NYX v State of Queensland [2025] QSC 207

PROCEDURE - CIVIL PRODEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE - where the plaintiff's claim alleges a breach of statutory and common law duty - where the defendant applies to have the pleading struck out on the basis that the pleading does not disclose a reasonable cause of action - whether the pleading ought to be struck out without leave to replead

STATUTES - ACTS OF PARLIAMENT - ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES - BREACH OF STATUTORY DUTY - where the plaintiff claims damages for personal injury (psychiatric) from the defendant - where the plaintiff alleges she was sexually assaulted by male relatives and acquaintances - where the plaintiff alleges that the defendant is a tortfeasor - whether an alleged breach of common law duty of care and (in part) co-extensively breach of statutory duty gives rise to a claim for damages for personal injury

Uniform Civil Procedure Rules 1999 (Qld), r 171, r 293

Children's Services Act 1965 (Qld) (repealed), s 8, s 46, s49(2), s 60, s 61(2), s 65

Police Rules of 1978 (Qld) (repealed), r 10(2)(1)

XBT v State of Queensland [2025] QSC 9

GLJ v Roman Catholic Church Lismore [2023] HCA 32.

Royalene Pty Ltd v Registrar of Titles [2007] QSC 59

Williams & Humbert Limited v W & H Trade Marks [1986] 1 AC 386

Peterson v Nolan [2019] QSC 216

General Steel Industries Inc v Commissioner of Railways [1964] HCA 69; (1964) 112 CLR 125

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256

Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254

New South Wales v Lapore [2003] HCA 4; (2003) 212 CLR 511

Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540

Fuller-Wilson v State of New South Wales [2018] NSWCA 218

Smith v State of Victoria [2018] VSC 475; (2018) 56 VR 332

• [1] The plaintiff is a woman 52 years of age.[1] She claims damages for personal injury (psychiatric) from the defendant as a consequence of sexual assaults perpetrated by male relatives and acquaintances at different times. She alleges the first of these assaults occurred in late 1980 (when she was seven years old) with the last occurring in about 1988 (when she was 14 or 15 years old). In her Statement of Claim she alleges nine or so "periods" when the assaults are said to have occurred, but the particulars allege more assaults than there are periods by reason of the allegation of a pattern by some perpetrators of sustained abuse.[2]
• [2] She alleges that the State of Queensland is a tortfeasor by reason of the breach of a common law duty of care and (in part) co-extensively a breach of a statutory duty and claims substantial damages.[3]
• [3] The application before me is brought by the defendant under Rule 171 UCPR to strike out the Second Further Amended Statement of Claim (in fact all filed versions of the Statement of Claim) on the ground that it "discloses no reasonable cause of action" and for consequential summary judgment for the defendant under Rule 293 UCPR. Numerous complaints are made of the Second Further Amended Statement of Claim, some of the complaints are to the effect that parts have "a tendency to prejudice or delay the fair trial of the preceding", but the thrust of the defendant's contention is the former ground, Rule 171(1)(a) UCPR.
• [4] Because of the unusual way in which this application came before me and of the hearing, a little should be said about the "history" of the litigation.
• [5] The proceeding was commenced by filing a Claim and an accompanying Statement of Claim on 5 September 2022. Thereafter an Amended Statement of Claim and a Further Amended Statement of Claim were filed respectively on 10 November 2022 and 11 May 2023. The proceeding came before me on 18 October 2023 in Applications jurisdiction, the plaintiff seeking an order dispensing with the defendant's signature on a Request for Trial and for an order setting them down for trial (estimated 3 days). On that occasion the defendant foreshadowed an application for a permanent stay of proceedings. I made directions including that the defendant file and serve that application by 11 December 2023 and that the application be heard on 24 January 2024. I also made an order listing the proceeding for trial starting 11 March 2024 (5 days) in the event the defendant's application was unsuccessful or not pressed. Nothing happened on 24 January 2024. The application was listed for hearing but there was no appearance. No explanation was forthcoming. I now understand that the parties concluded that an application for a stay was futile in light of a decision by the High Court delivered on 1 November 2023. Unforeshadowed to myself the defendant filed an application on 5 March 2023 returnable on the first day of the trial (11 March 2023) seeking to strike out each of the four Statements of Claim filed by the plaintiff culminating in the Further Amended Statement of Claim filed 11 May 2023. As I understand it from a trial plan submitted by the parties it was the fond hope of the parties that the strike out hearing could be heard and determined in a half day hearing on Monday the first day of the trial and, depending on the outcome proceed to a trial in the four and a half days remaining.

(a) The original application for a strike out filed by the defendant on 5 March 2024;[8]

(b) An amended application for a strike out filed by the defendant on 13 March 2024;[9]

(c) An application for leave to amend the Further Amended Statement of Claim filed 11 May 2023 in terms of the Second Further Amended Statement of Claim filed by the Plaintiff on 12 March 2024.[10]

• [7] At the resumption of the hearing on day three, the 13th, Mr Charrington KC for the defendant informed me that his client did not oppose a grant of leave to file the Second Further Amended Statement of Claim, that his client was ready to proceed with the strike out application and for that purpose he sought leave to file and read the Amended Application. For her part Ms Anderson for the plaintiff did not oppose the course proposed by Mr Charrington.[11] She confirmed that the Second Further Amended Statement of Claim was the pleading that she proposed to rely on at trial, that she knew of no circumstances warranting any amendment and there were no material facts or circumstances unpleaded of which she was aware.[12]

• [8] In written and oral submissions Mr Charrington KC accepted that:

"5. The court's discretion to strike out pleadings should only be exercised in clear cases.[13] . Such a step is not undertaken lightly.[14] In order for the application to succeed, it must be demonstrated that the action is so obviously untenable that it could not possibly succeed."

And referred me to the judgment of Martin J Peterson v Nolan[15] where his Honour said:

"[7] The volumes of reports are replete with cautions against using the power to strike out. The guiding principles are:

(a) The discretion should only be exercised in clear cases.

(b) An order will only be made in a plain and obvious case.

(c) The case must be so clearly untenable that it cannot possibly succeed.

(d) Rule 171(1)(a) permits a pleading to be struck out if it "discloses no reasonable cause of action". What is a "reasonable cause of action" can be understood only by reference to the state of law as it exists now, and not at some indeterminable future time when it may have evolved in ways beyond present recognition.

[9] On applications of this nature, the facts as pleaded are not contested, but the court may receive evidence under r 171(3) of the UCPR."

These statements are uncontroversial and echo the oft cited "General Steel" test.[16]

• [9] Concerning the facts asserted in the pleading in question Mr Charrington KC in his outline[17] said:

"For the purposes of this application only the facts pleaded in the [Statement of Claim] are not contested. ... [T]he Court is required to determine the defendant's application to strike out the latest iteration of the Statement of Claim by reference to assumed facts as pleaded in that pleading."

With those cautionary statements of principle in mind I turn to the Second Further Amended Statement of Claim.[18]

• [10] The Statement of Claim commences with some preliminary details concerning the plaintiff and her family:

(a) Is a woman born on XX 1973;

(b) Was primarily cared for in her youth by her father, NCJ,

(c) Had brothers named:

1. NCG;
2. NJT; and
3. NPW.

(d) Was living visiting with her father and brothers in Brisbane in or about 1980 when she was about 7 years of age sharing at a home with the 'anonymised' family at ABC Redcliffe; and

(e) Was abandoned by her mother at a young age."

