Attorney-General v Putua

[2024] NZCA 388

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA535/2022
 [2024] NZCA 388

BETWEEN	ATTORNEY-GENERAL Appellant
AND	KORO PUTUA Respondent

Court:	French, Courtney and Katz JJ
Counsel:	D Jones and S Cvitanovich for Appellant D A Ewen and E T Blincoe for Respondent
Judgment: (On the papers)	19 August 2024 at 11 am

JUDGMENT OF THE COURT

AThe application for recall is declined.

BThere is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

1. In a judgment delivered on 21 March 2024 we allowed an appeal brought by the Attorney‑General against a decision of the High Court which had held that the action of a District Court deputy registrar in preparing a defective committal warrant was not covered by judicial immunity.[1]  The High Court had issued a declaration that as a result of an error in the warrant Mr Putua had been arbitrarily detained for 33 days in breach of s 22 of the New Zealand Bill of Rights Act 1990 and awarded him compensatory damages of $11,000.[2]

   [1]Attorney-General v Putua [2024] NZCA 67 [CA judgment]; and Putua v Attorney-General [2022] NZHC 2277, [2023] 2 NZLR 41 [HC judgment].

   [2]HC judgment, above n 1, at [68]–[69].

2. We held that judicial immunity did apply and made a formal order that “[t]he appeal is allowed and the decision of the High Court is set aside.”[3]

   [3]CA judgment, above n 1, at [64], [69] and [94].

3. Mr Putua has now applied for a recall of our judgment.  A dispute has arisen between the parties as to whether our order sets aside the declaration or whether it is limited to the damages award, leaving the declaration extant.  Mr Putua contends for the latter and so asks us to recall the judgment and reissue it with amended orders to the effect that the appeal is only allowed in part.[4]

   [4]The Attorney-General neither opposes nor consents to the application for recall on the basis that she considers it a matter for the Court to determine whether the judgment has resulted in a lack of clarity requiring recall.

4. It appears the dispute between the parties has arisen in the context of an argument over costs in the High Court, which of course need to be determined in light of our judgment.

5. Mr Putua says it is unclear what this Court intended and that clarity of outcome qualifies as a “very special reason” warranting recall.[5]

   [5]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; and Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

6. The usual convention however is that the words of a judgment should speak for themselves without there being any inquiry into what a court subjectively intended.

7. To assist the parties, we however make the following observations.  Although the Attorney‑General accepted that Mr Putua had been arbitrarily detained, the appeal was not argued by either party on the basis that a legal distinction could be drawn between the two remedies for the purpose of judicial immunity.  It was implicitly all or nothing, which is consistent with the concept of immunity.  Immunity from suit on the grounds of judicial immunity means the acts in issue were judicial acts from the outset and no proceeding based on them could lie, precluding the grant of any relief.

8. We note that since the application for recall was filed, the Supreme Court has granted Mr Putua leave to appeal our decision.[6]  If Mr Putua wishes to pursue the issue raised in his application for recall, the Supreme Court would seem to be the appropriate forum.

   [6]Putua v Attorney-General [2024] NZSC 92.

9. As regards costs on the recall application, the Attorney-General submits that costs should lie where they fall.  In any event, because Mr Putua is legally aided no order for costs may be made against him unless the Court is satisfied there are exceptional circumstances.[7]  In our view, there are no such exceptional circumstances.  We therefore make no order as to costs.

Outcome

[7]Legal Services Act 2011, s 45(2).

1. The application for recall is declined.

2. There is no order for costs.

Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Appellant
Ord Legal, Wellington for Respondent