Palmer v State of New South Wales [2021] NSWSC 1226 (30 September 2021)

Last Updated: 30 September 2021

Supreme Court New South Wales

Case Name:	Palmer v State of New South Wales
Medium Neutral Citation:	[2021] NSWSC 1226
Hearing Date(s):	14 September 2021
Date of Orders:	30 September 2021
Decision Date:	30 September 2021
Jurisdiction:	Common Law
Before:	Garling J
Decision:	1. Parties to prepare short minutes of the Court’s orders. 2. Vacate the hearing date of 1 October 2021. 3. List the proceedings for further directions before Garling J on 8 October 2021.
Catchwords:	CIVIL PROCEDURE – Pleadings – matter to proceed by way of Statement of Claim not by Summons – application to transfer proceedings to Equity Division – application refused
Legislation Cited:	Child Welfare Act 1939 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Civil Procedure Act 2005 (NSW)
Cases Cited:	Tepko Pty Ltd v Water Board [2001] HCA19; (2001) 206 CLR 1 Tomko v Palasty (No.2) [2007] NSWCA 369
Texts Cited:	Not Applicable
Category:	Procedural rulings
Parties:	Kathleen Palmer (P) State of New South Wales (D)
Representation:	Counsel: A McQuiillan (P) T Buterin (D) Solicitors: M Buckley (P) Crown Solicitors Office D)
File Number(s):	2021/161565
Publication Restriction:	Not Applicable

JUDGMENT

1 Kathleen Palmer (“the plaintiff”) was born in 1967. Her father has never been identified. In October 1973, because her mother, with whom she lived, was murdered, the plaintiff was brought before the Children’s Court when, on 4 October 1973, an order was made committing her to the care of the relevant Minister as a Ward of the State of New South Wales.

2 In December 1973, on the application of Mrs Liliane Schwarz, the plaintiff was placed into the care of Mrs Schwarz and her husband, Mr Irwin Schwarz, who lived in Queensland. At the time of that placement, Mrs Schwarz identified herself as the plaintiff’s maternal aunt.

3 On 5 June 1974, the Director of the Queensland Department of Children’s Services made a declaration pursuant to the Queensland legislation, assuming the guardianship of the plaintiff from the NSW Minister for Youth and Community Services.

4 The plaintiff alleges that she was mistreated by Mrs Schwarz, including being physically assaulted, whilst she was living with the Schwarz family. She also alleges that she was sexually abused by their son, Edwin Schwarz, commencing in late 1976 when she was 9, and continuing through to 1982.

The Proceedings

5 The plaintiff has commenced proceedings in this Court against the State of New South Wales (“the State”), claiming damages for personal injury suffered as a consequence of her physical and sexual assault whilst she was in the care of the Schwarz family.

6 The proceedings were listed for directions before the Common Law Registrar. The Registrar made directions.

7 As a consequence of those directions, the defendant has filed a Notice of Motion on 16 July 2021, seeking a review of those directions and seeking further procedural orders. On 28 July 2021, the plaintiff also filed a Notice of Motion seeking orders including an order for the transfer of part of the proceedings to the Equity Division.

8 This judgment deals with those two Motions.

Engagement Between the Parties prior to Commencement of Proceedings

9 During the course of 2017, the plaintiff applied to the Department of Family and Community Services (“FACS”) seeking information about her time as a Ward of the State and whilst she was living with the Schwarz family.

10 By letter dated 21 November 2017, FACS provided various records to her, together with extracts of information to which FACS had access. Some of the documents provided had been redacted because they contained personal information of other people, and for other seemingly appropriate reasons.

11 That letter included the following:

“Current NSW arrangements for compensation to care leavers provide for an assessment of individual claims on a case by case basis. The Department of Family and Community Services makes a determination based on the available evidence. If a legal liability is considered to exist, the claim is settled. There is no capital limit to the amount of compensation that can be awarded as a result of legal proceedings. Claimants also have the option of filing a legal suit against the Department of Family and Community Services.
..., so that a claim can be properly considered, it is important that specific details of the alleged abuses are provided. This includes, where possible, the names of the people involved, the circumstance in which the abuse took place, the names of any witnesses and details of the periods of time to which the allegations relate.”

