New South Wales Supreme Court CITATION : "MA" & 2 Ors v Swanson & Anor [2000] NSWSC 1003 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20206/97 HEARING DATE(S) : 25 October 2000 JUDGMENT DATE : 31 October 2000 "MA" (First Plaintiff) "TA" (Second Plaintiff) PARTIES : "SA" (Third Plaintiff) Kim Marie Swanson (First Defendant) State of New South Wales (Second Defendant) JUDGMENT OF : Master Harrison Ms M Bateman (Plaintiffs) COUNSEL : Mr M W Anderson (Second Defendant) Harwood Andrews Lawyers Geelong. Victoria SOLICITORS : (Plaintiffs) Crown Solicitors (Second Defendant) CATCHWORDS : Summary judgment - dismissal for want of prosecution Supreme Court Rules - Part 33 r 6; Part 13 r 5 LEGISLATION CITED : Children (Care and Protection) Act 1987 Community Welfare Act 1972 (SA) Child Welfare Act Birkett v James [1977] 2 All ER 801; Ac 297 at 318 Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411 Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491 McKenna v McKenna [1984] VR 665 Stollznow v Calvert [1980] 2 NSWLR 749 Air Services Australia v Zarb (NSWSC unreported 26 August 1998) Dey v Victorian Railway Commissioners (1948-49( 78 CLR 62 CASES CITED : General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Webster & Anor v Lampard (1993) 177 CLR 598 Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373-374 Gibson v Parkes District Hospital (1991-92) 26 NSWLR 9 at 35 CLT v Connon [2000] SASC 223 TC v State of New South Wales [1999] NSWSC 31 X Minors v Bedfordshire County Council [1995] 2 AC 633 Hillman v Black (1996) SASR 490 Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 74 ALJR 1 DECISION : See para 34 17 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON TUESDAY, 31 OCTOBER 2000 20206/97 - "MA" & 2 ORS v KIM MARIE SWANSON & ANOR JUDGMENT (Summary judgment; dismissal for want of prosecution) 1 MASTER: By notice of motion filed 7 July 2000 the second defendant seeks that it be granted leave to dispense with service of this motion upon the first defendant, and that the proceedings be struck out or alternatively that the proceedings be permanently stayed or stayed pending compliance with the Supreme Court Rules (SCR). The first order sought was not pressed. The first plaintiff was a 7 year old boy at the time of these proceedings were commenced. As the plaintiff is a child I have referred to him by a pseudonym. I have also deleted any references which could identify the child. The second defendant is "TA" the first plaintiff's father. The third plaintiff is "SA" the first plaintiff's mother. The first defendant Kim Marie Swanson was employed by the Department of Community Services (DOCS) and gave evidence in the Children's court proceedings. The second defendant relied on the affidavit of Paul Rankin sworn 7 July 2000. The plaintiffs relied on the affidavit of Christopher Fotis sworn 23 February 2000. 2 The short undisputed facts are as follows. (1) On 4 December 1996 St Anthony's school sent notification to DOCS concerning the first defendant. DOCS commenced investigations in relation to the allegations of sexual abuse by the boy's father. (2) On 24 December 1996 the Children's court proceedings at Cobham were commenced by DOCS. (3) In April 1997 the parties agreed that the Supreme court proceedings were to be left in abeyance, awaiting the determination of the Children's court. (4) On 29 August 1997 the magistrate decided that DOCS had failed to prove its case in the Children's court proceedings. (5) In September 1997 the magistrate ordered that DOCS pay $34,000 approximately for the legal costs of "SA" and $27,000 approximately for the legal costs of "TA". Strike out for want of prosecution 3 I turn to consider whether the proceedings should be dismissed for want of prosecution. Part 33 r 6 of the SCR relevantly reads as follows: "(1) … (2) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may, on application by any party or of its own motion, stay or dismiss the proceedings. (3) The Court may not make an order under subrule (2) without giving the plaintiff a reasonable opportunity to be heard." 4 The power of the courts to dismiss an action for default or want of prosecution should be exercised only where the plaintiff's default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyer's part giving rise to a substantial risk that a fair trial would not be possible to serious prejudice to the defendants: Birkett v James [1977] 2 All ER 801; AC 297 at 318. In each case, a balance must be struck between the plaintiff and the defendant and the court must decide whether or not, in all the circumstances, justice requires that the proceedings should be dismissed: Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411; Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491; McKenna v McKenna [1984] VR 665 and Stollznow v Calvert [1980] 2 NSWLR 749. 5 The plaintiff has provided a lengthy explanation of the reasons for delay in prosecuting these proceedings. The plaintiff filed in court firstly, the documents to appoint a tutor; and secondly, their DCM documents. The plaintiffs provided a proper address for service. There is currently outstanding a motion seeking leave to amend the statement of claim. In these circumstances it cannot be said there has been a contumelious delay. It is my view that it is not appropriate to strike out these proceedings for want of prosecution. 