Anderson v Hawke
[2016] NZHC 1541
•7 July 2016
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 DefendantA 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 DefendantJudgment:
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 That statute (though now repealed) is the controlling enactment for the purposes of this proceeding.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 United Kingdom touching on the question of vicarious liability: see Cox v Ministry of Justice [2016] UKSC 10 and Mohamud v WM Morrison Supermarkets Plc [2016] UKSC 11.
(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3) Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4) This rule does not affect the court's inherent jurisdiction.
[3] Initially, the plaintiffs contended that there was no jurisdiction for the Court to entertain an application to strike out or stay the claim on fair trial grounds, arising out of prejudicial delay. That point was argued before Fogarty J on 9 December
2015. For reasons given on 11 December 2015, the Judge held that jurisdiction did exist.4 By contrast, the question for my determination is whether this is an appropriate case in which to exercise the jurisdiction. Nothing said in Fogarty J’s judgment impacts on that question.
[4] Mr Grieve QC, for Mr Hawke, and Mr Wicks QC, for the Facility Owner, placed reliance on r 15.1(1)(d) of the High Court Rules.5 Determination of the applications turns on whether it would be an abuse of process (in a non-pejorative sense) to allow the case to proceed to trial, on the grounds that the two defendants are unable, due to specific prejudice arising from the passage of time, to receive a fair trial. Rule 15.1(3) makes it clear that relief, if justified, might be ordered in the form of either an order striking out the claim or a stay of proceeding.6
[5] A complicating factor arises out of the need, in a case such as this, for leave to be granted under s 4(7) of the Limitation Act 1950 (the Act).7 This point was raised on the jurisdictional argument before Fogarty J. He held that the existence of the limitation provision did not preclude exercise of the Court’s discretion to strike out or stay a proceeding on fair trial grounds.8 I agree. However, in considering
whether to exercise the discretion, a different question arises: namely, whether the
4 [Anderson] v [Hawke] [2015] NZHC 3176 at paras [33] and [34].
5 Set out at para [2] above.
6 The relevant parts of r 15.1 are set out at para [2] above.
7 Section 4(7) is set out para [10] below, together with s 24 of the Act which provides for the
extension of a limitation period in cases where an intended plaintiff was under a “disability”.
8 [Anderson] v [Hawke] [2015] NZHC 3176 at para [2].
nature of the s 4(7) discretion makes it inappropriate to order that the proceeding should be struck out or stayed.9
The plaintiffs’ claims in outline
[6] At various times between 6 July 1983 and 22 March 1991 each of the six plaintiffs was a child or young person in need of care, protection or control. For reasons such as inadequate family care, neglect or ill treatment, they were placed in the Facility (as an approved institution) for care and protection. At all material times, Mr Hawke was employed, in a senior position, by the Facility Owner.
[7] Each of the plaintiffs alleges that, during the period he was resident in the Facility, Mr Hawke performed acts on him which amounted to either physical or sexual abuse. The claims are brought under a number of legal heads: breach of a duty of care in negligence, the tort of assault and battery, breach of fiduciary duty, the tort of intentional infliction of emotional harm, false imprisonment, and (in one case only) breach of ss 9, 22 and 23(5) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). Claims against the Facility Owner are brought on grounds of negligence, in failing to care adequately for the children and young persons, and on the basis that it is vicariously liable for Mr Hawke’s acts. While I will summarise briefly the nature of the abuse alleged, it is unnecessary, for present purposes, to say anything more about the elements of the various causes of action.
[8] Allegations of physical abuse focus on use of what is called the “Michael Whiting Hold”. There is an issue about whether this was regarded as an acceptable form of restraint at the relevant time and, if so, whether it was administered in a manner that complied with the standards of the time. The “hold” would be effected by an adult, standing behind a chair on which a young person was sitting. The adult would pull the young person’s arms around the back of his neck, as hard as possible. The adult would then move his leg in such a way as to prevent the young person
from moving. Mr Hawke does not deny having used the “hold”. Whether that was
9 An authority to which Fogarty J referred, Bank of New Zealand v Savril Contractors Ltd [2005]
2 NZLR 475 (CA) supports the Judge’s view that the jurisdiction to strike out or stay may be exercised even though an ability to bring a fresh proceeding within a limitation period remains. However, whether it is appropriate to make such an order on the facts of any given case is a different issue.
an acceptable form of restraint or control is a trial issue; as is the way in which
Mr Hawke carried it into effect.
