McVeagh v Attorney General of New Zealand HC Auckland Cp560-Sd00

[2001] NZHC 435

IN THE HIGH COURT OF NEW ZEALAND CP560-SD00
AUCKLAND REGISTRY

UNDER THE HABEAS CORPUS ACT 1640 (Imp)

BETWEEN JOHN DAVID McVEAGH
Plaintiff

AND THE ATTORNEY GENERAL OF NEW ZEALAND
First Defendant

AND THE AUCKLAND HIGH COURT
Second Defendant

Date of hearing: 23 May 2001

Date of judgment: 1 June 2001

Counsel: Plaintiff in person R Ellis for defendant

JUDGMENT OF O’REGAN J

[1] This case concerns an application by the defendant for an order that Mr McVeagh’s statement of claim be struck out or dismissed.

Mr MeVeagh’s claim

[2] In the statement of claim, Mr McVeagh seeks damages from the defendants under s 6 of the Habeas Corpus Act 1640 (Imp.) (“Habeas Corpus Act”). He argues that he wrote to the High Court on 15 February 1989 when he was in detention under the Mental Health Act 1969, asking for a writ of habeas corpus, and for leave under s 124 of the Mental Health Act to sue the Attorney General for wrongful committal. At this time there was also a pending application for Mr McVeagh’s release which had been adjourned on the basis that he was to be released gradually into the community.

[3] On 2 March 1989 a letter was sent by the Registrar of the Court on instruction from Barker J, acknowledging receipt of Mr McVeagh’s letter of 15 February 1989 and saying that Barker J had “declined your habeas corpus application and your s 124 application”. However, it recorded that he had directed that a report as to Mr McVeagh’s circumstances be prepared by an inspector, and continued “Your applications will be reconsidered when that report comes to hand”. Subsequently Mr McVeagh was detained again and the inquiry resulting from the adjourned application was resumed.

[4] Mr McVeagh alleges that the refusal of the Court to hear his application for habeas corpus violated s 6 of the Habeas Corpus Act and seeks damages.

[5] This application by Mr McVeagh is the latest in a long series of Court actions, relating to his detention under the Mental Health Act. There is a summary of the background in the judgment of Gallen J in Re M [1992] 1 NZLR 29 and I was also referred to Attorney General v McVeagh [1995] 1 NZLR 559 (CA), Attorney General v McVeagh [1995] 2 NZLR 385 (CA), McVeagh v Attorney General (High

Court Auckland, M2110-IM99, 17 April 2000, Robertson J), and McVeagh v Attorney General (CA) (CA90/00, 24 August 2000).

Relevant principles

[6] The principles relevant to determining a strike out application were outlined in Attorney General v Prince and Gardiner [1998] 1 NZLR 262. In that case the Court of Appeal said at p 267:

“A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not, or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed . . . The jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material . . . but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction.”

The Crown’s case

[7] The application to strike out is based on three grounds, namely:

• Section 6 of the Habeas Corpus Act applies only in circumstances where a person has been detained by the exercise of the royal prerogative, therefore has no relevance where the detention is under the exercise of a statutory power:

• The claim relates to an alleged action or inaction of a Judge of the High Court and judicial immunity therefore provides a complete defence to it;

• In particular, the Crown points out that the Court of Appeal recently upheld a decision to strike out a claim made by Mr McVeagh which raised issues about the manner in which his application for habeas corpus in 1989 was dealt with, and this strike out was upheld on appeal to the Privy Council. The proceedings are, in the light of the earlier proceedings referred to above, frivolous and vexatious.

[8] In submissions before me, Ms Ellis, counsel for the Crown, indicated that the Crown no longer relied on the judicial immunity ground, although it reserved its right to do so if the matter went to trial. I agreed that the hearing would proceed on that basis. The Crown did not make submissions in relation to the vexatious and frivolous contention. Accordingly the case before me turns entirely on the scope of s 6 of the Habeas Corpus Act.

