AR v State of New South Wales [2011] NSWSC 94 (2 March 2011)

Last Updated: 14 April 2011

Supreme Court New South Wales

Case Title:	AR v State of New South Wales
Medium Neutral Citation:	[2011] NSWSC 94
Hearing Date(s):	17 August, 7 September, 21 September, 8 November 2010, 31 January 2011
Decision Date:	02 March 2011
Jurisdiction:
Before:	Hislop J
Decision:	1. The plaintiffs are to file and serve an amended statement of claim within 28 days from the date of this judgment. The defendant is to file and serve its defence to the amended statement of claim within 14 days of service of the amended statement of claim. The plaintiffs are to file and serve a reply, if required, within 14 days of service of the defence. 2. The defendant's application to strike out the plaintiffs' causes of action in negligence and breach of statutory duty in reliance upon Sullivan v Moody; Thompson v Connon is dismissed. 3. The plaintiffs' application to refer the matter to mediation at this stage is dismissed. 4. The plaintiffs' application to dismiss the defendant's notice of motion is dismissed. 5. The proceedings are stood over to 6 May 2011 before me for directions. 6. The costs of all applications are reserved. 7. Liberty to the parties to apply on three days notice.
Catchwords:	Common law - practice and procedure - litigants in person - deficient pleadings - strike out application.
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 Community Welfare Act 1972 (SA) Civil Procedure Act 2005
Cases Cited:	Sullivan v Moody; Thompson v Connon [2001] HCA 59; (2001) 207 CLR 562 Ruddock v Taylor [2005] HCA 48, (2005) 222 CLR 612 at [140] General Steel Industries v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 Bauskis v Thomson [2011] NSWSC 27 at [23]
Texts Cited:
Category:	Procedural and other rulings
Parties:	AR (1st Plaintiff) SS (2nd Plaintiff) Re Luke (3rd Plaintiff) Re Georgia (4th Plaintiff) The State of New South Wales (Defendant)
Representation
- Counsel:	Counsel: Plaintiffs: In person Defendant: G. Moore
- Solicitors:	Solicitors: Defendant: Crown Solicitor's Office
File number(s):	2009/291716
Publication Restriction:

Judgment

Introduction

1. The defendant, by notices of motion filed herein, sought the following orders:
   

Notice of Motion dated 18 February 2010

"1. The matter to be transferred to the Common Law Division of the Supreme Court.

2. Pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005, the proceedings brought by the first and second plaintiffs be dismissed generally in relation to their claim as no reasonable cause of action is disclosed.

3. Pursuant to rule 6.3(b) of the Uniform Civil Procedure Rules 2005, the proceedings should be commenced by statement of claim."

Notice of Motion filed 3 August 2010

"1. Pursuant to Rule 13.4 of the Uniform Civil Procedure Rules 2005, the proceedings brought on behalf of the third and fourth plaintiffs be dismissed generally in relation to their claim as there is no reasonable cause of action disclosed on the face of the pleadings and the proceedings are an abuse of the process of the Court."

Notice of Motion filed 17 August 2010

"1. Pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005, the proceedings brought on behalf of the first and second plaintiffs be struck out as:

a. The pleading does not disclose a reasonable cause of action; and

b. It has a tendency to cause prejudice, embarrassment or delay in the proceedings; and

c. Is otherwise an abuse of the process of the court.

2. Pursuant to Rule 14.28 of the Uniform Civil Procedure Rules 2005, the proceedings brought on behalf of the third and fourth plaintiffs be struck out as:

a. The pleading does not disclose a reasonable cause of action; and

b. It has a tendency to cause prejudice, embarrassment or delay in the proceedings; and

c. Is otherwise an abuse of the process of the court."

2. The plaintiffs, by notices of motion filed herein, sought the following orders:
   

Notice of Motion filed 1 July 2010

"1. Pursuant to r 7.14(2) of the Uniform Civil Procedure Rules 2005, the first and second plaintiffs act on behalf of the third and fourth plaintiffs' tutor.

2. Pursuant to r 20.2 of the Uniform Civil Procedure Rules 2005, the proceedings be referred to mediation.

3. The defendant's Notice of Motion to be dismissed generally in relation to their defence, as no reasonable cause of defence, Pursuant to Re: Georgia and Luke No. 2 [NSWSC] (1387) 2008.

4. Pursuant to s 56 Civil Procedure Act 2005, to facilitate the just, quick and cheap resolution of the real issues in the proceedings and any other order the Court deems fit."