6 I turn to consider whether the statement of claim should be dismissed. The law in relation to summary judgment 7 Part 13 r 5 says: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- (a) no reasonable cause of action is disclosed; (b the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings." 8 In the decision in Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1948-49)78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced the passages quoted in Zarb. 9 In General Steel Barwick CJ, who heard the application alone stated: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 10 Barwick CJ also said: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; be manifest that to allow them' (the pleadings) 'to stand would involve useless expense." 11 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous test stating at 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried"' 12 According to Rolfe AJA in Zarb: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241." 13 Master Allen (as he then was) in Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373-374 said: "…It is not by any means rare in the history of the development of the common law that a high appellate court, in enunciating a novel development in the law, albeit one avowedly based on a miscellany of old cases, has chosen to use general words of imprecise limits in meaning to facilitate the arrival, in later cases, of the final form of the development without the need to overrule what earlier had been stated. That being so I am of opinion that a court at first instance should be particularly astute not to risk stifling that development of the law by summarily throwing out of court actions in respect of which there is a reasonable possibility that it will be found, in the development of the law, still embryonic, that a cause of action does lie. The risk of injustice to the plaintiff, which summary termination of his claim would entail, is real. One cannot predict, with firm assurance, what the future holds as the final formulation of the new development." 14 This passage was quoted with approval by Badgery-Parker J in Gibson v Parkes District Hospital (1991-92) 26 NSWLR 9 at 35. 15 The statement of claim alleges that on 19 December 1996 DOCS removed the first plaintiff from parental care and placed him with his maternal aunt. According to the second and third plaintiffs, DOCS have continued to detain the first plaintiff from the second and third plaintiffs. 16 The statement of claim alleges that the second defendant owed the second and third plaintiffs a duty of care. The breaches of that duty of care have been particularised in paragraph 13(a) to (w) as: "(a) Failing to investigate matters brought to its attention by the St Anthony Primary School with due care and diligence. (b) Failing to investigate matters brought to its attention by St. Anthony Primary School with objectiveness, detachment and competence. (c) Failing to evaluate the evidence presented by the staff of St. Anthony Primary School with competence and detachment. (d) Failing to conduct adequate and competent investigation of the teaching staff of St Anthony Primary School. (e) Failing to ensure that affidavits deposed on its behalf accurately recorded interviews with the First Plaintiff, school staff, medical experts, and other relevant persons, for the purpose of informing the Children's Court of all matters relevant to proceedings commenced by the Department of Community Services concerning the First Plaintiff. (f) Failing to place sufficient importance on the opinions of experts in making recommendations to the Children's Court. (g) Failing to the place sufficient importance on the inconclusive and the contradictory nature revealed by the evidence in the investigation and failing to make appropriate recommendations to the Children's Court as a result. (h) Failing to act with due speed and diligence in gathering evidence, medical reports and other expert opinions to place before the Children's Court enabling that Court to set down a hearing of the matter within the Statutory time-frame. (i) Failing to take into consideration the welfare of the First Plaintiff by maintaining him in the custody of … [the plaintiff's aunt] and her brothers despite disclosures by the mother of a history of physical abuse within the family that resided at … [the plaintiff's aunt]. (j) Recommending to the Children's Court that the First Plaintiff stay in the custody of … [the plaintiff's aunt] and her brothers despite disclosures by the mother of a history of physical abuse within the family that resided at … [the plaintiff's aunt]. (k) Failing to supervise access visits with due care and diligence by the Second and Third Plaintiffs to the First Plaintiff. (l) Denying adequate access of the First Plaintiff to the Second and Third Plaintiffs. (m) Failing to implement Departmental Policies and guidelines in the matter of … [court proceedings]. (n) Conducting a personal vendetta against the father of the First Plaintiff, "TA", condemning him as a paedophile and someone not fit ever to take care of the First Plaintiff despite the inconclusive nature of the evidence and the opinions of experts. (o) Conspiring with … [the maternal aunt] to ensure that the First Plaintiff would not be returned to the care of the Second and/or Third Plaintiff. (p) Failing to include all relevant matter, facts and circumstances in affidavits filed in the Children's Court Proceedings. (q) Failing to allow a tape recordings to be made of the access visits made by the Second and Third Plaintiffs, despite several requests. (r) Failing to allow an independent witness to the access visits made by the Second and Third Plaintiffs, despite being requested. (s) Failing to conduct proper supervision of the First Defendant. (t) Failing to appoint appropriately trained and qualified officers in matters relevant to proceedings and investigations concerning the First, Second and Third Plaintiffs. (u) Failing to review at appropriate junctures of time the conduct and performance of the First Defendant in the matter of "MA" before the Children's Court. (v) Failure to prevent the First Plaintiff being taken out of New South Wales jurisdiction by … [the maternal aunt] despite numerous objections by the Third Plaintiff. (w) Failing to implement the Children's Court recommendation made 7 January, 1997." 