THE ATTORNEY-GENERAL SUED IN RESPECT OF ORANGA TAMARIKI, ITS OFFICES, EMPLOYEES AND AGENTS
First Defendant
A SOCIAL WORKER
Second Defendant
Hearing:
31 July, 1 August, 12 and 15 September 2023
Counsel:
R Harrison KC and J Matheson for Plaintiff E Dowse and N El Sanjak for First Defendant
P J K Spring and H G Holmes for Second Defendant
Judgment:
31 January 2024
Reissued:
2 February 2024
JUDGMENT OF MUIR J
[Re: Application to strike out, for summary judgment and other orders]
This judgment was delivered by me on 31 January 2024 at 3.00 pm,
pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Crown Law, Wellington
EM v THE ATTORNEY-GENERAL & ANOR [2024] NZHC 39 [31 January 2024]
TABLE OF CONTENTS
INTRODUCTION [1]
BACKGROUND [8]
MY APPROACH TO THE APPLICATIONS [27]
SW’S APPLICATION FOR SUMMARY JUDGMENT [30]
Legal principles [30]
Application to adduce further evidence [33]
Preliminary points [54] Collateral attack [56]
Witness immunity [68]
First cause of action: misfeasance in a public office [75]
Is a social worker a “public officer”? [78]
EM’s allegations [94]
Paragraphs 12.1 and 18.2 [95]
Paragraphs 12.2, 12.3 and 18.2 [99]
Paragraph 12.4 [103]
Paragraph 12.5 [108]
Paragraph 12.6 [116]
Paragraph 18.3 [121]
Paragraph 18.4 [133]
Paragraph 18.5 [135]
Paragraph 18.6 [141]
The second cause of action: abuse of process/malicious pursuit of civil proceedings [150]
Malicious prosecution of civil proceedings [151]
Abuse of process [177]
Third cause of action: negligence [184]
Fourth cause of action: breach of the NZBORA [210]
Result on SW’s summary judgment application [221] THE CROWN’S APPLICATION FOR STRIKE OUT [222]
Legal principles [224]
The first and second causes of action [225]
The third cause of action [228] The fourth cause of action [236]
Freedom of religion, freedom from discrimination and minority rights [237]
Unreasonable search and seizure [241]
Natural justice [258]
RESULT [280]
COSTS [282]
SUPPRESSION [283]
INTRODUCTION
[1] On 30 October 2017, EM’s three children then aged two months (C3), eighteen months (C2) and three years (C1), were uplifted pursuant to interim custody orders of the Family Court in favour of the Chief Executive of the Ministry for Vulnerable Children Oranga Tamariki (the Ministry).1
[2] The orders were made on ex parte applications, supported by affidavits of the second defendant (SW) (these are not his actual initials), a social worker employed by the Ministry. Separate applications were made in respect of the two elder children, the father of whom is EM’s former partner, NA, and the youngest child, the father of whom father is MK, EM’s partner at the time. The affidavits contained a significant amount of common material.
[3] Contemporaneously with its ex parte application, the Ministry filed an…
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.
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AGLC
EM v Attorney-General [2024] NZHC 39
Case
[2024] NZHC 39
Decision Date
CaseChat Overview and Summary
The case of EM v The Attorney-General & Anor was heard in the High Court of New Zealand, Auckland Registry. EM, the plaintiff, alleged that her three children were wrongfully uplifted by the Ministry for Vulnerable Children Oranga Tamariki and a social worker, the second defendant, in an ex parte application. EM sought damages from both the Crown and the social worker, alleging misfeasance in public office, abuse of process, negligence, and breaches of the New Zealand Bill of Rights Act 1990 (NZBORA). The Crown and the social worker applied for summary judgment and strike out, respectively.
The court considered the social worker's application for summary judgment first, as it best developed the facts underpinning all causes of action against both parties. The court found that the social worker had established on the balance of probabilities that EM could not succeed on any of her claims. Regarding the misfeasance claim, the court held that the social worker was a public officer, as his role involved a significant exercise of executive power. However, EM's allegations of misfeasance were unsupported by the evidence. The court also dismissed EM's claims of abuse of process, negligence, and breaches of the NZBORA.
The court then assessed the Crown's application for strike out, striking out all claims against the Crown except for the claim under s 21 of the NZBORA relating to the execution of the uplift orders. The court found that the social worker's decision to apply for interim custody orders ex parte did not constitute a qualifying determination under s 27(1) of the NZBORA, as it did not affect EM's rights, obligations, or interests. The court also held that the requirements of natural justice did not apply to the execution of the uplift orders, as they merely gave effect to legal rights already determined.
The court granted summary judgment against EM on her claims against the social worker and struck out her claims against the Crown, except for the claim under s 21 of the NZBORA. The court also issued a permanent suppression order in respect of the social worker, considering the allegations against him likely to damage his reputation.