Marsh v Attorney-General HC WN CIV 2006-485-000665
[2009] NZHC 2463
•9 November 2009
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IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV 2006-485-000665
BETWEEN GRESHAM KERSTEN LEITH MARSH
Plaintiff
ANDTHE ATTORNEY-GENERAL Defendant
Hearing: 4 November 2009
Counsel: L M Hansen for Defendant in Support
J M Elliott for Plaintiff to Oppose
Judgment: 9 December 2009
JUDGMENT OF WILD J
Introduction
[1] The issue for decision on this strike out application by the Attorney, is whether the plaintiff’s remaining two causes of action are tenable.
[2] In this proceeding Mr Marsh seeks monetary relief against the Attorney, alleging the Attorney is vicariously liable for physical and sexual abuse the plaintiff claims he was subjected to while in state care between 1972 and 1989.
[3] At one point, Mr Marsh’s statement of claim contained seven causes of action: negligence (two causes); non-delegable duty of care; assault and battery; breach of fiduciary duty; false imprisonment, and breach of domestic and international human rights instruments. Following Mr Marsh’s acceptance that the tortious causes of action are time-barred, his claim is now confined to two causes of
action:
MARSH V THE ATTORNEY-GENERAL HC WN CIV 2006-485-000665 9 December 2009
· A claim for breach of fiduciary duty; and
·A claim for breach of domestic and international human rights instruments.
As I will explain in [26] and [27], in opposing the Attorney’s strike out application the plaintiff restricted his second cause of action to a claim that the Bill of Rights
1688 (Imp.) – still part of New Zealand law through the Imperial Laws Application
Act 1988 – affords him a remedy.
[4] The Attorney applies to strike out both these remaining causes of action. He contends the first is time-barred (the Limitation Act 1950 applying by analogy) and the second simply untenable.
Factual background
[5] The plaintiff is now aged 37. Two weeks after his birth on 8 May 1972, he was adopted by Mr and Mrs Marsh. There were already 11 children in the Marsh family. The plaintiff alleges that he was physically, sexually and psychologically abused while living with the Marsh family until 1982.
[6] In August 1985 the Department of Social Welfare admitted the plaintiff to Melville Boys Home in Hamilton. On 19 November 1985, Mr Marsh was placed under the guardianship of the Director-General. In January 1986 Mr Marsh was sent
to Hokio Beach School for long-term training. At both Melville and Hokio the plaintiff alleges he was physically and sexually assaulted by unnamed boys on unspecified dates, sometimes in the presence of unnamed staff. He alleges that he witnessed other unnamed boys being physically assaulted by unnamed boys and unnamed staff on unspecified dates. He makes allegations of abuse against two named staff members, one at Melville, the other at Hokio.
Pleading background
[7] On 6 April 2006 the plaintiff applied for leave to commence this proceeding out of time. His initial statement of claim contained four causes of action: negligence; negligence (vicarious liability); non-delegable duty of care and assault and battery (again, vicarious liability). The plaintiff’s (second) amended statement
of claim, filed on 5 September 2008, contained the same four causes of action.
[8] Not until 12 March 2009, did the plaintiff further amend his statement of claim to plead the seven causes of action set out in [3] above. In addition to the four already mentioned, causes of action alleging breach of fiduciary duty, false imprisonment and breach of domestic and international human rights instruments were introduced.
[9] The plaintiff’s latest amended statement of claim, filed on 28 October 2009, confines his claim to the two causes of action which are the subject of the present strike out application.
[10] The Attorney submits this pleading history demonstrates that the remaining two causes of action, neither of which are tortious, were introduced in an attempt to circumvent the Limitation Act, and overcome the limitation difficulties encountered
by plaintiffs pressing similar claims.
Strike out principles
[11] These are well established and there was no disagreement as to their application here. Assuming the facts alleged by Mr Marsh are established, do his remaining causes of action have a reasonable prospect of succeeding? If they do not
– if it is clear they cannot succeed – the Attorney should not be put to the expense and trouble of having to defend the claims further. Between them counsel identified Attorney-General v Body Corporate 200200 [2007] 1 NZLR 95 (CA) and Couch v Attorney-General [2008] 3 NZLR 725 (SC) as the leading authorities.
Breach of fiduciary duty
[12] The core of the plaintiff’s pleading (and I take this from his 28 October 2009
amended statement of claim) is:
...
