PWJ1 v The State of New South Wales

1. [1]

   The plaintiff, given the pseudonym PWJ1, commenced proceedings in 2019 claiming damages for physical and sexual assault from the defendant, the State of New South Wales (“the State”).

2. [2]

   The plaintiff claimed that whilst a resident at various residential institutions for children, for which the State was responsible, he was sexually and physically assaulted.

3. [3]

   Since December 2019, the plaintiff has sought to amend his Statement of Claim in a number of ways. This includes the proposed amendments in the Notice of Motion subject of this judgment, which seeks to join two further defendants: the Sydney Anglican Home Mission Society Council (“the Anglican Home Mission”) and the Salvation Army (New South Wales) Property Trust (“the Salvation Army").

4. [4]

   In general terms, each of the proposed defendants (to which it will be convenient to refer simply as defendants) was responsible for one of the six institutions in which the plaintiff alleges he was abused.

Current Notice of Motion

1. [5]

   On 20 May 2020, the plaintiff filed an Amended Notice of Motion which sought the following orders:

2. [6]

   Annexed to that Notice of Motion was a document described as “Amended (4) Statement of Claim”. At the hearing of the Motion, counsel for the plaintiff accepted that the document ought correctly be described as “Amended (5) Statement of Claim”. This document represents the fifth attempt by the plaintiff to plead his causes of action.

3. [7]

   The First Defendant, the State, opposed the grant of leave to file the Amended (5) Statement of Claim, but did not oppose the joinder of the additional defendants.

4. [8]

   The Second Defendant, the Anglican Home Mission, did not oppose being joined as the Second Defendant, nor did it oppose the filing of the Amended (5) Statement of Claim.

5. [9]

   The Salvation Army opposed being joined as the Third Defendant on the basis that the Amended (5) Statement of Claim was entirely deficient in articulating any arguable cause of action against it.

6. [10]

   It is therefore necessary to consider what can be conveniently described as the pleading issues which are raised by the State and the Salvation Army and then, depending on those issues, determine what it is appropriate to do with respect to the orders sought in the Amended Notice of Motion.

Amended (5) Statement of Claim

1. [11]

   The plaintiff pleads facts which describe a most miserable life that started just after his 13th birthday.

2. [12]

   He identifies the following institutions where he spent time, and in each of which he was either physically assaulted, or both physically and sexually assaulted. They are:

3. [13]

   The alleged abuse does not need comprehensive description in this judgment. What is of significance is the nature of the abuse, whether it was sexual or physical or both, and the identity or role of the perpetrator for whose conduct it is alleged that the defendants are respectively said to be liable. None of the perpetrators are sued as defendants.

4. [14]

   During his time at Bexley, the plaintiff alleges that he was physically abused. In respect of one episode of physical abuse pleaded, the plaintiff is unable to identify the perpetrator other than to say that it was one or more of the Salvation Army officers whose identities are unknown to him. A second episode of discrete physical abuse is alleged against a named Salvation Army officer, who was said to be the second in command at Bexley.

5. [15]

   At Charlton, the plaintiff pleaded that he was sexually and physically assaulted by a man, whose name is not known to him but who is described as being the owner or manager of a service station situated at Kingsgrove about 8km or so from Charlton. On four occasions, the plaintiff pleads that, with the approval of those in charge of Charlton, he was taken from there to the service station where he was sexually assaulted. The plaintiff also pleads that on two occasions in early 1975, the identified man was allowed by officers of the Anglican Home Mission to visit him at Charlton and sexually assault him there.

6. [16]

   The plaintiff claims that he was physically assaulted on a number of occasions whilst he was at Daruk. On some of those occasions he was physically assaulted by other boys at the Centre, whom he describes as “store boys”, who were either encouraged or permitted by the officers in charge to carry out the assault. The plaintiff nominates a particular officer of the Centre as having physically assaulted him regularly throughout his time there. Finally, he names an officer whom he says sexually assaulted him on one occasion in his bed in a dormitory.

