Fildes v Queensland[2008] QDC 10

DISTRICT COURT OF QUEENSLAND

1. [1]
   Adam, a child who was then just over six weeks old, died on 15 February 2002. In November 2004 his mother was convicted in the Supreme Court at Brisbane of his manslaughter, and sentenced to a term of imprisonment. Adam was one of three boys, triplets, born on 2 January 2002. The plaintiff was their father, and he and the mother were also the parents of another, somewhat older child. They had separated by the time of Adam’s death, and the four children were residing with the mother.^[1]

2. [2]
   Shortly after Adam’s death the plaintiff commenced proceedings in the Family Court against the mother seeking orders that the surviving children reside with him. There was a hearing in the Family Court before a registrar on 26 March 2002, in the course of which evidence was given by an officer of the Department of Families, the department having been notified soon after the death of Adam by the Queensland Police of the circumstances surrounding his death. On 28 March 2002 Registrar Wilke made orders that the two surviving boys live with the plaintiff but the older child, a daughter, live with her mother. Despite that, the boys were not able to live with the plaintiff until 5 April 2002; the plaintiff alleges this occurred because the department prevented him from having the care of them prior to that time. In April 2002 the mother was arrested and charged with manslaughter and other charges; on 3 May 2002 the Family Court ordered that the three children reside with the plaintiff, and that they have no contact with the mother.

The action

3. [3]
   By a claim and statement of claim filed 15 October 2007 the plaintiff brought an action against the State of Queensland for damages, including exemplary damages, for negligence or breach of statutory duty or both. The plaintiff alleged that under the provisions of the Child Protection Act 1999 “and generally” the defendant through the department and its officers owed to the plaintiff duties to protect the surviving children, and to take such action as was warranted to protect them. It was alleged that there was a breach of those duties during the period from 15 February 2002 to 6 March 2002 in respect of the children, essentially in failing to do anything which would have the effect of taking them out of the hands of the mother. Almost all of the particulars of breach relied on begin with the word “failed”.

4. [4]
   The significance of the date 6 March 2002 is that it was alleged that the next day the two surviving triplets were admitted to hospital suffering from injuries consistent with their being in a serious motor vehicle accident:  para 11(f). It was further alleged in para 22 that there was a breach of the duties in that the defendant:

3. “(a)
   permitted or allowed [the officer] to give [that officer’s] evidence in the Family Court proceedings;

2. (b)
   breached the provisions of the Family Court order dated 28 March 2002 particulars of which are set out in paragraph 16 thereof.”^[2]

5. [5]
   The pleading then alleged that, had the defendant not breached its duties, it is likely the children would have been placed in the care of the plaintiff and the plaintiff would not have incurred certain legal costs and expenses in respect of the Family Court proceedings: para 23. It was alleged that those proceedings had been unnecessarily lengthened because of the evidence given by the officer:  para 15(d). It was alleged that the plaintiff had suffered loss and damage as a result of those breaches, namely legal costs in a particular amount in respect of the Family Court proceedings. A claim for exemplary damages was also pleaded.

6. [6]
   A notice of intention to defend and defence were filed on 22 November 2007. The defendant provided further particulars by a document filed on 20 December 2007. On 24 January 2008 an application was filed seeking summary judgment pursuant to r 293. That application was not served eight business days before the date of the hearing, as required by r 296(1). On 1 February 2008, the last business day before the date of the hearing, an amended application was filed and served, seeking in the alternative that the proceeding be struck out for failing to disclose a cause of action, under either the inherent jurisdiction of the court or r 171 of the UCPR.

7. [7]
   Those rules provide different tests under which a proceeding may be terminated. Under r 171, and under the inherent jurisdiction of a court, a proceeding will be terminated by being struck out if it is “so clearly untenable that it cannot possibly succeed”.^[3]  The exception to this is where the deficiency in the pleading is a deficiency only in point of pleading; in those circumstances, the appropriate course is simply to strike out the existing pleading but with liberty to replead. On the other hand, under r 293 summary judgment will be given to a defendant if the court is satisfied the plaintiff has no real prospect of succeeding on all or part of the plaintiff’s claim, and there is no need for a trial of the claim or the part of the claim. That rule is to be applied in the way laid down by the Court of Appeal in Deputy Commissioner for Taxation v Salcedo [2005] 2 Qd R 232.

