AB v State New South Wales
[2014] NSWSC 81
•21 February 2014
Supreme Court
New South Wales
Medium Neutral Citation: AB v State New South Wales [2014] NSWSC 81 Hearing dates: 23/07/2013 Decision date: 21 February 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) Order, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, that there be no publication or other disclosure of the identity of the plaintiff, his daughter or of the second defendant school, or of any evidence or other material which would tend to reveal their identity.
(2) Statement of Claim filed 11 December 2012 be, and hereby is, dismissed.
(3) AB to pay the costs of the State of NSW of the proceedings.
Catchwords: PROCEDURE - civil - summary disposal - dismissal - whether reasonable cause of action - whether claim that an authorised carer under Children and Young Persons (Care and Protection) Act 1988 is an employee of the State of NSW is reasonable - whether claim that indemnity from the State of NSW for loss or damage suffered by an authorised carer encompasses ordinary and usual expenses of rearing a child is reasonable
STATUTORY INTEPRETATION - Children and Young Persons (Care and Protection) Act 1988, s 147 - "loss or damage", "authorised carer", "caused by a child or young person"
WORDS AND PHRASES - "loss or damage" - Children and Young Persons (Care and Protection) Act 1988 s 147Legislation Cited: Child Protection (Working with Children) Act 2012,
Commission for Children and Young People Act, 1998
Court Suppression and Non-publication Orders Act 2010
Ombudsman Act 1974
Uniform Civil Procedure RulesCases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Burton v Bairnsdale Shire [1908] HCA 57; (1908) 7 CLR 76
Carr v Western Australia (2007) 232 CLR 138
Eastman v The Queen (2000) 203 CLR 1
Harrison v Melhem (2008) 72 NSWLR 380
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Kingston v Keprose Pty Ltd (No.3) (1987) 11 NSWLR 404
Nolan v Clifford (1904) 1 CLR 429
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Bolton; Ex Parte Beane (1987) 162 CLR 514
Ross v The Queen (1979) 141 CLR 432
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Wik Peoples v Queensland (1996) 187 CLR 1
Wilson v State Rail Authority of New South Wales [2010] NSWCA 198Category: Principal judgment Parties: AB (P)
State of New South Wales (D1)
The School (D2)Representation: Counsel:
In person (P)
M Allars (D1)
Submitting appearance (D2)
Solicitors:
In person (P)
NSW Crown Solicitor (D1)
Emil Ford Lawyers (D2) (Submitting appearance)
File Number(s): 2012/384382 Publication restriction: Suppression of parties' names
Judgment
On 11 December 2012, by a Statement of Claim, the plaintiff commenced proceedings against the State of New South Wales as first defendant, and a school as the second defendant.
Because the central issue in the proceedings concerns a child, and because there have been proceedings brought in the Children's Court pursuant to the provisions of the Children and Young Persons (Care and Protection) Act 1988 ("CYP Act") to which it will be necessary to refer, it is in the interests of justice that information tending to reveal the identity of the child or any party other than the State of NSW be not published.
In this case, the precise identity of each of the plaintiff and his daughter, or the school which she attends, is not central to the disposition of these proceedings. Accordingly, it is appropriate for an order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010, to be made to the effect mentioned above.
Accordingly, I will refer to the plaintiff as AB, the second defendant school as the School, and to the child as XY.
Relevant History and Background
The child XY was born in December 1997 to the plaintiff AB and her mother, to whom I will refer as CD.
In September 2005, when XY was 7 years and 9 months old, the Children's Court at Woy Woy made orders with respect to the welfare of XY. The final order included these provisions:
"1. Pursuant to s 79 of the [CYP] Act, parental responsibility was allocated to the Minister for Family & Community Services ("the Minister").
2. Orders that each of AB and CD enter into undertakings of a variety of kinds designed to ensure the welfare of XY."
XY's mother, CD, undertook to ensure that XY attended school each day, amongst other things.
In making the orders, the Children's Court noted that XY was to reside with her mother CD and that there should be scheduled contact on weekends and school holidays with her father, AB. At that time, XY was attending a local state primary school.
The plaintiff, AB, appealed the orders of the Children's Court and, on 23 November 2006, the District Court made Consent Orders which disposed of that appeal. Those Consent Orders continue to be in effect. It is relevant to note the effect of the orders in the following way:
(1) The Court ordered that pursuant to s 79 of the [CYP] Act, parental responsibility for XY was allocated:
"... in relation to all aspects, solely to the Minister ... until she attains the age of 18 years";
(2) XY was to live and reside with the plaintiff AB:
"... for the foreseeable future";
(3) Orders were made for supervised access of XY to her mother CD and members of CD's extended family.
The Consent Orders did not make any specific provision with respect to the education of XY, nor the payment by the Minister of any monies connected with XY residing with her father, the plaintiff, AB.
