Y v State of NSW

[2008] NSWDC 17

Reported Decision: 6 DCLR (NSW) 317

District Court

CITATION:	Y v State of NSW [2008] NSWDC 17
HEARING DATE(S):	25 January 2008
JUDGMENT DATE:	25 January 2008
EX TEMPORE JUDGMENT DATE:	25 January 2008
JURISDICTION:	Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	1. Proceedings dismissed 2. Mr Y to pay the costs of the defendant of the motion and of the proceedings generally, on the ordinary basis
CATCHWORDS:	NEGLIGENCE - allegations of failure by statutory authority (DOCS) to protect children from harm while in the care of mother, including a failure to place them in the father's care - whether statutory authority owed a duty of care to the children giving rise to a private right of action - a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency, to discourage the due performance by the authority of its statutory duties - no duty on DOCS such that gave rise to a private right of action on the part of the children - PROCEDURE - leave for next friend to carry on the proceedings without a solicitor refused under r 7.14(2) - pleading embarrassing and liable to be struck out under r 14.2(8)(vi) - proceedings dismissed generally under r 13.4 as no reasonable cause of action disclosed in the pleading
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 Civil Procedure Act 2005: ss 56 - 58 UCPR: r 7.14(2), r 14.2(8)(vi) Legal Profession Act 2004: s 347
CASES CITED:	Graham Barclay Oysters Pty Ltd v Ryan [2002] CLR 540 Hill v Chief Constable of West Yorkshire (1989) AC 53 McDonald v Australian Securities and Investment Commission (2007) NSWCA 304 Quintano v State of New South Wales [2002] NSWSC 766 at [26] SB v New South Wales [2004] VSC 514 at [164] Simms v Wran (1984) 1 NSWLR 317 at 321-2 Sullivan v Moody [2001] HCA 59 at [42] Walsh v Prest [2004] NSWCA 94 at [4] X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739
PARTIES:	SY and TY by their next friend (Plaintiffs) State of New South Wales (Defendant)
FILE NUMBER(S):	5264/06
COUNSEL:	The next friend appeared in person (Plaintiffs) Ms V Hartstein (Defendant)
SOLICITORS:	Crown Solicitor (Defendant)

JUDGMENT

HIS HONOUR: These are my extempore reasons for judgment.

1. Mr Y brings these proceedings as the next friend on behalf of his infant children, SY and TY. Mr Y is and has from the outset been self represented. He commenced these proceedings by filing a Statement of Claim on 1 November 2006 in which he nominated himself as the plaintiff. He then filed an Amended Statement of Claim on 19 January 2007 also incorrectly nominating himself as the plaintiff. Finally, he filed a Further Amended Statement of Claim on 8 June 2007 nominating his children as the plaintiffs and himself as their next friend.

2. The proceedings came before me today on the defendant’s Amended Motion filed 11 January 2008 which seeks orders that the Further Amended Statement of Claim be dismissed or struck out, or in the alternative stayed unless and until a solicitor is engaged.

3. The issues are as follows:
(a) Does the pleading disclose a reasonable cause of action?
(b) If not, should the proceedings be dismissed or should they be adjourned to provide an opportunity for the pleadings to be put in order?
(c) If the plaintiffs are to be given an opportunity to re-plead their claim, should leave be given to Mr Y under Rule 7.14(2) to carry on the proceedings without a solicitor?

4. Mr Y indicated from the bar table that he accepted he needed a solicitor and did not apply for an order under Rule 7.14(2) to continue as an unrepresented litigant. I should, however, make it clear that I would not in the exercise of my discretion have allowed him to do so in any event. The history of the proceedings to date has made it clear that legal representation would be essential to ensure a just quick and cheap resolution of the real issues in these proceedings: S 56 of the Civil Procedure Act 2005. That was confirmed in the course of the oral argument before me this morning. Mr Y is simply not equipped to represent his children adequately in the event that they may have a cause of action against the Department. Had a competent solicitor been involved, most of the costs to date would not have been incurred. As to the future, if the children were to have a valid cause of action the Court would at least have the comfort of a certification under s 347 of the Legal Profession Act 2004.

5. The Further Amended Statement of Claim is clearly defective and should be struck out. It simply does not inform the defendant of the case it is required to meet: Simms v Wran (1984) 1 NSWLR 317 at 321-2; McDonald v Australian Securities and Investment Commission (2007) NSWCA 304. The pleading is embarrassing, has a tendency to cause prejudice and is an abuse of process. I therefore propose to strike out the statement of claim under Rule 14.2(8)(vi).

6. The more difficult issue is whether the proceedings should be dismissed generally under Rule 13.4, there being no reasonable cause of action disclosed or capable of being disclosed. The issue is particularly important in the context that any cause of action, should one exist, would be out of time and proceedings could only be reinstituted with leave of the Court under the relevant limitation legislation.

7. The Court of Appeal has made it clear that courts should in the interest of justice correct errors or mistakes that occur in the conduct of litigation: Walsh v Prest (2004) NSWCA 94 at para 4. (See also ss 56, 57 and 58 of the Civil Procedure Act 2005.

8. Nevertheless I am satisfied that in the context of the factual matrix giving rise to these proceedings, to the extent that it has been disclosed in the material before me, including I might add, the supplementary oral material which emerged from the bar table during argument, there is no possibility of these plaintiffs in these proceedings demonstrating the existence of a reasonable cause of action. My reasons follow.

9. The two infant plaintiffs claim that they suffered injury as a result of the negligent conduct of the Department of Community Services.

10. SY was born on 2 December 1999 and TY was born on 26 May 2001. They were removed from the care of their natural mother by the Department on 28 June 2003 when S, then aged three and a half, was admitted to hospital after ingesting five ecstasy tablets. Proceedings under the Care Act (the Children and Young Persons (Care and Protection) Act 1998) were commenced by the Department seeking orders allocating parental responsibility to the Minister. The application was supported by their mother but opposed by their father, Mr Y. After a hearing that took place over some five days between November 2003 and March 2004, the Children’s Court determined that there was no realistic possibility of the children being restored to either parent and allocated parental responsibility to the Minster for a period of two years.

11. The father, Mr Y, appealed to this court. That appeal was heard over some eight days in August and September 2004 before Judge Walmsley. His Honour delivered a judgment on 15 September 2005 in which he found in effect that the Department had acted appropriately in removing the children from the care of their parents. He said:

“In relation to both children, I am satisfied on the balance of probabilities that each of them was in need of care and protection when the circumstances giving rise to the care application occurred.

At that time SY was reasonably believed by a departmental officer to have ingested ecstasy tablets and was seriously ill. Her mother was a drug addict and was working as a prostitute. Their father had a lengthy criminal history that included one of drug abuse. He had only recently been discharged from prison and had never had the children living in his sole care. Thus, SY, I am satisfied, had been physically abused and the evidence suggests TY would have been as well had he stayed with his mother in that environment. The position thus was that neither child’s physical, psychological, or educational needs was being met by either parent.

Further I am satisfied on the balance of probabilities that but for the existence of arrangements for the care and protection of the children which had been made (see s 69) they would be in need of protection as their basic physical, psychological or educational needs would not have been met (see s 71[1][d]).”

12. His Honour went on to conclude:

“The children would not necessarily have been in his, that is the father’s, full-time care even if the Department’s officers in the beginning had an inaccurate history about him.”

His Honour in fact allowed the appeal, to the extent that he varied the orders of the Children’s Court so as to permit the children to live day-to-day with Mr Y. They continue in his sole custody to the present time.

13. Following the appeal, Mr Y made an application for costs. I refer to this, and the judgment of Judge Walmsley in respect of that application, because it provides some insight into the present proceedings in which Mr Y makes substantially similar complaints against the Department. Judge Walmsley summarised those complaints as follows:

“He (Mr Y) says, the Department gave no apparent consideration to leaving the children with him when they were taken from their mother, it relied on incorrect information given to departmental officers by police concerning his criminal history and generally showed bias towards him. In essence he submitted that the Department had ignored the positive aspects of him as a father and had emphasised his negative aspects.

He submitted that had he been properly assessed in the first place as a parent to whom the day-to-day custody of the children could be given, then the application to the magistrate might not have been necessary and ultimately this appeal would not have been necessary.

He reminded me further that departmental officers, before the children were taken away from their mother, had ignored calls that he had made to the Department warning of their plight. He submitted that the Department had behaved inconsistently on occasions. He drew my attention to an earlier occasion when they suggested that he have the children yet on this appeal they had vehemently opposed him as being an appropriate person to have day-to-day care.”

14. In response to these complaints his Honour said:

“I’m quite satisfied that some of the officers of the Department involved in the case did not behave well at times, and I made that apparent in my judgment last September. It was unfortunate in the extreme that Mr Y’s cries for help before the children were taken from their mother were effectively ignored, and that his position as a parent to them might go when they were taken from their mother appears not to have been handled with sensitivity.

However, I do consider that when children are first removed from circumstances where their need for care is apparent, the Department does need to rely on information from police and other similar agencies, this information about the parents will not necessarily be accurate. By reason of urgency, any reasonable doubts must be resolved in favour of that which is in the best interest of the children as opposed to any requirements for sensitive handling of the parents. Thus, whilst there is a basis for Mr Y’s criticism of departmental officers, particularly at the early stages, that does not mean that when it comes to deciding whether there should be costs awarded in this appear, it makes the matter exceptional...I consider that it was not in the circumstances unreasonable for the Department to have defended the orders of the magistrate, in other words to have resisted the orders that he sought on appeal. Thus, despite the Department’s somewhat insensitive approach to his position in the beginning and its reliance on false information, I do not see that as having had the causal effect on the appeal which is contended for it.”

15. I am unable to conclude, therefore, that these children can have any conceivable cause of action insofar as events after 28 June 2003 are concerned. To the extent that Mr Y complains about the Department's conduct of the proceedings, that cannot be the subject of a claim, in negligence, on the part of the children.

16. The essence of Mr Y’s complaints therefore consists of what he perceives was the Department’s failure to take what he believes would have been appropriate steps prior to 28 June 2003. The quotes above from Judge Walmsley point to the matters of which he complains. There is further reference to his complaints in the handwritten material in his Amended Statement of Claim filed 19 January 2007 where he said:

“The defendant failed to carry out their duty of care in which resulted in abuse and serious neglect to the children named above between the years 2000 and 2003. After the plaintiff made the defendant aware of the abuse, neglect on at least six times through the Helpline and phone call to the defendant’s local office, the neglect of the children named continued for at least two years which resulted in severe abuse and neglect until 28 June 2003 in which one child was almost killed and placed on life support...The defendant did not look to the best interests of the children by placing the children into foster care in which put the children under more stress and emotional pain...The defendant caused high levels of emotional stress and pain by not placing the children into his care and not taking action to investigate and assess the plaintiffs in order to place the children into the plaintiff’s care ASAP in which resulted in causing the attachment to the children to be broken. In fact, the actions of the defendants broke a bond between father and children.”

And there was other material before me of similar complaints, all of which related to the period prior to 28 June 2003.

17. In short Mr Y complains that the Department’s conduct in the lead up to S’s hospitalisation in June 2003 was negligent and that this negligence caused the children injury. This was exacerbated by a failure to adequately assess him, Mr Y, as a suitable person to have the parental responsibility for the children, and if that had been done the children would never have been placed in foster care. So far as this latter allegation is concerned, it was expressly refuted by Judge Walmsley. Thus, for the children to have any cause of action at all, it would first be required to be demonstrated that they were owed a duty of care by the Department that gives rise to a private right of action. For reasons that follow, this threshold requirement is not satisfied in the context of the factual matrix of these proceedings.

