CA341/2013 [2014] NZCA 511

BETWEEN
PHILIPPA CURRIE

First Appellant

AND

RAYMOND DONNELLY & CO Second Appellant

AND

THE CROWN SOLICITOR AT CHRISTCHURCH

Third Appellant

AND

THE ATTORNEY-GENERAL OF NEW ZEALAND

Fourth Appellant

AND

VINCENT JAMES CLAYTON First Respondent

AND

LINDA JOYCE WESTBURY Second Respondent

Hearing: 30 April 2014

Court:

Randerson, Wild and White JJ

Counsel:

J C Pike QC and M J Lillico for Appellants
P N Allan for Respondents

Judgment:

5 November 2014 at 11.30 am

CURRIE V CLAYTON CA341/2013 [2014] NZCA 511 [5 November 2014]

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The cross-appeal is allowed. The order of the High Court striking out the respondents’ cause of action for misfeasance in public office is set aside. That cause of action is reinstated.

C The appellants are to pay the respondents’ costs for a standard appeal on a

band A basis with usual disbursements.

REASONS OF THE COURT

(Given by Wild J)

Table of Contents

Para No

Introduction  [1] Factual background  [3] The claim brought by Mr Clayton and Ms Westbury  [24] Prosecuting counsel’s duties, including the duty of disclosure  [29] The cause of action in misfeasance
Priestley J’s judgment  [30]
Counsel’s opposing submissions  [37] Our decision  [40] Conclusions on the misfeasance issue  [61]

The cause of action for breach of NZBORA rights
Priestley J’s judgment [64]
Counsel’s opposing submissions [67] Analysis [74] (a) Are prosecutors immune from suit? [75] (b) Section 6(5) of the Crown Proceedings Act 1950 [79]

(c) Are damages available against a prosecutor for breaches of the NZBORA?

[81]

Conclusions on the NZBORA issue [89]

Result [93]

Introduction

[1] The two issues for decision on this appeal and cross-appeal from a judgment of Priestley J delivered in the High Court at Christchurch on 23 October 2012 are:1

(a) Did Priestley J err in striking out the respondents’ cause of action

against the appellants for misfeasance in public office?2

(b)Did the Judge err in not striking out the respondents’ cause of action against the appellants for public law compensation for breach of their rights under the New Zealand Bill of Rights Act 1990 (NZBORA)?3

[2] These two questions are a distillation of the four questions of law upon which

Priestley J on 15 November 2012, by consent, granted leave to appeal to this Court.4

We have set those four questions out in a footnote.5

1      Clayton v Currie [2012] NZHC 2777, [2013] 1 NZLR 263 [High Court judgment].
2      On this issue Mr Clayton and Ms Westbury are the cross-appellants. For consistency we will nonetheless refer to them throughout the judgment as the respondents.
3      Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s case] established the availability of…

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 Currie v Clayton

Details

AGLC: Currie v Clayton [2014] NZCA 511
Case: [2014] NZCA 511
Decision Date: 5 November 2014 at 11.30 am

CaseChat Overview and Summary

The respondents, Mr Clayton and Ms Westbury, were acquitted of charges of receiving stolen goods and fraud. They brought a claim against the Crown Solicitor at Christchurch and the Crown prosecutor for misfeasance in public office and breach of rights under the New Zealand Bill of Rights Act 1990 (NZBORA). The High Court struck out the misfeasance cause of action but not the NZBORA cause of action. The Court of Appeal dismissed the appeal but allowed the cross-appeal. It set aside the striking out of the misfeasance cause of action and reinstated it. It found the misfeasance cause of action could not be ruled out on the basis of the authorities cited by the High Court and the policy considerations it relied on. It found that it was arguable that Ms Currie, as a Crown prosecutor, was not immune from suit and that her actions, in particular her failure to disclose the full sentencing indication, had the requisite public character to attract liability for misfeasance. It found that the NZBORA cause of action was not plainly unsustainable and should not be struck out. It found that it was arguable Ms Currie breached her duty to disclose to the Court and the accused all information in her possession relating to the sentencing inducement offered to L, and that this breach of duty led to the respondents’ successful appeal and the subsequent stay of proceedings. It found that, for the purposes of strike-out, it was arguable that the respondents’ NZBORA rights had been breached and that the respondents had a claim for Baigent damages as a result of the breach.

Orders