DC v State of New South Wales [2010] NSWCA 15 (22 February 2010)

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DC v State of New South Wales [2010] NSWCA 15 (22 February 2010)

Last Updated: 25 February 2010

NEW SOUTH WALES COURT OF APPEAL

CITATION:
DC v State of New South Wales [2010] NSWCA 15


FILE NUMBER(S):
2009/00298399

HEARING DATE(S):
2 February 2010

JUDGMENT DATE:
22 February 2010

PARTIES:
DC (First Appellant)
TB (Second Appellant)
State of New South Wales (First Respondent)
Carolyn Quinn (Second Respondent)

JUDGMENT OF:
McColl JA Basten JA Sackville AJA

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 20155/08, SC 20156/08

LOWER COURT JUDICIAL OFFICER:
Mathews AJ

LOWER COURT DATE OF DECISION:
28 April 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
DC v State of New South Wales [2009] NSWSC 297[<br>]TB v State of New South Wales [2009] NSWSC 326

COUNSEL:
A S Morrison SC; J L Carr (First and Second Appellants)
I Harvey (First and Second Respondents)

SOLICITORS:
Graham Jones Lawyers (First and Second Appellants)
I V Knight, Crown Solicitor (First and Second Respondents)

CATCHWORDS:
NON-PUBLICATION ORDER - whether necessary to secure the proper administration of justice [<br><br>] PRACTICE AND PROCEDURE - proceedings summarily dismissed - claims founded on sexual abuse of children by their stepfather - existence of a duty of care by the State conceded - whether allegations of breach of duty raised factual questions that should be determined at trial - whether primary Judge erred in holding that the claims were bound to fail

LEGISLATION CITED:
Child Welfare Act 1939
Children (Criminal Proceedings) Act 1987
Children (Criminal Proceedings) Amendment (Naming of Children) Act 2009
Civil Procedure Act 2005
Crimes Act 1900
Crimes (Public Justice) Amendment Act 1990
Limitation Act 1969
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

CATEGORY:
Principal judgment

CASES CITED:
Agar v Hyde [2000] HCA 41; 201 CLR 552
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256
CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 260 ALR 606
Cox v Journeaux (No 2) [1935] HCA 48; 52 CLR 713
DC v State of New South Wales [2009] NSWSC 297
Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125
SB v State of New South Wales [2004] VSC 514; 13 VR 527
Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215
Sullivan v Moody [2001] HCA 59; 207 CLR 562
Sykes v Director of Public Prosecutions [1962] AC 528
TC v State of New South Wales [2001] NSWCA 380
Wickstead v Browne [1992] NSWCA 272; 30 NSWLR 1

TEXTS CITED:


DECISION:
(1) Leave to appeal is granted.
(2) Appeal allowed.
(3) Set aside the orders made by the primary Judge on 28 April 2009.
(4) In lieu thereof, order that the motion for summary dismissal filed by the respondents be dismissed, and that the respondents pay the applicants’ costs of the motion.
(5) Each applicant be given leave to file a further amended statement of claim within 28 days.
(6) The proceedings be remitted to the Common Law Division for determination, including determination of the motion filed by the applicant seeking an extension of the limitation period.
(7) The non-publication orders made by the primary Judge on 16 March 2009 be discharged to the extent that they refer to the second respondent (the Officer).
(8) The respondents pay the applicants’ costs of the appeal, including the application for leave to appeal.



JUDGMENT:

- 25 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 2009/00298399

McCOLL JA

BASTEN JA

SACKVILLE AJA

22 February 2010

DC & ANOR v STATE OF NEW SOUTH WALES & ANOR

Judgment

1 McCOLL JA: I agree with Sackville AJA.

2 BASTEN JA: With two minor qualifications, I agree that the orders should be made as proposed by Sackville AJA, for the reasons which his Honour gives.

3 The first qualification concerns the reasons for the grant of leave, which I prefer to express in my own terms. Although there is authority in this Court that a summary judgment is an interlocutory decision (see Wickstead v Browne (1992) 30 NSWLR 1 at 11C (Handley and Cripps JJA)), it is clear that leave is required in any event pursuant to s 101(2)(l).

4 There should be a grant of leave for the following reasons, taken cumulatively. First, whatever the legal characterisation, in practical terms the judgment below disposed of any entitlement of the applicants to proceed with their claims against the State. Secondly, without detailed exploration, it was clear that the applicants had a reasonably arguable case that her Honour had erred in the approach taken to the motion for summary dismissal. Thirdly, the responsibility of the State to children subject to sexual abuse in the home is a matter of public importance.

