IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-800
[2025] NZHC 3185
BETWEEN
ROBYN KATHLEEN STENT
First Plaintiff
AND
BARRY EDWARD BRILL
Second Plaintiff
AND
THE ATTORNEY-GENERAL
Defendant
Hearing:
10–11 March 2025
Counsel:
B E Brill for Plaintiffs
K Laurenson, S J Jensen and E J Cameron for Defendant
Judgment:
23 October 2025
JUDGMENT OF ISAC J
Introduction
[1] On 19 March 2020 New Zealand closed its borders as part of the public health response to the COVID-19 pandemic. New Zealand was largely shut-off from the rest of the world as it pursued an elimination strategy. Entry into New Zealand from April 2020 was significantly restricted, requiring those arriving to undertake a period of isolation. Subsequently, entry into a Managed Isolation and Quarantine Facility — or MIQ — became a general requirement for those arriving in the country.
[2] A year later, in April 2021, the Government announced the opening of quarantine free travel — or QFT — between New Zealand and Australia. This became known as the trans-Tasman bubble.
STENT v ATTORNEY-GENERAL [2025] NZHC 3185 [23 October 2025]
[3] The plaintiffs, Mr Barry Brill and Ms Robyn Stent, wished to take advantage of quarantine free travel to visit family living in Western Australia. On 17 July 2021 they boarded a flight to Perth without a return ticket.
[4] Five days later, following cross-state transmission of COVID-19 in Australia, the New Zealand government suspended quarantine free travel with Australia. Travellers from Western Australia were told they could return to New Zealand on repatriation flights for a period of seven days. However, for reasons I will come to, the plaintiffs chose not to return during this window.
[5] Subsequently they found it difficult to return. They did not wish to enter airports in New South Wales or Victoria, where there were active outbreaks of the Delta strain of the virus. Nor did they have any desire to enter MIQ on returning to New Zealand using a “red flight”. As a result they remained in Australia for eight months.
[6] The plaintiffs now claim that their right to enter New Zealand under s 18(2) of the New Zealand Bill of Rights Act 1990 was unreasonably limited by the Government’s decision to suspend quarantine-free travel with Australia. They seek public law damages. They also claim they were falsely imprisoned in Australia, and that the Minister for COVID-19 Response breached a statutory duty actionable in tort to facilitate their right of return.
[7] In this judgment I first resolve preliminary and procedural issues before turning to consider the evidence and each cause of action. I will set out the relevant background and my factual findings when dealing with the plaintiffs’ claim under the Bill of Rights.
The appropriate defendant
[8] When the plaintiffs filed the proceeding in December 2022 they named the COVID-19 Response Minister as the defendant. However, that portfolio was disestablished on 1 February 2023, when the Governor-General revoked
the appointment 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.
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AGLC
Stent v Attorney-General [2025] NZHC 3185
Case
[2025] NZHC 3185
Decision Date
CaseChat Overview and Summary
In Stent v Attorney-General, the plaintiffs, Mr Barry Brill and Ms Robyn Stent, brought an action against the New Zealand Government for public law damages and other relief arising from their inability to return to New Zealand during the COVID-19 pandemic. The plaintiffs had travelled to Western Australia under the trans-Tasman travel bubble but found their return delayed due to border restrictions. They claimed their right to enter New Zealand under s 18(2) of the New Zealand Bill of Rights Act 1990 was unreasonably limited, resulting in an unlawful derogation of their rights. They further claimed they were falsely imprisoned in Australia and that the Minister for COVID-19 Response breached a statutory duty to facilitate their right of return.
The Court found that the plaintiffs’ right to enter New Zealand was limited by the Government’s border measures but these limitations were not unreasonable. The evidence showed that the plaintiffs chose to continue their holiday in Australia despite the Government’s announcement that quarantine-free travel would be suspended. They were aware of the potential for travel disruptions and chose to accept the risk of extended travel. The Court concluded that the delay in the plaintiffs’ return was due to their own choices and preferences rather than Government action. The Court also dismissed the claim for false imprisonment, finding that the plaintiffs were not totally restrained in Australia and were not confined there by Government action. Finally, the Court held that the Minister did not owe the plaintiffs a private law duty to ensure that orders made under the COVID-19 Public Health Response Act 2020 were justified limits on their rights, and that there was no basis for an award of damages. The plaintiffs’ claims were dismissed and costs were awarded to the defendant.