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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV 2006-485-2511
UNDER Children Young Persons and Their
Families
Act, 1989
BETWEEN SIMON DOUGLAS GUNSON
Plaintiff
AND GAIL NGARIMU WAENGA
First Defendant
AND MINISTRY OF SOCIAL
DEVELOPMENT
Second Defendant
Hearing: 6 March 2008
Appearances: S.D. Gunson - Plaintiff in person
R.E. Schmidt & D.L. Harris - Defendants
Judgment: 21 April 2008 at 12.30 pm
JUDGMENT OF ASSOCIATE
JUDGE D.I. GENDALL
This judgment was delivered by Associate Judge Gendall on 21 April 2008 at
12.30 p.m. pursuant
to r 540(4) of the High Court Rules 1985.
Solicitors: Crown Law, PO Box 2858, Wellington 6140
M Powell & W
Davis, Barristers & Solicitors, PO Box 11-248, Wellington
GUNSON V WAENGA AND ANOR HC WN CIV 2006-485-2511 21 April 2008
Introduction
[1] The second defendant applies to strike out the plaintiff's claim pursuant to
Rule 186 High Court Rules on the basis that
it is untenable, it discloses no
reasonable cause of action and otherwise is an abuse of process.
[2] This application is opposed
by the plaintiff. The first defendant who is
legally aided does not wish to take an active part in these strike out proceedings.
Her
counsel indicates she will abide the decision of the Court on the strike out
application.
[3] A preliminary matter arose
in that the second defendant appears to be
incorrectly named in these proceedings. It seems the Attorney General should be
substituted
as second defendant for and on behalf of the Ministry of Social
Development. Notwithstanding this the present strike out application
proceeded
before me with regard to the second defendant's more fundamental objection to the
plaintiff's claim.
Background Facts
[4] The plaintiff is the biological father of I born 31 March 2000. The first
defendant is his biological mother, his guardian
and his custodial parent pursuant to
a Family Court Order dated 30 December 2005 under s. 101 of the Children Young
Persons and Their
Families Act 1989 ("CYPF Act").
[5] The plaintiff also has a guardianship order with respect to I made by consent
in the Family
Court on 3 September 2001 under s. 6(a) of the then Guardianship Act
1968 and he has supervised access rights over I under an order
made by the Family
Court on 30 December 2005 under s. 121 of the CYPF Act.
[6] The second defendant, Ministry of Social Development
is a guardian of I
pursuant to an order made under s. 110 of the CYPF Act on 30 December 2005, I
having been declared a child in
need of care and protection under s. 14 of the CYPF
Act.
[7] There is a Care and Protection Plan for I in place prepared on
4 November
2005 pursuant to s 120 CYPF Act. There have been two further reviews of that plan
by the Family Court in November 2007
and February 2008 in which, as I understand
it, the plaintiff fully participated.
[8] In a separate proceeding (CIV 2007-485-2130)
in this Court to the present
proceeding, the plaintiff proposes to appeal aspects of a decision of Judge Ellis made
in the Family
Court on 24 August 2007 regarding I.
[9] From the plaintiff's statement of claim and his affidavit dated 9 October 2007
a number
of matters appear to arise. The plaintiff's notice of proceedings and
statement of claim states:
"This action arises out
of several related matters and injustices under three
separate Acts in a Court of lower jurisdiction. Namely the Family Court
in
FP 085/213/00 and subsequently in FAM 2000-085-2116 where I allege
these injuries arose." Para. 1 Statement of Claim
"The torts
alleged form an ongoing of bias by predetermination in the Family
Court which may or may not be overturned in the normal
process of the
Family Court." Para. 4 Statement of Claim
[10] In his proceeding the plaintiff seeks findings against
the second defendant
"for the injuries caused by their actions and omissions, both jointly and severally in
creation of the Torts
which I allege."
[11] From his statement of claim it appears that the plaintiff asserts causes of
action against both the first
defendant and the second defendant (para. 9) in:
a) Injurious falsehood;
b) Mental injury, humiliation,
emotional distress, psychological battery,
nervous shock or trauma of the plaintiff, his mother ("Mrs Gunson")
and I;
c) False imprisonment of the plaintiff from 1993 to March 2002 by
intimidation, blackmail
and abuse of process, then again from
November 2003 to 23 April 2004;
d) Perverting the course of justice;
e) Abuse of process of the Family Court to inflict injury;
f) Unjust false enrichment;
g) Defamation;
h) Denial of the enjoyment of life for the plaintiff, his mother Mrs
Gunson and I;
i) Acts
of physical and psychological violence or threats against the
plaintiff, Mrs Gunson and I; and
j) Intentional
alienation of I from his paternal family.
[12] Against the second defendant only (paragraph 10) the plaintiff alleges:
a) Gross negligence of a duty of care;
b) Aggravated breach of a statutory duty of care;
c) Injurious
falsehoods and deception in the second defendant's report to
the Family Court; and
d) Abuse of legal process
of the Family Court.
