Patronis v State of New South Wales

Supreme Court of NSW|2018-04-26|Before: McCallum J, Walton J

Judgment

HER HONOUR: On 24 May 2009 Dennis Patronis, then aged 17, was arrested for alleged traffic offences (Dennis is referred to by his first name in the pleading and I will adopt the same approach). While Dennis was under arrest and in the course of a dispute with police as to whether he was required to hand over the key to his motorbike, he was wrestled to the ground, subdued with the use of a taser and allegedly assaulted. In December 2014, Dennis commenced these proceedings against the State of New South Wales seeking damages for negligence, assault and false imprisonment arising out of those events.

Circumstances in which the proceedings are brought

The application was argued by reference to the third amended statement of claim, which was filed on 1 December 2017 over the objection of the defendant. The following is a summary of the allegations pleaded in that document. Those allegations remain untested; what follows is intended as a summary of the case evidently sought to be put at trial.
Dennis's licence was due to be suspended from midnight on 24 May 2009. On the afternoon of that day, he set out for a last ride before the suspension came into effect. He rode past a random breath testing station being conducted by officers Cragg and Kerr. Police allege he was speeding as he approached them and that he rode past them after being directed to stop. Dennis denied speeding and denied seeing a direction to stop. Upon being pursued by a police vehicle he pulled over. He was directed to sit on a brick wall where he was handcuffed.
Over a period of about an hour, Officers Cragg and Kerr completed paperwork at the conclusion of which they issued Dennis with Court Attendance Notices and a Licence Suspension Notice. At times during that process Dennis was variously upset or agitated and swore at police. By the time the Court Attendance Notices were issued, two additional police officers, Ward and Horwood (alternatively spelled Harwood), had arrived in a separate vehicle. A caged police vehicle had also arrived.
At some point the handcuffs were removed to allow Dennis to sign the Licence Suspension Notice. Dennis then removed the keys from the motorcycle ignition. He was then approached by Kerr and a conversation occurred to the following effect: "Kerr: "Mate, give me the key to the bike" Dennis: "No. It's my bike. You're not having it." Kerr: "I want the key to the bike". Dennis: "No you're not having it". Kerr: "Give me key", Dennis: "No.""
Dennis refused to hand over the keys and Kerr was unsuccessful in taking them by force. Kerr and Cragg then wrestled Dennis to the ground and Horwood tasered Dennis twice in the upper back between the shoulder blades. One of the officers holding Dennis to the ground grabbed his left arm and forced it behind Dennis's back, up around his head. Dennis alleged he was also "kneed" and punched in the head by "one or more officers".
During this time, Dennis vomited several times, was in distress, felt nauseous and dizzy and began hyperventilating. It is alleged he also suffered bruising to the head and pain in his chest.
Dennis was conveyed by police vehicle to Campsie Police Station and later to Burwood Police Station. After being conveyed to Burwood Police Station, he was assessed by ambulance officers who determined that he needed immediate medical attention. He was conveyed to Canterbury Hospital and later released into the care of his mother at 6:30pm.
The case pleaded is that Dennis was detained by police from 3.10pm until about 6.30pm (par 5 of the third amended statement of claim). The claim in negligence is founded on the contention that, upon detaining Dennis at the side of the road, police exercised direct control over and assumed responsibility for his safety (par 6); that so long as he was in their custody they owed him a duty of care (par 27) and that they breached that duty by the zealous and over-use of force (par 28). While there is some force in the defendant's criticism of the form of the pleading, it is tolerably clear from pars 28 to 30 that the alleged breach of duty focusses on the allegations concerning the use of the taser and other force immediately following the confrontation concerning the key.
The claim in assault is based on the same conduct, alleging that police assaulted Dennis at about 4pm (obviously a reference to the point when the confrontation over the key occurred) by shooting him twice with the taser, pegging him to the ground and forcing his arm behind his back and up around his head, kneeing him and punching him in the head (par 31). The claim in false imprisonment alleges that, once police had issued Dennis with Field Court Attendance Notices (at around 4pm), it was unnecessary further to detain him and that he was thereafter wrongfully detained for a period of two hours between about 4pm and 6pm (pars 36, 37 and 43).