5 The second qualification concerns order 6, that the proceedings be remitted to the Common Law Division for determination. In my view there is nothing which requires remittal. Her Honour dealt with the motion for summary dismissal, which has been the subject of appeal to this Court and has now been disposed of. The order dismissing the proceedings having been set aside, the proceedings remain on foot in the Common Law Division to be dealt with according to the processes of that Court.

6 I would add some brief comments in relation to the approach adopted by the primary judge, which are not intended to qualify the reasons given by Sackville AJA.

7 Mathews AJ, in the Common Law Division, gave summary judgment dismissing the proceedings generally: DC v State of New South Wales [2009] NSWSC 297. After reference to Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125, her Honour noted that summary judgment should only be given when the case is “so obviously untenable that it cannot possibly succeed” or “manifestly groundless”: at [24]. The importance of not denying a plaintiff a trial “except in the clearest of cases” and only where the ultimate outcome can be identified with “a high degree of certainty” was more recently emphasised in Agar v Hyde [2000] HCA 41; 201 CLR 552 at [57] (Gaudron, McHugh, Gummow and Hayne JJ) and repeated in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [46]. In the latter case, the High Court also reaffirmed at [53] the statement of Dixon J in Cox v Journeaux [No 2] [1935] HCA 48; 52 CLR 713 at 720:

“A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.”

8 This was not a case involving prejudice to the defendants due to lapse of time, but the strictures referred to in these authorities are applicable. Although her Honour properly identified the test early in her judgment, the later passages, set out by Sackville AJA, reveal that the correct test was not applied. For example, the identification of “many imponderables” – at [65] – indicates a sound justification for a trial on the facts, rather than summary disposal. It did not “give weight to” her Honour’s conclusion that summary dismissal was appropriate: see at [66].

9 SACKVILLE AJA: The present proceedings arise out of the sexual abuse of two sisters by their stepfather. The abuse took place over a ten year period from about 1974 to 1984, when the sisters were children. The proceedings were not instituted in the Supreme Court until May 2008, nearly 25 years after the abuse ended.

10 Each sister (“TB” and “DC” respectively) has sought relief against two defendants: the State of New South Wales (“the State”) and the District Officer (“the Officer”) with the Department of Youth and Community Services (“YACS”) who was responsible in 1983-1984 for dealing with the sisters’ complaints against their stepfather. Since the matter now before the Court is an application for leave to appeal by the sisters against the summary dismissal of their claims, I refer to them together as “the applicants” and individually as “the applicant”. I refer to the defendants in the proceedings as “the respondents”.

11 The applicants have each pleaded their case in an amended statement of claim (“ASC”). Each ASC alleges that the respondents breached their duty of care by failing to report the sexual abuse to the police, once they became aware of the abuse in April 1983. In consequence, so it is alleged, the applicants suffered yet more sexual abuse by their stepfather after that date and thereby sustained further physical and mental injury. The applicants claim damages for economic and non-economic loss. They also seek aggravated and exemplary damages, although it is not clear whether they intend to persist with that claim.

12 The applicants seek orders under s 60G of the Limitation Act 1969 (“Limitation Act”) extending the limitation period for the cause of action founded on negligence or breach of duty, so as to enable them to bring the proceedings notwithstanding the lapse of time since the relevant events. They say that they became aware only shortly before instituting the proceedings in 2008 that they had suffered psychiatric illness as a result of their childhood sexual abuse and, accordingly, that they satisfy the statutory preconditions for obtaining an order extending the limitation period: s 60I(1).

13 On 20 June 2008, the respondents filed a motion in each proceeding seeking orders pursuant to Uniform Civil Procedure Rules 2005 (“UCPR”) r 13.4, summarily dismissing the proceedings. UCPR r 13.4 relevantly provides as follows:

“(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).”

14 The primary Judge (Mathews AJ) heard both motions together on 16-17 March 2009. A substantial body of documentary evidence was adduced on the hearing of the motions. Each of the applicants gave affidavit evidence detailing sexual abuse by the stepfather, including sexual abuse that occurred for a period of about 10 months after 20 April 1983.

15 Her Honour delivered judgment on 28 April 2009. She made orders in each case dismissing the proceedings generally and requiring the applicants to pay the respondents’ costs. Her Honour held that no reasonable cause of action was disclosed in either ASC and that the situation could not be rectified by any form of amendment.

