Hartnett v State of New South Wales [1999] NSWSC 265

New South Wales Supreme Court CITATION : Hartnett v State of New South Wales [1999] NSWSC 265 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 19380/93; 19373/93; 19402/93 HEARING DATE(S) : 1-3 February 1999 JUDGMENT DATE : 31 March 1999

Rachel Priness Hartnett (Plaintiff) PARTIES : Faith Helleyer (Plaintiff) Elizabeth Rogers (Plaintiff) State of New South Wales (Defendant) JUDGMENT OF : Dunford J

COUNSEL : Mr M Finnane QC (Plaintiffs) Mr B Donovan QC (Defendant) SOLICITORS : Greg Walsh & Co, Solicitors (Plaintiffs) IV Knight, Crown Solicitor (Defendant) CATCHWORDS : CHILDREN - in need of care; warrant to search for and remove children; only one person named to execute warrant; purported execution by other persons; validity; CHILDREN - in need of care; search warrants obtained; whether removal of children can subsequently be justified by reference to other statutory powers; SEARCH WARRANTS - one person named in warrants; warrants executed by other persons; person named co-ordinating purported exeuction by others; use of assistants to execute warrant; TRESPASS - entry to premises and removal of children; execution of valid warrant authorising entry and removal; purported execution of warrant by persons named therein; WORDS & PHRASES - "assistants" Children (Care and Protection) Act 1987, ss 3, 60, 61. ACTS CITED : Search Warrants Act 1985, ss 3, 14, 18, 21 Search Warrants Regulation 1994, Forms 3, 4. King v The Queen [1969] 1 AC 304 Entick v Carrington (1765) 2 WilsKB 275, 95 ER 807 George v Rockett (1990) 170 CLR 104 R v Applebee (1995) 79 A Crim R 554 Dunesky v Commonwealth of Australia (1996) 89 A Crim R 372 R v Vickery [1996] 1 QdR 334 CASES CITED : Crowley v Murphy (1981) 52 FLR 123 Australian Broadcasting Tribunal v Saatchi and Sastchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 LS v Director-General of FACS (1989) 18 NSWLR 481 Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 Anderson v Sullivan (1997) 78 FCR 380 Lockwood v The Commonwealth (1954) 90 CLR 177 Warke v Daire (1983) 32 SASR 321 DECISION : Plaintiffs entitled to declarations to the effect that the defendant's servants and agents were acting outside the authority conferred by the warrants and wrongfully and contrary to law; Matter pleaded in the alternative in paragraph 7(B) of the Further Amended Defence struck out.