Supreme Court New South Wales Medium Neutral Citation: DC v State of New South Wales (No 4); TB v State of New South Wales (No 4) [2013] NSWSC 207 Hearing dates: 13/03/2013 Decision date: 18 March 2013 Jurisdiction: Common Law Before: Harrison AsJ Decision: (1) Leave is granted to both plaintiffs to file a second further amended statement of claim within seven days. (2) Costs are reserved. Catchwords: PROCEDURE - leave to file second amended statement of claim - victims of sexual abuse - action against State of NSW and case worker - claim of breach of duty - whether pleading of causes of action extends beyond that permitted by Court of Appeal Legislation Cited: Child Welfare Act 1939 Uniform Civil Procedure Rules 2005 Cases Cited: Commonwealth v Griffiths [2007] NSWCA 370 DC v State of New South Wales [2012] NSWSC 142 DC v State of New South Wales [2010] NSWCA 15 H 1976 Nominees Pty Ltd v Galli Ltd & Quarries Ltd (1979) 30 ALR 181 TB v State of New South Wales [2012] NSWSC 143 TB v State of New South Wales [2009] NSWSC 326 Category: Procedural and other rulings Parties: 2008/289325 DC (Plaintiff) State of New South Wales (First Defendant) Carolyn Quinn (Second Defendant) 2008/289326 TB (Plaintiff) State of New South Wales (First Defendant) Caroline Quinn (Second Defendant) Representation: Counsel: K Pryde (Plaintiffs) I Harvey (Defendants) Solicitors: Graham Jones Lawyers (Plaintiffs) Crown Solicitors (Defendants) File Number(s): 2008/289325; 2008/289326 Judgment 1HER HONOUR: These proceedings have had a history. TB and DC are sisters. Both TB and DC have filed (on 29 January 2013) a notice of motion seeking leave to file a second further amended statement of claim. TB and DC relied on the affidavit of Graham Jones sworn 29 January 2013. The defendants relied on the affidavit of Jane Graham affirmed 20 February 2013. The proposed second further amended statement of claim ("2FASC") can for present purposes be treated as being the same. 2The first defendant is the State of New South Wales ("the State of NSW"). The State of NSW is vicariously liable for the acts and conduct of the second defendant. The second defendant was employed by the Department of Youth & Community Services ("YACS"), now the Department of Community Services ("DOCS"), as a district officer at the Blacktown office. 3TB was born in July 1967 and DC in October 1970. Their parents separated when they were very young. After the separation their mother met and subsequently married their stepfather "J". Thereafter, J began to sexually abuse both girls. They complained to their mother on numerous occasions, but the abuse continued. Once YACS became involved the second defendant was put in charge of their case. 4In April 2008, TB and DC commenced proceedings against the defendants, raising causes of action based on the defendants' allegedly negligent failure to exercise the power to report these matters to the Police. 5On 28 April 2009, in TB v State of New South Wales [2009] NSWSC 326, Mathews AJ struck out both TB and DC's statements of claim on the basis that there was no reasonable cause of action. On appeal in DC v State of New South Wales [2010] NSWCA 15, the Court of Appeal allowed the appeal and set aside the orders of Mathews AJ dated 28 April 2009. Both matters were remitted to the Common Law division for determination, including the determination of the motions filed by TB and DC seeking an extension of the limitation period. 6On 22 February 2010, the Court of Appeal granted TB and DC leave to file a further amended statement of claim within 28 days, which they did, on 17 March 2010. 7On 21, 22 and 23 November 2011, the motions seeking an extension of the limitation period were heard by me. 8On 1 March 2012, I delivered judgment (DC v State of New South Wales [2012] NSWSC 142; TB v State of New South Wales [2012] NSWSC 143). In both matters I ordered that the limitation period in relation to the plaintiffs' proceedings were suspended by reason of the plaintiffs' disability from the day they turned 18 until the end of 2003. In the alternative, I granted the plaintiffs an extension of time within which to commence proceedings against the defendants up to and including 2 May 2008. 9Following my decisions on 1 March 2012, discussions took place between the solicitors. During the course of those discussions, the plaintiffs' solicitors foreshadowed the preparation of a draft 2nd further amended statement of claim ("2FASC"). 