55.The plaintiff was in a vulnerable position, having regard to his age, vulnerability and dependence on the Director-General and those acting with his authority.
56.The Director-General (through his staff, social workers and/or agents) held a position of power over the plaintiff and was able to take all steps to place the plaintiff, and continue to place the plaintiff, in an environment that complied with all statutory and regulatory guidelines and was also free from harm.
57.The plaintiff had trust and confidence in the Director-General and his staff, social workers and/or agents.
58. Having regard to paragraphs 55-57 above, the Director-General was
at all material times under a fiduciary duty to the plaintiff.
59.The fiduciary duty required the Director-General at all times: (a) To act in the plaintiff’s best interests;
(b) To act with the utmost good faith towards the plaintiff;
(c) To take all reasonable steps to protect the plaintiff from harm;
(d)To act in accordance with the trust and confidence placed in him and/or his staff, social workers and/or agents by the plaintiff.
...
[13] The plaintiff accepts this cause of action is founded upon the same alleged conduct as were his abandoned tortious causes of action. But he says he is entitled to pursue a claim for breach of fiduciary duty even if he cannot pursue causes of action alleging breach of a duty of care. He relies on Donselaar v Donselaar [1982] 1
NZLR 97 in which Richardson J, delivering the judgment of the Court of Appeal, said at 110:
As a matter of principle it is difficult to see why a plaintiff who has a cause
of action should not be entitled to select his remedy and to pursue a
particular remedy notwithstanding that another remedy is not available, at least where the two remedies serve quite different purposes.
[14] It is Mr Marsh’s submission that the elements of his vulnerability and dependence on the Director-General, and the Director-General’s power over him, are the essentials of a fiduciary relationship. He relies on Wilson J’s dissenting judgment in the Canadian Supreme Court’s decision in Frame v Smith [1987] 2 SCR
99. In Frame, following a marriage breakup, a non-custodial father sued a custodial mother for damages for emotional and psychological distress caused by her deliberate interference in the father’s access to the three children of the former marriage. The majority of the Supreme Court held the situation did not give rise to a fiduciary relationship on which a cause of action could be grounded. The majority took the same view in relation to a duty of care.
[15] Wilson J considered it arguable there was a fiduciary obligation. She said (at
99) that such an obligation possessed these three general characteristics:
...
(1) The fiduciary has scope for exercise of some discretion or power.
(2) The fiduciary can unilaterally exercise that power or discretion so as
to affect the beneficiary’s legal or practical interests.
(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.
[16] As ‘home grown’ distillations of the elements of a fiduciary obligation exist,
I am unsure why the plaintiff resorts to a dissenting judgment in a Canadian decision, albeit one of the Canadian Supreme Court. For example, there is an excellent summary of fiduciary obligations in the judgment of Fisher J in Cook v Evatt (No 2) [1992] 1 NZLR 676 at 685. Blanchard and Tipping JJ also commented
on the type of relationship that will give rise to fiduciary duties at [72] and following
in their judgment in the Supreme Court in Chirnside v Fay [2007] 1 NZLR 433. However, determining what are the elements of a fiduciary obligation, and whether they existed here, matters not, because the Attorney was content to assume the Director-General owed fiduciary obligations to Mr Marsh. The Attorney’s point is that not all breaches of duty by a fiduciary are breaches of fiduciary duty. The
Attorney submits that what is really alleged here is a failure by the Director-General
to exercise reasonable care and skill, and to act in the plaintiff’s best interests.
[17] I accept that. One example of the plaintiff’s pleading is that the Director- General was careless in relation to the adoption of the plaintiff:
...
The Director-General, by his staff, social workers and/or agents knew or should have known that he was allowing the plaintiff to be adopted into an environment where the plaintiff could be abused, and should not have placed the plaintiff with the Marsh family.
...
[18] A second example is the plaintiff’s allegations in relation to his treatment at
Melville Boys Home in Hamilton:
...
The plaintiff was repeatedly exposed to violence at Melville. The Director- General and his staff, social workers and/or agents, caused and/or allowed the plaintiff to be exposed to violence at Melville by:
(a) allowing the use of physical assaults;
(b)omitting to take appropriate action to prevent physical assaults, or to adequately punish offenders, or educate offenders about the negative effects of violence;
(c)omitting to take appropriate action when boys reported incidents of physical assaults;
(d)failing to provide adequate measures to protect boys from physical assaults or to separate the victims of physical assaults from their offenders; and
(e) omitting to provide adequate help to victims of physical assaults.