16 The applicants seek leave to appeal from the decisions of the primary Judge, although they maintain that they do not require leave as the orders made by her Honour finally disposed of the rights of the parties and were therefore final and not interlocutory in character: cf Supreme Court Act 1970 (“SC Act”), s 101(2)(e). The respondents say leave is necessary because the orders were made by the primary Judge on an application for summary judgment: SC Act, s 101(2)(l).

17 Leave to appeal is necessary, by reason of the express terms of s 101(2)(l) of the SC Act. Leave should, however, be granted. The orders made by the primary Judge effectively terminated the applicants’ claims for damages and, as will be apparent from the reasons which follow, in my view her Honour erred in summarily dismissing the proceedings. The reasons also explain why the appeal should be allowed.

NON-PUBLICATION ORDER

18 On 16 March 2009, the first day of the hearing before the primary Judge, her Honour ordered that:

the applicants thereafter should be referred to by the pseudonyms “TB” and “DC”, respectively, and that the Officer should be referred to by the pseudonym “CQ”; and

pursuant to s 72 of the Civil Procedure Act 2005 (“CP Act”), there should be no publication or disclosure of any information tending to reveal the identity of the applicants or the Officer.

19 The primary Judge made the orders in respect of the applicants on the application of their senior counsel, without opposition. The respondents’ counsel then invited her Honour to make a similar order in respect of the Officer as a matter of “symmetry”. The primary Judge acceded to this application without giving substantive reasons.

20 In August 2005, several years before the present proceedings were instituted, the stepfather was found guilty in the District Court of a number of sexual offences committed against the applicants. Each of the applicants gave evidence at the stepfather’s trial (although he ultimately pleaded guilty to the charges). Since the applicants were children at the time of the offences, s 11(1) of the Children (Criminal Proceedings) Act 1987 (“C (CP) Act”) had the effect, without the need for any court order, that the names of the applicants could not “be published or broadcast in a way that connects [them] with the criminal proceedings”: see s 11(1)(a), (b). (Section 11 of the C (CP) Act was repealed by the Children (Criminal Proceedings) Amendment (Naming of Children) Act 2009. However, the 2009 Act introduced s 15A into the C (CP) Act, which is in very similar terms to s 11: see now s 15A(1)(a), (b).)

21 In view of s 11(1) of the C (CP) Act, it was appropriate and indeed necessary for pseudonyms to be used in the present proceedings to ensure that the names of the applicants were not connected with the criminal proceedings. The primary Judge in the present case did not need to make a non-publication order under s 72 of the CP Act, since s 11 of the C (CP) Act operates of its own force. Nonetheless, making the order perhaps had the advantage of drawing the attention of any observer of the proceedings to the importance of not publishing the names of the applicants. In any event, it is appropriate that this Court continue referring to the applicants by their pseudonyms.

22 The position of the Officer is different. She gave evidence in the stepfather’s criminal trial, but there was no restraint imposed on publication of her name, whether by s 11 of the C (CP) Act or otherwise.

23 Section 72 of the CP Act empowers the Court to prohibit the publication or disclosure of any information tending to reveal the identity of a party to proceedings if:

“it is of the opinion that it is necessary to do so to secure the proper administration of justice in the proceedings”.

There was no evidence before the primary Judge that supported a finding that an order under s 72 of the CP Act prohibiting publication of the Officer’s name was necessary to secure the proper administration of justice. The mere fact that the applicants allege that the Officer breached a duty of care owed to them could not provide a basis for a non-publication order. Similarly, no evidentiary basis has been established for this Court to make a non-publication order in relation to the Officer. Nor was it suggested that identifying the Officer would connect the applicants with the criminal proceedings, or otherwise identify them. Accordingly, the order made by the primary Judge on 16 March 2009, insofar as it relates to the Officer, should be discharged.

LEGISLATION

24 The applicants’ case founded on breach of duty requires reference to the power and duties imposed on the Director of YACS and others by the Child Welfare Act 1939 (“CW Act”), as in force in 1983. Section 148B of the CW Act provided as follows:

“(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.”

25 Part XIV of the CW Act, now repealed, provided for “neglected or uncontrollable children” to be “apprehended” under a warrant and brought before a court. The expression “neglected child” was defined to include a child who was “ill-treated or exposed” or who was “exposed to moral danger”: s 72(d), (n). If a court found that a child was neglected, it could make any of a number of orders: s 82(1). These included committing the child to the care of a responsible person on such terms as the court thought fit or committing the child to the care of the Minister to be dealt with as a ward admitted to “State control”: s 82(1)(c), (d). Where it appeared to a court that an offence had been committed in the case of a child brought before the court, and that the health or safety of the child was likely to be endangered, the court could make such order as circumstances required for the care of the child until a reasonable time had elapsed for the bringing of charges against the alleged perpetrator: s 136(1).

PLEADINGS

26 Each applicant pleads her case in an amended statement of claim. The pleadings identify a number of causes of action, including breach of duty, “criminal misconduct”, breach of fiduciary duty and misfeasance in public office. However, both before the primary Judge and in this Court, Mr Morrison SC, who appeared with Mr Carr for the applicants, indicated that the applicants do not rely on any cause of action other than breach of duty.

27 As Mr Morrison acknowledged in this Court, there are deficiencies in each ASC insofar as they plead a case based on breach of duty. The nature of the applicants’ case, as explained in her Honour’s judgment, is not precisely as pleaded (even allowing for some amendments not formally made but assumed by her Honour to have been made). Nonetheless it is convenient to outline the applicants’ pleaded case. I do so by reference to the ASC filed on behalf of TB, the older sister.

28 At all material times the Officer was employed by YACS as a District Officer at the Blacktown Office and the State is vicariously liable for her acts and conduct (pars 2, 3). As at 20 April 1983, when TB was 15 years old, the respondents had a duty to take reasonable care of her (pars 4, 5).

29 From about late 1974 until shortly before 20 April 1983, TB was subjected to frequent physical and sexual assaults by her stepfather (par 6). Despite repeated complaints about the assaults made by TB to her mother, the mother took no action to bring the assaults to an end (pars 7, 8). Following a violent assault by the stepfather in early April 1983 (par 9), TB made a complaint to YACS shortly before 20 April 1983 (par 10).

30 On 20 April 1983, TB was interviewed by the Officer and a record of interview prepared (par 12). On the same day, the Officer interviewed TB’s mother who acknowledged that she was aware of the stepfather’s conduct (par 13).

31 On 2 May 1983, the Officer sought an order from a Children’s Court that TB be charged with being “a neglected child within the meaning of the Child Welfare Act 1939 ... in that she is ill-treated” (par 14). The matter was stood over until 9 May 1983, when TB was released into the care of her mother (par 16). On 20 June 1983, the matter returned to court, the complaint was established and the matter was stood over until 19 September 1983 (par 17).

32 On 15 September 1983, the Officer interviewed the stepfather who admitted having sexually interfered with the sisters (par 18). On 19 September 1983, the Officer prepared a report for the Children’s Court which recorded the stepfather’s admission (par 19). On 24 October 1983, the Children’s Court made orders that TB reside with her mother until TB attained the age of 18, and that any contact with the stepfather be supervised (par 20).

33 From 20 April 1983, whenever TB was required by her mother to allow the stepfather to visit the family home or when TB was forced by her mother to visit the stepfather, he “persisted on each occasion in trying to sexually assault [TB]” (par 22). During 1983 and 1984, TB came before the Children’s Court on several occasions but, other than for short periods in foster homes, the Court released her into her mother’s care on the Officer’s recommendation (par 23).

34 In 2001, TB reported the sexual assaults to the police (par 27). The stepfather was arrested on 3 June 2004 and charged with a number of offences (par 32). The stepfather’s trial commenced on 2 August 2005 and on 5 August 2005 he pleaded guilty to eight charges of physical or sexual assault, each of which occurred before 1983 (pars 34, 35). In addition, he pleaded guilty to one charge of assaulting TB between 1 January and 1 December 1983 (par 34). On 12 September 2006, the stepfather was sentenced to a term of 10 years imprisonment, with a non-parole period of four years (par 38).

35 The ASC pleads a case based on breach of duty as follows:

“39. [TB] says that as from 20 April 1983, both [respondents] owed her a duty of care and were negligent in not taking reasonable care of her.

...

40. [TB] says that the following matters are to be taken into account in determining whether the relationship between [TB] and each [respondent] imports a duty of care.

(a) As from 20 April 1983, the relationship between the [respondents] and [TB] was close and the [respondents] ought to have had [TB] in their contemplation when considering the conduct of the stepfather...

