Klewer v State of New South Wales

[2006] HCATrans 108

[2006] HCATrans 108

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S284 of 2005

B e t w e e n -

LUCY KLEWER

Applicant

and

STATE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 MARCH 2006, AT 9.03 AM

Copyright in the High Court of Australia

HAYNE J:   The applicant seeks special leave to appeal against orders of the Court of Appeal of New South Wales.  By those orders, Giles and Bryson JJA refused leave to appeal against orders made by Murray DCJ in the District Court of New South Wales dismissing the applicant’s claim for damages for trespass to person and property, false imprisonment and wrongful arrest.  The applicant also claimed that the respondent was negligent in inflicting nervous shock upon her.  There was a separate action by the applicant’s children against the State of New South Wales, two officers of the Department of Community Services (“DOCS”) and one police officer alleging trespass to land and false imprisonment.  The two proceedings were heard together and arose out of action taken by DOCS in relation to concerns that the applicant’s children may have been at risk.

The principal issue at trial was whether before and at the time of entry to the applicant’s premises, the respondent suspected on reasonable grounds that the children were in immediate danger of abuse. If an authorised officer or member of the police force held such a suspicion, s 60 of the Children (Care and Protection) Act 1987 (NSW) (“the Act”) gave them the power to search premises for any such child and remove them, without the need for a warrant.

Because the applicant is unrepresented, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

The applicant’s written submissions in support of the application for special leave state that the application raises questions as to the correct application of the principles for determining whether s 60 of the Act applies and for determining damages for trespass. It is also argued that Murray DCJ’s assessment of the evidence was incorrect, and that his Honour erred in failing to consider oral evidence from the applicant’s adult children regarding the events in question.

The applicant’s arguments cannot be substantiated. Murray DCJ undertook a lengthy review of the evidence and concluded, as it was open to him to do on the facts before him, that in all the circumstances the respondent’s officers could reasonably hold, and did in fact hold, a suspicion that the children were in immediate danger of abuse, as required when exercising powers under s 60. Furthermore, the ground with respect to the evidence of the applicant’s adult children was not raised in the Court of Appeal and, in any event, was considered by Murray DCJ. Ultimately, this application raises no general principle which would warrant the grant of special leave. There is no reason to doubt the correctness of the conclusions of the courts below.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. I publish that disposition.

AT 9.06 AM THE MATTER WAS CONCLUDED