[13] The plaintiff seeks relief by way of compensatory damages and exemplary
damages.
[14] Before me,
the plaintiff also applied for leave to add to his claim the
following additional causes of action against the second defendant:
a) Malfeasance or alternatively misfeasance of public office by the
second defendant for the actions of
its social workers and its own
failure to act on notifications of misconduct by its staff;
b) Gross negligence
in the second defendant's failure to properly
investigate or audit the plaintiff's concerns about the actions of its
staff during 2002 in investigating or not investigating child abuse;
c) Causing injurious falsehood in
the s 29 report dated 7 August 2003;
d) Perverting the course of justice by false inference to the Family Court
that the plaintiff was a vexatious litigant;
e) Unjust denial of the natural enjoyment of life for the plaintiff,
Mrs
Gunson and I;
f) Facilitation of child abuse by the first defendant.
[15] The plaintiff has also
sought leave to amend his application for relief and
asks the Court in the exercise of its inherent jurisdiction to:
a)
Quash the grant of additional guardianship of I to the second
defendant;
b) Quash the declaration
of the Family Court that I is a child in need of
care and protection;
c) Recommend an appropriate status
of the first defendant as I's primary
caregiver or otherwise;
d) Make findings of fact about claims of
violence and child abuse by the
first defendant, including the claimed abuse of her domestic
protection
order;
e) Direct the Family Court if necessary to reconsider the plaintiff's status
with respect to I;
f) Formally release findings of fact to the Family Court; and
g) Consider the grant of a protection order in favour of the plaintiff
against the second defendant.
[16] At this point, the plaintiff's application for leave to amend his claim has
not
been determined. The second defendant opposes the application for reasons which I
will outline below.
[17] Although the plaintiff's
statement of claim is hazy at best in so far as
including material facts relevant to his present claims is concerned, paras 133 to
343
of his 9 October 2007 affidavit do provide certain factual allegations for his causes
of action.
[18] The relevant allegations
of fact from that affidavit, which can be taken as true
for the purposes of the present strike out application, would appear to be:
a) In 2000, prior to I's birth and subsequently, the plaintiff contacted
hospital social workers with
his concerns regarding the first defendant
[para 133].
b) These letters were referred to CYFS social
workers [para 134].
c) CYFS referred the plaintiff's concerns to the first defendant but did
not intervene
at this time [para 137];
d) CYFS authored a s 29 report for the Family Court in November 2000
[para 141];
e) The plaintiff and the first defendant were interviewed by CYFS for
the s 29 report [paras 150 and
151];
f) CYFS were informed of the parties resumed co-habitation as early as
August 2000 [ para 160];
g) The plaintiff wrote to CYFS on 12 August 2000 raising serious
concerns [ para 169];
h)
This letter was not referred to in the s 29 report [para 170];
i) The plaintiff alleges that the first defendant assaulted
I on different
occasions between August and September 2001 and that he notified
these assaults to CYFS
[paras 171, 177-192];
j) The plaintiff notified CYFS of violence and abuse by the plaintiff on
15 March
2002 [ para 213];
k) CYFS did not immediately investigate the complaint [ para 215];
l) The Police attended
the first defendant's residence on 15 March 2002
and the plaintiff was asked to leave because of the protection order
[
para 227];
m) The plaintiff telephoned CYFS on 24 March 2002 to make a further
notification
[para 230];
n) The plaintiff wrote to the Minister of Social Services [sic] to complain
that CYFS were
not taking his complaints seriously [para 238];
o) The plaintiff received a written assurance from the Hon Mr Steve
Maharey that his complaints were taken seriously;
p) CYFS expressed doubts about the validity of the March
notification
and did not investigate;
q) The plaintiff wrote a letter of complaint to the District Manager
for
CYFS Mr Bryan Hay on 23 May 2002 [para 253];
r) The plaintiff notified CYFS of alleged bruising sighted
on I in
October 2002 [para 312];
s) CYFS interviewed the first defendant regarding the notification in
October 2002 [para 317];
t) The first defendant confessed to smacking I [para 324].
Arguments of the
Parties and My Decision
[19] The principles of law governing applications to strike out pleadings are well
settled. Rule 186
of the High Court Rules provides:
"186. Striking out pleading
Without prejudice to the inherent jurisdiction of the
Court in that
regard, where a pleading--
(a) Discloses no reasonable cause of action or defence or other
case appropriate to the nature of the pleading; or
(b) Is likely to cause prejudice, embarrassment, or delay in
the
proceeding; or
(c) Is otherwise an abuse of the process of the Court,--
the Court may at any stage of the proceeding, on such terms as
it
thinks fit, order that the whole or any part of the pleading be struck
out."
