Another Permanent Stay of proceedings granted

BTM1 v Scout Association of Australia New South Wales Branch [2023] NSWSC 431

The plaintiff was sexually abused by Paul Hayes (“the perpetrator”), a scout leader and assistant scout leader, between 1979 and 1982. The defendant admits the plaintiff was repeatedly sexually abused by the perpetrator between 1979 and 1982, as the perpetrator pled guilty to 24 charges relating to sexual abuse of the plaintiff. The perpetrator is still alive, and willing to give evidence in the proceeding.

The plaintiff pled that the defendant owed him a duty to take reasonable care to protect him from sexual abuse by Scout Leaders or Assistant Scout Leaders in their conduct towards the child members of the Scout Group of which they were Leaders. The defendant claims that all potential witnesses to the defendant’s knowledge of the risk of harm, and the conduct of its activities amounting to a breach of duty to the plaintiff, are either dead, suffer from dementia or other health concerns that mean they are unavailable to give evidence.

The perpetrator was available to give evidence, however, was not considered independent as he would attempt to shift moral blame from himself to the Scout Group. The perpetrators evidence contains elements that are therefore highly prejudicial to the defendant. There is no contrary evidence where alternative findings could be made as to how the perpetrator was interviewed, supervised and monitored by the defendant.

The Court decided that because:

1. There is no reliable evidence to the system, the policies and procedures in regards to hiring the perpetrator, supervising and monitoring the perpetrator, prevent grooming of and sexual activity with members of the Scout Group.
2. There were no witnesses, including the perpetrator, to give independent and relevant advice about the above.

Justice Garling in the NSW Supreme Court granted the defendant a permanent stay of proceedings and all costs.

Vicarious Liability

The plaintiff pled that the defendant was vicariously liable for the sexual abuse committed by the perpetrator while an Assistant Scout Leader and Scout Leader. Civil Liabilities Act (2002) states that an organisation is vicariously liable for the child abuse perpetrated by their employees, or those akin to an employee.

The defendants deny that the perpetrator was an employee or akin to an employee of the Scout Group, and was rather a volunteer, and therefore the Scout Group is not vicariously liable.

For the Court to find is the perpetrator was akin to an employee of the Scout Group, it must consider a number of factors. The particular role that was assigned to the perpetrator by the Scout Group could not be shown in evidence. There is no evidence, such as documents or reliable witnesses, that could describe the role in which the perpetrator was assigned by the Scout Association. Possible witnesses, such as the perpetrators direct supervisors, are either dead or incapacitated to such a degree that they could not give evidence. Therefore, a permanent stay was granted as the defendant could not reasonably defend the claim that the perpetrator was akin to an employee.

Permanent stay and limitation period of child abuse claims

Garling J emphasised that a permanent stay of proceedings in matters relating to child abuse is not incompatible with the legislative decision to remove the limitation period of child abuse claims that followed the Royal Commission. The Limitation Act 1969 (NSW) s6A(6) states that the removal of limitation on child abuse claims does not limit a Court’s power, including the power to grant a permanent stay of proceedings. Furthermore, a limitation period that permits or precludes the commencement of proceedings, and whether the defendant can obtain a fair trial that does not constitute an abuse of process, are two completely distinct issues.

The defendant must have made adequate inquires and must not be unable to meet the case due to its own neglect or default. These two criteria must be met for a permanent stay of proceedings to be granted.

The Court found that the circumstances are so exceptional as to require an order that the plaintiff’s claims of direct liability and vicarious liability be permanently stayed. This is in part due to the fact that the events occurred over 40 years ago, and that people in key positions to give evidence were unable to do so. This meant that the defendant could not defend any claims against them, and a permanent was granted.

This article was prepared with the assistance of Issac Simpson.