Notice of Motion filed 31 January 2011

"1. Set aside current non-publication order pursuant to s 72 Civil Procedure Act , made on 26 February 2010."

3. Apart from orders 1 and 3 sought in the notice of motion dated 18 February 2010, which orders were made by consent on 26 February 2010, the applications are opposed.
   

Background - brief outline

4. The first and second plaintiffs are the parents of the third and fourth plaintiffs. The third plaintiff was born in June 2007.
   
5. Officers of the Department of Community Services (DOCS) took the third plaintiff into the care of the Director General shortly following her birth. The Director General commenced care proceedings in the Children's Court. On 7 August 2007 the third plaintiff was placed by the Department in the care of the first and second plaintiffs. On 12 March 2008 a care plan for the third plaintiff was filed in the Children's Court.
   
6. In August 2008 the fourth plaintiff was born. On 12 September 2008 officers of DOCS removed the third and fourth plaintiffs from their home.
   
7. Thereafter the third and fourth plaintiffs were kept in custody by DOCS. An application for approval of a care plan filed by DOCS was listed for hearing in the Children's Court on 27 January 2009.
   
8. The first and second plaintiffs made attempts to have the third and fourth plaintiffs returned to their custody. It is unnecessary to recount the detail of those attempts. They were unsuccessful.
   
9. Ultimately the first and second plaintiffs made an application by summons in the Equity Division of the Court seeking an order in the exercise of the court's parens patriae jurisdiction for the immediate return of the third and fourth plaintiffs to them. The Director General filed a notice of motion seeking dismissal of the summons on the ground that there were current proceedings in the Children's Court.
   
10. Palmer J heard the matter on 19 December 2008. He concluded the third and fourth plaintiffs had been forcibly removed on 12 September 2008 and thereafter kept in custody because of the gross abuse by certain DOCS' officers of the Department's power to take children into custody under the Children and Young Persons (Care and Protection ) Act 1998 "the Act"). He concluded the result of that action had been to remove young children from the care of good and nurturing parents for the previous 12 weeks and that by retaining the children in custody pending the conclusion of proceedings in the Children's Court the abuse was aggravated. His Honour concluded the circumstances were extraordinary and warranted the intervention of this Court. He observed "I infer that the action of the DOCS' officers in seizing these children on 12 December (sic September) 2008 was motivated by upset at the confrontation which they had had at the parent's home on that day. The parents were hostile but their experience with the DOCS officers gave them reason to be hostile. I find that the officers acted precipitately and irrationally in deciding that the situation satisfied the requirement that the children be seen to be placed in urgent need of emergency care by risk of violence".
    
11. His Honour made orders that the third and fourth plaintiffs be immediately returned to their parents. The third and fourth plaintiffs were returned to their parents with whom they remain.
    

The current proceedings

12. On 14 December 2009 a summons was filed in the Equity Division on behalf of all four plaintiffs seeking damages, including aggravated and exemplary damages, from The State of New South Wales, the Department of Community Services as first defendant and The State of New South Wales, the Department of Human Services as second defendant, in respect of the actions of DOCS outlined above.
    
13. On 26 February 2010 the matter came before Associate Justice Macready. A Consent to Act as Tutor for the third and fourth plaintiffs by the first plaintiff's father was filed. Orders were made by his Honour in accordance with short minutes of order signed by a solicitor representing the third and fourth plaintiffs and by the defendant (identified solely as the State of New South Wales). The signatures of the first and second plaintiffs do not appear on the short minutes though it seems that at least the second plaintiff was present when the orders were made. The orders were:
    

"By consent:

1 The first, second, third and fourth plaintiffs file a statement of claim by 19 March 2010.

2. The proceedings be transferred to the Common Law Division.

3. Order that the third and fourth plaintiffs' names not be published to reveal their identity pursuant to s 72 of the Civil Procedure Act .

4. The defendant's notice of motion filed 18 February 2010 be adjourned until 9 April 2010."

14. On 23 March 2010 statements of claim for each of the first and second plaintiffs were forwarded to the court for filing. The documents apparently were rejected by the court registry which returned them, directing that the plaintiffs file an amended statement of claim.
    
15. By letter to the registrar dated 29 June 2010 the first and second plaintiffs sought to file separate amended statements of claim on behalf of the first plaintiff, the second plaintiff and an amended statement of claim for the third and fourth plaintiffs. I have marked the amended statements of claim mfi:1-3 respectively.
    
