Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) [2013] NSWCA 10

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Withyman (by his tutor Glenda Ruth Withyman) v State of New South Wales and Blackburn; Blackburn v Withyman (by his tutor Glenda Ruth Withyman) [2013] NSWCA 10 Hearing dates: 14 - 16 November 2012 Decision date: 11 February 2013 Before: Allsop P at [1] Meagher JA at [154] Ward JA at [155] Decision: A. With respect to Ms Blackburn's appeal: 1. Appeal allowed. 2. Set aside the judgment for the plaintiff against the second defendant in the sum of $120,293.65 and set aside the order for costs against the second defendant. 3. Remit the matter to Elkaim DCJ (or if this is not possible to another judge of the District Court) to hear and dispose of the defence of the second defendant (the appellant, Ms Blackburn) under the Limitation Act 1969 (NSW), such remitter to be limited to such issues, by way of completion of the hearing before the District Court. 4. The first respondent (Mr Withyman by his tutor Glenda Ruth Withyman) pay the appellant's costs of the appeal. 5. The first respondent to have a certificate under the Suitor's Fund Act 1951 (NSW). 6. The costs of the trial to date be decided by Elkaim DCJ (or such judge who hears the remitter) in the light of the disposition of the issues on remitter. B. With respect to Mr Withyman's appeal: 1. Grant leave to appeal on grounds 1 - 5 set out in the draft notice of appeal in the White Book. 2. Dispense with the need to file any notice of appeal. 3. Refuse leave to appeal on ground 6 set out in the said draft notice of appeal. 4. Dismiss the appeal with costs. C. The applications by the State of New South Wales for leave to appeal and cross appeal be dismissed. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORT - Teacher in breach of duty of care embarking on sexual relationship with a pupil - operation of Civil Liability Act 2002 s 3B(1)(a) - duty of care of State including whether State vicariously liable.