Grounds for the defendant's application

As already noted, the defendant's application invokes r 13.4 and alternatively r 14.28 of the UCPR. Rule 13.4 provides that proceedings may be summarily dismissed where they are frivolous or vexatious, where no reasonable cause of action is disclosed or where the proceedings are an abuse of the process of the Court. Rule 14.28 provides that pleadings may be struck out if they disclose no reasonable cause of action, have a tendency to cause prejudice, embarrassment or delay or are an abuse of process.
The State's application was put on two grounds. First, it was contended that the pleading discloses no reasonable cause of action. In oral submissions Mr Hutchings, who appears for the State, confirmed that the focus of that ground is the claim in negligence and that the State does not otherwise submit that the claim is untenable. Secondly, the State contends that the form of the pleading is deficient and is liable to be struck out for that reason. Acknowledging that the State is required to act as a model litigant, Mr Hutchings indicated that leave to re-plead would not be opposed.

Is a reasonable cause of action in negligence disclosed?

Central to the claim in negligence is the contention that, at the time of the confrontation regarding the key, Dennis had been arrested by police and was in their custody. As already noted, par 5 of the pleading alleges that the period of detention was from about 3.10pm (when Dennis was directed to sit on the wall and was handcuffed) until about 6.30pm (when he was released from hospital into his mother's care).
The claim is founded on the so-called "gaoler's duty" established by the decision of the High Court in Howard v Jarvis (1958) 98 CLR 177; [1958] HCA 19. Mr Jarvis had died in a fire while being held overnight in a cell at a police station. A claim in negligence brought by his widow against the police officer who had arrested him and left him unattended in the cell was allowed.
The High Court said (at 138): "We feel no doubt that the learned judges of the Supreme Court of Tasmania were right in holding that Howard was subject at common law to a duty to exercise reasonable care for the safety of Jarvis during his detention in custody. He had deprived Jarvis of his personal liberty, and assumed control of his person. In arresting and detaining Jarvis he was no doubt acting lawfully and properly and in the due execution of his duty, but he was depriving Jarvis of his liberty, and he was assuming control for the time being of his person, and it necessarily followed, in our opinion, that he came under a duty to exercise reasonable care for the safety of his person during the detention. If authority be needed for this proposition, ample authority is found in the cases cited by the learned Chief Justice of Tasmania."
The claim in negligence in the present case is framed in terms reflecting that decision.
The defendants' attack on the claim in negligence made two inter-related complaints. First, it was submitted that the plaintiff's reliance on the "gaoler's duty" recognised in Howard v Jarvis is misconceived. Separately, the submissions addressed the alleged inadequacy of the pleading of a claim on that basis. Mr Hutchings, who appears for the defendant, submitted that the pleading fails to identify the scope or content of the duty allegedly owed, which makes it impossible for a court to determine whether the duty was owed, whether there was a breach of that duty (by reference to the scope or content of the duty) and whether the breach was causative of any harm.
As frankly acknowledged by Mr Thompson, who appears for the plaintiff, the pleading could be more elegant. However, I am not persuaded that it fails to disclose a reasonable cause of action in negligence. The central allegation is that, upon detaining Dennis at the side of the road, police exercised direct control over Dennis and so assumed responsibility for his safety, so as to give rise to a duty of care of the kind recognised in Howard v Jarvis.
The defendant contends that a common, central element in the authorities holding the existence of such a duty is the fact that the detained person was in "controlled custody" such as being held in a cell. It was submitted that such a duty could not arise in the very different circumstances of Dennis's detention at the side of the road.
Mr Hutchings submitted that, in seeking to extend the gaoler's duty to detention of that kind, the claim seeks to skirt the effect of the principles stated in Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59. The decision in that case concerned a claim in negligence brought against a medical practitioner, Dr Moody, after she formed the opinion that a girl she had examined had been sexually assaulted by the girl's father, Mr Sullivan. The High Court unanimously rejected the existence of a duty of care owed by Dr Moody to Mr Sullivan. The Court held that it would be inconsistent with the proper and effective discharge of the professional and statutory responsibilities of those involved in investigating and reporting upon allegations of sexual abuse for them to be subject to a legal duty to take care to protect persons suspected of being the sources of the harm.
In reaching that conclusion, the Court had regard to other cases in which a common law duty of care has been alleged in circumstances where the duty would not be compatible with other duties owed by the alleged tortfeasor, including the decision of the House of Lords in Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238; [1989] AC 53. The Court in Sullivan v Moody said at [57]: "In Hill v Chief Constable of West Yorkshire, the House of Lords held that police officers did not owe a duty to individual members of the public who might suffer injury through their careless failure to apprehend a dangerous criminal. Lord Keith of Kinkel pointed out that the conduct of a police investigation involves a variety of decisions on matters of policy and discretion, including decisions as to priorities in the deployment of resources. To subject those decisions to a common law duty of care, and to the kind of judicial scrutiny involved in an action in tort, was inappropriate." (footnotes omitted)
On the strength of those authorities, Mr Hutchings' overarching submission was that, if the recognition of a duty will produce incoherence in the law such that a person obliged to perform a statutory task is inhibited by fear of civil liability from performing that task, the Court will not recognise that duty. So much may be accepted. The critical question is whether the present claim is unarguably precluded by that principle.