7. [17]

   Whilst at Albion Street, the plaintiff pleads that he was taken with the permission of the staff at the Centre to the home of a lawyer (whom he names) who volunteered to assist children residing at the Centre with their legal matters. He says that on one occasion he was sexually assaulted whilst at the lawyer’s home.

8. [18]

   The plaintiff pleads that whilst at Endeavour, he was sexually assaulted on three occasions by a named officer who entered the plaintiff's room at the Centre and there sexually assaulted him.

9. [19]

   Finally, the plaintiff pleads that whilst he was in custody at Long Bay Jail, within the first few weeks of arriving there, and at a time when he was still 17 years of age, a named prisoner brought three other adult prisoners who are not identified in any way into the plaintiff's cell. The plaintiff alleges that he was sexually assaulted by each of the four adult prisoners.

10. [20]

    It is apparent from this brief description that the perpetrators vary between those who are said to have been employed at one or more of the State institutions, and those who are members of an organisation i.e. officers of the Salvation Army, visitors to or volunteers at the Institutions, or else fellow residents or inmates of the Institutions. The relationship between the State, the Anglican Home Mission and the Salvation Army, and the respective perpetrators is not further described in the Amended (5) Statement of Claim other than by the descriptions which I have given above.

11. [21]

    The factual circumstances in which the sexual and physical assaults occurred are given only the briefest of descriptions, generally nominating the physical location where the assaults occurred but none of the surrounding circumstances. It may be that the descriptions that are given are the best which can be provided by the plaintiff, having regard to his age at the time and the length of time that has passed since those events. But if that is so, no such indication is given in the pleading. The period of time, it can be seen, is between June 1974 and March 1979 – being a period between 51 and 56 years ago.

Causes of Action

1. [22]

   The plaintiff pleads as against the State and the two other defendants a number of separate and distinct causes of action. They are all tortious. Unsurprisingly, since the perpetrators are not sued or sought to be joined as defendants, the plaintiff does not plead that the provisions of the Civil Liability Act 2002 (“CLA”) do not apply. I say unsurprisingly because the terms of s 3B(1)(c) of the CLA do not apply to exclude the application of the CLA to the claims being made in these proceedings. In summary, the three causes of action are:

2. [23]

   The first two causes of action for breach of the common law duty and the non‑delegable duty require the proof of fault on the part of the State and each of the other defendants. They can conveniently be referred to as direct causes of action. The third cause of action does not require proof of fault; rather it concentrates on the liability created by the perpetrator to the plaintiff and whether the State and the other defendants are to be held legally liable for the consequences of the perpetrator’s conduct. In that way, it can properly be described as an indirect cause of action.

3. [24]

   The pleading alleges that in respect of all the Institutions, except for Bexley, the plaintiff was residing at those institutions as a consequence of orders made by the Children's Court. However, the particular orders, the legislation which gave the Children's Court the power to make those orders and the status of the institutions in accordance with that or other legislation is not pleaded or otherwise referred to.

4. [25]

   The pleading is largely in identical term as against the State and each of the other defendants. It will be convenient to set out the direct causes of action pleaded against the State, which are in the following terms:

5. [26]

   It seems to me that sub-paragraphs (a) and (b), although pleaded separately, are pleadings that the State owes a single common law duty to the plaintiff to take reasonable care for his safety and to protect him from being assaulted. That is the common law duty cause of action. However, the use of the phrase in sub-paragraph (a) “foreseeable (but not insignificant) risks of harm”, reflects words used in s 5B of the CLA. As the High Court of Australia pointed out in the joint judgment in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [12]-[13], the provisions of s 5B are directed to questions of breach of duty, and do not have any relevance to the existence or content of any alleged duty of care. This phrase therefore needs to be put to one side as being irrelevant in attempting to understand the common law duty of care which is being alleged.

6. [27]

   Sub-paragraph (c) pleads the non-delegable duty cause of action.

7. [28]

   The next paragraph of the Amended (5) Statement of Claim pleads precautions which, it is alleged, the State should have taken. It will be necessary to return to the detail of these in due course.