(b) [TB] was aged 15 years and nearly 9 months and was vulnerable after years of repeated physical and sexual abuse.

(c) The statutory powers contained in the Child Welfare Act 1939 relate to an individual such as [TB] and such connection will arise because the statutory powers are granted to assist a vulnerable Plaintiff.

(d) the [respondents] had a special ability to control or minimise risk to [TB] given their knowledge of the conduct of the said stepfather....

Particulars of Negligence

...

(g) Failure to report suspicious and/or admissions of felonious conduct by [the stepfather] to the police forthwith.

...

(j) Further in the alternative the [State] by its servant the Director if notified of the said admissions by [the stepfather] failed to report such admissions to the police forthwith.

41. [TB] further says that both [respondents] in the performance of their respective duty to take reasonable care of [TB] were required, as a matter of law to report to the New South Wales Police their knowledge of the committing of indictable offences by [the stepfather] against [TB].

42. [TB] says that in breach of the duty of care owed to her, [the Officer] was negligent and the [State] by its servant the Director were [sic] negligent in failing to report the committing of such indictable offences ....

...

45. [TB] further says that the [Officer] was personally negligent in taking reasonable care of [TB] in all the circumstances.”

36 The primary Judge approached the case upon the basis that the ASC filed on behalf of TB includes the following particulars to par 41:

“Particulars of Breach of Duty

Failure to inform the New South Wales Police of the allegations of physical and sexual abuse of the [applicants] by [the stepfather] following investigations made by both defendants including statements made by the [applicants] and their mother and the making of admissions to the [Officer] by [the stepfather] on 15 September 1983.”

THE PRIMARY JUDGMENT

37 The primary Judge considered it appropriate to deal first with the respondents’ motion seeking to have the proceedings dismissed, since if that motion was successful it was unnecessary to address the limitations issue. Her Honour recognised that the applicants’ claims could be summarily dismissed only if they were so obviously untenable that they could not possibly succeed or were manifestly groundless: Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125. Her Honour also observed that identical issues of law were raised in the two sets of proceedings and that any differences in factual details had no bearing on the legal issue.

38 The primary Judge first set out the factual background, based on the evidence adduced on the motions. Her account generally supports the factual elements of the cases pleaded by the applicants. However, the primary Judge’s account of the evidence includes the following:

For the purposes of a court hearing on 20 June 1983, the Officer prepared a report which stated that it was vital that the applicants:

“be protected from the possibility of further abuse and from living in fear of abuse”.

The report recommended that the applicants be released to the care of their mother on condition that they not reside with their stepfather and that any contact between the applicants and the stepfather occur only if they requested it.

In a report of 19 September 1983, the Officer recorded that the stepfather had been making regular visits to the home and that TB was “terrified” of him, particularly as she had exposed the abuse perpetrated by him. Notwithstanding that on 15 September 1983 the stepfather had freely admitted sexually interfering with both applicants, the report prepared four days later made no mention of any sexual abuse during the period since April 1983.

Further court hearings took place on 19 September 1983 and 24 October 1983. On the latter occasion, the sisters were again released into the care of their mother on the same conditions as before.

The stepfather’s abuse of the sisters continued until March 1984.

The applicants were first advised of the possibility that they might have a cause of action against the respondents in March 2007. As previously noted, the present proceedings were instituted in May 2008.

39 The primary Judge referred to par 41 of the ASC and recorded that the applicants had submitted that the respondents were obliged to report the stepfather’s offences to the police by virtue of the offence of misprision of felony which formed part of the common law in 1983: Sykes v Director of Public Prosecutions [1962] AC 528. However, her Honour noted that Mr Morrison had disavowed any assertion of criminal misconduct on the part of the respondents as a separate head of claim. Her Honour also recorded her understanding that the applicants were seeking to rely on the offence of misprision of felony merely to show that the applicants had an obligation to report the matter to the police:

“thereby giving content to the duty of care which the [respondents] were said to have owed to the [applicants]. It was for this purpose only that the [applicants] sought to rely upon misprision of felony, namely as advancing their claim in negligence”.

(I interpose that the offence of misprision of felony was abolished in New South Wales by the Crimes (Public Justice) Amendment Act 1990: see now Crimes Act 1900, s 341. However, the abolition was prospective only and did not apply in relation to offences committed before the commencement of the 1990 Act: see Crimes Act 1900, s 340.)

