GB v WLS
[2015] NZHC 3176
•11 December 2015
NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF PARTIES PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-00743 [2015] NZHC 3176
BETWEEN GB & ORS
Plaintiffs
AND
WLS
First DefendantYFT
Second Defendant
Hearing: 9 December 2015 Counsel:
F Joychild QC and KR Ross for Plaintiffs
S Grieve QC and ZA Matheson for First Defendant
P Wicks QC, MJ Dew and A Mitra for Second DefendantJudgment:
11 December 2015
JUDGMENT OF FOGARTY J
This judgment was delivered by me on 11 December 2015 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Cooper Legal, Wellington Glaister Ennor, Auckland McVeagh Fleming, Auckland
GB & ORS v WLS [2015] NZHC 3176 [11 December 2015]
The issue and the result
[1] The setting of this case is a civil claim for money remedies for sexual abuse which took place a long time ago. As will be explained, all the plaintiffs need leave to bring these proceedings. The proceedings are continuing without prejudice to the leave requirements under the Limitation Act, relying on case law in the Court of Appeal. In the meantime, the defendants have applied to strike out the claims and want the application to be heard now, well prior to any trial. This issue was set down for hearing for one day. Came the date, counsel in the Court appreciated that it would take more than one day to argue. To take advantage of the day allocated, counsel and the Court agreed that there was a distinct issue which could be dealt with immediately. This is an argument by the plaintiffs that it is not possible to apply for the common law remedy of strike out or stay of a case because of prejudice. This is, in turn, because the Limitation Acts now effectively provide a statutory basis for the consideration of delay issues which precludes the application of common law. Counsel agree, if that argument is right, then the defendants’ application for stay cannot possibly succeed. Rather, what proceeds is the plaintiffs’ application for leave and, under case law, that application is deferred to be considered at the trial.
[2] This judgment therefore is limited to the question of law as to whether or not the Limitation Acts in New Zealand preclude the exercise of a common law jurisdiction to strike out or stay these proceedings on the grounds of such prejudice that it is not possible for there to be a fair trial. The answer is no. I delivered that result at the end of the argument. This judgment sets out my reasons.
Introduction
[3] The six plaintiffs were, between 1983 and 1991, residents of a care facility for young persons (mostly boys). At the time the boys were aged between 12 and
16. The statement of claim was filed against the first defendant, an employee of the trust, the second defendant. This was filed on 21 March 2014. The period of time between the alleged incidents and the filing and commencement of the proceedings is between 23 and 31 years.
[4] In this case, all six plaintiffs have applied for leave to bring these proceedings. The applications of all plaintiffs, except the fourth plaintiff, are made in reliance of ss 2, 4(7) and 24 of the Limitation Act 1950. The affidavits in support assert that the plaintiffs are either still under a disability pursuant to s 24 of the Limitation Act 1950 or were until recently.
[5] Section 24 effectively stops time running for limitation purposes until the disability ceases. Accordingly, if the plaintiffs establish that they were under a disability until at least two years before the proceeding was issued, then their claims will have been brought within time.
[6] The facility was operated, at all material times, by the second defendant as a trust and was a registered children’s home. The boys there were mostly wards of the State. The first defendant lived at the facility and held various senior roles for over a decade. Each of the six plaintiffs alleges that he suffered sexual abuse from the first defendant. Both the first and second defendants deny these allegations. Each of the plaintiffs also alleged he was placed in a painful, humiliating and restrictive hold, by the first defendant for several hours at a time. There was such a hold, the defence being that the first defendant personally did not use the hold, but that it was a legitimate restraint according to best practice prevailing at the time.
[7] The claims are all money claims, and encompass claims made in tort (assault and battery, intentional infliction of emotional harm and false imprisonment); in equity for breach of fiduciary duty; and, under ss 9, 22 and 23(5) the New Zealand Bill of Rights Act (NZBORA).
[8] On 12 November 2015, the first defendant applied in these proceedings for an order striking out the proceedings on the grounds that it is likely to cause prejudice and/or is otherwise an abuse of the process of the Court. It is not necessary to plead all grounds in support of prejudice. They include the proposition that ten witnesses, who the first defendant would have wished to call in support, are unavailable. This is because they are either deceased, mentally incapacitated or otherwise so unwell they cannot give evidence. There are nine categories of documents which have been lost. The premises burned down and the first defendant is no longer able to
demonstrate that the claims are unlikely to be true, having regard to the nature and layout of the building.
[9] The key pleading is:
The extent of this specific prejudice is so great that it will prevent the first defendant from being able to properly defend the claims against him and therefore will deny him a fair trial, particularly given the burden and standard of proof in a civil proceeding.
