XBT v Queensland[2025] QSC 9

SUPREME COURT OF QUEENSLAND

Introduction

1. [1]
   The State of Queensland (“State”) seeks to strike out the entirety of the plaintiff’s Second Further Amended Statement of Claim (the “Statement of Claim”) on the basis that it does not disclose maintainable causes of action. In addition, the State says that the plaintiff should not be given leave to replead.
2. [2]
   The strike out application is brought on numerous bases. 
3. [3]
   Ultimately, I have concluded that the pleaded cause of action based on an alleged statutory duty ought to be struck out without leave to replead. I have reached this conclusion on the basis that, as a matter of law, the alleged cause of action is unmaintainable. 
4. [4]
   In respect of the other bases of objection raised by the State, sufficient of them have been made out so as to justify the striking out of a large portion of the Statement of Claim, however, in respect of the underlying causes of action, I will grant leave to replead.

General approach

5. [5]
   In dealing with this strike out application, I have borne in mind the following general principles.
6. [6]
   First, the power to strike out a pleading on the grounds of an absence of a maintainable cause of action should only be exercised in circumstances where the pleaded cause of action is clearly untenable.  A strike out application is not the occasion for the disposal of a merely weak case. If a cause of action has some, albeit poor prospects of success, as a general rule, it should be left to trial.
7. [7]
   Secondly, when dealing with the submissions of a party that the other party should not be given leave to replead, it needs to be borne in mind that such an order will effectively dispose of the particular cause of action that it relates to. If the order covers all causes of action, then it will effectively dispose of the whole of the proceedings.  As Justice Bradley recognised in Queensland Taxi Licence Holders v State of Queensland [2020] QSC 94, where such an order is made in relation to the whole of a statement of claim, the logical consequence is that the court should consider giving judgment for the defendant.^[1]
8. [8]
   Thirdly, a refusal to grant leave to replead ordinarily requires a compelling conclusion that a maintainable cause of action cannot be pleaded. In reaching such a conclusion, consideration can be had to prior opportunities which have been granted to the defaulting party to rectify defects in the pleading. A party is expected to act in an expeditious and efficient way in the prosecution of his or her claim. However, such considerations are required to be balanced against the desirability of a plaintiff being provided with a fair opportunity to have his or her claim adjudicated upon at trial.
9. [9]
   Fourthly, whilst the importance of pleadings has receded somewhat in some areas where alternative methodologies^[2] are used to identify the real issues between parties, prima facie pleadings remain the primary mechanism by which matters are brought to trial. Pleadings still serve the function of identifying, defining and ultimately holding a party to a specific case. In the present proceeding, the pleaded facts are alleged to have occurred more than 40 years ago. In such a circumstance, it is particularly important for a plaintiff to have a properly pleaded case so that the defendant can understand the case it has to meet at any trial and is able to hold the plaintiff to that case.

Background of pleaded case

10. [10]
    The essence of the plaintiff’s case can be summarised in the following terms.
11. [11]
    In 1981, the plaintiff was some 14 to 15 years of age.  From 13 April 1981, she was the subject of a court order made pursuant to s 62 of the then Children’s Services Act 1965 (Qld) (repealed) (“CSA”).  This was a care and control order which thereby imposed, on the director (“the Director”) of the Department of Children’s Services (the “Department”), a statutory obligation to utilise the powers and resources of the Department, so as to further the best interests of such a child in his or her care. The statutory obligation was imposed by s 65 of the CSA. 
12. [12]
    The care and control order had been made as a consequence of the plaintiff:

    1. having engaged in criminal offending;
    2. having failed to comply with a supervision order which had previously been made;
    3. having had no appropriate place to live; and
    4. having been drinking and an itinerant. 
13. [13]
    Pursuant to a decision made under the s 65 of the CSA, the plaintiff had been admitted to a youth detention centre (the “Centre”), which was operated as a location where youths could be securely held and cared for.
14. [14]
    Whilst at the Centre, the plaintiff alleges that she was sexually assaulted by a male guard.  In respect of this first alleged sexual assault, it is said that the plaintiff had been taken by a single male guard to an area of the Centre known as the cold room.  The plaintiff says that the cold room was, at that time, an isolated room which was used on occasion to discipline the residents of the Centre. It is said that juveniles were placed in the room by single male guards who performed this task by themselves and without supervision.  In effect, this room was said by the plaintiff to be a remote location within the Centre which could not be surveilled by any other supervising staff. As such, the plaintiff alleges that the use of this room provided the opportunity for the male guard to sexually assault her.
15. [15]
    Separately, the plaintiff alleges that a second sexual assault occurred.  This separate occasion of sexual assault is also said to have taken place whilst she was under the same care and control order, but after she had left the Centre. 
16. [16]
    In pleading this second sexual assault, the plaintiff relies on the circumstances of the making of the care and control order to illustrate that she was, at the relevant time, a difficult youth, prone to committing crimes and living on the street.
17. [17]
    The plaintiff then says that as at 24 August 1981, a doctor (the "Doctor"), who was an employee of the Department, had been:

    1. concerned for the welfare of the plaintiff;
    2. seeking assistance within the relevant Department to find a suitable foster home for the plaintiff;
    3. of the opinion that the plaintiff only remained at the Centre because a placement could not be found for her;
    4. of the opinion that whilst the plaintiff was well-behaved at the Centre, she would need supervision; and
    5. of the opinion that if left unsupervised, the plaintiff would associate with persons who could have a poor influence on her.
18. [18]
    On 4 September 1981, the plaintiff pleads that she was released from the institution she was then staying at to the care of her 18 year old sister. This initial release to her sister’s care was on a trial basis until 7 September 1981. The plaintiff is said to have failed to return to that institution on 7 September 1981, contrary to the terms of the trial release.
19. [19]
    It is then pleaded that on 8 September 1981, the plaintiff was released by the Director to her sister’s care on a continuing basis. 
20. [20]
    The second sexual assault is said to have occurred at some time in or about September or October 1981 whilst the plaintiff was in the care of her sister. It is alleged that the plaintiff was out after dark with her friend in circumstances where they had gone out to meet other people at Dutton Park. 
21. [21]
    At about 9.00 pm, the plaintiff and her friend hailed a taxi near the Dutton Park Cemetery.  It is alleged that the taxi driver then enticed the pair down a concrete path towards a toilet block.  It is alleged that a struggle took place and the plaintiff was sexually assaulted.

First objection: statutory duty

1. The State’s contentions

22. [22]
    The first basis of objection is aimed at a statutory duty plea. It is said that this cause of action is unmaintainable according to law.
23. [23]
    The statutory duty cause of action which the State objects to is based on the duty located in s 65 of the CSA. Section 65 provided as follows at the relevant time:

“Duty of Director to child committed to care and control

65.(1) When a person is committed to the care and control of the Director it shall be the duty of the director to utilise the director’s powers and the resources of the department so as to further the best interests of such child in care and, in the performance of that duty and without limiting the director's discretion in that regard, the director may from time to time make use of such facilities and services as may be available or be made available by—

1. any parent of such child in care;

2. a relative or friend of such child in care;

3. any person approved by the director;

4. placing such child in care in an institution established or licensed pursuant to part 4;

5. placing such child in care in a hostel or any other place considered by the director to be in the best interests of such child.

(2) The director may impose such conditions upon the use the director makes or proposes to make of any of such facilities and services as the director considers to be in the best interests of the child in care concerned.”

24. [24]
    The pleaded statutory duty is articulated in paragraph [2(f)] of the Statement of Claim as a duty imposed on the office of the Director to “utilize [sic] his powers and resources of the Department so as to further the best interests of such child in care.”
25. [25]
    The State contends that it is a rare thing for a statute to impliedly provide a private civil remedy to individuals for a breach of a statutory duty. The State says that the types of situations in which such a private civil remedy has been found to exist are typically those in which specific mandatory duties have been imposed in order to provide for the safety and protection of a particular class of persons in a work environment. Reference was made by the State to the examples given by Pincus JA in Schulz v Schmauser [2001] 1 Qd R 540 at paragraphs [31] and [32].
26. [26]
    The State submitted that where the statute is enacted for the general welfare of the community, it is unlikely that a breach of that statutory duty was intended to give rise to a private civil remedy. Reference was made in this regard to the observations of Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at pages 731 and 732. That decision dealt with a whole series of statues associated with the physical and educational welfare of children, none of which were found to have given rise to private civil remedies.
27. [27]
    The State contends that s 65 of the CSA was part of a scheme of social welfare provisions for the benefit of the public at large rather than for a specific defined class of persons.
28. [28]
    The State also submits that the relevant section of the CSA went no further than the common law requirement to take reasonable care in its dealing with the plaintiff.
29. [29]
    In a way which seems inconsistent with the last submission, the State separately submitted that s 65 of the CSA is drafted in such vague terms that it is insusceptible of a precise definition. The particular terms referred to in this respect are “…to further the best interests of such child…”
30. [30]
    The State next submits that s 65 of the CSA is not cast in terms of the prevention of injury or damage to the child.
31. [31]
    The State also orally submitted that the CSA provided for an enforcement of a breach of s 65 by way of the operation of s 148 of the CSA. That section provided as follows:

“Offence to contravene Act

148.(1) A person who contravenes or fails to comply with a provision of this Act commits an offence against this Act.

Maximum penalty, if no other penalty prescribed—40 penalty units or 6 months imprisonment.

…”

32. [32]
    All of these various factors are said by the State to point against there being a private civil remedy implied by the terms of s 65 of the CSA.
33. [33]
    In addition to these various submissions, the State relies on the decision of Hopkins v State of Queensland [2004] QDC 21, where McGill SC DCJ had to consider whether the then s 58 of the CSA conferred a private civil remedy. The then s 58 considered by McGill DCJ was in the same terms as the earlier s 65 of the CSA which is under consideration in this proceeding.
34. [34]
    Judge McGill observed that there was nothing in the then CSA which expressly provided that a breach of s 58 gave rise to a private civil remedy. His Honour also concluded that s 58 did not, by implication, give rise to such a private civil remedy.
35. [35]
    Influential to his Honour’s reasoning was that the duty itself was not expressed in specific terms, but rather it was expressed in general terms. Judge McGill further observed that the section expressed that the Director had a discretion as to the performance of the duty. In addition, his Honour considered that s 58 was not an example of the legislature creating a higher or more specific standard of care.
36. [36]
    In respect of the operation of s 58 of the then CSA,  Judge McGill observed that it would sometimes be the case that there was no guaranteed safe alternative up for consideration in the exercise of the discretion. His Honour reasoned that it was most unlikely that the legislature intended to impose an absolute duty on the Director to secure what may only later emerge to have been the best available outcome for the child. As part of the reasoning for this conclusion his Honour noted that it may be very difficult to know, even retrospectively, what is, or is not, in the best interests of the child.

