DC v State of New South Wales - [2009] NSWSC 297

No judgment structure available for this case.

CITATION: DC v State of New South Wales [2009] NSWSC 297

HEARING DATE(S): 16 - 17 March 2009

JUDGMENT DATE :
28 April 2009

JUDGMENT OF: Mathews AJ

DECISION: 1. proceedings dismissed;
2. plaintiff to pay the defendants' costs

CATCHWORDS: PROCEDURE - application for summary dismissal - obligations of Department of Youth and Community Services in 1983 on learning of child sexual abuse - no common law duty to notify police - no evidence of negligence

LEGISLATION CITED: Child Welfare Act 1939
Children (Care and Protection) Act 1987
Limitation Act 1969
Uniform Civil Procedure Rules 2005

CATEGORY: Principal judgment

CASES CITED: Breen v Williams (1995) 186 CLR 71
Commonwealth of Australia v Griffiths [2007] NSWCA 370
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
General Steel Industires Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125
Pyrenees Shire Council v Day (1997 - 1998) 192 CLR 330
TC v State of New South Wales [1999] NSWSC 31
TC v State of New South Wales [2001] NSWCA 380
Webber v New South Wales [2003] NSWSC 1263

PARTIES: DC (Plaintiff)
State of New South Wales (1st Defendant)
CQ (2nd Defendant)

FILE NUMBER(S): SC 20155/08

COUNSEL: AS Morrison SC / JL Carr (Plaintiff)
I Harvey (Defendants)

SOLICITORS: Graham Jones (Plaintiff)
IV Knight (Crown Solicitor) (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Mathews AJ

Tuesday 28 April 2009

20155/08 DC v The State of New South Wales & Anor

JUDGMENT
Introduction

1 HER HONOUR: TB and DC are sisters. TB was born in July 1967 and DC in October 1970. Their parents separated when they were very young. Not long afterwards their mother met LJ, whom she subsequently married. The family surname was changed to J. Thereafter both girls were sexually abused by their stepfather, commencing at a very young age. They complained to their mother on numerous occasions, but the abuse continued. In April 1983 TB complained to the then Department of Youth and Community Services (“the Department”). The second defendant, who was a District Officer in the Department, was assigned to their case. She investigated the complaint and took the matter before the Children’s Court on several occasions. However, contact between LJ and the two girls continued, as did the sexual abuse. This finally finished early in 1984, approximately eleven months after the Department had become involved.

2 It was not until 2007 or 2008 that TB and DC became aware that they each suffered a psychiatric illness as a result of their childhood sexual abuse, and that they might have a cause of action against the Department. Accordingly, in April 2008, they commenced separate proceedings in this Court against the defendants. The Amended Statement of Claim (“ASC”) in each case raises causes of action in negligence, breach of fiduciary duty, misfeasance in public office as well as criminal misconduct on the part of the defendants. Subsequently, the defendants applied by Notice of Motion for an order that the proceedings be summarily dismissed on the basis that they are frivolous or vexatious and that no reasonable cause of action is disclosed. The plaintiff in each case applied for an order, pursuant to s 60G of the Limitation Act 1969 for the cause of action to be extended so as to enable these proceedings to be brought. The issues raised by these Notices of Motion were the subject of the hearing before me.

3 Identical issues of law are raised in the proceedings brought by TB and DC. In all relevant respects the ASC in the two proceedings are intended to be the same. They differ in relation to the factual details of the individual plaintiffs, which have no bearing upon the legal issues involved. However during the hearing it was noted that an essential allegation was missing from TB’s ASC. Accordingly, in this judgment I will be quoting from DC’s ASC. In all other respects these reasons for judgment apply equally to both proceedings.

4 It is appropriate to deal first with the defendants’ motion. Only if that is unsuccessful will it be necessary to turn to the limitations issue.

5 Before discussing the legal issues involved, it is necessary to say something more about the factual background, particularly in relation to the dealings between the plaintiffs and the defendants after the first complaint was made in April 1983.

Factual background

6 TB was first sexually abused by LJ in 1974 – 1975 when she was about eight years old. DC’s abuse commenced not long afterwards when she was only five years old. It commenced in each case with vaginal fondling and moved on to full penile oral and vaginal intercourse. It took place on a frequent and regular basis, notwithstanding that the plaintiffs’ mother had been told on several occasions what her husband was doing to her daughters. Sometimes LJ photographed the girls in sexual positions. He was also prone to visit physical violence on the girls, sometimes inflicting visible injuries.

