Niass v State of New South Wales

Yasmar

1. The plaintiff pleaded that upon arrival at Yasmar, he was forcibly taken hold of and strip-searched, during which he was directed by a Juvenile Justice officer to spread his buttocks. The plaintiff alleges that this conduct amounted to a sexual assault.
2. As well, he claims that, at one point in time whilst standing on a brick wall, he was pushed off by the officer who had sexually assaulted him, landing on the ground and injuring his shoulder and clavicle. The plaintiff alleges that this conduct constituted a physical assault.
3. The plaintiff pleaded that he is unaware of the name of the Juvenile Justice officer who assaulted him on these two occasions.

Daruk

1. The plaintiff pleaded that at Daruk he was subjected to many different episodes of assault of differing kinds.
2. The pleading names a Mr Webster, who is described as the "Superintendent" of Daruk, as that title is used in s 4 of the Child Welfare Act 1939 ("the CW Act"). That section in substance attributes the description of superintendent to the person in charge of an institution from time to time.
3. Three other individuals are named and alleged to be perpetrators of various assaults: Mr Monger is described as a first aid instructor and youth worker; Mr Brand is described as a youth worker; and Mr Vardanega is described as an instructor and also as a senior youth worker.
4. The plaintiff pleads that, in various ways and on a number of occasions, Mr Monger behaved indecently towards him and, under the guise of purportedly carrying out a medical assessment, indecently assaulted him. The plaintiff asserts that on two occasions Mr Monger sexually assaulted him by anally raping him.
5. The plaintiff pleads that Mr Brand regularly physically beat him, caused him to be provoked by other detainees (such that when the plaintiff fought back he was physically beaten by a larger detainee), deliberately humiliated the plaintiff by forcing him to undertake certain demeaning cleaning duties, and continually intimidated him by the manner in which he spoke to the plaintiff, including verbally taunting him both individually and whilst in a group of detainees. The plaintiff alleges that Mr Brand's comments and behaviour: "…were designed to humiliate and demoralise the plaintiff so that the plaintiff would more readily become the subject of physical, psychological and sexual abuse."
6. The plaintiff also pleads that on one occasion, whilst detained in a solitary confinement cell for fighting, he was sexually assaulted by Mr Vardanega at the same time as he was assaulted by Mr Monger.
7. Finally, the plaintiff provides particulars of an incident which took place on or about 1 May 1981. The plaintiff attempted to abscond from Daruk. He was caught by a group of other detainees who had been directed to search for him, and returned to the centre and to the presence of Messrs Brand, Vardenaga and Monger. The plaintiffs alleges that he was placed in a solitary confinement cell, stripped naked, assaulted anally with a foreign object, and then anally raped a number of times by each of Messrs Brand, Vardanega and Monger.

Complaints

1. The plaintiff pleads that whilst he was detained as Yasmar, his mother: "…telephoned the office at Yasmar and complained that the plaintiff feared that one of the officers at Yasmar was paedophile."
2. It is to be observed that this pleading does not suggest that the officer identified as a possible paedophile was the officer who assaulted the plaintiff. The complaint seems to post-date the assaults upon which the plaintiff relies whilst detained at Yasmar.
3. The plaintiff pleads that whilst he was at Daruk, and after the incident described immediately above at [20], he complained to Mr Webster, the superintendent, that he had been "gang-raped" by Messrs Brand, Vardanega and Monger. The plaintiff pleaded that Mr Webster took no action in response to his complaint other than informing the plaintiff, in substance and effect, that he did not accept his complaint.