[9] Alleged sexual abuse includes massaging the boys in the area of the groin; masturbating a complainant; fondling a complainant’s testicles and penis; and compelling a complainant to perform oral sexual acts on him. Those examples are not exhaustive.
The Limitation Act issue
[10] A statement of claim was filed on 21 March 2014. At the same time, applications were made for orders granting leave to proceed, in case the proceedings had not been brought within time. They were brought in reliance on ss 4(7) and 24 of the Act, which state:
4 Limitation of actions of contract and tort, and certain other actions
…
(7) An action in respect of the bodily injury to any person shall not be brought after the expiration of 2 years from the date on which the cause of action accrued unless the action is brought with the consent of the intended defendant before the expiration of 6 years from that date:
Provided that if the intended defendant does not consent, application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time within 6 years from the date on which the cause of action accrued; and the Court may, if it thinks it is just to do so, grant leave accordingly, subject to such conditions (if any) as it thinks it is just to impose, where it considers that the delay in bringing the action was occasioned by mistake of fact or mistake of any matter of law other than the provisions of this subsection or by any other reasonable cause or that the intended defendant was not materially prejudiced in his defence or otherwise by the delay.
….
24 Extension of limitation period in case of disability
If, on the date when any right of action accrued for which a period of limitation is prescribed by or may be prescribed under this Act the person to whom it accrued was under a disability,—
(a) in the case of any action in respect of the death of or bodily injury to any person, or of any action to recover a penalty or forfeiture or sum by way thereof by virtue of any enactment where the action is brought by an aggrieved party, the right of action shall be deemed to
have accrued on the date when the person ceased to be under a disability or died, whichever event first occurred; or
(b) in any other case the action may be brought before the expiration of
6 years from the date when the person ceased to be under a disability or died, whichever event first occurred,—
notwithstanding that, in any case to which either of the foregoing paragraphs of this section applies, the period of limitation has expired:
Provided that—
(c) this section shall not affect any case where the right of action first accrued to some person (not under a disability) through whom the person under a disability claims;
(d) when a right of action which has accrued to a person under a disability accrues, on the death of that person while still under a disability, to another person under a disability, no further extension of time shall be allowed by reason of the disability of the second person;
(e) no action to recover land or money charged on land shall be brought by virtue of this section by any person after the expiration of 30 years from the date on which the right of action accrued to that person or some person through whom he claims; and
…
(g) this section shall not apply to any action to recover a penalty or forfeiture, or sum by way thereof, by virtue of any enactment, except where the action is brought by an aggrieved party.
[11] Each application for leave relied on evidence that the particular applicant was “under a disability” for the purposes of s 24 of the Act, thereby postponing the start of the limitation period. No attempt was made to establish that the plaintiffs had a prima facie case against Mr Hawke and the Facility Owner.10 I apprehend that was a deliberate decision. All counsel proceeded before both Fogarty J and myself on the assumption that the leave application should be dealt with at trial.11
[12] With respect, I consider counsel have proceeded on a false premise. The appellate authorities on which they relied do not hold that a s 4(7) leave application
must invariably be heard in conjunction with the substantive claim. Rather, they
10 The relevance of this point appears from para [86] of Thomas J’s judgment in W v Attorney- General [1999] 2 NZLR 709 (CA), set out at para [14] below.
11 See [Anderson] v [Hawke] [2015] NZHC 3176, at para [1].
focus on the undesirability of the Court embarking on a contested leave application, involving oral evidence.
[13] In W v Attorney-General,12 the Court of Appeal considered whether the High Court had been right to determine a s 4(7) leave application at a pre-trial hearing involving oral evidence. Understandably, the proposition that an intending plaintiff who alleges historical sexual abuse might be required to subject himself or herself to cross-examination on more than one occasion was not sympathetically received. In that case, the potential for cross-examination on the leave application arose out of a perceived need to determine whether the proceeding had been brought within time.