[19] The plaintiff’s pleading (it is paragraph 39) in relation to his subsequent treatment at Hokio Beach School is identical.
[20] I consider the plaintiff faces the same insuperable difficulties that confronted the plaintiff in S v Attorney-General [2003] 3 NZLR 450. Delivering the judgment
of the Court of Appeal, Blanchard J said:
[77] We are content to proceed on the basis that the superintendent was a fiduciary for a child placed in foster care. The difficulty for the appellant is, however, the absence of proof that any breach of a duty which can properly
be characterised as fiduciary was committed. The breaches put to us as failures by the department to act in BS’s best interests (acting informally
rather than strictly in accordance with statutory requirements, failing to seek
a committal order or to arrange an adoption), were in reality no more than alleged breaches of the duty of care. As Ronald Young J said, the pleaded
matters were effectively charges of negligence. Negligent conduct by a
fiduciary will render the fiduciary liable in negligence but is not a breach qua fiduciary, notwithstanding that the fulfilment of the role of a fiduciary is the setting for the negligent act or omission. Nothing in the evidence in this case suggests that the department was attempting to act other than in what it believed to be the best interests of BS, for example, in deciding not to apply for a committal order. It was not in any way disloyal to BS nor did it act in bad faith or dishonestly. And, of course, the allegations of negligence on the part of the officers of the department have failed.
[21] The point that not all breaches of duty by fiduciaries are breaches of fiduciary duty had earlier been made by the Court of Appeal in Bank of New Zealand v NZ Guardian Trust Co Ltd [1999] 1 NZLR 664 at 681 and 687-688.
[22] Where, as here, the alleged breaches of the (assumed) fiduciary duty are actually breaches of a duty of care, the limitation position is the same as it would have been had the plaintiff sued in tort. The time bar, which the plaintiff has accepted was fatal to his tortious causes of action, is equally fatal to this cause of action. This was clearly stated by the Court of Appeal in Stratford v Phillips Shayle- George (2001) 15 PRNZ 573 at 578:
[17] A cause of action accrues for limitation purposes when all the facts necessary to establish the claim are in existence. The relevant facts for the tort of negligence are those necessary to establish duty, breach and consequent loss. If the tortfeasor is a fiduciary the position is the same unless there is also a breach of fiduciary duty (ie a breach of a duty of fidelity or loyalty). Thus, if the breach established against a fiduciary is simply a breach of a duty of care by a person who happens to stand in a fiduciary relationship with the plaintiff, the claim is in reality tortious and limitation issues are dealt with on that basis rather than in equity.
[23] Mr Elliott sought to circumvent this by relying on “the evidence of the plaintiff that he was unable to make any link between the breach of fiduciary duty of the defendant and damages suffered by him, because of the damage inflicted upon him during this period”. Mr Elliott submitted it would be inequitable and unjust if the Director-General was permitted to benefit from his own breach of fiduciary duty,
by alleging the delay caused (by the damage allegedly inflicted on the plaintiff) is reason to have the plaintiff’s claim barred by analogy.
[24] There is no merit in this point. If the alleged breaches by the Director- General are essentially tortious, time does not stop running because they were committed by an (assumed) fiduciary. That is because the Director-General was not
in breach qua fiduciary. That is the point made in the passage I have cited in [20]
above from S v Attorney-General. Equitable principles do not engage.
[25] The result of this is that the plaintiff’s cause of action alleging breach of fiduciary duty must be treated as time barred. As the Attorney invokes that time bar, the cause of action cannot succeed. I strike it out.
Bill of Rights 1688 giving the plaintiff a remedy
[26] At the outset of his submissions opposing the striking out of this second cause of action, Mr Elliott made this concession.
33.It is accepted that the Universal Declaration of Human Rights (“UDHR”), International Covenant on Civil and Political Rights (“ICCPR”), and International Covenant on Economic, Social and Cultural Rights (“ICESR”) (collectively “the international obligations”) do not provide the plaintiff causes of action in or of themselves. The plaintiff does not assert that a right to compensation exists as a result of customary international law at this time.
[27] As now framed, this cause of action relies solely on article 10 of the Bill of Rights Act 1688, as giving rise to a cause of action for public law compensation. Complete with the titles and recitals necessary to give it context, article 10 provides:
Bill of Rights 1688
1 Will and Mar, Sess 2, c 2
AN ACT delareing the rights and liberties of the subject and setleing the succession of the Crowne.
