BTM1 v Scout Association of Australia New South Wales Branch (No.2) [2023] NSWSC 806 (on Caselaw).
Garling J.
Following a permanent stay order the defendant obtained an order for costs. The plaintiff sought to modify such an order on five grounds, summarised as follows:
- the plaintiff was within his rights to commence proceedings in this 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 have 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 (though there was no evidence on this isssue).
The defendant submitted 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 before the hearing occurred. This fact had the consequence, since the plaintiff fully resisted the order for a stay, that the ordinary costs order would be made.
Garling J commented at [20], [23]-[24]:
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.
The application by the plaintiff for a revised costs order was dismissed.
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