GILMOUR -v- THE STATE OF NEW SOUTH WALES [2026] WADC 71

[2026] WADC 71 [2026] WADC 71 [PB] Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CHAMBERS LOCATION : PERTH CITATION : GILMOUR -v- THE STATE OF NEW SOUTH WALES [2026] WADC 71 CORAM : REGISTRAR KUBACZ HEARD : ON THE PAPERS DELIVERED : 13 AUGUST 2026 FILE NO/S : CIV 2015 of 2025 BETWEEN : GREGORY JAMES GILMOUR Plaintiff AND THE STATE OF NEW SOUTH WALES First Defendant TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE DIOCESE OF PARRAMATTA Second Defendant WANSLEA LIMITED Third Defendant THE STATE OF WESTERN AUSTRALIA Fourth Defendant THE SALVATION ARMY (WESTERN AUSTRALIA) PROPERTY TRUST Fifth Defendant -- 1 of 13 -- [2026] WADC 71 [2026] WADC 71 [PB] Page 2 Catchwords: Costs following dismissal of proceedings against second defendant - Turns on its own facts Legislation: Nil Result: Plaintiff to pay the second defendant's costs of the discontinuance Representation: Counsel: Plaintiff : No appearance First Defendant : No appearance Second Defendant : No appearance Third Defendant : No appearance Fourth Defendant : No appearance Fifth Defendant : No appearance Solicitors: Plaintiff : Slater & Gordon - Perth First Defendant : Sparke Helmore Lawyers Second Defendant : McInnes Wilson Lawyers Third Defendant : Irdi Legal Fourth Defendant : Gilchrist Connell Fifth Defendant : Nevett Ford Case(s) referred to in decision(s): Clark v Richards [2003] WASC 5 Grove v Grove [2022] WASCA 86 Kevin Ernest Judge as Liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [2011] WASC 122 -- 2 of 13 -- [2026] WADC 71 [2026] WADC 71 [PB] Page 3 McClure v The Mayor and Councillors of the City of Stirling [No 3] [2009] WASC 247 National Australia Bank Ltd v Joyce [No 2] [2013] WASC 274 O'Neill v Mann [2000] FCA 1680 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 Robert Michael Kirman and Robert Conry Brauer as joint and several administrators of Tiger Resources Ltd (subject to Deed of Company Arrangement) v Yingkou Yangzhou Trade Co Ltd [2021] WASC 273 -- 3 of 13 -- [2026] WADC 71 REGISTRAR KUBACZ [2026] WADC 71 [PB] Page 4 REGISTRAR KUBACZ: 1 The plaintiff commenced his action for historical child sex abuse against multiple parties on 29 August 2025 by writ of summons endorsed with a statement of claim. The Trustees of the Roman Catholic Church for the Diocese of Parramatta was named as the second defendant to those proceedings (Second Defendant). The claim against the Second Defendant is in relation to incidents which occurred at St Patrick's Primary School, Guilford, New South Wales (the School) by an unnamed priest in 1976. 2 On 19 March 2026, the plaintiff filed a chamber summons to 'add and remove' defendants. The application sought to join a new second, sixth and seventh defendant. The application did not seek leave to discontinue the proceedings as against the Second Defendant and therefore was misconceived in its nature. 3 The chamber summons was supported by an affidavit of Abigail Davies filed 19 March 2026 (Davies Affidavit). 4 The chamber summons was listed for hearing, and after several adjournments was finally heard on 16 June 2026. After hearing oral argument, it was clear that the plaintiff was in fact seeking to discontinue the proceedings against the Second Defendant and then to join several new defendants. 5 On the basis that the chamber summons was misconceived and by consent of the parties, orders were made to dismiss the chamber summons and in its place grant leave for the plaintiff to discontinue the proceedings against the Second Defendant and for the proceedings to be thereby discontinued. 6 The Second Defendant sought its costs in relation to the discontinuance. This was supported by an affidavit of Bianca Wallace filed 16 June 2026 (Wallace Affidavit). 7 The application was opposed by the plaintiff and the parties asked that the matter of costs be determined on the papers. 8 Parties were given the opportunity to file submissions and in addition to the submissions, the Second Defendant relies on the Wallace Affidavit, the plaintiff on the Davies Affidavit. -- 4 of 13 -- [2026] WADC 71 REGISTRAR KUBACZ [2026] WADC 71 [PB] Page 5 History of the proceedings 9 It is necessary to outline history of the proceedings before determining the costs application. 10 From the Wallace affidavit at par 9, it appears that the first time the Second Defendant was aware of these proceedings was on 29 August 2025 on the day the writ was filed. 