AB (a pseudonym) v CD (a pseudonym) - [2000] VSC 239

IN THE SUPREME COURT OF VICTORIA	Not Restricted
SUPREME COURT OF VICTORIA
COMMON LAW DIVISION

No. 5795 of 1998

AB (A MINOR WHO SUES BY HER LITIGATION GUARDIAN) (A PSEUDONYM)	Plaintiff
V
CD (A PSEUDONYM) AND OTHERS)	Defendants

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JUDGE:	GILLARD, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	2 and 5 June 2000
DATE OF JUDGMENT:	13 June 2000
CASE MAY BE CITED AS:	AB (a pseudonym) v CD (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2000] VSC 239

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application to amend statement of claim – Jury trial – Claim in tort – Sexual abuse – claim against school – amendment sought to allege fiduciary duty by Education Department employees - amendment refused – no cause of action.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. P. Galbally, Q.C. with Mr. M. Houlihan	Daniel S. Slattery & Associates
For the 1st Defendant	In person
For the 2nd Defendant For the 3rd Defendant	Ms F. Ellis Mr. S. Ruskin, Q.C. and Mr. C. Blanden	Neal Collin & Assoc. Minter Ellison

HIS HONOUR:

In this proceeding commenced by writ, the plaintiff, an infant who sues by her litigation guardian, is seeking damages against a number of defendants arising out of alleged sexual assaults perpetrated on her by her former stepfather.

Parties

The infant plaintiff was born on [redacted] 1982, is presently aged 17 years and sues by her natural father as litigation guardian. She alleges that her former stepfather, the first defendant, assaulted her physically and sexually during the period from about 1991 until April 1995.

The first defendant CD (a pseudonym) is the former stepfather of the infant plaintiff who married her mother, the second defendant, in 1986.

The second defendant EF (a pseudonym) is the natural mother of the infant plaintiff, who separated from her former husband in about February 1984 and thereafter was the custodial parent of the infant plaintiff.

The third defendant was GH (a pseudonym), the headmaster of the [redacted] Primary School where the infant plaintiff attended during the period from 1989 to December 1992.

He was joined as a defendant to the proceeding, but on application by the plaintiff I ordered that he be removed as a party from the proceeding.

The fourth defendant, now the third defendant, is the State of Victoria who is sued as the employer of members of the Education Department in the years 1991 to December 1992. It is sued pursuant to s.23(1)(b) of the Crown Proceedings Act 1958.

The proceeding

The plaintiff in her writ, sought trial by jury. This was the position until about November 1999 when a decision was made that the plaintiff would prefer the trial to proceed before a judge alone.

The proceeding came on for hearing before me on 2nd June 2000.

Mr. Peter Galbally, Q.C., who appeared with Mr. Michael Houlihan for the plaintiff made application to amend the statement of claim. A number of queries were raised with respect to the original and the proposed amended statement of claim and Mr. Galbally sought further…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB (a pseudonym) v CD (a pseudonym)

Details

AGLC: AB (a pseudonym) v CD (a pseudonym) [2000] VSC 239
Case: [2000] VSC 239
Decision Date: 13 June 2000

CaseChat Overview and Summary

In the case of AB (a pseudonym) v CD (a pseudonym), the plaintiff sought damages for alleged sexual abuse that occurred during their time at a school. The plaintiff initially filed a statement of claim against CD, alleging that the defendant had sexually abused them. Subsequently, the plaintiff sought to amend the statement of claim to include a claim against the Education Department, alleging that its employees had a fiduciary duty to protect the plaintiff from such abuse. The Federal Court was tasked with determining whether the plaintiff's proposed amendment should be allowed.

The court considered whether the plaintiff's proposed amendment would give rise to a cause of action. The court held that the Education Department employees did not owe a fiduciary duty to the plaintiff, as the relationship between the plaintiff and the Education Department was not of the kind that would give rise to such a duty. The court further held that the proposed amendment would not provide a viable cause of action against the Education Department. Consequently, the court refused the plaintiff's application to amend the statement of claim.

Given the court's ruling, the case proceeded only against the initial defendant, CD. The court found that the plaintiff's claims against the Education Department were not valid and, therefore, dismissed any potential cause of action related to the department. The plaintiff's claims against CD continued, and the court scheduled a jury trial to determine liability and damages for the alleged sexual abuse.

Orders