It may be accepted that courts have rejected the existence of a duty of care owed by police in a number of cases. In addition to Hill v Chief Constable of West Yorkshire, Mr Hutchings relied on the decisions in Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35, Cran v NSW (2004) 62 NSWLR 95; [2004] NSWCA 92, New South Wales v Klein [2006] NSWCA 295 and New South Wales v Tyszyk [2008] NSWCA 107.
The burden of the submission was that there is no reason to regard the present case as "an exception to the proposition that no duty was owed or is owed by a police officer in the execution of ordinary tasks of duty". In my respectful opinion, the submission overstates the effect of the relevant principle. As recently recognised by the House of Lords in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 (at [55]), Hill v Chief Constable of West Yorkshire is "not authority for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime." On the contrary, the ordinary principles of tortious liability apply to police except in the case of incompatibility with the performance of a professional or statutory duty. The practical effect of that principle may well be that no duty of care will be recognised in the vast majority of cases. But it is wrong, in my respectful opinion, to speak of a principle that no duty is owed by a police officer in the execution of ordinary tasks of duty.
It follows that it would be wrong summarily to dismiss the plaintiff's claim unless it can be concluded before trial that the duty of care alleged is incompatible with the proper and effective discharge of the duties or functions being discharged by police at the time.
A difficulty with the assessment of that issue is that it appears there will be a factual contest as to whether Dennis was in "controlled custody" at the time he alleges excessive force was used. Mr Hutchings indicated during argument that the defendant's case will be that there was "a very real physical struggle at the roadside when Dennis was very difficult to control and was quite violent, and the police used increasing levels of force to control him". That is evidently a reference to the confrontation following upon the confrontation over the key. The burden of the plaintiff's case is that, in the period immediately before Senior Constable Kerr demanded the key, Dennis's custody was controlled. The following particulars are provided in the pleading: "5.48. Dennis was born on 18 November 1991 was 17 ½ years of age at the time. 5.49. Dennis was then slight of build and not tall. 5.50. None of the officers was at the time at risk of harm. 5.51. Dennis did not pose any threat of danger at the time to himself or to any other person. 5.52. Dennis was continuing to display distress and was crying and swearing. 5.53. While Ward and Horwood were present a police caged vehicle was in transit and arrived in Miller Street. 5.54. Dennis, when the handcuffs were removed, was requested to sign a suspension notice and did so. 5.55. At this juncture Dennis was relatively calm, although continuing to swear and was not wearing handcuffs. 5.56. Dennis was then issued with the Court Attendance Notice and a Licence Suspension Notice. 5.57. Dennis then removed the keys from the motorcycle ignition."
On the plaintiff's case as pleaded, Dennis's custody became uncontrolled only after Senior Constable Kerr demanded the key; whether that is denied is not yet known. Further, it appears there may be a legal issue as to whether it was necessary further to detain Dennis at that point, after he had been served with Court Attendance Notices and had signed the Licence Suspension Notice, and whether he was obliged to hand over the key to his motorbike. The determination of those issues will inform the question whether force was necessary because Dennis was difficult to control or whether Dennis became difficult to control only because excessive force was used.
The defendant's argument assumed, without elaboration, that the officers in question were acting "in the execution of ordinary tasks of duty" or "in the ordinary operational execution of their ordinary operational tasks". It may be accepted that, at the time he was detained, Dennis was reasonably suspected of having committed traffic offences and that it was a task or duty of the relevant officers to charge him with those offences. However, as already noted, by the time of the altercation over the key, Dennis had been issued with Field Court Attendance Notices in respect of those offences and had signed a notice giving immediate effect to the suspension of his licence. A caged police vehicle had arrived at the scene but it is not whether, prior to the physical struggle, there was a basis for conveying Dennis to a police station once it had been determined to issue Court Attendance Notices. The pleading makes plain that there is a dispute as to the lawfulness of his detention after that point. The factual allegation is that Senior Constable Kerr then demanded the key to Dennis's motorbike. The basis for that demand is not clear. It is further alleged that, upon Dennis's refusal to hand the key to his motorcycle over to police, Senior Constable Kerr and other police commenced a physical altercation during which Sergeant Horwood twice used a taser on Dennis, who was then a child, in order to obtain it.
It was alternatively suggested during argument that the confiscation of the key was an aspect of the ordinary process of arrest. Again, however, it is not clear why there should have been a need to convey Dennis to a police station after he had been issued with the four Court Attendance Notices. Rather, it appears events unfolded in the reverse order; the occasion for conveying Dennis to a police station appears to have been his alleged resistance of police in refusing to hand over the key to his motorbike after the conclusion of the processing of the traffic offences.
Those issues illustrate the complexity of the issue whether, at the relevant time, the officers were acting in the execution of ordinary tasks of duty incompatible with the duty of care alleged. I do not think it can be concluded summarily that the plaintiff's claim is precluded by the authorities relied upon by the defendant.
For those reasons, I am not persuaded that the pleading discloses no reasonable cause of action.