8. [29]

   It is then pleaded that the failure of the State to adopt the precautions outlined constituted negligence. I assume that this is an inarticulate way of alleging that the failure to adopt precautions constituted breaches of the two duties of care, the common law duty and the non-delegable duty, which breaches caused, in the sense described in s 5D of the CLA, injury, loss and damage to the plaintiff.

9. [30]

   The pleading then repeats the existence of the non-delegable duty of care but in terms different from, although similar in substance to, the earlier pleading.

10. [31]

    The pleading then sets out what are described as “breaches of duty of care”. These breaches seem to apply to both the common law duty and the non-delegable duty although, as can be observed, the duties are different in nature and content. These breaches are pleaded in the following terms:

11. [32]

    I note with respect to (a), that there is no pleading or suggestion elsewhere that the plaintiff was a student at any of the named institutions. I note with respect to (m), that there is no pleading of a representation at any time, either express or implied, and that there is no claim for damages based on any tort of negligent misrepresentation. I further note with respect to sub-paragraph (o) that there is no pleading of any fact which suggests that at any time the plaintiff complained to anybody about what was happening to him.

12. [33]

    After these pleadings, the claim based on vicarious liability is pleaded to which reference is made later in this judgment.

13. [34]

    After each cause of action there is a recitation of the words and phrases to be found in s 5D of the CLA. However, there is no specific pleading of what is said to be the particular harm, how it is said that the particular harm was caused by the breaches, and if so which, of the pleaded duties of care.

14. [35]

    The pleadings against the proposed second and third defendants follow a similar course.

15. [36]

    In the case of the Anglican Home Mission, which was responsible for Charlton, the alleged abuser was not employed at Charlton but rather was a person who can be called a “stranger”. Consequently, the duties are adjusted so as to include a duty to protect the plaintiff from individuals who were permitted or allowed to attend at Charlton or were permitted to remove the plaintiff from Charlton. Insofar as the particulars of breaches of duty are concerned, they are in identical terms to those against the First defendant which are set out at [31] above, subject to adjustments to represent the fact that the Anglican Home Mission operated Charlton and to include strangers. Sub-paragraph (c) is removed from the particulars of breach of duty.

16. [37]

    So far as the Salvation Army is concerned, the pleadings are identical to those of the State save that the location is changed to Bexley from being any of the first defendant’s Institutions. There is no other difference.

Vicarious Liability

1. [38]

   The allegations of vicarious liability against the State and the other defendants are in substantially similar terms. The first fact pleaded is that the (relevant) defendant “engaged the abusers and as such the abusers were a servant and/or agent and/or in the service of the … Defendant”.

2. [39]

   The second fact pleaded is that the relevant sexual and physical abuse occurred in the course of the engagement and/or employment and/or service of the abusers. No particulars are provided which address how that may be so.

3. [40]

   The third fact pleaded is that each defendant and the individuals who carried out the abuse were part of a joint common enterprise being “- the education and care of students at the … Defendant's institutions”. It is said that the sexual and physical abuse occurred in the course of that joint common enterprise. I observe again that there is no earlier pleading of any fact or facts which suggest that the State or the other defendants were conducting an educational institution and that any were in the process of educating young men, and that the plaintiff was a student. No factual basis is pleaded for the existence of a “joint common enterprise”.

4. [41]

   The allegation is then made that each defendant is vicariously liable for the acts of those who carried out the abuse. Particulars of that vicarious liability are given in each case. Again these are largely in identical terms. Insofar as the particulars of vicarious liability are alleged against the State, they are in the following terms:

5. [42]

   Again, it ought be noted that sub-paragraph (c) suggests that the plaintiff was a student at an educational institution and the provision of care was an adjunct activity. The reference in sub-paragraph (d) to “pastoral care” is also inapt in a juvenile justice institution conducted by the State, unless specified facts or legal obligations are pleaded which make it either an obligation or else an integral part of the discharge of the functions of the employee of the State.

