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[2026] NSWSC 741
Supreme Court of NSW
2026-06-26
Lonergan J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Jones v State of New South Wales [2026] NSWSC 741
Hearing dates: 16 June 2026; further written submissions 24 and 26 June 2026
Date of orders: 26 June 2026
Decision date: 26 June 2026
Jurisdiction: Common Law
Before: Lonergan J
Decision: (1) The plaintiff has leave to rely on a Second Further Amended Statement of Claim in the form of Exhibit G but removing pars 15C(c), 18 and 19(d), to be filed and served within 2 days that is, on or before Tuesday 30 June 2026.
(2) The plaintiff is to pay the defendant’s costs of the notice of motion and the costs of, and associated with, the amendment.
Catchwords: CIVIL PROCEDURE – amendment – late amendment after adjournment of hearing – whether amendments limited to regularising the pleadings to accord with the evidence – whether absence of affidavits explaining the delay fatal to the application – circumstances evident in the litigation adequately explain delay – no evidence of prejudice – leave to amend granted – costs
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 59, 60, 64, 65
Crimes Act 1900 (NSW), ss 73, 77 (in force as at 1977)
Crimes Act 1958 (Vic)
Evidence Act 1995 (NSW), s 140
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2; 100 ALJR 170
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629
Clavel v Savage [2013] NSWSC 775
Dickens v State of New South Wales [2017] NSWSC 1173
Duke Group Ltd (In liq) v Arthur Young (Reg); Peat Marwick Hungerfords (Third Party) (No 4) (1991) 55 SASR 24; [1991] SASC 2707
Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia-Forbes [2026] NSWCA 35
Ms P v Mr D [2020] NSWSC 224
Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377
NV v State of Tasmania [2026] TASSC 12
State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
St Paul’s College Ltd v Allan [2026] NSWCA 22
The Queen v Ian John Bakker (Court of Criminal Appeal (Vic), 27 February 1978, unrep)
Wilkinson v Downton [1897] 2 QB 57
Texts Cited: Crawford’s Proof in Criminal Cases, (4th Ed, 1982, Law Book Co.)
Category: Procedural rulings
Parties: Christina Ann Jones (Plaintiff)
State of New South Wales (Defendant)
Representation: Counsel:
D Campbell SC / J Masur
M Gerace SC / O Dinkha
Solicitors:
Porters Lawyers (Plaintiff)
Sparke Helmore Lawyers (Defendant)
File Number(s): 2023/00361177
Publication restriction: Nil
The plaintiff, Christina Ann Jones, by statement of claim filed in November 2023, sues the State of New South Wales for damages. In that statement of claim she alleged that whilst a student at Richmond High School in or around 1976, (later amended to 1977), over a period of about 6 to 9 months, she was sexually abused by a teacher from the school named Mr Clancy.
The hearing of this claim was listed before me for 5 days commencing 28 April 2026 but on the first day it became apparent that the plaintiff’s case was inadequately prepared, including that the plaintiff’s evidentiary statement filed on 11 April 2024 did not disclose, in admissible form, the facts said to support her claim of abuse by Mr Clancy and so the relevant circumstances for evaluation to determine whether the defendant is liable for those acts. (Mr Clancy died in 1999 and is not sued).
An adjournment was granted. A fresh hearing date was secured and directions made. The plaintiff then filed a notice of motion on 28 May 2026 seeking leave to file a proposed Second Further Amended Statement of Claim (“2FASOC”).
The defendant opposed the motion because the application was very late, and not supported by any affidavit explanation that allowed the necessary assessment by the Court as to why the leave should be given, and to evaluate whether the changes in pleading had their origin in error by the solicitor, or a material change in the plaintiff’s own allegations of what occurred.
For the reasons that follow, I have decided that leave to amend should be granted in terms of the 2FASOC (Exhibit G) excluding pars 15C(c), 18 and 19(d) which are no longer pressed. The 2FASOC in those terms is to be filed and served within 2 days. This leave is granted on the basis that the plaintiff must pay the costs of and associated with the amendments, and the costs of the notice of motion.
“While a student at the school, the Plaintiff was sexually abused by a teacher from the school, named Mr Clancy (“Clancy”)
Particulars:
In or around 1976, the Plaintiff was directed by her teacher to deliver a message to Clancy. The Plaintiff did so. Following this, Clancy came to the Plaintiff’s house and conversed with the Plaintiff’s mother and stepfather, and after this interchange, the Plaintiff was directed by her mother to begin dating with Clancy.
After this, at school, Clancy directed the Plaintiff to accompany him to Clancy’s house in East Richmond. Once there, Clancy had sexual intercourse with the Plaintiff. This occurred on about 15 occasions.
On other occasions, Clancy took the Plaintiff to the Richmond Bowling Club and had drinks with the Plaintiff in the company of other teachers. On these occasions, Clancy took the Plaintiff to his house and she had sexual intercourse with him. This occurred on about 3 occasions.
To the best of the Plaintiff’s recollection, the interchange with Clancy took place over a period of about 6 - 9 months.”
It is alleged that the harm she suffered was sexual assault, physical assault, psychiatric injury and psychological sequelae.
The duty of care was pleaded in terms of the NSW Department of Education having care, control, operation and management of Richmond High School, and so it owed a duty of care to the plaintiff, which was non-delegable, to take reasonable care for her safety whilst she was a student at the school. It was pleaded that the scope of the duty included the taking of reasonable precautions against foreseeable and not insignificant risk of harm, identified relevantly as the risk that young students might be sexually abused by staff.
The pleading proceeded as follows:
“10. In relation to the risk of harm, the plaintiff says that the risk was:
a. Foreseeable, in that the risk was one of which the Department knew or should have known,
Particulars:
The Department should have been aware of widespread sexual abuse of young persons by teachers at educational institutions, and
b. Not insignificant - in that sexual abuse was capable of leading to serious personal injury.
