XBT v State of Queensland

As a child, the plaintiff had been the subject of a care and control order made under s 62 Children’s Services Act 1965 (now repealed). She brought a claim against the State alleging a breach of statutory, common law and employee duty in relation to claims that she was allegedly sexually assaulted whilst under the care and control order. As part of the claim, she pleaded that she an implied private civil remedy arose where a breach of s 65(1) of the Act had occurred. Justice Sullivan rejected that part of her claim on the grounds that there was no basis for implying a private civil remedy. That part of the pleading was struck out without leave to replead.

Sullivan J

7 February 2025

The State of Queensland applied to strike out the entirety of the plaintiff’s Second Further Amended Statement of Claim on the basis that it did not disclose maintainable causes of action. [1]. The basis of the plaintiff’s case arose from a care and control order which related to the plaintiff at the time she had been in the State’s care as a child. The plaintiff pleaded that the care and control order had imposed upon the director of the Department of Children’s Services a statutory duty under s 65 Children’s Services Act 1965 (“the Act”) “to utilize [sic] the powers and resources of the department so as to further the best interests of such child in care”. [11], [24].

The plaintiff submitted that a private civil remedy was, by implication, provided to a child where a breach of s 65(1) occurred. [37].

The duty in section 65

Section 65, as it then was, provided as follows:

“Duty of Director to child committed to care and control

(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—

(a) any parent of such child in care;

(b) a relative or friend of such child in care;

(c) any person approved by the director;

(d) placing such child in care in an institution established or licensed pursuant to part 4;

(e)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.”

The statutory duty cause of action – the parties’ positions

The State argued that this cause of action was not maintainable at law. Citing Schulz v Schmauser [2001] 1 Qd R 540 and Hopkins v State of Queensland [2004] QDC 21, the State noted that courts infrequently find that statutes confer a private civil remedy. In addition, it contended that since the relevant Act was enacted for the general welfare of the community, it was improbable that a breach of the duty in s 65 was intended to give rise to a private civil remedy. [26]. The State also argued that s 65 is not expressed in terms of the prevention of injury or damage to a child. [30].

Conversely, the plaintiff contended that the words appearing at the start of s 65 together with the fact that the larger statute did not contain any machinery for enforcement of the statutory duty found in s 65 both amounted to significant indicators that there was, by implication, a private civil remedy provided. [38]–[39].

Consideration

His Honour held that s 65, as a matter of law, did not give rise to a private civil remedy. [42]. His Honour reached that conclusion noting as follows:

(1)whether or not a private civil remedy is granted by implication is a question of statutory construction, having regard to not only the wording of the specific section, but a consideration of the relevant Act read as a whole together with the circumstances in which the section was enacted: see O’Connor v SP Bray Ltd (1937) 56 CLR 464, 477–478 (per Dixon J); [43];

(2)neither the wording of s 65 nor the wording of the Act as a whole lends support to the proposition that there is a private civil remedy vested in particular individuals; [44];

(3)the second reading speech for the Act does not support the implication of such a private civil remedy; [45];

(4)generally, the process of statutory interpretation seldom supports the necessary implication of a correlative private civil remedy for the breach of a statutory duty; [46];

(5)whilst 65 is not expressed to be an offence provision and whether s 148 of the Act makes a breach of s 65 an offence is debatable, that alone does not indicate the presence of an implied private civil remedy; [47], [49];

(6)whilst a statutory duty which is couched in general terms is able to give rise to a private civil remedy, in the current matter the duty was “expressed in a particularly general way in conjunction with a broad discretion”; [50];

(7)since s 65 is essentially an administrative provision the lack of an accompanying enforcement provision is not a marker of an implied private civil remedy. [54]–[55]

His Honour found that the language used in s 65 of the Act is inconsistent with any intention to create a private civil remedy. [59].

Disposition

The Court struck out portions of the plaintiff’s Second Further Amended Statement of Claim inclusive of the paragraphs relating to the cause of action based on a statutory duty said to arise from s 65 of the Act. The plaintiff was not given leave to replead the cause of action based on a statutory duty said to arise from s 65 of the Act.

The plaintiff was ordered to pay the defendant’s costs of and incidental to the application on a standard basis.

A Jarro