• [11] At about 10:30 pm on 29 September 1980 the plaintiff's father was shot and killed. Police declared a crime scene and commenced an investigation:

(a) The Plaintiff's father died at around 10:30 pm as a result of a neighbour, WKD, shooting him in the head and or neck;

(b) WAB, whilst in the 'anonymised' family home, was shot and wounded in the torso by WKD;

(c) An investigation into the shootings conducted by agents or servants of the Defendant in the Queensland Police Service was commenced ("the investigation") by Its servants of agents Police Officers:

(i) Michael James O'Brien, CIB Redcliffe, the arresting officer;

(ii) David Mervyn Hazelwood, Detective Senior Constable;

(iii) John Charles Smith, Detective Senior Constable;

(iv) Kerry William Neylon, Constable First Class,

(v) Rapp, Detective;

(vi) Keillor, Constable; and

(vii) James Douglas Bindon, Constable;

(viii) as well additional unidentified general duties officers stated to be in attendance by the statement of NKA and the QP9 (collectively, the "Police officers")

(d) During the course of the investigation:

(i) Police officers took a statement from BDE;

(ii) BDE told Police officers she was the de facto spouse of NCJ;

(iii) BDE told Police officers she was 16 years of age;

(iv) BDE told Police officers she had travelled from Townsville three weeks earlier with NCJ and his three children, one of who was the Plaintiff;

(iva) BDE told the Police officers that immediately before NCJ was killed, they had planned to leave the 'anonymised's home that night by hitchhiking to Maryborough;

(v) Consistently with their duty pursuant to s 46 of the Children's Services Act and as pleaded at paragraph 3(d) herein, arrangements were made by Police officers that night to ensure the welfare of WKD's children because neither of their parents were available to care for them;

(vi) no such arrangements were made for the welfare of the Plaintiff and her siblings that night or thereafter;

(vii) the 'anonymised's home where the Plaintiff was temporarily residing, was a crime scene by virtue of:

1. the bullet that wounded WAB also hit the wall of the 'anonymised's house; and
2. WAB being shot whilst on the veranda of the 'anonymised's house.

(viii) in the premises of (vii) above, by s 4 of the Police Manual, Police Officers were required to identify and assess the status and welfare of all people, including the children, present at the crime scene."

• [12] Matters concerning the police service, legislation and other rules and guidelines concerning police and their investigations are pleaded are also facts concerning the circumstances of the plaintiff known to the police:

(a) took no steps to investigate the living arrangements for and or personal circumstances of the Plaintiff or to provide for her welfare a home for her upon the death of her father; and

(aa) operated the Queensland Police Service ("QPS");

(ba) employed the Police officers who undertook the investigation;

(ca) made arrangements to ensure the welfare of WKD's children by its servants or agents, the Police officers;

(da) Operated the Department of Children's Services ("the Department");

(db) Promulgated the Manual of Policies and Procedures ("MOPP") 1983 for use by employees of the Department.

(de) employed a Director of the Department of Children's Services ("the Director");

(b) is the appropriate party, by virtue of section 8(a) of the Crown Proceeding Act 1980 (Qld) and this claim is brought by the Defendant under such act;

(c) as at 29 September 1980 employed the Police Officers who:

(i) were subject to the Police Act 1937 ("the Police Act"); and

(ii) by s 11 of the Police Act, were bound to comply with the Police Rules;

(iii) by Rule 10(2)(1) of the Police Rules were subject to and were to comply with the Police Rules and the general Instructions;

(iv) were subject to the Policeman's Manual because it formed part of the general Instructions;

(d) promulgated the Policeman's Manual by which the Police Officers were required:

(i) by s 9.153 to make themselves familiar with the Children's Services Act 1965 and the Children's Services Regulations particularly in relation to those provisions conferring specific powers upon them;

(ii) by s 9.153 to make all necessary inquiries in pursuance of their duties under the Children's Services Act; and

(iii) by s 9.157 to bear in mind the various circumstances, set out in s 46 of the Children's Services Act, which may warrant the admission of a child to the care and protection of the Director.

(iv) By s 9.498 where a child is taken into custody for care and protection or care and control under s 49(2) of the Children's Services Act the Police taking such child into custody shall forthwith notify the Director in such instances the nearest Department of Children's Services area officer should be advised - and no deviation from this section is allowed.