11 On 2 September 2025 the Second Defendant's solicitors wrote to the plaintiff's solicitors advising that it was investigating the allegations against it and whether in fact it was the correct defendant to the proceedings (Wallace Affidavit par 12 and Davies Affidavit par 6) and on that basis they did not have instructions to enter an appearance and confirming whether the plaintiff agreed with that action. 12 On 3 September, the Second Defendant sent an informal request for further and better particulars of the claim to assist in determining whether it was the correct defendant, a copy of the letter is found at Annexure 'AD-2' of the Davies Affidavit and at Annexure 'B' of the Wallace Affidavit. 13 On 4 September 2025, the plaintiff's solicitor sent an email to the Second Defendant's solicitors (Annexure 'AD-3' Davies Affidavit) advising that 'a defendant was entitled to request further and better particulars once a memorandum of appearance has been filed' further asking the Second Defendant to 'urgently advise if [the second defendant] is not responsible for priests providing religious services to St Patrick's Primary School' and further 'the plaintiff reserved his right to a default judgment if no memorandum of appearance was filed in accordance with the District Court Rules'. 14 On 5 September 2025 numerous emails were sent between the plaintiff and Second Defendant's solicitors (Annexures 'D' to 'E' Wallace Affidavit) the content of which is summarised as follows: Second Defendant (a) Advised the plaintiff that the Second Defendant was not the only entity responsible for priests at the relevant time and the identity of the priest was critical in determining the proper defendant. -- 5 of 13 -- [2026] WADC 71 REGISTRAR KUBACZ [2026] WADC 71 [PB] Page 6 (b) If the plaintiff required an appearance to be entered and the Second Defendant incurred unnecessary costs in doing so and was found to be the incorrect defendant (especially since these issues were not canvasses prior to the issuing of the statement of claim), then it reserved its rights to seek costs against the plaintiff. (c) Asked again if particulars would be provided. (d) Asked for details of the priest so the issue could be resolved as soon as possible. Plaintiff (a) Insisted on an appearance being filed. (b) Requested information on all entitles responsible for providing priests to the School. 15 On 19 September 2025 the Second Defendant filed an appearance to protect its rights and then so as not to be in breach of the District Court Rules 2005 (WA) filed a defence on 10 October 2025 (pars 17 - 19 Wallace Affidavit). The defence denied that it was a proper defendant to the action. 16 On 21 October 2025 the plaintiff filed a request for further and better particulars of the Second Defendant's defence which was replied to on 13 November 2025. The particulars sought further clarification and information as to the denial by the defendant that it was not a proper defendant and therefore had no liability in the claim. 17 It is clear from the answers to the particulars that the Second Defendant was not in existence at the relevant time. 18 Subsequent to the defence and the answers to particulars, the Second Defendant provided documentary evidence to the plaintiff of this fact on 28 January 2026. 19 On 19 March 2026, the plaintiff filed a chamber summons to 'add and remove defendants' which sought to, in effect, join a new second, sixth and seventh defendant on 16 June 2026. It did not seek to discontinue the proceedings against the Second Defendant but merely to substitute the Second Defendant for an unrelated entity. The application was dismissed as it was the incorrect application to deal with the issues of the Second Defendant, which needed to be formally released from the proceedings. -- 6 of 13 -- [2026] WADC 71 REGISTRAR KUBACZ [2026] WADC 71 [PB] Page 7 20 Therefore, by oral application, and on the consent of both parties, orders were made giving the plaintiff leave to discontinue the proceedings against the Second Defendant and thereby discontinuing the proceedings. 21 The Second Defendant then sought its costs, which was opposed. Legal principles 22 Order 23 of the Rules of the Supreme Court 1971 (WA) (RSC) sets out the rule surrounding discontinuances. 23 Order 23 r 2(3) provides that, once a defence has been filed, the plaintiff may seek leave of the court to discontinue the proceedings against a defendant and 'upon such terms as to costs … as may be just … [the court can] order the action to be discontinued'. 