T v Attorney-General - [2015] NZHC 733

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE PLAINTIFF PENDING JUDGMENT ON NAME SUPPRESSION APPLICATION.

IN THE HIGH COURTOF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-65 [2015] NZHC 733

BETWEEN
T

Plaintiff

AND

THE ATTORNEY GENERAL Defendant

Hearing: 16 March 2015

Counsel:

S M Cooper and A Hill for Plaintiff
K P McDonald QC and C A Griffin for Defendant

Judgment:

16 April 2015

JUDGMENT OF BROWN J

[1] The plaintiff (whom I will refer to as the applicant in order to avoid confusion with the plaintiffs in other proceedings) seeks an order in reliance on r 10.12 of the High Court Rules that his proceeding be heard simultaneously with the proceedings Y v Attorney-General CIV-2006-485-2863 and Z v Attorney-General CIV-2007-485-2055 (referred to collectively as the Y and Z proceedings).

Context to the application

[2] The “DSW Litigation Group” comprises several hundred claims filed by individuals against the Ministry of Social Development (MSD). A subset of those claims, which the parties agreed to address as a discrete group, are the claims concerning the Whakapakari programme which was undertaken at Great Barrier Island during a 16 year period terminating in March 2004. Eighteen such cases were
listed in a joint memorandum of counsel in relation to the Whakapakari proceedings

T v THE ATTORNEY GENERAL [2015] NZHC 733 [16 April 2015]

dated 29 November 2013 and the submissions indicate that a number of further proceedings have since been commenced including the present proceeding.

[3] By a joint memorandum dated 29 November 2013 the parties agreed that the Y and Z proceedings and a further proceeding M v Attorney-General should be set down for hearing as a “single trial”. That agreement was reflected in the Minute of MacKenzie J dated 17 December 2013:

Whakapakari Group

[7] Counsel are agreed that the three cases to be set down for trial, [Y], [Z] and M should proceed as a single trial. They estimate that twelve weeks hearing time will be required. The cases which fall within the Whakapakari Group are listed in paragraph 4 of the joint memorandum of counsel dated
29 November 2013. Counsel agree that any new cases filed, that come within the scope of the Whakapakari Group, should be added to that group.

A fixture was duly allocated of 12 weeks duration to commence on 20 April 2015.

[4] The M proceeding settled and was discontinued in late 2014. As the second set of submissions for the applicant on this application noted, counsel for the plaintiffs in the Y and Z proceedings were prepared to proceed to trial on those two proceedings. However, when in December 2014 it was proposed that the trial date be vacated, counsel for the applicant gave consideration to whether that afforded an opportunity to add in another plaintiff.

[5] It was the defendant who in December 2014 first applied for an order vacating the fixture. Although that application was declined, in my Minute dated
12 December 2014 the commencement date was deferred until 2 June…

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 T v Attorney-General

Details

AGLC: T v Attorney-General [2015] NZHC 733
Case: [2015] NZHC 733
Decision Date: 16 April 2015

CaseChat Overview and Summary

In T v Attorney-General, the plaintiff sought an order for his proceeding to be heard simultaneously with the Y and Z proceedings, which were related to claims concerning the Whakapakari programme. The Whakapakari programme was undertaken at Great Barrier Island from 1988 to 2004. The plaintiff's proceeding was filed in January 2015, and he sought to join the Y and Z proceedings for the purpose of maintaining a valid test case. The defendant opposed the application, arguing that the claims were not sufficiently similar in fact and law to warrant a joint hearing and that the plaintiff's proceeding was not ready for trial.

The court considered whether the application met the preconditions in r 10.12 of the High Court Rules, which allow for the consolidation or simultaneous hearing of proceedings where there is a common question of law or fact, or where the claims arise out of the same event or transaction. The court found that there was a sufficient degree of parallelism between the claims to satisfy the precondition. However, in exercising its discretion under the rule, the court considered the significant differences in the states of readiness for trial and the potential for the joinder to increase the complexity of the hearing. The court ultimately decided against granting the application, noting that the litigation should not be permitted to revert to an earlier stage of preparedness.

The court declined the application for an order that the plaintiff's proceeding be heard simultaneously with the Y and Z proceedings. The defendant was entitled to costs on a 2B basis and disbursements. The court noted that there was no formal application before it to order that the proceedings be heard consecutively by the same judge, and that this issue should be addressed after the resolution of the evidential issues in August 2015.

Orders