W & W v Attorney-General

NOTE: SUPPRESSION ORDERS MADE IN THE HIGH COURT REMAIN IN FORCE.
IN THE SUPREME COURT OF NEW ZEALAND
SC 48/2010
[2010] NZSC 69

BETWEENW & W
Applicants

ANDATTORNEY-GENERAL
Respondent

Court:Elias CJ, Blanchard and McGrath JJ
Counsel:S M Cooper and K R Ross for Applicants
U Jagose and R Schmidt for Respondent

Judgment:29 June 2010

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.
REASONS
[1]       The applicants allege physical and sexual abuse while under social welfare supervision and in institutional care from 1959 to 1976 and 1978 respectively. One filed proceedings in December 1999 and the other in October 2001. They pleaded five causes of action, including breach of duty of care by Child Welfare (later Social Welfare), assault and battery and false imprisonment. Ordinarily, the causes of action in terms of the Limitation Act 1950 would have accrued in February 1979 for one applicant and in March 1981 for the other, the dates on which each turned 20 years of age, and so they would have been time-barred 6 years subsequently. The applicants have argued that their claims were not time-barred because until recently each was suffering from a “disability” under s 24 of the Limitation Act which made him incapable of conducting litigation. Alternatively, they argue that the doctrine of reasonable discoverability applies to their case, and that time periods ran only from April 2000 for one applicant and April-May 1999 for the other.
[2]       The claims have been disposed of both in the High Court[1] and in the Court of Appeal[2] essentially on the basis of factual findings adverse to the applicants. The decisions of the lower courts on the Limitation Act questions which the applicants seek to raise in this Court are based on concurrent findings of fact as to the credibility and reliability of the applicants’ evidence. No good reason arises from the applicants’ submissions to this Court to suggest that this Court would disturb those findings. While the applicants have undoubtedly undergone regrettable suffering during their childhood and adolescence, the Limitation Act operates to preclude them seeking legal redress. The other legal issues raised by the appellants are not appropriate for consideration in light of the findings on limitation.
[1]W & W v Attorney-General HC Wellington CIV-1999-485-85, CIV-2001-485-864, 28 November 2007.
[2]      W & W v Attorney-General [2010] NZCA 139.
Solicitors:
Cooper Legal, Wellington for Applicants
Crown Law Office, Wellington

CaseChat Overview and Summary

W and W brought proceedings against the Attorney-General alleging physical and sexual abuse by Child Welfare while they were in institutional care. The applicants sought to avoid the operation of the Limitation Act, arguing they were suffering from a "disability" rendering them incapable of litigation, or that the reasonable discoverability doctrine applied. The Court of Appeal found against the applicants, and the applicants sought leave to appeal to the Supreme Court of New Zealand.

The legal issues before the Court were whether the applicants’ claims were time-barred under the Limitation Act and whether the disability or reasonable discoverability exceptions applied. The Court considered whether there was any reason to disturb the factual findings of the lower courts that the applicants were not credible or reliable witnesses.

The Court found that the findings of the lower courts on the credibility and reliability of the applicants’ evidence were not disturbed. The Court held that the applicants’ claims were time-barred by the Limitation Act, as they accrued when the applicants turned 20 and were not disabled or discoverable at a later date. The Court declined to consider the other legal issues as they were dependent on the limitation findings.

The application for leave to appeal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established