DB (a pseudonym) v The State of Western Australia [2025] WADC 60

1. The plaintiff's claim is for damages for what is characterised as historical child sexual abuse.
2. He pleads as follows:
   1. By s 4 of the Community Welfare Act 1972 (WA), a department of the public service of the first defendant was established, called the Department for Community Welfare ...
   2. By s 5(1) of the Community Welfare Act 1972 (WA), administration of the Community Welfare Act 1972 (WA) and the control of the Department were vested in the Minister responsible for the Community Welfare Act 1972 (WA).
   3. By s 6 of the Community Welfare Act 1972 (WA), the Minister referred to in the previous paragraph was constituted as a body corporate under the name, 'The Minister for Community Welfare', with perpetual succession and a common seal and was capable in the corporate name of being sued (hereinafter the body corporate).
   4. By s 5 of the Child Welfare Act 1947 (WA) ... the administration of the [Child Welfare Act] was vested in a responsible Minister of the first defendant ... and, subject to the Minister, was required to be carried out by the Department.
   5. At all material times, the Minister pleaded in the previous paragraph was the Minister pleaded in 4 and 5 ...
   6. By s 7 of the Community Welfare Act 1972 (WA), a person was required to be appointed to the office of Director of Community Welfare, who by s 4(1) of the [Child Welfare Act] was Director of the Department for the purposes of the [Child Welfare Act] ...
   7. Throughout the operation of the Community Welfare Act 1972 (WA), a person was so appointed.
   8. By s 6(1) of the [Child Welfare Act], it was the duty of the Director, under the direction of the Minister for Community Welfare, to carry into operation the provisions of the [Child Welfare Act] so far as the execution thereof was not expressly committed to any other person.
   9. By s 18 of the Children and Community Services Act 2004 (WA), the second defendant is a:

(a) body corporate with perpetual succession and proceedings may be taken against it in its corporate name; and

(b) continuation of, and the same legal person as, the body corporate pleaded in 6.

1. On 14 December 1977, 'Longmore' was declared as a 'Departmental Centre' under s 13(1) of the [Child Welfare Act].
2. The plaintiff was remanded in Longmore when he was a child, during which time the plaintiff was subjected to abuse, constituting child sexual abuse ...

(i) The plaintiff was abused ... the perpetrator was a 'group worker' but he does not remember his name.

1. The first defendant or alternatively the second defendant is vicariously liable for the abuse perpetrated upon the plaintiff as pleaded.

(i) The perpetrator as an employee, servant or agent of the first defendant or alternatively the second defendant.

(ii) The apparent performance of his role gave the occasion for the sexual abuse.

(iii) The perpetrator had authority, power, trust, control and the ability to achieve intimacy with the plaintiff.

(iv) The perpetrator took advantage of his position with respect to the plaintiff.

(v) The perpetrator was in the course of his employment, service or agency at the time of the abuse.

1. For the duration of the plaintiff's time at Longmore, the first defendant, the body corporate, the Minister, the Department and the Director owed nondelegable duties of care to the plaintiff at common law to take all reasonable steps to protect the plaintiff from foreseeable risks of injury, which arose due to them having care and custody of the plaintiff at a Departmental facility or detention centre under the [Child Welfare Act].
2. The first defendant, the body corporate, the Minister, the Department and the Director and their respective servants and agents breached the duties pleaded in the previous paragraph by failing to protect the plaintiff from the child sexual abuse.

1. By their application the defendants seek an order striking pars 5 and 7 along with unspecified parts of each of pars 8, 10, 11, 14, 15 and 16 that refer to the second defendant 'having the power of the Minister under the Child Welfare Act 1947 (WA)' and that as against the second defendant the action be dismissed.

(a) discloses no reasonable cause of action against the Second Defendant; and

(b) may prejudice, embarrass or delay the fair trial of the action.

