physical abuse” for the purposes of s 6A of the Limitation Act. As a result, the proceedings were held to be statute-barred.8
His Honour’s reasoning may be summarised as follows:
- Failure to prove serious physical abuse: Although Justice Campbell accepted that some corporal punishment had occurred, he was not satisfied that the conduct met the threshold of “serious physical abuse” required under s 6A(2)(b).9 The term was interpreted to require egregious misconduct, and His Honour concluded that the incidents described did not rise to that level.10
- Application of limitation provisions: As the plaintiff’s cause of action arose between 1992 and 1994 and no extension was sought under the Limitation Act, the only means by which the claim could proceed was if s 6A applied. In the absence of serious physical abuse, that section was not enlivened, and the claim was statute-barred.11
- Credibility and reliability of evidence: While Justice Campbell accepted that the plaintiff gave evidence to the best of his ability, he found it to be unreliable in significant respects.12 These included inconsistencies regarding the frequency and duration of the alleged abuse, the absence of contemporaneous disclosure, and the implausibility of some claims in light of surrounding circumstances and school records.13
- Contingent findings: Although not strictly necessary given the dispositive limitation issue, His Honour made contingent findings in respect of liability and damages. He concluded that, even if the claims were not time-barred, the plaintiff had not established the abuse or its consequences to the requisite standard.14
Implications for You
This judgment will be deeply disappointing to many survivors of institutional abuse. It illustrates the significant evidentiary challenges in historical abuse cases, particularly where the claim is framed around non-sexual physical abuse and must satisfy the statutory threshold of “serious physical abuse” under s 6A of the Limitation Act.
Importantly, the Court emphasised that not all acts of corporal punishment—even if inappropriate or distressing—constitute “abuse” within the meaning of the legislation. The phrase was interpreted to require “egregious misconduct” and a “high degree of misconduct” rather than minor or moderate physical discipline.15 That threshold can be difficult to meet, especially when events occurred decades earlier and memories have faded or records are lacking.
Justice Campbell did not find that the plaintiff fabricated his account. Rather, the evidence was found insufficient to prove the allegations to the standard required in civil proceedings involving serious misconduct.16
For survivors, this case underscores the importance of understanding the current legal thresholds under s 6A, including the need to establish a high level of seriousness where physical (non-sexual) abuse is alleged. It also highlights the continuing significance of contemporaneous records and corroborating witness testimony, even in trauma-informed contexts. However, it should not deter individuals from seeking legal advice, as every case is assessed on its own facts and legal principles.
This decision may be subject to appeal.
1Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 7) [2025] NSWSC 128, [1].
2Ibid [3]–[6].
3Ibid [9], [11].
4Ibid [3(d)].
5Ibid [29].
6Ibid [33].
7Ibid [34]–[36].
8Ibid [12].
9Ibid [12]–[13].
10Ibid [14]–[15].
11Ibid [9], [13].
12Ibid [48].
13Ibid [51]–[61].
14Ibid [27].
15Ibid [14]–[16].
16Ibid [48]–[56].