Habeas Corpus Act 1640

[9] Section 6 of the Habeas Corpus Act was in force in New Zealand in 1989 by virtue of s 3(1) of the Imperial Laws Application Act 1988. I note that the Habeas Corpus Act 2001 which came into force on 26 May 2001, repealed s 6 of the Habeas Corpus Act. However, the repeal was not retrospective so it has no impact on this case. Ms Ellis did, however argue that the fact that s 6 had been repealed without replacement supported the Crown’s submission that it had no possible application to New Zealand in the 20th or 21st Centuries.

The text of s 6

[10] The text of s 6 is as follows:

“6. Every person committed contrary to this Act shall have an habeas corpus for the ordinary fees. Cause of detainer certified by sheriff, etc. and thereupon Court to proceed. Default by judge, etc. Damages-- And be it alsoe provided and enacted that if any person shall hereafter be committed restrained of his libertie or suffer imprisonment [by the order or decree of any such Court of Star Chamber or other court aforesaid now or at any time hereafter having or pretending to have the same or like jurisdiction power or authoritie to commit or imprison as aforesaid or by the command or warrant of the Kings Majestie his heires or successors in theire owne person or by the command or warrant of the councell board or of any of the lords or others of his Majesties privy councell] that in every such case every person so committed restrained of his libertie or suffering imprisonment upon demand or motion made by his councell or other imployed by him for that purpose unto the judges of the Court of Kings Bench or Common Pleas in open court shall without delay upon any pretence whatsoever for the ordinary fees usually paid for the same have forthwith granted unto him a writ of habeas corpus to be directed generally unto all and every sheriffs gaoler minister officer or other person in whose custody the party committed or restrained shall be [ and the sheriffs gaoler minister officer or other person in whose custody the property so committed or restrained shall be] shall at the return of the said writ and according to the command thereof upon due and convenient notice thereof given unto him [at the charge of the party who requireth or procureth such writ and upon securitie by his owne bond given to pay the charge of carrying back the prisoner if he shall be remanded by the court to which he shall be brought as in like cases hath beene used such charges of bringing up and carrying backe the prisoner to be alwailes ordered by the court if any difference shall arise thereabout] bring or cause to be brought the body of the said party so committed or restrained unto and before the judges or justices of the said court from whence the same writ shall issue in open court and shall then likewise certifie the true cause of such his deteinor or imprisonment and thereupon the court within 3 court dayes after such return made and delivered in open court shall proceed to examine and determine whether the cause of such commitment appearing upon the said return be just and legall or not and shall thereupon do what to justice shall appertaine either by delivering bailing or remanding the prisoner and if any thing shall be otherwise wilfully done or omitted to be done by any judge justice officer or other person aforementioned contrary to the direction and true meaning hereof that then such person so offending shall forfeit to the party grieved his trebble damages to be recovered by such meanes and in-such manner as is formerly in this Act limited and appointed for the like penaltie to be sued for and recovered.”

Legislative History

[11] The issues relating to the continued application of Imperial statutes in New Zealand was the subject of the Law Commission’s Report 1, published in 1987. The Commission made the following comment about the Habeas Corpus Act at p.16:

“Habeas Corpus Legislation

45. It is true that the 1640 enactment was of major constitutional importance especially, to quote its title, as an “Act . . . for taking away the Court commonly called the Star Chamber”. The provisions with that purpose essentially had their effect on enactment, and - quite apart from general common law principle - the Crimes Act 1961, s 9, of course, makes impossible any non-statutory criminal process. It would be unlawful and provide a basis for an action in damages (although some of the forfeitures provided for in the 1640 Act would not be available). The Act was repealed for the United Kingdom in part in 1888 and 1948 and the rest in 1968 as an ‘unnecessary enactment’ (Justices of the Peace Act 1968, Schedule 5).

Accordingly it is not surprising that the New South Wales Law Reform Commission proposed that only the provision relating to Habeas Corpus (s.6) should be retained; and that the Australian Capital Territory Commission did not propose even that retention: Report of the Law Reform Commission on the Application of Imperials Act (1967) 59 and 93; Imperial Acts in Force in the Australian Capital Territory (1973) 34. The Victorian Imperial Laws Application Act 1980 goes further and includes the whole of the Act. The report of the relevant parliamentary committee indicates its agreement with the New South Wales action (without however apparently taking the point that only one provision was being kept in force there) Report, para 44 above, 6).”