6. [43]

   Identical particulars of vicarious liability were provided for the other two proposed defendants, except that minor changes were made to reflect whether or not the alleged abuser was employee. It can be seen that these particulars do not connect with, or refer to, any of the particular acts of physical and sexual abuse by any of the perpetrators. No difference in approach is to be seen between assaults perpetrated by non-employees, or fellow residents or inmates.

7. [44]

   Against this background of fact and the outline of the proposed pleading, it is convenient to turn to the well identified principles of law which are relevant to the issue of whether the proposed pleading ought to be filed.

Principles of Law

1. [45]

   It is useful to commence an outline of the relevant principles of law with a reminder of the remarks of Gleeson CJ in New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 at [1]:

2. [46]

   Because neither answer is always and obviously correct, attention must be paid by the pleaders to the principles of law which are applicable and relevant, and also to the particular facts and relationships which have given rise to the abuse and the claims for legal responsibility for such criminal conduct.

3. [47]

   These remarks of the Chief Justice are not only applicable to schools but are equally applicable to claims for damage for physical or sexual assault against institutions which have the care of juveniles or at which juveniles are present, including the plaintiff.

4. [48]

   Where causes of action are pleaded to which the CLA relates, the pleading of a duty of care stands outside the terms of that Act notwithstanding the heading “Duty of Care" appearing immediately before s 5B: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [13].

5. [49]

   Careful attention needs, therefore, to be first paid to the facts, matters and circumstances which upon which a plaintiff relies to give rise to a duty of care. In Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 at [50], in a single judgment, the High Court considered whether a duty of care relied upon by a plaintiff existed. At [50] it said:

6. [50]

   At common law, it may be regarded as being well-settled that prison authorities owe a general duty to exercise reasonable care for the safety of prisoners held in their custody. This duty may extend to an obligation to take reasonable care to prevent harm arising from the unlawful activities of other prisoners. The basis of this duty is the relationship which exists between prisoners and prison authorities, stemming from the degree of control exercised by prison authorities pursuant to legislation and delegated legislation, such as Prison Regulations, and the corresponding vulnerability of prisoners: New South Wales v Bujdoso [2005] HCA 76; (2005) 227 CLR 1; Cekan v Haines (1990) 21 NSWLR 296 at 297 (Kirby P); State of New South Wales v Napier [2002] NSWCA 402 at [75]; Watt v State of New South Wales [2018] NSWSC 1926 at [178]-[180].

7. [51]

   It is not axiomatic that a duty with precisely the same content will apply to young offenders. On the contrary, it may be that the content of that duty is somewhat stricter. Put differently, the duty owed to juvenile offenders would likely require greater diligence on the part of the authority which is charged with the care and management of juveniles in the juvenile justice system.

8. [52]

   The circumstances in which a party will owe a duty of care with respect to the criminal conduct of others is a matter of complexity. The same applies in a prison, or juvenile justice setting. As Gleeson CJ said in Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 at [13]:

9. [53]

   At [14], Gleeson CJ noted that when there are difficulties with respect to the identification of the existence and measure of legal responsibility, one useful way to proceed is to begin by identifying the nature of the harm suffered by a plaintiff for which a defendant is said to be liable.

10. [54]

    Here, as is obvious, the plaintiff claims to have suffered personal injury, the direct and immediate cause of which was the deliberate criminality of those who sexually or physically abused him. Because the defendants are not the perpetrators of the criminal conduct, the question arises as to what the facts, matters and circumstances are which become the integers upon which a duty of care is constructed, as between plaintiff and defendant, such that the defendant is liable for that criminal conduct of others.

11. [55]

    In Binsaris v Northern Territory of Australia [2020] HCA 22, Kiefel CJ and Keane J noted at [17] in a case involving a tort inside a juvenile justice centre, that:

12. [56]

    I also observe that the analysis undertaken in Binsaris jointly by Gordon and Edelman JJ concentrates on the terms of the relevant legislation in order to identify whether the conduct was tortious or not.

13. [57]

    Once the integers of a duty are articulated, it is then essential to ensure that the risk of harm is identified and specifically pleaded, so as to inform the existence of, and content of a properly pleaded duty of care.