September 2020 Pleading

1. The September 2020 pleading is a lengthy and complex one in which the pleader has chosen to plead a number of different and alternative cases for the plaintiff. The pleader has elected, often, to plead these cases in a combined, or wrapped up, way.
2. The first matter to be observed is that the named defendant, the State of NSW, is being sued pursuant to s 5 of the Crown Proceedings Act, on the basis that it is the appropriately titled defendant where a person wishes to bring civil proceedings against the Crown in the right of NSW.
3. The first basis for legal liability pleaded against the Crown is said to be based upon its vicarious liability for the tortious conduct (whether by action or inaction) of the Minister for Youth and Community Services ("the Minister"), as he or she was known at all material times, and any officer or employee of the Department of Youth and Community Services appointed pursuant to s 5 of the CW Act.
4. The vicarious liability is pleaded to arise pursuant to s 8 of the Law Reform (Vicarious Liability) Act 1983, which provides as follows: "8 Further vicarious liability of the Crown (1) Notwithstanding any law to the contrary, the Crown is vicariously liable in respect of the tort committed by a person in the service of the Crown in the performance or purported performance by the person of a function (including an independent function) where the performance or purported performance of the function: (a) is in the course of the person's service with the Crown or is an incident of the person's service (whether or not it was a term of the person's appointment to the service of the Crown that the person perform the function), or (b) is directed to or is incidental to the carrying on of any business, enterprise, undertaking or activity of the Crown."
5. This section provides the essential requirements to be established by the plaintiff before the State is made vicariously liable, namely: 1. the tortfeasor is a person in the service of the Crown; 2. the tort is committed in the performance (or purported performance) of a function; 3. that function is one performed in the course of the service of the Crown or is an incident of the tortfeasor's service; 4. or, alternatively to (c), the function is performed by the tortfeasor as directed to or incidental to the carrying on of any enterprise or activity of the Crown.
6. As these are essential requirements for the proof of the vicarious liability of the Crown under this statute, each requirement relied upon needs to be pleaded and ultimately established.
7. It is also necessary to have regard to some particular provisions of the CW Act, in the form which it took at the time of the abuse pleaded, namely January to June 1981.
8. Section 5 of the CW Act is in the following form: "5(1) The Governor may, under and subject to the provisions of the Public Service Act 1902, as amended by subsequent Acts, appoint a Director of the Department of Youth and Community Services, and such other officers and employees as are necessary for the administration of this Act. (2) The Director and other officers and employees shall be subject to the provisions of the Public Service Act 1902, as amended by subsequent Acts, during their tenure of office."
9. It is to be observed from this provision that the Minister does not employ the officers and employees of the Department of Youth and Community Services ("the Department"). The specific powers of the Minister with respect to the administration of the CW Act are to be found in Part 2 of the CW Act. Those specific powers provide for the Minister: "(a) to appoint visitors to an institution constituted under the CW Act: s 6 of the CW Act; (b) to appoint honorary welfare officers and honorary lady visitors: s 7 of the CW Act; (c) by becoming the guardian of every child or young person who becomes a ward: s 9 of the CW Act; and (d) by having the care of the person of all wards, except during the period when they are inmates of an institution: s 10 of the CW Act."
10. Section 10A of the CW Act contains a power of delegation for both the Minister (s 10A(1)) and the Director of the Department (s 10A(2)). Section 10A(6) provides that where such a delegation is exercised by the Minister or Director, then any act or thing which is done is deemed to have been done by the Minister or Director, as the case may be.
11. I observe that no part of the September 2020 pleading alleges any exercise by the Minister or Director of the power of delegation under s 10A, nor is there any pleading that a specific act was, in fact, done by the recipient of any delegation and so, should be deemed to have been, done by the Minister or Director.
12. Section 52 of the CW Act provides that all children and young persons who are committed to, or else who are inmates of, an institution: "…shall be in the custody and under the control of the Superintendent of the institution."
13. Section 53 of the CW Act specifies the powers of the Minister with respect to children and young persons who are committed to, or who are inmates of, an institution. The section provides the Minister with the power to determine the institution where someone is to be kept, transfer them between institutions, remove them from an institution and grant them leave from an institution.
14. Section 50 of the CW Act provides that every institution "…shall be controlled" by the Minister, and is to be inspected very three months by an officer appointed by the Minister.
15. Section 23(1)(d) of the CW Act is relied upon in one paragraph of the September 2020 pleading. However, it is not readily apparent how that provision, which is to be found in Part V of the CW Act, is applicable. That Part of the CW Act is directed to the boarding out of children and young persons, and not to the conduct of the two institutions which are central to the claims of this plaintiff.
16. It is also important to note that the plaintiff's various causes of action do not include any allegation of the existence of a statutory duty of a kind which is said to, or which could, give rise to a claim for damages at the suit of an individual for a breach of such a duty.