13 February 1688
WHEREAS the Lords Spirituall and Temporall and Comons assembled at
Westminster lawfully fully and freely representing all the estates of the
people of this Realme did upon the thirteenth day of February in the yeare of our Lord one thousand six hundred eighty eight present unto their Majesties then called and known by the names and stile of William and Mary Prince and Princesse of Orange being present in their proper persons a certain declaration in writeing made by the said Lords and Comons in the words following viz
The Heads of Declaration of Lords and Commons, recited.
WHEREAS the late King James the Second by the assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this Kingdome.
...
Excessive Bail
And excessive baile hath beene required of persons committed in criminall cases to elude the benefit of the lawes made for the liberty of the subjects.
Fines.
And excessive fines have beene imposed.
Punishments.
And illegall and cruell punishments inflicted.
...
Recital that the late King James II had abdicated the Government, and that the Throne was vacant, and that the Prince of Orange had written letters to the Lords and Commons for the choosing representatives in Parliament.
And whereas the said late King James the Second haveing abdicated the
Government and the Throne being thereby vacant his Highnesse the Prince
of Orange (whome it hath pleased Almighty God to make the glorious instrument of delivering this Kingdome from Popery and arbitrary power)
did (by the advice of the Lords Spirituall and Temporall and diverse
principall persons of the Commons) cause letters to be written to teh Lords
Spirituall and Temporall being Protestants and other letters to the severall countyes cityes universities burroughs and cinque ports for the choosing of such persons to represent them as were of right to be sent to Parlyament to meete and sitt at Westminster upon the two and twentieth day of January in this yeare one thousand six hundred eighty and eight in order to such an establishment as that their religion lawes and liberties might not againe be in danger of being subverted, upon which letters elections haveing beene accordingly made.
The Subject’s Rights
And thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective letters and elections being now assembled in a full and free representative of this nation takeing into their most serious
consideration the best meanes for attaining the ends aforesaid doe in the first place (as their auncestors in like case have usually done) for the vindicating and asserting their auntient rights and liberties, declare
1 ...
Excessive bail – That excessive baile ought not to be required nor excessive fines imposed nor cruell and unusuall punishments inflicted.
...
[28] The Attorney accepts the 1688 Bill of Rights is still part of New Zealand law.
It was, famously, the basis for the declaration made against the then Prime Minister
by Wild CJ in Fitzgerald v Muldoon [1976] 2 NZLR 615 at 621-622.
[29] As the Bill of Rights 1688 remains part of New Zealand law, I accept that it should be interpreted consistently with the indigenous New Zealand Bill of Rights Act 1990 (the BORA), passed three centuries later. That is consistent with the view taken by the Court of Appeal in Crown Health Financing Agency v P [2009] 2
NZLR 149 (CA), where the issue was whether leave provisions in the mental health legislation of 1935 and 1969 had survived the coming into force of the Mental Health (Compulsory Assessment and Treatment) Act 1992.
[30] In order for this second cause of action to be tenable, the plaintiff must establish three successive propositions. I take each of these in turn.
“Punishments”
[31] First, the plaintiff must establish that the ill treatment he alleges he was subjected to was “punishment” within the meaning of article 10.
[32] The two cases in point are squarely against the plaintiff. The first case is R v Shand (1976) 70 DLR (3d) 395, a decision of the Ontario Court of Appeal. The issue was whether the minimum sentence of 7 years imprisonment for importing a narcotic was a “cruel and unusual” punishment within the meaning of s 2(b) Canadian Bill of Rights RSC 1970 App III. After noting that article 10 of the 1688
Bill of Rights was the genesis of s 2(b), the Court at 402 remarked:
The Bill was directed at the Courts, not at Parliament ...
[33] That article 10 was directed at judicially imposed penalties emerges also from American case law. There is a substantial body of it, since the Eighth Amendment to the Constitution of the United States of America adopted the precise language of article 10. The case fastened upon by counsel is Ingraham v Wright (1977) 430 US
651, a decision of the United States Supreme Court. In issue was whether corporal punishment in a junior high school in Florida violated the students’ rights under the Eighth Amendment. The students had been “paddled” – spanked on the buttocks with a wooden paddle. Delivering the opinion for the majority of five Judges, Powell J said this at 664:
The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”. Bail, fines, and punishment traditionally have been associated with the criminal process, and by subjecting the three to parallel limitations the text of the Amendment suggests an intention to limit the power of those entrusted with the criminal-law function of government. An examination of the history of the Amendment and the decisions of this Court construing the proscription against cruel and unusual punishment confirms that it was designed to protect those convicted of crimes. We adhere to this long-standing limitation and hold that the Eighth Amendment does not apply to the paddling of children as a means of maintaining discipline in public schools.
