Churchin v State of Queensland
[2023] QDC 263
•21 November 2023 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION:
Churchin v State of Queensland [2023] QDC 263
PARTIES:
KIERIN ADEN CHURCHIN
(Plaintiff)v
STATE OF QUEENSLAND
(Defendant)FILE NO:
2529/2022
DIVISION:
Civil
PROCEEDING:
Claim
ORIGINATING COURT:
District Court
DELIVERED ON:
21 November 2023 (ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
21 November 2023
JUDGE:
Porter KC DCJ
ORDER:
1. The Amended Statement of Claim be struck out.
2. The plaintiff have leave to re-plead.
3. The plaintiff pay the defendant’s costs of the Application filed 8 November 2023.
CATCHWORDS:
PROCEDURE – Civil proceedings in state and territory courts – Pleadings – Striking out – Generally – where the defendant applies to strike out an amended statement of claim – where the pleading does not identify the scope of any duty of care – where the pleading does not articulate the basis for the plaintiff’s duty to exercise reasonable care in aspects of its exercise of its powers under the Child Protection Act – where the pleading fails to properly plead knowledge – where the pleading of notification is not properly particularised – whether the amended statement of claim be struck out
COUNSEL:
R. Green for the Plaintif
J. Moxon for the Defendant
SOLICITORS:
Wyatt’s Lawyers for the Plaintiff
Crown Law for the Defendant
This is an application to strike out an amended statement of claim.[1] The plaintiff in the proceedings is a man now; was a boy born in 1994, and was, in broad terms, dependent upon the State of Queensland from a young age. It is alleged he was under the supervision and control of the Department of Children, Youth Justice and Multicultural Affairs, and presumably its predecessor departments. In broad terms, the statement of claim identifies the defendant as operating the foster care system, which included powers to exercise care, control and supervision of the young person by placing him with families, and supervising, broadly, that process.
[1] These reasons refer to the Amended Statement of Claim filed 20 April 2023 (CD 3).
It was alleged that the Department “had within its resources” two families: family A and family G. The defendant was, it was alleged, placed in the care, it seems to be foster care, of family A, between 6 October 1995 and 7 October 2005, a period of 10 years, from which he was two to 11. He was then placed in the care of family B from 2009, effectively to 2012. In that time, he was either under the care of family G, or under the care of the mother from family G. He was between 15 and 18 at the time. It is alleged that the Department was responsible for the acts, omissions, conduct and behaviour of foster parents; although that statement is a conclusory statement to that effect. In paragraph 2L, in respect of the defendant, it is alleged the defendant owed to the plaintiff a duty of care, and two matters are identified that inform that duty.
Paragraph 2A goes further, and purports to articulate the duty by reference to the circumstances of the Child Protection Act1999 (Qld) generally, and six specific matters, which identify, on one view of it, the scope of a duty alleged. It then goes on to plead that in family A, the plaintiff was sexually assaulted by a teenage son of the family on one occasion, when the plaintiff was about six years old. That obviously, if it occurred – remembering it is an allegation – would have potentially been distressing; but the conduct complained about from family G is much more extreme. Basically, it alleges that over the period the plaintiff was with family G, or with the foster mother from G, he was subjected to oral and penetrative sex, drug abuse, physical abuse, and so on.
In paragraph 6B, the plaintiff goes on to allege that during the time he was residing in foster care, the defendant was notified and otherwise knew from reports, by the plaintiff or others, of the sexual abuse experienced by him whilst the plaintiff was under the age of 18. No facts are pleaded from which the knowledge is inferred, and no particulars are given of the notification.
The breach is alleged in paragraph 7. Paragraphs 7(a) to (e) plead broad propositions about the defendant failing, in effect, to bring about a certain outcome in respect of the person’s care. It is said by counsel that it is implied that they are allegations of failure to exercise reasonable care, but on their face, they are not. Paragraphs (f) to (k) expressly plead a failure to take reasonable care, again, of a fairly broad nature.
The counterfactual is pleaded thereafter, in which it is said that, if the defendant had exercised the care it ought to have done in respect of the family A, it would have identified the risk of a foster child sharing a bedroom with an older boy who was in or approaching sexual maturity; and in respect of family G, it is alleged the defendant would have identified the mother in family G as not being a suitable carer, and broadly, in (f) to (i) of that paragraph, undertaken supervision that would have prevented the sexual abuse occurring. It goes on to allege that the State was directly responsible for the abuse involving family A because the alleged abuser was at all times, in a position of power and control, as a child nine years older than the plaintiff who resided within family A’s home.
