Mary Smith (a pseudonym) v Secretary Department of Communities and Justice [2026] NSWDC 249 (Link to Caselaw).
The plaintiff is the mother of a child who was born in 2016. In 2017 the child was placed by the defendant in the care of the maternal grandmother and a maternal uncle. The child has been with those carers ever since.
The plaintiff has filed proceedings in this court seeking damages based upon the tort of negligence. Put broadly, the plaintiff alleges that the defendant failed to properly discharge its statutory obligations and that as a consequence of the conduct of the defendant, the plaintiff has suffered psychological and emotional injury.
The defendant filed a motion seeking to have the statement of claim dismissed. The primary submission made by the defendant was that it did not owe the plaintiff a duty of care. The defendant relied upon the decision of the High Court of Australia in Sullivan v Moody [2001] HCA 59; 207 CLR 562. The defendant also relied upon the decision of O’Keefe J in Wilson v State of New South Wales [2001] NSWSC 869. That decision was delivered shortly prior to the decision of the High Court in Sullivan v Moody, but is entirely consistent with the reasoning and the result in the High Court. The case concerned steps taken by the Department of Community Services (DOCS) in relation to the care and protection of children. Parents sued alleging that they had suffered psychological injuries as a result of actions taken by DOCS.
The court held at [57]:
I accept the primary submission put for the defendant in these proceedings. The Secretary, and the Department, did not have a duty of care to the plaintiff, in carrying out its functions in relation to the care and protection of the plaintiff’s child. Thus no reasonable cause of action is disclosed upon the Statement of Claim or the Amended Statement of Claim put forward by the plaintiff. It is appropriate for relief to be granted under r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).
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