Supreme Court New South Wales Medium Neutral Citation: Box v State of New South Wales [2019] NSWSC 863 Hearing dates: 8 July 2019 Date of orders: 08 July 2019 Decision date: 08 July 2019 Jurisdiction: Common Law Before: Garling J Decision: (1) The Notice of Motion dated 21 June 2019 is dismissed; (2) Order the plaintiff to pay the defendant's costs of the Notice of Motion; (3) Order that the plaintiff serve any proposed Amended Statement of Claim on the defendant by 4pm, 26 July 2019; (4) Order that by 6 August 2019, the defendant notify the plaintiff of whether it consents or opposes the filing of the proposed Amended Statement of Claim; (5) Order that in the event that the defendant opposes the filing of the Amended Statement of claim, the plaintiff is to file a Notice of Motion seeking leave to file the proposed Amended Statement of claim by 4pm, 13 August 2019; (6) Grant leave for the Notice of Motion to be returnable before me at 9.30am on 23 August 2019; (7) Stand the proceedings over for directions before Garling J on 23 August 2019 at 9.30am and for the hearing of any Notice of Motion; (8) Grant the parties liberty to apply; (9) Direct that the time any documents are served or filed, a copy is to be provided to my chambers. Catchwords: CIVIL PROCEDURE — Pleadings — Leave to file Amended Statement of Claim – requirements for adequate pleadings of a cause of action in negligence – s5B and s5D of the Civil Liability Act –where proposed pleading is not proper Legislation Cited: Civil Liability Act 2002 Child Welfare Act 1939 Cases Cited: Benic v State of NSW [2010] NSWSC 1039 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: Gary Box (P) State of New South Wales (D) Representation: Counsel: K Balendra (P) N Newton (State) Solicitors: Slater & Gordon (P) Crown Solicitors Office (State) File Number(s): 2018/111861 Publication restriction: Not Applicable EX TEMPORE Judgment 1. By Notice of Motion filed 21 June 2019, the plaintiff seeks leave to file an Amended Statement of Claim ("the proposed pleading"). The document is, in fact, the third pleading sought to be filed in these proceedings, which commenced in April 2018. Factual Context 1. The underlying facts upon which the plaintiff's claim is made are that, on 26 June 1978, the plaintiff was sentenced at the Taree Court of Petty Sessions to a two-month term of imprisonment for an offence of stealing property to the value of $70. The plaintiff pleads that he was 17 years old at the time of sentencing. 2. The plaintiff pleads that he was born on 26 March 1961. The documents, which are presently available and which are put before the Court on this Motion, show that the Warrant of Commitment signed at the Taree Court of Petty Sessions records the plaintiff's date of birth as 26 March 1960. If that date be correct, then the plaintiff was over the age of 18. 3. A document, which I infer was completed at Maitland Gaol upon the plaintiff's arrival there, records his date of birth as 26 March 1960. It is unclear in whose handwriting that document was completed, but it is signed at the bottom by the plaintiff, underneath a statement in which he certified that the answers to the questions shown in the form were correct. He also acknowledged that a false statement on the document would render him liable to punishment. 4. I infer that the document was completed at Maitland Gaol from the fact that the heading on the document suggests that it was completed pursuant to the relevant Prison Act and Regulations and that questions on the right-hand-side of the document include statements such as "Last Imprisonment at this gaol". On the bottom right-hand-side of the document is a fingerprint placed there under the description "impression of prisoner's right forefinger". On the back of the document there are also notations of a kind one would expect to be seen in a prison environment. Proposed Amended Statement of Claim 1. The proposed pleading alleges that whilst the plaintiff was in Maitland Gaol for a three day period prior to being transferred to the Cessnock Correctional Centre, he was physically and sexually assaulted on two separate occasions by two inmates of the gaol. These physical and sexual assaults are said to have caused injury, loss and damage. 2. The proposed pleading alleges two discrete causes of action against individuals for whom it can be presently accepted that the defendant (being the State of New South Wales) can be held liable. 3. The first cause of action is said to be against the Minister of Child Welfare, to whom it is alleged the legal guardianship of the plaintiff was entrusted pursuant to the Child Welfare Act 1939. A non-delegable duty is pleaded against the Minister, and any officers, servants or agents responsible for the care, supervision and welfare of the plaintiff. 