The defendant’s arguments

8. [8]
   The defendant raised a number of criticisms of the claim as currently pleaded, but fundamentally it was alleged that the plaintiff had no claim because the defendant did not owe him a duty of care, either at common law or by statute. Under the Child Protection Act 1999, the purpose of the Act is to provide for the protection of children (s 4), and the Act is to be administered under the principle inter alia that the welfare and best interests of a child are paramount:  s 5(b). Another principle stated in s 5(e) was that the “powers conferred under the Act should be exercised in a way that is open, fair and respects the rights of people affected by their exercise, and, in particular, in a way that ensures:

1. (i)
   actions taken, while in the best interests of the child, maintain family relationships and are supportive of individual rights and ethnic, religious and cultural identity or values; and

2. (ii)
   the views of the child and the child’s family are considered; and

3. (iii)
   the child and the child’s parents have the opportunity to take part in making decisions affecting their lives.”

9. [9]
   Section 14 of the Act provides that if the chief executive becomes aware of alleged harm or alleged risk of harm to a child and reasonably suspects the child is in need of protection, the chief executive must immediately have an authorised officer investigate the allegation and assess the child’s need of protection, or take other action the chief executive considers appropriate.

10. [10]
    It was submitted that, because of the welfare and best interests of the children concerned were paramount, no duty could arise either at common law or by statute which was inconsistent with that duty to the child, and that any duty to a parent of a child in relation to the placement of the child was necessarily inconsistent with that duty, so that it could not be recognised. Reliance was placed on the decision of the High Court in Sullivan v Moody (2001) 207 CLR 562. In that case, the court in a unanimous judgment held that there was no duty to take reasonable care to protect the interests of persons who were suspected of causing harm to children or being investigated for possible sexual abuse, as that would be inconsistent with the proper and effective discharge of the statutory responsibilities involved in investigating reported allegations of sexual abuse. The court said at para 60:

“The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which power or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject for a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specialised class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations.”

11. [11]
    It was submitted for the defendant in the present case that the duty alleged by the plaintiff would conflict with the paramount duty the defendant and its employees had to advance the welfare of the children, and that imposing a duty to take care to protect the interests of a parent of the children, a breach of which would result in damages, would be entirely inconsistent with the defendant’s paramount duty in relation to the welfare and best interests of the children.

12. [12]
    Reliance was also placed on the decision of the Court of Appeal in Queensland in Cloud v State of Queensland [2002] QCA 458. That case dealt with a number of issues, but one of them was whether there could be a duty on the State of Queensland, through the same department, owed in favour of the father of the child when assessing the appropriateness of a potential adoption of the child. In concluding that there was no right of action against the State of Queensland in these circumstances because there was no duty,^[4] Jerrard JA, with whom the other members of the court agreed, referred to Sullivan v Moody, noted that that case concluded that it was inappropriate to impose a duty on the defendant in favour of the persons who were plaintiffs in that matter, and continued at [39]:

“That was because it would be inconsistent with the proper and effective discharge of their responsibilities in a statutory scheme, formed for the protection of children in which those defendants were required to treat the interests of the children as paramount, to subject them to a legal duty to take care to protect the interest of the parents of the children, breach of which would result in damages. In this case the interests of a parent in not suffering the immeasurable loss of a child to adoption are quite different from the needs, welfare and best interests of the child. The judgment in Sullivan v Moody positively discourages the view that there can coexist both a legal duty, to parents thought not capable of caring for a tiny child, to protect the interests of those parents, and a statutory responsibility to act in that child’s best interests. The principles discussed in that case are obviously applicable in this one.”

The plaintiff’s arguments

13. [13]
    The plaintiff’s answer to this point was succinct: what was alleged was not a duty to him which might be in some way inconsistent with the department’s duty to the children; he alleged that there was a duty owed to him to act in the best interests of the children, and it was the department’s failure to do that which caused him loss. His case is essentially that acting in the best interests of the children required them to be taken out of the hands of their mother as quickly as possible, at least once the department was informed about the situation and had had the opportunity to investigate it, and that, had this occurred, the children would have been placed in his hands without the necessity for further litigation in the Family Court, and he would have been saved the cost of it. The duty alleged to be owed to him was to give effect to the paramount duty to the children, and was necessarily not inconsistent with it.

