BTM1 v Scout Association of Australia New South Wales Branch

1. [1]

   By Notice of Motion filed 28 October 2021, the defendant, the Scout Association of Australia, New South Wales Branch, seeks the following orders:

The Pleaded Claim of the Plaintiff

1. [2]

   The plaintiff, to whom the pseudonym BTM1 has been given by the Court, first commenced these proceedings on 21 August 2020. However, the initial Statement of Claim was amended on a number of occasions.

2. [3]

   On 25 July 2022, the plaintiff filed a Second Further Amended Statement of Claim in which he claimed damages because he was sexually abused by Paul Hayes (“the perpetrator”) between 1979 and 1982. For the purposes of this judgment, the claims of the plaintiff will be those set out in this pleading.

3. [4]

   In that period, the plaintiff says he was a member of the 1st Toongabbie West Scout Group (“the Scout Group”). I note that the parties and the witnesses generally used the term “Scout Group” to refer to a collection of troops of Cubs, Scouts, Venturers and Rovers (those terms referring to the four age groups, in ascending order of the age of participants, within the Scout movement) that met regularly at the same location. In other words, “Scout Group” includes a reference to the relevant Cub troop, Scout troop, Venturer troop and Rover troop. Where it is necessary in this judgment to refer to the particular Scout troop of which the plaintiff was a member, I will refer to it as “the Scout Troop”.

4. [5]

   The plaintiff alleges the defendant was the incorporated association responsible for the management and operation of the Scout Group.

5. [6]

   As will be apparent later in this judgment, the perpetrator held various roles within the defendant organisation, including, during the period of the alleged abuse, the roles of Assistant Scout Leader and Scout Leader. Those roles were held in accordance with a “warrant” that was issued by the defendant to the perpetrator.

6. [7]

   The plaintiff pleads 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 plaintiff alleges the risk of harm to him of being such a victim was a foreseeable risk which was known or ought to have been known by the defendant as a result of certain facts, matters and circumstances.

7. [8]

   Those facts, matters and circumstances include:

   1. (1)

      in 1924, a warning by the Chairman of a meeting held at the Imperial Head Quarters in London of the Boy Scouts Association, attended by Scout Commissioners, that there was a two-fold risk of immorality affecting members of Scouts, namely the danger of unsuitable men being nominated for warrants as Scout Leaders and the threat of indecent behaviour by Scout Leaders;

   2. (2)

      on 25 June 1965, the revocation by the District and Area Commissioner for the Edgecliff Scout Group of the warrant of a Scout Leader who had admitted to sexual interference with members of the First Edgecliff Scout Group;

   3. (3)

      in 1961, 1966, 1969 and 1976, the reference in the Policy Organisation and Rules of the Australian Boy Scout Association (“Scouts Organisation Rules”) to special precautions which ought to be taken when issuing warrants to Scout Leaders in light of dangers which had been found to exist in respect to the moral character of Scout Leaders;

   4. (4)

      the circumstances of the plaintiff’s membership, and the perpetrator’s leadership, of the Scout Group;

   5. (5)

      between 1974 and 1976, Scouts who attended area camps with the Scout Group were directed by the Scout Leader David Green to strip naked and swim together as a group in the presence of Mr Green;

   6. (6)

      in 1977, Scouts who attended area camps with the Scout Group were directed by the perpetrator to engage in initiation rituals which included: restraining one Scout, removing his pants and underwear and rubbing toothpaste onto his bare genitals; and restraining another Scout on top of an ant nest whilst ants crawled inside his pants;

   7. (7)

      in 1977, the perpetrator organised overnight trips and hikes for smaller groups of Scouts within the Scout Group during which he encouraged Scouts to sleep with him inside his sleeping bag;

   8. (8)

      in 1978, the perpetrator organised overnight trips and hikes for smaller groups of Scouts within the Scout Group during which he sexually abused Scouts; and

   9. (9)

      in the late 1970s, other Leaders involved in the Scout Group were aware that the perpetrator and Mr Green had allowed Scouts to strip naked and swim together on a Scout camp.

8. [9]

   The plaintiff also refers to the fact that the defendant received in December 1999 behavioural files regarding Scout Leaders which files included allegations of child abuse by Scout Leaders dating back to the 1950s.

9. [10]

   The plaintiff pleads that the risk of harm was not insignificant, that a reasonable person in the position of the defendant would have taken precautions against that risk, and that if such precautions were not taken, it was probable that the plaintiff or other members of the Scout Group would have been the victims of sexual abuse by Scout Leaders or Assistant Scout Leaders such as the perpetrator. The plaintiff says the burden on the defendant of taking precautions was minor.

10. [11]

    The plaintiff alleges the defendant breached its duty of care to the plaintiff by:

    1. (1)

       failing to ensure adherence to the Scouts Organisation Rules and thereby to ensure that individual members of the Scout Group were not groomed for, or subjected to, sexual activity;

    2. (2)

       failing to properly interview, investigate the background of, supervise and monitor Scout Leaders and Assistant Scout Leaders of the Scout Group, including the perpetrator;

    3. (3)

       failing to establish policies and protocols to identify the situations and circumstances where immoral acts could occur and to prevent sexual grooming of and sexual activity with members of the Scout Group;

    4. (4)

       failing to act upon actual knowledge of the sexual grooming and sexual activity described at [8(1)] to [8(3)] above and the behavioural files which included reports of child abuse dating back to the 1950s, which were referred to at [9] above;

    5. (5)

       failing to properly investigate the conduct of the perpetrator as Assistant Scout Leader before appointing him as the Scout Leader of the Scout Group; and

    6. (6)

       failing to terminate the perpetrator’s warrant following his conduct described at [8(6)] to [8(8)] above.

11. [12]

    The plaintiff claims he has suffered harm caused by the defendant’s breach.

12. [13]

    The plaintiff also pleads that the defendant is vicariously liable for the sexual abuse committed by the perpetrator which he says was carried out in the course of the perpetrator’s employment as an Assistant Scout Leader and Scout Leader at the Scout Group. The plaintiff claims he has suffered harm caused by the perpetrator’s conduct for which the defendant is vicariously liable.

13. [14]

    The defendant accepts it was responsible for the management and operation of the Scout Group. It further admits that the perpetrator was an Assistant Scout Leader or Scout Leader, and the plaintiff was a Scout, during the relevant period.

14. [15]

    The defendant admits the plaintiff was repeatedly sexually abused by the perpetrator between 1979 and 1982.

15. [16]

    The defendant denies that it breached its duty of care to the plaintiff. It also denies that it is vicariously liable for the conduct of the perpetrator. It denies any harm to the plaintiff resulted from any breach by the defendant or any conduct by the perpetrator for which the defendant is vicariously liable.

16. [17]

    Otherwise, the defendant broadly does not admit the plaintiff’s allegations.

The Plaintiff’s Complaint

1. [18]

   On 18 October 2017, the plaintiff made a statement to the police at Parramatta about the abuse by the perpetrator. After a police investigation, the perpetrator was charged. In June 2020, the perpetrator pleaded guilty to 24 charges relating to his sexual abuse of the plaintiff in the District Court of New South Wales.

The Defendant’s Investigations

1. [19]

   The solicitor for the defendant engaged an investigator on 10 September 2020, less than a month after the plaintiff commenced these proceedings, to assist the defendant in preparing to meet the plaintiff’s claim. Broadly, the investigator’s brief was to investigate whether there is any senior Scout member alive who can give evidence as to his or her knowledge of the perpetrator between February 1975 and November 1981, including “whether there was any behaviour by [the perpetrator] … which should have been brought to the attention of senior Scout Leaders”.

2. [20]

   The investigator reported on the results of his investigation on 18 December 2020, 15 February 2021, 21 November 2021 and 13 December 2021. The investigator corresponded with the defendant’s solicitor by email and telephone on various other occasions and has continued, together with the defendant, carrying out investigations until as recently as 1 July 2022.

3. [21]

   Reference is made in the following sections of this judgment to written statements, signed and unsigned, by potential witnesses interviewed by the defendant in connection with its investigation. The contents of these statements were not the subject of any evidentiary challenge at the hearing of the defendant’s Motion. Nor was the accuracy of the reports of the investigator challenged. I accept this evidence.

The Structure of the Defendant

1. [22]

   It is convenient at this early stage of the judgment to briefly describe the defendant’s hierarchy prescribed by the Scouts Organisation Rules.

2. [23]

   The defendant was organised so that, generally, Scout Leaders and Assistant Scout Leaders would report to a Group Leader. Group Leaders were also reported to by the Cub, Venturer and Rover Leaders of their Group. Group Leaders reported to District Commissioners, who, on some occasions, delegated some of their functions to District Leaders. District Commissioners reported to Area Commissioners, who in turn reported to Branch Commissioners, who in turn reported to a National Commissioner. The branches of Scouts Australia were constituted by a State or else the Northern Territory or the Australian Capital Territory. There were Councils comprised of various representatives at each level of the organisation and various other roles at different levels of the hierarchy within the organisation, such as those relating to training.

3. [24]

   In this matter, at all relevant times, the plaintiff was a member of the Scout Group at Toongabbie West. That Scout Group formed part of the Seven Hills District. That District was, after an amalgamation, called the Prospect District. Those Districts formed part of the Cumberland Area, which was within the New South Wales Branch.

The Issuing of Warrants

1. [25]

   In the course of the defendant’s investigation, various editions of the Scouts Organisation Rules were discovered. During the course of the hearing of this Motion, the parties referred primarily to the 1976 edition which had been adopted by the defendant and about which the following may be noted.

2. [26]

   Part III of the Scouts Organisation Rules prescribed the procedure for the issuing of warrants to all “persons appointed to positions of adult leadership in uniformed sections of the association”. Warrants were issued to Group Scouters (including Cub or Scout Leaders or Assistant Leaders) by Branch Head Quarters. A warrant gave a person the “authority to act”.

3. [27]

   Applicants were required to make their application in the form prescribed and provide with it the names of two “persons of repute” who could “vouch for [the applicant’s] character and general suitability”.

4. [28]

   Applications had to be first approved by the Group Leader. Then, the District Association had to:

5. [29]

   The District Commissioner was required to:

6. [30]

   An applicant was required to serve a probationary period of three months in the actual rank for which the warrant was issued.

7. [31]

   An application was only to be forwarded to Branch Head Quarters once the District Commissioner and District Association were appropriately satisfied. The application had to be signed by the Group Leader, the District Association Secretary and the District Commissioner.

8. [32]

   Rule 3/17 was also relevant for consideration by District Commissioners and Associations. It provided as follows:

9. [33]

   A similar procedure was required to be followed whenever a Scouter (including a Cub or Scout Leader or Assistant Leader) transferred rank or location.

10. [34]

    During the course of its investigation, the defendant obtained written statements from potential witnesses about the defendant’s ordinary practice of issuing warrants, including its compliance with the Scouts Organisation Rules, around the period that the perpetrator was issued with his warrant. None of these witnesses is able to give evidence specifically about the process by which the perpetrator was issued with his warrant. Nor was the defendant able to locate any documents associated with the issuing of the perpetrator’s warrant.

