Roper v Taylor

[2023] NZSC 79

NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF THE WITNESS IDENTIFIED IN [13], [64] AND [65] OF THE JUDGMENT IN [2018] NZHC 2330 REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

 SC 16/2022
 [2023] NZSC 79

BETWEEN	ROBERT ROPER Appellant
AND	MARIYA ANN TAYLOR First Respondent
ATTORNEY-GENERAL Second Respondent

SC 23/2022
BETWEEN	ATTORNEY-GENERAL Appellant
AND	MARIYA ANN TAYLOR First Respondent
ROBERT ROPER Second Respondent

Court:	Winkelmann CJ, Glazebrook, O’Regan, Williams and William Young JJ
Counsel:	J F Mather for Appellant (SC 16/2022) and Second Respondent (SC 23/2022) G F Little for First Respondent A C M Fisher KC and E N C Lay for Second Respondent (SC 16/2022) and Appellant (SC 23/2022)
Judgment:	3 July 2023

JUDGMENT OF THE COURT

A        There are no costs orders in this Court.

BCosts in the Courts below are to be dealt with by those Courts.

____________________________________________________________________

REASONS

Introduction

1. Ms Taylor sought compensation for post-traumatic stress disorder caused by Mr Roper sexually assaulting and falsely imprisoning her in the late 1980s while both were employed by the Royal New Zealand Air Force (RNZAF).

2. The Court of Appeal, by majority, held that Ms Taylor’s claim for compensation for false imprisonment could proceed.[1]  The Court of Appeal also held that the false imprisonment claim was not covered by s 21B of the Accident Compensation Act 2001 (the Act).[2]   

   [1]Taylor v Roper [2020] NZCA 268, [2021] 3 NZLR 37 (French, Brown and Clifford JJ) [First CA judgment] at [198]–[209].

   [2]Taylor v Roper [2021] NZCA 691, [2022] 2 NZLR 671 (French, Brown and Clifford JJ) containing the addendum to the First CA judgment addressing s 21B of the Act: at [5]–[51].

3. Mr Roper and the Attorney-General, on behalf of the RNZAF, appealed to this Court against the Court of Appeal decision.  Ms Taylor cross-appealed.[3]

   [3]Roper v Taylor [2022] NZSC 62 (Glazebrook, O’Regan and Ellen France JJ).

4. This Court allowed the appeal and held that Ms Taylor could not sue for compensatory damages for false imprisonment and (tentatively) that s 21B would, in any event, be engaged.[4]

   [4]Roper v Taylor [2023] NZSC 49 (Winkelmann CJ, Glazebrook, O’Regan, Williams and William Young JJ) at [103].

5. In her cross-appeal Ms Taylor argued that the accident compensation regime did not apply to bar her claim for compensatory damages.  This Court dismissed the cross-appeal, holding that the ban in s 317(1)(a) and (b) of the Act applies.[5] 

Submissions on costs

[5]At [51].

1. Mr Roper submits that costs should follow the event in the normal manner.  He is legally aided and seeks costs equal to his full legal aid costs.

2. The Attorney-General does not seek costs in this Court. 

3. Ms Taylor submits that any entitlement Mr Roper may have to costs as a result of succeeding on appeal should be offset against exemplary damages awarded against him.  Ms Taylor submits further that she should be entitled to costs on a 3B basis in the High Court and the Court of Appeal.  

Our assessment

1. We make no order for costs.  While compensatory damages are not available, the claim for exemplary damages is still to be decided.[6]  The matter is therefore ongoing and there have been findings by the High Court of serious misconduct by Mr Roper.[7]

Result

[6]We are not to be taken as making any comment on the claim for exemplary damages.

[7]M v Roper [2018] NZHC 2330 (Edwards J) at [74]–[77].

1. There are no costs orders in this Court.

2. Costs in the Courts below are to be dealt with by those Courts.

Solicitors:
Albany Legal Ltd, Auckland for Appellant (SC 16/2022) and Second Respondent (SC 23/2022)
Chambers Craig Jarvis, Auckland for First Respondent
Crown Law Office, Wellington for Second Respondent (SC 16/2022) and Appellant (SC 23/2022)