In November 2008, in correspondence between the relevant officer of the Department of Community Services ("the Department") and AB, about a series of matters unrelated to these proceedings, the relevant officer noted the following:
"I am pleased to hear [XY] is doing well with her schooling and her win in the recent talent quest and wish her success in her application to [a local] High School."
On 1 July 2009, the principal of the School which is the second defendant, informed AB that XY had been offered a scholarship to attend the School for the period from Year 7 in 2010 through to Year 12 in 2015. The letter said:
"I am writing to congratulate [XY] on being awarded a scholarship for Year 7 2010. [XY] conducted herself admirably in the interview, and the decision of the Executive and School Board is that [XY] receives a full Scholarship which will cover 100 per cent of tuition fees over the period Year 7 2010 - Year 12 2015.
The Scholarship is subject to annual review, and I should mention that additional costs such as school uniform items, computer notebook, text books and excursions are not included. ...
...
I would appreciate it if you could acknowledge your acceptance of this scholarship in writing as soon as possible."
On 3 July 2009, AB responded to that offer in these terms:
"Thank you so very much for the glad tidings your letter of 1st July 2009 brought to our family. The opportunity to be educated at a school with such a high standard of excellence is possibly one of the most profound a person can received, and it is with humility and gratitude that I accept it on [XY]'s behalf.
..."
The offer from the School to XY, and AB's acceptance of it was not drawn to the attention of the Minister. No approval was sought from the Minister.
On 5 August 2009, AB completed an enrolment application form on behalf of XY. Where the application form provided for family details, AB inserted his name and relevant details. Where it provided for the details of the spouse of the "primary contact", the application form was left blank. The application form was signed only by AB, and made no reference to CD, or else to the fact that the Minister had the parental responsibility for XY.
As well, on 5 August 2009, AB signed a standard Acceptance Form provided to him by the School. In part that Acceptance Form included:
"6. I/We have read the current fee schedule and agree to be responsible (when more than one person is signing this form, both joint and severally) for the payment of all school fees and charges. I/We agree that:
(a) ...
(b) ...
(c) all other charges are payable within 14 days of statement date, unless billed with school fees (see 6(b) above), in which case they are due at the same time on the same date as the school fees;
(d)a service fee will be charged for late payment;
(e) the student may not be permitted to return to School if the fees for the previous term have not been fully paid;
..."
Thereafter, commencing at the start of the school year in 2010, XY attended the School.
On 5 January 2010, a case worker employed by the private agency retained by the Department to supervise XY on behalf of the Minister, filed a report designed to describe the supervision of contact between XY and her mother, CD, which included the following notation:
"Beginning of contact:
[XY] engaged in a conversation with me about her Christmas and that she has been awarded a scholarship with [the School].
This information, coming informally, was the first occasion when the Minister could possibly have been aware of the arrangements. However, it could not be categorised as formal notification of the education arrangement which AB had entered into for XY.
On 8 June 2010, an officer of the Department telephoned the school, making a general enquiry about XY's progress. That phone call was returned on 9 June 2010 and a discussion about XY took place. The File Note Record had attached to it, the reports from the School with respect to XY.
In 2012, the School was conducting an international student summer camp in China. XY wished to attend and accordingly, AB made a formal application to the Department to permit XY to travel outside NSW for the purpose of that visit to China.
On 14 May 2012, after making the formal application for permission to which I have just referred, AB telephoned the Department case worker and informed her that XY had been chosen in the school debating team that was going to China from 21 to 30 July 2012. The case worker's note recorded the following:
"[AB] said that [XY] is able to go because her mother has offered to pay the $1,200 expenses involved. He said that although she has a scholarship to attend [the School], he pays school-related expenses - for her music, excursions etc., so he would not be in a financial position to pay for this. He said that he and [XY] are very appreciative of [CD]'s support of this.
[AB] asked for assistance to get a passport for [XY] ..."
It is clear from the balance of the case notes that a passport for XY was applied for and was received promptly, and in sufficient time to enable XY to travel to China.
By letter dated 15 May 2012, the grant of permission to travel to China was notified to AB by the Manager of Client Services of the Department, in the following terms:
"I am pleased to advise you that permission has been granted for [XY] to travel overseas ... to the international student summer camp organised ... in Beijing, China.
...
A letter of authority for [XY] to travel is provided enclosed. Please carry this letter with you while travelling and produce the letter to a relevant authority, if required.
You are reminded that granting of permission to remove a child or young person for whom the Minister for Community Services has parental responsibility from NSW, is required under the Children and Young Persons (Care and Protection) Act 1998. The Minister's delegate has granted approval for travel to Beijing, China from 21 July 2012 until 30 July 2012.
If the travel circumstances alter, please contact your case worker."
