Venables v Roman Catholic Trust Corporation for the Diocese of Cairns

In these proceedings the plaintiff seeks damages for alleged historical abuse while he was at a boarding school in Cairns.

Both defendants rely on the plaintiff having previously brought proceedings against them, said to be in relation to the same abuse, in the ACT Supreme Court in 2010. Those proceedings were settled by a Deed of Release (the Deed) following which consent judgment was entered (the Consent Judgment).

I have before me two notices of motion:

All three parties agree that I should grant the transfer application. In respect of the first defendant’s motion, the only prayer that is pressed is the prayer for costs. I am satisfied that it is in the interest of justice to transfer the proceedings to the ACT Supreme Court having regard to the issues of ACT law which will arise, and having regard to the agreement of the parties that the ACT is the more appropriate forum in which this litigation should be conducted.

As to the first defendant’s motion, the first defendant seeks an order that the plaintiff pay the costs of that motion. That is resisted by the plaintiff.

The plaintiff’s statement of claim in this court, filed on 10 July 2025, does not include any pleadings as to the Deed, the Consent Judgment or relief that might be available in relation to them. The plaintiff contends before me that the effect of s 114K(2) of the Civil Law (Wrongs) Act 2002 (ACT) (the ACT Act) is that the plaintiff is not required to plead any such application. It is not necessary for me to rule on the operation of s 114K in order to deal with the outstanding costs dispute. I do not propose to do so.

The fact is that as at 10 July 2025, when the plaintiff commenced these proceedings by statement of claim, neither in the statement of claim nor elsewhere had the plaintiff articulated its answer to the first defendant’s reliance on the Deed and the Consent Judgment.

This was despite the first defendant having made it clear by correspondence on 4 March 2024, and again about a year later on 3 March 2025 that it would rely on the Deed and Consent Judgment in proceedings of the kind which have been commenced, should they be commenced.

I note that both of those letters, that is the letter of March 2024 and the letter of March 2025, responded to foreshadowed claims that that plaintiff had indicated would be brought in the ACT Supreme Court. As I have said, on 10 July 2025, the plaintiff filed the statement of claim in this Court.

The first defendant in correspondence dated 29 July 2025 again made it clear that the first defendant relied on the Deed and Consent Judgment as a complete answer to the plaintiff’s claim, and stated, among other things, that in the absence of an application to set aside the Deed or the Consent Judgment, the plaintiff’s claim is an abuse of process. The first defendant sought confirmation by no later than 4pm on 5 August 2025 that the claim would be discontinued, or the first defendant would bring a motion for summary dismissal or strike-out of the pleadings.

The plaintiff did not respond to the first defendant’s correspondence, either to seek more time or to explain the plaintiff’s answer to the matters raised by the first defendant. The first defendant filed its notice of motion on 7 August 2025.

On 27 August 2025, this matter came before a Registrar of this Court. At that time the plaintiff’s solicitor informed the Court that the plaintiff was in the process of preparing a summons in the ACT, according to the transcript, to set aside “the decision”. I assume that either what the solicitor said or what the solicitor meant was to set aside the Deed, or the Deed and the Consent Judgment.

The plaintiff’s solicitor also informed the Court that they had turned their mind to having the deed set aside but there was a question about whether the plaintiff pressed for the defendant to put on a motion, or whether the plaintiff put on a motion himself. The plaintiff’s solicitor in that context drew attention to the decision of the Court of Appeal in the State of NSW v LSR3 [2025] NSWCA 151.

I note that in that case, as is clear from paragraphs 6 and 8 of the Court of Appeal’s decision, the pleadings clearly included a prayer for relief seeking that a settlement agreement be set aside with particulars articulating why that was the case. Mr Campbell points out that that litigation was under New South Wales legislation, not ACT legislation, and was not subject to his arguments about s 114K of the ACT Act. I take that on board. Nevertheless, the fact remains that neither in the pleading nor elsewhere had the plaintiff, prior to 27 August 2025, stated an intention to seek to have the Deed set aside. The indication of the plaintiff’s solicitor that they were in the process of preparing a summons for the ACT Supreme Court to have the decision set aside, and the apparent recognition that this was a necessary step, might have served the plaintiff better if that had been said prior to the motion being filed or if the plaintiff had subsequently, and without unnecessary delay, communicated with the parties about its answer to the Deed and Consent Judgment, and its intention to have it set aside. The plaintiff did not do so, and despite having indicated to the Registrar that this would form part of the plaintiff’s evidence in response to the first defendant’s notice of motion, the plaintiff did not put on any evidence in response to the first defendant’s notice of motion.

As I have indicated, it can have come as no surprise to the plaintiff that the first defendant relied on the Deed and the Consent Judgment. So much was clear from the correspondence in March 2024 and in March 2025. The same firm was acting for the plaintiff at those times; indeed, it was the same firm who had acted for the plaintiff in the 2010 proceedings in the ACT.

Despite extensions of time and correspondence from the first defendant pressing the plaintiff for any evidence on which he would rely in relation to the first defendant’s notice of motion, the plaintiff did not confirm his position until, on 16 December 2025, his solicitor first proposed a transfer to the ACT Supreme Court. The plaintiff did not at that time articulate the reasons for the proposed transfer to the ACT Supreme Court, although I am prepared to assume it was reasonably clear to the parties that the reason was an intention to apply to that Court for the Deed and Consent Judgment to be set aside. On the evidence before me, the first time the plaintiff actually agreed that he would bring an application to set aside the Deed and Consent Judgment in the ACT Supreme Court was 5 February 2026.

In the circumstances, I am satisfied that the plaintiff’s response to the first defendant’s notice of motion was not consistent with the guiding principles in Part 6 of the Civil Procedure Act 2005 (NSW), and that the plaintiff’s response both before and after the notice of motion were filed were what put the defendant to the costs associated with its notice of motion.

I accept the first defendant’s submissions that the costs of the motion could have been wholly or substantially avoided – it would appear to me, wholly avoided – if the plaintiff had responded promptly to the correspondence from the first defendant or indeed the bringing of the motion.

The explanation offered by the plaintiff for the delay to respond substantively to the first defendant’s notice of motion earlier than mid-December 2025 is that I should infer it followed taking advice and deciding to change course. I am not persuaded that that is an adequate reason. Given the plaintiff being on clear notice of the first defendant’s position from March 2024 and March 2025, it is not clear to me why the plaintiff was not able to reach a clear position on the procedure the plaintiff considered appropriate much earlier than that.

I would add that the plaintiff has still not articulated the factual or legal basis on which he contends that the Deed and Consent Judgment should be set aside, but I accept that will be a matter for the ACT Supreme Court and I accept that Mr Campbell contends – and I am not ruling on this – that, as a matter of ACT law or procedure, he is not obliged to articulate that, at least at present. I make no comment on whether this is right or wrong.

I am satisfied that the plaintiff’s silence about this issue, not just in his statement of claim but in response to correspondence from the first defendant means that the first defendant’s notice of motion was appropriate. When I take this together with the plaintiff’s subsequent conduct in relation to that notice of motion, I am satisfied that there should be an order that the plaintiff pay the first defendant’s costs of the notice of motion dated 7 August 2025 on the ordinary basis.

The Court makes the following directions:

The Court makes the following notations: