Maragol v Berry Patch Preschool Kellyville Ridge Pty Ltd [2024] NSWSC 1077 (Link to Caselaw).
An interlocutory application was made by the State of NSW in the context of this claim, which arose following the death of a child while sleeping at a childcare centre owned and operated by the first defendant, Berry Patch Preschool Kellyville Ridge Pty Ltd. The plaintiffs allege that the death occurred as a result of a breach of the duty of care of Berry Patch, who owed the deceased and/or her parents a common law duty of care, which it breached.
The State was named was second defendant. The plaintiffs alleged that the State breached a duty imposed upon it, (either at common law, or a statutory duty), in the manner in which the State exercised its supervisory and/or regulatory functions over the childcare centre, or the manner in which it did not exercise such functions.’ (Children (Education and Care Services National Law Application) Act 2010 (NSW)).
The State moves the Court to strike out the relevant parts of the pleadings relating to its liability on the basis that it is inconsistent with the overriding purpose described by s 56 of the Civil Procedure Act 2005 (NSW) and because it has a tendency to cause prejudice, embarrassment or delay in the proceedings, contrary to the Uniform Civil Procedure Rules 2005 (hereinafter “UCPR”) r 14.28.
At [22] the Court noted that the State describes the claim against it as “novel” in that it alleges a “novel duty”. Novelty, as earlier stated, is not a bar to proceedings. Nevertheless, it is unusual, in circumstances such as the present, for the Regulatory Authority to be the subject of claim in circumstances where the service provider is alleged to have breached the duty imposed upon it. To say the least, the regulatory body is one step, at least, removed from the direct cause of injury or death.
The Court held at [40] – [42], striking out part of the statement of claim against the second defendant:
It is necessary to point out that the power reposed in the Regulatory Authority, is, it seems in the plaintiffs’ case, a public duty, or a statutory duty, being, on the pleadings in part a failure to exercise a regulatory function. The duty is, therefore, governed by the provisions of ss 43, 43A and 44 of the Civil Liability Act.
Notwithstanding the promulgation of those last-mentioned sections of the Civil Liability Act, there is no pleading as to how such provisions apply and how the State is, as a consequence of its regulatory function, liable. In other words, the plaintiffs are required to plead how the authority could have been required to exercise such a function in proceedings instituted by the plaintiffs, and/or how the act or omission of the Regulatory Authority was “so unreasonable” that no authority having such a power could properly consider that which was done a reasonable exercise of the power.
For the foregoing reasons, and particularly given that the plaintiffs have the capacity to re-plead the issues raised, the failure to plead the relevant aspects to which reference has been made is such that the State is being required to engage in conjecture as to that which it was required to do, and how the plaintiffs put their case and establish liability and causation. In those circumstances, the Court considers that the provisions of paragraphs [8], [9], [11], [21] and [22] are embarrassing and, in the absence of an appropriate and detailed pleading, would cause delay.
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