40 Her Honour observed (at [50]) that the ASC claimed, in effect, that the respondents had been negligent in failing to report the applicants’ allegations to the police immediately upon their becoming aware of them or, alternatively, upon the stepfather admitting the sexual abuse. In her Honour’s view (at [54]), the decision of the Court of Appeal in TC v State of New South Wales [2001] NSWCA 380 established, at least on an arguable basis, that:

“once the matter had been reported to the Department under s 148B [of the CW Act], a common law duty of care was established in the [respondents] to take reasonable care for the [applicants’] safety in the performance of their statutory obligations.”

This view of TC had not been disputed by the respondents, who had conceded that her Honour was bound by TC to find, for the purposes of a summary dismissal application, that a duty of care existed. The only dispute related to the nature or content of that duty.

41 The primary Judge then turned to the nature of the duty of care. She described (at [56]) the “essence” of the applicants’ case as that the respondents:

“had an obligation to inform the police of any criminal offences which came to their notice. This obligation arose by virtue of the common law offence of misprision of felony, which the [respondents] submit still existed in the early 1980s. This obligation was said to give content to the duty of care which the [respondents] owed to the [applicants] once the matter was reported to them under s 148B of the Act. In other words, the [respondents] were under a duty to the [applicants] to report any criminal offences to the police or the prosecuting authorities. This they failed to do, notwithstanding their certain knowledge by September 1983 that [the stepfather] had been sexually abusing the [applicants].”

42 Her Honour considered (at [62]) that the only arguable duty that the applicants could extract from TC was a duty to take reasonable care in the discharge of the mandatory requirements of s 148B of the CW Act. But the applicants were not alleging any breach of that duty:

“The duty which they seek to rely upon goes to a completely different matter, namely the reporting of criminal offences to the police”.

43 The primary Judge continued as follows:

“63. It follows, in my view, that, far from assisting the plaintiffs, TC operates against them. If it is merely an ‘arguable’ proposition that the [respondents] owed the [applicants] a duty to take reasonable care in the exercise of their mandatory statutory obligations, I would regard it as an untenable one that the [respondents] owed the duty now asserted by the [applicants]. This claimed duty not only goes significantly beyond any mandatory obligation under s 148B, but is arguably inconsistent with that provision.

64. There are other matters, both of principle and practice, which support this conclusion. The Department’s primary obligation, upon receiving a notification under s 148B, is to act in the best interests of the child concerned. The needs of abused or neglected children vary significantly, and flexibility will always be required in order to secure an outcome which is appropriate to the particular case. Even when a criminal offence has been committed, it might not be in the child’s best interests for the matter to be reported to the police. Some years later the legislation was amended so as to require that sexual offences against children which came to the notice of the Department must be reported to the police. However no such provision existed in 1983. The welfare of the child remained the primary concern of the Department. In the present case the Children’s Court was notified that the two [applicants’] had been the subject of criminal abuse at the hands of [the stepfather] and was requested to make an order which would protect them from a continuation of that abuse. The orders made by the Court, if adhered to by the [applicants’] mother, would have had that effect. In other words, the abuse continued after those court proceeding[s], not because of any inadequate response on the part of the [respondents] or the court, but because the [applicants’] mother refused to follow the court orders. Mr Morrison submitted that, had the police been notified of [the stepfather’s] criminal behaviour, [the stepfather] would have been arrested, charged and perhaps placed into custody. Even if he had been granted bail, the conditions would have precluded any contact with the [applicants]. Given the extreme consequences of breaching his bail undertakings, [the stepfather] would, in that event, have desisted his abuse of the [applicants].

65. The scenario painted by Mr Morrison in this respect contains many imponderables. In a statement annexed to her affidavit, DC said that some time in 1983 the [Officer] took her to Blacktown Police Station in relation to [the stepfather’s] assaults. She was told (although it is not clear by whom) that [the stepfather] could not be charged, as both TB and she would have to make a complaint, and TB would not be able to cope with the court proceedings. Moreover, when the [applicants] finally went to the police in 2001 and made formal complaints about [the stepfather’s] sexual abuse, it took a further three years before he was charged. Admittedly that was many years later, and the complaints at that stage probably required extensive investigation. But it serves to illustrate that, even had the [respondents] reported the matter to the police, the outcome to the [applicants] might well have been no different.

66. This does not go directly to the issues raised in this application, which is concerned with conceptual rather than factual matters. However, it does give weight to my ultimate finding in this matter, namely that any duty owed by the [respondents] to the [applicants] did not extend to a duty to report [the stepfather’s] criminal activity to the police.”

