Cane v Attorney-General HC Wellington CIV 2007-485-2244

[2010] NZHC 1635

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2007-485-2244

BETWEEN  GARRY CHRISTOPHER CANE Plaintiff

ANDTHE ATTORNEY-GENERAL Defendant

Decision:        23 August 2010

DECISION OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Cooper Legal, Solicitors, PO Box 10 899, Wellington Duncan Cotterill, Solicitors, PO Box 10376, Wellington Crown Law, Solicitors, PO Box 2858, Wellington

GC CANE V THE ATTORNEY-GENERAL HC WN CIV-2007-485-2244  23 August 2010

[1]      The plaintiff has applied to this Court for orders:

(a)      Granting the plaintiff leave (if leave is required) to join the Roman Catholic Archbishop of the Archdiocese of Wellington (“the Archbishop”) as second defendant in this proceeding.

(b)       Directing that costs be reserved.

[2]      By consent of both parties this joinder application was to be dealt with on the papers with submissions filed for the plaintiff and for the Archbishop sequentially.

[3]      Those submissions have now been filed as follows:

(a)Submissions  from  JR  Upton  QC,  counsel  for  the  Archbishop  as proposed second defendant dated 2 June 2010.

(b)       Submissions from SM Cooper, solicitor for the plaintiff dated 3 June

2010.

(c)Submissions from JR Upton QC, counsel for the proposed second defendant, dated 16 August 2010.

[4]      Those submissions have been referred to me and I now give this decision on the basis of the material filed.

[5]      The grounds upon which the plaintiff seeks the order for joinder here are as follows:

(a)That the plaintiff’s causes of action against the Archbishop arise in part  out  of  the  same  facts  as  his  causes  of  action  against  the defendant.

(b)That it is necessary for the Archbishop to be joined to this action to enable  the  effective  and  complete  adjudication  upon  questions  of

causation and  attribution of damages  arising out of the plaintiff’s alleged causes of action.

(c)      That  the  plaintiff  says  he  has  attempted  to  engage  in  alternative dispute resolution with the representatives of the Archbishop but without success.

(d)Upon grounds appearing in an affidavit in support filed in this proceeding.

[6]      In   response   counsel  for  the  second  defendant  has  filed  submissions essentially amongst other things raising limitation issues in terms of the Limitation Act 1950.

[7]      Counsel for both parties acknowledge that the limitation issues raised for the Archbishop as proposed second defendant are clearly relevant to any subsequent determination in this proceeding of whether leave should be granted to the plaintiff under the Limitation Act 1950 to continue with the proceeding.   An alternative proposal from both parties is that this joinder issue might be addressed when the plaintiff’s leave application is dealt with.

[8]      In my view, this is an appropriate course of action to take here.  Mr Upton

QC for the proposed second defendant, on conditions outlined in his 16 August 2010

Minute indicates that he does not oppose an adjournment of the plaintiff’s present joinder application on the basis that it can be dealt with subsequently when the plaintiff’s leave application is considered.  Ms Cooper for the plaintiff had suggested this as a back-stop position.

[9]      A  direction  is  now  made that  this  joinder  application  by the plaintiff  is adjourned to be dealt with at the same time as the plaintiff’s application seeking leave to proceed is determined by this Court.  That is, of course, to be in advance of trial.

[10]     Simply  as  a  next  event  to  address  time  tabling  directions  to  move  this proceeding forward, this matter is now listed for call in the Associate Judge’s Chambers List on 14 September 2010.

[11]     Leave is reserved for either party to approach the Court in the mean time on

48 hours notice if additional directions are required.

‘Associate Judge D.I. Gendall’