BTM1 v Scout Association of Australia New South Wales Branch [2023] NSWSC 431

Supreme Court New South Wales

Medium Neutral Citation: BTM1 v Scout Association of Australia New South Wales Branch [2023] NSWSC 431 Hearing dates: 17 June 2022, 8 July 2022 Date of orders: 28 April 2023 Decision date: 28 April 2023 Jurisdiction: Common Law Before: Garling J Decision: See [244] Catchwords: CIVIL PROCEDURE — Stay of proceedings — Claim for damages for historical sexual abuse — Abuse admitted — Abuse occurred between 1979 and 1982 — Claim of direct liability against institution — No available evidence regarding the defendant's knowledge of any particular risk posed by the perpetrator — No available evidence which would enable a response to allegations of breach of duty — Permanent stay ordered CIVIL PROCEDURE — Stay of proceedings — Claim of vicarious liability — No evidence of the particular role assigned to the perpetrator — Permanent stay ordered CIVIL PROCEDURE — Stay of proceedings — Claim for damages for historical sexual abuse — Abuse admitted — Perpetrator alive and available to give evidence — Where perpetrator had pleaded guilty to and been sentenced for related offences — Where perpetrator was shown to have an interest in shifting moral blame for his conduct — Perpetrator not an independent witness whose availability would enable a fair trial Legislation Cited: Civil Liability Act 2002 Pt 1B, Div 3 Civil Procedure Act 2005 s 67 Evidence Act 1995 Limitation Act 1969 s 6A Uniform Civil Procedure Rules 2005 r 2.1 Cases Cited: Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 Fields v Trustees of the Marist Brothers [2022] NSWSC 739 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 PCB v Geelong College [2021] VSC 633 Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird [2020] NSWSC 1379 Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 Walters v Cross-Country Fuels Pty Ltd [2009] NSWCA 10 Texts Cited: Not applicable Category: Principal judgment Parties: BTM1 (Plaintiff/Respondent) The Scouts Association of Australia New South Wales Branch (Defendant/Applicant) Representation: Counsel: D Campbell SC / C Simpson (Plaintiff/Respondent) N Hutley SC / J Sleight / E Dunlop (Defendant/Applicant)