Saville v Insurance and Care NSW [2023] NSWSC 1415

Saville v Insurance and Care NSW [2023] NSWSC 1415

Even giving the unrepresented plaintiff leeway and treating her factual allegations at their highest, the proposed claims were based on an alleged tortious duty of good faith and a negligence duty said to be owed by the workers compensation insurer and regulators. Existing New South Wales authority did not recognise such a tortious duty of good faith or a relevant duty of care in the circumstances alleged, and the plaintiff had no contractual relationship with the defendants. The proposed causes of action were therefore not reasonably arguable, untenable and bound to fail, so leave to file the proposed amended statement of claim was refused and the proceedings were dismissed under r 13.4.

Jurisdiction
Australia
Judgment Date
09 November 2023
Procedural Posture
Civil Procedure Application in Proceedings Alleging Bad Faith and Negligence in Handling a Workers Compensation Claim / Applications by the Plaintiff for Leave to Rely on a Proposed Amended Statement of Claim and by the Defendants to Dismiss the Proceedings Under UCPR R 13.4 Or, Alternatively, R 12.7
Outcome
Proceedings dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW); plaintiff refused leave to file the proposed amended statement of claim; plaintiff ordered to pay the defendants' costs of the motion and proceedings.
Legal Topics
['dismissal of Proceedings' 'no Reasonable Cause of Action' 'want of Due Dispatch' 'unrepresented Litigant' 'pleadings' 'alleged Tortious Duty of Good Faith' 'workers Compensation Insurer']
['civil Procedure' 'workers Compensation' 'torts' 'negligence'] ['dismissal of Proceedings' 'no Reasonable Cause of Action' 'want of Due Dispatch' 'unrepresented Litigant' 'pleadings' 'alleged Tortious Duty of Good Faith' 'workers Compensation Insurer']

Case Brief

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Procedural Posture

Civil Procedure Application in Proceedings Alleging Bad Faith and Negligence in Handling a Workers Compensation Claim / Applications by the Plaintiff for Leave to Rely on a Proposed Amended Statement of Claim and by the Defendants to Dismiss the Proceedings Under UCPR R 13.4 Or, Alternatively, R 12.7

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to rely on the proposed amended statement of claim dated 6 August 2023.' 'Whether the proceedings should be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) because the causes of action were untenable or disclosed no reasonable cause of action.' 'Whether the proceedings should alternatively be dismissed for want of due dispatch under r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether New South Wales law recognises a tortious duty of good faith owed by a workers compensation insurer or regulators to the plaintiff in the circumstances alleged.' 'Whether the defendants owed the plaintiff a duty of care in negligence in relation to handling or regulating her workers compensation claim.']

Ratio Decidendi

Even giving the unrepresented plaintiff leeway and treating her factual allegations at their highest, the proposed claims were based on an alleged tortious duty of good faith and a negligence duty said to be owed by the workers compensation insurer and regulators. Existing New South Wales authority did not recognise such a tortious duty of good faith or a relevant duty of care in the circumstances alleged, and the plaintiff had no contractual relationship with the defendants. The proposed causes of action were therefore not reasonably arguable, untenable and bound to fail, so leave to file the proposed amended statement of claim was refused and the proceedings were dismissed under r 13.4.

Court Disposition

Proceedings dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW); plaintiff refused leave to file the proposed amended statement of claim; plaintiff ordered to pay the defendants' costs of the motion and proceedings.

Orders

  • ['The proceedings are dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).' "The plaintiff to pay the defendants' costs of the motion and the costs of the proceedings."]