Greenwood v Department of Education (No 2)

Representation: Counsel:
E G Romaniuk SC / J B Masur (Plaintiff)
D Lloyd SC / C Robertson (Defendant)
Solicitors:
BPC Law (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2022/00382008

Publication restriction: N/A

JUDGMENT

1. HIS HONOUR: On 28 August 2025, the Court as presently constituted issued judgment in the substantive hearing in this matter. The Court gave judgment for the defendant and, subject to what now follows, ordered the plaintiff to pay the defendant’s costs of and incidental to the proceedings. The Court gave leave for a party to make an application for a special or different order as to costs within seven days of the publication of the judgment.

2. On 4 September 2025, within seven days of the principal judgment, the plaintiff sought a special or different order for costs. The application of the plaintiff is that the Court make no order as to costs and, in that respect, vacate order 2 issued on 28 August 2025.

3. The plaintiff’s basis for the application can be briefly stated. It depends to a large extent on an understanding of the principal judgment.

4. The plaintiff submitted that he was a victim of child sexual abuse suffered at the hands of an employed teacher or executive staff member when he was a student at one of the defendant’s schools. Further, the plaintiff submitted that the Court, in the principal judgment, found that the defendant’s negligence was causative of the abuse from which the plaintiff suffered, and which caused him harm and damage. Consequently, the plaintiff submitted that, in those circumstances, the plaintiff being otherwise deserving of compensation, ought not to be ordered to pay the defendant’s costs.

5. In accordance with the leave granted in the orders issued on 28 August 2025, the defendant responded to the application. Without dealing with the principles recited, the defendant reiterated that the Court gave judgment for the defendant and in the defendant’s favour in circumstances where the Court could not be comfortably satisfied that the person named as the perpetrator of the abuse, and otherwise of good character, had inflicted the injury on the plaintiff.

6. The defendant submitted that there is no relevance or consequence of the circumstance that the Court was comfortably satisfied that the plaintiff had been abused by a member of staff while the plaintiff was in Year 6, because that was not the case advanced by the plaintiff and the defendant did not respond to it. In those circumstances, the defendant submitted that there is no reason that the ordinary rule should not apply and that costs should follow the event.

Principles

7. Even though these proceedings are common law proceedings, the Court is a court of general jurisdiction, including jurisdiction in matters of equity. Consequently, the Court had and has inherent jurisdiction to award costs. The Court does not need to rely upon its inherent jurisdiction. The provisions of s 98 of the Civil Procedure Act 2005 (NSW) provide the Court, and all civil courts governed by the Civil Procedure Act, with a broad discretion to order costs. The Court is permitted to award costs and to determine whom and to what extent costs should be paid.

8. An order that a party should pay costs is discretionary. The discretion must be exercised judicially. [1] In exercising the jurisdiction to order costs the Court takes into account the overriding purpose of the Civil Procedure Act to facilitate the just, quick and cheap resolution of the real issues between the parties. [2]

9. A costs order is compensatory only and is not punitive. [3] Costs are awarded by the Court, ordinarily, on the basis that a party is entitled to be compensated for the cost of enforcing or defending its rights and/or liability.

10. While the conduct of a party may impact upon the order to pay costs, or the basis upon which such cost should be assessed, such conduct is required to be of a kind that takes the proceedings out of the ordinary.

11. As the Uniform Civil Procedure Rules 2005 (NSW) make clear, the ordinary rule is that costs following the event, and it is only in exceptional or unusual cases that the ordinary rule is displaced. [4] When dealing with the ordinary rule, reference to the event is a reference to the ultimate outcome of the proceedings.

12. Where a party obtains judgment, the party will ordinarily be compensated for the costs incurred in obtaining such judgment and the successful party, in common law proceedings, can reasonably expect that the party would be awarded costs against the unsuccessful party. [5]

13. The factual basis for each of the plaintiff’s and defendant’s submissions is correct. The plaintiff claimed that he was abused at a school by a named senior executive staff member. The defendant opposed the claim on the basis: that the named senior executive member did not abuse the plaintiff; that there was in place a policy which required open doors which prevented or dealt with the risk adequately; that, because there was no history of abuse known to the school or defendant, there was no foreseeable risk; and that administrative staff could and would see into the office in which it was alleged the abuse occurred, which would also adequately deal with any risk.

14. Most of the evidence concerned the alleged open-door policy, the capacity to see into the office in question, foreseeability, and the liability of the defendant. On each those aspects, the Court found against the defendant.

15. The “only” evidence on the issue of the abuse occurring was adduced through the plaintiff and the named executive officer. Some evidence was adduced as to the lack of opportunity, but such evidence related more to the open-door policy than to the occurrence of any abuse. Some other evidence was adduced as to the alteration in the behaviour of the plaintiff and its timing.

16. In my view, the defendant was reasonably in a position to submit that the plaintiff was not abused by the person named in the Statement of Claim. Those were the instructions and/or evidence from the alleged perpetrator. The defendant is the model litigant.

17. The submission on liability and the evidence adduced in support of it, particularly the evidence of the open-door policy and the visibility of the executive officer’s office was, on the evidence adduced by the defendant itself, unavailable. The defendant should have been in a position to accept liability, assuming that the Court found that abuse by the executive officer occurred.

18. In all of the circumstances, the nature of the “event” is less than straight forward. The majority (if not all) of the evidence on liability was adduced by the defendant. It could have determined for itself that visibility into the office was minimal. It could also have determined for itself that the so-called open-door policy was a practice that was not universally applied, and any closed door was not the subject of enquiry or policing.

19. If the defendant is compensated for the costs of running the case on liability and the other factors, the Court will be encouraging parties to run all defences when only one can withstand scrutiny and will be forcing the plaintiff to bear the cost on issues on which he was successful. Such an outcome would neither facilitate the expeditious hearing of matters nor would it be just.

20. Bearing in mind the factors mentioned, I am satisfied that the ordinary rule ought not to apply. There will be a variation of the ordinary rule.

21. The Court makes the following orders:

22. Vacate orders (2) and (3) issued by the Court in this matter on 28 August 2025.

23. Issue a new order in the following terms:

“(2) The plaintiff shall pay one-third of the defendant’s costs of and incidental to the proceedings.”

3. Proceedings dismissed.

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Endnotes

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11.

Civil Procedure Act 2005 (NSW), s 56.

Oshlack, supra.

Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 42.1.

Latoudis v Casey (1990) 170 CLR 534 at 557.6 (Dawson J), 569.4 (McHugh J); [1990] HCA 59.