14. [14]
    It was pointed out that Sullivan v Moody expressly recognised that duties can be owed to more than one person, and that the difficulty raised in that case disappears if the duty alleged to be owed to the plaintiff was not inconsistent with the duty to the children. Cloud was distinguished in this respect by pointing out that the duty alleged was not to protect the interests of the plaintiff, as distinct from the interests of the children, except insofar as the interests of the plaintiff coincided with the interests of the children, that is, where a failure to protect the interests of the children could lead to loss to the plaintiff.

15. [15]
    It seems to me that, in circumstances where what has been alleged is a duty which is entirely consistent with the interests of the children, there is some force in that distinction. It may be that this is a novel duty in the sense that there is no particular authority on the point, but what matters for present purposes is that there is no clear authority against this point, the authorities relied on being distinguishable on this basis. For present purposes, I am not concerned with whether there is a duty in these circumstances, but only whether it is sufficiently clear to satisfy one or other of the tests referred to earlier that there is not a duty. I think the authorities relied on by the defendant to support its argument on this point is distinguishable. Counsel for the defendant conceded that, if the children suffer loss as a result of negligence on the part of officers of the department, they would have an action for damages against the defendant; there was no specific argument that the Child Protection Act 1999 did not give rise to a cause of action for breach of statutory duty, or excluded any action for negligence at common law.

16. [16]
    It occurs to me that if the children suffered injury as a result of the negligence of the department and as a result the plaintiff as their father incurred expense which he was legally liable to pay himself for medical treatment for them, he might have had an action against the department to recover his medical expenses. There is at least some authority in support of that view,^[5] although the discussion of this in Luntz^[6] at [10.2.2] suggests that strictly speaking there is no cause of action where the children are too young to sustain the fiction that the father has lost services as a result of their injury. Nevertheless, this does reflect the fact that, at least in some circumstances, the common law recognised that a duty to take reasonable care to avoid causing injury to a child carried with it a related duty to take reasonable care to avoid causing financial loss to the child’s father.^[7]  If there is a good cause of action for medical expenses in these circumstances, there is perhaps not a compelling distinction between incurring medical expenses to try to repair the harm done, and incurring legal expenses to try to prevent the harm, or further harm, being done to the children.

A claim for economic loss

17. [17]
    That brings me to the second argument advanced on behalf of the defendant: that this was an action where the plaintiff’s loss was economic loss only, and the circumstances under which such a cause of action are permitted are quite limited, and do not extend to anything like the present case. The first part of that proposition is certainly correct. In Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529, it was held that an action for economic loss was available in circumstances where the plaintiff suffered economic loss but no property damage as a result of damage to an oil pipeline owned by someone else caused by the negligence of a dredge operator.

18. [18]
    Gibbs J said at p 555:

“It is still right to say that as a general rule damages are not recoverable for economic loss which is not consequential upon injury to the plaintiff’s person or property. The fact that the loss was foreseeable is not enough to make it recoverable. However, there are exceptional cases in which the defendant has knowledge or means of knowledge that the plaintiff individually, and not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence, and owes the plaintiff a duty to take care not to cause him such damage by his negligent act. It is not necessary, and would not be wise, to attempt to formulate a principle that would cover all cases in which such a duty is owed.“

19. [19]
    Stephen J agreed that some control mechanism was necessary which his Honour essentially based on the notion of proximity which was to be determined through the gradual accumulation of decided cases:  p 575. Mason J also held that “economic damage is recoverable when it is sufficiently proximate to the negligence”:  p 592. In Perre v Apand Pty Ltd (1999) 198 CLR 180 the court held that the defendant was liable to the plaintiff for economic loss suffered as a result of a bacterial wilt infection in their potato farm caused by the defendant’s negligence. Gleeson CJ recognised that once an exclusionary rule ceased to apply generally it lost its principal justification, but said the considerations underlying the rule remained cogent, and it was clear that his Honour required more than mere foreseeability of economic harm to give rise to a duty not to cause that harm. At [10] he said that, at least in relation to the giving of advice or information, questions of reliance and actual foresight of possible harm or the foresight that a reasonable person would have were closely related, and knowledge of an individual or an ascertainable class of persons who are reliant and therefore vulnerable was a significant factor in establishing a duty of care. In that case there was shown to be actual foresight of the likelihood of harm and knowledge of an ascertainable class of vulnerable persons.