24 The terms of O 23 r 2(3) RSC 'are wide enough to empower the court to make any costs orders which is required by the justice of the case. The conduct of the parties, and the reason for the wish to discontinue, will bear heavily on the exercise of the discretion': Grove v Grove [2022] WASCA 86 [40]; McClure v The Mayor and Councillors of the City of Stirling [No 3] [2009] WASC 247 [4]. 25 The court's discretion as to costs is very wide: McClure v The Mayor and Councillors of the City of Stirling [No 3] [4]. 26 Justice Hill in Robert Michael Kirman and Robert Conry Brauer as joint and several administrators of Tiger Resources Ltd (subject to Deed of Company Arrangement) v Yingkou Yangzhou Trade Co Ltd [2021] WASC 273 [30] summarised the principles governing the exercise of the discretion as to costs orders as follows: (a) The underlying policy in the RSC in relation to a discontinuance is that the discontinuing party should be liable for the other party's costs unless the court orders otherwise: Kevin Ernest Judge as Liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [2011] WASC 122 [22]. (b) The conduct of the parties and the reasons for discontinuing the case can bear heavily on exercise of the discretion: Clark v Richards [2003] WASC 5 [27], [78]; -- 7 of 13 -- [2026] WADC 71 REGISTRAR KUBACZ [2026] WADC 71 [PB] Page 8 (c) In determining whether the costs should be borne by the discontinuing party, the court is not to try a hypothetical action between the parties: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622, 624; (d) If it appears that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the costs discretion will usually mean that the court will make no orders as to costs of the proceedings: Ex parte Lai Qin (625); National Australia Bank Ltd v Joyce [No 2] [2013] WASC 274 [5]; (e) However, where the discontinuance 'can be said to be an acknowledgement by an applicant of likely defeat or where no objective circumstance provides reason for the discontinuance, a costs order in favour of the other party will ordinarily be made': O'Neill v Mann [2000] FCA 1680 [13]; (f) In some cases the court may be able to form the view, with confidence, that although both parties had acted reasonably, one party was almost certain to have succeeded if the matter had been heard: Ex parte Lai Qin (625); (g) The reasonableness of the plaintiff's conduct in commencing and discontinuing the proceedings is relevant and must be considered in the context of the policy in (a): Ex parte Lai Qin (625); and (h) It is relevant to consider whether there has been a supervening act which has rendered the application futile: Kevin Ernest Judge as Liquidator of Citystyle Enterprises Pty Ltd v Trifield Corporation Pty Ltd [39]. Parties' submissions 27 The Second Defendant argues that it is entitled to costs on two grounds. 28 First, that the case against it was doomed to fail on the basis that it was only after issuing the writ did the plaintiff make enquiries to identify the correct entity liable for the operation of the School. Since that time, the plaintiff now accepts that the Second Defendant is -- 8 of 13 -- [2026] WADC 71 REGISTRAR KUBACZ [2026] WADC 71 [PB] Page 9 not liable for either the operation of the School or the conduct of the unnamed priest and proposes to join three other entities who have confirmed that they are the correct named entities responsible for the School. 29 Second, that the plaintiff's conduct in the proceedings was unreasonable. It is submitted that the plaintiff has not advised what enquiries were made prior to commencing proceedings as to the correct entity to sue regarding the School, including no pre-action discovery, that plaintiff refused to engage with the Second Defendant regarding these issues when the writ was issued and it was notified of the claim and forcing the Second Defendant to file an appearance and proceed to defend the action irrespective of the issues with the Second Defendant potentially being the incorrect entity. 30 The plaintiff contends that he acted reasonably at every stage of the proceedings including commencing proceedings on the information he had available at the time, that when he was informed of the issues it attempted to seek clarification, he then undertook to make his own enquiries with other entities and once it was determined that the Second Defendant was not the appropriate entity, took steps to discontinue the proceedings against it. 31 The plaintiff further contends that the Second Defendant elected to enter an appearance and defend the claim whilst its investigations were ongoing. Disposition 32 As outlined above, the starting position is that the discontinuing party should be liable for the other party's costs. Consideration to order otherwise then turns to the reasons for the discontinuance and the conduct of the parties leading to the discontinuance. 