1. There is no factual basis to plead that the Second Defendant created under the Community Welfare Act 1972 (WA) solely for that statute, is the Minister empowered under the Child Welfare Act 1947 (WA).
2. There is no pleaded factual or legal basis for how the Second Defendant can be vicariously liable for the alleged acts of employees of the First Defendant.
3. The application was heard in general chambers on at the request of the parties and the decision reserved.
4. The proposition put by par 2 of the grounds could only relate to pars 5 and 11 of the pleading.
5. Paragraph 5 draws upon par 4. The legislation referred to in each of pars 4 and 5 is singular and identical. Each of pars 4 and 5 refer to the Minister, the first as the 'Minister responsible for the Community Welfare Act 1972 (WA)' and the second, as 'The Minister for Community Welfare'. By par 5 the plaintiff nominates the 'Minister responsible for the Community Welfare Act' as 'the Minister for Community Welfare'.
6. By par 11 the plaintiff alleges that the second defendant is a 'continuation of, and the same legal person as, the body corporate pleaded in [5]'.
7. The plaintiff has utilised the term 'body corporate' at par 5 to identify 'The Minister for Community Welfare'.
8. The significant work undertaken by the relevant parts of the pleading is at par 5 where the plaintiff specifies that the Minister responsible for the Community Welfare Act was constituted as the body corporate. However, neither at that point nor at any other point does the plaintiff contend, as the defendants specify by par 2 of the grounds that the second defendant was created under the Community Welfare Act solely for that Act.
9. In response to par 2 of the grounds of the application, the plaintiff has pleaded the identity of the second defendant and its generation. If there is some significance in the part of the ground that is not pleaded by the plaintiff, it, along with any other issue that calls for interpretation can be put for determination at trial. That is the forum in which consideration is properly given to questions of statutory interpretation.
10. In the course of submissions, the defendants placed reliance upon a determination recently made at the conclusion of a trial by her Honour Black DCJ in DB (a pseudonym) v The State of Western Australia [2025] WADC 60. In the reasons given for decision her Honour stated as follows:
    1. The contention by the plaintiff regarding the body corporate's power to exercise control over the Department arises from a misunderstanding of the operation of the relevant Acts.
    2. There is no special relationship at common law that gives rise to a relevant duty on the pleaded case between a Ministerial body corporate and a ward of the State. If such existed it would need to arise from the relevant statutes, namely the [Community Services Act] and the [Child Welfare Act].
11. The body corporate to which her Honour referred at [450] is the second defendant.
12. Preceding those conclusions her Honour expressed that she accepted the defendants' submission that the statutory regime gave 'control' of the Department to the second defendant, but the Director General had responsibility for the general administration of the Department. Preceding that assessment, her Honour had provided a summary of the plaintiff's case against the second defendant and preceding that summary had stated at [442] - [444] as follows:
    1. The defendants submits [sic] that whatever duties may be owed directly by the defendants, none of the functions relevant to the plaintiff's pleaded case are to be carried out by either of the defendants.
    2. The determination of what basis, if any, for the potential liability for either defendant is not undertaken on a theoretical basis. The court must consider the case that has been brought and determine whether the pleaded case gives rise to a basis for the potential liability of each of the defendants.
    3. Accordingly, the analysis below is made on the basis of the particular facts and circumstances in this case and the manner is [sic] which this case has been conducted.
13. The defendants would establish [450] and [451] as precedent for the purposes of their interlocutory application. Her Honour confined her reasoning to the cases presented at trial.
14. It is only by the operation of par 1(a) of the grounds of the application that an action could be dismissed. No submission was advanced at the hearing in relation to the contention at par 1(b).
15. The allegations put against the defendants by the content of par 14 are properly considered in the context established by his pleading that he does not know the identity of the perpetrator.
16. By the third ground of the application the applicants put a proposition that is neither the unqualified pleading of the plaintiff nor the subject of any evidence. In the event that at trial it is established that the perpetrator had been an employee, servant or agent of the first defendant the defendants would establish that proposition.
17. As for the proposition put by par 1(a) of the grounds of the application, nothing was put by the defendants in relation to the allegations of primary liability put by the plaintiff at par 15.
18. There is insufficient justification to strike out parts of the statement of claim because they disclose no reasonable cause of action against the second defendant. There is no basis upon which to determine that judgment be entered for the second defendant.
19. The application will be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.