18. I turn to consider the law. Counsel for the Department, Ms Hartstein, helpfully provided detailed written submissions on the relevant law. I was also provided with a large folder this morning containing all the cases that are relied upon. I will attempt to do justice to Ms Hartstein’s detailed submissions by summarising the relevant principles as I consider them to be applicable to the present case, as follows:

(a) A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care: Sullivan v Moody [2001] HCA 59 at [42].

(b) The existence or otherwise of a common law duty allegedly owed by a statutory authority turns on a close examination of the terms, scope and purpose of the relevant statutory regime. The question is whether that regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence: Graham Barclay Oysters Pty Ltd v Ryan [2002] CLR 540.

(c) The co-existence of knowledge of a risk of harm and power to avert or to minimise that harm does not, without more, give rise to a duty of care at common law: Graham Barclay Oysters Pty Ltd v Ryan.

(d) A common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency, to discourage the due performance by the authority of its statutory duties: X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739.

(e) Where the conduct of an investigation by a public authority involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources, to subject those decisions to a common law duty of care and to the kind of judicial scrutiny involved in an action in tort, is inappropriate: Hill v Chief Constable of West Yorkshire (1989) AC 53.

(f) If such an action were available, every citizen would be able to require the court to investigate the performance of every departmental officer. The threat of litigation against an officer would not make that person more efficient. The necessity for defending proceedings successfully or unsuccessfully would distract that person from their duties: see the quote by Justice Levine in Quintano v State of New South Wales [2002] NSWSC 766 at [26], where he quotes Lord Kinkel in Hill v Chief Constable of West Yorkshire.

(g) For a duty of care to arise, the authority must have a relationship with the person affected by its conduct which is so close and so directly affected by its omission that it ought reasonably to have them in contemplation when it directs its mind to the conduct in question: SB (by her litigation guardian) v New South Wales [2004] VSC 514 at [164].

(h) Cases such as Sullivan v Moody, B v Attorney General, X (Minors) v Bedfordshire County Council are examples of the court’s unwillingness to recognise that a common law duty arises from the investigation of allegations of child abuse by child welfare authorities, at least where the claimant is the alleged perpetrator. The refusal of the common law to recognise a duty on the part of a police officer or other persons invested with a statutory obligation to investigate, rests upon the fundamental principle that such a duty would be inconsistent with the statutory framework and in conflict with their statutory obligations: SB (by her litigation guardian) v New South Wales [2004] VSC 514 at [163].

19. Many of the authorities, if not all of them, concern themselves with the situation where the plaintiff was in fact the father or the parent of the children involved. These proceedings, in contradiction, involve the actual children as the plaintiffs. I see no reason in principle why the principles that I have outlined above should not have equal applicability in that circumstance.

20. The Care Act, which is the legislative regime governing the Department and its duties and responsibilities in the circumstances of this matter, provides for broad based discretions in relation to complaints or notifications in respect of children, the exercise of which would depend on the sorts of factors and discretions referred to by Lord Keith of Kinkel in his judgment in Hill v Chief Constable of West Yorkshire. I agree with Ms Hartstein’s submissions at paras 29 and following of the written submissions, that to impose a duty to conduct investigations on the Director-General would be in conflict with the Director-General’s duty to exercise a discretion as to whether to conduct an investigation or not. The imposition of a duty of care would be inconsistent with those matters of discretion and policy under which the legislation imposes upon him or her.

21. There is no evidence, nor can there be, of a relationship between these plaintiffs and the Department that could give rise to a special responsibility by the Department to see that care was taken such that gave rise to a private right of action on their part.

22. The plaintiffs’ case, even if it were to be properly pleaded, is therefore bound to fail. For all these reasons I consider it appropriate to dismiss the proceedings generally and I so order.

(There followed submissions as to costs)

23 I order Mr Y to pay the costs of the defendant of the motion and of the proceedings generally,

on the ordinary basis.