Norris v Gittos
[2011] WASC 295
•26 OCTOBER 2011
NORRIS -v- GITTOS [2011] WASC 295
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 295 | |
| 26/10/2011 | |||
| Case No: | CIV:2228/2011 | 23 SEPTEMBER 2011 | |
| Coram: | KENNETH MARTIN J | 23/09/11 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | STEPHANIE AMANDA NORRIS LINDA GITTOS SIMONE CLAASSEN |
Catchwords: | Defamation Absolute privilege Negligence Duty of care Defendants' summary judgment |
Legislation: | Children and Community Services Act 2004 (WA) Defamation Act 2005 (WA) Rules of the Supreme Court 1971 (WA), O 16 |
Case References: | Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Anderson v Effexseven (1998) 10 ANZ Ins Cas 61–424 Batistatos v Roads & Traffic Authority of NSW; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Lincoln v Daniels [1962] 1 QB 237 Prefumo v Sutton [2011] WASC 151 Sullivan v Moody (2001) 207 CLR 562 Tame v New South Wales (2002) 211 CLR 317 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : NORRIS -v- GITTOS [2011] WASC 295 CORAM : KENNETH MARTIN J HEARD : 23 SEPTEMBER 2011 DELIVERED : 23 SEPTEMBER 2011 PUBLISHED : 26 OCTOBER 2011 FILE NO/S : CIV 2228 of 2011 BETWEEN : STEPHANIE AMANDA NORRIS
- Plaintiff
AND
LINDA GITTOS
First Defendant
SIMONE CLAASSEN
Second Defendant
Catchwords:
Defamation - Absolute privilege - Negligence - Duty of care - Defendants' summary judgment
Legislation:
Children and Community Services Act 2004 (WA)
Defamation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA), O 16
(Page 2)
Result:
Application granted
Category: B
Representation:
Counsel:
Plaintiff : In Person
First Defendant : Ms K A T Pederson
Second Defendant : Ms K A T Pederson
Solicitors:
Plaintiff : In person
First Defendant : State Solicitor for Western Australia
Second Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Anderson v Effexseven (1998) 10 ANZ Ins Cas 61–424
Batistatos v Roads & Traffic Authority of NSW; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Lincoln v Daniels [1962] 1 QB 237
Prefumo v Sutton [2011] WASC 151
Sullivan v Moody (2001) 207 CLR 562
Tame v New South Wales (2002) 211 CLR 317
(Page 3)
- KENNETH MARTIN J:
The defendants' applications
1 These are my reserved reasons for the decision I announced on 23 September 2011 at the conclusion of oral argument. At the time I granted the defendants' application for summary judgment and dismissed the plaintiff's action.
2 This is a defamation action in my CMC List. The plaintiff is a self-represented litigant. She commenced her action on 11 July 2011 against the defendants, who are employees of the Department of Child Protection.
3 By chamber summons dated 22 September 2011, the defendants applied for summary judgment under O 16 r 1(1)(a) of the Rules of the Supreme Court 1971 (RSC), alternatively, to strike out the entire statement of claim under O 20 r 19(1) RSC.
4 On 26 August 2011, the defendants were granted leave to bring such applications as they saw fit, returnable on 23 September 2011 at 9.15am. At the time of that directions hearing on 26 August, the plaintiff had not filed her statement of claim.
5 The plaintiff's statement of claim was filed on 9 September 2011. From that pleading it appears that beyond the defamation action that is central to these proceedings, the plaintiff seeks to pursue a negligence claim against the defendants grounded upon duties of care alleged to be owed to her.
6 The defendants first assert they have a complete defence to the plaintiff's defamation action based on the absolute privilege applicable to what is said or written for the purposes of court proceedings. Second, as to the plaintiff's claim in common law negligence, it is said that the defendants cannot, even at the level of arguability, owe the plaintiff a duty of care. The defendants also say that there is no arguable cause of action against them and that the plaintiff's plea is so conceptually misconceived that it is incapable of rehabilitation. Accordingly, this aspect of the litigation must be struck out. The defendant also raise s 246(1) of the Children and Community Services Act 2004 (CCS Act) against the plaintiff's claims.
