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Perry v Kinnear (No. 1)

Perry v Kinnear (No. 1)

Case [2020] NSWDC 897 25 August 2020

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District Court

New South Wales

Medium Neutral Citation: Perry v Kinnear & Ors (No. 1) [2020] NSWDC 897
Hearing dates: 24 August 2020 (of the voir dire)
25 August 2020
Date of orders: 25 August 2020
Decision date: 25 August 2020
Jurisdiction: Civil
Before: Montgomery DCJ
Decision:
Leave be granted for the plaintiff to proceed on the Amended Statement of Claim.

Catchwords:
Practice & Procedure – Application to Amend the Statement of Claim at the Commencement of Hearing Pursuant to s 64 of the Civil Procedure Act – Opposition by the Defendants – Duty of Care – foster carer for Child

Legislation Cited:
Children and Young Person (Care and Protection) Act 1998
Child Welfare Act 1939 (NSW)
Civil Liability Act 2002 (NSW) s 3B(1)(a)
Civil Procedure Act 2005 (NSW) s 64
Uniform Civil Procedure Rules 2005 (NSW) r 15.1

Cases Cited:
A v Roman Catholic Archdiocese of Wellington (2003) NZLR 289; 2008 NZCA 49
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36
Bryan v Maloney (1995) 182 CLR 609; [1995] HCA 17
Hahn v Conley (1971) 126 CLR 276 at 283 to 284
McCallion v Dodd (1996) NZLR 710
Modbury Triangle v Anzil (2000) 295 CLR 254; [2000] HCA 61
State of New South Wales v DC [2017] HCA 22
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574
Water Board v Moustakas (1982) 180 CLR 491

Texts Cited:
Law of Torts, fifth edition, Balkin and Davis

Category: Procedural rulings
Parties:
Mrs Isabell Perry (Plaintiff)

Mr Ian Kinnear (First Defendant)
Mrs Leisha Kinnear (Second Defendant)
Representation:
counsel:

Mr D Elliot (Plaintiff)

Mr D Brezniak (First & Second Defendants)

Solicitors:

Gerard Malouf & Partners (Plaintiff)
Paul & Labuzin Lawyers (First & Second Defendants)

File Number(s): 2018/00106299
Publication restriction: N/A

Judgment (EX TEMPORE) – VOIR DIRE 2

The plaintiff seeks leave to proceed by proposed Amended Statement of Claim in the style first introduced to the proceedings on the first day of the hearing and as subsequently better particularised during argument. The application to amend proceeds pursuant to s 64 of the CPA. The amendment is opposed on the basis that the plaintiff seeks to proceed against the defendants as parents. The defendants submit that the proposed pleaded action would contemplate an expansion of the common law.
It is put by counsel for the defendants that the Court would be hesitant, being a court of first instance, to permit a case seeking expansion of the common law, to proceed. It is properly conceded by the first defendant, that the ever developing common law is not closed to the field of, and introduction of, new causes of action.
The Statement of Claim originally pleaded at para 13 against the second defendant, a cause of action in these terms:

“Such further sexual assault abuse by the First Defendant and was aided by abetted and facilitated by the Second Defendant and the Second Defendant is accordingly liable for such further sexual assault and…

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.

Continue reading Perry v Kinnear (No. 1)

Details

AGLC: Perry v Kinnear (No. 1) [2020] NSWDC 897
Case: [2020] NSWDC 897
Decision Date: 25 August 2020

CaseChat Overview and Summary

The case of Perry v Kinnear (No. 1) involved the plaintiff, Perry, seeking leave to amend their statement of claim during the hearing. The defendants, Kinnear, opposed this application. The dispute centred around the provision of care for a child in foster care and the alleged breach of duty of care by the defendants. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the plaintiff should be permitted to amend the statement of claim at the commencement of the hearing under section 64 of the Civil Procedure Act 2009 (Qld). This required the court to balance the plaintiff's right to amend the statement of claim against the potential prejudice to the defendants if such an amendment were allowed at the last minute. The court also had to consider whether the proposed amendments related to new causes of action or merely clarified existing claims.

The court held that it had the discretion to grant leave for the amendment of the statement of claim at any stage, including at the commencement of the hearing. The court considered the factors outlined in the Civil Procedure Act, including the likelihood of prejudice to the defendants, the reasons for the delay in seeking the amendment, and the merits of the proposed changes. The court found that the plaintiff had provided sufficient justification for the amendment and that the defendants would not be unduly prejudiced by the changes. Consequently, the court granted leave for the plaintiff to proceed on the amended statement of claim.

The final order of the court was that leave be granted for the plaintiff to proceed on the amended statement of claim. The court's decision ensured that the plaintiff could pursue their claims concerning the alleged breach of duty of care by the defendants, while also upholding the need for fairness and procedural integrity in the litigation process.

Orders

Orders of the court

Leave be granted for the plaintiff to proceed on the Amended Statement of Claim.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Perry v Kinnear (No. 1) [2020] NSWDC 897

Most Recent Citation

Perry v Kinnear (No. 5) [2021] NSWDC 145

Cases citing this decision · 2 of 2 shown

Perry v Kinnear (No. 6)
[2021] NSWDC 273

…ff’s application. The defendant argued that there was not an extant duty of care known to the law. My Judgment is Perry v Kinnear & Ors (No. 1) [2020] NSWDC 897. In the circumstances of the plaintiff’s lateness of her application to amend the Statement of Claim, and where the defendants’ unsuccessful opposition was…
Perry v Kinnear (No. 5)
[2021] NSWDC 145 Para 7

…x tempore reasons for judgment were delivered on day 2 of the hearing. Whilst not to be read in place of the judgment [ Perry v Kinnear & Ors (No. 1) [2020] NSWDC 897], I select the following paragraphs to elucidate the content of the duty of care:…