16. On 17 August 2010 the notices of motion then extant were listed for hearing before me. The first and second plaintiffs represented themselves. There was no separate representation of the 3 rd and 4 th plaintiffs. The evidence of all parties was taken and the oral submissions of the defendant heard and the matter was then adjourned to enable the plaintiffs to further consider the matter and to obtain legal representation.
    
17. A number of issues are raised by the notices of motion. They are considered hereunder.
    

No reasonable cause of action disclosed by the first and second plaintiffs' pleadings (defendant's notices of motion dated 18 February 2010 [2], filed 17 August 2010[1(a)])

18. The defendant submitted that the duty of care and statutory duty which the first and second plaintiffs contended was owed to them was precluded by the application of Sullivan v Moody ; Thompson v Connon [2001] HCA 59; (2001) 207 CLR 562 (" Sullivan ").
    
19. In those cases male parents sought to recover damages for distress and psychiatric injury as a result of false accusations that they had sexually abused their children. The allegations arose out of the alleged negligence of medical practitioners, social workers and department officers in examining the children and investigating the possibility of sexual abuse pursuant to the provisions of the Community Welfare Act 1972 (SA).
    
20. The High Court held that the duty of care for which the fathers contended did not exist.
    
21. The defendant submitted the factual circumstances of those cases were sufficiently similar to those in the present proceedings such that those cases should be applied. Accordingly the first and second plaintiffs' amended statements of claim should be struck out as disclosing no reasonable cause of action insofar as they relied upon negligence and breach of statutory duty.
    
22. The first and second plaintiffs submitted that Sullivan was factually different as it involved allegations of sexual assault which the present proceedings did not. Reference was made to Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 at [140].
    
23. The present case is factually different in that there are no allegations of sexual abuse. Moreover it is different because of the allegations of abuse of power; the DOCS officers dealt directly with the first and second plaintiffs and the harm suffered was a direct result of the conduct of those officers. Various causes of action are relied upon. A close analysis of the facts and circumstances will be necessary in order to determine if any part of the claim by the first and second plaintiffs is precluded by Sullivan . In my opinion the issue is arguable. No costs saving would result from the preliminary determination of this issue.
    
24. In General Steel Industries v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129 it was stated:
    

"... the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion."

25. In my opinion this is not a clear case. I am not satisfied the Court has "the requisite material and necessary assistance from the parties to reach a definite and certain conclusion". This application is refused
    

No reasonable cause of action disclosed by the third and fourth plaintiffs pleading (defendant's notices of motion filed 3 August 2010 [1] and 17 August 2010 [2(a)]).

26. The defendant in its notices of motion raised the issue that there was no duty owed to the third and fourth plaintiffs. However its counsel conceded that Sullivan was not concerned with any potential tortious liability to the children involved and the issue raised "... was an open issue, but the authorities are that we could not strike that out at this stage". I accept this concession and reject this application.
    

Deficiencies in the pleadings (defendant's notices of motion filed 3 August 2010 [1] and 17 August 2010 [1(b)(c), 2(b)(c)])

27. As Garling J observed in Bauskis v Thomson [2011] NSWSC 27 at [23]:
    

" The purpose of pleadings is to enable a plaintiff to articulate the cause of action upon which he or she seeks relief, and to particularise it in a way to ensure that the real issues are identified and the case can move forward, based upon the real issues. In so far as a defendant is concerned, the purpose of the pleadings is to ensure that the defendant identifies, and only leaves for determination, such matters as are properly put in issue."

28. Adequate pleadings are of importance in achieving the purposes of s 56 Civil Procedure Act. The pleadings are particularly important in the present case where it is alleged that certain facts relied upon by the plaintiffs do not give rise to any causes of action.
    
29. The defendant submitted the plaintiffs' pleadings were deficient and that the amended statements of claim should be struck out or not permitted to be filed. In essence the defendant asserted that as there was but one action there should be but one statement of claim; it is impossible for the defendant to discern the precise causes of action relied upon (other than negligence); the causes of action are lumped together at the end; some of the claims for the first and second plaintiffs are mixed with some of the claims of the children; there is a failure on many occasions to indicate which of the plaintiffs is being referred to and occasionally the wrong plaintiff is the party referred to; the statement of claim for the second defendant does not plead a cause of action and the children's statement of claim simply recites a history of the proceedings, there are no particulars of negligence or other causes of action, some paragraphs are impermissible eg part para 26 of the second plaintiff's statement of claim and the paragraphs which simply quote portions of the judgment of Palmer J.
    