Pleaded Duties of Care

1. It is necessary now to identify the duty, or duties, of care which have been pleaded, and to seek to understand what it is that the plaintiff is alleging.
2. In paragraph 23 of the September 2020 pleading, the plaintiff pleads a single duty of care in the following terms: "The duty of care owed to the plaintiff by the defendant; the Minister; and the persons appointed pursuant to s 5 of the CW Act, was a duty to exercise reasonable care for the safety of wards."
3. A pleader is required to give careful attention to the facts, matters and circumstances which are relied upon to give rise to a duty of care. The High Court of Australia considered in Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 whether the duty of care relied upon by a plaintiff existed. The Court, in a single judgment, said at [50]: "Different classes of case give rise to different problems in determining the existence and nature or scope of a duty of care. Sometimes the problems may be bound up with the harm suffered by the plaintiff, as, for example, where its direct cause is the criminal conduct of some third party. Sometimes they may arise because the defendant is the repository of a statutory power or discretion. Sometimes they may reflect the difficulty of confining the class of persons to whom a duty may be owed within reasonable limits. Sometimes they may concern the need to preserve the coherence of other legal principles, or of a statutory scheme which governs certain conduct or relationships. The relevant problem will then become the focus of attention and the judicial evaluation of the factors which tend for or against a conclusion to be arrived at as a matter of principle…" [citations omitted]
4. In PWJ1 v State NSW [2020] NSWSC 1235, following upon reference to Sullivan, I went on to note and record various relevant principles of law which provide guidance about the requirements for an appropriate pleading. I do not repeat those principles here. I note that they are of direct relevance to the facts and circumstances set out in the September 2020 pleading in this matter, and the causes of action which are said to arise.
5. Given the structure of the CW Act and the different roles, powers and functions of the Minister, the Director and the various officers and employees appointed under s 5 of the CW Act including the Superintendent, it is not open to a pleader to allege the existence of the same single duty of care owed by each of those people. Nor, given that the involvement of the Crown (which is the defendant) only arises because it is alleged to be vicariously liable pursuant to statute, can it be properly pleaded that the Crown in the right of NSW owed a duty of care to the plaintiff, which is what has occurred in paragraph 23 of the proposed pleading by including the words "… the defendant".
6. That is not to say that there may not be other facts and circumstances, or differently formulated causes of action, in which it would be permissible to plead that the Crown owed a duty to the plaintiff. However, in the September 2020 pleading, no such separate claim is made against the Crown itself - rather, it is only said to be involved as being vicariously liable pursuant to the Law Reform (Vicarious Liability) Act.
7. The commencing premise of the September 2020 pleading is the existence of a single duty of care residing in the Minister and every appointed officer or employee engaged in the work of the Department, including a Superintendent. This commencing premise cannot be regarded as being properly or adequately pleaded and is flawed. Their powers are different. Their functions are different. The circumstances through which they are concerned with the plaintiff are different. A single duty of care as identified and pleaded cannot exist in the sense that the powers and functions of the individuals identified as owing such a duty are not co-extensive.
8. There is a further difficulty with this pleading, which arises out of the suggested content of the duty which is pleaded - i.e. a duty to exercise reasonable care for all wards. This duty is unlimited in time and place. It is not limited by reference to an identified risk of harm.
9. Any duty of care relevant to the plaintiff's pleaded abuse arises out of the plaintiff's circumstances when first being admitted to Yasmar and Daruk respectively. It is not pleaded whether his committal or admission to Yasmar was pursuant to an order of the Children's Court or else occurred in some other way. It is pleaded that the plaintiff was committed by an order of the Children's Court to Daruk.
10. Any duty owed to the plaintiff could only take effect once he arrived at the institution consequent upon his committal or admission. In those circumstances, I note that the pleaded duty of care, namely "to exercise reasonable care for the safety of wards" is one expressed in very broad and general terms travelling well beyond the plaintiff as an individual. Such a duty would extend to wards under the CW Act who were placed and lived outside of institutions, were placed with foster families or in one of the many other alternative forms of care which were available under the CW Act. The nature and content of the duty pleaded, and in the circumstances in which that duty arises, do not support a single duty of care of the width and generality pleaded.
11. The risk of harm pleaded in paragraph 24 of the proposed pleading refers to "… a ward committed to Yasmar or Daruk" and is thus more specific. The plaintiff's comparatively narrower identification of the risk of harm means that the breach of duty enquiry for the Court, required by s 5B of the Civil Liability Act 2002, centres only upon what happened at Yasmar and Daruk - those institutions being the geographical context for the existence of the risk of harm against which precautions were required to be taken. The duty pleaded is far broader.