Dealings between AB, the Minister and the Department
It is unnecessary to set out the evidence provided to the Court about all of the dealings between AB, officers of the Department and the Minister, because many of the dealings are of no relevance to these proceedings. However, on 9 March 2012, an internal briefing note of the Department records that the Minister received correspondence from AB seeking back payment of the Care Allowance, and access to contingency funds from the care he provides to his daughter. The correspondence was summarised in an internal Departmental record in this way:
"[AB] is of the understanding that he is eligible for financial assistance for the care he provides to [XY] and as such, he has forwarded a letter to the Minister seeking back payment for the Care Allowance from 28 April 2004 to the present, totalling $94,872. A further request for support in paying dental costs of $5,500 has also been made."
The note went on to record that the relevant officer did not support complying with the request. That lack of support was explained in attached documents by reference to the legislation and financial guidelines of the Department which were then relevant to care allowances and contingency costs.
Although there is no specific letter before me indicating the Minister's attitude, I am prepared to infer that the Minister did not fulfil the demands made by AB in his correspondence. I do so because, on 11 December 2012, AB filed a Statement of Claim seeking, amongst other things, an order requiring the State of NSW to make payments to him by way of care allowance and reimbursement for other out-of-pocket expenses.
There does not seem to be any other specific correspondence with respect to these claims prior to these proceedings being commenced.
Statement of Claim
On 11 December 2012, AB filed a Statement of Claim in the Court, naming the State of NSW as the first defendant and the School as the second defendant.
The School has filed a submitting appearance and has taken no part in the proceedings. This is appropriate because no relief is claimed against it, and AB pleads that it is joined only as an "unwilling plaintiff" pursuant to r 6.20 of the Uniform Civil Procedure Rules 2005.
The relief claimed in the Statement of Claim is as follows:
"1. A declaration that the rights, duties and obligations of inherent parental responsibility are displaced and vested in the sole parental responsibility of the Minister by the operation of the law, and cannot be imputed to the plaintiff as biological father, but may only be delegated to the plaintiff as authorised carer according to statute.
2. An order directing the first defendant to act lawfully and equitably in making its decisions regarding the payment of an allowance to the plaintiff.
3. An order directing the first defendant to pay all present and future additional educational expenses that is owed to the second defendant under the terms of the Scholarship of the child in the plaintiff's care.
4. An order directing the first defendant to pay for the costs of providing orthodontic treatment to a child in the plaintiff's care.
5. Damages for breach of statutory duty for discrimination suffered under Part 4B of the Anti-Discrimination Act 1977 (NSW) in not paying the plaintiff the Authorised Carer's Allowance.
6. An order directing the first defendant to indemnify the plaintiff for loss and damage suffered through payment of past additional educational expenses, and to the second defendant under the terms of the Scholarship of the child in the plaintiff's care.
7. Out of pocket expenses.
8. Interest.
9. Any other order that the Court sees fit."
The pleading and particulars which were clearly drafted by AB himself, without legal assistance, then continued for a further 14 pages of narrative, not including formal requirements of the UCPR with respect to a pleading.
The pleading is discursive, argumentative, repetitive and clearly bad in form. However, as I have earlier indicated, AB drafted the pleading himself, and has throughout the proceedings appeared for himself.
So far as it is possible to discern, it appears that the plaintiff's pleading seeks to advance two causes of action. The first is constituted by an alleged breach of a statutory duty created by the Anti-Discrimination Act 1977 "... to provide employment free of discrimination for employees", which breach gives rise to an entitlement in the plaintiff for damages.
It seems that the plaintiff AB pleads that he has been an authorised carer of XY pursuant to Regulation 30(1)(a) of the Children and Young Persons (Care and Protection) Regulation 2012 and, also, pursuant to s 137(1)(b) of the CYP Act. He seems to allege that by reason of being appointed an authorised carer under that Regulation, and pursuant to s 33(1) of the CYP Act, he is an employee of the State.
He then refers to the provisions of Part 4B of the Anti-Discrimination Act 1977, which relates to discrimination on the grounds of "... a person's responsibility as a carer". He draws attention to the provisions of s 49V, which prohibit employers from discriminating against a person on the ground of the person's responsibilities as a carer. He pleads that he has demanded various payments, which demand has been refused by the Minister.
AB alleges that given his status as an authorised carer and employee, the refusal of the Minister, for whom, at least implicitly, he asserts that the State is liable, to pay him the Carer's Allowance, including the back-pay of an amount equal to a Carer's Allowance, and payment for orthodontic treatment and other expenses, constitutes discrimination of a kind which breaches the Anti-Discrimination Act, and accordingly, he is entitled to damages.
This cause of action is to be found between paragraphs 7 and 43 of the plaintiff's Statement of Claim.
The second cause of action alleged arises from the provisions of s 147 of the CYP Act, which AB pleads is a provision which gives rise to a "civil action for breach of a statutory duty within the [CYP] Act." He entitles this cause of action as "Breach of Statutory Duty to Indemnify an Authorised Carer".
AB pleads that the provisions of s 147 oblige the Minister to indemnify him for any loss or damage suffered by reason of the fact that he is the authorised carer of XY, and that he has suffered loss and damage which has been caused by XY whilst in his care. He then pleads that he has suffered loss and damage through payment of past additional educational expenses to the School under the terms of the scholarship, and will suffer loss and damage incurring orthodontic expenses for XY.
