T v Attorney-General
[2015] NZHC 733
•16 April 2015
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 DefendantJudgment:
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 2015 and the duration of the fixture was reduced to eight weeks.
[6] Subsequently in January 2015 the plaintiffs sought an order vacating the fixture and the allocation of a new fixture as soon as possible after 16 January 2015. Given the recognition by both sides that they would not be ready to proceed in June 2015, the fixture was vacated. In due course revised timetables were made for the hearing of a variety of interlocutory matters in March and August 2015.
[7] T’s proceeding was filed on 29 January 2015. The rationale for having his claim heard at the same time as Y and Z’s claims is that Y and Z were at Whakapakari in June 1997 and July 1999 respectively whereas T was at Whakapakari when the programme was discontinued in March 2004 and hence at a point in time similar to that of M who was at Whakapakari in late 2003.
[8] It was T’s submission that the addition of his proceeding is desirable for the purpose of maintaining a valid test case. The point was emphasised that findings in more than one proceeding are desirable in respect of Whakapakari in order to achieve a settlement for the entire Whakapakari Group, thereby saving further time and cost in the long run by avoiding further trials in respect of Whakapakari.
[9] However, whereas the defendant agreed in November 2013 to three cases being heard at the same time, it does not consent to the order which is now sought. Although T submits that his inclusion would fulfil the original agreement between the parties as to the conduct of the Whakapakari litigation, the defendant is not of course estopped from refusing to consent to an order at this time for the joinder of a further proceeding. However it is appropriate to record the explanation provided for the defendant’s unwillingness to proceed as the applicant proposes:
5. The respondent’s prior consent to hear the claims of Messrs [M], [Z] and [Y] together is not relevant to the current application before the Court. It cannot be construed as anything other than a willingness by the Crown to hear those three specific claims together if they could not otherwise be resolved. Consent was given in late 2013 to allocate a fixture, long before extensive further discovery requests were made by the plaintiffs and a year before the plaintiffs served wide ranging briefs of evidence for themselves and more than 30 fact witnesses. Those briefs give evidence on a lifecycle of the Whakapakari programme, and indeed the history of other Family Homes and CYFS residences well beyond the plaintiffs’ placements. They rarely, if at all, address the allegations specifically made by and affecting the plaintiffs directly.
6. The scope of such a proceeding is well beyond what the respondent reasonably anticipated to be the approach at trial when he agreed to the three original claims proceeding together. The applicant acknowledges in his submissions that “the parties agreed that the aim was not a wide-ranging inquiry”, yet that is exactly what the plaintiffs in [Y] and [Z] have pursued to date. This arises not only from the scope of the briefs served but the pleadings themselves. Messrs [Y], [Z] and [T] all seek in their statements of claim “an order that an inquiry into allegations of abuse at the Whakapakari Programme be established, and operate under the supervision of the Court”. So [T]’s application is now made in anticipation of the respondent’s intended
challenge to the admissibility of the briefs of evidence in whole or in part, but particularly those covering events after 1999.
Relevant principles
[10] Rule 10.12 reads as follows:
10.12 When order may be made
The court may order that 2 or more proceedings be consolidated on terms it thinks just, or may order them to be tried at the same time or one immediately after another, or may order any of them to be stayed until after the determination of any other of them, if the court is satisfied–
(a) that some common question of law or fact arises in both or all of them; or
(b) that the rights of relief claimed therein are in respect of or arise out of–
(i) the same event; or
(ii) the same transaction; or
(iii) the same event and the same transaction; or
(iv) the same series of events; or
(v) the same series of transactions; or
(vi) the same series of events and the same series of transactions; or
(c) that for some other reason it is desirable to make an order under this rule.
[11] The Rule envisages a two stage process. First, the party applying must establish that the protasis, as the Court of Appeal described it in Regan v Gill, is fulfilled.1 The Court then has a wide discretion, described in Regan v Gill in this way:
[10] It is difficult to conceive of a wider procedural discretion. As Rodney Hansen J observed in Medlab Hamilton Ltd v Waikato District Health Board, “the discretion to make orders under r 382 [now r 10.12] is a wide one, to be exercised broadly in the interests of justice”. We agree. …
1 Regan v Gill [2011] NZCA 607.
The preconditions in r 10.12(a)–(c)
[12] Both parties rely on the duration of the Whakapakari programme as significant with reference to this application. T submits that Whakapakari is the one significant common element and that the placement of each of the claimants at Whakapakari provides the common issues of fact in law that tie them together and warrant the proceedings being heard simultaneously. The defendant submits that the sole point of factual similarity between T’s claim and those of Y and Z is that, like the other cases in the Whakapakari subset, they all attended the Whakapakari programme. However they were present at different times and each of their claims relates to different events and, in large part, different persons at Whakapakari.
[13] After analysing each of the three claims in some detail, the defendant submitted that each plaintiff makes a range of claims relating to a wide variety of placements over very different periods of time with no direct factual overlap. He argues that using the r 10.12 procedure to run a test case involving unconnected claims from different periods of the programme’s history strains the application and purpose of the rule. He draws attention to T’s argument that the issues arising over the closure of the Whakapakari programme are not covered by either of the claims of Y and Z which he contends only serves to expose the lack of synergy between the central issues for determination in Y and Z’s proceeding as compared to T’s proceeding.
