GM v Attorney-General
[2024] NZHC 2215
•8 August 2024
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 known as the “DSW Group proceedings” relating to claims for abuse in State care and, as mentioned, eight proceedings in a sub-group in which the third defendant is a party.
the Crown beyond these cases. It is said that there is a public interest in having the issue resolved to bring certainty in law, that the question of law involved is capable of bona fide and serious argument and that there is good reason to consider it before, or at least separately from, any substantive appeal. It is said that an appeal will not cause delay which causes prejudice to the plaintiff.
[6] The plaintiff opposes the application. It says that the process which led to my decision came about because the second defendant denied that it could be a defendant in relation to the allegations in the proceeding, while declining to apply to strike out the claim against it. It says that there was no error of law in the way in which the relevant principles under r 10.15 were considered and applied in the decision and that the high threshold for leave has not been met.
Principles
[7] Under s 56(3) of the Senior Courts Act 2016, an appeal from a decision of the High Court made on an interlocutory application may only be brought if leave is given by the High Court, failing which an application for leave may be made to the Court of Appeal.
[8] In considering an application to grant leave, the following principles will apply:5
(a)A high threshold exists.
(b)The applicant must identify an arguable error of law or fact.
(c)The alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value.
5 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6]; and Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].
(d)The significant implications of such error either for the particular case or for the applicant or as a matter of precedent must warrant incurring further delay.
(e)The ultimate question is whether the interests of justice are served by granting leave.
The alleged errors and their implications
[9] The Crown says that the decision demonstrates an error of law in concluding that the four questions identified are appropriate for determination under r 10.15 because they will not in fact promote trial efficiency and that, accordingly, the conclusion reached in the decision will not serve the purpose of r 10.15.
[10] It is said that the decision extends the rule into a space where the Court may address hypothetical questions akin to advisory opinions. It says that the purpose of r 10.15 is to expedite proceedings by limiting or defining the scope of a trial in advance or obviating the need for a trial altogether.6 It is said that the decision did not refer explicitly to the purpose of the rule and that it could not be served through the hypothetical questions posed.
[11] The Crown says, in particular, that the purpose of the rule will not be expedited because the questions framed will not provide answers that could benefit the proceeding in a substantive or procedural way. The points it makes, on each of the four questions, may be summarised as follows:
(a)On question 1, it is said that the answer can only be “no” on the basis of Attorney-General v Strathboss Kiwifruit Ltd.7 It is said that inviting (ultimately) the Supreme Court to overrule Strathboss does not promote trial efficiency and that the Supreme Court would, in terms of the question as framed, be unlikely to rule out the possibility of direct
6 Innes v Ewing (1986) 1 NZPC 17, (1986) 4 PRNZ 10 (HC) as applied in Thinking Ergonomix Pty Ltd v Integ International Ltd [2019] NZHC 1687 at [4]; Rongotai Investments Ltd v Wellington City Council [2019] NZHC 2742 at [19]; and NZ Iron Sands Holdings Ltd v Toward Industries Ltd [2018] NZHC 1571 at [31].
7 Attorney-General v Strathboss Kiwifruit Ltd [2020] NZCA 98, [2020] 3 NZLR 247.
liability in the absence of established facts. The better vehicle, it said, to address the question is following a full trial.
(b)On question 2, it is said that the answer will turn, at least in part, on the correctness of the Court of Appeal’s decision in Commissioner of Inland Revenue v Chesterfields Preschools Ltd which confirmed that senior civil servants are not vicariously liable for torts on the parts of their subordinates, who are not in an agency relationship with their seniors as a matter of law.8 The Crown says that whether there could be vicarious liability in terms of this question depends upon factual findings of agency and that a question at such a high level could only amount to a ruling that the Crown could “possibly” be liable on some basis. This, it says, is not in contention in any event.
(c)Question 3, it is said, will depend upon a particular staff member’s role and relationship with the Crown and the connection between the alleged tort and the role. These are not matters, it is said, that are addressed sufficiently through the pleadings.
(d)On question 4 it is said that, whether the context for the alleged abuse has the necessary quality of being “in performance of a public function” under s 3(b) of the New Zealand Bill of Rights Act 1990, would need to be assessed on the facts. Otherwise, it is said, that the answer to the question could only be something in the nature of “possibly, but it depends”.
[12] On the basis of these points on the questions posed, the Crown says that, in terms of the third of the Haden principles set out in [21] of the 8 May decision, there will be no efficiency arising from a separate determination procedure and no potential time savings.
