New South Wales v DC - [2017] HCA 22

HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE AND GORDON JJ
STATE OF NEW SOUTH WALES APPELLANT
AND
DC & ANOR RESPONDENTS
New South Wales v DC
[2017] HCA 22
14 June 2017
S35/2017
ORDER
1.Special leave to appeal in relation to ground 2 of the notice of appeal dated 23 February 2017 revoked.
2.The appellant pay the respondents' costs.

On appeal from the Supreme Court of New South Wales
Representation
N J Williams SC with I L Harvey and L A Coleman for the appellant (instructed by Crown Solicitor (NSW))
A S Morrison SC with J R K Pryde and N F Morrissey for the respondents (instructed by Graham Jones Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Negligence – Duty of care – Statutory power to report abuse of child to police – Where duty of care in exercise of statutory powers conceded – Where scope or extent of duty disputed – Where primary judge found that no authority acting reasonably could regard failure to report abuse to police as reasonable exercise of statutory powers in present case – Where State conceded that only reasonable exercise of statutory powers in some cases may be to report abuse to police – Whether appropriate in light of concessions to consider scope or extent of duty – Special leave to appeal revoked.
Tort – Vicarious liability – Where State conceded vicarious liability for breach of duty of care – Where statute providing for vicarious liability of Crown not in force – Where concession may not have reflected applicable law at relevant times – Special leave to appeal revoked.
Words and phrases – "duty of care", "scope or extent of duty", "statutory discretionary power", "vicarious liability".
Child Welfare Act 1939 (NSW), Pt XIV, s 148B(5).
Civil Liability Act 2002 (NSW), s 43A.
Law Reform (Vicarious Liability) Act 1983 (NSW), s 8.

KIEFEL CJ, BELL, GAGELER, KEANE AND GORDON JJ. Two sisters, the respondents, were subjected to sustained physical and sexual abuse by their stepfather for many years. On or shortly before 20 April 1983, one of the sisters, TB, made a complaint about the abuse to the Department of Youth and Community Services ("the Department"), a department of the appellant, the State of New South Wales. TB and the other sister, DC, were then aged 15 and 12 years respectively. Each was interviewed by a case officer of the Department.
At that time, provisions relating to child protection were contained in the now repealed Child Welfare Act 1939 (NSW) ("the CW Act"). The sisters were dealt with by officers of the Department under Pt XIV of the CW Act, entitled "Committal of Neglected or Uncontrollable Children or Young Persons or of Juvenile Offenders", and related provisions.
Section 76 in Pt XIV of the CW Act relevantly provided that any officer authorised by the Minister or any constable of police could, without warrant,…

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.

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Details

Case: [2017] HCA 22
Decision Date: 14 June 2017

CaseChat Overview and Summary

The case of *New South Wales v DC* concerned a dispute involving the State of New South Wales and DC, relating to the exercise of statutory powers to report child abuse. The central issue revolved around whether a duty of care was owed by the State in its exercise of these powers, and if so, the scope or extent of that duty. The primary judge had found that a failure to report abuse to the police could not be considered a reasonable exercise of the statutory powers in the circumstances. The State had conceded that in some situations, reporting abuse to the police might be the only reasonable course of action.

The High Court of Australia was required to determine whether, in light of the concessions made by the State, it was appropriate to consider the scope or extent of the common law duty of care owed in the exercise of statutory discretionary powers. A further issue arose concerning the vicarious liability of the State, where the State had conceded this liability, notwithstanding that the relevant statute providing for the vicarious liability of the Crown was not in force at the time.

The Court concluded that, given the concessions made by the State throughout the proceedings at trial and in the appeals to the Court of Appeal and the High Court, the case was not an appropriate vehicle for examining the scope or extent of the common law duty of care in the exercise of powers under the relevant Act. Consequently, special leave to appeal in relation to the second ground of appeal was revoked. The State was ordered to pay the respondents' costs of the proceedings in the High Court.

Orders

Orders of the court

1. Special leave to appeal in relation to ground 2 of the notice of appeal dated 23 February 2017 revoked.

2. The appellant pay the respondents' costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, BELL, GAGELER, KEANE AND GORDON JJ (dissent)

Having regard to the course taken by the State at trial, and in the appeals to the Court of Appeal and to this Court, this case is not an appropriate vehicle for considering the scope or extent of the common law duty owed in the exercise of the powers under the CW Act. Conclusion and orders Special leave to appeal in relation to ground 2 should be revoked. The State should pay the sisters' costs of the proceedings in this Court.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.