(Page 4)
Background
7 On 11 July 2011, the plaintiff, Ms Norris, acting in person filed a writ of summons naming Ms Gittos and Ms Claassen as the first and second defendants, respectively. The writ was indorsed with a statement of the nature of the claims made in these terms:
The plaintiff's claim is for the sum of $4,000,000 (four million dollars AU) being for damages incurred [sic] by the following items;
i. Defamatory information is presented before a court
ii. False accounts or witness material is fabricated
iii. Witness or 3rd party information is misconstrued or fabricated
iv. The handling of the plaintiff was unjust
v. The inappropriate [sic] handling of the plaintiff caused severe emotional and/or psychological damage
vi. The defendant deliberately and intentionally defamed [sic] the plaintiff
vii. The defendant, through their incompetent actions, caused long term psychological damage requiring medical treatment, to the plaintiff
8 I briefly pause here to mention the recently amended statutory cap of $324,000 to damages for non-economic loss for defamation (s 35(1) Defamation Act 2005)', which falls a considerable distance below the $4 million figure pursued by the plaintiff.
9 By 23 September 2011, the court had received the following documents from the plaintiff:
(a) a document titled statement of claim dated 6 September 2011;
(b) a chamber summons dated 6 September 2011;
(c) the affidavit of Stephanie Norris, sworn 9 September 2011, attaching:
(i) a statement of claim also dated 9 September 2011;
(ii) annexure A – Magistrates Court recovery order dated 18 January 2007;
(iii) annexure B – Magistrates Court orders dated 3 April 2008;
- (iv) annexure C – Magistrates Court orders dated 14 February 2007; and
- (d) the second affidavit of Stephanie Norris sworn and filed on 22 September 2011, with annexure A – a medical certificate issued by Dr Sanjay Bhardwaj.
10 The plaintiff's chamber summons dated 6 September 2011 does not seek orders from this court. Rather, it seeks to address statements apparently made in an affidavit filed before the Western Australian Children's Court, a document referred to in a summary order of an unidentified court and a phone conversation of 23 March that the plaintiff alleges were defamatory. It is not necessary for me to repeat those statements here. However, in determining the defendants' present application, it is important to take note of the context in which the statements were made.
11 At the hearing on 23 September 2011, there was some initial uncertainty over what document actually constituted the plaintiff's statement of claim, being either the first statement of claim dated 6 September 2011 or the second statement of claim document dated 9 September 2011 (found attached to the first affidavit of Stephanie Norris sworn 9 September 2011). The plaintiff confirmed that the document she had filed of 9 September 2011 was the statement of claim she relied upon [ts 5 - 6] and I have proceeded on that basis.
12 I was concerned that the plaintiff acting in person had only received the defendants' chamber summons, supporting affidavit and submissions on the day of the hearing. Accordingly, I offered the plaintiff the option of an adjournment or to have the matter referred to mediation. However, the plaintiff was determined to proceed immediately and be heard in opposition to the defendants' application seeking judgment against her. In the end, in light of the plaintiff's opposition, I agreed to hear the matter substantially as the plaintiff wished.
13 The defendants' arguments in support of the application for judgment were explained in written submissions. Because she was acting in person I endeavoured to explain to the plaintiff by way of simplification of the position that the defendants had raised three 'arrows' targeted at her case.
14 First, as to defamation, that statements made in court, including in documents used in court proceedings, are the subject of an absolute privilege.
(Page 6)
15 Second, that the Department of Child Protection's case workers cannot be said to owe the plaintiff a duty of care as such a duty would be incompatible with the paramount primary duty owed to protect children (in this case her son) from harm.
16 Third, that s 246 of the CCS Act provides that '[a] civil action does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under th[e] Act'.
17 The plaintiff's oral submission to me addressing these three 'arrows' consisted essentially of her largely reading her statement of claim to me. She added little to what was set out in her written materials.
18 The plaintiff's pleadings are best understood in a context of me assessing the defendants' three main arguments for summary judgment and to strike out the statement of claim.