11. [35]

    Kevin Dudeney, who was involved with the Scout Group for a short period in around 1978 and thereafter was involved with the defendant at a District and Area level, says that the warrant process required an applicant to be interviewed, paperwork to be completed and sent to Branch Head Quarters, a police check to be conducted and a training course to be completed over a period of about eight weeks. He recalls that each District was required to maintain a Warrant Subcommittee who interviewed prospective warrant-holders. He recalls that from around 1978, in the Prospect District, the District Secretary performed that role alone.

12. [36]

    The District Secretary at that time was Leslie Byron. He died in 1993.

13. [37]

    Albert Gamble was the Area Commissioner for the Cumberland Area between June 1975 and December 1981. He says all leadership applications required paperwork to be sent to Branch Head Quarters for approval, which would involve a police check being conducted.

14. [38]

    Gary Hall performed various roles within the Scouts, before becoming an Assistant Cub Leader at the Scout Group in 1974. He was then the District Cub Leader of Prospect District from 1975 to 1979, the Assistant Area Commissioner for Cubs from 1979 to 1981, and the Branch Commissioner for Cubs from 1982 to 1986. He recalls that a similar procedure of police checks was undertaken by Branch Head Quarters for applications to permit transfers between Districts. He remembers the District Commissioner interviewing candidates, although the District Leader and Group Leader may also have been involved. He says he does not recall the District Secretary interviewing prospective Leaders. His recollection of Leslie Byron, though, is that he was “in uniform” and did not perform the role of District Secretary. When he applied for the role of Assistant Cub Leader at the Scout Group, he recalls being interviewed by the Cub Leader there. By contrast, he does not recall being formally interviewed for the roles of District Cub Leader and Assistant Area Commissioner for Cubs.

15. [39]

    The plaintiff also obtained a written statement from Mr Hall. In that statement, Mr Hall says that when he became an Assistant Cub Leader, he completed some training which did not include any material relating to “child abuse and boundaries with children”. He also says that he was never formally interviewed for his roles as Assistant Cub Leader and Cub Leader. He gives a description of the ordinary activities organised by Cub Leaders, the practice for transporting Cubs and the practice of wearing uniforms.

16. [40]

    Jack Kestle was involved with the Scout Group in the late 1970s and early 1980s. When he applied for the role of Assistant Scout Leader, he was interviewed at his home by David Green, the Scout Leader.

17. [41]

    Peter Franklin was the President of the Prospect District Council for two or three years from around 1981. He was then on the Area Committee for about a year. His son was a Cub and Scout at the 1st Seven Hills Scout Group for a number of years, commencing in 1978. He recalls that all warrant applications were dealt with by the District Commissioner.

18. [42]

    Phyllis Ella McAlpine has been involved with the defendant for many decades in the Cumberland Area. She recalls that applicants were required to be interviewed by the relevant District Leader. She remembers there being:

19. [43]

    Gary Rudd, who was an Assistant Scout Leader and a Scout Leader at 1st Seven Hills between 1976 and 1991, recalls that to obtain a warrant it was necessary to fill in a form and subsequently complete a training course over four to eight weeks. He says it was necessary to fill out another form to transfer to another section or Group.

20. [44]

    Audrey Sanderson was the District Secretary at Seven Hills from 1975 until 1976. She says her role only involved her taking minutes of the monthly District Meetings. She was never involved in the warrant application process, and she never interviewed candidates.

21. [45]

    Douglas Sanderson was an Assistant Scout Leader at 1st Clifton Gardens and 2nd Seven Hills from 1967 until the middle of 1975. From July 1975 until March 1976, he performed the role of District Scout Leader for the Seven Hills District. And, although the evidence is not entirely clear, he seems to have been the District Scout Leader for the Prospect District in 1978, while the perpetrator was at the Scout Group. He says that the District Commissioner looked after all applications for warrants. He recalls that paperwork was completed and sent to Branch Head Quarters, and that a police check was conducted when the prospective Leader first applied to join the defendant. He does not know whether further checks were completed when a warrant holder applied to transfer to another District. Mr Sanderson recalls being interviewed when he was promoted from Assistant Scout Leader to District Scout Leader.

22. [46]

    Wayne Schwebel was a Scout Leader at 1st Seven Hills in the 1970s. He recalls being required to complete a training course over several weekends in order to become a Leader. He says that during that course he was told:

23. [47]

    The plaintiff obtained a signed written statement from Warwick Bateman, the Branch Commissioner for Leader Training between 1977 and March 1981. Mr Bateman performed various other roles within the Scouting Movement over the course of 75 years. He is now 86, retired and admits to having some difficulty remembering details. He has significant health difficulties which may ultimately mean he would be unavailable to give evidence at any trial of the plaintiff’s claim. Nevertheless, Mr Bateman’s written statement contains the most detailed account of the ordinary practice for obtaining a warrant during the 1970s.

24. [48]

    He says the process of becoming a Leader involved three key components. First, no matter the position applied for, the applicant was required to attend an “Introductory Course” over one evening which dealt with the fundamentals of the Scouting Movement. Then, the applicant was required to complete a “Basics Course” over a weekend which focussed on the skills specifically relevant to the type of group with which the prospective Leader hoped to attain a warrant. Finally, the applicant was required to spend time learning from another Leader while performing a role similar to that which they had applied for. The final component was modified for each applicant to account for their previous experience within the Scouting Movement.

25. [49]

    Mr Bateman also recalls that there was no compulsory training after a Leader had obtained their warrant. He says this about the training courses:

Supervision of Leaders

1. [50]

   The same witnesses are able to give evidence about the ordinary procedures for supervising and monitoring Leaders. However, as in relation to the issuing of warrants, the evidence is not comprehensive, and not always consistent.

2. [51]

   Mr Dudeney summarised the position as being “basically there wasn’t any supervision once the person was granted their Warrant”. He says, “as District Cub Leader… [he] could attend cub pack meetings and run a game or two while there but that was the extent of supervision that any District Leader could do”. He says that, otherwise, “supervision would likely have rested with the Group Leader or Scouter in Charge of the Group”, unless “a red flag came up with any leader in particular” in which case some extra supervision might have been implemented.

3. [52]

   Mr Dudeney says he does not believe a Leader would take a group of Scouts camping on their own. He recalls that, at the Cub level, Leaders were required to “provide a copy of the programme outlining details for the proposed cub pack holiday” and seek approval from the District Cub Leader. At the Scout level, he remembers that Leaders were required to obtain at least informal approval from either the Group Leader or District Leader to go on a camp.

4. [53]

   Mr Gamble’s evidence is that, to go on a camp, a Scout Group was always required to seek a “camp permit” which was issued by the District Commissioner. Before a Cub or Scout went on a camp, their parents were required to sign a permission slip, which probably had details of the proposed camp on it. Mr Gamble says it was not unusual for camps to be led by a single warranted Leader.

5. [54]

   Mr Hall recalls that “Leaders were not supervised to any great deal”, and that any supervision was focussed on “looking at their program contents and style [to ensure] that the principles of scouting were attended to”. When he was the District Cub Leader, he “held monthly meetings for the Cub Leaders” to discuss their program content. Although attendance at these meetings was not compulsory, he would make sure to check in with those individuals who did not attend. He says that it was preferable for two Leaders to take a group camping, but that “if two Leaders were not available then one Leader would take the group on their own”.

6. [55]

   Colin Jackson is the son of John Jackson, the District Commissioner for Prospect from 31 March 1976 until 30 April 1980 and the District Leader from 31 April 1980 until 26 May 1982. Colin Jackson remembers that his father would visit various Scout meetings and camps of different Groups.

7. [56]

   Mr Kestle, who was an Assistant Scout Leader of the Scout Group in the late 1970s and early 1980s, does not remember anyone in the District team. He says that when Scouts went camping, “there was always two leaders”.

8. [57]

   Mr Rudd recalls that “supervision of Leaders depended on the Group and who was available”, although it is not clear how the supervision of Leaders differed according to the circumstances. He remembers being alone with his Group sometimes. He says Group Leaders may have made visits to camps but may not have stayed overnight. He does not recall seeing District Commissioners at Troop meetings, but rather only at District or Area-level events. He says District Leaders may have attended a Troop camp, but only if they were invited.

9. [58]

   Mr Sanderson recalls holding “monthly meetings where the Scout Leaders from each Group talked about what they were doing and what they had planned”. He says, “it was about keeping an overall eye on what was happening in the District”. He recalls that “Scout Leaders… had to let me know if they were going on a camp… in case anything untoward happened – if there was an accident – or if anyone got sick”. He says he “had to know details of the camp” and that “a permit system for going on a camp… [required] a form [to be] sent home to parents for them to sign if giving their permission for their son to go on the camp”. The form would state where the camp was being held and name the responsible Scout Leader, if not the Group Leader also. Although it was always preferable that at least two Leaders took Scouts on a camp, there were occasions when one Leader would take a camp alone. He says a Scout Leader could take a camp alone “unless someone raised concern” and that, in any event, the “Group Leader would have to approve it”. He also observes that “the District Commissioner carried the load of responsibility” and that “[i]t would be expected that he knew everything that was happening in the groups”.

10. [59]

    Mr Schwebel recalls that the District Commissioner attended Scout camps, but that he did not have “any supervisory role within the Group itself”. He remembers having Group meetings, during which the Group Leader would question the Leaders “about what we were planning” over the next six months. Mr Schwebel does not remember going on a camp alone as an Assistant Scout Leader and thinks it would have been “extremely rare” if that happened. He says that if the Scout Leader was not available, he believes a senior Rover member would come along. He does not recall a “formal procedure for taking boys out on a camp or hike”.

11. [60]

    Tom van der Leelie was an Assistant Scout Leader and Scout Leader at the Scout Group in the period before 1975. He reports that “the Scout Group was very well managed”, that “[t]he District Management came and visited my meetings on random night(s)” and that “[t]he District team was very supportive and very strict that everything was done in accordance with the guidelines”.

The Perpetrator’s Involvement with the Defendant

1. [61]

   In his youth, the perpetrator progressed through the levels of the Scouting Movement, ending up as a Rover at the 1st Seven Hills Group. On 13 November 1974, he applied for a warrant. One was issued to him to perform the role of Assistant Cub Leader at 1st Seven Hills with effect from 26 February 1975.

2. [62]

   As noted above, no witness other than the perpetrator is able to give evidence specifically about the process by which he was issued with his warrant. There is no evidence, for example, that the defendant completed a police check in respect of the perpetrator as part of his application for a warrant. Although, it is to be observed that, even if the defendant had performed such a police check, no adverse circumstance about the perpetrator would have been revealed to the defendant, because the perpetrator had not, at that time, been convicted of any criminal offence.

3. [63]

   The following chronology of the perpetrator’s involvement with the defendant was established on the evidence:

4. [64]

   On 25 November 1981, the perpetrator transferred to the Australian Capital Territory (“ACT”) Branch of the Scouts. Although the plaintiff pleads that some abuse by the perpetrator occurred after that date, it is clear that the perpetrator was no longer involved with the Scout Group after his transfer.