As to 8B, it alleges it deals with the position of family G, and Ms G in particular, with a view to identifying the vicarious liability of the defendant for the wrongful acts of Ms G. In my respectful view, the only relevant factor that can be extracted from 8B(a) to (h) relevant to sustaining the allegation of vicarious liability, is that the defendant had put the mother in family G in a position of authority, power, trust and control as foster carer under the authority of the defendant.
There is then some pleading of damage and loss which, frankly, is yet to be fully worked out.
The State applied to strike out the pleading for a number of reasons, most of which I am satisfied are justified.
There was a challenge to paragraph 2L of the pleading, which pleads the plaintiff owed a duty of care. There are many defects with that allegation, including that it does not identify the scope of any duty, amongst others. That paragraph should be struck out.
It challenged paragraph 2A which, in substance, might be thought to plead a duty that articulates the scope of the proposed duty. In my respectful view, that paragraph is not drafted in a way likely to facilitate a fair trial of the proceedings. It uses some confused and confusing propositions. Paragraph 2A, for example, identifies the duty of the defendant as the entity:
[…] whose conduct was regulated by the terms of the CPA and bound by the duties and obligations set forth therein […]
It does not identify specifically what those provisions are or were, or what the duties and obligations are or were. It is said from the bar table that the duties and obligations are those identified in subparagraphs (a) to (f). It is not so limited, and frankly, if that is the case, then the words are irrelevant; and if it is not, it is a Trojan horse for matters to be raised at trial that have not been articulated – not that I am saying there is any such intention, of course.
Further, the duty is articulated as involving, for example, in (a) to (c), matters under 122(1)(b) and (1)(c) of the Child Protection Act1999 (Qld). Those are articulated as a duty that arises pursuant to a statutory provision. The Crown – I thought, rightly – complained that that was ambiguous as to whether it was alleging a statutory duty or a common law duty. It was sought to be clarified, by a submission from counsel for the plaintiff, that it was not intending to articulate a breach of statutory duty, but merely to inform a common law duty. But the way it is pleaded, I think, is unclear, and embarrassing in the old-fashioned sense. There is nothing wrong with the fundamental idea that provisions in a statute can relevantly inform the scope and nature of a common law duty of care; but as I have said, the way it is pleaded makes it look like it is an allegation of the tort of breach of statutory duty.
There is another difficulty, too, which is that (a) to (c), especially (a) and (c), do not actually plead what the provision says. Paragraphs (e) and (f) are in the same category, except that they really beg the question as to what the scope and nature of the duty alleged is, because they refer to provisions in the Child Protection Act1999 (Qld) which do not, of themselves, create a duty. Further, section 122 only applies under the statute to a child who falls within the scope of section 82(1) of the statute; and there is no allegation that they do, which just makes reliance on those provisions more problematic
It is not difficult to imagine that a common law duty of care might be able to be articulated that would require the defendant to exercise reasonable care in aspects of its exercise of its powers under the statute; although there might be policy reasons why such a duty would not be recognised. But it seems that paragraph 2A does not clearly do so and creates more questions than provides answers. I think paragraph 2A should be struck out.
The defendant also complained about paragraph 6B. That paragraph relevantly stated that the plaintiff was, amongst other things, a child in need of care and protection for many years, whilst a resident in foster care, and during which time the defendant was notified and otherwise knew, from reports by the plaintiff or others, of the sexual abuse experienced by him whilst the plaintiff was under the age of 18 years. It is necessary to plead facts from which a state of mind is to be inferred, and in any event, this is utterly central to the case being advanced by the plaintiff and needs to be pleaded for that purpose, as well.
These involve events that happened some time ago. There is nobody from the thousands and thousands of employees of the defendant, at that time and since, who had anything to do with it; so 6B fails to properly plead knowledge.
There is also a pleading of notification, which would need to be particularised. It seemed to me preferable to strike out 6B so that that any allegation, particularly of knowledge, can be properly pleaded by reference to the instructions, which must surely be in the possession of the plaintiff’s legal team. I interpolate here, or I mention here, that one might think that a very persuasive pleading of 6B might have a consequence for the future of the proceedings.
The plaintiff then challenges the pleading of breach. I do not need to speak to that in detail. I think there is merit in the defendant’s proposition that, despite the 10 or 11 particular allegations of failure to take reasonable care – although I note the first five are not articulated in that way, but as an absolute breach – what one is left with is no knowledge at all about what the State did do that, exercising reasonable care, it should not have done; or/and what the State did not do that, exercising reasonable care, it should have done. The authorities referred to by counsel for the State in paragraphs 24 to 28, not surprisingly, make plain that the purpose of pleading a breach is to plead those specific matters.
