SR v Trustees of the De La Salle Brothers (No 3) [2023] NSWSC 448

Supreme Court New South Wales

Medium Neutral Citation: SR v Trustees of the De La Salle Brothers (No 3) [2023] NSWSC 448 Hearing dates: On the papers Date of orders: 28 April 2023 Decision date: 28 April 2023 Jurisdiction: Common Law Before: Cavanagh J Decision: The order made on 9 February 2023 (that is, that the defendant pay the plaintiff's costs) is maintained. Catchwords: COSTS — historical sexual assault claim – where judgment amount was close in value to offer of compromise made before the hearing – whether defendant entitled to rely on its offer of compromise – whether plaintiff should be entitled to indemnity costs based on defendant's conduct Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 20.26 Category: Costs Parties: SR (Plaintiff) Trustees of the De La Salle Brothers (Defendant) Representation: Counsel: S E McCarthy (Plaintiff)

Solicitors: Koffels Solicitors & Barristers (Plaintiff) Carroll & O'Dea Lawyers (Defendant) File Number(s): 2021/82884 Publication restriction: None

Judgment 1. On 9 March 2023, I entered judgment for the plaintiff in the sum of $1,330,304.60. I ordered the defendant to pay the plaintiff's costs. I also granted liberty to the parties to apply on 3 days' notice should they seek a variation on costs. 2. On 28 March 2023, I received submissions from the plaintiff on costs. The plaintiff seeks an order that the defendant pay his costs: 1. on an ordinary basis up until 11 April 2022; and 2. on an indemnity basis from 12 April 2022. 1. On 28 March 2023, the defendant responded stating that it had offered the sum of $1,312,500 to the plaintiff after a mediation on 30 September 2022. The defendant submits that, as the difference between the judgment amount and the offer was only $17,804.60, there should be a variation of the usual costs order in that: 1. the defendant pay the plaintiff's costs up until 30 September 2022; and 2. there be no order for costs after 30 September 2022. 1. Attached to the defendant's submissions was an Offer of Compromise made in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR'). 2. On 4 April 2023, the plaintiff provided further submissions on costs emphasising his position in respect of indemnity costs and disputing the defendant's contention that the plaintiff had pursued a trial over approximately $18,000. As the plaintiff submitted, it might also be said that the defendant had pursued a trial over $18,000. 3. The defendant then provided further submissions on 4 April 2023 and a further affidavit of Martin Slattery sworn 4 April 2023 which was, in effect, a further submission. 4. It is not necessary to reiterate all of the submissions. I have considered them. It is only necessary to say the following: 1. Firstly, I accept the defendant's submission that this was a matter of some complexity and difficulty and that there were difficulties obtaining instructions and determining its position, having regard to the death of the perpetrator, Mr Swain (who died in 1985). 2. In circumstances in which the perpetrator of the abuse has long since died and the plaintiff was pursuing a claim on the basis not just that the defendant was negligent (the direct claim), but also that it was vicariously liable for the conduct of the perpetrator of the abuse, it does not seem to me to have been unreasonable for the defendant to have not admitted liability. That is, the defendant was entitled to put the plaintiff to proof, particularly in a case in which there was a range of abuse alleged at different times and places. 3. Further, I do not consider that, in some way, the plaintiff should be entitled to indemnity costs because the defendant only made admissions shortly before the hearing. I am not satisfied on the evidence presented on the application for costs that there was sufficient evidence before me which would permit a finding that the defendant unnecessarily prolonged the litigation or raised issues which were not reasonably available to it. 4. I raised some concern in my judgment about the approach of the defendant but, consistent with the plaintiff's submissions, I combined general and aggravated damages. 1. Having said that, I do not accept the defendant's submission that the plaintiff has run a hearing over $18,000. That is not the correct way of looking at it. If it was, the same could be said about the defendant. 2. The defendant did not do better than its Offer of Compromise. Presumably, for this reason, it does not seek the usual orders which follow an Offer of Compromise. Rather, it suggests that because it got so close, there should be no order for costs. 3. I do not agree with that submission. That would be applying hindsight. The UCPR provides for the making of offers which have costs consequences. There is nothing in the UCPR which suggests that if a party made an offer which was close to the ultimate result, there should be a different costs order. 4. Of course, I accept that I have a broad discretion in this regard, but this was not a case in which it must have been recognised by the plaintiff that the plaintiff could never have recovered any higher amount by way of damages. It is not necessary to repeat my findings except to say that my assessment of damages reflects a significant discount on the amount claimed by the plaintiff. 5. As far as the plaintiff's submissions are concerned and for the reasons I have already indicated, I similarly do not accept that the plaintiff should be entitled to indemnity costs because the defendant should have made an admission of liability. 6. Apart from anything else, whilst I accepted that sexual abuse occurred, I did not find it necessary to make findings as to precisely what abuse occurred on any particular date. It occurred over a period. Further, I did not accept a number of aspects of the plaintiff's case. 7. In the end, the defendant is not entitled to rely on its Offer of Compromise and the plaintiff does not suggest that it made any offer, whether by way of Offer of Compromise or not, which could have an impact on costs. 8. I am not persuaded that there should be any variation of the usual order for costs and the order I made on 9 February 2023 (that is, that the defendant pay the plaintiff's costs) will not be varied.