NSW Caselaw
Reported Decision : 6 DCLR (NSW) 317
New South Wales District Court
CITATION: Y v State of NSW [2008] NSWDC 17
HEARING DATE(S): 25 January 2008
JUDGMENT DATE: 25 January 2008
EX TEMPORE JUDGMENT DATE : 25 January 2008
JURISDICTION: Civil Jurisdiction
JUDGMENT OF: Johnstone DCJ at 1
DECISION: 1. Proceedings dismissed 2. Mr Y to pay the costs of the defendant of the motion and of the proceedings generally, on the ordinary basis
CATCHWORDS: NEGLIGENCE - allegations of failure by statutory authority (DOCS) to protect children from harm while in the care of mother, including a failure to place them in the father's care - whether statutory authority owed a duty of care to the children giving rise to a private right of action - a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency, to discourage the due performance by the authority of its statutory duties - no duty on DOCS such that gave rise to a private right of action on the part of the children - PROCEDURE - leave for next friend to carry on the proceedings without a solicitor refused under r 7.14(2) - pleading embarrassing and liable to be struck out under r 14.2(8)(vi) - proceedings dismissed generally under r 13.4 as no reasonable cause of action disclosed in the pleading
Children and Young Persons (Care and Protection) Act 1998 LEGISLATION CITED: Civil Procedure Act 2005: ss 56 - 58 UCPR: r 7.14(2), r 14.2(8)(vi) Legal Profession Act 2004: s 347
Graham Barclay Oysters Pty Ltd v Ryan [2002] CLR 540 Hill v Chief Constable of West Yorkshire (1989) AC 53 McDonald v Australian Securities and Investment Commission (2007) NSWCA 304 Quintano v State of New South Wales [2002] NSWSC 766 at [26] CASES CITED: SB v New South Wales [2004] VSC 514 at [164] Simms v Wran (1984) 1 NSWLR 317 at 321-2 Sullivan v Moody [2001] HCA 59 at [42] Walsh v Prest [2004] NSWCA 94 at [4] X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739
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