(b) The plaintiff’s contentions

37. [37]
    The plaintiff contended that there was, by implication, a private civil remedy provided to a child where a breach of s 65(1) of the CSA occurred.
38. [38]
    As part of that submission, the plaintiff pointed out that the State had omitted reference to the introductory words of s 65 which relevantly provided “when a person is committed to the care and control of the Director”.  The plaintiff said that these words indicated that s 65 was directed to a particular class of person, being each individual child who is committed to the care and control of the Director. In this respect it was said that the section was not directed to the welfare of the community at large. The plaintiff submitted that this was an important indicator of a private civil remedy impliedly arising under s 65.
39. [39]
    It was further submitted by the plaintiff that the larger statute did not contain any machinery for enforcement of the statutory duty found in s 65 of the CSA. This too was said to be a significant indicator of the implication of a private civil remedy.
40. [40]
    In response to the State’s submissions as to the generality of the concept of “furthering the best interests” of the child, the plaintiff submitted that the statutory duty did not have to be specific as to every category of conduct which might be caught within that concept. The plaintiff further submitted that there were plenty of statutory, common law and equitable causes of action which are stated in very wide terms. By way of examples, the plaintiff referred to:

    1. section 18 of the Competition and Consumer Act 2010 - Schedule 2 The Australian Consumer Law (Cth) which prohibits conduct which is misleading or deceptive, or likely to mislead or deceive;
    2. section 180 of the Corporations Act 2001 (Cth) which imposes an obligation on a company director to exercise and discharge their duties with a requisite degree of care and diligence; and
    3. the common law tortious duty of care, which the plaintiff submits covers a vast range of circumstances.
41. [41]
    Lastly, in respect of the duty to utilise the powers and resources of the Department so as to further the bests interests of the child, the plaintiff says that the duty would be breached when the Director, or his delegate, failed to act in the best interests of the child. In this way, it was said that the duty had certainty in terms of contravention.

    3. Resolution of contentions
42. [42]
    I have concluded that s 65 of the CSA, as a matter of law, does not give rise to a private civil remedy. My reasoning is as follows.
43. [43]
    First, it is important to identify that the appropriate process to engage in when determining whether or not a private civil remedy is granted by implication, is one of statutory construction.^[3] Whether or not a private civil remedy will be found to be implied will depend not simply on the actual words used in the section, but it will also involve a consideration of the relevant Act read as a whole and a consideration of the circumstances in which the section was enacted (including a consideration of previous existing law).^[4]
44. [44]
    Secondly, both sides accept that there are no express words in s 65 itself which suggest that there is a private civil remedy vested in particular individuals. Putting to one side the arguments surrounding the language of s 65 itself, there is nothing else discernible in the text of the CSA which supports the implication of such a private civil remedy.
45. [45]
    Thirdly, the second reading speech for the CSA from 1965 does not contain any statement which supports an intention to imply such a private civil remedy.
46. [46]
    Fourthly, as a general proposition, the process of statutory interpretation will rarely yield the necessary implication of such a private civil remedy for the breach of a statutory duty.^[5] 
47. [47]
    Fifthly, I note that s 65 is not expressed to be an offence provision. I retain real reservations as to whether s 148 of the CSA operates to make a contravention of, or non-compliance with, s 65 by the Director, an offence. Ultimately, it is unnecessary for me to determine this.
48. [48]
    I accept as a general proposition that the absence of a means of enforcement of a provision (for example, by way of penalty or other remedy) can be an indicator that a provision might give rise to a private civil remedy. However, the plaintiff’s submission that it is an important indication of a private civil remedy ought to be rejected. It overstates the significance of this factor. A similar observation can also be made about the fact that a provision deals with a limited class of people.  Again, whilst it can be an indicator that a provision might give rise to a private civil remedy, it overstates the significance of the factor to refer to it as an important indication.
49. [49]
    Even on the assumption that s 148 of the CSA does not make a breach of s 65 an offence, I am not of the view that this factor, by itself or in conjunction with other factors, indicates the presence of an implied private civil remedy.
50. [50]
    Sixthly, I accept as a general proposition that a statutory duty articulated in general terms can still give rise to a private civil remedy.  However, the duty which exists in this case is expressed in a particularly general way in conjunction with a broad discretion.
51. [51]
    It is a duty to use the powers and resources of the Department so as to further the best interests of such children in care. The concept of furthering the “best interests” of the child is an extremely general concept which can be reflected in any number of ways. It may traverse physical safety, educational progress, cultural protection and family connectivity.
52. [52]
    The performance of that duty is articulated in the form of a broadly cast discretion vested in the Director. In the exercise of that discretion, the Director may make use of facilities and services some of which are public whilst others are private. These facilities or services include:

    1. those of any parent of such a child in care;
    2. those of a relative or friend of such a child in care;
    3. those of any person approved by the Director; and
    4. placing such a child in the care of an institution established or licensed pursuant to the CSA.
53. [53]
    Given the very general concept of furthering the best interests of the child and the broadly cast discretion which exists for the performance of the duty, it is improbable that parliament intended to create a private civil remedy for a breach of the duty. Even with the benefit of hindsight, the question of whether a particular decision was in furtherance of the best interests of the child in care may be difficult to discern. The boundaries of such a finding may well be amorphous. Different persons will inevitably attribute higher priority to different criteria for the furtherance of the best interests of the child. By anticipating performance of the amorphous duty via a broad discretion, the language of the section does not support the implication of a private civil remedy. This is not a section intended to protect the specific class of person referred to in the section from a particular kind of damage.
54. [54]
    Seventhly, the more obvious operation of s 65 of the CSA is as an administrative provision articulating that it is the Director who is empowered to make this specific decision guided by the broad concept at the furtherance of the best interests of children the subject of care and control orders. The section is one which:

    1. empowers the Director;
    2. identifies the general concept which is a guide;
    3. provides for a broad discretion as to how the general concept is to be performed; and
    4. identifies the resources available for the implementation of the decision arrived at.
55. [55]
    Viewed this way, the absence of an enforcement provision is not an obvious indicator of an implied private civil remedy.
56. [56]
    Eighthly, support for the conclusions set out above can be found in X (Minors) v Bedfordshire County Council.^[6]  In that decision, the House of Lords was considering a raft of different provisions from a variety of different Acts which were said to give rise to private civil remedies. Each of the pleaded causes of action which were reliant on those alleged statutory duties were struck out in the various underlying proceedings.
57. [57]
    At least one set of the provisions considered in that decision bore some resemblance to s 65 of the CSA. That set of provisions are ss 47(1) and 47(8) of the Children Act 1989 (UK). Section 47(1) imposed an obligation on a local authority who had reasonable cause to suspect that the child was suffering, or was likely to suffer significant harm, to mandatorily “…make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare”.  Section 47(8) then imposed an obligation on the local council, where it had reached a conclusion to act to safeguard or promote the child’s welfare pursuant to s 47(1), to then mandatorily “take action” (so far as it was both within their power and reasonably practicable for them to do so). These provisions focussed on a specific group (namely, certain children), required mandatory action (subject to certain qualifications), and involved  broad concepts of promoting the safety and welfare of the certain children.
58. [58]
    Lord Browne-Wilkinson stated, in part, as follows:^[7]

“…My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community. The welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. Decisions often have to be taken on the basis of inadequate and disputed facts. In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.

It is true that the legislation was introduced primarily for the protection of a limited class, namely children at risk, and that until April 1991 the legislation itself contained only limited machinery for enforcing the statutory duties imposed. But in my view those are the only pointers in favour of imputing to Parliament an intention to create a private law cause of action. When one turns to the actual words used in the primary legislation to create the statutory duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action.”

59. [59]
    These observations are apposite to the text of s 65 and its function within the CSA. The language of s 65 of the CSA is inconsistent with any intention to create a private civil remedy. Section 65 is quite different from the examples which Pincus JA identified in Schulz v Schmauser^[8] at paragraphs [31] and [32], which were all examples of statutory duties, the breach of which had caused the plaintiff damage of a kind against which the statutory provisions were intended to give protection.  In the sense used by Browne-Wilkinson LJ, s 65 of the CSA is part of a statutory administrative system designed to promote the social welfare of the community.

Second objection: articulation of the common law duty of care

60. [60]
    Paragraph [2(f)] of the Statement of Claim articulates the CSA s 65 statutory duty as a duty to utilise the Director’s powers and the resources of the Department so as to further the bests interests of such a child in care. The pleaded Statutory Duty is not articulated as an obligation to use reasonable care to avoid injury to the plaintiff.
61. [61]
    Paragraph [10(e)] of the Statement of Claim then pleads that the Director owed a separate duty which was coextensive with the statutory duty. This second duty was said to be imposed by law and was described as a “Common Law Duty”. There is no pleading of material facts in the Statement of Claim which articulate a tortious duty of care imposed by law in the usual way.
62. [62]
    In short, I am satisfied that there is no proper pleading of the normal tortious duty to exercise reasonable care to avoid injury to the plaintiff. I am also satisfied that the statutory duty as articulated does not correlate with the normal tortious duty to exercise reasonable care.
63. [63]
    Accordingly, the State is correct to say the plaintiff has failed to properly plead a tortious duty to exercise reasonable care.
64. [64]
    Counsel for the plaintiff ultimately accepted that given the way the Statutory Duty had been pleaded in paragraph [2(f)], any “Common Law Duty” would not be co-extensive with it. Counsel also accepted that the tortious duty to exercise reasonable care so as to avoid injury to the plaintiff had not been separately pleaded in an appropriate and orthodox fashion.
65. [65]
    As a result, all portions of the Statement of Claim which rely on or reference the “Common Law Duty” ought to be struck out. It is unnecessary at this stage to identify the specific paragraphs that should be struck out given I have reached a conclusion that the bulk of the Statement of Claim should be struck out. I will be granting leave to replead this aspect of the pleading. I will explain my reasons for this approach to the form of relief later in these reasons.