Applying its earlier judgment in S v G,13 the Court of Appeal determined that the
limitation point should be left for determination at trial. If leave would otherwise be granted, it was preferable for it to be given without prejudice to a defendant’s right to raise the point as a positive defence at trial.14
[14] A distinction was drawn, in W v Attorney-General, between two discrete aspects of a leave application. The first involves the need for a plaintiff to establish a prima facie case. The second concerns a plaintiff’s need to provide sufficient evidence to overcome a limitation defence. On this point, Thomas J said:15
[86] It is effectively the fact that the defendant is entitled to raise the Limitation Act as a positive defence at the trial which makes it inappropriate to seek to determine the issue by way of a pretrial application. Rather, where leave is required and the affidavit evidence indicates a prima facie case, the better course is to grant leave without prejudice to the defendant's right to pursue the positive defence at the trial. This course was intimated in both S v G, and T v H.
(Emphasis added)
[15] Tipping J added:
[115] Put shortly, applications under s 4(7) of the Limitation Act 1950 should be determined without prejudice to issues of limitation, unless the intended claim is beyond doubt on its face statute-barred. … The approach
12 W v Attorney-General [1999] 2 NZLR 709 (CA).
13 S v G [1995] 3 NZLR 681 (CA), at 690.
14 W v Attorney-General [1999] 2 NZLR 709 (CA) at 84–86 (Thomas J) and 115–116 (Tipping J), set out at paras [14] and [15] below. The third Judge, Salmon J, did not comment on this aspect of the appeal.
15 The cases to which the Judge referred are S v G [1995] 3 NZLR 681 (CA) and T v H [1995] 3
NZLR 37 (CA).
adopted in the High Court in this case and others appears to have overlooked contrary signals from this Court both in S v G and in T v H … . In S v G at p
690, this Court said:
“. . . it is preferable that the issue of any time-bar have consideration in conjunction with the substantive proceeding when all the evidence is available and has been tested. Where an application is made under s 4(7) for leave based on delayed discovery of the cause of action and it is dealt with prior to trial it will be appropriate to impose a condition that leave will not prevent the issue of limitation being raised at the trial in the light of the facts as eventually found.”
This reference to a condition would perhaps be better expressed, in the light of experience since S v G, as a grant of leave without prejudice to issues of limitation. In other words, on an application under s 4(7), save in cases involving an undoubted time-bar, the Court should assume in the intending plaintiff's favour that the application for leave is within time, but that assumption is made without prejudice to the defendant's right to plead a statutory or analogous time-bar at trial.
[16] In determining whether this is an appropriate case for the Court to strike out or stay the proceeding because the fair trial rights of both Mr Hawke and the Facility Owner may be in jeopardy, I have regard to the procedural safeguard requiring leave. In my view, the point turns on whether it is more appropriate for the fair trial concerns to be ventilated on a defended application for leave under s 4(7) of the Act, or on the strike out/or stay application brought on abuse of process grounds, under
r 15.1(1)(d) of the High Court Rules.16
Fair trial issues
[17] The question whether a civil proceeding of this type should be struck out or stayed for specific prejudice resulting in an inability to receive a fair trial is not one that has been considered previously. Nevertheless, assistance can be derived from authorities in the criminal sphere which consider the same question in the context of criminal charges brought against a defendant based on allegations of historical sexual abuse.
[18] The leading decision is that of the Supreme Court in CT v R.17 In that case, the Supreme Court considered the circumstances in which a prosecution of that type
16 Section 4(7) is set out at para [10] above. Rule 15.1(1)(d) is set out at para [2] above.
17 CT v R [2014] NZSC 155, [2015] 1 NZLR 465.
might be stayed on fair trial grounds. In such a proceeding a defendant’s fair trial
rights are protected by s 25(a) of the Bill of Rights.