8 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679.
[13] The Crown says, in addition, that the decision took into account irrelevant considerations – including the prospect of out-of-court settlement processes9 and the impact on potential future plaintiffs10 – and wrongly imported strike-out principles into the rule.11
[14] The issues that the Crown wishes to address are, it is said, of significance and warrant the delay of an appeal.
[15] For the plaintiff it is said that the questions are not raised purely on a hypothetical, or moot, basis. They are founded upon the pleadings and ask whether liability on the part of the second defendant, in the ways identified in the pleadings, is possible. It is said that there is a live dispute at hand, not only for the plaintiff but for the group of plaintiffs he represents. In addition, it points to authorities in which it has been said that the Court does have a discretion to hear a moot appeal where a question of public law arises for a public authority.12
[16] The plaintiff responds to the Crown’s concerns about answers to the questions being in the nature of “possibly, but it depends” on the basis that the preliminary answers will limit or clarify the range of possibilities that may be reasonably pursued by the plaintiffs and that the Court is sufficiently well placed to deliver a useful judgment.
[17] The plaintiff distinguishes Strathboss and Chesterfields and says that, on the facts and circumstances in proceedings like these, the law is far from settled such that appeals would appear inevitable, even with a full trial.13
[18] The plaintiff adds that s 3(b) of the New Zealand Bill of Rights Act 1990 has not been subjected to detailed judicial scrutiny and its application in a case like this is uncertain.
9 GM v Attorney-General, above n 3, at [34].
10 At [41]–[43].
11 At [26] and [48].
12 Marlborough Lines Ltd v Cassels [2012] NZHC 9 at [34] and Gordon-Smith v R [2008] NZSC 56, [2009] 1 NZLR 721.
13 Attorney-General v Strathboss Kiwifruit Ltd, above n 7, and Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 8.
[19] The plaintiff points to recommendations in the Royal Commission’s final and interim reports which it sees as relevant considerations in considering an r 10.15 process. He refers, in particular, to recommendations that the Crown should use its best endeavours to have the liability of every relevant institution (in relation to acts that are the subject of the report) determined,14 that the Crown should proceed in accordance with a model litigant policy (to, among other things, prevent and limit the scope of proceedings and to rely on ADR where appropriate),15 and that would require the Courts to prioritise civil proceedings on care or abuse and neglect in State or faith- based care to minimise litigation delays.16
[20] For the plaintiff it is said, in relation to the points made in [13] above that alternative dispute resolution is a relevant consideration under r 10.15, as is the fact that there are many claims “waiting in the wings” within the Halswell and Westbridge group of proceedings that would benefit from the points of law being determined.
Analysis
[21] There is force in the Crown’s point that the decision does raise a material question about the purpose of r 10.15 and that the question would warrant consideration on appeal.
[22] A primary issue in the proceeding is whether or not the Attorney-General on behalf of the Minister of Education can be legally responsible (whether directly, vicariously, as a joint tortfeasor or otherwise) for events that took place at the school during a range of time periods. The Crown does not say that it could never be liable. But it says that there are a number of possible answers, contingent upon evidence to be tested at trial.
14 Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions “Part 9 – The Future: Hei ara mōu kei taku pōkai kotuku” in Whanaketia – Through pain and trauma, from darkness to light: Whakairihia ki te tihi o Maungārongo (July 2024) at 88, Recommendation 7.
15 At 75, Recommendation 1, affirming recommendations in the interim report: Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions Tāwharautia: Pūrongo o te Wā – Interim Report (ISBN 978-0-473-55413-2, December 2020).
16 At 126, Recommendation 36.
[23] The question that arises is whether efficiencies could be created in the proceeding in having overarching questions about the potential liability of the second defendant determined on the basis of the facts as pleaded. The views that I had formed on that question are open to challenge and do raise underlying questions of law about the purpose and scope of the rule.
[24] In addition, related issues do arise on whether the possible effects on related proceedings and on alternative dispute resolution processes are matters that can be taken into account.
[25] The error that the Crown sees in the decision, and its potential implications, is as I see it of sufficient public importance to warrant its consideration on appeal. Accordingly, I see the interests of justice as being served by granting leave.
Order
[26] I grant the Attorney-General’s application for an order for leave to appeal against my 8 May 2024 decision in this proceeding.
[27]The Attorney-General does not seek costs on the application.
Radich J
Solicitors:
Cooper Legal, Wellington for Plaintiff
Meredith Connell, Wellington for Defendants
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