Fildes v. State of Queensland

DISTRICT COURT OF QUEENSLAND

CITATION:

Fildes v State of Queensland [2008] QDC 10

PARTIES:

MARK JOHN FILDES

Plaintiff

AND

STATE OF QUEENSLAND

Defendant

FILE NO/S:

BD2956/07

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

8 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2008

JUDGE:

McGill DCJ

ORDER:

Order that paragraph 22 of the statement of claim be struck out, together with the references to paragraph 22 in paragraphs 23 and 25;  liberty to replead within 14 days;  application otherwise dismissed, with costs. 

CATCHWORDS:

NEGLIGENCE – Duty of Care – economic loss – whether duty to father to protect welfare of children – father incurred legal costs - claim not summarily terminated.

NEGLIGENCT – Public Policy – witness - no action lies for negligence in respect of evidence given.

PRACTICE – Summary judgment for the defendant – striking out – whether appropriate for novel claim of negligently causing economic loss.

PRACTICE – Enforcement – order of Family Court concerning children – no action lies for damages for breach.

Child Protection Act 1999 ss 4, 5.

Agar v Hyde (2000) 201 CLR 552 – applied.
Attorney‑General (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 – cited.
Barclays Bank Ltd v Milne [1963] 1 WLR 1241 – cited.
Cabassi v Vila (1940) 64 CLR 130 – applied.
Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 – considered.
Cloud v State of Queensland [2002] QCA 458 – distinguished.
Duffy v De Rozzoli (1887) 8 LR (NSW) 153 – cited.
Lloyd v Lewis [1963] VR 277 – cited.
Mills v Sheehan [2007] SASC 365 – followed.
Perre v Apand Pty Ltd (1999) 198 CLR 180 – considered.
Plevins v St Kilda and Brighton Railway Co (1863) 2 W and W (L) 17 – cited.
Pritchett v English &Colonial Syndicate [1899] 2 QB 428 cited.
Sullivan v Moody (2001) 207 CLR 562 – distinguished.
Winsor v Dunford (1848) 12 QB 604, 116 ER 996 – cited.
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 – considered.

COUNSEL:

J O McClymont for the plaintiff

K Philipson for the defendant

SOLICITORS:

McDonald Brown solicitors for the plaintiff

CL Lohe Crown Solicitor for the Defendant

1. Adam, a child who was then just over six weeks old, died on 15 February 2002.  In November 2004 his mother was convicted in the Supreme Court at Brisbane of his manslaughter, and sentenced to a term of imprisonment.  Adam was one of three boys, triplets, born on 2 January 2002.  The plaintiff was their father, and he and the mother were also the parents of another, somewhat older child.  They had separated by the time of Adam’s death, and the four children were residing with the mother.[1]

   [1]All of this is admitted on the pleadings, as are the facts in the next paragraph.

1. Shortly after Adam’s death the plaintiff commenced proceedings in the Family Court against the mother seeking orders that the surviving children reside…