BWP2 v The Corporate Trustees of the Diocese of Grafton

[2023] NSWSC 1610

Supreme Court

New South Wales

Medium Neutral Citation:

BWP2 v The Corporate Trustees of the Diocese of Grafton [2023] NSWSC 1610

Hearing dates:

08 December 2023

Date of orders:

08 December 2023

Decision date:

08 December 2023

Jurisdiction:

Common Law

Before:

Garling J

Decision:

Case Management orders made.

Catchwords:

CIVIL PROCEDURE – court administration – case management – where both parties have not complied with case management orders on multiple occasions – matter is not prepared properly for trial – unacceptable delay in hearing plaintiff’s claim – conduct of parties resulted in ineffective use of court resources – refusal to adjourn final hearing

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Evidence Act 1995 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

BWP2 (P)
The Corporate Trustees of the Diocese of Grafton (D)

Representation:

Counsel:
C O’Brien (P)
D Stretton (D)

Solicitors:
Ken Cush & Associates (P)
Sparke Helmore Lawyers (D)

File Number(s):

2021/360919

Publication restriction:

Not applicable

ex tempore JUDGMENT

1. These proceedings involve a claim for damages arising from the alleged historical sexual abuse of the plaintiff.

2. On 10 August 2023, the Court made orders for the case management of these proceedings, including fixing the matter for a five-day hearing to commence on 19 February 2024.

3. Those orders were made against a background of previous case management orders, including the granting of extensions of time to the parties in circumstances where parties had not complied with previous case management orders made by the Court.

4. Order 2 of the Court’s orders made on 10 August 2023, directed in the format used in matters of this kind, that the plaintiff was to serve on the defendant written statements, pursuant to r 31.4 of the Uniform Civil Procedure Rules 2005 (NSW) (the “UCPR”):

“of each witness, including the plaintiff, that he intends to adduce in chief on any and all questions of fact to be decided in the proceedings".

5. Rule 31.4 of the UCPR provides that where statements are ordered, and the maker is called as a witness, the statement stands as the whole of their evidence-in-chief. No further evidence of that witness is permitted without leave of the Court: r 31.4(5)(6) UCPR. I also note that failure to comply with a direction made under r 31.4 may not adduce evidence to which the direction relates without leave of the Court: r 31.4(6) UCPR.

6. A direction under r 31.4 of the UCPR is not to be understood in any way by any party to the proceedings as not referring to, or including, witnesses that are to be called to give evidence of the tendency of a person to have a state of mind or to behave in a particular way, which evidence may be admissible under Part 3.6Tendency and Coincidence of the Evidence Act 1995 (NSW). Any such "tendency" witness is a witness on a question of fact, albeit a “circumstantial fact”, to be decided in the proceedings, which relates to whether the perpetrator conducted themselves in the way alleged in a Statement of Claim. Clearly, compliance with the notice obligations under ss 97 and 99 of the Evidence Act is essential before that evidence can be given at a hearing.

7. Whilst the standard case management order does not specifically refer to the service of a Tendency Notice, statements of tendency witnesses that are served have no meaning, relevance or capacity to be admissible without an accompanying Tendency Notice which complies with the relevant legislation.

8. In this case, it seems that no attention was turned to the need to serve all statements of “tendency witnesses” or a Notice at the time the r 31.4 Order was made – compliance with which is required.

9. It cannot be assumed, in the conduct of damages claims of this kind, that those witnesses who are to give evidence to prove a “conduct” or a “behavioural tendency” or a “state of mind” tendency, will not be required to be called and will not be required for cross-examination, nor can it be assumed that their statements, whenever made, do not have to comply with r 31.4 of the UCPR and be in admissible form. Any such assumption or conclusion is wholly misguided.