20. [20]
    McHugh J at [125] focused on vulnerability to harm as the key to determining whether a duty of care existed in the context of economic loss, but he regarded reliance and assumption of responsibility as indicators of the plaintiff’s vulnerability. However, it was not just a question of whether there was vulnerability; at [129] he said the degree and nature of vulnerability sufficient to found a duty of care would vary from category to category and from case to case. Ultimately he concluded at [133] that the defendant was liable because the loss was reasonably foreseeable, the imposition of a duty of care would not impose indeterminate liability on the defendant, it would not impose an unreasonable burden on the autonomy of the defendant, the plaintiffs were vulnerable to loss from the conduct of the defendant, and the defendant knew its conduct could cause harm to individuals such as the plaintiff. Callinan J at [405] said that this was an area of the law in which the courts should move incrementally and very cautiously indeed.

21. [21]
    More recently, in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 a majority of the High Court rejected the notion that consulting engineers responsible for the construction of a commercial building owed a duty of care to a subsequent purchaser of the building to avoid causing economic loss through negligence in relation to that construction. The majority in a joint judgment said that damages for pure economic loss are not recoverable if all that is shown is that the defendant’s negligence was a cause of the loss and the loss was reasonably foreseeable:  [21]. Reference was made to the Willemstad case and Perre (supra), and other cases, but again the court avoided attempting to identify or articulate the breadth of any general proposition about the importance of vulnerability:  [24]. In relation to vulnerability in that case, however, it was held that it had not been shown that the appellant could not have protected itself against the economic loss through making proper enquiries of the circumstances of the building prior to purchasing it.

22. [22]
    McHugh J in a separate judgment referred to his earlier decision and identified five principles relevant in determining whether a duty existed in cases of liability for pure economic loss:  [74]

“They were principles concerned with:

• reasonable foreseeability of loss,
• indeterminacy of liability,
• autonomy of the individual,
• vulnerability to risk, and
• knowledge of the risk and its magnitude.”

23. [23]
    Callinan J at [231] said:

“In this area of claims for economic loss, an evolving area of the law, cases will in practice only be resolved by closely and carefully examining the facts to ascertain whether a sufficiency of factors of a sufficient degree of relevance and importance has been demonstrated. It is better I think to acknowledge and apply that reality than to attempt to state an inflexible principle which is bound, at this stage at least, to fail to meet the justice of the cases which are likely to arise in the future.”

24. [24]
    The significance of this for present purposes is that it shows, not only that it is very difficult to decide in a novel area of the law whether a cause of action for damages for pure economic loss exists, but also, and more relevantly, that it is very difficult to be satisfied at this stage, to whichever standard is required by the relevant rule, that a claim for damages for economic loss does not exist. In the present case it is not clear at what point the departmental officers found out about the existence of the Family Court proceedings, but they obviously knew about them at some stage. In these circumstances, that the plaintiff as a particular individual was incurring cost associated with the question of who had care and possession of the children must have been known, or ought reasonably to have been known, by the departmental officers. On the other hand, the actions of the departmental officers did not necessarily expose the plaintiff to liability to incur those costs. The costs were incurred because the plaintiff chose to pursue that action.

25. [25]
    There is also the consideration that the children came to be not in the hands of the mother reasonably quickly after the period in which the plaintiff alleged the breach occurred; indeed the plaintiff alleged that the breach in relation to failing to investigate occurred over a period of only about three weeks. The material before me provides no information as to what knowledge the department would have had about the progress of the plaintiff’s Family Court proceedings, which started 10 days into that period, nor is it at all clear what the plaintiff’s evidence would be as to what would have happened if the breach alleged in paragraph 21 had not occurred. It is not even clear that the plaintiff is suing for all of his costs incurred in the proceedings, or whether he is only suing for costs incurred because of the continuation of the proceedings after 28 March 2002.

26. [26]
    The submissions for the plaintiff emphasised that, apart from foreseeability, the plaintiff was the only person who was acting to protect the welfare of the children in circumstances where the defendant’s agents were not acting, that the case did not arise out of a commercial context where consideration such as autonomy of the individual were of importance, and that the plaintiff was vulnerable because taking legal proceedings in the Family Court was the only option open to the plaintiff in the light of the inaction of the department. Whether these features are enough to show a good cause of action for damages for economic loss is, however, something I do not need to decide. What matters is whether the defendant has shown that the action ought to be struck out or that there should be summary judgment for the defendant.

