//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWCA 35
respondent. Appeal dismissed with costs. The respondents' Notice of Contention concerning Martin Haimes' evidence was upheld.
Hartnett appealed after the trial judge found that he had not proved that he suffered serious physical abuse at school in the early 1990s. The Court of Appeal upheld that result. It said the trial judge was best placed to assess the many conflicting witnesses, and the appeal did not show that the findings were glaringly improbable. The Court also found no relevant error in the trial judge's interpretation of the statutory phrase “serious physical abuse”. It rejected the argument that the High Court's decision in AA required a new method for deciding whether historic abuse occurred: delay and memory problems can be considered, but they do not decide the case by themselves. The appeal was dismissed with costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
8 cited instruments linked from this judgment.
2,468 words · generated 08/10/2026
Hartnett appealed from Campbell J's decision in Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 7) [2025] NSWSC 128. His allegations concerned events at St Ignatius Parish School in Bourke between 1992 and 1994, more than 30 years before the trial.
Hartnett alleged that his infants-class teacher, Sister Marietta Green, repeatedly struck him with a one-metre wooden ruler known as “Montgomery”. He also alleged other forms of physical punishment, including being made to stand outside in the sun for prolonged periods. He alleged that Alex “Sweeney” Dixon, a teachers' aide, assaulted him. The claims were facially subject to limitation periods, but Hartnett relied on s 6A of the Limitation Act 1969 (NSW), which removes a limitation period for an action for damages relating to injury resulting from specified forms of child abuse, including “serious physical abuse” ([2]–[5], [36]).
The trial lasted almost three weeks. The primary judge heard from numerous lay witnesses on both sides. He considered that some physical discipline may have occurred, but found that Hartnett had not proved serious physical abuse as alleged. He rejected the allegation about prolonged exposure to the sun and found that Dixon had once smacked Hartnett on the upper right thigh over clothing, but not in the manner alleged ([6]–[15], [60], [101]–[103]).
The appeal raised 13 grounds, grouped around statutory construction and factual findings concerning Green and Dixon. The respondents also challenged the primary judge's acceptance of Martin Haimes' evidence. Haimes described being struck once with a wooden stick by a teacher he identified as Green at a different school in South Australia in the mid-1970s. The Court upheld the Notice of Contention about that evidence: it was not open on the evidence to be satisfied that Green was the person who struck him ([19]–[34]).
After the hearing, the High Court delivered its decision in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2. The parties made supplementary submissions about whether AA changed how courts should assess the foundational fact of abuse in historic institutional-abuse litigation ([111]–[118]). The Court of Appeal dismissed the appeal with costs ([127]–[129]).
The principal reason was the appeal court's limited role when reviewing findings that depend on the assessment of witnesses. Bell CJ emphasised that the primary judge had observed the witnesses in a lengthy trial involving sharply conflicting accounts. A transcript review cannot fully reproduce the context, tone, pauses, demeanour or circumstances in which evidence was given ([62]–[67]). The judgment gives Mr Hines' agitated response in cross-examination as an example of how a transcript may not capture everything apparent to the trial judge ([65]).
The Court did not treat the primary judge's findings as immune from review. It applied the appellate principles in Fox v Percy and Lee v Lee: findings affected by a trial judge's assessment of credibility and reliability attract restraint, and appellate intervention may be warranted where findings are “glaringly improbable” or “contrary to compelling inferences” ([62], [66]). The Court concluded that the appellant had not demonstrated that kind of error ([66], [69], [94]).
The evidentiary record was central. The primary judge had heard the appellant's account and evidence from other former pupils, but also from teachers and teachers' aides who had worked at the school. Some had been present in or near Green's classroom. They denied seeing the alleged pattern of severe or frequent physical abuse. The primary judge assessed those witnesses as people who would have noticed and spoken truthfully about a “reign of terror” had one occurred ([13], [50], [56], [67]). The appeal court accepted that the opposing evidence was direct evidence on the central allegation, not merely a peripheral inconsistency ([125]).
The Court also accepted the primary judge's evaluation of the appellant's evidence. His Honour considered that the account was changeable and had weaknesses affecting its reliability, while also saying that he did not think the appellant had consciously given false evidence. The judge considered the appellant's young age at the time, the passage of time and the effects of traumatic experiences ([8], [11], [63]). The Court held that the resulting conclusion, that serious physical abuse had not been proved, was not glaringly improbable ([69]–[72]).
On statutory construction, the Court rejected the three limbs of ground 4. It did not accept that the primary judge's reasons established a failure to consider the Second Reading Speech. More importantly, the appeal was a rehearing: the issue was whether the construction adopted was wrong and materially affected the result, rather than whether a particular consideration had been addressed in the reasons ([41]–[42]). The primary judge's description of “serious physical abuse” as requiring a high degree of misconduct did not establish error in this appeal. Nor did occasional use of “severe” show a material conflation with “serious”, read in the context of the reasons as a whole ([37], [43]–[45]). Finally, the primary judge expressly said that it was not necessary for the conduct to constitute a crime, contrary to the appellant's contention ([37], [46]).
The Court also rejected the claim that AA prescribed a new fact-finding methodology for historical abuse cases. It considered that actual persuasion remained necessary and that s 140 of the Evidence Act 1995 (NSW) and Briginshaw remained relevant. Imperfect memory, delay and the absence of contemporaneous reports could be considered but were not determinative ([118], [124]–[126]).
The judgment addresses the legal setting before and after the High Court's decision in AA, but it does not purport to give a complete account of the law outside the cited authorities and the issues argued.
Before AA, the primary judge had applied s 6A of the Limitation Act to allegations of historic physical abuse and considered whether the alleged conduct met the statutory description “serious physical abuse”. The Court of Appeal quoted the statutory text. It provides that an action for damages relating to death or personal injury resulting from an act or omission constituting child abuse may be brought at any time and is not subject to a limitation period under that Act. The relevant categories include sexual abuse, serious physical abuse and connected abuse ([3], [36]). The judgment records that “serious physical abuse” was not defined in the Act and was considered in the primary judgment for the first time ([4]).
In the primary judge's interpretation, “serious” required a degree of misconduct beyond the minor or trivial. The required intensity could, in his view, arise either from the injurious potential of a blow or from physical abuse continuing over time. He also said that criminal conduct was not a necessary condition ([37]). On appeal, Bell CJ did not formulate a comprehensive independent definition. The holding was narrower: the appellant had not established that the primary judge's construction was erroneous or that any alleged error materially affected the outcome ([41]–[46]).
As to evidentiary method, the judgment rejects the proposition that removing a limitation period displaces ordinary assessment of proof. Bell CJ referred to GLJ, including its recognition of the continuing importance of Watson v Foxman in describing the fallibility of memory and the way that fallibility ordinarily increases over time ([122]). The judgment also relied on Willmot v Queensland, which it says treated principles and techniques available to trial judges in dealing with evidentiary imbalances as unchanged by the abolition of limitation periods ([123]). In AA, Gordon J stated that imperfect recollection and the absence of a limitation bar did not excuse a claimant from satisfying s 140 and the Briginshaw standard ([118]).
After AA, according to this Court's reading, courts still had to determine whether the evidence reached the required standard, while recognising the trial judge's advantage in evaluating competing witnesses. AA did not establish the special methodology proposed in the appellant's supplementary submissions ([117]–[126]). The decision should therefore be read as rejecting a claimed change in method, not as deciding every possible consequence of AA for institutional liability. The Court said that AA did not affect the Diocese's liability in this appeal because the factual finding of no proved serious physical abuse stood ([114]–[116]).
At [31], Bell CJ concluded that it was not open to find that Green, rather than another teacher, had struck Haimes nearly 50 years earlier. In plain English, the Court considered the identification evidence too uncertain for that specific finding, particularly given Haimes' mistake about who his regular teacher was and the evidence about teaching arrangements.
At [34], the Court said it would be unsafe to assume corporal-punishment practices stayed the same over 20 years or were uniform between States. The point was not that practices necessarily changed, but that the evidence did not justify treating an incident at one school in the 1970s as reliable proof of a tendency relevant to alleged conduct at a different school in the 1990s.
At [41], Bell CJ explained that the appellate inquiry was whether the primary judge adopted an erroneous construction and whether it materially affected the outcome. In plain English, a complaint about not mentioning an extrinsic source was not, by itself, enough to overturn the result.
At [118], Bell CJ said the fact-finder still had to reach “actual persuasion” before finding a fact. That means the Court rejected an approach under which the historical and traumatic nature of the allegations itself would lower or replace the ordinary evidentiary burden. The Court quoted Gordon J in AA on the continuing requirements of s 140 and Briginshaw.
At [126], Bell CJ clarified that the primary judge had not treated delay, memory frailty or missing contemporaneous complaints as decisive. They were matters considered in an overall assessment. The distinction is important: the judgment permits consideration of these evidentiary features but does not say that their presence proves that an allegation is false.
The decision is relevant to appeals challenging credibility-dependent factual findings after a trial involving historic allegations, a substantial lapse of time, conflicting witness accounts and limited contemporaneous documentation. The Court's reasoning is particularly tied to the circumstance that the primary judge heard a large body of oral evidence over almost three weeks and assessed witnesses who gave sharply different accounts ([7], [12]–[13], [62]–[67]).
It also addresses cases where a party relies on a single historic incident at a different institution, separated by a substantial period, as tendency evidence for alleged later conduct. Here, the Court considered that the different school, the approximately 20-year interval and uncertainty about the identity of the person who struck Haimes limited the evidence's probative force ([20], [29]–[34]).
The statutory discussion is relevant to claims relying on s 6A of the NSW Limitation Act where the disputed issue is whether alleged physical punishment meets the statutory description “serious physical abuse”. The decision's outcome depends on the particular allegations and record, including the primary judge's findings about the frequency, nature and reliability of the alleged conduct. The Court did not find that every use of physical discipline falls inside or outside the statutory category ([35]–[46], [51], [58]).
The decision also addresses submissions that AA requires a trauma-informed or otherwise distinct fact-finding methodology. Its response concerns the argument presented in this appeal: it says the fact-finder must still assess all the evidence and reach actual persuasion, while taking account of the circumstances affecting recollection and the trial judge's advantages ([117]–[126]).
The supplied judgment does not report any later court's treatment of Hartnett. Its decision date is 24 March 2026, and no post-Hartnett cases are included in the material provided. It would therefore be unsupported to say whether later courts have followed, distinguished or limited it.
The judgment itself discusses authorities that pre-date it. It applies or discusses appellate review principles from Fox v Percy, Lee v Lee and Mt Pleasant Stud Farm Pty Ltd v McCormick ([62]–[67]). It considers AA directly and rejects the appellant's submission that it prescribed a new fact-finding methodology ([111]–[126]). It also explains that Longman, Watson v Foxman and Gestmin continue to identify difficulties with historical recollection, rather than imposing a rule that memories must be rejected or that documentary evidence must displace oral evidence ([68], [120]–[123]).
The judgment records that the reasoning in Gestmin had been cited in numerous Australian decisions, including Davey v Want, Engadine Medical Imaging Services Pty Ltd v Ibrahim, Warne, Qube Logistics, Schrader, Moubarak, Nominal Defendant v Cordin and Liberty Mutual ([121]). That list describes treatment of Gestmin, not later treatment of Hartnett. The distinction matters when using the judgment in research: its citations cannot establish how the judgment itself has subsequently been applied.
