B v Attorney-General
[2022] NZHC 422
•10 March 2022
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPLICANTS/PLAINTIFFS UNTIL FURTHER ORDER OF THIS COURT IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-A-TARA ROHE
CIV-2018-485-291
[2022] NZHC 422
BETWEEN B
Applicant
AND
THE ATTORNEY-GENERAL
First Respondent
THE COMBINED BOARD OF TRUSTEES OF WESTBRIDGE RESIDENTIAL SCHOOL AND HALSWELL RESIDENTIAL COLLEGE
Second Respondent / Intended Second Defendant
CIV-2018-485-411 BETWEEN
M
ApplicantAND
THE ATTORNEY-GENERAL
First Respondent
THE COMBINED BOARD OF TRUSTEES OF WESTBRIDGE RESIDENTIAL SCHOOL AND HALSWELL RESIDENTIAL COLLEGE
Second Respondent / Intended Second Defendant
B, M & W v ATTORNEY-GENERAL [2022] NZHC 422 [10 March 2022]
CIV-2019-485-230 BETWEEN
W
ApplicantAND
THE ATTORNEY-GENERAL
First Respondent
THE COMBINED BOARD OF TRUSTEES OF WESTBRIDGE RESIDENTIAL SCHOOL AND HALSWELL RESIDENTIAL COLLEGE
Third Respondent / Intended Third Defendant
Hearing: 10 March 2022 Counsel:
A L Hill and A E Knipping for Applicants
S P R Conway and S Deng for First Respondent B G Walker for Second Respondent
Judgment:
10 March 2022
JUDGMENT OF ELLIS J
[1] B, M and W seek joinder of the Combined Board of Trustees of Westbridge Residential School and Halswell Residential College (the CBOT) as a defendant in these proceedings. The Attorney-General does not oppose joinder but it is opposed by the CBOT.
Background
[2] B, M and W are three of the many claimants who have filed proceedings relating to the abuse they say they suffered as children while in State care. Relevantly, for present purposes, they claim they experienced abuse while attending Hogben School (a residential school) in Christchurch between 1992 and 2000.
[3] Hogben School is now known as Halswell Residential College. The defendant named in the proceedings is the Attorney-General, sued for and on behalf of the
Ministry of Education (MoE). The proceedings were filed in 2018 (B and M) and 2019 (W). Applications for leave to proceed under s 4(7) of the Limitation Act 1950 were filed at the same time.
[4] Because of the sheer number of “historic abuse” claims, and the fact that all plaintiffs are represented by the same firm of lawyers, they are responded to by the Crown and case managed by the Court differently from ‘ordinary’ civil claims.1 Amongst other things, this case management involves departure (and often significant departure) from the usual steps and timeframes in the High Court Rules.
[5] By way of relevant example, the claims by B, M and W are all managed under what is known as the “DSW Litigation Protocol”. Under this Protocol, claims remain “parked” in court, while settlement discussions between the parties take place. By agreement, no statements of defence have yet been filed in the proceedings filed by B or M and no affidavit evidence has been filed in support of the applications for leave to proceed. Relatedly, there are ongoing discussions between plaintiffs’ counsel and the Crown relating to a proposed “Limitation Policy”.
[6] But by agreement between Cooper Legal (lawyers for the plaintiffs) and Crown Law (for the Attorney-General) statements of defence were filed in response to a large tranche of claims involving allegations about the Whakapakari Programme, a programme approved by the Ministry of Social Development (MSD). Included in this tranche was W’s claim, because (unusually) it involved allegations about a residential school (Hogben) and Whakapakari.
[7] In the statement of defence to W’s claim MoE pleaded that the CBOT was responsible for the operation of Hogben after 1 October 1989. Affirmative defences (statute bars said to arise under both the Limitation Act 1950 and the Accident Compensation Act 2001) were also pleaded.
1 Plaintiffs’ counsel advise that they have some 1600 active files involving claims or potential claims against MSD and approximately 180 against the MOE. The number of extant Court proceedings are thought to be between 300 and 400.
[8] At, and after, the time the statement of defence was filed (30 August 2019) counsel for the plaintiffs were occupied with progressing a small number of the Whakapakari claims—not including the claim by W—to trial.2
[9] In any event, it seems that there was little or no real focus on the Crown’s statement of defence in W’s proceeding—and the potential liability of the CBOT— until late last year. In December 2021 the applications for joinder were filed.