12 On 21 February 2019, lawyers for the plaintiff wrote to FACS informing them that they had received instructions from Ms Palmer “... in respect to a claim for compensation arising from extensive abuse she suffered whilst in ‘out-of-home-care’ ”. The letter sought the production of further documents which had not been produced in 2017. As well, unredacted copies of various documents provided in 2017 were also sought.

13 On 2 October 2020, lawyers for the plaintiff wrote to FACS, informing them that the plaintiff had instructed them to bring proceedings against the State, claiming damages for the injuries she suffered as a consequence of being sexually abused over a period of six years by Mr Edwin Schwarz. That abuse was said to have concluded in 1982.

14 The letter informed FACS that the plaintiff wished, before any proceedings were commenced, to engage in attempts to resolve her claim without resorting to litigation. A series of documents were provided with that letter. Those documents included various departmental records and also an expert report from a psychiatrist. As well, submissions in respect of the claim were made. The letter requested a response in these terms:

“We now request any response the Department wishes to make to the representations and whether or not it is interested in engaging in negotiations with us for the purposes of exploring the resolution of our client’s claims.”

15 By letter dated 25 November 2020, the NSW Crown Solicitors Office (“CSO”) wrote to the plaintiff’s lawyers informing them that they had been instructed to act for the Department of Communities and Justice, the successor to FACS, (“the Department”) and acknowledged receipt of the letters previously sent by the plaintiff’s solicitor. That letter includes the following paragraphs upon which reliance was placed in argument:

“I advise that my client is committed to dealing with this claim in accordance with the NSW Government Guiding Principles for Government Agencies Responding to Civil Claims for Child Abuse (‘Guiding Principles’). ... I confirm that my client will engage with you and your client to explore a resolution of your client’s claims, and that I will now be corresponding with you on behalf of my client as the solicitor instructed to act for the Department.
By way of further response to your letter to Mr Kelly of my office dated 15 October 2020, I confirm that my client requests that you refrain from commencing legal proceedings until the parties have attempted early dispute resolution. In this regard, I confirm my client’s position is that it does not require you to file a statement of claim and that where possible, my client seeks to resolve matters without litigation.
...
Alternative Dispute Resolution
Following the conclusion of the steps required in order to assess your client’s claim (eg consideration of the medico-legal and other evidence), I will seek instructions as to its resolution. If instructed, I will then confer with you in relation to arrangements for an alternative dispute resolution process, such as settlement conference or mediation. If the matter is to be mediated, I will engage with you as to a choice of mediator, and my client will agree to meet those costs.”

16 In a letter dated 10 February 2021, the CSO wrote to the solicitors for the plaintiff setting out various facts and informing the plaintiff that the CSO was of the view that the State of Queensland was a proper respondent to the claim. In so informing the plaintiff’s solicitor, the CSO said:

“I note in particular that the sexual abuse alleged against Edwin Schwarz occurred after Ms Palmer was transferred to the wardship of the State of Queensland.”

17 The letter went on to say this:

“Furthermore, at present, it is not clear from the material I have received to date the legal basis upon which your client claims that the State of NSW is liable for the abuse she suffered. Could you please set out further particulars in support of your client’s claim, including the basis upon which it is asserted that the State of NSW owed your client a duty of care over the period of the events that are the subject of this claim, and the basis upon which it is asserted that the State of NSW has breached its duty of care.
My client is not in a position to agree to mediation until I have received a response to this letter and the material sought in [an earlier letter]. I confirm that any material you provide to me will be used only for the purposes of this claim.”