[34] The minority of four Judges considered the Eighth Amendment encompassed the school corporal punishment in question, but they nevertheless limited the scope
of the amendment to punishment. The judgment of White J for the minority contains this passage at 686:
... The Court would have us believe from this fact that there is a recognised distinction between criminal and noncriminal punishment for purposes of the Eighth Amendment. This is plainly wrong. “Even a clear legislative classification of a statute as ‘non-penal’ would not alter the fundamental nature of a plainly penal statute”. Trop v Dulles, 356 U.S. 86, 95 (1958) (plurality opinion). The relevant inquiry is not whether the offense for which a punishment is inflicted has been labelled as criminal, but whether the purpose of the deprivation is among those ordinarily associated with punishment, such as retribution, rehabilitation, or deterrence. Id., at 96. Cf. Kennedy v Mendoza-Martinez, 372 U.S. 144 (1963).
If this purposive approach were followed in the present case, it would be clear that spanking in the Florida public schools is punishment within the meaning of the Eighth Amendment. The District Court found that “corporal punishment is one of a variety of measures employed in the school system for the correction of pupil behaviour and the preservation of order”. App.
146. Behaviour correction and preservation of order are purposes ordinarily associated with punishment.
[35] Mr Elliott referred also to the decision of the Canadian Supreme Court in Rodriguez v British Columbia (Attorney-General) [1993] 3 SCR 519. The issue there was whether the provision in Canada’s Criminal Code prohibiting assistance to commit suicide was unconstitutional. Ms Rodriguez contended it breached, amongst other provisions, s 12 Canadian Charter of Rights and Freedoms:
12.Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
[36] Ms Rodriguez was dying of amyotrophic lateral schlerosis. She wanted a physician to set up a technological means whereby she could end her own life when she ceased to have any further capacity to enjoy it. She argued that s 12 of the Charter gave her that right. Section 12 (mirrored in s 9 of the BORA) provides:
12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
[37] The passage Mr Elliott focused on is this one in the judgment of Sopinka J at
611:
For the purposes of the present analysis, I am prepared to assume that “treatment” within the meaning of s 12 may include that imposed by the state in contexts other than that of a penal or quasi-penal nature. ...
[38] I do not see the relevance of this; the present case concerns alleged punishment, not treatment.
[39] I respectfully align myself with the two cases I have referred to which hold that article 10 is directed at judicially imposed punishments. The historical context
of the 1688 Bill of Rights reinforces this. It is explained at 664-665 in the majority’s judgment in Ingraham v Wright thus:
The history of the Eighth Amendment is well known. The text was taken, almost verbatim, from a provision of the Virginia Declaration of Rights of
1776, which in turn derived from the English Bill of Rights of 1689. The
English version, adopted after the accession of William and Mary, was intended to curb the excesses of English judges under the reign of James II.
Historians have viewed the English provision as a reaction either to the
“Bloody Assize,” the treason trials conducted by Chief Justice Jeffreys in
1685 after the abortive rebellion of the Duke of Monmouth, or to the perjury prosecution of Titus Oates in the same year. In either case, the exclusive concern of the English version was the conduct of judges in enforcing the criminal law. ...
[40] Should I hold that the 1688 Bill of Rights applies only to judicially imposed penalties Mr Elliott contended it nevertheless encompassed the plaintiff because:
a) He was placed under the guardianship of the Director-General of the
Department of Social Welfare by a judicial order.
b)The living conditions and residences ‘enjoyed’ by the plaintiff at Melville and at Hokio so closely resembled a prison as to be akin to a penal sentence or quasi-penal in nature: the resident compulsorily resided in these institutions, including being required to live in the secure unit on occasion.
[41] I reject this submission. Guardianship is not a “punishment”. Even if tough living conditions at Melville and/or Hokio could be termed a “punishment”, they were not judicially imposed.