Section 5B of the Civil Liability Act

1. The proposed pleading, at least insofar as it pleads a cause of action based upon negligence, accepts that the provisions of the Civil Liability Act apply to the plaintiff's claim.
2. In PWJ1 at [75], I expressed the view, to which I adhere, that a plaintiff must plead (and then prove at trial) two relevant concepts under s 5B: that the risk of harm was foreseeable, and that the tortfeasor knew of the pleaded risk of harm at the relevant date, or else ought to have known it, by reference to other facts, matters and circumstances,.
3. Actual knowledge of the risk of harm and constructive knowledge (i.e. something which the tortfeasor ought to have known) are difference concepts. A pleader can plead either or both of these concepts. To the extent that either is relied upon, a pleader (for the purposes of a claim under the Civil Liability Act) needs to particularise either the facts, matters and circumstances upon which reliance is placed to give rise to actual knowledge, or else the facts, matters and circumstances upon which it will be asserted that the defendant ought to have been aware of the risk of harm.
4. Here, the plaintiff pleads that the defendant (the Crown) "… through the Minister and the persons appointed pursuant to s 5 of the CW Act" had both actual and constructive knowledge of the risk.
5. I have earlier drawn attention to the fact that the Crown is a part of these proceedings only because it is vicariously liable for the conduct of the Ministers and the appointed officers. In those circumstances it is not a question of what knowledge the Crown had, but rather a question of what knowledge the people who owed the duty of care to the plaintiff had of the risk of harm against which it is said precautions should have been taken.
6. That seems to be what the pleader is suggesting in paragraph 26 by use of the term "through the Minister and the persons appointed". However, the wording of that paragraph really means that the pleader is attributing the actual knowledge, and also constructive knowledge, of the risk of harm to the Crown in a way which can combine what is or ought to have been known by various people covered by the description.