Third objection: pleading of the employee’s duty

66. [66]
    Paragraph [10(f)] of the Statement of Claim pleads that each employee charged with supervising a child in care pursuant to a care and control order, had a duty co-extensively with the Common Law Duty. This duty is then defined as the “Employee’s Duty”. The pleading of the Employee’s Duty is evidently for the purposes of the subsequent plea in paragraph [11] to the effect that the Director and the State are vicariously liable for any breach by an employee of the Employee’s Duty.
67. [67]
    For the same reasons articulated above in respect of the second objection, the plaintiff has failed to plead in an appropriate and orthodox fashion the State employee’s tortious duty to exercise reasonable care to avoid harm to children under the control of that employee. Such a tortious duty of care will not be co-extensive with the Statutory Duty. The concession made by counsel for the plaintiff in relation to the “Common Law Duty” being inadequately pleaded must necessarily also apply to the Employee’s Duty as articulated.
68. [68]
    Accordingly, all portions of the Statement of Claim relying on or referring to the Employee’s Duty ought to be struck out. Again, it is unnecessary to identify these individual paragraphs as the bulk of the Statement of Claim will be struck out. I will be granting leave to replead this aspect of the pleading.

Fourth objection: alleged defects in the pleading of the breach of the duty for the first assault

69. [69]
    This fourth objection contains four sub-objections which I will deal with in turn.
70. [70]
    The first sub-objection is said by the State to concern paragraph [17] of the Statement of Claim which deals with the alleged breach of the Statutory Duty and the “Legal Duty.”^[9] Paragraph [17] pleads that the Director and the State failed “to ensure” certain things.
71. [71]
    the plaintiff pleaded that the things which they were required to ensure were that:

    1. the male guard was properly supervised at the time of the first sexual assault;
    2. there was adequate supervision in place for guards at the Centre;
    3. the work practices of guards and other staff at the Centre was such that no male guard was ever left alone with a resident; and
    4. the facilities at the Centre were arranged in such a way as to avoid the likelihood that any guard could be alone with a resident at any time.
72. [72]
    The contention by the State is that the use of the words failed “to ensure” is unsustainable because it refers to an absolute outcome.
73. [73]
    This particular complaint appears to stem from the plaintiff’s failure to properly plead out in an orthodox fashion the tortious duties owed by others to exercise reasonable care so as to avoid injury to her. Such a tortious duty does not require the absolute prevention of injury, loss or damage being suffered by the plaintiff. The tortious duty only requires that reasonable care be exercised in the particular circumstances. Such injuries, loss or damage may still occur, despite the exercise of the reasonable care. 
74. [74]
    It would be acceptable for the four matters referred to above to be pleaded as aspects of how the Director or the State should have acted in the exercise of their duty of reasonable care. Understood this way, the words failed “to ensure” would not be objectionable, as they would not be talking of the absolute prevention of the ultimate injury, loss or damage, but would be articulating that the obligation to exercise reasonable care required each of those four matters to be undertaken.
75. [75]
    Given that the “Common Law Duty” as pleaded will be struck out, it is also appropriate to strike out paragraph [17] of the Statement of Claim. There will be leave to replead these allegations of fact in a way which will then be acceptable, presumably as part of the articulation of the scope of the tortious duty to exercise reasonable care.
76. [76]
    The second sub-objection concerns the plea in paragraph [16] of the Statement of Claim that, at the time of the first sexual assault, the Director knew, or should have known that:

    1. the cold rooms^[10] provided an isolated venue where it was possible for a staff member such as the male guard to assault a resident; and
    2. the cold rooms were used from time to time as venues for disciplining residents of the Centre, including by male guards acting alone and without supervision.
77. [77]
    In a similar fashion, there is an objection to paragraph [12] of the Statement of Claim which pleads, in effect, that during the relevant period the Director was aware, or should have been aware, that:

    1. the Centre had detention rooms, with one known as the “cold room”, in which residents would be placed as punishment for perceived misbehaviour; and
    2. persons could not be seen or heard when inside such a room.
78. [78]
    This part of the sub-objection is limited to the plea of the actual knowledge of the Director. In this respect, I confirmed with counsel for the plaintiff that the allegations of knowledge pleaded against the Director were intended to be pleas of actual knowledge of the matters alleged, as opposed to the knowledge of others such as those in the management of the Centre.
79. [79]
    I note that the State had previously raised in a letter written 22 April 2024 that the plaintiff had made unparticularised allegations of knowledge. The State in that letter had also sought clarification as to whether the allegation was that the Director actually knew, as opposed to merely having had constructive knowledge of the matters pleaded.
80. [80]
    A response was given by the solicitors for the plaintiff by way of a letter dated 11 June 2024. It stated that the pleading in paragraph [16] of the Statement of Claim was a conventional basis for pleading at least constructive knowledge and, given the basis of constructive knowledge, the likelihood of actual knowledge. The solicitors for the plaintiff supplied particulars with that letter. In supplying those particulars, the plaintiff maintained that such particulars were not required to be provided.
81. [81]
    Those particulars were as follows:

“1.The Director’s knowledge is to be inferred from the following matters;-

1. the Director was appointed pursuant to the CSA;
2. the CSA imposed the Statutory Duty on the Director;
3. [the Centre] was an institution established under the CSA;
4. the Director, in discharging the Statutory Duty, was required to utilise his powers and the resources of the Department;
5. that being so, the Director, acting conscientiously, was required to be familiar with the residential circumstances of the plaintiff whilst she was under his care;
6. it was likely, in any event, that in discharging his duties, the Director would have made himself familiar with the layout and features of [the Centre].”

