BB6 v State of New South Wales  NSWSC 1516 (on Caselaw) is another interlocutory matter dealing with pleadings issues, in the context of an application for leave to file an amended statement of claim in an abuse matter.
Of interest is the Court’s discussion of the way in which Division 4 of Part 1B of the Civil Liability Act 2002 (NSW) is structured and how it is intended to operate in practice. At  –  the Court said:
The first matter is that differently from the usual position, proceedings of the kind here brought by the plaintiff may be commenced or continued against an unincorporated organisation in its ordinary name. The plaintiff is entitled to use the name of the organisation or “… a name reasonably sufficient to identify the organisation as if the organisation had legal personality”: s 6K of the CLA.
Where that occurs, that unincorporated organisation is itself entitled (providing consent is obtained) to appoint an entity (i.e. a body which is capable of legally suing and being sued, and which may include the trustees of a trust) as a “proper defendant” for the organisation: s 6L of the CLA.
Any such appointment must be made in accordance with r 7.4 of the Uniform Civil Procedure Rules 2005 (“the UCPR”). That rule makes it a precondition to the appointment of an entity as a proper defendant that the entity’s consent in the approved form has been filed. That approved form, Form 162, makes it plain that such consent follows the commencement of proceedings against the unincorporated organisation, which then engages in the process described.
An entity so appointed must be suitable: see s 6M of the CLA.
Once appointed as the proper defendant, the entity has all of the powers and responsibilities set out in s 6O of the CLA to enable it to conduct the litigation on behalf of the unincorporated organisation. It is notable that s 6O(c) provides that the unincorporated organisation “must continue” to participate in the proceedings. Pursuant to s 6O(d), the unincorporated organisation may be the subject of substantive findings by the Court in the proceedings as if it had a legal personality. Such findings would, if made, extend to findings of negligence, or vicarious liability for the conduct of an individual.
The provisions of Division 4 of Part 1B of the CLA do not convert the proper defendant into the original tortfeasor. On the contrary, the provisions of Division 4 recognise that the proper defendant has a separate existence from the unincorporated organisation and is not deemed in any way to be the original tortfeasor. The proper defendant is entitled to fully conduct the litigation including relying on any defence or immunity that would be available to the unincorporated organisation. That is because it is the proper defendant which is ultimately obliged to meet any award of damages obtained by a plaintiff, because of the conduct of the unincorporated organisation.
It is an error to interpret Division 4 of Part 1B as enabling a plaintiff to simply substitute a third-party entity for an unincorporated association as if the third‑party organisation is in truth the original tortfeasor and plead a cause of action on that basis. On the contrary, Part 1B erects a scheme which enables litigation against unincorporated associations to be brought and continued to judgment and for any judgment obtained against an incorporated organisation to be enforced against another entity that falls within the definition of a “proper defendant” and which has been joined to, and is entitled to, fully participate in the proceedings.
Other pleading issues were then addressed by the Court, followed by consideration of issues in respect of pleaded causes of action, the pleaded duty of care and the approach to identifying the risk of harm.
In relation to vicarious liability, the Court noted at  that there was a pleading that each of the defendants is vicariously liable for the conduct of each of the perpetrators. However as stated at :
As is apparent, there was not necessarily an employer/employee relationship between each defendant and each perpetrator. Some of the alleged perpetrators, for example YY, were employees, others clearly were not – a visitor ZZ, a neighbour or fellow residents. This variety of relationships means that it is necessary for any pleading of vicarious liability to set out the existence of factors as between the defendant and each of the particular perpetrators for whom it is said to be responsible. A mere assertion of the fact of vicarious liability does not provide the defendant with any understanding of how it is said their liability actually arises. The third ASOC simply does not engage in any such pleading. It is, in that respect, entirely inadequate.
Leave to file the proposed amended pleading was refused.