BB6 v State of New South Wales [2021] NSWSC 1516

BB6 v State of New South Wales [2021] NSWSC 1516

Leave to file the proposed Amended Statement of Claim was refused because the pleading did not accord with proper pleading principles. It failed to properly plead the position of the proposed third defendant under Division 4 of Part 1B of the Civil Liability Act 2002, did not adequately identify the statutory powers and content of the alleged duty of care, pleaded an imprecise and retrospective risk of harm across differing periods and circumstances, and did not plead vicarious liability by reference to the required relationships and factual features connecting each defendant with each alleged perpetrator.

Jurisdiction
Australia
Judgment Date
03 September 2021
Procedural Posture
Civil Procedure; Child Abuse Damages Proceedings / Notice of Motion Seeking Leave to File an Amended Statement of Claim
Outcome
Leave refused; Notice of Motion dismissed; plaintiff ordered to pay costs of the State of NSW and the Corporation; proceedings stood over for further directions with liberty to apply.
Legal Topics
['application for Leave to File Amended Statement of Claim' 'proper Pleading of Causes of Action' 'proceedings Against Unincorporated Associations' 'duty of Care of State and Institution' 'risk of Harm Under Civil Liability Act 2002' 'vicarious Liability for Abuse']
['civil Procedure' 'negligence' 'child Abuse Liability' 'limitation of Actions' 'vicarious Liability'] ['application for Leave to File Amended Statement of Claim' 'proper Pleading of Causes of Action' 'proceedings Against Unincorporated Associations' 'duty of Care of State and Institution' 'risk of Harm Under Civil Liability Act 2002' 'vicarious Liability for Abuse']

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Procedural Posture

Civil Procedure; Child Abuse Damages Proceedings / Notice of Motion Seeking Leave to File an Amended Statement of Claim

Legal Issues

  1. 1 ['Whether leave should be granted to file the proposed Amended Statement of Claim annexed to the affidavit dated 12 February 2021.' 'Whether the proposed third defendant was properly pleaded as liable under Division 4 of Part 1B of the Civil Liability Act 2002.' 'Whether the proposed pleading identified the alleged abuse, duty of care, risk of harm, breaches and vicarious liability with sufficient clarity and specificity.' "Whether the plaintiff's causes of action in negligence, deliberate or reckless infliction of injury, and trespass to the person/battery were properly pleaded."]

Ratio Decidendi

Leave to file the proposed Amended Statement of Claim was refused because the pleading did not accord with proper pleading principles. It failed to properly plead the position of the proposed third defendant under Division 4 of Part 1B of the Civil Liability Act 2002, did not adequately identify the statutory powers and content of the alleged duty of care, pleaded an imprecise and retrospective risk of harm across differing periods and circumstances, and did not plead vicarious liability by reference to the required relationships and factual features connecting each defendant with each alleged perpetrator.

Court Disposition

Leave refused; Notice of Motion dismissed; plaintiff ordered to pay costs of the State of NSW and the Corporation; proceedings stood over for further directions with liberty to apply.

Orders

  • ["Leave refused to the plaintiff to file the proposed Amended Statement of Claim in the form of Annexure A to the affidavit of the plaintiff's solicitor dated 12 February 2021." 'Plaintiff to pay the costs of the State of NSW and the Corporation of the Notice of Motion filed 12 February 2021.' 'Dismiss the Notice of...