10On about 16 April 2012, the plaintiffs' solicitors served a draft 2FASC on the defendants. On 1 May 2012 the defendants responded, by letter, stating that the 2FASC was defective and they did not consent to it being filed. Pleadings 11A statement of claim must plead only material facts, being only the facts necessary to formulate a complete cause of action. The Uniform Civil Procedure Rules 2005 provide that a party's pleading must contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to be proved (UCPR 14.7). A pleading must be as brief as the nature of the case allows (UCPR 14.8); and if any documents or spoken words are referred to in a pleading, the effect of the document or spoken words must, so far as material, be stated, and the precise terms of the document or spoken words must not be stated, except so far as those terms are themselves material (UCPR 14.9). Defendants' objections 12Counsel for the defendants submitted that it can take objection prior to the filing of the 2FASC as otherwise once it was filed it would have to file a notice of motion seeking that the 2FASC be struck out or alternatively portions of it struck out. For reasons of expediency I shall address these matters now. 13The defendants complain that there were too many factual matters set out in the 2FASC. It is only if a fact is material, that it must be pleaded and not merely referred to in particulars: see H 1976 Nominees Pty Ltd v Galli Ltd & Quarries Ltd (1979) 30 ALR 181 at 186-187. While some of these alleged factual matters may not be material ones, they can either be included in the 2FASC or by way of particulars. Much of the factual material is already well known to all parties as it has been canvassed at the limitations hearing and the prior strike out applications. Some of the historical matters are not in dispute. It is my view that it is not necessary that the factual material should be deleted from the 2FASC and then included in the answers for the request for particulars. To my mind, as events that giving rise to these proceedings occurred between about April 1983 to May 1984 (some 30 years ago) it is more important to ensure that the trial takes place as soon as possible. 14I do not intend to cover the minor pleading complaints but focus on the gravamen of the defendants' complaint. That is, the defendant says that the pleading of the causes of action in the 2FASC and in particular paragraphs [53] to [57] go way beyond what was permitted by the Court of Appeal. Hence, it is necessary to briefly refer to the Court of Appeal decision of DC v State of New South Wales [2010] NSWCA 15. 15Before I get there, it is necessary to refer to the Child Welfare Act 1939. Section 148B of the Child Welfare Act, as in force in 1983, reads: "(1) In this section - 'court' ... means any court; 'prescribed person' means - (a) a medical practitioner; and (b) a person who is a member of any class of persons prescribed for the purposes of this paragraph ... (2) Any person who forms the belief upon reasonable grounds that a child - (a) has been assaulted; or (b) is a neglected child within the meaning of Part XIV, may - (c) notify the Director of his belief and the grounds therefore either orally or in writing; or (d) cause the Director to be so notified. (3) A prescribed person who, in the course of practising his profession, calling or vocation, or in exercising the functions of his office, as the case may be, has reasonable grounds to suspect that a child has been assaulted, ill-treated or exposed shall - (a) notify the Director of the name or a description of the child and those grounds either orally or in writing; or (b) cause the Director to be so notified promptly after those grounds arise. ... (5) Where the Director has been notified under subsection (2) or (3), he shall - (a) promptly cause an investigation to be made into the matters notified to him; and (b) if he is satisfied that the child in respect of whom he was notified may have been assaulted, ill-treated or exposed, take such action as he believes appropriate, which may include reporting those matters to a constable of police." 16At the outset in DC v State of New South Wales, Sackville AJA (with whom McColl and Basten JJA agreed) referred to the pleading in the amended statement of claim ("ASC"). There were a number of causes of action that included breach of duty, criminal misconduct, breach of fiduciary duty and misfeasance in public office. Sackville AJA noted that both before the primary Judge and in the Court of Appeal, Mr Morrison SC, for the applicants, indicated that they did not rely on any cause of action other than breach of duty. Mr Morrison SC also acknowledged that there were deficiencies in each ASC insofar as they plead a case based on breach of duty. The issue before the Court was whether the trial judge should have entered summary judgment against TB and DC. The Court decided that summary judgment should not have been entered. 