Stay of Proceedings Case Law Update – BTM1 v Scout Association of Australia New South Wales Branch [2023] NSWSC 431

As we all may know, permanent stay of proceedings of historical abuse claims is currently a live topic in this area of law, and it is important that both survivors and practitioners are kept up to date on the Courts decisions and commentary in these application hearings.  

On 28 April 2023, the New South Wales Supreme Court provided a decision in the matter of BTM1 v Scout Association of Australia New South Wales Branch [2023] NSWSC 431. In this matter, the defendant (the Scout Association of Australia, New South Wales Branch) filed an application seeking a permanent stay of the plaintiff’s (BTM1, a pseudonym) proceedings.  

In summary, the plaintiff commenced court proceedings on 21 August 2020 against the defendant for alleged sexual abuse suffered by the plaintiff when he was a member of the 1st Toongabbie West Scout Group by Paul Hayes between 1979 and 1982. The plaintiff sought damages for breaches of common law and statutory duties by the defendant, and for intentional tort on the part of the perpetrator in which the plaintiff claimed that the defendant was vicariously liable.  

In October 2017, the plaintiff reported the abuse by Paul Hayes to the police. After conducting investigations, the police charged Paul Hayes. In June 2020, Paul Hayes plead guilty to 24 charges relation to his sexual abuse of the plaintiff.  

On 28 October 2021, the defendant filed an application to permanently stay the plaintiff’s proceeding, submitting at [116] to [124] that:

a) The assaults occurred over 40 years before proceedings were commenced, and that it might well be expected that key witnesses have died or are unable to give an accurate account of the time, or else that key persons’ memories may have faded.

b) The defendant is prejudiced in circumstances where there is no independent witness, nor any documentary evidence, available to test the plaintiff’s allegations as to the defendant’s knowledge of the risk of harm, and the conduct of its activities in such a way as to amount to a breach of duty, to the plaintiff.

c) There is no evidence that the facts, matters and circumstances were known by anyone of authority within the defendant’s organisation.

d) “The primary conclusion of the investigation conducted by the defendant is that all relevant witnesses are dead or have dementia or other health concerns which make them unavailable to provide reliable factual accounts of what happened at the time or to give evidence at any trial of this matter. The defendant says that, to the extent any evidence has been discovered, that evidence is confused, confusing, and contradictory, which is unsurprising given the age of the matter, namely, over 40 years. The defendant submits the absence of relevant office holders and any records from the time in respect of the appointment of the perpetrator means that it is unable to deal with the allegation that its systems and procedures were inadequate to protect Scouts from abuse by Scout Leaders. In this regard, the defendant notes that it is not structured centrally and that the practices of its various Districts were different from one another and changed over time. In those circumstances, the defendant submits that it would not be a remedy to its prejudice to obtain evidence from people who performed similar roles at other locations or at different times.”

e) The availability of the perpetrator does not remedy this unfairness, and that it is clear that the perpetrator is attempting to shift moral blame from himself to the defendant.

f) “…there is only conflicting evidence about the system or practice of monitoring by the defendant of Scout Leaders and Assistant Scout Leaders during the relevant period. The defendant says it is particularly prejudiced because the responsibility for monitoring rested with the relevant District Commissioners, none of whom is available.”

g) In relation to vicarious liability, “…there is no independent evidence of the defendant’s actions which put the perpetrator in a position of power and intimacy vis-à-vis the plaintiff and which gave the occasion for the wrongful acts, such that they could be regarded as having been committed in the course of the perpetrator’s “employment”.”

h) “…the circumstances are exceptional and justify the granting of a permanent stay.”

The plaintiff submitted the following at [125] to [133]:

a) The evidence on the Motion (application) is very different to the evidence which would unfold at trial. The statements prepared by the investigator “…are as important for what they do not say as for what they do say.”

b) There are other potential remedies to the defendant’s prejudice, such as a trial judge’s powers to limit the admission of unfair evidence under the Evidence Act 1995.

c) This case is far removed from other cases that have resulted in a permanent stay being granted. The plaintiff relied on the availability of the perpetrator, “…who is capable of providing important and relevant evidence relating to the occurrence of the abuse, the circumstances out of which it arose and the structure of the defendant, and how it allowed him to act as he did.”

d) There are many witnesses who can talk about the way in which the Scout Group operated.

e) There are no issues arising from the passage of time opined by the medico-legal experts regarding quantum, consistent histories, comorbid circumstances and diagnoses.

f) In evaluating whether the continuation of the proceedings would bring the administration of justice into disrepute “amongst right-thinking people”, it is necessary to weigh into the balance those policy considerations. The plaintiff argued that:

“Parliament is reflective of those right-thinking, right-minded persons who have decreed… the community’s right to expect that such issues will go to trial”. [made through oral submissions at the hearing].

g) In light of all the available evidence, the defendant’s Motion (application) to permanently stay the plaintiff’s proceedings must fail.