5. [65]

   In 1983, the perpetrator returned to NSW from the ACT and became involved again with the defendant. In late 1984, after a complaint was made by a parent of a Scout at the 1st Boronia Scout Group, in the Moocooboolah District of the North Metropolitan Area, the perpetrator resigned from the Scouting Movement. His warrant was cancelled and marked with a note that it was “not to be reissued”.

The Perpetrator’s Superiors

1. [66]

   I described the general structure of the defendant organisation at [23] above and the chronology of the perpetrator’s involvement with the defendant at [63] above. It is convenient at this stage to reproduce an organisational chart for the Scout Group similar to one admitted as Exh A on the Motion and which was later established by the other evidence, which includes a summary of the potential witnesses’ involvement with the defendant and their current availability to give evidence at any trial:

2. [67]

   Despite their investigation, the defendant was unable to locate any living person who was a Cub Leader or Group Leader at the 1st Seven Hills Group during the relevant period.

3. [68]

   The District Commissioner for Seven Hills was Kevin Chapman from 1971 to 5 February 1975. Carl Swales was the next District Commissioner from 3 June 1975 to 31 March 1976. Mr Chapman died in June 2021 and was suffering from dementia for 18 months before then. Mr Swales cannot be located and is believed to be dead.

4. [69]

   As noted above, the District Commissioners were intimately involved in the issuing of warrants to applicants who wished to be Leaders. The defendant submits that either Mr Chapman or Mr Swales must have been responsible for investigating the perpetrator’s background and, perhaps, interviewing him. Their absence is submitted to be particularly prejudicial.

5. [70]

   It seems that, in around 1975, the Blacktown and Seven Hills Districts amalgamated into Prospect District.

6. [71]

   The perpetrator’s application for transfer from 1st Seven Hills to the Scout Group appears to have been signed by the Group Secretary at that time, Robert Green. The defendant has been unable to locate Mr Green.

7. [72]

   When he transferred to the Scouts at 1st Toongabbie West and commenced in his role as Assistant Scout Leader, the perpetrator reported to Scout Leader David Green. As earlier mentioned, Mr Green is alleged to have engaged in inappropriate acts which are said by the plaintiff to constitute facts, matters and circumstances which caused the defendant to have knowledge of the risk of harm associated with the sexual abuse by Scout Leaders or Assistant Scout Leaders of Scouts.

8. [73]

   Mr Green was made the Group Leader of 1st Toongabbie West on 25 June 1980 such that when the perpetrator was made Scout Leader on 24 September 1980, he continued to report to Mr Green. Mr Green was killed in a motorcycle accident on 14 April 1981.

9. [74]

   The position of Group Leader at 1st Toongabbie West was vacant before Mr Green took it. In those circumstances, the next most senior member of the organisation after Mr Green was Christopher Kaltenbacher, the District Leader from 31 March 1976 until 25 July 1978. Mr Kaltenbacher died in 2016.

10. [75]

    Kevin Dudeney was an Assistant Cub Leader at the Scout Group from May until December 1978 and then from December 1978 until July 1982, he was the District Leader – Training. The defendant’s investigator interviewed Mr Dudeney and obtained a statement from him. He held various other District and Area roles from 1982 until sometime in the 2000s. He was employed by, and worked for, the same private company as the perpetrator in the late 1970s and early 1980s. He recalls the perpetrator being a Rover within the Scouts Movement but does not remember the perpetrator being involved with the Scout Group. He never considered the perpetrator to be a sexual predatory risk to the Scouts and never received a complaint about him. He does not recall anyone raising any concerns about any Leader during his time with the Scouts.

11. [76]

    As noted above, John Jackson was the District Commissioner for Prospect from 31 March 1976 until 30 April 1980 and the District Leader from 31 April 1980 until 26 May 1982, when he resigned from the Scouts. Mr Jackson died on 12 June 2014.

12. [77]

    Ray Thornley took over from Mr Jackson as the District Commissioner on 30 April 1980, in which position he remained until 1991, well after the perpetrator had ceased all involvement with the defendant. Mr Thornley has been diagnosed with dementia and is unable to provide a statement or to give any evidence in these proceedings.

13. [78]

    The defendant submits, as more fully explained below, that there was a concentration of responsibility and authority bestowed on District Commissioners. It says that it is primarily the unavailability of Messrs Green, Jackson and Thornley which combines to prejudice it.

14. [79]

    The defendant was able to locate, speak with and obtain a written statement from Albert Gamble who was the Area Commissioner between June 1975 and December 1981. Mr Gamble says that he does not remember the perpetrator and that he had no reason to have any particular contact with him. He says Mr Thornley, the District Commissioner, never discussed any complaint about the perpetrator with him. He also says that any complaint may have been handled by the District Commissioner or, alternatively, that it may have been referred directly to the General Secretary of the Branch, who was Malcolm Maitland from 1963 to 1983. Mr Maitland died on 12 January 2000.

15. [80]

    As earlier noted, the plaintiff obtained a written statement from Warwick Bateman, who is capable of giving evidence about the general system of the Scouts’ operations, especially in relation to the issuing of warrants and the training which was provided to prospective Leaders. Mr Bateman said he was often aware of complaints made against Leaders but that he is not aware of having any involvement in any complaint made against the perpetrator.

16. [81]

    The defendant obtained the perpetrator’s written application dated 21 January 1982 to be appointed as a Scout Leader in the ACT. He nominated two referees, namely Peter Phillips, who is on the probabilities deceased, and Gary Rudd, from whom the defendant has obtained two statements. Mr Rudd was an Assistant Scout Leader and a Scout Leader at 1st Seven Hills Scout Group between 1976 and 1991, which was a different Group to the 1st Toongabbie West Scout Group. Mr Rudd knew of the perpetrator as a fellow member of the Venturers at 1st Seven Hills Scout Group for a period of about six months at some time during the period between 1974 and 1976. After the perpetrator returned to Sydney from the ACT, where he had been from 1981 until 1983, Mr Rudd moved into rented accommodation with the perpetrator. He says around this time he became aware of a complaint made against the perpetrator while he was in Canberra. He says the perpetrator denied the allegations and that he believed the perpetrator until the perpetrator was prosecuted and jailed in 2008 or 2009. It was not until after 1983 when he heard about complaints about the perpetrator arising from his time in the ACT that he had cause to consider the behaviour of the perpetrator.

Other Potential Witnesses

1. [82]

   In addition to those already discussed, the defendant obtained written statements from other possible witnesses who had, to a varied degree, some involvement with the defendant in the late 1970s and early 1980s, around the same time that the perpetrator was involved. To the extent these witnesses are able to give evidence, it generally refers to the ordinary course of affairs and practice within the Scouts, including in the particular Groups and Districts with which they were involved, as described above. However, the following observations may be made about these witnesses’ evidence with respect to the perpetrator personally.

2. [83]

   Helen Dudeney was a Cub Leader with the Scout Group from around 1979 or 1980 until about 1982, when she moved into the role of District Cub Leader. She recalls Mr Green but not the perpetrator. She is not aware of any complaints or allegations about any Scout Leader at the Scout Group being a sexual predatory risk to the children during her time there.

3. [84]

   Gary Hall does not recall the perpetrator.

4. [85]

   Colin Jackson, John Jackson’s son, was a Cub and Scout at Seven Hills West. He remembers hearing the news of Mr Green’s death, but otherwise knows nothing about Mr Green or the perpetrator.

5. [86]

   Brendan Jackson, another son of John Jackson, was a Cub and Scout at the 4th Blacktown Scout Group and, later, the 1st Seven Hills West Scout Group. He remembers Mr Green but not the perpetrator. He does not recall any incident or complaint of a sexually abusive nature during his time with the Scouts.

6. [87]

   Jack Kestle joined the Scout Group as an Assistant Scout Leader in 1978, when the perpetrator was in a similar role. Mr Kestle’s evidence is that he moved into the role of Scout Leader when Mr Green died in 1981. But the defendant’s records suggest that, in fact, he remained Assistant Scout Leader until he resigned in March 1984. And, as noted earlier, Mr Green was made Group Leader and the perpetrator was made Scout Leader before Mr Green died. The defendant points to Mr Kestle’s confused evidence as an example of the prejudice to it which results from the passage of time since the events the subject of the plaintiff’s claim.

7. [88]

   In any event, Mr Kestle says he first heard of the allegations of child abuse against the perpetrator on the television in relation to the Royal Commission into Institutional Responses to Child Sexual Abuse (“the Royal Commission”). He recalls that he and his wife were utterly astounded at that time because he never saw the perpetrator engage in any concerning conduct. While he was involved with the defendant, he never heard of any complaint regarding the perpetrator. He denies that he was ever aware of any Scouts swimming naked on any Scout camps with the perpetrator.

8. [89]

   Robert Lang was involved in the production of the Gang Show, a show involving performances by Scouts. Some of the abuse, as particularised by the plaintiff, was partly connected, in time or location, with the Gang Show or rehearsals for it. Mr Lang does not remember the perpetrator well, despite having read various Gang Show records which showed the perpetrator was a cast member in 1979, 1980 and 1981. He had no knowledge that the perpetrator posed a sexual or predatory risk to the Scouts.

9. [90]

   Audrey Sanderson, the District Secretary at Seven Hills from 1975 until 1976, does not recall the perpetrator or any complaint regarding any alleged sexual abuse during the time she was involved with the defendant.

10. [91]

    Douglas Sanderson, the District Scout Leader for the Prospect District in 1978, does not remember the perpetrator.

11. [92]

    Wayne Schwebel was the Scout Leader at 1st Seven Hills and was a member of the Rovers with the perpetrator at that Scout Group. He remembers the perpetrator performing the role of Assistant Cub Leader and Cub Leader. He does not remember any complaints regarding the perpetrator.

12. [93]

    Terry Sproston was a Patrol Leader of the Scouts at 1st Seven Hills from 1976 until 1977. He remembers that the Scout Leader was Mr Schwebel. He never heard any complaints regarding sexual activity from the Cubs who moved into the Scouts while he was there. He does not remember the perpetrator and had no direct involvement with the Cubs.

13. [94]

    Dianne Stocks was involved with the Scout Group in 1981 and thereafter worked as a District Leader until about 1985 or 1986. She knew of the perpetrator but never had anything to do with him. She remembers that when the perpetrator tried to re-join the Scout Group after spending some time in the ACT, the District Commissioner, Mr Thornley, refused to allow it but did not provide reasons for his decision. Ms Stocks is aware of this because her brother-in-law, Peter Freeland, was friends with the perpetrator and was the Scout Leader at that time. Mr Freeland is now dead. Ms Stocks also says the perpetrator’s “name came up with a ‘red light’ ”, although it is not clear on the evidence why Ms Stocks says that.

14. [95]

    Graham White was a delegate involved with the Scout Group. He had sons that were Cubs and Scouts with the Scout Group. He remembers the perpetrator but says he had no concerns about him at all. He says he was surprised when he found out the perpetrator had been charged by the police for child sexual abuse. He says his sons were similarly surprised.

