"MA" & 2 Ors v Swanson & Anor [2004] NSWSC 30

"MA" & 2 Ors v Swanson & Anor [2004] NSWSC 30

The amended statement of claim discloses no reasonable cause of action as there is no duty of care owed to the plaintiffs (parents or child) in the factual circumstances pleaded, and the defamation claim is barred by absolute privilege; therefore, the statement of claim is struck out pursuant to Part 15 r 26 SCR.

Jurisdiction
Australia
Judgment Date
17 February 2004
Procedural Posture
Civil / Application to Strike Out Amended Statement of Claim; Review of Registrar's Decision
Outcome
Plaintiffs' amended statement of claim struck out; second defendant's notice of motion dismissed; plaintiffs ordered to pay second defendant's costs.
Legal Topics
['duty of Care of Public Authorities' 'breach of Statutory Duty' 'defamation and Absolute Privilege' 'strike Out Applications' 'children (care and Protection) Act 1987 (nsw)']
['common Law' 'child Protection Law' 'defamation Law'] ['duty of Care of Public Authorities' 'breach of Statutory Duty' 'defamation and Absolute Privilege' 'strike Out Applications' 'children (care and Protection) Act 1987 (nsw)']

Case Brief

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Procedural Posture

Civil / Application to Strike Out Amended Statement of Claim; Review of Registrar's Decision

Legal Issues

  1. 1 ['Whether defendants owed a duty of care to plaintiffs in child protection proceedings' 'Whether allegations of negligence, breach of statutory duty and defamation disclosed a reasonable cause of action' 'Whether absolute privilege applied to statements made in judicial proceedings']

Ratio Decidendi

The amended statement of claim discloses no reasonable cause of action as there is no duty of care owed to the plaintiffs (parents or child) in the factual circumstances pleaded, and the defamation claim is barred by absolute privilege; therefore, the statement of claim is struck out pursuant to Part 15 r 26 SCR.

Court Disposition

Plaintiffs' amended statement of claim struck out; second defendant's notice of motion dismissed; plaintiffs ordered to pay second defendant's costs.

Orders

  • ["The plaintiffs' amended statement of claim filed 3 September 2001 is struck out pursuant to Part 15 r 26 SCR." "The second defendant's notice of motion filed 6 May 2002 is dismissed." "The plaintiffs are to pay the second defendant's costs as agreed or assessed."]