MM v CR

[2025] NSWDC 346

District Court

New South Wales

Medium Neutral Citation:

MM v CR [2025] NSWDC 346

Hearing dates:

22 August 2025

Date of orders:

22 August 2025

Decision date:

22 August 2025

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

In relation to the Notice of Motion filed on 12 August 2025:

(1) The hearing commencing 8 September 2025 is vacated.

(2) The plaintiff is to pay the first defendant’s costs of the Notice of Motion and the first defendant’s costs thrown away by the vacation of the hearing date as agreed or assessed and the second defendant’s costs of such matters as agreed.

(3) The plaintiff is to file and serve any expert liability report by 10 October 2025. No expert liability report may be served by the plaintiff after this date and relied upon without leave.

(4) The defendants are to file and serve any responsive expert liability report by 12 December 2025.

(5) The matter is listed for hearing on 13 July 2026 with an estimate of 5 days.

(6) The Standard Orders for Hearing are made.

(7) Liberty to apply on 2 business days’ notice.

(8) Exhibit A on the application is to be returned to the plaintiff.

Note:
The failure to brief an expert in a timely fashion is due to the plaintiff’s solicitors not the plaintiff personally. It is in the interests of justice to vacate the hearing as the plaintiff personally is not to blame. The second defendant’s costs have been agreed with the plaintiff.

Catchwords:

PRACTICE AND PROCEDURE – alleged sexual battery of a school student – application to vacate hearing date where plaintiff personally not at fault – relevant factors

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Australian International Aviation College Pty Limited v Zheng [2025] NSWCA 190

Davis v Kent [2017] NSWCA 122

SA (a pseudonym) v Hatfield [2025] NSWDC 56

Category:

Procedural rulings

Parties:

MM (Plaintiff)
CR (First Defendant)
Matthew Freeborn (Second Defendant)

Representation:

Counsel:
T Meakes (Plaintiff)
J Tryon (First Defendant)
Z Carrigan (Second Defendant)

Solicitors:
Beston Macken McManis (Plaintiff)
Makinson d’Apice Lawyers (First Defendant)
Brander Smith McKnight (Second Defendant)

File Number(s):

2023/00221641

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) publication of the name of the plaintiff, and any information tending to reveal the identity of the plaintiff, is prohibited except as may be necessary for the proper conduct of the proceedings.

JUDGMENT – EX TEMPORE

1. Before the Court for determination is a Notice of Motion filed on 12 August 2025 by the plaintiff, MM, seeking orders vacating a hearing date and for consequential relief relating to the service of expert evidence.

2. The proceedings were commenced on 12 July 2023 by the plaintiff. The background alleged in the Statement of Claim commencing the proceedings is one that is commonly described as “institutional abuse”, but it is more important to be accurate in relation to that in the particular circumstances of the case.

3. The plaintiff alleges that she was a year 7 school student at a school in 2005, that she was subject to alleged bullying by other children, and that she stayed behind to talk to the second defendant, Mr Freeborn, who was alleged to be her music teacher, in relation to that. It is alleged by the plaintiff that over several occasions, sexual conduct occurred between them, including penetrative sexual intercourse. Having regard to the age of the plaintiff, she could not legally consent to that conduct. I should say at the outset that the second defendant, who subsequently was made a party to the proceedings, strongly denies that the incidents occurred as alleged.

4. The plaintiff initially commenced proceedings solely against the first defendant, CR, which is the representative for the body said to be in charge of the school. Allegations are made of a breach of a duty of care owed to the plaintiff by CR. The claims against the second defendant allege intentional torts. If established, they would give rise to the torts of battery, with compensation to be determined. Aggravated damages are also sought by the plaintiff, which would not be available under the Civil Liability Act 2002 (NSW) against the first defendant. Aggravated damages may theoretically be available against the second defendant if the torts alleged are established. The allegations are serious ones and obviously the Briginshaw standard as reflected in s 140 of the Evidence Act 1995 (NSW) would need to be satisfied.

5. The matter was listed for hearing by the Judicial Registrar on 13 November 2024 for five days commencing on 8 September 2025. There were late orders made by the Judicial Registrar in early July 2025 for the first defendant to file its lay evidence by 31 July 2025. Having regard to the proximity of the hearing date, that is a surprising late order to be made, but it was made by consent.