This cause of action is to be found between paragraphs 44 and 74 of his Statement of Claim.
The pleading goes on in relation to both causes of action to provide particulars which relate to all of the claims made including sums of money paid for various expenses and the like connected with AB's provision of care for XY, and amounts by way of Authorised Carer's Allowance.
Current Motion
On 22 January 2013, the State filed a Notice of Motion seeking orders that the proceedings be dismissed generally pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005, or else that the Statement of Claim be struck out pursuant to r 14.28(1)(a) of the UCPR. It sought consequential orders. This judgment deals with that Motion
Applicable Legal Principles
The main application by the State is for summary dismissal of the Statement of Claim of AB. The legal principles for summary relief, upon which the Court is obliged to act, are not in doubt.
Under r 13.14 of the UCPR, the Court is entitled to make an order for summary dismissal where it is satisfied that:
(a) the proceedings are vexatious or frivolous; or
(b) no reasonable cause of action is disclosed; or
(c) proceedings are an abuse of the process of the Court.
Any such order involves the exercise of a discretion. The principles which guide the exercise of such discretionary decision making are well settled. In addition to those principles, when exercising any power given to the Court under the UCPR, the Court is obliged to further the overriding purpose which is set out in s 56 of the Civil Procedure Act 2005. That overriding purpose obliges the Court to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
Generally, summary dismissal of proceedings is inappropriate unless the court is satisfied that a plaintiff's claim or claims fall within the description of being "... so obviously untenable that it cannot possibly succeed". Authorities by which I am bound make this abundantly clear. I shall briefly discuss the principal ones.
Over 100 years ago, in the High Court of Australia, O'Connor J in Burton v BairnsdaleShire [1908] HCA 57; (1908) 7 CLR 76 at 92 said:
"Prima facie every litigant has a right to have matters of law as well of fact decided according to the ordinary rules of procedure which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing an action as frivolous and vexatious in point of view will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed."
Forty years later, Dixon J said in Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at [13]:
"The application is really made in the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."
Barwick CJ said in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at [8]:
"... the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.
...
... the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action ... is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument' ...".
Over 30 years ago, the High Court of Australia said in Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at [27]:
"The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried."
Gaudron, McHugh, Gummow and Hayne JJ said in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57]:
"Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way."
Most recently, in the High Court of Australia, French CJ and Gummow J in Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 18 said at [24]:
"The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. ..."
Although, the threshold to be established by an applicant for summary dismissal is high, as these authorities demonstrate, that does not prevent an examination of the pleaded issues, which may sometimes be legally or factually complex, in order to decide if the high threshold is met.
Submissions of the State
The State, in putting forward its submissions, accepted that AB was an authorised carer within the meaning of s 137 of the CYP Act, and that what was being provided by him to XY fell within the description "out of home care", as that term is used in the legislation and the Departmental guidelines.
These concessions accept, for the purposes of the argument which the plaintiff AB seeks to advance, that within the meaning to be attributed to that phrase in the Anti-Discrimination Act 1977, AB has responsibilities as a carer.
However, in respect of the cause of action by the plaintiff under the Anti-Discrimination Act, the principal submission relied upon by the State in support of the orders which it seeks, is that there was no relationship of employer and employee between the State and AB. If this fact is so, the State submitted, then the provisions of Part 4B of the Anti-Discrimination Act are wholly irrelevant. The State submitted that the mere designation of a person as an authorised carer, without more, could not, and does not, bring into existence the relationship of employer and employee.
In support of that submission, the State pointed to the provisions of s 161 of the CYP Act, the terms of which provide a discretion residing in the Director-General to grant financial assistance to any person having the care of a child whilst that child is in the person's care. The terms of s 161(1) are in the following form:
"(1) The Director-General may, in respect of any child or young person in out-of-home care, grant financial assistance to any person having the care of the child or young person for any period during which the child or young person is in that person's care.
(1A) Without limiting sub-section (1), financial assistance may take the form of a grant, an allowance or a refund of expenditure, or any other form of financial assistance that the Director-General may approve generally, or in a particular case or class of cases."
The State submitted that this section demonstrates that the manner in which authorised carers are to receive financial assistance where they are caring for children in out-of-home care is by way of a grant, an allowance or a refund of expenditure or other form of financial assistance, and that none of these phrases are apt to describe wages and remuneration of a kind paid to an employee by an employer.
In short, the State submitted that there were no matters of fact which demonstrated the relationship of employer and employee and that on no possible reading of the CYP Act could it be concluded, as a matter of law, that an authorised carer such as AB is an employee of the State.
The State submitted that insofar as a cause of action in the Statement of Claim relied upon or claimed an obligation on the part of the State to remunerate the plaintiff AB as an authorised carer, whether by way of allowance, pension, wages or otherwise, and having such an obligation the State had failed to meet it, such a cause of action could not be legally sustained as an arguable cause of action.
