AB v State New South Wales - [2014] NSWSC 81

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 147
Legislation 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 Rules
Cases 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 198
Category: 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…

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.

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Details

Case: [2014] NSWSC 81
Decision Date: 21 February 2014

CaseChat Overview and Summary

AB initiated legal proceedings against the State of New South Wales, asserting claims related to his role as an authorised carer under the Children and Young Persons (Care and Protection) Act 1988. AB argued that he should be recognised as an employee of the State, entitling him to indemnity for any loss or damage caused by a child or young person in his care. Additionally, he sought to include ordinary and usual expenses associated with rearing a child within the scope of the indemnity. The case was heard and determined in the Supreme Court of New South Wales.

The court was tasked with deciding whether AB's claims presented a reasonable cause of action. Specifically, the court had to determine if AB's assertion that he was an employee of the State of New South Wales was reasonable and whether the indemnity provision could be interpreted to include ordinary and usual expenses of rearing a child. These issues required a careful examination of the statutory language and the legislative intent behind the Children and Young Persons (Care and Protection) Act 1988.

The court found that AB's claims did not present a reasonable cause of action. It concluded that AB's interpretation of being an employee of the State was not supported by the statutory language or legislative intent. Furthermore, the court held that the term "loss or damage" as used in the Act did not encompass ordinary and usual expenses of rearing a child. Consequently, AB's claim for indemnity was dismissed.

As a result of the court's determination, AB's claims were dismissed with no orders for costs. The court's decision hinged on a strict interpretation of the statutory language and the legislative framework, leaving no room for AB's interpretation of the provisions.

Orders