7 Eventually, in April 1983, TB telephoned YACS and complained about LJ’s sexual and physical assaults upon herself and her sister. On 20 April 1983 the second defendant, CQ, interviewed TB at her then school. The second defendant was put in charge of the case. Two days later, on 22 April, the second defendant interviewed DC. Both girls complained that their stepfather had been sexually assaulting them. On 28 April the second defendant spoke to the plaintiffs’ mother, who confirmed that she already knew what was happening in the household. The second defendant recorded these interviews in typed statements.

8 On 2 May 1983 the second defendant, as informant, had the matter put before the Cobham Children’s Court (“the CC Court”). Each of the plaintiffs was charged with being a neglected child within the meaning of the Child Welfare Act 1939 (“the Act”). Four days later, on 6 May 1983, the second defendant had a lengthy conversation with both TB and DC. The matter came again before the CC Court on 9 May 1983 when both plaintiffs were released into the care of their mother.

9 A further hearing took place before the CC Court on 20 June 1983. For the purpose of those proceedings the second defendant prepared a lengthy report in which she described the complex family dynamics and the traumas suffered by the two girls. The report listed nine issues of concern in the family, including “LJ’s longstanding history of inappropriate sexual behaviour and sexual offences”. The report went on to say that it was considered “vital” that the girls be “protected from the possibility of further abuse and from living in fear of abuse”. The report finally recommended that the plaintiffs be released to the care of their mother upon the condition that they not reside with LJ, and that contact between them and LJ occur only if they request it, such contact to occur away from the family home and its grounds. The girls were to attend counselling as recommended by the second defendant. Given the complexities in the family situation, it was suggested that the matter come back before the Court after three months, thereby enabling an opportunity for “such assessment and evaluation to be conducted by the professionals already involved with the family before a firm recommendation can be made”.

10 It seems that shortly after this hearing LJ moved out of the family home and went to live in rented premises in Blacktown. Notwithstanding the conditions of the remand, he frequently returned to the family home and resumed his assaults of the plaintiffs. Moreover, the plaintiffs’ mother often took them to visit LJ, where sexual assaults also took place.

11 On 15 September 1983 the second defendant interviewed LJ who freely admitted having sexually interfered with both plaintiffs. On 19 September 1983 the second defendant prepared a lengthy report for presentation before the CC Court. In it she noted that LJ had been making frequent visits to the home. She expressed great concern about this as the visits had been very distressing, particularly for TB. She said that TB was “terrified” of her stepfather, particularly as she was the one who had exposed the abuse. She wanted nothing more to do with him, but felt pressured by her mother into agreeing to his visits to the house. The second defendant noted that it was “highly inappropriate” for TB to have to deal with such pressure so frequently. Nowhere in this extremely detailed report is there any reference to the plaintiffs having been sexually assaulted by LJ during the remand period. The report concluded by saying that further assessment would be necessary in order to clarify many of the family issues.

12 It would appear that there was a further hearing before the CC Court on 19 September 1983. On this occasion the plaintiffs and their mother were independently represented by solicitors. Mrs J’s solicitor objected to the continuation of the conditions restricting the plaintiffs’ contact with their step-father. The Magistrate declined to adopt this approach, expressing surprise that Mrs J would prefer the word of “a person with criminal convictions” over her own two daughters. The Magistrate emphasised that the interests of the children were the paramount consideration and said that the children would be allowed to remain at home only “on the basis that he does not attend the home at all”. The matter was adjourned until 24 October 1983. A psychiatric report in relation to the children was sought in the meantime.

13 In a relatively brief report, dated 21 October 1983, the second defendant said that the family situation remained generally unchanged. There was no reference to any further contact between the plaintiffs and their step-father. Also prepared for the hearing on 24 October was a report from Ian Skead, a psychologist with the Cobham Clinic, relating to both TB and DC. TB in particular had exhibited high levels of hostility. Mr Skead considered that she would benefit from counselling or therapy.

14 No transcript is available of the proceedings on 24 October 1983. It would appear that both plaintiffs were released into the care of their mother with the same conditions as before.

