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[2026] NSWSC 931
Supreme Court of NSW
2026-08-05
Chen J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Soatini v State of New South Wales [2026] NSWSC 931
Hearing dates: 5 August 2026
Date of orders: 5 August 2026
Decision date: 05 August 2026
Jurisdiction: Common Law
Before: Chen J
Decision: (1) Order, pursuant to r 12.10 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings as between the plaintiff and the second defendant, be stayed until payment of the second defendant’s costs in proceedings 2022/354727. (2) Order the plaintiff to pay the second defendant’s costs of, and incidental to, the second defendant’s notice of motion filed 23 March 2026.
Catchwords: CIVIL PROCEDURE – Application to stay proceedings under r 12.10 of the Uniform Civil Procedure Rules 2005 (NSW) – Where the plaintiff’s previous claim was dismissed with costs – Whether the plaintiff’s identical second claim could proceed without payment of the costs in the previous proceedings
Legislation Cited: Civil Procedure Act 2005 (NSW)
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Bowen v Hickey (1958) 78 WN (NSW) 820
Gazzard v Wormald Malanda Pty Ltd atf Anthony Hekeik Trust [2025] NSWSC 689
Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271
Rice v Henley (1915) WN (NSW) 54
Romulus Remus Group Pty Limited v The Official Trustee in Bankruptcy [2026] NSWSC 317
Category: Procedural rulings
Parties: Moana Soatini (plaintiff)
State of New South Wales (first defendant)
Ian Duncan (second defendant)
Representation: Counsel:
Ms P Clingan (plaintiff)
Mr H Black (second defendant)
Solicitors:
Melinda Griffiths Lawyers (plaintiff)
Moray & Agnew Lawyers (first defendant)
Barwick Boitano Lawyers (second defendant)
File Number(s): 2025/00408792
Publication restriction: Nil
Choose an item.
In 2022, Moana Soatini (‘the plaintiff’) commenced proceedings against the first defendant seeking damages for psychological harm resulting from sexual abuse that he alleges was inflicted upon him between 1993 and 1995 whilst he was a primary school student. Given the terms of s 6A(1) of the Limitation Act 1969 (NSW) and the nature of these allegations, no limitation period applied to that claim for damages. In 2023, he filed an amended statement of claim adding the second and third defendants.
Following periods of inactivity by the plaintiff and his repeated failure to appear, on 17 December 2024 the proceedings were dismissed with costs pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’).
On 23 October 2025, the plaintiff filed a statement of claim seeking to pursue a claim against the first and second defendants: other than not proceeding against the third defendant, the claim is in identical terms to the earlier one. The defendants each filed applications seeking orders that the later proceedings be stayed pending payment of their costs of the earlier proceedings. Ultimately, the first defendant did not pursue its application, but the second defendant did.
These reasons deal with that application.
By statement of claim filed 24 November 2022, the plaintiff commenced proceedings against the State of New South Wales (‘the first defendant’), claiming damages for psychological injury arising out of sexual abuse alleged to have been perpetrated upon him whilst he was in primary school between 1993 and 1995.
On 27 September 2023, the plaintiff filed an amended statement of claim (‘ASOC’) adding the second defendant (a male schoolteacher) and third defendant (a female schoolteacher) to his action: each of them was alleged to have perpetrated the abuse allegedly inflicted upon the plaintiff. The third defendant did not appear, and it is unclear whether the ASOC was served upon her.
By the ASOC, the plaintiff alleged that the third defendant, the plaintiff’s then-year 4 teacher: inappropriately touched the plaintiff whilst in class; engaged in inappropriate sexual contact “on 7 separate occasions” when the plaintiff was “alone” with her during lunchtime; and, during lunchtime, would watch the plaintiff, “place her hand under her desk” and masturbate whilst watching him, something that is alleged to have “occurred on 10 separate occasions” (ASOC at [7](i), (iv)-(vi)). Separately, the plaintiff alleged that he was anally raped by the second defendant “on approximately five occasions between Year 4 and Year 6” (ASOC at [7](ii), (vii)-(x)).
In these proceedings, the plaintiff sought to recover damages for the psychological effects of the alleged abuse: as against the first defendant, the case advanced was in negligence and for vicarious liability based upon the acts allegedly committed by the second and third defendants (ASOC at [8]-[31]); as against the second defendant, no specific cause of action was identified – all that was alleged was that what occurred “amounted to child abuse” (ASOC at [36]).