30. Although the first and second plaintiffs responded in submissions to the defendant's submissions, they are essentially well founded and repleading is required. Accordingly the amended statements of claim are struck out or not permitted to be filed. Leave to replead is granted.
    
31. UCPR 6.19(1) permits the joinder of plaintiffs in the one proceeding. It envisages a single statement of claim for all plaintiffs joined pursuant to that rule.
    
32. In order to meet the objections of the defendant in this regard, a single statement of claim should be used for all four plaintiffs. (Whether there is a risk of conflict of interest between the first and second plaintiff and the third and fourth plaintiffs such as to make it inadvisable to proceed under UCPR 6.19(1) will ultimately have to be determined but it is not necessary to do so at this time.)
    
33. The pleadings initially should set out the material facts common to all parties (this has already been done essentially in the amended statement of claim of the third and fourth plaintiffs which can be adapted as necessary).
    
34. Thereafter the statement of claim should distinguish between each plaintiff, perhaps by use of subheadings, 1 st plaintiff, 2 nd plaintiff, 3 rd plaintiff, 4 th plaintiff. Then, separately in respect of each plaintiff, each cause of action relied upon should be identified and the material facts in relation thereto pleaded and particularised (the causes of action relied upon by each plaintiff have been identified in the plaintiffs' submissions as false imprisonment (also referred to as trespass and deprivation of liberty), gross negligence, malicious prosecution (also referred to as abuse of process) and misfeasance in public office (also referred to as breach of statutory duty). Then should follow an allegation of resultant loss and damage with necessary particulars and, if claimed, the facts and circumstances relied upon to prove the claims for exemplary and aggravated damages.
    
35. Care should be taken to ensure that the particular plaintiff being referred to is correctly identified and that unnecessary paragraphs are excluded.
    
36. If any estoppel is alleged to arise from the judgment of Palmer J it will be necessary for the plaintiffs to file a reply to the defence to raise this issue.
    

Representation of third and fourth plaintiffs' tutor (Plaintiffs' notice of motion filed 1 July 2010 [1])

37. UCPR 7.14 provides:
    

"(1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor.

(2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor."

38. The first and second plaintiffs seek an order dispensing with the requirement that the tutor not carry on proceedings except by a solicitor and seek to represent the tutor themselves. The tutor has, by affidavit filed after 17 August 2010, supported this application.
    
39. The background as to the representation of the tutor is as follows:
    

(a) the tutor was originally represented by a solicitor who ceased to act on 21 July 2010. There is no evidence as to why he ceased to act;

(b) the tutor was not represented at the hearing on the 17 August 2010. That hearing was adjourned inter alia to enable legal representation to be obtained for the third and fourth plaintiffs;

(c) at the subsequent mention of the matter counsel appeared for the plaintiffs and the proceedings were adjourned;

(d) subsequently the plaintiffs informed the Court there was "a problem with the barrister". An email was enclosed from counsel which stated "The solicitors and I have come to the conclusion that we are able to represent you and your wife but there may be a conflict of interest if we also represent the children, they will need separate representation." Counsel did not thereafter appear in the proceedings;

(e) the plaintiffs made application to the Bar Association, apparently under the pro bono scheme. The second plaintiff informed the Court that she had been told the scheme would not take on the case.

(f) The position as at 31 January 2011 was as follows:

"Q. Is there at this stage any solicitor appointed to act for the tutor for the third and fourth plaintiffs at this stage?

FIRST PLAINTIFF: No, there is no solicitor.

HIS HONOUR: Is that likely to change?

FIRST PLAINTIFF: We have not really explored anything from the last occasion that we were before your Honour."

40. There are strong reasons why this application should be refused:
    

(a) the rule, prima facie, requires representation of the tutor by a solicitor;

(b) the first and second plaintiffs are not legally qualified;

(c) there is a possible conflict of interest. This is relied upon by the defendant who opposes the application, is referred to in counsel's letter [39(d)] and may arise in relation to the application for vacation of the non publication order or mediation;

(d) on at least one view of it, this is a complex and difficult matter where the retention of competent legal representation is necessary.

41. It is a matter for the first and second plaintiffs whether they retain legal representation for themselves or not. However, it would appear desirable that endeavours be made to obtain legal representation for the third and fourth plaintiffs, otherwise it may be necessary to consider staying the proceedings by the third and fourth plaintiffs pending appointment of a solicitor.
    