11. A reasonable person in the position of the Department would have taken precautions against the risk of harm because:
a. If precaution was not taken, the risk was likely to materialise and students abused, and
b. Sexual abuse of youth was likely to result in serious injury in the nature of psychological injury, and
c. The burden of taking precautions was justified by reason of the fact that such precautions were directed to ensuring that employees did not engage in criminal behaviour towards young students, and
d. The Department’s care control operation and management of the school was generally directed to education of young students’ which activity was for the overall benefit of those youth and the community.
12. A reasonable person in the position of the Department would have adopted the following precautions (“the precautions”) against the risk of harm:
a. Exercise reasonable care for the safety of the Plaintiff including to develop and maintain a safe system of caring for the Plaintiff and to protect her from sexual abuse by those who were employed at the Institution.
b. Ensure that employees were not able to interact with young students on a “one to one” basis.
c. Institute and maintain a system of mandatory reporting of sexual abuse or suspected sexual abuse of students.
d. Appointed a representative charged with safeguarding young students, and encourage those students to report predatory sexual practices by staff.
e. Ensure that there was sufficient supervision of students to avoid them being abused by other staff.
f. To conduct regular and thorough inspections of the school so as to enquire into the provision for the welfare and care including the custody, control and supervision of young students including the Plaintiff and afford students, staff and any other person at the school the opportunity to confidentially raise concerns about sexual abuse of students including the Plaintiff.
g. To encourage students to report inappropriate sexual contact to management at the school.
13. The Department failed to take any of the precautions.
14. The Plaintiff alleges the Department’s failure to adopt the precautions constituted negligence.
15. The breach of duty as alleged above was a necessary condition of the Plaintiff’s alleged harm and that it is appropriate for the scope of the Defendant’s liability to extend to that harm so caused.”
“19. The Department is vicariously liable for the acts of its employee, Clancy, in sexually abusing the Plaintiff and for the injury and harm suffered by the Plaintiff.
Particulars of vicarious liability
a. At the time and in the circumstances when the Plaintiff was sexually abused, Clancy was in the service of the Department.
b. The aforesaid assaults upon and injury to the Plaintiff occurred in the course of, or closely connected with Clancy’s duties, and service as aforesaid;
c. Alternatively, at the time and in the circumstances when the Plaintiff was sexually assaulted, Clancy was acting as an agent of the Department for the purposes of the pursuit and furtherance of its undertaking, namely the education of adolescent students.
d. [Further and in the alternative to (a), (b) and (c) above, Clancy was part of a joint common enterprise in concert with the Department, namely the education of young students;] (Not pressed);
e. Further, and in the alternative, the position in which Clancy was placed by the Department in relation to the Plaintiff was:
i. A position of power and authority in that young students were required to obey without question staff at the school, and
ii. A position of trust in that young students including the plaintiff were frequently supervised and directed by staff and were expected to comply with any direction from staff, and were expected to respect the authority of staff, and
iii. A position of potential intimacy insofar as staff were able to touch young students at will, were called upon to supervise young students at all times and were otherwise able to have “one on one” contact with the Plaintiff.
20. Accordingly, the Department is vicariously liable for the aforesaid abuse committed by Clancy.
21. Insofar as the Department is vicariously liable to the plaintiff, the plaintiff says that by virtue of s.3B(1)(a) Civil Liability Act 2002 NSW (“the Act”), the Act does not apply in respect of that liability (save for the exceptions in s.3B(1)(a) Act).”
“22. The conduct of the Department fell so far short of acceptable standards as to represent a contumelious disregard for the Plaintiff’s rights and a violation of his rights to personal and bodily integrity.
Particulars of the claim for exemplary damages
23. The conduct of the Department, through its members, servants and/or agents:
a. Demonstrated a lack of competence for the task of assuming responsibility for the care of children in circumstances where they represented to the Plaintiff and the community that they were competent to do so; and
b. Fell so far short of acceptable standards so as to represent a contumelious disregard for:
i. The Plaintiffs rights and a violation of his rights to personal and bodily integrity;
ii. Their responsibility to care for the Plaintiff;
iii. Their responsibility to the community when they assumed responsibility for the care of children; and
c. The Plaintiff relies on the facts and circumstances particularised above in their entirety.”
Further and better particulars were requested in December 2023 and March 2024. Relevantly, the particulars provided by the plaintiff in January 2024 stated that the abuse occurred in 1976 or 1977 and when the plaintiff was in Year 10. In the particulars provided on 3 April 2024, the plaintiff’s solicitors noted reliance upon the report of Dr Phillips dated 20 October 2023 which “sets out the facts, matters and circumstances of the abuse”. (Answer 1.7(a)).
Dr Phillips’s report outlined the abuse in par 9 in the following terms:
“Ms Jones said that her sexual abuse began when she was in Year 10 at Richmond High School. The perpetrator had been a teacher (Douglas Clancy) who principally was responsible for a boys’ class (Manual Arts). Specifically:
• The claimant had been asked to take a message to Clancy. She arrived at the empty classroom.
She noted, additionally, that she had no prior contact with Clancy.
• She recalls the teacher making what she said had been a “romantic comment” (particularly that she was pretty).
She has memory also of the teacher smiling at her.
She found these actions to be confusing.
• She had been at home sometime later. To her surprise, Clancy came to the dwelling during the evening.
The teacher asked her mother whether he could speak with her.
A little later, her mother said to her that she was unaware that she was going out with Clancy. He had asked for their agreement in relation to this.
She recalled that she was no more than fifteen years old at the time, and that Clancy was probably in his mid-twenties.
• She recalled that Clancy came to her home on several further occasions. It was the usual case that they would sit together on the veranda.
She said that Clancy began to kiss her in an episodic manner, and made positive comments about her eyes.
• He continued to come to her home in the period which followed. She tried not to think about his motive for so doing.
• She noted that her mother had literally broken up her relationship with the previous boyfriend.
In the context of this, she felt her mother was setting her up with Clancy. She recognised, also, that she had been “heartbroken” at/around the time
when Clancy entered her life.
• She had increasing contact with Clancy at school additionally. She would go and sit in his staffroom, despite the fact that he took relatively little notice
of her.
• She had also been taken to the Richmond Bowling Club after school hours by Clancy. The teacher was not uncommonly accompanied by his mother in
that situation. She felt awkward, with nothing to say.
