"MA" and 2 Ors v Swanson

[2004] NSWSC 30

CITATION:

"MA" & 2 Ors v Swanson & Anor [2004] NSWSC 30

HEARING DATE(S):

1 December 2003

JUDGMENT DATE:

17 February 2004

JURISDICTION:

Common Law

JUDGMENT OF:

Master Harrison

DECISION:

(1) The plaintiffs' amended statement of claim filed 3 September 2001 is struck out pursuant to Part 15 r 26 SCR; (2) The second defendant's notice of motion filed 6 May 2002 is dismissed; (3) The plaintiffs are to pay the second defendant's costs as agreed or assessed.

CATCHWORDS:

Summary judgment - Review of Registrar's decision

LEGISLATION CITED:

Child Welfare Act 1939 (NSW)
Children (Care and Protection) Act 1987 (NSW)
Supreme Court Rules - Part 15 r 26

CASES CITED:

Mann v O'Neill (1997) 191 CLR 204
Sullivan v Moody (2001) 1`83 ALR 404; 75 ALJR 1570
TC by his tutor Sabatino v State of New South Wales [2001] NSWCA 380

PARTIES :

"MA"
(First Plaintiff)

"TA"
(Second Plaintiff)

"SA"
(Third Plaintiff)

Kim Marie Swanson
(First Defendant)

State of New South Wales
(Second Defendant)

FILE NUMBER(S):

SC 20206/1997

COUNSEL:

Ms Margaret Bateman
(Plaintiffs)

Mr M W Anderson
(Second Defendant)

SOLICITORS:

Mr Christopher Fotis
(Plaintiffs)

Mr Paul Rankin
Crown Solicitors
(Second Defendant)

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	20206/1997
LOWER COURT JUDICIAL OFFICER :	Assistant Registrar Howe

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

TUESDAY, 17 FEBRUARY 2004

20206/1997 - “MA” & 2 ORS v KIM MARIE SWANSON
& ANOR
JUDGMENT (Summary judgment, review of Registrar’s
decision)

1 MASTER: Before me are two notices of motion. Firstly, by notice of motion filed 6 May 2002 the second defendant seeks firstly an order that the orders of Assistant Registrar Howe made on 8 April 2002 be set aside; secondly, in the alternative, the plaintiffs further amend their amended statement of claim to plead all material facts giving rise to alleged breaches of duty and statutory duty; thirdly, that the plaintiffs provide full particulars as to the content of the duty alleged by the plaintiffs to be owed to each of the plaintiffs; and fourthly, in the alternative, that the plaintiffs provide proper answers to the further request for particulars requested by the second defendant by letter within 7 days be provided on or before 21 days from receipt of that request.

2 Secondly, by notice of motion filed 25 September 2002 the second defendant seeks an order that the amended statement of claim (ASC) filed 3 September 2001, or portions of it, be struck out as disclosing no reasonable cause of action; or alternatively that the amended statement of claim be struck out as embarrassing, bad in form, or otherwise an abuse of process, pursuant to Part 15 r 26 of the Supreme Court Rules (1970) (SCR) (1970). The first defendant has not been served with the statement of claim nor the amended statement of claim.

3 On 19 December 1996 the Department of Community Services (DOCS) removed the first plaintiff “MA” from the care and control of the second and third plaintiffs alleging he was a child in need of care pursuant to the Children (Care and Protection) Act 1987 (NSW). On or about 24 December 1996 the first and second defendants caused proceedings to be instituted in the Children’s Court of New South Wales sitting at Cobham (the Children’s Court) in relation to “MA”. Thus, there was a relatively short period of 20 days between notification and the commencement of court proceedings.

4 It is pleaded that from 19 December 1996 until 29 August 1997, the second defendant kept the first plaintiff in its care, continually alleging to the Children’s Court abuse and/or that inadequate provision had been made for the first plaintiff by the second and third plaintiffs, or abuse was likely to occur and/or that inadequate provision was likely to be made for the first plaintiff by the second and third plaintiffs. On 29 August 1997 the Magistrate decided that DOCS had failed to prove its case in the Children’s Court proceedings. In September 1997 the Magistrate ordered that DOCS pay $34,000.00 approximately for the legal costs of “SA” and $27,000.00 approximately for the legal costs of “TA”.

5 On 31 October 2000 I delivered judgment in relation to the second defendant’s earlier strike out application. In that judgment I referred to the law on summary judgment which I do not reproduce here. Since that judgment was delivered an amended statement of claim (filed 13 September 2001) has been filed. The plaintiffs plead negligence, breaches of statutory duties and defamation. They claim damages for personal injury namely shock, anxiety, depression and ongoing psychological trauma.

6 I shall refer firstly to the parent’s claim, secondly the child’s claim, thirdly the defamation claims and fourthly, depending on the outcome of the preceding claims, the appeal against the Assistant Registrar’s decision.