(e) Knew by the Police officers, because of the investigation that:

• [13] Paragraphs 4 and 4A plead that the police ought to have known or suspected that the plaintiff was a child in need of care and protection:

"4. In the premises of the matters pleaded at paragraphs 1, 2, and 3 above the defendant, by its servants or agents, knew or ought to have known that the plaintiff was a child in need of care and protection from on or about 29 September 1980.

4A. In the alternative to 4 above, the Police Officers, on behalf of the Defendant, ought to have suspected on reasonable grounds that the Plaintiff was in need of care and protection on or about 29 September 1980."

• [14] Paragraph 5 pleads the terms of a duty owed by the defendant to the plaintiff:

"5. The Defendant owed the Plaintiff a duty to take reasonable steps in the circumstances pleaded at 1, 2 and 3 herein to take reasonable steps to protect her from harm, including the harm of a psychiatric injury as a result of sexual assault, whilst she was a child in need of care and protection which steps were:

(a) for the Police officers to make all necessary inquiries in pursuance of their duties under the Children's Services Act as required by s 9.153 the Police Manual;

(b) for the Police officers to assess the circumstances and living arrangements of the Plaintiff and the circumstances of the Plaintiff's then current environment in consideration of s 46 of the Children's Services Act which were the matters pleaded at 1 and 2 above;

(c) following the assessment pleaded at 5(b) above:

(i) taking the Plaintiff into temporary custody on behalf of the Director pending an application pursuant to s 49(2) of the Children's Services Act;

(ii) forthwith making a notification to the Director of the Department of having taken the Plaintiff into custody pursuant to s 49(2)(a) of the Children's Services Act; and

(iii) as soon as practicable after such taking apply to a Children's Court for an order that the Plaintiff be admitted to the care and protection of the Director pursuant to s 49(2)(b) of the Children's Services Act."

• [15] The circumstances whereby it is alleged that a risk of harm from psychiatric injury was foreseeable are pleaded:

"6. The Defendant knew, or ought reasonably to have known, that there existed a foreseeable risk of harm to the Plaintiff of psychiatric injury whilst she was a child in need of care and protection because:

(a) Neither of her parents was available to look after her, and;

(b) No assessment was made of the risks to the Plaintiff in her living conditions and had such assessment been undertaken the following would have been revealed:

(i) On 17 June 1971 Inspector of Police, Maryborough District, Notified the Director that the mother of the Plaintiff handed her brother, BCJ (the Plaintiff's brother) to her brother, BHA, and his de facto, LBA, to look after temporarily and that he had undertaken some investigations;

(ii) On our about 20 July 1972, BCJ was in the care of OKR in Townsville and that the Plaintiff's mother had returned to her home in Maryborough "sometime earlier" without him;

(iii) was known to the Department to be an alcoholic; and

(iv) the mother of the Plaintiff was not able to care for the Plaintiff;

(v) in or about 1979 the mother of the Plaintiff had given another child, BNA, into the care of the Defendant because she was unable to care for him;

(vi) the Plaintiff was not able to stay at the 'anonymised' home because her family was there temporarily and were not welcome to stay;

(vii) on 29 September 1980:

1. there were thirteen children under 12 staying at the 'anonymised' home;

2. from at least 11:30 am the men resident at the 'anonymised' home had been drinking heavily at various locations;

   1. the Plaintiff was left with the other children in the 'anonymised' house from at least 7:00 pm in the care of intoxicated men;

   2. the Plaintiff was left with the other children in the 'anonymised' house from at least 7:00 pm in the care of intoxicated men;

   3. the Plaintiff was left with the other children in the 'anonymised' house from at least 7:00 pm in the care of intoxicated men;

   4. the Plaintiff was left with the other children in the 'anonymised' house from at least 7:00 pm in the care of intoxicated men;

(viii) there was no relative available in the Brisbane area to care for the Plaintiff;

(ix) the Plaintiff's Paternal Grandmother NKA ("Grandmother") was in Townsville and:

In the premises of the matters pleaded in paragraph 6 herein the Defendant ought reasonably to have known, that there existed a foreseeable risk of harm to the Plaintiff of psychiatric injury whilst she was a child in need of care and protection and in particular: the facts that she would have been sleeping in the open with many other people at her Grandmother's house; there would be no person to supervise her; sexual abuse had occurred in the household with no person intervening to prevent it; the adults in the household regularly drank heavily; she was a vulnerable child with no parents to look after her."

