AB v State of New South Wales

[2014] NSWCA 416

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AB v State of New South Wales [2014] NSWCA 416

Hearing dates:

28 November 2014

Decision date:

28 November 2014

Before:

McColl JA at [1] and [18];
Leeming JA at [2]

Decision:

1. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there be no publication or other disclosure of the identity of the applicant, his daughter or the 2nd respondent school, or of any evidence or other material which would tend to reveal their identity.

2. The summons for leave to appeal is dismissed, with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave - summary dismissal of claim - no reasonable prospect of success - leave refused

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)
Children and Young Persons (Care and Protection) Act 1988 (NSW), ss 79, 147
Civil Procedure Act 2005 (NSW), s 56
Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases Cited:

AB v State of New South Wales [2014] NSWCA 243

Category:

Principal judgment

Parties:

AB (Applicant)
State of New South Wales (1st Respondent)
The School (2nd Respondent)

Representation:

Counsel:
In person (Applicant)
M Allars SC (1st Respondent)
Solicitors:
NSW Crown Solicitor (1st Respondent)

File Number(s):

2014/239598

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the names of the Applicant and 2nd Respondent have been suppressed.

 Decision under appeal 

Citation:

[2014] NSWSC 81

Date of Decision:

2014-02-21 00:00:00

Before:

Garling J

File Number(s):

2012/384382

Judgment

1. McCOLL JA: I will ask Leeming JA to deliver the first reasons.

1. LEEMING JA: This is an application for leave to appeal against the summary dismissal of proceedings commenced by AB against the State of New South Wales. The claim concerns expenses incurred, and to be incurred, by the father of a child at school. The primary judge made non-publication orders of the names of the father, his daughter, and the school pursuant to the Court Suppression and Non-Publication Orders Act 2010 (NSW). The same course is appropriate here. In these reasons the father will be referred to as "AB", and his daughter as "XY".

1. The primary judge recorded that in September 2005, when XY was 7 years and 9 months old, orders were made in the Children's Court at Woy Woy allocating parental responsibility for XY to the Minister for Family and Community Services. Those orders were varied, by consent, on 23 November 2006 by the District Court, as a result of which XY was to live and reside with AB "for the foreseeable future". Relevantly, for present purposes, the District Court ordered that pursuant to s 79 of the Children and Young Persons (Care and Protection) Act 1988 (NSW), parental responsibility for XY was allocated "in relation to all aspects, solely to the Minister ... until she attains the age of 18 years".

1. Over the ensuing years, AB incurred expenses in the education of XY. They included payments of school-related expenses, for music, excursions, and other matters.

1. The primary judge referred, at [25], to an internal briefing note within the Department concerning a claim by AB for back payment of the Care Allowance, in these terms:

"[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."

1. On 11 December 2012, AB filed a statement of claim seeking recovery of payments by way of the Care Allowance and reimbursement for out-of-pocket expenses.

1. The primary judge referred to the fact that the pleading was lengthy, had been drafted by AB apparently without the assistance of a lawyer, and was "discursive, argumentative, repetitive, and clearly bad in form". The statement of claim was not included in the materials assembled by the applicant for the purposes of the leave application. Bearing in mind that the applicant was unrepresented on this application, as he was at first instance, the parties were advised at the beginning of the hearing that the Court had obtained a copy of the statement of claim and reviewed it.

1. The statement of claim commences:

"Displacement of the right, duties and obligations of Parental Responsibility

Particulars

An important legal precedent and issue of social policy is raised by these pleadings as the Plaintiff is in an arguably unique and unusual position at law. It involves the contention in the eyes of the law, that at the Minister's discretion, the rights, duties and obligations of inherent Parental Responsibility in a biological parent, survive operation of the law to prevail over the authorisation of an Authorised Carer vested in that same parent, and also prevail over that of a Minister who is vested with sole Parental Responsibility by operation of the law."

1. The pleading is divided into two principal sections. The first is titled "Breach of Statutory Duty within the Anti-Discrimination Act 1977 (NSW) to provide employment free of discrimination for employees". The second is titled "Breach of Statutory Duty to Indemnify an Authorised Carer".

1. The primary judge identified two causes of action within the statement of claim, as follows:

"[34] 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.

[35] 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.

[36] 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.

[37] 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.

[38] This cause of action is to be found between paragraphs 7 and 43 of the plaintiff's Statement of Claim.

[39] 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'.

[40] 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.

[41] This cause of action is to be found between paragraphs 44 and 74 of his Statement of Claim."

1. The State applied, promptly, for the pleading to be dismissed summarily. His Honour, in a reserved judgment, addressed in some care (and uncontroversially) the applicable legal principles at [44]-[54] and the parties' submissions at [55]-[73]. His Honour concluded that AB did not have a tenable claim to be an employee of the State at [74]-[89], dealing with each of the matters relied upon by AB in support of that claim. His Honour concluded at [88]:

"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."

1. His Honour addressed the second cause of action, that said to arise under s 147 of the Children and Young Persons (Care and Protection) Act 1988 (NSW), at [90]-[108], and likewise concluded that s 147 could not sustain AB's cause of action. Accordingly, his Honour dismissed the proceedings, with costs.

1. Leave is required because his Honour's judgment was interlocutory. Further, an extension of time is required. The State consents to the extension of time, in light of the history of proceedings in this Court, which commenced with a timely but incompetent notice of appeal: see AB v State of New South Wales [2014] NSWCA 243.

1. The draft notice of appeal contains no fewer than 18 grounds. Proposed ground 17 claims that the primary judge erred by not giving sufficient to "the overriding purpose" in s 56 of the Civil Procedure Act 2005 (NSW) in light of evidence said to show that AB was about to be sued by the school. The pleading alleges that the school claims an amount of $2,328 from the plaintiff. This was said to "necessitate the same evidence and submissions being presented to the appellant's defence at a civil trial". There is nothing in that ground.

1. Proposed ground 18 states that the primary judge erred in failing to accord AB natural justice by not hearing separately on the matter of costs. The State sought to dismiss the proceedings and to obtain a costs order so that AB had the opportunity to make any submissions for a special costs order at that hearing. There is nothing in this ground either.

1. It is not necessary to address the detail of the other proposed grounds, all of which are directed to criticisms of aspects of the reasoning of the primary judge supporting his Honour's conclusion that neither pleaded cause of action was tenable. Nothing in the proposed grounds of appeal, nor the written submissions filed by AB, nor in the oral submissions made by AB in chief and in reply which we have heard this afternoon, supports the conclusion that the proposed appeal has any reasonable prospects of success. In particular, it does not follow from the fact that some decisions on the nature of a relation of employment, in varying contexts (including tax and vicarious liability), are broadly expressed that there was a relationship of employment between the State and AB in the present case sufficient to sustain a claim under the Anti-Discrimination Act. It is sufficient to say that I regard the claims of AB being an employee of the State, and having a claim under s 147 of the Children and Young Persons (Care and Protection) Act 1988 (NSW) as being of insufficient strength to warrant a grant of leave.

1. I therefore propose that the summons be dismissed with costs.

1. McCOLL JA: I agree with Leeming JA's reasons and the order his Honour proposed. The orders of the Court therefore are as his Honour proposed.

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Decision last updated: 04 December 2014