David Maurice Withyman BY Tutor Glenda Ruth Withyman v State of New South Wales

[2013] HCASL 173

DAVID MAURICE WITHYMAN BY TUTOR GLENDA RUTH WITHYMAN

v

STATE OF NEW SOUTH WALES & ANOR

[2013] HCASL 173

S42/2013

1. The applicant seeks special leave to appeal against an order of the Court of Appeal of the Supreme Court of New South Wales (Allsop P, Meagher and Ward JJA) allowing, in part, an appeal from a decision of the District Court of New South Wales (Elkaim SC DCJ). 

2. On 1 September 2010, the District Court found the second respondent, a schoolteacher, liable in negligence for engaging in a sexual relationship with the applicant, a pupil.  The primary judge awarded damages of $120,293.65 in favour of the applicant.  The applicant's claims against the first respondent, for breach of duty of care and vicarious liability for the actions of the second respondent, were dismissed by the primary judge.  Both the applicant and the first respondent sought leave to appeal against the primary judge's decision. The second respondent appealed as of right.

3. On 11 February 2013, the Court of Appeal set aside judgment for the applicant against the second respondent and remitted the matter back to the District Court to hear and dispose of the second respondent's defence under the Limitation Act 1969 (NSW). The first respondent's applications for leave to appeal and cross-appeal were dismissed.

4. On the question of vicarious liability, the Court of Appeal found that the first respondent's conduct neither created nor enhanced the risk of sexual activity between the applicant and the second respondent.  It followed that the first respondent was not vicariously liable for the second respondent's actions, and the applicant's appeal was dismissed.  The applicant now seeks special leave to appeal to this Court against the Court of Appeal's orders with respect to his appeal.

5. The application is brought out of time and the applicant seeks an order dispensing with the requirement to comply with the time limit in r 41.02.1 of the High Court Rules 2004.

6. Further, the application has been brought before the District Court has finally determined the matter of primary liability remitted to it by the Court of Appeal. 

7. The Court of Appeal's decision turned on the particular facts and circumstances of the case.  No point of general principle would fall for consideration if special leave to appeal were to be granted.

8. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
9 October 2013 S.M. Crennan