J v Attorney-General
[2018] NZHC 2726
•19 October 2018
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PLAINTIFFS. IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2006-485-662
[2018] NZHC 2726
BETWEEN J (AND OTHER PLAINTIFFS IN THE DSW LITIGATION GROUP)
PlaintiffsAND
THE ATTORNEY-GENERAL
Defendant
Hearing: On Papers Counsel:
S M Cooper and E Kim for Applicant
T Bromwich and M Majeed for Respondent
Judgment:
19 October 2018
JUDGMENT OF ELLS J
[1] The plaintiffs in these collective proceedings seek redress against the Crown for historic physical and sexual abuse they say was suffered by them as children while in State care. The claims are being defended by the Attorney-General on behalf of the Crown agencies responsible for the provision of such care over time, namely the Ministry of Social Development (MSD), the relatively new Ministry for Children (Oranga Tamariki)1 and the Ministry of Education (MOE). I am presently charged with case managing these proceedings.
[2] The Attorney-General seeks leave to appeal my interlocutory judgment dated 7 June 2018.2 It has been agreed that I may deal with the application on the papers.
1 Oranga Tamariki was formerly an operational unit within the Ministry of Social Development. But on 1 April 2017 it became a stand-alone government department.
2 J (and other proceedings in the DSW litigation group) v Attorney-General [2018] NZHC 1331.
J (AND OTHER PLAINTIFFS IN THE DSW LITIGATION GROUP) v THE ATTORNEY-GENERAL [2018] NZHC 2726 [19 October 2018]
[3] The issues and the background to them are largely set out in my judgment. But in short, the decision relates to what I would call an iterative case management matter. The issue has arisen largely as a result of what I regard as essentially a failure of process whereby a small number of plaintiffs had their statements of claim referred to the police without their consent first being sought or even being advised of the proposed referral. Putting the issue of courtesy to one side, the referrals gave rise to two specific concerns, namely the plaintiffs’ interest in:
(a)protecting (in so far as the present unique litigation process allows) their privacy in relation to the deeply personal and intimate events disclosed in their claims; and
(b)for those of them who are presently incarcerated and/or who have made allegations against persons who may (as a result of those allegations) seek to threaten or harm them, keeping themselves and their families safe.3
[4] It should immediately be acknowledged that there were, and are, powerful countervailing Crown obligations to keep children in care safe and (to a lesser extent here) to investigate alleged criminal offending and potentially to prosecute the alleged perpetrators. In the absence of any agreed resolution between the parties, the point with which my judgment was concerned was the need (as I saw it) to protect the plaintiffs’ interests and therefore the Court’s processes if possible, while also permitting referrals to be made where the allegations made in the claims suggested that children presently in care might be at risk.
[5] The specific orders sought to be impugned in the proposed appeal are as follows:4
(b)No copies of documents contained on [the DSW and MOE litigation files] (other than documents which comprise the formal court records, as defined in the Senior Courts (Access to Court Documents) Rules
3 The relevance and importance of this interest has become more prominent subsequent to my Judgment.
4 J (and other proceedings in the DSW litigation group) v Attorney-General, above n 2, at [69(b)-(c)].
2017) may be provided by a party to the proceedings to a non-party without leave of the Court.
(c)Paragraph (b) does not apply to the provision of copies of such documents:
(i)to counsel or to other persons involved in the conduct of this litigation for the purposes of the conduct of this litigation and any settlement processes conducted thereto;
(ii)between MSD, Oranga Tamariki or MOE or within those organisations for the purposes of ensuring the safety of children presently in their care.
[6] In my Judgment, I recorded that the orders were made under the Court’s inherent power to do whatever may be required to enable it to act fairly and effectively within its own jurisdiction and to protect its own processes from abuse.
Principles governing applications for leave
[7]Section 56(3) of the Senior Courts Act 2016 provides:
56 Jurisdiction
…
(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
…
(5)If the High Court refuses leave to appeal under subsection (3), the Court of Appeal may grant that leave on application made to the Court of Appeal within 20 working days after the date of the refusal of leave by the High Court.
[8]The following principles are relevant.5
[9] First, a high threshold exists for the granting of leave. An allegation of error of law or fact is generally insufficient. An applicant should raise an arguable error of law or fact.
5 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679, [2017] NZAR 994 at [9] referring to A v Minister of Internal Affairs [2017] NZHC 887.
[10] Secondly, leave should only be granted where the circumstances warrant incurring further delay.
[11] Thirdly, the alleged error should be of general or public importance that requires determination, or otherwise be of sufficient importance to the applicant to outweigh the lack of any general or precedential importance.