46. The reasons for the A.C.T conclusion were as follows -

The Law Reform Commission of New South Wales recommended the retention of this Act as one of major constitutional importance. We do not agree. The Act is historically significant, but in our opinion cannot have any practical importance at the present time. Its principal provision is s 6 which provided in effect that habeas corpus should be available to a person detained by special order of the King or of the Privy Council or a member thereof. It is clear that long before 1640 the Court of Queen’s Bench had decided, in habeas corpus proceedings, that such a special order was not a lawful justification for detention: Search’s Case, Howel’s Case (both 1588) 1 Leonard 70. In 1627 the Petition of Right declared such detention illegal. Nevertheless, in 1628 the Court of King’s Bench showed some reluctance to grant the writ in such a case. It was apparently this reluctance which led to the passing of the Act of 1640, which did no more than reaffirm the law. See Blackstone, Commentaries III, 115. The Act of 1640 can safely be, and should be, repealed.

47. As the explanatory note of the Bill indicates (pp.lvi and lxi), this area of law is in need of reform. Some work was done when the High Court rules were being completed and in the end a general provision to the following effect was included in the Judicature Act 1908:

“54C. Procedure in respect of habeas corpus—

(1) The practice, pleading and procedure in the High Court on an application for a writ of habeas corpus shall be the same as in England so far as the English practice, pleading and procedure are applicable to New Zealand and consistent with any other rules of the High Court and with the laws of New Zealand.

Subject to subsection (1) of this section, nothing in the High Court Rules affects the practice, pleading, or procedure in respect of an application for a write of habeas corpus.

Until that required work is done, we propose that s 6 (and only s 6) be retained.

[12] The work on the law relating to habeas corpus in New Zealand which was seen by the Commission as being necessary in its Report 1 was undertaken by the Commission itself and resulted in Law Commission Report 44. The Commission commented about the Habeas Corpus Act in the latter report as follows (at p 8):

Removing the Obsolete

21. Historically there existed types of habeas corpus writs other than habeas corpus ad subjiciendum. Since each of these has been rendered obsolete by changes in the law, the opportunity has been taken formally to abolish them; section 1.5. The draft Act would also not repeat the provisions in the Imperial Acts (s 6 of the 1640 Act and s 9 of the 1679 Act) that imposed personal liability on judicial officers.

The legislation proposed in Law Commission Report 44 has now been passed in a form very similar to that which the Law Commission suggested as the Habeas Corpus Act 2001.

What is the scope of s 6?

[13] The key issue in this case is the scope of s 6 of the Habeas Corpus Act. There is no dispute that if the section applies, then the case for striking-out fails, because I am required for the purposes of considering the strike out application to assume the facts as pleaded are correct, whether they are or not. The case for the Crown is that s 6 applies only in circumstances where a person has been committed, restrained, or imprisoned:

• by the order or decree of the Court of Star Chamber (which was dissolved by virtue of s 1 of the Habeas Corpus Act);

• by the order or decree of any other Court having, or pretending to have, the same or like jurisdiction, power or authority to commit or imprison (as the Court of Star Chamber had). Establishing what is meant by the reference to such Court requires consideration of the context and in particular s 2 of the Habeas Corpus Act which refers to Courts having similar jurisdiction as the Court of Star Chamber;

• by the “command or warrant of the King’s Majestic his heires or successors in theire owne person”’

• by the “command or warrant of the councell, board or any of the lords or others of His Majesties Privy Councell”

[14] When read in the context of the preamble (which is included in the New Zealand reprint of the Act), and the repealed sections 1-5 and 7-8 (which are set out in full in Halsbuty’s Statutes of England Volume III, 1929), it is clear that the Habeas Corpus Act was aimed specifically at the need to protect the subject from the exercise of the powers of detention and imprisonment of the Court of Star Chamber and similar Courts established by the King by exercise of royal prerogative or the exercise of other prerogative powers of detention or imprisonment. The Habeas Corpus Act did not create the remedy of habeas corpus, which is in ancient writ that existed well before 1640, nor did it purport to deal in any way with powers of detention exercised by the Courts of Justice, or of any power created under an Act of Parliament.

