Doueihi v State of New South Wales [2020] NSWSC 1065

Supreme Court New South Wales

Medium Neutral Citation: Doueihi v State of New South Wales [2020] NSWSC 1065 Hearing dates: 11 August 2020 Date of orders: 18 August 2020 Decision date: 18 August 2020 Jurisdiction: Common Law Before: Davies J Decision: 1. Paragraphs 35-40 of the further amended statement of claim filed 25 February 2020 are struck out pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW). 2. Leave is given to the plaintiff to re-plead the claim for misfeasance in public office. Any such further pleading is to be filed and served by 15 September 2020. 3. The plaintiff is to pay the defendant's costs of the notice of motion. Catchwords: CIVIL PROCEDURE - pleadings – claim for tort of misfeasance in public office – claim in respect of actions of police officers – claim against State of New South Wales on the basis of vicarious liability - whether the further amended statement of claim adequately pleads the cause of action - where plaintiff fails to identify the officers involved, invalid acts they committed or damage suffered – whether the defendant is vicariously liable - Law Reform (Vicarious Liability) Act 1983 (NSW) – pleading struck out – whether plaintiff should be permitted to re-plead – third iteration of the statement of claim but first one where plaintiff legally represented - where associated claim in trespass is unchallenged - leave given to the plaintiff to re-plead Legislation Cited: Crimes Act 1900 (NSW) s 545D Crimes (Domestic and Personal Violence) Act 2007 (NSW) Law Reform (Vicarious Liability) Act 1983 (NSW) ss 9B, 9C, 9D, 9E Uniform Civil Procedure Rules 2005 (NSW) rr 5.2, 5.3, 14.28 Cases Cited: Danthanarayana v Commonwealth of Australia [2014] FCA 552 Deemah Marble & Granite Pty Ltd v Sutherland [2001] NSWSC 829 Duke v State of New South Wales [2005] NSWSC 632 Golden v Littleproud [2019] NSWSC 120 Moder v Commonwealth of Australia; Sochorova v Commonwealth of Australia [2012] QCA 92; (2012) 261 FLR 396 Northern Territory of Australia v Mengel (1996) 185 CLR 307 Obeid v Lockley [2018] NSWCA 71 Rajski v Bainton (1990) 22 NSWLR 125 Sanders v Snell (1999) 196 CLR 329; [1998] HCA 64 Street v Luna Park Sydney Pty Ltd [2006] NSWSC 533 Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 Texts Cited: Nil Category: Procedural and other rulings Parties: Peter Doueihi (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: P Reynolds (Plaintiff) G Mahony (Defendant)