Watson v Albury City Council

1. [1]

   On 26 March 2024, the plaintiff commenced proceedings by filing a Statement of Claim against three parties, seeking damages as a consequence of physical and sexual abuse which she pleaded had occurred to her in the period between 1985, when she was 10 years old, and 1993, when she turned 18 years of age.

2. [2]

   The three defendants to the proceedings were the Albury Basketball Association Inc., (“the Basketball Association”); Albury City Council (“the Council”); and Mr Paul Gooding.

3. [3]

   On 27 June 2024, with the consent of each of the three defendants, the plaintiff filed an Amended Statement of Claim (“ASOC”).

4. [4]

   In that ASOC, the plaintiff pleaded, in a slightly more coherent fashion, that the third defendant, (“Mr Gooding”), had inflicted sexual abuse of various kinds upon her in the course of their interactions when Mr Gooding was the coach of a club team for which the plaintiff played, and also a local, but representative, team.

5. [5]

   The plaintiff also pleaded that the abuse also occurred whilst Mr Gooding was carrying out his duties as the Stadium Manager of the Albury Basketball Stadium, and in his capacity as an employee of the second defendant, the Council. The plaintiff pleaded that the two organisations, namely, the Basketball Association and the Council, were vicariously liable for the conduct of Mr Gooding.

Initial Judicial Case Management Hearing

1. [6]

   The matter came before me for judicial case management on 6 September 2024. Counsel for Mr Gooding drew the Court’s attention to the fact that, in the ASOC, whilst there were pleadings directed at Mr Gooding, no claim for damages was directly pleaded against him. Counsel drew attention to the fact that the way in which the ASOC was pleaded meant that there were claims against each of the Basketball Association and the Council for vicarious liability, arising from the conduct and actions of Mr Gooding, but there was no alternative pleading directly making a claim against him, in circumstances where he was joined as a defendant.

2. [7]

   Counsel drew attention to the unsatisfactory state of the pleadings. He informed the Court that he did not feel able, on behalf of his client, to file a defence at that time. He pointed out that significant requests for particulars had been made in an attempt to elicit the real case against his client, and that his client was entitled to know what the pleaded case against him would be.

Second Judicial Case Management Hearing

1. [8]

   On 20 September 2024, Senior Counsel appeared for the plaintiff. He raised various matters and indicated that he was of the view, and had so informed legal representatives of the other parties, that his client required to further amend her ASOC. Senior Counsel conceded, with respect to Mr Gooding, that a clear cause of action against him had not been identified.

2. [9]

   The parties did not object to the plaintiff having further time to re-plead. Counsel for Mr Gooding sought that the question of costs be reserved because, as he put it:

3. [10]

   It was also confirmed at that time that, for a period, the plaintiff had been an employee of the Council. Counsel for Mr Gooding noted that there may be significant complex questions and issues arising from that employment, and whether the plaintiff’s claim for damages was caught by any of the various alternative claim for compensation damages regimes.

4. [11]

   On that occasion, I made orders that the plaintiff was to serve on the defendants, any proposed ASOC, and that the solicitors for the defendant were to notify the plaintiff of their attitude to that proposed ASOC.

5. [12]

   I reserved all questions of costs.

6. [13]

   The plaintiff circulated a proposed further ASOC (“FASOC”) in accordance with the timetable. Each of the defendants notified their opposition to the claim being filed.

Third Judicial Case Management Hearing

1. [14]

   The matter returned before the Court for further directions on 1 November 2024. During the course of the directions hearing, certain matters were raised and dealt with. At the end of that hearing, I made the following orders:

2. [15]

   The matter was then stood back into the list before the Common Law Registrar.

3. [16]

   The reason that the order granting leave to file a proposed ASOC included the word “generally” was because there had been some discussion, during the course of the directions hearing, about some other matters which required attention in the proposed pleading. Senior Counsel for the plaintiff indicated that those matters would be attended to. It was unnecessary to specify each of them in the order.

Common Law Registrar – 10 February 2025

1. [17]

   By the time the matter came back before the Common Law Registrar, on 10 February 2025, the claim against the Basketball Association had been resolved consensually by the entry of judgment in favour of it, the first defendant, against the plaintiff, with there being no order as to costs.

2. [18]

   It was apparent that, on the morning of that directions hearing, before the Common Law Registrar, the plaintiff, had not filed an ASOC in accordance with the Court’s order of 1 November 2024, but had only a few days earlier circulated a proposed pleading. As the defendants had not had time to consider that pleading, orders were made by the Common Law Registrar that the defendants indicate their attitude to the proposed pleading and, if the defendants did not consent to it, the plaintiff was to file a Notice of Motion seeking leave.

Notice of Motion – 19 March 2025

1. [19]

   On 19 March 2025, because the remaining defendants opposed the grant of leave to file an ASOC, the plaintiff filed a Motion seeking leave to file a further ASOC.

2. [20]

   The correspondence between the parties indicated that the FASOC which was proposed to be filed was different, in significant respects, from the circulated draft referred to in the Order set out at [14] in respect of which leave had been granted in November 2024.

3. [21]

   A letter from the solicitors for the third defendant, indicating its opposition to the filing of the FASOC, set out the background to the proceedings, including the various orders which had been made with respect to the plaintiff amending her Statement of Claim.

4. [22]

   The letter went on to draw attention to the fact that the proposed pleading had not attended to the observations which I had made in the course of various directions and noted that, insofar as the case against their client was concerned, the basic elements of the torts relied upon had not been pleaded. As well, the letter noted that particulars which are required by the Uniform Civil Procedure Rules 2005 (NSW) when a pleading for aggravated damages and exemplary damages is made, had not been addressed in the proposed pleading.