18 In a response from the plaintiff’s solicitors, by letter dated 1 March 2021, the plaintiff’s solicitor at length set out the facts and circumstances which were to be relied upon as the basis for the claim. The letter contended, in substance, that by reason of the fact that the plaintiff became a Ward of the State and subject to Ministerial control when taken together with the provisions of s 9 of the Child Welfare Act 1939 (NSW), the plaintiff remained a Ward of the State under the Minister’s control and under the Minister’s guardianship notwithstanding that she resided in Queensland or had been placed under the guardianship of the Queensland Director-General. The letter went on to say:

“The case your client has to meet is the acts of abuse both sexual assaults, physical beatings, intimidation, bullying and other forms of ill-treatment by Edwin Schwarz from in or about 1975 for at least four years when M/S Palmer was a child of 8 years of age, in the care of [the Schwarz family].
...
The documents produced by your client are replete with recordings of significant problems from the outset in 1974, regarding the placement of M/S Palmer with the Schwarz’s and later the Ladis’s. Our client contends that not only was there a complete failure by your client to properly investigate and enquire into the suitability of Mr and Mrs Schwarz before placing M/S Palmer and [her sister] into the care of the Schwarz family and later to continue in the Ladis household, but further your client completely failed to take appropriate action to avoid our client being exposed to the risk of significant harm, which harm ultimately eventuated.
...
...a common law duty of care was owed by your client to Ms Palmer in the exercise and/or failure to exercise statutory powers conferred on it under the [Child Welfare Act] ...
Further, a common law duty of care by reason of:
(i) the special relationship between the Department and M/S Palmer as a Ward of the State;
(ii) the foreseeability of harm;
(iii) the nature of harm (being the personal safety of M/S Palmer); and
(iv) the failure to exercise the Department’s powers.
Attached to this letter are some particulars of the allegation of the breaches of the statutory duty and common law duty of care. These particulars are also provided upon the agreed basis that the parties engage in mediation.”

19 That letter also made it plain that the allegation with respect to sexual abuse was that it was said to have occurred between “at least 1976 and 1980”.

20 By letter dated 29 March 2021, the CSO responded to that letter by drawing attention to the relevant NSW and Queensland legislation and contending that, with effect from 5 June 1974, when the guardianship of the plaintiff was transferred to the Queensland Director-General, the legal effect of that transfer was that the State no longer had responsibility for the plaintiff after that date. The letter drew attention to the fact that the alleged sexual abuse occurred after that date. The letter also included a statement to the effect that mediation was premature until the plaintiff’s position with respect to the State of Queensland was resolved.

21 By letter dated 8 April 2021, the plaintiff’s lawyers joined issue with the contentions of the CSO and maintained that her view of legislation and the effect of it was the correct one. It drew attention to the various authorities which the plaintiff contended supported its position. The letter rejected the suggestion by the CSO that the State of Queensland ought be joined, asserting that it was without merit. The letter concluded with this statement:

“Should your client remain of the same view as expressed in your 29 March 2021 letter to us, and after consideration of the material and submissions provided above, our instructions are to commence proceedings for appropriate relief including declaratory relief without delay.”

22 On 26 April 2021, a copy of a draft Summons was provided by the plaintiff’s lawyers to the CSO.

23 Although it is not clear what the terms of any response to that letter were, clearly the CSO did not agree to the proposed declarations because on 4 June 2021, the plaintiff’s lawyers served on the CSO the Summons and supporting affidavit which had been filed in this Court on that day. At the time of service, it was noted that the matter was listed for directions before this Court on 17 June 2021.