[15] Accordingly, the only circumstances in which s 6 of the Habeas Corpus Act could apply would be circumstances where a person has been imprisoned by an exercise of the royal prerogative or by a body which was established by an exercise of the royal prerogative. Importantly in the present context, s 6 does not apply where any detention or imprisonment has occurred by virtue of the exercise of a statutory power.

[16] Support for that interpretation of s 6 is derived from the decision in Re Marginal Lands Board, Commission of Inquiry into Fitzgerald Loan [1982] NZLR 395, where Davison CJ said at p 400:

“The prerogative power of the Crown exercised by the Governor General does not extend to enable the Governor General to create tribunals outside the established Courts for the purpose of inquiring into the guilt or innocence; or as to the civil rights of individuals, or as to the merits of a dispute between individuals. See the Habeas Corpus Act 1940, 16 Car I, c, 10, which abolished the Court of Star Chamber. Reference is made to that statute in Cock v Attorney General (1909) 28 NZLR 405, 423 where Williams J, delivering the judgment of the Court of Appeal said: ‘It is the inter-meddling by the Crown or the Executive in civil causes and matters between party and party that the Act is intended to prevent.’”

The latter reference was to sections other than s 6 of the Habeas Corpus Act. It nevertheless confirms the context as I have described it above.

[17] Counsel for the Crown also referred me to a number of other authorities in the UK, New Zealand and other Commonwealth jurisdictions dealing with the Habeas Corpus Act, but none of these has direct relevance to the issue before me.

Mr McVeagh’s arguments

[18] Mr McVeagh presented a number of arguments against this limited interpretation of s 6. In particular he argued that:

• The Habeas Corpus Act must have a function in the modern world, otherwise it would not have been included in the Imperial Laws Application Act 1988;

• It is necessary to interpret s 6 broadly to ensure that New Zealand complies with the United Nations Convention on Human Rights, Articles 2(3)(a) and 2(3)(b), because s 6 gives a statutory remedy for false imprisonment;

• Section 6 needs to be interpreted under existing conditions and in the modern world, and so it should be interpreted so as to apply to the exercise of a statutory power;

• References in the preamble to the Habeas Corpus Act to other Acts ensuring the freedom of the individual such as Magna Carta, the Civil and Criminal Justice Statute 1351 and the observance of Due Process of Law Statute 1368, indicate that s 6 should apply whenever there is a breach of any of those provisions, notwithstanding that its terms are expressed in narrower language;

• If there is any ambiguity in relation to the interpretation of s 6, then it is necessary to interpret it in the way which is consistent with the rights and freedoms contained in the New Zealand Bill of Rights Act, as required by s 6 of that Act.

[19] In addition, Mr MeVeagh argued that because of certain actions which he alleges were taken by Ministers prior to his committal under the Mental Health Act, the circumstances of his committal are such that they can be said to have been the exercise of prerogative powers by Ministers of the Crown, who are in the Executive branch of government and therefore the requirements of s 6 of the Habeas Corpus Act apply in relation to his detention. This argument was made after I had adjourned the Court to allow him to retrieve from his home two letters which he said supported this submission. After the adjournment he produced the copies which I accepted informally on the basis that I would take them into account in reaching my decision, having ascertained that Crown counsel had no objection to that course. While this was somewhat irregular procedurally, I considered it was justified in the circumstances of a plaintiff conducting his own case, and in view of the importance of giving Mr McVeagh every opportunity of putting his case as strongly as possible.

Section 6 must have some purpose

[20] Mr McVeagh argued that if s 6 is given the restricted interpretation suggested by the Crown, it has no real practical purpose and it should therefore be interpreted in a way which gives it such a purpose. Ms Ellis acknowledged that the section had only theoretical application in the modern environment unless there was a profoundly wayward Executive. She pointed to three possibilities:

• A Royal Commission of Inquiry setup under the royal prerogative that imprisons someone for contempt;

• War, insurrection or state of emergency in which the Executive wishes to detain rebels or aliens under a prerogative power;

• Statutory regulations that purport to authorise the detention or imprisonment of individuals.

