WANG v STATE OF NEW SOUTH WALES [2010] NSWCA 209

WANG v STATE OF NEW SOUTH WALES [2010] NSWCA 209

The primary judge erred by treating the claim only as one in negligence or breach of statutory duty and by not addressing factual allegations that might support an intentional tort based on Senior Constable Kennedy's alleged intentional misconduct. The State's alternative grounds did not justify dismissal because the asserted immunity and limitation defences depended on factual findings not made below, and the plaintiff should be given a strictly limited opportunity to replead a claim against the State concerning Senior Constable Kennedy's conduct.

Jurisdiction
Australia
Judgment Date
24 August 2010
Procedural Posture
Civil Interlocutory Appeal Concerning Strike Out and Dismissal of Statement of Claim / Appeal From Orders of the Common Law Division Made on 2 July 2009 Dismissing the Statement of Claim and Ordering the Plaintiffs to Pay the Defendant's Costs; Leave to Appeal Had Been Granted
Outcome
Appeal allowed; statement of claim struck out with limited leave for Li Wang to file a fresh statement of claim; respondent ordered to pay the appellant's costs in this Court.
Legal Topics
['strike Out Application' 'leave to Replead' 'intentional Tort' 'breach of Statutory Duty' 'psychological Injury' 'witness Immunity' 'police Misconduct' 'vicarious Liability' 'limitation Period for Personal Injury Claims']
['civil Procedure' 'tort' 'police Liability' 'limitation of Actions'] ['strike Out Application' 'leave to Replead' 'intentional Tort' 'breach of Statutory Duty' 'psychological Injury' 'witness Immunity' 'police Misconduct' 'vicarious Liability' 'limitation Period for Personal Injury Claims']

Case Brief

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Procedural Posture

Civil Interlocutory Appeal Concerning Strike Out and Dismissal of Statement of Claim / Appeal From Orders of the Common Law Division Made on 2 July 2009 Dismissing the Statement of Claim and Ordering the Plaintiffs to Pay the Defendant's Costs; Leave to Appeal Had Been Granted

Legal Issues

  1. 1 ["Whether the primary judge failed to identify reasonable causes of action alleged in the plaintiff's statement of claim." 'Whether the appeal should not be upheld because Senior Constable Kennedy enjoyed immunity from liability as officer in charge of the prosecution and as a witness.' 'Whether the limitation period pursuant to ss 50C and 50D of the Limitation Act 1969 (NSW) had expired before proceedings were commenced.' 'Whether the plaintiffs should be given limited leave to replead a valid cause of action.']

Ratio Decidendi

The primary judge erred by treating the claim only as one in negligence or breach of statutory duty and by not addressing factual allegations that might support an intentional tort based on Senior Constable Kennedy's alleged intentional misconduct. The State's alternative grounds did not justify dismissal because the asserted immunity and limitation defences depended on factual findings not made below, and the plaintiff should be given a strictly limited opportunity to replead a claim against the State concerning Senior Constable Kennedy's conduct.

Court Disposition

Appeal allowed; statement of claim struck out with limited leave for Li Wang to file a fresh statement of claim; respondent ordered to pay the appellant's costs in this Court.

Orders

  • ['Allow the appeal.' "Set aside the order made in the Common Law Division on 2 July 2009 dismissing the statement of claim and ordering the plaintiffs to pay the defendant's costs." 'Strike out the statement of claim filed 29 December 2008, but grant the plaintiff (Li Wang) leave to file a fresh statement of claim...