[42] I hold the ill-treatment alleged by the plaintiff was not a “punishment” in terms of article 10 Bill of Rights 1688.
Remedy for public law compensation
[43] The plaintiff must establish that article 10 gives rise to a cause of action for public law compensation.
[44] The plaintiff developed this part of his argument in three ways. First, by arguing that the 1688 Bill of Rights is to be given an interpretation consistent with the BORA, and that the latter (excepting s 26(1)) can have retroactive effect. The plaintiff sought support for the latter contention in Wilson v First County Trust (No
2) [2004] 1 AC 816 (HL). Lord Hope, referring to the United Kingdom equivalent
of s 6 BORA said at [99]:
[t]he Court should take a more relaxed approach to a potentially retroactive element in legislation where its intended purpose was ... to protect children.
I would apply the same reasoning to section 3 of the 1998 Act. Its purpose is
to ensure that legislation is read and given effect in a way that is compatible with Convention rights, so far as it is possible to do so, whenever the
legislation is enacted. To restrict the application of the interpretive
obligation, without exception, to ‘events’ that happened or transactions entered into or after 2 October 2000 would be to introduce a restriction
which is not stated expressly anywhere in the 1998 Act. A restriction in
such absolute and all-embracing terms would seem to be contrary to the intention of the legislation and incapable of being read into it by necessary implication.
[45] I interpret this submission as inviting the Court to give the Bill of Rights
1688 the sort of “rights based interpretation” (i.e. the right to a remedy for a breach)
which the Court of Appeal gave the BORA in Simpson v Attorney-General
[Baigent’s Case] [1994] 3 NZLR 667, affirmed in Taunoa v Attorney-General
[2008] NZLR 429.
[46] Secondly, in Baigent’s Case and also in Taunoa, the BORA was “not the source of the damages” awarded, “indeed the Act is completely silent on the issue of monetary relief for a breach of its provisions”. Rather, it was “the inherent and fundamental nature of the right breached, New Zealand’s international obligations, and the need to give practicable effect to those rights and obligations”. The plaintiff submitted:
... that damages are an available remedy if a breach of the 1688 Act is established. Public law damages are not limited to cases of breaches of a provision of the 1990 Act.
[47] Thirdly, the plaintiff pointed to the reliance placed by the Court in Baigent’s Case on article 2(3) of the International Covenant on Civil and Political Rights (ICCPR), which New Zealand signed in 1968 and ratified on 28 December 1978. Article 2(3) provides:
3. Each State Party to the present Covenant undertakes:
(a)To ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
...
[48] The plaintiff relied particularly on this passage in Casey J’s judgment in
Baigent’s Case:
I do not regard the absence of a remedies provision in the Act as an impediment to the Court’s ability to “develop the possibilities of judicial remedy: as envisaged in art 3(b). The rights and freedoms affirmed are fundamental to a civilised society and justify a liberal purposive interpretation of the Act, even though it has not been constitutionally entrenched and has the same status as ordinary legislation. Its purpose being the affirmation of New Zealand’s commitment to the Covenant (including art 3(b)), it would be wrong to conclude that Parliament did not intend there
to be any remedy for those whose rights have been infringed. ...
[49] The plaintiff referred also to this passage at 700 in the judgment of Hardie
Boys J (a passage cited with approval by Elias CJ in Taunoa at [106]):
...
Citizens of New Zealand ought not to have to resort to international tribunals
to obtain adequate remedy for infringement of Covenant rights this country has affirmed by statute. I consider that the Courts are obligated to provide
those remedies by domestic law ...
[50] Mr Elliott submitted Baigent’s case and Taunoa make it clear that damages were awarded, not for breach of the BORA, but “because, given the nature of the breaches and the fundamental rights concerned, declaratory relief would not provide
an effective remedy for those plaintiffs”.
[51] Contrary to the submissions of Ms Hansen for the Attorney, Mr Elliott contended the 1688 Bill of Rights provides an applicable statutory basis for the plaintiff’s claim, when interpreted according to s 6 of the BORA and, through that section, the international obligations.
[52] I do not accept the last of these submissions. From the judgments in
Baigent’s Case emerge three core justifications for providing damages as a remedy for breach of the BORA:
a) The long title of the Act required the Court to “protect and promote” the rights contained within the Act, and in turn required the potential for damages.
b)The ICCPR, to which the Act (in its long title) gives effect, requires the development of such a remedy under the Act.
c) The remedy of a “toothless” declaration was inappropriate, lest the
Court pay lip service to the Act, necessitating a stronger remedy such
as damages or a mandatory injunction.