6. The evidence before me provides that the first defendant has served three statements. Only one of them is before me in evidence on the application, which was made Exhibit A. It is a statement of AW dated 29 July 2025 of seven pages with 327 pages of annexures. There is no suggestion that the three statements are expert reports but I do note that Ms W was the assistant principal at the relevant school and she later became the principal of the school. Mr Tryon, who appears for the first defendant, emphasises the fact that Ms W’s statement is not an expert report.

7. The evidence before me from the solicitor for the plaintiff, Mr McManis, establishes to my satisfaction that no fault can be placed at the feet of the plaintiff personally in relation to the failure by the plaintiff’s solicitors to obtain expert opinion in relation to the matter. There is no suggestion that the plaintiff is a sophisticated person or has any background legal knowledge, other than through personal experience in the justice system. There is certainly nothing to suggest that she has personal knowledge of civil matters of the type here alleged. The second defendant, as I indicated, has denied the charges, and has, on the evidence of his solicitor Mr Tax, which was read on the application, quite properly taken steps to brief counsel and to be ready for the hearing.

8. The principles to be applied by the Court in relation to the vacation of a hearing date are clear. Generally, very good reason is needed to vacate a hearing date that has been set for a long period of time. I made that point clear in paragraph 24 of SA (a pseudonym) v Hatfield [2025] NSWDC 56. I refer in particular to my analysis of the authorities in paragraph 25 and following in that judgment.

9. It is also the opinion of the Court of Appeal. I have referred in argument to the clear statement of principle by the Court of Appeal in Davis v Kent [2017] NSWCA 122 at [33]. I also referred to the recent decision of Price AJA in Australian International Aviation College Pty Limited v Zheng [2025] NSWCA 190 handed down on 18 August 2025.

10. This application, as Price AJA noted in Zheng, is properly to be regarded as one under s 66 of the Civil Procedure Act 2005 (NSW). Price AJA set out the principles applicable in paragraphs 11 to 12, and in paragraph 17 emphasised the importance, as reflected in the Civil Procedure Act ss 56 to 59, of the overriding purpose, the objects of case management, the elimination of delay, and most importantly, the dictates of justice. They are the factors that the Court must, as a matter of legal principle, take into account.

11. However, there are other matters that are relevant to the exercise of the Court’s discretion within those principles. They include the following in the present case:

1. The serious nature of the allegations made by the plaintiff and, in particular, the serious allegations that are made against the second defendant;

2. The desire, where a matter has been set down for final hearing for a long time, to have the hearing commence and conclude to finality, as the Court of Appeal said in Davis v Kent;

3. The effect a vacation of a hearing date has on parties to proceedings personally and on witnesses through delay and by having a matter hanging over their heads for a long period of time;

4. The fact that in the present case, on the face of the evidence, no blame can be attributed to the plaintiff herself for the delay;

5. On the facts of the case, the inadequacy of the preparation of the plaintiff’s case seems to lie at the feet of her instructing solicitors;

6. I take into account that the first defendant produced documents relating to practices and procedures of the school and in relation to other schools operated by the first defendant here. As a matter of common sense they should have been reviewed carefully by the plaintiff’s solicitors, and if expert evidence was desired to be obtained, an expert should have been briefed properly and well before the expert was briefed in the present case on 30 June 2025, which was not properly followed up by the plaintiff’s solicitor;

7. Therefore, no blame at all can be levelled at the first defendant which produced the relevant documents well in time;

8. The fact that orders were made on 2 July 2025 for the first defendant to have further time to serve any lay statements. These were served within the orders and the extension was granted by consent. Therefore, it does not sit well with the plaintiff to then complain about the material served;

9. However, I take into account simply by the one statement that I have in front of me in evidence that the first defendant thought it necessary and to its advantage to put on a statement which brings the issues together in the form of that served of Ms W. One would expect, having been provided with that statement in discussing the relevant documents, however long they have been otherwise available, that the plaintiff would want to consider that statement and face the alternatives of either challenging it in cross-examination or obtaining some expert evidence in relation to the matter;

10. The delay and the imposition on the defendants is significant. However, a strong point is the fact the plaintiff herself does not appear to be at fault;

11. Costs issues are significant. On the basis of the evidence which has been read in the affidavit of Ms Warren, who is the solicitor for the first defendant, the plaintiff has no real assets. It appears that she is a person of very limited means. Therefore, if a vacation is ordered and the usual costs order was made, there would be real issues about the capacity of the defendants to obtain proper recompense from the plaintiff for those wasted costs.