33 It is clear from the evidence before me that the reason for the discontinuance is that the plaintiff named the incorrect party as the Second Defendant. There was no prospect of success against the Second Defendant. In line with the authorities, the discontinuance is in effect an acknowledgement of likely defeat and in these circumstances costs order in favour of the other party is ordinarily made. 34 I then turn to the conduct of the parties. -- 9 of 13 -- [2026] WADC 71 REGISTRAR KUBACZ [2026] WADC 71 [PB] Page 10 35 I have not been provided with any evidence of what investigations the plaintiff undertook to determine the correct entity to sue in relation to the School. I am therefore unable to determine whether the plaintiff undertook sufficient investigations prior to issuing the writ and I make no findings in that regard. 36 Whilst I agree with the Second Defendant that it was open to the plaintiff to undertake pre-action discovery, this is not a necessary step in determining whether a party has taken all reasonable steps to determine the correct party to sue. It is certainly an option but there are other ways this information can be sought. In the absence of any evidence either way, I cannot make the finding that the failure of the plaintiff to undertake pre-action discovery was unreasonable. 37 It is however, incumbent on the plaintiff to make reasonable enquiries to ensure that the correct parties are named to an action. This is not a claim where the plaintiff was under any time pressure to commence his action given the amendments to the Limitations Act 2005 (WA) and therefore it would be expected that all reasonable enquiries should have been undertaken to determine the correct entity before issuing a writ. 38 From the evidence before me, it is clear that the Second Defendant was first aware of the claim against it upon being served with the writ and statement of claim on 29 August 2025. 39 Within two business days, 2 September 2025, the Second Defendant had instructed solicitors, and its solicitors immediately wrote to the plaintiff's solicitors to advise that there were issues as to whether it was the correct defendant responsible for the School and seeking agreement from the plaintiff to not file an appearance until its investigations were complete in this regard (Annexure 'A' Wallace Affidavit). 40 The following day, 3 September 2025, the Second Defendant sought clarification of the plaintiff's claim against it in order to assist with its investigations. This was done by an informal request for further and better particulars of the statement of claim (Annexure 'B' Wallace Affidavit). 41 Instead of providing assistance in this regard, and after having been put on notice of the issues, the plaintiff's solicitors advised the Second Defendant that a defendant is only entitled to request further and better particulars once a memorandum of appearance was filed and -- 10 of 13 -- [2026] WADC 71 REGISTRAR KUBACZ [2026] WADC 71 [PB] Page 11 reserved the plaintiff's right to enter default judgment should a memorandum of appearance not be filed in accordance with the District Court Rules (Annexure 'C' Wallace Affidavit). 42 I am of the opinion that the response from the plaintiff was entirely unreasonable in circumstances when the Second Defendant had put the plaintiff on notice that it was potentially not the correct defendant and that investigations were underway to determine this as a matter of priority. 43 Further, on 5 September 2025, the Second Defendant provided further detailed information to the plaintiff confirming that the Second Defendant was not the only entity responsible for the School and for the provision of priests to the School and it had to determine which entity was responsible for the relevant time of the plaintiff's claim. 44 It also advised the plaintiff, quite reasonably, that in the circumstances if it was forced to file an appearance, then it reserved its rights to as to the costs associated with the defence of the action (Annexure 'D' Wallace Affidavit). 