P v Attorney-General HC Auckland Cp383-94

[2001] NZHC 713

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CP383-94

BETWEEN [P]
First Plaintiff

[P]
Second Plaintiff

AND THE ATTORNEY-GENERAL
Defendant

Date of Conference: 19 July 2001

Counsel: Mr McLennan for the First and Second Plaintiffs
Mr Mathieson/Ms Griffiths for the Defendant

Ruling: 6 August 2001

RULING OF GLAZEBROOK J

Solicitors: Crown Law (Mr C Mathieson), DX SP20208, Wellington
Holmden Horrocks (Mr J McLennan) DX CP24047, Auckland

[1] This was an application by the plaintiffs for leave to amend the statement of claim. It was argued briefly at a telephone conference on 19 July 2001. Then by consent further submissions were filed on 20 July 2001 by both parties.

[2] The amendments sought by the plaintiffs (mostly affecting the second plaintiff) appear twofold. One is to tidy up the pleadings in respect of the fourth cause of action making it explicit as to the deprivation of access with the daughters that is alleged.

[3] The matters sought to be covered appear to me to be able to be argued even in terms of the existing pleadings and as such there is no utility in allowing these amendments at this point. The application in respect of this tidying up is thus declined.

[4] The other changes that are sought to be made relate to the evidence given by David Bullen as to his diagnosis of the second plaintiff as suffering from an adjustment disorder. The current pleadings do not allow argument in respect of this to be made given their lack of specificity.

[5] The evidence given by Mr David Bullen on the adjustment disorder was not contained in the brief of evidence by Mr Bullen provided to the defendant. This evidence was led orally. The plaintiffs had apparently not been granted approval by the Legal Aid Board to call Mr Bullen until just before the hearing and it is for this reason that the evidence was given orally.

[6] What this meant was that Mr Mathieson was at a disadvantage in terms of cross-examination and this necessitated Mr Bullen being recalled so that Mr Mathieson could put a matter relating to the report of a psychiatrist, Dr McClintock referred to in one of the documents before the court.

[7] In the further re-examination after his recall Mr Bullen made some further comments about his diagnosis of the second plaintiffs adjustment disorder and, among other things, linked that adjustment disorder to the impact on the second plaintiff of the letter to the real estate agent as well as the difficulties he had in having access to his children. He indicated that the adjustment disorder commenced, however, with the events that convinced him the allegation was not being investigated in a proper and professional manner (p.124 lines 3 4 to p.125 line 2).

[8] The plaintiffs claim that, due to the fact that the trial was adjourned part heard, this lessens any prejudice that the defendant may suffer as a result of an amendment to the claim at this stage.

[9] The second plaintiff would consent if leave is granted to amend the pleadings, to an examination by an expert either of the defendant’s choosing or under an order under s 100 of the Judicature Act 1908. While the second plaintiff acknowledges that the costs of this would not be recoverable for the defendant it is submitted that this is not a sufficiently significant prejudicial matter in the circumstances. Mr Bullen has also indicated that he would be agreeable to being recalled as a witness if required for further cross-examination.

[10] The real controversy between the parties, it is submitted by the plaintiff, is that of what damage the second plaintiff has suffered as a result of the defendant’s acts. It would thus create a real injustice if the pleading could not be amended, even at this late stage.

[11] The defendant opposes the application on the basis that the application is far too late and the delay is inexcusable. The second plaintiff has been legally represented since at least 1994 and had an obligation (even with difficulties with legal aid funding) to have his psychiatric condition properly assessed much earlier.

[12] The defendant is prejudiced by the amendment as it would have to have the second plaintiff medically examined but would not be able to recover either the costs of that or the further hearing time required (estimated at two days).

[13] As well as the evidence of the defence expert witness, further cross-examination of Mr [P], Mr Bullen and perhaps Ms [Q] (Mr [P]’s ex-wife) would be required. The defendant may also need to call other experts who had been involved in the second plaintiffs case, such as Dr McCormick. This would cause delay and it is not in the interests of justice to allow the amendment at this stage.

[14] In addition the defendant submits that the evidence of causation of any disorder is weak (having arisen only on the re-examination after the recall of Mr Bullen).

[15] The defendant’s submissions are accepted. The delays and inconvenience to the defendant (and also to the second plaintiff) that would be caused by the granting of the application far outweigh any benefit to the second plaintiff. Given the amendment is sought so late in my view the cost to the defendant is a relevant factor to be considered. While the delay in bringing forward the allegation may be explained in part by delays in legal aid, the very financial difficulties that prevented the allegation being brought forward earlier also create prejudice to the defendant.

[16] In addition, isolating the cause and effects of any adjustment disorder will be very difficult. It is to be remembered that the causes of action related to the second plaintiff are now very narrow. While Mr Bullen specifically referred to the letter which is the subject of the second and third cause of action he appeared (as one would expect) to trace the original cause to the more serious false allegation of sexual abuse and consequent difficulties in receiving help for the first plaintiff. This does not form part of the causes of action relating to the second plaintiff.

[17] As such the second plaintiff’s application to amend the statement of claim is declined.