[19] While s 25(a) is part of a provision that sets minimum standards of criminal procedure, there is no doubt that fair trial concerns can be raised in civil proceedings in the context of a claim of abuse of process,18 even where a limitation period has not expired.19 Section 27 of the Bill of Rights, by its guarantee of judicial processes that accord with the principles of natural justice, supports that proposition. However,
while counsel accept that the principles are equally applicable to proceedings brought in the civil jurisdiction, they disagree about their application in a case such as this.
[20] Delivering the judgment of a plurality20 in the Supreme Court in CT, William Young J explained the context in which historical sexual abuse prosecutions often occurred, and the allied problems of delay for fair trial purposes. Relevantly, for present purposes, His Honour said:21
[13] The present case has a number of features which are common to many prosecutions for historical sexual abuse: a complainant who at the time of the offending was comparatively young, an alleged offender who was older, a broader relationship between them (in this case familial) providing the context for the alleged offending and a delay of decades between the alleged offending and prosecution. Cases of this sort pose significant problems for the courts. The rules and procedures which have grown up around criminal trials, particularly as to reliance on oral evidence based on memory, were developed in the context of cases in which the delay between offending and trial is usually comparatively short and where at least some aspects of the narratives of prosecution witnesses can be checked by reference to independent evidence. Compared to that norm, prosecutions for historical sexual abuse give rise to particular forensic problems which were identified in an Australian case as involving:
• the reliability or the accuracy of the complainant’s recollections … so
many years after the events;
18 For example, see Bank of New Zealand v Savril Contractors Ltd [2005] 2 NZLR 475 (CA) applying Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) at 9 (per Richardson J) and Hunter v Chief Constable of West Midlands [1982] AC 526 (HL) at 536 (per Lord Diplock).
19 Bank of New Zealand v Savril Contractors Ltd [2005] 2 NZLR 475 (CA), at paras [88] and
[111].
20 Elias CJ, McGrath and William Young JJ. Glazebrook and Arnold JJ agreed with the plurality on this aspect of the appeal: see CT v R [2014] NZSC 155, [2015] 1 NZLR 465, at para [59].
21 CT v R [2014] NZSC 155, [2015] 1 NZLR 465, at paras [13]–[16]. The Australian case to which William Young J refers at para [13] is R v Jacobi [2012] 114 SASR 227, a decision of the Full Court of the Supreme Court of South Australia.
• the difficulty confronting a trier of fact when assessing the veracity and reliability of a person, not by hearing and observing their evidence given when young, soon after the events are said to have taken place and with the child’s contemporary language and understanding but after hearing and observing evidence given in the language of an experienced adult with all of the possibilities of reconstruction and re-interpretation that this entails;
• the difficulty confronting the [defendant in] having to go well back in time to recall, check and verify the accuracy of events about which evidence is given; and
• the difficulty confronting the [defendant] in endeavouring to obtain and produce documentary evidence or oral evidence from other witnesses which might put in question the evidence of a complainant as to events, times and places.
As well, those facing prosecution may be well-advanced in years and sometimes subject to age-related cognitive impairment or other serious health issues.
[14] Loss of evidence arguments can cut both ways. For instance, a defendant facing charges of historical sexual abuse may be better placed than if prosecuted soon after the offending, as evidence which might have supported the prosecution may have been lost. But, given that juries can – and often do – convict on the basis of only the evidence of a complainant, it is realistic to accept that delay will almost always carry some risk of prejudice to a defendant resulting from the loss or diminution of what would, in the case of a prompt prosecution, be the opportunity to come up with evidence which contradicts aspects of the Crown case or provides some support for the defence case.
…
[16] There is strong public interest in the courts facilitating and not frustrating prosecutions for historical sexual abuse. As well, there is no general limitation period for prosecutions for sexual offending. When prosecutions for historical sexual abuse became common, the response of Parliament (albeit not very prompt) was to legislate away the time limit for prosecution in respect of offending against girls between the ages of 12 and
16. The corollary of these two interconnected considerations is that prejudice of a kind which is commonplace in cases of historical sexual abuse does not
warrant a stay. This is reconcilable with the fair trial guarantees in s 25 of the
New Zealand Bill of Rights Act if, but only if, such prejudice is appropriately mitigated. Such mitigation is largely achieved by the general rules of criminal procedure (particularly as to the onus and standard of proof) and careful evaluation by the trier of fact of the evidence which is adduced. But it also usually requires the judge to take particular measures to reduce, as far as possible, the risk of delay-related prejudice.