• [16] The matters or circumstances whereby it is alleged the duty of care arose are pleaded:

(a) It's knowledge of the Plaintiff's circumstances as pleaded above which gave rise to a particular vulnerability of the Plaintiff;

(b) The Plaintiff's inability to fend for herself because she was a child; and

(c) It's duty pursuant to the Children's Services Act 1965 Qld."

• [17] Thereafter the pleading details the sexual abuse suffered by the plaintiff starting in or around 1980 when she was seven years old until in or around 1988 when she was 14 or 15. The particulars are detailed and include numerous allegations of rape or attempted rape.[19]
• [18] Hitherto the allegations of facts and circumstances whereby a duty of care was owed concerned or arose out of the actions or omissions of police officers. But hereafter the focus shifts to include the acts or omissions of persons employed by the State under the Children's Services Act 1965 - 1980:

"9. On 4 August 1987 an order was made by the Children's Court Queensland that the Plaintiff be was placed committed into the 'Care and Control of the Director', Department of Family and Youth Children's Services.

9A. Section 60 of the Children's Services Act provided:

1. Child in need of care and control. For the purposes of this Act a child shall be deemed to be in need of care and control if -
   1. He is falling or is likely to fall into a life of vice or crime or addiction to drugs;
   2. He is exposed to moral danger;
   3. He is exposed to moral danger he is or appears to be uncontrollable.

9B. The Plaintiff came to the attending of the Townsville Juvenile Aid Bureau on 9 February 1987 because she was cautioned for an offence of aggravated assault on a student at her high school between that date and 2 May 1987 it was agreed between by PC Constable, Leigh Diane Lennane and the Plaintiff's Aunty NTH to make an application for Care and Control of the Plaintiff based on behaviour.

9C. On or about 2 May 1987 PC Constable, Leigh Diane Lennane:

1. made arrangements for the Plaintiff to be lodged at the Cleveland Youth Centre; and
2. took the Plaintiff into custody pursuant to s 61(2) of the Children's Services Act.

9D. The Application for Care and Control was made by PC Constable, Leigh Diane Lennane on the basis that:

1. The Plaintiff frequently ran away from home on the nights she was supposed to be home;
2. The Plaintiff would be out all night;
3. The Plaintiff had stated that she intended to steal a car to get out of town; and
4. Her Aunty NTH felt she would only run away again if not in custody;
5. She considered that the Plaintiff was a child in need of care and control and that she appeared uncontrollable;
6. The Plaintiff's father was deceased and her mother resided in Brisbane and had not seen the Plaintiff for two years;
7. The Plaintiff had been in the care of NTH since the Plaintiff was about 8 years old.

9E. On or about 16 June 1987 the Plaintiff, whilst being lodged at the Cleveland Youth Centre, reported to the Department and told Detectives that she had been subjected to sexual abuse by her uncle, BAL, who was her NTH's husband whilst living with Aunty NTH and Uncle BAL."

"9F. By s 65 of the Children's Services Act the Director had a duty to the Plaintiff to utilise his powers and the resources of the Department so as to further the best interests of the Plaintiff ("the statutory duty").

9G. By D.A.6.10 of the MOPP child care officers employed by the Department were required to retain case responsibility for the Plaintiff during the placement and after the discharge from the Cleveland Youth Centre including the following steps pursuant to D.A.6.13:

1. Notify the branch office of the pending discharge;
2. Perform a case review 7 to 10 days before discharge;
3. Finalise post placement arrangements;
4. Discharge report completed referring Child Care Officer who retains case responsibility upon placement termination or;
5. In the alternative to d. above, case responsibility referred to the appropriate branch office if she did not return to her previous address and transfer report required to be completed by child care officer.