5. [23]

   The letter finished off with this description:

6. [24]

   The proceedings came before me on 6 May 2025, for directions generally, including the determination of the Notice of Motion.

7. [25]

   Counsel for Mr Gooding made clear his client’s position:

8. [26]

   On that day, I fixed the hearing of the Motion to take place on 20 June 2025.

9. [27]

   Prior to the Motion being heard, in accordance with the Court’s directions, written submissions were filed by counsel for the plaintiff. Those submissions contended that leave ought be granted to file and serve the further ASOC.

Hearing of Notice of Motion for Leave to Amend

1. [28]

   The second defendant, the Council, did not oppose the filing of the further ASOC.

2. [29]

   Mr Gooding submitted that the amendment ought not be allowed, that so defective was the existing pleading that it ought be summarily dismissed, and that the plaintiff should be required to pay his costs of the proceedings after 2024 on an indemnity basis, such costs to be payable forthwith.

3. [30]

   The submissions of each party did not seem to constructively address each of the contentions of the other side. Each party professed not to understand the other party’s submissions. Accordingly, it became necessary, in the course of oral argument, to raise with each counsel quite what it was that their clients were saying to either support the proposed pleading or oppose it.

4. [31]

   There was further discussion between Senior Counsel for the plaintiff and the Bench, after which it became apparent, and Senior Counsel accepted, that it was appropriate that the plaintiff be granted a further period to redraft her Statement of Claim to reflect the discussion which had occurred.

5. [32]

   The defendant, Mr Gooding, contended that the plaintiff had had a sufficient opportunity to re-plead, and that the Court would not, in the exercise of its discretion, grant any further leave to the plaintiff.

6. [33]

   In addition to the lengthy history of attempts to plead the case, counsel for Mr Gooding drew attention to the existence of real prejudice to his client in terms of the fact that Mr Gooding was an uninsured party, was responsible for paying his own costs, and that he was being severely prejudiced, not only by the delay, but by the fact that he has had to outlay costs for all of the proceedings during which the plaintiff has attempted to formulate an adequate Statement of Claim.

Discernment

1. [34]

   The plaintiff’s lawyers have had significant difficulty in adequately pleading a claim on behalf of the plaintiff.

2. [35]

   Initially, there was a complication because of the involvement of the Basketball Association, but by the time of this Motion being heard, it had been removed as a party for a period of about six months or so.

3. [36]

   Thereafter, conceptually, the plaintiff’s claim became somewhat simpler to plead.

4. [37]

   The plaintiff alleges that she was abused by Mr Gooding over a number of years. Part of that abuse occurred whilst he was interacting with the plaintiff in his capacity as a coach of one or more basketball teams; part of the abuse occurred when he was acting in the capacity of the Stadium Manager, and an employee of the Council.

5. [38]

   The Council is sued in respect of only that latter part of the abuse. It is said that, because Mr Gooding was an employee of the Council, the Council is vicariously liable for that conduct. As well, there is one element of a particular of negligence against the Council with respect to issues of employment.

6. [39]

   Mr Gooding is sued for the intentional torts of assault and battery. The claim against him covers all periods and all abuse. The claim against him is straightforward and lacks complexity.

7. [40]

   Whether or not the Council is liable, either directly to the plaintiff in the tort of negligence, or vicariously liable to the plaintiff by reason of the abuse which occurred when Mr Gooding was in the course or his duties as Stadium Manager, is a separate question involving the Council, and does not complicate the intentional tort claim directly against Mr Gooding.

8. [41]

   The plaintiff is entitled to have an opportunity to ventilate her claim. The fact that her lawyers have been unable to satisfactorily put together a pleading which complies with all of the obligations for a proper pleading in the proceedings, is not to be held against the plaintiff, nor should it result in the termination of her claim against the person whom, she pleads, is responsible for abusing her.

9. [42]

   In those circumstances, I do not propose, as Mr Gooding submits I should, to terminate the proceedings summarily in his favour.

10. [43]

    Subject to addressing the real prejudice suffered by Mr Gooding with respect to costs, it is appropriate to allow the plaintiff an opportunity to replead her claim. That prejudice can be appropriately addressed by an order for costs, which are to be made payable forthwith.

11. [44]

    I note that, having regard to Mr Gooding’s advanced age and in order to protect against any risk that he may be unable to give evidence in due course, it is always open to the solicitors for Mr Gooding to seek to have his evidence taken on commission in advance of any hearing, subject, of course, to persuading the Court that that step is appropriate in all of the circumstances which then exist.

12. [45]

    Accordingly, I make the following orders:

    1. (1)

       Grant leave to the plaintiff to file and serve a Further Amended Statement of Claim, providing that such pleading is filed and served on or before 19 December 2025.

    2. (2)

       Order the plaintiff to pay the costs of and occasioned by the filing and service of the Further Amended Statement of Claim, which costs are to include all reserved costs, the costs of the first, second and third judicial case management hearings, and the costs of the hearing of the Notice of Motion filed 19 March 2025.

    3. (3)

       Order that the third defendant, Mr Gooding, is to be entitled to the payment of his costs forthwith, once agreed or assessed.

    4. (4)

       Reserve to Mr Gooding the right to make application to the Court for an order that the costs be assessed in a gross sum.

    5. (5)

       Otherwise dismiss the Notice of Motion filed 19 March 2025.

    6. (6)

       Stand the matter over before the Common Law Registrar on 2 February 2026.