17In so far as the claim for breach of duty is concerned, the Court of Appeal, in DC v State of New South Wales, stated at [53] to [56]: "53 If it can be accepted that the duty of care relied on by the applicants is maintainable as a matter of law (at least for the purposes of the summary dismissal applications), a pleaded allegation that the respondents breached the duty raises factual questions. Contrary to the respondents' submissions, a pleaded allegation that the respondents breached the duty by failing to notify the Police of suspected or known sexual abuse cannot be said to be so obviously untenable that it cannot possibly succeed. It is not difficult to imagine circumstances where report of suspected or known sexual abuse to the Police is the only practicable means of protecting a child exposed to the abuse, for example where YACS knows that the child has been removed from a safe house by the abusing parent or guardian and cannot immediately be located. 54 The applicants may or may not ultimately be able to make out a factual basis for establishing that the respondents breached the duty to take reasonable care for the safety of the applicants in the performance of their statutory obligations and the exercise of their statutory powers under s 148B of the CW Act. In particular, the applicants may or may not be able to make out a factual basis for their claim that the respondents breached the duty by failing to report the suspected or known sexual abuse to the Police at the earliest practicable opportunity. The matters identified by the primary Judge (at [64]-[65]) will no doubt need to be taken into account in determining whether the respondents departed from the standard of care reasonably to be expected of them. But the evidence before the primary Judge did not support a conclusion that the applicants' case was doomed to fail on the facts. Indeed, her Honour did not draw any such conclusion. Until all the evidence is assessed and findings of primary fact made, it cannot be said that the applicants will be unable to make out the pleaded case that the respondents breached their duty of care by failing to notify the Police promptly of the stepfather's suspected or admitted abuse. 55 As the argument in this Court developed, it became clearer that the respondents' main complaint was that the applicants had recast their case on the leave application. Mr Harvey said on several occasions that the applicants had relied before the primary Judge on the contention that the offence of misprision of felony required the respondents, as a matter of law, to report the suspected or admitted abuse to the Police. He submitted that the applicants had not put to her Honour that, although the respondents were not obliged as a matter of law to notify the Police of the stepfather's criminal conduct, it was a breach of their duty of care not to do so in the particular circumstances. 56 There is no doubt that the applicants did rely on the contention that the respondents were obliged to notify the Police as a matter of law and indeed pleaded the contention in par 41 of the ASC. However, the ASC is framed widely enough to embrace the case now put by the applicants: that is, that in the circumstances prevailing after April 1983, a failure to report the abuse to the Police constituted a failure by the respondents to demonstrate reasonable care for the safety of the applicants in the performance of the respondents' statutory obligations and in the exercise of their statutory powers. As I have noted, the primary Judge expressly recorded that the applicants relied on misprision of felony merely as giving content to the duty of care owed to the applicants. The applicants may well have emphasised before the primary Judge their claim that the respondents were under an unqualified obligation to report the abuse to the Police and paid relatively little attention to the claim founded on breach of the duty of care. Nonetheless, their case was not limited to the first of these claims." 18As previously stated, counsel for the defendants identified the offending paragraphs in the 2FASC as being [52] to [56]. Paragraphs [52] and [53] are similar as [52] pleads the first defendant's alleged duty of care and [53] pleads the second defendant's alleged duty of care. Likewise [54] and [55] are similar as [54] pleads the first defendant's alleged breach of duty of care and [55] refers to the second defendant's alleged breach of duty of care. 19They plead: "52. Between 20 April 1983 and the Plaintiff's Report to the Police and at all material times, the First Defendant owed the Plaintiff and the Plaintiff's Sister a Duty of Care ('the First Defendant's Duty of Care'), which duty was owed in all the