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District Court 5 July 2019

P3 v D3

[2019] NSWDC 972

Other
CIVIL PROCEDURE COMMENCEMENT OF PROCEEDINGS STATEMENT OF CLAIM PLEADINGS AMENDMENT OF STATEMENT OF CLAIM S 64 CIVIL PROCEDURE ACT 2005

Citation: P3 v D3 [2019] NSWDC 972
Court: District Court of New South Wales
Date: 5 July 2019
Judge: Russell SC DCJ

Background

The plaintiff is an adult male who alleges he was sexually assaulted as a young child on two separate occasions in the 1970s. The defendant is a corporation operating a sporting club. The plaintiff alleged the first abuse occurred at a function at the defendant's premises in 1975, and the second series of assaults occurred in 1979, partly on land adjacent to the club and partly at the plaintiff's family home.

The plaintiff initially filed a Statement of Claim while self-represented. The defendant subsequently moved to have the proceedings or the pleading struck out. The plaintiff, by then legally represented, sought leave to file an Amended Statement of Claim instead. Both motions came before the court at the same time.

The proposed Amended Statement of Claim relied heavily on provisions inserted into the Civil Liability Act 2002 (NSW) by the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW), which introduced Part 1B addressing organisational liability for child abuse.

  • Whether the proposed Amended Statement of Claim disclosed a cause of action available at law, given that Part 1B of the Civil Liability Act 2002 was prospective only and did not apply to historical abuse
  • Whether the proposed amended pleading adequately informed the defendant of the case it had to meet
  • Whether leave to amend should be granted under s 64 of the Civil Procedure Act 2005 (NSW)

Decision

The court refused leave to amend. The central problem was that the proposed Amended Statement of Claim was drafted by reference to language drawn directly from Part 1B of the Civil Liability Act 2002, particularly Divisions 2 and 3, which create a duty for organisations to prevent child abuse and impose vicarious liability on organisations for abuse perpetrated by employees. Both counsel conceded that those provisions do not apply to historical sexual abuse: the savings and transitional provisions in Schedule 1 to the Act expressly confine sections 6F and 6H to abuse perpetrated after their commencement on 26 October 2018.

The court acknowledged that Division 3 contains a subsection preserving the common law of vicarious liability (s 6H(3)), and that a common law vicarious liability claim might well be available to the plaintiff. However, such a claim was not pleaded. The pleading's references to vicarious liability appeared only in the context of the statutory framework, and the court held it was impossible to read the document as founding a common law claim. A valid common law claim would also need to address the principles stated by the High Court in Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 and plead the material facts supporting vicarious liability for the acts of the alleged perpetrators.

The proposed Amended Statement of Claim also included a claim that a 2014 incident at the defendant's premises had exacerbated the plaintiff's post-traumatic stress disorder. The defendant argued that claim was statute-barred, but the court did not hear full argument on that point. Given that the 2014 incident was pleaded only as an aggravation of a condition arising from abuse occurring more than 40 years earlier, the court saw no utility in granting partial leave to amend in respect of that incident alone, particularly where the plaintiff had not sought leave on that limited basis.

Orders Made

  • The plaintiff's Motion filed 9 May 2019 (seeking leave to amend) was dismissed.
  • The plaintiff was ordered to pay the defendant's costs of that Motion.
  • The defendant's Motion (seeking to strike out or stay the proceedings) was stood over for further hearing after the parties considered the judgment.

Key Takeaways

  • The District Court confirmed that Part 1B, Divisions 2 and 3, of the Civil Liability Act 2002 operate prospectively only and cannot ground a cause of action in respect of historical child sexual abuse predating their commencement on 26 October 2018.
  • A pleading that adopts statutory language from provisions that have no application to the facts alleged does not disclose a cause of action available at law, and leave to amend will be refused on that basis.
  • Where a plaintiff's only reference to vicarious liability appears in the context of an inapplicable statutory regime, a court will not read the pleading as asserting a separate common law vicarious liability claim, even if such a claim might theoretically be open.
  • Under s 64 of the Civil Procedure Act 2005, leave to amend will be refused where the proposed pleading neither discloses a legally available cause of action nor adequately informs the defendant of the case it must meet.
  • The High Court's decision in Prince Alfred College Incorporated v ADC (2016) 258 CLR 134 remains the relevant starting point for any common law vicarious liability claim arising from historical institutional child sexual abuse in NSW.

Legislation and Cases Referenced

Legislation
- Civil Liability Act 2002 (NSW), including Part 1B (inserted by the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW)), ss 6A, 6E, 6F, 6G, 6H, and Schedule 1, cll 43, 44, 45
- Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW)
- Civil Procedure Act 2005 (NSW), ss 64, 67
- Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 19.1

Cases
- Prince Alfred College Incorporated v ADC [2016] HCA 37; (2016) 258 CLR 134