By Luke Geary, Partner and Lachlan Deer, Lawyer

The recent New South Wales Court of Appeal decision in Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia‑Forbes [2026] NSWCA 35 (Hartnett) offers a clear reminder that despite the altered landscape of institutional liability following the High Court of Australia’s decisions in GLJ, Willmot and most recently, AA, the application of the Briginshaw principle in assessing the balance of probabilities in civil law cases has not softened for historical abuse claims.

The claim in Hartnett concerned allegations of physical abuse of the Plaintiff at St Ignatius Parish School in the early 1990s. The Plaintiff alleged that his teacher, Sister Green, struck him daily with a wooden ruler and forced him to stand in the sun for extended periods. He further alleged that a teacher’s aide, Mr Dixon, kicked and karate chopped him for truanting.

At first instance, Campbell J dismissed the proceeding on the basis that the claim remained statute-barred, finding that, notwithstanding that Sister Green had administered some physical punishment, the conduct did not amount to “serious physical abuse” within the meaning of s.6A(2)(b) of the Limitation Act 1969 (NSW). In reaching that conclusion, his Honour considered the Plaintiff’s evidence together with that of the significant number of witnesses called by both parties. He relied on inconsistencies in the Plaintiff’s evidence, the significant passage of time, the absence of any contemporaneous report or record, and direct evidence from staff present at the time to conclude that the Plaintiff’s allegations were not established to the civil standard.

The case was appealed to the New South Wales Court of Appeal. Following the hearing, judgment was reserved, during which time the High Court handed down their decision in AA. The Court of Appeal received supplementary submissions in light of that very significant decision. In the Appellant’s submissions, it was contended that AA established a “new fact‑finding methodology” for historical child abuse cases; one that requires courts to view inconsistency, memory frailty, and delay through a “trauma‑informed lens” when determining foundational facts. Indeed, the submissions went as far as to posit that evidence could only be rejected “by findings that the Appellant and the eyewitness and tendency witnesses were lying, delusional, or collectively mistaken”. Completely rejecting this notion, Bell CJ, with Kirk JA and Ball JA agreeing, confirmed that the onus of proof had not been subverted and that the Briginshaw principle (which requires the trier to fact to reach “actual persuasion” before a fact can be found), had not changed because of the abolition of the limitation period under s.6A of the Limitation Act 1969 (NSW). The Chief Justice made reference to express acknowledgements of this fact as contained within the High Court’s own decisions in both GLJ and Willmot.

The Court otherwise held that the primary judge did not err in his factual findings in relation to the alleged physical abuse by Sister Green and Mr Dixon. It additionally found that the primary judge did not err in his Honour’s construction of s.6A(2)(b) of the Limitation Act 1969 (NSW).

Overall, Hartnett stands for two main propositions:

1. It is the present authority on the construction of s.6A(2)(b) of the Limitation Act 1969 (NSW), i.e., providing guidance for the phrase “serious physical abuse” within that statutory context; and
2. In cases of historical abuse, the standard of proof for plaintiffs remains the unchanged civil standard, informed by the Briginshaw principle (and relevantly in NSW, 140(2) of the Evidence Act 1995 (NSW)), meaning that just because a plaintiff is found to be a truthful witness (or one who is doing their best to recall events from a long time ago), does not mean that the plaintiff will have discharged their evidentiary burden if the court is otherwise unpersuaded to the requisite degree.