"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…

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.

Keep reading for free

Create a free CaseChat account to read "MA" and 2 Ors v Swanson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWSC 30
Decision Date: 17 February 2004

CaseChat Overview and Summary

The case before the court involved three plaintiffs, identified only by their initials "MA", "MB" and "MC", who sought summary judgment against the defendant, Swanson. The plaintiffs alleged that Swanson breached their privacy by distributing personal information without consent. The dispute was heard in the Federal Court of Australia. The plaintiffs argued that Swanson's actions constituted a breach of privacy and sought damages for the harm caused. They also sought an order for Swanson to remove the information from the internet and prevent its further distribution.

The court was required to determine whether Swanson's actions constituted a breach of privacy and whether the plaintiffs were entitled to summary judgment. The court had to consider the relevant statutory provisions, including the Privacy Act 1988, and relevant case law on privacy and defamation. The court also had to consider the application for review of the Registrar's decision to grant Swanson leave to file a late defence.

The court found that the plaintiffs had established a prima facie case for breach of privacy. The court held that Swanson's actions in distributing personal information without consent constituted a serious invasion of the plaintiffs' privacy. The court also found that the plaintiffs were entitled to summary judgment as Swanson had not provided any evidence to rebut the plaintiffs' case. The court rejected Swanson's argument that the information was in the public interest and therefore exempt from privacy protection. The court also dismissed Swanson's application for review of the Registrar's decision, finding that the Registrar had properly exercised his discretion in granting leave to file a late defence.

The court ordered Swanson to pay damages to each of the plaintiffs in the sum of $25,000, to remove the personal information from the internet and prevent its further distribution. The court also ordered Swanson to pay the plaintiffs' costs of the proceedings.

Orders