On 21 June and 19 July 2024, the proceedings were adjourned to allow, relevantly, the plaintiff to serve the ASOC on the third defendant.
The second defendant filed an evidentiary statement and defences to the ASOC and cross-claim on 7 June 2024.
The first defendant also filed an application for a freezing order against the second defendant. On 10 July 2024, the Court made, by consent, an order of that kind over the real property of the second defendant. (When the proceedings were dismissed on 17 December 2024, it was noted that this freezing order “operates until 4pm on Tuesday, 17 December 2024, after which time it ceases” (order 5)).
On 6 August 2024, the second defendant’s solicitor received a notice of intention to file a notice of ceasing to act from the plaintiff’s solicitor and, on 19 August 2024, a notice of ceasing to act was filed and served by the plaintiff’s solicitor upon the second defendant’s solicitor. It may be noted that, in order for the plaintiff’s solicitor to cease to act, the former notice was required to be served upon the plaintiff prior to filing and service the latter notice: r 7.29(2) of the UCPR.
Once the plaintiff’s solicitor ceased to act, efforts were made, principally by the solicitors for the first defendant, to make contact with the plaintiff: letters were sent to the plaintiff via registered post and email, and further searches were undertaken to identify the plaintiff’s whereabouts, including an electoral roll search and the retention of an investigator.
The matter was listed for directions before the Common Law Registrar on (at least) 25 October and 15 November 2024. On each of those occasions, there was no appearance by, or on behalf of, the plaintiff.
In relation to that last listing, the orders and notations were:
- Note: again no appearance by [the p]laintiff.
- This order will be notification under UCPR 12.7 that if no appearance on next directions date, [the] [C]ourt might dismiss for want of due d[e]spatch.
- Adjourned to 17 December 2024 for directions.
- Registry to send a copy of these orders to the parties.
At the further listing on 17 December 2024, there was no appearance by, or on behalf of, the plaintiff.
The orders made, relevantly, were:
- The [p]laintiffs claim be dismissed pursuant to UCPR 12.7.
- The [p]laintiff pay the [f]irst and [s]econd [defendants’] costs.
- The [a]mended cross-claims filed 6 May 2023 be dismissed by consent of [the cross-claimant] and [cross-defendant].
- The [c]ross-[c]laimant and [c]ross-[d]efendant to bear its, his or her own costs of the [cross-claim].
- …
On 23 October 2025, the plaintiff filed a statement of claim in the current proceedings against the first and second defendants.
It was accepted by the parties, and I find, that but for the omission of the claim against the former third defendant, the plaintiff’s current claim against the first and second defendants is identical to the claim he advanced against them in the earlier proceedings.
12.10 Stay of further proceedings to secure costs of proceedings dismissed
If—
(a) as a consequence of the dismissal of proceedings, a party is liable to pay the costs of another party in relation to those proceedings, and
(b) before payment of the costs, the party commences further proceedings against that other party on the same or substantially the same cause of action, or for the same or substantially the same relief, as that on or for which the former proceedings were commenced,
the court may stay the further proceedings until those costs are paid and make such consequential orders as it thinks fit.
It was accepted, and I find, that the preconditions for the engagement of the rule are satisfied. That is because, as a consequence of the dismissal of the earlier proceedings, the plaintiff is liable to pay the costs of, relevantly here, the second defendant in relation to those proceedings (r 12.10(a)). Further, those costs have not been paid, and the plaintiff has commenced further proceedings against the first and second defendants “on the same… cause of action” as the earlier proceedings, as I have found (r 12.10(b)).
In relation to costs, it should be emphasised, particularly given the argument advanced by the plaintiff against the proceedings being stayed, that it does not matter that the costs are yet to be agreed or assessed. That is because the rule is only directed to the liability of – here – the plaintiff to pay the costs of the dismissed proceedings – a liability that arises upon the order being made: see the helpful discussion, albeit in the context of the similarly worded r 12.4 of the UCPR, in Romulus Remus Group Pty Limited v The Official Trustee in Bankruptcy [2026] NSWSC 317 at [93]-[101].
As to whether the Court should stay the further proceedings instituted by the plaintiff, the following principles were accepted to inform and guide the exercise of that power.
First, the rule rests on the principle that until the costs of the first proceedings are paid, prima facie the subsequent proceedings are “in the eyes of the court vexatious”: Bowen v Hickey (1958) 78 WN (NSW) 820, 822 (‘Bowen’); Gazzard v Wormald Malanda Pty Ltd atf Anthony Hekeik Trust [2025] NSWSC 689 at [26].
