DC v State of New South Wales (No 4); TB v State of New South Wales (No 4) [2013] NSWSC 207

DC v State of New South Wales (No 4); TB v State of New South Wales (No 4) [2013] NSWSC 207

Leave was granted because the proposed pleading, including paragraphs 52 to 55 concerning the defendants' duties of care and alleged breaches, fell within the parameters identified by the Court of Appeal and was not confined to a failure to report abuse to police. Although the pleading included factual material that might not all be material facts, the material was already well known from earlier hearings and, given the age of the events, it was preferable to allow the pleading so the trial could proceed as soon as possible.

Jurisdiction
Australia
Judgment Date
18 March 2013
Procedural Posture
Procedural Ruling in Common Law Proceedings Concerning Alleged Breach of Duty Arising From Sexual Abuse of Children / Notice of Motion Seeking Leave to File a Second Further Amended Statement of Claim
Outcome
Leave granted to both plaintiffs; costs reserved.
Legal Topics
['leave to Amend Pleadings' 'statement of Claim' 'duty of Care' 'vicarious Liability' 'sexual Abuse of Children' 'witness Immunity']
['civil Procedure' 'negligence' 'child Welfare'] ['leave to Amend Pleadings' 'statement of Claim' 'duty of Care' 'vicarious Liability' 'sexual Abuse of Children' 'witness Immunity']

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Procedural Posture

Procedural Ruling in Common Law Proceedings Concerning Alleged Breach of Duty Arising From Sexual Abuse of Children / Notice of Motion Seeking Leave to File a Second Further Amended Statement of Claim

Legal Issues

  1. 1 ['Whether both plaintiffs should be granted leave to file a second further amended statement of claim.' 'Whether the proposed pleading of breach of duty of care exceeded what was permitted by the Court of Appeal in DC v State of New South Wales [2010] NSWCA 15.' 'Whether factual matters in the proposed pleading should be deleted because they were not material facts.' "Whether references to Children's Court proceedings raised witness immunity concerns." 'Whether the second defendant should be removed as a party.']

Ratio Decidendi

Leave was granted because the proposed pleading, including paragraphs 52 to 55 concerning the defendants' duties of care and alleged breaches, fell within the parameters identified by the Court of Appeal and was not confined to a failure to report abuse to police. Although the pleading included factual material that might not all be material facts, the material was already well known from earlier hearings and, given the age of the events, it was preferable to allow the pleading so the trial could proceed as soon as possible.

Court Disposition

Leave granted to both plaintiffs; costs reserved.

Orders

  • ['Leave is granted to both plaintiffs to file a second further amended statement of claim within seven days.' 'Costs are reserved.']