The decision did not settle a comprehensive definition of “serious physical abuse”. It upheld the primary judge's construction against the particular errors alleged, but the appeal reasons do not provide an exhaustive test for all factual circumstances under s 6A ([35]–[46]). The judgment notes the Second Reading Speech's statement that a series of relatively minor episodes may become serious over time, while also recording that the primary judge's reasoning addressed duration and injurious potential ([37], [39]–[42]). How those considerations apply to other combinations of conduct remains dependent on the statutory context and facts.
The appeal did not decide the Diocese's liability after AA. The respondents accepted that the primary judge's contingent finding that the non-delegable duty did not extend to intentional criminal acts could not stand following AA. But because the Court upheld the finding that serious physical abuse was not proved, it said AA did not affect the Diocese's liability in this appeal ([114]–[116]). The judgment therefore leaves that liability issue outside the operative decision.
Nor did the Court decide how every historical abuse case should address trauma, memory or delayed reporting. It rejected the proposition that AA prescribed the methodology advanced in the supplementary submissions, but expressly treated the matters of delay, memory and missing contemporaneous complaints as relevant and non-determinative ([118], [126]). The reasons do not establish a general rule about the weight that should be given to any one of those matters in a different evidentiary record.
Finally, the judgment's appellate-deference reasoning is closely tied to the record before it: a lengthy trial, many witnesses, significant credibility disputes and sparse contemporaneous evidence. The reasons explain why transcript review was inadequate to displace the primary judge's assessments in this case ([62]–[67], [126]). The supplied text does not determine how the same principles would apply where the trial judge's findings were not credibility-dependent, where the evidence was materially different, or where an alleged error concerned a discrete matter capable of reliable review from the record.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes [2026] NSWCA 35
Hearing dates: 27 October 2025; further written submissions received on 23 February 2026 and 3 March 2026.
Date of orders: 24 March 2026
Decision date: 24 March 2026
Before: Bell CJ at [1];
Kirk JA at [128];
Ball JA at [129].
Decision: Appeal dismissed with costs.
Catchwords: APPEALS – from findings of fact – appellate deference – forensic advantages of primary judge – limitations of transcript evidence especially where credit in issue – principles in Briginshaw v Briginshaw – large conflicting bodies of evidence – three week trial – credibility and reliability of witnesses – character evidence – tendency evidence 20 years before alleged abuse – imperfections of human memory – witnesses recalling events from 30 years ago – witnesses of a young age at time of events – effect of traumatic incidents on recollection
APPEALS – from findings of fact – fact finding methodology in institutional abuse cases – effect of High Court’s decision in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle – observations in Longman, Watson v Foxman and Gestmin SGPS S.A. v Credit Suisse (UK) Limited remain valid after AA – requirement for “actual persuasion” by trier of fact
LIMITATION OF ACTIONS – personal injury – alleged historic child abuse – legislative removal of limitation periods – construction of “serious physical abuse” under s 6A(2)(b) Limitation Act 1969 (NSW) – alleged abuse by teacher and teachers’ aide over 30 years ago in infants school – use of wooden ruler to discipline students – forced to stand in sun for long periods – large conflicting bodies of evidence – evidence of fellow students and teachers – absence of complaints formally recorded prior to proceedings – limitations in evidence of Appellant – “serious physical abuse” not made out
Legislation Cited: Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW) ss 55, 140
Limitation Act 1969 (NSW) s 6A
Cases Cited: AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2
Automotive Invest Pty Ltd v Commissioner of Taxation (2024) 98 ALJR 1245; [2024] HCA 36
Briginshaw v Briginshaw (1938) 60 CLR 336;
[1938] HCA 34
Davey v Want [2026] NSWCA 12
Engadine Medical Imaging Services Pty Ltd v Ibrahim [2025] NSWCA 269
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm)
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32
J and E Vella Pty Ltd v Hobson [2023] NSWCA 234
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Liberty Mutual Insurance Company Australian Branch (t/as Liberty Specialty Markets) v Icon Co (NSW) Pty Ltd (2021) 396 ALR 193; [2021] FCAFC 126
Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60
Moubarak v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191
New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
Nominal Defendant v Cordin (2017) 79 MVR 210; [2017] NSWCA 6
Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FCAFC 73
Schrader v Broach [2024] NSWCA 14
St Paul’s College Ltd v Allan [2026] NSWCA 22
TKWJ v R (2002) 212 CLR 124; [2002] HCA 46
Vagg v McPhee [2013] NSWCA 29
Warne v ACN 603 541 411 Pty Ltd (t/as Chandlers International Lawyers) [2025] NSWCA 57
Watson v Foxman (1995) 49 NSWLR 315
Willmot v Queensland (2024) 98 ALJR 1407; [2024] HCA 42
Category: Principal judgment
Parties: Albert John Hartnett (Appellant)
Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (First Respondent)
Trustees of the Marist Brothers (Second Respondent)
Mercy Support Limited (Third Respondent)
Representation: Counsel:
B W Walker SC, E Romaniuk SC, J Masur and R Haidary (Appellant)
M Robinson (First Respondent)
D Lloyd SC and D Stretton (Third Respondent)
Solicitors:
North Star Law (Appellant)
Dentons Australia Limited (First Respondent)
Carroll & O’Dea Lawyers (Second Respondent)
Mills Oakley (Third Respondent)
File Number(s): 2025/99362
Publication restriction: N/A
[This headnote is not to be read as part of the judgment]
Albert John Hartnett (the Appellant) alleged that he was physically abused at St Ignatius Parish School, Bourke (St Ignatius School) from 1992 to 1994 by Sister Marietta Green (Sister Green), his Infant Aboriginal Class teacher, using her one-meter wooden ruler, and by making him stand outside under the sun in high temperatures for prolonged periods of time. He also alleged that he was physically abused by Mr Alex Dixon (or “Sweeney”), a teachers’ aide at St Ignatius School.
The claims were statute barred on their face by the operation of the Limitation Act 1969 (NSW) (the Limitation Act). However, the Appellant relied on s 6A of the Limitation Act, which provides that an action for damages that relates to the personal injury of a person resulting from an act or omission that constitutes “child abuse” of the person may be brought at any time and is not subject to any limitation period under the act. The relevant definition of “child abuse” in s 6A(2)(b) and (c) of the Limitation Act is “serious physical abuse” perpetrated against someone under the age of 18, or “connected abuse”. “Serious physical abuse” is not defined in the Limitation Act, and its meaning was considered for the first time in the primary judgment.
The trial lasted for three weeks, and the primary judge heard evidence from a large number of lay witnesses on both sides of the record. Ultimately, the primary judge rejected the allegation that the Appellant was made to stand out in the sun for prolonged periods of time and, even assuming there was “a degree of physical punishment by Sister Green and Mr Dixon by way of discipline”, his Honour concluded that the Appellant had not proved on the balance of probabilities that he had suffered “serious physical abuse” as alleged.
The primary judge accepted the Respondents’ detailed attack on the veracity, accuracy and reliability of the Appellant’s evidence, observing numerous weaknesses including its changeability, the absence of contemporaneous complaint by the Appellant of the alleged abuse, and the long effluxion of time since the alleged abuse which occurred during the Appellant’s “comparatively tender years”.
The Appellant called a range of lay witnesses including fellow classmates at St Ignatius School to establish the alleged tendency of Sister Green to strike students with a ruler, and of Mr Dixon to engage in serious physical abuse of students. However, the primary judge observed that the “reign of terror” at St Ignatius School painted by the Appellant’s witnesses was unlikely to be accurate in light of the evidence of Sister Green’s colleagues, including teachers and teachers’ aides, none of whom gave any evidence of Sister Green disciplining children by striking them.
One of the witnesses called by the Appellant was Mr Martin Haimes, who was taught by Sister Green in the mid-1970s at St Scholastica’s College, Mount Barker, South Australia. Mr Haimes gave evidence, the “accuracy” of which was accepted by the primary judge, that Sister Green once hit him on the fingers with a wooden stick, and that he observed her hitting other students. The primary judge did, however, observe “obvious deficiencies” in Mr Haimes’ evidence, including that he wrongly recalled that Sister Green was his substitute teacher in year 2 when the evidence indicated that she was his usual (as opposed to substitute) teacher that year.
The primary judge’s acceptance of the “accuracy” of Mr Haimes’ evidence was challenged by the Respondents’ Notice of Contention. The Appellant raised 13 grounds of appeal in relation to the primary judge’s factual findings and his Honour’s construction of s 6A of the Limitation Act.
Following the hearing and with leave of the Court, both parties made supplementary submissions about the effect of the High Court’s decision in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 (AA).
The Court (Bell CJ, Kirk JA and Ball JA agreeing) held, dismissing the appeal:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, applied.
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Davey v Want [2026] NSWCA 12; Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191; Lee v Lee (2019) 266 CLR 129; [2019] HCA 28; J and E Vella Pty Ltd v Hobson [2023] NSWCA 234; Vagg v McPhee [2013] NSWCA 29; Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60; Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm); Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; TKWJ v R (2002) 212 CLR 124; [2002] HCA 46, applied.
AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2, considered.
St Paul’s College Ltd v Allan [2026] NSWCA 22; Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32; Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm); Davey v Want [2026] NSWCA 12; Engadine Medical Imaging Services Pty Ltd v Ibrahim [2025] NSWCA 269; Warne v ACN 603 541 411 Pty Ltd (t/as Chandlers International Lawyers) [2025] NSWCA 57; Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FCAFC 73; Schrader v Broach [2024] NSWCA 14; Moubarak v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102; Nominal Defendant v Cordin (2017) 79 MVR 210; [2017] NSWCA 6; Liberty Mutual Insurance Company Australian Branch (t/as Liberty Specialty Markets) v Icon Co (NSW) Pty Ltd (2021) 396 ALR 193; [2021] FCAFC 126; Longman v The Queen (1989) 168 CLR 79; [1989] HCA 60; Watson v Foxman (1995) 49 NSWLR 315; Willmot v Queensland (2024) 98 ALJR 1407; [2024] HCA 42; Automotive Invest Pty Ltd v Commissioner of Taxation (2024) 98 ALJR 1245; [2024] HCA 36; Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, cited.
BELL CJ: This is an appeal from a decision of Campbell J (the primary judge): Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (No 7) [2025] NSWSC 128 (PJ or the primary judgment).
The alleged conduct before the primary judge related to events at Bourke from 1992 to 1994, more than 30 years ago. The core allegations raised by Mr John Albert Hartnett (the Appellant) were that, at St Ignatius Parish School, Bourke (St Ignatius School):
Sister Marietta Green (S****ister Green), the Appellant’s Infant Aboriginal Class teacher, inflicted repeated assaults and batteries using her one-metre wooden ruler referred to as “Montgomery”; and
Mr Alex Dixon, also known as “Sweeney”, a teachers’ aide at St Ignatius School, also assaulted the Appellant.
Although on their face statute barred by the operation of the Limitation Act 1969 (NSW) (Limitation Act), the amendments introduced by s 6A of that Act relevantly provided that an action for damages that relates to the personal injury to a person resulting from an act or omission that constitutes “child abuse” of the person may be brought at any time and is not subject to any limitation period under that Act. Relevantly for present purposes, “child abuse” is defined in s 6A(2)(b) and (c) as “serious physical abuse” perpetrated against a person when under 18 years of age and “any other abuse (connected abuse) perpetrated in connection with … serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the … serious physical abuse).”