Summons

24 The Summons filed 4 June 2021, seeks relief in the following terms:

“1. A Declaration that in the events which have happened the Minister for the NSW Department of Youth and Community Services remained the Plaintiff’s guardian notwithstanding the Plaintiff’s removal from the State of New South Wales to the State of Queensland.
2. A Declaration as to the validity of the Minister removing the plaintiff from New South Wales.
3. A Declaration that in the events which have happened, the Minister acted as the Plaintiff’s guardian whilst she was outside the State of NSW and in the State of Queensland.
4. A Declaration that in the events which have happened the Minister was invested with all the powers and subject to all the duties of a common law guardian whilst the Plaintiff, as a Ward of the State of New South Wales, resided in the State of Queensland.
5. A Declaration that upon a true interpretation of section 139A of the Child Welfare Act 1939 (NSW) (as amended) (now repealed) the Minister’s common law guardianship power remained whilst the Plaintiff as a Ward of New South Wales was residing in the State of Queensland.
6. A declaration that in the events which have happened the Minister as guardian was responsible for the protection of the Plaintiff whilst a Ward of the State of New South Wales residing in Queensland.
7. Damages.
8. Extension of time.
9. Costs.”

25 On the coversheet of the Summons, the type of claim was described with these words:

“Child Welfare Act 1939 (NSW) (repealed) – Wardship – Torts”

Case Management

26 On 16 June 2021, the day prior to the first directions hearing, the CSO wrote to the plaintiff’s lawyers informing them of the orders which they would seek to have made at the first directions hearing. These orders provided for a timetable for the filing of affidavit evidence, submissions and for the listing of the Summons.

27 That proposal was responded to by the plaintiff’s solicitors indicating that the plaintiff was agreeable to the orders proposed, but that she sought a further order, namely, “an order be made in which we file a Statement of Claim”. The email suggested that the proposed minutes of order be forwarded to the Registrar.

28 Clarification was sought by the CSO of that proposal and the order was specified in this way: “that the proceedings thereafter continue on pleadings”.

29 The proceedings came before the Common Law Registrar on 17 June 2021. Counsel appeared for each of the parties. The orders had not been provided to the Registrar.

30 At the outset, counsel for the State, recognising that there had been some orders proposed prior to the directions hearing, nevertheless said this:

“... the declarations sought relate to whether the Minister for the relevant department in NSW remained, the plaintiff’s guardian bearing in mind this is an historical abuse claim. There has been correspondence passing between the parties, the state of NSW has contended that the state of Queensland was responsible in light of the transfer of guardianship, so there is a live issue there. In light of this live issue, in my submission this matter really should be proceeding by way of pleadings. And in any event if it were to proceed by way of Summons then there should be some pleadings on the Summons.”

31 Counsel indicated why there had been a change in the State’s position from the correspondence of the previous day. Counsel concluded his submission by saying:

“So I do apologise to my learned friend, despite the proposal that was put last night, the order that I would be seeking today is that the plaintiff file a statement of claim with however long the plaintiff requires.”

32 Counsel also indicated that he was confident his client would agree to a mediation, but it would be appropriate to have the State of Queensland participate in that mediation.

33 Counsel for the plaintiff responded:

“We acknowledge that ultimately after the declarations that are sought are dealt with, the proceedings proceed thereafter on pleadings because there is a tort claim.”

34 The Registrar clarified the position with the plaintiff’s counsel that the plaintiff was not agreeing to the State’s contention that a statement of claim needed to be filed at that time. Once the Registrar had clarified that position, she indicated to the State’s counsel that if it contended that it was not the correct way to proceed, namely to have the Summons heard first, followed by a statement of claim, then the State would need to bring a motion for orders to deal with that contention.

35 The Registrar made the following orders but indicated she was content to alter or amend the timetable if the parties later agreed:

“1. Defendant to file and serve any affidavit evidence and submissions in response to the Summons by 30 July 2021.
2. Plaintiff to file and serve submissions by 20 August 2021.
3. Defendant to file and serve submissions by 10 September 2021.
4. Plaintiff to file and serve submissions in reply by 17 September 2021.
5. The parties to file a joint Court Book by 24 September 2021.
6. The Summons be listed for hearing on 1 October 2021 with an estimate of 1 day.”

36 In her email to the parties, the Registrar added:

“The defendant may file and serve the foreshadowed notice of motion at any time and a proposed timetable for that motion will be considered when the matter is returnable before the Court.”