• It had been a little later when Clancy began to take her to his house (date unremembered), generally after school. She visited also at weekends.
She recalled that Clancy shared the dwelling with another teacher (Wilkinson). Wilkinson was a good-looking man.
• She has a memory of being in Clancy’s bedroom shortly thereafter and being on his bed. He then forced her to have oral sex with him. She recalled the
repugnant smell of his groin.
Additionally, she recalled that Clancy encouraged her to have sex with him from that time. She had been a virgin, and she has memory of the teacher
noting that she was “tight”. She had no previous sexual experiences.
• In relation to the sexual activity, she made the point that she was bound to do what she was told by the teacher.
She cannot remember experiencing any sense of pleasure in the sexual intimacy. Her major memory is of “guilt ... shame ... self-disgust”.”
“12. I was sexually abused by a teacher at Richmond High School named Mr Doug Clancy (“Clancy”).
13. When I was 15 years old, I had gotten my first boyfriend. His name was Warren. He was in the year above me at school. I was very smitten with Warren; however, my mother and step father made me stop seeing him when they found a ‘discharge’ on my dress.
14. One day whilst I was in Year 10 at school, I was directed to deliver a message from one teacher to another. The recipient teacher was Clancy. Clancy taught a lot of the ‘boy’ subjects such as woodwork, metal work, technologies, drawing and similar subjects. At the time, girls were not allowed to participate in these subjects. I went into the classroom, gave Clancy the note and left. Clancy made a comment to me at this time. Something to the effect of “don’t smile at me like that’’.
15. I recall that Clancy had red hair, a red beard, was short in height, and was believed to be aged in his mid-20s.
16. A few days after I delivered the note to Mr Clancy, he came to my house. He was not invited by me, and I was not sure why he was there. Clancy, my mother and stepfather went into the study to have a discussion whilst I remained in the lounge room in front of the television. Clancy left shortly after.
17. After the discussion, my mother came to me and said words to the effect that I was going to be “going out” with Mr Clancy from then on. I was very unhappy and confused about this.
18. After this, when I was at school, Clancy would approach me and arrange for me to go back to his house in East Richmond. He shared this house with another teacher from Richmond High School named Bruce Keating (‘Keating’).
19. Clancy also expected me to go and sit in the staff room with him during recess and lunch times. I did not like doing this, it was boring.
20. On about 15 occasions, Clancy took me back to his house. We would sit in the lounge room and talk, and then he would take me to his bedroom and we would have sexual intercourse. He would then drop me back to my house or to a bus stop to catch a bus home.
21. I was a virgin the first time I was forced to have sex with Mr Clancy.
22. At different times, whilst I was at Clancy’s house, we would be sitting with Clancy and Keating in the lounge room and Clancy would take me to his bedroom and we would have sexual Intercourse. When we would return to the lounge room, Keating would still be sitting there watching television.
23. On one occasion, I went with my friend, Louise Petherick to Clancy’s house. We did not have sexual intercourse on this occasion; however, Louise knew that I was ‘in a relationship’ with Mr Clancy. She was not aware at the time that I was being forced to have sexual intercourse with him. We never spoke about this during school.
24. I did not consider us to be a couple. I never did any house work, or cooked any meals for him. We did not go out on dates to the movies, or for any dinners.
25. Clancy would often, after school, take me to the Richmond Bowling Club where he would be having drinks with the other teachers from the school, both male and female. I would stand with the crowd and drink soft drink, whilst they drunk alcohol. They would talk about politics and other issues that went over my head. After being at the bowling club, Clancy would take me back to his house and we would have sexual intercourse.
26. One day, after around 6 - 9 months, Clancy and I stopped interacting. He stopped coming to school and I never saw him again.”
These allegations are followed by 37 further short paragraphs outlining, in very broad terms, her life course and subsequent social and employment history.
On 23 May 2024, the plaintiff’s solicitors filed a statement of particulars claiming psychological injury, chronic PTSD, severe depression and anxiety, various psychological and psychiatric symptoms and disabilities, the cost of past and future psychiatric treatment, and loss of earnings of over $900,000.00. There is a specified claim for general damages in the sum of $400,000.00 and exemplary damages in the sum of $150,000.00.
The defendant filed and served its defence on 14 March 2025, denying the characterisation of the risk of harm, denying that the alleged sexual abuse occurred in the course of employment, denying that it is “vicariously liable to the plaintiff”, (par 17a of the defence), denying there were any intentional acts within the meaning of s 3B of the Civil Liability Act 2002 (NSW), denying breach of duty of care, and denying responsibility for the alleged injuries and disabilities.
On 8 April 2025, an amended statement of claim was filed with the consent of the defendant. Changes were made to the years the plaintiff attended the school to 1974 to 1978, and that the alleged abuse occurred in 1977, not 1976. A further particular of the relevant risk of harm was added to par 10(b) as follows:
“At the time (of) the alleged abuse at Clancy’s house, his brother, who was also a teacher at the school lived at the home and was aware of the plaintiff’s presence at the home and the existence of the illicit relationship between them.”
On 1 May 2025 the plaintiff’s solicitors notified the defendant’s solicitors that the plaintiff intended to amend the pleading to state that it was Bruce Keating, not Mr Clancy’s brother, who was the teacher who lived with Mr Clancy at the time of the alleged abuse.
At a directions hearing on 6 May 2025, the proceedings were set down for hearing with a 5 day estimate to commence on Monday 27 April 2026, (later amended to Tuesday 28 April 2026 to take into account the public holiday later announced).
Further email correspondence between the parties in May 2025, led to a further amended statement of claim being filed on 29 May 2025, the only change being Mr Keating was named as the housemate of Clancy, rather than Mr Clancy’s brother.
On 28 November 2025 and 31 March 2026 case management orders were made by Coleman J. An unsuccessful mediation took place on 24 February 2026.
It is an expectation that when a matter is set down for hearing, attention has already been applied to the state of the evidence to be relied upon and the completeness of documents that have been filed and served. This applies particularly to statements of evidence, given that statement will comprise the evidence in chief of the party: Practice Note SC CL 1.
