Attorney-General v Prince CA192/96, 25 November 1997

A court may strike out proceedings only if the causes of action are so clearly untenable that they cannot possibly succeed. The jurisdiction is to be exercised sparingly, and only in a clear case.

“It is well settled that before the court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed (Lucas and Sons (Nelson Mail) Limited v O'Brien [1978] 2 NZLR 289, 294-5; Takaro Properties v Rowling [1978] 2NZLR314, 316-7); the jurisdiction is one to be exercised sparingly, and only in a clear case where the court is satisfied it has the requisite material (Gartside v Sheffield, Young & Ellis [1983] NZLR 37, 45; Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641)...”

The test for determining a duty of care in new situations involves two broad fields of inquiry: (1) the degree of proximity or relationship between the parties, and (2) whether other policy considerations tend to negative, restrict, or strengthen the existence of a duty.

“The ultimate question is whether in the light of all the circumstances of the case it is just and reasonable to recognise a duty of care by the defendant to the plaintiff. ... For almost 20 years, and drawing on Anns v Merton London Borough Council [1978] AC 728, we have found it helpful to focus on two broad fields of inquiry. The first is the degree of proximity or relationship between the alleged wrongdoer and the person who has suffered damage. ... The second is whether there are other policy considerations which tend to negative or restrict - or strengthen the existence of - a duty in that class of case (Fleming v Securities Commission [1995] 2 NZLR 514, 527-528).”

Imposing a common law duty of care on social workers involved in the adoption process would be inconsistent with the policy and scheme of the Adoption Act 1955.

“...it would be inconsistent with the policy and scheme of the Act to allow individual claims in negligence in respect of particular acts or omissions in the carrying out of the statutory functions. The legislation establishes a process leading to judicial consideration and determination ... The adoption court makes the ultimate decision.”

Allowing a claim in negligence regarding an adoption would undermine the intended finality of the adoption process and constitute an indirect attack on the integrity of the adoption order.

“Further, to allow a claim in negligence would undermine the intended finality of the adoption. ... Any claim in negligence would constitute an indirect attack on the adequacy of the statutory process and the integrity of the adoption order.”

The Children and Young Persons Act 1974 imposes a positive duty on the Director-General to take action to prevent children from suffering and to arrange for prompt inquiry into complaints of inadequate care.

“It shall be the duty of the Director-General to take positive action and such steps under this Act as in his opinion may assist in preventing children or young persons from being exposed to unnecessary suffering or deprivation or from becoming seriously disturbed or from committing offences.”

The statutory framework of the Children and Young Persons Act 1974 is consistent with, and supports, the imposition of a common law duty of care on the Department of Social Welfare to investigate complaints of neglect.

“...given the conclusion that proximity is satisfied, the statutory framework within which the department and its social workers act is consistent with the imposition of a common law duty of care. ... Given the important features of the 1974 Act which we have been emphasising, it cannot be said that a common law duty of care in these terms would cut across the whole statutory scheme. ... On the contrary it enhances it.”

A cause of action for breach of fiduciary duty cannot be sustained where the particulars of breach merely repeat the particulars given for negligence and there are no allegations of bad faith.

“A breach is pleaded, but the particulars of the breach repeat the particulars given for breach in negligence. There are no allegations of bad faith expressed or implicit in those particulars. In the absence of such particulars we do not consider that the cause of action can be sustained.”