37 Thereafter, there was an exchange of correspondence in which the CSO sought the plaintiff’s consent to vacate the Registrar’s orders, and that she file and serve a statement of claim on a date suitable to her, and that the matter be listed for directions.

38 The plaintiff’s solicitors responded to that proposal by declining to agree to it and indicating that if the plaintiff successfully resisted the orders, it would seek costs and that they be payable forthwith.

Notices of Motion

39 On 16 July 2021, the CSO filed a Notice of Motion on behalf of the defendant. It seeks the following orders:

“1. Pursuant to r 49.19(1) of the Uniform Civil Procedure Rules 2005, the orders made by the Registrar in Common Law on 23 June 2021 be set aside and the listing for hearing on 1 October 2021 be vacated.
2. The plaintiff to file and serve a statement of claim on or before a date suitable to the plaintiff.
3. List the matter for directions hearing before the Registrar on a date to be fixed.
4. In the alternative to orders 1-3, the summons filed on 4 June 2021 be dismissed.”

40 The State indicated that it was not seeking Order 4 when the Motion came on for hearing before me.

41 After that Motion had been filed and served, the plaintiff filed a Notice of Motion on 28 July 2021 in which she sought the following relief:

“1. That part of the proceedings in the Common Law Division in which the summons seeks declaratory relief be transferred to the Equity Division pursuant to s 54 of the Supreme Court Act 1970.
2. The defendant [to] produce to the Court the documents described in the Notice to Produce dated 28 June 2021 and served on the defendant on 28 June 2021.”

42 At the commencement of the hearing of the two Notices of Motion, the State produced documents in unredacted form in answer to the Notice to Produce dated 28 June 2021, but declined to produce other documents in unredacted form on the basis that there was no legitimate forensic purpose for the production of those documents or for the plaintiff to have access to them.

43 In light of the quantity of documents which had been produced, the parties agreed that the resolution of Order 2 of the defendant’s Notice of Motion ought stand over to a future date.

44 Accordingly, submissions were not made with respect to that order, and the Court was only asked to consider Order 1 of the plaintiff’s Motion.

45 Written and oral submissions in support of each of the Notices of Motion and contrary to the relief being sought were filed and made by each of the parties.

Plaintiff’s Submissions

46 It is convenient to deal with each of the plaintiff’s and defendant’s submissions on both Motions together.

47 The plaintiff submitted that by reason of the nature of the dispute, which had crystallised in the course of correspondence prior to the commencement of proceedings, there was a discrete legal issue which was central to the determination of the plaintiff’s tortious claim for damages against the State. The plaintiff submitted that that central question was (putting it slightly differently from the way in which the declarations were framed) whether, pursuant to the provisions of the Child Welfare Act or else at common law, the NSW Minister’s guardianship of the plaintiff ceased during the period whilst the plaintiff was residing in Queensland – including both before and after the declaration by the Queensland Director-General of acceptance of guardianship responsibility.

48 The plaintiff submitted that such an issue had been raised by the defendant contending that it ceased to have any obligation to the plaintiff whilst she was in Queensland, and that there was no prospect of a successful mediation (which had been promised by the State) whilst ever it took that view.

49 The plaintiff said that the issue was one easy of resolution because the facts were largely, if not entirely, uncontroversial and, at least in the plaintiff’s submission, the law was clear.

50 For that reason, the plaintiff submitted that approaching the determination of this central issue by seeking declarations of the kind which had been sought was the most appropriate course to follow.

51 The plaintiff then submitted that having regard to that central issue, which required a determination about the proper interpretation of the Child Welfare Act insofar as it created guardianship responsibilities and the proper interpretation of the obligation of the Minister as a “common law guardian”, the issues for determination aligned with the Court’s parens patriae jurisdiction which was ordinarily exercised by the Court in the Equity Division. She submitted that it was appropriate for those declarations to be heard and determined in that Division.

52 The plaintiff accepted that if she was successful on her Motion for transfer, the hearing date of 1 October 2021 would need to be adjourned. Coincidentally, the effect of the defendant’s Motion was the same with respect to that hearing date.

