Johnston v State of New South Wales [2019] NSWSC 1206

Supreme Court New South Wales

Medium Neutral Citation: Johnston v State of New South Wales [2019] NSWSC 1206 Hearing dates: 19 May 2019 Date of orders: 11 September 2019 Decision date: 11 September 2019 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that:

(1) In accordance with s 9C(a) and (b) of the Law Reform (Vicarious Liability Act 1983 (NSW), the Court makes an initial determination that the Crown is not vicariously liable for the second defendant's alleged sexual assault and battery to the plaintiff.

(2) The defendant's notice of motion filed 21 December 2018 is listed for direction before the Registrar at 9.00 am on 18 September 2019

(3) Costs of the plaintiff's notice of motion filed 13 February 2019 are reserved. Catchwords: PRACTICE AND PROCEDURE - Law Reform (Vicarious Liability) Act 1983 (NSW) s 9C - Initial determination as to the vicarious liability of the Crown - Whether an initial determination under s 9C requires the determination of a separate question under UCPR 28.2

TORT - Vicarious liability — Intentional torts - Assault and battery - Police tort claim - Law Reform (Vicarious Liability) Act 1983 (NSW) s 8 - Vicarious liability of the Crown - Where a police prosecutor is alleged to have committed assault and battery against a trainee prosecutor Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 62(2) Employees' Liability Act 1991 (NSW), s 5 Law Reform (Vicarious Liability) Act 1983 (NSW), ss 6, 8, 9B, 9C, 9D Uniform Civil Procedure Rules 2005 (NSW), r 28.2, 28.4 Cases Cited: Deatons Pty Ltd v Flew (1949) 79 CLR 370 Ilkiw v Samuels [1963] 2 All ER 879 Landini v New South Wales [2008] NSWSC 1280 Lister v Hesley Hall Ltd [2001] UKHL 22; [2002] 1 AC 215 Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134 Prior v State of New South Wales [1998] NSWCA 289 Trotman v North Yorkshire County Council [1999] LGR 584 Category: Procedural and other rulings Parties: Lina Johnston (Plaintiff) State of New South Wales (First Defendant) Mark Christopher Gorman (Second Defendant) Representation: Counsel: D. O'Dowd (Plaintiff) J. Giles SC and D Stanton (First Defendant) C P O'Neill (Second Defendant)