At the beginning of the hearing on 28 April 2026, a number of issues were raised, including objections to the plaintiff’s elliptical and unsatisfactory evidentiary statement filed on 11 April 2024.
Objection was taken to the conclusory language used, particularly the umbrella term “sexual abuse” and “forced” activity. Problems were created by the failure to articulate any description of the physical acts complained of and when they occurred. There was only the broadest description of the alleged sequelae of the abuse alleged, and nothing at all about treatment.
Following the rulings on these objections, senior counsel for the plaintiff, Mr Campbell, sought an adjournment of the proceedings so that a further evidentiary statement could be prepared. The proceedings were stood over part-heard to a date to be fixed, and for directions on 8 May 2026 to follow up issues that had arisen in respect of the expert report(s) of Dr Phillips.
On 7 May 2026, the plaintiff’s solicitor filed and circulated by email a vastly expanded evidentiary statement of the plaintiff. In the same email the plaintiff’s solicitor enclosed a proposed 2FASOC, stating that they “had taken the opportunity to refine the previous statement of claim”.
At the directions hearing on 8 May 2026 the Court noted that a further statement of claim had not been the subject of any discussion on 28 April 2026, although Mr Campbell was of the view the plaintiff’s position was reserved in that regard. The parties sought that the matter be relisted for directions on 21 May 2026 to give the defendant time to consider its position with respect to the proposed 2FASOC. On that same date, the matter was listed for continuation of the hearing on 6 October 2026 for four days.
On 21 May 2026, the defendant informed the Court that it did not consent to the filing of the proposed 2FASOC and orders were made for filing and service of this notice of motion and submissions.
“5A. The conduct of Clancy described in paragraph 5 above constituted, as against the Plaintiff, each of the following torts and unlawful acts:
a. battery;
Particulars of battery
i. Clancy intentionally engaged in physical contact with the Plaintiff, including by penetrative sexual intercourse on approximately 15 occasions and by touching the Plaintiff in a sexual manner on each such occasion.
ii. Such contact was harmful and offensive.
iii. Further and in the alternative the Plaintiff did not consent to each and all of the acts of sexual intercourse with Clancy, and any apparent consent was vitiated by Clancy’s position of authority and trust over the Plaintiff as a teacher at the school of which she was a pupil.
iv. The Plaintiff was, as a matter of law, incapable of consenting to the pleaded sexual contact, it being unlawful under s 73 of the Crimes Act 1900 (NSW) (as in force in 1977–78), which provided that any schoolmaster or teacher who carnally knows his pupil aged between 10 and 17 years commits an offence punishable by penal servitude for 14 years. In the premises:
a. Clancy was a “schoolmaster or other teacher” within s 73, being employed as a teacher at Richmond High School, where the Plaintiff was enrolled.
b. The Plaintiff was an enrolled student at Richmond High School and was at all such times Clancy’s “pupil” within s 73.
c. The Plaintiff was at all material times over 10 and under 17 years of age.
d. Clancy carnally knew the Plaintiff as pleaded in particulars (b) and (c) of paragraph 5.
e. By s 76 of the Crimes Act 1900 (NSW), consent is no defence to an offence under s 73.
b. intentional infliction of harm (the tort in Wilkinson v Downton [1897] 2 QB 57).
Particulars of intentional infliction of harm (Wilkinson v Downton)
i. The conduct of Clancy, by grooming, thereafter initiating and pursuing a sexual relationship with the Plaintiff while she was only 16 years of age and a vulnerable pupil at the school of which he was a schoolmaster and teacher was extreme and outrageous.
ii. Clancy intended to cause, or alternatively was reckless as to whether his conduct would cause harm to the Plaintiff.
iii. By reason of the conduct by Clancy, the Plaintiff has suffered actual harm of a recognised kind, namely psychiatric injury, as particularised in paragraph [6] below.”
“15A At all material times, the Defendant, having assumed responsibility for the care, supervision and instruction of young and vulnerable students at its schools (including the Plaintiff at Richmond High School), owed the Plaintiff a non-delegable duty of care, being a duty to ensure that reasonable care was taken to prevent reasonably foreseeable harm.
15B Further, by delegating the day-to-day care, supervision and instruction of the Plaintiff (and other students at Richmond High School) to, inter alia, teachers, supervisors and other staff present at the school, the Defendant remained, by reason of that non-delegable duty, responsible for ensuring that reasonable care was taken to prevent reasonably foreseeable harm. The Defendant was thereby responsible for the acts and omissions of its delegates, including teachers, supervisors and Mr Clancy, whilst they were, or purported to be, performing their duties.
15C The Defendant breached its non-delegable duty of care by failing to ensure that reasonable care was taken to prevent reasonably foreseeable harm to the Plaintiff. Particulars are as follows:
Particulars of breach
a. The conduct pleaded at paragraphs [5] and [5A] was engaged in by the Defendant’s delegate and was, by its nature, conduct that was reasonably foreseeable as likely to cause harm. That conduct was carried out in the course, or ostensible course, of the delegate’s duties, such that the Defendant remains responsible for it.
b. The conduct pleaded at paragraphs [5] and [5A] occurred in circumstances where neither the Defendant nor its delegates had implemented adequate systems, policies or directives to prevent such conduct, including in relation to supervision, reporting, and prohibition.
c. [The conduct pleaded at paragraphs [5] and [5A] arose from, or was facilitated by, a culture of abuse among the Defendant’s delegates, including teachers, supervisors and Mr Clancy, which the Defendant permitted or failed to prevent. In particular, no adequate measures, systems, policies or directives were implemented to identify, prevent or eradicate that culture.] (Not pressed).
d. The conduct pleaded at paragraphs [5] and [5A] was conduct of which its delegates, namely other teaching staff at the Richmond High School, including Mr Keating, was aware, or ought to have been aware and failed to take any steps to either prevent that conduct from occurring or notifying a competent authority of such conduct occurring including persons in authority within the school and/or the police.”