circumstances, particularly including the First Defendant's Awareness, the First Defendant's Reporting Practice and the following matters: (a) The relationship between the First Defendant and the Plaintiff and the Plaintiff's Sister was close, such that the First Defendant ought to have had the Plaintiff and the Plaintiff's Sister in its contemplation when considering the conduct of Johnson. (b) The Plaintiff and the Plaintiff's Sister were minors who were vulnerable after years of repeated physical and sexual abuse. (c) The statutory powers contained in the Child Welfare Act 1939 relate to vulnerable individuals such as the Plaintiff and the Plaintiff's Sister and are granted to assist such vulnerable persons. (d) The First Defendant, given the First Defendant's Awareness, was in a unique position to control or minimise risk to the Plaintiff and the Plaintiff's Sister by reporting the Pre-YACS Abuse on the 2 Sisters, the Post-YACS Abuse on the 2 Sisters and Johnson's Admissions to the police. (e) Frost and the Second Defendant, both officers of the First Defendant, knew that, in light of the First Defendant's Reporting Practice, the conduct of Johnson should be reported to the police. (f) The Plaintiff and the Plaintiff's Sister were reliant upon the First Defendant to protect them from further physical, emotional and sexual abuse by Johnson. (g) The principles of misprision of a felony. (h) The provisions of s.316 of the Crimes Act 1900, as amended. PARTICULARS OF DUTY (a) To take all reasonable steps to ensure the welfare of the Plaintiff and the Plaintiff's Sister; and (b) To take all reasonable steps to protect the Plaintiff and the Plaintiff's Sister from any further physical, emotional or sexual abuse by Johnson. 53. Between 20 April 1983 and the Plaintiff's Report to the Police and at all material times, the Second Defendant owed the Plaintiff and the Plaintiff's Sister a Duty of Care ('the Second Defendant's Duty of Care'), which duty was owed in all the circumstances, particularly including the Second Defendant's Awareness, the First Defendant's Reporting Practice and the following matters: (a) The relationship between the Second Defendant and the Plaintiff and the Plaintiff's Sister was close, such that the Second Defendant ought to have had the Plaintiff and the Plaintiff's Sister in her contemplation when considering the conduct of Johnson. (b) The Plaintiff and the Plaintiff's Sister were minors who were vulnerable after years of repeated physical and sexual abuse. (c) The statutory powers contained in the Child Welfare Act 1939 relate to vulnerable individuals such as the Plaintiff and the Plaintiff's Sister and are granted to assist such vulnerable persons. (d) The Second Defendant, given the Second Defendant's Awareness, were in a unique position to control or minimise risk to the Plaintiff and the Plaintiffs Sister by reporting the Pre-YACS Abuse on the 2 Sisters, the Post-YACS Abuse on the 2 Sisters and Johnson's Admissions to the police. (e) The Second Defendant knew that, in light of the First Defendant's Reporting Practice, the conduct of Johnson should be reported to the police. (f) The Plaintiff and the Plaintiff's Sister were reliant upon the Second Defendant to protect them from further physical, emotional and sexual abuse by Johnson. (g) The principles of misprision of a felony. (h) The provisions of s.316 of the Crimes Act 1900, as amended. PARTICULARS OF DUTY (a) To take all reasonable steps to ensure the welfare of the Plaintiff and the Plaintiff's Sister; and (b) To take all reasonable steps to protect the Plaintiff and the Plaintiff's Sister from any further physical, emotional or sexual abuse by Johnson. 54. In the premises, the First Defendant breached the First Defendant's Duty of Care. PARTICULARS OF BREACH OF DUTY (a) Failing to report to the police a reasonable suspicion of and/or belief in felonious conduct by Johnson. (b) Failing to report to the police: (i) the Pre-YACS Abuse on the 2 Sisters, (ii) the Post-YACS Abuse on the 2 Sisters, or (iii) Johnson's Admissions. (c) Failing to ascertain the extent to which Johnson was known to the police. (d) Failing to take steps to ensure that the Plaintiff and the Plaintiff's Sister were not at risk of further physical, emotional or sexual abuse by Johnson. (e) Failing to take any, or any appropriate, action in response to the Post-YACS Abuse on the 2 Sisters. (f) Failing to take any effective steps to prevent Johnson from having access to the Plaintiff and the Plaintiff's Sister. (g) Continuing, notwithstanding the Complaints re the Post-YACS Abuse, to recommend in the Children's Court Proceedings that the Plaintiff and the Plaintiff's Sister be released into the care of the Plaintiff's Mother. (h) Failing to make further enquiry in order to ensure that Johnson did not continue to abuse the Plaintiff and the Plaintiff's Sister. (i) Failing to ascertain whether Johnson was continuing to abuse the Plaintiff and the Plaintiff's Sister. (j) Failing to act on the Magistrate's Recommendation to Report Johnson to the Police. (jointly 'the First Defendant's Breach of Duty'). 