14. [58]

    The Court of Appeal in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 held that the identification of the risk of harm, where claims are brought for causes of action to which the CLA relates, is an essential feature of such claims. At [7], Basten JA said:

15. [59]

    In Uniting Church and Australia Property Trust (NSW) v Miller [2015] NSWCA 320, Leeming JA, at [102]ff, recognised that central to the determination of civil liability for failure to exercise reasonable care and skill is the identification of the risk of harm. His Honour said at [103]:

16. [60]

    Having set out the entirety of s 5B of the CLA, Leeming JA said at [105] that each of the seven sub-paragraphs in s 5B must be considered by a court before a defendant is found to have been negligent. Of the provisions in s 5B, His Honour said that the three matters specifically identified in s 5B(1) were “necessary preconditions to liability”. His Honour remarked that the matters set out in s 5B(2) were “a non-exhaustive but mandatory list of factors to which the court is required to have regard”.

17. [61]

    His Honour then cited with approval what Meagher JA said in Garzo at [22], namely:

18. [62]

    What the Court of Appeal said in Miller was not novel. Garzo, both at the first instance ([2011] NSWSC 292) and on appeal, addressed the same issue. A number of other cases in the Court of Appeal also identified and addressed the issues including: Shoalhaven City Council v Pender [2013] NSWCA 210 at [68]-[72] and Port Macquarie/Hastings Council v Mooney [2014] NSWCA 156 at [50]-[51], where at [52], Sackville AJA said:

19. [63]

    The Court of Appeal again emphasised the need for the identification of the risk of harm in Collins v Clarence Valley Council [2015] NSWCA 263 per McColl JA at [126]-[135].

20. [64]

    In the Nominal Defendant v Buck Cooper [2017] NSWCA 280, Payne JA at [89] described the identification of the risk of harm, and its articulation, as being an “uncontroversial proposition”. His Honour, in the same paragraph, said that the issue of breach of duty could not properly be considered unless “the relevant risk of harm is first identified and characterised with adequate precision”.

21. [65]

    These propositions have not been revised or diminished, nor have they disappeared at any time since then. In Coles Supermarket Australia Pty Limited v Bridge [2018] NSWCA 183, Leeming and Payne JJA at [17]-[22] said that the provisions of the CLA required the analysis to start with a risk of harm.

22. [66]

    Recently in Menz v Wagga Wagga Show Society Ltd [2020] NSWCA 65, Leeming JA (with whom Payne and White JJA agreed) again touched on this question at [48]-[51], where his Honour said:

23. [67]

    As I have previously remarked at some length, the other provisions in ss 5B and 5C have to be pleaded and addressed in any claim made which is the subject of the CLA: see Garzo v The Liverpool Campbelltown Christian School Ltd [2011] NSWSC 292 at [63]ff.

24. [68]

    Because the CLA commences with an acknowledgement that there are a number of separate steps which must be taken to establish a breach of duty, each of these steps must be addressed in a pleading which is to be regarded as satisfactory.

25. [69]

    I have already called attention to the first step, which is that a plaintiff must identify and then plead the risk of harm against which he (or she) alleges a defendant would be negligent for failing to take precautions.

26. [70]

    The next step is to address by pleading each of the three elements in s 5B(1) of the CLA.

27. [71]

    Section 5B presupposes the existence of the law of negligence and operates against its background: RTA v Refrigerated Roadways Pty Limited [2009] NSWCA 263 at [173] per Campbell JA (McColl JA agreeing). However, the statute requires that a trial judge must be satisfied that each of the elements in s 5B(1) are satisfied before a finding of a breach of duty can be made: Refrigerated Roadways at [442]-[444] per Sackville JA.

28. [72]

    The three separate elements in s 5B(1) represent the concepts of foreseeability, probability and reasonableness of precautions: see the Final Report of the Review of the Law of Negligence (“the Ipp Report”) which was published in September 2002 at paragraph 7.11. These concepts are each represented in the common law, and are often conflated in the term “reasonable foreseeability” but the statute makes it clear that each must be separately addressed.

