WJT v Trustees of the Marist Brothers; WXC3 v Trustees of the Marist Brothers; GAC v Trustees of the Marist Brothers (No 2)

These reasons deal with an application by the Trustees of the Marist Brothers (‘the first defendant’) to tender select paragraphs from the evidentiary statements of Dr Michael Green, dated 30 August 2024 and 29 and 30 May 2025. The first defendant argues that they are admissions and are, therefore, admissible as exceptions to the hearsay rule: s 81 of the Evidence Act 1995 (NSW).

Given the admissibility argument did not complete until after 4:00pm, I rejected the tender of the material on 17 June 2025 and indicated that I would give my reasons for doing so in the morning. These are my reasons for ruling as I did.

The tender of the material by the first defendant is intended to support its case – or rather its defence – to the second defendant’s cross claims against it. The cross claims filed in each action are in substantially identical terms. Essentially, the second defendant admits that it operated and managed the school but argues that it did so jointly with the first defendant.

The first defendant strongly contests that it was responsible for the school in the way alleged, or at all. The first defendant’s ultimate argument is that it is not a tortfeasor liable to make contribution towards any liability in damages that the second defendant has or might have to one or other plaintiffs. The evidence that the first defendant seeks to tender through the relevant paragraphs of Dr Green’s statement is broadly directed to the factual issues involved in resolving that argument.

Section 87 of the Evidence Act concerns admissions made with authority. Relevantly, s 87(1) provides:

The term ‘admission’ is defined in the Dictionary to the Evidence Act as follows:

The terms ‘previous representation’ and ‘representation’ are also defined in the Dictionary to the Evidence Act. Relevantly here, the definition of ‘representation’, by sub-paragraph (b), includes “a representation to be inferred from conduct”.

Before dealing with the arguments and the reasons for my ruling, it should be emphasised that it is necessary to approach the admissibility of the evidence having regard to the description of the first defendant’s case which, as earlier noted, includes a contention that the first defendant’s involvement in the appointment of Dr Green was limited to nominating him for the position. Further, its case is that when Dr Green became principal of the school, he reported directly to and was directed and supervised by the Executive Director of the Catholic Education Office. This approach is necessary to avoid determining, on a question of admissibility of evidence, a final issue in the case.

The first defendant submitted that the paragraphs contained in the evidentiary statements of Dr Green include admissions that essentially relate to the way in which the second defendant “oversaw the operations of the school”, and that there was “no doubt” that he had the authority (within the meaning of s 87(1)(a)) to make the “admission” that he supposedly did. It argued that that authority was readily apparent given Dr Green was the principal of the school between 1992 and 1996.

The first defendant also emphasised that Dr Green’s statement dated 30 August 2024 was served by the second defendant. As to the materiality of who served that first statement, the second defendant’s riposte was that the statements dated 29 and 30 May 2025 were served by the first defendant and not it.

Here, the first issue is whether it is reasonably open to find that, as at the time of making each of these statements, Dr Green had general authority to make statements of those kind. That is, in the language of s 87(1)(a), whether Dr Green “had authority to make statements on behalf of the party in relation to the matter”.

The approach required by the section was described in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90 at [20] as:

It may be accepted that a school principal has general authority to make statements. However, it remains necessary to consider the precise nature of the representations to determine whether the making of them is within that general authority and, if so, whether the statements or representations are admissions.

The evidence initially sought to be tendered by the first defendant and which was argued to constitute admissions made by Dr Green (as a person with apparent authority to make them) related to the following three areas:

During submissions, the first defendant revisited the paragraphs of Dr Green’s evidentiary statements that it sought tender – confined to the first and seventh sentences within paragraph 26 of Dr Green’s evidentiary statement dated 30 August 2024.

The first sentence of paragraph 26 provides that Dr Green, after the allegations against Mr Hawkins were brought to his attention by Mr Pate, informed the Catholic Education Office and “followed the directions given to [him]”. The quotation from that sentence was said to constitute the admission. As I understood the argument, the first defendant’s contention was that evidence would be relied upon by the first defendant against the second defendant, and would assist in drawing an inference about control (or the apparent lack thereof).

As Mr Sheller SC submitted, the difficulty with the first defendant’s argument relates to the obvious ambiguity in the evidence given its form: the identity of the person that Dr Green spoke to is not identified, nor are the terms of the “directions” that were apparently conveyed. In my view, it would be speculative and cause considerable unfairness to the second defendant to infer, favourably to the first defendant on this application, what was said and by whom. To put it slightly differently, these key matters would need to be established to accept that the representation amounted to an admission about the relationship between the parties and the location of the power in that relationship. They were not.

It follows that I am unpersuaded that that part of the first sentence relied upon by the first defendant amounts to an admission and, separately, given its form and its doubtful weight, I would not, exercising the discretion under s 135 of the Evidence Act, admit the evidence.

The seventh sentence of paragraph 26 provided that the Catholic Education Office took over an investigation into what had been alleged “as it involved a lay teacher”. The quotation from that sentence was argued to amount to an admission, essentially on the footing that it established a clear demarcation between the roles and functions of the principal and the Catholic Education Office. The argument appeared to be that Dr Green admitted to handing the investigation over to the Catholic Education Office.

Much like the first sentence in this paragraph, the form of this evidence is also problematic. It amounts to a conclusion or opinion based upon facts that were not – or were not sufficiently – expressed. In any event, the statement itself appears to be contradicted by Dr Green’s participation in an interview with Mr Hawkins on 14 September 1993, as he explained in paragraph 27.

It follows that I am unpersuaded that the seventh sentence amounts to an admission and, separately, given its form and its doubtful weight, I would not, exercising the discretion under s 135 of the Evidence Act, admit the evidence.

For the above reasons, the tender of the first and seventh sentences of paragraph 26 of the evidentiary statement of Michael Green dated 30 August 2024 is rejected.