“Serious physical abuse” is not defined in the Limitation Act and its meaning was considered for the first time in the primary judgment.
The key issues at trial were whether the alleged abuse occurred (the Factual Issue****s) and whether such abuse satisfied the definition of “serious physical abuse” for the purposes of s 6A (the Construction Issue).
In relation to the Factual Issues, although the primary judge appeared to accept that the Appellant was “subjected to a degree of physical punishment by Sister Green and Mr Dixon by way of discipline” (although at PJ [215], the primary judge appears to qualify this proposition as an assumption), his Honour concluded that the Appellant had not proved on the balance of probabilities that he suffered “serious physical abuse” as alleged: PJ [12].
“There are virtually no objectively established facts of any significance. One is really left with the witness testimony of 30 lay witnesses who have been asked to cast their mind back 30 years to say what they can now remember of events not previously called into question or requiring examination. In sifting through this unruly body of evidence, I have attempted to assess it in accordance with my appreciation of the ‘apparent logic of events’.”
“Making every allowance for possible cultural differences, the plaintiff’s evidence has its problems. No clear, consistent picture of the allegations of abuse he claimed to have been subject to emerged. His evidence was very changeable.”
His Honour also accepted at PJ [196] the detailed attack made on the veracity, accuracy and reliability of the Appellant’s evidence, including his written evidence rehearsed in the primary judgment at [52].
One of the particulars of the alleged physical abuse was that “on occasions, Sister Green made the Appellant stand outside under the sun in high temperatures for a prolonged period of time.” The primary judge rejected this evidence as “not accurate” (at PJ [200]) and the Appellant retreated from his evidence in chief significantly in this regard: see [57] below.
Another particular of the alleged abuse, which related to sexual abuse, was as follows:
“Sexual abuse: including taking the Plaintiff into a separate room, pulling down his pants and smacking his naked bottom with a long ruler. On two occasions, Sister Green pulled the Plaintiff’s pants down and pulled his penis causing him pain.”
“Regrettably, the plaintiff has experienced what is referred to in the criminal law as profound childhood deprivation: Bugmy v the Queen (2012) 249 CLR 571; [2013] HCA 37 at [44]. This circumstance brought him into frequent contact with the criminal justice system as a juvenile (commencing at age eleven) and a young man. The cross-examination in relation to some of these matters have been summarised. The only remotely contemporaneous documents available dealing with matters relevant to the plaintiff’s mental health are documents prepared for the purposes of the criminal justice or custodial systems. There were six such documents utilised in cross-examination. They are dated February 2001 (T. 67.43; T. 68.43); November 2008 (T. 69.50–70.15); October 2010 (T. 70.32); November 2012 (T. 71.21–72.14); August 2019 (T. 72.30) and September 2019 (T. 73.10). The plaintiff does not mention any physical abuse at St Ignatius to any of the persons interviewing him for the purposes of the preparation of these reports. He makes frequent mention of the murder of his aunt, the drowning of his cousin and the death of close friends in the motor vehicle accident. This leaves me with serious unresolved questions about the accuracy and therefore the reliability of his account.” (emphasis added)
This paragraph was an acceptance of the criticism summarised in PJ [55]. Indeed, in that paragraph, apart from setting out the criticism made, the primary judge interpolated his lack of persuasion in respect of the Appellant’s explanation as to why he did not refer to any abuse at school to any of the parole officers, psychologists and psychiatrists he was interviewed by between 2001 and 2019, namely that he “didn’t think they’d need to know about school”. His Honour said:
“I am not persuaded by the plaintiff’s evidence in this respect. His explanation for the omission is inconsistent with his earlier oral evidence that one of the experts had asked him about the things that had happened to him when he was little (T72.48-50). The complete absence of any reference to the alleged abuse in contemporaneous records despite his claim of the profound and lifelong impact it has had on him casts significant doubt on the reliability of his account.”
“If one was to take all of the plaintiff’s evidence together frankly, the sum of the evidence would suggest that Sister Green was conducting something in the nature of a reign of terror on infant Aboriginal school-children at St Ignatius. I do not mean to be facetious but cannot accept that as accurate. I cannot accept that as accurate partly because of the equally numerous cohort of competing evidence called upon on the defendant’s side of the record who deny the accuracy of the picture painted by the plaintiff’s body of evidence.”
“had there been daily or even more frequent punishments of children by striking them with Montgomery in the classroom, I am satisfied they [the teachers’ aides] would have noticed, and from my impression of them, so far as that helps, would have told the truth about it. The absence of any member of staff at St Ignatius giving any evidence at all of Sister Green disciplining children by striking them with Montgomery or another implement is a significant consideration bearing in mind where the onus of proof lies.”
One of the witnesses called on behalf of the Appellant was Mr Martin Haimes who was taught by Sister Green in the mid-1970s at St Scholastica’s College, Mount Barker, South Australia. He was thus giving tendency evidence 50 years after the events about which he gave evidence, and 20 years before the events the subject of the Appellant’s allegations. The primary judge’s finding “accepting” his evidence (see PJ [197]) is the subject of challenge by the Notice of Contention.
The primary judge further found that, while Mr Dixon (Sweeney) did, by his own admission, smack the Appellant once on his upper right thigh over his clothing, he did not do so in the manner alleged, nor did any misconduct amount to “serious physical abuse”, and so the claim against him failed by virtue of the Limitation Act: PJ [217]. His Honour also concluded that the Appellant had “not proved misconduct by Sweeney that in any way amounts to serious physical abuse” and that [the] claim against him must therefore fail “by virtue of the provisions of the Limitation Act 1969”: PJ [217]. The primary judge was influenced by the fact that none of the pleaded allegations against Mr Dixon “found their way into the plaintiff’s witness statement”: PJ [205]. His Honour observed, not unreasonably, that “[t]his may have been an oversight, but it does affect the weight I feel I can give to the evidence”.
In relation to the Construction Issue, the primary judge held that any physical punishment effected by Sister Green and Mr Dixon did not fall within the statutory definition of “serious physical abuse” for the purpose of s 6A of the Limitation Act, and was therefore time-barred: PJ [12], [216]. His Honour’s interpretation of the phrase “serious physical abuse” is the subject of appeal ground 4.
Finally, the primary judge contingently assessed damages at $180,500, including: general damages ($135,000); interest ($40,500); and future out-of-pocket expenses ($5,000): PJ [246].
By notice of appeal filed 27 May 2025, the Appellant raised 13 grounds of appeal which can be grouped into challenges against the primary judge’s:
construction of the expression “serious physical abuse” for the purpose of s 6A of the Limitation Act (ground 4);
factual findings in relation to Sister Green’s alleged assault and battery of the Appellant (grounds 1-3, 5-9); and
factual findings in relation to Mr Dixon’s alleged assault and battery of the Appellant (grounds 10 to 13).
The Respondents, pursuant to leave granted in the course of the hearing of the appeal, filed a Notice of Contention in the following terms:
“The trial judge erred at J [197] … by accepting, in the face of ‘obvious deficiencies in his memory’, the evidence of Martin Haimes that Sister Green struck him and other students with an implement at St Scholastica's Primary School in Mount Barker, South Australia, in 1975. That evidence ought to have been rejected because:
a. Mr Haimes was demonstrably mistaken as to who his class teacher was.
b. His account was inconsistent with unchallenged evidence from Sister Green regarding the relevant teaching arrangements.
c. It was not open, on the evidence, to conclude that the person who struck him was Sister Green rather than another teacher.”
It is convenient first to deal with Mr Haimes’ evidence as it is relied upon in appeal grounds 6, 7c and 8a as well as being the focal point of the Notice of Contention. The Appellant placed particular reliance on Mr Haimes’ evidence and the fact that he had no connection to the Appellant or St Ignatius School. As already explained, Mr Haimes was taught by Sister Green in the mid-1970s at St Scholastica's College, Mount Barker, South Australia.
Appeal Ground 6 was in the following terms:
“The trial judge erred by accepting the evidence of Sister Green that she never used an implement to administer physical discipline (assault) to any student throughout the entirety of her teaching career, in circumstances where:
a. Mr Martin Haimes gave evidence that he received physical discipline (assault) by Sister Marietta Green when a student in her class in South Australia in 1976; and
b. The trial judge accepted Mr Martin Haimes’ evidence as accurate; and
c. Mr Martin Haimes’ evidence was adduced to establish Sister Marietta Green's tendency to use implements to administer physical discipline (assault) to her students, including the Appellant.”
Appeal Ground 7c was that “the trial judge erred by failing to make findings, and give reasons, for the trial judge’s decision to reject the Appellant's witnesses, in circumstance[s] where… [t]he trial judge failed to explain why the Appellant’s witnesses adduced for a tendency purpose were not accepted for the asserted tendency”.
Appeal Ground 8a was that “the trial judge erred by accepting the evidence of Sister Marietta Green, in circumstances where… [t]he trial judge’s acceptance of Mr Martin Haimes’ evidence that Sister Marietta Green hit him (assaulted) with an implement when he was a student in South Australia in 1976 incontrovertibly contradicted Sister Marietta Green’s evidence denying ever using an implement to administer physical discipline (assault) to any student over the course of her entire teaching career.”
The importance placed on Mr Haimes’ evidence by the Appellant warrants it being set out in full. His signed witness statement was in the following terms:
“1. My full name is Martin Gregory Haimes.
- I was born on 19 September 1968 in South Australia. I am 55 years of age.
- I am married and have two school age children.
- I saw a Facebook notice calling for information from former students of St Scholastica’s Primary School in Mount Barker and I came forward to provide this Statement.
- I went to St Scholastica’s Primary School in Mount Barker (‘St Scholastica’) from grade 1 to 6.
- When I was in grade 1 or 2, our teacher was Sister Claire, but we were also taught by Sister Marietta when Sister Claire was absent. I don't remember exactly how long Sister Marietta taught us for. I think she was usually teaching older children but was only substituting in our class for Sister Claire.
- Sister Marietta was bad. She was cruel. Me and my classmates were terrified of her. When she first came to teach us, she brought a wooden stick with her and put it up in the front, near the blackboard. The stick was about a foot long and made of hard wood and about 1 cm in diameter. It was of light timber colour. She told us if we don't behave, she will punish us with this stick. I don't remember what exact words she used but we quickly understood what she meant.
- On one occasion, Sister Marietta hit me with this stick. It was a big shock to me as I was never hit before. She said ‘it hurts more on the fingers’ and she was right. She told me to turn my hands over (palms down) and she hit me on my fingers. I don't remember what she was punishing me for. After she hit me, I was in a lot of pain. I don't remember what happened immediately after.
- Sister Marietta was my very first experience in life in meeting a nasty, bad person. That’s why all these years later I remember her. I remember her as a nasty, scary and hollow person. I have children of my own now and it is hard to believe that anyone could hit a small child of 6 or 7 years of age with a wooden stick.
- I only copped it once from Sister Marietta, but I saw her hitting my classmates often for minor things such as talking or something small like that.
- Our usual teacher, Sister Claire, was nice. She did not hit us.”
“His recollection was that he had Sister Green as a substitute teacher in the absence of his usual infants’ teacher, Sister Claire (T323.30). However, the school photograph (Exhibit CB 78; T322.25) seems to clearly depict Sister Green as his class teacher. Under cross-examination, he maintained that Sister Claire was his usual infants’ teacher and denied that she taught him in Years 3 and 4 (T326.25 – T326.40). I am of the view that he is likely to be mistaken in that detail.”
