Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335

Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335

The non-defamation claims disclosed no viable causes of action: breach of TAFE policies did not create a pleaded contractual or private right of action and was in any event affected by prior proceedings; the Privacy and Personal Information Protection Act 1998 did not impose civil liability on the individual defendants and s 69 barred civil causes of action based on Parts 2 or 3; the defendants were not shown to be public officers owing relevant public duties for misfeasance in public office; the negligence claims duplicated the substance of the defamation complaints; and the fraudulent misrepresentation pleading did not plead reliance or deceit. The remaining pleadings were discursive...

Jurisdiction
Australia
Judgment Date
09 December 2009
Procedural Posture
Supreme Court of New South Wales Common Law Division Proceedings by Former TAFE Student Against TAFE Employees Alleging Defamation, Misfeasance, Negligence, Breach of TAFE Policies and Breach of Privacy / Defendants' Motions for Summary Dismissal Pursuant to Rule 13.4 Ucpr, Alternatively Strike Out Pursuant to Rule 14.28 Ucpr, and Consideration of Consolidation
Outcome
Defendants obtained judgment on the non-defamation causes of action; remaining pleadings struck out; proceedings 20519/2008 and 20538/2008 consolidated; proceedings 20538/2008 dismissed; matter stood into the Defamation List for consideration of leave to file a further amended pleading.
Legal Topics
['summary Dismissal' 'strike Out of Pleading' 'consolidation' 'breach of TAFE Policies' 'privacy and Personal Information Protection Act 1998' 'misfeasance in Public Office' 'negligence' 'defamation Pleadings']
['procedure' 'torts' 'defamation' 'privacy' 'education Law'] ['summary Dismissal' 'strike Out of Pleading' 'consolidation' 'breach of TAFE Policies' 'privacy and Personal Information Protection Act 1998' 'misfeasance in Public Office' 'negligence' 'defamation Pleadings']

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Procedural Posture

Supreme Court of New South Wales Common Law Division Proceedings by Former TAFE Student Against TAFE Employees Alleging Defamation, Misfeasance, Negligence, Breach of TAFE Policies and Breach of Privacy / Defendants' Motions for Summary Dismissal Pursuant to Rule 13.4 Ucpr, Alternatively Strike Out Pursuant to Rule 14.28 Ucpr, and Consideration of Consolidation

Legal Issues

  1. 1 ['Whether claims based on breach of TAFE assessment policies disclosed a cause of action against Ms Sellwood.' 'Whether claims based on alleged collection, recording or disclosure of personal information under the Privacy and Personal Information Protection Act 1998 disclosed a civil cause of action against the defendants.' 'Whether the pleadings disclosed the tort of misfeasance in public office against TAFE employees.' 'Whether negligence claims could be maintained where the gist of the complaint was publication of allegedly defamatory material.' 'Whether the remaining pleadings, including defamation allegations, should be struck out as non-compliant or embarrassing.' 'Whether the Sellwood and Calvert proceedings should be consolidated.']

Ratio Decidendi

The non-defamation claims disclosed no viable causes of action: breach of TAFE policies did not create a pleaded contractual or private right of action and was in any event affected by prior proceedings; the Privacy and Personal Information Protection Act 1998 did not impose civil liability on the individual defendants and s 69 barred civil causes of action based on Parts 2 or 3; the defendants were not shown to be public officers owing relevant public duties for misfeasance in public office; the negligence claims duplicated the substance of the defamation complaints; and the fraudulent misrepresentation pleading did not plead reliance or deceit. The remaining pleadings were discursive...

Court Disposition

Defendants obtained judgment on the non-defamation causes of action; remaining pleadings struck out; proceedings 20519/2008 and 20538/2008 consolidated; proceedings 20538/2008 dismissed; matter stood into the Defamation List for consideration of leave to file a further amended pleading.

Orders

  • ['In proceedings 20519/2008: Judgment for the Defendant on the causes of action contained in paragraphs 46-55, 170-171, 172-175 and 176-180 of the Amended Statement of Claim filed 24 December 2008.' 'In proceedings 20519/2008: The remainder of the Amended Statement of Claim be struck out pursuant to Rule 14.28...