Abuse: Application to amend pleadings refused.

PWJ1 v The State of New South Wales [2020] NSWSC 1235 (on Caselaw) is of interest for its attention to the Court’s expectations in respect of pleadings, in a matter where plaintiff sought to join two further defendants to an existing claim against the State of New South Wales. 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.

The Court refused leave to file an Amended Statement of Claim, commenting at [97] – [98] as follows.

“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:

a) the proposed pleading does not include any articulation of the “risk of harm” to which s 5B of the CLA applies;

b) the proposed pleading does not include any material which, when dealing with the common law duty relied upon, adequately pleads the elements required to be pleaded and proved for a claim of negligence to which ss 5B and 5C of the CLA apply;

c) it includes allegations which are irrelevant to any of the facts pleaded, as described in [32], [40] and [42] above;

d) it fails to identify with respect to the perpetrators at any of the Institutions, except Bexley, the existence of the statutory powers being exercised by the Institutions, and any statutory functions or powers being exercised by the individuals, including those affecting their duties and obligations. These statutory powers and functions are a necessary consideration in determining the extent of the obligation between the Institutions and the plaintiff and whether the Institutions ought be held vicariously liable to the plaintiffs;

e) insofar as a non-delegable duty is pleaded and is to be relied upon, the proposed pleading fails to identify the role of each perpetrator and the nature of their employment or engagement, such that the employment or engagement was not just, the provision of an opportunity to commit the alleged offences, or engage in the alleged conduct, but rather is sufficient to enable a conclusion of vicarious liability to be reached;

f) the pleading resorts to generalisations and formulaic words and phrases – paragraph 40 of the proposed pleading is a good example of this. Allegations of the particulars of the existence of a relationship between the defendant and the perpetrator, and with the plaintiff as well, are formulaic, do not refer to any particular facts and matters, but simply state conclusions in a formulaic way apparently derived from statements from judgments without being anchored in the particular facts of this case; and

g) the claim of a causal link between the conduct of the defendant, pleaded as constituting a breach of duty, and the occurrence of the particular harm, which is undefined, pays no regard to the requirements of s 5D of the CLA.

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.”