10. There has not been compliance in full as yet by the plaintiff with Order 2 of the orders of the Court made 10 August 2023, notwithstanding that almost four months have passed, and the final hearing of the damages claim is a little over two months away. Non-compliance of that kind is wholly unacceptable. It raises a question of whether the practitioner's obligations under s 56(4) of the Civil Procedure Act 2005 (NSW), have been breached.

11. The defendant in this case was also ordered, pursuant to r 31.4 of the UCPR, to serve a written statement of the oral evidence of each witness that it proposed to call, again, on any and all questions of fact to be decided in the proceedings. The defendant had an obligation to do so by 20 October 2023. Whilst the plaintiff was five days late in serving such statements as have been served, no doubt upon request, the plaintiff would have consented to an extension for the defendant’s compliance for a similar period.

12. However, the Court has been informed this morning, by an affidavit of the solicitor with the conduct of the file whose conduct is subject to the supervision of a partner of the firm acting for the defendant that as yet no statements have been served and investigations are presently being made to identify any potential witnesses. The affidavit informs the Court that the defendant did not commence to make any investigations to locate any potential witnesses until a date after the expiration of the time within which the defendant’s statements were ordered to be served.

13. It seems to me to be clear, and counsel for the defendant did not proffer any alternative explanation, that the only conclusion which can be drawn, is that, contrary to the Court’s orders, the solicitors for the defendant received instructions from their client to do nothing about obtaining evidence until after the parties participated in a Court annexed mediation on 19 October 2023 (i.e. the day before the relevant deadline). That mediation was unsuccessful.

14. If I am correct in drawing that conclusion, it is clear that those instructions meant that the defendant was deliberately ignoring the Court’s order, preferring to approach this litigation in a manner which it chose, rather than that which complied with the Court’s orders.

15. When this matter was dealt with on 10 August 2023, the Court reserved liberty to both parties to apply to restore the matter to the list. If the defendant proposed to give instructions to its solicitor to ignore Court orders, then it was obliged, as was the solicitor on the record for that defendant, to first restore the matter to the list and seek to vary the orders. It did not do that.

16. The defendant now seeks an extension of time within which to file and serve statements to support its case. It seeks that extension until 20 December 2023, which is a date after the close of the Law Court term.

17. As well, having regard to the fact that such enquiries as have been made in the five weeks since the unsuccessful mediation, the solicitor for the defendant did not alert the Court that the defendant had not been able to find or speak to any of the alleged perpetrators who might be capable of giving evidence. It has emerged only this morning that it had managed to locate only one former individual associated with the North Coast Children's Home at Lismore. That individual does not wish to co-operate with the defendant's enquiries.

18. I should add, by way of context, that this is not the first claim for damages for historical sexual abuse against this defendant arising from the conduct of the North Coast Children’s Home.

19. The defendant now says that if it cannot locate at least two of the remaining three alleged perpetrators, they anticipate making an application to the Court for a permanent stay of part, at least, of the proceedings. Having regard to the time of year, and the fact that the proceedings are listed for a final hearing on 19 February 2024, the defendant proposes that any Motion seeking a permanent stay of the proceedings be heard at the time the matter is listed for hearing, but that it be heard first, followed by the hearing of that part of the plaintiff’s claim which has not been sought to be stayed, or else the whole of the case if the application for a stay is unsuccessful.

20. When the matter was fixed for trial on 10 August 2023, and an estimate of five days hearing time was made, the parties were asked what, by way of evidence, their cases would consist of, to the best of their knowledge at that time, so that a proper estimate could be made of the likely length of any hearing. Such an estimate is essential to ensure the proper allocation of judicial resources, and, also, to ensure that other litigants in the Court are able to have cases heard at the first available opportunity.

21. The Court was told at that time that the plaintiff would have five lay witnesses and one expert witness. Although the time had not arrived for the defendant to serve its statements, the solicitor for the defendant informed the Court that it would be correct for the Court to proceed on the basis that it did not need to provide for a “very long period” for any evidence from the defendant. On the basis of those assurances, a hearing date was fixed upon the basis of the estimate which was given.