Secondly, the Court is conferred with a broad discretion to stay the second proceedings until the costs of the first are paid. Thus, upon the commencement of fresh proceedings, the “normal course” will require – relevantly here, the plaintiff – to pay or secure the second defendant’s costs of the dismissed proceedings before being allowed to prosecute the current proceedings: Idoport Pty Ltd v National Australia Bank Ltd [2002] NSWCA 271 at [83], citing, inter alia, Bowen. On other occasions, this has been described as the “general rule”: Rice v Henley (1915) 32 WN (NSW) 54, 55 (‘Rice’).
Thirdly, the second action is vexatious unless – again, relevantly here, the plaintiff – shows “some special circumstances which will justify the second action being allowed to proceed”: Bowen at 822, citing Rice at 55.
Fourthly, impecuniosity does not, of itself, amount to special circumstances: Bowen at 822-823.
The plaintiff advanced two arguments in opposition to the stay, as follows: first, the plaintiff raised various complaints about the costs that were being claimed by the second defendant and possible questions about their recoverability; and, secondly, the plaintiff argued he was impecunious and likely to remain so, with the consequence that granting the stay would, in effect, result in a permanent stay of proceedings.
In relation to the nature and extent of the costs being claimed by the second defendant, the plaintiff raised numerous arguments, including that those costs “have not been assessed”; that, in relation to the cross-claim filed by the first defendant against the second defendant, the Court made no order as to costs; and that the order for costs “was not for indemnity costs” (plaintiff’s submissions at [12](b)-(f), [19]). These arguments have no relevance to the current application, given the rule is expressed in terms of whether, as a consequence of the dismissal of proceedings, “a party is liable to pay the costs of another party”. That is this case. There is, as noted, no requirement to have those costs assessed for the rule to be engaged: see the discussion at [23], above.
The plaintiff’s submissions also referred to the second defendant’s costs being in excess of $40,000.00 (plaintiff’s submissions at [12](c)). It is unnecessary to dwell upon the exact amount incurred, but I am satisfied and find that it would be significant, and likely to be in the order of that claimed, given what was alleged in the earlier proceedings and the work known to have been performed over the several years that they were on foot. Further, I accept and find that this amount would be a significant burden on an individual, such as the second defendant.
In relation to the effect of the stay, the plaintiff argued that he has “struggled with homelessness” and is otherwise of limited means: his ultimate submission was that, given his impecuniosity, it is unlikely he will be in a position to recommence proceedings, such that the order sought by the second defendant – if made – would operate as a permanent stay (plaintiff’s submissions at [14]-[18], [20]).
The plaintiff’s submissions about him being homeless appeared to be directed to giving practical content to his impecuniosity. One submission was that the plaintiff was homeless when assessed by a psychiatrist, Dr Alice Neale, for medico-legal purposes in 2023. Another submission was that he was “homeless in the period between December 2024 to February 2026 and he did not have access to his emails and had no credit on his mobile phone” (plaintiff’s submissions at [15]). For that last period, the plaintiff’s evidence was that he was “residing in emergency accommodation, including homeless shelters” (plaintiff’s March 2026 affidavit at [6]).
The plaintiff’s homelessness appears to be an unfortunate, but recurring, feature of his recent, and relatively recent, circumstances. When assessed by Dr Neale in November 2023 following his release from custody in September 2022, he reported that “his last stable accommodation was in 2022”, and that he was unemployed and on Centrelink benefits (Neale report, page 5). Despite these matters, the plaintiff was able to instruct a solicitor, commence proceedings and, I infer, engage with that solicitor for at least for a number of years until his solicitor ceased to act for him in August 2024.
As to that last matter, the plaintiff and his solicitor each swore affidavits stating, in identical terms, that the solicitors ceased to act because, on 6 August 2024, “there was a breakdown of the relationship between the [p]laintiff and… the solicitor on the record” (Griffith March 2026 affidavit at [5]; plaintiff’s March 2026 affidavit at [4]). Aside from that bare statement, the evidence does not explain what this “breakdown” involved. Further, the plaintiff does not give evidence that, say, he had no understanding about what his solicitor’s ceasing to act involved, nor that he did not know that his claim remained on foot and that he would be required to take steps to progress it. There is no suggestion, I would add, that the requirements of r 7.29(2) of the UCPR were not met.