7 At paragraphs 25 and 26 of my last judgment I stated:

“The plaintiff alleged that a duty of care was owed to the plaintiff that required the State, by its employees in the Department to establish and to follow sound procedures for dealing with allegations of and investigations relating to sexual abuse of children, and for dealing with medical examinations to determine whether sexual abuse had occurred. It should be noted that the facts in CLT differ from the ones alleged in these proceedings.

In CLT Doyle CJ agreed with the above reasons identified by Lord-Browne Wilkinson in X (Minors) Doyle CJ came to the view that it impose on employees of the department a duty of care to the parent of a child when there is an allegation of sexual abuse and the parent is a possible suspect, the duty of care relating to the conduct of those employees in their management of the complex situation that follows, would be to involve the court in the review of difficult issues which the court is ill-placed to review, and which are unlikely to be satisfactorily resolved in a forensic context. Doyle JA stated that “it is obvious that matters of belief, judgment, impression, and so on will play a large part in the making of decisions. The imposition of a duty of care might easily encourage a degree of caution on the part of employees of the department that would, in the longer term, be contrary to the interest of children requiring protection. The imposition of a duty of care would not sit at all easily with treating the interest of the child as paramount.”

8 And at paragraphs 30 and 31 I stated:

“The defendant submitted that Studdert J considered the relevant sections in the Child Welfare Act which are similar to those in the Children (Care and Protection) Act 1987. That is not so. As previously stated there is an appeal in TC . TC is not “on all fours” with these proceedings. On one view in these current proceedings, DOCS commenced an investigation which after 17 days resulted in DOCS initiating court proceedings to remove the first plaintiff from his parents, the second and third plaintiffs. The decision ultimately made was one of a court. Like TC this case is based on common law negligence claim and not a specific claim for breach of statutory duties. Since the judgment in TC was delivered the High Court gave judgment in Crimmins .

While ultimately the court may adopt the reasoning of X (Minors) in this case, the facts and circumstances of this case need to be ascertained at trial. As occurred in TC the court would need to examine the relevant statutory provisions. The law in this area is developing and should not be stifled. The plaintiffs are pleading that the case was not fairly prosecuted by the defendant. The law in this area is developing. For these reasons, it is my view that the plaintiffs’ case should be permitted proceed to trial. I am not satisfied that it is hopeless. Accordingly, the notice of motion is dismissed.”

9 Since then two recent decisions have been handed down, namely the High Court decision of Sullivan v Moody (2001) 183 ALR 404; 75 ALJR 1570 and the Court of Appeal decision of TC by his tutor Sabatino v State of New South Wales [2001] NSWCA 380. The second defendant submitted that these decisions have clarified the legal duty of care. The second defendant submitted that there is no cause of action because there is no such duty of care.

10 In Sullivan S and T, were suspected of sexually abusing their respective children. S is the father of a young daughter. S’s daughter made certain comments to her mother, which ultimately led to the daughter being examined by a medical practitioner. The medical practitioner concluded that the daughter had been sexually abused. No criminal charges were laid against S. The allegations against S were, however, pursued in Family Court proceedings where they were resolved in S’s favour.

11 T is the father of three young sons. In 1986, T’s wife attended a sexual assault referral centre with the sons. One son was examined by a medical practitioner and the other two by a different medical practitioner. Both medical practitioners concluded that the sons appeared to have been sexually abused. While T was charged by the police with sexual offences, those charges were ultimately dropped. S and T denied abusing their respective children. They alleged that the medical practitioners, social workers and others involved in the investigation of the allegations of sexual abuse owed them a duty to exercise reasonable care in the conduct of the investigation, and that such persons were negligent in concluding that S and T had abused their children. S and T alleged that as a result of the negligence of those involved in the investigation they suffered shock, distress and psychiatric harm, as well as personal and financial loss.

12 The High Court held that a duty of care was not owed to an alleged perpetrator of sexual assaults by doctors and social workers who were engaged to investigate whether children had been the victims of such sexual assaults. The High Court commented [at para 53] that there were cases, such as the one before them, in which:

“to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted.”

13 The court also stated [at para 60] that:

“The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which the powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.”

14 The duty of care for which the appellants contended did not exist.

15 In their submissions the plaintiffs highlighted a section of the passage from Sullivan quoted above, where the High Court stated:

“The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable.”

16 The plaintiff submitted that the facts and circumstances still needed to be ascertained and Sullivan did not change this necessity. However, it is my view that, as in Sullivan, the duties of care that the parents allege do not exist. The facts and circumstances do not alter the duty of care as pleaded. In so far as the parents allege negligence and breaches of statutory duties, those paragraphs of the statement of claim should be dismissed.