Is the claim in negligence adequately pleaded?

The defendant submits that the pleading of negligence is deficient for a number of reasons. The principal complaint is that it fails to set out the scope and nature of the duty in such a way as to allow the content of the duty to be understood.
As already noted, the claim is based on the gaoler's duty of care. Paragraphs 4 and 5 of the pleading allege that Dennis was detained by the four officers referred to above and that he remained detained between approximately 3.10pm and approximately 6.30pm. Paragraph 5 is followed by 80 separately numbered "particulars of detention". Those are the subject of separate complaint, addressed below. Paragraph 6 alleges that, upon detaining Dennis, the officers exercised direct control over and assumed responsibility for his safety (referring back to the particulars of detention). Paragraphs 7 to 15 plead factual aspects of the detention and there is no objection to those paragraphs. Paragraph 16 and 17 plead that the officers used excessive force to restrain Dennis such as to injure him and that the risk of injury in those circumstances was a risk of harm. Paragraphs 18 to 25 address matters issues under the Civil Liability Act 2002 (NSW) and are the subject of separate complaint addressed below.
The duty of care is pleaded in par 27 in the following terms: "The New South Wales Police Force and the officers owed Dennis a duty while he was in their custody to take such care to avoid foreseeable risks of harm to him as was reasonable in circumstances where they knew or ought to have known that the use of excessive force when restraining Dennis could result in him suffering personal injury."
Paragraphs 28 to 30 allege various breaches of that duty; par 28 alleges that the officers and the New South Wales Police Force breached their duty of care "by reason of the zealous and overuse of force" in the premises set out in the lengthy particulars to par 5. Paragraph 29 complains of the use of the taser (evidently as a separate allegation of breach). Paragraph 30 sets out specific particulars of negligence in failing to take precautions against the risk of harm.
In support of the contention that the pleading does not adequately specify the scope and nature of the duty so as to enable its content to be discerned, Mr Hutchings relied upon the principles stated in the judgment of French CJ and Gummow J in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11. That was a dissenting judgment but the principles relied upon by Mr Hutchings are, I think, uncontroversial. However, it is not a decision about pleadings. Mr Hutchings relied on the statement at [19] of the minority judgment where their Honours said: "Two things must be said as to the formulation of a duty of care and its scope and content. First, there is an inherent danger in an action in negligence to look first to the cause of damage and what could have been done to prevent that damage, and from there determine the relevant duty, its scope and content. In Koehler v Cerebos (Australia) Ltd, McHugh, Gummow, Hayne and Heydon JJ observed that "to begin the inquiry by focusing only upon questions of breach of duty invites error. It invites error because the assumption that is made about the content of the duty of care may fail to take fundamental aspects of the relationship between the parties into account.'"
Those remarks were concerned with the formulation of a duty of care by the court, that is, the court's determination after a hearing as to the content of the duty of care. It was observed later in the same paragraph that the court's findings as to the formulation of the duty of care "will necessarily depend upon the alleged negligence and the evidence led at trial". The judgment continues at [22]: "Different classes of care may give rise to different problems in determining the nature or scope of a duty of care. In many cases a duty formulated as being one to take "reasonable care" may suffice for the finding of duty in that particular case. Cases that involve the duty of a solicitor to his or her client to exercise professional skill in accordance with the retainer, the duty of a motorist towards other