Maragol v Berry Patch Preschool Kellyville Ridge Pty Ltd [2024] NSWSC 1077

Maragol v Berry Patch Preschool Kellyville Ridge Pty Ltd [2024] NSWSC 1077

The impugned paragraphs were embarrassing and had a tendency to cause delay because they alleged regulatory obligations, powers, negligence and breach by the State without pleading the material facts necessary to show what conduct was required of the State, how the State should have exercised its regulatory powers, what precautions should have been taken, how the Civil Liability Act 2002 (NSW) applied, or how breach and causation were established. The State was therefore left to conjecture as to the case it had to meet, and the paragraphs were struck out under UCPR r 14.28.

Jurisdiction
Australia
Judgment Date
26 August 2024
Procedural Posture
Civil Negligence Proceedings Involving Alleged Breach of Duty of Care Arising From the Death of a Child at a Childcare Centre / Second Defendant's Motion on Notice to Strike Out Paragraphs of the Statement of Claim Under Uniform Civil Procedure Rules 2005 (nsw), R 14.28
Outcome
The Second Defendant's motion was granted; paragraphs [8], [9], [11], [21] and [22] of the Statement of Claim filed 30 June 2022 were struck out, and the Plaintiffs were ordered to pay the Second Defendant's costs of and incidental to the motion.
Legal Topics
['strike Out of Pleadings' 'embarrassing Pleading' 'duty of Care' 'novel Duty of Care' 'regulatory Authority Liability' 'civil Liability Act 2002 (nsw)' 'children (education and Care Services) National Law 2010 (nsw)']
['civil Procedure' 'negligence' 'personal Injury' 'education and Care Services Regulation'] ['strike Out of Pleadings' 'embarrassing Pleading' 'duty of Care' 'novel Duty of Care' 'regulatory Authority Liability' 'civil Liability Act 2002 (nsw)' 'children (education and Care Services) National Law 2010 (nsw)']

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Procedural Posture

Civil Negligence Proceedings Involving Alleged Breach of Duty of Care Arising From the Death of a Child at a Childcare Centre / Second Defendant's Motion on Notice to Strike Out Paragraphs of the Statement of Claim Under Uniform Civil Procedure Rules 2005 (nsw), R 14.28

Legal Issues

  1. 1 ['Whether paragraphs [8], [9], [11], [21] and [22] of the Statement of Claim should be struck out under UCPR r 14.28.' 'Whether the pleadings against the State sufficiently identified the material facts supporting a duty of care, breach, risk of harm, precautions and causation under the Civil Liability Act 2002 (NSW).' "Whether the pleadings adequately explained how the State's regulatory powers or functions under the National Law could give rise to liability."]

Ratio Decidendi

The impugned paragraphs were embarrassing and had a tendency to cause delay because they alleged regulatory obligations, powers, negligence and breach by the State without pleading the material facts necessary to show what conduct was required of the State, how the State should have exercised its regulatory powers, what precautions should have been taken, how the Civil Liability Act 2002 (NSW) applied, or how breach and causation were established. The State was therefore left to conjecture as to the case it had to meet, and the paragraphs were struck out under UCPR r 14.28.

Court Disposition

The Second Defendant's motion was granted; paragraphs [8], [9], [11], [21] and [22] of the Statement of Claim filed 30 June 2022 were struck out, and the Plaintiffs were ordered to pay the Second Defendant's costs of and incidental to the motion.

Orders

  • ['The Court strikes out paragraphs [8], [9], [11], [21] and [22] of the Statement of Claim filed 30 June 2022, pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 14.28.' "The Plaintiffs shall pay the Second Defendant's costs of and incidental to the motion."]