Anderson v The Council of Trinity Grammar School [2018] NSWSC 1323

Supreme Court New South Wales

Medium Neutral Citation: Anderson v The Council of Trinity Grammar School [2018] NSWSC 1323 Hearing dates: 28 August 2018 Date of orders: 29 August 2018 Decision date: 29 August 2018 Jurisdiction: Common Law Before: Harrison J Decision: (1) Order the defendant to pay the plaintiff's costs of the motion. (2) Order that the costs thrown away or occasioned by reason of the adjournment should be the plaintiff's costs in the proceedings. Catchwords: COSTS – party/party – exception to general rule that costs follow the event – no point of principle Category: Procedural and other rulings Parties: The Council of Trinity Grammar School (Applicant/Defendant) Robert James Anderson (Respondent/Plaintiff) Representation: Counsel: N Hutley SC (Applicant/Defendant) J Maconachie QC with P Tierney (Respondent/Plaintiff)

Solicitors: Thompson Cooper Lawyers Pty Ltd (Applicant/Defendant) Porters Lawyers (Respondent/Plaintiff) File Number(s): 2018/174190 Publication restriction: Nil

Judgment 1. HIS HONOUR: These proceedings are listed for hearing commencing on 8 October 2018 with an estimate of four weeks. By notice of motion filed on 16 August 2018, the defendant seeks an order that the hearing be vacated. That application is based upon the following facts. 2. On 10 August 2018, Rothman J dismissed an application by the defendant seeking a permanent stay of the proceedings. In brief compass, the plaintiff claims damages for injuries sustained as the result of alleged sexual assaults at the hands of a teacher employed by the defendant. The allegations relate to events at the school between 1974 and 1976. The defendant's application proceeded upon the basis that having regard to what was described as "the effluxion of time", and the death of a number of key witnesses, the defendant was no longer able to ascertain the existence of any insurance from the relevant period and is otherwise prejudiced. It is presently unnecessary to describe the precise basis of the defendant's application further. 3. Rothman J dealt with the matter by pronouncing his orders but did not at the same time publish his reasons for judgment. Those reasons have still not been provided. 4. The defendant has indicated that it intends to seek leave to appeal against his Honour's decision. A draft summons seeking leave has been provided to me. The defendant has not been able to finalise its application without his Honour's reasons. The defendant is concerned that the appeal will or may not be determined before the anticipated hearing of the substantive action. 5. The plaintiff neither opposes nor supports that course. However, implicit in the plaintiff's position is a recognition or acceptance of the fact that the defendant's success on appeal would conclude the proceedings. Having regard to the difficult and sensitive nature of the allegations and events upon which the plaintiff's cause of action is based, he is concerned that he not be exposed to the stress of a contested trial if that in due course turned out to be unnecessary. 6. The issue that I am asked to decide is the question of the costs of this application and the costs, if any, thrown away or occasioned by reason of the adjournment. The defendant contends that the costs should be reserved. The plaintiff submits that he should have his costs or, at the very least, that the costs should be his costs in the proceedings. 7. The currently listed hearing date was allocated as long ago as late 2017. The original statement of claim was filed on 29 January 2016. Garling J made detailed directions for the conduct of the proceedings on 8 December 2017. The plaintiff was given leave to file an amended statement of claim by 14 December 2017. An amended defence was filed a week later. The defendant's application for a permanent stay was not filed until 25 May 2018. 8. It seems to me that if the defendant's notice of motion that ultimately came before Rothman J had been filed before Christmas 2017, both that application and any application for leave to appeal to the Court of Appeal would have been determined well before now or at the very least by now. The original allocation of the hearing date should have been the impetus for the defendant's application permanently to stay the proceedings. The defendant's delay should not be at the plaintiff's cost. 9. In my opinion, the defendant should pay the plaintiff's costs of the motion. The costs thrown away or occasioned by reason of the adjournment should be the plaintiff's costs in the proceedings.