27. [27]
    A similar issue arose recently in South Australia in Mills v Sheehan [2007] SASC 365, where the Full Court held that it was not appropriate to strike out a claim against liquidators engaged in realising assets of a company where it was alleged that in selling those assets there had been a failure to exercise reasonable care to obtain the best available price, which put them in breach of a duty owed not just to the creditors and the shareholders of the company, but to a person having a contingent liability to the company whose liability would be increased by any deficiency in the amount achieved in the resale of the assets. At first instance it was held that there was no arguable case for such a duty and the action was struck out. On appeal one member of the court held that there was a duty of care to the plaintiffs; the other two members, however, considered that it was unnecessary to decide this, it being sufficient to decide that it was not clear that there was no such duty.

28. [28]
    Sulan J, with whom Layton J agreed, said at [109]:

“The plaintiffs’ claim raises a question of duty for pure economic loss. It is well established that courts are reluctant to impose a duty to avoid such loss, but there are now exceptions to what was previously the general rule that no such duty can exist. Although it is recognised that there is no longer an absolute exclusion of recovery for pure economic loss, the circumstances in which recovery will be allowed have not been conclusively determined.”

29. [29]
    His Honour referred to Perre v Apand and continued at [110‑111]:

“The acknowledgement by Australian courts – including the High Court in Perre v Apand – that this area of the law is developing and is not yet constrained by firm principles suggests that this court should be reluctant to preclude a plaintiff from bringing an action in factual circumstances which are not closely analogous to those of previous authority. No analogous cases were put to this court to show that a duty of the kind claimed by the plaintiffs has been imposed on a liquidator by a court. It is clear that the factual circumstances differ from the leading cases which were presented during the course of argument. It is, however, not clear how the principles applicable in previous cases on pure economic loss would apply to the present case. Consequently, I consider that it is inappropriate for this court to preclude the plaintiffs from bringing their case.”

30. [30]
    Those statements apply I think with equal force in the present case. It is also relevant to bare in mind what was said by the majority of the High Court in Agar v Hyde (2000) 201 CLR 552 at [64]:

“It may be difficult for a court to say from the pleadings that a claim by a plaintiff that the defendant is liable in negligence is bound to fail because it is not arguable that the defendant owed the plaintiff a duty of care. Such cases do arise. [Examples were given.]  The result is that frequently the conventional form of pleading in an action of negligence will not reveal the alleged duty with sufficient clarity for a court considering an application for summary termination of the proceeding to be sure that all of the possible nuances of the plaintiff’s case are revealed by the pleading. Further, and no less importantly, any finding about duty of care will often depend upon the evidence which is given at trial. Questions of reliance or knowledge of risk are two obvious examples of the kinds of question in which the evidence given at trial may take on considerable importance in determining whether a defendant owed the plaintiff a duty of care.”

31. [31]
    In these circumstances, I do not think it is appropriate for me to make a final determination of the question of whether there is a duty of care as alleged by the plaintiff in the present case. I am not persuaded that the plaintiff’s case is so clearly untenable that it cannot possibly succeed, nor that there is no real prospect of the plaintiff succeeding on his claim, or that there is no need for a trial of it.

32. [32]
    It was further submitted that the plaintiff had no prospect of establishing the allegation in paragraph 23 in that it was likely that the children would have been placed in the care of the plaintiff without the cost of the Family Court proceedings had the department not breached its duty to the plaintiff. On the face of it that does seem so, but the difficulty is that the allegation in point of pleading is sufficient, and the real question is whether at the trial the plaintiff is going to be able to produce evidence to prove the allegation. That is really not something I can decide in advance of a trial. The same applies to the allegation in paragraph 24, that the plaintiff has suffered loss in terms of incurred legal costs because of the defendant’s breaches of duty.

33. [33]
    Overall, this is it seems to me essentially a novel claim, and I would not like this judgment to be characterised in any sense as any judicial affirmation that there is any particular substance to it. What I am deciding is simply that, in the light of the authorities to which I have referred, I am not in a position to be satisfied with the required level of confidence that the plaintiff does not have a good cause of action, or that the plaintiff’s claim is bound to fail. In those circumstances, in this respect the application must fail.