users of the road, or the duty owed by an occupier of land to an entrant with respect to the condition of the premises, ordinarily involve no real controversy over the scope and content of the duty of care; these are considered at the "high level of abstraction" spoken of by Glass JA in Shirt v Wyong Shire Council. But where the relationship falls outside of a recognised relationship giving rise to a duty of care, or the circumstances of the case are such that the alleged negligent act or omission has little to do with that aspect of a recognised relationship which gives rise to a duty of care, a duty formulated at too high a level of abstraction may leave unanswered the critical questions respecting the content of the term "reasonable" and hence the content of the duty of care." (citations omitted)
Kuhl was a case in which the need for specificity in the formulation of the duty was plain. The party said to owe a duty of care was not Kuhl's employer but a supplier of equipment; there was no general duty owed by that party to provide a safe system of work. The injury suffered by the plaintiff was specific to the equipment supplied (he had his arm sucked into a flexible high-pressure vacuum hose). In my view, the relationship between a law enforcement officer and a person in custody falls more comfortably within the class of case where, at least at the pleading stage, the duty can be formulated at a high level of abstraction as a duty to take reasonable care to avoid the risk of harm due to the use of excessive force. That is not to say that a duty formulated in those terms arose in the novel circumstances of the present case; that is a question for another day. As noted in Kuhl at [19], the court's ultimate formulation of the content of the duty of care will necessarily depend on the alleged negligence and the evidence led at trial.
Mr Hutchings submitted that it is inconceivable that the duty could be owed by the entire New South Wales Police Force (as alleged in par 27) as opposed to the individual officers who detained Dennis. In my view, that is to read the pleading in an overly technical way. I would understand the inclusion of the references to the New South Wales Police Force (there and elsewhere in the pleading) to be intended to make plain that the burden of the allegation is that the duty owed by the individual officers identified arose in their capacity as members of the New South Wales Police Force. A related complaint was that the pleading aggregates the conduct of each individual officer collectively to support the contention of "direct control" and "assumed responsibility". In my view, the conduct attributed to each officer is sufficiently clear. An objection was taken to pars 31, 35 and 36 of the pleading on the same basis and is rejected for the same reason.
Next it was argued that the particulars of breach at par 28 are inconsistent with those pleaded at 30. There is some force in that complaint. The particulars at 30 appear to be directed to negligence in failing to use lesser means of force when some force was needed whereas par 28 (and the particulars to par 5 to which it refers) make a case that Dennis's custody was calm and there was no need for any force. However, I do not think it follows that both cannot stand. They refer to different stages of the relevant events. The success of either basis for the claim will turn on the evidence led at trial. As already noted, the dissenting judgment in Kuhl acknowledges that the proper formulation of the duty ultimately held (or rejected) by the court will necessarily be informed by the evidence. While clarity in pleadings is a virtue, the court must be astute not to hold a plaintiff to a standard of specificity that ignores the inherent uncertainties of litigation.
Finally, par 32 of the defendant's written submissions complains that the pleading of causation refers to the particulars of detention rather than to the pleadings of breach. In my view, reading the pleading fairly as a whole, it is clear enough that the allegation is that injuries complained of were caused by the alleged breaches.
For those reasons, I am not persuaded that the pleading of negligence is deficient.