With respect to the claim under s 147 of the CYP Act, the State submitted that this section, being an indemnity provision, was directed to loss or damage caused by a child in the care of an authorised carer, suffered either to a third party or directly by an authorised carer.
The State submitted that whilst an authorised carer may be entitled to bring an action to enforce the indemnity given by s 147 of the CYP Act, the claims made here by the plaintiff did not fall within the indemnity contemplated by that section. The State submitted that the phrase "... for any loss or damage suffered by the authorised carer ..." given its natural and ordinary meaning, could not encompass, or describe, typical domestic expenditure incurred by an authorised carer in the course of caring for, and raising a child, such as that claimed here.
The State acknowledged that its submission with respect to s 147 of the CYP Act meant that it was necessarily intended to address an area separate and distinct from the field of financial assistance covered by s 161 of the CYP Act, and that those two sections could not apply to the same expenditure or claim.
The State accepted that its submission as to whether the claim for indemnity under s 147, as was pleaded, raised a question of statutory construction and interpretation.
Submissions of the Plaintiff
Insofar as any of the plaintiff's causes of action rested upon the status of the plaintiff, AB, as an employee of the State, AB submitted to the Court that the Court would find that such a relationship existed principally because of the contents of a document which was tendered entitled "New South Wales Mandatory Reporter Guide". AB submitted that the following words, which are at page 2 (and page 115) of that document, demonstrated that he was an employee of the State and that his cause of action was an arguable one:
"Reportable Conduct
The head of a designated government or non-government agency is required to notify the NSW Ombudsman of any reportable allegation or conviction against an employee of the agency within 30 days, ...
Authorised carers engaged by an agency to provide services to children/young people are considered to be employees under the Ombudsman Act 1974 (s 25A), and any allegation of reportable conduct towards a child/young person in out-of-home care, and the findings of the Agency's investigation, should also be notified to the Ombudsman."
The plaintiff submitted that as he was included in the definition of employee for the purpose of the Ombudsman Act 1974, then he was entitled to be regarded as an employee for all purposes. He submitted that this was not an anomalous result because he was in fact undertaking the care of XY in his capacity as an authorised carer, thereby doing work of a kind which would be done for the Minister, by others who were in fact employees of the Department. AB submitted that his relationship with XY, namely, father and child, was irrelevant in these circumstances, because the Minister had been appointed as XY's guardian.
The plaintiff sought also to rely upon the provisions of s 33 of the Commission for Children and Young People Act 1998 (the "Commission Act"). Those provisions were repealed as a consequence of the passage of the Child Protection (Working with Children) Act 2012, which came into force on 15 June 2013. However, it is appropriate to outline those provisions, and note the plaintiff's submissions because of the time period covered by the plaintiff's claim.
Insofar as the plaintiff is able to rely upon s 33 of the Commission Act, it is necessary to draw attention to the definition of the term "employment" as that term is used in Part 7 of the Act. Part 7 in which s 33 is to be found, is entitled "Employment Screening".
An employee is defined as a person who is engaged in employment "... within the meaning of this Part". The definition of employment in s 33 is as follows:
"Employment means (subject to the regulations):
(a) performance of work under a contract of employment, or
(b) performance of work as a sub-contractor, or
(c) performance of work as a volunteer for an organisation, or
(d) undertaking practical training as part of an educational or vocational course, or
(e) performance of work as a minister of religion or other member of a religious organisation."
The plaintiff submits that because of his duties as an authorised carer for a child, the provisions of Part 7 of the Commission Act applied and he was obliged to be "screened for employment". It follows, he submitted, that he was to be regarded as an employee of the State for all purposes.
The plaintiff in his submission, did not point to any evidence, or other indicia of employment, or his status as an employee.
In dealing with his second cause of action, namely the claim against the State for a breach of its obligations to indemnify him pursuant to s 147 of the CYP Act, the plaintiff submitted that upon the ordinary interpretation of the statute, the limitation on the indemnity argued by the State did not exist, and that the words of the section were well capable of covering his claims.
Discernment
It will be convenient to deal separately with the causes of action, commencing with the question of whether the plaintiff's claim that he is an employee of the State is a tenable one. In my opinion it is not.
Section 25A of the Ombudsman Act falls within that part of the Act entitled "Part 3A Child Protection". The section is a definitional section. It provides that in Part 3A of the Act certain words have particular meanings. Relevantly, it defines employee in these terms:
"Employee of an agency includes:
(a) any employee of the agency, whether or not employed in connection with any work or activities of the agency that relates to children, and
(b) any individual engaged by the agency to provide services to children (including in the capacity of a volunteer)."
The Department is within the meaning of the term "agency" as it is used in the Ombudsman Act and Part 3A.
It is not possible to construe the provisions of s 25A of the Ombudsman Act, as creating a relationship of employer and employee between the State and the plaintiff, AB.