[20] A strike out application is
to be heard on the basis that the facts alleged in the
statement of claim are assumed to be true. It is well settled that before
the Court
may strike out proceedings the causes of action must be so clearly untenable that
they could not possibly succeed - Attorney-General
v Prince and Gardner [1998] 1
NZLR 262 at 267. The strike out jurisdiction is one to be used sparingly, and only in
a clear case where the Court is satisfied it has the
requisite material - Electricity
Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641 - but will not be
precluded by the application raising difficult questions of law requiring extensive
argument - Gartside v Sheffield,
Young & Ellis [1983] NZLR 37 (CA).
[21] Importantly, in considering r186 McGechan on Procedure at para
HR186.02(1)(e) notes:
"...the Courts should
be very slow to rule on novel categories of duty
of care at the strike out stage. Empirical evidence and other expert
evidence ought to be properly tested, in helping the Court make the
right public policy choices. To similar effect, Barker
J held against
the striking out of a claim in a developing area of law `on assumed
facts and scanty pleadings' in Bryan
v Philips NZ Ltd [1995] 1 NZLR
632..."
[22] I turn now to consider the grounds for the strike out advanced by the second
defendant in its present application.
[23]
In summary, the first ground is that the plaintiff's claim is untenable and
discloses no reasonable cause of action for the following
reasons:
a) The plaintiff fails to plead any facts to support the causes of action
asserted.
b) The plaintiff fails to particularise the asserted causes of action.
c) The plaintiff pleads causes of action
that are not recognised in law.
d) The plaintiff pleads causes of action that cannot succeed, even if the
facts alleged in the plaintiff's 9 October 2007 affidavit are accepted
for the purpose of this application.
e) The plaintiff complains about matters determined in the Family Court
for which he has failed to exercise
his appeal rights, if any.
f) The plaintiff claims relief to which he is not entitled. He can only
obtain
orders setting aside Family Court decisions by way of
application for review under the Judicature Amendment Act 1972.
g) The plaintiff claims relief for his late mother, Mrs. Gunson, and son to
which he is not entitled.
[24] The second ground advanced by the second defendant is that the proceeding
is an abuse of process. He says that the plaintiff
seeks by this proceeding to interfere
with and overturn past decisions of the Family Court and the High Court concerning
custody
and access issues in respect of I.
[25] The allegations of mutual violence asserted by the plaintiff to found his
causes of action
according to the second defendant have been considered by the
Family Court since 2000 and by the High Court in 2006 when the issue
of I's
relocation to Te Puke from Wellington required resolution.
[26] The second defendant maintains that the plaintiff pursues
this proceeding
alleging a variety of tortious conduct against the second defendant to resolve his
dissatisfaction with past decisions
of other Courts. He does so, irrespective of the
fact that the Family Court and the High Court have considered the relevant issues
in
the past and determined appropriate custodial and access arrangements for I. The
plaintiff has actually retained the right since
2000 to apply for discharge of the
domestic protection order. But, in fact, as I understand it, that matter is presently the
subject
of a separate appeal involving only the plaintiff and the first defendant.
[27] On these last issues, the second defendant contends
broadly that the
plaintiff's present proceeding is one of three separate High Court proceedings in
which he continues to attempt:
a) To re-litigate historical issues in relation to custody and access
questions for his son I which have
been determined in previous
Family Court proceedings; and
b) To assert that the Ministry of Social Development
through the Child
Youth & Family Service have continued to conceal evidence of child
abuse in relation
to the above issues.
[28] I will now consider in turn each of the grounds advanced by the second
defendant for the strike out
application.
The Pleadings Disclose No Reasonable Cause of Action
A. Statement of Claim
[29] The second defendant's first
argument here is that the statement of claim fails
to enumerate any facts on which the causes of action in the plaintiff's pleading
are
based as required by Rule 108 High Court Rules.
[30] Rule 108 High Court Rules states:
"108. Statement of Claim to
Show Nature of Claim etc
The statement of claim
(a) Shall show the general nature of the plaintiff's
claim to the
relief sought; and
(b) Shall give such particulars of time, place, amounts,
names of
persons, nature and dates of instruments, and other
circumstances as may suffice to inform
the Court and the
party or parties against whom relief is sought of the plaintiff's
cause of action; and
(c) Shall state specifically any claim for interest; and
(d) In
a proceeding against the Crown that is instituted against
the Attorney General, shall give particulars of
the
Government Department or officer of the Crown concerned."
[31] On this, counsel argues that the
statement of claim breaches the requirements
for pleading set out in Rule 108 in that it fails to set out the factual circumstances
giving rise to each cause of action alleged to a standard that will "suffice to inform"
the Court and the defendants of those causes
of action see McGechan on Procedure
Para HR 108.04 and Marshall Futures Limited v Marshall [1992] 1 NZLR 316.