15. [96]

    David Young was a Cub and Scout at the Scout Group in the 1970s. He does not remember the perpetrator at all. He says his mother recalls the perpetrator but says she had no knowledge of any concerns or complaints about the perpetrator being a sexual predatory risk to children.

16. [97]

    Peter Franklin, the President of the Prospect District Council for two or three years from around 1981, does not remember the perpetrator and he does not remember any concerns regarding the moral behaviour of any Leader.

17. [98]

    Diane Hewitt was a Cub Leader at the Scout Group during the mid to late 1970s. She says she may have also been a Group Leader for one or two years. She thinks she resigned in the early 1980s. She remembers meeting the perpetrator in his role as the Scout Leader of the Scout Group. She recalls hearing rumours about the perpetrator, including in connection with the denial of his application to return to the Scout Group after he transferred to the ACT. She recalls hearing from another Scout Leader, whom she thinks was Mr Kestle, that that Scout Leader “felt uncomfortable on a camp with [the perpetrator] because [the perpetrator] allowed the boys to strip naked and jump in a pool”. She never witnessed anything which concerned her about the perpetrator, and no one ever complained to her directly about the perpetrator. To the extent that this hearsay account of a Scout Leader who may (or may not) be Mr Kestle, the defendant points to the inconsistency between this account and Mr Kestle’s recollection as demonstrating further prejudice to it.

18. [99]

    Tom van der Leelie does not give any evidence about the perpetrator.

19. [100]

    Phyllis Ella McAlpine does not recall the perpetrator.

20. [101]

    Robert Sproston was involved with the 1st Seven Hills Scout Group in the 1970s. His son is Terry Sproston. He says the perpetrator’s name “rings a bell but that’s all”. He never saw or heard of any sexual abuse of the children.

21. [102]

    The plaintiff relies on statements made by Mr Bateman, Gary Hall and the plaintiff’s older brother and other Scouts who are victims of sexual abuse committed by the perpetrator around the time the perpetrator is alleged to have abused the plaintiff.

22. [103]

    As earlier outlined, Mr Bateman is capable of giving evidence about the ordinary course of issuing warrants and providing training to prospective Leaders within the Scout Movement. He is not aware of any complaint made about the perpetrator and seems not to remember the perpetrator at all. This is unsurprising given that he occupied the very senior role of Branch Commissioner for Leader Training.

23. [104]

    Mr Hall does not recall the perpetrator and says he was never informed of any complaints about misconduct by Cub Leaders.

24. [105]

    The plaintiff’s older brother was a Cub and a Scout at the Scout Group before the plaintiff joined the Scout Group. He describes Mr Green and the perpetrator and their conduct at meetings of the Scouts and also on camps and hikes involving the Scouts. He says he was left alone with the perpetrator on some occasions when the perpetrator had driven him and other Scouts to and from Scout events. On one camp, the perpetrator encouraged him to sleep inside the perpetrator’s sleeping bag. On several camps, Mr Green encouraged him and other Scouts to strip naked and swim together in waterholes. The perpetrator organised “initiation activities” which included encouraging Scouts to restrain each other, forcibly remove their pants and rub toothpaste on their genitals. The perpetrator also encouraged Scouts to restrain each other on top of bull ants’ nests with the intention of causing the ants to crawl inside the pants of their fellow Scouts. The plaintiff’s brother does not suggest that anyone other than those people who attended the camps knew about what occurred during their course.

25. [106]

    The plaintiff relies on the statements of three other victims of abuse committed by the perpetrator around the time the plaintiff was abused. The nature of abuse is similar to that pleaded by the plaintiff in many respects. None of the statements from these potential witnesses contains any suggestion that any complaint about the conduct of any Leader, including the perpetrator, was made to any parent or superior member of the defendant organisation.

26. [107]

    These statements are presumably to be relied upon as tendency evidence being lead as circumstances supporting the plaintiff’s case. Such an approach is one which can magnify the prejudice to a defendant in meeting the plaintiff’s claim because a defendant has to investigate those claims as well. Even though the defendant has admitted that the abuse occurred in this case, tendency evidence seeking to establish a course or pattern of conduct over preceding years would still require careful investigation. It will be very difficult, if not impossible, for the defendant to investigate those witness accounts in the absence of Mr Green as an available witness.

The Perpetrator’s Evidence

1. [108]

   The perpetrator has pleaded guilty to charges which relate to his sexual abuse of the plaintiff in this case. He has given a statement in these proceedings, at the request of the plaintiff who now relies on it. In his statement, the perpetrator gives an account of his background and experience prior to committing the abuse. The perpetrator says he was sexually abused as a young boy and that he engaged in various sexual acts with other young boys, including, after he joined a Scout Group, with other Scouts. He says that, as a Scout, no Scout Leader ever discussed with him “boundaries or appropriate behaviour”. He also says that, in the course of obtaining his warrant, he attended leadership training which “did not involve any training regarding appropriate sexual or personal boundaries with children”. He then says this:

2. [109]

   The perpetrator says he was not interviewed before he was granted his warrant. He notes that, at that time, he had no prior convictions.

3. [110]

   The perpetrator describes a “culture of initiation rituals” at the Scout Troop when he joined. He gives evidence about his relationship with Mr Green and his other superiors. In essence, he says he never received training or guidance which discouraged him from committing the abuse which he eventually did.

4. [111]

   He recalls attending monthly or quarterly meetings organised by the District Scout Leader which were held “to get together, socialise and discuss upcoming events”. He says it was not compulsory to attend these meetings and that when he did attend, he was not asked about how he was going in his role as Assistant Scout Leader or Scout Leader. He notes, however, that he did tell the District Scout Leader about a lot of the activities he had planned.

5. [112]

   The perpetrator says that when he became Scout Leader, he “was left to run [the Scout Troop] as [he] saw fit”, and that his only interaction with his superior, the District Scout Leader, occurred at the monthly meetings. He says he often organised and attended outings, camps and hikes with no oversight or supervision. He says he “was often the only Leader in attendance during the activities which [he] planned” because, as he recalls, “[t]here was no requirement that multiple Leaders [attend] meetings or … scouting activities organised within [the Scout Troop]”. He says that generally he “rang the boys’ parents to obtain their verbal permission for the boys to attend [activities]” and that “the parents were aware that [he] was a Leader and that any activit[y] which [he] planned for the Scouts was a Scouting activity”.

6. [113]

   The perpetrator gives evidence that “uniforms were to be worn for Scout meetings and for the formal District and Area level Scouting events… such as Jamborees, District camps, and Gang Show”. He recalls, however, that Mr Green did not require the boys to wear their full uniforms, instead preferring only a neck scarf, if anything, during Scouting activities and that he followed this same approach after Mr Green died.

7. [114]

   He describes visiting the family homes of some of the Scouts in the Scout Troop “to be friendly and to become acquainted with their parents so that they felt they could trust me as a Leader”. He says he “wanted the parents to feel assured that [he] could look after their children while they were hiking or camping”. He notes that he often drove Scouts to and from Scouting events, including Gang Show rehearsals, and that “it was much easier on their parents for [him] to pick them up and drive them”.

8. [115]

   At the conclusion of his statement, the perpetrator records this:

Submissions Regarding the Claim of Direct Liability

1. [116]

   The context for the defendant’s submissions is that the assaults occurred 40 years or more before the proceedings were commenced, and that it might well be expected that people have died or are unable to give an accurate account of the time, or else that memories may have faded.

2. [117]

   The defendant says it 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.

3. [118]

   The defendant submits that there is no evidence that the facts, matters and circumstances described at [8(5)] to [8(9)] were actually known by anyone of authority within the defendant’s organisation. The defendant points again to the unavailability of Mr Green, who is the subject of many of the allegations.

4. [119]

   The defendant accepts that it knew of a general risk of harm to Scouts occasioned by sexual abuse perpetrated on them. So much is clear from the terms of the Scouts Organisation Rules and the procedures that were ordinarily in place to filter out inappropriate candidates for leadership positions. The defendant submits, however, that in this case the plaintiff pleads that the defendant ought to have known of the particular risk posed by the perpetrator to Scouts he came into contact with, including the plaintiff.

5. [120]

   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.

6. [121]

   The availability of the perpetrator does not, the defendant submits, remedy this unfairness. The defendant submits the perpetrator is not an independent witness because it is clear that he is attempting to shift moral blame from himself to the defendant. The defendant says the possibility of the perpetrator giving evidence, or providing information to the plaintiff, is a symbol of the prejudice to them, rather than a cure for it.

7. [122]

   By way of critical example, the defendant points to the claim by the perpetrator that he was not interviewed by anyone before the defendant issued a warrant to him. The defendant says that account directly contradicts the procedure required by the Scouts Organisation Rules which, in accordance with the evidence of available witnesses, could be expected to have been followed. In the absence of any witness to contest the perpetrator’s claim that he was not interviewed, the defendant is prejudiced in defending the claim that it breached its duty of care to the plaintiff.

8. [123]

   The defendant complains that 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.

9. [124]

   The defendant submits the circumstances are exceptional and justify the granting of a permanent stay.

10. [125]

    The plaintiff submits that the evidence on the Motion is very different to the evidence which would unfold at trial. His Senior Counsel submitted, without real elaboration, that the statements prepared by the investigator and attached to the defendant’s solicitor’s various affidavits are as important for what they do not say as for what they do say.

11. [126]

    The plaintiff says 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.

12. [127]

    In any event, the plaintiff submits that this case is far removed from others which have resulted in the granting of a stay. He relies 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. The plaintiff submits the defendant’s submissions have failed to acknowledge the perpetrators availability and says, further, that the issue is not determinable by reference to the defendant’s allegations that the perpetrator wholly lacks worth as a witness.

13. [128]

    The plaintiff submits there are many witnesses who can talk about the way in which the Scout Group, or other Scout Groups within the same District or Area, was or were allowed to operate. He points to the evidence and availability of Messrs Hall, Dudeney, Sanderson and Bateman, who were all involved with the defendant in higher ranking positions of responsibility. He points also to the evidence and availability of Ms Hewitt and Messrs Kestle, Schwebel and Rudd, who were all involved with the defendant as Scout or Cub Leaders. He further notes the contents of the police investigation regarding the perpetrator’s conduct at the Scout Group.

14. [129]

    The plaintiff also draws attention to the fact that the parties have exchanged medical reports and that there are no issues arising from the passage of time regarding quantum, the recording of consistent histories, comorbid circumstances and diagnoses.

15. [130]

    The plaintiff ultimately submits that in light of all the available evidence, when the proper question is asked and the law applied, the defendant’s Motion must fail.

16. [131]

    At the hearing of the Motion in oral submissions, the plaintiff sought to emphasise that significant weight ought to be given to the policy which was said to underlie the removal of the limitation period for claims of intentional sexual abuse including by submitting that that “important and fundamental underlying policy… is inherent in the [reforms] that were implemented by the parliaments of each of the States and territories in consequence of the findings and recommendations of the Royal Commission”. He submitted that a grant of a stay in this case would “operate to subvert” that policy.