This pleading relies on the decision of the Supreme Court, CT v R.1
[10] The application is made in reliance on r 15.1(1) of the High Court Rules, which relevantly provides:
15.1 Dismissing or staying all or part of proceeding
(1) The court may strike out all or part of a pleading if it—
…
(d) is otherwise an abuse of the process of the court.
[11] The plaintiffs have a number of grounds in opposition to the making of an order for strike out. But, as already noted, one of these is a point of law which, if decided in the plaintiffs’ favour, effectively prevents the defendants from possibly succeeding on this application, at least until after all the evidence is heard at the trial.
[12] The point of law is the proposition that the power of the High Court, under r 15, cannot be taken advantage of when the statutes of limitation apply, this being because the legislature has specifically provided for issues of prejudice and delay in commencing civil proceedings to be resolved under the Limitation Act 1950 as amended by the Limitation Act 2010.
[13] High Court Rule 1.4(3)(c) reads:
1.4 Application
(3) These rules are subject to—
(c) any statute prescribing the practice and procedure of the court in a proceeding or an appeal or application for leave to appeal under that statute.
[14] The plaintiffs submit that as a consequence of the application of r 1.4(3)(c), an application for strike out of the proceedings on the grounds of prejudice due to delay under r 15 is not available to the defendants, as the Limitation Acts are such statutes as referred to in r 1.4(3)(c).
[15] The submission was that the recent legislative history of the enactment of the Limitation Act 2010 and amendments thereby to the Limitation Act 1950 show a clear and unequivocal intention that challenges to proceedings due to delay in historic abuse of minor cases are to be determined under the Limitation Acts.
[16] Ms Joychild QC submitted that there is not one precedent in New Zealand where r 15 has been used to determine delay in a civil claim for historic sex abuse. All delay issues in civil claims, by persons who have been under a disability, alleging sexual abuse, have been determined under the Limitation Acts.
[17] Ms Joychild said the invariable practice is to allow the proceedings to be commenced, without prejudice to all limitation issues, which are to be determined at trial. She cited W v Attorney-General from the judgment of Thomas J: 2
[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. In that case leave should be refused. If the date of accrual of the cause of action, or any other aspect of limitation is doubtful, leave should be granted, if otherwise appropriate, and all limitation issues determined at trial. This will avoid the very awkward situation with which Greig J was faced. He was required to determine difficult issues of fact on affidavit evidence without even the benefit of cross-examination. The approach 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 [1995] 3 NZLR 37 (CA). In S v G, at p 690; p 19; p 473, 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 plaintiffs 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.
[18] She also cited s 24 of the Limitation Act 1950, which provides for extension of the limitation period:
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:
…
[19] Ms Joychild, against some reluctance from the Court, drew support for her argument from the explanatory note in the General Policy Statement of the Limitation Bill which became the Limitation Act 2010. The explanatory note said, under the heading “Summary of Key Measures”:
The Bill will:
•Balance fairly the rights of claimants to have access to justice and the rights of defendants not to be disadvantaged by stale claims.
[20] She also cited the following extract:
The Court will have a discretion to provide relief in child sex abuse claims, a discretion to extend the limitation period in cases of incapacity (for example, incapacity arising at or towards the end of the limitation period).
[21] Accordingly, she contends that ss 23C and 23D, inserted into the 1950 Act by s 62 of the Limitation Act 2010, are to give effect to this policy of Parliament.
[22] Ms Joychild submitted that by seeking to strike out the claim under r 15 of the High Court Rules, the defendants are seeking to pre-empt the leave requirements of the Limitation Acts, in the face of established case law providing for claims such as these to continue, without prejudice to the limitation issues, to be resolved at the end of the trial.
[23] Mr Grieve QC, for the first defendant, submitted that the short issue is whether the Limitation Act 1950 provisions 23C and 23D inserted by the 2010 Act prescribe a practice and procedure so that, under r 1.4(3)(c) of the High Court Rules, so that they take precedence over the High Court Rules.
[24] He submitted they do not. That the Limitation Acts do no more than provide time limits. He submits that the Limitation Act will only prevail over the High Court Rules if there is a direct conflict between the Rules and the Act so that r 1.4(3)(c) applies.3 That there is no provision in the Limitation Act 1950 excluding the operation of r 15.1.