This conclusion was consistent with Sister Green’s evidence that Sister Claire taught years 3 and 4 (a composite class) and that Sister Green was always an infants teacher who taught reception and years 1 and 2 (also a composite class), and never taught years 3 and 4. Sister Green also gave unchallenged evidence that she did not recall either teaching Sister Claire’s class or primary students being sent to her, they being in a separate building from the infants class.
At PJ [197], the primary judge expressed satisfaction that Mr Haimes’ evidence “was accurate” but added that “his evidence really fell a long way short of providing support for the ‘reign of terror’ described by the witnesses at St Ignatius”. His Honour was also “not persuaded that what [Mr Haimes] described offended the standards of those times”.
In submissions, Mr Walker SC, who appeared for the Appellant, submitted albeit faintly that this last statement by the primary judge was a reference to the times of the conduct complained of by the Appellant, namely in the early 1990s at St Ignatius School. I would reject that submission. When the primary judge referred to “those times”, he must have been referring to the times Mr Haimes was describing in his evidence, namely the mid-1970s. That was significant in the primary judge rejecting the forensic significance for tendency purposes of Mr Haimes’ evidence, even accepting, as his Honour did, the accuracy of Mr Haimes’ recollection of having once been struck with a foot-long wooden stick on the fingers by Sister Green in the mid-1970s when Mr Haimes was in second class.
Returning to the primary judge’s acceptance of the “accuracy” of Mr Haimes’ account, that conclusion was squarely challenged by the Notice of Contention and in submissions advanced by Mr Lloyd SC for the Respondents. The Respondents’ first point was to place emphasis on the fact that “Mr Haimes was demonstrably mistaken as to who his class teacher was.” This was in essence consistent with the primary judge’s conclusion at PJ [93] that Mr Haimes “is likely to be mistaken in that detail”. The Respondents’ point was not only that Mr Haimes was mistaken but, perhaps more importantly, that the identity of his permanent teacher in Year 2 was no mere point of “detail”. This was because Mr Haimes’ strong recollection was that it was not his permanent teacher but another teacher in the school from more senior years who substituted for his permanent teacher and who applied the stick to his fingers. Whoever that may have been, on the primary judge’s findings, it was not Sister Green whom his Honour held, supported by photographic evidence, was Mr Haimes’ permanent year 2 teacher (that is, the teacher of the composite years 1 and 2 class when Mr Haimes was in year 2). This was also supported by Sister Green’s unchallenged evidence that she only taught years 1 and 2.
Mr Haimes’ mistake as to the basal fact as to the identity of his permanent teacher in year 2 was despite him being adamant under cross examination that it was Sister Claire and not Sister Green. If he was mistaken as to the identity of his permanent teacher, but confident that the teacher who he recalled administering the stick to him on one occasion in year 2 almost 50 years beforehand was not his permanent teacher (Sister Green) but a substitute teacher, the quality of his strong recollection was not only problematic but mistaken in a critical regard. Sister Green also gave unchallenged evidence that she did not substitute for Sister Claire since she had her own class to teach: see [26] above.
“a. the trial judge did not have regard to the Second Reading Speech;
b. the trial judge conflated the notion of ‘serious physical abuse’ with ‘severe physical abuse’; and
c. the trial judge held that only conduct amounting to criminal conduct could satisfy the statutory notion of ‘serious physical abuse’.”
“6A No limitation period for child abuse actions
(1) An action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person may be brought at any time and is not subject to any limitation period under this Act despite any other provision of this Act.
(2) In this section, child abuse means any of the following perpetrated against a person when the person is under 18 years of age—
(a) sexual abuse,
(b) serious physical abuse,
(c) any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse).
(3) To remove doubt, connected abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with which it is perpetrated are perpetrated when the person is under 18 years of age.
(4) This section applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise.
(5) This section extends to the following causes of action—
(a) a cause of action that arises under the Compensation to Relatives Act 1897,
(b) a cause of action that survives on the death of a person for the benefit of the person’s estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944.
(6) This section does not limit—
(a) any inherent jurisdiction, implied jurisdiction or statutory jurisdiction of a court, or
(b) any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.
Note—For example, this section does not limit a court’s power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.”
“To ascertain its meaning, the expression must be considered as a whole, but the co-location of ‘serious’ and ‘abuse’ bespeak a high degree of misconduct. Moreover, by the use of the word ‘physical’, the misconduct must consist of the infliction of injury to the person of the child concerned, other than of a sexual nature, without lawful justification. The juxtapositioning of ‘sexual abuse’ and ‘serious physical abuse’ in the definition strongly suggests one does not include the other although ordinary speech might admit of a significant overlap. Not every assault or battery properly so called would suffice. It must be ‘serious’ signifying an intensity well beyond what is minor or trivial. The requisite intensity can be supplied by either the severity in terms of injurious potential of a blow struck or by the period of time over which there has been ongoing physical abuse of the child. Abuse may cut both ways. It may consist of abuse of lawful authority over the child; or abuse of the child directly in the sense of ill treatment of the child by injurious misconduct towards the person of the child. As with all factual inquiries, questions of degree are doubtless involved.
The purpose of the provision is to lift or remove the statutory bar otherwise applicable to an action for damages for death or personal injury, that is to say, civil liability. For this reason, it is not necessary to consider whether misconduct said to constitute the serious physical abuse in a given case constitutes a crime, although experience suggests that it very frequently will.” (emphasis added).
The Appellant’s criticisms under appeal ground 4 were in fact very narrow and, for the following reasons, I would reject them.
First, in ground 4a, the Appellant contended that the primary judge erred by failing to have regard to the extrinsic materials referred to by the Appellant at first instance – most notably the Second Reading Speech relating to the introduction of s 6A of the Limitation Act. The Second Reading Speech relevantly stated that the “term ‘child abuse’ should be interpreted in a beneficial manner”, and that:
“‘Serious physical abuse’ should capture non-accidental physical contact with a child that could cause injury. It may consist of a series of relatively minor episodes over a period that cause the conduct to become serious, as well as serious, one-off conduct.
The bill is not intended to capture conduct that on its own would not amount to ‘serious physical abuse’, such as a one-off physical altercation between two minors, the reasonable restraint of a violent child, reasonable corporal punishment where a defence of lawful chastisement was available at law at the time of the incident…”
The Appellant contended that the primary judge’s construction of “serious physical abuse” at PJ [15] as requiring a “high degree of misconduct” was contrary to parliamentary intention, as evidenced in the Second Reading Speech. That asserted failure to advert to the Second Reading Speech in his Honour’s written reasons was contended to be especially unorthodox given that there had been no authority which had construed s 6A of the Limitation Act in the context of “serious physical abuse”.
The premise of ground 4a, namely that in any case or on any question of statutory construction, regard must be had to the second reading speech such that any failure to do so constitutes appellable error, should not be accepted. The appeal ground itself is somewhat misdirected. This Court is undertaking an appeal by way of rehearing, not judicial review examining whether some mandatory relevant consideration has been considered. Whether or not the primary judge was obliged to consider the Second Reading Speech, the issue in question in this Court is whether some construction adopted by his Honour was in error and, if so, whether that had any material effect on the outcome. A failure to consider extrinsic materials might explain how or why a judge fell into error in adopting a particular construction but that would only be of historical interest. Here, the primary judge closely hewed to the statutory text in considering the issues before him. The Appellant has not established that his Honour adopted any erroneous construction.
But beyond this answer to the ground of appeal, it is by no means clear that the primary judge did not have regard to the Second Reading Speech in considering s 6A of the Limitation Act. The Second Reading Speech was referred to at PJ [190] where the primary judge correctly located the origin of s 6A as a response to recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. Reference was made to the Second Reading Speech in the Appellant’s submissions at first instance and, at PJ [15], extracted above, the italicised sentence directly reflects the language of the Second Reading Speech as referred to in the Appellant’s submissions at first instance, namely that serious physical abuse “may consist of a series of relatively minor injuries over a period that cause the conduct to become serious, as well as serious one-off conduct”. The primary judge’s observation at PJ [14], moreover, that the “words are to be understood as having their ordinary meaning in their statutory context” also directly reflects the Attorney General’s statement that “the bill requires courts to determine whether or not abuse has occurred having regard to the circumstances of each individual case and the ordinary meaning of the terms”.
The second aspect of the Appellant’s challenge to the primary judge’s construction of s 6A of the Limitation Act drew attention to what was said to be the conflation of the notion of “serious physical abuse” with “severe physical abuse”. The primary judge used the expression “severe physical abuse” twice in what were lengthy reasons for judgment. The first was at PJ [215] where his Honour said:
“Were I to assume that, from time to time, Sister Green found it necessary to administer to the plaintiff the type of smack I have found she administered to other pupils under her care, I would regard it as no more than lawful chastisement, being both moderate and reasonable and for a proper purpose. This being so, I repeat, I am not satisfied that the plaintiff has established severe physical abuse at the hands of Sister Green.”
The expression “severe physical abuse” as used in this passage reflects the case that had been argued by the Appellant, namely that Sister Green “hit, punished and tortured” him daily. Viewed in this context, I would not read it as involving any conflation by the primary judge of the language of the statute and the notion of severe physical abuse.
The second instance of the primary judge using the expression “severe physical abuse” was at PJ [224]. In circumstances where the primary judge had dealt extensively with questions of statutory interpretation in the reasons for judgment and had used the expression “serious physical abuse” no less than 44 times in those reasons, the reference to “severe physical abuse” at PJ [224] must be regarded as a slip in language, as I understood Mr Walker SC in effect to concede in the following exchange:
“WALKER: We draw to attention to what might, I stress might, represent a slip or misdirection by his Honour in paras 132 and following of our submissions. I don’t want to suggest that our case depends in any real sense on--
BELL CJ: That’s the severe, the reference to severe.
WALKER: Yes, a conflation of severe and serious. I would myself suggest that in an appropriate case severity will be a very good quality to consider, it won't be exhaustive, with respect to seriousness. After all, severe is perhaps a subset of circumstances which might be regarded as serious in the context of abuse. Nonetheless, this is not just a question of severity at all. It’s the overall notion of seriousness which required to be attended to by his Honour.”
“(a) Verbal abuse, including calling him a ‘little bastard’;
(b) Physical abuse including:
i. hitting him along his back, bottom, legs and hands with a long wooden ruler.
ii. on one occasion, Sister Green struck the Plaintiff across the back with a ruler with such force that it broke.
iii. on occasions, Sister Green grabbed the Plaintiff by the ears, twisted his ears and dragged him.
iv. on occasions, Sister Green made the Plaintiff stand outside [in a chalk circle] under the sun in high temperatures for a prolonged period of time.
v. taking the plaintiff into a separate room, pulling down his pants unintentionally catching his penis on one occasion, and smacking his naked bottom with a long ruler.”
In his witness statement, the Appellant said that Sister Green would hit him on his hands, back and bottom with a ruler “every day” and punished him “every day”. Other witnesses called in the Appellant’s case also suggested that Sister Green beat them and other children, with some claiming such abuse occurred on a daily or nearly daily basis. These included Janine Monaghan, Catrina Dixon, Charles Edwards, Pagan Burford, Lesley Leonard and Terence Hines. It was their collective accounts which led the primary judge to characterise the Appellant’s case as involving Sister Green in a reign of terror: see PJ [192], extracted at [12] above.
