IZG2 v State of New South Wales [2024] NSWSC 1228 (Link to Caselaw).
A short interlocutory judgment, but of interest for its guidance on pleadings in a cross claim in New South Wales.
The plaintiff (IZG2) commenced proceedings against the State as defendant seeking damages against it arising from the alleged conduct engaged in by the cross-defendant whilst the plaintiff was a student at Maroubra Bay High School in 1978 and the cross-defendant was a teacher at that High School. The State resolved that principal claim by admitting on the pleadings that it was liable to the plaintiff and agreeing to pay the plaintiff a sum of money. A consent judgment was entered.
The Amended Statement of Cross-Claim arose subsequently to, and out of the fact of that settlement. The State claimed indemnity or contribution against the cross-defendant, Ms Lam, pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (“the Act”) together with interest and costs.
The interlocutory judgment dealt with an application by the defendant for leave to file an amended cross claim. Leave to file the document in its current form was refused.
Garling J at [17] said:
In my view, the pleading in the proposed Amended Cross-Claim requires that the State plead by way of particulars… the respect or respects it pleads that it is a tort-feasor liable to the plaintiff. It may be that the State does not plead any of the breaches pleaded by the plaintiff but pleads a different breach which formed a central integer in its assessment of whether or not it should admit liability and enter into settlement negotiations. However, it is necessary for the State to clearly plead and specify the respect or respects in which it was a tort-feasor.
And at [22], the cross claimant was required:
… to clearly particularise whether the knowledge amounting to foreseeability is actual knowledge of a tort-feasor or something which the tort-feasor ought to have known, and if the latter, the matters and circumstances which gave rise to such constructive knowledge.
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