“15D Further and in the alternative, at all material times Clancy, as a teacher and schoolmaster at the school employed by the Department and entrusted with the care, supervision and instruction of pupils including the Plaintiff, owed the Plaintiff a personal duty to take reasonable care for her safety while she was a pupil at the school.
15E The scope of Clancy’s personal duty included, without limitation, a duty to refrain from sexually abusing the Plaintiff and a duty not to exploit his position of authority and trust over her for sexual purposes.
15F Clancy breached his personal duty of care by engaging in the conduct pleaded in paragraph 5 above and by committing the torts and unlawful acts pleaded in the section headed “wrongful conduct of Clancy” above.
15G Clancy’s breach of his personal duty of care was a necessary condition of the harm pleaded in paragraph 6 above, and it is appropriate for the scope of his liability to extend to that harm so caused.”
“20A Further, and on the bases pleaded in paragraph [19](a) to (e) above, the Department is vicariously liable to the Plaintiff for:
a. each of the torts and unlawful acts of Clancy pleaded in the section headed “ Wrong(ful) Conduct of Clancy” above (being battery and intentional infliction of harm); and
b. the breach by Clancy of his personal duty of care to the Plaintiff pleaded in the section headed “Clancy’s personal duty of care” above;
and is liable for all loss and damage suffered by the Plaintiff in consequence.”
The plaintiff relied on the following documents:
Affidavit of Elena Mason-Cole dated 28 May 2026 (Exhibit A);
Document titled “Plaintiff’s Opening Submissions (updated)” (13 pages) (Exhibit B);
Paragraph 9 of the report of Associate Professor Jonathan Phillips dated 20 October 2023 (Exhibit C);
Subpoena to Produce documents directed to the NSW Department of Education filed 15 May 2024 (Exhibit D);
Affidavit of Louise Petherick dated 26 May 2025 (Exhibit E);
Email from the plaintiff’s solicitor dated 8 May 2026 enclosing a copy of the proposed Further Amended Statement of Claim (Exhibit F);
Version of the Second Further Amended Statement of Claim which the plaintiff presses in her amendment application, signed and certified by the plaintiff’s solicitor on 16 June 2026 (Exhibit G).
The defendant relied on the following:
Affidavit of Margaret Fox dated 5 June 2026 (Exhibit 1);
Plaintiff’s new evidentiary statement dated 7 May 2026 (Exhibit 2).
Helpful written submissions were provided by counsel for the plaintiff on 9 June 2026 and counsel for the defendant on 12 June 2026.
A Joint Memorandum of Issues and Facts and Chronology identifying areas of dispute between the parties was also referred to in argument. This was deployed in support of the position of the plaintiff that the ss 73 and 77 Crimes Act 1900 (NSW) issue, (carnal knowledge and lack of consent in circumstances where the complainant is 16 to 17 years old) was “on the table” and had been articulated prior to the commencement of the hearing on 28 April 2026.
64 Amendment of documents generally
(1) At any stage of proceedings, the court may order-
(a) that any document in the proceedings be amended, or
(b) that leave be granted to a party to amend any document in the proceedings.
(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.
(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.
…
65 Amendment of originating process after expiry of limitation period
(1) This section applies to any proceedings commenced before the expiration of any relevant limitation period for the commencement of the proceedings.
(2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as-
(a) to enable the plaintiff to maintain the proceedings in a capacity in which he or she has, since the proceedings were commenced, become entitled to bring and maintain the proceedings, or
(b) to correct a mistake in the name of a party to the proceedings, whether or not the effect of the amendment is to substitute a new party, being a mistake that, in the court’s opinion, is neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party, or
(c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court’s opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process.
(3) Unless the court otherwise orders, an amendment made under this section is taken to have had effect as from the date on which the proceedings were commenced.
(4) This section does not limit the powers of the court under section 64.
(5) This section has effect despite anything to the contrary in the Limitation Act 1969.
(6) In this section, originating process, in relation to any proceedings, includes any pleading subsequently filed in the proceedings.
14.17 New matter may be raised in pleading
A party may plead any matter even if the matter has arisen after the commencement of the proceedings.
19.1 Amending a statement of claim
(1) A plaintiff may, without leave, amend a statement of claim once within 28 days after the date on which it was filed, but, unless the court otherwise orders, may not amend it after a date has been fixed for trial.
(2) If a plaintiff amends his or her statement of claim under subrule (1) after the defendant has filed a defence, the defendant may amend his or her defence at any time within 14 days after service of the amended statement of claim.
(3) A plaintiff’s right to make an amendment under subrule (1) is not affected by any amendment the plaintiff has made under rule 7.22.
This combination of rules provides a primary position that once a date has been fixed for trial, the plaintiff may not amend the statement of claim, unless the Court grants leave.
Leave to amend should be granted if the application is made in a timely manner and for a proper purpose: A**on Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (“Aon”).
The proposed amendment must be proper as to both substance and form and not liable to be struck out.
The amendment must not cause undue prejudice to the other party in the sense of consequence of the time and manner of the amendment, rather than the merits or otherwise of the matter sought to be raised: Duke Group Ltd (In liq*)* v Arthur Young (Reg)**; Peat Marwick Hungerfords (Third Party) (No 4) (1991) 55 SASR 24; [1991] SASC 2707.
The overriding purpose of the Civil Procedure Act and the rules of Court (s 56), the objects of case management (s 57), as well as the dictates of justice (s 58), must all be carefully considered when deciding whether to allow the amendments sought.
Just, quick and cheap resolution of the real issues is not an illusory or aspirational statement. The Court must do what it can to make it a reality in the way it exercises its discretion in respect of this application:
56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
(3A) (Repealed)
(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)-
(a) any solicitor or barrister representing the party in the proceedings,
(b) any person with a relevant interest in the proceedings commenced by the party.
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.
…
57 Objects of case management
(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects-
(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.
(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
58 Court to follow dictates of justice
(1) In deciding-
(a) whether to make any order or direction for the management of proceedings, including-
(i) any order for the amendment of a document, and
(ii) any order granting an adjournment or stay of proceedings, and
(iii) any other order of a procedural nature, and
(iv) any direction under Division 2, and
(b) the terms in which any such order or direction is to be made,
the court must seek to act in accordance with the dictates of justice.