Actual or Constructive Knowledge - Pleading of Facts and Circumstances

1. It seems that the plaintiff wishes to rely upon past acts of sexual abuse, both at Daruk and at other institutions, as going to the existence of actual or constructive knowledge of the risk of harm in the "defendant".
2. In paragraph 27 of the September 2020 pleading, the plaintiff names 15 separate individuals and pleads as follows: "Before the plaintiff was committed, the defendant employed or appointed (pursuant to s 5 of the CW Act) at Daruk, persons who sexually abused and assaulted inmates including …"
3. No particulars were provided with respect to these 15 named individuals as to when they engaged in abuse, nor what particular abuse was perpetrated. It is not said how knowledge of those individuals of that abuse became the knowledge, either actual or constructive, of those who owed a duty of care to the plaintiff.
4. In paragraph 29 of the September 2020 pleading, the plaintiff pleaded that at a time before the plaintiff was committed to Daruk "… the defendant (through the Minister and the persons appointed pursuant to s 5 of the CW Act, including the persons pleaded in [27] above): either had actual knowledge, or ought to have known, or "…was attributed with the actual knowledge of the perpetrators of the prior abuse …".
5. Leaving aside a formatting issue, there is then pleaded in the period from 1959 through to November 1978 a number of instances where individuals identified by pseudonym in the pleading, but whose names were provided to the defendant's solicitor, were physically or sexually abused. As well, it is pleaded that the alleged abuse (particularised as it is) was accompanied by a number of allegations of either written reports being issued or else oral reports of abuse being made to individuals in a number of cases.
6. At the conclusion of the listing of these allegations of previous abuse and previous reporting, the pleader then added seven assertions of fact that have been added for reasons which are entirely unclear.
7. Those assertions of fact are as follows: "w. At Daruk and at other institutions administered by the Minister and person appointed pursuant to s 5 of the CW Act, abuse which was contrary to the CW Act occurred with such regularity that there was an ongoing failure to reasonably safely administer the CW Act. x. The fact that there were many people who regularly sexually and physically abused inmates at Daruk meant that at Daruk there was no safe system in place to eradicate child abuse nor an appropriate reporting or monitoring system. y. Paedophiles were attracted to places where children were vulnerable and at risk of harm such as institutions including Yasmar and Daruk. z. Paedophiles operated in rings and/or groups and preyed on vulnerable children. aa. Inmates were often: vulnerable; uneducated; and, lacking in parents or adults to assist in: protecting them; or, standing up for their rights. bb. Inmates often did not trust authority figures and were unlikely to readily report abuse. cc. At Daruk, any system to fend off abuse was inadequate and not enforced. dd. As time went on, during the period 1959 to 1980, any person appointed pursuant to s 5 of the CW Act whom might abuse a child would likely have grown more confident in assuming that abuse would not be reprimanded."
8. It may be that what the pleader intends by these assertions is to suggest that these facts were well-known in the community or to persons in the position of those, it is pleaded, who owed a duty to the plaintiff. Or, perhaps the pleader intended that by reason of other circumstances which may be proved which, with those pleaded, in combination, would amount to reasons why a Court ought infer or conclude that knowledge of sexual abuse was, or else ought to have been, known. However, these assertions are not anchored in point of time nor are they anchored in any relevant fact or circumstance which could lead to any conclusion of either actual or constructive knowledge on the part of those who owed a duty to the plaintiff. Some of these assertions also appear to be pleadings of a breach of a duty of care. Those assertions in sub-paragraphs (w), (x) and (cc) are in this category.
9. The pleading of foreseeability, including the way in which these pleadings are set out, is so convoluted that it cannot be readily understood as to who is said to have had actual knowledge or else ought to have had actual knowledge of the risk of harm, nor whether previous sexual abuse to which reference has been made gives rise to constructive knowledge.
10. As well, the concept of attribution of actual knowledge is not one which is found in s 5B of the Civil Liability Act. The facts, matters and circumstances pleaded do not readily identify how the attribution can or ought to arise. Nor does the pleader identify with any specificity to whom the knowledge ought be attributed (except the Minister).