There are a number of reasons for this:
(a) first, the definition is a limited one which has effect only when interpreting the provisions of Part 3A - Child Protection, of the Ombudsman Act. That part deals with obligations falling on the Ombudsman to keep relevant systems under scrutiny, oversee reporting of reportable allegations, overseeing investigations taken by agencies of government into reportable allegations, or else mounting investigations by the Ombudsman himself. In other words, the definition relates only to the obligations of the Ombudsman, and provides a mechanism whereby the Ombudsman has the widest authority to investigate reportable conduct and oversee reportable conduct so as to ensure proper child protection;
(b) secondly, the definition contained in the Ombudsman Act, on its face, applies to people who are obviously not employees in the usual sense; in particular sub-section (b) of the definition specifically indicates that it applies to volunteers. There is no basis for concluding that any volunteer is an employee of the State. Nevertheless, there may be a proper basis, as exists in this Act, for ensuring that even the activities of volunteers are able to be the subject of oversight, where the volunteers are working with children who need to be protected;
(c) thirdly, the Act on its face does not purport to create rights between the State and an individual. As I have remarked earlier, it is directed to the obligations of the Ombudsman. The definition, extended as it is, provides a mechanism for that conduct. Nowhere in the Ombudsman Act, let alone in Part 3A, does the Act purport to create an employer/employee relationship, or to put into place any of the terms and provisions which would necessarily govern such a relationship;
(d) finally, the consequences of such an interpretation would be extraordinary. It would mean that all volunteers engaged in any work of a kind covered by Part 3A, in their interactions with children, would be employees of the relevant identified agency. Such a reach could not have been contemplated by the Parliament, and ought not be inferred by this Court unless the words of the Act would compel such a conclusion. They do not.
I reject s 25A of the Ombudsman Act as constituting any basis for the creation of an employment relationship between the State and the plaintiff.
The second basis for the plaintiff's submission that he is an employee of the State is s 33 of the Commission Act. That Act is concerned to ensure that anyone who deals with children as a part of their work is subject to appropriate screening, the intention of which is to protect children by excluding unsuitable individuals from working them.
Again, as with the Ombudsman Act, the terms of the definition are cast widely so as to ensure the broadest possible screening process. Section 31 of the Commission Act sets out the object of Part 7 in these terms:
"The object of this Part is to protect children by means of employment screening for child-related employment administered by the Commission and other agencies".
The term child-related employment is defined in broad terms as:
"any employment that involves direct contact with children where the contact is not directly supervised ..."
Section 33(3) makes clear that foster carers, engaged by the Department or any foster care agency, are regarded as engaged in employment for the purpose of the Commission Act.
The provisions of the Act cannot be construed as creating a relationship of employer and employee between the State and AB. As the provisions show, their purpose is to case a wide net for screening to protect children with whom adults work. Those adults could be volunteers such as parents who attend at a pre-school or primary school to assist teachers, and who may not be supervised. The screening also covers individuals who may be employed by an organisation other than the State, or one of its agencies. A bus driver employed by a private bus company to transport children to and from school is required to be screened under Part 7 of the Commission Act, but is not an employee of the State.
Given the object of the Part and the terms of the statute, it is not possible to construe the provision of s 33 of the Commission Act as creating the relationship of employer and employee between the State and AB.
It is convenient to consider the terms of the Working with Children Act because the plaintiff's claim includes a period during which this Act was arguably in force. The object of the Working with Children Act is set out in s 3 of that Act in the following terms:
"The object of this Act is to protect children:
(a) by not permitting certain persons to engage in child-related work, and
(b) by requiring persons engaged in child-related work to have Working with Children check clearances."
The Working with Children Act does not use the term "employee", but rather uses the term "worker". In s 5 it defines "worker" to mean the following:
"Worker means any person who is engaged in work in any of the following capacities:
(a) as an employee;
(b) as a self-employed person or as a contractor or sub-contractor;
(c) as a volunteer;
(d) as a person undertaking practical training as part of an educational or vocational course (other than as a school student undertaking work experience);
(e) as a minister, priest, rabbi, mufti or other like religious lead or spiritual officer of a religious or other member of a religious organisation."
Clearly, the purport of the Act is to cover the field of people who work with children, whether as an employee or in any other capacity. The fact that the plaintiff may engage in child-related work under this Act does not mean that he is an employee, nor do the terms of the Act constitute any employment relationship.
Although the precise words are different from the Working with Children Act, it is quite plain that the use of the word "employment" as a definitional term in s 33 of the CYP Act, is inconsistent with the use of that term itself, and the provisions of the Act of themselves, creating a relationship of employer and employee. On the contrary, the specific reference to volunteer, or the performance of work by a minister of religion or a member of a religious organisation combine to demonstrate that it is not open to argue that the terms of this Act constitute an employment relationship.