53 The plaintiff also accepted that, although the actual orders of the Registrar did not make this plain, the only matter which she was seeking to have determined on 1 October 2021 was the declaratory relief set out in her Summons and not the whole of her claim at common law for damages.

54 The plaintiff accepted that she could not proceed with a claim for common law damages without pleading in a Statement of Claim how that claim arose, and all of the material facts, matters and circumstances required to enable such a claim to be fairly determined.

55 The plaintiff drew attention to the fact that as the principal order sought in the defendant’s Notice of Motion was one for a review of a Registrar’s decision about a matter of practice and procedure, the Court would be reluctant to intervene having regard to the fact that the Registrar’s orders were made as a matter of her discretion.

56 Finally, the plaintiff somewhat faintly, submitted to the fact that the defendant had consented to the orders which it now sought to overturn on review, and that in seeking to change its position, the defendant was acting in an unconscionable manner, “... giving rise to an equitable estoppel”.

Defendant’s Submissions

57 The defendant submitted that having regard to the fact that the essence of the cause of action upon which the plaintiff sues the State is a common law claim for damages, it is was inappropriate for any part of such a claim to be determined by one or more declarations, and that consistently with the usual practice, a tortious claim for damages ought be the subject of a proper pleading, in this case by the plaintiff filing a Statement of Claim.

58 The defendant submitted that whilst it was correct that it had formulated some proposed orders for the Court on the evening before the case management hearing on 17 June 2021, it was made plain at the outset of the hearing before the Registrar by the defendant’s counsel that the State sought an order that the plaintiff file a Statement of Claim and that the matter proceed by way of pleadings rather than by way of the determination of declarations on a Summons. The defendant notes that the Registrar did not accept that submission but ordered that if the State was to seek such an order, it had to do so by a Notice of Motion, which it had done.

59 The defendant pointed to what the Registrar said in rejecting its submission about the matter proceeding on pleadings. The Registrar had said to the defendant’s counsel that, in circumstances where the plaintiff was wishing to progress the Summons and the State was contending that the correct way to proceed was by pleadings, then the appropriate way to deal with that dispute was to put a Motion on. Particularly was that so in circumstances where there was no agreement that there should be a Statement of Claim.

60 The State submitted that, having regard to the orders that were made, a hearing of only the declarations, which although not specified to be done so by the Registrar, was the way in which the plaintiff proposed to proceed, was of little or no utility because any such declarations would not determine the plaintiff’s entitlement to recover damages, and that even if the declaratory relief was granted in the terms sought, the plaintiff would still need to plead all of the allegations of the scope and content of a duty of care and the allegations of a breach of a duty of care, together with causation. As well, the State pointed to the absence of any facts being identified as the basis for the declarations. Put differently, the State submitted that the benefit of having facts pleaded in a Statement of Claim was that any other kind of preliminary legal issue had a factual construct for determination. In those circumstances, the defendant submitted that filing a Statement of Claim at the outset would better achieve the overriding purpose of the Civil Procedure Act 2005 and the UCPR.

61 The defendant pointed to the fact that the plaintiff had lodged a Notice before Action under the relevant Queensland legislation with the State of Queensland indicating that she made a claim against the Queensland Department. The defendant submitted that, in those circumstances, it was entitled to see the way in which the cause of action against it was fully pleaded, at least so that it could consider joining the State of Queensland if that was appropriate.

62 Insofar as the plaintiff submitted that a review of a Registrar’s decision involved an exercise of a degree of restraint by the reviewing court, particularly where the decision of the Registrar concerned a matter of practice and procedure, the defendant drew attention to the decision of the Court of Appeal in Tomko v Palasty (No.2) [2007] NSWCA 369, where Basten JA said that application by way of review did not require the demonstration of error on the part of the registrar, nor did it restrict the court reviewing the decision below to a reconsideration of the material that was before the primary decision maker.

