EM v Attorney-General [2024] NZHC 39 (31 January 2024)

Last Updated: 11 March 2024

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE SECOND DEFENDANT. REFER PARAGRAPHS [283]-[285]

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2189 [2024] NZHC 39

UNDER	Oranga Tamariki Act 1989 New Zealand Bill of Rights Act 1990
BETWEEN	EM Plaintiff
AND	THE ATTORNEY-GENERAL SUED IN RESPECT OF ORANGA TAMARIKI, ITS OFFICES, EMPLOYEES AND AGENTS First Defendant A SOCIAL WORKER Second Defendant

Hearing:	31 July, 1 August, 12 and 15 September 2023
Counsel:	R Harrison KC and J Matheson for Plaintiff E Dowse and N El Sanjak for First Defendant P J K Spring and H G Holmes for Second Defendant
Judgment:	31 January 2024
Reissued:	2 February 2024

JUDGMENT OF MUIR J

[Re: Application to strike out, for summary judgment and other orders]

This judgment was delivered by me on 31 January 2024 at 3.00 pm,

pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ...............................

Solicitors: Crown Law, Wellington

EM v THE ATTORNEY-GENERAL & ANOR [2024] NZHC 39 [31 January 2024]

TABLE OF CONTENTS

INTRODUCTION [1]

BACKGROUND [8]

MY APPROACH TO THE APPLICATIONS [27]

SW’S APPLICATION FOR SUMMARY JUDGMENT [30]

Legal principles [30]

Application to adduce further evidence [33]

Preliminary points [54]

Collateral attack [56]

Witness immunity [68]

First cause of action: misfeasance in a public office [75]

Is a social worker a “public officer”? [78]

EM’s allegations [94]

Paragraphs 12.1 and 18.2 [95]

Paragraphs 12.2, 12.3 and 18.2 [99]

Paragraph 12.4 [103]

Paragraph 12.5 [108]

Paragraph 12.6 [116]

Paragraph 18.3 [121]

Paragraph 18.4 [133]

Paragraph 18.5 [135]

Paragraph 18.6 [141]

The second cause of action: abuse of process/malicious pursuit of civil proceedings [150]

Malicious prosecution of civil proceedings [151]

Abuse of process [177]

Third cause of action: negligence [184]

Fourth cause of action: breach of the NZBORA [210]

Result on SW’s summary judgment application [221] THE CROWN’S APPLICATION FOR STRIKE OUT [222]

Legal principles [224]

The first and second causes of action [225]

The third cause of action [228]

The fourth cause of action [236]

Freedom of religion, freedom from discrimination and minority rights [237]

Unreasonable search and seizure [241]

Natural justice [258]

RESULT [280]

COSTS [282]

SUPPRESSION [283]

INTRODUCTION

• [1] On 30 October 2017, EM’s three children then aged two months (C3), eighteen months (C2) and three years (C1), were uplifted pursuant to interim custody orders of the Family Court in favour of the Chief Executive of the Ministry for Vulnerable Children Oranga Tamariki (the Ministry).¹

• [2] The orders were made on ex parte applications, supported by affidavits of the second defendant (SW) (these are not his actual initials), a social worker employed by the Ministry. Separate applications were made in respect of the two elder children, the father of whom is EM’s former partner, NA, and the youngest child, the father of whom father is MK, EM’s partner at the time. The affidavits contained a significant amount of common material.

• [3] Contemporaneously with its ex parte application, the Ministry filed an on notice application for declarations that all three children were in need to care or protection. EM opposed that application which was ultimately granted by the Family Court on 6 December 2019. On 22 January 2020, final custody orders were made in respect of the children in favour of the Chief Executive. To this day, the children remain in its custody in a whānau placement.

• [4] EM has not sought to challenge any of these orders, whether by way of applications for recission, judicial review or on appeal. Nevertheless, she now says that she should be paid substantial damages² by both the Crown and SW on the basis that the ex parte applications for interim custody of the children and/or execution of the Court’s ex parte orders constituted:

(a) a misfeasance in public office;

(b) an abuse of process/malicious pursuit of civil a proceeding;

(c) a negligent breach of a duty of care owed to her; and

1. The orders were made under the Oranga Tamariki Act 1989. All references to the Act in this judgment are to the Act as at October 2017. I make this note given the Act’s extensive amendment in 2019.

² $450,000 on her first three causes of action and $300,000 on her fourth cause of action.

(d) a breach of her rights under the New Zealand Bill of Rights Act 1990 (NZBORA).

• [5] She says that the Crown is vicariously liable for SW’s acts and omissions and, in respect of the negligence and NZBORA claims, also has a primary liability.

• [6] The Attorney-General, sued in respect of the Ministry, and SW each apply for orders which would summarily dispose of the claims. SW brings both strike out and summary judgment applications in respect of all four causes of action. The Crown brings a strike out application in respect of the negligence and NZBORA claims and says that, were SW to succeed on either of his applications in respect of the first two causes of action, any vicarious liability on the part of the Crown would automatically fall away.

• [7] The applications were originally set down for one and a half days. They ultimately occupied three and a half days. The issues covered could fill one or more textbooks. I intend to confine myself within reasonable limits.

BACKGROUND

• [8] EM’s relationship with NA appears to have commenced in 2013. Daughters C1 and C2 were born in September 2014 and May 2016, respectively.

• [9] The relationship is said to have been abusive. At the time of the ex parte applications, NA was living in supported accommodation with Spectrum Care (a service provider for people living with disability). His inability to fulfil the role of primary caregiver for either C1 or C2 is not in dispute.

• [10] During this period, EM lived primarily with her mother, ZM and her brother, SR, both of whom physically abused her from time to time. On four separate occasions it was necessary for her to be accommodated in safe houses. Multiple presentations were made by her at the Middlemore Hospital Emergency Department as a result of assaults by her brother. At a later time he was, in turn, convicted and sentenced to a term of imprisonment in respect of an assault on his own son. The Police regarded ZM as complicit in this assault.
• [11] By the latter part of 2016, EM, then aged 24, had entered into a relationship with MK, then aged 16 or 17, and they subsequently married in accordance with Islamic custom. They moved into a rental property in Papakura with a flatmate. During that period EM received ongoing support from the Mother and Pēpi Support Service (MAPSS) and other social services.

• [12] In May 2017, EM, who suffers from epilepsy,³ presented at Middlemore Hospital with multiple bruises which she said were the result of MK punching her after she had experienced a seizure.

• [13] In July 2017, a referral was made to convene a family group conference (FGC) in response to a s 132 report, itself commissioned in response to an application for a parenting order by ZM under the Care of Children Act 2004 (the COCA proceeding). The s 132 report writer, Ms Rina Ashby, reported concerns about any potential placement of C1 and C2 with ZM and also about the ability of their mother to provide adequate care and protection for the children. Ultimately, a FGC was scheduled for 4 October 2017.

• [14] In August 2017, a referral was made to IOSIS Family Solutions (IOSIS) for EM and MK to obtain appropriate professional support.⁴ Engagement with IOSIS was not satisfactory.

• [15] On 21 August 2017, EM gave birth to C3. At or about that time, EM and MK began living at the home of MK’s mother, SB, and her other children, in Ōtāhuhu (the Ōtāhuhu address).

• [16] On 18 September 2017, SW was formally allocated as the Ministry’s social worker for C1, C2 and C3. On 26 September 2017, SW completed a home visit, with Ms Vanessa McMahon of IOSIS, at the Ōtāhuhu address. The meeting traversed issues of violence within EM’s own family, allegations of violence by MK against EM (which were denied) and the importance of the forthcoming FGC. An interim safety

³ With the result that she is unable to adequately care for the children without a support person.

4. Reference was for various programmes including: Community Social Work Support; Women’s Supporting Safety; Men’s Development; Youth Fathers; Family Resilience; Getting a Grip on Communication; and Toolbox Parenting.

plan was settled pending that conference. It was agreed that the children remain in the primary care of EM at the Ōtāhuhu address and that EM would inform the Ministry if she moved out of the house or changed her contact details. SB, in turn, was advised to notify the Ministry in the event of any change in living arrangements.

• [17] SW had earlier, on 25 September 2017, received telephone advice from Ms Asha Innes of MAPSS that EM’s parenting efforts were minimal and, on 3 October 2017, she provided him with a written report noting:

We have recently tried to support her and [MK] as a family unit but their lack of commitment and engagement shows our services that they don’t identify this as a high priority. My concerns are that she is staying in an abusive relationship where she is disadvantaging herself and her children.

• [18] The FGC, involving 16 participants including Ms Gabrielle Wagner, lawyer for the children appointed in the COCA proceeding, took place as scheduled on 4 October 2017. No agreement was possible in terms of whether C1 and C2 were in need of care and protection under the Oranga Tamariki Act 1989 (the OTA). In his affidavit in support of his current applications, SW deposes that where an interim safety plan is in place and an FGC fails to reach agreement, it is his invariable practice to remind parents that the interim plan remains in full effect. He says that he confirmed this to MK and EM immediately after the FGC.

• [19] On 25 October 2017, SW received advice from Ms Innes that she had been speaking with SB who had told her that:

[EM] and the children are currently living with [EM’s] mother. According to [SB] she has been over at her mum’s for about a week. I have rang and left messages with [EM] to make contact with me but she has not got back to me yet.

• [20] Because of the history of family violence at ZM’s address, SW made immediate enquiry. He contacted MK by phone on 25 October 2017. MK said that EM and the children continued to live with him and SB the Ōtāhuhu address but when SW requested MK to hand the phone to EM, he replied that she was at a Plunket appointment.
• [21] SW then contacted ZM who advised him that her daughter and the three children resided at her address in Māngere (the Māngere address). She explained that EM had moved there after the recent deaths of her father and stepbrother. Shortly afterwards, SW received a call from EM who said she was planning to attend her father’s funeral in the Cook Islands and to travel there with her three children and MK. She advised that she had visited a Plunket nurse on 24 October 2017, not 25 October 2017 as indicated by MK, and said that on 25 October 2017 she had visited her family doctor. Subsequent enquiries by SW revealed that her latest visit to the family doctor had occurred on 20 October 2017.

• [22] At this point SW formed the view that the interim safety plan had broken down. In the context of what he regarded as an unstable, volatile and inadequately protective domestic environment, he considered the appropriate course was to apply for an interim custody order in favour of the Ministry, under s 78 of the OTA. He discussed the position with his supervisor, the Ministry’s counsel and with counsel for C1 and C2, Ms Wagner, all of whom confirmed support for an ex parte application. SW settled his affidavits in support by 30 October 2017. Both affidavits are extensive: in respect of C1 and C2, 110 paragraphs, with exhibits, and in respect of C3, 89 paragraphs, also with exhibits. They traverse fully the long history of domestic violence to which EM and the children had been exposed.

• [23] On 30 October 2017, at around 4.30 pm, Judge Callinicos in the Family Court made ex parte orders granting custody of C1, C2 and C3 to the Chief Executive of the Ministry. The Judge’s reasons in respect of both ex parte applications were as follows:

Jurisdiction made out. Threshold reached to the high standard required. The application establishes the high threshold set for without notice orders (see Martin v Ryan [1990] NZHC 151; [1990] 2 NZLR 209 and FCR 220) in that:

• ● There is a clear case on the merits for urgent interim protective orders in favour of MVCOT so that these young children can best be protected from harm. The concerns traverse a variety of care and protection concerns; frequent participation of the mother as victim in events of family violence (including her own family of origin and her successive partners); medical evidence of likely violence; failure to manifest positive changes despite intervention of numerous agencies; an immediate breakdown of a safety plan developed to protect the 3 children. Collectively these young children are at significant likely risk of developmental harm. No other option to meaningfully protect them exists.
• ● The requisite form of harm or risk in r 220 would arise if the application proceeded on notice.

• ● There has been no material delay in applying.

• ● The order made will be provisional only until any defence filed is determined.

• ● The rights of the Respondent to be heard have been displaced by the risk of harm/hardship that might arise if the application were on notice.

• [24] Ms Wagner was, in turn, appointed to represent the children on the Ministry’s applications for declarations, which were set down to be called at a judicial conference within 14 days. The Ministry was directed to file a report no later than 24 hours prior to such conference, addressing access arrangements, the date for holding an FGC and the ongoing need for the interim custody orders.

• [25] Later the same day, the Family Court issued sealed interim custody orders in respect of all three children (the uplift orders). The orders stated that the Ministry “shall have custody of the above-named children” and, in accompanying notes, confirmed that the order shall be sufficient authority for the police or the Chief Executive’s delegate to enter and search any dwellinghouse and to use such force as is reasonable to place the children with the person in a residence as directed by the Chief Executive.

• [26] With the assistance of the police, SW then made arrangements to uplift the children from the Māngere address. However, neither they nor EM were at that address. He then travelled to the Ōtāhuhu address where the children were located and uplifted at approximately 10 pm.

MY APPROACH TO THE APPLICATIONS

• [27] The Crown and SW’s applications share many common features. The approach that I adopt is to first consider SW’s application for summary judgment because it is in that context which the facts underpinning all causes of action against both parties are best developed. I acknowledge that in respect of the third cause of action — negligence — where each of the Crown and SW submit that, on policy grounds, no duty should be recognised to EM, the usual approach would be to consider

the issue through the lens of one or other of the strike out applications. But exactly the same issues arise on SW’s summary judgment application, so I will consider the viability of the negligence claim in that context.

• [28] Then, at the conclusion of that exercise, if I grant summary judgment to SW,⁵ I will move to consider the strike out claims by the Crown. If, by contrast, any one or more of the claims against SW survive the summary judgment application (and the summary judgment application in total is therefore defeated), I will assess which, if any, causes of action should be struck out on SW’s alternative application.

• [29] Finally, in the event I grant summary judgment to SW (and irrespective of the outcome of the Crown’s strike out application on the third and fourth causes of action), I will have to decide the fate of what the Crown describes as EM’s “parasitic” claims against it on the first and second causes of action.

SW’S APPLICATION FOR SUMMARY JUDGMENT

Legal principles

• [30] The approach on a defendant’s application for summary judgment was summarised by the Court of Appeal in Stephens v Barron as follows:⁶

(a) The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed. Usually this will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim.

(b) An application for summary judgment will be inappropriate where there are disputed issues of material fact or when material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate determination turns on a judgment able to be properly arrived at only after a full hearing of the evidence.

(c) The Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment is not to be arrived at on a fine balance on the available evidence as would be appropriate at a trial.

5. Necessitating that I find that none of the four causes of action can succeed: see High Court Rules 2016, r 12.2(2).

⁶ Stephens v Barron [2014] NZCA 82, (2014) 21 PRNZ 734 at [9] (footnotes omitted).

(d) The residual discretion of the Court to refuse summary judgment would be properly invoked to avoid the oppression which would otherwise result if an application by a defendant for summary judgment would pre-empt a plaintiff exercising the right to amend the pleadings.

(e) Summary judgment should not be applied for unless the substantive merits of the case are clear and capable of summary disposal.

• [31] On summary judgment courts are, however, enjoined to adopt a reasonably robust and realistic judicial attitude when that is called for by the particular facts of a case.⁷ What is nominally a conflict in the evidence will not necessarily be a bar to judgment. Moreover, affidavits must have an aura of credibility. In Attorney- General v Rakiura Holdings Ltd,⁸ Greig J put the position as follows:

In a matter such as this it would not be normal for a judge to attempt to resolve any conflicts in evidence contained in affidavits or to assess the credibility or plausibility of averments in them. On the other hand, in the words of Lord Diplock in Eng Mee Yong v Letchumanan [1979] UKPC 13; [1980] AC 331, at 341E, the Judge is not bound:

“to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.”

• [32] That said, the procedure should never be permitted to operate as an instrument of oppression or injustice.⁹ As observed in Stephens v Barron, the substantive merits of the case must be clear and capable of summary disposal.

Application to adduce further evidence

• [33] On 12 September 2023, Mr Harrison KC, counsel for EM, applied orally for leave to file an additional affidavit by EM responding to SW’s applications. Regrettably, some background is necessary in explaining my response to this application.

• [34] The Crown and SW’s applications were originally set down for one and a half days of hearing, commencing 31 July 2023. SW’s applications were the first to be

⁷ Bilbie Dymock Corporation Ltd v Patel [1987] NZCA 193; (1987) 1 PRNZ 84 (CA) at 86.

⁸ Attorney-General v Rakiura Holdings Ltd (1986) 1 PRNZ 12 (HC) at 14.

⁹ Doyles Trading Co Ltd v West End Services Ltd [1989] 1 NZLR 38 (CA) at 41.

heard. Argument on them concluded at approximately 3.30 pm on 1 August 2023 leaving only the Crown’s application to be disposed of at a resumed hearing.

• [35] During the course of his submissions one of the many points emphasised by Mr Spring for SW was that, despite comprehensive evidence from SW in support of his applications, EM had chosen not to engage in any substantive way. He referred to her affidavit in opposition, dated 21 April 2023, which was limited to three paragraphs:

1. I am the abovenamed plaintiff.

2. I confirm the truth of the allegations of fact made in my first amended statement of claim herein.

3. It follows that I do not accept the second defendant’s protestations of innocence and lack of fault asserted in his affidavit. At issue at trial, if I am permitted to proceed to trial, will undoubtedly be the second defendant’s demeanour and language utilized during my in-person dealings with him. How the second defendant appears and presents himself in person is something quite different from how he now seeks to present himself on paper.

• [36] Mr Spring also emphasised what he said was non-compliance with r 5.17(2) and (3) of the High Court Rules 2016 (HCR) in relation to allegations that SW’s actions were motivated by religious bias.¹⁰ He referred to para 18 of EM’s first amended statement of claim, dated 22 November 2022:

18 In applying without notice for interim custody orders ... and/or proceeding to execute the interim custody orders ... the second defendant acted with and was motivated by malice towards the plaintiff and/or acted with and was motivated by wrongful and improper motives.

Particulars of the second defendant’s malice and wrongful or improper motives

...

18.3 The or alternatively a dominant motivation for the second defendant’s actions in applying without notice for interim custody orders and proceeding to uplift the plaintiff’s three children was his religious bias and/or prejudice against the plaintiff and/or her then partner, [MK], by reason of his dislike and/or disapproval of all or any of (i) the Muslim religion and

¹⁰ Rule 5.17(2) provides: “If a party alleges a state of mind of a person, that party must give particulars of the facts relied on in alleging that state of mind.” Rule 5.17(3) provides: “A state of mind includes a mental disorder or disability, malice, or fraudulent intention but does not include mere knowledge.”

Muslims generally; (ii) the plaintiff’s conversion to the Muslim faith; and (iii) what the second defendant perceived as the practice of the plaintiff’s and/or [MK’s] Muslim religious beliefs as manifested in sexual behaviour of which he disapproved.

...

• [37] Mr Spring made the legitimate point that in terms of r 5.17(2), this pleading alleged a state of mind but failed to give particulars of the facts relied on in alleging that state of mind. He emphasised that, in his affidavit, SW had comprehensively addressed any suggestion of anti-Muslim views, rejecting such allegation “completely”, and noted that in her affidavit in opposition, EM again failed to identify the facts on which the allegation of religious bias was purportedly based.

• [38] Mr Harrison’s submissions on SW’s applications commenced 31 July 2023 and continued through much of the following day. In exchanges with him, I indicated that I regarded the pleading in respect of religious bias as deficient. I did so mindful of the fact that, in the summary judgment but also strike out contexts, the Court must be vigilant to ensure that, if a pleading can be appropriately amended, opportunity be given to do so, lest oppression result. I invited Mr Harrison to provide proper particulars by close of argument on SW’s applications which I assumed would occur towards the end of the day on 1 August 2023.¹¹ Mr Harrison’s response to that request was that, before particularising the allegation of religious bias and/or prejudice, he wished to discuss carefully with EM whether that allegation was to be maintained. He proposed that, given an inability to deal with the Crown’s applications within the allocated sitting time on 31 July and 1 August 2023 and my own trial commitments over the succeeding month, EM be given 14 days to file an amended pleading.

• [39] At the conclusion of Mr Harrison’s submissions on SW’s applications, Mr Spring replied. I then minuted the position in respect of the amended pleading and stood down to allow allocation in due course of a further one and a half day fixture to hear the Crown’s applications.

11. Any prospect of hearing all of the applications before the Court within the one and a half days allocated was quickly identified by me as unrealistic.

• [40] On 15 August 2023, EM filed her second amended statement of claim. It maintained the allegation of religious bias and/or prejudice with the following particulars of para 18.3:

Particulars of the second defendant’s religious bias and/or prejudice

(i) The second defendant’s first in-person meeting with the plaintiff occurred on 26 September 2017 at the Otahuhu home of [MK’s] mother, [SB];

(ii) Prior to that visit the second defendant had become aware through Oranga Tamariki files that the plaintiff had adopted the Muslim faith and that [MK] and [SB] were of the Muslim faith, and also that the plaintiff and [MK] had taken part in a Muslim marriage ceremony;

(iii) At the meeting and when it was concluding, in an apparent response to a question from the plaintiff as to the purpose of Oranga Tamariki’s involvement with her family, the second defendant stated to the plaintiff that “Muslim people are terrorist people” (or words to that effect);

• [41] This allegation at 18.3(iii) replicated an equivalent allegation in the discursive initial statement of claim dated 2 November 2021 and the amended statement of claim dated 9 November 2021.¹² The allegation had not however appeared in the confusingly titled First Amended Statement of Claim dated 15 November 2022.

• [42] Then, on 25 August 2023, EM filed (with no accompanying application for leave) what was styled as a “Further Affidavit in Opposition to Defence Summary Judgment and Strike Out Applications”. In para 2 of that affidavit, she confirmed the allegation that SW had said, “Muslim people are terrorist people”. This was the first time in six years that this allegation had appeared in sworn form. In para 3 she set out her belief that SW would, by 26 September 2017, have known about her connections to Islam.

• [43] The affidavit then went on (paras 4 to 17) to address a number of allegations of fact made by SW in his affidavit and discussed by Mr Spring in his submissions, but which EM had formerly chosen not to engage with. In particular, she denied that SW had advised her about ongoing application of the interim safety plan at the conclusion of the FGC. She explained why she was resident at the Māngere address

12. The first was 162 pages and 787 paragraphs long. The second was 98 pages and 565 paragraphs long.

in the latter part of October 2017 and stated that she returned permanently to the Ōtāhuhu address on 30 October 2017. She also stated that she told SW that her relocation was only temporary.

• [44] This affidavit elicited a strongly worded memorandum from Mr Spring on 29 August 2023 in which he emphasised that the argument on SW’s applications had concluded and that I had not reserved leave to file any further affidavit evidence. He proposed that the new evidence not be read.

• [45] A week later, SW followed with an interlocutory application for leave to file further evidence and an affidavit referencing what I have called the incendiary allegation in the following terms:

... I take this opportunity to deny on oath that I ever said any such thing. The allegation is completely false.

• [46] He also filed an affidavit by Ms McMahon, the IOSIS social worker who attended the meeting on 26 September 2017 with SW. She deposed that she had “no recollection of such a comment being made at the meeting, let alone the end of the meeting”. She said that if any such comment had been made, it is inevitable that she would have recalled it and, as a practising professional social worker, she would have raised the subject with SW and his supervisors. She said that she did not believe that the comment was ever made, nor that there was any opportunity for SW to do so out of ear shot. She referred to a comprehensive file note which she made in respect of the meeting, noting that the only context in which Muslim identity was discussed was EM’s stated intention to change her eldest children’s names, which SW said EM may need to inform the children’s father about.

• [47] In due course, the Crown’s applications were scheduled to be heard by me on 12 September 2023. At the commencement of the hearing, however, Mr Harrison made an oral application for admission of EM’s further affidavit and Mr Spring addressed his formal application. Ultimately, Mr Spring’s position was that, since I had granted leave to file an amended statement of claim with rule compliant particulars of the allegation of religious bias, the appropriate position in the overall interests of justice, was to allow paras 1 to 3 of EM’s further affidavit to be read, together with the

responses of Ms McMahon and SW, but to decline leave in respect of the balance of EM’s affidavit. I granted leave in respect of paras 1 to 3 accordingly, reserving my position in relation to paragraphs 4 to 17.

• [48] I decline to give leave in respect of these additional paragraphs. As indicated, SW provided comprehensive evidence in support of his applications. Within the summary judgment context at least, the facts (to the extent recognised in the authorities) were always going to be relevantly before the Court. SW’s affidavit annexed his earlier affidavits in support of the ex parte applications and a substantial volume of other contextual information and supporting documentation. He referenced EM’s affidavit dated 5 April 2018, filed in opposition to the Ministry’s applications for declarations.

• [49] All this material was clearly relevant to SW’s disavowal of any element of malice, misfeasance or abuse of process in respect of the Ministry’s ex parte applications. It clearly warranted reply in that it established a prima facie position that SW was acting in the children’s best interests against a long history of family violence and non-responsiveness to the intervention of numerous agencies (all as ultimately recognised by the Family Court Judge).

• [50] In turn, Mr Spring’s argument on 31 July 2023 was substantially fact focused. He emphasised that on important points, such as for example continuation of the interim safety plan beyond the failed FGC, SW’s evidence was uncontradicted.

• [51] However, with submissions in support, opposition and reply complete, EM now attempts to “backfill” her opposition by raising alleged disputes on the evidence. In some respects, the position which she seeks to adopt is inconsistent with her previous affidavit evidence. For example, her proposition that the interim safety plan did not survive the FGC is inconsistent with paras 14 and 22 of her affidavit dated 5 April 2018, which implicitly recognises that it did. In other respects, and as she candidly acknowledges in para 4 of her latest affidavit, she simply seeks to “comment on some other matters which I have been advised were the subject of debate at the recent hearing before Justice Muir”.
• [52] The Court should, in my view, be generally reluctant to allow interlocutory applications to develop into a rolling maul in which attempts are made to address evidential deficiencies after the close of argument. In this case it would have inevitably meant that SW’s summary judgment application would have had to be reopened for further submissions. In the context of a case which was set down for a day and a half and which ultimately exceeded twice that estimate, that would not, in my view, have been appropriate. Moreover, EM has, throughout the proceeding, been ably represented. It must be assumed that a calculated decision not to engage substantively with the evidence was made at the point that was required.

• [53] I emphasise, however, that even if I had come to a contrary view and admitted the relevant paragraphs, it is unlikely that they would have had any bearing on my ultimate decision in respect of SW’s applications. The proposition that the interim safety plan would, to the knowledge of EM, have continued beyond the failed FGC is almost self-evident given that any other result would be tantamount to (at least temporary) abdication of responsibility by the Ministry for the children. Moreover, EM’s explanation of why she returned to the Māngere address with the children in the latter part of October 2017, does not detract from the fact that the move to the Māngere address occurred without advice to the Ministry and was for an apparent period of approximately 10 days during which the children were potentially exposed to domestic violence either against them or their mother. And there was dissembling (uncontradicted) around the issue of the Plunket and doctor appointments consistent with an intention to mislead SW about where EM was resident at any particular time.

Preliminary points

• [54] Mr Spring submits that the claims against SW fail in limine for the reasons that:

(a) they represent a collateral attack on lawful orders of the Family Court; and

(b) they rely on evidence given by SW to the Family Court in respect of which he has immunity from suit.

• [55] I deal with each of these issues reasonably economically as the expectation is that I address the substance of each of the causes of action and, having regard to my conclusions in that respect, my views on the preliminary points are not determinative.

Collateral attack

• [56] In support of his submission on this point, Mr Spring relies on the decisions of the Supreme Court in Siemer v Solicitor-General¹³ and the House of Lords in Hunter v Chief Constable of the West Midlands Police.¹⁴

• [57] In Siemer v Solicitor-General the Supreme Court addressed the “rule against collateral challenge”. The appeal arose out of a breach by Mr Siemer of a suppression order made by Winkelmann J relating to a pre-trial judgment in a criminal proceeding to which Mr Siemer was not a party. A Full Bench of the High Court found Mr Siemer in contempt for the breach and sentenced him to six weeks’ imprisonment. Mr Siemer subsequently sought review of the suppression order, but his application was not accepted by the High Court Registry. He appealed unsuccessfully to the Court of Appeal. In dismissing his further appeal to the Supreme Court, the majority affirmed the continuing application in New Zealand of the rule against collateral challenge:¹⁵

... Provided the court had power to make an order of the relevant kind, it is not open to a person facing contempt proceedings based on breach of a court order to establish a defence, by collateral attack, on the basis that the order should not have been made, or made in the terms it was. The rule applies even where the court order in question was an order made ex parte or against the whole world, binding persons who did not have an opportunity to be heard before the order was made.

• [58] The majority went on to recognise a limited exception to the application of the rule in circumstances where a person has no other available means to seek review of the order which is the subject of the contempt proceeding.¹⁶ On the facts, the majority held that Winkelmann J had the power to make the suppression order at issue¹⁷ and concluded that there was no basis for applying an exception to the rule against

¹³ Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441.

¹⁴ Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 (HL).

¹⁵ Siemer v Solicitor-General, above n 13, at [222] (footnotes omitted).

¹⁶ At [225]–[226].

¹⁷ At [175].

collateral challenge in Mr Siemer’s case;¹⁸ it having been open to him to apply to the High Court to seek variation or recession of the suppression order before his contemptuous breach.¹⁹

• [59] Hunter v Chief Constable of the West Midlands Police concerned litigation relating to the “Birmingham Six”, six Irishmen who were each convicted of murder following bombings in Birmingham in November 1974.²⁰ At their trial, the six defendants objected to the admission in evidence of written statements and oral confessions to police regarding their respective roles in the bombings. The defendants alleged that the statements had been elicited by police violence. After an eight-day voir dire, the trial judge held that the prosecution had proved, beyond reasonable doubt, that the defendants had not been assaulted by police and that their statements were voluntary. The confessions were accordingly admitted and put before the jury. The allegations of police violence were also repeated before the jury and the jury was directed to acquit if they considered the allegations true since the balance of the evidence was insufficient to support a conviction. The jury ultimately found the defendants guilty of murder. Some years later, one of the defendants, Mr Hunter, filed a civil action seeking damages against the police for the same physical assaults that had been alleged and canvassed in the criminal trial. The House of Lords considered that the claim was an abuse of process. Lord Diplock stated:²¹

The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.

• [60] His Lordship considered that the “principal object” of the civil action was not the recovery of damages but an effort to establish that the confessions on the basis of which he was convicted were induced by police violence.²² The proper course of

¹⁸ At [235].

¹⁹ At [234].

20. I note that in 1991, their convictions were declared unsafe and overturned: R v McIlkenny (1991) 93 CrAppR (CA).

²¹ Hunter v Chief Constable of the West Midlands Police, above n 14, at 541.

²² At 541.

challenging the admission of the confessions in evidence was to raise the issue as a ground of appeal against conviction, which Mr Hunter had not done.²³

• [61] The case essentially turned on what could be conceived as an issue estoppel²⁴ but between criminal and civil proceedings and different parties. Mr Hunter had sought to relitigate a fundamental point that was explicitly addressed and decided in the criminal trial. It was therefore abusive to advance the same issue in a civil suit, which was in substance, a collateral attack on the validity of a final conviction.

• [62] I accept the force of Mr Spring’s submission that if the claims are allowed to proceed to trial, it will probably be approaching ten years after the events in question before the relevant evidence²⁵ is heard.²⁶ Memories will be dimmed and, he says, “ghosts from the past” exhumed. That, in the circumstances where all of the issues now raised by EM could have been considered either on an application to rescind the uplift orders, in the context of the final orders made by the Court two years later or possibly on a timely application for judicial review. It is, as he says, against the interests of the administration of justice, and particularly the interests of finality, that issues which have remained fallow for so long should now be the subject of proceedings. But in terms of whether the proceeding in fact constitutes a collateral attack, the prosect of suboptimal evidence is not determinative.

• [63] The position is complicated by the way in which EM frames her case. Mr Harrison says that the claim is against the defendants and not the Family Court, stating in written submissions that “[w]hile she undoubtedly claims that the defendants wrongfully procured the without notice uplift orders, and (separately) wrongfully executed them ... she does not thereby directly sue upon the Family Court Judge’s decision to make the without notice orders.” However, on the other hand, Mr Harrison then says “her position is that the uplift orders were not valid, being based on false,

²³ At 541.

24. I note that the House of Lords considered that use of this term should be confined to the species of estoppel that may arise in civil actions between the same parties or their privies: at 540–541.
25. Comprising not only that of the key players but, says Mr Harrison, inevitably including expert evidence about what he says was dysfunction in the Family Court at the time.
26. The consensus is that a two to three-week trial is required. Having regard to further almost inevitable interlocutories, that is unlikely to be scheduled before 2026.

misleading and inadequate information, and made in breach of natural justice”. The submission dances on the head of a pin.

• [64] The position is further complicated by the fact that the uplift orders have now been superseded by final orders and it is those orders which determine the children’s place of residence, not the uplift orders which SW is accused of maliciously/negligently applying for and executing. Concerns about undermining the finality of Court orders and/or the proper administration of justice do not loom as large in that context.

• [65] I admit to finding the assessment difficult. EM seems to be content not to challenge the current placement of the children and to be focussed solely on recovery of damages for default in the process that led ultimately to that point. But as Mr Harrison acknowledges, that involves an implicit attack on the validity of the uplift orders — an order made in exercise of judicial power and never directly challenged by any of the mechanisms available.

• [66] On the other hand — assuming a relatively extreme example and contrary to the facts of this case — should a plaintiff who within the limitation period discovers that a social worker, whose principal motivation was religious prejudice, has pursued an uplift order, be precluded from bringing a claim in misfeasance²⁷ simply on account of the fact that this was not apparent in the Family Court application and an uplift order issued? Should a plaintiff in those circumstances be required to go back to the Family Court and have the uplift and placement rescinded before bringing his or her claim, lest it be alleged they are undertaking a collateral attack? That seems unduly burdensome. Events may have moved on and it may now be demonstrably in the children’s interests that they remain with the new placement.

• [67] On balance, I would not be prepared to grant summary judgment to SW on this basis alone. There are undoubtedly aspects of collateral attack in what EM is doing

²⁷ In the postulated example, a claim for malicious prosecution would be unlikely to succeed because the application did not terminate in favour of the plaintiff: see discussion below at [174]–[175]. Once it is accepted that an element of the tort of malicious pursuit of civil proceedings is that the proceedings complained of must be capable of resolving in the tort claimant’s favour and do resolve in his or her favour, then the tort, by its very nature, will never involve a collateral attack on a court order.

but, on an overall assessment of the public policy position, I do not consider her claims are of the type which the doctrine is intended to preclude.

Witness immunity

• [68] Those who give evidence to a court enjoy immunity from civil suit in respect of their evidence. In Roy v Prior,²⁸ Lord Morris described the immunity as follows:²⁹

It is well settled that no action will lie against a witness for words spoken in giving evidence in a court even if the evidence is falsely and maliciously given (see Dawkins v Lord Rokeby (1873) LR 8 QB 255, Watson v M’Ewan [1905] AC 480). If a witness gives false evidence he may be prosecuted if the crime of perjury has been committed but a civil action for damages in respect of the words spoken will not lie (see the judgment of Lord Goddard CJ in Hargreaves v Bretherton [1959] 1 QB 45). Nor is this rule to be circumvented by alleging a conspiracy between witnesses to make false statements (see Marrinan v Vibart [1963] 1 QB 528).

• [69] The purpose of the immunity is to encourage freedom of speech in judicial proceedings by relieving persons who give evidence from the fear of being sued.³⁰

• [70] While the immunity’s scope extends outside of the courtroom to protect a witness at preparatory stages of litigation,³¹ it does not extend further. In Darker v Chief Constable of the West Midlands Police,³² a case involving a claim of misfeasance in a public office against police officers following a failed prosecution of the claimants on drug charges, Lord Hope noted:³³

... there is a crucial difference between statements made by police officers prior to giving evidence and things said or done in the ordinary course of preparing reports for use in evidence, where the functions that they are performing can be said to be those of witnesses or potential witnesses as they

²⁸ Roy v Prior [1971] AC 470 (HL).

²⁹ At 477.

³⁰ Taylor v Director of the Serious Fraud Office [1998] UKHL 39; [1999] 2 AC 177 (HL) at 208.

³¹ For example, in M (A Minor) v Newham London Borough Council, reported with X (Minors) v Bedfordshire County Council [1995] UKHL 9; [1995] 2 AC 633 (HL) the immunity was held to apply to a psychiatrist’s investigation. The psychiatrist had been instructed to examine a child to discover whether the child had suffered sexual abuse. Upon examination, the psychiatrist concluded that the mother’s boyfriend, who lived with the child, was the abuser. Identification was based on the child naming the abuser, however, the child had allegedly referred to a cousin who shared the same first name as the mother’s boyfriend and had previously lived with the child. That same day an application was made for a place of safety order in respect of the child. Lord Browne-Wilkinson held that the psychiatrist enjoyed immunity from suit in negligence given that her investigations had an “immediate link” with possible proceedings in pursuance of a statutory duty (at 755).

³² Darker v Chief Constable of the West Midlands Police [2000] UKHL 44; [2001] 1 AC 435 (HL).

³³ At 448 (emphasis in original).

are related directly to what requires to be done to enable them to give evidence, and their conduct at earlier stages in the case when they are performing their functions as enforcers of the law or as investigators. The actions which the police take as law enforcers or as investigators may, of course, become the subject of evidence. It may then be necessary for the police officers concerned to assume the functions of witnesses at the trial to describe what they did or what they heard or what they saw. But there is no good reason on grounds of public policy to extend the immunity which attaches to things said or done by them when they are describing these matters to things done by them which cannot fairly be said to form part of their participation in the judicial process as witnesses. The purpose of the immunity is to protect witnesses against claims made against them for something said or done in the course of giving or preparing to give evidence. It is not to be used to shield the police from action for things done while they are acting as law enforcers or investigators. The rule of law requires that the police must act within the law when they are enforcing the law or are investigating allegations of criminal conduct.

• [71] Notably, and relevantly for the present case, the immunity does not extend to an action in tort for malicious prosecution in cases where one step in the course of the malicious prosecution involved the giving of evidence. Lord Morris explained the reason for that in Roy v Prior as follows:³⁴

It must often happen that a defendant who is sued for damages for malicious prosecution will have given evidence in the criminal prosecution of which the plaintiff complains. The essence of the complaint in such a case is that criminal proceedings have been instituted not only without reasonable and probable cause but also maliciously. So also in actions based upon alleged abuses of the process of the court it will often have happened that the court will have been induced to act by reason of some false evidence given by someone. In such cases the actions are not brought on or in respect of any evidence given but in respect of malicious abuse of process (see Elsee v Smith (1822) 2 Chit 304).

• [72] SW’s submissions do not address application of the witness immunity principle to each of the four causes of action. Clearly it does not apply to the now billed “Abuse of Process/Malicious Prosecution claim”. My assessment is that it likely does apply to the negligence claim and to the misfeasance claim (which although having some common elements with the abuse/malicious prosecution claim, nevertheless are “brought in respect of any evidence given” (to use Lord Morris’ words). Indeed, SW’s evidence before the Family Court is a central plank to these claims.

• [73] In respect of the NZBORA claims, the issue tends to the academic having regard to my conclusions in that respect.

³⁴ Roy v Prior, above n 28, at 477–478.

• [74] In any event, because defendant summary judgment proceeds on an “all or nothing” basis, I am content to leave the discussion at that point.

First cause of action: misfeasance in a public office

• [75] A claim of misfeasance in a public office involves a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a claimant.³⁵ As the tort currently stands, there are two forms of liability: targeted malice and non-targeted malice. Under both forms, the act complained of must be done by a public officer and in exercise of that officer’s public functions. As the Court of Appeal noted in Commissioner of Inland Revenue v Chesterfields Preschools Ltd:³⁶

[41] The two forms of the tort have slightly different requirements concerning the mental element. Targeted malice requires the public officer to have specifically intended to injure a person or persons. This involves bad faith in the sense that the officer is exercising the public power for an improper or ulterior motive. Non-targeted malice occurs when the public officer acts knowing that he or she has no power to do the act complained of and that the act will probably injure the plaintiff. This involves bad faith in that the public officer does not believe that his or her act is lawful. The plaintiff must therefore prove two aspects: first, that the officer acted with the knowledge of the illegality of the act, or with a state of mind of reckless indifference as to the illegality of the act. Secondly, that the public officer knew that his or her conduct would probably injure the plaintiff or a person of a class of which the plaintiff was a member, or was reckless as to the consequences of his or conduct in the sense of not caring whether the consequences happen or not. Subjective — as opposed to objective — recklessness is necessary for both limbs.

• [76] In White v Attorney-General,³⁷ a case involving a successful strike out application by the Attorney-General in the context of a misfeasance claim, Associate Judge Bell correctly observed that the cause of action is “invariably difficult to prove, and successful cases are rare”.³⁸

• [77] In para 18 of her second amended statement of claim, EM identifies discrete particulars of SW’s alleged malice and wrongful or improper motives. She also cross-

³⁵ Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 357.

36. Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679.

³⁷ White v Attorney-General [2020] NZHC 740, [2020] NZAR 185.

³⁸ At [30].

references para 12 of the pleading, where further particulars of alleged knowing or reckless provision of false or misleading information to the Family Court are set out. There is some crossover between the respective allegations. I deal with them in turn but first address the preliminary point of whether SW was a public officer for the purposes of the tort.

Is a social worker a “public officer”?

• [78] Mr Spring says that the claim against SW cannot succeed as SW was not acting as a “public officer” either in respect of the applications made to the Family Court or in respect of the subsequent uplift of the children. He says that SW was a mere employee of the Crown. Some discussion of the legal position is necessary.

• [79] In the very early case of Henly v Mayor and Burgesses of Lyme, a “public officer”, for the purposes of misfeasance in a public office, was defined by Best CJ as follows:³⁹

In my opinion every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or otherwise, is constituted a public officer.

• [80] The concept of “public officer” is thus very wide. In essence, it would at the very least capture any person who, by virtue of the position he or she holds, is entitled to exercise executive power;⁴⁰ that is, power that interferes with the way in which other citizens wish to conduct their affairs.⁴¹

• [81] Examples of public officers include ministers of the Crown,⁴² police officers,⁴³ prison officers,⁴⁴ local authority councillors,⁴⁵ and District Court judges.⁴⁶ However,

³⁹ Henly v Mayor and Burgesses of Lyme (1828) 5 Bing 91 at 107.

⁴⁰ Obeid v Lockley [2018] NSWCA 71, (2018) 98 NSWLR 258 at [114].

⁴¹ Society of Lloyd’s v Henderson [2007] EWCA Civ 930, [2008] 1 WLR 2255 at [25].

⁴² Roncarelli v Duplessis [1959] SCR 121.

⁴³ Calveley v Chief Constable of Merseyside Police [1989] AC 1228 (HL).

⁴⁴ R v Deputy Governor of Parkhurst Prison, ex parte Hauge [1992] 1 AC 58 (HL) at 164.

⁴⁵ Jones v Swansea City Council [1990] 1 WLR 1453 (HL).

⁴⁶ Rawlinson v Rice [1998] 1 NZLR 454 (CA).

a mere employee of the Crown will not, without more, be considered a “public officer”. ⁴⁷ Professor Aronson states that:⁴⁸

Not all public servants fall within the scope of the misfeasance tort, even though their salaries come from public funds, and even though they may be ‘officers’ for administrative purposes and have to take an oath on appointment. A person might be a public employee but not a public officer. There is in fact no single definition of ‘public officer’ across all contexts.

• [82] That position necessarily reflects justified concerns that a broad definition of public officer is “inappropriate” in the context of a modern administrative state;⁴⁹ and that Crown servants with “minimal public responsibilities” ought not to be subjected to the “heavy consequences attaching to office holding”.⁵⁰

• [83] Ultimately, whether a person is a public officer is an issue that turns on an analysis of the character of the office in question. Any such assessment must be guided by the underlying rationale of the tort, neatly stated by Lord Steyn as follows:⁵¹

The rationale of the tort is that in a legal system based on the rule of law executive or administrative power “may be exercised only for the public good” and not for ulterior and improper purposes.

• [84] Whether a social worker is a public officer is an issue that has been considered in both Victoria and New Zealand.

• [85] In Zunica v State of Victoria,⁵² the plaintiff advanced a claim that the State was vicariously liable for misfeasance in a public office by two State employees: a protective worker and a child protection supervisor. The claim arose in the context of a custody dispute over the plaintiff’s children. Relying on the High Court’s decision in Sullivan v Moody,⁵³ Bongiorno J struck out the claim, stating that, even if the employees were public officers, they owed no duty to the plaintiff, as a member of the

⁴⁷ Obeid v Lockley, above n 40, at [113].

48. Mark Aronson “Misfeasance in Public Office: A Very Peculiar Tort” [2011] MelbULawRw 1; (2011) 35 MULR 1 at 43 (footnotes omitted).

⁴⁹ Erika Chamberlain Misfeasance in a Public Office (Thomson Reuters, Toronto, 2016) at 86.

⁵⁰ P D Finn “Public Officers: Some Personal Liabilities” (1977) 51 ALJ 313 at 314.

51. Three Rivers District Council v Governor and Company of the Bank of England [2003] 2 AC 1 (HL) at 190 (citation omitted).

⁵² Zunica v State of Victoria [2004] VSC 80.

⁵³ Sullivan v Moody [2001] HCA 59, (2001) 207 CLR 562.

public, to exercise any relevant power and as a result an action in misfeasance could not succeed.⁵⁴

• [86] In E v K,⁵⁵ this Court struck out the plaintiffs’ claim of misfeasance in a public office on the ground that the social worker concerned was not a public officer. The plaintiffs were the adoptive parents of two children. The adoptive father had been charged with indecent assault following an allegation of sexual abuse made by one of the children, who was subsequently uplifted. The plaintiffs had advised the allocated social worker that the child had a tendency to tell lies and provided contact details for individuals who could verify their statements. The social worker did not, however, follow up those leads. The child eventually retracted her allegation, and the charge was dropped. The plaintiffs had pleaded that the social worker owed several statutory duties, including to act competently and to promote the objectives of the Children and Young Persons Act 1974 (the 1974 Act); to give effect to the paramountcy principle; and to exercise care when preparing reports for the Court under s 41 of the Act. Morris J concluded that the pleaded duties either did not impose statutory duties on the social worker or could not otherwise be characterised as duties owed to the public.⁵⁶ As such, the social worker was not employed to discharge a public duty and was not a public officer for the purposes of the tort.

• [87] Mr Harrison was critical of this case. He said that Morris J inappropriately confined his analysis of a tortious common law concept by considering only the statutory powers or duties on the social worker under the CYPA. Further, he noted Morris J’s concession that a social worker would be appropriately considered a public officer when laying a complaint under s 27 of the Act. A complaint under s 27 was a precursor to obtaining uplift orders in regard of a child in need of care, protection or control.

• [88] SW was subject to a new and revised statutory regime, including the OTA. On that basis, I consider the issue of whether a senior social worker for the Ministry is a public officer, is something that I should effectively review afresh.

⁵⁴ Zunica v State of Victoria, above n 52, at [26]–[27].

⁵⁵ E v K [1994] NZHC 1330; [1995] 2 NZLR 239 (HC).

⁵⁶ At 249.

• [89] SW is a social worker registered under the Social Workers Registration Act 2003. He was employed by the Ministry to perform that role. The position of social worker receives some statutory recognition. It is defined in the OTA as “a person employed under Part 5 of the State Sector Act 1988 in the department as a social worker”.⁵⁷ Under s 41 of the State Sector Act and subject to s 7A of the OTA, the Chief Executive may delegate any of his or her functions or powers in the OTA to a social worker. Relevantly for present purposes, this includes the power to apply for a care and protection declaration as provided for in s 68(a) of the OTA.

• [90] Whether a person in SW’s position makes such an application is a refined judgment call informed by professional expertise and experience. As I will later explain, protection of vulnerable children is the paramount focus of the OTA and its predecessor, the 1974 Act. To do so effectively often involves a complex weighing of risk against the obvious importance of a child remaining with his or her parent(s) if possible. Careful and often extremely time-critical assessments have to be made in what is, having regard to individual decisions either to act or not, a “damned if you do and damned if you don’t” environment. All this suggests a highly professional role well removed from that of mere Crown functionary.

• [91] More significantly, since protection of vulnerable children lies at the heart of the Ministry’s responsibilities, and that obligation is one imposed by Parliament in both the children’s and the wider public’s interest, any decision to apply for an uplift order must, in my view, be considered discharge of a public duty and/or function. Children are members of the public and there is a duty to act in their best interests. If those best interests are considered appropriately served by an application to uplift and if the Court is so persuaded, guardianship rights and responsibilities are immediately abrogated. All this suggests to me a sufficient exercise of executive power to bring senior social workers such as SW within the relevant frame, even allowing for the fact that judicial imprimatur is required before an uplift occurs. Such conclusion also appears consistent with the concession of Morris J formerly noted in respect of s 27 of the 1974 Act (the laying of a complaint under that section being broadly analogous with invoking the new application procedure under s 68 of the OTA). And there is the

⁵⁷ Section 2(1).

point too that once an order is obtained an execution process follows, one which has all the appearances of the exercise of a public duty.

• [92] I consider there are also good public policy reasons for ensuring that those operating in so sensitive an area do so without ulterior or improper purposes and face exposure to potential legal consequences if they do not.

• [93] I therefore proceed on the basis that SW was, at all relevant times acting as a public officer for the purposes of the first cause of action.⁵⁸

EM’s allegations

• [94] I now address the relevant allegations in EM’s second amended statement of claim.

Paragraphs 12.1 and 18.2

• [95] These relevantly provide:

12.1 The second defendant falsely and/or misleadingly stated that he had prepared and “put in place” an “interim safety plan” ... when no such plan existed or, alternatively any such plan had ceased to exist ...

18.2 The second defendant when making the without notice applications and/or when swearing his affidavits knew that there was no “interim safety plan” in existence in respect of the plaintiff and the children ...

• [96] SW deposes to these allegations at para 16 of his affidavit where he says at the meeting on 26 September 2017, also attended by Ms McMahon, he formulated an interim safety plan which was communicated to EM and MK and which provided for EM and the children to remain at SB’s address and for him to be advised if they moved from that address. He annexes a lengthy file note of the visit on 26 September 2017, containing detailed notes under the heading “Safety plan for [C1, C2 and C3]”. I reproduce the following notes:

The children ... remain in the primary care of [EM] (biological mother) and [EM] and the children to reside with [SB] at [the Ōtāhuhu address].

⁵⁸ Noting that there is, in my view, no inconsistency with a person exercising public power, and thus being potentially liable for the tort of misfeasance in public office but at the same time owing no duty in negligence.

[EM] agreed to inform if they move out of the house or change their contact details.

[SB] agreed to keep me update[d] if [EM] and the children move out of the current address ...

I mentioned that if [MK] and [EM] reside with the children alone (without any whanau member), the Ministry (MVCOT) has concerns.

I made it clear to the whanau about the importance of keeping the children free from family violence and all types of abuses.

• [97] The fact that a plan was settled and communicated to EM is uncontradicted in the evidence. Indeed, as noted above, EM’s affidavit of 5 April 2018 implicitly recognises that such a plan existed and that she was aware of it. At para 14 she acknowledges at least one of the pillars of the plan by saying that a move to her mother’s place in October 2017 was “not a permanent move; hence I did not inform [SW]”. In addition, at para 22 she says that “[t]he interim safety order [by which she clearly means “plan”] had not broken down.”

• [98] SW therefore establishes, on the balance of probabilities, that the allegation he falsely and misleadingly stated he had prepared a safety plan cannot succeed.

Paragraphs 12.2, 12.3 and 18.2

• [99] These relevantly provide:

• 12.2 The second defendant falsely and/or misleadingly stated that the plaintiff and the children were at the time of the without notice applications living with the plaintiff’s mother at the plaintiff’s mother’s residence ... (“the Mangere address”) ...

• 12.3 Further or alternatively, the second defendant falsely and/or misleadingly claimed that the alleged “interim safety plan has broken down” and that the plaintiff and the children had moved to the Mangere address ... The second defendant’s claim was false and misleading because (i) the plaintiff and the children continued to reside at the Otahuhu address and thus had not “moved to” the Mangere address and (ii) on the second defendant’s own version of events, the alleged interim safety plan applied only until the scheduled [FGC], which had by then been held ...

18.2 The second defendant when making the without notice applications and/or when swearing his affidavits knew ... that his allegation of breach by the plaintiff of the alleged interim safety plan by reason of the plaintiff and the children either having ceased to reside at the

Otahuhu address or having moved to live at the Mangere address was false and wrong;

• [100] The uncontroverted facts in respect of these allegations are as follows:

(a) It is correct that in SW’s affidavits in support of the ex parte applications, he said, in respect of the 26 September 2017 meeting:

During the visit, I prepared an interim safety plan for [EM] and all 3 children to remain at [SB’s] address until the FGC was held on 4 October 2017. I advised [EM] and [MK] to inform me, if they move from the address ...

(b) In his affidavit in support of the current applications, he states:

It is my invariable practice, where no agreed position is reached at the end of a FGC, to remind the parents that the Ministry’s interim plan (if one is in place) remains in effect. I did this in a “Hui” with the plaintiff and [MK] after the FGC.

(c) That position was uncontradicted until EM’s affidavit of 25 August 2023, which I have declined to admit in this respect. As indicated, what EM now says is, in any event, inconsistent with recognition in paras 14 and 22 of her affidavit, dated 5 April 2018, that the interim safety plan continued after the FGC, pending any further steps.

(d) On 25 October 2017, SW received an email from Ms Innes regarding a conversation had by her with SB. The email stated:

I just wanted to inform you that I have been speaking with [SB] who is [EM’s] mother in law and she has just said that [EM] and the children are currently living with [EM’s] mother. According to [SB] she has been over at her mum’s for about a week. I have rang and left messages with [EM] to make contact with me but she has not got back to me yet.

(e) On the same day, SW contacted MK, who said that EM and the children continued to live at the Ōtāhuhu address. When SW asked for EM to be put on the phone, MK advised that she was at a Plunket appointment. SW then tried to contact SB. However, she did not answer.

(f) On the same day, he then contacted ZM who informed him that EM and the children were residing with her at the Māngere address since EM’s father and stepbrother had passed away.

(g) Soon after that call, EM telephoned SW to say that she, her children and MK planned to attend her father’s funeral in the Cook Islands, albeit that she had not yet booked her fare. In the course of that call, she said she had been to see a Plunket nurse on 24 October 2017, not 25 October 2017 as MK had suggested. She also advised SW that she had visited her family doctor on 25 October 2017.

(h) Following the call, SW contacted the family doctor’s practice, which advised that EM’s last visit was on 20 October 2017.

(i) None of these particulars of enquiry were denied by EM in her affidavit, dated 5 April 2018. She did, however, deny that at that time “my children and I live with ... [ZM]”. She further said that SB told Ms Innes that EM was only visiting her mother for the purposes of making funeral arrangements. There is no affidavit from SB to this effect.

• [101] The position on the evidence is therefore:

(a) SW received reliable advice that EM and the children were currently living with ZM.

(b) Subsequent and appropriate enquiries were consistent with that position.

(c) Untruthful information was given by MK and EM about Plunket and doctor visits from which a reasonable inference was that they were:

(i) aware the interim safety plan continued and required that the children live at the Ōtāhuhu address; and

(ii) endeavouring to provide a false narrative for why the children were not at the Ōtāhuhu address when enquiry was made.

(d) As at 25 October 2017, EM and her three children had, for a period of approximately a week to 10 days, and contrary to the interim safety plan, been living with ZM in an environment which, the evidence established, represented a potential danger to them.

(e) Even assuming residence with ZM was only temporary and that it concluded on or about 30 October 2017, it was clear evidence of willingness on the part of EM to expose herself and the children to an unacceptable level of risk, contrary to the interim safety plan.

• [102] In this context, SW’s statements in his affidavits supporting the Ministry’s ex parte applications, that “new information from Ms Innes indicates that the interim safety plan has broken down” was not false, let alone knowingly or recklessly so. At a minimum, and for whatever reason, EM considered it appropriate to move the children into an unsafe residential environment for a period of a week to 10 days. She did so without notifying the Ministry. The likelihood of a recurrence was real, as was removal from the jurisdiction. Again, therefore, SW establishes that on the uncontradicted evidence and on the balance of probabilities, that EM’s allegation cannot succeed.

Paragraph 12.4

• [103] This relevantly provides:

• 12.4 The second defendant falsely and/or misleadingly stated that her had given consideration to alternative options for protecting the girls, namely a place of safety warrant and a temporary care agreement, when he had not done so ...

• [104] SW’s affidavits filed in support of the ex parte applications identify under the heading “Alternative Options” that SW had considered a place of safety warrant but given the seriousness of the care and protection concerns did not believe they could be resolved within the relevant expiry period of five days. He also stated that he had considered a temporary care agreement but did not believe his concerns could be

addressed within either 28 days or 56 days because they were “not based on a specific need for a short period of time but relate to long term placement”.

• [105] Relevant in this context, is the fact that, as SW deposed in his affidavit in support of the current applications, the affidavits filed in support of the ex parte applications were prepared with the assistance of the Ministry’s lawyers and, in particular, Ms Lina Evile, who ultimately filed the applications at the Family Court. The usual legal oversight can therefore be assumed.

• [106] EM advances no evidential foundation for her proposition that alternatives were not considered. SW’s affidavits reference, on their face, the nature of the consideration given.

• [107] SW establishes, on the balance of probabilities, that the allegation cannot succeed.

Paragraph 12.5

• [108] This relevantly provides:

• 12.5 The second defendant falsely and/or misleadingly described family violence events occurring between [MK’s] mother (SB) and her husband as having instead “involved” MK (the plaintiff’s then partner and father of [C3]) ...

• [109] This allegation is clearly wrong. Both SW’s affidavits distinguish between Mr K (ex-husband of SB) and his son MK (partner of EM).

• [110] Referring to the affidavit filed in respect of C1 and C2, para 47(a) referred to previous Ministry involvement with SB regarding care and protection of her children, including MK. Paragraph 47(c) went on to state the Ministry’s “major concern” with SB’s children was “in relation to the family violence between SB and her ex-husband”. Paragraph 55 stated:

... It is evident that family violence incidents and relationship issues continue in relation to [EM] and [Mr K]. Professionals have reported observing bruises on [EM] and she has told professionals that they were caused by [Mr K] punching her.

• [111] Paragraph 58 references a police report, dated 13 October 2017 and annexed to the affidavit, in which MK’s involvement in four family violence incidents between 4 January 2015 and 3 April 2017 is noted. The person referenced in the annexure is stated to be aged 17 years. There can be no question of confusion with his father.

• [112] In the same affidavit, SW refers to a report from Ms Kylee Lindsay, a social worker at Middlemore Hospital. She describes a presentation by EM in which she informed hospital staff that the bruises on her forearm were the result of her partner, MK, punching her multiple times after EM had a seizure. By way of background, EM described lying on a bed when MK asked her to face the wall and go to sleep. She eventually rolled over and witnessed MK having sexual intercourse with a friend who had come to stay the night. When EM confronted MK, he became aggressive, punching her multiple times.

• [113] EM does not deny that these allegations were made against her former partner. Indeed, in her affidavit dated 5 April 2018, she acknowledges them. She says that they were not truthful and that her relationship with MK was not abusive, stating that, “I was highly stressed at the time and reacted in a way that I shouldn’t have.”

• [114] Again, the uncontradicted position is therefore that:

(a) MK’s police record identified him as a perpetrator of family violence.⁵⁹

(b) EM had advised authorities that MK had assaulted her.

(c) At the time the ex parte applications were made, there was no indication that these were false reports.

• [115] Whatever the truth or falsity of the proposition that MK abused EM, the evidence available to SW indicated that he had. That evidence was comprehensively set out in his affidavits in support of the ex parte applications. Against this background, the proposition that SW knowingly or recklessly provided false information about EM’s partner and the fact that EM’s relationship with him was

⁵⁹ And also as the beneficiary of a protection order against his father.

abusive, is simply untenable. Again, therefore, the allegation cannot on the balance of probabilities succeed.

Paragraph 12.6

• [116] The allegation is:

• 12.6 The second defendant falsely and/or misleadingly described [MK’s] mother (SB) as a “prostitute” who waited at the gates of Mangere College for customers ...

• [117] The relevant statement in SW’s affidavits is as follows:

It was reported to the Ministry in the past that [SB] is a prostitute and used to leave other people to care [for] her children when she got contacted by her “clients” and went to wait at Mangere College for her clients.

• [118] In his affidavit in support of the current applications, SW says that he did not himself accuse SB of being a prostitute. He simply informed the Court that this allegation had been made. He annexed the results of a Ministry database search, which included the following notification dated 1 July 2015:

Notifier advised that last night [MK] contacted the caller’s family and said he has run away because his mother made him starve. He was picked up by the side of the road by the caller’s family.

[MK] said that his mother has “replaced him” with her boyfriend who is an 18 year old Māori man living in the same Lodge.

...

Caller advises that [SB] is a prostitute and used to leave other people to care for the children when she got contacted by clients and went to wait at Mangere College for the clients.

[MK] sometimes would come home from soccer practice to find the girls home alone.

[SB] gives money to her boyfriend to get whatever he wants (he uses cannabis) and then she uses Fatima Foundation to get free food.

• [119] For completeness, I note that in her affidavit, dated 5 April 2018, EM rejects the proposition that SB is a prostitute. She says it is “false” and that SB is “a religious person”.
• [120] Again, the position is incontrovertible, SW did not describe SB as a prostitute. He merely recorded that it was reported to the Ministry that she was. To suggest that he gave a false or misleading description is untenable on the documentary evidence.

Paragraph 18.3

• [121] This is the newly amended pleading alleging that the only or dominant motivation of SW’s actions was religious bias or prejudice based on an allegation that at a meeting on 26 September 2017 he said, “Muslim people are terrorist people”, or words to that effect.

• [122] I have already indicated that the allegation such a statement was made neither appears in EM’s affidavit, dated 5 April 2018, nor her initial affidavit in opposition to SW’s applications, dated 21 April 2023.

• [123] The allegation is forcefully rejected by SW, whose position is supported by an independent person present at the same meeting.

• [124] In his affidavit in support of the current applications, SW identifies as the genesis of the allegation of bias, a May 2018 complaint made to the Social Workers’ Registration Board by Ms Dianne Te Tau, a social worker then employed by Counties Manukau Health. Her complaint said that as part of her role she was asked to complete a community assessment for what she described as a pregnant 26 year old Cook Island Māori woman. She said that after she completed the social worker assessment and reviewed documentation that the patient wanted her to read, she became “concerned by the action of an Oranga Tamariki social worker”. She noted:

It is my belief that the social worker holds a discriminatory position because the patient has married a young Indian male and has converted to the Muslim religion.

• [125] The Registration Board subsequently appointed a Professional Conduct Committee (PCC) which interviewed both Ms Te Tau and EM on 25 February 2019.

• [126] Ms Te Tau was asked to explain the basis for her allegation of religious bias. She replied as follows:

A Well I feel that if there was a conflict of interest due to religious beliefs that should have been disclosed, and I, I would like to ask that question, is there, is there a um is there a religious um issue here. Because I can’t work out why things have happened, was there, was there some kind of underlying um issue around her, she’s converted to Islam, she’s now you know reading the Koran um she um is there some kind of religious motivation around [SW’s] decision-making, I don’t know, but I certainly, as a social worker, would like to know if there was.

• [127] In short, no factual basis was provided for the allegation.

• [128] In EM’s interview the following exchange occurred:

Q [EM] as you’re aware we have received the complaint by another social worker. We were wondering if you could tell us what you knew about that and what your most concerning matter was and how this came about.

A Okay. The concerning part about this whole matter was my childrens were uplifted at 10 o’clock at night. With a lot of false information that the social worker had stated in his affidavits when he placed to the courts. I actually think that the stuff and the information that he had provided wasn’t good enough to actually take my children away from myself and my family. I also think that he was unprofessional and he wasn’t doing his researches or his investigation against myself and my partner.

• [129] Nowhere in the interview does EM refer to the incendiary allegation now appearing in para 18.3(iii) of the second amended statement of claim.

• [130] In a determination dated 23 August 2019, the PCC found that SW had not breached his ethical duties, or the applicable code of conduct, in terms of his obligation to “[r]espect the cultural needs and values of [EM] and not engage discriminatory behaviour.” The PCC did, however, criticise SW’s “heavy reliance” on written communications with EM and other professionals. The Registration Board subsequently accepted the PCC’s recommendation that SW receive mentoring in this respect. SW successfully challenged the Registration Board’s acceptance of the PCC’s recommendation on an appeal to the District Court. The PCC subsequently reconvened and on 19 December 2022, issued a report determining that “no further action be taken”. It noted that:

SW presented to the PCC as a confident, intelligent, and capable practitioner. While the PCC does not always agree with his approach towards written

communications, it does not consider this is to the detriment of his clients or to the profession.

• [131] On 27 January 2023, the Registration Board advised that the file had been closed.

• [132] As indicated, a nominal conflict on the evidence will not be sufficient to prevent a summary judgment application where the evidence of the party defending the application lacks any aura of credibility. I put the allegation that, at the meeting on 26 September 2017, SW said, “Muslim people are terrorist people”, firmly in that category. It has, over a period of six years, never featured in any correspondence, interview or affidavit, is rejected by an independent witness and was, in my view, only advanced in a beleaguered attempt to save an otherwise HCR non-compliant pleading. By a comfortable margin, I find that SW establishes, on the balance of probabilities, that the plaintiff’s claim cannot succeed. He should not, in my view, be required to bear the psychological and financial costs of trial only to answer an allegation so demonstrably weak. This is, in my view, a classic case where some robustness is required in exercise of the Court’s summary judgment jurisdiction, even in the face of a nominally conflicting position.

Paragraph 18.4

• [133] This paragraph alleges:

• 18.4 By failing to disclose the foregoing matters (or any of them), the second defendant knowingly and recklessly misled the Family Court in his affidavits, in particular when falsely claiming that he had fully and frankly disclosed all relevant facts and circumstances, whether or not advantageous to him as applicant ...

• [134] No separate discussion is required. I note that under the heading “Information Favourable to the Respondents”, SW disclosed in his supporting affidavits that he had had communications with EM’s midwife who did “not have worries for [EM’s] care of the children”. He annexed a relevant email from the midwife, noting that although it contained positive statements about EM, she “could not have observed [EM] for long”, her role being limited to supporting EM in respect of C3.

Paragraph 18.5

• [135] This paragraph pleads that:

• 18.5 Having in fact formed the intention and embarked on the taking of active steps to achieve an uplift of the plaintiff’s three children as from on or about 4 October 2017, the second defendant knowingly or recklessly asserted to the Family Court in his affidavits (i) that the three children were “at immediate risk based on the family dynamics” such the applications for interim custody orders could not proceed on notice to the plaintiff and/or (ii) that there was no delay in filing the without notice applications ...

• [136] No evidential foundation is provided for the proposition that SW embarked on “active steps” to uplift the children as from 4 October 2017. It is correct that in his affidavit in support of the current applications, he identified the failure of the FGC as exacerbating long-held Ministry concerns about the safety of the children. He notes also that the interim safety plan was never, by definition, a satisfactory way of addressing the Ministry’s concerns on a long-term basis. The fact that he thereafter took advice from his superior, the Ministry legal team and counsel for the child is therefore entirely predictable. However, on the affidavit evidence it was Ms Innes’ advice on 25 October 2017 which precipitated “active steps”. The without notice applications were filed five days later, after significant further enquiry. The proposition that SW knowingly and recklessly asserted that there had been no relevant delay is untenable in the context of so complex a case. No ex parte application for interim custody in favour of the Chief Executive should ever proceed without proper and measured consideration of all competing factors and SW had not even assumed responsibility for the file until the latter part of September 2017.

• [137] In respect of the allegation that SW knowingly or recklessly asserted that the three children were at “immediate risk based on the family dynamics”, SW’s affidavits in support of the ex parte applications set out in detail the basis for his belief. For example (and referencing again the affidavit in respect of C1 and C2), he identifies:

(a) the record of abuse by ZM of EM (at para 24);

(b) concerns about any placement with ZM (at para 34);

(c) violence against C1 and EM by SR, albeit with the acknowledgement that SR was at the time of the applications in prison for assaulting his son (at paras 31 and 36);

(d) IOSIS’s concern that EM and MK were not engaging well with support services (at para 44);

(e) belief, based on police reports, that ZM was complicit in assaults on SR’s son (at para 49);

(f) MK’s involvement in family violence incidents, confirmed by EM on presentation at Middlemore Hospital on 9 May 2017 (at para 58); and

(g) ZM’s involvement in multiple family violence incidents between 1995 and 2017 (at para 60), many admittedly as victim but including a police observation that:

[ZM] is not protective and allows [SR] to assault [EM] on a regular basis, and then blames [EM] for causing trouble. If [EM] seeks help from Police her mother kicks her out. [EM] has a raft of medical conditions including epilepsy and is of low IQ.

• [138] Against this background and with reliable advice that EM was not engaging satisfactorily with social agencies and had, in breach of interim arrangements returned with the children to live with her mother for a period in the order of a week to 10 days, the allegation that SW knowingly or recklessly asserted a false belief that the children were at immediate risk based on family dynamics cannot, on the balance of probabilities, succeed. His affidavits set out the composite of considerations which brought him to that conclusion, which he expresses on the basis of “belief”. The same composite of considerations persuaded counsel for C1 and C2 in the COCA proceeding to support the ex parte applications. Likewise, they persuaded an experienced Family Court Judge to grant them. EM is unable to establish error in the material placed before the Court or to answer the fact that SW had received multiple inputs from other agencies raising significant concerns about the children’s welfare. To suggest that he knowingly or recklessly pursued the applications without having an

honest basis to conclude that the children were at immediate risk, is untenable on the evidence.

• [139] In his affidavits supporting the ex parte applications, SW gives reasons for bringing the applications on an ex parte basis. He references EM’s intention to travel out of the jurisdiction and records his belief that if she or her whānau were informed about the application, the children may not return. He confirms, based on the extensive information previously provided, his assessment that the children were at immediate risk. He references the support for a without notice application by counsel for C1 and C2. In SW’s affidavit in support of the current applications, he also notes approval by his superior and by the Ministry’s legal section.

• [140] For the reasons previously explained, the proposition that, in so doing, he was not honestly attempting to perform his functions (whether deliberately or recklessly) is untenable on the evidence. To conclude otherwise, I would effectively have to assume that SW was unmotivated by the composite of considerations identified by him in his affidavits and instead proceeded on the basis of a religious bias — a proposition for which there has never been any credible evidence and which, after full enquiry, was rejected by the PCC.

Paragraph 18.6

• [141] This paragraph particularises EM’s allegation of malice by “proceeding to execute the interim custody orders which he had obtained”. The allegation is that:

• 18.6 Further or alternatively, the second defendant by the time of the attempted uplift of the plaintiff’s three children on the late evening of 30 October 2017 had become aware (if not earlier aware, which is denied), by reason of the plaintiff and the three children’s absence from the Mangere address and presence and current residence (when located) at the Otahuhu address, that his allegations of breach of the interim safety plan made in support of the without notice applications for interim custody had been false and misleading;

• [142] The clear implication of the pleading is that he should never have proceeded to execute the Family Court’s orders by uplifting the children.
• [143] The uplift orders were, as I have indicated, issued on 30 October 2017 under seal of the Family Court. Both are stated to be custody orders under s 78 of the OTA. They provide that the Ministry “shall have custody of the above-named children ... pending final determination of the proceedings”. As already observed, notes to the order recorded it as being sufficient authority to exercise the powers under s 104(2) and (3) of the OTA.

• [144] Mr Harrison relies on s 104(2) which relevantly provides:

104 Effect of custody order

...

(2) Any custody order shall be sufficient authority for any constable or the chief executive (acting through the chief executive’s delegate) or any other person authorised in that behalf by the chief executive to place the child or young person to whom the order relates—

(a) where the order places the child or young person in the custody of the chief executive, with such person, or in such residence, as the principal manager of the department for the area in which the court is situated may direct:

...

• [145] He says that although the uplift orders were sufficient authority to place the children in the custody of the Chief Executive, SW was not obliged to do so and should not have done so in circumstances where the children were not located at the Māngere address.

• [146] But, again, the issue is whether SW can establish, on the balance of probabilities, that an allegation of malice in respect of the uplift cannot succeed. I do not read s 104(2) as investing the Ministry with an active discretion in terms of whether it executes an order under s 78 or not. The uplift orders stipulate that the Ministry “shall have custody”. They were issued on the basis of expressed concern about risk to the children arising from multiple family dynamics. The reasons stated by the Family Court Judge for granting the order were not limited to breach of the interim safety plan. The Judge identified a “variety of care and protection concerns” including EM’s exposure to domestic violence by successive partners, and the absence of positive changes despite the intervention of multiple agencies. The orders clearly

intended that the children be uplifted and taken to a place where their care and protection could be adequately secured.

• [147] The fact that the children were not at the Māngere address did not vitiate the orders. As indicated, breach of the interim safety plan was simply one factor among many considered by the Family Court and, even if EM had, in fact, returned to the Ōtāhuhu address on or about 30 October 2017 with the intention of thereafter remaining there, her actions over the preceding 10 days justified SW’s conclusion that she did not consider herself constrained by the interim safety plan and may again breach it. In any event, at the point of uplifts the prospect of EM imminently leaving the jurisdiction with the children and MK remained live.

• [148] There is, in my view, no tenable basis for suggesting that SW acted maliciously in executing the uplift orders in these circumstances.

• [149] Again, therefore, SW satisfies me on the balance of probabilities that the plaintiff cannot succeed on the first cause of action pleaded against him.

The second cause of action: abuse of process/malicious pursuit of civil proceedings

• [150] EM alleges that she suffered loss as a result of SW’s “malicious (including reckless) pursuit of the Family Court applications and/or knowing or reckless abuse of the process of that Court ... and/or his malicious (including reckless) and/or abusive execution of the without notice orders for uplift ...”.

Malicious prosecution of civil proceedings

• [151] I start by examining the vexed question of whether I should recognise the tort of malicious prosecution of civil proceedings at all.

• [152] The history of malicious prosecution can be traced back to the writ of conspiracy which was in existence as early as the reign of Edward I.⁶⁰ It was only,

60. James Goudkamp and Donal Nolan Winfield and Jolowicz on Tort (12th ed, Sweet & Maxwell, London, 2020) at 575.

however, by the late seventeenth century, that an action in malicious prosecution began to properly take shape.⁶¹ At the time, private criminal prosecutions were endemic, and courts saw it as necessary to provide recourse to a defendant faced with a plainly abusive proceeding. However, with the near-exclusive assumption of prosecutorial responsibility by the Crown and the advent of public prosecution authorities, private prosecutions have become exceptional occurrences with much of the tort’s raison d’etre therefore no longer applicable.⁶²

• [153] That said, there has always been a limited group of specified civil proceedings to which the tort has also applied. In Willers v Joyce, Lord Mance JSC summarised the classes of proceedings traditionally capable of engaging the tort:⁶³

... (i) prosecution of criminal (and, at least anciently, some ecclesiastical) proceedings, but not of disciplinary proceedings; (ii) institution of coercive measures instituted ex parte (though with the assistance of, or subject to some form of adjudication by, legal authorities) under civil procedures available leading to the arrest, seizure or search of the plaintiffs’ person or property or scandalisation of his fair fame; (iii) petitions for bankruptcy or insolvency, even though the grant of the petition is subject to some form of adjudication. In claims for malicious prosecution within point (i), i e relating to a criminal prosecution, damages could include costs which the plaintiff incurred in successfully defending the malicious prosecution. But in the case of claims within points (ii) and (iii), i e in relation to the pursuit of prior civil proceedings, a plaintiff could, under the rules recognised in and expounded after Savile v Roberts recover damages for injury to person or reputation (in cases of “scandal”), but could not recover any extra costs over and above those recoverable inter partes in the original action.

• [154] In the same case, however, the Supreme Court of the United Kingdom, by a bare majority, extended the tort to encompass the initiation of civil proceedings generally and allowed an action to proceed for malicious initiation of a claim of breach of contractual and fiduciary duties. In doing so, it followed the Privy Council’s decision in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd,⁶⁴ again decided by a bare majority, allowing a claim in respect of a malicious civil proceeding alleging, inter alia, deceit and conspiracy to defraud.

⁶¹ See Savile v Roberts (1698) 1 Ld Raym 374 (KB).

⁶² Lord Sumption has gone so far as to describe the tort in its traditional form as “all but defunct”: Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd [2013] UKPC 17, [2014] AC 366 at [121].

⁶³ Willers v Joyce [2016] UKSC 43, [2018] AC 779 at [128].

⁶⁴ Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd, above n 62.

• [155] In that case, Lord Kerr laid out the argument for extension of the tort in the following terms:

119 The case for recognising the existence of the tort for civil proceedings as well as in criminal proceedings seems to me far more grounded in logic than the case for refusing to extend it. Although the private prosecutor may take on the mantle of the state in criminal proceedings and although the coercive power of the state may be present in the prosecution by the [Director of Public Prosecutions] of offences, the central and critical species of wrongdoing is the same in malicious prosecution of civil proceedings. It is the procuring by malice of the discomfiture (at least) or the ruin (not infrequently) of the person against whom the action is taken for reasons disassociated with the professed purpose of the proceedings. Proceedings motivated by nothing more than malice are capable of wreaking devastation whether in pursuit of criminal prosecution or private action. Where it can be demonstrated that the court’s procedures do not provide an adequate remedy (or in this case no remedy at all) there can be no logic for denying the person who has suffered the same harm by the institution of civil proceedings as he who has been the victim of criminal proceedings. Indeed, it is not difficult to envisage cases where the harm will be considerably greater.

• [156] Not without some controversy therefore, the English position appears to be that malicious prosecution of any civil proceeding is actionable.

• [157] In New Zealand, the leading authority on the issue remains a 1917 decision of the Full Bench of the Supreme Court: Jones v Foreman.⁶⁵ In that case, the Court held that the malicious institution of a paternity proceeding could not found a cause of action in tort. The Court was hostile to a general extension of the tort to civil proceedings but, in reliance on eighteenth and nineteenth century English authorities,⁶⁶ acknowledged that the action would be available in respect of malicious petitions for bankruptcy or liquidation.⁶⁷ The Court also alluded to the possibility of an action where harm to reputation was sustained:⁶⁸

There may be, it is true, cases in which a malicious civil action instituted without any ground at all, which either has resulted in special damage such as is recognized by the law, or is of a nature necessarily injurious to a man in his business or profession, would be sufficient to support a claim for damages. This is not such a case. An attempt has been made to introduce into it the question as to whether such an action will lie upon proof of special damage by an allegation that the plaintiff was put to expense in defending himself against the charge brought against him by the defendant; but the authorities

⁶⁵ Jones v Foreman [1917] NZLR 798 (SC).

⁶⁶ Quartz Hill Consolidated Gold Mining Co v Eyre [1883] UKLawRpKQB 126; (1883) 11 QBD 674 (CA); Johnson v Emerson

[1871] UKLawRpExch 29; (1871) LR 6 Ex 329; and Chapman v Pickersgill [1799] EngR 93; (1762) 2 Wils KB 145.

⁶⁷ Jones v Foreman, above n 65, at 806.

⁶⁸ At 816–817.

are unanimous in holding that where, as in the present case, costs can be awarded in a civil proceeding, the plaintiff cannot rely upon the fact that he has been put to extra expense in defending himself as proof of special damage.

• [158] In New Zealand Social Credit Political League Inc v O’Brien,⁶⁹ the Court of Appeal struck out a claim of malicious prosecution of civil proceedings on the basis that it was an abuse of process. In doing so, the Court addressed the rule in Jones v Foreman. Cooke J described the decision as a reflection of orthodox English legal thinking at the time.⁷⁰ However, his Honour acknowledged that where someone had initiated unsuccessful civil proceedings maliciously and without reasonable and probable cause, scale costs for the defendant would fall far short of compensating that defendant’s actual expenditure. On that basis, his Honour saw a strong argument that the difference should be recoverable in tort.⁷¹ Cooke J also noted that damage to reputation could flow from civil proceedings making serious allegations.⁷² Despite those comments, his Honour concluded that Jones v Foreman “must be regarded as stating the law of New Zealand unless and until overruled”.⁷³ Writing separately, Casey J acknowledged criticisms of Jones v Foreman but considered that the “discussion in that case ... provides a cogent reason for preserving the status quo”.⁷⁴

• [159] In Rawlinson v Purnell, Jenkison & Roscoe,⁷⁵ Hammond J considered whether to strike out an action for malicious civil proceedings at first instance. The case concerned the breakdown of a relationship between the plaintiff and his partner following allegations the plaintiff had sexually abused his partner’s daughter. The defendant law firm had applied ex parte to the District Court on behalf of the partner for a non-molestation order. The application recited the allegations of abuse and was supported by an affidavit. The order was made but eventually discharged by the District Court for lack of jurisdiction. The plaintiff alleged malicious prosecution of civil proceedings.

⁶⁹ New Zealand Social Credit Political League Inc v O’Brien [1984] 1 NZLR 84 (CA).

⁷⁰ At 88.

71. At 88–89. That argument must, in my view, be considered less compelling within a contemporary High Court Rules framework which provides for increased and indemnity costs: see r 14.6(4)(a).

⁷² At 89.

⁷³ At 89.

⁷⁴ At 98.

⁷⁵ Rawlinson v Purnell, Jenkison & Roscoe (1997) 15 FRNZ 681 (HC).

• [160] Hammond J acknowledged that extension of the tort raised difficult questions of both principle and policy. The Judge was particularly concerned about the potential “chilling effect” on the legal profession — namely, that lawyers would become less willing to file actions if the tort was extended.⁷⁶ The Judge referred to O’Brien, and Jones v Foreman’s continuing status as defining the law of New Zealand unless and until overruled.⁷⁷ However, given criticisms of that case by the Court in O’Brien, his Honour considered that the claim could not be said to lack any prospect of success in law and on that basis allowed it to proceed.⁷⁸

• [161] The claim was subsequently tried before a jury, which returned a finding of no malice. In a subsequent reason for rulings judgment, Hammond J emphasised that there was at least “some possibility” that New Zealand law might recognise a tort of malicious civil proceedings.⁷⁹ For the purposes of the trial, and by analogy to the case law on malicious criminal proceedings, the Judge set out the elements of the tort as follows:

(a) the defendant must have advanced a civil cause of action against the plaintiff;

(b) the application must have been ultimately resolved in the plaintiff’s favour;

(c) the defendant must have had no reasonable and probable cause for bringing the civil proceeding;

(d) the defendant must have acted maliciously in instituting or continuing the civil proceeding; and

(e) damage of a kind for which the law will allow recompense must have been caused to the plaintiff.⁸⁰

⁷⁶ At 685.

⁷⁷ At 685.

⁷⁸ At 686.

⁷⁹ Rawlinson v Purnell, Jenkison & Roscoe [1999] 1 NZLR 479 (HC) at 484.

⁸⁰ At 484–485.

• [162] Since Rawlinson, references to malicious civil proceedings have been sporadic, and limited to the High Court. In Deliu v Hong,⁸¹ a decision before Crawford Adjusters, Associate Judge Bell struck out duelling claims for malicious civil proceedings holding that the claims did not fall within the limited exceptions restated in Jones v Foreman.⁸² The Judge acknowledged that review of that decision may be timely but indicated that the case was not an appropriate test case.⁸³ In a decision on an application to review Associate Judge Bell’s refusal to recall his strike-out decision, Courtney J held that the tort of malicious prosecution was not available in respect of civil proceedings save for “very specific exceptions”, and concluded that Associate Judge Bell was correct in his assessment that the cause of action was not tenable.⁸⁴ Mr Deliu’s claim was, however, reinstated given he had not been given an opportunity to be heard by Associate Judge Bell. In a later stage of the proceeding, Associate Judge Osbourne refused to strike out Mr Deliu’s claim of malicious prosecution of civil proceedings on the ground that the law was developing.⁸⁵

• [163] In Robinson v Whangarei Heads Enterprises Ltd,⁸⁶ the defendant company had applied ex parte and under extreme urgency for an order pursuant to s 55 of the Judicature Act 1908 for the arrest of the plaintiff after he had taken possession of a number of items of contracting equipment belonging to the defendant. The order was made and the plaintiff was subsequently arrested and taken into custody for approximately 20 hours. The plaintiff brought an action against the defendant company and its director for malicious prosecution of civil proceedings and abuse of process, seeking, inter alia, damages for embarrassment and damage to reputation as a result of his detention. Relying on the Privy Council’s advice in Crawford Adjusters and the High Court’s decision in Rawlinson, Gilbert J considered that malicious prosecution of civil proceedings “should be recognised as a tort in New Zealand”.⁸⁷ In reaching that position, the Judge made no reference to Jones v Foreman or O’Brien. The action failed on the facts.⁸⁸

⁸¹ Deliu v Hong [2011] NZHC 602; [2011] NZAR 681 (HC).

⁸² At [27].

⁸³ At [27].

⁸⁴ Deliu v Hong HC Auckland CIV-2010-404-6349, 21 December 2011 at [15].

⁸⁵ Deliu v Hong [2013] NZHC 735 at [88].

⁸⁶ Robinson v Whangarei Heads Enterprises Ltd [2015] NZHC 1147, [2015] 3 NZLR 734.

⁸⁷ At [48]–[49].

⁸⁸ At [47] and [52].

• [164] In Murren v Schaeffer,⁸⁹ an application for strike out, Associate Judge Matthews reviewed Rawlinson, Crawford Adjusters, Robinson and Willers and concluded that as the law stood there was “sufficient recognition that a cause of action based on the tort of malicious prosecution is available in New Zealand in a civil context”.⁹⁰ Again, no reference was made to Jones v Foreman or O’Brien. On the facts of the case, the party had pleaded malicious prosecution both as an affirmative defence and a counterclaim to a civil suit regarding contributions to a vineyard and winery business. Associate Judge Matthews held that there was no basis on which the developing tort could be applied as a defence and struck it out accordingly.⁹¹ The counterclaim was also struck out as an abuse of process because the tort’s elements relied on facts which had not yet occurred.⁹²

• [165] Finally, and most recently, an extended tort of malicious prosecution was applied by Grice J in Mount v C & F Legal Ltd.⁹³ In that case, the plaintiff claimed that a law firm and accountancy firm who acted for a number of the plaintiff’s investor clients, were liable to the plaintiff for malicious prosecution. The investor clients had been successful in obtaining summary judgment against the plaintiff for breach of fiduciary duty and succeeded in various interlocutory applications relating to freezing orders and enforcement of the judgement debt. The Judge’s legal analysis of the tort was confined to a setting out of its elements, as stated in Rawlinson.⁹⁴ There was no associated discussion of the tort’s availability in the context of civil proceedings, which must have been assumed. The Judge ultimately found that the claim could not succeed as the impugned proceeding was not resolved in the plaintiff’s favour.⁹⁵ The claim was otherwise struck out as an abuse of process.⁹⁶

• [166] It appears, therefore, that O’Brien remains the governing precedent at High Court level and given that it confirms the ongoing application of Jones v Foreman unless and until overturned, I find myself unable to follow other members of this

⁸⁹ Murren v Schaeffer [2017] NZHC 163.

⁹⁰ At [55].

⁹¹ At [57].

⁹² At [67].

⁹³ Mount v C & F Legal Ltd [2023] NZHC 653.

⁹⁴ At [100].

⁹⁵ At [101].

⁹⁶ At [104].

Bench in so readily concluding that the tort is available in the context of civil proceedings. That said and for the following reasons, I am not satisfied that I should give summary judgment on this basis alone.

• [167] First, it is arguable that the applications for uplift already fall within a recognised category of civil proceedings under the traditional tort — namely, the institution of coercive measures instituted ex parte (see dicta of Lord Mance JSC reproduced above in para 153). This category encompasses a small and anomalous class of cases where the defendant has obtained an order ex parte which engages the coercive powers of the state, with immediate and perhaps irreversible damage to the victim.⁹⁷ This was not a category explicitly recognised in Jones v Foreman, but that case did not set out to change the orthodox English position. I note that this category is potentially an alternative basis to justify the tort’s availability in Robinson.

• [168] Second, it must be regarded as a reasonable possibility that the Court of Appeal will overturn Jones v Foreman and enlarge the tort to encompass all civil proceedings. I base that conclusion on the recent developments in English law, the persuasive decision in Willers, the fact that the trend of High Court authority is clearly in favour of the tort’s enlargement; the Court of Appeal’s criticism of Jones v Foreman in O’Brien and its signal that a review would one day occur; and the opinion of the learned authors of Todd on Torts that, in New Zealand, the majority view in Willers, by a “narrow margin”, deserves to carry the day.⁹⁸

• [169] I note, however, that extension of the tort is by no means inevitable.⁹⁹ There are, after all, compelling reasons for not doing so. It is unnecessary for me to engage with those reasons in detail which are outlined comprehensively in the dissenting judgements in Crawford Adjustors and Willers. Lord Mance JSC put the position succinctly in Willers when he said:¹⁰⁰

⁹⁷ For a discussion of these cases see Gregory v Portsmouth City Council [2000] UKHL 3; [2000] 1 AC 419 (HL) at 427–429 and Willers v Joyce, above n 63. I acknowledge that there are issues about whether the ability of EM to review the uplift order meant that there was “immediate and perhaps irreversible damage”. But that would be a matter better explored at trial.

⁹⁸ Stephen Todd and others Todd on Torts (9th ed, Thomson Reuters, Wellington, 2023) at 1193.

⁹⁹ See the refusal of the Singapore Court of Appeal to follow Willers: Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan No 301 [2018] SGCA 50, [2019] 1 LRC 156.

¹⁰⁰ Willers v Joyce, above n 63, at [132].

... the recognition of a general tort in respect of civil proceedings would be carrying the law into uncharted waters, inviting fresh litigation about prior litigation, the soundness of its basis, its motivation and its consequences. The basis, motivation and consequences of individual ex parte steps, having immediate effects at the outset of litigation, are likely to be relatively easy to identify. The exact opposite is likely to be the position in the context of prior litigation which has extended quite probably over years. Further, there is (and could logically be) nothing in the proposed extension of the tort of malicious prosecution, to limit it to circumstances where the claim was at the outset unfounded or malicious. It would be open to a defendant throughout the course of civil proceedings to tax the claimant with the emergence of new evidence, or the suggested failure of a witness to come up to proof, and to suggest that from then on the claim must be regarded as unfounded and could only be being pursued for malicious reasons.

• [170] However, although I am not prepared to give summary judgment on the basis that the door to claims of malicious pursuit of civil proceedings is in a general sense tightly closed, I am prepared to do so having regard to the particular and, in my view, insuperable challenges EM faces in this case.

• [171] First, SW establishes that he had an honest belief founded upon reasonable grounds of the existence of circumstances which would have led a prudent social worker to conclude that there was reasonable and probable cause to make the ex parte applications. My previous discussion refers. Relatedly, I find no credible evidentiary foundation for an allegation of malice.

• [172] Second, the ex parte applications were resolved in favour of the Chief Executive, not EM. By reference to Hammond J’s proposed elements of the tort, the claim must fail on that for that reason.

• [173] Mr Harrison submits that the requirement that the civil proceedings resolve in favour of the plaintiff lacks legal foundation. I reject that submission.

• [174] There are important justifications for such an element, summarised by the High Court of Australia in Commonwealth Life Assurance Society Ltd v Smith,¹⁰¹ albeit a case relating to a criminal prosecution:

¹⁰¹ Commonwealth Life Assurance Society Ltd v Smith [1938] HCA 2; (1938) 59 CLR 527.

(a) first, allowing an action in the absence of proof that the first proceeding has terminated in favour of the claimant would in effect involve a retiral of the merits of that proceeding by collateral rather than appellate review;

(b) second, the element prevents imputations in one proceeding against the justice of another proceeding already pending or of a judicial determination still in force; and

(c) third, it is only where the proceeding has been resolved in the claimant’s favour that it can be seen to be without proper foundation.¹⁰²

• [175] I acknowledge that there is a category of case where resolution in favour of the plaintiff is a legal impossibility and where therefore the requirement cannot be legitimately imposed. Likewise, the cases recognise an exception in respect of certain types of ex parte applications, for example, malicious procurement of the issue of a search warrant¹⁰³ on the basis, effectively, that once executed, they cannot be undone. But the circumstances here are very different because:

(a) a full judicial process has followed the ex parte application, resulting in a comprehensive set of reasons for granting the order; and

(b) the Ministry simultaneously filed an on notice application for declarations that the children were in need of care and attention which was resolved in its favour and final custody orders were subsequently made in the Chief Executive’s favour.

• [176] In these circumstances, the considerations identified by the High Court of Australia have particular resonance.

¹⁰² At 539–540.

¹⁰³ Wyatt v White [1860] EngR 477; (1860) 5 H & N 371.

Abuse of process

• [177] Mr Harrison seeks to circumvent this problem altogether by rebilling the second cause of action as “Abuse of Process/Malicious Pursuit of Civil Proceedings” for which I granted EM leave on the second day of hearing. He refers to Gilbert J’s observation in Robinson that whereas malicious prosecution requires that the prosecution be terminated in the plaintiff’s favour, that is not a requirement of a cause of action founded on abuse of the process of the law.¹⁰⁴

• [178] The introduction to the second cause of action in the second amended statement reads, with amendments emphasised:

SECOND ALTERNATIVE CLAIM: ABUSE OF PROCESS/MALICIOUS PURSUIT OF CIVIL PROCEEDINGS

...

22 As a consequence of the second defendant’s malicious (including reckless) pursuit of the Family Court applications and/or knowing or reckless abuse of the process of that Court as pleaded referred to in para 10 above and/or his malicious (including reckless) and/or abusive execution of the without notice orders for uplift of the children referred to in paras 13–16 above, the plaintiff suffered the emotional and physical consequences described in para 15 above ...

• [179] In an accompanying memorandum, Mr Harrison stated:

2. For the avoidance of doubt, Counsel places on record that the amendments to the second-pleaded cause of action are not seen as introducing any new cause of action alleging “abuse of process”. Rather, the terms abuse of process/malicious pursuit of civil proceeding are simply alternative ways of describing what is essentially the same tort.

• [180] Despite Mr Harrison’s assertion that no new cause of action is alleged, abuse of process and malicious pursuit of civil proceedings are, as a matter of law, distinct tortious actions and must “if possible be stated separately and clearly”.¹⁰⁵ That position is neither new nor controversial. Abuse of process, which has its basis in the leading case of Grainger v Hill,¹⁰⁶ occurs when a legal process is used, in its proper

¹⁰⁴ Robinson v Whangarei Heads Enterprises Ltd, above n 86, at [30].

¹⁰⁵ High Court Rules, r 5.17(1).

¹⁰⁶ Grainger v Hill [1838] EngR 365; (1838) 4 Bing NC 212.

form, in order to accomplish a purpose other than that for which it was designed. Lord Sumption characterised the tort in the following terms:¹⁰⁷

The essence of the tort is the abuse of civil proceedings for a predominant purpose other than that for which they were designed. This means for the purpose of obtaining some wholly extraneous benefit other than the relief sought and not reasonably flowing from or connected with the relief sought. The paradigm case is the use of the processes of the court as a tool of extortion, by putting pressure on the defendant to do something wholly unconnected with the relief, which he has no obligation to do.

• [181] It is this focus on ulterior purpose which distinguishes abuse of process from malicious pursuit of civil proceedings. The distinction, aptly described in Todd on Torts, is between corruptly trying to win a case and corruptly using it for a collateral purpose.¹⁰⁸

• [182] There is no credible basis on the facts to suggest that SW was pursuing any purpose other than the uplift of the children, which he considered in their best interests having regard to the facts placed before the Family Court. As Mr Harrison’s memorandum acknowledges, the new pleading is premised on exactly the same allegations as underpinned the former pleading based on the tort of malicious prosecution alone. What has occurred is simply an attempt to circumvent a technical requirement of that tort by putting a new label on it and without advancing, at least in any credible way, a case for ulterior purpose. EM cannot, in that sense, have “a bob each way” — claiming she is not introducing a new cause of action, simultaneously claiming to be relieved of one of the requirements of her original cause of action and failing to advance any credible narrative to support what should properly have been pleaded as an independent claim.

• [183] Accordingly, I find that SW has discharged the onus on him to show that on the balance of probabilities the second cause of action cannot succeed.

Third cause of action: negligence

• [184] EM claims that the Ministry and/or SW (and SW individually) each owed to her a duty of care in relation to their respective acts and omissions which they breached

¹⁰⁷ Crawford Adjusters v Sagicor General Insurance (Cayman) Ltd, above n 62, at [149].

¹⁰⁸ Todd and others, above n 98, at 1207.

by reference to the circumstances of the Family Court applications and/or the execution of the uplift orders. She says that, as a result, she has suffered “serious emotional trauma and distress” and depravation of her “parental rights”.

• [185] Whether there was a duty of care owed to her by SW (and likewise the Ministry) falls to be decided on a standard analysis of proximity, foreseeability of damages and policy considerations. I accept that the first two are established. It is policy considerations therefore that drive the analysis — as they have done in a number of similar cases under the 1974 Act and broadly similar legislation in the United Kingdom, Australia and Canada.

• [186] I start with the New Zealand position. In Attorney-General v Prince,¹⁰⁹ the Court of Appeal declined to strike out a claim in negligence brought by a child in respect of an alleged failure by social workers to investigate a complaint that his adoptive parents were neglecting him. The Court regarded as “just and reasonable” the superimposition of a common law duty of care on the then Department of Social Welfare in relation to the performance of its statutory responsibilities for the protection and care of children and young persons.¹¹⁰ The Court declined to hold that the existence of a common law duty undermined the relevant statutory scheme, holding that the duty suggested did not conflict with any other duty on the Department and its officers, but rather, enhanced it.¹¹¹

• [187] Subsequent attempts to recognise a duty to caregivers have, however, been unsuccessful. In B v Attorney-General,¹¹² the Privy Council upheld a Court of Appeal decision striking out a claim in negligence brought by a father of two daughters, D1 and D2, who alleged that a social worker and psychologist had breached a duty of care owed to him when investigating him for suspected abuse upon the making of an allegation by D2. In respect of the alleged duty, the Board stated:

[30] To whom is the duty of care owed? Clearly the duty is owed to the child or young person in respect of whom the statutory duty to arrange for a prompt inquiry exists in the particular case. In the present case that is D1 as much as D2. If D2’s abuse allegation was well-founded D1 also was at risk.

¹⁰⁹ Attorney-General v Prince [1998] 1 NZLR 262 (CA).

¹¹⁰ At 284.

¹¹¹ At 284.

¹¹² B v Attorney-General [2003] UKPC 61, [2004] 2 NZLR 145.

But Their Lordships consider no common law duty of care was owed to the father. He stands in a very different position. He was the alleged perpetrator of the abuse. In an inquiry into an abuse allegation the interests of the alleged perpetrator and of the children as the alleged victims are poles apart. Those conducting the inquiry must act in good faith throughout. But to impose a common law duty of care on the department and the individual professionals in favour of the alleged victims or potential victims and, at one and the same time, in favour of the alleged perpetrator would not be satisfactory. Moreover, a duty of care in favour of the alleged perpetrator would lack the juridical basis on which the existence of a common law duty of care was largely founded in Prince’s case. The decision in Prince’s case rests heavily on the feature that the duty imposed on the Director-General by s 5(2)(a) of the [Children and Young Persons Act 1974] is for the benefit of the particular child. Self- evidently this statutory duty was not imposed for the benefit of alleged perpetrators of abuse. To utilise the existence of this statutory duty as the foundation of a common law duty in favour of perpetrators would be to travel far outside the rationale in Prince’s case.

• [188] The result in that case was consistent with Morris J’s earlier decision in E v K,¹¹³ where in addition to a claim of misfeasance in a public office, the adoptive father alleged he had been negligently investigated for abuse. A duty of care to the adoptive father was rejected on the following policy grounds:

(a) the imposition of such a duty to the parents of a child in the care or supervision of a social worker would devalue the paramountcy principle in s 4 of the 1974 Act;

(b) there would be an inherent conflict of interest or duty if a social worker who was required to hold the child’s interests paramount could owe a duty of care in negligence to the parents;

(c) actions in defamation and malicious prosecution were otherwise available; and

(d) persons investigating sexual abuse of children should not be liable in negligence to a parent of a child where allegations of sexual abuse have been withdrawn or proved groundless.¹¹⁴

¹¹³ E v K, above n 55.

¹¹⁴ At 247–248.

• [189] In the United Kingdom, a similar conclusion was reached by the House of Lords in D v East Berkshire Community Health NHS Trust.¹¹⁵ In that judgment, the Law Lords dismissed three appeals, each brought by parents who alleged negligence by health professionals in the investigation and subsequent diagnoses of child abuse in respect of their children. Lord Nichols observed that health professionals should not be subject to potentially conflicting duties when deciding whether a child may have been abused; or when deciding whether their doubts should be communicated to others; or when deciding what further investigatory or protective steps should be taken.¹¹⁶ Lord Brown described the denial of a duty of care to parents as a necessary price to pay:¹¹⁷

It is [the parents], I acknowledge, who are paying the price of the law’s denial of a duty of care. But it is a price they pay in the interests of children generally. The well-being of innumerable children up and down the land depends crucially upon doctors and social workers concerned with their safety being subjected by the law to but a single duty: that of safeguarding the child’s own welfare.

• [190] In Sullivan v Moody,¹¹⁸ the High Court of Australia upheld multiple strike outs of negligence claims brought by fathers against medical practitioners, social workers and others in respect of allegedly negligent investigations into abuse. The Court unanimously held that such a duty could not be reconciled with the statutory duty to treat the interests of the child as paramount.¹¹⁹ Likewise, in Syl Apps Secure Treatment Centre v BD¹²⁰ the Supreme Court of Canada allowed a strike out on the grounds that there was no legal duty owed by a treatment centre or social worker to the parents of a child being treated. Again, the Court focussed on policy issues identifying the existence of such a duty as inconsistent with the overriding duty owed by such professionals to the child.¹²¹

• [191] Apex courts throughout the Commonwealth have therefore adopted a consistent position antagonistic to the existence of a duty on the part of social workers

¹¹⁵ D v East Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 AC 373.

¹¹⁶ At [82]–[91]. See also [110]–[119] per Lord Rodger.

¹¹⁷ At [138].

¹¹⁸ Sullivan v Moody, above n 53.

¹¹⁹ At [62].

¹²⁰ Syl Apps Secure Treatment Centre v BD 2007 SCC 38, [2007] 3 SCR 83.

¹²¹ At [41]–[66]. Abella J identified a genuine potential for “serious and significant” conflict with the service providers overriding statutory duty to promote the best interest, protection and wellbeing of the children in their care.

to caregivers in circumstances where interests of the child are engaged. This is unsurprising. As Ms Dowse, counsel for the Crown, observes, negligence is not developed in jurisdictional isolation and children are children the world over in all cases requiring protection.

• [192] However, Mr Harrison submits that I should not consider myself constrained by this line of authority. He says that each of these cases concerned perpetrators of harm, unlike EM.

• [193] Even allowing for the fact that there is no allegation in this case that EM personally abused her children, I am unable to accept this distinction as governing the duty issue. The question is whether a state agency or social worker with paramount duties to a child should simultaneously owe duties to another person whose interests may not be consistent. In this context the prospect of situational harm must be considered in addition to the prospect of harm at the hand of any particular caregiver. Any distinction between perpetrator and non-perpetrator would, in my view, result in an incoherence in terms of principle.

• [194] Next, Mr Harrison argues that there was in this case no conflict between the interests of the children and EM so that the respective duties were aligned. However, the cases identify an inherent conflict in that it is never in the parents’ interests to have children removed from them.¹²² Recognition of any duty to parent or caregiver inevitably invites a conflict in terms of proper assessment of what may be in a child’s best interests.

• [195] Thirdly, Mr Harrison says decisions like B v Attorney-General and E v K, both decided under the 1974 Act, require reassessment in light of its replacement, the OTA, and in particular the following sections of that Act:

(a) Section 4 which includes among the objects of the Act, the assistance of parents, families, whānau, hapū, iwi and family groups in the discharge of their responsibilities to their children.

122. See Syl Apps Secure Treatment Centre v BD, above n 120, at [43]; and D v East Berkshire Community Health NHS Trust, above n 115, at [88], [110] and [128]–[129].

(b) Section 5 which requires that those exercising powers confirmed under the Act have regard, inter alia, to the principle that wherever possible a child’s family, whānau, hapū, iwi and family group should participate in decisions relating to the child and that wherever possible the relationship between the child and his or her family, whānau, hapū, iwi and family group should be maintained and strengthened.

(c) Section 13 which, having re-emphasised that a court and those exercising powers under relevant provisions of the Act must adopt as the first and paramount consideration, the welfare and interests of the child, includes as a guiding principle in that respect that the “primary role” is caring for and protecting a child lies with the child’s family, whānau, hapū, iwi and family group.

• [196] I am unable to identify any sufficiently material difference between the Children and Young Persons Act 1974 and OTA¹²³ as to be persuaded by Mr Harrison’s argument. Both specify as objects of the legislation the promotion of wellbeing of children by assisting parents and the child’s wider family connections.¹²⁴ Both recognise that the interests of the child are to be the “first and paramount consideration”¹²⁵ — the mandate which lies at the heart of judicial concern about the public policy implications of recognising the duty contended for.

• [197] I acknowledge in the OTA significant additional emphasis on identification, if possible, of the views of family, whānau, hapū and iwi and reinforcement of the proposition that wherever possible relationships between the child and his or her family should be nurtured. However, these are simply expressions of what the legislature regards as principles appropriately adhered to in the child’s best interests. They do not of themselves point to a parallel duty owed to any one or more of family, hapū or iwi.

123. As indicated, this case is governed by the OTA as at 2017. I do not therefore engage with the further (relatively extensive) amendments made to the Act in 2019.
124. Children and Young Persons Act 1974, s 3(a) and (c); and Oranga Tamariki Act 1989, s 4(a), (b) and (c).

¹²⁵ Children and Young Persons Act 1974, s 4; and Oranga Tamariki Act 1989, s 6.

• [198] I decline therefore to find a duty of care owed by SW to EM on the policy grounds identified. To do so would, in my view, inappropriately devalue the paramountcy principle, give rise to potentially conflicting duties, and would, inevitably, lead to slower, more risk-averse responses to perceived safety threats and probably, on that account, increased harm over time. In circumstances where the welfare and interests of the child are statutorily recognised as the “first and paramount consideration”, any dilution of that focus should not, in my opinion, be considered “satisfactory”.¹²⁶

• [199] Such conclusion is sufficient to resolve SW’s application for summary judgment on the third cause of action, but I note two additional arguments available to him, both of which I regard as similarly compelling. The first — that there can be no duty of care for “setting the wheels in motion” — applies only to the ex parte applications. The second — relying on the immunity provided by s 86 of the State Sector Act — applies both in that context and in respect of the subsequent execution of the uplift orders.

• [200] It is a long-recognised principle of tort law that there can be no liability in negligence for setting the law in motion which, in my opinion, must include seeking the orders relevant in this case. Private claims in this respect must be brought as claims for malicious prosecution, not negligence.

• [201] The principle receives extensive recognition in New Zealand appellate decisions, including South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd,¹²⁷ Simpson v Attorney-General (Baigent’s case)¹²⁸ and B v Attorney-General.¹²⁹

• [202] In a recent decision of this Court in King v Attorney-General,¹³⁰ Associate Judge Smith considered B v Attorney-General to be authority for the proposition that “damages are not recoverable for setting the law in motion, except where malice and

¹²⁶ Adopting the word used of the Privy Council in B v Attorney-General, above n 112, at [30].

¹²⁷ South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd

[1992] 2 NZLR 282 (CA) at 303.

¹²⁸ Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s case] at 673.

¹²⁹ B v Attorney-General, above n 112, at [31].

¹³⁰ King v Attorney-General [2017] NZHC 1696, [2017] 3 NZLR 556.

the absence of reasonable and proper cause can be proved”,¹³¹ noting that the position was broadly the same in the United Kingdom, and further citing Brooks v Commissioner of Police of Metropolis.¹³² As Ms Dowse indicated (addressing the same issue in the context of EM’s claims against the Crown), the policy considerations underpinning this position are clear. To hold otherwise would cut across the requirements of established causes of action and lower the bar for civil proceedings for wrongful prosecution as the claimant would no longer have to prove malice¹³³ — a necessary ingredient of the tort of malicious prosecution. As Hardie Boys J observed in Baigent’s case:¹³⁴

The requirement of malice in the abuse of process torts is essential to the due administration of justice. No honest person should be deterred from instituting legal process by the threat of suit for alleged want of care or sound judgment. The integrity and utility of the tort would be destroyed were its scope to be enlarged to encompass negligence. Policy militates against the recognition of a duty of care in this area ... negligence should not be permitted to set at naught the reconciliation of competing interests that has been reached in the development of particular torts.

• [203] I agree with Ms Dowse also that similar policy reasons also support the conclusion that a cause of action in negligence should not be allowed where it would cut across the tort of misfeasance in public office.¹³⁵

• [204] In my view, the steps leading up to the filing of the application for the uplift orders were in the nature of an investigation and the filing of the application itself akin to initiating proceedings. A social worker should not, in my view, be unreasonably inhibited from carrying out those steps by the prospect of a claim in negligence. That is the reason why malice is required to sustain any tortious proceeding in this context. The relevant policy considerations in this sense dovetail with those already identified as negating a general duty of care.¹³⁶

¹³¹ At [85].

¹³² Brooks v Commissioner of Police of Metropolis [2005] UKHL 24, [2005] 1 WLR 1495.

¹³³ See King v Attorney-General, above n 130, at [90].

¹³⁴ Baigent’s case, above n 128, at 693 (citations omitted).

¹³⁵ See observation of Morritt LJ in Elguzouli-Daf v Commissioner of Police of the Metropolis [1994] EWCA Civ 4; [1995] QB 335 (CA) at 352 that the existence of a duty of care owed by the Crown Prosecution Service to those it was prosecuting would suggest that the independent torts of malicious prosecution and misfeasance in a public office are unnecessary.

¹³⁶ To an extent, whether the issue is framed as the inappropriateness of a duty when setting the wheels in motion or the inappropriateness of the law of negligence cutting across the sorts of malicious prosecution and misfeasance in public office is semantic. The policy interests are the same. As

• [205] I also find the claim in negligence against SW untenable having regard to the s 86 of the State Sector Act.¹³⁷ This provides:

86 Immunity for Public Service chief executives and employees

(1) Public Service chief executives and employees are immune from liability in civil proceedings for good-faith actions or omissions in pursuance or intended pursuance of their duties, functions, or powers.

(2) See also section 6 of the Crown Proceedings Act 1950.

• [206] The importance of the immunity was recently addressed by the Court of Appeal in Peters v Attorney-General:¹³⁸

[147] The central purpose of the new version of s 86 (and now, of s 104 of the Public Service Act) is to ensure that public servants are not exposed to civil proceedings against them personally provided they act in good faith in the (intended) pursuance of their duties. This important provision protects the ability of public servants to carry out their functions impartially and fearlessly, without being deflected from doing so by the threat of proceedings which — even if ultimately unsuccessful — may be protracted, stressful and costly. The purpose of the provision is undermined if proceedings are brought against public servants without a proper basis for alleging bad faith.

• [207] The case involved an unsuccessful claim alleging the tort of invasion of privacy by the Rt Hon Winston Peters PC against two Public Service chief executives. Mr Peters claimed that the executives have breached a duty owed to him when they disclosed payment irregularities relating to Mr Peter’s superannuation in a ministerial briefing. He alleged bad faith, asserting that the disclosures were motivated by “salacious gossip”. However, no particulars were provided, and no evidence was led to support the allegation. In those circumstances the Court of Appeal held that the High Court was correct in finding that immunity applied with the result that no claim could be brought against the chief executives personally.¹³⁹

• [208] For the same reason, SW has no personal liability in negligence to EM. His liability is limited to actions other than in good faith which, as I have already indicated, cannot be established in this case.

Ms Dowse submits, this is illustrated by EM’s own pleading which premises both the intentional tort claims and the negligence claim on the same factual allegations.

¹³⁷ Now substantially replicated in s 104 of the Public Service Act 2020.

¹³⁸ Peters v Attorney-General [2021] NZCA 355, [2021] 3 NZLR 191.

¹³⁹ At [150].

• [209] I am satisfied therefore that on the balance of probabilities the third cause of action against SW likewise cannot succeed.

Fourth cause of action: breach of the NZBORA

• [210] EM’ fourth cause of action alleges breach of various rights said to be owed to her under the NZBORA — each arising from the decision to apply for the uplift orders and their subsequent execution. By way of relief, she seeks $300,000 in public law compensation (Baigent damages) and declarations that her NZBORA rights were breached.

• [211] The claim is against both the Attorney-General and SW personally. As against SW, Mr Spring says that the claim fails at the threshold on the basis that Crown servants have no personal liability for breaches of the NZBORA.

• [212] The starting point is s 3 of the NZBORA, which governs the Act’s application. It provides:

3 Application

This Bill of Rights applies only to acts done—

(a) by the legislative, executive, or judicial branches of the Government of New Zealand; or

(b) by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

• [213] The effect of s 3 is that public entities and private entities undertaking public functions are required to abide by the provisions of the Act. By virtue of para (a), the NZBORA applies to acts done by a Crown servant, but that does not answer the question of with whom — Crown, individual or both — the liability lies.

• [214] In the Court of Appeal’s landmark decision in Baigent’s case,¹⁴⁰ which established the availability of public law compensation in respect of unjustified infringements of the NZBORA, McKay J considered that liability lies with the Crown only:

¹⁴⁰ Baigent’s case, above n 128, at 718.

The cause of action based on the New Zealand Bill of Rights Act is in my view an independent cause of action against the Crown, and not one which arises from vicarious liability. It is the Crown, as the legal embodiment of the state, which is bound by the International Covenant to ensure an effective remedy for the violation of fundamental rights. Parliament has affirmed those rights in order to affirm New Zealand's commitment to the International Covenant, but by a statute which applies only to acts by the legislative, executive or judicial branches of the government, or by any person or body in the performance of a public function, power or duty: s 3. Where a right is infringed by a branch of government or a public functionary, the remedy under the Act must be against the Crown. Rights under similar legislation were regarded by the Privy Council as conferring a remedy against the state in Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1978] UKPC 3; [1979] AC 385, and were classified by Lord Diplock at pp 396 and 399 as falling within the sphere of public law, not private law.

(emphasis added)

• [215] While Crown liability for judicial acts has since been rejected by the Supreme Court¹⁴¹ and the proposition that the Crown should be liable for the acts of private entities of which it has no control is doubted,¹⁴² this statement of principle otherwise stands.

• [216] In argument, reference was made to two High Court actions — Innes v Wong¹⁴³ and Henderson v Slevin¹⁴⁴ — where claims against individuals under the NZBORA have been struck out.

• [217] Innes v Wong concerned a claim for public law compensation brought by the administrators of a deceased estate against the Crown, Counties Manukau Health Ltd (a Crown-owned health enterprise) and Dr Wong (director of area mental health services for Counties Manukau Health Ltd). The claim arose out of the deceased’s death, which occurred during his transport to Kingseat Hospital in a police vehicle. The transportation had been requested by an officer authorised under the Mental Health (Compulsory Assessment and Treatment) Act 1992. Dr Wong was presumably sued as he had general direction and control of the officer, although there was some ambiguity as to whether the duties performed by Dr Wong were on behalf of the

¹⁴¹ Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [204].

¹⁴² Law Commission Crown Liability and Judicial Immunity: A Response to Baigent’s case and Harvey v Derrick (NZLC R37, 1997) at [98]. See also Innes v Wong (No 2) [1996] NZHC 1418; (1996) 4 HRNZ 247 where Cartwright J held that it was at least arguable that a Crown-owned health enterprise would itself be liable for a breach of the NZBORA.

¹⁴³ Innes v Wong [1996] NZHC 187; (1996) 2 HRNZ 618 (HC).

¹⁴⁴ Henderson v Slevin [2015] NZHC 366.

Director-General of Health or as an employee of Counties Manukau Health Ltd. While Cartwright J noted that the claim was based on the Crown’s responsibility to ensure its agents do not perpetrate or condone human rights abuses, her Honour struck out the claim against Dr Wong on the ground he had no personal involvement in the incident.¹⁴⁵ Given Dr Wong’s lack of personal involvement, the case does not significantly answer the underlying issue of whether, as a matter of principle, NZBORA actions against individuals are available.

• [218] In Henderson v Slevin, a bankrupt’s computer was seized by police, on warrant, after the liquidator of a company associated with the bankrupt made a complaint of suspected breaches of the Companies Act 1993. The liquidator’s employee accompanied police during the seizure. After the seizure, the computer was released to the liquidator for analysis. The liquidator produced a clone of the computer hard drive and provided it to a solicitor of the Official Assignee’s office who had expressed concern that the bankrupt had breached the Insolvency Act 2006. The bankrupt commenced a proceeding against the solicitor, the Attorney-General in respect of the Ministry of Economic Development, the liquidator and the liquidator’s employee, claiming, inter alia, breach of s 21 of the NZBORA. Associate Judge Osbourne struck out the NZBORA claims against the solicitor, liquidator and liquidator’s employee on the ground that an action against them personally was inappropriate, noting that liability for Baigent damages lies against the Crown.¹⁴⁶

• [219] I see no good reason to depart from this line of authority. Liability for breach of the NZBORA by a Crown servant acting within the executive lies solely with the Crown and is based on the Crown’s responsibility to ensure those over whom it has legal control and responsibility comply with the NZBORA. The liability is founded in public law; it is primary, not vicarious and, as such, a claim cannot be brought against a Crown servant in their personal capacity. The rationale applies, in my view, equally to claims for damages and for declarations.

¹⁴⁵ Innes v Wong, above n 143, at 624–625.

¹⁴⁶ Henderson v Slevin, above n 144, at [23] and [27].

• [220] The fourth cause of action cannot therefore succeed against SW. I would have struck it out had that been required but it can be equally dealt with in a summary judgment context.

Result on SW’s summary judgment application

• [221] On each of the causes of action against him, SW satisfies me that on the balance of probabilities EM cannot succeed. Accordingly, he is entitled to summary judgment.¹⁴⁷ It is thus unnecessary for me to consider SW’s alternative application to strike out any one or more of EM’s causes of action.

THE CROWN’S APPLICATION FOR STRIKE OUT

• [222] The Crown applies for strike out of the third and fourth causes of action in respect of both of which it is alleged to have a primary liability in addition to any vicarious liability for the acts and omissions of SW.

• [223] Given that I have granted summary judgment for SW, I will need to also address what should happen in respect of EM’s first two causes of action as against the Crown.

Legal principles

• [224] Pursuant to r 15.1(1)(a) of the HCR, I may strike out all or part of a pleading if it “discloses no reasonably arguable cause of action”. Application of that provision is governed by well recognised principles as summarised by the Court of Appeal in Attorney-General v Prince,¹⁴⁸ viz:

¹⁴⁷ I do not, in coming to that conclusion, address every argument put to me by Mr Spring, as it is unnecessary to do so. I include in this category his submission that EM is estopped from challenging that the children were in need of care and protection (such submission bleeds into the challenge based on collateral attack) and his submission that no claim can lie in respect of loss caused by the lawful enforcement of lawfully obtained orders of a court of competent jurisdiction (which does not require separate discussion because it is subsumed within the other arguments addressed in this judgment).

¹⁴⁸ Attorney-General v Prince, above n 109, at 267.

(a) A strike-out application is to proceed on the assumption that the facts pleaded in the statement of claim are true unless those pleaded facts are entirely speculative and lack any foundation.

(b) It is only where, on the facts alleged in the statement of claim, however broadly they are stated, no private law claim of the kind or kinds advanced can succeed that it is appropriate to strike out the proceedings at a preliminary state.

(c) The threshold for strike out is high. Before a proceeding may be struck out, the causes of action must be so clearly untenable that they cannot possibly succeed.

(d) The jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material.

(e) The fact that an application to strike out raises difficult questions of law, and requires extensive argument, does not exclude the jurisdiction.

The first and second causes of action

• [225] Ms Dowse submits that in the event I grant summary judgment and/or strike out the first two causes of action against SW, the equivalent claims against the Crown (both of which proceed on the basis of vicarious liability) should also be struck out on the Court’s own motion because “there would be nothing to hold the Crown vicariously liable for”.¹⁴⁹ She submits that no separate application was required in that context.

• [226] Mr Harrison, by contrast, submits that irrespective of success on SW’s applications, the Crown should be forced into a second interlocutory round if it wishes the first two causes of action against it to be summarily determined.

149. Reserving the argument that the Crown could never, in any event, be held vicariously liable for something as “extreme” as targeted malice.

• [227] I am not persuaded by Mr Harrison’s submission. The power to strike out does not depend on an application having been made.¹⁵⁰ The Court has a duty to intervene where the administration of justice requires it.¹⁵¹ There is no basis in principle for me not to adopt a more pragmatic approach and every reason (in terms of practical administration of justice and relief of overburdened court lists) for me to do so. Having regard to SW’s success on his summary judgment application, I therefore strike out the first two causes of action against the Crown.

The third cause of action

• [228] I am satisfied that this cause of action is appropriately struck out. I reach this conclusion on the basis of my previous discussion about the public policy considerations bearing on the existence of any duty of care to EM.

• [229] In respect of alleged negligence in the uplift, the Crown is also entitled, in my view, to immunity under s 6(5) of the Crown Proceedings Act 1950. I note that the immunity under s 6(5) is not affected by s 6(4A)(ab) which is only an exception to s 6(4).

• [230] The scheme of s 6 is to first identify the Crown’s liability in tort and then various exceptions, including subs (5):

(5) No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him or her, or any responsibilities which he or she has in connection with the execution of judicial process.

• [231] The claim of negligent execution of the uplift orders engages the second limb of the provision, the scope of which was described by Tompkins J in New Zealand Fisheries Ltd v Napier City Council:¹⁵²

One of the definitions of the word [“judicial”] in the Shorter Oxford English Dictionary is “pertaining to the administration of justice”. That seems to me to be the meaning in which the word is used in the second limb. It is not intended to be restricted to the decision making process. It is intended to

¹⁵⁰ Siemer v Stiassny [2011] NZCA 1 at [14].

¹⁵¹ O’Neill v New Zealand Law Society [2022] NZCA 500 at [21].

¹⁵² N Z Fisheries Ltd v Napier City Council HC Auckland CP62/87, 16 November 1987 at 18.

embrace the responsibilities which a person has in connection with the execution of a process that pertains to the administration of justice.

• [232] The issue in that case was whether the immunity applied in circumstances where a bailiff ejected the plaintiff from demised premises in purported pursuance of an order for possession obtained in a High Court proceeding to which the plaintiff was not a party. Tompkins J held that it did. His Honour noted that in executing the order, the bailiff had “responsibility in connection with the execution of an order ... made in the course of [a] judicial process that related directly to the administration of justice”.¹⁵³

• [233] In Baigent’s case, the Court of Appeal held that a search warrant was a “judicial process” and that the immunity applied in respect of any person executing the warrant with good faith, provided that what was done was in the discharge or purported discharge of the responsibilities which the person held in connection with its execution.¹⁵⁴ These are ultimately questions of fact.

• [234] I consider that on the facts of this case the application of s 6(5) to a claim which ex hypothesi is premised, not on absence of good faith, but on negligence, is essentially unanswerable. For the reasons previously discussed, SW’s responsibility subsequent to issue of the orders was to give effect to them.

• [235] I strike out the third cause of action against the Crown accordingly.

The fourth cause of action

• [236] The fourth cause of action pleads breaches of the NZBORA for which, as I have indicated, the Crown — and the Crown only — can be potentially liable. I therefore need to consider each of the alleged breaches of the Act for which liability is alleged.

¹⁵³ At 18.

¹⁵⁴ Baigent’s case, above n 128, at 696 and 716. See also DE v Chief Executive of the Ministry of Social Development [2007] NZCA 453, [2008] NZFLR 85 at [28] recognising that an authority to “place” pursuant to court order clearly envisages “removal” also.

Freedom of religion, freedom from discrimination and minority rights

• [237] EM pleads that the Ministry breached her rights under ss 13, 19 and 20 of the NZBORA. Those sections provide:

13 Freedom of thought, conscience, and religion

Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

19. Freedom from discrimination

(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.

(2) Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.

20. Rights of minorities

A person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practise the religion, or to use the language, of that minority.

• [238] In respect of these claims, the pleadings are deficient. For example, how the uplift orders interfere with EM’s right to hold a belief or how the uplifts have denied EM’s right to observe, profess or practise a minority religion are not particularised. In any event, the claims are premised on an allegation of religious bias and/or prejudice evidenced by an alleged statement — “Muslim people are terrorist people” — that I have already found lacks any aura of credibility.

• [239] I accept that on a strike-out application pleaded facts are typically assumed to be true. However, the operative word is “typically”. As the Court of Appeal observed in Attorney-General v McVeagh:¹⁵⁵

The Court is entitled to receive affidavit evidence on a striking-out application, and will do so in a proper case. It will not attempt to resolve genuinely disputed issues of fact and therefore will generally limit evidence to that which is undisputed. Normally it will not consider evidence inconsistent with the pleading, for a striking-out application is dealt with on the footing that the pleaded facts can be proved ... But there may be a case

¹⁵⁵ Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566 (citations omitted).

where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further.

• [240] I accept also that there is likely one or more shades of meaning between an allegation lacking an “aura of credibility” and one being “demonstrably contrary to indisputable fact” but where, as here, a claimed statement, so potentially decisive, is first developed in the evidence almost six years after the alleged event (despite EM going on oath earlier and providing a statement in the context of a disciplinary complaint) and where the claimed statement is not only vigorously rejected by the person allegedly making it but his denial is independently corroborated on oath by an independent person present at the relevant time, I find myself unable to say that there is any sufficiently genuine dispute on proper foundation to sustain the claim which I regard as clearly untenable. It is not simply the case that EM’s new evidence lacks an aura of credibility. It is, as I have found, that it lacks any credible basis at all. It cannot be in the interests of justice that the Crown (and SW as a necessary witness) should have to address an allegation so inherently improbable, unsupported and firmly contradicted.

Unreasonable search and seizure

• [241] EM pleads that, in applying for the uplift orders and/or executing the orders, her right to be free from unreasonable search and seizure in s 21 of the NZBORA was breached.

• [242] Section 21 of the NZBORA provides:

21. Unreasonable search and seizure

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

• [243] The proposition that an uplift of a child will engage s 21 was implicitly accepted by Potter J in M v Attorney-General,¹⁵⁶ but it appears not to have been the subject of argument in that case (I address the facts of the case later in this judgment). Mr Harrison says that there has been an unreasonable seizure — or, more precisely in

¹⁵⁶ M v Attorney-General [2006] NZFLR 181 (HC) at [140]–[153].

this context, that the allegation there has been an unreasonable seizure is not so clearly untenable that it cannot possibly succeed. The Crown says that seizure is an inapposite word to describe the uplift of a child. It acknowledges that the right to be secure against unreasonable search is potentially engaged but says on the pleaded facts EM’s allegations in this respect are clearly untenable. The words “search” and “seizure” are used disjunctively in s 21. I will consider whether the uplift of a child is capable of engaging s 21 in either respect.

• [244] I start with the more controversial issue, whether the uplift of a child may constitute a “seizure”. The Crown argues that a child is not property and therefore cannot be seized. Mr Harrison says that the concept extends beyond the strict limits of real and personal property.

• [245] The word “seizure” has received limited judicial consideration in New Zealand. In Hamed v R,¹⁵⁷ a decision of the Supreme Court, Blanchard J briefly addressed its meaning, characterising a seizure as the removal of an object from “the possession” of someone else.¹⁵⁸ The word has received greater attention in decisions of the Supreme Court of Canada, which address s 21’s equivalent in the Canadian Charter of Rights and Freedoms. In R v Dyment,¹⁵⁹ for example, La Forest J characterised the essence of a seizure as “the taking of a thing from a person by a public authority without that person’s consent”.¹⁶⁰ But in Quebec (Attorney- General) v Laroche,¹⁶¹ a later case, the Court warned that an “overbroad interpretation” of seizure might open up challenges to mere restrictions on the exercise of property rights.¹⁶² The Court emphasised that the issue of whether there has been a “seizure” for the purposes of the Charter is therefore not to be determined solely by reference to matters of process, but in light of context and the underlying objective of the right against unreasonable seizure; the latter considerations playing an important part in defining the right’s scope.¹⁶³

¹⁵⁷ Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.

¹⁵⁸ At [150].

¹⁵⁹ R v Dyment [1988] 2 SCR 417.

¹⁶⁰ At [26].

¹⁶¹ Quebec (Attorney-General) v Laroche 2002 SCC 72, [2002] 3 SCR 708.

¹⁶² At [52].

¹⁶³ At [53].

• [246] As to process, the effect of an uplift order is to transfer custody, or at least the right to custody, of a child to the Ministry.¹⁶⁴ The Oranga Tamariki Act defines custody as “the right to possession and care of a child or young person”.¹⁶⁵ When an uplift order is executed, the Chief Executive (or authorised person) obtains possession of a child from another person. In my view, that meets the basic definition of a seizure. Whether it is a seizure for the purposes of s 21 must be decided with reference to context and the underlying objective of s 21.

• [247] Whether s 21 is confined to law enforcement measures, that is, administrative or criminal investigations, is an unresolved issue in New Zealand. When s 21 is read in the context of its surrounding provisions, which focus on prosecution and judicial process, there is a strong indication that it might be.¹⁶⁶ Yet various Supreme Court dicta favour a broader scope for the section. For example, in Hamed v R,¹⁶⁷ Tipping J discussed the scope of s 21 in relation to a “search”:

[225] The general connotation of search in s 21 is concerned with law enforcement. As s 21 is directed primarily to officers of the executive government and not to private individuals, the reality is that in most instances of an allegedly unreasonable search those concerned will be in pursuit of evidence of offending. But I would not limit the concept of search to law enforcement purposes. Cases in which a search within s 21 has a different focus may be few, but the controlling feature should, in my view, be who is involved and what they are doing rather than the purpose for which they are doing it. That factor will obviously be relevant to the unreasonableness issue.

• [248] Further, in R v Ngan,¹⁶⁸ McGrath J noted that the limitation of “search” in s 21 “to official examinations and investigations that have the purpose of gathering evidence or are incidental to law enforcement would be too confining”.¹⁶⁹

• [249] Strictly speaking, the uplift of a child is not done in the pursuance of an investigation. While it may be the case that, after the uplift, the child is interviewed, and evidence taken for an ongoing investigation of a parent, that is ancillary to the

164. The uplift orders in this case state: “Ministry for Vulnerable Children, Oranga Tamariki shall have custody of the above-named children pending final determination of the proceedings.”

¹⁶⁵ Section 2(1).

¹⁶⁶ See Westco Lagan Ltd v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40 (HC) at [58].

¹⁶⁷ Hamed v R, above n 157.

¹⁶⁸ R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48.

¹⁶⁹ At [110].

purpose of a custody order under s 78, which is obtained only for the reason that a child is in need of care and protection.

• [250] Ultimately, application of s 21 must be guided by its touchstone: the “protection of reasonable expectations of privacy”.¹⁷⁰ And it is difficult to conceive a greater intrusion into familial privacy than the uplift of a child. In this context, the power of the State looms large. In my view, the right against unreasonable seizure is properly engaged.

• [251] Turning to the right to be free from unreasonable search. The process of uplifting a child plainly involves a search; in order to take custody of a child the child must first be found. Search powers in the pursuance of an uplift are specifically provided for by the OTA, which empowers a constable, the chief executive (acting through his or her delegate), or any other person authorised to “enter and search any dwelling house ... with or without assistance and by force if necessary” for the purposes of placing the child as directed.¹⁷¹ Again, the intrusion into privacy envisioned by those powers would, in my view, engage the right to be free from unreasonable search.

• [252] The lawfulness of the uplift orders cannot be challenged by EM. They were valid orders of the Family Court, in no way rendered unlawful by dint of the children not being found at the Māngere address as anticipated. Breach of the interim safety plan was not a condition to the order being made, it was merely the event which precipitated the application by SW and demonstrated EM’s unwillingness to protect the children from an unsafe environment.

• [253] Lawfulness and reasonableness are, however, distinct concepts.¹⁷² As a result, a lawful search and seizure will not necessarily be reasonable.¹⁷³ Reasonableness is fact-dependent and must be assessed with an eye to the realities of the circumstances as they existed at the time, untainted by the benefit of hindsight.¹⁷⁴

¹⁷⁰ Hamed v R, above n 157, at [161] citing R v Fraser [1997] 2 NZLR 442 (CA) at 449.

¹⁷¹ Sections 104(3)(c) and 105(2).

¹⁷² R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [24] and [226].

¹⁷³ See R v Pratt [1994] 3 NZLR 21 (CA).

¹⁷⁴ Razouk v Police [2022] NZHC 28, [2022] 2 NZLR 578 at [48].

• [254] So, within the current context, although a Court order issued on the basis that the children’s best interests required state intervention, its execution may potentially be challenged on the basis that it occurred, for example, at an unreasonable time¹⁷⁵ or by unreasonable methods. This is reinforced by the OTA itself which only permits the use of “such force as is reasonably necessary” for the purpose of placing the child where directed and “force if necessary” in regard to the search.¹⁷⁶

• [255] Mr Harrison submits that the seizure of the children was unreasonable in its execution due to the presence of police (three officers at ZM’s address and six at the Ōtāhuhu address) and the time of the uplift (10 pm). He further submits that the fact the children had by that stage been returned to the address identified in the interim safety plan was highly relevant in terms of the reasonableness of the uplift, particularly at the hour it occurred. Ms Dowse submits, however, that what is really occurring here is a de facto attack on the reasonableness of the orders.

• [256] In assessing these arguments, I remind myself of the context in which they are occurring: a strike-out application. I am not here to make a determination on the reasonableness of the uplift. I am here to determine whether the proposition that it was unreasonable is so clearly untenable that it cannot possibly succeed. I have earlier decided that on the balance of probabilities EM cannot succeed in a claim that the uplift constituted a misfeasance in public office but that does not dictate the outcome on a reasonableness enquiry — particularly not at the strike out stage.

• [257] I have come to the conclusion that this claim should not be struck out. Although the Ministry was acting pursuant to a lawful Court order, that order did not in its terms require immediate uplift on the day of issue. By the time it was established that the children were no longer at the Māngere address, they had no doubt been bedded down for the night at the Ōtāhuhu address (although these are facts that will have to be ascertained at trial). To have been woken at 10 pm and removed from their mother’s care by strangers would have no doubt been traumatic. Although trauma can probably be assumed in the case of any uplift, the time of execution may well have

175. See R v Hapakuku [1999] NZCA 94; (1999) 5 HRNZ 127 (CA) where a lawfully issued search warrant was unreasonably executed on domestic premises at 12.50 am (with use of a sledgehammer).

¹⁷⁶ Sections 104(3)(a) and (c) and 105(2).

compounded it. And there is a valid question to be asked about whether, given that the children had by that stage been returned to the Ōtāhuhu address, the uplift could not have waited until the morning when the children were awake. The Ōtāhuhu address had, at least in a provisional or interim sense, been considered sufficiently safe for that to occur. I cannot in that context say that criticism of the reasonableness of execution is so clearly untenable it cannot possibly succeed. Nor do I accept Ms Dowse’s submission that the lawfulness of the orders is itself threatened by EM intended claim.

Natural justice

• [258] EM pleads that, in applying for the uplift orders ex parte and/or executing the orders, her right to natural justice as recognised in s 27(1) of the NZBORA was breached.

• [259] Section 27(1) of NZBORA provides:

27 Right to justice

(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

• [260] The scope of s 27(1), as compared to the requirements of natural justice at common law, has been the subject of reasonably extensive judicial discussion. Competing interpretations of the subsection have turned on the meaning of “determination” and whether that word has an adjudicative sense only¹⁷⁷ or is capable of encompassing a broader range of decisions to which natural justice would apply at common law.¹⁷⁸ In Combined Beneficiaries Union Inc v Auckland City COGS Committee,¹⁷⁹ the Court of Appeal resolved the conflict in favour of a broad interpretation. Glazebrook J, writing for herself and Hammond J, undertook a close

¹⁷⁷ See Chisholm v Auckland City Council [2005] NZAR 661 (CA) at [32]; Ubilla v Minister of Immigration HC Wellington CIV-2003-485-2757, 19 February 2004 at [32]; Henderson v Director of Land Transport New Zealand [2005] NZCA 367; [2006] NZAR 629 (CA) at [71]; and Minister of Fisheries v Pranfield Holdings Ltd [2008] NZCA 216, [2008] 3 NZLR 649 at [136].

¹⁷⁸ See Lumber Specialties Ltd v Hodgson [2000] 2 NZLR 347 (HC).

¹⁷⁹ Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56.

analysis of s 27, its legislative background and statutory context. Her Honour considered that “determination” is “a general, open-ended term”¹⁸⁰ and that previous cases that referenced a need for the determination to have an “adjudicative” character only used that term as a shorthand for the types of decisions to which natural justice ordinarily applies at common law, not as an additional element applying to s 27(1).¹⁸¹ On the scope of s 27(1), her Honour concluded:¹⁸²

... the content of the s 27(1) right to natural justice was intended to be and is (at least) coincident with that at common law (although, as at common law, that would not limit later development of the right). This is supported by the plain words of the provision, the legislature history and the policy of the Bill of Rights Act.

• [261] At common law, natural justice is but “fairness writ large and juridically”.¹⁸³ What it requires in any given case is wholly dependent on the circumstances, including the subject matter of the decision, the nature of the decision and the relevant statutory scheme.

• [262] Ms Dowse submits that s 27(1) is not engaged on these facts because SW did not make a determination in respect of EM’s rights, obligations or interests. Ms Dowse says the only relevant determination was that of the Family Court.

• [263] She relies on the Court of Appeal’s decision in McDonnell v Chief Executive of the Department of Corrections.¹⁸⁴ That case concerned a challenge to the imposition of an extended supervision order on Mr McDonnell under the Parole Act 2002. The Act requires that an application for such an order is accompanied by a report by a health assessor. In Mr McDonnell’s case two such reports were prepared, however, Mr McDonnell was not interviewed by either assessor. He alleged that amounted to a fundamental flaw in the reports which, inter alia, breached s 27(1). The Court of Appeal dismissed the challenge, finding that s 27(1) was not engaged because a health assessor does not determine an offender’s rights, obligations or interests but

¹⁸⁰ At [15].

¹⁸¹ At [43] and [47].

¹⁸² At [50].

¹⁸³ Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 718.

184. McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770.

merely prepares a report for a sentencing court which will make such a determination.¹⁸⁵

• [264] The role of a health assessor in an extended supervision context is not, however, analogous to that of a social worker who considers a child appropriately uplifted by the Ministry. The health assessor does not decide to apply for the imposition of an extended supervision order, that is a decision made by the Chief Executive or his or her delegates. The health assessor is only engaged when a report is required for the purposes of such an application. That is quite different to the role played by SW. He was the social worker responsible for EM’s children and he briefed the Ministry’s counsel to prepare the uplift applications.

• [265] The High Court’s decision in M v Attorney-General¹⁸⁶ is more apposite. It concerned a wide-ranging challenge to the uplift of two children by Child, Youth and Family Services (CYFS), brought by the children and their mother and stepfather. The first uplift was of the youngest child, M, and occurred at his school after discovery of injuries on his body and his making of an allegation that his mother had disciplined him with a bamboo stick. A place of safety warrant was obtained by CYFS, and M was placed in his aunt’s home. In the following days he and his sister were interviewed by social workers. The interviews culminated in an application by CYFS for declarations that each child was in need of care and protection and an application for an ex parte order placing the children in the custody of the Chief Executive of CYFS. An interim custody order was accordingly made by the Family Court, and M’s sister was subsequently uplifted. Approximately eight months later, the Family Court made a custody order in respect of M and a further interim custody order in respect of his sister. Both were without notice. The plaintiffs claimed that their right to natural justice in s 27(1) was breached when CYFS proceeded on an ex parte basis to obtain orders from the Family Court. Potter J found that the s 27(1) claim was not established. Her Honour noted:

[167] While CYFS are given extensive powers and authorities by the Act, the decisions of which the plaintiffs complain are decisions of the Court without which CYFS would have had no authority to do the acts complained

¹⁸⁵ At [46].

¹⁸⁶ M v Attorney-General, above n 156.

of by the plaintiffs, namely the taking into custody and retaining in custody of M and P.

• [266] Mr Harrison says that the Crown’s approach to s 27 is unduly narrow and legalistic. He submits that there is no reason in principle as to why EM’s rights under s 27(1) could not apply equally at Ministry and Family Court levels. He says such an approach is consistent with CLM v Chief Executive of the Ministry of Social Development.¹⁸⁷

• [267] In that case, the Ministry of Social Development had applied ex parte for an interim order placing an unborn child in its custody and the Family Court had made the order sought. The mother sought declarations in the High Court that the Ministry and the Family Court had breached her right to natural justice. Harrison J considered circumstances where an ex parte application would be justified:

[31] The narrow but important question is whether CYFS was justified in applying without notice for an interim custody order and whether the Family Court had grounds to make the order on that basis. That Court has jurisdiction to grant an application without notice, but only if a Judge is satisfied that the delay caused by applying on notice would or might entail serious injury or undue hardship or risk to the personal safety of the child. Thus an application for a custody order without notice should only be made in special or exceptional circumstances given its inherent departure from the fundamental requirements of natural justice and the underlying right to be heard. The power to make such an order must be used with great caution and only in circumstances in which it is really necessary to act immediately. The statutory principles favour the parents involvement in decisions relating to their child and an order made without satisfaction of the jurisdictional threshold amounts to a serious procedural impropriety, providing a ground for judicial review.

(footnotes omitted)

• [268] The Judge concluded that while the evidence justified the making of an application for an interim custody order, the threshold for an ex parte application was not reached, especially considering no explanation was given as to why notice of application might endanger the unborn child’s welfare and that the interim custody order would, in any event, not take effect until the baby’s birth.

¹⁸⁷ CLM v Chief Executive of the Ministry of Social Development [2010] NZHC 1299; [2011] NZFLR 11 (HC).

• [269] Harrison J proceeded to make a declaration that the Family Court’s decision to make an order without notice breached s 27(1) of the NZBORA. However, his Honour refused to extend the declaration to the Ministry:

... Arguably the Ministry’s decision to apply was reviewable. But given that the operative decision was solely the responsibility of the Family Court, and my satisfaction that the Ministry’s participation can be addressed through an order for costs, I do not have a proper basis for extending declaratory relief to the Ministry’s action.

[61] Similarly, I reject Mr Harrison’s submission that the Ministry’s insistence on immediate enforcement of the first order can be the subject of relief. While the Ministry is a public authority, it was nonetheless exercising its rights within the adversarial setting of the legal system. Both the option to apply without notice for a s 78 order and to enforce it were lawfully available.

• [270] I do not therefore consider the case authority for the broader proposition Mr Harrison advances.

• [271] Acts done by the Ministry and its actors are undoubtedly governed by the NZBORA. Nor is it in doubt that the Ministry is a public authority for the purposes of s 27(1) and thus when making a qualifying determination, obliged to observe natural justice.¹⁸⁸ However, in respect of the Ministry’s decision to apply for interim custody on an ex parte basis, the first issue I must decide is whether this involved a qualifying determination at all.

• [272] In my view, it did not because it cannot of itself be said to have affected EM’s rights, obligations or interests. In deciding to make an application ex parte, a social worker does not decide or determine any right — substantive or procedural — all he or she does is place an application before the Family Court. In this sense, the social worker merely sets the wheels in motion for a subsequent determination by that Court.

• [273] Rule 220 of the Family Court Rules stipulates the circumstances where the Family Court will allow an application to proceed without notice:

220 Applications that may be made without notice

(1) An application need not be made on notice if the family law Act or District Court Rule under which it is made provides, or any other of

188. For an example of Oranga Tamariki being held in breach of s 27 of the NZBORA see X and Y v Chief Executive of Oranga Tamariki [2022] NZCA 622, [2023] 2 NZLR 261.

these rules provide, that the application, or an application of that kind, may be made without notice.

(2) An application need not be made on notice if subclause (1) does not apply and the application, or an application of that kind, is not expressly required to be made on notice by the family law Act or District Court Rule under which it is made or by any other of these rules, and the court is satisfied that—

(a) the delay that would be caused by making the application on notice would or might entail,—

(i) in proceedings under the Oranga Tamariki Act 1989, serious injury or undue hardship, or risk to the personal safety of the child or young person who is the subject of the proceedings, or any person with whom that child or young person is residing, or both; and

...

(emphasis added)

• [274] It is thus the Family Court — not the Ministry — that determines whether the circumstances sufficiently warrant a without notice procedure and, in turn, justify a limitation on a parent’s right to be heard. For this reason, the Family Court can be reviewed for breach of s 27(1), and as CLM v Chief Executive of the Ministry of Social Development illustrates, sometimes successfully so.

• [275] But even if I was wrong, and s 27(1) was engaged at the point SW decided to lodge the applications, I would not consider it tenable that natural justice required the application to be on notice in the circumstances of this case.

• [276] Generally, the uplift process exists to protect the most vulnerable in society. In circumstances where a child is in real danger or in urgent need of care, the best interests of that child necessitate prompt action; any requirements of natural justice which may ordinarily apply are clearly displaced. Notably, the OTA itself plainly anticipates circumstances that may require urgent action at the expense of natural justice. For example, the requirement in s 70 that a family group conference is held before the Ministry can make an application for a declaration that a child is in need of care or protection can be dispensed with where, as a matter of urgency, an application for such a declaration is made concurrently with an application for custody under s 78.
• [277] Although not specifically pleaded, the inference is that by applying ex parte, the Ministry denied EM an opportunity to be heard in order to correct prejudicial information regarding the children’s whereabouts and the interim safety plan. I am, however, satisfied that in the circumstances the Ministry acted entirely appropriately. On 25 October 2017, SW learned of a breach of the interim safety plan. He immediately phoned MK and ZM to ascertain whether a breach had occurred. He also spoke with EM herself. Each were therefore given ample opportunity to respond to an allegation that the safety plan had been breached, two used the opportunity to give false information.

• [278] The second issue I must decide is whether, in executing the orders, EM’s right to natural justice was breached. The proposition that natural justice might apply in the execution of court orders is an unusual one.¹⁸⁹ In my view, the requirements of natural justice will rarely, if ever, attach to the execution of a court order given that execution merely gives effect to legal rights which have already been determined. But ultimately the issue must be decided with reference to the terms of the order in question. Here the uplift orders stated that the chief executive “shall” have custody. The uplift orders conferred no discretion on SW as to whether the orders be executed. There was simply no qualifying determination for him to make.

• [279] I am satisfied therefore the claim against the Crown based on alleged breach of s 27(1) is appropriately struck out.

RESULT

• [280] I grant summary judgment against EM on her claims against SW.

• [281] I strike out EM’s claims against the Crown with the exception of her claim under s 21 of the NZBORA relating to the execution of the uplift orders.

¹⁸⁹ The proposition was raised in a judicial review proceeding before the Victorian Supreme Court but not ultimately pursued for lack of legal basis: Lednar v Magistrates’ Court [2000] VSC 549, (2000) 117 A Crim R 396 at [91] and [482].

COSTS

• [282] I assume EM to be legally aided. If that assumption is incorrect and costs are sought, memoranda may be filed (maximum five pages plus any associated schedules) on the following timetable:

(a) SW and the Crown by 23 February 2024.

(b) EM in response by 8 March 2024.

(c) Any memoranda in reply by 22 March 2024.

SUPPRESSION

• [283] I have previously made interim suppression and non-publication directions in respect of SW, noting his intention to apply for permanent orders in the event the proceeding is determined in his favour.

• [284] My previous decision records that I was satisfied the allegations against SW were, by their nature, likely to damage his reputation, particularly suggestions of religious prejudice. I noted the fact that he had previously left the employment of the Ministry and my acceptance of Mr Spring’s submission that, unless interim orders were made, there was a likelihood members of the public would conflate the allegations against him with the cessation of his employment.

• [285] Although the plaintiff says that in the event of success by the second defendant there is no reason why permanent name suppression is “necessary or required in the interests of justice”, on balance I consider a permanent order appropriate having particular regard to the specifics of the allegations ultimately made against him and the capacity, within his vocation, for public confidence to be undermined even by allegations which I have not accepted as credible. The fact that he is no longer in the

employment of the Ministry and the assumptions that might be made in that respect fortify me in this conclusion. I have anonymised all references to the second defendant accordingly.

Muir J