15 The papers indicate that there were two further hearings before the CC Court, on 7 November 1983 and 17 July 1984. However nothing turns on these. In the meantime, it appears that LJ’s abuse of his step-daughters continued until approximately March 1984. There is no precise evidence on this matter, but I was informed by Mr Morrison SC for the plaintiffs that this would be the gist of their evidence. Certainly in March 1984 TB left home and moved into the family of her then employer, who were very supportive of her. She had no further contact with her step-father. DC spent periods of time in foster homes and also in detention centres. She did not return to live with her mother until 1985, by which time her mother’s relationship with LJ had come to an end.

16 Both the plaintiffs subsequently married and had children. It is unnecessary for present purposes to chart their paths through life, but they both clearly suffer serious ongoing problems from the sexual abuse they suffered as children.

17 In August 2001 both plaintiffs attended Gosford Police Station and reported the sexual assaults to police. However, it was not unitl June 2004 that LJ was arrested and charged in relation to these matters. He was subsequently committed for trial. His trial commenced on 1 August 2005. Initially he pleaded not guilty. However, a few days later he asked to be re-indicted, at which time he pleaded to all eight charges outstanding against him. The following is a summary of those charges:

1. indecent assault of TB between 1 January 1974 and 31 December 1974

2. rape of TB between 1 January 1974 and 31 December 1974

3. indecent assault of DC between 1 January 1975 and 31 December 1975

4. rape of DC between 1 October 1977 and 1 October 1979

5. assault occasioning actual bodily harm to TB between 1 January 1978 and 31 December 1978

6. indecent assault of DC between 1 October 1978 and 1 October 1979

7. indecent assault of DC between 1 October 1978 and 1 October 1979

8. indecent assault of DC on 1 October 1978

18 Both plaintiffs were present during the court proceedings. Both found the event extremely traumatic, particularly TB who had symptoms consistent with a panic attack.

19 LJ was not sentenced in relation to these offences until September 2006. In the meantime, both plaintiffs exhibited symptoms of severe anxiety, largely caused by the fact that LJ was at large on bail. Indeed, TB was admitted as an inpatient at the Northside Clinic for several weeks during this period.

20 On 6 March 2007 both plaintiffs attended a conference with Mr Morrison SC, who advised them for the first time that they might have a cause of action against the two defendants. Until then the plaintiffs had assumed that the only person they could sue was LJ, who was in gaol and had little by way of assets.

21 In February 2008 both plaintiffs underwent lengthy psychiatric assessments by Dr Michael Diamond. His reports, dated 15 February 2008 (TB) and 19 February 2008 (DC), expressed the view that neither of them was fully aware of the nature of her psychiatric injury until the court proceedings of 1 August 2005.

22 On 2 May 2008 these proceedings were commenced.

Defendants’ Notice of Motion

23 On 20 June 2008 the defendants filed a Notice of Motion pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (“the UCPR”). That rule provides, relevantly, as follows:

the court may order that the proceedings be dismissed generally or in relation to that claim.

24 The general principles relating to the summary disposal of proceedings have been long established: see Dey v Victorian Railway Commissioners (1949) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125. It has variously been stated that a case should be disposed of by the entry of summary judgment only when it is “so obviously untenable that it cannot possibly succeed” or “manifestly groundless”. As Beazley JA said in Commonwealth of Australia v Griffiths [2007] NSWCA 370 at [12]:

“The summary disposal of proceedings or part thereof deprives a party of the right to a contested hearing. For that reason it is said that the requirement for establishing that there is no triable issue is demanding.”

25 With this background I turn to discuss the issues raised in the plaintiffs’ Amended Statements of Claim.

Amended Statements of Claim

26 The ASC in each case pleaded the following causes of action against both defendants:

· negligence

· criminal misconduct

· breach of fiduciary duty

· misfeasance in public office.

During the course of the hearing, and as a result of discussion between counsel and myself, certain of these were abandoned and others were clarified, in the manner described as follows.

Negligence

27 Paragraph 41 of the ASC is in the following form:

not

28 There followed ten “Particulars of negligence”, set out in paragraphs 42(a) to (j). Further allegations of negligence were raised in paragraphs 44 and 47, as I shall describe shortly.

29 The first six particulars of negligence, as set out in paragraphs 42(a) to (f) refer to the defendants’ “failure to remove the plaintiff from her mother’s care” at various times between April and September 1983. The fundamental difficulty with these grounds is that, under the Act as it applied at that time, only the Children’s Court had the power to remove a child from the custody or charge of a parent. Mr Morrison SC, who appeared for the plaintiffs, recognised this difficulty and conceded that these heads of negligence would need to be abandoned.

