Webber v New South Wales - [2003] NSWSC 1263

CITATION: Kenneth Gordon Webber v State of New South Wales & Ors [2003] NSWSC 1263 revised - 03/12/2004

HEARING DATE(S): 27 November 2003

JUDGMENT DATE:
6 February 2004

JUDGMENT OF: Dunford J

DECISION: So much of Statement of Claim as relates to breaches of fiduciary duty struck out.

CATCHWORDS: Equity - fiduciaries - nature of duties - guardian and ward - failure to provide adequate protection, supervision, education and medical care for ward - breaches of common law duty of care - whether constitutes breach of fiduciary duties

LEGISLATION CITED: Child Welfare Act 1939 ss 4, 9, 10, 49, 50
Limitation Act 1969 ss 14(1)(b), 51(1), 58, 60G
SCR Pt 15 r 26
Supreme Court Act 1970 s 68

CASES CITED: Breen v Williams (1996) 186 CLR 71
Breen v Williams (1994) 35 NSWLR 522
Clay v Clay [2001] HCA 9, 202 CLR 410
Cubillo & Anor v The Commonwealth [2001] FCA 1213, 112 FCR 455
Cubillo & Anor v The Commonwealth [2000] FCA 1084, 103 FCR 1
Cubillo & Anor v The Commonwealth [1999] FCA 518, 89 FCR 528
Donoghue v Stevenson [1932] AC 562
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Johnson v Department of Community Services [1999] NSWSC 1156, (2000) A Torts R 81-540
McInerney v MacDonald [1992] 2 SCR 138, 93 DLR (4th) 415
Norberg v Wynrib [1992] 2 SCR 226
Paramasivam v Flynn (1998) 90 FCR 489, 160 ALR 203
Pilmer v Duke Group Ltd (in Liq) [2001] HCA 31, 207 CLR 165
SD v The Director General of Community Welfare Services (Victoria) and Ors [2001] NSWSC 441, 27 Fam LR 695
Williams v The Minister [2000] NSWCA 255
Williams v The Minister [1999] NSWSC 483, 25 Fam LR 86
Woodhead v Elbourne [2000] QSC 42
Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES :
Kenneth Gordon Webber v State of New South Wales & Ors

FILE NUMBER(S): SC 20236/99

COUNSEL: M J Cranitch SC/G M Preston - Plaintiff
P Menzies QC/T H Barrett - Defendant

SOLICITORS: Fallon Safetly Lawyers - Plaintiff
I V Knight - Crown Solicitor - Defendant

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DUNFORD J

FRIDAY 6 FEBRUARY 2004

20236/99 KENNETH GORDON WEBBER v STATE OF NEW SOUTH WALES & ANOR

The plaintiff sued the State of New South Wales for common law and equitable damages for acts and omissions allegedly suffered by him whilst he was a ward of the State pursuant to s 9 of the Child Welfare Act 1939 , since repealed. The Statement of Claim was framed in trespass to the person, breach of the duty of care, breach of statutory duty and breach of fiduciary duty. The particulars relating to each cause of action were substantially similar and co-extensive.

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: [2003] NSWSC 1263
Decision Date: 6 February 2004

CaseChat Overview and Summary

The case before the court involved the plaintiff, Webber, who was suing the State of New South Wales for failing to provide adequate protection, supervision, education, and medical care for her son, who was a ward of the state. The case was heard in the Supreme Court of New South Wales. Webber alleged that the state had breached its fiduciary duties towards her son by failing to provide adequate care and support, which had resulted in significant harm to her son. The state argued that it had not breached any fiduciary duties and that any breaches of care were not sufficient to constitute a breach of fiduciary duty.

The primary legal issue before the court was whether the state had breached its fiduciary duties towards the plaintiff's son, who was a ward of the state. The court needed to determine the nature of the state's fiduciary duties towards the ward and whether the failure to provide adequate care and support constituted a breach of those duties. The court also needed to consider whether the breaches of care were significant enough to constitute a breach of fiduciary duty.

The court found that the state had indeed breached its fiduciary duties towards the ward. The court held that the state owed fiduciary duties towards the ward, including duties of loyalty, good faith, and care. The court found that the state had failed to provide adequate protection, supervision, education, and medical care for the ward, which had resulted in significant harm to the ward. The court held that these breaches of care were significant enough to constitute a breach of the state's fiduciary duties towards the ward. The court also found that the state had breached its common law duty of care towards the ward, which further supported the finding that the state had breached its fiduciary duties.

The court ordered the state to pay damages to the plaintiff for the harm caused to her son by the state's breaches of fiduciary duty. The court also ordered the state to take steps to improve its care and support for wards of the state to prevent similar breaches of fiduciary duty in the future.

Orders