44 The primary Judge expressed her conclusion as follows:

“It follows that no reasonable cause of action is disclosed in the [ASCs]. Nor can the situation be rectified by any form of amendment. It is therefore unnecessary to discuss the limitations issue. The conclusion is inevitable that the proceedings must be dismissed under r 13(1) of the UCPR.”

SUBMISSIONS

45 The applicants’ argument in this Court is essentially that the primary Judge misapprehended the nature of the case they were propounding. According to Mr Morrison, as the primary Judge correctly recorded (at [54]), it was common ground before her Honour that the respondents arguably owed a common law duty of care to each of the applicants to take reasonable care for her safety in the performance of their statutory obligations and the exercise of their statutory powers under s 148B of the CW Act. This was so notwithstanding that, as Mr Morrison acknowledged, the ASC does not plead the duty in precisely these terms.

46 Mr Morrison submitted that the significance of the applicants’ reliance on the common law offence of misprision of felony, as her Honour also correctly noted (at [43]) was merely to “give content to the duty of care” owed by the respondents. Her Honour had mistakenly understood the applicants’ case as resting entirely on the proposition that the duty of care owed by the respondents was necessarily breached, as a matter of law, if they failed to report the allegations against the stepfather as soon as practicable after they were drawn to the attention of YACS in April 1983 or, at least, as soon as practicable after the stepfather acknowledged the abuse in the interview of September 1983.

47 Mr Morrison accepted that the ASC pleads (par 41) that performance of the duty to take reasonable care of the applicants required the respondents, as a matter of law, to report to the New South Wales Police their knowledge of the commission of indictable offences by the stepfather. However, the case as put to the primary Judge was not confined to the pleading in par 41. It included the contention that, whether or not the respondents had an obligation as a matter of law to report the stepfather’s offences to the Police, it was a breach of their duty to exercise reasonable care for the safety of the applicants not to report the offences. Had that been done, the likelihood is that the applicants would have been spared further abuse by their stepfather. Once the case was put that way, it was a question of fact, to be resolved at a trial, as to whether the respondents had failed to exercise reasonable care for the safety of the applicants by neglecting to inform the Police of the allegations of sexual abuse. The primary Judge should not have summarily dismissed the proceedings and, to the extent necessary, should have given the applicants leave to amend their pleadings.

48 Mr Harvey, who appeared for the respondents, acknowledged that the primary Judge was required to accept, on the authority of TC, that the respondents owed the appellants a duty of care in the discharge of the mandatory requirements of s 148B of the CW Act, once the stepfather’s sexual abuse had been reported to YACS in April 1983. Moreover, Mr Harvey accepted that it was arguable that in 1983, by reason of the decision of the House of Lords in Sykes v Director of Public Prosecutions, the common law offence of misprision of felony applied in New South Wales.

49 Mr Harvey argued, however, that the issue was not whether the respondents owed a duty of care to the applicants, but whether the duty of care could reasonably comprehend the failure to report a criminal offence to the Police as a foundation of a cause of action in negligence. He submitted that the applicants had based their claim as to the scope of the duty of care upon the common law offence of misprision of felony. But the common law was concerned with enforcement of the criminal law, not with the exercise of a discretion conferred by statute. The existence of the offence could not support a duty on the part of the respondents which extended to requiring them to report suspected sexual abuse to the Police.

REASONING

50 The concession made by the respondents concerning the existence of the duty of care identified by the primary Judge was founded on the judgment of Mason P (with whom Priestley and Beazley JJA agreed) in TC. His Honour expressed the view in that case (at [117], [125]) that it was arguable that the State, through YACS, owed a duty to exercise reasonable care in the discharge of the mandatory requirements of both limbs of s 148B(5) of the CW Act: that is, the requirements that upon YACS receiving a notification under s 148B(2) or (3) of the CW Act, it was to cause an investigation to be promptly made into the matters notified and, if satisfied that the child may have been assaulted or ill-treated, to take such action as the Director thought appropriate, including reporting matters to the Police.