[53] I draw these justifications particularly from the judgment of Cooke P at 676.
[54] On the other hand, article 10 of the 1688 Bill of Rights was a bald prohibition
on the imposition of cruel and unusual punishments:
Excessive bail – That excessive baile ought not to be required nor excessive fines imposed nor cruell and unusuall punishments inflicted.
[55] Most of the other articles in the Bill were equally blunt requirements or prohibitions. For example:
·Preventing the dispensing or suspension of laws without Parliament’s consent (articles 1 and 2).
·Preventing the raising of armies in peacetime and the levying of taxes without Parliament’s consent (articles 4 and 6).
·Requiring that Parliament should be frequently summoned and that there should be free elections (articles 8 and 13).
·Preventing the impugning of Members of Parliament for statements made in the Houses of Parliament (article 9).
[56] All these things were direct responses to what had been, and was, happening
in England at the time. The immediate trigger was the Glorious Revolution of 1688, when James II was deposed by William of Orange and Mary. More broadly, the
1688 Bill of Rights was symptomatic of the respective rise and decline of Parliament and the Monarchy respectively, which had been occurring since the Magna Carta of
1215, and with accelerated pace in the 17th Century.
[57] James II acceded to the throne after the death of his brother Charles II in
1685. James II was a Roman Catholic who attempted to relax or suspend the Penal Laws, which upheld Anglicanism to the detriment of Catholicism. In addition, he sought heavy taxation for his standing army, proroguing Parliament without its consent when it appeared they would dissent. It was this unbridled use of the Royal Prerogative that raised the ire of many Members of Parliament. When James II fathered a son late in 1688, thereby seemingly securing the Catholic dynasty, there was consensus that he should be deposed as King. Noblemen wrote to the Dutch Protestant, William of Orange, who was married to James II’s daughter Anne, inviting his intervention.
[58] William landed in England in November 1688. Facing widespread defection
by his allies, James II attempted to flee to France on 11 December 1688, throwing the Great Seal into the River Thames on the way (thereby preventing the legal summoning of Parliament), but was captured. Eventually, he was allowed to depart
for France, and on 26 December 1688 William was asked to take command. As he was not yet the king, he summoned a Convention Parliament, which first met on 21
January 1688 (the Julian Calendar, which had the year commence in March, had not yet been replaced). On 12 February 1688 a declaration was drawn up affirming the rights and liberties of the people and conferring the Crown on William and Mary. Once the declaration had been accepted by William and Mary, it was published as a proclamation. The declaration was subsequently enacted with some additions in the form of the Bill of Rights 1688, and the Acts of the Convention Parliament were subsequently ratified and confirmed by the Crown and Parliament Recognition Act
1689, which also recognised the new King and Queen.
[59] The 1688 Bill of Rights is similar to modern rights instruments, in that it is declaratory legislation – it affirmed existing rights and obligations of citizenry, Parliament and the King. It is dissimilar to modern rights instruments in that it does not define and guarantee the basic human rights of individual citizens. The 13 articles in the 1688 Bill of Rights provided, in part, the genesis for modern rights instruments. As I have pointed out, article 10 was adopted by the Americans in their Bill of Rights, as an amendment to their Constitution. And it has a modern equivalent in s 9 of the BORA. But, for the most part, the 1688 Bill of Rights was
simply intended to “extirpate the abuses of the Stuart kings” (per Wild CJ at 622 in Fitzgerald v Muldoon). The 1688 Bill of Rights represented Parliament exerting its control over the King to prevent a recurrence of the actions of James II.
[60] What emerges from all this is that the justifications for the creation of
‘Baigent’ damages under the BORA are absent from the 1688 Bill of Rights. Whereas international instruments, and the text of the BORA, necessitated the introduction of a remedy for such damages, the 1688 Bill of Rights was not based on the ICCPR, and did not have the same purpose as is expressed in the long title to the BORA. The 1688 Bill of Rights was not concerned to protect the rights of citizens;
its aim was to curb the power of the King. Although the 1688 Bill of Rights has an important place in the constitution of this country, that does not mean that it has the same purpose or content as the BORA.