(2) For the purpose of determining what are the dictates of justice in a particular case, the court-
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant-
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
59 Elimination of delay
In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.
60 Proportionality of costs
In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.
The dictates of justice require weight to be given to the competing considerations of justice between the parties and the efficiency of judicial administration. As made clear in Aon at [24] and [92] to [97], the Court must take into account the proper management and operation of the Court lists and the general desirability of efficiency in the conduct of the litigation.
On the question of explanation for delay, [103] of Aon is relevant:
“103. The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court’s attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.”
Mr Campbell SC submitted that the amendments do no more than bring the pleading into line with the statements and material served in the proceedings in such a way as elucidates the issues and assists the Court.
In particular, the re-fashioning of some of the pleadings is as a result of changes in the common law’s approach to liability in this area, notably by the High Court in AA v The Trustees of the Roman Catholic Church *for the Diocese of Maitland-*Newcastle [2026] HCA 2; 100 ALJR 170 (“AA”), published on 11 February 2026, and NV v State of Tasmania [2026] TASSC 12 (“NV”), published on 20 April 2026. The plaintiff’s outline written submissions for the 28 April 2026 trial described NV as “the first substantive authority to impose vicarious liability on a school for sexual abuse of a student by its employed teacher where the abuse occurred under the guise of a “relationship”, and off school premises, circumstances materially analogous to the present case”.
Mr Campbell submitted that the bases at criminal law for the identified “wrongful conduct of Mr Clancy” is not new. Arguably, as these are matters of law rather than fact, it is not necessary to plead the matters the plaintiff now has in par 5A(a)(iv), but the plaintiff has done so to assist in making the issues clear. These same considerations apply to the Wilkinson v Downton [1897] 2 QB 57 intentional infliction of harm case now articulated in par 5A(b). The description of the acts as “battery” simply describes the tortious conduct because the plaintiff says she was forced into sexual activities and in any event, any sexual intercourse with the plaintiff was non-consensual as a matter of law, given ss 73 and 77 of the Crimes Act as in force as at 1977.
Mr Campbell emphasised that the period in which the abuse is alleged to have occurred is not new and the year it is alleged to have occurred, (1977), was amended in early 2025 by consent. The plaintiff has always alleged she was in Year 10 when the abuse occurred. The substratum of facts has not changed. The defendant knew, from its own records, the year that the plaintiff was in Year 10 was 1977. There is nothing new and nothing prejudicial to the defendant in this respect. The defence filed on 14 March 2025 set out the relevant dates that the plaintiff was in Year 10, and subsequent correspondence between the parties led to the consent amendment.
Mr Campbell drew attention to the fact that the defendant produced documents in May 2024 in response to a subpoena issued by the plaintiff. That subpoena sought a very wide range of documents relevant to the claim, the plaintiff, Mr Clancy and any relevant policies, procedures and systems in place to safeguard children against conduct of this type. This means that at that time, if not before, the defendant must have searched for and interrogated available records relevant to the issues. Those issues have not, in reality, changed at all. The defendant has not filed any evidence as to prejudice. No statements from any teaching staff have been served by the defendant in the proceedings, nor any expert reports of any kind.
Mr Campbell submitted that whilst it can be accepted that an explanation for the delay in amending is required – in reference to Aon at [103] – there is no obligation that the explanation be given by way of affidavit. Here, the circumstances and progress of the litigation, and the recent changes to the common law relevant to the claim manifested in AA, well explain the amendments now sought to be made.
In respect of s 58(2) of the Civil Procedure Act and the “dictates of justice”, Mr Campbell submitted that whilst it could be said this application to amend is tardy, there is no suggestion that the plaintiff’s preparation has been tardy otherwise. Once the problem crystallised at the objection phase, the plaintiff acted very promptly to file the necessary updated statement and to provide the proposed 2FASOC.
Mr Campbell submitted that the amendments are directed to properly raising for determination the real questions raised by the facts pleaded. The subject matter has remained essentially the same. There has just been some recharacterisation of the legal issues arising from the subject matter, and some further amplification of the subject matter. The dictates of justice are served by a pleading appropriately reflecting the factual case made in the updated evidentiary statement, and to reflect the law as it applies to this claim.
Senior counsel for the defendant, Ms Gerace, submitted that there is a change to the facts now relied on and that requires explanation in affidavit form. The delay in making the proposed amendments requires affidavit explanation by the plaintiff, her solicitors, or both. The introduction of new concepts such as “grooming”, (par 5A(b)(i)), and the s 73 Crimes Act pleading are new and explanation is required about why they were not pleaded before.
Ms Gerace submitted that as a result of the absence of affidavit material, the defendant is deprived of the opportunity to cross-examine the deponents, and the Court is deprived of the opportunity of assessing the adequacy of the explanation. Ms Mason-Cole’s affidavit provides no explanation.
The need for explanation is especially required given that the application is made only after vacation of the hearing date that had been set down 12 months prior.
Ms Gerace submitted that there are inconsistencies in the accounts given by the plaintiff as to her age at the time the alleged abuse occurred, and the year(s) in which the abuse occurred, as well as other significant matters such as to whom and when she first reported what had occurred. Her account to Dr Phillips in October 2023 was that she was 15 years old when the abuse occurred.
Ms Gerace emphasised that lack of expedition in amending the plaintiff’s statement means that the Court is left with inconsistencies unexplained, in circumstances where the plaintiff is requesting an indulgence in the form of very late amendment. As recently as April 2026, the Agreed and Disputed Facts Statement still referred to May 1977 as the date on which the plaintiff and her friend went to Mr Clancy’s home, but that cannot be right when it is common ground that Mr Clancy did not start work at the school until July 1977. This May 1977 date is in both the plaintiff’s new and old statement, and in her friend’s allegedly corroborative statement made in 2024.
Ms Gerace argued that the Court should reject the submission made by Mr Campbell that issues with the plaintiff’s statement “crystallised” on day one of the hearing in circumstances where particulars of the abuse were repeated and relied on in the case advanced. The inadequacies and inconsistencies are in the plaintiff’s preparation. They were not caused by the defendant’s objections to the inadmissible material in the plaintiff’s evidentiary statement.
