J v Attorney-General
[2024] NZHC 1874
•10 July 2024
ORDER PROHIBITING PUBLICATION OF THE NAMES AND IDENTIFYING PARTICULARS OF THE PLAINTIFFS IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2006-485-662
[2024] NZHC 1874
BETWEEN J (AND OTHER PLAINTIFFS IN THE DSW LITIGATION GROUP)
PlaintiffsAND
THE ATTORNEY-GENERAL
Defendant
Hearing: Teleconference on 5 July 2024 at 9 am Counsel:
S M Cooper for Plaintiffs S M Kinsler for Defendant
Judgment:
10 July 2024
JUDGMENT OF RADICH J
[1] In this group of proceedings, the plaintiffs sought redress from the Crown for historic physical abuse, alleged to have been suffered by them as children in State care.
[2] The proceedings have been settled and discontinued. But a residual issue remains. The allegations in the proceedings have given rise to an employment investigation by Oranga Tamariki into allegations made in the proceedings about an employee, A.1
[3] Oranga Tamariki wishes to be able to give A redacted versions of the statements of claim in each of the seven proceedings so that it can meet its obligations of fairness to him in the employment investigation.
1 ‘A’ is the Oranga Tamariki employee referred to in the defendant’s interlocutory applications for leave to refer allegations.
J (AND OTHER PLAINTIFFS IN THE DSW LITIGATION GROUP) v ATTORNEY-GENERAL [2024] NZHC 1874 [10 July 2024]
[4] For the reasons I go on to give, I am satisfied that it is appropriate for the orders to be made.
Procedural background
[5] In a decision in June 2018 in this set of proceedings, Ellis J ordered that no copies of documents contained on Court files may be provided by a party to the proceedings to a non-party without the leave of the Court.2
[6] In December 2022, the Attorney-General filed an application to refer allegations in the following proceedings:
(a)CIV-2008-485-493: [Z] v Attorney-General;
(b)CIV-2006-485-1738: [Y] v Attorney-General;
(c)CIV-2008-485-409: [X] v Attorney-General;
(d)CIV-2008-485-1540: [W] v Attorney-General;
(e)CIV-2008-485-2384: [V] v Attorney-General;
(f)CIV-2009-485-2596: [U] v Attorney-General; and
(g)CIV-2015-485-38: [T] v Attorney-General.
[7] As filed initially, the application sought to refer allegations in the proceedings to both Oranga Tamariki and to the Police.
[8] Ms Cooper, who had been counsel for the former plaintiffs, was only able to make contact with one of the former plaintiffs, who did not at that stage consent to the referral of his allegations.
2 J v Attorney-General [2018] NZHC1331, as affirmed in Attorney-General v J [2019] NZCA 499, [2022] 2 NZLR 176.
[9] Following a direction from Ellis J on 27 November 2023, the Attorney-General then attempted to serve the former plaintiffs with applications, seeking to refer the allegations they had made in the proceedings for the purpose of the employment investigation only. The application to refer the allegations to the Police was not pursued. Two plaintiffs were unable to be served. One has since passed away, three did not engage meaningfully with Oranga Tamariki or Ms Cooper and one indicated to Ms Cooper his unwillingness to consent.
[10] A meeting was held between Oranga Tamariki and Cooper Legal on 13 March 2024 at which Oranga Tamariki agreed to provide the former plaintiffs, through Cooper Legal, with a set of proposals offering support to claimants who consent to the applications. Following a case management conference on 15 March 2024 and updating memoranda, timetabling directions were made for Oranga Tamariki to provide its proposals to Cooper Legal, for feedback on the proposals and for the filing by the defendant if necessary of a renewed application to refer the allegations.
[11] Oranga Tamariki provided proposals for the ongoing support of claimants and former claimants to Cooper Legal on 24 April 2024. The proposals are detailed and well considered. They involve, by way of summary:
(a)Oranga Tamariki offering an initial meeting between a claimant and a senior Oranga Tamariki employee, together with an experienced social worker, for the purpose of developing an individualised plan to address any concerns on the parts of a claimant; and
(b)The prospect of Oranga Tamariki paying for counselling or psychologist support, ongoing points of contact for a claimant within Oranga Tamariki, and measures to ensure that there could be no impact on claimants’ own children who may be known to Oranga Tamariki and/or in State care.
[12]In response to the proposals, Cooper Legal indicated that:
(a)one former plaintiff had tentatively agreed to have his allegations put to A on the basis that Oranga Tamariki allocates someone to support him during the process;
(b)it was assumed that the original instructions of one of the former plaintiffs, who did not consent, remained the same;
(c)it had not heard from one of the former plaintiffs; and
(d)contact had not been made with the other former plaintiffs.
[13] Accordingly, the defendant’s application was renewed and, following a case management conference on 5 July 2024, it now falls to be considered.