30 Paragraph 42(g) is in the following form:

“(g) failure to report suspicions and/or admissions of felonious conduct by LJ to the police forthwith”

31 Paragraphs 42(h) to (j) are in the following terms:

Child Welfare Act

(i) Alternatively, in the knowledge that LJ had admitted to multiple rapes and acts of gross indecency committed upon the plaintiff, the Second Defendant did fail to notify or cause the Director to be notified of such admissions.

(j) Further in the alternative the First Defendant by its servant the Director if notified of the said admissions by LJ failed to report such admissions to the police forthwith.”

32 In order to understand the thrust of these allegations, it is necessary to turn to s 148B of the Act. The relevant provisions are as follows:

(a) a medical practitioner; and

(b) a person who is a member of any class of persons prescribed for the purposes of this paragraph, being a person who follows a profession, calling or vocation, other than a solicitor or barrister in the course of his profession, so prescribed, or who holds any office so prescribed.

(2) Any person who forms the belief upon reasonable grounds that a child –

(a) has been assaulted; or

(b) is a neglected child within the meaning of Part XIV, may -

(c) notify the Director of his belief and the grounds therefor either orally or in writing; or

(d) cause the Director to be so notified.

(a) notify the Director of the name or a description of the child and those grounds either orally or in writing; or

(b) cause the Director to be so notified

promptly after those grounds arise.

…

(a) promptly cause an investigation to be made into the matters notified to him; and

(b) if he is satisfied that the child in respect of whom he was notified may have been assaulted, ill-treated or exposed, take such action as he believes appropriate, which may include reporting those matters to a constable of police.

(a) the notification shall not, in any proceedings before a court, tribunal or committee, be held to constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct;

(b) no liability for defamation is incurred by reason of the making of the notification;

(c) the notification shall not constitute a ground for civil proceedings for malicious prosecution or for conspiracy;

33 Paragraph 42(h) in the ASC presupposes that the second defendant was required by s 148B(3) of the Act to notify the Director (meaning the permanent head of the Department) of her suspicions that the plaintiffs had been assaulted. However, in 1983 no person or category of people had been prescribed under paragraph 148B(1)(b). Accordingly, the mandatory requirements of s 148B(3) applied only to medical practitioners. When this was pointed out to Mr Morrison, he conceded that the plaintiffs could not rely upon this head of claim.

34 I turn to paragraph 42(i). This claim appears to assume that, quite apart from s 148B(3), the second defendant had an obligation to notify the Director of the sexual abuse sustained by the plaintiffs. There is no provision in the Act which creates such an obligation. Mr Morrison at one stage sought to rely on s148B(2). However, that provision is permissive only.

35 There is, in any event, a more fundamental reason why these claims cannot stand. The plaintiffs’ pleadings, and their supporting submissions, are based on the proposition that s 148B imposed an obligation on the second defendant, being an officer within the Department, to refer all matters involving assault, ill-treatment or neglect to the head of the Department, at which point the requirements of s 148B(5) would become activated.

36 However, it is clear, in my view, that both the mandatory and permissive provisions of s 148B are directed, not at departmental officers, but at the public at large. This interpretation is supported by the terms of the section itself. As at 1983, the only “prescribed person” under s 148B(1) was a medical practitioner. It is also supported by the subsequent legislative history of the provision. In 1987 the Act was repealed and replaced by the Children (Care and Protection) Act 1987. Section 22 of that Act imposed reporting requirements in terms which were very similar to s 148B. As in s 148B(1), the obligation to report was imposed on a medical practitioner or a person following another profession of calling as prescribed by the regulations. On this occasion regulations were enacted under the section, and the following professions and callings were prescribed:

37 If any further support were needed for this interpretation of s 148B, it is to be found in subsection (6). The protections set out therein would generally be unnecessary in relation to intra-departmental reports.

38 For all these reasons I am satisfied that the thrust of s 148B is to require or enable members of the public outside the Department to report their beliefs or suspicions to the Department. Although the Act does not specifically say so, such a report would be taken to be a report to the Director under s148B. It would therefore attract the protections provided in subsection (6) and would activate the requirements of subsection (5).

39 In the present case the initial notification to the Department was made by TB on 20 April 1983. This must be taken to have been pursuant to s 148B(2). The requirements of s 148B(5) were thereupon immediately activated.