[21] In each case the current practice is to use statutory powers. In the case of Royal Commissions this is the Commissions of Inquiry Act 1908, s 13B of which gives power to a commission which has a Judge or former Judge of the High Court as a member to imprison for contempt. In the second case, examples where there has been detention of people who were alleged to be “rebels” during the New Zealand wars, was almost always done under legislation which specifically limited the availability of habeas corpus. The third category also appears to be more of a theoretical than a genuine possibility because regulations purporting to authorise detention of individuals by a Minister which were not founded on an appropriate statutory authority would be likely to be found ultra vires in any event.

[22] In the result, it appears to me that the retention of s 6 of the Habeas Corpus Act at the time of the passing of the Imperial Laws Application Act 1988 was simply a matter of excessive caution, pending the more complete study of the law relating to habeas corpus which has now been undertaken by the Law Commission, and is the subject of Law Commission Report 44. The recommendation in that report not to repeat s 6 of the Habeas Corpus Act is characterised as “removing the obsolete” and it is clear that the repeal of the provision was not seen as having any constitutional significance at all. I conclude that s 6 of the Habeas Corpus Act is limited to circumstances where there has been an exercise of a prerogative power and that it is therefore of minimal practical significance.

[23] That conclusion does not have any impact on the way s 6 should be interpreted, however. It is plain that it does not apply to exercises of statutory power, and the mere fact that that means the section has no practical significance does not lead to a conclusion that the plain words should be given a strained interpretation. I therefore reject Mr McVeagh’s argument.

International Covenant on Civil and Political Rights.

[24] Mr McVeagh’s next argument is that s 6 of the Habeas Corpus Act should be interpreted as providing a remedy in the situation in which he finds himself because otherwise, New Zealand would be in breach of the International Covenant on Civil and Political Rights, specifically Article 2(3). That sub-clause says:

“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;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.”

[25] I do not think there is anything in this argument. First; there is no basis on which a Court can interpret s 6 of the Habeas Corpus Act in a way which is not tenable on a plain reading of the words of the section for the purpose of ensuring compliance by New Zealand with an international treaty. Secondly, there is no basis for alleging that the limited interpretation of s 6 proposed by the Crown puts New Zealand in a position where it breaches the Covenant, given the right to sue for false imprisonment (subject to the limitations of s 124 of the Mental Health Act 1969), which Mr McVeagh had, and to which reference was made by the Court of Appeal in its judgment in the 1995 case: [1995] 1 NZLR 558 at 567.

Interpreting s 6 in the modern world

[26] Mr McVeagh’s next argument was that s 6 of the Habeas Corpus Act needed to be interpreted in the light of developments in the laws since the time at which it was passed, and that it is therefore proper to interpret the section as applying to situations where habeas corpus is sought after the exercise of a power of detention or imprisonment by a public official, regardless of whether that is the exercise of a prerogative power or of a power conferred by statute. In effect, that contention would require the reading into the section of words which are plainly not there, and an interpretation which is plainly inconsistent with the statutory scheme of the Habeas Corpus Act, the purpose of which was to limit the exercise of prerogative powers of imprisonment and provide an effective remedy. I therefore reject this argument also.

Cross-reference to the preamble to the Habeas Corpus Act 1640

[27] Mr McVeagh also argued that s 6 of the Habeas Corpus Act should be interpreted in the light of the preamble to the Act, and that if such an approach to interpretation is taken, then the section can be said to apply to any breach of any statute which provides for freedom of the individual.

The preamble is included in the reprint of the Habeas Corpus Act in the New Zealand Statutes (reprinted Statutes Vo1.30 p 63), but it is clear from s 3(1) of, and the First Schedule to, the Imperial Laws Application Act 1988, that only s 6 itself was in force in New Zealand pursuant to the Imperial Laws Application Act. The reprinted statute contains a note that says that the preamble is reprinted with the substantive provision “in accordance with current practice”.

[29] The preamble refers to a number of statutes guaranteeing freedoms which remain in force in New Zealand, such as s 29 of the “Great Charter” (Magna Carta 1297 (Imp)) ss 3 and 4 of the Criminal and Civil Justice Statute 1351 (Imp), and s 3 of the Observance of Due Process of Law Statute 1368 (Imp).