51 The observations in TC were obiter dicta, but since the respondents did not challenge the existence of the duty of care relied on by the applicants, it is not necessary to explore the course of authority after TC. Nonetheless, it should be noted that subsequent authority tends to support the views expressed by Mason P. In Stuart v Kirkland-Veenstra [2009] HCA 15; 237 CLR 215, the High Court held that a statutory power to act in a particular way is a necessary precondition to the liability of a public authority for breach of a duty of care: at [5], per French CJ; at [112], per Gummow, Hayne and Heydon JJ (“joint judgment”); at [149], per Crennan and Kiefel JJ. The joint judgment pointed out (at [112]-[113]) that although power is a necessary condition:

“it is not a sufficient condition. Statutory power to act in a particular way, coupled with the fact that, if action is not taken, it is reasonably foreseeable that harm will ensue, is not sufficient to establish a duty to take that action. Rather ... the existence or otherwise of a common law duty of care owed by a statutory authority (or in this case the holder of statutory power) ‘turns on a close examination of the terms, scope and purpose of the relevant statutory regime’. Does that regime erect or facilitate ‘a relationship between the authority [here the holder of statutory power] and a class of persons that, in all the circumstances, displays sufficient characteristics, answering the criteria for intervention by the tort of negligence’?

Evaluation of the relationship between the holder of the power and the person or persons to whom it is said that a duty of care is owed will require examination of the degree and nature of control exercised over the risk of harm that has eventuated, the degree of vulnerability of those who depend on the proper exercise of the relevant power, and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. Other considerations may be relevant.” (Citations omitted.)

52 In applying this principle, it is difficult to think of a more vulnerable class of persons than children subjected to sexual abuse by parents or guardians. It is self-evident that the risk of harm to a child exposed to an abusive parent or guardian may be very high. Therefore the value of personal autonomy that is said to inform much of the common law of negligence (Stuart v Kirkland-Veenstra, at [88] (joint judgment); CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 260 ALR 606, at [38], [54], per Gummow, Heydon and Crennan JJ) does not militate against the existence of a duty of the kind relied on here. Nor would there seem to be any lack of coherence between the imposition of a duty of care on the State when notified of sexual abuse of a child and the statutory framework governing the welfare of children as in force in 1983: cf Sullivan v Moody [2001] HCA 59; 207 CLR 562, at 581-582 [55]-[60], per curiam; CAL No 14, at [39]-[42]. See also SB v State of New South Wales [2004] VSC 514;13 VR 527, at 549ff [132]ff, per Redlich J (where the authorities are reviewed).

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.

57 The primary Judge perhaps may have been misled to some extent by the way the applicants presented their argument to her. Even so, the case upon which they now rely was before the primary Judge. In my opinion, her Honour erred in summarily dismissing the proceedings. If her Honour considered that the pleadings were deficient, the applicants should have been given an opportunity to file a further amended statement of claim pleading more fully the case founded on the respondents’ alleged breach of their duty of care.

EXTENSION OF THE LIMITATION PERIOD

58 Since the primary Judge summarily dismissed each of the proceedings, her Honour did not deal with the applicants’ motions seeking extensions of the limitation period. Those motions remain outstanding.

59 Mr Morrison invited this Court to determine the applicants’ motions on the basis of the findings made by the primary Judge and to make orders in each case extending the limitation period. However, Mr Harvey pointed out that her Honour had not expressly made findings that the requirements of s 60I of the Limitation Act had been satisfied. Moreover, even if the preconditions specified in s 60I were satisfied, the Court still had to make a determination as to whether or not it was “just and reasonable” to extend the limitation period: s 60G(2). As Mr Harvey noted, the issue had not been canvassed in the parties’ written submissions to this Court, except by way of a fleeting reference in the applicants’ submissions.

60 Mr Harvey indicated that the respondents wished to contend that the preconditions specified in s 60I of the Limitation Act had not been satisfied and that, even if they had been, it was not just and reasonable to extend the limitation period. These issues should be remitted to the Common Law Division for determination.

ORDERS

61 I propose the following orders in each matter:

1. Leave to appeal is granted.

2. Appeal allowed.

3. Set aside the orders made by the primary Judge on 28 April 2009.

4. In lieu thereof, order that the motion for summary dismissal filed by the respondents be dismissed, and that the respondents pay the applicants’ costs of the motion.

5. Each applicant be given leave to file a further amended statement of claim within 28 days.

6. The proceedings be remitted to the Common Law Division for determination, including determination of the motion filed by the applicant seeking an extension of the limitation period.

7. The non-publication orders made by the primary Judge on 16 March 2009 be discharged to the extent that they refer to the second respondent (the Officer).

8. The respondents pay the applicants’ costs of the appeal, including the application for leave to appeal.

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LAST UPDATED:
22 February 2010