As we all may know, permanent stay of proceedings of historical abuse claims is a very live topic in this area of law currently, and it is important that both survivors and practitioners are kept up to date on the Courts decisions and commentary in these application hearings.  

In this matter, on 28 October 2021, the defendant (the Scout Association of Australia New South Wales Branch (No.2)) filed an application seeking a permanent stay of the plaintiff’s (BTM1, a pseudonym) proceedings. The defendant submitted that: 

a) The assaults occurred over 40 years before proceedings were commenced, and that it might well be expected that key witnesses have died or are unable to give an accurate account of the time, or else that key persons’ memories may have faded. 

b) The defendant is prejudiced in circumstances where there is no independent witness, nor any documentary evidence, available to test the plaintiff’s allegations as to the defendant’s knowledge of the risk of harm, and the conduct of its activities in such a way as to amount to a breach of duty, to the plaintiff. 

c) There is no evidence that the facts, matters and circumstances were known by anyone of authority within the defendant’s organisation.  

d) “The primary conclusion of the investigation conducted by the defendant is that all relevant witnesses are dead or have dementia or other health concerns which make them unavailable to provide reliable factual accounts of what happened at the time or to give evidence at any trial of this matter. The defendant says that, to the extent any evidence has been discovered, that evidence is confused, confusing, and contradictory, which is unsurprising given the age of the matter, namely, over 40 years. The defendant submits the absence of relevant office holders and any records from the time in respect of the appointment of the perpetrator means that it is unable to deal with the allegation that its systems and procedures were inadequate to protect Scouts from abuse by Scout Leaders. In this regard, the defendant notes that it is not structured centrally and that the practices of its various Districts were different from one another and changed over time. In those circumstances, the defendant submits that it would not be a remedy to its prejudice to obtain evidence from people who performed similar roles at other locations or at different times.” 

e) The availability of the perpetrator does not remedy this unfairness, and that it is clear that the perpetrator is attempting to shift moral blame from himself to the defendant.  

f) “…there is only conflicting evidence about the system or practice of monitoring by the defendant of Scout Leaders and Assistant Scout Leaders during the relevant period. The defendant says it is particularly prejudiced because the responsibility for monitoring rested with the relevant District Commissioners, none of whom is available.” 

g) In relation to vicarious liability, “…there is no independent evidence of the defendant’s actions which put the perpetrator in a position of power and intimacy vis-à-vis the plaintiff and which gave the occasion for the wrongful acts, such that they could be regarded as having been committed in the course of the perpetrator’s “employment”.” 

h) “…the circumstances are exceptional and justify the granting of a permanent stay.” 

Further information in relation to the hearing and primary decision can be found in our previous article, Abuse Law – Stay of Proceedings Case Law Update – BTM1 v Scout Association of Australia New South Wales Branch [2023] NSWSC 431. On 28 April 2023, the New South Wales Supreme Court was satisfied that the circumstances were so exceptional as to require an order that the plaintiff’s proceedings be permanently stayed. The Court further ordered that the plaintiff pay the defendant’s costs of the proceedings including the costs of and incidental of the application.   

Following the grant of the permanent stay of the plaintiff’s proceedings, the defendant sought an order from the court in relation to costs. The plaintiff sought to modify such an order on the following five grounds: 

  • the plaintiff was within his rights to commence proceedings in the Court in order to seek compensation from the defendant, and he was emboldened so to do by the insertion of s 6A of the Limitation Act 1969 (NSW); 
  • the proceedings which were not an abuse of process at the outset, were only determined to be an abuse through no fault of the plaintiff because facts, which were solely within the defendant’s knowledge, came to light after the plaintiff commenced proceedings; 
  • the plaintiff could not have known that the proceedings were to be found by the Court to be such as to warrant a permanent stay. That was because the information adduced by the defendant upon which the Court’s findings were based, was outside the knowledge, power or control of the plaintiff; 
  • the plaintiff, as an individual, has already sustained significant financial loss and psychological damage as a consequence of the abuse which was admitted to having been perpetrated upon him by an identified individual; and 
  • to make the plaintiff pay the costs of the defendant, including senior and junior counsel, would bring the plaintiff to financial ruin. 

In response, the defendant that the plaintiff was fully informed of the evidence upon which the defendant would rely to seek the order in the Notice of Motion many months prior to the hearing. This fact had the consequence, since the plaintiff fully resisted the order for a stay, that the ordinary costs order would be made.  

On 14 July 2023, the New South Wales Supreme Court through Garling J provided at [20], and [23] to [24] as follows: 

Claims of the kind made by the plaintiff here, namely for damages for sexual assault made against a party which did not itself perpetrate the sexual assault but rather is being sued for its failure to prevent the sexual assault occurring, or alternatively, as being vicariously liable for the damages which would be payable by the perpetrator because of its relationship to that perpetrator, are not capable of being regarded as always likely to succeed. Accordingly, plaintiffs embarking upon litigation which, depending upon the facts and circumstances, may have varying prospects of success are taking a risk that they may not succeed and may be subject to the usual order for costs. No doubt, when they initiate litigation in such circumstances, a diligent solicitor acting for them will have ensured that the risks of the litigation and the financial consequences of it are fully and properly explained. 

The matters advanced by the plaintiff here seem to suggest that by reason of the events which occurred, the plaintiff had an entitlement to compensation which was to be vindicated by bringing proceedings at common law against a party who was not the perpetrator but against whom a right to recover damages was asserted. The plaintiff’s claim in fact was a proceeding which was one attended by all of the usual risks of litigation. The interlocutory proceedings brought by the defendant were available to the defendant providing it could establish, by evidence, that it was unable to respond to the proceedings, that it would not have had a fair trial and that the proceedings were, in accordance with the authorities, of an exceptional kind sufficient to warrant a grant of relief by way of permanent stay. 

Ultimately, the Court dismissed the plaintiff’s application for a revised costs order. The Court ordered that the costs order originally made will remain.  

Further updates in relation to the stay of proceedings of historical abuse cases can be found in other articles on our website written by Emily Wright and our office.  

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today. 

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