40 My understanding of the plaintiffs’ submissions is that they were seeking to use the second defendant’s purported failure to notify the Director in accordance with s 148B(2) or (3) as a vehicle towards activating the requirements of s 148B(5). As already noted, it is unnecessary to undertake such a circuitous route. The obligations under subsection (5) were activated immediately upon TB’s notification to the Department on 20 April 1983. It follows that paragraph 42(i) of the ASC raises no actionable claim. Paragraph (j) is a re-formulation, with a narrower focus, of the claim already made in paragraph 42(g) and is therefore pure surplusage.

Criminal misconduct

41 Paragraphs 43 and 44 of the ASC are in the following terms:

“43 The Plaintiff further says that both Defendants in the performance of their respective duty to take reasonable care of the Plaintiffs were required, as a matter of law to report to the New South Wales Police their knowledge of the committing of indictable offences by LJ against the Plaintiffs.

Particulars of Criminal Conduct

Failure to inform the New South Wales Police of the allegations of physical and sexual abuse of the Plaintiffs by LJ following investigations made by both defendants including statements made by the Plaintiffs and their mother and the making of admissions to the second defendant by LJ on 15 September 1983.

44 The Plaintiff says that in the breach of the duty of care owed to them, the defendants were negligent in failing to report the committing of such indictable offences and consequently are guilty of the common law offence of misprision of felony”

42 The plaintiffs submit that the defendants’ obligation to report LJ’s offences to the police arose by virtue of the common law offence of misprision of felony, which arguably still existed in 1983.

43 During submissions relating to this claim, Mr Harvey for the defendants pointed out that the criminal onus would apply to this allegation. I hope I am not misconstruing Mr Morrison’s response, but I understood him then to say that the plaintiffs did not wish to assert criminal misconduct on the part of the defendants as a separate head of claim. My understanding of the plaintiffs’ case is that they were seeking to rely upon the fact that misprision of felony remained an offence in 1983 to show that the defendants had an obligation to report the matter to the police, thereby giving content to the duty of care which the defendants were said to have owed to the plaintiffs. It was for this purpose only that the plaintiffs sought to rely upon misprision of felony, namely as advancing their claim in negligence. If one were to replace the words “Particulars of Criminal Conduct” in para 43 with “Particulars of Breach of Duty”, and to delete the last phrase of paragraph 44 (“and consequently …”), the ASC would reflect this intention. I therefore propose to notionally make those amendments, and deal with these paragraphs under the heading of “negligence”. Accordingly, there is no remaining claim for criminal misconduct and I put this matter to one side.

Breach of fiduciary duty

“41A The defendants and each of them assumed the duties owed to a fiduciary at the time investigation of the said complaints was undertaken and most especially at the time when the Second Defendant was informed by LJ of his abuse, rapes and acts of gross sexual indecencies committed on the plaintiffs.

…

45 Further and in the alternative, the defendants had a duty to advise the Plaintiff that she by a tutor might commence proceedings against the defendants for the breaches of duty and criminal misconduct as particularised.

44 This head of claim pre-supposes the existence of a fiduciary relationship between the plaintiff and the defendants. Various authorities were referred to in this respect. I do not propose to go through them here. Suffice it to say that the relationships which were found to give rise to fiduciary responsibilities were much closer than the relationship between the parties in this case. The reporting of sexual abuse to the Department certainly gives rise to statutory obligations, particularly under s 148B(5). But it is insufficient, in my view, to establish a fiduciary relationship between the person making the complaint and the Department or its officers.

45 In any event, even assuming the existence of such a relationship, the breaches claimed by the plaintiffs in this case are clearly untenable. They suggest that the defendants were in breach of their obligations to the plaintiffs by failing to commence proceedings against themselves or inform the plaintiffs of their right to independently commence such proceedings. Even accepting, for the sake of the argument (and contrary to my ultimate findings in this matter), that the plaintiffs did have a right of action against the defendants, it is bordering on the absurd to suggest that the defendants were in breach of their duty to the plaintiffs by failing to sue themselves in the plaintiffs’ name. Moreover, as the authorities confirm, the duties imposed on a fiduciary are proscriptive (i.e. negative – not to do certain things) and are not prescriptive (requiring positive action) (see Dunford J in Webber v New South Wales [2003] NSWSC 1263). As Gaudron and McHugh JJ said in Breen v Williams (1995) 186 CLR 71 at 113:

“In this country, fiduciary obligations arise because a person has come under an obligation to act in another's interests. As a result, equity imposes on the fiduciary proscriptive obligations -- not to obtain any unauthorised benefit from the relationship and not to be in a position of conflict. If these obligations are breached, the fiduciary must account for any profits and make good any losses arising from the breach. But the law of this country does not otherwise impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed.”

