STATE OF NEW SOUTH WALES v BALL [2007] NSWCA 71

Reported Decision: 69 NSWLR 463

New South Wales Court of Appeal

CITATION: STATE OF NEW SOUTH WALES v BALL [2007] NSWCA 71

HEARING DATE(S): 28/03/2007

JUDGMENT DATE: 28 March 2007

JUDGMENT OF: Ipp JA at 1; McColl JA at 20; Young CJ in Eq at 21

EX TEMPORE JUDGMENT DATE: 28 March 2007

DECISION: (1) Leave to appeal should be granted. ; (2) The appeal should be upheld. ; (3) The orders made by Hughes DCJ should be set aside and in lieu thereof the following orders should be made:; (a) Para 7(a) of the statement of claim should be struck out. ; (b) Para 7(b) should be struck out. ; (c) The words "because of lack of staff" in the first sentence of paragraph 7(d) should be struck out.; (d) The last sentence of paragraph 7(d) should be struck out. ; (e) The second sentence of paragraph 7(e) should be struck out, and; (f) The words, "because of the lack of senior staff" in the second sentence of paragraph 7(g) should be struck out. ; (4) The opponent should pay the costs of the appeal and the proceedings before Hughes DCJ; (5) The opponent is entitled to a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS: STATUTORY INTERPRETATION – legislative purpose – whether a linguistic or purposive / contextual approach should be taken in interpreting s 3B(1)(f) of the Civil Liability Act 2002 (NSW) - TORTS – NEGLIGENCE – particulars of negligence in statement of claim concerning the allocation of resources by a public authority – whether these particulars should be struck out by reason of s 42 of the Civil Liability Act 2002 (NSW) – whether the particulars allege a general or specific allocation of resources

Civil Liability Act 2002 (NSW), ss 3B(1)(f), 42 LEGISLATION CITED: Motor Accidents Compensation Act 1999 (NSW) Suitors' Fund Act 1951 (NSW) Workers Compensation Act 1987 (NSW), Div 3, Pt 5