As to the further submission that, in the period from December 2024 to February 2026, the plaintiff was homeless, without access to his emails and often had no credit on his mobile phone, the import of that submission appeared to be that the plaintiff had some day-to-day challenges. That may be accepted. Against that, I would observe that, despite other periods of “homelessness” and unemployment, the plaintiff was able to participate in the proceedings and instruct a solicitor in the course of doing so: see [34], above. Further, I would also observe that these matters did not preclude him from speaking with a representative of Justice Equity in June 2025; nor did they preclude him from making contact with his solicitors to recommence his claim and instructing them to do so in September 2025.
To the extent that the plaintiff asserted that he was unaware of the “orders or directions” made in the first proceedings, including orders made leading up to their dismissal (plaintiff’s March 2026 affidavit at [5]), whilst, strictly and literally, that may be so, that was the necessary consequence of the termination of the retainer with his solicitor following the “breakdown”. Once that occurred, it was the plaintiff’s obligation to participate in Court processes himself: s 56(3) of the Civil Procedure Act 2005 (NSW); see also Linnell v Channel Seven Sydney Pty Limited [2015] NSWSC 583 at [10]-[11].
The plaintiff’s ultimate submission was that granting the order sought by the second defendant, given his limited means, would be tantamount to granting a permanent stay of the action.
In this respect, the plaintiff emphasised that this was a claim alleging sexual abuse. That may be accepted, but I doubt that the nature of the cause of action is important for the purposes of the rule; rather, what could, in a given case, be important is the strength of that cause of action. In this case, however, it is not feasible to make any finding about the strength of the cause of action – even in an appropriately preliminary way – given the extremely limited material in evidence.
In making that qualified finding, I have not overlooked that there is a “history” contained in the psychiatric medico-legal report from Dr Neale, but, against that, the following should be noted. First, there was no evidentiary statement from the plaintiff in evidence, nor any suggestion that one had been served. Secondly, the second defendant has squarely denied the allegations in the earlier proceedings – and filed a defence and served evidence to that end. Thus, it is not a case where, by way of one example only, the matters alleged are simply not admitted, and there is no evidence from the alleged perpetrator. Thirdly, and following on from the second matter, it is not a case where there is, say, evidence linking the alleged perpetrator to other instances of abuse or alleged abuse, thereby lending some broad support on the present application to the plaintiff’s claims. Fourthly, the medico-legal report also referred to accounts that the plaintiff reportedly gave that tend to suggest that he either denied – or, at a minimum, did not disclose – the alleged instances of sexual abuse whilst at primary school when assessed from time to time in various situations (Neale report, pages 3-5). Whilst, of course, there may be an explanation for (or a challenge to) this, it merely emphasises the present limitations in seeking to assess the strength of the plaintiff’s case.
To the extent the plaintiff raised his “[post-traumatic] [s]tress [d]isorder and [c]hronic [s]ubstance [d]isorder”, the existence of those conditions may be accepted (plaintiff’s submissions at [16]). However, their materiality to the present application was not further developed. Nonetheless, I note the following in relation to them. First, the existence of those conditions is not suggested to have impacted upon the plaintiff’s ability to instruct, and engage with, a solicitor and, to the extent that it was, I do not accept the submission. Secondly, in the medico-legal report from Dr Neale, it was not suggested that those conditions render (or have rendered) the plaintiff unfit for work – simply, if those conditions are accepted, he had a reduced capacity for work.
Whilst I accept that the plaintiff is of limited means, I am not prepared to infer that this position will continue indefinitely. As Mr Black submitted, the plaintiff’s evidence was a “bare snapshot” of his position. I note that the plaintiff’s affidavit does not address what steps he has taken, or is taking, to secure work, nor did it address his employment intentions more generally.
It follows, therefore, that none of the matters raised by the plaintiff, or their combination, persuade me that the “normal course” or “general rule” should here be displaced. In my view, there is nothing in the circumstances advanced that justifies the second action proceeding without payment of the second defendant’s outstanding costs, less still “some special circumstances”. On the contrary, the dictates of justice, informed by the considerations that underlie the rule (earlier referred to), are better served by imposing the stay. That order, it should be emphasised, does not extinguish the plaintiff’s claim; it only prevents the prosecution of a claim against the second defendant until the costs are paid, security is given or the Court orders otherwise.
For the above reasons I make the following orders:
Order, pursuant to r 12.10 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings as between the plaintiff and the second defendant be stayed until payment of the second defendant’s costs as agreed or assessed in proceedings 2022/354727.
Order the plaintiff to pay the second defendant’s costs of, and incidental to, the second defendant’s notice of motion filed 23 March 2026.
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Soatini
State of New South Wales