17. [132]

    The plaintiff drew attention to the “unique inhibitors [which] exist for victims of institutional child abuse that retard their capacity to… disclose [the abuse]”. He submitted that “[i]mplicit… in Parliament’s decision to abolish any limitation period for such abuse is… clear recognition by Parliament that there would necessarily be a degree of empowerment of witnesses when there is a trial”. He said Parliament had acknowledged that any resulting trial for the type of abuse alleged in this case “may well give rise to very real practical problems” which “may even result in imperfections in the trial itself”. He submitted that, notwithstanding those problems, the “Parliament has given the importance of underlying matters of policy which necessarily extend beyond” this Motion.

18. [133]

    The plaintiff submitted that, 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:

Submissions Regarding the Claim of Vicarious Liability

1. [134]

   The defendant submits that 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”. Nor is there any evidence available which would allow the defendant to ascertain whether it acquiesced in or authorised the perpetrator to transport the plaintiff to rehearsals for the Gang Show or to the perpetrator’s caravan.

2. [135]

   The plaintiff makes a point of the fact that the defendant has focussed on, and at the oral hearing of this Motion spent considerably more time addressing, the claim of direct liability. He argues that no basis has been revealed by the evidence or in submissions which could found a stay of proceedings of vicarious liability.

3. [136]

   The plaintiff submits that, on the contrary, there is a good deal of material that gives content to the opportunity and occasion which was afforded to the defendant by virtue of his position within the defendant. He referred particularly to the evidence of the perpetrator and of other victims of the perpetrator’s abuse, in relation to which the perpetrator has also pleaded guilty to, and been sentenced for, some offences. He says that evidence is important circumstantial evidence of the opportunity and occasion which was afforded to the defendant.

Legal Principles

1. [137]

   It is appropriate to attempt to identify the legal principles applicable both to the liability of an organisation for sexual abuse of a child who participates in activities organised by it, and also those applicable to the consideration of whether proceedings should be permanently stayed.

2. [138]

   Neither party drew attention to any decided case which involved any allegations of liability for sexual abuse for the defendant, or any organisation of a similar kind.

3. [139]

   Some features of the defendant may be observed. It was by the 1970s a well‑established organisation part of the Australian Scouting Movement and part of the world-wide Movement. Its purpose was to engage children and young people in a range of largely outdoor recreational activities, such as hiking and camping, through which the participants would learn various skills which would not always be available in traditional educational establishments. The defendant depended upon adult volunteers to lead all parts of the organisation. The defendant would properly be described as a community-based organisation run by volunteers who sought to involve participants in socially desirable and beneficial activities.

4. [140]

   It is important to recognise that this characterisation does not deny the existence of a duty of care, nor is it a licence to engage in conduct which would amount to a breach of any such duty. But it does mean that in examining the legal principles which have become well-rehearsed with respect to sexual abuse in schools, and other juvenile institutions, including residential institutions, care needs to be taken to identify whether, and to what extent, such principles may be applicable.

5. [141]

   As well, when considering any allegations of vicarious liability, care needs to be taken before imposing principles relating to employees of a commercial undertaking, on a community-based organisation which is said to be responsible for the criminal conduct of a volunteer.

6. [142]

   None of these remarks are intended to doubt that an organisation such as the defendant may be found liable for a perpetrator’s conduct such as that alleged in the present case, but careful attention must be paid to the particular facts and circumstances, including whether there is any actual knowledge of a perpetrator’s conduct or tendencies, and what was done to supervise the particular individuals and activities.

7. [143]

   However, the existing principles of negligence may extend incrementally from the law relating to schools or other juvenile institutions. And so it is relevant to have regard to this developed law relating to the liability of schools, and other like institutions, for the sexual abuse of students.

8. [144]

   A school authority is not always liable for damage for the sexual abuse of a student by a staff member. Much will depend on the proved facts and circumstances: New South Wales v Lepore (2023) 212 CLR 511; [2003] HCA 4.

9. [145]

   The plaintiff pleads direct liability on the part of the defendant which he alleges was in breach of its duty to him to take reasonable care to protect him from sexual abuse by Scout Group Leaders or assistant Leaders.

10. [146]

    In The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 (“Trinity Grammar”), the Court of Appeal discussed the principles applicable to the liability of a school authority to a pupil where allegations of sexual abuse occurred. Bathurst CJ (with whom Payne JA and Simpson AJA agreed) said:

11. [147]

    As with Trinity Grammar, having regard to the pleading here, it will be necessary for the defendant to investigate and consider how the 1st Toongabbie West Scout Group, and the Seven Hills and (after amalgamation) the Prospect Districts operated at the time.

12. [148]

    In particular, it will be necessary for the defendant to be able to investigate and lead evidence of the actual knowledge which existed at the relevant time about the behaviour of Mr Green and the perpetrator, and what supervision it was capable of providing, and what supervision it did provide, to either or both of Mr Green and the perpetrator.

13. [149]

    The plaintiff also pleads that the defendant is vicariously liable for the conduct of the perpetrator in the role of Scout Group Leader.

14. [150]

    In Fields v Trustees of the Marist Brothers [2022] NSWSC 739, I summarised the legal principles regarding vicarious liability of a school authority for the conduct of its employed staff member. It is convenient to reproduce what I there said:

15. [151]

    Assuming that the perpetrator can be treated as the equivalent of an employee, a proposition which may be doubted but is akin to the plaintiff’s allegation here, then the defendant will be obliged to investigate and then prepare a defence to the plaintiff’s pleadings which involves its consideration of the role which the perpetrator occupied at the Scout Group, and whether on each occasion when the sexual abuse occurred, the role given to the perpetrator and the nature of his responsibilities may “… justify the conclusion that [his designated role] not only provided an opportunity but also was the occasion for the commission of the wrongful act”.

16. [152]

    Much will depend on the particular facts and circumstances, including the location of the abuse, whether other adults or children were present on the occasion, what the purpose of the occasion was, and how the role designated by the defendant was in fact being exercised or whether the perpetrator had stepped away from, or gone beyond, that role.

17. [153]

    There was no dispute that s 6A of the Limitation Act 1969 applies to the circumstances of this case. That provision reads as follows:

18. [154]

    Section 67 of the Civil Procedure Act 2005 provides:

19. [155]

    In Fields, I summarised the legal principles regarding the grant of a permanent stay at [35]ff, which it is expedient to reproduce here, in this way:

20. [156]

    It is to be observed that s 6A specifically preserves the Court’s power to permanently stay proceedings. It does not seek to intrude upon, or limit, that power in any respect: s 6A(6). The Court’s power to stay proceedings is conferred by statute: s 67 of the Civil Procedure Act 2005 and is part of its inherent jurisdiction to prevent an abuse of its process, including by an unfair trial.

21. [157]

    Accepting the plaintiff’s contention, that following the Royal Commission, the Parliament made a policy decision to remove the limitation period to enable victims of sexual abuse to bring claims which would otherwise be out of time, there is no contradiction between such a policy and the specific preservation of the Court’s ability to prevent an abuse of the process by permanently staying the proceedings. The two matters, that is the presence or the absence of a limitation period which permits or precludes the commencement of proceedings, and whether a defendant can in the circumstances obtain a trial which is fair and does not constitute an abuse of process, are entirely distinct. Proceedings commenced within a limitation period can, depending on the circumstances, constitute an abuse of process and may be stayed permanently.

22. [158]

    Equally, a fair trial may be possible where claims are brought many years after the event, and many years after the expiry of a limitation period, particularly when the expiration of the limitation period is not pleaded or relied upon.

23. [159]

    That is why the principles in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 concentrate, not on any policy of the kind advanced by the plaintiff here, but rather on the nature of the proceedings and the effect that a trial of the proceedings would have on a defendant and to the administration of justice.

Direct Liability

1. [160]

   As was made clear in Trinity Grammar at [446]:

2. [161]

   It is to be assumed for the purpose of the application that the plaintiff is in a position to produce evidence to support the case pleaded and particularised: Trinity Grammar at [446].

3. [162]

   The defendant concedes that it knew of a general risk of harm to any Scout occasioned by sexual abuse perpetrated on them. That is clear from the terms of the Scouts Organisation Rules, which I have described at [25]-[33] above. The defendant’s knowledge of this general risk of harm may also be established by the general facts, matters and circumstances pleaded by the plaintiff, as described at [8(1)]-[8(3)] above.

4. [163]

   During the first part of the hearing of this application, though, the defendant took issue with the pleading of the particular facts, matters and circumstances described at [8(4)]-[8(9)]. Those matters, it was said, gave rise to an inference that the defendant ought to have known of a particular risk of harm posed by the perpetrator.

5. [164]

   On the second day of the hearing, the plaintiff sought to clarify the risk of harm of which the defendant ought to have known. Before that point, the pleaded risk of harm included a reference to “harm caused by Scout Leaders … such as [the perpetrator]”. That gave some additional weight to the defendant’s concern regarding the particularity of the risk of harm which was being alleged.

6. [165]

   The plaintiff was granted leave to amend his pleading and ultimately filed a Second Further Amended Statement of Claim on 25 July 2022. As set out in that pleading, the allegation is that the defendant ought to have known of a reasonably foreseeable risk of harm to the plaintiff, namely “that of suffering personal injury, including psychological harm, caused by Scout Leaders or Assistant Scout Leaders of the defendant engaging in inappropriate sexual conduct towards child members of the Scout group of which they were Leaders”. As is obvious, the amendment has generalised the risk of harm alleged, and it is not said to be addressed specifically to the perpetrator.

7. [166]

   However, the plaintiff did not amend the pleaded facts, matters and circumstances which were said to give rise to the constructive knowledge of the risk of harm. In those circumstances, even though the defendant did not oppose the amendment and was content to proceed with their application in light of it – Senior Counsel said it made no difference to the application – it remains necessary to consider whether the defendant is capable of meeting the case against it in terms of the risk of harm of which it ought to have known.

8. [167]

   The matters described at [8(5)]-[8(9)] above constitute sexual acts committed by Mr Green and the perpetrator at “area camps with the Scout Group” and “overnight trips and hikes for smaller groups of Scouts”. Those matters are evidenced by the statements of the plaintiff’s older brother and the other Scouts who are victims of sexual abuse by the perpetrator. The defendant pointed out that it is unclear whether the plaintiff alleges that any person, other than Mr Green in respect of some grooming matters, knew of the perpetrator’s sexual conduct. As noted above at [73], Mr Green died in 1981.

9. [168]

   The plaintiff pleads that “other Leaders … were aware” of some sexual acts by the perpetrator and Mr Green. The defendant’s investigations identified Mr Kestle as an Assistant Scout Leader from 1979 until 1984 and a Mr W Starling as an Assistant Scout Leader in 1978 and 1980. Mr Kestle has provided a statement; Mr Starling cannot be identified and may be dead.

10. [169]

    As recounted at [98] above, Ms Hewitt recalls hearing from another Scout Leader, whom she thinks was Mr Kestle, that that Scout Leader “felt uncomfortable on a camp with [the perpetrator] because [the perpetrator] allowed the boys to strip naked and jump in a pool”. Mr Kestle, however, says that he first heard of the allegations against the perpetrator from a report regarding the Royal Commission, many years later. He also denies that he was ever aware of any Scouts swimming naked on any Scout camps with the perpetrator. I am not satisfied that the availability of Mr Kestle enables the defendant to meet a case that it ought to have known of a particular risk posed by the perpetrator.

