Citation: Wilson & Ors v State of New South Wales [2001] NSWSC 869 revised 14/02/2002
Court: Supreme Court of New South Wales (Common Law Division)
Date: 28 September 2001
Judge(s): O'Keefe J
Background
Two parents and a grandmother brought proceedings against the State of New South Wales after they were subjected to child sexual abuse investigations, care proceedings, and criminal charges that ultimately came to nothing. The allegations arose from recovered memories produced during psychological treatment of one of the children for anorexia nervosa. The Children's Court dismissed the care proceedings after a hearing of 109 days, and the Director of Public Prosecutions ultimately declined to prosecute the surviving criminal charge against the father.
The plaintiffs sued under the Crown Proceedings Act 1988, alleging that named officers from the Department of Community Services (DOCS) and several police officers had acted negligently. The DOCS officers were said to have negligently investigated, reported, and acted on the abuse allegations. The police were alleged to have failed to conduct a proper investigation, failed to review the evidence adequately, and persisted with prosecutions longer than the evidence warranted.
The State moved by Notice of Motion to stay or dismiss the proceedings, or alternatively to strike out the pleadings, on the basis that the claims disclosed no reasonable cause of action.
Legal Issues
- Whether DOCS officers and the Director General owed a duty of care in negligence to the parents and grandmother when investigating and acting on allegations of child abuse
- Whether police officers owed a duty of care in negligence to the parents and grandmother when investigating, instituting, and continuing a prosecution
- Whether public policy considerations precluded the existence of such duties
- Whether the Statement of Claim, in its various amended forms, was properly pleaded
Decision
O'Keefe J held that neither the DOCS officers nor the police owed the plaintiffs a duty of care in negligence in the circumstances alleged. The court reasoned that child protection investigations and prosecutorial decisions are directed at protecting children and the public interest, not at safeguarding the interests of those who are the subjects of investigation or prosecution. Imposing such a duty would place the interests of suspected abusers in direct conflict with the protective function that the law requires these officers to perform.
The court drew on a substantial body of authority, including the House of Lords decision in X (Minors) v Bedfordshire County Council and Hill v Chief Constable of West Yorkshire, which recognised that public policy weighs heavily against imposing negligence liability on statutory authorities and police in the exercise of child protection and prosecutorial functions. The risk that such liability would produce defensive decision-making, inhibiting officers from acting robustly in the interests of children, was a significant consideration.
Because the negligence claims could not be sustained as a matter of law, the amended Statement of Claim filed on 19 April 2001 was struck out. However, O'Keefe J declined to dismiss the proceedings entirely. The court identified that causes of action in malicious prosecution and abuse of process might properly be available on the facts alleged, and gave the plaintiffs leave to replead on those bases.
The court also found formal deficiencies in the pleading itself. Notably, there was no articulated nexus between any alleged breach and the position of the grandmother, and no allegation that DOCS notifications had referred to her or that she was involved in the Children's Court proceedings. These pleading deficiencies compounded the substantive problems with the claims.
Orders Made
- The amended Statement of Claim of 19 April 2001 is struck out.
- Leave is granted to the plaintiffs to amend their Statement of Claim to plead the causes of action of malicious prosecution and abuse of process, in the form of the document filed in court, initialled by the judge, and dated 6 December 2001.
- The costs of the application to amend on the bases in Order 2 are to be the defendant's costs in the action.
- The plaintiffs are to pay the costs of the application to strike out the Statement of Claim and its amendments up to and including the amendment of 19 April 2001.
- An order for payment of those costs before the conclusion of the proceedings (under Part 52A, Rule 9) was refused.
Key Takeaways
- No duty of care in negligence arose in favour of parents and a grandmother who were the subjects of child abuse investigations conducted by DOCS officers or police. The court grounded this conclusion in both the structure of the relevant legislation and in public policy.
- Where child protection and prosecutorial functions are exercised, courts have consistently resisted imposing a duty of care running to those under investigation, on the basis that it would create an irreconcilable conflict with the protective purposes those functions serve.
- A pleading that fails to articulate any nexus between an alleged breach and the position of a particular plaintiff, or that contains no factual basis engaging that plaintiff in the relevant events, is liable to be struck out for causing prejudice, embarrassment or delay.
- Striking out a negligence claim does not automatically foreclose all avenues: O'Keefe J preserved the proceedings by granting leave to replead on the distinct causes of action of malicious prosecution and abuse of process.
- Cost consequences can be significant when a Statement of Claim is struck out after multiple amendments. The plaintiffs were ordered to bear the defendant's costs of the strike-out application while the defendant bore its own costs of the permitted amendment.
Legislation and Cases Referenced
Legislation:
- Crown Proceedings Act 1988 (NSW)
- Children (Care and Protection) Act 1987 (NSW)
- Crimes Act 1900 (NSW)
- Child Welfare Act 1939 (NSW)
- Police Service Act 1990 (NSW)
- Community Welfare Act 1971 (SA)
- New Zealand Bill of Rights Act 1990 (NZ)
Cases:
- General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
- X (Minors) v Bedfordshire County Council [1995] 2 AC 633
- M (A Minor) v Newham [1995] 2 AC 633
- Hill v Chief Constable of West Yorkshire [1989] AC 53
- Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335
- Caparo Industries PLC v Dickman [1990] 2 AC 605
- Sutherland Shire Council v Heyman (1985) 157 CLR 424
- Pyrenees Shire Council v Day (1998) 192 CLR 330
- Crimmins v Stevedoring Industry Finance Committee (1999-2000) 200 CLR 1
- Giannarelli v Wraith (1988) 165 CLR 543
- Gala v Preston (1991) 172 CLR 243
- George v Rockett (1990) 170 CLR 105
- Spellson v George (1992) 26 NSWLR 666
- Grimwade v State of Victoria (1997) 90 A Crim R 526
- Hillman v Black (1996) 67 SASR 470
- Whithair v Attorney General [1996] 2 NZLR 45
- Emanuele and Ors v Hedley and Ors (1997) ACTSC 13 (unreported)
- CLT v Connon (2000) Aust Tort Reports 63,980
- TC v Yanon [1999] NSWSC 31 (unreported)
- Elcham v Commissioner of Police and Ors [2001] NSWSC 614 (unreported)