DC v State of New South Wales [2010] NSWCA 15

New South Wales Court of Appeal

CITATION: DC v State of New South Wales [2010] NSWCA 15

HEARING DATE(S): 2 February 2010

JUDGMENT DATE: 22 February 2010

JUDGMENT OF: McColl JA at 1; Basten JA at 2; Sackville AJA at 9

(1) Leave to appeal is granted. (2) Appeal allowed. (3) Set aside the orders made by the primary Judge on 28 April 2009. DECISION: (4) In lieu thereof, order that the motion for summary dismissal filed by the respondents be dismissed, and that the respondents pay the applicants' costs of the motion. (5) Each applicant be given leave to file a further amended statement of claim within 28 days. (6) The proceedings be remitted to the Common Law Division for determination, including determination of the motion filed by the applicant seeking an extension of the limitation period. (7) The non-publication orders made by the primary Judge on 16 March 2009 be discharged to the extent that they refer to the second respondent (the Officer). (8) The respondents pay the applicants' costs of the appeal, including the application for leave to appeal.

NON-PUBLICATION ORDER - whether necessary to secure the proper administration of justice CATCHWORDS: PRACTICE AND PROCEDURE - proceedings summarily dismissed - claims founded on sexual abuse of children by their stepfather - existence of a duty of care by the State conceded - whether allegations of breach of duty raised factual questions that should be determined at trial - whether primary Judge erred in holding that the claims were bound to fail

Child Welfare Act 1939 Children (Criminal Proceedings) Act 1987 Children (Criminal Proceedings) Amendment (Naming of Children) Act 2009 Civil Procedure Act 2005 LEGISLATION CITED: Crimes Act 1900 Crimes (Public Justice) Amendment Act 1990 Limitation Act 1969 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005