11. [170]

    One of the Scouts who is a victim of sexual abuse recalls a “third Leader”, in addition to Mr Green and the perpetrator, who was involved with the Scout Troop. The plaintiff’s older brother gives evidence that between 1974 and late 1977, Mr Green visited England for an extended period of approximately six months. He says that during this period, another Scout Leader named Tom filled in for him as the Scout Leader. He describes Tom as being tall, with red‑blonde hair. He says he cannot remember whether the perpetrator had commenced in his role as Assistant Scout Leader at the Scout Troop by this stage. His evidence is that, at this point in time, Scout meetings were being held in an old skate rink and that “Tom” was especially interested in planning a dance production to be performed by the Scouts.

12. [171]

    The perpetrator’s evidence is that when he first became Assistant Scout Leader, in 1977, another Leader who was occasionally involved with the Scout Troop was a man who may have been named Tom. He describes him as having blond hair and being about 6’2”. The perpetrator says this Leader taught the Scouts “to dance … at the old skating rink”.

13. [172]

    In its investigation, the defendant identified only one “Tom” associated with the Scout Troop, namely a Tom van der Leelie, from whom the defendant obtained a statement. He was an Assistant Scout Leader of the Scout Troop from October 1973 until July 1975, which is about two years before the perpetrator formally became the Assistant Scout Leader of the Scout Troop. Although he says the name “David Green” rings a bell, he does not remember the name of the Scout Leader of the Scout Troop while he was there, and he does not appear to remember the perpetrator at all. He does not recall Scout meetings held in an “old skate rink”, and he says he never planned any dance production for the Scouts. He does not recall the Scout Leader going overseas for six months. Mr van der Leelie describes himself as being 6’ tall with blond hair. In some respects, he matches the physical descriptions given by the plaintiff’s older brother and the perpetrator. But his evidence is clear, and it is corroborated by the defendant’s records, including a reference to the skating rink being used as a meeting place in 1976, which was after Mr van der Leelie had resigned.

14. [173]

    To minimise the apparent time gap between the involvements in the Scout Group of the perpetrator and Mr van der Leelie, the plaintiff relied on a reference in a document entitled “Particulars of Good Service” to the perpetrator assisting the Scout Group whilst he was a Cub Leader at 1st Seven Hills. I formed the view from my review of the defendant’s contemporaneous records that the defendant accurately referred to people by their correct rank within the Scouts organisation. In those circumstances, I consider that the reference to the perpetrator’s involvement whilst he was a Cub Leader to be a reference to a time between February 1976 and April 1977, that is, after Mr van der Leelie had resigned from his position as Assistant Scout Leader of the Scout Troop.

15. [174]

    In any event, none of the witnesses who refer to “Tom” suggests that Tom witnessed or knew of Mr Green’s conduct described at [8(5)] above or the sexual assaults by the perpetrator. For those reasons, and in light of Mr van der Leelie’s own account, I cannot be satisfied that his availability enables the defendant to meet a case that it knew or ought to have known of a particular risk posed by the perpetrator.

16. [175]

    As I explained at [72]-[77] above, the perpetrator’s immediate superiors at the Scout Group are almost all dead or are otherwise unable to give evidence in these proceedings. Mr Dudeney, the District Leader – Training from December 1978 until July 1982, does not recall the perpetrator being involved with the Scout Group. He did know the perpetrator, however, and he said he never considered him to be a sexual predatory risk to the Scouts. He never received a complaint about the perpetrator and was not aware of the allegations that Mr Green and the perpetrator engaged in sexual conduct whilst on Scout camps.

17. [176]

    As described at [82]ff above, other Leaders involved with the Scout Group between 1977 and 1981 give accounts to the effect that they do not remember the perpetrator or that they do, but that they do not remember him posing a particular risk of harm to the Scouts. No one recalls any complaint about him while he was involved with the Scout Group.

18. [177]

    The only other senior officeholders that may be available are Messrs Gamble and Bateman. Mr Gamble, the Area Commissioner between June 1975 and December 1981, does not recall the perpetrator and says he had no reason to have any particular contact with him. Mr Bateman, the Branch Commissioner for Leader Training between 1977 and March 1981, does not remember the perpetrator. There are no documentary records which suggest that any complaint was brought to the attention of them or other senior officeholders of the defendant.

19. [178]

    In those circumstances, given the lack of available evidence that any Leader or other senior officeholder was made aware of the facts, matters and circumstances described at [8(5)]-[8(9)] above, and especially given the unavailability of Messrs Green, Kaltenbacher, Jackson and Thornley, in my view, the defendant is unable to meaningfully meet an allegation that it knew or ought to have known of a particular risk of harm to members of the Scout Group posed by the perpetrator.

20. [179]

    Strictly speaking, that is not what the plaintiff has pleaded. The risk of harm actually pleaded, as described at [165] above, is a more general one. Whether or not the defendant had knowledge of the facts, matters or circumstances described at [8(4)]-[8(9)] above does not, in isolation, affect the question of its knowledge of the pleaded risk of harm. Because the defendant concedes that it can meet an allegation that it knew of a general risk of harm, it is not prejudiced by being unable to respond to the other allegation that it had knowledge of a specific risk of harm posed by the perpetrator.

21. [180]

    However, as a result of the way the plaintiff has pleaded his case, whether the defendant had knowledge of the facts, matters or circumstances described at [8(5)]-[8(9)] above affects the ultimate question of whether the defendant was negligent in failing to take precautions against that general risk of harm.

22. [181]

    The plaintiff particularises the alleged breach by the defendant in six ways, as described at [11] above. Some of the particulars of breach pleaded by the plaintiff may require the determination of matters of practice and procedure which are not directly related to the perpetrator’s particular involvement with the defendant, namely:

    1. (1)

       Were the Scouts Organisation Rules generally adhered to in the running of the Scout Group during the relevant period?

    2. (2)

       What were the ordinary procedures for interviewing, investigating the background of, supervising and monitoring Scout Leaders and Assistant Scout Leaders of the Scout Group?

    3. (3)

       What policies and protocols were established to identify the situations and circumstances where immoral acts could occur and to prevent sexual grooming and sexual activity with members of the Scout Group?

    4. (4)

       What was done with the knowledge of the sexual grooming and sexual activity described at [8(1)] to [8(3)] above and the behavioural files which included reports of child abuse dating back to the 1950s, which were referred to at [9] above?

23. [182]

    I described the evidence regarding the procedure for issuing warrants, as required by the Scouts Organisation Rules, at [25]-[32] and, as recalled by the available witnesses, at [34]-[49] above. The Scouts Organisation Rules unequivocally prescribe a procedure. The witnesses, however, describe varying processes which differ from the Scouts Organisation Rules and the accounts of other witnesses.

24. [183]

    The Scouts Organisation Rules required applicants to complete a form and provide two references. Their application then had to be approved by the Group Leader, the District Association and the District Commissioner. Although the Scouts Organisation Rules did not strictly require any interview to be conducted, the District Association was required to “satisfy itself that in every case the applicant [was] fitted by character and previous history to be entrusted with the care of young people”. The District Association was then required to satisfy itself of further matters, including that the applicant “[had] personal standing and character such as will ensure a good moral influence and sufficient steadfastness of purpose to carry out the work with energy and perseverance”. The District Commissioner was required to satisfy themselves similarly. And if “a person whose character and past history [were] not fully known” to the Scouting Movement, a further procedure was required to be followed.

25. [184]

    Many of the available witnesses remember the requirement to complete paperwork and send it to Branch Head Quarters. Some witnesses, such as Messrs Dudeney, Gamble and Sanderson, recall specifically that a police check was undertaken by Branch Head Quarters. They differ in their available recollections when it comes to whether and how applicants were interviewed. Mr Dudeney recalls that a District-level Warrant Subcommittee was required to interview prospective warrant-holders and that, from around 1978, in the Prospect District, the District Secretary performed that role alone. Leslie Byron, the District Secretary at that time, died in 1993. Ms Sanderson, the District Secretary at Seven Hills from 1975 until 1976, says that she was never involved in the warrant application process and that she never interviewed candidates.

26. [185]

    Mr Hall does not recall the District Secretary interviewing prospective Leaders and says he was never formally interviewed for his roles as Assistant Cub Leader and Cub Leader. Mr Kestle remembers being interviewed by “some group members”, who may have included a Scout Leader. Ms McAlpine recalls that applicants were required to be interviewed by the relevant District Leader. Mr Sanderson recalls being interviewed, at least for his promotion to District Scout Leader.

27. [186]

    Clearly, the witnesses’ recollections vary and tend to conflict. However, generally, the evidence this Court had available to it on this Motion was signed and unsigned statements of the witnesses prepared by a private investigator. With the benefit of further interviews prior to trial involving the lawyers acting for the parties, and their evidence including oral cross-examination, a trial judge may very well be able to make findings of fact with respect to the ordinary practice and procedure which was in place to interview and investigate the background of applicants for warrants. But this is necessarily an exercise in speculation. I note in this regard that the Court of Appeal has recognized the obvious fact that a statement is not “anything like an adequate substitute for a live witness”: Walters v Cross-Country Fuels Pty Ltd [2009] NSWCA 10 at [22].

28. [187]

    In my view, and as properly conceded by Senior Counsel for the defendant, there is sufficient evidence relating to the ordinary practice and procedure which was in place to interview and investigate the background of applicants for warrants which means that these particular circumstances are not by themselves so exceptional as to warrant the granting of a permanent stay. Senior Counsel for the defendant submitted, however, that the evidence which is available does not enable his client to respond to the allegation that it failed to interview and investigate this particular perpetrator. I accept that submission, for reasons which I will come to.

29. [188]

    I described the evidence available as to the ordinary procedures for supervising and monitoring Leaders at [50]-[60] above. In summary, very few witnesses recall District Commissioners or other senior officeholders attending meetings or camps. Some of the witnesses recall monthly or quarterly meetings among the Leaders of each Section, but the evidence is that they were not compulsory, and they do not appear to have involved anything other than a review of planned activities. The evidence about whether a “camp permit” or other formal authority was required to take Scouts camping is in conflict: some say it was always required; others say it never was. There is also some conflict about the circumstances in which a single Leader may have taken Scouts camping.

30. [189]

    The defendant submitted that District Commissioners were uniquely positioned to give evidence about supervising and monitoring Leaders at the relevant time and in the Prospect District and that, given the unavailability of Messrs Jackson and Thornley, it was prejudiced in responding to the case against it in this respect. The defendant pointed out, rightly in my view, that procedures for supervising and monitoring Leaders may not have been made known to Leaders and that, to the contrary, effective supervision may have required the target Leader to be unaware that they were being supervised. In other words, the fact that a Leader does not remember someone supervising them does not mean that they were not being supervised or, more importantly, that the defendant through the District Commissioner did not have in place a system of supervising and monitoring Leaders.