[30] When all of the preamble is read in the context of the short title of the Habeas Corpus Act (“An Act for the Regulating [of] the Privie Councell and for taking away the Court commonly called the Star Chamber”) it is clear that it simply sets the scene for the principal provision of the Habeas Corpus Act, which was s 1, under which the Court of Star Chamber and all of its powers were dissolved. The references to the statutes establishing freedoms of the individual are set alongside references to the statutes under which Courts, such as the Court of Star Chamber, were set up and the historical fact that the powers of that Court had been abused, necessitating the legislation to abolish it, so that the abuses of power by the Court of Star Chamber and other such bodies could be curtailed. There is no rational basis on which s 6 can be interpreted as providing that where any breach of the statutes providing for freedom of the individual occurs then the provisions of s 6 would apply. Such a construction is not tenable in the light of the plain wording of the section and the clear intention of it, when read in the context of the rest of the Act. I therefore reject this argument by Mr McVeagh.

The New Zealand Bill of Rights Act 1990

[31] Mr McVeagh’s next argument was that s 6 of the Habeas Corpus Act is capable of more than one meaning, and accordingly s 6 of the New Zealand Bill of Rights Act 1990 requires the Court to prefer the meaning which is consistent with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990. As I have already indicated, I believe that the meaning of s 6 is clear and that no ambiguity exists. I do not believe that s 6 of the Habeas Corpus Act can be given a meaning which extends its ambit to apply in circumstances where detention or imprisonment has been undertaken under a statutory power, and accordingly this argument fails.

Detention was an exercise of prerogative power

[32] Mr McVeagh’s final argument was based on the letters which I allowed him to produce, having ascertained that Crown counsel had no objection. The first was a letter dated 18 June 1984 from Dr C F Whittington, a forensic psychiatrist with the Department of Justice District Probation Office in Auckland, addressed to Dr Basil James, the Director of Mental Health in Wellington. The second paragraph is relevant. It says:

“In view of the recommendations arising out of the joint Ministerial meeting with interested parties a few weeks ago, it was decided to make application for his [Mr McVeagh’s] direct committal to Lake Alice. This was effected on Friday 15 June 1984 and your formal approval is now requested.”

[33] The second letter was a Department of Health memorandum dated 3 October 1984 from the Assistant Director of Mental Health, Robert Fisher, to the Minister of Health. It deals with Mr McVeagh’s request for a judicial inquiry and includes the following paragraph:

“The committal of this man was a rather confused procedure. Dr James’ impression is that two doctors (one from Carrington, one from Oakley), were initially - after their examination of Mr McVeagh - of the opinion that he was not committable. This was conveyed to the patient’s mother. The following day, however, the prison psychiatrist, Dr Whittington, was surprised to learn that they had changed their minds and now agreed to committal.”

[34] Mr McVeagh asked me to find that this correspondence established that his committal was made by Ministers of the Crown (likely also to be Privy Councillors), without statutory authority and was therefore an exercise of power of the kind described in s 6 of the Habeas Coipus Act.

[35] The correspondence does not justify such a finding. The committal was made under the Mental Health Act; that is it was an exercise of a statutory power. What the nature of the recommendations from the joint Ministerial meeting were is quite unclear from the letter, but the text does not provide evidence that any action by the Ministerial amounted to a decision to detain Mr MeVeagh, or otherwise exercise any power which could be characterised as a prerogative power. Accordingly, this argument also fails. The only power to detain Mr McVeagh was that contained in the Mental Health Act which was a statutory power and there is no basis to conclude that he was detained in the exercise of any power other than that contained in the Mental Health Act. This is clear from the findings of Gallen J in Re M, at p.32.

Conclusion

[36] I conclude that the causes of action pleaded in the statement of claim are untenable and they cannot possibly succeed. Accordingly I grant the application by the defendant to strike out the proceedings.

Costs

[37] No application was made for costs. In the circumstances I do not consider an order for costs is appropriate and I therefore rule that costs should lie where they fall.