[25] He cited the Savril Contractors Ltd v Bank of New Zealand where the Court of Appeal confirmed the Court’s ability to strike out proceedings as an abuse of process because of post-commencement delay, notwithstanding the proceedings were not time barred.4
[26] He also relied on the High Court of Australia case of Batistatos v Roads and Traffic Authority of New South Wales.5 In this case, the driver of a car alleged he had been severely injured as a result of an accident on a road which was caused by the
design and marking on the road. The driver suffered from intellectual disabilities
3 See [11] above.
4 Savril Contractors Ltd v Bank of New Zealand [2005] 2 NZLR 475 (CA) at [100].
5 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256.
before the accident occurred. Some 29 years of the accident, the driver commenced proceedings in negligence against the Municipal Council and the Road Construction Authority responsible for the construction and maintenance of the road. The defendants applied, by interlocutory motion, for orders the proceedings be dismissed or stayed permanently. The first instance judge refused the motion. The appeals to the Court of Appeal were allowed and granted stay.
[27] By a majority of 4:3 the High Court of Australia upheld that the proceedings should be stayed as an abuse of process. In doing so they distinguished the statutory limitation dates from delay. Under the heading “Conclusions on appeals”, the majority said:
[62] There is no substance in the negative implication which the plaintiff seeks to draw from an unexpired statutory limitation period. As Bryson JA pointed out, periods of statutory limitation operate indifferently to the existence of what might be classified as delay on the part of a plaintiff. Section 63 of the Limitation Act provides for the extinction of causes of action “to recover any debt damages or other money”. But s 68A requires a party claiming the benefit of extinction to plead that extinguishment. To say that a limitation period has not run is to say that the potential defendant, if now sued, has no accrued defence to the action.
(Emphasis added.)
[28] Kirby J dissented on the facts. He also wrote a judgment critical of reference to and reliance on inherent powers of the judiciary (which should be read against the Australian constitutional context and not applied here). Then, in a passage which on one view is sympathetic to the argument of Ms Joychild in this Court, he said:
[173] The “inherent” powers of the Supreme Court revolve in the orbit of statutes. The bulk of the law of a contemporary society is now made up of parliamentary law. A power sourced to the decisions of judges cannot be inconsistent with, or indifferent to, relevant statutory provisions. Even where legislation does not expressly govern the case, it may afford the context in which the common law, or any particular statutory provision, will be found.
[174] Although, therefore, I accept that proceedings brought within an applicable limitation period may, as a matter of jurisdiction and power, be stayed as an abuse of process I do not accept that an exceptional limitation period fixed by Parliament is irrelevant to the exercise of the power to terminate or stay proceedings permanently on the basis that a fair trial could not be had. In a case such as the present, where the relevant State Parliament has addressed its attention to two provisions that are specifically relevant to
a case of this kind, it is material to take the enacted law into account in defining the ambit of the common law power to terminate or to say.
[29] However, as Mr Grieve correctly pointed out, Kirby J does not use the Limitation Acts as a code preventing the Court from exercising its inherent powers to strike out or stay proceedings.
[30] As in Australia,6 Limitation Acts in New Zealand are setting periods within which proceedings can be commenced without leave. These time limits have no direct link with prejudice and delay, but indirectly reflect the value of a short time lapse between the conduct being challenged and the trial about that conduct.
[31] Mr Wicks QC joined in support of Mr Grieve’s argument.
[32] Providing a fair trial is the core responsibility of the judiciary both at trial judge level and at the appellate courts. Judges of inherent jurisdiction have always been, and will continue to be, jealous of that responsibility being in any way diminished by legislation.
[33] I agree with Mr Grieve’s argument. The Limitation Acts of 2010 and 1950 set time limits, some provisions allowing leave to be released from these time limits. But these statutes are not the exclusive source of law on staying cases by reason of prejudice preventing a fair trial. Those statutes do not remove the inherent power of judges to prevent unfair trials, which in the context of r 15, particularly reflected in r
15(4). For these reasons, I reject the plaintiffs’ argument that the Limitation Act
1950 as amended by the Limitation Act 2010 is inconsistent with High Court Rule
15. The defendants are entitled to bring an application now to strike out or stay these proceedings.
[34] It follows that this Court must hear and decide before trial the merits of the application to strike out or stay these proceedings now. The plaintiffs have the right to commence proceedings. But the defendants have procedural protection too.
Rule 15 is there to be used.
6 Both the Australian and New Zealand limitation statutes follow the UK limitation statutes.
[35] That hearing will take place before me on 22 and 23 February 2016. The merits are a separate issue from the ability to lodge the application. Of course, the judge hearing that application will have the discretion to dismiss the application without prejudice to limitation issues.
[36] Costs are reserved.
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