31. [190]

    Despite the defendant’s investigation, there is simply no reliable evidence available to determine what system, if any, the defendant had in place to supervise and monitor Scout Leaders and Assistant Scout Leaders of the Scout Group. In those circumstances, the defendant is especially prejudiced in that it is unable to meet a case against it that it was negligent in failing to provide adequate systems.

32. [191]

    For the same reasons, I am similarly satisfied that there is no reliable evidence available to determine what policies and protocols were in place to identify the situations and circumstances where immoral acts could occur and to prevent sexual grooming and sexual activity with members of the Scout Group. It seems to me that that type of evidence would also be uniquely within the knowledge of the District Commissioners at the time, who are not available to give evidence in these proceedings. No documents exist which record their policies and protocols.

33. [192]

    There was no evidence before me on this application that anything particular was done with the actual knowledge of the “sexual interference” described at [8(2)] above. Nor was any explanation given for how or why the inheritance of behavioural files, referred to at [9] above, in December 1999 might affect the question of whether the defendant breached any duty of care it owed the plaintiff in the late 1970s or early 1980s. In those circumstances, I am simply unable to determine whether the defendant is able to respond to those matters.

34. [193]

    Other particulars of breach pleaded by the plaintiff may require the determination of matters of fact that are directly connected with the perpetrator’s particular involvement with the defendant, namely:

    1. (1)

       Was the perpetrator interviewed before he was permitted to perform the role of Scout Leader or Assistant Scout Leader of the Scout Group?

    2. (2)

       What investigation of the perpetrator’s background was undertaken before he was permitted to perform the role of Scout Leader or Assistant Scout Leader of the Scout Group?

    3. (3)

       How was the perpetrator supervised and monitored in his role as Scout Leader or Assistant Scout Leader of the Scout Group?

    4. (4)

       What investigation of the perpetrator’s conduct as Assistant Scout Leader was undertaken before he was appointed Scout Leader?

35. [194]

    As I described at [182]-[186] above, there is sufficient evidence, albeit conflicting, about the ordinary practice and procedure which was in place to interview and investigate the background of Leaders. On the other hand, as I described at [188]-[190] above, there is a critical lack of evidence about the ordinary procedures for supervising and monitoring Leaders.

36. [195]

    None of that evidence enables the defendant to respond to the particular allegations that it failed to properly interview, investigate the background of, supervise and monitor the perpetrator. And, as I noted at [34] above, no witness identified in the defendant’s investigation is able to give evidence specifically about the process by which the perpetrator was issued with his warrant. Nor is there any evidence about whether and how the conduct of the perpetrator was investigated before he was appointed Scout Leader of the Scout Group. I accept that those types of evidence would be uniquely within the knowledge of the District Commissioners at the time, who, as I have noted, are not available to give evidence in these proceedings.

37. [196]

    On the other hand, as I noted at [109] above, the perpetrator specifically says he was not interviewed before he was granted his warrant. The availability and willingness of the perpetrator to give evidence in these proceedings is a peculiar feature I have had special regard to in determining how and in what way the defendant is prejudiced and whether a permanent stay ought be ordered. The plaintiff relies on the perpetrator’s availability to give 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. The plaintiff submits his availability, among other things, would lead the Court the conclude that the circumstances are not so exceptional as to warrant the ordering of a stay. The defendant submits the availability of the perpetrator is no remedy to the dearth of other relevant evidence, because the perpetrator is not an independent witness as he is attempting to shift moral blame from himself to the defendant. As I have earlier noted, the defendant submits that, in the circumstances, the perpetrator’s evidence is a symbol of prejudice rather than a cure.

38. [197]

    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.

39. [198]

    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.

40. [199]

    The perpetrator’s evidence contains material which is highly prejudicial to the defendant’s case. His evidence, if accepted at a trial, could substantially go towards establishing that the defendant had breached its duty of care to the plaintiff including by, for example, failing to interview, supervise and monitor him.

41. [200]

    Ordinarily, the perpetrator’s interest in the proceedings might be factored into the weight which could be given to his evidence. The unassailable problem for the defendant in this case, however, is that there is simply no contrary evidence upon which alternative findings could be made as to whether and how the defendant interviewed, supervised, and monitored the perpetrator. Nor is the defendant equipped with the evidence of other witnesses, or contemporaneous documents, to test the perpetrator’s version of events. I do not consider that the availability of the perpetrator enables the defendant to meet the case against it, which seems to a significant extent to be able to be proved by his evidence.

42. [201]

    Finally, the particular of breach described at [11(6)] above requires the determination of whether the defendant failed to terminate the perpetrator’s warrant following his conduct described at [8(6)] to [8(8)] above which, in turn, requires the determination of whether the defendant knew of that conduct. As I have earlier said, the lack of evidence that any Leader or other senior officeholder was made aware of that conduct has led me to conclude that the defendant is unable to meaningfully meet an allegation that it knew or ought to have known of a particular risk of harm to members of the Scout Group posed by the perpetrator. For similar reasons, because it relies on the premise that the defendant knew or ought to have known of the perpetrator’s conduct, the defendant is unable to meaningfully meet an allegation that it failed to terminate the perpetrator’s warrant as particularised by the plaintiff.

43. [202]

    In summary, because:

    1. (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. (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. (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. (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. (5)

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

    6. (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. (7)

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

44. [203]

    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.

Vicarious Liability

1. [204]

   In his claim that the defendant is vicariously liable for the tortious and unlawful conduct of the perpetrator, the plaintiff pleads the following:

2. [205]

   The defendant admits paragraph 30, extracted above, but does not admit paragraph 31. The defendant denies paragraph 32 and the consequential allegation that it is vicariously liable for the perpetrator’s conduct.

3. [206]

   There is no dispute that the perpetrator was a volunteer, not a paid employee of the defendant. Since late 2018, Part 1B, Division 3, of the Civil Liability Act 2002 has provided that organisations are vicariously liable for child abuse perpetrated by individuals, including those who are “akin to” employees, in that they carry out activities as an integral part of the activities carried on by the organisation and do so for the benefit of the organisation. But that Division does not apply to conduct which occurred before it came into effect. It does not apply to this claim.

4. [207]

   The defendant denies that it employed the perpetrator and refers to the case of PCB v Geelong College [2021] VSC 633, in which the following was said by O’Meara J about Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37:

5. [208]

   Justice O’Meara also had regard to the case of Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 at [26]-[28] in rejecting the plaintiff’s contention in PCB that a school could be vicariously liable for the acts of a volunteer involved in a trade facility maintained by the school.

6. [209]

   In Plaintiff A and B v Bird; Plaintiff C v Bird; Plaintiff D v Bird [2020] NSWSC 1379, at [426], Schmidt AJ derived from Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44 the relevant factors to be considered in determining whether a person is an employee for the purposes of determining vicarious liability. On appeal, the Court of Appeal noted that Schmidt AJ “correctly referred to the relevant principles”, and there was no challenge to her Honour’s finding that the relevant volunteer in that case was an employee, even though he was not paid wages: Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119 at [187]-[188]. But the organisation in that case was not a school or a community organisation – it was a privately operated, profit‑making childcare centre.

7. [210]

   Whether the perpetrator was an employee of the defendant organisation is an issue of mixed fact and law which would need to be resolved at a trial of the plaintiff’s claim of vicarious liability. What is clear from Hollis, Sweeney and other like cases is that the finder of fact must have careful regard to the totality of the relationship between the defendant and the perpetrator, especially as to how the defendant controlled the perpetrator, what duties it delegated (if any) to the perpetrator and held him out to the public as its representative. It is also necessary to have regard to the nature of the organisation itself.

8. [211]

   On this application, it was clear to me that there is substantial evidence available so as to enable a determination one way or another as to whether the perpetrator was in a role which could be described as one which was akin to an employee. Senior counsel for the defendant expressly disavowed any suggestion that the defendant could not obtain a fair trial on that issue.

9. [212]

   In that regard, senior counsel rightly characterised the “extent of the relationship” between the defendant and any Scout Leader, including the perpetrator, as being “structural” in accordance with the Scouts Organisation Rules, which I have already described. In addition to prescribing a procedure for the “warranting” or appointment of Leaders, the Scouts Organisation Rules also provide for the functions of Leaders (rules 7/48 and 7/67) and the circumstances in which Leaders are required to wear uniforms, badges and insignia (Parts VIII and IX).

10. [213]

    Although it is not necessary to set the evidence out in detail, several of the statements prepared by the parties included evidence of the practice adopted with respect to wearing uniforms, badges and insignia. There was also evidence of the functions, tasks and activities ordinarily undertaken by Leaders, including the perpetrator, in connection with the defendant’s enterprise.

11. [214]

    I also note the evidence that warranted Leaders were not the only adults that had contact with Scouts during Scouting events. For example, several witnesses are able to give evidence of occasions when fathers went camping with their sons. Robert Sproston says he was “never a Scout Leader”, “was never registered to be in the Scouts” and that he “only ever helped out”. He got involved because “a lot of the Scout Leaders were not good at organising events”.

12. [215]

    That same evidence would be relevant in any trial of the plaintiff’s claim that the defendant is vicariously liable for the abuse. But, as was observed by Gageler and Gordon JJ in Prince Alfred College at [128], “decisions concerning vicarious liability for intentional wrongdoing are particularly fact specific”. Focus must be had on the “special role” that the defendant actually assigned to the perpetrator and the position in which the perpetrator was thereby placed vis-à-vis the plaintiff: Prince Alfred College at [81]. In that regard, the fact that the defendant properly concedes that it can meet part of the case against it, as to the general nature of the perpetrator’s relationship with the defendant, does not mean that the defendant’s application for a permanent stay of the broader claim of vicarious liability must fail.

13. [216]

    It is also necessary to have regard to the circumstances of the abuse which are pleaded. As I have said, the defendant admits that the plaintiff was subjected to repeated sexual abuse by the perpetrator but has not specifically responded to the particulars of that abuse. In summary, the particulars of the abuse alleged by the plaintiff involve the following:

    1. (1)

       whilst attending an overnight camp organised by the Scout Group, the perpetrator directed 20 Scouts in attendance to expose their penises and he then shined a torch on their penises;

    2. (2)

       under the pretence that the perpetrator was assisting the plaintiff attain Scout-related achievements, or assisting the plaintiff prepare for the Gang Show, the perpetrator took the plaintiff from his home to the perpetrator’s caravan where the perpetrator sexually abused the plaintiff;

    3. (3)

       on other occasions, without any apparent pretence, the perpetrator took the plaintiff from his home to the perpetrator’s caravan where the perpetrator sexually abused the plaintiff;

    4. (4)

       after taking the plaintiff and another Scout to a public pool, the perpetrator took them to his caravan where he sexually abused them;

    5. (5)

       the perpetrator took the plaintiff and another Scout to a drive-in cinema and sexually abused them there;

    6. (6)

       whilst driving the plaintiff to or from Gang Show rehearsals, the perpetrator sexually abused the plaintiff; and

    7. (7)

       the perpetrator took the plaintiff “on an outing” where he parked his car at a public park and then sexually abused the plaintiff.