Breach of Duty

1. The September 2020 pleading incorporates allegations of breach of duty, principally in paragraph 37. That paragraph commences in the following way: "The defendant, including through the Minister and the persons appointed pursuant to s 5 of the CW Act, was negligent in failing to take precautions against the risk of harm."
2. This introduction raises the same issue with respect to the way in which the claim is formulated so far as the Crown is concerned. I have previously remarked about the inappropriateness of this.
3. The pleader then set out particulars of negligence, but in three separate respects. Firstly, it provided particulars of negligence of the "… Defendant". There is a single particular comprising the allegation that the defendant failed to appoint "… appropriate persons in order to reasonably safely administer the CW Act, including appointing Webster (who was a paedophile) as the Superintendent at Daruk".
4. This particular raises many possibilities. In the pleading of the abuse, the plaintiff has pleaded that he was abused by three named officers at Daruk, and an unidentified officer at Yasmar. Webster is not one of the people named as a perpetrator of any abuse upon the plaintiff. He is pleaded as being the person holding the position of Superintendent of Daruk at the time the plaintiff was abused. The only factual allegation pleaded against Webster, insofar as Daruk is concerned, is that after the last occasion of sexual assault which occurred on or about 1 May 1981, the plaintiff made an oral complaint to Webster who took no action.
5. That pleading cannot be relevant to a breach of duty because the last assault had already taken place. Its only relevance in the pleading is that it may go to an issue relating to damages.
6. In those circumstances, it is unclear with respect to the particular of negligence pleaded against the defendant what it is that in truth the plaintiff is saying with respect to the appointment of Webster as the Superintendent at Daruk. Insofar as the particular alleges a general failure to appoint appropriate people to safely administer the CW Act, it is not at all clear whether that allegation is limited to the individuals named as the perpetrators of the abuse against the plaintiff, including the unnamed officer at Yasmar, whether it is limited to the 15 named individuals in paragraph 27 who appear to be staff at Daruk, or else more broadly throughout all of the employees of the Department.
7. The September 2020 pleading then included 17 particulars of negligence against the Minister. The final particular "Failing to enforce a proper system to prevent abuse at Yasmar and Daruk including …" then has appended to it 17 particulars of that failure. These further 17 particulars of failure are matters which apply broadly across the operations of the Department. They address Department-wide systems which it is said should have been implemented. A number of the particulars of negligence amount to no more than a generalised statement of a breach of a duty of care, such as can be seen in particular (a) referrable to the Minister.
8. The particulars also identify failures of "… persons appointed pursuant to s 5 of the CW Act". The first particular is in the following terms: "Failing to reasonably exercise or perform the powers, authorities, duties or functions conferred or imposed on the Minister under the CW Act in accordance with any delegation by the Minister to specified persons appointed pursuant to s 5 of the CW Act."
9. It is readily apparent that, as observed at [35] above, there has been no allegation that the Minister ever exercised his power of delegation. This particular is so general and vague as to be meaningless, and an embarrassment as that term is used the Uniform Civil Procedure Rules 2005 ("UCPR"). The particular therefore cannot be permitted.
10. The particulars of negligence pleaded against "persons appointed pursuant to s 5 of the CW Act"( i.e. a group of individual staff members), do not generally specify to whom, or to which individual, or to which position, they relate. Sub-paragraphs (s) and (t), by way of example, allege a failure in 1978 (i.e. three years or so before the plaintiff was committed to Daruk) to investigate abuse against two juveniles alleged to have been perpetrated at Daruk. But these particulars are not anchored by reference to any individual staff member. Rather, they appear to treat all CW Act employees as being a single undifferentiated group with joint and several obligations to undertake their duties whatever position they were appointed to. No reference is made to their functions and powers. These particulars are embarrassing and cannot be permitted.
11. Sub-paragraph (x) pleads that an identified Superintendent "… failed to prevent and/or allowed the following kinds of punishment of inmates:". Ten particular types of "punishment" are then identified. They included allegations that isolated attention was imposed "…in circumstances which were not exceptional"; that isolated detention took place in a room which "… was not airy or properly lit and without clothing or bedding"; and that punishments were not recorded in a punishment book. These assertions generally seem to reflect some of the provisions of s 56 of the CW Act.
12. The sub-paragraph does not suffer the deficiencies earlier identified, because it identifies the particular individual whom, it is said, was in breach of duty. However, the particulars are devoid of any apparent connection to anything which is alleged to have happened to the plaintiff, and so has no obvious connection to the pleaded causes of action.
13. Finally, the plaintiff pleads against various named or otherwise identified perpetrators that their abuse of him amounted to assault and battery and also false imprisonment. It is specifically pleaded that the State is vicariously liable for this conduct of these perpetrators.
14. As noted earlier at [28] above, there are essential requirements to be pleaded and proved if the provisions of the statute giving rise to vicarious liability of the State are to be relied upon. In the September 2020 pleading, the plaintiff identified the following integers upon which he relies to establish vicarious liability: 1. the employments roles of the perpetrators "supplied the occasions for the assaults"; 2. the perpetrators took advantage of the occasions to assault the plaintiff; 3. the "special" employment roles of the perpetrators meant that they held authority, power and control over the plaintiff; 4. the employment of the perpetrators created "the relationship" between the perpetrators and the plaintiff, and the risk of the assault, battery and false imprisonment occurring; and 5. the assault, battery and false imprisonment "was connected to" the employment of the perpetrators.
15. These particulars, seemingly, but without coherence, pick up various matters discussed by the joint judgment of French CJ, Kiefel, Bell, Keane and Nettle JJ in Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134 at [80], [81] and [84].
16. The pleading of these integers hints that what is intended is the proof of vicarious liability through general law principle rather than a reliance on statute. If this is so, then it ought be made explicit because a potentially complex issue may arise from the perspective of the named defendant as to its liability.
17. The remarks in the previous paragraph become particularly acute where, as here, the pleader does not address the requirements of statutory vicarious liability, despite the assertion at the start of the pleading that the statute is the basis for the existence of vicarious liability in the defendant.

