Withyman v State of New South Wales

This case concerned an appeal from a judgment of the District Court of New South Wales. The plaintiff, Mr Withyman, had brought proceedings against the State of New South Wales and Ms Blackburn, alleging a breach of duty of care by Ms Blackburn, a teacher, in embarking on a sexual relationship with him when he was a pupil. The State was sued for vicarious liability. The primary judge had found the State liable and awarded damages. Ms Blackburn also appealed.

The legal issues before the Court of Appeal included whether the State was vicariously liable for the actions of Ms Blackburn, and the operation of section 3B(1)(a) of the *Civil Liability Act 2002* (NSW). A significant issue on appeal was whether an interlocutory decision made under the *Felons (Civil Proceedings) Act 1981* (NSW) created an issue estoppel in relation to the defence of the *Limitation Act 1969* (NSW).

The Court of Appeal held that the primary judge had incorrectly applied the doctrine of issue estoppel. Drawing on principles from *Blair v Curran* and *Kuligowski v Metrobus*, the Court explained that for an issue estoppel to arise, the issue must have been fundamental and legally indispensable to the prior decision. In this instance, the decision to grant leave under the *Felons (Civil Proceedings) Act* was interlocutory and did not finally determine the rights of the parties. The grant of leave was based on the claim being prima facie arguable and not an abuse of process, rather than a conclusive determination of the limitation defence.

The Court allowed Ms Blackburn's appeal, setting aside the judgment against her and remitting the matter to the District Court to hear and dispose of her defence under the *Limitation Act 1969*. Mr Withyman's appeal was dismissed, and the State's applications for leave to appeal and cross-appeal were refused.