(Footnotes omitted)
[21] William Young J also set out the factors relevant to determination of whether fair trial risks were sufficient to justify a stay of prosecution.22 In the particular case, the Supreme Court recognised that the Crown case was sufficient to go to trial but considered that, by the time evidence had been tested in cross-examination, a stay should have been granted before the accused made an election whether to call evidence.
[22] In reaching that conclusion, William Young J drew attention to the following factors:23
(a) There is no presumption that after any particular period of time, memories are too unreliable for the purposes of a trial.
(b)A Judge should grant a stay if persuaded that, despite the operation of the burden and standard of proof, there cannot be a fair trial. Any steps that a trial Judge can take to mitigate the risk of prejudice become relevant in this context.
(c) A judicial evaluation is required, based on an assessment of the circumstances that exist at the time the application is made, and of the likely prejudicial effects of delay.
(d) Material considerations will include:
(i) The unavailability of defence witnesses. (ii) The unavailability of relevant documents.
(iii)The unavailability of independent evidence of whereabouts and activity;
(iv) The general impact of time on memory;
22 CT v R [2014] NZSC 155, [2015] 1 NZLR 465, at para [32].
23 Ibid.
(v)Any deterioration in the defendant’s physical or mental health, with consequential impact on his or her ability to mount a defence;
(vi)Lack of clarity around the particular acts that are said to constitute the abuse, and the times within which it is said to have occurred;
(vii)There is no burden to establish prejudice of a type that justifies a stay. The decision whether to grant the remedy is an evaluative assessment to be made by the judicial officer considering the application.
[23] I bear in mind that, even in cases where the alleged conduct occurred some decades earlier or the range of time within which particular offending is alleged to have occurred is broadly expressed, historical sexual abuse prosecutions have been allowed to proceed. In CT itself, the allegations were of sexual abuse in the early
1970s. The trial took place in 2013. In another, O’Reilly v R,24 a defendant faced
charges of buggery,25 and sodomy26 that were alleged to have been committed between 13 May 1958 and 31 December 1961. In that case, the delay to trial was more than 50 years. So, criminal proceedings that go back to dates well beyond those involved in the present case have been allowed to proceed, notwithstanding extraordinary delay.
[24] There are at least two material differences between criminal and civil proceedings, in relation to allegations of historical sexual abuse:
(a) The first concerns the standard of proof. In the present case, that is something of importance to Mr Hawke and the Facility Owner. The plaintiffs must establish their allegations on a balance of probabilities, not beyond reasonable doubt. The criminal standard is a safeguard
not available in civil litigation.
24 O’Reilly v R [2015] NZCA 604.
25 Brought under the Crimes Act 1908.
26 Brought under the Crimes Act 1961.
(b) The second is the existence of a limitation period for civil cases.
There is “no general limitation period for prosecutions for sexual offending”.27 On the other hand, ss 4(7) and 24 of the Act are designed to enable a claimant to bring a late claim if he or she had previously laboured under a relevant disability, while providing protections for a defendant by requiring the Court to grant leave (on conditions where appropriate) to a plaintiff to bring the proceeding.28
[25] As the Supreme Court made clear in CT v R,29 there is a “strong public interest in the courts facilitating and not frustrating prosecutions for historical sexual abuse”. That public interest is no less strong in the context of civil proceedings. The difference is that criminal prosecutions are brought in the interests of all members of society, whereas civil proceedings provide a means by which an individual claimant can vindicate a private right.
Analysis
(a) Competing contentions
[26] Mr Grieve and Mr Wicks pointed to the unavailability of critical witnesses and contemporary documents, as well as destruction of the Facility by fire, to support their submission that Mr Hawke and the Facility Owner were unable to defend themselves adequately; and, so could not receive a fair trial.