[12] Last, having taken those factors into account, the Court must then “stand back and assess, in a pragmatic and realistic way, whether the interests of justice are served by granting leave to appeal”.6
Discussion
[13]The application for leave is opposed by the plaintiffs.
[14] At the outset, I record that there is no real issue relating to the second principle set out above. That is because (as I explain in my substantive judgment) the present group of proceedings are unusual in the sense that their object is not, in truth, adjudicative resolution. Moreover, by virtue of the sheer number of claims, only a few are on what is known as the “trial track”. For these reasons, the question of delay is barely in play. This favours (or at least does not disfavour) the grant of leave.
[15] The real issue here is whether the proposed appeal raises an arguable error of law or fact that is of sufficient importance to warrant appellate scrutiny. The Attorney- General submits that my judgment discloses multiple such errors, including errors about the extent of the Court’s jurisdiction and in the discretionary exercise of it.
[16] I do not regard most of these alleged errors as meeting the leave threshold in terms of their wider or specific importance. More particularly I consider that:
(a)the distinction drawn in the orders between disclosure to the police and other third parties and disclosure between the MSD, Oranga Tamariki and the MOE is essentially a case management issue but, in any event:
6 Finewood Upholstery Ltd v Vaughan, above n 5, at [14].
(i)reflects the nature of the plaintiffs’ concerns giving rise to the issue; and
(ii)is an appropriate acknowledgement of the MSD’s and Oranga Tamariki’s core responsibility for keeping children in care safe and of the fact that where children are or may be at risk and of the importance of their internal processes;
(b)the global rather than “case by case” approach to the issue is purely a function of the sheer number of existing proceedings and the relatively recent (and unadvised) decision by the Crown to share the information in issue. Again, as a matter of case management, it seems wholly unreasonable to expect that any of plaintiffs:
(i)would know whether or not the alleged perpetrators named by them in their claims are currently involved in the care of children (which is the trigger for the referrals); or
(ii)should (in the absence of such knowledge) have to apply to the Court on the hypothetical basis that a referral might be made, particularly where the specific concerns that some plaintiffs have expressed depend on the identity of the person to whom the referral is proposed to be made and on the plaintiff’s own circumstances at a particular time (for example, whether or not they happen to be incarcerated);
(c)the basis for my finding that the plaintiffs had a “legitimate expectation” of confidentiality (or at least an expectation that their consent to disclosure would be sought) is clearly set out in my judgment; and
(d)any in terrorem arguments are, in my view considerably overstated. The reality is that the orders apply only in these very unique proceedings and (even within that limited context) to a very small number of claims.
[17] That said, however, I am inclined to accept that issues about the extent of the Court’s inherent powers and their relationship with the relevant provisions of the Oranga Tamariki Act 1989 (the 1989 Act) and the Privacy Act 1991 (the 1991 Act) do raise issues of some importance, at least to the Crown agencies concerned. And, of course, if it is true that compliance with my orders really does mean that the safety of children is compromised then that is necessarily a matter of the utmost importance and public interest.
[18] As to the arguability of the Crown position on these matters, I find it difficult to move much beyond the view I have already expressed in my judgment. Put briefly, it seems to me that the statutory provisions in question do not create some mandatory obligation, they are authorising in nature. Moreover, my own view of the purpose and operation of the core provisions in the 1989 Act differs from that of the Crown.7 And as far as the 1991 Act is concerned there is the additional point that the privacy principles are in the nature of guidelines only. As the authors of Privacy Law in New Zealand note that:8
... “each of the privacy principles in section 6 of the Act contains a number of exceptions or incorporates limitations of one kind or another”, so that their status is, in effect, no more than ideals or aspirations, the application of which in any given fact situation may be uncertain, particularly as the exceptions may be interpreted subjectively.
7 Although as recorded in my judgment, the Crown specifically asked me not to rule on that and I did not do so.
8 S Penk and R Tobin Privacy Law in New Zealand (2nd ed, Thomson Reuters, Wellington, 2016) at 62 citing P Roth “What is ‘Personal Information’?” (2002) 20 NZULR 40 at 44 (emphasis added).
[19] Be all that as it may, however, it is impossible to ignore the nature of the interest said by the Crown to be at stake here, namely the safety of children. I think I would be overly brave, if not foolhardy, not to give that considerable weight in the present analysis. For principally that reason, therefore, I consider that the interests of justice warrant the grant of leave here and I do so accordingly.
Rebecca Ellis J
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