55. Further, in the premises, the Second Defendant breached the Second Defendant's Duty of Care. PARTICULARS OF BREACH OF DUTY (a) Failing to report to the police a reasonable suspicion of and/or belief in felonious conduct by Johnson. (b) Failing to report to the police: (i) the Pre-YACS Abuse on the 2 Sisters, (ii) the Post-YACS Abuse on the 2 Sisters, or (iii) Johnson's Admissions. (c) Failing to ascertain the extent to which Johnson was known to the police. (d) Failing to take steps to ensure that the Plaintiff and the Plaintiff's Sister were not at risk of further physical, emotional or sexual abuse by Johnson. (e) Failing to take any, or any appropriate, action in response to the Post-YACS Abuse on the 2 Sisters. (f) Failing to take any effective steps to prevent Johnson from having access to the Plaintiff and the Plaintiff's Sister. (g) Continuing, notwithstanding the Complaints re the Post-YACS Abuse, to recommend in the Children's Court Proceedings that the Plaintiff and the Plaintiff's Sister be released into the care of the Plaintiff's Mother. (h) Failing to make further enquiry in order to ensure that Johnson did not continue to abuse the Plaintiff and the Plaintiff's Sister. (i) Failing to ascertain whether Johnson was continuing to abuse the Plaintiff and the Plaintiff's Sister. (j) Failing to act on the Magistrate's Recommendation to Report Johnson to the Police. (jointly 'the Second Defendant's Breach of Duty'). 56. In the premises, the First Defendant is vicariously liable for the acts and conduct of: (a) the Second Defendant; and (b) YACS' officers and employees." 20I do not read the Court of Appeal's decision as limiting the claim that for the content of duty of care and any breach relates to only that set out in s 148B5(b) of the Child Welfare Act. 21The Court in DC v State of New South Wales referred to firstly, the respondents' breach of the duty by failing to notify the Police of suspected or known sexual abuse; and secondly, whether the defendants' breached their duty to take reasonable care for the safety of the applicants in the performance of their statutory obligations and the exercise of their statutory powers under s 148B of the Child Welfare Act 1939. 22The Court of Appeal in DC v State of New South Wales did not confine the plaintiffs' pleading to the matters referred to above as it commented that while the plaintiffs focussed on these matters during the hearing, their case founded on breach of duty of care was not limited to the failure to report abuse. 23Paragraphs [52] to [55] set out particulars of the duty of care of each defendant and their respective breaches of their duties of care. It is my view that the pleading in these paragraphs fall within the parameters set out by the Court of Appeal in DC v State of New South Wales. 24The defendants' counsel drew the Court's attention to factual matters that would attract witness immunity, such as the proceedings that were before the Magistrate in the Children's Court. In support of this uncontroversial proposition counsel referred to Commonwealth v Griffiths [2007] NSWCA 370. True it is that a witness cannot be sued for evidence he or she gives in proceedings and in respect of out of court conduct, provided that that conduct is sufficiently connected with the proceedings. The Children's Court proceedings are part of the factual matrix. So far as witness immunity is concerned, counsel for the defendants raised an objection to the tender of portions of the transcript of court proceedings at trial. 25Finally, counsel for the defendants took issue with the second defendant being named as a party and submitted that she be removed as a defendant. The plaintiffs allege in paragraph [56] that the first defendant is vicariously liable for her act and omissions. She was employed by the first defendant. If in its defence, the first defendant admits paragraph [56], consideration may be given to discontinuing against the second defendant. 26Leave should be granted to both plaintiffs to file the second further amended statements of claim within seven days. Costs are reserved. The Court orders that: (1) Leave is granted to both plaintiffs to file a second further amended statement of claim within seven days. (2) Costs are reserved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2013