19 Consequently, I proceed to outline the defendants' arguments as they are set out in their written submissions in support of their application for summary judgment.
The defendants' summary judgment application
20 The plaintiff set out a summary of facts relevant to her claim at page 1 of her statement of claim:
Summary of facts relevant to the claim:
1. Defamatory information was presented before a court, (i.e is published) without the plaintiff present to defend such claims made by the defendant, due to psychological disorders, which the defendant did not disclose, in full, to said court.
2. Defendant omitted exculpatory information relevant to the making of A Protection Order.
21 The legal basis for the plaintiff's allegation of defamation is also set out at pages 1 and 2 of the plaintiff's document in the following terms:
Legal basis for the claim:
Defamatory information was published about the plaintiff, in the plaintiff's absence. Therefore the defendants right to qualified privilege be forfeited; and any privilege, (as stated in Section 27/1 of the Defamation Act) attached to the defendant's statements (as stated in the Summary Order) [the plaintiff's chamber summons dated 6 September 2011] and/or
(Page 7)
- making of A Protection Order has been lost, as the defendant abused such privilege with the knowledge that the plaintiff had a psychological disorder and could not attend court to either be a party to the making of the Protection Order, or to defend the statements made therein.
- I.e. Defendant used a deceptive means to justify and end, that is, equivalent and should be viewed as 'lying by omission.'
…
Therefore the plaintiff would like to advise the defendant that The Protection Order in itself is defamatory.
And – the plaintiff has been defamed by:
a) Conduct in seeking the Protection Order
b) The fact that a Protection Order had been made against the plaintiff
c) Statements within the Protection Order which were presented before the court in [the] plaintiff's absence (see…chamber summons [dated 6 September 2011])
d) The defendant defamed the plaintiff, yes in a situation of privilege, but in the plaintiff's absence, with full knowledge the plaintiff's absence was due to her psychological disorders.
e) The defendant using a deceptive means to justify an end. The end result of this deception by the defendant being the Making of A Protection Order, and the outcome of the child to be removed from the mother's care. Thus ruining the reputation of the plaintiff as a caring and nurturing mother, and ultimately because of this the plaintiff lost her job.
The hardest and most important job in the world – a mother.
22 Initially, the plaintiff alleged that a phone conversation between the second defendant and herself was defamatory. Plainly there is a non-publication deficiency on these facts - against a defamation claim. However, at the hearing this claim in defamation was abandoned. But the plaintiff nonetheless argued that the phone conversation caused her psychological damage, making the plea relevant to resolving her claim in common law negligence, which is the location where I will assess it.
23 The defendants say at [14] of their written submissions that they hold a complete defence to the plaintiff's action in defamation for statements
(Page 8)
- made in court or in documents published in the course of court proceedings, because:
a) section 27(1) of the Defamation Act 2005 (WA) provides that it is a defence to the publication of a defamatory matter if it was published on an occasion of absolute privilege; and
b) section 27(2)(b) of the Act provides that a matter is published in an occasion of absolute privilege if it is published in the course of the proceeding of an Australian Court.
Without limiting subsection (1), matter is published on an occasion of absolute privilege if -
…
(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to) -
(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process);
(ii) the publication of matter while giving evidence before the court or tribunal; and
(iii) the publication of matter in any judgment, order or other determination of the court or tribunal.
[A]ny court established by or under a law of an Australian jurisdiction (including a court conducting committal proceedings for an indictable offence).
26 There can be no dispute that the Children's Court of Western Australia is an Australian court for the purposes of the Defamation Act.
27 The common law concerning the publication of defamatory matter on a privileged occasion is explained by the editors of Gatley on Libel and Slander (11th ed, 2008) at [13.1]:
The law recognises that there are certain situations ('privileged occasions') in which it is for the public benefit that a person should be able to speak or write freely and that this should override or qualify the protection normally given to reputation by the law of defamation. In most cases the protection of privilege is qualified, ie the defence is displaced by 'malice', but there
(Page 9)
- are certain occasions on which public policy and convenience require that a person should be wholly free from even the risk of responsibility for the publication of defamatory words and no action will therefore lie even though the defendant published the words with full knowledge of their falsity and even with the express intention of injuring the claimant.