29. [73]

    The first element is that a plaintiff must establish that the risk of harm was foreseeable to the defendant. Foreseeability is described in the statute differently from the common law description. In the CLA, s 5B(1)(a) describes a foreseeable risk as a risk of which the defendant knew or ought to have known. A plaintiff must establish either actual knowledge in the defendant of the risk of harm, or else constructive knowledge (i.e. the defendant ought to have known) in the defendant of the risk of harm.

30. [74]

    The Ipp Report was the source of this provision of the CLA. In paragraph 7.10, the following remarks were made:

31. [75]

    In my opinion, the plaintiff must plead (and then prove at trial) that the defendant, at the date of the alleged negligence, knew of the alleged risk of harm, or else, by reference to other facts, matters and circumstances ought to have known it. Those other matters will vary from case to case but may include such things as the prior behaviour of an institution with respect to similar behaviour by the perpetrator or even another perpetrator, common knowledge and experience of others in the similar position of the defendant, an accumulation of complaints being made, public notoriety of a particular risk of harm, publications and academic knowledge which might be expected to be read by people in the defendant’s position and the obviousness or the likelihood of the event happening in the application of common sense.

32. [76]

    The second element, which is cumulative on the first, is whether the alleged risk of harm was “… not insignificant”. This must also be judged from the perspective of a reasonable person in the defendant’s position, and in prospect not retrospect: Stojan v Kenway [2009] NSWCA 364 at [136] per McColl JA.

33. [77]

    In Bunnings Group Ltd v Giudice [2018] NSWCA 144, at [53]–[54], the Court (Leeming JA, White JA and Emmett AJA) said:

34. [78]

    I would, with respect to the Court in Guidice, add the following references. Kirby J in Harriton v Stephens (2006) 226 CLR 52 at 94 [136]-[138], noted that the CLA made “… substantial alterations to the [common law] principles of reasonable foreseeability …”. His Honour also noted that the CLA was fundamentally restrictive and that “… obstacles for plaintiffs seeking damages in tort, especially where the damages are sought in respect of personal injury, have been considerably increased”.

35. [79]

    On this aspect of the CLA, the then Premier of NSW said in his Second Reading Speech when debating the Bill:

36. [80]

    Spigelman CJ, speaking extra judicially at Lincoln’s Inn, London on 16 June 2004, said of the phrase “not insignificant” this:

37. [81]

    I will now draw together these various sources to say that the phrase “not insignificant” calls for a consideration of these matters, which where necessary need to be addressed in the pleading, at least as particulars of the pleaded assertion that an identified risk of harm is “not insignificant”:

38. [82]

    The third element of s 5B(1) which requires attention is the conduct of a reasonable person. This element is perhaps the one which most closely reflects the common law: Refrigerated Roadways at [177] per Campbell JA. Any consideration of this element also requires attention to the provisions in s 5B(2) of the CLA.

39. [83]

    Section 5B(2) provides a non-exhaustive list of factors which a court is required to take into account in deciding if this step is made out: Refrigerated Roadways at [173] per Campbell JA; [445] per Sackville AJA; Erwin v Iveco Trucks Australia (2010) 267 ALR 752 at [81] per Sackville AJA (Basten and Campbell JJA agreeing). Where relevant, these matters may well need to be pleaded, but the necessity to do so will depend upon the facts in the particular case, and the way in which the plaintiff articulates their cause of action.

40. [84]

    It is now appropriate to turn to and consider the claim which does not involve fault on the part of the defendants, but which nevertheless seeks to impose liability upon them for what is pleaded as having occurred to the plaintiff. This is the claim for vicarious liability.

41. [85]

    Vicarious liability was considered by the High Court of Australia in Prince Alfred College Incorporated v ADC [2016] HCA 37 (2016) 258 CLR 134. The issue which fell for consideration in the High Court was the allegation of vicarious liability of Prince Alfred College for sexual abuse carried out upon a student by a staff member in the boarding accommodation facility.

