Adamson v Chief Executive of Oranga Tamariki

[2021] NZHC 3044

NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-542

[2021] NZHC 3044

UNDER

the Judicial Procedure Act 2016

BETWEEN

IAN ADAMSON

Applicant

AND

CHIEF EXECUTIVE OF ORANGA TAMARIKI

First Respondent

JAMES ROBINSON
Second Respondent

MELANIE BAKER

Third Respondent

CIV-2021-485-543

UNDER

the Defamation Act 1992

BETWEEN

IAN ADAMSON

First Plaintiff

KATE JONES
Second Plaintiff

AND

SALLY ROBINSON

Defendant

ADAMSON v CHIEF EXECUTIVE ORANGA TAMARIKI [2021] NZHC 3044 [10 November 2021]

CIV-2021-485-544

UNDER

the Defamation Act 1992

BETWEEN

IAN ADAMSON

First Plaintiff

KATE JONES
Second Plaintiff

AND

ROSS WILSON

Defendant

CIV-2021-485-545

UNDER

the Defamation Act 1992

BETWEEN

IAN ADAMSON

First Plaintiff

KATE JONES
Second Plaintiff

AND

NICHOLAS REID

Defendant

CIV-2021-485-546

UNDER

the Defamation Act 1992

BETWEEN

IAN ADAMSON

First Plaintiff

KATE JONES
Second Plaintiff

AND

CHIEF EXECUTIVE OF ORANGA TAMARIKI

First Defendant

MYLEEN TESORO

Second Defendant

Hearing:	On the Papers
Counsel:	Plaintiffs in person
Judgment:	10 November 2021

JUDGMENT OF ISAC J

Introduction

[1]    On 24 September 2021, Cooke J dismissed Mr Adamson’s appeal regarding care and protection orders made by the Family Court regarding his three-year-old granddaughter, Alice.1

[2]    Alice is the child of Mr Adamson’s daughter, Ms Jones,2 and was born with complications affecting her ability to feed. There were concerns about the ability of Alice’s mother and maternal grandparents to address her special needs. In particular, there were issues with the administration of Alice’s prescribed feeding plan. The Family Court orders, upheld by the High Court, placed Alice in the general care of Oranga Tamariki and the day to day care of her paternal grandparents.

[3]    Following this appeal, Mr Adamson and Ms Jones have filed five proceedings, variously claiming defamation, family violence, and in one case, seeking judicial review. These proceedings all ultimately concern the same issues dealt with by the Family Court and the High Court. Pursuant to r 5.35A of the High Court Rules 2016, the Registrar has referred the proceedings to me, on the basis of his concerns that the proceedings amount to an abuse of process.

[4]    Under r 5.35B(2)(a), a Judge may, on his or her own initiative, make an order striking out proceedings referred under r 5.35A, if satisfied that it is plainly an abuse of process.

[5]I canvass the proceedings initiated by Mr Adamson and Ms Jones:

1      Adamson v Chief Executive of Oranga Tamariki [2021] NZHC 2530.

2      The parties have been given assumed names.

(a)CIV-2021-485-542: A judicial review of “all orders held by Oranga Tamariki in relation to [Alice]” is sought.

(b)CIV-2021-485-543: Defamation proceedings against Alice’s paternal grandmother. It is claimed that Alice’s paternal grandmother physically abused Ms Jones and made defamatory statements to police about her. Mr Adamson and Ms Jones seek punitive damages of $100,000.00.

(c)CIV-2021-485-544/545: Two separate defamation proceedings against the two leading paediatricians on Alice’s medical case. It is alleged each paediatrician blamed Mr Adamson and Alice’s maternal family for the failures of Alice’s prescribed feeding plans. Relief of $500,000.00 is sought from each proceeding.

(d)CIV-2021-485-546: Defamation proceedings against Oranga Tamaraki, alleging defamatory comments made by Oranga Tamariki throughout its involvement in Alice’s case, seeking $500,000.00 in relief.

Abuse of Process

[6]    The power to strike out a proposed proceeding under r 5.35B is to be exercised sparingly.3 As the Court of Appeal observed in Faloon v Planning Tribunal at Wellington, access to the Courts is an important human right, but it is subject to “basic rules to maintain order”.4 In assessing whether to strike out a proceeding for abuse of process, a Judge must consider:5

(a)whether it would be manifestly unfair to the respondents that they be required to respond; and

(b)whether right thinking people would regard this Court as exercising very poor control of its processes for it to allow the applicant’s document to be treated as a proper document.

3      Siemer v Registrar of the Supreme Court [2019] NZHC 2345 at [6].

4      Faloon v Planning Tribunal at Wellington [2020] NZCA 170 at [2].

5      Mathieson v Fildes [2017] NZHC 2258, (2017) 24 PRNZ 405 at [4]–[7]; and Mathieson v Slevin

[2018] NZHC 1032, (2018) 25 PRNZ 116 at [6].

[7]I am of the view that these proceedings are plainly an abuse of process.

[8]    First, Mr Adamson and Ms Jones seek to judicially review Family Court orders placing Alice into the general care of Oranga Tamariki. These orders have been upheld by the High Court through the appeal process. No ground(s) for judicial review have been specified, with the applicants merely reiterating their own account of Alice’s care and overall health. These are the same issues canvassed in the applicant’s unsuccessful appeal. Mr Adamson and Ms Jones are not entitled to now “go round the back and attempt re-entry through the tradesman’s entrance of judicial review.”6

[9]    Regarding the defamation proceedings, statements made by a witness in proceedings before a court are subject to an absolute privilege.7 No action can lie against a witness in defamation accordingly. So to the extent the defamation proceedings impugn statements by witnesses in the Family Court, they are plainly an abuse of process.

[10]   In addition, it is unclear from the pleadings what defamatory comments Alice’s paternal grandmother and Alice’s paediatrician are alleged to have made.

[11]   The Court has found that Alice is in need of care and protection. This ultimately reflects the position of Oranga Tamariki, Alice’s paternal whanau and her paediatricians. Indeed, the Court heard evidence from both of Alice’s paediatricians, which it clearly accepted. The memoranda and affidavits filed by Mr Adamson and Ms Jones in relation to each proceeding canvass essentially the same material, ultimately denying any failings on their part in relation to the administration (or lack thereof) of Alice’s feeding plan. The proceedings clearly amount to an attempt to relitigate outside of an appeal aspects of the Family Court proceeding already finally heard and determined, or are an attack on witnesses who gave evidence before the Family Court.

[12]   I also note that claims of physical abuse cannot form part of a defamation claim. They cannot, then, be pursued in the CIV-2021-485-543 proceeding.

6      Faloon v Planning Tribunal at Wellington, above n 4, at [17].

7      Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 (CA).

[13]   I am satisfied on the face of the documents that the purported proceedings would constitute a misuse of the Courts processes and should not be treated as proper documents. These proceedings meet the high standard necessary for an order under   r 5.35B. It would be manifestly unfair to the defendants that they be required to respond. The court would be exercising poor control of its processes if it allowed these proceedings to continue.

[14]   For the reasons above, I order that all five proceedings referred to me be struck out under r 5.35B(2)(a) of the High Court Rules 2016.

[15]   Pursuant to r 5.35B(3), I record that Mr Adamson and Ms Jones have a right to appeal against this decision.

Isac J

Solicitors:

Luke Cunningham Clere, Wellington for Defendants