28 That passage was recently referred to and applied by Corboy J in Prefumo v Sutton [2011] WASC 151 at [30].
29 The general law position for absolute privilege and defamation is replicated by the uniform defamation acts across Australia. The common law is not disturbed unless the statute expressly provides otherwise, or by necessary implication, see s 6(2) Defamation Act.
30 At common law no action will lie for defamatory statements made in connection with 'judicial' proceedings: see generally, Gatley on Libel and Slander [13.5]. The privilege reaches beyond what is uttered in a court or before a tribunal so as to cover 'everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of proceedings and starting with the writ or other document which institutes the proceedings': Lincoln v Daniels [1962] 1 QB 237, 257 (Devlin LJ).
31 The authors of Gatley expand upon the statement of principle:
'The authorities establish beyond all question this: that neither party, witness, counsel, jury nor judge, can be put to answer civilly or criminally for words spoken in office; that no action for libel or slander lies whether against judges, counsel, witnesses, or parties for words spoken in the course of any proceeding before any court recognised by law and this although the words were written or spoken maliciously, without any justification or excuse, and from personal ill will or anger against the party defamed': Royal Aquarium v Parkinson [1892] 1 QB 431 CA at (451) (Lopes LJ)
It is immaterial whether such proceedings take place in open court or in private, whether they are of a final or preliminary character, and whether they are ex parte (without notice to other parties) or inter partes.
…
The absolute privilege for defamation may be compared with other immunities in the administration of justice. For example, no action generally lies against a judge for a wrongful order and no action for negligence lies against a witness in respect of the giving of his evidence…The immunity:
- 'attaches to anything said or done by anybody in the course of judicial proceedings whatever the nature of the claim made in respect of such behaviour or statement …That is because the rule is there, not to protect the person whose conduct in court might prompt such a claim, but to protect the integrity of the judicial process and hence the public interest. Given that rationale for the rule, there can be no logical basis for differentiating between different types of claim in its application': Heath v Metropolitan Police Commissioner [2004] EWCA Civ 943.
32 Statements as set out in her statement of claim and chamber summons dated 6 September 2011 that are the subject of Ms Norris' defamation complaints against the defendants were made not in a circumstances of qualified privilege, as she contends. They concern an occasion of court proceedings concerning her son, such circumstances attract the protection of an absolute privilege against exposure to claims made in defamation. Questions as to whether statements made to the court were true or false, or whether the plaintiff was present or not when they were made, are irrelevant since the privilege is absolute.
Defamation determination
33 The high degree of caution with which a power to grant summary judgment is to be exercised is well known. On an application by a defendant, it carries an onus to show that there is no serious question to be tried on a potential cause of action raised by a plaintiff: Anderson v Effexseven(1998) 10 ANZ Ins Cas 61–424, 74, 757. The power to order summary judgment should not be exercised unless it is clear there is no real question to be tried: Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 99. Only in clear cases, where there is a high degree of certainty about the ultimate outcome if the matter went to trial, will summary judgment be given: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads & TrafficAuthority of NSW; Batistatos v Newcastle City Council[2006] HCA 27; (2006) 226 CLR 256 [46].
34 There is no contest that the defendants' statements, now complained of by Ms Norris, were made before the Children's Court of Western Australia. In fact, the plaintiff openly acknowledges that as a fact. On that basis, the privilege is applicable.
35 Accordingly, the defendants have shown that they hold a complete answer to the plaintiff's claim in defamation on the basis of the defence of absolute privilege. The terminal difficulty the plaintiff confronts with her defamation claim is that absolute means exactly that - absolute. There are no exceptions. Even showing malice or bad faith in a defendant will not
(Page 11)
- undermine a properly invoked defence of absolute privilege. That is the law.
36 It does not lie in my discretion not to apply the law merely because the plaintiff feels she is a special case and that the law should not apply to her particular circumstances.
