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Morrison v Financial Markets Authority

Morrison v Financial Markets Authority

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Case Copied 30 June 2023 77 min read

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-433

[2022] NZHC 1654

BETWEEN
LANCE DAVID MORRISON

First Plaintiff

RICHARD TIMOTHY BLACKWOOD
Second Plaintiff

AND

FINANCIAL MARKETS AUTHORITY

First Defendant

ATTORNEY-GENERAL

Second Defendant

Hearing: 17-18 October 2022

Appearances:

D H O’Leary for Plaintiff

T C Stephens, J B Orpin-Dowell for First Defendant A M Powell and F E S F Girgis for Second Defendant

Judgment:

30 June 2023

JUDGMENT OF McQUEEN J

Table of Contents
Para Nos

Background[3]

Criminal proceedings against plaintiffs[4]

The plaintiffs’ evidence[26]

The plaintiffs’ claim [36]

The issues[41]

First cause of action: Is a remedial private right of action in tort

available to the plaintiffs in relation to the prosecution’s failure to properly carry out disclosure obligations under the Criminal Disclosure Act?[43]
Criminal Disclosure Act 2008[44]
Criminal Procedure Act 2011[50]

MORRISON v FINANCIAL MARKETS AUTHORITY [2022] NZHC 1654 [30 June 2023]

Costs in Criminal Cases Act 1967[54]
Breach of a statutory duty[61]
The plaintiffs’ submissions[69]
The defendants’ submissions[77]
Analysis[78]
Conclusion: parliamentary intent to create a private right of action
cannot properly be inferred: first cause of action fails[115]
Causation and relief[117]
Final comment[118]

Second cause of action: Does the failure of the Attorney-General (on behalf of the Solicitor-General for the Crown Solicitor at Auckland) to ensure the FMA’s compliance with its disclosure obligations, or to

discontinue the criminal proceedings, found a private law right of action
in tort against the Attorney-General?[119]
Preliminary comments[119]
Plaintiffs’ submissions[120]
Attorney-General’s submissions[122]
Analysis – Failure to ensure FMA’s compliance with disclosure
obligations[125]
Analysis – Failure to discontinue the criminal proceedings[126]
Conclusion: second cause of action fails[133]

Third cause of action: Did the accepted breach of disclosure obligations breach the plaintiffs’ fair trial rights, and if so, are public law

damages required to properly vindicate the plaintiffs’ rights?[134]
Plaintiffs’ submissions[135]
Attorney-General’s submissions[139]
Analysis[142]
(a)General nature of the NZBORA rights at issue[143]
(b)Framework for consideration of a claim for NZBORA damages
based on breach of disclosure obligations[150]
(c)Did the disclosure failures breach the plaintiffs’ fair trial rights,

including the right of trial without undue delay?[181]

(d) Availability of public law damages in the present case[197] [209] Result[211]

Costs[212]

[1] This is a claim by Mr Morrison and Mr Blackwood (the plaintiffs) for general, special, exemplary, and public law damages. It arises from the Crown’s accepted disclosure failures during the prosecution of the plaintiffs for financial offending. The plaintiffs’ claim relies on a breach of a statutory duty to make criminal disclosure pursuant to s 13 of the Criminal Disclosure Act 2008 (the CDA) and an alleged breach of their fair trial rights under the New Zealand Bill of Rights Act 1990 (the NZBORA).

[2] The defendants in this proceeding are the Financial Markets Authority (the FMA), and the Attorney-General on behalf of the Solicitor-General, sued in relation to the acts of the Crown Solicitor at Auckland. The defendants resist the plaintiffs’ claim. They say that the plaintiffs’ causes of action premised in…

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.

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Details

Case: [2023] NZHC 1654
Decision Date: 30 June 2023

CaseChat Overview and Summary

In Morrison v Financial Markets Authority, Morrison and Blackwood sought damages against the Financial Markets Authority (FMA) and the Attorney-General for alleged breaches of statutory disclosure obligations and breaches of their fair trial rights under the New Zealand Bill of Rights Act 1990 (NZBORA). The plaintiffs sought both general and special damages. The court held that there was no private right of action in tort against the FMA for breach of statutory disclosure obligations, as the statutory regime already provided mechanisms for accountability, including awards of costs under the Criminal Procedure Act 2011 and Costs in Criminal Cases Act 1967. The court also held that the plaintiffs' right to a fair trial was breached by the FMA's failure to properly carry out its disclosure obligations, and that public law damages were appropriate to properly vindicate the plaintiffs' rights. Morrison and Blackwood were awarded damages of $10,000 and $15,000, respectively. The FMA and Attorney-General were successful in relation to the first and second causes of action, and costs were apportioned between the parties.

Orders