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File Number(s): 2025/00427542

Publication restriction: Nil

JUDGMENT – EX TEMPORE (REVISED)

1. The Court has before it two notices of motion, one filed by the plaintiff seeking expedition and one filed by the defendant seeking that the statement of claim be struck out or that proper particulars be provided.

Costs

2. Following a discussion with counsel before me, the plaintiff proposes to replead rather than press the existing statement of claim. I have in substance granted the application for expedition, based in substantial part on the plaintiff’s age and ill-health, and will be fixing the matter for hearing and ordering a timetable to bring the matter to trial in approximately three months.

3. The plaintiff seeks his costs of his notice of motion.

4. The defendant’s position was that the State did not oppose expedition in principle, but resisted the particular orders sought (including that the defendant serve its defence within 7 days).

5. I am not persuaded to make an adverse costs order against the defendant in respect of the plaintiff’s motion. As the defendant points out, the plaintiff would always need to make a proper case before the Court for expedition. An order for expedition involves a matter receiving a hearing date earlier than other litigants before the Court and a case on evidence will generally need to be made for such an order.

6. The plaintiff contended that if the defendant had responded more constructively to the motion for expedition, the time might have been spent agreeing to a timetable rather than preparing for a contested hearing. I am not persuaded that that is the case, although it is unfortunate that the parties had not discussed possible directions. In any event, I have two motions before me, and I propose to consider costs in the context of both motions.

7. The defendant seeks its costs of its notice of motion. For the reasons that follow, I am not persuaded that a costs order is appropriate against the plaintiff.

8. The plaintiff has accepted a need to replead in light of Justice Kirk’s observations in St Paul***’***s College Ltd v Allan [2026] NSWCA 22 about the relatively straightforward way in which a claim might be pleaded for historical abuse allegedly suffered by a person at a school or similar institution charged with the care and control of children. I add those words about “a similar institution” on the basis of a submission before me that the institution in question here, the Mittagong Training School for Boys, was at least in part as much a children’s residential care facility as a school. Neither party before me submitted that Justice Kirk’s observations in St Paul’s College about pleading non-delegable duty or vicarious liability would not be applicable to the case sought to be advanced by the plaintiff.

9. The plaintiff has not accepted the defendant’s criticisms of the current statement of claim. While it is not necessary for me to rule on them, I would observe that the defendant’s criticisms were more generally directed towards the proposition that there was not enough information in the pleading, and that the State did not understand how it was said to owe a duty to the plaintiff, the plaintiff being a person who is alleged to have been a child in the care of the State and placed by the State in a school or care facility operated by the State and staffed by State employees.

10. Suffice to say I do not consider that either party engaged seriously with the substance of Justice Kirk’s reasons in St Paul’s College before the argument before me today.

11. In declining to order costs, I am mindful of Kirk JA’s observations at [89]-[92] that a matter can readily proceed on an imperfect pleading if the case is clear enough to the defendant. In such a situation, the purposes of pleadings may be sufficiently met even if the statement of claim is flawed. As Chief Judge in Equity Ward put it in McMillan v Coolah Home Base (No 3) [2020] NSWSC 1325 at [6]:

There comes a point where, imperfect or otherwise as the pleading may be, it is in the interests of the proper administration of justice that the matter simply proceed and be dealt with on its merits (assuming the defendant is fairly put on notice of the case against it).

12. Chief Justice Martin in Barclay Mowlem Construction Ltd v Dampier Authority (2006) 33 WAR 82; [2006] WASC 281 at [9] said that:

In many cases, elucidating and resolving the objection would consume an amount of time and resources, which is entirely disproportionate to the benefit to be derived from that process in terms of the identification of the true issues which have to be met in that case.

13. It has not been necessary for me to rule on whether this is such a case, because the plaintiff has said he will replead, recognising that the plaintiff seeks expedition and that the matter is likely to proceed faster and more efficiently if the plaintiff’s narrower case (following the High Court’s decision in *AA v The Trustee of the Roman Catholic Church for the Diocese of Mainland-*Newcastle (2026) 100 ALJR 170; [2026] HCA 2 and the Court of Appeal’s decision in St Paul’s College) is set out in an amended statement of claim.

14. The hearing today was necessary in any event. The plaintiff has enjoyed substantial success in relation to his application for expedition, including the fixing of a trial date and orders bringing the matter to trial – orders which the defendant resisted.

15. In fairness, while I have some reservations about whether the correspondence and documentary material filed on both sides was consistent with the guiding principles of civil litigation, I do not consider either party has engaged in conduct that calls for the censure of this Court. Both counsel before me have approached the issue constructively and co-operatively, while seeking appropriately to preserve their client’s position.

16. Taking all those matters into account, I consider the appropriate costs order is that the costs of both notices of motion be costs in the cause.

17. For these reasons, I made timetabling orders for the preparation of the matter for trial. In relation to the disputed question of costs, my order was that costs of the two notices of motion be costs in the cause.

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