[27] Ms Joychild QC, for the plaintiffs, submitted that the specific and general prejudice identified by both Mr Grieve and Mr Wicks were insufficient to deny the plaintiffs access to the Courts to determine their allegations of abuse. She submits that the unavailability of witnesses, while relevant to the weight to be attached to particular evidence at trial, is not so critical as to justify a pre-emptive decision to
terminate the proceeding.
27 CT v R [2014] NZSC 155, [2015] 1 NZLR 465, at para [16], set out at para [20] above.
28 Section 4(7) of the Limitation Act 1950 is set out at para [10] above.
29 CT v R [2014] NZSC 155, [2015] 1 NZLR 465.
(b) A key witness – Mr X
[28] The application first came before me on 22 February 2016.
[29] Notwithstanding the interlocutory nature of the application, the plaintiffs applied to cross-examine a psychiatrist who had made an affidavit touching on the question whether a significant witness (whom I shall call Mr X) had sufficient cognitive ability to give evidence in the proceeding. The psychiatric evidence was important because Mr X is someone who would likely have first-hand knowledge of the way in which the Facility was operated, and his unavailability might cause the type of specific prejudice to fair trial rights of Mr Hawke that the jurisdiction to strike out or stay is intended to protect.
[30] Cross-examination of the maker of an affidavit in interlocutory proceedings is governed by r 7.28 of the High Court Rules. It states:
7.28 Cross-examination of maker of affidavit
A Judge may in special circumstances, on the application of a party, order the attendance for cross-examination of a person who has made an affidavit in support of, or in opposition to, an interlocutory application.
[31] I heard from counsel at the start of the hearing about whether there were “special circumstances” justifying the need for cross-examination. In Kidd v van Heeren,30 the Court of Appeal held made it clear that something abnormal, uncommon or out of the ordinary, but less than extraordinary or unique, is required to cross the threshold. A mere conflict of evidence is insufficient.31
[32] On the state of the evidence on the first day of the hearing, I could say no more than that there was an evidential foundation for a genuine concern that Mr X’s cognitive ability was such that he could not give reliable evidence. There was nothing specific to the present applications on which cross-examination could have
assisted materially.
30 Kidd v van Heeren (1997) 11 PRNZ 422 (CA).
31 Garry Denning Ltd v Wright [1989] 1 NZLR 45 (HC).
[33] In the circumstances, I was not satisfied that “special circumstances” existed.
I declined to permit cross-examination.
[34] Subsequently, counsel for Mr Hawke and the Facility Owner applied to have the application re-listed for the limited purpose of making submissions on the availability or otherwise of Mr X to give evidence. That request was prompted by additional written material presented by Ms Joychild at the 22 February 2016 hearing. Neither defendant had had an opportunity to consider that beforehand. A further hearing at 9am on 29 February 2016 was allocated for that purpose.
[35] Following the 29 February 2016 hearing, I made further directions to enable counsel for the plaintiffs to nominate a psychiatrist to examine Mr X, in the same way that Dr Casey had. At a mention hearing on 22 March 2016, I made some further directions in that regard. However problems arose when a competency assessor chosen by the plaintiffs, Dr Nuth, sought to examine Mr X. These problems were discussed at a further hearing on 18 April 2016. During the course of that day, an agreement was reached among counsel about how the issue should be addressed. I recorded:
[5] As a result of today’s discussions, counsel have agreed a process for resolving this issue through a joint examination of the witness to be undertaken by Dr Casey and Dr Nuth. The precise terms are:
[a] The examination will be for the purpose of conducting “performance validity tests” by Dr Nuth; and
[b] [Mr X] will only be asked questions that are general in nature; not suggestive of an answer and not in dispute in the litigation, such as are exemplified by the bullet point questions referred to in an email of 18 April
2016 at 3.10pm from counsel for the plaintiffs to counsel for the defendants.
[c] Drs Nuth and Casey will prepare a joint report on their assessment of
[Mr X’s] mental capacity and provide that to the parties.