The primary judge considered each of the witness’ evidence; had observed them giving evidence and indeed, in some cases, expressly made reference to their body language or expression in assessing their evidence: e.g. Mr Hines at PJ [123]; Ms Marcia Dixon at PJ [107]. In Mr Hines’ case, his Honour also concluded that it was difficult to accept his evidence as an accurate account and noted that, when questioned by a Justice Health psychologist in 2008 about physical and emotional abuse he’d suffered as a child, he said nothing of what he later claimed happened to him at St Ignatius School: PJ [125]-[126].
The accounts advanced in support of the Appellant were contested in a detailed fashion by a large number of witnesses who had worked at St Ignatius School at the time Sister Green taught the Appellant. A number of those witnesses worked in the very same classroom as Sister Green as teachers’ aides where much of the abuse was alleged to have taken place. They gave evidence that they did not witness the extreme conduct of the kind alleged by the Appellant and the witnesses called on his behalf and which was submitted to constitute “serious physical abuse”. They gave evidence that such conduct would have been out of character for Sister Green. While there was some inconsistency between some of this body of evidence and Sister Green’s own account (this is the subject of appeal ground 9b), a lack of uniformity given the passage of time was not surprising, and the primary judge was cognisant of and took into account the fact that a number of the teachers’ aides had a strong sense of loyalty to Sister Green: see, for example, [67] below. It should also be observed that evidence was given in support of Sister Green by fellow teachers and school principals as well as teachers’ aides.
Most of this evidence was not to deny that Sister Green was strict and engaged in some discipline but what was significant to the primary judge was his lack of satisfaction that such discipline as was suggested by some of the evidence as having been administered by Sister Green did not rise to the statutory level sufficient to warrant the description of “serious physical abuse”. Thus, at PJ [201], the primary judge said:
“Always accepting the defendant carries no onus of proof, I am satisfied then that Sister Green did use some physical forms of discipline in terms of the smacking I have referred to. I am not persuaded it was a punishment that was administered very frequently and certainly not on a daily basis. My impression is, although I am not certain, that a smack on the bottom of a misbehaving child is different from putting hands on the child to put them in line at assembly or to move them along when assembly is over. I accept the chalk circle was used in the limited way I have described. Other techniques were probably also used such as the pest list and requiring a child to stand in the corner. These matters seem entirely unexceptionable.”
“Ms Green’s connection with St Ignatius commenced in 1976 when she was in Sister Green’s infants’ class for Years 1 and 2. She said there was no physical discipline at that time (T.889.35-37). She returned to St Ignatius as a teacher in 1993. She would take students from other classes including Sister Green’s class to support them in literacy. Like Mr Foley, she worked with the pupils on the veranda outside of the door of Sister Green’s classroom. In 1996, Ms Green’s kindergarten class adjoined Sister Green’s class. The classrooms were separated by a temporary wall with a doorway. It was not very soundproof (Exhibit CB 48.351; [14(a)]) and she would hear and see Sister Green from time to time during the day. She never witnessed any abuse of any child. She regularly saw Sister Green at assemblies, Mass or other liturgies. She never witnessed Sister Green being cruel, hitting or abusing pupils.”
Other aspects of the Appellant’s broad case were not put to the witnesses called on behalf of the Respondents, examples given by the primary judge being Mr Charles Edwards’ and Mr Lesley Leonard’s evidence about Brother Hollamby: PJ [78] and [81]. Another example given by the primary judge was in relation to Ms Alicia Monaghan: PJ [121].
The primary judge was criticised (in appeal ground 7a) for referring to there being two “camps” of witnesses (although this was in fact a term used by the Appellant’s own counsel at first instance) and for considering the evidence on a “camp” basis. That did not mean that the primary judge did not give consideration to the evidence of each of the witnesses individually (as in fact he did: see, for example, [49] above), and it was not illegitimate for his Honour to generalise to some extent as is reflected at PJ [41]-[42] in respect of both “camps” of witnesses:
“with great respect, my overall impression of each respective cohort of the witnesses – save for a few exceptions – is that they were so entrenched in their respective ‘camps’ that, very often, when propositions were put in cross-examination that were apparently incompatible with, or detrimental, to their own case theories, they were quick to reject them even when, in my view, appropriate concessions were warranted.
By way of example only, some of the teacher’s aides denied Sister Green ever used Montgomery to hit the students’ desks to get their attention (T617.5; T703.5-10; T752.15-30; T921.5-15). One witness went further by denying that Sister Green even had a ruler named Montgomery (T617.35-50). Such evidence is not reliable when one considers Sister Green’s very own evidence that she had in fact owned two rulers including Montgomery (T587.10-13), and she conceded using Montgomery to ‘whack the desk of [a] child [who] was doing the wrong thing’ (T588.3). Similarly, some accounts given by the plaintiff’s witnesses were inconsistent with that of the plaintiff. One witness stated that there were other adults around when Sister Green hit the students with a ruler (T168.4-5), contrary to the plaintiff’s evidence that ‘[Sister Green] never done it in front of another teacher’ (T106.3). Given the passage of around 30 years, the proofs proffered by the plaintiff and the defendants are in a somewhat weathered and degraded state, if I may employ that metaphor. The plaintiff himself conceded that his memory is ‘not good’ (T106.16-23).”
The Appellant did not submit that his Honour was wrong in his assessment extracted immediately above that “very often, when propositions were put in cross-examination that were apparently incompatible with, or detrimental, to their own case theories, they were quick to reject them even when, in my view, appropriate concessions were warranted.” A review of the transcript of the trial bears that generalisation out.
Reference has already been made at [12] above to the primary judge’s observation that “[i]f one was to take all of the plaintiff’s evidence together frankly, the sum of the evidence would suggest that Sister Green was conducting something in the nature of a reign of terror on infant Aboriginal school-children at St Ignatius.” His Honour rejected the likelihood of that picture of St Ignatius School and Sister Green in particular in the early 1990s being accurate on the basis that the extreme conduct described would have been observed by eyewitnesses such as various teachers and teachers’ aides who his Honour assessed as being honest and who he considered would have given evidence of such a reign of terror, had it in truth existed.
The “reign of terror” characterisation was based upon the very strong language and descriptions of Sister Green’s alleged conduct in the Appellant’s witness statements and those of other witnesses called on his behalf. An attempt was made in the Appellant’s written reply submissions to downplay the extremity or hyperbolic nature of the descriptions of the alleged systematic abuse on the basis that the Appellant and some of the witnesses called by him had a “limited and unsophisticated vocabulary”. The written submissions referred to disadvantaged circumstances having “left enduring effects on their ability to give evidence”. It was not made entirely clear where this submission went – the primary judge had to deal with the evidence that was presented to him and in the terms in which it was presented. The written submissions were somewhat coy in this respect. For example, it was submitted in this context that “[f]or a Court to fail to acknowledge such a circumstance is to put form over substance, and to fail to assess the evidence of the witnesses in the proper context of that evidence.” The suggestion appeared to be that the Court should understand the written evidence in a different way to that conveyed by the language used. That seems to me to be a problematic submission but, in any event, the primary judge was evidently aware of the Appellant’s difficult background and thus could not be criticised in this respect. Indeed, at PJ [193], he said that “[m]aking every allowance for possible cultural differences, the plaintiff’s evidence has its problems.” His Honour also noted that “[r]egrettably, the plaintiff has experienced what is referred to in the criminal law as profound childhood deprivation”: PJ [196].
The primary judge rejected at PJ [213] the Appellant’s allegation that Sister Green frequently struck him with “Montgomery” or any other implement:
“other than the evidence of the plaintiff that he was taken into the adjoining room and spanked hard on his naked bottom on one occasion, which I am not satisfied occurred, there is no evidence that Sister Green smacked him in the manner I have found she utilised from time to time to discipline children in her infants’ class. I have rejected his case that he was frequently struck with Montgomery, or another implement as not having been established on the balance of probabilities. He has failed to establish a case that he was subjected to serious physical abuse at the hands of Sister Green.” (emphasis added)
These conclusions are centrally challenged in appeal ground 1 which is that the primary judge erred in finding that that “the Appellant was not assaulted by Sister Marietta Green, including by the use of a long wooden ruler.”
In relation to the “chalk circle” allegations about being made to stand outside under the sun in high temperatures for a prolonged period of time, the primary judge was not persuaded of this, observing that “[w]hile the evidence was conflicting with different versions given, I am of the view that the evidence of the plaintiff and the other witnesses who spoke of that form of discipline as extending for long periods in trying conditions, is not accurate. This is unsurprising given their young age then and the long passage of time”: PJ [200]. In fact, although not quoted by the primary judge, the Appellant accepted that he “can’t really say” how long he was made to stand in the sun and that “it might have been that it was for about ten minutes, but it just felt like longer”.
Although the primary judge did make some specific findings that a particular incident or incidents had not occurred (see [51], [56] and [60] above), his Honour’s more general conclusion was that the Appellant had “failed to establish a case that he was subjected to serious physical abuse at the hands of Sister Green”: PJ [213]; see also PJ [12].
Counsel for the Appellant rightly recognised that, in order to impugn the factual findings which turned upon an extremely experienced primary judge’s close assessment of the reliability and credibility of multiple witnesses after seeing and hearing them give evidence in the context of a lengthy trial, the significant constraints to appellate interference associated with Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]-[31] (Fox v Percy) needed to be overcome. See also Davey v Want [2026] NSWCA 12 at [6]-[16] (Davey v Want).
Reference has already been made to the primary judge’s acceptance of the Appellant’s lack of reliability and the strength of criticisms of much of the Appellant’s evidence (see [8] and [11] above) even though his Honour did consider that the Appellant “did his best to tell the truth to the best of his recollection” and that it “was not my impression that he gave consciously false evidence” albeit that “the long effluxion of time since these events, his comparatively tender years then and the effects of traumatic incidents in his life adversely affected the reliability of his evidence”: PJ [48]. Conversely, the primary judge described Sister Green as a “quite impressive” witness although aspects of her evidence were not immune from criticism by the primary judge: at PJ [198]. Earlier, at PJ [62], he had said:
“Based on my observations, Sister Green presented as an honest person. … She was sincere in her evidence, and appropriately made concessions regarding the events she could not recall.”
Considerations of context and tone in answering questions will invariably be important in a primary judge forming impressions of witnesses: Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191 at [58] (Mt Pleasant). Review of a transcript by an appellate court, however conscientious, is a different exercise from that experienced by the judge presiding over a trial where factual issues are hotly in contest. Such a “desktop” review will generally not pick up characteristics such as sarcasm, arrogance, humour or humility in a witness’ answers nor, as Kirk JA pointed out by way of example in Mt Pleasant, will it necessarily lead to an appreciation “that an answer was given angrily in response to some provocation, such that its significance is not what might appear from the page” nor reveal the fact of pauses in answers to questions and what may be discerned from such pauses. This will be a matter of context and may also be influenced by matters such as the tone of the cross-examination which will not always be apparent from the pages of the transcript. All of this is to reinforce the wisdom underpinning the need for caution against appellate intervention in respect of findings of fact reached after a contested hearing where there have been major clashes in the evidence.
An example of this can be seen in the record of cross-examination of Mr Hines, one of the witnesses called by the Appellant:
“Q. Ms Wheeler took you in that room?