Duty of care arguments
37 As background to the negligence claim, the plaintiff set out a summary of facts relevant to her claim at page 1 of the statement of claim:
Summary of facts relevant to the claim:
3. Defendant[s] acted incompetently in the making of A Protection Order in relation to Accessibility of the child in the Protection Order.
4. Defendant[s] acted negligently by not seeking professional advice in relation to dealing with the plaintiff's psychological disorder.
5. Defendant is liable for damage caused to the plaintiff, for exacerbating pre-existing psychological and emotional disorders, and trauma experienced from [the inception] of defendants involvement with the plaintiff.
38 The plaintiff's asserted claim for negligence appears to be two-fold. First, is alleged incompetence in the making of the Protection Order concerning her son. But the problem with that is that the Order was made by the Children's Court, not the defendants. Second, is the allegation that the defendants acted negligently by failing to seek professional advice in relation to dealing with the plaintiff's various asserted psychological disorders. This argument seeks to place the focus of the defendants' responsibilities upon the plaintiff, rather than upon her son.
39 Regarding the allegations of the defendants' incompetence, the plaintiff's statement of claim reads:
3. The defendant acted incompetently in the making of A Protection Order in relation to Accessibility of the child in the Protection Order.
a. In the making of the Residency Order, dated 3rd April 2008, the Family Court ruled that the Father … was to no longer have access to the plaintiff's child, X until he reapplied to the Family Court. The Family Court made this ruling given the facts:
- b. The Father had various charges against his person including several driving under influence of alcohol charges, and assault charge from a previous partner; driving without a license; possession of illegal substances, numerous Police Incident Reports from the plaintiff (plaintiff was too afraid of retaliation to charge the father…); and breaching The Violence Restraining Order on the Plaintiff … and a previous partner.
Given the facts listed above [omitted], and with full knowledge of The Father's Criminal Record and previous ruling by the Family Court, the defendant still went ahead and gave unsupervised access to The Father, endangering the child's safety and well-being psychologically and physically, and knowing that the father was a possible flight risk as he possessed a British Passport and could put the child on such passport in very little time.
Therefore, the plaintiff would like to advise the defendant, in relation to the accessibility given the child in the Protection Order, that your capabilities in your position are discredited, and subsequently you are deemed incompetent.
40 I am unable to fathom how par [3] can carry any viable prospect of the plaintiff showing an arguable cause of action in common law negligence against the defendants. The plaintiff's oral submissions did not clarify her position.
41 The plaintiff's grievances relate to Protection Orders and Residency Orders made in the Children's Court concerning her son. The plaintiff is obviously upset by these proceedings and has a deep grievance over orders made in 2010 in the Children's Court concerning the protection of her son. But there are established mechanisms for challenging orders made by courts. The Supreme Court is not to be used to launch a collateral attack against Protection Orders made by the Children's Court, under the colour of what is advanced as common law negligence. Collateral attacks of this kind are abuses of a court's process which must be struck down when encountered.
42 I turn to the other allegation that the defendants acted negligently by not seeking professional advice regarding the plaintiff's various asserted conditions. In [4] of the statement of claim this is found:
a) In the Face of the Duty Of Care, the defendant/s failed to take appropriate action to prevent exacerbating pre-existing
- psychological disorders, which the defendant/s were made aware of at the initial [inception] of their contact with the plaintiff.
- b) The defendant graduated with a Bachelor of Counselling, (one unit of psychology does not equate to a psychology degree) on the 27th July 2008, and therefore has no professional qualifications in handling or dealing with any psychological issues that may arise in her position; yet, even after being told by the plaintiff, on the 1st June 2010 at 15:36hrs, that she suffered from psychological disorders…the defendant made no attempt to contact a professional in that field.
Subsequently, the defendant's constant harassment, barrage of phone calls and documents being forced upon the plaintiff and continual Pressure toward the situation caused the plaintiff to become suicidal, and thus, did attempt suicide on the 7th September 2010.
c) The plaintiff suffered severe separation anxiety from her son which only added to her already anxious and depressed condition, and with the knowledge that the child's father … had been given unsupervised access to the child, she was terrified for the child's safety. On voicing her concerns to the defendant/s on several occasions, she was left feeling distraught by the defendant/s impartial attitude.