As these are the only provisions relied upon by the plaintiff to constitute him as an employee of the State, and they do not do so, and because there is no factual evidence suggesting that the plaintiff was in fact ever employed by the State, it is clear that the plaintiff's pleading that he has an entitlement to various monies through the first cause of action which centres upon the fact that he is employed by the State of NSW, cannot be made out. It is unarguably flawed and must be dismissed.
These conclusions about employment have the effect that the first cause of action pleaded by the plaintiff must fail. It is simply not arguable and, in accordance with the authorities to which I have earlier referred, must be summarily dismissed.
It is necessary to consider the second cause of action which calls for a consideration of the proper meaning to be attributed to the provisions of s 147 of the CYP Act, and the width of the indemnity there provided.
The relevant principles of statutory interpretation are clear. They include:
(a) The commencing point is to engage in a purposive construction. That is, in the interpretation of a provision of an Act, a construction which promotes the purpose and/or object underlying an act, is to be preferred to a construction that would not promote that purpose or object: Carr v Western Australia (2007) 232 CLR 138 at [5]-[6] per Gleeson CJ;
(b) What is involved in an exercise of statutory construction is a search for the objective intention of Parliament and not the subjective intention of the Parliament, if one exists, or of Ministers: Eastman v The Queen (2000) 203 CLR 1 at [146]-[147] per McHugh J; Harrison v Melhem (2008) 72 NSWLR 380 at [14] per Spigelman CJ, [159] per Mason P, Beazley and Giles JJA agreeing; Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12] per Allsop P;
(c) A statement of intention by a Minister in a Second Reading Speech will not prevail over the words of a statute: Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at 518; Harrison at [14] per Spigelman CJ, [162] per Mason P. Identification of the mischief to be addressed by the legislation, and the purpose to be served by the legislation, when contained in a Second Reading Speech are in a different context and realm to statements of the meaning of words, phrases or provisions in statutes: Kingston v KeprosePty Ltd(No.3) (1987) 11 NSWLR 404 at 424; Harrison at [162] per Mason P;
(d) Legislation must be construed by reference to the language which Parliament has used in the enactment as distinct from what others, including Ministers, may wish or think that the Parliament intended: Nolan v Clifford (1904) 1 CLR 429 at 449; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 499 [55]; Harrison at [159] per Mason P; Wilson at [12] per Allsop P;
(e) The courts in exercising judicial power, interpret legislation by determining what Parliament intended to mean by the words it used. The Court does not determine what Parliament intended to say: Wik Peoples v Queensland (1996) 187 CLR 1 at 169; Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 at [10]; R v PLV (2001) 51 NSWLR 736 at [82]; Harrison at [16] per Spigelman CJ;
(f) In interpreting legislation, the primary object is to construe the relevant provisions so that it is consistent with the language and purpose of all of the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and [71] per McHugh, Gummow, Kirby and Hayne JJ;
(g) Legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears between provisions, it must be alleviated, as far as possible, by adjusting the meaning of the competing provisions to achieve a result. This adjustment may require a Court to determine a hierarchy of provisions: Project Blue Sky at [70] per McHugh, Gummow, Kirby and Hayne JJ; Ross v The Queen (1979) 141 CLR 432 at 440 per Gibbs J; Wilson at [13] per Allsop P.
As Chief Justice Dixon said in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397:
"... but the context, the general purpose and policy of a provision, and its consistency and fairness are surer guides to its meaning that the logic with which it is constructed."
I will keep these principles in mind when considering the question of the proper meaning to be attributed to s 147 of the CYP Act.
The indemnity in s 147 of the CYP Act is provided to an authorised carer by the Minister for any loss or damage caused by a young person whilst in the care of the authorised carer. The question which is posed in this case is whether the additional education costs of XY to attend the School, and the anticipated orthodontic costs, fall within the phrase "loss or damage", and if so, whether the young person has caused that loss or damage.
Section 147 is found within Chapter 8 of the CYP Act. That chapter makes provision with respect to "out-of-home care". Notwithstanding the terms of s 135(1), which on their face, suggest that the care provided by AB to XY could not fall within the definition of "out-of-home care", counsel for the State accepted that the care being provided by AB to XY ought to be so regarded. Were it not for the "out-of-home care" to which the Part of the CYP Act applied, then I would have serious doubts whether s 147 had any application at all to the circumstances of AB and XY. This conclusion would have lead to summary dismissal, as the State seeks.
However, in light of this concession by the State, whether correctly made or not, it is appropriate to deal with the substantive question of whether s 147 is available to be relied upon by AB, as a source of a cause of action against the State.
As well, it is necessary to consider the summary dismissal of this cause of action on the basis that AB is the "authorised carer" of XY as that term is defined in s 137 of the CYP Act, although no written authorisation of the kind referred to in Regulation 35 of the Children and Young Persons (Care and Protection) Regulation 2012, has been proved. AB's claims are predicated upon his being an authorised carer. The State accepted that he was, and therefore, no issue arose with respect to the matter.