82. [82]
    Rule 150(1)(k) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) specifically requires knowledge to be pleaded. Rule 150(2) of the UCPR, read with r 150(1)(k), then requires that any fact from which any of the pleaded knowledge is claimed to be an inference must be specifically pleaded. It seems that both parties have dealt with the pleading of knowledge in paragraphs [12] and [16] of the Statement of Claim as if it were merely a matter for particulars. In light of r 150(2), the position adopted by both parties is incorrect.
83. [83]
    Putting this error to one side, the particulars which have been provided are in my view inadequate to support the alleged plea of the actual knowledge by the Director. The highest the particulars rise are items (v) and (vi) as set out above. Both of these paragraphs are vague. Neither provides any sound foundation for understanding why the Director, as an individual, would have personally known of the facts alleged. The facts alleged include the location of the cold room, the specific practices of the cold room being used for disciplinary reasons, and the male guards using the cold room for those purposes unsupervised. The current particulars do not disclose a logical connection between the Director performing his or her job in placing children at the Centre, and the Director consequently having actual knowledge of these pleaded physical attributes and procedures at the Centre. The particulars are so vague as to be essentially useless in understanding the case which will be advanced at trial.
84. [84]
    This part of the pleading is not that the State, by its various managerial staff who operated out of the Centre itself, knew these things.  Rather, it is that the Director had actual personal knowledge of them. To meet this case, the State is entitled to have a properly pleaded case which conforms to r 150(1)(k) and r 150(2) of the UCPR. This is particularly so where the allegations are some 40 years old.
85. [85]
    The weaknesses in the current plea was acknowledged by counsel for the plaintiff when he indicated from the Bar table that there were further facts which could be particularised. In that respect, it was said that in the early 1980s the relevant Department only looked after a small number of children and accordingly the likelihood that the Director would have been familiar with the layout of the Centre was much higher. It was not suggested by counsel for the plaintiff that this was the only additional fact that could be pleaded on this issue.
86. [86]
    The pleas of knowledge in paragraphs [12] and [16] ought to be struck out. Leave to replead will be granted on this aspect. Any repleading will need to accord with r 150(1)(k) and r 150(2) of the UCPR. Such leave will provide an opportunity for the plaintiff to plead in a detailed manner the facts from which the inferences of knowledge are said to be derived. At trial, the plaintiff will ultimately be kept to her pleadings on this matter.
87. [87]
    The third sub-objection is that there is said to be no plea as to what the State ought to have done to discharge the duty. I do not accept this criticism of the pleading.
88. [88]
    Paragraph [17] of the Statement of Claim pleads that in breach of the Statutory Duty and the Legal Duty, the Director and the State failed to ensure that each of the four things previously identified in these reasons occurred. They are defined as the “Supervision Breaches”.
89. [89]
    Paragraph [18] of the Statement of Claim pleads that but for the Supervision Breaches, the first sexual assault would not have occurred. It is a simple causation plea, but it is a sufficient one.
90. [90]
    Reading the pleaded allegations as a whole, the case, in essence, is as follows. The plaintiff was approximately 15 years of age and was held within a government institution which housed minors. An isolated room was used for disciplinary purposes within the institution. The practices within the institution allowed for a single male guard to take a young female minor to the isolated room in circumstances where that male guard would not be under the surveillance of other persons within the institution. This provided an opportunity for the single male guard to commit a sexual assault against the plaintiff. If the things summarised in paragraph [17] of the pleading (all of which had to do with proper supervision and the preclusion of individual male guards from having access to female minors in a remote and unsurveilled room) had been done, then the unlawful sexual assault would not have occurred.
91. [91]
    The pleading clearly communicates what the State should have done. The confusion emerges from the failure to frame the case in an appropriate and orthodox pleading of a duty to exercise reasonable care.
92. [92]
    I reject the State’s description of this part of the plea as being a mere res ipsa loquitar plea. It is clear that what is being asserted is that the State ought to have had the levels of supervision and the practices which are set out in paragraphs [17(a)] to [17(d)] of the pleading.
93. [93]
    The fourth sub-objection is that there is no plea as to how the failure to do such things was causative of the injury. Again, I reject that criticism of the pleading. Paragraph [18] in a simple but clear way pleads a “but for” allegation in respect of the absence of the level of supervision and the practices set out in paragraphs [17(a)] to [17(d)].

Fifth objection: alleged defects in the pleading of the breach of the duty for the second assault.

94. [94]
    As with the fourth objection, there are four sub-objections within the fifth objection.
95. [95]
    First, it is said that the plaintiff seeks to hold the State liable for criminal conduct of an unknown third party absent any suggestion of “control” of that person by the State.
96. [96]
    The second sub-objection is that nothing is pled as to why the plaintiff ought not to have been placed with her older sister.
97. [97]
    The third sub-objection is that no counter-factual is said to be pled. That is, nothing is said as to what would have been different had the plaintiff not been placed with her sister.
98. [98]
    The fourth sub-objection is that no particulars are pled of the knowledge which is said to have been held by the Director. This is criticised as being particularly egregious where the knowledge is said to be sweeping and serious.
99. [99]
    These four sub-objections are, in some respects, interwoven.
100. [100]
     The starting point is to again recognise that the current pleading does not properly plead the causes of action within the framework of an appropriate and orthodox duty to exercise reasonable care.
101. [101]
     In accordance with the prior findings:

     1. no private civil remedy exists for the alleged breach of the Statutory Duty; and
     2. no tortious duty to exercise reasonable care so as to avoid injury to the plaintiff is pled in an appropriate and orthodox form.
102. [102]
     In particular, the paragraphs numbered [21] through to the first paragraph numbered [23] of the Statement of Claim do not properly plead a breach of a tortious duty of care.
103. [103]
     Next, I note that paragraph [7] of the Statement of Claim simply pleads that the plaintiff was released to her sister’s care on 8 September 1981.
104. [104]
     Paragraph [21] then pleads that as at the date of that release, the Director was aware, or alternatively should have been aware of four categories of facts.
105. [105]
     Starting with paragraph [21(a)], it pleads knowledge of all the matters contained in paragraphs [2] to [6] of the Statement of Claim. In respect of these pleaded allegations, I accept that the Director would likely have been aware of some of those matters, simply from his position and from the fact that he was the decision-maker pursuant to s 65 of the CSA.  However, other of the matters do not fall into this category. 
106. [106]
     There has been a non-compliance with r 150(1)(k) and r 150(2) of the UCPR in respect of paragraph [21(a)], but it is not one which appears to meaningfully prejudice the State and did not seem to be the gravamen of the complaint by it.
107. [107]
     Paragraph [21(b)] of the Statement of Claim pleads other matters which are said to have been known by the Director, or are said to be matters which the Director ought to have been aware of. They are said to be contained in a letter of 24 August 1981 from the Doctor, an employee of the Department. However, that letter is not said to have been one which was provided to the Director and there is no other plea which discloses why the Director would have had personal knowledge of the facts described in that letter. Again, this pleading of knowledge does not comply with the requirements of r 150(1)1(k) and r 150(2)2 of the UCPR.
108. [108]
     Paragraph [21(c)] of the Statement of Claim then pleads seven matters, including that the sister of the plaintiff was 18 years old. The seven factual matters are said to have been contained in a further letter of 1 October 1981 from the Doctor to the Medical Director, Division of Youth Welfare and Guidance at the Centre. That, of course, is a letter written some four weeks after the release of the plaintiff to her older sister’s care.
109. [109]
     The Statement of Claim does not plead the material facts from which it can be inferred that the Director had personal knowledge of the matters contained in that letter. It may be that the letter is said to be the means of the Director having the knowledge, or it may be that there is some suggestion that the Director had knowledge of these matters via some other source. All this is speculative as the pleading is silent on this. Paragraph [1] of the Statement of Claim just serves to illustrate why the pleading does not comply with r 150(1)(k) and r 150(2) of the UCPR.
110. [110]
     Paragraph [21(d)] of the Statement of Claim pleads certain facts in relation to a trial release of the plaintiff from a hospital between 4 and 7 September 1981, where it is said the plaintiff failed to return to the hospital on 7 September 1981 as expected. There is no pleading of the material facts from which knowledge of that fact is said to be possessed by the Director personally. This is, again, a non-compliance with r 150(1)(k) and r 150(2) of the UCPR.
111. [111]
     Whilst the non-compliance with the rules for paragraph [21(a)] may not cause any real confusion or prejudice, the non-compliance for paragraphs [21(b)] to [21(d)] are more substantive. The plaintiff should take the opportunity of the replead to address all the non-compliances.
112. [112]
     In relation to causation, there is a form of causation pleading in paragraph [22] of the Statement of Claim, however, it is not one which has been articulated in respect of a properly pleaded tortious duty to exercise reasonable care to avoid injury to the plaintiff. Further, it assumes facts which have not been pleaded. Paragraph [22] is cast in terms of the Director having been aware, or alternatively having ought to have been aware, that if the plaintiff was released into her sister’s care, as distinct from release in to the care of a more competent carer, such as a willing and qualified foster parent, the plaintiff:

     1. would not have the benefit of adequate adult supervision;
     2. would likely engage in dangerous behaviour including:

1. absconding from the home environment; and

2. in the course of absconding from the home environment, engaging in risky behaviour such as staying out late at night and therefore risking being assaulted as she allegedly was on the occasion of the second sexual assault.

113. [113]
     This is said to be premised on the Director’s knowledge, or the knowledge which the Director ought to have had, as set out in paragraph [21] of the Statement of Claim.
114. [114]
     All that paragraph [21] says of the plaintiff’s sister is that she was 18 years old. Nothing is said about the adequacy or inadequacy of her competence as a carer. I pause to observe that some 18 year olds may be quite mature and competent carers, whilst other 18 year olds may be entirely unreliable. Exactly where the sister of the plaintiff is said to fit within that spectrum is not identified in the pleading.
115. [115]
     Whilst it seems implicit from paragraph [22] of the counter-factual that there was some apparent inadequacy in the supervisory ability of the plaintiff’s sister, that implicit inadequacy has not been expressly pleaded.
116. [116]
     In a case such as the present, the material facts informing the ultimate counter-factual ought to be expressly pleaded in clear terms.
117. [117]
     A part of the facts underlying this cause of action seem to be that the plaintiff was a youth who was prone to absconding from places where she was meant to be residing and then engaging in anti-social behaviour. The underlying pleaded facts then continue with the allegation that the plaintiff after dark had gone to Dutton Park to meet friends.
118. [118]
     If part of the plaintiff’s case is that a different carer would have resulted in her not going to Dutton Park after dark to visit the friends she had arranged to meet and thus avoiding the encounter with the taxi driver, then that ought to be expressly pleaded. Paragraph [40] of the written submissions of the plaintiff strongly suggest that this is the case she wishes to pursue.
119. [119]
     I note that part of the objection under this heading is based on the State not being liable as the ultimate assault in this case was said to have been criminal conduct perpetrated by a stranger to the State over which it had no control.  I prefer not to express a finalised view in relation to that particular objection. At this point, it is appropriate to strike out paragraphs [21] through to the first numbered paragraph [23] of the Statement of Claim and grant leave to replead.
120. [120]
     When the pleading for this second sexual assault has been recast, the State can then consider whether to reagitate this particular objection in light of what will then presumably be the strongest available articulation of the plea which the plaintiff can produce.