[d] The answers given by [Mr X] will not be admissible at trial or called in evidence against the defendants and will only be used for the purposes of the joint assessment of Dr Nuth and Dr Casey;
[e] The plaintiffs will pay for Dr Nuth’s costs; and
[f] The parties will provide a copy of the joint report to the Court on the basis that the Court will then determine the applications for stay which are currently adjourned.
[36] On 14 June 2016, Ms Joychild provided a memorandum to the Court which annexed Dr Nuth’s assessment of Mr X’s competency to give evidence. He concluded:
Whilst some of the information [Mr X] might offer as a witness may well be accurate; I believe it would be extremely difficult for a decision-maker to be able to differentiate between accurate information and confabulated (unreliable) responses.
[37] Ms Joychild, based on Dr Nuth’s assessment that Mr X is suffering progressive cognitive decline consistent with Alzheimer and Vascular-type dementia, accepted that a reassessment of Mr X’s competence closer to trial date is unlikely to yield a different conclusion. Subject to any contrary view I might form, the plaintiffs now accept that Mr X can be treated as unavailable as a witness. I agree with Ms Joychild’s assessment.
[38] Accordingly, I consider the strike-out/stay application based on the probability that Mr X will be unable to give reliable evidence at trial. That is relevant to the question of specific prejudice, for fair trial purposes. Nonetheless, I record Ms Joychild’s position that “the unavailability of [Mr X] does not, for either defendant, assist in their strike-out applications”.
(c) Should the claims be struck out or stayed?
[39] The behaviour of which complaint is made allegedly occurred between July
1983 and March 1991: between 23 and 31 years before the first statement of claim was filed on 21 March 2014. Specific occasions on which a particular plaintiff alleges that he was abused are identified, so far as possible.
[40] The s 4(7) applications for leave to proceed are based, in the main, on assertions that the relevant plaintiff laboured under a disability and that the limitation period has been postponed. Having reviewed the evidence, I think it is likely that, if leave to proceed were granted, it would be without prejudice to either Mr Hawke or the Facility Owner raising a plea of limitation by way of affirmative defence. That
approach accords with the views expressed by both Thomas and Tipping JJ, in W v
Attorney-General.32
[41] There are 12 witnesses whom Mr Hawke and the Facility Owner contend are now unavailable to support them in their defence. They include Mr X, who founded the Facility and was one of those responsible for supervising Mr Hawke. A number of assertions are made to support the plaintiffs’ case which only Mr X, as an independent witness may be able to support Mr Hawke’s position. As previously
indicated,33 Mr X is suffering from a decline in cognitive ability for reasons
associated with Alzheimer and Vascular-type dementia.
[42] Two other material witnesses, one of whom also acted as Mr Hawke’s supervisor, have been diagnosed with dementia. Another has not been located. Others who regularly attended at the Facility who are likely to remember relevant events are also unavailable, for various reasons.
[43] In addition to the unavailability of a number of important witnesses, contemporary documents are no longer available, and real evidence cannot be gathered about the layout of the Facility because it was destroyed by fire. On their own, those considerations would not be such as to give rise to any fear that fair trial rights might be compromised, but they are relevant factors to be taken into account along with the unavailability of the witnesses.
[44] I am satisfied that the witnesses to whom I have referred are important to the defences to be offered by Mr Hawke and the Facility Owner. But, that is not enough for them to succeed on an application of the present type. Adapting what was said by William Young J in CT, in the context of a criminal prosecution, “it is realistic to accept that delay will almost always carry some risk of prejudice to a defendant resulting from the loss or diminution of what would, in the case of a prompt [civil proceeding], be the opportunity to come up with evidence which contradicts aspects
of the [plaintiffs’] case or provides some support for the defence case”.34
32 W v Attorney-General [1999] 2 NZLR 709 (CA) at paras [86] (per Thomas J) and [115] (per
Tipping J), set out at paras [14] and [15] above.
