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Heptonstall v Gaskin

Heptonstall v Gaskin

Case [2004] NSWSC 80 26 March 2004

Jurisdiction

Administrative Action

Implied Terms

Standing

Administrative Law

Employment & Labour Law

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CITATION: Heptonstall v Gaskin & Ors [2004] NSWSC 80 revised - 30/03/2004

HEARING DATE(S): 18/02/04

JUDGMENT DATE:
26 March 2004

JUDGMENT OF: Whealy J at 1

DECISION: 1. The appeal is dismissed and the orders made by Master Harrison are confirmed. Paragraphs 35 to 37 inclusive of the plaintiff's amended statement of claim are stuck out. 2. Paragraphs 32 to 34 inclusive of the plaintiff's amended statement of claim are struck out. 3. I grant leave to the plaintiff to make an application to amend further its statement of claim in relation to implied terms of the contract between the plaintiff and the third defendant. 4. I grant liberty to apply on 3 day's notice. 5. I reserve the question of costs.

LEGISLATION CITED: Teaching Services Act 1980
Supreme Court Rules
Teaching Services (Education Teaching Service) Regulation 1994
Employment Rights Act 1996
Industrial Relations Act 1971
Children's Act 1989

CASES CITED: Sullivan v Moody; Thompson v Connon (2001) 207 CLR 562
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
State of New South Wales v Paige (2002) NSWCA 235
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 286
Prothonotary of the Supreme Court of New South Wales v Pangallo (1993) 67 A Crim R 77
Re; Maraj (a Legal Practitioner) (1995) 15 WAR 12
Webster v Lampard (1993) 177 CLR 598
NRMA Insurance Limited v A. W. Edwards Pty Ltd (NSWCA 11 November 1994)
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 271 and 293
Sidebottom v Cureton (1937) 54 WN (NSW) 88
Bank of New South Wales v Murray (1963) 80 WN (NSW) 272
Spellson v George (1992) 26 NSWLR 666 per Young AJA
Wyong Council v Shirt (1980) 146 CLR 40
Reynolds v Katoomba RSL All Services Club Ltd (2001) 53 NSWLR 43
Preston v Star City Pty Ltd (1999) NSWSC 1273 per Wood CJ at CL at para 37
Malik v BCCI (1998) AC 21
Johnson v Unisys Ltd (2003) 1 AC 518
Gogay v Hertfordshire County Council (2000) IRLR 703
McCabe v Cornwall County Council (2003) IRLR 87
Addis v Gramophone Co [1909] AC 488

PARTIES :
Gregory Heptonstall - Plaintiff
Brian Gaskin - 1st Defendant
Sharlene Hutcherson - 2nd Defendant
State of New South Wales - Third Defendant

FILE NUMBER(S): SC 20239/00

COUNSEL: Mr B. Gross QC; Mr Mark J. Walsh - Plaintiff
Mr P. Menzies QC; Mr R. Weinstein - 3rd Defendant

SOLICITORS: MacMahon Associates - Plaintiff
I. V. Knight -Crown Solicitor - 3rd Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WHEALY J

FRIDAY 26 March 2004
20239/00 - Gregory HEPTONSTALL v Brian GASKIN &

Ors

JUDGMENT

1 HIS HONOUR: This is an appeal from a decision by Master Harrison. On 1 August 2003 Master Harrison ordered that paragraphs 35 to 37 of the plaintiff’s amended statement of claim be struck out. The learned Master came to the conclusion that those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Heptonstall v Gaskin

Details

AGLC: Heptonstall v Gaskin [2004] NSWSC 80
Case: [2004] NSWSC 80
Decision Date: 26 March 2004

CaseChat Overview and Summary

In the case of Heptonstall v Gaskin, the plaintiff, Gregory Heptonstall, appealed against the decision of Master Harrison, who had struck out paragraphs 35 to 37 of Heptonstall's amended statement of claim. The plaintiff claimed damages against the third defendant, the State of New South Wales, alleging negligence on the part of the Department of Education in conducting investigations and disciplinary proceedings against him. The court was required to determine whether the plaintiff's claims disclosed a reasonable cause of action and whether the pleadings should be struck out.

The court found that the plaintiff's claims for negligence did not disclose a reasonable cause of action. The court relied on the principles established in Sullivan v Moody, which held that a duty of care does not exist where there is a statutory obligation to carry out an investigation. The court held that the statutory scheme under the Teaching Services Act 1980 and the regulations created a protective disciplinary system, the primary purpose of which was to protect students. The court concluded that the existence of a duty of care in the present case would create inconsistent obligations and would be incompatible with the statutory scheme.

The court also found that paragraphs 32 to 34 of the plaintiff's amended statement of claim, which pleaded the existence and breach of the implied terms of the contract between the plaintiff and the Department of Education, should be struck out. The court granted leave to the plaintiff to make a further application to amend the statement of claim in relation to implied terms of the contract between the plaintiff and the third defendant. The court also granted liberty to apply on three days' notice and reserved the question of costs.

In summary, the court dismissed the appeal, confirmed the orders made by Master Harrison, and struck out certain paragraphs of the plaintiff's amended statement of claim. The court granted leave for the plaintiff to amend the pleadings relating to the implied terms of the contract between the plaintiff and the third defendant and reserved the question of costs.

Orders