Tweed Shire Council v Carly Eden Howarth (by her tutor Trent Howarth) [2009] NSWCA 103

New South Wales Court of Appeal

CITATION: Tweed Shire Council v Carly Eden Howarth (by her tutor Trent Howarth) [2009] NSWCA 103 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28 April 2009 JUDGMENT OF: Giles JA at 1; Ipp JA at 27; Basten JA at 28

EX TEMPORE JUDGMENT DATE: 28 April 2009

DECISION: (1) Grant leave to appeal and direct that the notice of appeal in the form of the draft amended notice of appeal be filed within seven days; (2) Appeal allowed; (3) Set aside the order dismissing the motion to add the father as a cross-defendant and the order that the defendant pay the costs of the plaintiff of that motion; (4) Order that the defendant be granted leave to file and serve a cross-claim against Derek Howarth in the form of the cross-claim proffered to the trial judge but with the addition of the further allegations mentioned in these reasons and the deletion of particular (k); (5) Order that the respondents to the motion pay the costs of the notice of motion; (6) Order that the respondents on appeal pay the costs of the applicant/appellant, and have a certificate under the Suitors Fund Act if otherwise qualified.

CATCHWORDS: PROCEDURE - leave to file cross-claim - whether cross-claim futile - whether proposed cross-defendant owed duty of care to plaintiff - father of plaintiff - plaintiff aged 2 years 4 months - took her to premises while he did work at premises - adjoining drainage reserve with pond - no fencing - mere fact of parenthood did not give rise to duty of care - but relevant as part of circumstances - were other circumstances - arguable that owed duty of care and that there was breach - leave to file cross-claim.