Other objections as to the form of the pleading

The next objection is to the "particulars" to par 5 of the pleading. The main body of that paragraph (set out above) is repeated here for convenience: "During a period commencing at approximately 3.10pm and concluding at approximately 6.30pm on about 24 May 2009 Dennis remained detained by the officers in the course of their duties as serving members of the NSWPF."
That allegation is purportedly supported by 80 separately numbered "particulars of detention". It is an unfortunate form in which to present a case.
Before turning to the defendant's particular complaints in respect of those particulars, it is helpful to analyse some features of the rules relating to pleadings. The requirements of pleadings are set out in Part 14 of the Uniform Civil Procedure Rules. Division 3 of Part 14 sets out a series of requirements as to the form of pleading generally. They include, for example, the requirement that pleadings be divided into paragraphs (rule 14.6); the requirement that pleadings contain facts, not evidence (rule 14.7); the requirement that a pleading be as brief as the nature of the case allows (rule 14.8) and so on.
The paradigm of an ideal pleading will be one that conforms to all of the requirements of the rules. However, a failure to comply with a requirement of the rules does not necessarily, in and of itself, render the pleading liable to be struck out. The Court's power to strike out the whole or any part of a pleading is to be found in r 14.28, the effect of which is set out above. The power under that rule must be exercised with the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings in accordance with the mandate of s 56 of the Civil Procedure Act 2005 (NSW) and 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, as contemplated by s 60 of the Act.
It should go without saying that the overriding purpose and the object of proportionality will be best served if a pleading complies with the requirements of the rules in the first place. However, once a deficient pleading has been served, those same objects must also guide the application of rule 14.28. It follows that it will not be enough, to support a strike out application, merely to point to the fact that the formal requirements of pleading have not been met. In order to give effect to the overriding purpose, some breaches of those requirements must reluctantly be condoned. It is only where the deficiencies have a tendency to cause prejudice, embarrassment or delay in the proceedings that the authority to strike out a pleading is properly engaged. A defendant facing an inelegant or inadequate pleading is required, in serving the overriding purpose, to make a sensible assessment as to whether, notwithstanding some infelicities, the issues in the proceedings are adequately clear and can be met.
The defendant submitted that the difficulties in the present case are manifold. First, it was submitted that material facts are disguised as particulars, offending the purpose of particulars as explained by Gleeson CJ in Goldsmith v Sandilands (2002) 190 ALR 370; [2002] HCA 31 at [2]: "Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but "to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial." (citation omitted)
As noted by the defendant, a party is not required to plead to particulars. One might have thought in that circumstance that the plaintiff would prefer to have set out any material fact in the body of the pleading, so as to obtain any admissions or denials. The difficulty is compounded in circumstances where Dennis has died. While there are various records of his version of events which may be admissible at trial, it was submitted that the importance of having the issues clearly delineated by the pleadings is heightened in that circumstance. Separate complaints were made as to individual particulars which plainly do not comply with the requirements of the rules.
Whilst the approach taken is unfortunate, I am not persuaded that those particulars must be struck out. As the defendant has noted, there is no requirement to plead to them. In my assessment, the issues in the case will be clear enough if a defence is filed to the allegations made in the main body of the pleading. In reaching that conclusion I have had regard to the fact that, owing to the death of Dennis, the claim is significantly smaller than it might have been and certainly well within the jurisdictional limit of the District Court. I see no utility in striking out that part of the pleading and requiring a further iteration of the statement of claim to be prepared. Although a party is not required to plead to particulars, it is open to the defendant to plead to the particulars in the present case, and may be helpful is that is done.
The next objection is to pars 18 to 25 of the pleading. I accept that those paragraphs are problematic in that they plead conclusions of law. Mr Hutchings drew my attention to the helpful discussion of that particular vice of pleading in Liao v State of New South Wales; Zhang v State of New South Wales [2014] NSWCA 71 at [207]-[214] per Barrett JA; Beazley P agreeing; and see Garzo v Liverpool/Campbelltown Christian School Ltd [2011] NSWSC 292 at [57] (Garling J). I am satisfied that those paragraphs should be struck out, for the reasons explained by Barrett JA in Liao. The plaintiff will have leave to re-plead, if sought.
Finally, the defendant submitted that pars 39 to 42 of the pleading plead irrelevant facts. Those paragraphs plead the outcome of the criminal proceedings against Dennis. I agree that those matters are irrelevant to the claim and should be struck out.
At the hearing of the motion, I asked the parties to address me as to why the proceedings should not now be transferred to the District Court. Section 146 of the Civil Procedure Act confers power to make such an order if the Court is satisfied that the proceedings could properly have been commenced in the District Court. The present proceedings were properly commenced in this Court because, when Dennis was alive, the claim included a substantial component of damages for psychiatric harm. However, it was acknowledged on behalf of the present plaintiff that such damages are no longer able to be recovered and that the claim as now constituted is unlikely to exceed the jurisdictional limit of the District Court. The only matter raised in response to my question was the complexity of the liability issue. In my respectful opinion, the issues raised in these proceedings fall as much within the considerable expertise of the District Court as this Court.
For those reasons, I make the following orders: 1. Paragraphs 18 to 25 of the third amended statement of claim filed 1 December 2017 are struck out with leave to re-plead; 2. Paragraphs 39 to 42 of the third amended statement of claim filed 1 December 2017 are struck out; 3. The defendant's notice of motion filed 20 December 2017 is otherwise dismissed; 4. Pursuant to s 146(1) of the Civil Procedure Act, the proceedings are transferred to the District Court.

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: 07 May 2018

Civil Procedure Act 2005(NSW)ss 56, 60, 146

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