The appropriateness of the orders
[14] In accordance with Ellis J’s 2018 decision in this proceeding,3 Oranga Tamariki requires either the plaintiffs’ consent or the Court’s leave to refer appropriately redacted versions of the statements of claim in the proceedings to Oranga Tamariki. Ellis J made the point that leave would assuredly be granted where the relevant plaintiff consents, where appropriate conditions can be imposed that both permit disclosure and protect a plaintiff’s confidentiality interest, or where the Court is satisfied that, notwithstanding a plaintiff’s objection, disclosure is justified in the particular circumstances by some sufficiently important countervailing interest.4
[15] As the Court of Appeal put it when considering the appeal from Ellis J’s decision, this is one of the few situations where a broad triage procedure is a useful, practical way of ensuring that transparent decisions are able to be made on a case-by- case basis.5
[16] The parties sought, in the context of the defendant’s application, to find between them alternative ways in which a fair employment process could be followed
3 J v Attorney-General, above n 2.
4 At [65].
5 Attorney-General v J, above n 2, at [86] and [87].
without a need to further disrupt the plaintiffs’ confidentiality or to cause any further trauma on their parts. Therefore, the process has taken a little time. However, as the Court of Appeal observed, ordinarily, applications for leave should not require undue formality and should be dealt with efficiently on the papers.6 As this is an early example of the process in action, I go on to explain the basis for the orders I will make.
[17] While Ms Cooper is no longer engaged as counsel for the former plaintiffs, she has been able to assist the Court by explaining the broader set of considerations that may be taken into account when determining whether or not orders should be made. As she has explained in response to this application:
(a)The underlying factual circumstances in the former proceedings occurred nearly 40 years ago in some cases, leading to claims filed nearly 20 years ago in some cases and to discontinuances that occurred at least several years ago.
(b)Nonetheless, it was not until the second half of 2022 that action was taken against A.
(c)The former plaintiffs are essentially all in the position where the subject matter of the former proceedings causes trauma and stress for them and the proceedings were settled on the basis that they could put those parts of their lives behind them.
(d)While one of the former plaintiffs has agreed tentatively that his allegations may be put to A on the basis of the process that Oranga Tamariki has put in place, there is no consent from other former plaintiffs to their names being put forward on a non-anonymised basis.
(e)With the exception of the former plaintiff who may consent, she does not have recent instructions from the former plaintiffs.
6 At [88].
[18] It is in my view appropriate for the orders to be made for several reasons. The first relates to the necessary balancing exercise that must be undertaken in circumstances such as these between expectations of privacy and confidentiality, on the one hand, and an organisation’s obligations to uphold its natural justice and employment obligations to an employee, on the other. The minimum requirements for procedural fairness that A could expect in a case such as this require him to have sufficient details of the allegations that are made against him to enable him a real opportunity to respond.7
[19] The identity of the person making the complaint will often be a key component of the procedural fairness that is required – unless it can be said to be the case that an employee could respond sufficiently to allegations despite not knowing the names of complainants or witnesses.8
[20] This is a case in which A’s entitlement to disclosure will outweigh the privacy interests of the complainants and where, given the broad way in which the allegations in the statements of claim in question are expressed, it will be important for A to know the names of the former plaintiffs if he is to have a reasonable opportunity to respond.
[21] The redactions in the versions of the statement of claim that are to be provided on the defendant’s application are significant. All that remain are relatively brief allegations, expressed in general terms, about A’s conduct towards the former plaintiffs.
[22] It is important that disclosure be made to A without any further delay. He has been placed on alternative duties, for reasons not fully known to him, for an extended period of time now; a situation that is particularly stressful for him. Moreover, as a current Oranga Tamariki employee, it could be said that A does not himself require the Court’s leave for the allegations to be referred to him and that the leave that is required is primarily for the purpose of enabling him to disclose the allegations to any counsel,
7 See, for example, NZ Food Processing etc IUOW v Unilever New Zealand Ltd (1990) ERNZ Sel Cas 582 (LC).
8 See, for example, Wikaira v Hokianga Health Enterprises Trust ERA Auckland AA123/05, 8 April 2005 at [60] and [63]; and Richard v Winstone Wallboards Ltd ERA Auckland AA168/07, 8 June 2007.
advocate and/or support person he may choose to represent him in the employment investigation.
Orders
[23] I make an order granting leave for Oranga Tamariki to refer the following documents to A for the purpose of Oranga Tamariki proceeding with its employment investigation into A (including to have those allegations disclosed to any employment lawyer, advocate and/or support person who A may choose to appoint):
(a)The redacted version of the statement of claim in [Z] v Attorney- General (CIV-2008-485-493) annexed as an exhibit to Mr Lowe’s affidavit in support of the on notice application filed in that proceeding.
(b)Insofar as consent is not obtained from Mr Y, the redacted version of the statement of claim in [Y] v Attorney-General (CIV-2006-485-1738) annexed as an exhibit to Mr Lowe’s affidavit in support of the on notice application filed in that proceeding.
(c)The redacted version of the statement of claim in [X] v Attorney- General (CIV-2008-485-409) annexed as an exhibit to Mr Lowe’s affidavit in support of the on notice application filed in that proceeding.
(d)The redacted version of the statement of claim in [W] v Attorney- General (CIV-2008-485-1540) annexed as an exhibit to Mr Lowe’s affidavit in support of the on notice application filed in that proceeding.
(e)The redacted version of the statement of claim in [V] v Attorney- General (CIV-2008-485-2384) annexed as an exhibit to Mr Lowe’s affidavit in support of on notice application filed in that proceeding.
(f)The redacted version of the statement of claim in [U] v Attorney- General (CIV-2009-485-2596) annexed as exhibit A to Ms Miller’s affidavit in support of the without notice application filed in all proceedings.
(g)The redacted version of the statement of claim in [T] v Attorney- General (CIV-2015-485-38) annexed as an exhibit to Mr Lowe’s affidavit in support of on notice application filed in that proceeding.
Radich J
Solicitors:
Cooper Legal, Wellington for Plaintiffs Meredith Connell, Wellington for Defendant
0
0
0