12. All of the above matters are significant ones for the Court to take into account. In addition, the second defendant has read the affidavit of Mr Tax, solicitor, who sets out in detail the large financial imposition on the second defendant if the hearing of the matter was vacated. This was raised by the Court as a serious and concerning matter with Mr Meakes of counsel, who appears for the plaintiff. An opportunity was given for the plaintiff and the second defendant’s legal representatives to discuss the matter, and, as I understand it, some arrangements have been put in place, which mean that the issue of the financial imposition of any costs order is no longer a matter pressed by Mr Carrigan of counsel, who appears for the second defendant.

13. However, Mr Carrigan still submits that a vacation should not be ordered, having regard to the long period of time that the plaintiff’s lawyers have had to prepare the matter and the effect on his client of a vacation. Mr Tryon similarly emphasises that lengthy period in opposing a vacation on behalf of CR.

14. This is a difficult vacation of hearing application. There are factors on either side both for and against the vacation of the hearing. If there had not been any financial arrangement between the plaintiff and the second defendant, I would have had serious reservations in relation to the plaintiff’s application.

15. There has been nothing put before me in relation to any particular prejudice to the first defendant if the matter was vacated, other than the usual prejudice and the inability for the first defendant to recover its costs against the plaintiff. However, if the plaintiff is successful at any trial, no doubt the first defendant, who has put a cross-claim on against the second defendant in any case, could seek appropriate compensatory orders from the second defendant who, on the evidence before me, has real property of some sort, albeit that the equity in such property is unclear.

16. The Court has to balance the effect of a vacation of the hearing date on each of the parties. The Court obviously has sympathy towards the plaintiff in terms of the allegations made. However, they have not been tested. The Court also has sympathy in relation to the effect of the proceedings on the second defendant, particularly having regard to the extensive delay since the events in question occurred. There are many reasons why plaintiffs who allege that they were abused in certain situations delay in bringing proceedings, not least of which is that for a lengthy period, limitation issues could be raised by defendants. That is no longer the case, having regard to the recent amendments to the Limitation Act 1969 (NSW). However, the delay itself is a factor to take into account. I also take into account the effect on witnesses’ memories of further delay.

17. At the end of the day, the Court has to determine the application as to what is consistent with the interests of justice and whether a proper reason on balance, is given in support of the vacation. Although the first defendant was not in breach of any orders in serving the additional material, it is clearly material that warrants careful attention. I completely understand why those instructed by the plaintiff want to obtain an expert’s view in relation to it, albeit that Ms W is not an expert herself in terms of being an expert retained for the proceedings, but in fact was a person who was indirectly factually involved at the time, but has expertise and knowledge through the status which she enjoyed at that time.

18. Balancing all of the factors, I think the most powerful factors in favour of the vacation application are:

1. That the plaintiff is not at fault herself;

2. That the further material was served recently by the defendant, albeit consistent with orders of the Court;

3. That there is no actual prejudice referred to by the first defendant caused by a vacation;

4. That some arrangements have been made between the plaintiff and the second defendant, resulting in the second defendant no longer pressing the financial costs issue.

19. Exercising the discretion which I have under s 66 of the Civil Procedure Act 2005 (NSW), I am just persuaded that the plaintiff should be given an opportunity properly to consider the further material and obtain expert evidence to determine whether she wishes to continue with her claim, particularly against the first defendant.

20. I make the following orders:

In relation to the Notice of Motion filed on 12 August 2025:

1. The hearing commencing 8 September 2025 is vacated.

2. The plaintiff is to pay the first defendant’s costs of the Notice of Motion and the first defendant’s costs thrown away by the vacation of the hearing date as agreed or assessed and the second defendant’s costs of such matters as agreed.

3. The plaintiff is to file and serve any expert liability report by 10 October 2025. No expert liability report may be served by the plaintiff after this date and relied upon without leave.

4. The defendants are to file and serve any responsive expert liability report by 12 December 2025.

[His Honour then discussed with counsel new hearing dates].

The following further orders are made:

5. The matter is listed for hearing on 13 July 2026 with an estimate of 5 days.

6. The Standard Orders for Hearing are made.

7. Liberty to apply on 2 business days’ notice.

8. Exhibit A on the application is to be returned to the plaintiff.

Note:

The failure to brief an expert in a timely fashion is due to the plaintiff’s solicitors not the plaintiff personally. It is in the interests of justice to vacate the hearing as the plaintiff personally is not to blame. The second defendant’s costs have been agreed with the plaintiff.

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Decision last updated: 29 August 2025