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IN THE SUPREME COURT OF NEW ZEALAND
SC 120/2009 [2011] NZSC 110
BETWEEN ATTORNEY-GENERAL Appellant
AND MERVYN CHAPMAN Respondent
Hearing: 6–7 December 2010
Court: Elias CJ, McGrath, William Young, Gault and Anderson JJ
Counsel: D B Collins QC Solicitor-General, C J Curran and B L Orr for Appellant R E Harrison QC, A J McKenzie, K H Cook and P N Allan for Respondent
Judgment: 16 September 2011
JUDGMENT OF THE COURT
AThe appeal is allowed and the matter remitted to the High Court.
BQuestion (a) is answered as follows:
The Court does not have jurisdiction to hear and determine the respondent’s claim for public law compensation for alleged breaches by the judiciary of ss 25 and 27 of the New Zealand Bill of Rights Act 1990 occurring in the course of determining his criminal legal aid application and his appeal against conviction.
CThere will be no order for costs.
REASONS
Para No
Elias CJ [1] McGrath and William Young JJ [94] Gault J [211] Anderson J [216]
ELIAS CJ
A right without a remedy is “a vain thing to imagine”, as Holt CJ recognised in 1704.[1] That rights are vindicated through remedy for breach is fundamental to the rule of law. Since enactment of the New Zealand Bill of Rights Act 1990, the provision of effective remedy for breach of the “human rights and fundamental freedoms” affirmed in the Act has been the responsibility of the courts.[2] At issue in the present case is whether New Zealand domestic law prevents damages being awarded, when they would afford effective remedy, if the breach of rights is caused by judicial action.
[1]Ashby v White (1703) 2 Ld Raym 938 at 953, 92 ER 126 at 136 (KB).
[2]See R v Goodwin [1993] 2 NZLR 153 (CA) at 191 per Richardson J; also “A Bill of Rights for New Zealand: A White Paper” [1984–1985] I AJHR A6 at 22–23.
What is effective remedy for Bill of Rights breach differs according to the particular breach and its circumstances. To date, the remedies ordered in New Zealand have included exclusion of evidence,[3] stay of proceedings,[4] directions to administrative and judicial bodies,[5] development of the common law to achieve consistency with the Bill of Rights Act,[6] and damages.[7] In large part such remedies have been adapted for the enforcement and protection of rights from “[t]he ordinary range of remedies”.[8] But the courts have recognised that the Act requires “development of the law when necessary” by the courts if they are not to fail in the duty to give a remedy where rights have been infringed.[9]
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Attorney-General v Chapman [2011] NZSC 110
Case
[2011] NZSC 110
Decision Date
CaseChat Overview and Summary
The Supreme Court of New Zealand heard an appeal by the Attorney-General against a decision of the Court of Appeal allowing a claim for public law compensation against the Crown for alleged breaches by the judiciary of ss 25 and 27 of the New Zealand Bill of Rights Act 1990. The Court of Appeal held that the Court did have jurisdiction to hear and determine the claim. The Supreme Court allowed the appeal and held that the Court did not have jurisdiction to hear and determine the claim. The Court held that there would be no order for costs. The Court held that the Court did not have jurisdiction to hear and determine the respondent's claim for public law compensation for alleged breaches by the judiciary of ss 25 and 27 of the New Zealand Bill of Rights Act occurring in the course of determining his criminal legal aid application and his appeal against conviction. The Court held that the Crown was not liable for judicial breaches of the New Zealand Bill of Rights Act. The Court held that the direct public law liability of the State, as recognised in Baigent, would not appropriately be extended to cover breaches resulting from the actions of the judicial branch. The Court held that the desirability of finality in litigation and the importance of judicial independence and public confidence in that independence were of particular importance. The Court held that it was implicit that when the cause of action applied, as in Baigent, and monetary compensation was an available remedy, the Crown was liable. The Court held that it would be destructive of the administration of justice in New Zealand and ultimately judicial protection of human rights in the justice system to extend the Baigent cause of action to cover breaches of the New Zealand Bill of Rights Act by the judicial branch of government. The Court held that the particular circumstances of the respondent's claim did not persuade it that his case warranted a different approach. The Court held that the Crown's appeal was allowed and the matter was remitted to the High Court.