Agius v State of New South Wales [2001] NSWCA 371

New South Wales Court of Appeal

CITATION : Agius v State of New South Wales [2001] NSWCA 371 FILE NUMBER(S) : CA 40730/99 HEARING DATE(S) : 22 November 2000, 20 July 2001 JUDGMENT DATE : 23 October 2001

Sharon Agius - Claimant PARTIES : State of New South Wales - First Opponent Terry Kesby-Smith - Second Opponent Michael Pearce - Third Opponent JUDGMENT OF : Priestley JA at 1; Powell JA at 2; Giles JA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT DC 920/98 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER :

B J Gross QC & T Boyd - Claimaint COUNSEL : T H Barrett - First Opponent S Smith - Second Opponent R N Winfield - Third Opponent Cameron Gillingham Boyd - Claimant SOLICITORS : I V Knight - First Opponent Beverley Forster & Associates, Narellan - Second Opponent Katie Smith, Woy Woy - Third Opponent CATCHWORDS : NEGLIGENCE - injury at premises of a voluntary organisation providing services to the handicapped - State provided funds for the organisation's programme - claims against State, President of organisation and manager of organisation - whether to be struck out on pleading grounds - whether maintainable causes of action on facts - discussion of different bases for summary disposal - of unsatisfactory cause taken when applications for summary disposal heard - and of duties of care arguably owed by State, President and manager. D Agar v Hyde (2000) 201 CLR 552; Brewer Brothers v Canada (1991) 8 CCLT (2d) 45; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Curran v Northern Ireland Co-operative Housing Association Ltd (1987) 1 AC 718; Day v William Hill (Park Lane) Ltd (1949) 1 KB 632; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; Dougherty v Nationwide News Pty Ltd (1968) 88 WN (Pt 1) 146; CASES CITED: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Laurance v Norreys (1890) LR 15 App Cas 210; Penthouse Publications Ltd v McWilliam (CA, 14 March 1991, unreported); Perre v Apand Pty Ltd (1999) 198 CLR 180; Peter Kent Developments Pty Ltd v Australia and New Zealand Banking Group Ltd (Hunt J, 6 May 1980, unreported); Reid v Rusk-Tompkins Group Pty Ltd (1990) 1 WLR 212; Tampion v Anderson (1973) VR 321; Van Oppen v Clerk to the Bedford Charity Trustees (1990) 1 WLR 235; Webster v Lampard (1993) 177 CLR 598. DECISION : (1) Extend time within which the claimant may apply for leave to appeal and grant leave to appeal; (2) Dismiss the appeal with costs as between the claimant and the first and second opponents and refuse leave to file an amended statement of claim between those parties; (3) Dismiss the appeal as between the claimant and the third opponent without any order as to costs and grant leave to file an amended statement of claim as between those parties, the amended statement of claim to be filed and served within 21 days from today's date.