[61] The fact that a large part of the 1688 Bill of Rights refers to James II as having vacated the throne, indicates that the focus was on preventing the abuses of the Monarch from recurring. Its enactment thus differs sharply from the context of the United States’ Bill of Rights, enacted in 1791, shortly after the birth of the American nation. Similarly, it differs from the BORA, enacted after a White Paper
on the issue, and to further New Zealand’s ratification and adoption of the ICCPR.
If one of the key reasons for providing the remedy of ‘Baigent’ damages under the BORA was legislative context, then the legislative context of the 1688 Bill of Rights does not provide the same impetus.
[62] For those reasons, I accept the Attorney’s argument that the plaintiff cannot graft a remedy providing public law compensation onto the 1688 Bill of Rights.
Limitation
[63] Thirdly, the plaintiff must establish that a cause of action for public law compensation based on the 1688 Bill of Rights is not subject to a limitation period, either directly or by analogy.
[64] In PF Sugrue Ltd v Attorney-General [2004] 1 NZLR 207 (CA) the Court of
Appeal confirmed that a claim for ‘Baigent’ damages is not barred by any provision
in the Limitation Act. But the Court stated:
[70] ... The Court must have a degree of flexibility in determining how long a delay is too much. All the circumstances, including those in which the cause of action arose, whether the alleged breach of the plaintiff’s rights may have had an effect which excuses the delay and whether the delay has prejudiced the defence of the claim, should be considered. Appropriate and significant weight should obviously be given to the fact that the claim is one for breach of a fundamental human right guaranteed by the Bill of Rights. But it can be expected that the Court will still be guided to an extent by the periods set for the bringing of common law and statutory claims by the Limitation Act, just as it is when there has been a delay in commencing a claim in equity: see generally Matai Industries Ltd v Jensen [1989] 1 NZLR
525.
[65] At [73] the Court rejected the suggestion that treating such a claim as time- barred would deny the plaintiff an effective remedy and place New Zealand in breach of the ICCPR. It said that a declaration might well remain appropriate, despite delay, to vindicate the plaintiff’s right.
[66] In Pearson v R [2006] FC 931, a decision of the Canadian Federal Court, Y
de Montigny J reached the same conclusion, in a case where the plaintiff was suing the Crown for compensatory damages for breaches of his rights under the Canadian Charter of Rights and Freedoms (essentially, being unjustly sent to jail). At para 54 the Judge said:
54. ... The purposes of limitation periods are as valid in the context of a
Charter claim as they are for any other type of claims; a claimant should not
be entitled to sue the Crown indefinitely just because the basis of his complaint is the violation of a constitutional right. As long as the government is not trying to do indirectly what it could not do directly, I see
no reason not to apply a limitation period.
[67] Similarly, the European Court of Human Rights in Stubbings v United Kingdom (1996) 23 EHRR 213 at [51] upheld limitation periods as consistent with human rights protections because they:
... serve several important purposes, namely to ensure legal certainty and finality, protect potential defendants from stale claims which might be difficult to counter and prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the
basis of evidence which might have become unreliable and incomplete because of the passage of time ...
[68] Accordingly, the plaintiff’s claim for ‘Baigent’ damages is, by analogy, time- barred. No persuasive reason for permitting it to be brought out of time has been advanced. The reasoning in Stubbings is particularly apt here. It suggests that the plaintiff’s claim should not now be permitted.
Summary
[69] I have held that the plaintiff cannot establish that the ill treatment he alleges
he was subjected to was “punishment” within article 10 of the 1688 Bill of Rights. It was not judicially imposed.
[70] Further, I have held the plaintiff has failed to show that article 10 gives rise to
a cause of action for public law compensation.
[71] Each of these points is fatal to the plaintiff’s second cause of action.
[72] A further insuperable difficulty faced by the plaintiff is that the Limitation Act applies by analogy to his claim, which is out of time. For those reasons, the plaintiff’s second cause of action cannot succeed and I strike it out.
Result
[73] I have struck out each of the plaintiff’s two remaining causes of action. The result is to bring his proceeding to an end.
[74] The timetable orders of Gendall J, set out in [10] of his minute of 12 March
2009, are vacated, as is the fixture for trial of this proceeding commencing 19 July
2010, five weeks allocated.
Costs
[75] My understanding is that the plaintiff is legally aided. Costs are reserved. Any party seeking an order has leave to apply.
Solicitors:
Cooper Legal, Wellington for the Plaintiff
Crown Law Office, Wellington for the Defendant
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