The child

17 The situation of the child raises a separate issue from that of the parents. TC provides some support for the child’s case. In TC it was alleged that the State through the Department of Youth and Community Services (YACS) and its officers, owed a common law duty of care to children in respect of whom there has been a notification within the terms of s 148B of the Child Welfare Act 1939 (NSW). Studdert J upheld this submission. The measure of the duty imposed upon YACS by the receipt of notifications was described as a duty to exercise reasonable care in the discharge of the mandatory requirements of s 148B. On appeal this duty was challenged but not overturned.

18 However, TC is to be distinguished on its facts from the case before this court. In TC Studdert J found that YACS was obliged to promptly investigate the subject matter of the notification under s 148B. The claim against the State was based solely on acts of negligent omission on the part of officers of YACS. In this instance, proceedings were instigated as a result of investigations within a very short period of time. Although the plaintiff alleges that the investigations were themselves negligent in the way in which they were conducted, I repeat the words of Doyle CJ in CLT at 61 where he said that:

“it is obvious that matters of belief, judgment, impression, and so on will play a large part in the making of decisions. The imposition of a duty of care might easily encourage a degree of caution on the part of employees of the department that would, in the longer term, be contrary to the interest of children requiring protection.”

19 As in CLT matters of belief, judgment and impression would have played a part in the department’s decision-making in relation to the child. The principles referred to earlier in Sullivan apply. There is no duty of care. Further, the duty of care alleged by the child is inconsistent with the statutory obligations which oblige the department to investigate these allegations.

20 Accordingly, I find that the duty alleged in respect of the child does not exist and therefore his allegations of negligence and breaches of statutory duty in the statement of claim should also be dismissed.

3. Defamation

21 The plaintiffs asserted a cause of action in defamation at a time when proceedings were instituted and on foot in the Children’s court; the first defendant was a witness; and when it is the fact that the matters complained of, if actual events, are the subject of absolute privilege. The second defendant submitted that there is no legal basis for the matters complained of in the ASC.

22 The publication of such alleged comments is pleaded as being restricted to one person, Dianne Fields the aunt of the child and his then carer as by agreement and by order of the Children’s Court. Dianne Fields was a witness in the proceedings. The second defendant submitted that, as such they are subject to absolute privilege.

23 The plaintiff alleges that the specific breaches of statutory duty pursuant to ss 115 and 119 of the Children (Care and Protection) Act 1987. Section 115 states:

“115 Disclosure of information
A person who discloses any information obtained in connection with the administration or execution of this Act is guilty of an offence unless the disclosure is made:
(a) with the consent of the person from whom the information was obtained,
(b) in connection with the administration or execution of this Act,
(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings,
(d) in accordance with a requirement imposed under the Ombudsman Act 1974 , or
(4) with other lawful excuse.”

24 And s 119 states:

“119 False or misleading statements
A person shall not, in any application under this Act or in connection with an inquiry made by an officer in relation to any such application:
(a) make a statement, or
(b) furnish information,
that the person knows to be false or misleading in a material particular.
Maximum penalty: 5 penalty units.”

25 In Mann v O’Neill (1997) 191 CLR 204, Brennan CJ, Dawson, Toohey and Gaudron JJ said at 211-213:

“It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an "occasion properly incidental [to judicial proceedings], and necessary for [them]".

It is also settled law that absolute privilege attaches to statements made in the course of quasi-judicial proceedings …It may be that, so far as concerns communications between officers of State in the course of their official duties, absolute privilege attaches by reason of broad considerations of public policy and convenience. However, a more precise basis was identified for that aspect of the privilege in Gibbons v Duffell , it being said in that case that absolute privilege attaches because it is "indispensable to the effective performance of ... official functions."

26 The statements in question were made during court proceedings. Absolute privilege clearly attaches to such statements. Section 115 of Children (Care and Protection) Act 1987 (NSW) permits where disclosure is made for the purposes of any legal proceedings arising out of the Act or of any report of any such proceedings or for any “lawful excuse”. The plaintiff’s allegations of defamation cannot be maintained. The statement of claim should be dismissed.

27 The plaintiffs’ amended statement of claim filed 3 September 2001 should be struck out pursuant to Part 15 r 26 SCR because it discloses no reasonable cause of action.

Review

28 As the amended statement of claim has been struck out, there is no longer any need to consider the defendant’s notice of motion of 6 May 2002 appealing Assistant Registrar Howe’s decision and it is dismissed.

29 Costs are discretionary and follow the event. The plaintiffs are to pay the defendant’s costs as agreed or assessed.

30 The court orders:

(1) The plaintiffs’ amended statement of claim filed 3 September 2001 is struck out pursuant to Part 15 r 26 SCR .

(2) The second defendant’s notice of motion filed 6 May 2002 is dismissed.

(3) The plaintiffs are to pay the second defendant’s costs as agreed or assessed.
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Last Modified: 02/18/2004