46 In my view no cause of action is established under this head.

Misfeasance in public office

47 Paragraph 48 of the ASC is in the following terms:

“The Plaintiff further says as against the Second Defendant that she is guilty of misfeasance in public office.

Particulars of plea of misfeasance in public office

At all material times:

(a) The Second Defendant was the holder of a public office in that she was a District Officer with the Department of Youth and Community Service.

(b) The Second Defendant with reckless disregard did fail to comply with s 148B(3) of the Child Welfare Act 1939 in that as a a prescribed person who in exercising the functions of her office had reasonable grounds to suspect that a chid had been assaulted, ill-treated or exposed and had obtained an admission from the stepfather of various offences including rape and acts of gross indecency but did not notify the Director, as defined in s 4 of the said Act of all of these matters promptly after those grounds arose, whereby the Director did not have the opportunity to cause an investigation in to the matters notified to him and if so satisfied that the child may have been assaulted, ill-treated or exposed, to take such action as he believed appropriate which action should have included reporting those matters to a constable of police.

48 This head of claim is based upon the assumption that the second defendant was required by s 148B of the Act to report the matter to the Director of the Department. For reasons already given there was, in my view, no such obligation. Accordingly, no actionable claim is asserted under this head.

49 It follows that three of the four heads of claim pleaded in the ASC do not, in my opinion, raise viable causes of action against the defendants. The only remaining cause of action is in negligence, to which I now turn.

Negligence

50 This is the sole cause of action which remains for consideration. It is essentially encapsulated in the claims made in paragraph 42(g) of the ASC and in paragraph 44 (as notionally amended according to paragraph [43] above). The claim under this head is that the defendants were negligent in failing to report the plaintiffs’ allegations to the police immediately upon their becoming aware of them, or alternatively upon LJ admitting to the sexual abuse.

51 The plaintiffs rely on the judgments in TC v State of New South Wales [1999] NSWSC 31 and TC v State of New South Wales [2001] NSWCA 380 as establishing, at least on an arguable basis, that the defendants owed the plaintiffs a duty of care once a notification under s 148B had been received.

52 The plaintiff in TC was a child who had been sexually abused when very young. He was the subject of numerous reports to the Department through the early 1980s. At that point the similarities with the present case end. The nature of the relationship between TC and the Department was quite different from that which applies here, as was the action taken by the Department in relation to TC. In due course TC commenced proceedings claiming negligence on the part of the Department as a result of the failure of departmental officers to adequately protect him during his childhood. This was the first time an Australian court had been asked to determine whether the Department owed a common law duty of care to a child in these circumstances. In a detailed and thorough judgment, which examined all relevant authority on the matter, Studdert J concluded that the Department owed a duty of care towards the plaintiff. As to the nature of the duty, Studdert J quoted extensively from the judgments in Pyrenees Shire Council v Day (1998) 192 CLR 330, and relied particularly on the following passage from the judgment of Gummow J. (at 91):

“The general rule is that ‘when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned by their exercise, damages for negligence may be recovered.’ ( Caledonian Collieries Ltd. V Speirs (1957) 97 CLR 202 at 220, Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 436, 458, 484)”

Studdert J. concluded that the measure of the duty imposed upon the Department was “a duty to exercise reasonable care in the discharge of the mandatory requirements of s 148B.”

53 TC appealed to the Court of Appeal against Studdert J’s findings relating to causation (which are immaterial to the issues raised here). The defendant cross-appealed, contending that his Honour erred in his findings as to duty of care and breach. As it transpired, the appeal was resolved by reference only to the causation issue. In relation to the question of a duty of care, Mason P (with whom Priestley and Beazley JJA agreed) declined to make any final ruling, saying that the issue was an “arguable” one.

54 It follows that, for the purpose of these proceedings, I must assume, in the plaintiffs’ favour, that, once the matter had been reported to the Department under s 148B, a common law duty of care was established in the defendants to take reasonable care for the plaintiffs’ safety in the performance of their statutory obligations.

55 To this point there was no serious dispute between the parties in the proceedings before me. Mr Harvey conceded that I was bound to follow the Court of Appeal in TC and find, for present purposes, that a duty of care existed. The significant dispute between the parties arose in relation to the nature or content of that duty, a matter to which I now turn.