14. [217]

    The defendant submits that the same difficulties with the claim of direct negligence arise with respect to vicarious liability because the defendant cannot say whether it knew of or acquiesced in, or else directly or indirectly authorised the perpetrator to perform, the activities which gave rise to the occasion upon which the abuse of the plaintiff occurred. It says whether the perpetrator’s role was as expansive as that which is pleaded, and whether the defendant is vicariously liable for the abuse, is intimately dependent upon evidence of how the particular Scout Group was organised and its activities conducted, and what were the boundaries of the role given to the perpetrator to perform. The defendant relies again on the unavailability of the District Commissioners, and also Mr Green.

15. [218]

    The plaintiff says, on the contrary, that there is sufficient evidence to permit a trial of the claim of vicarious liability and points to the evidence of the other Scout who was present during the occasions of abuse described at [216(4)]‑[216(5)] above as circumstantial evidence of the opportunity and occasion which was afforded to the defendant.

16. [219]

    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.

17. [220]

    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. In the exceptional circumstances of this case, a permanent stay of the plaintiff’s claim in vicarious liability ought be ordered.

18. [221]

    I briefly described the defendant’s investigations at [19]-[20] above and, throughout this judgment, I have referred to the volume of statements and documentary material which has been produced as a result of those investigations. The scope of the defendant’s brief to the private investigator was broad, and the results have been significant. In his written submissions, the plaintiff described the defendant’s evidence on the application as comprising a “wealth of material” and a “substantial body of information”.

19. [222]

    However, as I noted at [127]-[128], the plaintiff complains that the defendant’s investigations have been inadequate and have ignored the evidence which the plaintiff has gathered in his own investigations and which the police gathered in their investigations of the related criminal offences by the perpetrator. Most importantly, the plaintiff says, the defendant has “ignored or avoided the obvious and stark fact that the perpetrator … is readily available and is in a position to provide important and relevant evidence”.

20. [223]

    For reasons which I gave at [197]-[200] above, I do not regard the mere availability of the perpetrator as enabling the defendant to meet the case against it. The defendant says, also, that the perpetrator’s interest in shifting the moral blame for his conduct would infect him so substantially that he cannot be trusted to provide any reasonable line of inquiry. I reject that submission because, in my view, the perpetrator could be reasonably expected to reveal lines of inquiry and, in this case, he did exactly that. It was, among other things, the perpetrator’s statement which led the defendant to interview Tom van der Leelie, whose evidence is described at [172] above, who was not obviously connected with the Scout Group around the time of the perpetrator’s involvement and who may not have otherwise been investigated by the defendant.

21. [224]

    As I have said, I consider that the perpetrator has an interest in this matter proceeding to trial and a finding being made in favour of the plaintiff which would indirectly benefit him. My impression of the perpetrator’s statement is that he has tried to reveal all the lines of inquiry which he is aware of. Among other things, he describes his interactions with his superiors and, to the extent he remembers, he provides their names. In my view, having regard to the fact that the defendant appropriately acted upon the perpetrator’s statement to undertake further investigation, the defendant has not obviously neglected an available source of information for the purpose of its investigations. I reject the submission of the plaintiff that this is so.

22. [225]

    Furthermore, the fact that the plaintiff elicited the relevant information from the perpetrator, rather than the defendant, does not disentitle the defendant to the relief which it seeks. It may have been different, however, if neither party had approached the perpetrator at all because, as I have said, it seems to me that an alleged perpetrator of abuse may well be willing and able to reveal lines of inquiry about the circumstances of that abuse, but this is not necessarily so.

23. [226]

    Also, for reasons which I gave at [219] above, I do not regard the availability of the evidence of other Scouts, including those who were also abused by the perpetrator, to ameliorate the defendant’s prejudice in answering the plaintiff’s claims in these proceedings.

24. [227]

    It seems that those statements, if used, are potentially admissible as tendency evidence, thereby circumstantially bolstering the plaintiff’s case. The comments of Mitchelmore JA in The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 about the prejudice associated with tendency evidence are apt: see at [123], [125].

25. [228]

    The same must be said with respect to the other witnesses who provided statements to the plaintiff. The simple fact is that they cannot give evidence of the kind that would be expected from relevantly senior members of the defendant organisation such as Messrs Green, Jackson and Thornley.

26. [229]

    As I acknowledged at [186] above, I accept in part the proposition that more evidence may come to light at any trial of the plaintiff’s claims, including because the witnesses will have been interviewed by lawyers for the parties by that point, and because those witnesses will be subject to oral cross-examination. But I do not regard the defendant’s investigations as being inadequate such that no permanent stay ought be granted in this case. In my view, the defendant, who bears the onus of proof and seeks an exceptional remedy, has explored and pursued all reasonable lines of inquiry that may bear upon the fairness or unfairness of any trial of the plaintiff’s claims.

27. [230]

    In Trinity Grammar at [494], Bathurst CJ said:

28. [231]

    I do not understand the plaintiff to allege any disentitling conduct by the defendant in the course of these proceedings. There is no suggestion, for example, of deliberate destruction of documents or a deliberate failure to inquire for fear of ascertaining the true position. To the contrary, I have found that the defendant has explored all reasonable lines of inquiry and, as I noted at [19] above, the defendant commenced those investigations by engaging a private investigator on 10 September 2020, less than a month after the plaintiff commenced proceedings in this Court.

29. [232]

    For the avoidance of doubt, however, and for the following reasons, I am satisfied that the defendant is not currently unable to meet the plaintiff’s claims due to its own neglect or default.

30. [233]

    On 30 October 2017, the defendant was contacted by a Detective of the New South Wales Police about the statement made by the plaintiff to police on 18 October 2017. The defendant subsequently provided documents and other assistance to New South Wales Police on 1 November 2017. There is no suggestion that the defendant was aware of the perpetrator’s abuse of the plaintiff before this time.

31. [234]

    Furthermore, on the evidence before me, there is no suggestion that the plaintiff threatened litigation against the defendant at any time before he filed his Statement of Claim in this Court in 2020.

32. [235]

    In any event, by 2017, Messrs Green and Jackson had already died. And although it is not absolutely clear on the evidence before me, it seems that Mr Thornley, who has dementia and cannot give any evidence in these proceedings, has suffered from cognitive decline since suffering a stroke in 2009. On the other hand, Mr Chapman was alive and was not suffering from dementia before 2020. There is a chance that Mr Swales may have been located.

33. [236]

    However, in my view, given the unique position of Messrs Green, Jackson and Thornley within the defendant’s organisation, as I have explained, even if the defendant had commenced its investigations in 2017 when it first learned of the plaintiff’s complaint against the perpetrator, it would be in no substantially different position to that which it is in now.

34. [237]

    The defendant was aware of other abuse committed by the perpetrator many years ago. On 17 February 1983, the District Commissioner for the Limestone Plains District of the Scout Association in the ACT received a written complaint from a parent of a Scout which alleged that the perpetrator had sexually assaulted their son. The perpetrator was immediately suspended from his role as Scout Leader and an inquiry was undertaken by the ACT Branch of the Scout Association. The perpetrator denied the allegations when he was questioned before a committee in March 1983. The committee concluded that it was “unable to arrive at a judgement as to whether or not any such incidents actually occurred”, did not decide to cancel the perpetrator’s warrant and instead referred the matter to the Branch’s legal advisers to consider whether the matter should be referred to police. On 30 March 1983, the ACT Branch lifted the suspension of the perpetrator’s warrant.

35. [238]

    The perpetrator moved back to Sydney around this time. On 31 March 1983, the General Secretary of the ACT Branch wrote to the defendant and advised them that the suspension on the perpetrator’s warrant had been lifted because the “allegations against [the perpetrator] were found to be unsubstantiated”. The perpetrator again became heavily involved in the Scouting Movement in Sydney. In May, he attended the Cumberland Area Gang Show and, in July, he attended the 15th World Jamboree in Canada as a representative of Australia. He became a Scout Leader of the 1st Boronia Scout Group.

36. [239]

    On 16 November 1984, the Group Leader of 1st Boronia, John Robertson, was informed by a parent that the perpetrator had been interfering with one of the Scouts there. With advice from the District Commissioner, a Mr G E Brennan, Mr Robertson conducted an inquiry, which involved informing all Scouts at 1st Boronia and their parents of the allegations, and through which it was discovered that seven Scouts had been sexually assaulted by the perpetrator. The perpetrator resigned his warrant, which was then cancelled and marked with a note that it was “not to be reissued”.

37. [240]

    The perpetrator’s statement discloses that he was first incarcerated for his sexual offending against other victims in 2002. And, although there is very limited evidence in this respect on this application, it seems that allegations about abuse by the perpetrator were the subject of investigations by the Royal Commission, sometime between 2012 and 2017. It may be unrelated to the plaintiff, but I note for completeness that there is a reference in the documents to the defendant compiling documents about the perpetrator in 2016. Finally, I note the plaintiff’s allegation in his Statement of Claim that in 1999 the defendant inherited behavioural files regarding Scout Leaders which included allegations of child abuse by Scout Leaders dating back to the 1950s. I have no evidence, or any particular details about the contents of those files.

38. [241]

    Hypothetically, the defendant could have commenced investigations regarding the whole of the perpetrator’s involvement with the defendant in 1984 or in 2002. Mr Green had died before then, but Messrs Jackson and Thornley may have been able to give evidence. But that is not what the law requires of a person in the defendant’s circumstances. The perpetrator’s abuse of the plaintiff occurred before the abuse which came to light in 1983 and 1984 and at an entirely different location. Upon receiving the complaint which it did in 1984, the defendant conducted an inquiry which, in the circumstances, was entirely reasonable. There is simply no evidence before me that the defendant was once given an opportunity to investigate matters relevant to the plaintiff’s claim but lost that opportunity through its own fault.

39. [242]

    For those reasons, I do not consider that the defendant is unable to meet the case against it due to its own neglect or default.

Orders

1. [243]

   The defendant has satisfied me 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. There is no reason that costs should not follow the event.

2. [244]

   I make the following orders:

   1. (1)

      Order, pursuant to section 67 of the Civil Procedure Act 2005 and in the inherent jurisdiction of the Court, that the claims by the plaintiff against the defendant contained in the Second Further Amended Statement of Claim filed on 25 July 2022 be permanently stayed.

   2. (2)

      Order the plaintiff to pay the defendant’s costs of the proceedings including the costs of and incidental to the Notice of Motion filed 28 October 2021.

   3. (3)

      If any party seeks a different order for costs, then that party is to make written application to my Chambers within 14 days of the date of this judgment which application includes all material upon which they intend to rely together with an outline of submissions not exceeding three pages in support of the order for costs. Any such application is to be served on each other party at the time it is provided to my Chambers.

   4. (4)

      Within a further period of 14 days, any party opposing such order is to provide to my Chambers, with copies to each other party, any material upon which they wish to rely together with an outline of submissions in response not exceeding 3 pages.

   5. (5)

      Any such application will be dealt with on the papers unless the Court otherwise thinks it necessary.