43 The above assumes, but does not expressly address, an underlying key question about whether the defendants owed the plaintiff a duty of care in the discharge of their statutory responsibilities concerning the plaintiff's son. The context for the discharge of the defendants' duties is provided in the next section of these reasons where I set out an extract from the affidavit of the first defendant, Ms Gittos, before the Children's Court of Western Australia which is contained in the defendants' materials supporting this application. In the circumstances, I proceed on the basis that the plaintiff does maintain that the defendants did owe her a duty of care (albeit an unformulated one).
44 It is established that where recognition of a duty of care would give rise to 'incompatible duties' or disconformity with other areas of law, it is unlikely that such a duty of care will be recognised: see Tame v New South Wales (2002) 211 CLR 317 [56] - [58] (Gaudron J); [123] - [125] (McHugh J).
45 The principle is explained in greater detail in factual circumstances that are closer to the present case in the joint reasons of Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ in Sullivan v Moody (2001) 207 CLR 562. Concerning an argued existence of a duty of care, two
(Page 14)
- main strands presented in the court's reasoning. First, that a recognition of a duty of care in circumstances involving the protection of children may be incompatible with statutory duties in that case. At [60], the court said:
[60] 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. 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.
…
[62] The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm. The duty for which the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect.
(Page 15)
46 Secondly, the High Court observed that recognising a duty of care may subvert other legal principles, in particular within the law of defamation. At [53], the court stated:
[53] Developments in the law of negligence over the last 30 or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is 'fair' or 'unfair'. There are cases, and this is one, where 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.
[54] The present cases can be seen as focusing as much upon the communication of information by the respondents to the appellants and to third parties as upon the competence with which examinations or other procedures were conducted. The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not.
47 As formulated by the plaintiff, her implicitly pleaded duty of care allegedly owed to her would require the defendants as child protection workers, when acting in the interest of her child, to adjust their conduct in response to a parent's psychological disorders. Her assertion in my assessment is conceptually misconceived. It is incompatible with the paramount statutory duty imposed and required for these defendants to make decisions and to act to protect the best interests of a child perceived as being at risk.
48 Relevantly, s 7 sets out one of the general principles relating to children in the following terms:
In performing a function or exercising a power under this Act in relation to a child, a person or the Court must regard the best interests of the child as the paramount consideration.
49 See also the Long Title, s 6 (objects), s 8 (determining the best interests of a child) and s 9 (guiding principles). In my assessment the CCS Act sets an analogous framework of applicable priorities in the work
(Page 16)
- of case workers with children perceived to be at risk in Western Australia to the legislation assessed in Sullivan v Moody.
50 Here, Sullivan v Moody is directly applicable. I accept that in most circumstances the ascertainment of a duty of care will be a fact specific exercise, particularly in novel areas. But here the category of case is governed by a clearly applicable line of authority at the highest level in Australia. The case as regards the duty issue is a clear one.
51 The application of the principles in Sullivan v Moody to present circumstances carries with it the denial to the plaintiff of any prospect of her ever showing an arguable duty of care owed to her by these defendants in circumstances where they were acting to protect her son.
52 Ms Norris struggled to comprehend this priority. She repeatedly sought to put the focus upon herself and her various disorders. That was her conceptual error. The priority concern of the CCS Act is not about her. The wellbeing of the plaintiff's son is the CCS Act's overwhelming priority - a priority that cannot be reconciled with the duty of care she asserts the defendants owed to her whilst working under that legislation to protect the interest of her son. This duty of care competence/negligence aspect of her case must be assessed as one to which the defendants have a complete answer for the purposes of RSC O 16.
53 The defendants' alternative arguments under RSC O 20 r 19(1) that the plaintiff can show no arguable cause of action against them in way of a common law duty of care, resulting in these aspects of her statement of claim being struck out, must also be accepted.