9H. The scope of the statutory duty extended to requiring that during the period of an order such as the Care and Control Order:

1. the Plaintiff was not placed in circumstances where it was reasonably foreseeable that the child would be so poorly supervised that the child would be running away from home or living in circumstances which gave rise to a foreseeable risk of harm; and
2. in the alternative to the previous sub-paragraph, such steps be taken as were reasonably necessary to ensure that the child was not placed in such circumstances.

(a) section 65 of the Children's Services Act;

(b) the Care and Control Order;

(c) the circumstances in which the Plaintiff was living which gave rise to the decision made by PC Constable, Leigh Diane Lennane to make an application for the Care and Control Order;

(d) the Director's accepting the Plaintiff into his care and control pursuant to the Care and Control Order;

(e) there was imposed by law:

(f) on each of the Director and the defendant a duty owed to the plaintiff co-extensive with the statutory duty (common law duty); and

(g) on each employee (whether of the Director, the Department or the defendant) charged with supervising a child in care pursuant to an order such as the Care and Control Order a duty co-extensive with the common law duty (Employee's Duty)."

• [20] Breaches of the duties of care are alleged:

"11. The Defendant was negligent and in breach of the duties duty pleaded above because by its servants or agents it:

(a) Failed to consider during the course of the investigation that the Plaintiff was in need of care and protection upon the death of her father which consideration would have resulted in her being placed in a home free from sexual abuse;

(b) Failed to provide adequate or any support services after the death of her father which were required by the Police Officers by operation of the Children's Services Act;

(c) In the alternative, it failed to consider whether the Plaintiff was in need of care and protection upon the death of her father which by the Police Officers' consideration would have resulted in an assessment of her requirements resulting in her being placed in a home free from sexual assaults; and

(ca) failed to take the steps set out in paragraphs 5(a) to (c) herein, which steps would have facilitated the involvement of the Department in the assessment, welfare, care, and protection of the Plaintiff which likely would have avoided the sexual assaults pleaded herein by providing the Plaintiff with care and protection;

(d) Failed between the death of her father on 29 September 1980 and in or around July 1987 to inquire as to her health and safety and if inquiries had been made the Defendant would have known that:

(i) Her grandmother was elderly and could not properly care for her;

(ii) Her grandmother had other children to care for,

(iii) NAR was a man quick to anger and aggression; and

(iv) Many of the relatives with whom the Plaintiff associated or lived with drank to excess including LOU and NDA;

(v) the matters pleaded at paragraph 6 above.

And so obtaining that knowledge would have placed her under care and protection so that she could be placed in a safe home free from sexual assault;

(e) Failed in or about July 1987 when the Plaintiff was placed into the 'Care and Control of the Director', Department of Family and Youth Services to have any or any adequate strategies in place in ensure she had a safe place to live;

(f) Failed after in or about July 1987 when the Plaintiff was placed into the 'Care and Control of the Director', Department of Family and Youth Services to send officers to visit the Plaintiff to enquire as to her health and safety which would have identified her need for safe housing;

(g) Failed to comply with its obligations pursuant to s 58 of the Children's Services Act at any time on or after 29 September 1980 by acting in her best interests to place her in safe housing.

(h) Failed to comply with the policy obligations set out in the MOPP 1983 at section D.A.6 which required the child care officer to help prepare the Plaintiff for discharge from Cleveland Youth Centre and her placement post discharge."

• [21] Causation of damage consequent upon breach of the duties is pleaded:

"11A.But for the negligence/breaches of duty pleaded at paragraph 11(a) - (d) and (g) herein, the Plaintiff would not have been sexually assaulted because she would have been placed in housing chosen by the Defendant as a safe location for her.