I will therefore consider the application of s 147 of the CYP Act to the claims of AB, on the footing, although without a contested argument, that AB is an authorised carer and has provided out-of-home care to XY in accordance with Chapter 8 of the CYP Act.
Section 161 of the CYP Act, which is in Chapter 8, makes provision for the Director General of the Department to "... grant financial assistance to any person having the care of a child". Such a grant may take different forms including a grant, an allowance or a refund of expenditure or other form approved by the Director-General.
The State points to this section as being the pathway by which the Department can pay for the ordinary and usual expenses of rearing a child, including education expenses and orthodontic expenses. It submits that this discretionary but ample power, enables the Director-General to formulate policy and abide by it, so as to create predictability of decision-making, clarity of expectations of authorised carers and fairness and equity in the distribution of such funds as are available to the Department for the care of children in these circumstances.
The State submits that, if s 147 were to be the basis for such expenditure, then because it is an indemnity and a decision as to the ordinary and usual expenditure incurred in raising a child, being a decision made by the authorised carer, then the Department could never predict or control such expenditure and, accordingly, such expense could be incurred by parents in a way which would result in budgetary difficulties, if not confusion for the Department.
However, if the indemnity is interpreted so as to treat the words "loss" and "damage" consistently with "physical damage", that is, a neighbour's broken window caused by the child playing backyard cricket or perhaps by engaging in unlawful conduct by throwing a rock through the window, or other like matters, then it has work to do. As well, there being an indemnity covering any loss sustained by a carer caused by the careless or unlawful act of a child, then the Director's budgetary position could be properly moderated by obtaining insurance if that was thought appropriate.
It seems to me that the proper meaning to be attributed to s 147 of the CYP Act becomes clear when attention is paid to the words "... that is caused by a child or young person". It is impossible to conclude that the ordinary costs of raising the child, that is, food and accommodation, education and medial dental expenses, can constitute a loss which is caused by the child or young person.
They are certainly costs to the authorised carer providing for the child, but the expression "... caused by ..." is simply not apt to apply to those costs and expenses. The educational expenses here claimed to be owing pursuant to s 147 were not caused by XY. The expenses arise because of the agreement between AB and the School about the terms upon which XY could be enrolled, and remain enrolled, as a student at the School. The expenses may relate to XY, but the debt owed has arisen from a contractual obligation into which AB entered without, at least initially, the knowledge and consent of the Minister.
The orthodontic expenditure, which is not yet incurred, is not caused by XY within the meaning of s 147 of the CYP Act. Since XY is under 18 years of age, any agreement for the provision of these services is with her parent or authorised carer. These expenses when incurred are not caused by XY. The expense relates to her and reflects orthodontic treatment from which she benefits. But it is, in my opinion, not possible to say that she has caused them.
Accordingly, in my view, the second cause of action pleaded by the plaintiff cannot succeed. There is no injustice in such a conclusion. The expenses incurred by an authorised carer can be reimbursed with the Director-General making a grant pursuant to s 161 of the CYP Act. An application would need to be made, and would be the subject of a formal decision by the Director-General (or their delegate). Any such decision is capable of challenge by, at least, judicial review.
There remains a question to be determined which is whether this expression of opinion is sufficient for summary dismissal to be granted as the State's Motion seeks. As Barwick CJ said in General Steel at p130:
"Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."
In light of my conclusion that upon its proper interpretation, s 147 of the CYP Act cannot sustain the plaintiff's second cause of action, and because I am satisfied therefore that in accordance with r 13.4(1)(b), namely that no reasonable cause of action is disclosed, and having regard to the overriding purpose set out in the provisions of s 56 of the Civil Procedure Act and the authorities and principles to which I have earlier referred, it is appropriate to exercise the power to summarily dismiss the proceedings.
Form of Statement of Claim
As I have earlier noted, the form of the Statement of Claim does not comply with the UCPR. Amongst many other things, the relief claimed, which I have set out in [28], in paragraphs 1 to 4 inclusive and paragraph 7 of the pleading, does not reflect the substance of the causes of action pleaded. They ought to be struck out.
However, notwithstanding any conclusions about compliance of the pleading with the UCPR, in light of the fact that I propose to dismiss the plaintiff's claim, no additional order is necessary with respect to the pleading.
Costs
In light of my conclusions that the proceedings should be summarily dismissed, and not withstanding the strength of his own convictions in the righteousness of the claims expressed by AB in his submissions, it is appropriate that costs follow the event.
Orders
I make the following orders:
(1) Order, pursuant to s 7 of the Court Suppression and NonPublication Orders Act 2010, that there be no publication or other disclosure of the identity of the plaintiff, his daughter, or of the second defendant school, or of any evidence or other material which would tend to reveal their identity.
(2) Statement of Claim filed 11 December 2012 be, and hereby is, dismissed.
(3) AB to pay the costs of the State of NSW of the proceedings.
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Decision last updated: 21 February 2014
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