33 See para [37] above.
34 CT v R [2014] NZSC 155, [2015] 1 NZLR 465, at para [14], set out at para [20] above.
[45] There is also the point that, although a number of people may have been in the vicinity of Mr Hawke and the plaintiffs at the relevant time, sexual abuse of the type alleged is more likely to be carried out in a furtive manner, out of the gaze of anyone who might otherwise be expected to see what is happening. The reality of the all too many prosecutions for historical sexual abuse that come before the Court is that serious sexual offending can often be perpetrated by someone of good repute; without anyone who might be expected to witness such behaviour realising anything untoward had occurred.
[46] While I am not unmindful of the particular problems faced by Mr Hawke and the Facility Owner in this case, I am not satisfied that I should take the extreme step of shutting out the plaintiffs from their claims without a trial, on the basis of the evidence adduced to date. While my view is that the issue is better determined on an application for leave under s 4(7) of the Act, to be heard before any trial, this conclusion does not mean that an application under r 15.1 (in a case such as this) could never succeed. For example, the pleadings could be so defective as to bring r
15.1(1)(a) into play.35
[47] Contrary to the position that the parties took before Fogarty J and intimated to me, W v Attorney-General is not authority for the proposition that a leave application involving questions of evidential sufficiency or prejudice to fair trial rights for delay, cannot be heard before a substantive trial. The judgment of Thomas J in W v Attorney-General makes that point clear: he said “Where leave is required and the affidavit evidence indicates a prima facie case, the better course is to grant leave without prejudice to the defendant’s right to pursue the positive
[limitation] defence at the trial”.36 Nothing said by either Tipping or Salmon JJ is
inconsistent with that proposition.
[48] In my view, the leave application should be heard first. It should be supported by affidavits (or signed witness statements) from each of the plaintiffs (and other relevant witnesses) that sets out the evidence that each will give at trial. A
consideration of that evidence (which will be much more specific than the existing
35 Rule 15.1 is set out at para [2] above. See also, more generally, Couch v Attorney-General (on appeal from Hobson v Attorney-General) [2008] NZSC 45; [2008] 3 NZLR 725.
36 W v Attorney-General [1999] 2 NZLR 709 (CA) at para [86], set out at para [14] above.
pleading) will enable counsel for Mr Hawke and the Facility Owner to point to areas in which their clients’ fair trial rights are prejudiced through the inability to call important witnesses.
[49] If either no prima facie case were established, or the Court were satisfied that the defendants were so prejudiced that they could not receive a fair trial, leave would be refused and the proceeding would be at an end. If that approach were taken, all plaintiffs will have had an opportunity to put their case before the Court for consideration, rather than have it struck out pre-emptively without a full understanding of its context and focus. On the other hand, Mr Hawke and the Facility Owner will be able to have their fair trial concerns properly assessed.
[50] I propose to dismiss the r 15.1(1)(d) applications for strike out or stay. It is axiomatic that if leave to proceed were granted under s 4(7) of the Act, a strike out or stay application could not succeed. I intend, however, to reserve questions of costs on the present applications, so that they may be resolved at the same time as the leave application is determined. That, I consider, is the fairest outcome to all parties, in the circumstances.
Result
[51] For those reasons, the applications to strike out or stay the proceeding are dismissed. Costs are reserved.
[52] There are other applications that have been filed and may require resolution. One which will be relevant to the way in which the parties wish to put their cases on the s 4(7) leave application involves an attempt by Mr Hawke and the Facility Owner to set aside a claim of confidentiality in respect of disclosures made under a “Confidential Listening and Assistance” scheme, established by the Government. I have received a report from amicus curiae on the difficult issues that arise on that application. It will be determined as soon as possible after counsel indicate whether they wish to make any further submissions.
[53] After that application is decided, I shall direct the Registrar to convene a case management conference so that directions may be made in an endeavour to bring the proceeding to a conclusion as soon as practicable.
[54] I thank counsel for their assistance.
P R Heath J
Delivered at 4.00pm on 7 July 2016
Solicitors:
Cooper Legal, Wellington Glaister Ennor, Auckland McVeagh Fleming, Auckland Counsel:
F Joychild QC, Auckland
S B W Grieve QC, Auckland
P F Wicks QC, Auckland
M J Dew, Auckland
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