At [202] and [203], the Court provided:

In summary, because:

(1) there is no reliable evidence available to the defendant to determine what system, if any, the defendant had in place in the Prospect District to supervise and monitor Scout Leaders and Assistant Scout Leaders of the Scout Group;

(2) there is no reliable evidence available to determine what policies and protocols were in place to identify the situations and circumstances where unlawful acts could occur and to prevent sexual grooming of and sexual activity with members of the Scout Group, or to otherwise deal with the general risk identified in the Scout Organisation Rules;

(3) there is no reliable evidence available to determine whether and how the defendant interviewed, investigated the background of, supervised and monitored the perpetrator;

(4) there is no reliable evidence available to determine whether and how the defendant investigated the conduct of the perpetrator before he was appointed Scout Leader or Assistant Scout Leader of the Scout Group;

(5) the District Commissioners at the time, namely Messrs Jackson and Thornley, are unavailable to give evidence;

(6) Mr Green, who was a Leader and is said to have been closely involved with the perpetrator and his interactions with Scouts in the Scout Group, is dead and has been so since 1981; and

(7) no other witness, including the perpetrator, is available to given independent and relevant evidence about the above matters,

the defendant has satisfied me that it is unable to meet a case against it that it is directly liable to the plaintiff for breaching its duty of care to him.

Because it is unable to meet this pleaded case, it is not possible for it to have an opportunity to defend the case, or for it to engage in any meaningful defence of the plaintiff’s allegations. Any trial would be so unfair because it would not be a contest at all. It would be an abuse of the judicial process contemplated by adversarial litigation. In this case, there clearly exist exceptional circumstances, including that the abuse occurred over 40 years ago.

In relation to vicarious liability, the Court provided at [219] and [220]:

In my view, the defendant is unable to meaningfully respond to the claim that it is vicariously liable for the criminal acts of the perpetrator. Although, as I have said, the Scouts Organisation Rules provide for the functions of Leaders, among other things, there is simply nothing known about the particular role which the perpetrator was assigned within the Scout Group. I note that the Scouts Organisation Rules do not say anything at all about driving Scouts to and from Scouting events or meeting with Scouts other than at Scouting events. And although there is some circumstantial evidence of the role he performed, as perceived by Scouts, there is no evidence of whether the defendant acquiesced in or authorised the perpetrator to undertake the functions which gave rise to the abuse of the plaintiff. No documents exist which describe the role actually assigned to, or carried out by, the perpetrator.

I accept that that evidence of knowledge and acquiescence about particular activities could be expected to be given by the perpetrator’s direct superiors within the organisation, most notably Messrs Green, Jackson and Thornley, who are all unavailable to give evidence. In their absence, the effect of requiring the defendant to respond to the plaintiff’s claim would be seriously and unfairly burdensome, prejudicial and damaging. It would be manifestly unfair.

Of note, the Court provided at [197] and [198]:

In my view, the interests of the perpetrator and the defendant are entirely divergent. In short, the perpetrator has pleaded guilty to, and has been convicted of, crimes which relate to the abuse the subject of this claim. He has to that extent accepted responsibility and been punished for his conduct and, as he describes in his statement, he has been “engaged in rehabilitation” since 2002. In those circumstances, I accept that the perpetrator would benefit, at the very least in a psychological way, from a finding in these proceedings that the defendant breached its duty of care to the plaintiff. That is because, in my view, the perpetrator will perceive such a finding as shifting at least in part, his moral blameworthiness for perpetrating the abuse of the plaintiff to the defendant. As he said in his statement, “[he believes] in hindsight if [he] had been told about the parameters of what [he] could and couldn’t do with the children at the Leadership Courses that [he] may not have committed the offences”. The perpetrator is therefore not an independent witness, and any evidence which he might give which is adverse to the defendant, creates a specific prejudice if there is no ability to contradict him or produce contrary evidence.

As well, there is every reason to doubt the truthfulness of the perpetrator, and hence his reliability as a witness. Male-to-male sexual activity at the time of these assaults was, and had been, completely unlawful for many, many years. At no time had it been legal for boys of the plaintiff’s age at the time of the conduct. The essential proposition underlying the perpetrator’s statement is a nonsense. That is, although as he must have known the acts of sexual abuse were criminal and unlawful, if only he had been informed by a person in authority in the Scout Organisation, he “may not” have committed the offence.

Ultimately, the Court was satisfied that the circumstances were so exceptional as to require an order that the plaintiff’s proceedings be permanently stayed. The Court further ordered that the plaintiff pay the defendant’s costs of the proceedings including the costs of and incidental of the application.

Further updates in relation to the stay of proceedings of historical abuse cases can be found in other articles on our website written by Emily Wright and our office.

We are specialist abuse lawyers and can help you receive acknowledgement, meaningful apology and financial resolution from those institutions and systems of power that failed to protect you from harm. If you would like advice in relation to a childhood or adult sexual, physical and/or psychological/emotional abuse claim in any jurisdiction in Australia, please reach out to the author, Emily Wright, at Littles Lawyers today.