17 Similar allegations are made by the parent plaintiffs. 18 The second defendant submitted that it did all it was required to do under the Children (Care and Protection) Act 1987 (the Act). Hence, because it complied with its statutory duties, the plaintiff does not have a cause of action. According to the second defendant, the plaintiff does not have a case at common law. 19 The second defendant submitted that the relevant statutory duties are contained in s 7 of the Act. The Director General may (but is not required to) cause an investigation to be made into the matter and take the kind referred to in s 7(b). 20 Section 7(b) provides: "(b) if the Director-General is satisfied that the child in respect of whom the Director-General was notified may have been, or is in danger of being, abused or is a child in need of care, take such action as the Director-General considers appropriate, which may include reporting those matters to a member of the police." 21 The second defendant investigated the matter between 7 and 24 December 1997, ie., over a relatively short period of 17 days. After this period of investigation it decided to take court proceedings. The second defendant relied on two recent decisions namely a of the South Australian Court of Appeal decision of CLT v Connon [2000] SASC 223 and a decision of this court in TC v State of New South Wales [1999] NSWSC 31. Both parties have lodged an appeal to the Court of Appeal in TC. 22 The starting point in relation to cases where serious allegations have been made about the parents of a child and as a result have taken legal action, is the approach taken by the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633. In X (Minors) the competing policy decisions are discussed. Lord Browne-Wilkinson held the view cases involving possible or suspected sexual and physical abuse of children are notoriously cases of great difficulty and require considerable care and delicacy in their handling. Parents, or persons in the position of parents, will often be potential suspects and usually important witnesses. Their position in any such case is a particularly complex one. They are likely to be at one and the same time a potential object of suspicion, potential witnesses for the prosecution is one ensues, but also persons whose position must be considered in the interests of the child. 23 Persons involved in considering the interest of the child, and protection of the child, such as employees of the department when allegations are made of sexual abuse, or when a suspicion of sexual abuse arises, have a particularly difficult task to discharge. Under the Act the employees of the department must give priority to the interest of the child, but at the same time must consider the family relationship and the long term interest of the child in the family relationship. They have to consider the impact of their own conduct on the investigation of the offence. They have to consider the short term protection of the child, longer term protection of the child and the longer term welfare of the child. Decisions have to be made on limited information. Discretion must be exercised for obvious reasons in relation to information given to family members, and in dealing with family members. The situation will often be one in which strong feelings will be aroused. 24 In CLT, it was agreed that the facts were on all fours with a prior decision of Hilman v Black (1996) SASR 490. The Master had considered himself bound by Hilman and struck out the claim as disclosing no cause of action. The Court of Appeal revisited Hillman due to the High Court's recent retreat from the concept of proximity in establishing whether or not a duty of care arose. In CLT the plaintiff alleged that the defendants in their capacity as medical practitioners examined children of the plaintiff, with a view to determining whether they had been subjected to sexual abuse. After conducting that medical examination formed the conclusion that the child had been subjected to sexual abuse or that there was a strong possibility that that had happened. The plaintiff pleaded that each defendant informed the plaintiff's wife and employees of the Department of that conclusion. The plaintiff also pleaded that each defendant did so knowing that the consequence "may be" that the plaintiff would be denied access to the child, would suffer "great emotional distress", and that the police would investigate charging the plaintiff with sexual abuse of the child. 25 The plaintiff alleged that a duty of care was owed to the plaintiff that required the State, by its employees in the Department to establish and to follow sound procedures for dealing with allegations of and investigations relating to sexual abuse of children, and for dealing with medical examinations to determine whether sexual abuse had occurred. It should be noted that the facts in CLT differ from the ones alleged in these proceedings. 26 In CLT Doyle CJ agreed with the above reasons identified by Lord-Browne Wilkinson in X (Minors) Doyle CJ came to the view that it impose on employees of the department a duty of care to the parent of a child when there is an allegation of sexual abuse and the parent is a possible suspect, the duty of care relating to the conduct of those employees in their management of the complex situation that follows, would be to involve the court in the review of difficult issues which the court is ill-placed to review, and which are unlikely to be satisfactorily resolved in a forensic context. Doyle JA stated that "it is obvious that matters of belief, judgment, impression, and so on will play a large part in the making of decisions. The imposition of a duty of care might easily encourage a degree of caution on the part of employees of the department that would, in the longer term, be contrary to the interest of children requiring protection. The imposition of a duty of care would not sit at all easily with treating the interest of the child as paramount." 