45 In response, the plaintiff's solicitors simply replied that it looked forward to receiving the appearance and then sought information as to names of all other entities responsible for the School (Annexure 'E' Wallace Affidavit). 46 From this correspondence it appears to me that the plaintiff would not engage with the Second Defendant in relation to these issues and he had not fully undertaken his own investigations as to the relevant entities that were responsible for the School prior to issuing the writ. 47 It was then, in my opinion, unreasonable for the plaintiff to then be requiring the Second Defendant to provide this information, without affording the Second Defendant some leeway in filing an appearance in circumstances where active investigations were being made to determine the correct entity and in order to minimise costs to the parties. 48 I accept that given the nature of the correspondence between the parties that the Second Defendant felt it had no choice but to file an appearance or run the risk of having a default judgment entered against it as contemplated by the plaintiff's solicitors. -- 11 of 13 -- [2026] WADC 71 REGISTRAR KUBACZ [2026] WADC 71 [PB] Page 12 49 I also accept that given the tenor of the plaintiff's correspondence, that the Second Defendant felt compelled to file a defence given the writ was endorsed by a statement of claim and its concern that the plaintiff would take steps to seek judgment should a defence not be filed within the time required by the District Court Rules. 50 I do accept the plaintiff's submission that this course of action by the Second Defendant may have arisen by it not appreciating the mechanics of the operation of the District Court Rules and the fact it was open to them to seek directions of the court extending the times for the provision of the defence, which they did not do. However, by the time of the first directions hearing, the defence had already been filed and this then becomes a moot point. 51 On 13 November 2025, the plaintiff was informed by the answers to further and better particulars that the Second Defendant was not in existence at the time of the alleged offending or at any relevant time of the plaintiff's claim. This was further evidenced with documentary evidence provided to the plaintiff on 28 January 2026. 52 It was not until 19 March 2026, some seven weeks after receiving the confirming document, that the plaintiff filed a chamber summons seeking to 'add and remove defendants'. This was not an application seeking leave to discontinue the proceedings against the Second Defendant. 53 It was not until the matter came before the court for hearing on 16 June 2026, that the plaintiff conceded that the correct application should have been to seek leave to discontinue the proceedings against the Second Defendant and therefore an oral application to this effect was made. Therefore, by consent of the Second Defendant at that hearing, leave was granted and the proceeding against the Second Defendant was discontinued. 54 In my opinion, the plaintiff's actions in his dealings with the Second Defendant were unreasonable at every instance. It appears that his investigations into the correct entity were deficient prior to issuing the writ, and then when he was alerted to the issue immediately after the writ was served, afforded no opportunity or assistance to the Second Defendant to undertake its investigations without the threat of adverse action by it. They were oppositional towards the Second Defendant's reasonable requests in the circumstances. -- 12 of 13 -- [2026] WADC 71 REGISTRAR KUBACZ [2026] WADC 71 [PB] Page 13 55 Whilst, I accept that the plaintiff wanted to pursue his claim in a timely manner, once he was alerted to the fact that the Second Defendant may not have been the correct entity, he could have, and in my opinion should have, allowed some leniency with court timetabling toward the Second Defendant whilst it was investigating the matter, and in assisting the Second Defendant by providing the salient information that it required to do this in a timely way. 56 There is therefore nothing on the evidence that persuades me that the usual costs orders should not be made in these circumstances. Order 57 For the reasons I have given I make an order that the plaintiff pay the Second Defendant's costs of the proceeding, such costs to be taxed if not agreed. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. ID Court Officer 13 AUGUST 2026 -- 13 of 13 --