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GM v Attorney-General

GM v Attorney-General

Case [2024] NZHC 2215 8 August 2024

Civil Litigation & Procedure

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ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE PLAINTIFF

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-283

[2024] NZHC 2215

BETWEEN
GM

Plaintiff

AND

ATTORNEY-GENERAL, sued for and on behalf of the Ministry of Social

Development First Defendant

ATTORNEY-GENERAL, sued for and on behalf of the Ministry of Education Second Defendant

COMBINED BOARD OF TRUSTEES OF WESTBRIDGE RESIDENTIAL SCHOOL AND HALSWELL RESIDENTIAL

COLLEGE

Third Defendant

Hearing: On the papers

Counsel:

S M Cooper and L K Y Tan for Plaintiff

S M Kinsler and C L Burbidge for First and Second Defendants

Judgment:

8 August 2024

JUDGMENT OF RADICH J

[1] This proceeding was nominated from a group of six proceedings relating to Westbridge Residential School and Halswell Residential College for the purpose of

GM v ATTORNEY-GENERAL [2024] NZHC 2215 [8 August 2024]

considering the prospect of preliminary questions for determination under r 10.15 of the High Court Rules 2016.1

[2] In my decision of 8 May 2024, I found, on the basis of a discussion of the principles in Haden v Attorney-General,2 that it was on balance appropriate for orders to be made to hear preliminary questions before trial under r 10.15.3

[3]At [50] of my decision, I framed four questions in the following terms:

On the basis of the facts pleaded in the first amended statement of claim, which, for the purposes of determining these preliminary questions, are assumed to be true:

1.Could the second defendant be directly liable in tort for the abuse of children and young persons in State care?

2.Could the second defendant be vicariously liable in tort for a senior servant’s own vicarious and/or direct liability for a subordinate’s tort, resulting from the abuse of children and young persons in State care?

3.Could a staff member at Westbridge be regarded as a Crown servant or agent for the purposes of s 6(1) of the Crown Proceedings Act 1950?

4.Could the second defendant be liable under the New Zealand Bill of Rights Act 1990 for the acts or omissions of staff members of Westbridge, the Ministry of Education, the Commissioner and/or the Combined Board of Trustees?

The application

[4] The Attorney-General (on behalf of the Ministry of Education – the second defendant) applies for leave to appeal against the decision under s 56(3) of the Senior Courts Act 2016.

[5] The Attorney says that there is an arguable error of law in the decision that carries implications for the group of proceedings of which this case forms a part4 as a whole and that, more widely, the correct approach to r 10.15 carries implications for

1      W v Attorney-General (and five other proceedings), Minute of Ellis J of 17 July 2023. There are now eight proceedings in the group.
2      Haden v Attorney-General [2011] NZHC 1432, (2011) 22 PRNZ 1 at [50].
3      GM v Attorney-General [2024] NZHC 1127.
4      There are several hundred proceedings in the Wellington Registry…

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.

Continue reading GM v Attorney-General

Details

AGLC: GM v Attorney-General [2024] NZHC 2215
Case: [2024] NZHC 2215
Decision Date: 8 August 2024

CaseChat Overview and Summary

In the case of GM v Attorney-General, the court was tasked with deciding whether the Attorney-General, representing the Ministry of Education, could be directly or vicariously liable for the abuse of children and young persons in state care, among other issues. The case involved a preliminary determination under rule 10.15 of the High Court Rules 2016, which aims to expedite proceedings by limiting or defining the scope of a trial in advance.

The legal issues at hand centered on the Crown's potential liability for the alleged abuse, the applicability of certain legal principles, and the implications of these issues for the broader group of proceedings related to abuse in state care. The Crown argued that the preliminary questions identified were not suitable for determination under rule 10.15, as they did not promote trial efficiency and could lead to hypothetical questions akin to advisory opinions.

The court considered the principles governing leave to appeal and found that the Crown had identified an arguable error of law that had significant implications for the case and beyond. The court determined that the question of the Crown's liability and the purpose of rule 10.15 warranted further consideration on appeal. The court concluded that the interests of justice were best served by granting leave to appeal.

The final order of the court was to grant the Attorney-General's application for leave to appeal against the decision made on 8 May 2024. The Attorney-General did not seek costs on the application.

Orders