4. In the course of submissions, counsel for the plaintiff accepted that paragraphs 10, 13, and 14 of the proposed pleading which dealt with this cause of action could not be pressed in their present form. Counsel for the plaintiff accepted that the pleading in its current form did not articulate an adequate legal basis for the Minister of Child Welfare to be held responsible (pursuant to legislation or otherwise) for the custody of the plaintiff and for his care, supervision and welfare. It follows that if this pleading was allowed to be filed, those paragraphs would be struck out. 5. The second cause of action pleaded is set out in paragraphs 11 and 15 of the proposed pleading. Paragraph 11 identifies, in an unexceptional way, that the State is the successor in law to the Commissioner of Corrective Services. Whether or not that is accurate is not a matter about which the Court needs to be troubled. Paragraph 15 pleads a cause of action said to be "… brought pursuant to s 5B of the Civil Liability Act 2002". It asserts that the Commissioner, his employees, servants or agents were negligent, and then identifies the particulars of negligence. 6. In Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151, the Court of Appeal considered the requirements for adequate pleadings of a cause of action in negligence brought after the introduction of the Civil Liability Act 2002. They held that, where a party seeks to bring a pleading based on the tort of negligence, in circumstances where the Civil Liability Act is applicable, any such pleading requires a clear identification of a risk of harm against which a person has failed to take precautions. What is more, in the case of the plaintiff, the risk must be one that has materialised. 7. As well, the requirements of s 5B (each of which needs to be answered favourably to a plaintiff) require pleading so that a defendant knows whether the risk of harm, which is said to be foreseeable, is one of which they had actual knowledge or of which they should have been on notice. Equally, the defendant is entitled to know that the risk of harm relied upon was not insignificant and that a reasonable person in the defendant's position would have taken precautions which are particularised: see, for example, the remarks of Basten JA at [7]; Meagher JA at [22] and Tobias AJA at [119] ff. This is but one of a number of decisions which make plain what the pleading requirements are for a cause of action under the Civil Liability Act: see also Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320 at [102]-[129]; Benic v State of NSW [2010] NSWSC 1039. 8. Even on the most generous reading of paragraph 15 of the proposed pleading, the requirements of s 5B are not adequately addressed. Again, should this document have been filed, paragraph 15 would be struck out. 9. It is also equally clear that the provisions of s 5D are not addressed in paragraph 16 of the proposed pleading. That paragraph may be in the usual form relevant to a common law cause of action, however, it does not have regard to the Civil Liability Act, which sets out the test for causation in s 5D and which requires an entirely different pleading in terms of its content and conclusion. 10. Ultimately, again after discussion and submission, counsel for the plaintiff did not press paragraph 15 in its present form. 11. It follows from these reasons that as the proposed pleading is not in proper form and does not contain any adequate articulation of the causes of action relied upon by the plaintiff, it would not be appropriate to grant leave for it to be filed. Orders 1. I make the following orders: 1. The Notice of Motion dated 21 June 2019 is dismissed; 2. Order the plaintiff to pay the defendant's costs of the Notice of Motion; 3. Order that the plaintiff serve any proposed Amended Statement of Claim on the defendant by 4pm, 26 July 2019; 4. Order that by 6 August 2019, the defendant notify the plaintiff of whether it consents or opposes the filing of the proposed Amended Statement of Claim; 5. Order that in the event that the defendant opposes the filing of the Amended Statement of claim, the plaintiff is to file a Notice of Motion seeking leave to file the proposed Amended Statement of claim by 4pm, 13 August 2019; 6. Grant leave for the Notice of Motion to be returnable before me at 9.30am on 23 August 2019; 7. Stand the proceedings over for directions before Garling J on 23 August 2019 at 9.30am and for the hearing of any Notice of Motion; 8. Grant the parties liberty to apply; 9. Direct that the time any documents are served or filed, a copy is to be provided to my chambers. ********** 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: 10 July 2019