11B. But for the negligence/breaches of duty pleaded at paragraphs 11(e) and (f) herein the Plaintiff would not have suffered the sexual assaults pleaded at paragraphs 8 (y) to 8(bb).

1. As a result of the sexual assaults, which were caused or contributed to by the negligence and or breaches of duty of the Defendant pleaded herein, the Plaintiff has been diagnosed as suffering psychiatric injuries, namely complex Post-Traumatic Stress Disorder."

• [22] The balance of the Statement of Claim is devoted to pleadings relating to damages and its assessment.

• [23] In submissions both Counsel made reference to statutory provisions found in the Police Act 1937 and the Police Rules of 1978 and the Childrens Services Act 1965 in support of or in rebuttal of the contended duties. The emphasis was upon the "now abandoned" asserted breach of statutory duty but a cause of action for a breach of a common law duty of care remained in issue. Mr Charrington KC reminded me that courts have been disinclined to impose a duty upon a person when the harm to the plaintiff is caused by the criminal acts of another.[20] He submitted that a duty would not be imposed upon a person exercising discretionary power if the duty may be inconsistent with that statutory power.[21] For the plaintiff Ms Anderson maintained that the statutory provision establish both a duty of care and a statutory duty. Further she submitted that in light of the issues raised, relying on the facts and circumstances pleaded, in combination with the legislation the claim should go to trial, this being a case when the summary determination was inappropriate.[22]

• [24] On 7 February 2025 Sullivan J published his reasons in XBT v State of Queensland [2025] QSC 9. Without seeking the leave of the Court on 13 February 2025 the solicitors for the defendant emailed my Associate a copy of the reasons and further written Submissions.[23] On 14 February 2025 I caused an email to be sent to the legal representatives inquiring if the parties intended to make further submissions and proposing that if so, they be in writing and submitted within 14 days. On 20 February 2025 the solicitors for the plaintiff emailed confirming they intended to make further submissions and to file them within 14 days.
• [25] But once again matters did not proceed as I anticipated. On 6 March 2025 the solicitors for the plaintiff sent an email to my Associate attaching:

(a) Plaintiff's Further Submissions in Reply;

(b) Plaintiff's proposed Third Further Amended Statement of Claim;

(c) An application seeking leave to amend the plaintiff's pleadings in terms of the proposed Third Further Amended Statement of Claim and to dismiss the defendant's application filed 13 March 2024.

Without reference to me the proposed Third Further Amended Statement of Claim was filed on 21 March 2025[24] as was the foreshadowed application which was given a return date of 14 April 2025.[25] How it came to be that the Third Further Amended Statement of Claim and the application were filed is not immediately apparent. Suffice it to say this happened notwithstanding a strongly argued objection in an email on 7 March 2025.

• [26] Notwithstanding by the return of the plaintiff's application on 14 April the parties relied upon written submissions:

(a) Plaintiff's submission 5 March 2025[26]

(b) Plaintiff's submission 9 April 2025[27]

(c) Defendant's submission 10 April 2025[28]