22. It is now apparent that the basis upon which that information was provided to the Court by both parties was quite unreliable, not the least because the defendant had not commenced to make any enquiries to locate any potential witnesses, but also because the list of witnesses to be called by the plaintiff has since then significantly expanded.

23. Ordinarily, the consequence of this sorry state of affairs would be for the Court to simply vacate the hearing date, and to make further directions to ensure that the parties prepare the matter properly for trial and, then, when the Court was assured that the matter was prepared properly for trial, it would fix a fresh hearing date, which would be in the second half of 2024.

24. Proper preparation for any trial of these proceedings would include filing any interlocutory Motion seeking a stay of the proceedings in whole, or in part, at an early time. That is obviously necessary because, if the proceedings are not to continue, then any expenditure by the plaintiff in preparation of the case is wholly wasted in the event that a stay is ordered.

25. I wish to express, in the strongest possible terms, the Court's disapproval of the conduct of both parties in these proceedings. Neither party has paid any attention at all to the Court's orders to ensure that the matter is properly prepared. Further, neither of the parties, nor their solicitors, seems to have paid any attention to their obligations under the Civil Procedure Act.

26. The Court has been placed, by the conduct of the parties, in an invidious position. It does not even yet have a final position of the defendant as to whether it will, or will not, seek to have orders made staying the proceedings, at least in part.

27. The proper conduct of litigation of this kind requires close attention by the parties to the orders of the Court, and compliance with them. It requires the early addressing by the parties of their obligations to comply with Court orders, and to comply with the overriding purpose set out in s 56 of the Civil Procedure Act.

28. This is now the sixth directions hearing to be held seeking to ensure that this matter is ready for trial. The proceedings were commenced in late 2021 and were first before the Court for directions on 17 February 2022. The matter has not proceeded in an efficient way.

29. Compliance with Court orders by both parties has been intermittent, and, as a consequence, the hearing of the plaintiff's claim has been delayed well past an acceptable period and may not now occur in whole on 19 February 2024. Whether that will occur depends upon what may happen about the defendant’s filing of a Notice of Motion seeking a permanent stay of part of the proceedings, and the reaction of the plaintiff to any adverse orders if such orders are made.

30. This Court invests significant judicial resources in case management of claims for damages for historical sexual abuse. That is because the Court recognises that such claims need to be heard as quickly as is possible in circumstances where it is notorious that the conduct of the litigation is itself capable of placing enormous stress and anguish on plaintiffs who claim to have been sexually abused, individuals who are themselves a defendant or witnesses in the proceedings, and those individuals who comprise institutions who are being called to account for conduct which usually occurred many decades ago.

31. Unless parties that are joined in the litigation pay careful attention to their obligations under s 56 of the Civil Procedure Act, and participate properly, and co-operatively, in the case management process which the Court orders, a situation will quickly be reached whereby the judicial resources available in this Court are simply unable to cope with the flood of cases which the Court has in its list.

32. At the moment, the Court has no additional judicial resources to give to the management and hearing of this case without diminishing its capacity to deal with other litigants in the Court. If every party to proceedings in this Court were to conduct themselves the way the plaintiffs and defendants have in this case, all other litigants bringing claims of this kind would be impeded from having their claims heard promptly.

33. It is unusual for the Court to express in some detail its disquiet about noncompliance with orders in this list, but this is a case in which the conduct of the parties has forced the Court into a position where this case must be dealt with inefficiently, in a more expensive way, and in a way which does not make appropriate use of judicial resources.

34. With a significant degree of reluctance, and because I do not wish the Court to be involved in delaying the plaintiff's case from being heard, I will not adjourn the hearing of the plaintiff's claim.

35. It should be clear from these remarks that that attitude is not likely to persist in other matters of this kind.

36. I will make appropriate case management orders.

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Decision last updated: 18 December 2023