The joinder application
[10] It is unnecessary for present purposes to explain in any detail why it is that the CBOT may potentially be responsible for what allegedly occurred at Hogben School. That is because the CBOT accepts that, were it not for the other matters going to the tenability of the potential claims against them (discussed below), they would be appropriate defendants. It therefore suffices to note that:
(a)from at least August 1989 to January 2014, the management of Hogben/Halswell was governed by a board of trustees (composed of staff, parents and co-opted members), under the oversight of the MoE. In January 2014, the Hogben/Halswell Board of Trustees (BOT) merged with the Westbridge BOT and formed the CBOT; and
(b)the Hogben/Halswell Board of Trustees, and later the CBOT, were empowered to govern the management of Hogben/Halswell by s 75 of the Education Act 1989, which holds that unless another statute prescribes otherwise, “a school’s Board has complete discretion to control the management of the school as it thinks fit.”3
[11] So even if the Ministry of Education had relevant statutory responsibilities in relation to Hogben/Halswell, the Crown tenably contends that the CBOT was primarily responsible for the operation of Hogben/Halswell after 1 October 1989.
2 Counsel were, no doubt, also heavily involved (on behalf of their clients) in the Abuse in Care Royal Commission of Inquiry.
3 This section’s language was largely replicated by s 75 of the Education Amendment Act 2013. The Education (Update) Amendment Act 2017 also gave wide governance power to school boards of trustees, which it set out in sched 6 cl 4.
The CBOT’s opposition
[12] As I have said, the CBOT acknowledges that, in the ordinary course, they would be a suitable candidate for joinder in terms of rr 4.3 and 4.56. The CBOT accepts that the proceedings against the Ministry and the CBOT arise broadly from the same set of facts, on (almost without exception) the same grounds and in pursuit of the same damages. The CBOT acknowledges that it is correctly identified as a party for the purposes of r 4.3, “in the sense that its predecessors governed the school at the relevant times.”
[13] The opposition to joinder is, instead, based on its contention that the Court should choose not to exercise its discretion to join CBOT because:
(a)of the delay in bringing the application; and
(b)the legal impediments to the substantive claims—in the form of limitation defences and the statutory bar under the Accident Compensation Act 2001—render them unsustainable.
Discussion
[14] As will be evident from what I have said earlier in this judgment, the grounds for joinder are indisputably made out. The only matter for me to decide is whether there are other matters that lead me to conclude that the Court should nonetheless decline to exercise its discretion to make the orders sought.
Delay
[15] I put the question of delay (since 2018/2019) immediately to one side. In the wider context of this litigation—the flavour of which I have attempted to give above— the delay is both relatively insignificant and readily explicable. Moreover, I do not accept that there is any meaningful prejudice to the CBOT’s defence arising from it. To the extent there is any prejudice of that kind it is attributable to the effluxion of time since the alleged events themselves. That is a matter better considered in the context of any limitation defence.
Affirmative defences
[16] Mr Walker for the CBOT pointed out that Courts have in the past found that a relevant consideration when deciding whether to grant joinder is whether a plaintiff had a reasonable cause of action against the proposed defendant.4 And in this case, he said there were serious question-marks about the tenability of the claims against the CBOT. More particularly, he said:
(a)under s 23B of the Limitation Act 1950, the fifteen year long stop periods would have expired by 2014 or 2015;
(b)given proceedings were not initiated until 2018 and 2019, and applications for joinder were not made until 2021, the Court should not exercise its discretion to refuse to impose the long stop under s 23C or suspend the limitation period on the basis of disability under s 24;
(c)the CBOT is not a party to any apparent limitation agreement reached between the Crown and claimants; and
(d)despite the plaintiffs’ position that they are seeking general, vindicatory, special and exemplary damages, the claims are (with the exception of the claim for exemplary damages) in fact for compensatory damages for personal injury or breach of the New Zealand Bill of Rights Act, which are barred by s 317 of the Accident Compensation Act.5
[17] I accept that joinder may, on occasion, be declined on grounds related to the strength of the claim. But as Mr Walker very properly acknowledged, the Courts are reluctant effectively to determine limitation issues on a summary basis, in cases where evidence would ordinarily be required.6 Thus (for example) in Thompson v Good Shepherd Convent Trust Hansen J referred to the Court of Appeal’s decisions in S v G and W v Attorney-General where the Court noted it was preferable to make a final