A. You said that Ms Wheeler took me into that room. Did she?
HIS HONOUR
Q. Mr Hines, just try and concentrate on the questions.
A. I'm not going to concentrate because this is bullshit.”
Obviously enough, something not recorded on the transcript led to the primary judge’s intervention in the cross-examination and suggestion that the witness was not concentrating. The witness’ response shows that he was clearly agitated but just how or to what extent does not appear from the transcript though it would likely have been visible to the judge.
“Appellate restraint with respect to interference with a trial judge's findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.” (Footnotes omitted).
And, as Gleeson CJ, Gummow and Kirby JJ observed in Fox v Percy at [23]:
“…the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.” (footnote omitted).
Consistent with the above, the Respondents submitted that, even where demeanour is not expressly relied upon, if credit findings are clearly in issue – as here – “it is unlikely that ... presentation in the witness box was not keenly observed and taken into account”, citing J and E Vella Pty Ltd v Hobson [2023] NSWCA 234 at [214] and Vagg v McPhee [2013] NSWCA 29 at [84]-[85]. One significant matter which his Honour formed a view about was the teachers’ aides. Although his Honour acknowledged that “some of the teacher’s aides were somewhat affected by their admiration for, and loyalty to, Sister Green”, he nevertheless held that, had the “reign of terror” that the Appellant’s witnesses deposed to in fact existed, “they would have noticed” and “would have told the truth”: PJ [198]. This is a significant finding based upon the primary judge’s extended opportunity of observing these witnesses give their evidence. It was, as the Respondents submitted, an orthodox and overwhelmingly probable finding.
The challenge to the primary judge’s factual findings also needs to take on board the fact that the nature of the Appellant’s allegations against Sister Green and Mr Dixon meant that his Honour needed to feel an actual sense of satisfaction in accordance with Briginshaw and to be conscious, as he undoubtedly was, of the imperfections of human memory. In this latter context, his Honour referred to well-known and oft-cited observations by McHugh J and Leggatt J (as his Lordship then was) in Longman v The Queen (1989) 168 CLR 79 at 107–8; [1989] HCA 60 (Longman) and Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [16] (Gestmin) respectively. In the former case, McHugh J observed at 107-108 that:
“The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to ‘remember’ is well documented. The longer the period between an ‘event’ and its recall, the greater the margin for error. Interference with a person’s ability ‘to remember’ may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling …
Experience derived from forensic contests, experimental psychology and autobiography demonstrate only too clearly how utterly false the recollections of honest witnesses can be.”
Returning to whether the primary judge’s conclusions were “glaringly improbable”, it is well to remember that his Honour’s conclusion, as observed at [61] above, was that “the plaintiff has not proved on the balance of probabilities he suffered serious physical abuse as alleged”: see also PJ [213]. This was not a “glaringly improbable” conclusion at all. The primary judge in the present case found himself in the same position as the primary judge in Briginshaw. To adopt the words of Sir Owen Dixon in his reasons in the High Court in that case (at 369), “[f]rom the whole tenor of his [the primary judge’s] reasons, I think that it clearly appears that his Honour found himself unable to arrive at any satisfactory or firm and definite conclusion that adultery had been committed”.
Although the primary judge in the present case had a great deal of evidence in the form of affidavits and statements from witnesses who were tested under cross-examination, that evidence was about events which occurred many decades earlier and, in the case of one group of witnesses (including the Appellant), all of whom had been extremely young at the time of the events in question. His Honour had, on the other hand, a body of evidence from a series of teachers’ aides or teachers (including Sister Green and Mr Dixon) whose evidence was to a quite contrary effect. That is not necessarily to say that the latter body of evidence was superior or more reliable because the other body of witnesses were all very young children at the time of the events in question although his Honour was entitled to take into account the tender ages of the former group of witnesses at the time of the alleged events (as well as other traumatic events or debilitating experiences suffered by a number of them) when assessing whether he felt an “actual persuasion” of the occurrence of the allegations made by the Appellant against Sister Green and Mr Dixon.
His Honour, conscious of the limits of reliance on demeanour in the witness box, nonetheless drew on this where he considered it was reasonable and appropriate to do so. He also drew on medical or Justice Health records to assist him in drawing his ultimate conclusion, pointing out in the case of the evidence of both the Appellant and Mr Hines that there was a telling absence of any reference to serious abuse at school in their accounts to psychiatrists and health care workers: see [11] and [49] above.
Given the confidence of their apparent recall of events at St Ignatius School and the constant violence of those recollections, it was entirely legitimate for the primary judge to draw on the absence of similar recollections by those same witnesses and the Appellant in particular at earlier points in time to assist him to form his ultimate conclusion which was not so much that the serious physical abuse did not occur but that he was not satisfied that the Appellant had proved on the balance of probabilities that it had, bearing in mind Briginshaw and the need to feel an “actual persuasion” of “serious physical abuse”.
“There is not a single contemporaneous record of the plaintiff’s alleged abuse or that of his 15 tendency witnesses. There is not a single mention in any document of any such abuse before 2022, when the plaintiff’s lawyers began acting and advertising for claims. This lack of documents is surprising: one would expect at least some mention of serious physical abuse to find its way into school records, child welfare records, medical records, counselling records, police records, or sentencing records. This situation is not explained by intimate shame (and hence delayed reporting) of the kind that accompanies sexual abuse: what is alleged here is very public physical abuse in front of the whole class, or in many cases the whole school – and several witnesses, including the plaintiff, claimed they did report it. But the absence of supporting documents, prior to the point at which litigation is brought and encouraged, is entirely to be expected if the alleged abuse did not occur.”
The collective extended silence was conspicuous especially in circumstances where, as the primary judge went on to say at [190], that “if made good, [these proofs] do involve ‘grave moral delinquency’ on the part of a respected teacher of good character and high reputation.” The reference to “grave moral delinquency” was to Sir Owen Dixon’s judgment in Briginshaw at 362.
At PJ [202], the primary judge indicated that he had:
“taken into account Sister Green’s good character, her good reputation and the esteem in which she was held by those who worked with her over many years. Bearing in mind the serious nature of the allegations and the consideration that the case against her amounts to her, on a daily basis, battering infant students under her care, I think it legitimate to take these qualities into account when weighing the probabilities. Good character is not a defence. But it is relevant to the determination of the question whether a person accused of such ‘moral delinquency’ in fact acted that way.”
There was much evidence supporting the view that Sister Green was a “respected teacher of good character and high reputation” who, in 1995, as his Honour noted, had been awarded the Medal of the Order of Australia for her services to education, including to Aboriginal children. That, of course, was not determinative or definitive evidence but it was relevant within the meaning of s 55 of the Evidence Act 1995 (NSW) (the Evidence Act) in the sense that it was evidence that "could rationally affect (directly or indirectly) the assessment of the probability" that Sister Green perpetrated the conduct the subject of the allegations made by the Appellant and a number of witnesses called by the Appellant: see TKWJ v R (2002) 212 CLR 124; [2002] HCA 46 at [35].
His Honour, moreover, accepted as “well made” specific criticisms of aspects of the Appellant’s evidence going to its plausibility and accuracy. Tellingly, no cogent reasons were advanced on appeal as to why he was wrong to do so: see PJ [52]-[56] and [11] above. All of these matters fed into his Honour’s ultimate evaluative conclusion.
For the foregoing reasons, I would reject the first ground of appeal.
The second ground of appeal was in these terms:
“The trial judge erred in finding, by inference, that Sister Marietta Green administered physical discipline (assault) as corporal punishment to the Appellant, in circumstances where:
a. The Appellant did not allege he was assaulted in that manner;
b. Sister Marietta Green did not give evidence that she assaulted the Appellant in that manner; and
c. Sister Marietta denied ever hitting the Appellant.”
“Were I to assume that, from time to time, Sister Green found it necessary to administer to the plaintiff the type of smack I have found she administered to other pupils under her care, I would regard it as no more than lawful chastisement, being both moderate and reasonable and for a proper purpose. This being so, I repeat, I am not satisfied that the plaintiff has established severe physical abuse at the hands of Sister Green”.
The third appeal ground was really an amplification of the second; it was not the subject of any specific written submissions tied to that ground as formulated and should be rejected for essentially the same reasons as ground 2. It does not establish an underlying glaring improbability of the kind that would be required to warrant this Court overturning the primary judge’s conclusions.
Appeal ground 5 was in the following terms:
“The trial judge erred in finding Sister Marietta Green was a person of good character, and attributing weight to that finding, in circumstances where:
a. Sister Marietta Green admitted to using physical discipline (assault) on Ms Margaret Dixon, an infant Aboriginal child; and
b. Sister Marietta Green was counselled by Brother Hollamby for administering physical discipline (assault) to Ms Janine Monaghan, an infant Aboriginal child.”
Reference has already been made to the primary judge’s (limited) reliance on evidence of good character. This ground of appeal does not challenge the fact of the primary judge giving some weight to good character as a matter of principle; rather, it relies on two instances over a multi-decade career as an infants school teacher to negative the large body of testimony as to good character as was in evidence.
In relation to Ms Margaret Dixon, at PJ [66], the primary judge referred to Sister Green’s evidence that “there was only one instance where she ‘smacked’ a student in her entire teaching career.” His Honour continued: “[t]his involved a St Ignatius pupil by the name of Margaret Dixon (T568.50-569.19), who had run away from Sister Green’s class three times to the nurses’ office (T579.50).” Ms Dixon was called in the Appellant’s case in reply. The primary judge held at PJ [212] that:
“Sister Green was self-reproachful about her treatment of Margaret Dixon. The grown-up Ms Dixon herself could not recall the incident. I infer from Sister Green’s reaction to her own conduct that she was as strict with herself as she was with the children and was self-reproachful for what may have been, for her, a loss of control.”
Much was made in the Appellant’s written submissions about an incident which relevantly involved the grandmother of a student, Ms Janine Monaghan, and in respect of which Brother Daniel Hollamby gave evidence, he being the principal of St Ignatius School from 1993 until 1998. The grandmother evidently complained to Brother Hollamby that Sister Green had smacked Janine on her bottom with an open hand, and Brother Hollamby gave evidence of speaking to Sister Green about this. He said that Janine was “a cheeky and disobedient child, and her misbehaviour must have been ‘reasonably extreme’ to [elicit] a smack from Sister Green”: PJ [180]. Sister Green did not recall the incident nor did Janine give any evidence about this occasion (as the primary judge pointed out at PJ [120]). So, too, two teachers’ aides, Ms Mannix and Ms Cubby, did not recall this specific incident, as the primary judge noted at PJ [130] and [139], and nor, for that matter, did fellow teachers, Mr Foley and Ms Ward.
In his written submissions, the Appellant put that the primary judge failed to consider the impact of Brother Hollamby’s “irreconcilable evidence with Sister Green’s.” This was a significant overstatement. Sister Green did not deny that Brother Hollamby had cause to counsel her on one occasion; she simply did not recall it. There is a significant difference between an outright denial and a failure to recall. Further, Sister Green’s failure to recall was not surprising given the passage of time (decades) and that the incident to which Brother Hollamby referred was, on his own account, not one involving more than a smack on the bottom.
