Combined Beneficiaries Union Inc v Auckland City COGS Committee - [2008] NZCA 423

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA574/07
[2008] NZCA 423

BETWEENCOMBINED BENEFICIARIES UNION INCORPORATED

Appellant
ANDAUCKLAND CITY COGS COMMITTEE

First Respondent
ANDWAITAKERE COGS COMMITTEE

Second Respondent
ANDCHIEF EXECUTIVE OF THE DEPARTMENT OF INTERNAL AFFAIRS

Third Respondent
ANDATTORNEY-GENERAL

Fourth Respondent

Hearing:6 August 2008
Court:Glazebrook, Hammond and Baragwanath JJ
Counsel:J S McHerron for Appellant

C C Inglis and C M Curran-Tietjens for Respondents
Judgment:16 October 2008 at 4.00 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The cross-appeal is dismissed.

C There are no costs awards.

____________________________________________________________________

REASONS

Glazebrook and Hammond JJ [1]
Baragwanath J [87]

GLAZEBROOK AND HAMMOND J

(Given by Glazebrook J)

Table of Contents

Para No

Introduction [1]

Does s 27(1) of the Bill of Rights apply to all breaches of
natural justice? [7]

The words of s 27(1)  [9]
Legislative background  [19]
Common law approach  [25]
Statutory context  [27]
Principles of interpretation  [31]
Prior authorities  [34]
Conclusion  [50]

Are damages an available remedy for a breach of s 27(1) of the

Bill of Rights? [53]

Was the High Court wrong not to award damages?  [73]
Baragwanath J’s judgment  [80]
Result and costs  [84]

Introduction

The Combined Beneficiaries Union (the CBU) provides advisory services to those on benefits, pensions or accident compensation and to casual and low paid workers. One of the potential sources of grant funding for the CBU is the Community Organisation Grants Scheme (COGS). This is a government-funded scheme, administered by the Department of Internal Affairs, which provides financial assistance to community organisations. There are 37 local COGS Committees, consisting of volunteers, which are allocated funds to distribute in accordance with guidelines prepared by the Department. Applications for funding are sought once a year.
For some years the CBU has received funding from the Auckland and Waitakere COGS Committees, with grants ranging from $10,000 to $24,000. Prior to 2005 COGS Committees were flexible about the timing of the provision of information in support of applications. In 2005 various changes were made by the Department to the administration of COGS, which were designed to put the administration of COGS and other funding schemes managed by the Department in line with “best grant-making practice.” This included introducing a time limit for the provision of further information in support of incomplete applications. This time limit was to be enforced as mandatory and inflexible, contrary to previous practice. As a result of not meeting the new fixed deadline, the CBU missed out on funding in the 2005/06 year.
The CBU issued proceedings challenging the new procedure. In the High Court, Andrews J held that there was inadequate notice that the rules had changed (HC AK CIV 2005-404-6807 25 September 2007). There was thus procedural unfairness. She also held that there had been a failure by both the Auckland and Waitakere COGS Committees to consider whether to exercise their discretion to accept the late information provided by the CBU. Andrews J made a declaration that the respondents had breached CBU’s rights to natural justice at common law and pursuant to s 27(1) of the New Zealand Bill of Rights Act 1990 (Bill of Rights). She, however, refused to award Bill of Rights damages.
The CBU appeals against the decision not to award damages. It says that the declaration did not suffice to vindicate the breach of the CBU’s right to natural justice. The respondents submit that there is no basis on which to overturn the High Court’s discretionary decision not to award damages. Further, they say that, even if s 27(1) of the Bill of Rights is engaged, compensation is not an available remedy for breaches of natural justice.
The respondents cross-appeal against Andrews J’s decision. They submit that s 27(1) of the Bill of Rights is not applicable unless there is an adjudicative decision by a tribunal or other public authority in relation to “rights, obligations or interests protected or recognised by law.” In their submission, s 27(1) of the Bill of Rights does not apply in the circumstances of this case. The CBU supports the Judge’s decision that s 27(1) covers all breaches of the right to natural justice by public authorities.
We deal with the issues in the following order:
(a)Does s 27(1) of the Bill of Rights apply to all breaches of natural justice?
(b)Are damages an available remedy for a breach of s 27(1) of the Bill of Rights?
(c)Was the High Court wrong not to award damages?

Does s 27(1) of the Bill of Rights apply to all breaches of natural justice?

The respondents submit that, s 27(1) of the Bill of Rights is intended to apply to judicial or quasi-judicial bodies resolving disputes between two or more parties and to similar bodies making “adjudicative” decisions, like the Parole Board. They rely for this proposition on this Court’s decisions in Chisholm v Auckland City Council [2005] NZAR 661, Henderson v Director of Land Transport Safety New Zealand [2006] NZAR 629 and Ministry of Fisheries v Pranfield Holdings Ltd [2008] NZCA 216, as well as the decision of the Supreme Court in Taunoa v Attorney-General [2008] 1 NZLR 429. A simple breach of natural justice in relation to a decision of the type at issue in this case does not, in their submission, suffice to bring a decision within the scope of s 27(1).
We propose to examine this issue under the following headings:
(a)The words of s 27(1);
(b)Legislative background;
(c)Common law approach;
(d)Statutory context;
(e)Principles of interpretation;
(f)Prior authorities; and
(g)Conclusion.

The words of s 27(1)