4 Farrelly v Wellington City Council [2019] NZHC.
5 Wilding v Attorney-General [2003] 3 NZLR 787.
6 CCDHB v BECA [2018] NZHC 2862 and Garmonswray v Raglan Developments HC CIV 2016- 419-1066.
determination on limitation issues at the substantive hearing.7 In Thompson Hansen J also observed:8
Joinder would not therefore prejudice the intended defendants provided they are protected from the consequences of their joinder being deemed to take effect from the date of issue of the original proceeding. That can be achieved by permitting joinder on terms that the claim against the intended defendants does not operate until the date it was filed. That course was adopted in Liptons Cash Registers & Business Equipment Ltd v Hugin (GB) Ltd …, a decision at first instance but approved by the Court of Appeal in Ketteman v Hansel Properties Ltd … In Liff v Peasley Brandon LJ approved an order in these terms. After discussing the competing interests of the plaintiff and proposed new defendant, and the inability to resolve the limitation question on an interlocutory application, he said at p 643:
In order to get over this difficulty the order giving leave to add the new defendant will have to be made on special terms, namely that the addition shall not relate back but shall take effect from the date of amendment of the writ only.
[18] To similar effect, see also Body Corporate 381372 v Heron Point, Commerce Commission v Air New Zealand Ltd and CCDHB v BECA.9
[19] And as far as the question of the statute bar applying to claims for personal injury is concerned, acceptance of the CBOT’s point would not dispose of the entirety of the plaintiffs’ claims against the CBOT. The question of joinder of what remained would still require resolution.
[20] In any event, even if I could be persuaded to refuse joinder on the basis that I accepted the CBOT’s submission about the general tenability of the claims, I could not (in the context of a joinder application and in the absence of evidence) have made any final determination as to the application of the affirmative defences just discussed. So, the simple point is that even if joinder were declined, there would be nothing to preclude the plaintiffs from filing separate proceedings against the CBOT and, in all likelihood, seek consolidation. The question of affirmative defences would then fall to be determined in the course of those proceedings in the usual way. After discussion with Mr Walker this morning he accepted that reality.
7 Thompson v Good Shepherd Convent Trust (2000) 14 PRNZ 684 (HC) at [17], citing S v G [1995] 3 NZLR 681 (CA); W v Attorney-General [1999] 2 NZLR 709 (CA).
8 Thompson, above n 7, at [17].
9 Body Corporate 381372 v Heron Point [2017] NZHC 597 at [17], Commerce Commission v Air New Zealand Ltd, HC Auckland CIV-2009-404-8352, 10 December 2009, at [27]–[29] and CCDHB v BECA [2018] NZHC 2862 at [36]–[39].
[21] Accordingly, it is my clear view that joinder should be granted, but on the basis discussed in the cases discussed at [17] and [18] above. That is to the CBOT’s advantage, and addressees some of their concerns about prejudicial delay. As I understood it, the parties agreed with that caveat.
Result
[22] The application for joinder is granted. The date of joinder will be the date that the present application was made (8 December 2021).
[23] Leave to file an amended statement of claim is granted. An application for leave under s 4(7) of the Limitation Act 1950 should be filed and served at the same time.
[24] Ms Hill very responsibly accepted that the joinder of the CBOT means that these three proceedings should no longer be “parked” and should instead be progressed to trial. To that end, counsel will confer with a view to agreeing a timetable for the short to medium term. It may be sensible if that timetable has as its immediate end point a case management conference with me.
[25] The names and identifying particulars of the plaintiffs are suppressed until further order of the Court, in the (now) usual way. They should be referred to in future (as they have been in this judgment) as B, M and W.
[26]The costs of the joinder application are to lie where they fall.
[27] Leave is reserved to all counsel to seek a teleconference with me at short notice in the event the Court’s assistance is required on any matter.
Rebecca Ellis J
Solicitors:
Cooper Legal, Wellington for Applicants Crown Law, Wellington for First Respondent
Trollope & Co, Christchurch for Second Respondent
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