In respect of the relevance of ss 73 and 77 of the Crimes Act, Ms Gerace submitted that the facts do not support the pleading made because whilst Mr Clancy was a teacher, the plaintiff was not Mr Clancy’s pupil, and so that allegation will fail and the plaintiff ought not be allowed to raise it.
At the material time in 1977/1978, ss 73 and 77 were relevantly in these terms:
73 Carnal knowledge by teacher etc
Whosoever, being a schoolmaster or other teacher, or a father, or step-father, unlawfully and carnally knows any girl of or above the age of ten years, and under the age of seventeen years, being his pupil, or daughter, or step-daughter, shall be liable to penal servitude for fourteen years.
77 Consent no defence in certain cases
The consent of the woman, girl, pupil, daughter, or step-daughter shall be no defence to any charge under sections 67, 68, 71, 72, 72A, 73, 74 or 76A, or, if the female be under the age of sixteen years, to any charge under section 76:
….
Ms Gerace asserted prejudice to the defendant because the facts, matters and circumstances the plaintiff relies upon to allege that Mr Clancy was a “schoolmaster or other teacher”, and the applicant “his pupil” may need inquiry to be made with other teachers who were at the school at the time. The defendant is prejudiced by the plaintiff’s delay in raising this matter only now.
Ms Gerace submitted that costs are not sufficient to manage the prejudice to the defendant. The application of Aon, and this Court’s case management principles requires the motion be dismissed and the amendments not allowed.
Counsel for the plaintiff submitted that this basis of liability is a legal characterisation the Court may draw if it finds the conduct occurred as alleged. It does not require the presence of Mr Clancy to give evidence as to his actual state of mind, as it can be inferred from the objective circumstances. As Mr Clancy has been deceased since 1996, there is no prejudice to the defendant. Reference was made to recognition of the tort in Australia in Chandrasekaran v Commonwealth of Australia (No 3) [2020] FCA 1629 (“Chandrasekaran”) per Wigney J, Nationwide News Pty Ltd v Naidu*;* ISS Security Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377 (“Naidu”) and M**s P v Mr D [2020] NSWSC 224 (“Ms P v Mr D”) per Simpson AJ in a claim involving sexual abuse of a child. Reckless indifference as to harm suffices to satisfy the test: Naidu at [76]-[80] and Dickens v State of New South Wales [2017] NSWSC 1173 (“Dickens”) at [38]. The mental element can be drawn from the nature of the conduct itself. It was acknowledged that it was open to the plaintiff to have raised the pleading earlier, but there is no prejudice to the defendant raising it now given Mr Clancy has not been available since 1996.
As a starting point, counsel for the defendant submitted that there is a question mark over whether the law in Australia recognises an independent tort established by Wilkinson v Downton. Reference was made to the comments of Spigelman CJ in Naidu at [71]-[73]; Clavel v Savage [2013] NSWSC 775; Dickens (Fagan J) and Chandrasekaran. Wigney J at [50] referred to the existence of this tort in Australia as “not being without controversy”, but then, I interpolate, went on to identify with clarity the five elements that he discerned comprised the tort.
Reference was also made to Ms P v Mr D at [71]-[77], as a case calling into question recognition of the tort in Australia. However Simpson AJ seems to me to be accepting the availability of that tort, finding at [95] as a matter of fact that the “abusive and controlling” conduct complained of “did not rise to a level sufficient to satisfy the Wilkinson v Downton formulation”, but that “the proven acts of sexual and physical assault are sufficient for that purpose”.
The defendant asserted it is prejudiced because Mr Clancy is not available to give evidence as to his conduct and whether it was “calculated” to cause harm, one of the key elements of the tort.
Finally, complaint was made that the proposed pleading did not adequately plead “condition of mind”, as required by UCPR 15.4.
Whilst an affidavit explaining delay in amendment applications is often proffered and sometimes essential, I am not satisfied that the failure to provide one is fatal to this application to amend. The issue is whether the explanation is adequate, and that explanation can be seen from the objective circumstances and progress of the litigation as presented in the affidavits tendered by both the plaintiff and the defendant.
I am satisfied that the delay in respect of the extrapolations of the bases of liability now set out in pars 5A(a), 15A to C, 15D to G and 20A of the 2FASOC is largely explained by the recent developments in the law, and the opportunity taken to plead in a more specific way, the manner in which those developments put shape around the plaintiff’s allegations. Paragraph 5A(b), the Wilkinson v Downton claim, and the ss 73 and 77 Crimes Act allegations, arguably fall into a different category, but given the conduct of Mr Clancy relied upon is arguably illegal, pre AA there may have been some circumspection around attempting to visit that particular liability on the defendant vicariously or under its non-delegable duty of care.
Wilkinson v Downton was applied by Simpson AJ in the context of a (direct liability) sexual abuse claim in 2020 in Ms P v Mr D*,* although observing at [74] that there “appears to be no clear definition of what constitutes the tort”. Her Honour took the approach of Fagan J in Dickens at [38] as an appropriate way forward, concluding also at [108] that all of the torts committed by the defendant come within one or other of the exceptions set out in s 3B of the Civil Liability Act. As counsel for the plaintiff has submitted, the tort has in fact been recognised and applied in Australia in a number of cases. Although I could find no precedent for an identical context to the one here, it does not mean that the claim cannot be pressed, or should not be allowed as an amendment on the basis that it is hopeless.
I also accept Mr Campbell’s submission that the substratum of the plaintiff’s case has not really changed – forced sexual intercourse, by a teacher who cajoled her into an obviously inappropriate sexual relationship when she was in Year 10 – although it is clear that the plaintiff must have been 16 years old by the time Mr Clancy arrived at the school given her 16th birthday in May 1977. Apparent errors in dates were remedied in 2025, one year prior to the current argument regarding the 2FASOC.