The nature of the duty of care

56 The essence of the plaintiffs’ case is that the defendants had an obligation to inform the police of any criminal offences which came to their notice. This obligation arose by virtue of the common law offence of misprision of felony, which the plaintiffs submit still existed in the early 1980s. This obligation was said to give content to the duty of care which the defendants owed to the plaintiffs once the matter was reported to them under s 148B of the Act. In other words, the defendants were under a duty to the plaintiffs to report any criminal offences to the police or the prosecuting authorities. This they failed to do, notwithstanding their certain knowledge by September 1983 that LJ had been sexually abusing the plaintiffs.

57 Mr Morrison emphasised during submissions that the plaintiffs have no complaint as to the thoroughness of the investigation undertaken by the defendants upon being notified of the plaintiffs’ complaints. This was an appropriate concession, for the evidence shows that the investigation was both prompt and thorough. It is also a significant one, for the only mandatory requirement under s 148B is, pursuant to par (5)(a), to “promptly cause an investigation to be made into the matter notified.” It follows that the plaintiffs have no complaint as to the manner in which the defendants performed their sole mandatory obligation under this section. The only remaining provision of relevance is paragraph (5)(b). This provides that, if the Director is satisfied that the child in respect of whom he was notified may have been assaulted, ill-treated or exposed, he “shall take such action as he believes appropriate, which may include reporting those matter to a constable of police”. The plaintiffs’ submit that the effect of this provision is that, once the Director was satisfied that any child had been the victim of a criminal offence, he owed a duty to the child to report the matter to the police.

58 On its face, I would have great difficulty in construing the broad discretion imposed on the Director in this provision as creating a positive obligation to follow any particular course. By the same token, the reference to reporting the matter to a police constable is entirely permissive. It would require a very considerable leap to import a positive obligation from a provision of this nature.

59 At this point it is appropriate to return to the facts of the present case. Not only did the defendants launch an immediate and thorough investigation into the plaintiffs’ complaints when the matter was first reported to them, but they brought the matter promptly before the Children’s Court. The Court was informed of the sexual abuse perpetrated by LJ and was asked to deal with the matter in a way which would protect the plaintiffs from any continuation of the abuse.

60 Mr Morrison did not seek to suggest that there was anything inappropriate or inadequate in the way the defendants pursued the Children’s Court proceedings. The plaintiffs’ sole complaint, as already indicated, is that reporting the matter to the Court was inadequate compliance with the defendants’ duty, given that the law required criminal offences to be reported to the police.

61 In my opinion the answer to the plaintiffs’ contention in this regard is to be found in the Court of Appeal’s judgment in TC. Mason P (with whom Priestley and Beazley JJA agreed) made the following observation:

a duty of care in the discharge of the mandatory requirements of s 148B

CLT v Connon

B v Attorney General

Barrett v Enfield London Borough Council

alleging the particular duty found in the present case

Williams v The Minister Aboriginal Land Rights Act 1983 and the State of New South Wales

62 Both parties relied upon TC for different purposes. The plaintiffs relied on it as establishing that, at least at a prima facie level, the defendants owed a duty of care to the plaintiffs. The defendants relied upon it as setting the limits of the content of that duty. The duty arguably owed by the defendant in TC, according to the judgments of Studdert J and Mason P, was a duty to take reasonable care in the discharge of the mandatory requirements of s 148B. But the plaintiffs here are not alleging that there was any breach of that duty. The duty which they seek to rely upon goes to a completely different matter, namely the reporting of criminal offences to the police.

63 It follows, in my view, that, far from assisting the plaintiffs, TC operates against them. If it is merely an “arguable” proposition that the defendants owed the plaintiffs a duty to take reasonable care in the exercise of their mandatory statutory obligations, I would regard it as an untenable one that the defendants owed the duty now asserted by the plaintiffs. This claimed duty not only goes significantly beyond any mandatory obligation under s148B, but is arguably inconsistent with that provision.