63 However, by reference to Tomko, the defendant accepted that a court may be less inclined to intervene in relation to a decision concerned with the management of an ongoing proceeding as opposed to one which terminated the proceeding or prevent its commencement.

64 As well, the defendant pointed to the statement by Basten JA that a court may more inclined to intervene “... on a review based on fresh evidence, changed circumstances or where error was demonstrated in the decision under review”: Tomko at [52(4)].

Discernment

65 It is convenient to first consider the issue of whether the claim by the plaintiff should proceed by way of the filed Summons seeking declarations and damages, or whether it should proceed by way of a Statement of Claim.

66 The plaintiff’s contention that it is more efficient to proceed by way of declarations which address a central area of dispute in a quick and cheap manner, has superficial attraction. No doubt that is why the Registrar, in the middle of a busy management list, was not prepared to set aside the plaintiff’s choice of commencement of proceedings by a Summons.

67 However, the submission does not pay adequate attention to the nature of the cause of action. The plaintiff’s cause of action is for damages for breach of a common law duty said to be owed by the defendant to her, the nature and content of which is unstated in the Summons, but has been referred to generally in the parts of correspondence to which reference has been made at [15] – [21] above.

68 It also seems that the plaintiff intends to allege the existence of a statutory duty arising out of legislation, the breach of which entitles the plaintiff to maintain a claim for damages.

69 It is not clear, as yet, whether the plaintiff, when pleading her cause of action, would also allege that the State is in some way or another vicariously liable for the conduct of the foster family who perpetrated sexual and physical abuse upon her, or else perhaps for the actions or inactions of the State of Queensland.

70 Any of the causes of action referred to in [67] and [68] require proof of fault on the part of the State. A claim for vicarious liability concentrates on the liability created by the perpetrator and whether the State by reason of the relationship between it and the perpetrator can be held legally liable for the consequences of the perpetrator’s conduct.

71 In the circumstances here, where the plaintiff was a ward of the State and, at least so far as the State contends, the guardianship and care of the plaintiff was transferred to the Queensland Department, it will be necessary for the plaintiff to articulate, for the purposes of the declaration sought, the statutory basis (if any) relied upon to give rise to the existence of the on-going obligations resting on the relevant Minister, or the Department. Alternatively, or perhaps additionally, the plaintiff may also seek to rely upon a general law obligation of guardianship, which would also need to be identified, and the nature and context of that obligation specified.

72 Different considerations apply in either of those circumstances to the existence of a duty of care and the nature and content of that duty. Indeed, the existence of a duty of care will depend upon a range of facts which are not specified in the Summons.

73 As it is presently constructed, other than by exchange of correspondence, the defendant is not in a position to know what the plaintiff’s cause of action is as a matter of substance and detail. It does not know what facts have to be investigated and determined, nor does it know what matters of fact or obligations of law that it can or cannot admit.

74 Equally, the terms of the declarations sought, if granted, would not automatically enable a court to determine any issue of the relevance or admissibility of evidence at any future hearing.

75 As well, the structure proposed by the plaintiff of first having declarations, unconstrained by any identification of the bounds of the facts and issues to be determined, must be followed, as the plaintiff accepts, by a pleading. This is a bifurcation of a case. But it is said by the plaintiff that some declarations as to a controversy raised in correspondence would assist the plaintiff in determining what her cause of action was. However, that is not how the common law operates.

76 It is for the plaintiff to plead a cause of action, and a defendant to respond making such admissions as are appropriate or putting such matters in issue as are appropriate. casein that way, the matter then has pleadings which define the issues and a trial with relevant evidence can then occur.

77 If the plaintiff, having pleaded a cause of action, and the defendant, having responded with an identification of the facts and matters in issue, can identify a discrete separate question which is apt for determination as a preliminary matter, then the plaintiff has available to her the mechanism provided by Pt 28 of the Uniform Civil Procedure Rules 2005 (NSW) for the determination, in advance of all other issues, of a separate question.

