What is Serious Physical Abuse for the purposes of s 6A of the Limitation Act?

Case Note - Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes [2026] NSWCA 35

Background

Mr Hartnett was a student at St Ignatius Parish School (the School), Bourke from 1992 to 1994.  He brought a claim for damages as a result of physical abuse inflicted on him at the School.  He alleged being repeatedly struck with a large wooden ruler and made to stand outside in high temperatures for prolonged periods by his Infant Aboriginal Class teacher, Sister Green, and physically abused by Mr Alex Dixon ’Sweeney’ who was a teacher’s aide.

Mr Hartnett commenced proceedings in 2022. The claims were prima facie statute barred under the Limitation Act 1969 (NSW) (the Act). Mr Hartnett relied on s 6A of the Act which removed the limitation period for actions arising from ’child abuse’, which is defined to include ’serious physical abuse’ of a person under 18 years of age. The Act does not define ’serious physical abuse’ and its meaning was considered for the first time in the primary judgment (and now by the Court of Appeal in this appeal).

The primary judge concluded that the evidence did not establish on the balance of probabilities that Mr Hartnett had suffered ’serious physical abuse’ under s 6A of the Act.  Mr Hartnett’s case was therefore dismissed at first instance by His Honour Justice Campbell.  Mr Hartnett appealed the decision, with the grounds of appeal primarily directed towards the factual findings made by the primary judge (and whether these were open to his Honour on the evidence) and the construction and conclusions reached with respect to the conduct required to satisfy s 6A of the Act.

Key issues

Yesterday, 24 March 2026, the Court of Appeal unanimously dismissed Mr Hartnett’s appeal on all grounds, addressing five key issues.  Chief Justice Bell wrote the leading judgment and Justices Kirk and Ball agreed with His Honour’s reasoning:

1.     Construction of 'Serious Physical Abuse' (Ground 4)

Mr Hartnett challenged the primary judge’s construction of s 6A of the Act on the basis that Campbell J failed to have regard to the Second Reading Speech when the section was introduced (following the recommendations of the Royal Commission). It was further argued that Campbell J conflated the notion of ’serious physical abuse’ with ’severe physical abuse’ and his Honour was wrong to find that only criminal conduct could satisfy the threshold under s 6A.

The Court of Appeal upheld the approach and construction of s 6A undertaken by Campbell J finding that ’serious physical abuse’ requires conduct of an intensity well beyond what is minor or trivial and this could be satisfied by either the severity of individual acts or the sustained nature of ongoing abuse. Chief Justice Bell found the approach and consideration undertaken by the primary judge was sound, stating ’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.’ The Court of Appeal also disagreed with Mr Hartnett’s submissions that the primary judge conflated ’serious’ with ’severe’ and disagreed that there was a finding that criminal conduct was required.  

2.     Factual Findings regarding Sister Green (Grounds 1-3, 5-9)

Mr Hartnett challenged the primary judge’s rejection of the alleged ’reign of terror’ by Sister Green having regard to her alleged treatment of many other infant Aboriginal children at the School. Chief Justice Bell found that interference by the Court of Appeal was not warranted and that the primary judge’s rejection of a systemic ’reign of terror’ was well-reasoned and justified. It was noted that no staff member who worked with Sister Green corroborated the allegations of her conduct; Mr Hartnett had never mentioned the abuse across decades of interactions with psychiatrists and parole officers and the primary judge had extensive forensic advantage after a lengthy trial spanning 15 days involving approximately 30 witnesses giving evidence.    

3.     Factual Findings regarding Mr Dixon (Grounds 10-13)

The Court of Appeal upheld the primary judge’s rejection of the allegations of physical abuse made against Mr Dixon. The Court noted that none of the pleaded allegations against Mr Dixon appeared in Mr Hartnett’s witness statement and his explanation for the omission (which was that he didn’t think his solicitors would want to know when his statement was prepared) did not ’inspire confidence’ in the Court accepting the allegations. Mr Dixon admitted in his evidence that he had disciplined Mr Harnett on a single occasion in the form of a light smack and this conduct did not amount of serious physical abuse under s 6A of the Act.

4.     Tendency Evidence of Mr Martin Haimes (Notice of Contention)

The Defendants’ filed a Notice of Contention arguing the primary judge erred in accepting the evidence of a witness (Mr Haimes) as accurate. Mr Haimes had been taught by Sister Green at a different school in the mid-1970s, some around 20 years before the events involving Mr Hartnett at St Ignatius. He gave evidence that a teacher he believed to be a substitute teacher, who he identified as Sister Green, struck him on the fingers with a wooden stick and he also observed her hitting other students.

Mr Haimes was mistaken about who his permanent teacher was, and it was not open to identify Sister Green as the person who struck him with the stick rather than another teacher. The Court upheld the Notice of Contention.

The Court also held that, even if the Defendants’ Notice of Contention had failed, Mr Haimes’ evidence would not have been probative tendency evidence as it described a single incident at a different school almost 20 years earlier, and it would be unsafe to assume that attitudes towards corporal punishment had not materially changed in that time period.   

5.     Effect of AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2

After the hearing of the Appeal in late October 2025 judgment was reserved at the request of the parties pending the High Court’s decision in AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 (AA) which was handed down on 11 February 2026.  In AA the High Court overturned the decision in New South Wales v Lepore (2003) 212 CLR 511 on the question of whether a non-delegable duty of care is owed in respect of harm caused by an intentional criminal act.  Both parties were given leave to file supplementary submissions addressing the impact of the High Court’s decision in AA on the grounds for appeal in this case.

Ultimately, the Court of Appeal rejected Mr Hartnett’s argument that AA mandated a new ’trauma-informed fact-finding methodology for historical institutional abuse cases. The requirement for actual persuasion under Briginshaw v Briginshaw (1938) remains applicable and good law. Considerations of memory frailty, delay and absence of contemporaneous complaint may legitimately inform, but do not determine, the fact-finder’s assessment. The Court of Appeal was therefore not persuaded that the High Court decision in AA altered the findings on the appeal lodged by Mr Hartnett.

Outcome and next steps

The Court of Appeal unanimously dismissed the appeal with costs.  The Court has provided guidance and confirmed the approach and construction by Justice Campbell on what is required to meet the threshold of ‘serious physical abuse’ in the context of s 6A of the Act, particularly in a school setting involving allegations of corporal punishment, which were historically permitted as a form of discipline.  The Court has also confirmed the benefit and advantages a trial judge has in hearing the evidence of witnesses first hand.  Parties to institutional abuse claims have guidance and understanding on the thresholds required under s 6A and the need to establish a high level of seriousness either through sustained or repeated conduct or serious physical acts of abuse.