Leave to replead

121. [121]
     The State submits that no leave should be given to replead any part of the Statement of Claim. The State effectively submits that there should be a summary termination of the entire proceeding.
122. [122]
     In support of this submission, the State relies on the following factors.
123. [123]
     First, it points to the time, resources and opportunities which have been available to the plaintiff.
124. [124]
     Secondly, the State relies upon the fact that the initial statement of claim has been amended on three separate occasions. On the last of those occasions, the then further amended statement of claim was substantially repleaded.
125. [125]
     Thirdly, the State relies on the fact that it had previously brought an application to strike out the first amended version of the statement of claim. However, it should be noted that this strike out application did not ultimately proceed to court, but rather the plaintiff agreed to amend the then amended statement of claim.  As a consequence, no rulings were made by the court in relation to particular objections.
126. [126]
     Fourthly, the State relies upon the correspondence at Exhibits RM-02 to RM-09 to the affidavit of Rachel McKeown. This correspondence between the parties ventilated many of the objections raised in this application. The final piece of correspondence on behalf of the State dated 17 October 2024 advised of its intention to file the current application.
127. [127]
     Fifthly, it was submitted that if the plaintiff was capable of remedying the defects complained of, then she would have done so by now.
128. [128]
     Whilst I have accepted the majority of the objections raised by the State, I am not of the view that it is appropriate to strike out the entire Statement of Claim without leave to replead. My reasoning is as follows.
129. [129]
     This is the first occasion upon which the pleading itself has been before the court. In that respect, this is the first occasion on which the objections raised by the State have been ruled upon. There has, therefore, been no opportunity for a repleading to be undertaken with the benefit of such rulings.
130. [130]
     Secondly, the pleading of the Statutory Duty has materially contributed to the difficulties in pleading a tortious duty to exercise reasonable care. The removal of the Statutory Duty plea will allow a proper focus to be brought to the tortious duty of care which is sought to be advanced.
131. [131]
     Certainly in relation to the first alleged sexual assault, there appears to be a case which can be pleaded against the State in a tenable way. In relation to the second alleged sexual assault, that cause of action looks significantly weaker.  The point raised by the State about the cause of action deriving from the criminal actions of a third party over which the State had no control is one which has some real merit. However, as I explored with counsel for the State, there will be some situations where a person charged with the supervision of minors could be liable.  I gave as an example a kindergarten teacher who takes her class to a public playground where only a third of the area could be surveilled by the teacher.  Liability for the actions of a third party assault of a kindergarten student who was unable to be surveilled in that scenario would be something which would be left to trial.  The example was given to merely illustrate that the actions of an uncontrolled third party may, in certain circumstances, sound in the liability of a defendant.
132. [132]
     At this point of the proceeding, I am not prepared to conclude that no maintainable cause of action is able to be repleaded in respect of that second sexual assault. It may be that after the repleading of the cause of action the State will again seek to strike out the cause of action on this basis. However, before that possibility manifests, the plaintiff ought to first be provided with a further opportunity to replead this particular cause of action in its strongest possible terms before this court rules on such an objection.
133. [133]
     Accordingly, despite prior amendments having been made to the pleading, it is appropriate that the plaintiff be given a further opportunity to replead her case, both in relation to the first sexual assault and the second sexual assault.
134. [134]
     These proceedings have not yet reached a stage where it would be appropriate to effectively dismiss the plaintiff’s proceedings in its entirety. In reaching this conclusion, I have borne in mind the obligation which the plaintiff owes this court and the State by reason of the operation of r 5 of the UCPR.

Final Orders

135. [135]
     Given that so much of the Statement of Claim ought to be struck out, it makes little sense to leave unconnected snippets of the front portion of the Statement of Claim.  None of those residual snippets would themselves constitute a pleading of an intact cause of action.
136. [136]
     It is more appropriate to strike out all of the Statement of Claim from paragraph [1] through to first numbered paragraph [23]. This will allow the plaintiff to replead the substance of her causes of action unimpeded by the unconnected snippets which would otherwise remain.
137. [137]
     None of the objections which have been made extend to that part of the pleading found in the second numbered paragraph [23] through to paragraph [26] and the prayer for relief. I will not strike out those paragraphs and I will not strike out annexure A to the pleading.
138. [138]
     In relation to costs, there is no reason why costs ought not follow the event. The plaintiff will have to pay the State’s costs of and incidental to this application, to be assessed on a standard basis.
139. [139]
     Accordingly, the order of the court will be as follows:

1. Paragraph [1] through to the first paragraph numbered [23] of the second further amended Statement of Claim are struck out.
2. The plaintiff is not given leave to replead a cause of action based on a statutory duty said to arise from s 65 of the Children’s Services Act 1965 (Qld) (repealed).

3. Except as provided for in order 2 above, the plaintiff has leave to replead her Statement of Claim in this proceeding.
4. The plaintiff to pay the defendant’s costs of and incidental to this application, to be assessed on a standard basis.