Agius v State of New South Wales [2001] NSWCA 371

Agius v State of New South Wales [2001] NSWCA 371

The statement of claim, as proposed to be amended, failed to disclose reasonable causes of action in negligence against the State (first opponent) and the President (second opponent) because it did not plead the material facts establishing any duty of care owed; the facts and evidence did not establish any such duties. Against the Manager (third opponent), it was arguable a duty of care could arise from his responsibilities for day-to-day safety and supervision in the Association's premises. Therefore, the statement of claim should be struck out against the State and President without leave to amend, but the claimant should have leave to amend the claim against the Manager.

Parties
Claimant: Sharon Agius; First Opponent: State of New South Wales; Second Opponent: Terry Kesby-Smith; Third Opponent: Michael Pearce
Jurisdiction
Australia
Judgment Date
23 October 2001
Procedural Posture
Appeal / Judgment of the NSW Court of Appeal on Applications for Summary Disposal and Amendment of Statement of Claim
Outcome
Appeal dismissed as against the State and President with costs; dismissed as against Manager without order as to costs but leave granted to amend the statement of claim against Manager.
Legal Topics
Duty of Care, Summary Disposal, Negligence Liability of Voluntary Organisation Officers, Duty to Insure, Strike Out Applications
Tort Law Negligence Civil Procedure Duty of Care Summary Disposal Negligence Liability of Voluntary Organisation Officers Duty to Insure Strike Out Applications

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Parties

Sharon Agius

Claimant

State of New South Wales

First Opponent

Terry Kesby-Smith

Second Opponent

Michael Pearce

Third Opponent

Procedural Posture

Appeal / Judgment of the NSW Court of Appeal on Applications for Summary Disposal and Amendment of Statement of Claim

Legal Issues

  1. 1 Whether the statement of claim disclosed a reasonable cause of action in negligence against the State, President, and Manager of the voluntary organisation.
  2. 2 Whether maintainable causes of action were pleaded or could be maintained against the defendants on the facts.
  3. 3 Whether leave should be granted to amend the statement of claim.

Ratio Decidendi

The statement of claim, as proposed to be amended, failed to disclose reasonable causes of action in negligence against the State (first opponent) and the President (second opponent) because it did not plead the material facts establishing any duty of care owed; the facts and evidence did not establish any such duties. Against the Manager (third opponent), it was arguable a duty of care could arise from his responsibilities for day-to-day safety and supervision in the Association's premises. Therefore, the statement of claim should be struck out against the State and President without leave to amend, but the claimant should have leave to amend the claim against the Manager.

Court Disposition

Appeal dismissed as against the State and President with costs; dismissed as against Manager without order as to costs but leave granted to amend the statement of claim against Manager.

Orders

  • Extend time for claimant to apply for leave to appeal and grant leave to appeal.
  • Dismiss the appeal with costs as between claimant and first and second opponents and refuse leave to file amended statement of claim as between those parties.