Any perceived material changes in statements and accounts given by the plaintiff and her witnesses and all the related issues of credibility can still be explored in cross-examination at trial. As emphasised by Gordon J in AA at [219], the plaintiff still has to meet the evidentiary burden imposed by s 140 of the Evidence Act 1995 (NSW) and the B**riginshaw standard: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. See also to the same effect, Bell CJ in Hartnett v Trustees of the Roman Catholic Church for the Diocese of Wilcannia*-Forbes* [2026] NSWCA 35 at [118].
No evidence of specific prejudice to the defendant was tendered, although a submission was made that inquiry may need to be made of Mr Clancy’s contemporaries regarding the ss 73 and 77 Crimes Act argument. I do not accept that submission prohibits the amendment. This is a legal, not factual, issue. In any event, the facts of Mr Clancy’s employment, engagement and role at the school should already have been fully investigated. I also note the issue was outlined before 23 April 2026 in the pre-trial Memorandum of Issues and Facts and Chronology and so to that extent the issue was on the table.
The parties and the Court were unable to find a New South Wales decision that dealt with the interpretation of ss 73 and 77 of the Crimes Act as at 1977. In The Queen v Ian John Bakker (Court of Criminal Appeal (Vic)), 27 February 1978, unrep), a 1978 decision of the Victorian Court of Criminal Appeal, a similar provision in the Crimes Act 1958 (Vic) was the basis of criminal liability in circumstances where a teacher befriended a child at the school where he taught as part of extra-curricular activities and cleaning the science room, rather than her being a pupil in any class taught by him. I note however that the offender pleaded guilty to the offence, and there does not seem to have been any substantive debate about whether the victim was “his pupil”.
It does seem to me to be at least a triable issue that Mr Clancy qualified as “a schoolmaster or other teacher” and the plaintiff “his pupil”. In Crawford*’*s Proof in Criminal Cases, (4th Ed, 1982, Law Book Co.), this observation was made by the author at page 76:
“… The object of s. 73 of the Act is to protect young girls against offences upon them by persons in a position of authority or control over them. It would be putting too limited an “interpretation” upon the section to hold that it was limited to daughter or step-daughter born in lawful wedlock and on its true interpretation it extended to a girl born out of wedlock (R. v. Dawson (1927) 44 W.N. 49; (1927) 40 C.L.R. 206; I A.L.J. 27).”
On my understanding, the defendant has no plans to call any witnesses, lay or expert. The behaviour now referred to in the 2FASOC at par 5A(b)(i) “grooming” was already outlined in the description of abuse give to Dr Phillips in October 2023 and in the April 2024 statement of the plaintiff, as well as in broad terms in par 5 of the initial statement of claim. I do not accept that there is any substantive shift in the case made, or that the deployment of the word “grooming” to describe the conduct causes prejudice to the defendant.
The defendant’s submission regarding prejudice resulting from the Wilkinson v Downton addition is unpersuasive. It is evident that this cause of action arises out of “substantially the same facts” as those giving rise to the negligence, action and claim for relief in the original statement of claim: s 65(2) Civil Procedure Act. The dispensing with the limitation period for sexual abuse claims applies equally to a claim framed in these terms. The state of mind issue raised can be remedied by a request for particulars and response. It is not a reason to refuse leave to amend to add that potential additional basis of liability.
I accept Mr Campbell’s characterisation of the amendments as for a proper purpose – to elucidate the legal issues the plaintiff will pursue at trial. I accept that the lateness is explained, to an extent, by the position initially taken in the pleading that matters of fact, not law, are required to be pleaded (r 14.10 UCPR), but that Mr Campbell has now taken an approach to better articulate and frame those legal issues.
The High Court decision in AA in February 2026 has far-reaching implications for claims of this kind. As stated by Kirk JA (with whom Payne JA and Price AJA agreed) in St Paul*’*s College Ltd v Allan [2026] NSWCA 22:
“[9] … AA represents a fundamental shift in the liability of defendants who owe a non-delegable duty of care and whose delegates inflict harm on a claimant in circumstances within the scope of the duty. Liability in such circumstances is now, in effect, strict…”
“[4] Because the majority decision in New South Wales v Lepore that there can be no common law non-delegable duty in respect of harm caused by an intentional criminal act should be re-opened and overturned, Fr Pickin’s acts and the harm they caused AA are within the scope of the non-delegable duty.”
“[6] While there are differences between our reasoning and that of each of Gordon J and Edelman J, and we have reasoned to a different result in this case from Steward J, we are authorised by Gordon, Edelman and Steward JJ to record our agreement that a non-delegable common law duty of care requires that the duty-holder has undertaken the care, supervision or control of the person or property of another, or is so placed in relation to that person or their property as to assume a particular responsibility for their or its safety. Further, we and Gordon J and Edelman J agree that a non-delegable duty may be breached by the intentional conduct of the duty-holder or their delegate.” (Emphasis added)
It can only assist the parties and this Court, to have the current liability framework contended for by the plaintiff more explicitly set out in the pleading.
There is still over three months before resumption of the hearing on 6 October 2026. This provides adequate time for requests for particulars, a response, the filing of a further defence, and further preparation. Any prejudice to the defendant can be addressed by costs. The application to amend is granted.
I make the following orders in respect of the plaintiff’s notice of motion:
The plaintiff has leave to rely on a Second Further Amended Statement of Claim in the form of Exhibit G but removing pars 15C(c), 18 and 19(d), to be filed and served within 2 days that is, on or before Tuesday 30 June 2026.
The plaintiff is to pay the defendant’s costs of the notice of motion and the costs of, and associated with, the amendment.
I consider it useful to make a compressed timetable with respect to particulars and a defence, noting the parties have liberty to apply if this timetable is not able to be accommodated:
The defendant is to make any request for further and better particulars on or before Tuesday 7 July 2026.
The plaintiff is to reply to that request on or before Tuesday 14 July 2026.
The defendant is to file and serve its defence to the 2FASOC on or before Tuesday 21 July 2026.
**********
Jones
State of New South Wales
(2003) 212 CLR 511
[2009] HCA 27
[1938] HCA 34
[2003] HCA 4
(2009) 239 CLR 175
(1938) 60 CLR 336
(1991) 55 SASR 24
(2007) 71 NSWLR 471