78 Particular care needs to be taken in engaging in such exercise as the apparent benefits are more often chimerical rather than real: see Tepko Pty Ltd v Water Board [2001] HCA19; (2001) 206 CLR 1 at [168].

79 It may be that in the circumstances of this case, after the pleadings are closed, such a question can be identified (which is apt for separate determination) about the extent of the defendant’s legal obligation, but it is premature for any such question to be identified at this stage before the pleadings are closed and in the absence of a factual context.

80 This is a matter which, on its face, ought to have been commenced by a Statement of Claim and which is inappropriate to be determined by the procedure contemplated by the plaintiff, namely a Summons seeking declarations followed by a Statement of Claim at some later stage.

81 Accordingly, I am persuaded that the proceeding is one where the plaintiff ought be required to file a Statement of Claim, and thereafter the matter ought proceed in the conventional way.

82 As is apparent from earlier discussion in this judgment, the Registrar made the orders fixing the proceedings for hearing on 1 October 2021, knowing that it was likely that the State would file a Motion seeking an order that a Statement of Claim be filed. Rather than hold up the proceedings, the Registrar fixed them for a hearing on 1 October 2021. That hearing date will need to be vacated.

83 In light of the fact that I have determined that the appropriate way in which this matter should proceed is by the filing of a Statement of Claim, that constitutes a sufficient change of circumstances to justify upholding the order in the defendant’s Notice of Motion seeking a review of the Registrar’s orders. Given that the plaintiff is to proceed by way of Statement of Claim, then it is appropriate that all of the orders made by the Registrar be vacated because, as earlier indicated, I am satisfied that proceeding by way of declarations is an inappropriate course of action. The fact that the defendant consented to the Registrar’s orders after being told that it was to file a Notice of Motion for pleadings does not stand in the way of this conclusion.

84 It will be necessary for consequential orders to be made.

85 These conclusions leave outstanding the determination of the plaintiff’s Notice of Motion to transfer the proceedings to the Equity Division so as to enable the declaratory relief to be given. Since I have found that the appropriate way to proceed is by way of Statement of Claim, it follows that I would not be prepared to grant the defendant’s Motion to transfer the matter to the Equity Division. This is a common law claim, it is to proceed by way of Statement of Claim and it ought remain in the Common Law Division.

86 Even if I was not persuaded that a Statement of Claim is what is required, I would not have transferred the matter to the Equity Division in the exercise of my discretion. The mere fact that declarations are sought is not a reason to transfer a matter to the Equity Division. The substance of the matter is a common law claim for damages. It, in all of its parts, ought be heard and determined in the Common Law Division where it was commenced.

87 On either basis, it is inappropriate to transfer the matter to the Equity Division. I would not be disposed to make order 1 as sought by the plaintiff in her Notice of Motion.

Summary

88 In summary, I have concluded that the matter ought proceed by way of the pleading of a Statement of Claim and on pleadings, rather than by a Summons. I have concluded that it is inappropriate for the Court to hear and determine the declarations sought by the plaintiff. I have also concluded that it is inappropriate to transfer the matter to the Equity Division.

89 I also note, as earlier recorded, that order 2 of the plaintiff’s Notice of Motion has been stood over for further consideration by the parties.

90 In those circumstances, it will be a matter for the parties to prepare short minutes of the Court’s orders providing for an order that the matter proceed by way of pleadings and providing for an order for the filing of a Statement of Claim by the plaintiff by a specified time, and such other orders, including as to costs, which will enable the matter to progress towards a resolution.

91 In all of the circumstances, it is appropriate to invite counsel for the parties to formulate the orders for which they each contend and submit them to the Court within seven days of delivery of this judgment.

92 The matter will be listed for further directions and the making of orders in accordance with the Notices of Motion, and any other case management orders before me, on 8 October 2021.

Orders

93 I make the following orders:

(1) Parties to prepare short minutes of the Court’s orders.

(2) Vacate the hearing date of 1 October 2021.

(3) List the proceedings for further directions before Garling J on 8 October 2021.

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