64 There are other matters, both of principle and practice, which support this conclusion. The Department’s primary obligation, upon receiving a notification under s 148B, is to act in the best interests of the child concerned. The needs of abused or neglected children vary significantly, and flexibility will always be required in order to secure an outcome which is appropriate to the particular case. Even when a criminal offence has been committed, it might not be in the child’s best interests for the matter to be reported to the police. Some years later the legislation was amended so as to require that sexual offences against children which came to the notice of the Department must be reported to the police. However no such provision existed in 1983. The welfare of the child remained the primary concern of the Department. In the present case the Children’s Court was notified that the two plaintiffs had been the subject of criminal abuse at the hands of LJ and was requested to make an order which would protect them from a continuation of that abuse. The orders made by the Court, if adhered to by the plaintiffs’ mother, would have had that effect. In other words, the abuse continued after those court proceeding, not because of any inadequate response on the part of the defendants or the court, but because the plaintiffs’ mother refused to follow the court orders. Mr Morrison submitted that, had the police been notified of LJ’s criminal behaviour, LJ would have been arrested, charged and perhaps placed into custody. Even if he had been granted bail, the conditions would have precluded any contact with the plaintiffs. Given the extreme consequences of breaching his bail undertakings, LJ would, in that event, have desisted his abuse of the plaintiffs.

65 The scenario painted by Mr Morrison in this respect contains many imponderables. In a statement annexed to her affidavit, DC said that some time in 1983 the second defendant took her to Blacktown Police Station in relation to LJ’s assaults. She was told (although it is not clear by whom) that LJ could not be charged, as both TB and she would have to make a complaint, and TB would not be able to cope with the court proceedings. Moreover, when the plaintiffs finally went to the police in 2001 and made formal complaints about LJ’s sexual abuse, it took a further three years before he was charged. Admittedly that was many years later, and the complaints at that stage probably required extensive investigation. But it serves to illustrate that, even had the defendants reported the matter to the police, the outcome to the plaintiffs might well have been no different.

66 This does not go directly to the issues raised in this application, which is concerned with conceptual rather than factual matters. However, it does give weight to my ultimate finding in this matter, namely that any duty owed by the defendants to the plaintiffs did not extend to a duty to report LJ’s criminal activity to the police.

Conclusion

It follows that no reasonable cause of action is disclosed in the Amended Statements of Claim. Nor can the situation be rectified by any form of amendment. It is therefore unnecessary to discuss the limitations issue. The conclusion is inevitable that the proceedings must be dismissed under r 13(1) of the UCPR. The defendants in each case seek an order that the plaintiff pay their costs. I have the greatest sympathy for the plaintiffs, but I can see no reason why the costs should not follow the event.

I make the following orders:

1. I dismiss the proceedings generally.

2. I order the plaintiff to pay the defendants’ costs.

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Citations

DC v State of New South Wales [2009] NSWSC 297

Most Recent Citation

TB v State of New South Wales and Quinn; DC v State of New South Wales and Quinn [2015] NSWSC 575

Cases Citing This Decision

3

DC v State of New South Wales [2016] NSWCA 198

DC v State of New South Wales [2010] NSWCA 15

TB v State of New South Wales and Quinn; DC v State of New South Wales and Quinn [2015] NSWSC 575

Cases Cited

12

Statutory Material Cited

4

Commonwealth of Australia v Griffiths [2007] NSWCA 370

Agar v Hyde [2000] HCA 41

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69

CITATION:	DC v State of New South Wales [2009] NSWSC 297
HEARING DATE(S):	16 - 17 March 2009
JUDGMENT DATE :	28 April 2009
JUDGMENT OF:	Mathews AJ
DECISION:	1. proceedings dismissed; 2. plaintiff to pay the defendants' costs
CATCHWORDS:	PROCEDURE - application for summary dismissal - obligations of Department of Youth and Community Services in 1983 on learning of child sexual abuse - no common law duty to notify police - no evidence of negligence
LEGISLATION CITED:	Child Welfare Act 1939 Children (Care and Protection) Act 1987 Limitation Act 1969 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
CASES CITED:	Breen v Williams (1995) 186 CLR 71 Commonwealth of Australia v Griffiths [2007] NSWCA 370 Dey v Victorian Railway Commissioners (1949) 78 CLR 62 General Steel Industires Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 Pyrenees Shire Council v Day (1997 - 1998) 192 CLR 330 TC v State of New South Wales [1999] NSWSC 31 TC v State of New South Wales [2001] NSWCA 380 Webber v New South Wales [2003] NSWSC 1263
PARTIES:	DC (Plaintiff) State of New South Wales (1st Defendant) CQ (2nd Defendant)
FILE NUMBER(S):	SC 20155/08
COUNSEL:	AS Morrison SC / JL Carr (Plaintiff) I Harvey (Defendants)
SOLICITORS:	Graham Jones (Plaintiff) IV Knight (Crown Solicitor) (Defendants)