42. It would appear that, at least in part, the difficulty in obtaining and retaining legal representation results from the desire of the first and second plaintiffs to run the case in the manner they consider appropriate even if that differs from the legal advice proffered. I have permitted the 1 st and 2 nd plaintiffs to represent the 3 rd and 4 th plaintiffs on the pleading question at this stage for reasons of practicality. However it will be necessary to finally determine this issue on the next occasion if no solicitor has been retained in the meantime.
    

Mediation (plaintiffs' notice of motion filed 1 July 2010 [2])

43. The first and second plaintiffs have sought a referral of the proceedings to mediation at this stage.
    
44. Section 26 of the Civil Procedure Act 2005 provides:
    

"(1) If it considers the circumstances appropriate, the court may, by order, refer any proceedings before it, or part of any such proceedings, for mediation by a mediator, and may do so either with or without the consent of the parties to the proceedings concerned."

45. In my opinion there is little, if any, prospect of a successful mediation at this stage as:
    

(a) the pleadings are not complete;

(b) the third and fourth plaintiffs are not represented by a solicitor;

(c) the plaintiffs in their amended statement of claim seek total damages of $18 million;

(d) the defendant contends, and it is arguable that, the plaintiffs' causes of action in negligence and for breach of statutory duty are legally untenable;

(e) an attempt by the first and second plaintiffs and counsel for the defendant to resolve the matter was unsuccessful;

(f) the defendant is not confident anything would be achieved by mediation and does not seek it;

(g) it is likely the costs of the mediation would be wasted.

46. In my opinion the circumstances are not appropriate at this stage for a referral to mediation and the application is refused. The issue of mediation can be re-agitated at a later stage. In the meantime there is nothing to prevent the parties from endeavouring informally to settle the matter.
    

Dismissal of defendant's notice of motion - (plaintiff's notice of motion filed 1 July 2010 [3])

47. The first and second plaintiffs sought an order that:
    

"The defendant's notice of motion to be dismissed generally in relation to their defence, as no reasonable cause of defence."

48. The plaintiffs submitted, in effect, they have an unanswerable case by reason of the judgment of Palmer J and that the defendant should pay the plaintiffs' damages forthwith. The defendant dissents. As the defendant has yet to file its defence, this application would appear premature. The application is accordingly dismissed. If appropriate, the issue can be raised once a defence has been filed.
    

Non publication order (Plaintiffs' notice of motion filed 31 January 2011 [1])

49. The first and second plaintiffs seek to set aside a current non-publication order pursuant to s 72 Civil Procedure Act made on 26 February 2010.
    
50. In an affidavit sworn on 23 January 2011 in support of the notice of motion the second plaintiff deposed that:
    

"2. An order for non-publication made by Crown Solicitors on 26 February 2010, and was done without any discussion or consent by myself. The existing order is something the Court did not order, and unless the Court feels it warranted, I seek to have this order set aside...

7. At no time has any Justice in this Court, Supreme Court of New South Wales, ever ordered a non-publication order. This order has originated from Crown Solicitors, and has followed the proceedings without any discussion or consent from any of the four plaintiffs."

51. These assertions appear to be contrary, at least in part, to the Court's record referred to at [13]. The first plaintiff suggested that the relevant order had its genesis in an order made by Palmer J on 13 January 2009.
    
52. It will be necessary to obtain, if possible, the transcripts of Palmer J and Macready AsJ relating to the orders apparently made by them.
    
53. The vacation of the non-publication order may not be in the interests of the children. A conflict of interest may exist. There was no evidence the tutor had been given notice of the application.
    
54. In these circumstances, this application was not pressed.
    

Conclusion

55. As there are a number of matters which have not been concluded, I reserve the question of costs.
    

Orders

56. I make the following orders:
    

1. The plaintiffs are to file and serve an amended statement of claim within 28 days from the date of this judgment. The defendant is to file and serve its defence to the amended statement of claim within 14 days of service of the amended statement of claim. The plaintiffs are to file and serve a reply, if required, within 14 days of service of the defence.

2. The defendant's application to strike out the plaintiffs' causes of action in negligence and breach of statutory duty in reliance upon Sullivan v Moody; Thompson v Connon is dismissed.

3. The plaintiffs' application to refer the matter to mediation at this stage is dismissed.

4. The plaintiffs' application to dismiss the defendant's notice of motion is dismissed.

5. The proceedings are stood over to 6 May 2011 before me for directions.

6. The costs of all applications are reserved.

7. Liberty to the parties to apply on three days notice.

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