If that is not done, the defendant does not know exactly what case they have to meet, and furthermore, the plaintiff is put in a position of finding it very difficult to articulate causation of loss.
In this case, looking at the pleading overall, and discussing the case in submissions with counsel for the defendant, it seems clear that the real case, as disclosed in paragraph 8, is that the State either did not have a good system for assessing foster parents, or it did have such a good system, and it did not carry that out competently; and that, as a result, the mother in family G would never have been a foster mother, and all of those subsequent events could have been avoided.
The alternative argument seems to be that either the State did not have a proper system of investigating how foster placements were going; or if it did, again, it was not carried out competently, and as a result, if it had been, then these issues would have come up, and some of the conduct would have been avoided.
I do not understand what can be achieved by not grasping the nettle and pleading all of that directly. What is certainly the case is that the allegations currently in the statement of claim conceal, rather than state, what the case is really going to be about, and for those reasons, paragraph 7 and, in my view, 8 (because it needs to be redrafted by reference to the way 7 is dealt with), should be struck out.
Paragraph 8A is all that can be said to create liability in the State for the act of a child of the family in which the plaintiff first found himself – that is family A. The only breach, and the highest it can be put as to what went wrong in that case, is that the plaintiff was put in a position in family A’s house of sharing a bedroom with an older boy approaching sexual maturity.
Those matters together, by themselves, in my mind, cannot possibly give rise to a cause of action; so, I strike out paragraph 8(a), specifically, and 8A, and I do not give leave to replead in respect of that cause of action. Mr Green, who appeared for the plaintiff, did not seek leave to replead in respect of those paragraphs.
As to 8B, there was quite a bit of legal argument about this. Counsel for the defendant did not really try to gild the lily. He accepted that, at the heart of his vicarious liability pleading, was that the mother in family G was in a position to do the things she did because she was authorised as a foster carer by the defendant to do so. Counsel with the plaintiff, Mr Moxon, did not advance the argument that it would be impossible for a vicarious liability pleading to be sustained in a case like this. His submission was that the matter which underpins 8B is not sufficient as a matter of law to give rise to vicarious liability.
Bearing in mind that this is a strike out, and the complaint about this paragraph is not to do with form or the nature of the pleading, but its legal sufficiency, on a strike out basis, I am not sufficiently persuaded that the case, as currently articulated, is unarguable to strike out paragraph 8B. I should say, though, that based on the arguments advanced by Mr Moxon for the State, it looks like a slender basis to bring the case within the scope of what might be called category 2, vicarious liability, as articulated in the decision of Justices Edelman and Steward in CCIG Investments in the High Court recently.[2]
[2] [2023] HCA 21, especially at [51].
There were some critiques of the damages claim. I am not inclined to strike that out. It is going to have to be substantially recast as opportunities arise to properly prepare the evidence. The real issue is causation of loss, and that will have to be addressed as part of the repleading of the scope of the duty, the nature of the breach, and how that breach caused the loss.
So no one is in any doubt, it seems to me that if the case is, for example, “but for the inadequate system of assessing; or but for the negligent carrying out of a good system, I would not have suffered these injuries”, a bare pleading of that fact is not enough to establish causation, unless a proper system, as articulated in a pleading, or a competent application of the good system would have had, on the balance of probabilities, the result that family G would not have been assessed as suitable. I think there might be difficulties about causation. It is not a res ipsa loquitur case.
And I say that because in the broad scheme of things, the foster system, of course, is not perfect. The State must make judgments about the suitability of people, based in some cases on imperfect information. It is not the case that if things were done properly, nothing bad could ever happen, sadly. Accordingly, the articulation of the causal nature of the breach leading to the loss, which is the exposure to the alleged offending, needs to be specifically pleaded.
So, for those reasons, I strike out paragraphs 2L, 2(l), 2A, 6B and 7, and I think 8, because it will need to be recast by reference to the formulation of the breach. I strike out 8A. I do not strike out 8B or anything else in the pleading.
Counsel for the plaintiff expressed an intention to produce an entirely new pleading. Accordingly, I order that the amended statement of claim be struck out, with leave to replead in all respects, (except in respect of the alleged case against the State arising out of the family A event).
The State sought an order for costs, relying on Northern Territory v Sangare.[3] It was submitted that a costs order would have the effect of creating difficulties for him in running his cause of action, unless there is some way that the order could be articulated in a fashion that is not suggesting that it’s payable now, and that any duty or obligation that the plaintiff had to pay would be upon the completion of the claim, successfully or otherwise. I was not persuaded by those submissions.
[3] (2019) 265 CLR 164.
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