42. [86]

    In the judgment of the plurality (French CJ, Kiefel, Bell, Keane and Nettle JJ), their Honours dealt with the principles relating to vicarious liability. At [39] their Honours said:

43. [87]

    After considering a range of authorities both in Australia and in other jurisdictions, their Honours returned to the issue, at [80] and said:

44. [88]

    At [81], their Honours identified one relevant approach saying:

45. [89]

    The particular case with which their Honours were there concerned was an offender who was engaged in the role of a Housemaster at a boarding school, and the duties which he was given to fulfil as part of his role. This lead their Honours to describe the relevant approach in this way at [84]:

46. [90]

    The remarks of Gageler and Gordon JJ are particularly pertinent to the issue being considered in this application. In Prince Alfred College at [128] they said:

47. [91]

    It is clear that it is only by the articulation of these matters that, if it becomes necessary, a determination can be made as to whether a defendant, after a very long period of time, can plead a defence and have a fair trial. In Prince Alfred College, an extension of time was not granted to a plaintiff because of inter alia the delay in bringing proceedings. The High Court upheld that refusal to grant the extension of time to bring the claim.

48. [92]

    As recent decisions show, the question of whether a permanent stay should be granted, in cases of significant age, require close attention to the pleadings and the facts: The Council of Trinity Grammar School v Anderson [2019] NSWCA 292.

49. [93]

    And so it is that the detail and specificity of the pleadings in each individual case are of critical importance. There is no room for general, broadly phrased pleadings which are applied to a broad range of claims without discrimination, and which do not pay careful attention to the relevant facts. Mere rubrics and hollow incantations are not a substitute for proper pleadings which pay attention to the principles discussed as well as the requirements of the CLA and the Uniform Civil Procedure Rules 2005.

Discernment

1. [94]

   Having regard to the principles outlined and the way in which the proposed pleading is expressed, an order will not be made permitting the plaintiff to file the proposed pleading.

2. [95]

   The order will apply to the document as a whole, notwithstanding that the Anglican Home Mission did not oppose being joined as a defendant, nor did it oppose the filing of the Amended (5) Statement of Claim. The relief sought by the plaintiff, namely leave to file the proposed pleading, does not seek orders which differentiate the basis for its claim for relief between the existing and proposed defendants.

3. [96]

   Only one pleading is sought to be filed applying to all defendants. In those circumstances, as my reasons show, if I am not satisfied that the pleading is in proper terms to enable the defendants to understand the cause of action against them, and to plead to it, the consent of one of the parties is not determinative of that issue.

4. [97]

   I am of the opinion that leave to join the proposed defendants, and leave to file the proposed pleading Amended (5) Statement of Claim, which is the document by which the proposed defendants are to be joined, ought not be granted because:

5. [98]

   Looked at as a complete document, the proposed pleading does not enable a court or any of the defendants to understand satisfactorily what the basis is for the alleged liability of any of the defendants, nor does it allow the defendants to identify with clarity what it ought to put in issue by a properly pleaded defence.

6. [99]

   It is here relevant to note what the High Court of Australia said nearly 40 years ago in Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664:

7. [100]

   The proposed pleading does not fall within this description and cannot be allowed to be filed.

8. [101]

   By proposing to rely upon the proposed Amended (5) Statement of Claim, it seems that the plaintiff no longer wishes to rely upon the existing pleading. In those circumstances, it is appropriate to grant the plaintiff leave to file any further pleading that may be advised.

Orders

1. [102]

   I make the following orders:

   1. (1)

      Refuse leave to the plaintiff to file the proposed Amended Statement of Claim entitled “Amended (5) Statement of Claim”.

   2. (2)

      Grant leave to the plaintiff, if so advised, to file a Motion seeking orders permitting the amendment of a Statement of Claim, together with all affidavits in support, provided that such notice of motion is filed on or before 23 September 2020.

   3. (3)

      Grant leave for the Motion to be made returnable before Garling J at 9am on 2 October 2020.

   4. (4)

      Order the plaintiff to pay the costs of the defendant, the State of NSW, and the proposed second and third defendants.