[32] The second defendant says that much of what the plaintiff appears to rely
upon to frame his claim is contained in his affidavit
and is thus a matter of evidence
and not of pleadings. Even if it is possible to refer to this affidavit to ascertain the
plaintiff's
factual allegations, the second defendant argues that the facts alleged are
numerous with little specificity. It is quite unclear
which factual allegations relate to
which causes of action.
[33] The second defendant contends that the statement of claim should
be struck
out as he cannot plead to it in its current form.
[34] In A M Satterthwaite & Co v Knight Tailors Ltd, High Court,
Christchurch, 9
May 1986, CP 16/86, Williamson J stated:
"While there are a number of places in which it has been said that the
principles of law when
applied to the facts alleged entitling a plaintiff to
relief need not be stated, the absence of reference to the legal results
contended for by the plaintiff may well place the defendant in a prejudicial
situation or alternatively lead to a much
longer trial of inaction than is
necessary."
[35] This approach outlined in the Knight Tailors case was applied in Pearce
v
ACC (1991) 5 PRNZ 297 at page 303. There it was held that the defendant and the
Court are entitled to be informed of the legal basis for the plaintiff's
claim for relief
in the clearest terms.
[36] In my view there is substance in these submissions advanced on behalf of
counsel
for the second defendant. The plaintiff's pleading here, if one uses the well-
known analogy to motor vehicle insurance coined by
Tipping J. in Marshall Futures
Limited v Marshall, must be seen as virtually a total write-off rather than one which
is deficient
and capable of effective repair. I am satisfied that the plaintiff's claim is
not capable of amendment and that it does fail to enumerate
any facts upon which his
causes of action may be seen as properly based.
[37] Next the second defendant contends that the plaintiff's
claim pleads causes of
action that are not recognised in law.
[38] As I see the position, it is clear that, of the plaintiff's
causes of action pleaded
in paragraphs 9 and 10 of his statement of claim, only injurious falsehood, false
imprisonment, unjust enrichment
and defamation are approximate to recognised
causes of action.
[39] The other causes of action which the plaintiff appears to
plead are not
recognised in law and must be struck out. These are:
a) Mental injury, humiliation, emotional distress,
psychological battery,
nervous shock or trauma. These are categories of damage for which
compensation
for negligence might be awarded in certain
circumstances which must fit the criteria for nervous
shock damages
set out in Queenstown Lakes District Council v Palmer [1999] 1
NZLR 549 (CA). They are not causes of action per se.
b) Perverting the course of justice this is a criminal offence and is
not
available as a cause of action in a civil proceeding s 116 Crimes Act
1961.
c) Abuse
of legal processes in the Family Court whilst abuse of
process might be argued in support of an affirmative defence
perhaps
or to found a strike out application such as the present, it is not a case
of action per se.
d) Denial of the enjoyment of life again this is a category of damage
for which compensation might
be awarded in certain circumstances
where commission of a tort has first been established but it is not a
recognised cause of action by itself.
e) Intentional alienation of I from his paternal family again this
is not a
recognised cause of action.
[40] Thirdly the second defendant contends that the plaintiff's claim pleads
certain
causes of action that simply cannot succeed and these should be struck out. I now
turn to consider each of these.
Defamation
or Injurious Falsehood
[41] The plaintiff's focus in this cause of action appears to be on documents
prepared for the Family
Court in the course of proceedings under the Guardianship
Act 1968. The common law defence of absolute privilege would seem to protect
the
second defendant from any claim of defamation or injurious falsehood here being for
written or oral statements made in the course
of legal proceedings.
False Imprisonment
[42] In his statement of claim there appear to be no allegations on the part of the
plaintiff that the second defendant imprisoned him in any way. The tort of false
imprisonment involves the detention or imprisonment
of a person without lawful
justification Wills v Attorney General [1989] 3 NZLR 574. In my view there are
no allegations in the plaintiff's present statement of claim which would found such a
cause of action.
Unjust
Enrichment
[43] Again, there are no allegations that the second defendant has been enriched in
any way by the actions of which
the plaintiff complains.
Acts of Physical and Psychological Violence or Threats
[44] There are also no allegations pleaded
that the second defendant has at any
time acted in a physically or psychologically violent way towards the plaintiff or
indeed has
threatened the plaintiff.
Gross Negligence of the Duty of Care Aggravated Breach of a Statutory Duty
of Care
[45] In this
regard the plaintiff appears to contend that certain of the second
defendant's social workers withheld information from or misled
the Court and others
in breach of a clear duty which they had not to misinform those parties in bad faith.
Here the plaintiff refers
to s 188 CYPF Act which provides that any report writer is
not under any civil liability unless he/she acts in bad faith.