• [27] The matters in issue in XBT v State of Queensland have a close resemblance to the issues in this proceeding.[29] In the Statement of Claim in issue the plaintiff alleged a cause of action of breach of statutory duty and a duty at common law. Following comprehensive reasons his Honour struck out the pleading alleging a breach of statutory duty refusing leave to replead that cause of action.[30] For the reasons given concerning the cause of action formulated upon a duty of care in negligence[31] his Honour struck out the pleading of common law duty of care but gave leave to replead a Statement of Claim insofar as the set up a common law duty of care.
• [28] The judgment and reasons in XBT v State of Queensland provoked a change of focus in the part of the plaintiff's legal representatives. At the hearing on 14 April Ms Anderson, on behalf of the plaintiff, once and for all abandoned any claim for a statutory duty of care.[32] In conformity with the application filed on 31 March 2025 she submitted that leave to replead in terms of the proposed Third Amended Statement of Claim be granted and that the application filed 13 March 2024 be dismissed. Mr Charrington KC opposed that course. He submitted that the application to replead by the Third Further Amended Statement of Claim be adjourned and that the application concerning the Second Further Amended Statement of Claim be decided so far as it concerned the disputed common law duty of care, the breach of statutory duty having been abandoned.
• [29] The proposed Third Amended Statement of Claim is not an elegant and seamless document. Rather it is the byproduct of the Second Amended Statement of Claim which extensively referred to statutory provisions in support of the then asserted statutory duty; a cause of action the plaintiff accepts is not, as a matter of law, maintainable following XPT v State of Queensland. In support of the asserted common law duty of care the pleader has in several places simply struck out any reference to a statutory duty and inserted "common law duty" (see for example paragraphs 5, 7 and 9I). But extensive references to statutory provisions remain (for example paragraphs 5, 3(d) and 9F). In justification for the reference to statutory provisions the plaintiff submits that the "duties pursuant to the inform the defendant's common law duty" (see paragraph 7(c)). The result is that the proposed Third Amended Statement of Claim contains more than a suggestion of a breach of statutory duty (see paragraphs 7(c), 9(f) and 11(g)) with the net result that where paragraph 12 alleges "negligence and or breach of duty" it in substance maintains a claim for breach of statutory duty.

• [35] Should it be that a party seeks to contend for a different order concerning costs I further order:

(a) The parties have liberty to apply for a different order for costs on four days notice with submissions to be in writing limited to not more than two pages.

[1] She is Indigenous but that fact is not pleaded and it was not submitted that it assumes any particular significance in the context of this case.

[2] See Second Further Amended Statement of Claim filed by leave 14 March 2024 at [8], pgs 8-15.

[3] See Second Further Amended Statement of Claim at [12]-[14].

[4] See the application and the orders, Court File Index 13 and 16.

[5] GLJ v Roman Catholic Church Lismore (2023) 97 ALJR 857, [2023] HCA 32.

[7] There can be no doubt of the party's serious intention to contest the application for a strike out at length in light of the comprehensive written submissions Counsel provided.

[13] See Royalene Pty Ltd v Registrar of Titles [2007] QSC 59 at [6] per Mackenzie J.

[14] See Williams & Humbert Limited v W & H Trade Marks [1986] 1 AC 386 at 435 to 436 per Lord Templeman.

[15] [2019] QSC 216.

[16] General Steel Industries Inc v Commissioner of Railways [1964] HCA 69; (1964) 112 CLR 125 per Barwick CJ at 128-129. See also Dey v Victorian Railways Commissioners (1949) 78 CLR 62.

[18] In what follows in the body of my reasons referred to as "the Statement of Claim". In footnotes the abbreviation "2nd FAS of C" will be used.

[19] The particulars are set out in a little over six pages. They are not repeated here.

[20] Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256, Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254, New South Wales v Lapore [2003] HCA 4; (2003) 212 CLR 511.

[21] Sullivan v Moody (2001) 207 CL 562 at [42] & [55]-[62]; Stuart v Kirkland-Veenstra [2009] HCA 15; (2009) 237 CLR 215 at [111]- [114] & [118]; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [146]- [147] & [149]-[150].

[22] Fuller-Wilson v State of New South Wales [2018] NSWCA 218 and Smith v State of Victoria [2018] VSC 475; (2018) 56 VR 332.

[29] See XBT v State of Queensland [2025] QSC 9 at [22]- [36].

[30] See XBT v State of Queensland [2025] QSC 9 at [42]- [59].

[31] See XBT v State of Queensland [2025] QSC 9 at [60]- [65].

[33] XPT v State of Queensland at [130].

[36] See paragraphs 12, 13 & 14 of the pleading.

[37] See paragraph 6, 9 ff and paragraphs 12, 13 & 14.

[38] XPT v State of Queensland [2025] QSC 9 at [130].

[39] See Stuart & Anor v Kirkland-Veenstra & Anor [2009] HCA 15; (2009) 237 CLR 215 at 256, [120], and the judgments referred to by their Honours.