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Anderson v Hawke

Anderson v Hawke

Case [2016] NZHC 1541 7 July 2016

Limitation Periods

Admissibility of Evidence

Expert Evidence

Jurisdiction

Civil Litigation & Procedure

Evidence Law

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ORDER PROHIBITING SEARCH, COPY OR INSPECTION OF COURT FILE, PENDING FURTHER ORDER OF THE COURT.

PENDING FURTHER ORDER OF THE COURT, THE FILE IN THIS PROCEEDING SHALL RECORD THE PARTIES AS ANDERSON V HAWKE AND THE PROCEEDING SHALL BE LISTED AS SUCH.

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES.

THIS JUDGMENT USES FICTITIOUS NAMES AND MAY BE PUBLISHED IN THIS FORM.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-743 [2016] NZHC 1541

BETWEEN
ANDERSON AND ORS

Plaintiffs

AND

HAWKE
First Defendant

A FACILITY OWNER Second Defendant

Hearing: 22 and 29 February, 18 April 2016

Counsel:

F Joychild QC and K R Ross for Plaintiffs
S B W Grieve QC and Z A Matheson for First Defendant
P F Wicks QC and M J Dew for Second Defendant

Judgment:

7 July 2016

JUDGMENT (NO. 3) OF HEATH J

This judgment was delivered by me on 7 July 2016 at 4.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

ANDERSON AND ORS v HAWKE [2016] NZHC 1541 [7 July 2016]

CONTENTS

Introduction  [1] The plaintiffs’ claims in outline  [6] The Limitaiton Act issue  [10] Fair trial issues  [17] Analysis
(a)      Competing contentions  [26]
(b)      A key witness – Mr X  [28] (c)      Should the claims be struck out or stayed?  [39] Result  [51]

Introduction

[1] Mr Anderson and five other male plaintiffs have applied for leave to bring a claim1 against Mr Hawke, a former employee of a residential institution (the Facility)2 in which they lived at various times between 1983 and 1991. Mr Hawke is alleged to have engaged in both physical and sexual abuse towards them. The Facility Owner is also sued. It is said to be vicariously liable for Mr Hawke’s
alleged acts.3

[2] Mr Hawke and the Facility Owner have each applied to strike out or stay the proceeding. They rely on r 15.1 of the High Court Rules:

15.1 Dismissing or staying all or part of proceeding

(1) The court may strike out all or part of a pleading if it—

(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b) is likely to cause prejudice or delay; or

(c) is frivolous or vexatious; or

(d) is otherwise an abuse of the process of the court.

1      The application for leave is made under ss 4(7) of the Limitation Act 1950. That statute (though now repealed) is the controlling enactment for the purposes of this proceeding.
2      The Facility was registered under Part IX of the Children and Young Persons’ Act 1974 as a
home for children and young persons who were in need or care. After 1 November 1989, the Facility was approved as a children’s home, under s 393(3) of the Children Young Persons and Their Families Act 1989.
3      Although it is unnecessary to consider them for the purpose of this judgment, there have been two recent decisions of the Supreme Court of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson v Hawke

Details

AGLC: Anderson v Hawke [2016] NZHC 1541
Case: [2016] NZHC 1541
Decision Date: 7 July 2016

CaseChat Overview and Summary

Anderson and five other male plaintiffs sought to bring claims against Hawke, a former employee of a residential institution (the Facility), and the Facility Owner, for alleged physical and sexual abuse between 1983 and 1991. Hawke and the Facility Owner applied to strike out or stay the proceeding on the basis of Rule 15.1(1)(d) of the High Court Rules, arguing that the plaintiffs' claims were an abuse of process due to the significant delay in bringing the action and the unavailability of critical witnesses and documents. The plaintiffs argued that the claims should not be struck out or stayed and that the fair trial concerns could be addressed at trial.

The court considered whether it was appropriate to exercise its discretion to strike out or stay the proceeding. The court noted that the specific and general prejudice identified by the defendants were insufficient to deny the plaintiffs access to the Courts. The court held that the issue of specific prejudice for fair trial purposes was better determined on an application for leave under s 4(7) of the Limitation Act 1950, to be heard before any trial. The court dismissed the applications to strike out or stay the proceeding and reserved questions of costs on the present applications.

Orders