[46]
On this, the second defendant submits that even if the plaintiff had articulated
in his pleading the facts relating to the duty
of care and its alleged breach in a
manner which satisfies the requirements for a pleading of negligence (and this is
denied) then
this cause of action could not succeed because:
a) It is established in law that the duties of care owed by social workers
do not extend in law to the parents of children subject to social
welfare intervention B v Attorney
General [2004] 3 NZLR 145
applied in P White v Attorney General, High Court, Wellington, 28
November
2007, CIV 2001-485-864, Miller J and E White v Attorney
General, High Court Wellington, 28 November 2007, CIV 199-485-
85, Miller J.
b) The duty of care by social workers is owed to children and not
parents.
[47] In my view there is substance in these submissions advanced for the second
defendant. I am satisfied that this cause of
action framed in gross negligence of the
duty of care or aggravated breach of a statutory duty of care could not succeed here.
[48] Fourthly the plaintiff claims damages for alleged injuries to himself, I and his
mother, Mrs Gunson.
[49] With regard
to his late mother, Mrs Gunson sadly passed away in the course
of 2007. The plaintiff is unable to claim damages with respect to
her.
[50] In addition, as I see it the plaintiff cannot claim for alleged injuries to I unless
he is appointed litigation guardian
for I under Rule 85 High Court Rules which is not
the case.
[51] All portions of the statement of claim concerning alleged injuries
suffered by
the late Mrs Gunson or I must therefore be struck out as well.
[52] Fifthly, the second defendant notes that the
plaintiff's pleading applies for
orders setting aside any applications, powers or decisions granted to CYFS by a
lower Court.
[53]
In addition to his claims for restitutionary, compensatory and exemplary
damages, the plaintiff states that he may seek:
"Redress of the abuses of process ...either in whole, or in part lower court
decisions, or orders, making findings of fact
or where necessary directing
that matters be reheard." (paragraph 6).
[54] The plaintiff also goes on to seek:
"Where appropriate the setting aside of any applications, powers or
decisions, wrongfully granted to CYFS by a lower Court"
(paragraph 8).
[55] As I see it the plaintiff is only able to obtain orders setting aside Family Court
decisions by way of appeal
or by application for review under the Judicature
Amendment Act 1972. My understanding of the position is that the plaintiff has
failed to exercise his appeal rights in the Family Court or to bring review
proceedings. The plaintiff therefore is not entitled
to the relief sought under this
cause of action. Those parts of the statement of claim directed at obtaining relief
against the Family Court decisions must therefore be struck out.
Application
By Plaintiff for Leave to Amend Claims and Relief Sought
[56] In a Minute I issued in this proceeding on 15 May 2007 I directed
that by 31
March 2007 the plaintiff was to file an amended statement of claim which it was
suggested would address matters referred
to at paragraphs 5-22 inclusive of a
memorandum from counsel for the second defendant dated 11 December 2006.
Notwithstanding this
direction, the plaintiff has chosen not to file an amended
pleading but rather to make what is described as "an application to amend
his
pleading". Although this application for leave to amend the pleading is opposed by
the second defendant, to deal properly here
with all matters before the Court, I am
prepared to proceed to consider the substantive arguments on these alleged causes of
action
in the plaintiff's amended pleading. I now do so.
[57] That said, before me the second defendant contended that in this amended
pleading the plaintiff again failed to enumerate any facts on which the alleged causes
of action are based in breach of Rule 108
High Court Rules.
[58] Further, even if it were possible to refer to the plaintiff's 9 October 2007
affidavit to ascertain his
factual allegations, it is said the facts alleged are numerous
with little specificity and again it is quite unclear which factual
allegations relate to
which causes of action.
[59] Next, on this amended pleading, the second defendant contends that the
plaintiff
proposes causes of action that are not recognised in law. In this regard
reference is made to the following causes of action proposed
by the plaintiff:
a) Perverting the cause of justice by false inference to the Family Court
as noted
above, this is a criminal offence and is not available as a
cause of action in a civil proceeding.
b)
Unjust denial of the natural enjoyment of life again as noted above,
this is a category of damage for which compensation
might be
awarded in circumstances where commission of a tort has been
established but it is not a recognised
cause of action.
c) Facilitation of child abuse by the first defendant again this is not a
recognised
cause of action.
[60] Next, the second defendant submitted that the plaintiffs proposed causes of
action could not succeed. In
his proposed amended claim the plaintiff intended to
bring claims for malfeasance or misfeasance in public office, although much
of what
the plaintiff attempted to assert as malfeasance is more appropriately considered
under the heading of misfeasance in public
office.
[61] I now turn to consider this proposed cause of action in some detail.
[62] The tort of misfeasance in public
office is a recognised cause of action. In
evaluating the plaintiff's claim here, it is useful to consider the statutory background
to the CYPF Act.
[63] The CYPF Act provides amongst other things that:
a) Any person may report ill treatment of
a child to CYFS s 15.
b) Social workers receiving a report of child abuse are directed to
conduct such
investigation of the alleged abuse "as may be necessary
or desirable" s 17.
c) CYPF Act specifically
contemplates that some reports of abuse may
not be investigated and implies that these decisions are for the
discretion of the social worker concerned s 17(3).
d) Where as a result of an investigation a social worker
determines that a
child is in need of care and protection, the social worker is directed to
refer the
matter to a Care and Protection Co-Ordinator for the purpose
of convening a Family Group Conference. In the present
case that is
precisely what has happened for I he is the subject of a s 14 Care
and Protection Plan.
e) Crucially s 6 CYPF
Act provides that the welfare and interests of the
child are the first and paramount consideration and the employees
of
CYFS are governed at all times by this principle.
[64] The tort of misfeasance in public office pleaded by
the plaintiff here has a
number of elements:
a) The defendant must be a person holding public office.
b)
There must be a knowing or reckless abuse or violation of the powers
or duties which the public officer is bound
to perform i.e. the public
officer must act with malice or with knowledge that he was acting
invalidly.
c) Damage must be caused to the plaintiff by the public officer as a
result of the actions.
d)
Such damage must be caused by either:
(i) A deliberate act or omission actuated by malice.
(ii) A deliberate act knowingly in excess of official powers; or
(iii) A reckless indifference as to whether
or not the officer was
acting in excess of official powers.
- see Garrett v Attorney General
[1997] 2 NZLR 332 and
Rawlinson v Rice [1997] 2 NZLR 651.
[65] From the above it is clear that there are generally two forms of liability for
misfeasance:
a) Targeted malice
by a public officer i.e., conduct specifically intended
to injure a person or group of persons. This case requires
bad faith in
the sense of an improper or ulterior motive.
b) The second form is where a public officer
acts knowing he has no
power to do the act complained of and that the act will probably injure
the
plaintiff. It involves bad faith in as much as the public officer does
not have an honest belief that the act is lawful.
It includes reckless
indifference to the illegality of his act.
[66] In endeavouring to establish this cause of
action, the plaintiff claims that
CYFS collaborated to conceal violence and abuse perpetrated by the first defendant,
Ms. Waenga,
against I from the Family Court (- paras. 126 and 160). The plaintiff
suggests "a culture of deception and misfeasance" (para 127)
practised against him
by CYFS social workers which he argues is demonstrated by the dismissal of his
complaints of abuse and the
selectivity with which he says matters were appointed to
the Court.
[67] Although the present application before the Court is
a strike out application,
it is clear to me that these allegations made by the plaintiff are not supported on the
evidence as contained
in his own affidavit. A successful claim in misfeasance relies
upon allegations that clearly show bad faith or reckless indifference
described on
occasions by some as a "smoking gun". But in my view, even on the facts as the
plaintiff has described them, there
is no such element present in the case before the
Court here.
[68] As an aside it is clear also that social workers employed by
CYFS are often
accused of misfeasance, probably because of the nature of their enquiries which
frequently lead to at least one unhappy
party in situations which they confront.
[69] Indeed, in another child welfare case M & Others v Attorney General, High
Court
Hamilton, 21 October 2005, CIV 2003-419-296, Potter J referred to the "high
threshold" required to make out a claim for misfeasance
in public office. In
rejecting the suggestion that the threshold had been met in that case the judge went
on to make certain
comments which in my view need to be borne in mind in the
present case. These were at paragraph (191):
"I have rejected allegations
of unlawfulness and bad faith on the part of the
Department. There is simply no evidence to substantiate claims that the
officers of the Department responsible for exercise of the statutory powers in
relation to MM & PM were motivated by
malice or that they abused the
judicial process, that is, that they exercised the statutory powers vested in the
Department
for purposes other than ensuring the safety and welfare of MM
& PM pursuant to the responsibilities vested in them by the
Act."
And at para 201:
"CYFS by the very nature of their responsibilities work at the coal face.
They are often faced
with extremely difficult and volatile situations. They
have to make judgment calls which deeply affect the lives of others.
It is
unavoidable that at times their decisions and the implementation of them will
cause anger and distress."
[70]
I turn now to consider the various allegations made by the plaintiff in support
of his claims to misfeasance.
[71] On this
the starting point must be the comment that much of the plaintiff's
affidavit filed in this proceeding is directed at events that
preceded and culminated in
the domestic protection order granted in favour of the first defendant Ms. Waenga
against the plaintiff.
As I see it these are not relevant to the plaintiff's present claims
against the second defendant see plaintiff's affidavit paras.
1-122.
[72] At para 105 of his affidavit the plaintiff complains that CYFS concealed the
first defendant's "abusive control and provocation". On this it is clear,
however,
that:
a) The second defendant was not a party to the domestic protection
proceeding; and
b) The plaintiff had the opportunity to defend himself in that proceeding
but as I understand the position
he withdrew his defence. At para 117
and 118 of his affidavit the plaintiff confirms by his own admission
that he rejected legal advice concerning the "charges".
c) The plaintiff's current challenge to that order is
presently the subject
of separate proceedings before this Court (CIV 2006-485-612) and the
second defendant
is not a party to that proceeding.
[73] A further complaint from the plaintiff is that early letters written to hospital
social
workers and subsequently passed to CYFS should have alerted CYFS to the
plaintiff's concerns yet they were ignored in the s 29 report
written for the Family
Court in November 2000. On this aspect it is clear, however, that:
a) A careful examination of
the s 29 report which is attached to the
plaintiff's affidavit sworn 18 July 2007 as document "A" reveals a
discussion of the parties' mutual abuse.
b) The report also notes historical notifications, in particular the
notifications to the hospital social workers in early 2000.
c) At the time these concerns were raised
in January/February 2001, I
was not born and therefore the second defendant had no power to act.
d)
In any case, in my view, this allegation even if proven does not
constitute bad faith or reckless indifference to
the standard required
for a misfeasance claim. Rather, if proven the allegations relate only
to the
second defendant's discretion as to whether to investigate a
notification.
[74] The plaintiff then goes on to complain
that he did not have the opportunity to
respond to the s 29 report prepared in 2000 and that the report created the impression
that
the violence was simply vexatious "tit for tat" behaviour. However, in my
view, that complaint can be rejected on the face of the
s 29 report itself in that:
a) The report shows that the plaintiff was interviewed and reports his
views
and any allegations of "one-sided" interviewing are not
supported by the evidence.
b) Again, even if
proven, this allegation cannot constitute bad faith or
reckless indifference. Rather it goes simply to the discretion
resting
with the second defendant as to whether to investigate a notification.
[75] The plaintiff then goes on
to complain that the social workers concealed from
the Court the fact that the plaintiff and the first defendant had resumed living
with
each other in 2000 plaintiff's affidavit para. 160. On this, however, it is clear that
the s 29 report does state that the
parties had moved in with each other in
August/September 2000.
[76] The plaintiff alleges that for a concentrated period of time
in 2001 he made
numerous complaints to CYFS concerning I's safety and CYFS either would not
respond or would be half hearted with
their response ( plaintiff's affidavit para 171
to 205). In particular the plaintiff states he reported concerns for I in March
2002
but CYFS failed to investigate the complaint. The evidence on these matters is
scanty, however, and, in any event, CYFS chose
to exercise its discretion not to
investigate as it was entitled to do pursuant to s 17 CYPF Act.
[77] As to the plaintiff's next
complaint that CYFS obstructed the police
investigation of abuse in 2002, in my view there is no evidence of this. To the
contrary:
a) The evidence before the Court does show CYFS' acknowledgement
that Police needed to follow their own processes regarding
interviewing of the plaintiff
and that as CYFS had formulated a plan
in response to the concerns raised by the plaintiff they were not
planning to interview the plaintiff ( document "S2" plaintiff's 18
July 2007 affidavit).
b) As
they were entitled and indeed required to do, the Police made an
independent decision not to prosecute the allegations
and there is no
evidence that CYFS influenced the police decision on this aspect.
Indeed in M v Attorney
General at para (138) the separate roles of the
Department and of the Police in child welfare matters is discussed
and
highlighted.
[78] The plaintiff's next complaint is that he sighted bruising on Is body in
October 2002 but
CYFS did not investigate the complaints. On this, however, the
2003 s 29 report records that:
a) CYFS visited I's home
on three separate occasions following the
complaints, siting I's body for relevant marks or injuries. No signs of
bruising or injury were sighted.
b) The investigation highlighted gaps in the support available to the
first
defendant, Ms. Waenga, and that support was put in place.
c) The success of CYFS involvement was
such that CYFS concluded its
involvement with I on 27 June 2003 indicating that it was satisfied
there
were no care and protection concerns for I in the care of his
mother the first defendant.
[79] The plaintiff's
next complaint is that the 2003 report downplays the March
2002 complaint and the complaints in October 2002. On this, however:
a) As I understand the position, it was not the purpose of the s 29 report
to revisit in any detail the
outcome of the 2002 complaint and
investigations;
b) The plaintiff's complaints appear to be based on
a misunderstanding
of the purpose of the s 29 report in 2003; and
c) Furthermore CYFS was entitled in
the s 29 report to emphasise what
it considered to be relevant for the Court.
[80] At paragraph 343 of his affidavit
the plaintiff alleges that:
"The report was intended to pervert the cause of justice by preventing
investigation of
child abuse and to prevent the investigating social worker
being called to give evidence."
In my view there is absolutely
no rational basis for this allegation.
[81] Summarising all these matters and assuming the facts alleged to be proven
for the
purposes of the present application, I am satisfied that the plaintiff has been
quite unable to identify any conduct on the part
of the second defendant to support a
claim that CYFS social workers acted with targeted malice towards the plaintiff.
Equally in
my view the plaintiff cannot establish any basis for his assertion that
CYFS social workers acted with knowledge that they were acting
invalidly and that
the plaintiff would suffer damage as a result.
[82] The plaintiff's allegations, in my view, are either blatantly
untrue (Collier v
Pankhurst CA 136/97, 6 September 1999) or do not constitute the level of bad faith
or reckless indifference necessary
to establish this cause of action. In Attorney
General v McVeagh [1995] 1 NZLR 558, the Court of Appeal confirmed that
disputes as to evidence may be evaluated in a strike out application where "an
essential factual
allegation is so demonstrably contrary to indisputable fact that the
matter ought not to be allowed to proceed further".
[83]
In my view the plaintiff's own evidence contains glaring factual
inconsistencies and, in addition, is quite insufficient to reach
the standard needed to
establish the levels of bad faith or reckless indifference needed to establish this
misfeasance cause of action.
[84] The proposed claim for misfeasance advanced by the plaintiff cannot succeed
and must also be struck out.
[85] Finally,
the additional relief proposed by the plaintiff in respect of the Family
Court proceedings is relief to which I am satisfied he is
not entitled in the absence of
exercising any appeal or review rights which he may have. That is the appropriate
course to take here.
Abuse of Process
[86] As I have noted at para. [24] above the final ground for the present strike out
application advanced by
the second defendant is that the plaintiff's proceedings
constitute an abuse of process. On this the second defendant contends that
the
proceeding is an attempt to mount a collateral attack on matters before the Family
Court in related proceedings which have been
resolved and determined by the
Family Court or which are the subject of separate proceedings by way of appeal. It
is clear that this
in itself is a ground for strike out - Janov v Morris [1981] 3
AllER780 (CA) and Hardy v Elphick [1973] 2 AllER 914 (CA).
[87] It is clear that since 2000, reports addressed to the Family Court concerning
the plaintiff and the first defendant
have addressed and dealt with issues of violence
between them which are relevant to the care and protection of I. On this
the
following matters are apparent:
a) The plaintiff and the first defendant have agreed that I is a child in
need of care and protection and there is in existence a support order,
which I understand was made by consent,
in favour of CYFS.
b) I is presently in the care of the first defendant with the agreement of
the parties
and the sanction of the Court.
c) A Care and Protection Plan for I is reviewed regularly.
[88] In 2006 a number of
interlocutory applications were filed by the plaintiff in
the Family Court in the course of the Court's review of the Care and Protection
Plan.
These were struck out by the Family Court. At the time Judge Ellis in the Family
Court described the applications as part of
a consistent campaign by the plaintiff to
re-litigate historical issues of violence between the parties, notwithstanding the
plaintiff's
acknowledgement before the Court that I is best placed in the custodial
care of the first defendant with access reserved to the plaintiff.
The orders made by
the Family Court striking out the plaintiff's interlocutory applications recognised
that the plaintiff's continued
efforts to address past decisions with which he was
dissatisfied had no relevance to the operation of the Care and Protection Plan.
[89] In my view there can be little doubt that the present proceeding attempts to
continue that campaign and it should not be
permitted. Although the plaintiff was
unhappy with past decisions of the Family Court, as I understand it he failed to
exercise
his appeal rights at the relevant times, although he may now currently be
endeavouring to exercise those rights. With the passage
of time, the second
defendant submits that the issues which the plaintiff seeks to cover in this proceeding
no longer have any relevance
in the Family Court which has simply moved on and is
primarily concerned with management of the plaintiff's access with I. As I see
it
there is substance in this submission.
[90] The plaintiff's present claim for relief demonstrates the true purpose of this
proceeding which is simply to launch a collateral attack on the entire proceedings in
the Family Court and to endeavour to unwind
care and protection issues which are
established and reviewed regularly. The authorities clearly establish that those
circumstances
amount to an abuse of process which alone justifies the striking out of
this proceeding see McGechan on Procedure HR 186.05.
[91]
In this regard, in particular the allegations of malice against the second
defendant required to constitute the claim for misfeasance
are in my judgment
vexatious and are also an abuse of the Court's process. No adequate allegations of
targeted malice on the second
defendant's part are before the Court. These issues as
I understand it have been canvassed elsewhere on repeated occasions and are
not
appropriate for consideration in this proceeding.
[92] I conclude therefore that the plaintiff's present proceeding constitutes
an
abuse of process and should be struck out on this ground also.
Conclusion
[93] For all those reasons it will be apparent that
the second defendant's
application to strike out the plaintiff's statement of claim succeeds.
[94] Orders are now made striking
out the plaintiff's statement of claim in its
entirety and also declining the plaintiff's application for leave to amend his statement
of claim.
[95] As to costs, if these are in issue between the parties then appropriate
memoranda may be filed sequentially and
in the absence of either party indicating
they wish to be heard on the issue I will decide the question of costs based upon the
material
filed.
`Associate Judge D.I. Gendall'
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URL: http://www.nzlii.org/nz/cases/NZHC/2008/552.html