[14] In a written submission in reply handed up on 16 March 2015 T countered that there was little synergy between Y and Z and that each addresses a multitude of placements and a multitude of caregivers. However he argued that systemic evidence (as opposed to similar fact evidence) goes to the heart of the causes of action pleaded and relates to each plaintiff. He submitted:
30. In considering the common issues of fact between the existing plaintiffs and [T], counsel must address the difference between similar fact evidence brought to support the individual claims of the plaintiffs, and evidence of systemic failure that is consistent across the plaintiffs and their witnesses. Evidence of systemic failure is significant as it goes directly to the causes of action pleaded by each plaintiff. …
[15] The defendant contends that the plaintiff’s motivation is not to try three proceedings, which are similar in fact and in law, at a single trial in order to save time and cost but rather to preserve the extant trial as a “test case” with T’s claim being needed to round out the “intended inquiry” into the Whakapakari programme. He makes the point2 that T’s application is made in anticipation of the defendant’s intended challenge to the admissibility of briefs of evidence in whole or in part but particularly those covering events after 1999.
[16] To that submission T responds that evidential issues will be the subject of subsequent interlocutory hearings but that the present application is not a proper place to address in any depth the defendant’s stated concerns about the evidence served to date. I agree with the applicant that it is not appropriate that on this application I should anticipate the outcome of the interlocutory hearing on evidential issues scheduled for August 2015.
[17] For present purposes it suffices that I consider that there is a sufficient degree of parallelism between T’s claim and the Y and Z proceedings to satisfy the r 10.12 precondition. It is unnecessary, and I consider it inappropriate in view of the pending arguments on the admissibility of evidence, to analyse further the claims of and challenges to evidential synergy and the significance of systemic evidence.
Considerations relevant to the exercise of the discretion
[18] The parties were deeply divided on the implications of the proposed order so far as time and cost savings and the implications for the complexity of the hearing were concerned.
[19] While T acknowledged the differences in the states of readiness for trial, he submitted that that difficulty was not insurmountable. He noted that legal submissions would be common across the three proceedings and that resource had already been expended by both parties to prepare M’s proceeding for trial,
particularly in respect of discovery. He suggested that, as a consequence of the 2015
2 Quoted at [9] above.
vacation of the fixture and the passage of time to a replacement fixture in 2016, there was at least a year to “ameliorate any prejudice” to the defendant.
[20] In a memorandum of counsel for T dated 23 February 2015 it was said that, in contrast to T’s claim, the M claim had been extremely complex and it was the M claim that had necessitated an original hearing time of 12 weeks. The hearing time was reduced to eight weeks on the discontinuance of the M claim and it was suggested that the addition of T’s claim would have little effect on that estimate.
[21] The defendant contested that analysis and argued that a 12 week fixture would be necessary if he was to be required to call or respond to evidence relevant to the period between 2000 and 2004 at Whakapakari. T’s position appeared to change in his written submissions in which it was said:
Counsel submits that the addition of [T] will not substantially add time to the trial, as the trial initially envisaged the inclusion of M’s proceeding.3
[22] Although I have weighed all the points advanced by the parties in the exercise of my discretion, there are two particular factors that sway me against granting this application. The first, as acknowledged in T submissions, is that T is a “late starter” in the process. While a brief of his proposed evidence was served in the X and Y proceeding last year, the defendant submits that T’s claim is fundamentally not ready for trial, no formal discovery has been made and no case management has yet been imposed. I recognise that that must be so given that the claim was only filed in January this year. By contrast the Y and Z proceedings have been on foot since 2006 and 2007 and are procedurally reasonably well advanced notwithstanding the difficulties with trial preparation which occasioned the vacation
of the fixture.
3 A similar observation was made in both the original submission of 9 March 2015 and the further submission handed up on 16 March 2015.
[23] The second consideration arises from the defendant’s submission that there is a real risk that the proliferation of issues and information arising from the proposed joinder could overwhelm the current proceedings with evidence which would otherwise be irrelevant and that the associated level of complexity would inevitably place a strain on the Court and the parties. That submission trespasses somewhat into the “inquiry” contest which as I have already noted is not for resolution at this time.
[24] However it has been quite apparent to me from the point at which I commenced case management of these and other proceedings in December 2014 that the parties were significantly underprepared for the April and subsequently the June fixture and that the range of significant interlocutory issues requiring argument has placed and continues to place significant pressures on all counsel. In addition to the arguments I have already heard on medical examinations, name suppression and joinder, there remain to be considered significant evidence admissibility issues and the Limitation Act applications.
[25] Added to those stresses are those imposed by other concurrent pieces of litigation of which I am also aware from my involvement in case management. One such matter has a substantial fixture in September 2015 with various interlocutory matters to be resolved in the meantime.
[26] Against that background I consider that it would be imprudent and arguably irresponsible to add to the burdens of counsel and their assistants by the introduction of a significant further dimension to the Y and Z trial. The possibility of joinder has only arisen because of the happenstance that the scheduled fixture did not proceed. While T argues that the fact of a replacement fixture in 2016 would provide ample time to prepare his proceeding for trial, I do not consider, in circumstances where the trial was vacated because of the lack of preparedness of both sides, that the litigation should be permitted to in effect revert to stage one with the joinder of a proceeding commenced in 2015. The test case nature of the Y and Z proceedings will maintain irrespective of whether T’s proceeding is joined.
Disposition
[27] For the reasons explained above the application for an order that T’s proceeding be heard simultaneously with the Y and Z proceedings is declined. The defendant is entitled to costs on a 2B basis and disbursements.
[28] In his submission the defendant noted that there are no formal orders in place either consolidating the trial or directing simultaneous hearing of the Y and Z proceedings. He submitted that the Court should order pursuant to r 10.12 that the proceedings be heard consecutively by the same Judge over the eight weeks currently estimated for trial.
[29] However there is no formal application before the Court raising this issue and counsel for Y and Z , although also appearing for T, had not filed submissions on the point. I consider that this is an issue which should appropriately be addressed after the resolution of the evidential issues in August 2015, subject of course to the point
being formally raised.
Brown J
Solicitors:
Cooper Legal, Wellington for Plaintiffs
Crown Law, Wellington for Defendants
0