Citation: "MA" & 2 Ors v Swanson & Anor [2000] NSWSC 1003
Court: Supreme Court of New South Wales (Common Law Division)
Date: 31 October 2000
Judge(s): Master Harrison
Background
The proceedings arose from a DOCS investigation into allegations of sexual abuse made against a father in late 1996. The school attended by the first plaintiff, a young boy, notified DOCS of the allegations. Within weeks, DOCS commenced proceedings in the Children's Court seeking to remove the child from his parents.
The Children's Court proceedings concluded in August 1997, with the magistrate finding that DOCS had failed to prove its case. DOCS was subsequently ordered to pay approximately $34,000 in costs to the mother and $27,000 to the father. The plaintiffs, comprising the child and both parents, then pursued Supreme Court proceedings against both the DOCS officer who gave evidence in the Children's Court and the State of New South Wales.
The proceedings had been held in abeyance by agreement from April 1997, pending the Children's Court outcome. Progress thereafter was slow. By July 2000, the State filed a notice of motion seeking to have the proceedings struck out for want of prosecution or, alternatively, dismissed by way of summary judgment on the basis that no reasonable cause of action was disclosed.
Legal Issues
- Whether the proceedings should be dismissed or stayed for want of prosecution under Part 33 r 6 of the Supreme Court Rules, on the basis that the plaintiffs had not prosecuted their claim with due despatch
- Whether the statement of claim should be dismissed under Part 13 r 5 of the Supreme Court Rules, on the basis that no reasonable cause of action was disclosed, or that the proceedings were frivolous, vexatious, or an abuse of process
Decision
On the want of prosecution question, Master Harrison concluded that the plaintiffs had provided a lengthy explanation for the delay. The plaintiffs had filed documents to appoint a litigation tutor, filed their DCM (case management) documents, and provided a proper address for service. A motion to amend the statement of claim was also on foot. In those circumstances, the delay could not be characterised as intentional or contumelious, and dismissal on that ground was refused.
On the summary judgment question, the Master applied the demanding test drawn from the High Court authorities, which requires that a plaintiff's case be so clearly untenable that it cannot possibly succeed before summary dismissal is warranted. The State argued that the negligence claim was foreclosed by decisions under analogous legislation, particularly a New South Wales Supreme Court decision in TC v State of New South Wales and the House of Lords decision in X Minors v Bedfordshire County Council. The Master found those cases were not directly on point and, importantly, that the law in this area was still developing, particularly following the High Court's decision in Crimmins v Stevedoring Industry Finance Committee.
The Master declined to dismiss the claim, finding that the facts and circumstances needed to be examined at trial, including the relevant statutory provisions under the Children (Care and Protection) Act 1987. While the court might ultimately adopt the reasoning from X Minors, the plaintiffs' case was not hopeless and should be permitted to proceed. On costs, Master Harrison departed from the usual rule that costs follow the event. Because the plaintiffs had not been diligent in prosecuting their claim and had only rectified their omissions after the strike-out motion was filed, each party was ordered to bear their own costs.
Orders Made
- The second defendant's notice of motion filed 7 July 2000 is dismissed.
- Each party is to bear their own costs.
Key Takeaways
- Dismissal for want of prosecution requires either intentional and contumelious default, or inordinate and inexcusable delay giving rise to a substantial risk that a fair trial would not be possible or serious prejudice to the defendant. A plaintiff who provides adequate explanations and takes remedial steps before hearing will not ordinarily meet that threshold.
- The test for summary dismissal under Part 13 r 5 is a high one: the plaintiff's case must be so clearly untenable that it cannot possibly succeed. The presence of difficult or developing factual and legal questions heightens, rather than lessens, the caution required before the power is exercised.
- Where the law in a relevant area is still developing, courts are reluctant to stifle proceedings by way of summary dismissal. The evolution of negligence principles following Crimmins was cited as a reason to allow the claim to proceed to trial.
- A plaintiff's failure to prosecute diligently, even where insufficient to ground a strike-out, can affect the costs outcome. The Master declined to award costs to the successful plaintiffs because the relevant deficiencies were only remedied after the State filed its motion.
- Common law negligence claims against government agencies arising from child welfare investigations are not automatically foreclosed by decisions under analogous legislative regimes in other jurisdictions. The specific statutory framework and the particular facts of each case require examination at trial.
Legislation and Cases Referenced
Legislation
- Supreme Court Rules (NSW), Part 33 r 6 and Part 13 r 5
- Children (Care and Protection) Act 1987 (NSW)
- Community Welfare Act 1972 (SA)
- Child Welfare Act
Cases
- Birkett v James [1977] 2 All ER 801; AC 297
- Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405
- Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491
- McKenna v McKenna [1984] VR 665
- Stollznow v Calvert [1980] 2 NSWLR 749
- Air Services Australia v Zarb (NSWSC, unreported, 26 August 1998)
- Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62
- General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
- Webster & Anor v Lampard (1993) 177 CLR 598
- Contribution Fund of Australia v Hunt (1982) 44 ALR 365
- Gibson v Parkes District Hospital (1991-92) 26 NSWLR 9
- CLT v Connon [2000] SASC 223
- TC v State of New South Wales [1999] NSWSC 31
- X Minors v Bedfordshire County Council [1995] 2 AC 633
- Hillman v Black (1996) SASR 490
- Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 74 ALJR 1