The incident about which so much was sought to be made in written submissions should be put into context which is supplied by [15]-[16] of Brother Hollamby’s evidentiary statement of 31 October 2023:
“I recall the student's grandmother came to the school and it was quite unusual because the impression I got was that the grandmother was more upset that the student was not disciplined severely enough. The grandmother was quite understanding about the incident although her final words to me during the meeting were - ‘if there was any hitting to do, I'll be doing it’.
When I spoke to Sr Marietta about this incident she admitted it happened and at least one of the teacher aides who was in the classroom had witnessed the incident. Sr Marietta was apologetic and after that one occasion I never witnessed or heard of Sr Marietta smacking children again.” (emphasis in original)
Ground 5 should be rejected. The two incidents relied upon to found that ground do not negative the wealth of evidence of good character to which the primary judge afforded some weight. It was open to his Honour to do so. Nor does the fact that two teacher’s aides, Ms Mannix and Ms Cubby, did not recall this specific incident affect the reliability of their evidence otherwise. Appeal ground 9a was to the effect that the evidence of teachers’ aides which was otherwise accepted should not have been accepted because they could not remember the reprimand of Sister Green, in relation to Janine, about which Brother Hollamby gave evidence. Again, the Appellant sought to raise a false conflict. Their position was one of non-recollection, and from the Brother’s account of the matter, it was unsurprising that they might not recall it, it having been relatively innocuous and having occurred 30 years ago. Ground 6 has been dealt with above.
Ground 8b should also be rejected. It also related to the reprimand by Brother Hollamby of Sister Green in relation to Janine Monaghan. The Appellant submitted that his Honour should not have accepted Sister Green’s evidence in the face of Brother Hollamby’s evidence about this incident. But as already explained, the evidence was not contradictory.
Reference has already been made to appeal ground 7a: see [54] above. Appeal Grounds 7b and c were as follows:
“The trial judge erred by failing to make findings, and give reasons, for the trial judge's decision to reject the Appellant's witnesses, in circumstance[s] where:
…
b. The trial judge failed to explain why the eyewitness accounts of Mr Charles Edwards, Mr Lesley Leonard and Mr Terence Hines of the Appellant being assaulted by Sister Marietta Green were rejected; and
c. The trial judge failed to explain why the Appellant's witnesses adduced for a tendency purpose were not accepted for the asserted tendency.”
As to Mr Hines, the primary judge noted that his evidence did “not seem to be relied upon in any respect by the plaintiff, but his evidence was referred to by counsel for the defendants and they submit that he was an unsatisfactory witness in very many respects.” His Honour also noted at PJ [123] that his “body language exhibited a strong disinclination to be in court giving evidence” and he referred to T467.30 – 468; 468.40 - 469.25 in this regard, before concluding that it was “difficult to accept Mr Hines’ evidence as an accurate account”: PJ [126]. See also [65] above.
As to Mr Charles Edwards and Mr Lesley Leonard, their evidence formed part of the “reign of terror” picture which his Honour did not accept existed for reasons he explained. This included Mr Edwards’ evidence that, in the playground, Sister Green allegedly hit at least one student every day with a ruler which was not Montgomery (including Mr Edwards once a week), and that Brother Hollamby dragged Mr Edwards to the principal’s office multiple times by the ear – all in view of other teachers: T.213 [5]-[50], 214 [1]-[3]. The extreme picture painted which occurred, on many accounts, in the presence of multiple eyewitnesses, undermined its credibility, and so much was reinforced by the fact that there was no evidence of either witness having formally or informally recalled the alleged abuse in the 30 years since it was said to have occurred, with both witnesses agreeing that their witness statements were the first time that they had put down on paper what they said had happened to them and others 30 years ago: T 224 [32]-[45], 436 [26]-[30].
The primary judge’s non-acceptance of this body of evidence also accounted for his Honour’s non-reliance on it as tendency evidence. In this context, his Honour noted that “there was an absence of consistency in essential matters and inconsistency in the details of some. To my mind, this was an inevitable effect of the passage of time impoverishing the available evidence”: PJ [191].
Further, his Honour’s rejection of this body of evidence was not glaringly improbable and a case such as the present which went for a considerable length of time with a large number of witnesses is a classic example of a case where appellate deference to the primary judge’s fact-finding advantages is warranted.
For these reasons, I would reject appeal grounds 7b and c.
Grounds 8a and b have already been dealt with. Grounds 8c and d were that the primary judge erred by accepting Sister Green’s evidence in circumstances where:
“c. The trial judge found that Sister Marietta Green had put her best foot forward in minimising her evidence about the physical discipline (assault) that she administered to students, which was a finding by the trial judge that the trial judge did not accept Sister Marietta Green’s evidence on a matter important to the dispute between the parties; and
d. The trial judge did not accept Sister Marietta Green’s evidence on distinguishing a ‘whack’ from a ‘smack’, and in what circumstances a whack/smack was used by her, which was a finding by the trial judge that the trial judge did not accept Sister Marietta Green’s evidence on a matter important to the dispute between the parties.”
“I interpolate, if I had any criticism, it was Sister Green’s – perhaps natural and understandable – tendency to put her best foot forward in explaining her approach to disciplining her students. To this extent, it is my view that she understated somewhat the force with which she applied when ‘whacking’ the children on the bottom. I accept this was not borne of a desire to mislead the Court. However, I was nevertheless left with an impression that more of a ‘smack’ than a ‘whack’ was involved, even though Sister Green preferred the latter expression.” (emphasis added)
“quite impressive. I accept the evidence of others that she was stern and insisted on things being done her way. This seems hardly unusual for a school-teacher. She was there to teach the children. I also accept as she herself admitted, and as other witnesses supported, that she did use Montgomery to attract the attention of children when necessary, by making a loud noise hitting the ruler on the desk or perhaps on the blackboard. I accept her evidence supported as it is by those who worked with her that she did not use Montgomery or any other ruler as an implement of punishment.”
Appeal grounds 10-13 focussed on the case against Mr Alex “Sweeney” Dixon although the amount of time devoted to this aspect of the appeal in oral submissions was evanescent. The case against Mr Dixon was that “[o]n multiple occasions, [Mr Dixon] hit the Plaintiff, twisted his ears and kicked him in the bottom.” The primary judge’s findings rejecting this aspect of the Appellant’s claim have already been noted briefly at [15] above.
To recapitulate, the primary judge found that, while Mr Dixon did smack the Appellant once on his upper right thigh over his clothing, he did not do so in the manner alleged: PJ [217]. His Honour also concluded that the Appellant had “not proved misconduct by Sweeney that in any way amounts to serious physical abuse” and that [the] claim against him “must therefore fail by virtue of the provisions of the Limitation Act 1969”: PJ [217]. The primary judge was influenced by the fact that none of the pleaded allegations against Mr Dixon “found their way into the plaintiff’s witness statement”: PJ [205]. His Honour observed, not unreasonably, that “[t]his may have been an oversight, but it does affect the weight I feel I can give to the evidence.” I agree. Earlier in the judgment, the primary judge had noted (at PJ [33]) that:
“In cross-examination, the plaintiff explained this omission on the basis that he ‘did not think [his solicitors] wanted to know about [Sweeney]’ at the time of preparing his statement (T137.34-35).”
That is not a response that was apt to inspire confidence in the veracity of the Appellant’s subsequent evidence against Mr Dixon. The Appellant’s oral evidence was that Mr Dixon assaulted him when he was retrieving him from truanting with other students. His Honour noted, however, that in this context, “[d]espite the large number of lay witnesses asked questions about Sweeney’s behaviour, none of the plaintiff’s classmates called gave evidence of being co-truants with the plaintiff or being with the plaintiff when apprehended by Sweeney”: PJ [207].
“Q. Did you do anything to him physically when you told him to wake up to himself?
A. I just, just tapped him, I said, I told him to wake up to himself and that was it.
Q. When you say just tapped him--
A. Yep.
Q. --what do you mean?
A. I just told him I’m going to..(not transcribable).. smack on the side like that there and then told him to wake up to himself, and then later on he, he started - and then I made him sit down and then he walked back into Sister Marietta's class.
Q. I think you motioned, for the record, with your right hand somewhere on the upper thigh?
A. Yep.
Q. What part of the body did you connect your hand with?
A. On the side here.
Q. On the side of the leg.
A. Yeah.
Q. Was it not on the bottom?
A. No.
Q. On the side.
A. On the side.
…
Q. That motion, how would you describe the force of that motion?
A. It wasn't hard, I don't think.
Q. It wasn't hard?
A. No, it was soft.”
This was scarcely an admission of “serious physical abuse”.
“I am not satisfied that he has proved that [Mr Dixon] struck him in any way except for the smack that [Mr Dixon] admitted he once delivered to the plaintiff’s upper right thigh over his clothing, not being an allegation the plaintiff makes. I have accepted that upon apprehending truanting boys, logic may suggest a degree of rough handling. A teacher’s aide sent out to retrieve truanting boys may be expected to use reasonable force to bring them back to school. In any event, at common law, authority to use moderate and reasonable force to chastise pupils falls upon members of the teaching staff and not only the principal. Even if this approach is incorrect, the plaintiff has not proved misconduct by [Mr Dixon] that in any way amounts to serious physical abuse.”
His Honour’s acceptance of the criticism of the Appellant’s evidence more generally (see [11] and [77] above) no doubt contributed to this lack of satisfaction.
In written submissions, the Appellant put that “both the factual and legal findings in respect of Mr Dixon suffer the same defects as those identified in respect of the Sr Green findings above”. For the reasons advanced in respect of the appeal against Sister Green, to the extent that similar attacks are mounted in respect of the primary judge’s reasoning in the case against Mr Dixon, they should equally be rejected but the position is compounded in respect of the case against Mr Dixon by reason of the absence of evidence against him in the Appellant’s principal witness statement and his explanation for that omission.
As with the case against Sister Green, the primary judge was faced with bodies of evidence tending in very different directions. His Honour, unlike this Court, had the opportunity to observe that evidence and carefully balance the probabilities. His Honour treated and evaluated Mr Dixon’s evidence “with some caution”: PJ [69].
Ground 10 of the Appellant’s notice of appeal is in generic terms in relation to the finding that the Appellant was not assaulted by Mr Dixon. Grounds 11 and 12 supplemented Ground 10 by focusing not on any evidence by the Appellant but on the one piece of evidence given by Mr Dixon as set out in the passage extracted at [102] above. That evidence could not have sustained a finding of serious physical abuse and, indeed, these two grounds of appeal nor the written submissions in support do not suggest otherwise.
At PJ [208]-[209], the primary judge held:
“Generally, Sweeney was held in high regard by the principals of the school and was regarded as a good role model. He was cross-examined about having a domestic violence conviction, but notwithstanding this, I am of the view that on the whole, the evidence of witnesses who were responsible adults at the time these events were said to have occurred, establishes that Sweeney too was of good character and that is entitled to some weight when deciding whether the plaintiff has proved his case on the balance of probabilities.
The apparent logic of events suggests that a person in Sweeney’s position, bent on the retrieval of truant schoolboys, may find it necessary to handle them a little roughly on apprehension. Such things may have occurred, including smacking the plaintiff on the bottom if he showed recalcitrance about returning to school. However, it is difficult to make findings about these matters on the balance of probabilities. I am not satisfied that the plaintiff has proved his case against Sweeney on the balance of probabilities.”