View all 2 citing cases →

Cases cited in this decision · 9 of 9 shown

New South Wales v DC
[2017] HCA 22 Para 25

…in my reference to the Code affecting foster carers under their authorisation. Both parties referred me to the case of State of New South Wales v DC [2017] HCA 22. I must say, I do not find much assistance from it, other than that the rationale of that decision is not contrary to that which I have spoken to so…
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288
[2014] HCA 36 Para 21

…law and statutory policy was the subject of comment of the High Court of Australia in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36. As a judge at first instance, it is not for me to find policy or make policy, but rather to apply the common law within its limitations.…
Modbury Triangle Shopping Centre Pty Ltd v Anzil
[2000] HCA 61 Para 34

…In Modbury Triangle v Anzil (2000) 295 CLR 254; [2000] HCA 61, at para 13, the Chief Justice said of the common law’s recognition of duty of care and the foundations of the duty of care at common law:…
Bryan v Maloney
[1995] HCA 17

…003) NZLR 289; 2008 NZCA 49 Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36 Bryan v Maloney (1995) 182 CLR 609; [1995] HCA 17 Hahn v Conley (1971) 126 CLR 276 at 283 to 284 McCallion v Dodd (1996) NZLR 710 Modbury Triangle v Anzil (2000) 295 CLR 254; [2000] HCA 61 State of New South…
Water Board v Moustakas
[1988] HCA 12

…CA 61 State of New South Wales v DC [2017] HCA 22 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 Water Board v Moustakas (1982) 180 CLR 491 Texts Cited: Law of Torts , fifth edition, Balkin and Davis Category: Procedural rulings Parties: Mrs Isabell Perry (Plaintiff) Mr Ian Kinnear (First Defenda…
Hahn v Conley
[1971] HCA 56 Para 44

…In Hahn v Conley (1971) 126 CLR 276 at 283 to 284, Barwick CJ started a passage by saying that where there is a cause of action available to the child, the blood relationship of the defendant to the child will not constitute a bar to the maintenance by the child of the appropriate proceeding to enforce the cause of a…
Thompson v Australian Capital Television Pty Ltd
[1996] HCA 38

…o 284 McCallion v Dodd (1996) NZLR 710 Modbury Triangle v Anzil (2000) 295 CLR 254; [2000] HCA 61 State of New South Wales v DC [2017] HCA 22 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 Water Board v Moustakas (1982) 180 CLR 491 Texts Cited: Law of Torts , fifth edition, Balkin and Davis Category: Procedural rulings Parties: Mrs…
McCallion v Dodd
(1996) NZLR 710 Para 46

…His Honour said that the view expressed by McCarthy J in McCallion v Dodd (1996) NZLR 710 at 729 should be accepted. Due to the nature of the defendant’s opposition to the amendment, I'm going to go to that judgment for completeness, but before doing so, wish to express the opinion that what I said of this case, d…
(2003) NZLR 289
(2003) NZLR 289 Para 31

…In A v Roman Catholic Archdiocese of Wellington (2003) NZLR 289; 2008 NZCA 49, in an action not directly against foster carers, but rather the providers of orphanage care, the New Zealand Court of Appeal, at paras 114 to 118, found a Catholic social work agency to have assumed such responsibility for children. Alb…

Legislation cited in this decision · 5

Child Welfare Act 1939 (NSW)
1 mention (from Para 26)
Children and Young Person (Care and Protection) Act 1998 (NSW)
1 mention (from Para 14)
Civil Liability Act 2002 (TAS)
3B(1)(a) 1 mention
Civil Procedure Act 2005 (NSW)
64 1 mention
Uniform Civil Procedure Rules 2005 (NSW)
15.1 1 mention

Medium Neutral Citation:	Perry v Kinnear & Ors (No. 1) [2020] NSWDC 897
Hearing dates:	24 August 2020 (of the voir dire) 25 August 2020
Date of orders:	25 August 2020
Decision date:	25 August 2020
Jurisdiction:	Civil
Before:	Montgomery DCJ
Decision:	Leave be granted for the plaintiff to proceed on the Amended Statement of Claim.
Catchwords:	Practice & Procedure – Application to Amend the Statement of Claim at the Commencement of Hearing Pursuant to s 64 of the Civil Procedure Act – Opposition by the Defendants – Duty of Care – foster carer for Child
Legislation Cited:	Children and Young Person (Care and Protection) Act 1998 Child Welfare Act 1939 (NSW) Civil Liability Act 2002 (NSW) s 3B(1)(a) Civil Procedure Act 2005 (NSW) s 64 Uniform Civil Procedure Rules 2005 (NSW) r 15.1
Cases Cited:	A v Roman Catholic Archdiocese of Wellington (2003) NZLR 289; 2008 NZCA 49 Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36 Bryan v Maloney (1995) 182 CLR 609; [1995] HCA 17 Hahn v Conley (1971) 126 CLR 276 at 283 to 284 McCallion v Dodd (1996) NZLR 710 Modbury Triangle v Anzil (2000) 295 CLR 254; [2000] HCA 61 State of New South Wales v DC [2017] HCA 22 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 Water Board v Moustakas (1982) 180 CLR 491
Texts Cited:	Law of Torts, fifth edition, Balkin and Davis
Category:	Procedural rulings
Parties:	Mrs Isabell Perry (Plaintiff) Mr Ian Kinnear (First Defendant) Mrs Leisha Kinnear (Second Defendant)
Representation:	counsel: Mr D Elliot (Plaintiff) Mr D Brezniak (First & Second Defendants) Solicitors: Gerard Malouf & Partners (Plaintiff) Paul & Labuzin Lawyers (First & Second Defendants)
File Number(s):	2018/00106299
Publication restriction:	N/A