High Court Decision on Vicarious Liability Delays Execution of Orders

In a sexual abuse case, the NSW Supreme Court granted a stay of proceedings pending the High Court's decision on vicarious liability. The court considered the strength of the appeal and the interests of the parties involved.

Supreme Court New South Wales

Medium Neutral Citation: [NAME] v [NAME] & [NAME] (No 4) [2024] NSWSC 1102 Hearing dates: 28 August 2024 Date of orders: 28 August 2024 Decision date: 28 August 2024 Jurisdiction: Common Law Before: [NAME] Decision:

1. Pursuant to [NAME] 67 or 135 of the Civil Procedure Act 2005 (NSW) and/or r 36.11 and 36.16 of the Uniform Civil Procedure Rules 2005 (NSW), execution of the orders made by the Court on 1 August 2024 are stayed until 1 November 2024 or until further order of the Court made prior to 1 November 2024.

2. The first defendant is to pay the sum of $38,301.51, being 3 months' post-judgment interest on the judgment sum to the [NAME] within twenty-one days to be placed immediately into the solicitor's Trust Account and to be used only to meet costs incurred on behalf of the plaintiff.

3. The parties have liberty to relist the matter on 3 days' notice in respect of any extension of a stay or in respect of the actions to be taken arising from para 301 of my principal judgment. Catchwords: CIVIL PROCEDURE – stay of proceedings – pending High Court decision in a different case – stay granted Legislation Cited: Civil Procedure Act 2005 (NSW), [NAME] 67, 135 Uniform Civil Procedure Rules 2005 (NSW), rr 36.11, 36.16 Cases Cited: Alexander v Cambridge Credits Corporation Limited (1985) 2 NSWLR 685 Bird v DP (2023) 69 VR 408; [2023] VSCA 66 [NAME] v [NAME] & [NAME] (No 3) [2024] NSWSC 943 Category: Procedural rulings Parties: [NAME] (Plaintiff) [NAME] (First Defendant) [NAME] (Second Defendant) Representation: Counsel: [redacted] [NAME] (First Defendant) [NAME] (Plaintiff)

Solicitors: [redacted] [NAME] (First Defendant) [NAME] (Second Defendant) File Number(s): 2018/347128

Ex Tempore

JUDGMENT 1. I gave the principal judgment in this matter on 1 August 2024 ([NAME] v [NAME] & [NAME] (No 3) [2024] NSWSC 943). I found in favour of the plaintiff against both defendants.

2. The allegation that had been made by the plaintiff was that he had been sexually abused as a child by the second defendant who was a [NAME] at the church where the plaintiff and his family regularly attended. The action had two parts to it. Firstly, it was alleged that the plaintiff had been groomed by the second defendant over a period of time and secondly, that there was a specific incident in October 2005 when the second defendant abused the plaintiff in a motor vehicle.

3. The allegation against the second defendant was straightforward in that it alleged that he carried out the grooming and the specific assault. The first defendant was said to be liable in negligence, effectively for allowing the grooming to occur, and vicariously in respect of the specific assault.

4. I was not satisfied that the grooming occurred but was satisfied that the specific assault had taken place. Consequently, I did not find negligence on the part of the first defendant but did find that the first defendant was vicariously liable for the actions of the second defendant for the assault in the motor vehicle.

5. In finding the vicarious liability of the first defendant I relied, and in fact was bound by, the decision of the Court of Appeal in Victoria in Bird v DP (2023) 69 VR 408; [2023] VSCA 66. The first defendant's case was that this decision was "plainly wrong" and that I should not follow it. I did not adhere to the first defendant's request because I was not satisfied that Bird was plainly wrong and, more importantly, because Bird is the subject of an appeal to the High Court which has been heard but not yet decided.

6. The first defendant filed a notice of motion on 15 August 2024 in which it has requested that my orders be stayed pending the decision of the High Court. The second defendant joins in that application. I recognised in my decision, at [263], that if the High Court restricted vicarious liability to circumstances of employment only, then my decision would be inconsistent with that result.

7. The principles relating to the granting of the stay were set out in Alexander v Cambridge Credits Corporation Limited (1985) 2 NSWLR 685. The principles include, amongst others, that a judgment creditor is entitled to "the fruits of his victory" and that, on the other hand, the strength of an appeal is a relevant consideration.

8. As I have said, there will be considerable strength in an appeal if the High Court restricts vicarious liability to only circumstances in which there is an employment connection between the defendants. I cannot predict the result of the High Court appeal nor when the decision will be handed down. Nevertheless, I think the possibility of a successful appeal in the High Court is sufficient in this matter to generate the granting of a stay.

9. The parties have reached a substantial agreement on the orders I should make. The only matter of dispute is what should happen to an amount of about $38,000 in post-judgment interest, in particular whether it should be paid into court or go to the [NAME]' solicitors in respect of meeting their costs. I'm particularly concerned that the moneys should not go directly to the plaintiff because of the various addictions from which he suffers.

Orders 1. I make the following orders:

3. The parties have liberty to relist the matter on 3 days' notice in respect of any extension of a stay or in respect of the actions to be taken arising from para 301 of my principal judgment.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2024