The defendants' application for summary judgment: the third 'arrow'
54 Section 246(1) of the CCS Act is tied to establishing a prerequisite of acts carried out in good faith. It is not a protection of the absolute kind to which I have referred in the context of defamation, but it is nevertheless in play.
55 Assessing the plaintiff's materials and listening to her, the grievance seemed to relate to the Protection Orders made in the Children's Court. These orders resulted in her (now) 8-year-old son being made the subject of care orders and placed in the temporary care of his paternal grandparents. The underlying circumstances present as those of child protection officers clearly acting in the interests of a child they perceive to be at risk. There was a clear underlying basis for their concerns and the steps they then took in the Children's Court in 2010. I refer to the
(Page 17)
- affidavit of Jane Kathleen Ensor sworn 22 September 2011, filed on behalf of the defendants supporting this application. It contained annexures JKE1 to JKE6. Annexure JKE2 is the affidavit of the first defendant sworn in the Children's Court on 5 August 2010. Relevantly, pars [17] to [28] of the first defendant's affidavit state:
17. On 5 May 2010, concerns were received by the Department after [the plaintiff's son] disclosed information to his teacher that his mother had been drinking, that she hurts him when she is intoxicated and has hit him with a metal stick. [The plaintiff's son] is generally at home alone with his mother but states that he is able to contact ['J'] if he needs help with her. The school are unable to engage with Ms Norris as she has indicated that she has 'social phobia' and is therefore not able to attend the school unless she has someone with her. From the information the school has, they are concerned that:
a. The mother is self-medicating,
b. Ms Norris' mother and [the plaintiff's son] have noticed her 'change',
c. There is a danger that the child could be neglected, and
d. The child is bringing lunch (frozen meat pies) to school and presents well.
18. On 1 June 2010, I attended the home of Ms Norris. There appeared to be no one home despite the windows being open (security windows in place) and music being heard. There was also a large dog in the back yard. A card was left requesting contact.
19. On 1 June 2010 at 3.34pm, Ms Norris contacted me. I explained to Ms Norris that the Department had some concerns in relation to [the plaintiff's son] and would like to discuss these matters with her; she advised that she will only do this if [the plaintiff's son] was present. I explained to Ms Norris that this may not be appropriate due to his age and she advised that no stranger is able to enter the house unless [the plaintiff's son] (7) is present. Ms Norris asked if I would like to speak with [the plaintiff's son] on the phone, she was advised that this would not be appropriate at this time. Ms Norris also advised that she would not talk to me outside of the house either due to a 'social anxiety disorder' but agreed to attend the office at 10.00am on 2 June 2010; this appointment was cancelled the day of the interview.
20. On 9 June 2010 at 8.35am, I attempted to contact Ms Norris to advise her that [the plaintiff's son] would be spoken to today at school, the phone was turned off. At 10.43am another call was
- made to advise that [the plaintiff's son] had been spoken to, the phone rang out. A home visit was conducted at 10.45am by me, the lounge window was open, the large dog was barking and in the bedroom, despite calling out, no one answered the door, a card was left requesting contact, this did not occur.
- 21, On 9 June 2010, [the plaintiff's son] was interviewed at […] Primary School and stated:
a. 'When I tell you things don't tell my mum because she will get angry',
b. He walks to school and home all by himself,
c. He is not allowed to have friends at home as he has a guard dog,
d. Home was not really interesting as he doesn't do anything,
e. Mum is 'bossy' to ['J'], they argue a lot and she does drink a lot on Saturday's and is scared that people will hurt her,
f. That ['J'] takes him to the doctors when he needs needles 'because I'm low on iron',
g. He gets in trouble with mum and she smacks him with a spoon,
h. He wants to live with mum but he wants her to stop drinking, and
i. Mum sleeps a lot, even during the day.
22. On 2 August 2010 at 5.14pm, the Family Helpline received a phone call from a female caller who presented as being intoxicated. Several moments later the caller went silent and a then hysterical child was on the phone. The field officer attempted to calm the child who then began to explain that his mother is drunk and he is home alone with her. Child identified himself as [the plaintiff's son] and his mother was Stephanie Norris. [The plaintiff's son] was asked if he felt scared and he said that he did. [The plaintiff's son] was asked how he would feel with police coming to his home to check on him, he said that would be fine.
