Auditore v State of New South Wales [2017] NSWDC 150

District Court New South Wales

Medium Neutral Citation: Auditore v State of New South Wales [2017] NSWDC 150 Hearing dates: 19 June 2017 Date of orders: 22 June 2017 Decision date: 22 June 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Save for the leave to replead granted in order (2) below, plaintiff's notice of motion of 23 March 2017 dismissed. (2) Statement of claim struck out with leave to replead. (3) Plaintiff pay defendant's costs of the hearing of this application, including the costs of the adjourned hearing before the List Judge on 15 June 2017. (4) Liberty to restore in relation to costs. (5) Proceedings listed before the Judicial Registrar on Friday 30 June 2017. Catchwords: TORT – negligence – application to completely replead statement of claim previously struck out by consent – action in negligence against the State of New South Wales for psychiatric injury alleged to result from a police officer having a sexual relationship with a witness – particulars provided refer to "grooming" and manipulative behaviour to a vulnerable person – whether police can owe a duty of care – whether duty of care can be owed to a witness – whether claim asserted direct and/or vicarious liability – whether claim is or should be one of negligence, an intentional tort or a claim of sexual harassment – coherence – statement of claim struck out – whether leave to replead should be granted given the delays and inadequacies of pleading – leave to replead granted Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 62 Sex Discrimination Act 1984 (Cth) Uniform Civil Procedure Rules 2005 (NSW), rr 13.4 and 14.28 Cases Cited: An Informer v A Chief Constable [2012] All ER (D) 31 (Mar) Brooks v Metropolitan Police Commissioner [2005] All ER (D) 287 (Apr) Cran v New South Wales (2004) 62 NSWLR 95 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Garzo v Liverpool-Campbelltown Christian School Limited [2011] NSWSC 292 Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049 Knightley v Johns [1982] 1 WLR 349 Mahommed v Unicomb [2017] NSWCA 65 PBD and Another v Chief Constable of Greater Manchester Police [2013] EWHC 3559 Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19 Rickard v New South Wales [2010] NSWSC 151 Robinson v Chief Constable of West Yorkshire Police [2014] EWCA Civ 15 Rush and Others v Commissioner of Police (2006) 150 FCR 165 South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130 State of New South Wales v Briggs [2016] NSWCA 344 Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 Thompson v Vincent (2005) 153 A Crim R 577 Chief Constable of Hertfordshire Police v Van Colle; Smith v Chief Constable of Sussex Police [2008] 3 All ER 977 Wyong Shire Council v Shirt (1980) 146 CLR 40 Texts Cited: Independent Broad-based Anti-corruption Commission, Intelligence Report No 2, Predatory behaviour by Victoria Police officers against vulnerable persons, Victoria, December 2015 Wilson et al, "Romantic Relationships at Work: Does Privacy Trump the Dating Police?" (2003) 70 Defense Counsel Journal 78 Category: Procedural and other rulings Parties: Plaintiff: Laura Auditore Defendant: State of New South Wales Representation: Counsel: Plaintiff: Mr S McMahon Defendant: Ms B K Nolan