Action in respect of the evidence of a witness

34. [34]
    The next submission made by the defendant was directed specifically to paragraph 22(a) of the statement of claim. It was submitted that in substance the defendant was being sued because of the evidence given by one of the departmental officers in the Family Court proceedings, and that this was in breach of the principle of public policy preventing such an action from being brought, laid down by the High Court in Cabassi v Vila (1940) 64 CLR 130, where it was said that no action lies in respect of evidence given by witnesses in the course of judicial proceedings, even if false and malicious:  p 140 per Starke J. No action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings; the remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court:  p 141.^[8]  If an action cannot be brought against the witness, then it cannot be brought against the defendant on the basis of departmental liability for the evidence given by the witness.

35. [35]
    This proposition was not really disputed by counsel for the plaintiff, where response in relation to this paragraph was simply to seek leave to replead if the paragraph were struck out. Counsel’s name was not on the pleading, and in the circumstances no good reason was shown why leave to replead should not be given. It seems clear enough that on its face this allegation is bad, and the defendant cannot be sued on the basis of the evidence given by the departmental officer in the Family Court.

Breach of the Family Court order

36. [36]
    The final point raised was as to the allegation that the Family Court order dated 28 March 2002 had been breached by the defendant (presumably by the department) in the action taken by the department in keeping the children away from the plaintiff until it had undertaken an assessment of his position. The difficulty here is that it seems to me that any question about the enforcement of an order of the Family Court is a matter for the Family Court. Under the Family Law Act the Family Court and the Federal Magistrates Court have exclusive jurisdiction in relation to children,^[9] and that Act provides specifically for the enforcement of Family Court orders relating to children.^[10]  I do not consider that it is open to the plaintiff to seek to enforce the Family Court order indirectly in this court, by seeking damages for a failure to comply with it. The Family Court order was enforceable by the methods laid down in the Family Law Act, but that does not include by means of an action for damages in the District Court of Queensland.

37. [37]
    Counsel for the defendant relied on Stubberfield v Lippiat [2006] QSC 281 for the proposition that there must be finality of litigation and there is an abuse of process to raise in subsequent proceedings matters which could and should have been litigated in earlier proceedings, referring to Brisbane City Council v Attorney‑General for Queensland [1979] AC 411 at 425. This is not precisely that point, since it is an issue arising out of the enforcement of the order which concluded (at least on a temporary basis) the earlier proceedings in the Family Court, but it seems to me that there is a related principle, that an order of the court is to be enforced as an order of the court, rather than as something which gives rise to a further cause of action, because this would also be contrary to the important public policy of finality of litigation.

38. [38]
    In some circumstances of course, an action can be brought which is based on an earlier judgment or order of a court; an action may be brought on a judgment or order for payment of a sum of money.^[11]  However, I do not think it can be said that a failure to comply with a judgment or order of the Family Court can give rise to an action for negligence or breach of statutory duty. In view of the nature of an order of the Family Court in relation to what is to happen to some children, it seems to me that the enforcement of that order is a matter for the Family Court, and any attempt to enforce the order in this collateral way, by means of an action for damages in the District Court, would infringe the exclusiveness of the jurisdiction of the Family Court. In my opinion that is clear enough, and indeed counsel for the plaintiff did not attempt to support paragraph 22(b) of the statement of claim.

Conclusion

39. [39]
    In these circumstances, it is appropriate to order that paragraph 22 of the statement of claim be struck out, together with the references to paragraph 22 in paragraphs 23 and 25. However, in view of the request by counsel for liberty to replead, I will allow liberty to replead within 14 days. In other respects, however, the application fails and is dismissed.

40. [40]
    With regard to the question of costs, the defendant has had some success in the application, although that has been fairly limited, and only on points not actively opposed. Correspondence was sent foreshadowing an application of this nature, in a letter of 22 November 2007 and in a letter of 14 January 2008, but it appears that neither of those letters referred specifically to the particular points on which the defendant has ultimately been successful. There is also the consideration that the defendant’s application under r 293 was not served so as to give the length of notice required by the rules. In all the circumstances, I think it is appropriate to order the defendant to pay the plaintiff’s costs of and incidental to the application to be assessed.