Niass v State of New South Wales [2020] NSWSC 1753

Niass v State of New South Wales [2020] NSWSC 1753

Leave to file the September 2020 pleading was refused because the proposed pleading was prolix, confusing, vague and embarrassing; it pleaded an impermissibly broad single duty of care against the State, the Minister and all persons appointed under s 5 of the Child Welfare Act 1939 without engaging with their...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
10 December 2020
Procedural Posture
Civil Proceedings Claiming Damages Against the State of New South Wales for Alleged Physical and Sexual Assaults While Detained at Juvenile Justice Institutions / Interlocutory Application for Leave to File an Amended Statement of Claim in the Form of the September 2020 Pleading
Outcome
Application dismissed; plaintiff ordered to pay the defendant's costs; proceedings stood over for further directions.
Legal Topics
['amendment of Pleadings' 'form and Content of Pleadings' 'duty of Care' 'section 5 B of the Civil Liability Act 2002' 'actual and Constructive Knowledge of Risk of Harm' 'vicarious Liability of the Crown' 'juvenile Justice Institutions']
['civil Procedure' 'negligence' 'vicarious Liability' 'crown Liability'] ['amendment of Pleadings' 'form and Content of Pleadings' 'duty of Care' 'section 5 B of the Civil Liability Act 2002' 'actual and Constructive Knowledge of Risk of Harm' 'vicarious Liability of the Crown' 'juvenile Justice Institutions']

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Procedural Posture

Civil Proceedings Claiming Damages Against the State of New South Wales for Alleged Physical and Sexual Assaults While Detained at Juvenile Justice Institutions / Interlocutory Application for Leave to File an Amended Statement of Claim in the Form of the September 2020 Pleading

Legal Issues

  1. 1 ['Whether leave should be granted to file the proposed September 2020 amended Statement of Claim' 'Whether the pleaded duty of care was too broad and failed to engage with the relevant statutory powers and functions' 'Whether the pleading properly articulated the risk of harm and the knowledge required by s 5B of the Civil Liability Act 2002' 'Whether the pleading properly pleaded the elements of vicarious liability of the Crown' 'Whether the proposed pleading was vague, prolix, confusing or embarrassing']

Ratio Decidendi

Leave to file the September 2020 pleading was refused because the proposed pleading was prolix, confusing, vague and embarrassing; it pleaded an impermissibly broad single duty of care against the State, the Minister and all persons appointed under s 5 of the Child Welfare Act 1939 without engaging with their different statutory powers and functions; it failed to plead clearly the risk of harm and actual or constructive knowledge required by s 5B of the Civil Liability Act 2002; and it failed to plead appropriately the necessary elements of statutory vicarious liability of the Crown.

Court Disposition

Application dismissed; plaintiff ordered to pay the defendant's costs; proceedings stood over for further directions.

Orders

  • ['Application for leave to file an amended pleading in the form of the September 2020 pleading is dismissed.' "Order the plaintiff to pay the defendant's costs of the application." 'Stand over the proceedings for further directions to Friday 12 February 2021 at 9am before Garling J.']