27 The statutory duty in CLT arose pursuant to s 91(1) of the Community Welfare Act 1972 (SA) (as amended). As Gray JA observed the High Court considered the question of duties of care owed by statutory authorities in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 74 ALJR 1. The High Court was divided as to the general approach to be taken to the issue of whether a statutory body owes a common law duty of care. Gaudron J considered that one looked to see if the circumstances gave rise to a duty of care at common law, and then enquired whether the statute should be understood to modify it. Gummow J took the opposite view. His starting point was to consider the terms of the legislative scheme. If the statute is incompatible with any possible duty no further enquiry is called for. Kirby and Hayne JJ appear to have adopted the same approach. McHugh J (with whom Gleeson CJ agreed) adopted the incremental approach. Callinan J would appear to start his enquiry with the common law and then consider whether the legislative provisions would operate to modify, mould or indicate the common law principles. Despite the differences to the general approach taken, all members of the High Court treated as critical the question whether the statute negatived a duty of care. The South Australian Court of Appeal proceeded on the basis of whether particular sections of the South Australian Act negatived the duty of care. The court decided that the statutory provisions did not give rise to a duty of care. However, the South Australian Court of Appeal decision is not binding on this court. 28 In TC the plaintiff sued the State of New South Wales in negligence relating to the acts and omissions of the officers of the Department of Youth and Community Services (YACS). In consequence of the failure to protect him in his tendered years, the plaintiff claims to have suffered both psychological and physical harm. It was not pleaded that the plaintiff had available a statutory cause of action although reliance was placed upon the Child Welfare Act for the purposes of the common law claim. [ para 11]. 29 At para 119, Studdert J stated that it seemed to him that the measure of the duty imposed upon the department by the receipt of notification was a duty to exercise reasonable care in the discharge of the mandatory requirements of s 148B. After a lengthy trial, Studdert J (at paragraphs 546 and 547) stated that he had given close consideration to all the evidence and the submissions and found that there was a failure by YACS to exercise reasonable care in the respects of firstly, the incomplete investigation of the material presented in February and March 1983; and secondly, the delay associated with the engagement of Dr Waters to make his assessments in 1984. 30 The defendant submitted that Studdert J considered the relevant sections in the Child Welfare Act which are similar to those in the Children (Care and Protection) Act 1987. That is not so. As previously stated there is an appeal in TC. TC is not "on all fours" with these proceedings. On one view in these current proceedings, DOCS commenced an investigation which after 17 days resulted in DOCS initiating court proceedings to remove the first plaintiff from his parents, the second and third plaintiffs. The decision ultimately made was one of a court. Like TC this case is based on common law negligence claim and not a specific claim for breach of statutory duties. Since the judgment in TC was delivered the High Court gave judgment in Crimmins. 31 While ultimately the court may adopt the reasoning of X (Minors) in this case, the facts and circumstances of this case need to be ascertained at trial. As occurred in TC The court would need to examine the relevant statutory provisions. The law in this area is developing and should not be stifled. The plaintiffs are pleading that the case was not fairly prosecuted by the defendant. The law in this area is developing. For these reasons, it is my view that the plaintiffs' case should be permitted proceed to trial. I am not satisfied that it is hopeless. Accordingly, the notice of motion is dismissed. 32 Costs are discretionary. Normally costs would follow the event. However, the plaintiffs have not been diligent in prosecuting their claim They rectified their omissions after the filing of this motion of motion seeking that these proceedings be struck out for want of prosecution. In these circumstances, the appropriate order for costs is that each party should bear their own costs. 33 As previously stated, there is a notice of motion currently on foot where the plaintiffs are seeking leave to amend their statement of claim. I would have proceeded to consider the application for summary judgment on the basis of this proposed amended statement of claim but the plaintiffs' counsel understandably was not in a position to do argue their case on the basis of the amended statement of claim. This motion has yet to be determined by the Registrar. 34 The orders I make are: (1) The second defendant's notice of motion filed 7 July 2000 is dismissed. (2) Each party is to bear their own costs. ********** Last Modified: 11/07/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.