Wilson & Ors v State of New South Wales [2001] NSWSC 869

New South Wales Supreme Court

CITATION : Wilson & Ors v State of New South Wales [2001] NSWSC 869 revised - 14/02/2002 FILE NUMBER(S) : SC 20218/99 HEARING DATE(S) : 14/3/00;15/3/00;16/3/00;1/5/00;2/5/00;13/2/01;19/4/01 JUDGMENT DATE : 28 September 2001

PARTIES : Anthony James Wilson & Ors v State of New South Wales JUDGMENT OF : O'Keefe J

LOWER COURT JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : Mr M S Jacobs QC/Mr A Kostopolous - plaintiffs Mr C F Hodgson - defendant SOLICITORS : Greg Walsh & Co, Chester Hill - Plaintiffs I V Knight, Crown Solicitors, Sydney - Defendant CATCHWORDS : Torts - Negligence - Duty of Care - Welfare of children - Child abuse - Sexual abuse - Parents and grandparent - Suspected sexual abuse of children - Claims of nervous shock, distress, psychiatric injury, personal and financial loss as a result of allegations - Responsibilities of Director General and departmental officers - Allegation of negligence against Director General and departmental officers in investigating, reporting and acting on allegations - Whether duty owed to parents and grandparent by Director General and departmental officers in investigating, reporting and acting on allegations of child abuse - Police - Allegation of negligence against police in investigating, prosecuting and continuing prosecution - Whether duty owed to parents and grandparent by police in investigating, prosecuting and continuing a prosecution - Public policy Crown Proceedings Act 1988 Children (Care and Protection) Act 1987 Crimes Act 1900 LEGISLATION CITED : New Zealand Bill of Rights Act 1990 The Children (Care and Protection) Act 1987 Child Welfare Act 1939 Police Service Act 1990 Community Welfare Act 1971 (SA) General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Spellson v George (1992) 26 NSWLR 666 Wentworth v Rogers No. 5 (1986) 6 NSWLR 534 Agar v Hyde; Agar v Worsley (1999-2000) 201 CLR 552 Pyrenees Shire Council v Day (1998) 192 CLR 330 Crimmins v Stevedoring Industry Finance Committee (1999-2000) 200 CLR 1 X (Minors) v Bedfordshire County Council (1995) 2 AC 633 Hill v Chief Constable of West Yorkshire (1989) AC 53 Elguzouli-Daf v Commissioner of Police of the Metropolis (1995) QB 335 Caparo Industries PLC v Dickman (1990) 2 AC 605 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Giannarelli v Wraith (1988) 165 CLR 543 at 573 Rondell v Worsley (1969) 1 AC 191 CASES CITED : Clough v Bussan (1990) 1 All ER 431 Downsview Nominees Ltd v First City Corporation Ltd (1993) AC 295 Riss v City of New York (1968) 22 NY 2d 579; 240 N.E. 2d 860 Whithair v Attorney General (1996) 2 NZLR 45 Grimwade v State of Victoria (1997) 90 A Crim R 526 Gala v Preston (1991) 172 CLR 243 at 255 Emanuele and Ors v Hedley and Ors (1997) ACTSC 13, unreported, 7 March 1997 George v Rockett (1990) 170 CLR 105 at 115-116 Elcham v Commissioner of Police and Ors [2001] NSWSC 614, 27 July 2001, unreported, at para 39 Liversidge v Anderson (1942) AC 206 at 226-228 Hillman v Black (1996) 67 SASR 470 M (A Minor) v Newham (1995) 2 AC 633 at 681 CLT v Connon (2000) Aust Tort Reports 63, 980 TC v Yanon (1999) NSWSC 31, 11 February 1999, unreported DECISION : 1. The amended Statement of Claim of 19 April 2001 is struck out; 2. Leave is given to the plaintiffs to amend their Statement of Claim so as to claim on the causes of action of malicious prosecution and abuse of process generally in the form set out in the document filed in Court, initialled by me and dated 6 December 2001, a copy of which has been placed with the papers; 3. The costs of the application to amend so as to claim on the bases referred to in Order 2 (above) are to be the defendant's costs in the action; 4. The plaintiffs are to pay the costs of the application to strike out the Statement of Claim and the amendments thereto, up to and including the amendment effected on 19 April 2001; 5. Order under Part 52A, Rule 9 for the payment of the costs referred to in Order 4 (above) before the conclusion of the proceedings refused.