Discernment

1. The September 2020 pleading is a complex and lengthy one. On one view, there is much to support the conclusion that the pleader intends a trial which would be more akin to a commission of inquiry into the conduct of Yasmar and Daruk, the two named juvenile justice institutions. As well, the pleadings seem to call for a broad inquiry into the failure of all officers employed under s 5 of the CW Act to properly care for those children in their control for some time in 1959 and 1964, when AB (a pseudonym given to an individual by the plaintiff) is said to have been physically and sexually assaulted. The pleader also requires the defendant to investigate various incidents which had occurred in each decade preceding his admission to Yasmar and Daruk.
2. It is not the Court's role in determining this application to summarily dismiss particular causes of action. It is also not the Court's role to determine this application by forming any view about the merits of the claims being made, nor whether they are likely to be established at trial.
3. The question of whether the proposed pleading ought be permitted to be filed is determined by different criteria. In determining whether to grant leave, the Court is obliged to act in accordance with the dictates of justice: s 58 of the Civil Procedure Act 2005. Any pleading, but particularly an originating process (or any amendment thereto) must facilitate the just, quick and cheap resolution of the real issues in the proceedings. The pleading must also make the nature and content of the claims sufficiently clear to the defendant (or any other opposing party) to understand what is being alleged so that they have a fair opportunity to meet that case.
4. It would not be an appropriate exercise of the Court's discretion to permit an amendment in circumstances where, upon that pleading being filed, an opposing party could invoke the provisions of r 14.28 of the UCPR in order to strike out the pleading in whole or in part.
5. Pleadings which are ill-defined, vague and prolix, or which contain assertions which are not directly relevant to any pleaded cause of action, have a tendency to cause prejudice and embarrassment to the opposing party, and to delay the proceedings. Such a pleading cannot accord with the overriding purpose in s 56 of the Civil Procedure Act.
6. I have extensively reviewed the September 2020 pleading in this judgment, drawing attention to many of its failings. I am not satisfied that it is appropriate to grant leave to the plaintiff to file the September 2020 pleading because of all the failings and difficulties identified.
7. The proposed pleading as a whole does not comply with the legal principles set out in PWJ1, the judgment to which reference was earlier made.
8. This pleading is prolix and confusing. It is vague and embarrassing. Most significantly, for an action against the State, it entirely fails to engage with how a duty of care arises, having regard to the relevant statutory powers and functions which existed. It fails largely, and certainly explicitly, to engage with, and plead appropriately, all of the necessary elements of a cause of action based upon vicarious liability pursuant to statute.
9. The application for leave to file the September 2020 pleading is refused. If the plaintiff wishes to seek leave for any further amended pleading, then he must do so by filing a Notice of Motion at a time when a new pleading has been prepared. Any such Notice of Motion, for the purposes of the efficiency of judicial case management, is to be made returnable before me.

Orders

1. I make the following orders: 1. Application for leave to file an amended pleading in the form of the September 2020 pleading is dismissed. 2. Order the plaintiff to pay the defendant's costs of the application. 3. Stand over the proceedings for further directions to Friday 12 February 2021 at 9am before Garling J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2020