Couch v Attorney-General - [2012] NZHC 2186

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2005-404-4129 [2012] NZHC 2186

BETWEEN SUSAN COUCH Plaintiff

ANDTHE ATTORNEY-GENERAL Defendant

Hearing: 28 March 2012

Counsel: B Henry for Plaintiff
VE Casey and G Robins for Defendant

Judgment: 28 August 2012

JUDGMENT OF BREWER J

This judgment was delivered by me on 28 August 2012 at 4:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS
DJ Gates (Whangaparaoa) for Plaintiff
Crown Law (Wellington) for Defendant

COUNSEL Brian Henry

COUCH V THE ATTORNEY-GENERAL HC AK CIV-2005-404-4129 [28 August 2012]

[1] The plaintiff sues the Attorney-General on behalf of the Department of

Corrections (the defendant). She seeks exemplary damages of $500,000.

[2] The plaintiff’s claim is founded on the release on parole of William Bell, who subsequently murdered three people at the Panmure RSA. At the same time he gravely injured the plaintiff.

[3] By notice dated 8 June 2011, the plaintiff advised that she requires her case to be tried before a jury. The defendant opposes that mode of trial. By application dated 6 July 2011, the defendant applied for an order that the case be tried by a Judge alone.

Section 19A, Judicature Act 1908

[4] Section 19A of the Judicature Act 1908 provides that certain civil proceedings may be tried by a jury:

(1) This section applies to civil proceedings in which the only relief claimed is payment of a debt or pecuniary damages or the recovery of chattels.

[5] I am prepared to accept that a claim for exemplary damages is a claim for pecuniary damages for the purposes of s 19A. That is not a matter which is beyond argument.[1] However, the defendant does not pursue the point and, purposively, I take the view that s 19A intends “pecuniary damages” to mean “money damages” – that is, damages calculated in money.[2]

[1] “Pecuniary damages” at common law are compensatory whereas “exemplary damages” are

punitive: see Couch v Attorney-General (No 2) [2010] 3 NZLR 149 at [215] per McGrath J

[2] There are a number of cases where juries in civil cases have considered claims for exemplary damages, e.g. Gregory v Gollan [2008] NZCA 568, McInroe v Leeks [2000] 2 NZLR 721 (CA), M v L [1998] 3 NZLR 104 (HC).

[6] Section 19A(2) provides that where, as here, more than $3,000 is sought:

... either party may have the civil proceedings tried before a Judge and a jury on giving notice to the court and to the other party, within the time and in the

manner prescribed by the High Court Rules, that he requires the civil proceedings to be tried before a jury.

[7] Section 19A, therefore, gives a party to a qualifying civil proceeding a prima facie right to trial by jury. But it is not an absolute right:[3]
[3] Judicature Act 1908, s 19A(5).

Notwithstanding anything to the contrary in the foregoing provisions of this section, in any case where notice is given as aforesaid requiring any civil proceedings to be…

Grounds of appeal

[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.

Continue reading Couch v Attorney-General

Details

AGLC: Couch v Attorney-General [2012] NZHC 2186
Case: [2012] NZHC 2186
Decision Date: 28 August 2012

CaseChat Overview and Summary

The plaintiff, Susan Couch, filed a lawsuit against the Attorney-General on behalf of the Department of Corrections, seeking exemplary damages of $500,000. The claim arises from the release on parole of William Bell, who subsequently murdered three people and gravely injured the plaintiff at the Panmure RSA. The plaintiff requested a trial by jury, while the defendant opposed this mode of trial and applied for a trial by judge alone. The key legal issues were whether the case qualified for a jury trial under section 19A of the Judicature Act 1908 and whether the case involved difficult questions of law that would make it unsuitable for a jury trial.

The court considered the nature of the claim for exemplary damages and whether it qualified as "pecuniary damages" under section 19A of the Judicature Act 1908. The court found that the claim for exemplary damages could be considered pecuniary damages for the purposes of section 19A. However, the court also noted that section 19A allows a judge to order a trial by judge alone if the trial involves mainly the consideration of difficult questions of law or requires a prolonged examination of documents or accounts. The court found that the case involved mixed questions of fact and law and that the issues were not likely to be issues of fact but issues as to how the law responds to the facts. The court concluded that the case was not suited to trial by jury and granted the defendant's application for a trial by judge alone.

The court ordered that the proceeding be tried before a Judge without a jury, taking into account the complex legal issues and the potential difficulties in separating the roles of the judge and the jury in this case. The court found that the case involved difficult questions of law and that the issues were likely to be issues of law rather than issues of fact, making it unsuitable for a jury trial. The court also considered the number of documents and the potential for expert evidence but found that these factors did not outweigh the complex legal issues involved in the case.

Orders