23. At 6.59pm, Crisis Care received a phone call from Police stating that they had attended this address previously due to neighbour's reports that they had heard a young boy yelling for help in his back yard. Constable May and Constable Lockyer advised that Ms Norris was coherent when speaking with her and had no welfare concerns at the time.
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- 24. At 7.20pm, Constable May and Constable Lockyer returned to the address to find Ms Norris 'passed out' on the couch and [the plaintiff's son] was cooking his own dinner. Consultation with Crisis Care resulted in a joint home visit.
25. At 7.50pm, Constable May, Constable Lockyer, Field Officer Van Santen and Field Officer Kelly Summers attended the home of Ms Norris and [the plaintiff's son] and upon entry sighted Ms Norris 'slumped passed out on the couch', when speaking with [the plaintiff's son], they ascertained that:
a. It is a weekly occurrence for Ms Norris to get drunk and pass out,
b. When Ms Norris passes out, [the plaintiff's son] stays up and watches his mother and only goes to bed when she isn't passed out,
c. When Ms Norris is passed out, depending on what time it is, [the plaintiff's son] is left to get himself ready and off to school, gets himself home and does his homework, and cooks his own dinner at night time. [The plaintiff's son] said that the last time his mother cooked him a meal was on Friday evening,
d. [The plaintiff's son] talked about knowing when his mother was drunk as she makes growling noises, uses a different voice, says some weird things and sometimes gets angry with him,
e. [The plaintiff's son] is locked in the house at night, not able to get out easily or in a timely manner if required,
f. There was a heater that was left on in the lounge room that posed a fire risk due to it being unattended, and;
g. [The plaintiff's son] stated that his mother lets him use her inhaler when he can't find his.
26. At 8.21pm, consultation was had with Crisis Care team leader, Rebecca Good explaining that Ms Norris was 'out cold' and had remained so despite two police officers and two crisis care workers obtaining entry into the house as well as a large dog barking continuously in the bedroom.
27. [The plaintiff's son] was taken into Provisional Protection and Care under a Section 37 due to Ms Norris' inability to care and provide [the plaintiff' son] with adequate supervision, [the plaintiff's son] is at immediate and substantial risk of harm. As Ms Norris was unable to be aroused, a letter was left on the coffee table.
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- 28. On 4 August 2010 at 12.13pm, Ms Norris contacted me. When I asked her to attend the office, she advised that she was unable to attend the office to discuss the apprehension of [the plaintiff's son] due to her 'social anxiety disorder' and she refused access for me to attend her home. She also advised that she was not drunk and has 'no emotional resources to be able to deal with this' and appeared quite angry. At no time did she indicate that she wished for [the plaintiff's son] to be returned to her care and hung up the phone.
56 The facts underlying the present action are undoubtedly distressing. That is the environment in which the defendants work. The nature of child protection work performed by the defendants demands an exercise of skill, insight and careful decision making. It is clear from the CCS Act that the defendants' responsibilities are firmly directed towards the care and well being of children perceived to be at risk. In carrying out what is very difficult work there will invariably be situations where hard decisions will be made in the interests of a child that may cause offence to a parent or carer. So be it. The paramount interest of the child cannot be undermined by the intrusion of extraneous considerations.
57 Decisions taken by child protection workers to protect the interests of a child perceived to be at risk do not lose their character as decisions made in good faith, merely because someone may take offence. If that were the case, s 246(1) of the CCS Act would deliver no substantive protection to child protection workers.
58 I see no basis, in the present case, to argue that the defendants acted in any way other than in good faith to protect the interests of the plaintiff's son. Therefore, s 246(1) of the CCS Act operates as a complete answer to the plaintiff's action in negligence against the defendants.
Conclusion
59 I find that the defendants have impregnable defences to all aspects of the plaintiff's claims. No point would be served by allowing the plaintiff a further opportunity to amend a hopeless case. On this basis, the defendants' application for summary judgment is granted.
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