Section 27(1) of the Bill of Rights 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.
Section 27(1) guarantees the right to the observance of the principles of natural justice. The respondents’ position is that it is clear from the wording of the remainder of the provision that the s 27(1) right to natural justice is narrower in scope than the same right at common law. The CBU’s position is that there is no reason to read down the reference to the right to natural justice as affirmed in s 27(1). In its submission, the term means what it says and applies (at least) to the same extent as the common law right.
The term “natural justice” has a long-established meaning. The two key principles of natural justice are that the parties be given adequate notice and opportunity to be heard (audi alteram partem) and that the decision-maker be disinterested and unbiased (nemo debet esse judex in propria sua causa). The extent of the requirements of natural justice, however, depends on the circumstances and the nature of the decision, assessed in light of any relevant statutory provisions: see Daganayasi v Minister of Immigration [1980] 2 NZLR 130 at 141 (CA). At common law, the obligation to observe the principles of natural justice applies to administrative authorities as well as to judicial and quasi-judicial decision-makers. In our view, there would need to be a very clear indication in the remainder of s 27(1) before the term “natural justice” would be read down in the manner contended for by the respondents. Further, the affirmation of the rights in s 2 of the Bill of Rights suggests that the Bill of Rights is merely expressing rights that were pre-existing in the common law and that the Bill of Rights does not limit the ambit of such rights.
Section 27(1) goes on to provide that the right to natural justice must be accorded by “any tribunal or other public authority.” The respondents argue that the term, “tribunal”, refers to a judicial or quasi-judicial body making decisions in respect of a dispute that has arisen between two or more parties. They submit that the word “other” suggests a conceptual linkage between the term “public authority” and the concept of an adjudicative process with which a tribunal would ordinarily be concerned. In their submission, a committee of voluntary community members formed to deal with applications for discretionary grants to community groups, which have no legally protected or recognised right to such grants, does not constitute a “tribunal or other public authority” in the sense intended by s 27(1) of the Bill of Rights.
We do not accept that, on a plain reading, the terms “tribunal” and “public authority” are necessarily conceptually linked in the way the respondents contend. As pointed out by Mr McHerron on behalf of the CBU, there is an (at the least) equally plausible explanation for the use of the word “other” before the term “public authority”: to make it clear that a tribunal must be a public one. We also accept Mr McHerron’s submission that, if s 27(1) is limited to the adjudication of disputes between parties, this would effectively render the words “public authority” otiose as the term “tribunal” would normally be read as covering the adjudicators of such disputes. We also accept Mr McHerron’s submission that the expression “any tribunal or other public authority” can be read as a shorthand reference back to those identified in s 3 of the Bill of Rights which sets out the actors to whom the Bill of Rights applies.
The respondents then submit that, although the right to natural justice under s 27(1) does not explicitly refer to proceedings, it deliberately does not use the term “decision” which is used in s 4 of the Judicature Amendment Act 1972 (JAA). In the respondents’ submission, the term “determination” and the other differences in wording between s 4 of the JAA and s 27(1) of the Bill of Rights were designed to pitch s 27(1) to a different type of decision-making from that covered in the JAA.
The term “determination” is a general open-ended term and we do not consider it is limited in the way suggested by the respondents. It is possible that the word “determination” was used to show that s 27(1) of the Bill of Rights covers a narrower range of decisions than s 4 of the JAA. However, this does not necessarily support the respondents’ case. After all, not all decision-making covered by the JAA would trigger a natural justice obligation.
The respondents next point is that, to come within s 27(1), any determination must have affected a party’s “rights, obligations and interests protected or recognised by law”. They submit that applicants to the COGS scheme have no legally protected or recognised enforceable rights, obligations or interests to receive the funding applied for, irrespective of the fact that they may have received such a benefit in the past and irrespective of what they might hope to receive in the future. The CBU accepts that the grants are discretionary and that it had no right to receive a grant. In the CBU’s submission, however, it did have a right or interest involved; its right to have its applications for COGS funding in 2005 considered and determined, according to a lawful process.
In our view, s 27(1) cannot, without robbing it of much of its force, be read as dealing only with actual rights, obligations or interests. It must extend at least as far as claimed rights, obligations or interests. There is no reason in principle why it should not also extend to discretionary determinations. A discretion, if exercised in favour of an applicant, can result in a right. Indeed, the Parole Board, which the respondents accept is covered by s 27(1), is an example of a decision-making body exercising what can loosely be described as discretionary powers. We would thus accept the CBU’s submission that applicants for grants have the right to make an application and, having made a valid application, to have that application considered. If the application is accepted, then there is the potential right to a grant.
There is no mention of an “adjudicative requirement” in s 27 and certainly nothing referring to any need for there to be a dispute between two or more parties. Accepting the respondents’ submission would involve adding a gloss to the section. In our view, there is nothing in the wording of s 27(1) that would compel a conclusion that the term “natural justice” was intended to have a narrower content from the common law right to natural justice. Indeed, it seems to us that the indications in s 27(1), read as a whole, point the other way.

Legislative background

The respondents submit that the “adjudicative” requirement in s 27(1) is supported by the scheme and purpose of the Bill of Rights and by reference to its long title, which states that the Act is to affirm, protect, and promote human rights and fundamental freedoms in New Zealand, and to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights (1966) 999 UNTS 171 (ICCPR). The principal parallel to s 27(1) in the ICCPR is art 14(1), which provides:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
The respondents submit that the focus in art 14 is on the right to a fair trial in the context of criminal and civil proceedings. In their submission, the term “suit at law” plainly requires a dispute or conflict between parties in relation to civil rights and obligations.
We do not accept this submission. If s 27(1) had been intended to limit the guarantee of the right to natural justice to those situations covered by art 14(1) of the ICCPR, then it would have said so.
The respondents next submission is that White Paper on the Bill of Rights supports the narrow view of s 27(1): Palmer “A Bill of Rights for New Zealand” [1984-85] I AJHR A6. The CBU, on the other hand, submits that it is quite clear from the White Paper that what became s 27(1) was intended to embody the existing common law right to natural justice.
We accept the CBU’s submission. The White Paper commentary on what became s 27(1) stated, at [10.168], that the provision recognises the “pervasive nature of the powers of public authorities and the central importance of the principles of natural justice in helping ensure that they are exercised in a fair way”. It went on to say that it “largely reflects basic principles of the common law” and that the principles will have a varying application in differing circumstances. The White Paper did comment, at [10.169], that it was not envisaged that the provision will apply where the determination is a general one affecting persons as a class or where it affects a person only indirectly – for example a change in local body rates. It said that such a limit on the principles of natural justice is well recognised by the courts.
The White Paper, at [10.170] and [10.171], describes the terms “public authority”, “protected or recognised by law” and “determination” that are used in s 27(1) as “deliberately vague”. It says that they must be interpreted by the courts “just as they have had to decide over the centuries which bodies – essentially public rather than private – are subject to the common law principles of natural justice.” We accept Mr McHerron’s submission that this suggests that all bodies, which are subject to the common law principles of natural justice, will also be covered by s 27(1). This suggestion is enhanced by the comment in the White Paper, at [10.171], that s 27(1) “will not change the courts’ normal and long-standing task, except to the extent that the principles [of natural justice] will now have an enhanced status.”

Common law approach

It used to be thought that natural justice applied at common law only to judicial decisions. That view was rejected by the House of Lords in Ridge v Baldwin [1964] AC 40 (HL). The significance of Ridge v Baldwin is explained by Wade and Forsyth Administrative Law (9ed 2004), at 490, as follows:
The ‘judicial’ fallacy repudiated
The leading speech of Lord Reid in Ridge v Baldwin is of the greatest significance because of its extensive review of the authorities, which inevitably exposed the fallacies into which the decisions of the 1950s had lapsed. He attacked the problem at its root by demonstrating how the term ‘judicial’ had been misinterpreted as requiring some superadded characteristic over and above the characteristic that the power affected some person’s rights. The mere fact that the power affects rights or interests is what makes it ‘judicial’, and so subject to the procedures required by natural justice. In other words, a power which affects rights must be exercised ‘judicially’ i.e. fairly, and the fact that the power is administrative does not make it any the less ‘judicial’ for this purpose.
We accept Mr McHerron’s submission that it is unlikely that Parliament intended in the Bill of Rights to return to the outmoded distinction rejected in Ridge v Baldwin. No policy justification for such narrowing is immediately obvious, particularly in a statute dedicated to affirming, protecting and promoting human rights and fundamental freedoms in New Zealand. If it had been the intention to guarantee a right that was less comprehensive than the common law, one would have expected the White Paper to have been careful to explain why. Instead, as noted in the previous section, it gave every indication that at least the common law right to natural justice was to be enacted (although it did not rule out future developments in the course of judicial interpretation in the extent of the right).

Statutory context

We consider that the statutory context also supports the CBU’s position. Section 27(2) and (3) of the Bill of Rights provide as follows:
(2) Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
(3) Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.
If s 27(1) is, as submitted by the respondents, limited to “adjudicative” processes, s 27(2) must also be so limited. If that were the case the only right to judicial review that would be guaranteed would be a right to judicial review of decisions that are themselves judicial or quasi-judicial adjudicative decisions. This seems inherently unlikely. Indeed, it is clear from the White Paper that what became s 27(2) was intended to guarantee a general right to judicial review.
The White Paper noted specifically that there is no comparable right in the ICCPR. It states, at [10.172], that what became s 27(2) “sets out and gives enhanced status to the basic constitutional right to go to court to challenge the legal validity of government actions.” It stated further that it should serve as a check to privative clauses in legislation purporting to restrict the power of judicial review.
We also note that, unlike s 27(1), s 27(2) (the right to apply for judicial review) and s 27(3) (the right to bring civil proceedings against, and defend civil proceedings brought by, the Crown) both explicitly refer to judicial proceedings. If s 27(1) was limited to “adjudicative” proceedings, one would have expected it to have said so.

Principles of interpretation

In interpreting the Bill of Rights a generous interpretation designed to give to individuals the full measure of the rights guaranteed is required: Ministry of Transport v Noort [1992] 3 NZLR 260 (CA) (per Cooke P at 268 – 9), (per Richardson J at 277, per McKay J concurring), and (per Hardie-Boys J at 286). See also the discussion in Rishworth “Interpreting and Applying the Bill of Rights” in Rishworth and others The New Zealand Bill of Rights (2003) 25 at 43 – 51 and in Butler and Butler The New Zealand Bill of Rights Act: A commentary (2005) at [4.2].
If the words of s 27(1) were capable of both the narrow interpretation favoured by the respondents and the wider interpretation favoured by the CBU, then the CBU’s interpretation would prevail. As noted above, however, the words of s 27(1) in fact favour the CBU’s interpretation even using standard interpretative techniques.
It is also usual when interpreting the Bill of Rights to have regard to the White Paper in assessing the intended scope of the rights guaranteed in the Bill of Rights: see Butler and Butler at [4.7]. The White Paper in this case also strongly supports the CBU’s position.

Prior authorities

So far everything points overwhelmingly in the CBU’s favour. The respondents, however, submit that a majority of the Supreme Court in Taunoa recently confirmed their interpretation. If this is the case, it would of course be binding on this Court.
In Taunoa the appellants argued that the Department of Corrections had breached s 27(1) when placing prisoners on the behaviour modification regime (BMR). This was accepted by the Supreme Court. It was also argued that there was a breach of s 27(1) when the Superintendent and medical officers failed to make daily visits to the cells (as required by the relevant regulations). This was rejected as being a breach of s 27(1). In discussing the latter allegation, Blanchard J said:
[221] It was also submitted to us that there were further breaches of natural justice when the daily visits by the Superintendent and regular visits by a medical officer did not occur since each prisoner thereby lost the opportunity of making representations for his release from BMR. I am not, however, at all persuaded by this argument which again seems to me to be artificial. The absence of these visits was a breach of the regulations and had some potential for endangering the health of prisoners, but the Superintendent was not, it seems to me, intended on such a visit to have to perform any adjudicative function. The regulatory purpose was merely that there be a check on the well-being of the prisoners and on the manner of application to them of BMR conditions. It is even more fanciful to suggest that a medical officer was expected to make, in terms of s 27(1), a determination on the rights, obligations or interests of a prisoner. The purpose of the regulation requiring special attention to inmates confined to an isolation cell was to monitor the health of prisoners. …
Tipping J concurred with Blanchard J’s approach to s 27(1) at [298]. McGrath J made the point that the requirements of natural justice under s 27(1) may vary according to the circumstances (at [376] and [377]) and that this accords with the common law approach. McGrath J said that the ongoing function of checking on inmates by the Superintendent and medical officers was not a function “giving rise to determinations which would lead to a right to a hearing under s 27(1)” (at [379]). Henry J did not deal with the s 27(1) point at all and the Chief Justice saw any s 27(1) breaches as subsumed in the breaches of ss 9 and 23(5) she found had occurred – see at [105]. Therefore she did not explicitly address the question of the scope of s 27(1).
We accept Mr McHerron’s submission that Taunoa cannot be taken as deciding in favour of the respondents’ argument, given that the visits by the medical officers and the Superintendent would not engage the natural justice right at common law. In our view, the use of the word “adjudicative” in Blanchard J’s judgment means no more than that the visits were not designed to and did not involve a determination of any kind, let alone of rights, obligations or interests. The word “adjudicative” is used in the same sense as the word “judicial” was at common law: see the discussion of Ridge v Baldwin at [25] above.
We also do not see McGrath J’s comments as deciding that the s 27(1) right to natural justice is narrower than the common law right. We accept Mr McHerron’s submission that McGrath J expressly linked s 27 with the common law by reference to the White Paper: see at [376]. As the other two judges did not deal with the point, there is no binding decision on this point by the Supreme Court, even if Blanchard J’s comments are read in the way contended for by the respondents (which, as indicated above, we do not think they should be).
There has in fact been an indication in another Supreme Court decision that points towards the term “natural justice” in s 27(1) having an even wider meaning than that contended for by the CBU. In Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] 2 NZLR 597 Keith J said, at [54], that the power to review a gatekeeping decision not to notify an application for resource consent is an aspect of determining the scope of the right to be accorded natural justice, affirmed in s 27(1) of the Bill of Rights. Elias CJ, at [25], agreed with Keith J that the determination in that case touched on the scope of the right to be accorded natural justice.
There has also been a leave decision of the Supreme Court which assumed that the s 27(1) right applied to a decision that was clearly not “adjudicative” in the sense contended for by the respondents. In Udompun v Minister of Immigration and New Zealand Police [2006] 1 NZLR 343, the Supreme Court refused leave to appeal with regard to alleged breaches of s 27(1) of the Bill of Rights at the border in the course of refusing entry into New Zealand by Mrs Udompun. The High Court had held that there had been such breaches. This Court, in Attorney-General v Udompun [2005] 3 NZLR 204, overturned that decision but on factual grounds. The Supreme Court refused leave on the basis that each of the proposed grounds of appeal entailed an application of uncontentious principle to the facts of the case. The Supreme Court (and this Court – subject to whether the Bill of Rights was found to have extraterritorial effect) therefore, in that decision, appear to have accepted that s 27(1) applies to entry decisions at the border, where clearly there is no right of entry. The s 27(1) point now taken by the respondents had not, however, been taken by the Crown in Udompun.
Even if there is no binding decision at Supreme Court level, the respondents submit that their approach is mandated by a number of decisions of this Court. They first point to Chisholm. In that case, one of the issues was whether the Council was liable for damages under s 27(1) of the Bill of Rights in relation to a decision to dump septic tank waste on a golf course abutting the appellant’s land. The Court agreed with the High Court’s assessment that the Council, when making the decision to dump septic tank waste on a golf course, was not making “a determination” in respect of the plaintiffs’ rights, obligations or interests: see at [30] – [31]. It was making a decision based on what it perceived to be a public health risk on Waiheke Island. The Court said that, however liberally s 27(1) might be read, it cannot encompass the decision the Council made to invoke the emergency powers under s 330 of the Resource Management Act 1991: see at [31].
The Court in Chisholm recognised the width of the phrase “in respect of” but said that s 27(1) is not engaged unless the determination in issue is of an “adjudicative” character: see at [32]. It also said that the expression “public authority” takes some colour from the word “tribunal” with which it is conceptually linked and that this point reinforces the adjudicative tenor of s 27(1). The Court went on to say that s 27(1) is not expressed on the basis of a determination which may have some indirect general impact on another person’s rights, obligations or interests: see at [32]. The decision in this case did not involve a “determination” of the rights of any neighbour of that golf course. All neighbours retained whatever rights they had. It said that the purpose of s 27(1) is “primarily to affirm the general rule in relation to the operation of the principles of natural justice”.
We accept Mr McHerron’s submission that this last comment indicates that the Court’s use of the word “adjudicative” was not intended to suggest that the s 27(1) right is narrower than the common law right to natural justice. Rather, the Court was indicating that s 27(1) does not expand the scope of common law natural justice to cases, such as Mr Chisholm’s, which involved decisions which had merely indirect general impact on another person’s rights. The word “adjudicative” is used to highlight the requirement for the determination directly to affect a person’s “rights, obligations or interests protected or recognised by law” before the s 27(1) rights are engaged. The term is shorthand for the types of decisions to which natural justice ordinarily applies: decisions where, by their nature, it is important for the power to be exercised fairly by giving an opportunity to be heard and by having a disinterested and unbiased decision maker: see at [11] above. In our view, the word “adjudicative”, is not an additional element the Court in Chisholm added into s 27(1) but is, like in Blanchard J’s judgment in Taunoa, used in the sense “judicial” was used at common law: see the discussion at [25] above.
The requirement that the determination in issue be of an “adjudicative” nature was reiterated by this Court in Henderson, where it was held that:
[71] We agree that something in the nature of an adjudicative process is required before s 27(1) is engaged. In this case the imposition of the suspension of licence was a mandatory statutory sanction which arose automatically at the point that Mr Henderson had 100 or more demerit points recorded against him. … There is nothing adjudicative about that process.
We accept Mr McHerron’s submission that this Court in Henderson might equally have said that there was no determination that affected Mr Henderson. His disqualification was an automatic statutory consequence of his accumulation of sufficient demerit points. It was not a situation to which natural justice would ordinarily have any application. The use of the term “adjudicative” in relation to s 27(1) can be seen as merely another way of noting that the decision has to be of a type that should engage the principles of natural justice.
The adjudicative theme has been taken up most recently in Pranfield. In that case, the issue was the refusal of permits for scampi fishing. While a decision to refuse a permit would be one where natural justice rights would be accorded at common law, it does not appear that the lack of natural justice was really the complaint in the case. The issue was more with the general moratorium introduced in October 1990 (and the substance of the decision not to make an exception from the moratorium) than with any denial of a right to be heard. The s 27(1) claim had not been dealt with in the High Court judgment because it was argued as a mere adjunct to the misfeasance in public office claim, which had been dismissed.
The matter was dealt with only briefly by this Court. It stated, at [136], that s 27(1) is not engaged unless the decision of the public authority which is under consideration is of an adjudicative character. In context, this can be taken as using the word “adjudicative” in the same way as we have held that it was used in Chisholm: see at [43] above. The Court also, at [135] – [136], accepted a submission on behalf of the Crown to the effect that s 27(1) of the Bill of Rights applies only to the “adjudication on the rights of a person of the kind which could be expected from a tribunal”. This could be seen as going somewhat further than this Court did in Chisholm. It appears that this conclusion was reached, however, without the benefit of hearing any contrary arguments (see at [134]):
… no attempt was made to respond to the Crown’s submission that, as MAFF South was not a tribunal or public authority exercising an adjudicative function, s 27(1) was not engaged on the facts of this case.
As this is the case, we do not consider that courts are bound to follow Pranfield, if it does hold that the s 27(1) right to natural justice is narrower than the existing common law right. The situation is similar to that which arose in the case of In re Hetherington, dec’d [1990] Ch 1. The question in that case was whether the court was bound by House of Lords authority. Sir Nicholas Browne-Wilkinson V-C (as he then was), after referring to Baker v The Queen [1975] AC 774 (PC) and Barns v Bethell [1982] Ch 294, said the following (at 10):
In my judgment the authorities therefore clearly establish that even where a decision of a point of law in a particular sense was essential to an earlier decision of a superior court, but that superior court merely assumed the correctness of the law on a particular issue, a judge in a later case is not bound to hold that the law is decided in that sense.
At essence the strength of precedent rests on the robustness of the decision-making process of the court that established the precedent: see Duxbury The Nature and Authority of Precedent (2008) at 96. Therefore where precedent has been based on the presumed correctness of a decision which when examined anew is found to be wanting in legal rigour, precedent is substantially weakened and is more susceptible to reconsideration and possible overrule. See also Cross and Harris Precedent in English Law (4ed 1991) at 158 – 161 and Heydon “Limits to the Powers of Ultimate Appellate Courts” (2006) 122 LQR 399 at 415 – 420.

Conclusion

We hold that 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.
We do not see ourselves constrained in this decision by prior authority, as noted above. There is no binding Supreme Court decision on this issue. The comments in Taunoa of Blanchard J (supported by Tipping J) were a minority view only. In any event, they were made in the context of a decision that would not have engaged the right to natural justice at common law and do not, read properly, support the respondents’ argument. The same applies to this Court’s decisions in Chisholm and Henderson. To the extent Pranfield holds otherwise (and it is at least arguable that it does not), we do not follow it.
Whether s 27(1) has an even wider reach (such as that, for example suggested by Hammond J in Lumber Specialties Ltd v Hodson [2000] 2 NZLR 347 from [169] (HC)) was not raised before us. As the possibility of a more expansive interpretation does not arise in this case, it would be inappropriate to say anything more about it.

Are damages an available remedy for a breach of s 27(1) of the Bill of Rights?

The respondents submit that, even if s 27(1) is engaged, Bill of Rights damages should not be available for a breach of s 27(1). They submit that there is no basis to suppose that s 27(1) was intended to alter the general scheme of remedies for decision-making error. In their submission, the present case represents a completely standard example of a procedural error within an otherwise legitimate process. If compensation was available to remedy a breach of this nature, it would mean that a procedural error would be compensable without the need to show any fault or aggravating circumstances other than the error itself. This would be at odds with the standard position in judicial review for breaches of natural justice. Further, s 27(1) isolates only one head of administrative review. Compensating for s 27 breaches would, in the respondents’ submission, create anomalies. In particular, it would mean that a person could be compensated for a procedurally flawed decision, protected by s 27(1), but not (for example) for a procedurally correct but irrational decision.
The CBU submits that the High Court was correct to find that the Court had a discretion to award damages for breach of s 27(1) of the Bill of Rights. It also submits that the Crown cannot now raise the issue as it did not notify any challenge to the existence of this discretion in its notice of cross-appeal.
The CBU’s second submission can be dealt with shortly. This is not a cross-appeal point. It is an argument that supports the High Court Judge’s decision on other grounds. The CBU had ample notice that this was to be argued by the respondents.
As to the substance of the respondents’ argument, there is certainly authority for the proposition that Bill of Rights damages are not usually awarded for breaches of s 27(1). The point was most recently emphasised in Taunoa where Blanchard J, at [261], observed that some rights are of a kind where a breach is unlikely to warrant recognition in monetary terms. He said that breaches of natural justice are likely to be better addressed by traditional public law means, such as ordering the proceeding in question to be reheard. Tipping J, at [298], agreed with Blanchard J’s comments on natural justice.
This Court has made similar comments. In this Court’s decision in Udompun Glazebrook J, for the majority stated, at [168] – [170], that there is force in the proposition that compensation should not be available for breaches of natural justice as a matter of course. There were a number of reasons for that conclusion. The first was that it should not lightly be assumed that the Bill of Rights has overtaken the existing authorities on administrative law damages. In normal circumstances, it would be a sufficient remedy for a breach of natural justice to have the impugned decision set aside, a declaration that it was not properly made and, if possible, an order to make the decision anew. Where there is already an effective remedy, Bill of Rights damages are not necessary.
The majority also considered that the view that there should be caution in the area of damages for breaches of natural justice is reinforced by the fact that the Bill of Rights damages remedy was developed largely to meet New Zealand’s international human rights commitments, and especially those under the ICCPR: see Simpson v Attorney-General [1994] 3 NZLR 667 (CA) (Baigent’s case), Cooke P at 676, Casey J at 691, Hardie-Boys J at 699, 700 and 702, and McKay J at 718. There is no general guarantee of natural justice in the ICCPR except in the context of criminal and civil proceedings context where, under art 14(1), there is a right to a fair and public hearing by an impartial and independent tribunal. This is not as wide as the s 27(1) right but, as has been seen from the White Paper discussion, there was a deliberate decision to widen the ICCPR right in our Bill of Rights. It does not follow, however, that the right to a remedy was also widened.
It is also useful to assess the respondents’ submission in light of the principles behind Bill of Rights damages, discussed by the Supreme Court in Taunoa. In that case Tipping J said, at [299], that he agreed generally with Blanchard J on this topic. Henry J, at [385], was in general agreement with both Blanchard and Tipping JJ. Blanchard J’s judgment is therefore the lead judgment on this issue. We now examine the principles set out in Blanchard J’s judgment to see how far they support the Crown position.

Blanchard J noted, at [259], that Bill of Rights damages do not fill the same function as common law damages or equitable compensation and that they should not be allowed to fill perceived gaps in the coverage of the general law.
This comment strongly supports the respondents’ position. Damages for public law wrongs are not normally available at common law and it is not the function of Bill of Rights damages to fill any perceived gap in remedies for such wrongs. We accept the respondents’ submission that it would be inappropriate in any event to isolate only breaches of natural justice for the award of damages and not include, for example, damage arising from irrational decisions. The scope of remedies for public law wrongs is a complicated issue and should be tackled in a holistic rather than piecemeal fashion: for a discussion of the issues see Public and Administrative Law Reform Committee Damages in Administrative Law (1980) and The Law Commission of England and Wales Administrative Redress: Public Bodies and the Citizen (Consultation Paper 187, 2008). See also the articles referred to at [86] of Pranfield.
Blanchard J went on to say, at [259], that making amends to a victim is generally a secondary or subsidiary function of Bill of Rights damages. The more important task is to bring the infringing conduct to an end and ensure future compliance. The award of public law damages is normally more to mark society’s disapproval of official conduct than it is to compensate for hurt to personal feelings.
The function of Bill of Rights damages is thus not to be equated with that of private law damages. The primary purpose is to mark the breach and to deter repetition of the breach. It is vindication rather than redress, which is the objective of Bill of Rights damages. See also at [243] of Taunoa, where Blanchard J noted the preponderance of authority from international bodies and from the courts of other jurisdictions to the effect that damages for human rights breaches are a subsidiary remedy and are not awarded in the same way as in private law claims.
Blanchard J in Taunoa, at [238], also approved the comment of Richardson J in Martin v Tauranga District Court [1995] 2 NZLR 417 at 428 (CA) that the choice of remedy: should be directed to the values underlying the particular right; should be proportional to the particular breach; and should have regard to other aspects of the public interest. He also, at [254], approved a comment of the Constitutional Court of South Africa that the determination of appropriate relief calls for the balancing of the various interests that might be affected by the remedy. At [260], he said that the level of damages chosen must be such that responsible members of New Zealand society will feel comfortable with taking into account the nature of the infringed right, the nature of the breach, the effect on the victim and the other redress that has been ordered.
We consider these comments also support the respondents’ position to a degree. There is a need to balance the various interests involved. Bill of Rights damages are paid by the State. There is a public interest in ensuring that the State abides by the Bill of Rights. Equally, however, the nature of the breach must be such as would shock the public conscience and thus justify the payment of damages out of the public purse. We accept the respondents’ submission that this means that payment of damages in respect of what can be classed as relatively minor bureaucratic bungles could not be justified.
Blanchard J’s decision in Taunoa also makes it plain, at [258], that the first step in assessing whether or not to award Bill of Rights damages is to decide if non‑monetary relief should be given and whether it is enough to redress the breach and the consequent injury to the rights of the plaintiff. In this regard, Blanchard J commented, at [255] of Taunoa, that a declaration is not toothless: “it can be expected to be salutary, effectively requiring compliance for the future and standing as a warning of the potentially more dire consequences of non-compliance.” See also the comments of McGrath J at [368].
This comment, combined with Blanchard J’s observations with regard to natural justice breaches at [261], also strongly support the position of the respondents. It is difficult to conceive of a situation where Bill of Rights damages would be granted in respect of natural justice breaches that can be remedied by a declaration and a standard administrative law remedy such as remitting the matter so that natural justice can be accorded. Where the latter remedy is not effective (as in this case) any award of damages could only be made where a declaration (in itself an effective remedy) would not suffice.
Blanchard J, in Taunoa at [255], noted that for some breaches there will be insufficient vindication and the victim will be left with a feeling of injustice. In such cases there may be an award of compensation to “provide a degree of solace to the victim,” which would not be provided by a declaration or other remedy alone. He recognised that a declaration may not adequately recognise and address the “affront to the victim”.
These comments suggest that there would need to be something more than a bare breach of the right to natural justice to attract Bill of Rights damages. They suggest that there must, as a consequence of any such breach, be an affront to dignity or an unwarranted intrusion into personal integrity (or perhaps a major incursion into the integrity of property). For recent discussions on dignity and human rights, see McCrudden "Human Dignity in Human Rights Interpretation" (2008) 19(4) Eur J Int’l L (forthcoming) and the comments by Hammond J in this Court’s decision in Udompun at [200] ‑ [203].
There is strong support in Taunoa and this Court’s decision in Udompun for the proposition that Bill of Rights damages for a breach of s 27(1) are likely to be rare. They would be confined to circumstances where there is no other effective remedy, where human dignity or personal integrity or (possibly) the integrity of property are also engaged and where the breach is of such constitutional significance and seriousness that it would shock the public conscience and justify damages being paid out of the public purse. It is not necessary for the purposes of this case to decide whether, as a matter of principle, we should go further and uphold the respondents’ position that Bill of Rights damages are never available for s 27(1) breaches. We expressly leave that point open (as does Baragwanath J).
To uphold the respondents’ position would involve overruling Attorney-General v Upton (1998) 5 HRNZ 54 (CA). There could be grounds to do this as it appears to have been merely assumed in that case that Bill of Rights damages could be awarded. There is thus no reasoned decision on whether or not that should be the case. Further, we note that, if the comments of William Young J in Brown v Attorney-General [2005] 2 NZLR 405 at [141] – [142] (CA) are followed, this would mean that, if the situation in Attorney-General v Upton arose now, damages may not be awarded. Although the majority in that case expressed no view as to when (if ever) compensation or financial relief would be an appropriate remedy for breach of “fair trial” rights, they acknowledged the strength of William Young J’s views on that issue: see at [100] – [101].
For the avoidance of doubt, the comments in [70] with regard to damages being rarely awarded is limited to damages for s 27(1) breaches. It was not intended to be a comment applicable to Bill of Rights damages generally. Nor should it be taken as commenting on whether or not in other circumstances a more expansive view should be taken to awards of damages in cases of dignitary interests, as suggested by Hammond J extra-judicially in “Beyond Dignity” in Berryman and Bigwood (eds) The Law of Remedies: New Directions in the Common Law (2008) (forthcoming).

Was the High Court wrong not to award damages?

The final question is whether Andrews J was wrong not to award Bill of Rights damages in this case. Before examining that issue, we set out Andrews J’s reasons for not awarding damages and summarise the submissions of the parties.
Andrews J considered that the breach was not egregious: see at [76]. It occurred in the context of a legitimate attempt to improve the efficiency and functioning of the COGS scheme. She also noted that, in the 2006/2007 funding round, clear notice had been given of the importance of meeting the deadlines for the provision of further information. Thus the breach had been remedied for the future. She accepted that the interest as stake was the loss of the ability to apply for a grant from limited public funds. CBU’s success in so applying, and in the amount of any grant, should it be awarded, were, however, matters of chance and not individual liberty. In her view, the purpose of Bill of Rights damages is to promote better administration and decision-making: see at [79]. Andrews J did not consider that those purposes would be served by awarding damages in the present case. She concluded that a declaration that there had been a breach would be a sufficient remedy.
The CBU submit that the High Court failed in its duty to provide an effective remedy for the breach of the CBU’s right to natural justice, by not awarding damages. In its submission, the High Court correctly considered that it would be futile to provide the usual public law remedy of setting aside the unlawful decision and ordering it to be reconsidered because all of the COGS funds for 2005 had already been allocated. In these circumstances, the Court ought to have had recourse to damages as the only effective remedy. A declaration of breach, on its own, was ineffective because it did not vindicate the right or compensate the CBU for the harm caused by the breach. In the CBU’s submission the breach was serious, particularly because of the refusal to reconsider the decision not to accept the late information.
The respondents submit that, where a right contained in the Bill of Rights has been violated there is no automatic “right” to be compensated for the breach. Whether Bill of Rights damages are payable is a matter for the Court: see Baigent’s Case, at 692 (per Casey J) and at 718 (per McKay J). Monetary compensation for a breach of an affirmed human right is discretionary: see Taunoa at [303] (per Tipping J), approving this Court’s decision in Link Technology 2000 Ltd v Attorney-General [2006] 1 NZLR 1 at [34] – [37]. The respondents submit that in this case Andrews J did not take into account irrelevant factors, there was no error of law and the decision to award damages was not plainly wrong. In the respondents’ submission there are no grounds to overturn her decision.
We agree with the respondents that there was no error of principle in Andrews J’s approach. Indeed, in light of the principles set out in the previous section with regard to damages for a breach of s 27(1), her decision not to award Bill of Rights damages was plainly correct. Blanchard J said in Taunoa that it is important to assess the nature of the right and the nature of the breach: see at [261]. At [256], he said that, it may be inappropriate to award damages for a breach which is relatively minor or which has been adequately recognised by other means.
In this case, we agree with Andrews J that the breach was trivial, even if the persistence in refusing to accept a late submission is taken into account. There was no question of dignity or personal integrity involved. There was no property right at all (merely a right to be considered for a discretionary grant). The breach was also, as Andrews J noted, committed in the course of the laudable aim of trying to tidy up the sloppy administration of the COGS scheme up to that point.
Further, an award of damages was not needed to deter future decision-makers as the breach had already been remedied for the future. Blanchard J, at [262] of Taunoa, says that the level of any award should reflect other ways the State has acknowledged the wrongdoing: for example the speed with which the conduct was brought to an end, measures put in place to prevent recurrence and whether there has been a public apology. In this case the breach was remedied for the following year and we understand that this was done even before the proceedings were issued.

Baragwanath J’s judgment

Baragwanath J would allow the respondent’s cross-appeal and set aside the declaration of breach of s 27(1) of the Bill of Rights made by Andrews J. This is on the basis that the trivial nature of the breach makes it undeserving of discretionary declaratory relief.
The respondents, in their cross-appeal, did seek an order quashing the declaration made by Andrews J. This was on the basis of their argument as to the scope of s 27(1) of the Bill of Rights set out at [7] above. In our view, we were obliged to deal with this argument in order to address the cross-appeal and we have rejected it above at [34] ‑ [43]. A decision on the scope of s 27(1) cannot be left for a later case as Baragwanath J suggests.
The respondents did not argue that the declaration should be set aside even if their argument as to the scope of s 27(1) failed. Nor did they argue that there had not been any breach of s 27(1), even assuming the scope coincided with the natural justice obligation at common law. While there may well have been good arguments in favour of both of these propositions, they were not made by the respondents.
In these circumstances, having ruled against the respondents on the only argument the respondents did make (the scope of s 27(1) of the Bill of Rights), we do not consider it appropriate to set the declaration made by Andrews J aside on the basis of arguments the respondents did not make (and upon which the CBU has not been given the opportunity to comment).

Result and costs

The appeal is dismissed.
The cross-appeal is dismissed (by majority).
As both the appeal and cross-appeal have failed, there are no costs awards.

BARAGWANATH J

This case concerns an appeal by the CBU against the High Court’s refusal to award damages and a cross appeal by the Crown against its declaration that the CBU’s rights at common law and under s 27(1) of the New Zealand Bill of Rights Act 1990 had been infringed.
Because any breach of duty of such rights was trivial I agree that the CBU’s appeal against the refusal of damages should be dismissed. For the same reason the Crown’s cross appeal should succeed.
The claim by the CBU was that because in past years it had received grants ranging from $10,000 and up, and it had not been notified that late applications would no longer be accepted, rejection of such application when it should have been notified entitled it to a damages award of $10,000. But that does not follow. Claims for redress for breach of public law duty are not to be assimilated with claims in tort, restitution, or for any other private law cause of action. Such claims, whether under the Bill of Rights Act or at common law, raise questions of policy and of law reform that have only limited relation to the settled rules of private law. No authority was cited to suggest that the consequences of the breach were such as to justify any award of public law damages in such circumstances.
Material to the proportionality of the claim is that the CBU failed to make its application within the time limits set for all applications. The very large number of applications made it desirable that time limits should be adhered to so that the work of distributing public funds to the needy could be got on with. There was no gross breach; such error as did occur was occasioned by the error of the CBU. It secured from the High Court a finding that the alteration of past policy to accept late applications was not notified to it and there is no appeal against that conclusion. Such finding was itself sufficient to allow the CBU to say that procedural shortcoming in the processes as well as its own delay contributed to its failure to receive funds, which went to other worthy applicants. Justice was done without the additional formal step of a declaration by the Court. In my view the matter should be left there; the elaborate process of considering whether such declaration was needed was not warranted.
I have read with interest and respect the views expressed in the thoughtful judgment of Glazebrook J with which Hammond J concurs. The Supreme Court in Attorney-General vTaunoa [2008] 1 NZLR 429 did not in terms reverse the decision of the Full Court of this Court reported at [2006] 2 NZLR 457 which at [239] stated:
While the failure to provide for visits by the superintendent and medical officers were breaches of the regulations, and were components in the Judge’s finding that the BMR [Behavioural Modification Regime] breached s 23(5), we do not think that they amounted to a breach of s 27(1) of the Bill of Rights. Neither the superintendent nor the medical officers had any adjudicative function in relation to the segregation of an inmate to which s 27(1) could relate.
For the reasons now given by Glazebrook J there is a powerful argument that s 27(1) can be given a wider reading than it received from this Court in Taunoa and in Minister of Fisheries v Pranfield Holdings Ltd [2008] NZCA 216 (CA). There the claimant did not seek to respond to the Crown’s submission that, as the Crown agency was not a tribunal or a public authority exercising an adjudicative function, s 27(1) was not engaged. This Court at [136] adopted a traditionally conservative approach to what was a claim for damages for breach of public law obligations. At [86] it acknowledged that there may be grounds for development of such a cause of action, which are discussed by Cohen and Smith “Entitlement and the Body Politic: Rethinking Negligence in Public Law” (1986) 64 Can Bar Rev 1 and Cane “Damages in Public Law” (1999) 9 Otago L R 489. But it declined to embark on consideration of such issues where there had been no sufficient pleading and no factual investigation in the High Court of the implications of such development.
The reason for such caution is that in public policy terms any such development – whether to determine the construction and application of s 27(1) and to order damages or award other relief, including declaration – could have profound implications. Before entertaining such a course it would in my view be essential to identify the potential consequences. That would require the parties to place before the court of first instance the materials bearing on whether the development is one which is in the public interest and whether the courts provide the appropriate vehicle for law reform.
That is not to assert that the courts do not possess a role in determining such questions. In Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 and the related case Auckland Unemployed Workers’ Rights Centre Inc v Attorney-General [1994] 3 NZLR 720 this Court considered such questions in the course of deciding whether a cause of action should lie under the Bill of Rights for breach of the right to be secure from unlawful search and seizure. It gave an affirmative answer. That conclusion was the subject of a reference by the Minister of Justice to the Law Commission to include in its review of the Crown Proceedings Act 1950 issues relating to Crown liability under the Bill of Rights. That and a related issue resulted in the Commission’s report Crown Liability and Judicial Immunity: A Response to Baigent’s Case and Harvey v Derrick (NZLC 37 1997). The Crown accepted the advice of the Commission that no legislation should be introduced to remove the general remedy for breach of the Bill of Rights held to be available in Baigent’s Case.
The rights, which the long title of the Bill of Rights Act states are “affirmed”, need to be seen in perspective. Prior to its enactment there already existed as part of our judge-made jurisprudence many different kinds of important common law rights. But it was not until the Legislation Advisory Committee Guidelines were issued that the basic common law principles, well known to constitutional lawyers, were published in a form readily accessible to the public. (See < 3.html> last accessed 24 September 2008.) As a result the rights, and the fact that they form a body of law, had sometimes escaped attention. The statute is in essence a compilation of the most important of these.

The authors of White Paper on the Bill of Rights commented that the Bill was intended to encapsulate our most fundamental rights and give those rights some additional protection (at [3.6]); they contemplated that the rights would constitute a form of supreme law: Palmer “A Bill of Rights for New Zealand” [1984-85] I AJHR A6. While that proposal was not accepted by Parliament, the enactment of the 1990 statute gave a clear and accessible direction to the community, including the courts, that such rights indeed form part of our law. The fact that they have always done so and continue to do so at common law is less well known.
The rights, both statutory and common law, are of very different kinds. Some are fundamental substantive law, such as s 8 expressing the right not to be deprived of life and s 9 the right not to be subjected to torture. They protect the highest interest, of bodily integrity. Others, such as s 21 protecting against unreasonable search and seizure, concern a related important right of human dignity. Others again, like the present s 27(1) (right to observance of principles of natural justice), concern procedural entitlements.
While breach of the right to natural justice conferred by s 27(1) may affect liberty, or (as in Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (No 2) [1981] 1 NZLR 618 (CA), and [1983] NZLR 662 (PC)) reputation, in the present case it does neither. Here, as in Pranfield, only an economic claim is at stake.
As was stated in Naysmith v Accident Compensation Corporation [2006] 1 NZLR 40 (HC):
[80] …the law has always afforded the highest protection to the physical integrity of the person; a lower protection to property rights; and still less protection to economic interests. That is why the common law applied the thin skull test to claims for personal injury (Smith v Leech Brain & Co Ltd [1962] 2 QB 405), the simple loss of value test to damage to goods (The London Corp [1935] P 70), and a more exacting test for economic loss (Hadley v Baxendale (1854) 9 Exch 341).

It is to be noted that the Bill of Rights Act does not, unlike art 17(2) of the Universal Declaration of Human Rights, protect against arbitrary deprivation of property or economic rights of the kind claimed in this case. That is not to reject them as potential contenders for relief, but to emphasise the need for a proportional approach to how they should be viewed.

There are other kinds of claim for breach of public law obligations that are more obvious candidates for consideration for recompense than the kind of bureaucratic error in the present case.
For example, in Fyfe v Attorney-General [2004] NZLR 731 this Court upheld the refusal of relief to the Scottish tourists who were ordered from their car at gunpoint by men dressed in military-style fatigues. The husband was handcuffed and made to lie down on the road. The wife found herself lying in a puddle. They had no idea who the men were and feared for their lives. In fact they had been apprehended in error by the Armed Offenders Squad. They sued the New Zealand Police and the officer who commanded the Squad. It emerged that they were the hapless victims of mischance. The courageous and highly respected commander had believed that the couple included a notorious criminal who was known to carry a loaded firearm and indeed was arrested coincidentally a few hours later with a loaded 0.44 magnum pistol following a bank robbery. The commander was acquitted of negligence. Nor did the Bill of Rights provide a remedy. The plaintiffs’ claims for damages for nervous shock failed.
There appears to have been no argument that there might be adopted in New Zealand some variant of the principle of French law recounted in the Law Commission report Crown Liability and Judicial Immunity:
35 French law has … developed principles of liability for losses caused by a far wider range of governmental activity. As a basic principle, the state is liable for acts of the executive which cause loss, although some public services (such as assessment of taxation) only incur liability where loss is caused as a result of “gross” fault. The civil code requires public burdens to be borne equally:
The French State . . . considers itself totally liable for service connected faults of public officers and State agencies. . . . In effect, the droit administratif is developing in the direction of absolute liability to ensure equitable sharing among all citizens of the burden of government action.
[Abraham The Judicial Process (6ed 1993) at 385.]
36 Further, the state can be held liable for loss caused by legislation if the harm is found to be sufficiently serious, and if the legislation does not explicitly ban indemnification of those who suffer as a result of it. The harm must also be limited to an individual or a small number of people: those affected by general social or economic policies cannot recover.
It is arguable that a mature system of public law relief might focus rather on the fact that the kind of loss seen in Fyfe was occasioned by public sector conduct calculated to benefit the community; and that the plaintiffs in Fyfe might be considered more deserving than the present appellant of redress from public revenues.
Whether or not that is so is a matter warranting careful consideration in a case where such issues are essential to the decision. But this is not such a case.
This public law case might be thought more suited to examination by the Ombudsmen than by the courts. Glazebrook J’s conclusion, which I share, as to the triviality of the CBU’s complaint and the result that damages should not be awarded must in my respectful opinion carry the further conclusion that no relief should be given.She reasons that, because relief other than damages was not debated, the declaration by the High Court should stand. But that in my view overlooks the fact that to sustain the declaration would be to treat it as other than trivial. In the present context the maxim de minimis non curat lex bites deeper than that. As a fifteen member European Court of Justice decision makes clear, the principle of state liability for breaches of Community law requires that in order to attract the intervention of the courts the breach must be serious: Köbler v Republik österreich [2004] QB 848. There is nothing about this case to justify more favourable treatment of the common law and Bill of Rights entitlements which are asserted.
Certainly there are cases where some issue of significance to the parties or to the public is determined by a test case which may itself make no operative determination of moment. Wybrow v Chief Electoral Officer [1980] 1 NZLR 147 (CA) is an example. But that case, about the counting of votes, was of great public importance. This one is inconsequential.
The remedy of declaration is not to be seen as so innocuous that its pronouncement is of little significance. On the contrary, a solemn declaration of rights is an important remedy with potential precedential effects which should be pronounced only when the justice of the case so requires.
In the leading text Zamir and Woolf The Declaratory Judgment (3ed 2002) Lord Woolf and Jeremy Woolf state at 123:
A most important feature of the declaratory judgment is that it is a flexible and discretionary remedy …

At 164 – 5 they cite as an example of a declaration being refused because it would serve no useful purpose Hammerton v Earl of Dysart [1916] 1 AC 57, where the House of Lords confirmed the judgment of the Court of Appeal setting aside a declaration when there was no such interference with a claimed exclusive right to operate a ferry as would warrant the grant of injunction.

That principle is of particular importance in relation to public law rights. Zamir and Woolf state at 178 as to balance of convenience:
In public law proceedings this factor is likely to prove of particular importance in determining how discretion should be exercised…the court is entitled to have regard to the wider consequences when deciding whether or not to give relief.
In “Rethinking “Effective Remedies”: Remedial Deterrence in International Courts” (2008) 83 NYU L Rev 693, in a context of international courts and tribunals, Sonja B Starr draws attention to the need for a carefully nuanced approach to the grant of remedies. She argues that an unthinking application of strong and inflexible remedial rules can constrain courts to narrow the substantive interpretation of rights by raising the threshold required to trigger a remedy or erecting procedural hurdles that avoid considering the claim at all.
Because it is unnecessary for the just determination of this case to say more than that on no arguable basis could the damages claim succeed, I prefer that this Court should refrain from making a ruling as to the scope of s 27(1) and as to that of the common law which is unnecessary to its decision and which might prove to require modification when a case with merits comes to be argued.
Because this case did not justify it, we have not had the in-depth examination of context, perspective and consequences which is essential to development of precedent that will guide rather than mislead (see Neil Duxbury The Nature and Authority of Precedent (2008) at 26 – 27).
This Court’s opinion on the question of liability for damages under s 27(1), which is of considerable importance but in this case is moot, should in my view be reserved for a case which turns upon it. So too should the question of what if any relief, including declaration, should be given for breach.
That is because of the need for care when considering whether and if so how the jurisprudence concerning redress for breach of public law obligations should be extended beyond the present bounds. We are still at a relatively early stage in the development of a rights jurisprudence. It is in my view generally desirable in that context to avoid premature determination of important issues unnecessary to the decision in the case.
So I would rather say that the quantum appeal, against the nil award of damages, is dismissed and that the cross appeal is allowed; not because we are necessarily of a different opinion from the High Court as to the construction of s 27(1), but because justice has been done without it: the CBU secured a factual finding sufficient to explain its delay in making its funding application and the triviality of the claim makes it undeserving of discretionary declaratory relief.

Solicitors:
Lee Salmon Long, Auckland for Appellant
Crown Law Office, Wellington