The Appellant attacked the primary judge’s finding of good character in ground 13 on a number of bases. First, he relied on Mr Dixon’s own admission of smacking the Appellant on one occasion. This did not mean he was not of good character. Second, it was contended that Mr Dixon admitted to assaulting the Appellant in the manner pleaded. This was not so. Third, he referred to Brother Hollamby admitting to cautioning Mr Dixon against the use of physical violence against students. This again represented a degree of forensic over-reach and exaggeration. The caution was animated by a concern that Mr Dixon, an indigenous man, did not apply in the context of his school duties any force of the kind that the Brother deposed that he was aware was used in some of the local communities. The Brother’s counselling was essentially precautioning rather than chastisement. The final matter relied upon related to Mr Dixon’s admission to having a conviction for a domestic violence incident in 1993. The primary judge noted at PJ [73] that it was not a matter that required incarceration. It is plain that the primary judge took this into account and weighed its significance against a wealth of evidence which supported the finding of good character. The primary judge expressed his view as to good character “on the whole” which was an appropriate form of evaluation, well open to his Honour who was in a vastly superior position to this Court to form a view about the matter.
For the foregoing reasons, I would reject appeal grounds 10-13.
After judgment in this matter had been reserved, the High Court delivered its reasons for judgment in AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 (AA).
Unsurprisingly, the Appellant in the present case sought leave to file supplementary submissions in light of that important decision. Leave was granted. Somewhat surprisingly, however, the legal representatives for the Appellant filed supplementary submissions of some 12 pages, only 3 paragraphs of which were directed to the significance of the overruling in AA of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 and what was said in AA in relation to non-delegable common law duties.
In St Paul’s College Ltd v Allan [2026] NSWCA 22 at [77]-[92], Kirk JA (with whom Payne JA and Price AJA agreed) explored in some detail the significance of AA including the “profound consequences” of aspects of the reasoning in that decision “for the potential liability of school authorities with respect to abuse of students by those for whom the authorities are responsible.”
The Respondents to the present appeal properly submitted that:
“Having found there was no ‘serious physical abuse’, the primary judge made the contingent finding that the first respondent’s non-delegable duty of care did not extend to intentional criminal acts: J [224]-[225] ... The respondents accept this cannot stand following AA.”
They noted that, if the primary judge’s factual findings were to be overturned and that “serious physical abuse” were established so as to overcome the limitation period that would otherwise apply, the First Respondent, the Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes (the Diocese), would be liable for breach of its non-delegable duty. In this eventuality, however, there would need to be a reassessment of the primary judge’s contingent assessment of damages to take account of the operation of the Civil Liability Act 2002 (NSW).
As I do not consider that any proper basis has been established for interfering with the primary judge’s factual finding that “serious physical abuse” was not established, AA does not impact any question of the Diocese’s liability.
It remains to refer to the balance, and indeed the bulk of the Appellant’s Supplementary Submissions made in relation to AA. The essence of the Appellant’s argument was that AA established and mandated a new fact-finding methodology “to be applied in the determination of the foundational fact of abuse in historical child abuse litigation, brought against institutional defendants”, relying on [56]-[76] of the plurality and [189]-[220] of Gordon J’s reasons. It was submitted that:
“That guidance emerges from the majority’s affirmation of the primary judge’s acceptance of AA’s central allegation - consistently with Ball JA’s dissent in Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 (‘NSWCA’) at [253]–[271] — and its rejection of the analytical approach underpinning Leeming JA’s critique of the primary judge’s fact-finding methodology (NSWCA [103]–[155]; HCA [65]-[76] (plurality); [189]-[190], [209]-[220] (Gordon J)). Read together, the majority’s decisions prescribe the governing methodology for this distinct class of case: unconstrained by a limitation period, founded on undocumented allegations and trauma-affected recollections, recalled decades later and expressed through the prism of personal vulnerabilities and subsequent adverse life experiences.” (emphasis added)
“It must be accepted that AA's recollection of the events was imperfect. The events were recalled more than 50 years after they allegedly occurred. Neither that fact, nor the fact that the proceeding was not time-barred, excused AA from meeting the evidentiary burden imposed by s 140 of the Evidence Act and the Briginshaw standard.”
The Appellant’s Supplementary Submissions equated and deprecated Leeming JA’s reasoning in AA in the Court of Appeal as “Gestmin-type” reasoning which it claimed the majority of the High Court in AA “repudiated”.
The reference to Gestmin is to the well known decision of Leggatt J (as his Lordship then was) which was referred to by the primary judge and is noted at [68] above. The form of reasoning attributed to Gestmin in the Supplementary Submissions was the “elevation of delay, memory frailty and peripheral inconsistency to dispositive status”. Gestmin did no such thing. In that decision, Leggatt J said (at [15]-[22]):
“An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.
While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.
Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory).
Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.
The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been ‘refreshed’ by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.
It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.
In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”
Some or all of these paragraphs have been referred to or cited in many Australian decisions including, for example, Davey v Want at [15]-[16]; Engadine Medical Imaging Services Pty Ltd v Ibrahim [2025] NSWCA 269 at [49]; Warne v ACN 603 541 411 Pty Ltd (t/as Chandlers International Lawyers) [2025] NSWCA 57 at [64], [74]; Qube Logistics (Rail) Pty Ltd v Australian Rail, Tram and Bus Industry Union [2025] FCAFC 73 at [30]; Schrader v Broach [2024] NSWCA 14 at [68]-[69]; Moubarak v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [77]; Nominal Defendant v Cordin (2017) 79 MVR 210; [2017] NSWCA 6 at [169], [171]; Liberty Mutual Insurance Company Australian Branch (t/as Liberty Specialty Markets) v Icon Co (NSW) Pty Ltd (2021) 396 ALR 193; [2021] FCAFC 126 at [239]. Those paragraphs from Gestmin accord both with scientific research and common experience. They do not prescribe a methodology of fact-finding but point out the difficulties of establishing facts many years after the events.
Gestmin was scarcely a novel decision. The essence of the reasoning underpinning Leggatt J’s observations had been articulated by McHugh J in Longman at 107-108 (see [68] above) and stated in the civil context by McLelland J in Watson v Foxman (1995) 49 NSWLR 315 at 319 (Watson v Foxman), a decision which has been cited in legion decisions throughout Australia and, perhaps most pertinently for present purposes, in GLJ at [59] where it was observed by Kiefel CJ, Gageler and Jagot JJ that:
“Watson v Foxman is frequently cited because of its continuing importance in identifying that ordinary human experience exposes that human memory is ‘fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time’.” (emphasis added)
See also Steward J at [130].
“As the primary judge said, we are all subject to human frailties in terms of recollection, including the ‘pull, even if subconscious, towards self-interest’: Automotive Invest Pty Ltd v Federal Commissioner of Taxation (2022) 114 ATR 569 at 587 [79]. While not cited, this is an obvious reference to the ongoing significance of the observations of McLelland CJ in Eq in Watson v Foxman: Watson v Foxman (1995) 49 NSWLR 315. Those observations, while focused on the recollection of conversations, apply generally to the function of memory and recall.” (emphasis added)
The Appellant’s Supplementary Submissions went so far as to put that, in the posited prescribed category of case, where a complainant is found to have been honest (or, as here, attempting to give honest evidence), that evidence could be rejected “only by findings that the Appellant and the eyewitness and tendency witnesses were lying, delusional, or collectively mistaken”. That binary approach to fact-finding, apart from tending to reverse or subvert the onus of proof, overlooks that a tribunal of fact may simply not reach the requisite degree of satisfaction in a particular case. Where that is so, as the primary judge indicated was so in the present case, the tribunal of fact is not to resort to choosing between guesses “on the ground that one guess seems more likely than another or the others”: Jones v Dunkel (1959) 101 CLR 298 at 305; [1959] HCA 8 per Dixon CJ, quoted in GLJ at [60].
I accept the Respondents submissions that the primary judge’s rejection or non-acceptance of the Appellant’s account was:
“grounded in an orthodox weighing of the whole of the evidence – including evidence from the teacher’s aides, who were present in Sister Green’s classroom and consistently denied that the alleged abuse occurred. Their evidence was not a ‘peripheral inconsistency’: it was direct testimony inconsistent with the alleged abuse. Further, multiple inconsistencies in the appellant’s own evidence (J [51]-[60]) went beyond peripheral details and affected the reliability of his core allegations.”
For the foregoing reasons, the appeal should be dismissed with costs.
KIRK JA: I agree with Bell CJ.
BALL JA: I agree with the Chief Justice.
**********
Hartnett
Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes [2026] NSWCA 35
(2024) 98 ALJR 1245
(1938) 60 CLR 336
(2003) 214 CLR 118
(2023) 280 CLR 442
(1959) 101 CLR 298
(2019) 266 CLR 129
(2021) 396 ALR 193
(1989) 168 CLR 79
(2019) 100 NSWLR 218
(2003) 212 CLR 511
(2017) 79 MVR 210
(2002) 212 CLR 124
(1995) 49 NSWLR 315
(2024) 98 ALJR 1407
(2012) 249 CLR 571
Appeal dismissed with costs. The respondents' Notice of Contention concerning Martin Haimes' evidence was upheld.
This conclusion was reached after the primary judge had heard evidence from a large number of witnesses on both sides of the record (including the Appellant and Sister Green and Mr Dixon) in a trial which ran for almost three weeks. As his Honour observed at PJ [203]:
Given the “obvious deficiencies” in Mr Haimes’ evidence, the conceded application of the principles from Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw) (PJ [46]-[47]), “the eroding effect of the passage of time on memory” (PJ [203]), as well as Mr Haimes’ young age at the time of the incident, I accept the Respondents’ submission that it was not open, on the evidence, for the primary judge to reach an actual degree of satisfaction that it was Sister Green as opposed to another teacher who applied the stick to Mr Haimes’ fingers when he was aged 6 or 7 almost 50 years ago. His Honour erred in that regard.
It should also be noted that Mr Haimes was only briefly cross examined. Given the brevity of that cross examination, it is difficult to accept that the primary judge formed a particular view as to his credit that would warrant especial caution against interference with his Honour’s conclusion that Mr Haimes’ recollection was accurate. Further, the primary judge did not give any reasons for that conclusion. Indeed, the only analysis (as opposed to conclusion) that his Honour undertook led to the observation that there were “obvious deficiencies” in Mr Haimes’ recollection: see [25] above.
In view of the above, I would uphold the Notice of Contention. It follows from this that appeal grounds 6 and 8a necessarily fail.
Even if my conclusion in relation to the Notice of Contention were different, however, I would not have found that the primary judge was wrong to find that Mr Haimes’ evidence was not probative of the tendency for which it was relied upon. It was evidence which, if accepted, was of a single incident suffered by Mr Haimes which occurred in a different school, almost 20 years earlier than the allegation which it was contended to support by way of tendency. It would be unsafe to assume that attitudes to, and the practice of, corporal punishment did not change significantly in the 20-year period between the mid-1970s and the mid-1990s, and were necessarily uniform as between States.
The primary judge, consistent with authority and common experience, pointed to “the inevitable impoverishment of evidence [which] due to the long effluxion of time must affect the quality of the proofs available to establish the serious allegations made in the present case”: PJ 190]. His Honour also remarked that “[n]otwithstanding the large number of witnesses called on either side of the record, there is no suggestion before me that these allegations of serious physical abuse of the plaintiff (and others) had been made or aired until just prior to the commencement of the proceedings in 2022.” The Respondents had submitted before the primary judge (omitting footnotes) that: