Taylor v Attorney-General
[2022] NZHC 3170
•30 November 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-032
[2022] NZHC 3170
UNDER the Prisoners’ and Victims’ Claims Act 2005 IN THE MATTER OF
an appeal from the Victims’ Special Claims Tribunal
BETWEEN
SAM TE HEI
Appellant
AND
IDA HAWKINS
Respondent
AND
ATTORNEY-GENERAL
Intervener
Hearing: 13 June 2022 Appearances:
A J Ellis for the Appellant
N M Pender for the Respondent
J B Watson for the Attorney-GeneralJudgment:
30 November 2022
JUDGMENT OF PALMER J
Counsel/Solicitors
A J Ellis, Barrister, Wellington
N M Pender, Barrister, Wellington Nat Dunning Law, Wellington
Crown Law Office, Wellington
TE HEI v HAWKINS [2022] NZHC 3170 [30 November 2022]
Summary
[1] Mr Sam Te Hei was convicted of murdering Mrs Ida Hawkins’ daughter. After he was awarded compensation for breach of his rights in prison, the Victims’ Special Claims Tribunal (the Tribunal) awarded Mrs Hawkins $15,000 compensation for emotional harm under the Prisoners’ and Victims’ Claims Act 2005 (the Act). Mr Te Hei appeals on five grounds. Mrs Hawkins cross-appeals the decision not to award her exemplary damages.
[2] Mrs Hawkins was a victim entitled to make a claim under the Act. She suffered loss for which she did not receive effective redress. And the procedural defects Mr Te Hei complains of, lack of a fair process, an error in one finding, and invalid appointment of the Tribunal, are not sustained. But the Act requires that Mrs Hawkins must have a claim disclosing a cause of action for which damages are payable under the general law. The Tribunal did not rigorously analyse the merits of her claim. The Acts it identified do not provide causes of action upon which Mrs Hawkins can sue at general law. Assault and battery are common law causes of action but lie at the suit of the person assaulted or battered, not a third party. A family member can pursue a cause of action that would have been available to a deceased under the Death by Accidents Compensation Act 1952 (DBAC Act), but only damages for pecuniary benefits are available. Accordingly, Mrs Hawkins is not entitled to damages for emotional harm on the basis found by the Tribunal. Neither is she entitled to exemplary damages, for similar reasons.
The Tribunal’s decision
[3] The Act requires compensation paid to prisoners for breach of their rights by the Crown to be paid to the Crown in trust, administered by the Secretary for Justice. Under s 46 a claimant is able to claim funds from the Tribunal if: they are a victim of the relevant prisoner; suffered injury, loss or damage for which they have not received effective redress; and they have a cause of action for damages payable, under the general law, against the offender based on acts or omissions done in committing the offence.
[4] On 19 November 1987, Mr Te Hei and another man were convicted of murdering 16-year-old Colleen Burrows and sentenced to life imprisonment. On 14 August 2020, by way of a settlement with the Crown, Mr Te Hei received $17,664 in compensation for breaches of his rights while held under the behavioural management regime of the Department of Corrections. That compensation was paid into the Victims’ Claims Trust account. Claims by victims were required to be made by 8 March 2021. On 16 November 2020, Mrs Hawkins, Colleen’s mother, made a claim.
[5] On 10 November 2021, Judge C S Blackie issued the Tribunal’s decision.1 Finding that the requirements of the Act were established, he awarded $15,000 to Mrs Hawkins for emotional harm.2
The appeal
[6] Mr Te Hei appeals the decision to award the payment. He seeks reversal of the payment of damages, a declaration that the hearing process was unfair, quashing of the finding that Mr Te Hei was a Mongrel Mob member at an unspecified time, and costs. Mrs Hawkins opposes the appeal and cross-appeals the decision not to award exemplary damages. The Attorney-General was granted leave to intervene, by consent, in relation to the ground of appeal concerning judicial appointments.
[7] One of the grounds of Mr Te Hei’s appeal was that the Tribunals Division of the Ministry of Justice unlawfully amended the definition of victim on the claim form and thereby unfairly took sides in the dispute, enticing Mrs Hawkins into claiming compensation to which she was not entitled. At the hearing, as I recorded in a minute at the time, Dr Ellis withdrew that claim on the basis he would replead it in a wider omnibus claim he was preparing. There was no objection to the claim being withdrawn in these proceedings. After preliminary observations about the availability of Tribunal decisions, I deal with the main ground of Mr Te Hei’s appeal first and then the cross-appeal, which is related. I then deal with the other grounds of appeal.
1 Hawkins v Te Hei [2021] NZVSC 31.
2 At [26].
Tribunal decisions
[8] In preparing for the hearing, counsel had difficulty accessing previous decisions of the Tribunal. The Case Manager of the Tribunals Unit of the Ministry of Justice maintains that the Act only requires the Tribunal to release decisions to the parties, apparently relying on s 60 of the Act which requires release to the victims, prisoners and Secretary for Justice. The Service Manager of the Tribunals Unit told Crown Law that previous chairpersons of the Tribunal adopted a policy of not publicly releasing the Tribunal’s decisions because of the sensitive nature of the claims.
[9] As a preliminary point, Ms Pender submits that the Tribunal’s approach to the public availability of its decisions is inconsistent with its statute. A global approach of not releasing decisions except where required is not lawful. Dr Ellis agrees with Ms Pender that the absence of public availability of decisions of the Tribunal, chaired by a Judge, is most unhelpful.
[10] The Tribunal’s decisions cannot be said to be confidential on a blanket basis. The Tribunal’s decisions concern the allocation of funds held on trust by the Crown. The funds are usually distributed on the basis of conduct that has been the subject of criminal proceedings which, by default, are subject to the principle of open justice. That principle supports the rule of law and also applies to a Tribunal exercising judicial functions, subject to its governing legislation. Section 14 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) protects everyone’s right to freedom of expression, including the right to receive information. Under s 5, that right may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Section 41(1) of the Act here allows the restriction of publication of proceedings. But the balancing required in s 41(2) must be undertaken on a case-by-case basis. The requirement in s 60 to release decisions to the prisoners, victims and the Secretary does not require or authorise the Tribunal to withhold its decisions publicly.
[11] In light of those principles and rights, the Tribunal’s decisions should be released publicly. The exception is if the Tribunal, after carefully weighing all the facts of a particular case, decides to make a suppression order under s 41 of the Act.
In making that decision the Tribunal is required, by s 41(2), to have regard to the interests of every person affected, including the privacy of a victim and the public interest. That provision is predicated on publication being the default presumption.
Relevant law
The Prisoners’ and Victims’ Claims Act 2005
[12]Section 46 of the Act requires, relevantly:
46 Tribunal to determine group of claims received
…
(2)The Tribunal must not accept a victim’s claim unless satisfied, on the balance of probabilities, that—
(a)the claimant is a victim of the offender; and
(b)the victim has, through or by means of the offence, suffered injury, loss, or damage for which the victim has not received, and is not to receive, effective redress; and
(c)the claim discloses a cause of action that is, under the general law, one for which damages are, in the particular case, payable.
[13]In addition:
(a)Section 47(1) requires the Tribunal to determine any amounts to be paid to victims “without taking into account the amount of money actually held in the account for the offender”.
(b)Section 47(2) requires the Tribunal to “apply the general law relating to the awarding of damages” in determining whether to order damages or exemplary damages under s 46(3).
[14]Sections 4, 8 and 9 of the Act contain relevant definitions:
immediate family, in relation to a victim,—
(a)means a member of the victim’s family, whānau, or other culturally recognised family group, who is in a close relationship with the victim at the time of the offence; and
(b)to avoid doubt, includes a person who is—
…
(iv) a parent of the victim or a person who is, or was, the spouse, civil union partner, or de facto partner of a parent of the victim; or
offence, in relation to a victim, means an offence against an enactment—
(a)committed against the victim (or committed against a child or young person of whom the victim is a parent or legal guardian); or
(b)through which, or by means of which, the victim (or a child or young person of whom the victim is a parent or legal guardian) suffered physical injury or emotional harm, or loss of, or damage to, property; or
(c)that resulted in the death of a member of the victim’s immediate family, or in a member of the victim’s immediate family being incapable.
8Victim
(1)In this Act, victim means—
(a)a person against whom an offence is committed by another person; and
(b)a person who, through, or by means of, an offence committed by another person, suffers physical injury, or loss of, or damage to, property; and
(c)a parent or legal guardian of a child, or of a young person, who falls within paragraph (a) or (b), unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
(d)a member of the immediate family of a person who, as a result of an offence committed by another person, dies or is incapable, unless that member is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned.
…
9Victim’s claim
In this Act, victim’s claim means a claim for damages or exemplary damages—
(a)made by or on behalf of a victim; and
(b)made against an offender; and
(c)based on acts done or omitted to be done by the offender in committing the offence.
Case law applying the Act
[15] In Reekie v Claimants A and B, Moore J held that “[i]t will not be sufficient to make a determination of liability, particularly in a claim for exemplary damages (for which under the general law there exists a high threshold) without a robust analysis of the law and the facts”,3 and that the Tribunal has “a duty to rigorously analyse the merits of a claim for damages”. That is because the Act “exposes offenders who suffer wrongful treatment in prison to a summary procedure by which victims may claim substantial damages against them greater than the amount of money paid to an offender as compensation”.4 The Court agreed with the Tribunal’s conclusion there that Mr Reekie’s offending disclosed the tort of battery. However, the Court said that the principles relevant to assessing damages should have been weighed by the Tribunal.5
[16] On the same day as the Tribunal’s decision was released in this matter, the High Court issued a judgment in Preston v Victims’ Special Claims Tribunal, where Mr Preston had murdered his estranged wife.6 Justice Cooke held that their children fell within s 8(1)(a) but not s 8(1)(d).7 In doing so he distinguished between “primary victims” and “secondary victims”, using terminology used by the Court of Appeal in Van Soest v Residual Health Management Unit.8 He held that no cause of action had been identified by the Tribunal, nor its elements applied to the facts of that case, so no cause of action had been established.9 Justice Cooke also concluded, on the basis of Van Soest, that in relation to negligence as a cause of action, a claimant under the Act has to prove that the death of the primary victim has manifested itself in injury from a recognisable psychiatric disorder or illness in the secondary victim, who is making the claim.10 Justice Cooke held:
[74] As indicated the Tribunal should not adopt a pedantic approach to the requirements for establishing a cause of action and awarding damages. The
3 Reekie v Claimants A and B [2018] NZHC 2434, [2018] NZAR 1685 at [41].
4 At [42].
5 At [45].
6 Preston v Victims’ Special Claims Tribunal [2021] NZHC 3043.
7 At [40]–[41].
8 At [43].
9 At [58] and [63].
10 At [69].
Tribunal applies an inquisitorial approach. But it still must apply the law. To have a claim there must be a psychiatric disorder or illness arising from the wrongdoing. That was not established here. For that reason the claim should have been dismissed.
[17]In Van Soest, a Full Court of the Court of Appeal held that:11
… a claim by a secondary victim for mental suffering caused by awareness of death or injury to a primary victim through the negligence of the defendant will not lie unless the effect on the mind of the secondary victim has manifested itself in a recognisable psychiatric disorder or illness.
[18] This was further approved by the Court of Appeal in Hobson v Attorney- General,12 where Young P also adopted the requirement that the plaintiff must have been present at the event or its immediate aftermath.13
Exemplary damages
[19] The overlap between claims for exemplary damages and the accident compensation regime has gone through different phases:
(a)In Donselaar v Donselaar, the Court of Appeal confirmed that the accident compensation legislation left the Courts free to recognise and develop exemplary damages as a remedy for personal injury.14
(b)In Daniels v Thompson, the Court held that exemplary damages would not be awarded where the conduct was, or could be, also subject to criminal proceedings.15
(c)Parliament reversed that in what is now s 319 of the Accident Compensation Act 2001. It provides that nothing in that Act prevents any person from bringing proceedings for exemplary damages for conduct by the defendant that has resulted in personal injury covered by the Act. That is explicitly stated to be so even though the defendant
11 Van Soest v Residual Health Management Unit [2000] 1 NZLR 179 (CA) at [65]–[66].
12 Hobson v Attorney-General [2007] 1 NZLR 374 (CA) at [82]–[85], [140]–[142] and [157]–[158].
13 At [141].
14 Donselaar v Donselaar [1982] 1 NZLR 97 (CA) at 107.
15 Daniels v Thompson [1998] 3 NZLR 22 (CA).
was convicted of an offence involving the conduct.16 But the Court may have regard to the nature of any penalty imposed on the defendant for that offence.17
(d)In Couch v Attorney-General, the Supreme Court held that a claim for exemplary damages in cases of personal injury does not depend on a right to compensatory relief and is not barred by the Accident Compensation Act.18
[20] Section 3(2)(a) of the Law Reform Act 1936 prohibits posthumous claims for exemplary damages. But s 4 of the DBAC Act allows family members to bring an action that a deceased, who died by any wrongful act, would have been entitled to bring, had they not died, even if the circumstances causing the death amounted to a crime. In relation to damages, s 7(1) provides:
7 Amount of damages
(1)In every such action the court may award—
(a)such damages as it may think proportioned to the injury resulting from the death to the person or persons for whose benefit the action is brought; and
(b)damages in respect of the amount of actual pecuniary benefit which the person or persons for whose benefit the action is brought might reasonably have expected to enjoy if the death had not occurred, whether or not the person or persons have been either wholly or partially dependent upon the deceased person before his death; and
(c)damages in respect of the medical and funeral expenses of the deceased person if the expenses have been incurred by the person or any of the persons by whom or for whose benefit the action is brought.
[21] In Pou v British American Tobacco (New Zealand) Ltd, on the basis of the legislative history, the Court of Appeal held that claims under the DBAC Act are confined to pecuniary benefits which the claimants might reasonably have expected to enjoy.19
16 Accident Compensation Act 2001, s 319(2)(a).
17 Section 319(3).
18 Couch v Attorney-General (No 2) [2010] 3 NZLR 149 at [71] and [102]–[150].
19 Pou v British American Tobacco (New Zealand) Ltd [2006] 1 NZLR 661 (CA) at [34]–[38].
[22] In relation to the Act at issue here, in Reekie v Claimants A and B, the High Court noted that claims for compensatory damages arising out of personal injury are barred under the general law so claims have to be for exemplary damages, which are committed intentionally or with subjective recklessness.20 The mental elements of the offending and the sentencing judge’s comments about culpability are likely to be relevant, and regard must be had to the imposition of any criminal penalty, among other considerations.21
Issue 1: Is Mrs Hawkins a victim entitled to damages for emotional harm?
Tribunal’s decision
[23]The Tribunal held:
(a)It was satisfied Mrs Hawkins is a victim within s 8(1)(d) of the Act.22
(b)“[T]he ability to claim damages for emotional harm arises from s 4 of the Act”. After quoting paragraph (b) of the definition of “offence”, The Tribunal said:
Emotional harm is clearly provided for as a remedy that falls not only within the statute but also within the general law, including the Health and Safety in Employment Act and the Sentencing Act. The Claimant is a victim of an offence committed by the Respondent.
…
I am satisfied that the Claimant discloses a cause of action that is, under general law, including statue [sic], one for which damages are payable. Also at common law there was a cause of action – assault and battery – there were statutory provisions under s 4 of the Death by Accident Compensation Act which preceded the Accident Compensation Legislation that originated in 1972. In this case, the assault resulted in the death of the Claimant's (as a victim) daughter. Damages would have been available under common law.
20 Reekie v Claimants A and B, above n 3, at [46]–[47].
21 At [51]–[52].
22 Hawkins v Te Hei, above n 1, at unnumbered paragraphs after [20] and before [22].
(c)Mr Te Hei was responsible for the death of Colleen.23 His brutality and degree of violence directly led to Mrs Hawkins’ degree of emotional harm. There was a comparison with Payne v Tuhoro, where the respondent was convicted of the murder of a claimant’s 16-year-old son and a victim was awarded $15,000.24
(d)It was satisfied Mrs Hawkins was entitled to claim compensation as defined by section 4 of the Act and that she had not received effective redress. $15,000 was awarded for emotional harm.25
Submissions
[24] Dr Ellis, for Mr Te Hei, submits the applicant is not a primary victim but a secondary victim. He submits a secondary victim is not entitled to damages for emotional harm and should have received no compensation. If this is similar to reparations under the Sentencing Act 2002, then there is double punishment because Mr Te Hei has already been sentenced to life imprisonment.
[25]Ms Pender, for Ms Hawkins, submits:
(a)There is no statutory concept of a primary and secondary victim. There is no inherent hierarchy of victims. The Court of Appeal used the “secondary victim” terminology in Van Soest in a very generic sense and for a different purpose in relation to tort claimants, not victims of crime. Damages for emotional harm are available to anyone who qualifies as a victim under the Act, whether it is (a) or (d).
(b)Preston involved negligence and required a high threshold of witnessing the harm or being affected in the immediate aftermath.26 She invites me not to follow Preston in relation to the definition of
23 At [22].
24 Payne v Tuhoro [2021] NZVC 21.
25 Hawkins v Te Hei, above n 1, at [26].
26 Preston v Victims’ Special Claims Tribunal, above n 6, at [71].
victim but to find that Ms Hawkins qualifies as a victim under s 8(1)(d) on a plain reading of that provision.
(c)Her approach is consistent with the reparation provisions of the Sentencing Act, which are compensatory and apply to a victim and do not require independent proceedings. Section 38(2) specifically preserves civil claims, which includes damages for emotional harm for intentional acts.
(d)Alternatively, the law of bereavement damages and solatium has been neglected in New Zealand compared with overseas jurisdictions in which can be discerned a modest global trend towards recognition.27 If that is the only way in which Mrs Hawkins is entitled to compensation then her evidence strongly suggests she may have suffered post- traumatic stress disorder (PTSD) which would call for further investigation and consideration by the Tribunal.
Was Mrs Hawkins a victim?
[26] Mrs Hawkins is a parent of Colleen Burrows and, accordingly, is a member of her “immediate family” under s 4(b)(iv) of the definition of that term in the Act. Accordingly, Mrs Hawkins is “a member of the immediate family of a person who, as a result of an offence committed by another person, dies”.28 Mrs Hawkins is entitled to claim as a “victim”, as defined by s 8(1)(d) of the Act.
[27] To the extent that Preston is inconsistent with that reasoning, I do not follow it. The Van Soest terminology of primary and secondary victims in tort law is not helpful in elucidating the definition of victim in this legislative context. Mrs Hawkins may also qualify as a victim under the definition of s 8(1)(c) but that was not addressed by the Tribunal and was not argued before me. The Tribunal was properly satisfied that Mrs Hawkins is a “victim” of the offender, under s 8(1)(d), for the purposes of the first required element of s 46(2).
27 Iain Field “In mourning of bereavement damages” (2014) 22 TLJ 95 at 114.
28 Prisoners’ and Victims’ Claims Act 2005, s 8(1)(d).
Did Mrs Hawkins have a cause of action?
[28] The Tribunal said that Mrs Hawkins’ ability to claim compensation arises from the definition of “offence” in s 4. That section recognises that emotional harm is one of the conditions which a victim may suffer, by means of an offence. Emotional harm, as part of the definition of “offence”, is relevant to the second required element of s 46(2) of which the Tribunal must be satisfied – the existence of loss or damage. But it does not, of itself, satisfy the third element of s 46(3) – a cause of action for which damages are payable under the general law.
[29] The Tribunal’s reasoning is largely conclusory. It did not “rigorously analyse” the merits of a claim in damages in the way the High Court said in Reekie is required.29 The Tribunal stated the “emotional harm is clearly provided for as a remedy”.30 But emotional harm is not a remedy. There needs to be a cause of action for which damages are payable for emotional harm. The definition of “offence” in s 4 of the Act does not give rise to a cause of action for which damages for emotional harm are payable.
[30] It is not clear to which provisions of the Health and Safety at Work Act 2015 (the successor to the Health and Safety in Employment Act 1992) or the Sentencing Act 2002 the Tribunal was referring. The former Act imposes duties on employers to ensure health and safety of workers and workplaces. It creates offences and enables a regulator to bring proceedings. The latter Act empowers a court to make an order or sentence of reparation for criminal offences. But neither Act creates “causes of action” upon which Mrs Hawkins can sue for damages at general law. Section 38(2) of the Sentencing Act provides that a sentence of reparation does not affect any right to recover damages by civil proceedings; but it does not create a cause of action. The Tribunal’s decision in Payne v Tuhoro does not add anything to the above points.
[31] Assault and battery are common law causes of action in tort. But they lie at the suit of the person assaulted or battered. Third parties cannot claim damages for
29 Reekie v Claimants A and B, above n 3, at [42].
30 Hawkins v Te Hei, above n 1, at unnumbered paragraph below [20].
the assault and battery of another.31 The DBAC Act allows a family member to pursue any cause of action that would have been available to a deceased who died by a wrongful act. So, under the DBAC, Mrs Hawkins could pursue an action for assault and battery that could have been pursued by her daughter. But according to the Court of Appeal in Pou v British American Tobacco (New Zealand) Ltd, only damages for pecuniary benefits would be available, not damages for emotional harm.32
[32] The Tribunal’s analysis does not identify a cause of action giving rise to damages as a remedy for emotional harm. Mr Te Hei’s appeal succeeds for that reason. If Mrs Hawkins believes a claim for bereavement damages on the basis of PTSD would succeed, she could pursue that. That claim was not before the Tribunal and is not part of this appeal. But the normative Australian academic authority inventively cited by counsel suggests that such a claim would have no better prospects of success than the above analysis suggests.33
Issue 2: Are exemplary damages available?
[33]In relation to exemplary damages, the Tribunal held:
(a)the right to claim exemplary damages is preserved by what is now s 319 of the Accident Compensation Act 2001;34 and
(b)the threshold for exemplary damages had not been reached here because Mrs Hawkins was not the actual victim but an indirect victim.35
[34]Mrs Hawkins cross-appeals that finding.
Submissions
[35] Ms Pender submits that Ms Hawkins should receive exemplary damages to address the perversity that Mr Te Hei is better off financially if his victim dies. Under
31 See for example Stephen Todd another others Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019) at 1279.
32 Pou v British American Tobacco (New Zealand) Ltd, above n 19, at [34]–[38].
33 Iain Field, above n 27, at 112.
34 Hawkins v Te Hei, above n 1, at unnumbered paragraph below [20].
35 At [24].
s 7 of the DBAC Act damages are proportional to the injury and it is open to interpret s 7(1) as potentially enabling a claim for emotional harm. There is no case law about whether that includes exemplary damages, which are not expressly excluded. It makes no sense to deny damages just because Ms Burrows died. The Court has inherent jurisdiction to recognise the right of a victim to exemplary damages. That relief could be attached to an action under the DBAC Act or by recognising such a claim at common law.
[36] Dr Ellis submits this is the wrong case for Ms Pender’s interesting research to be applied, because it rests on compensation sought from money that is held in a discriminatory way. It is always unfortunate when a potential injustice might befall someone in a civil case. But Mr Te Hei is a victim too, of obnoxious discriminatory legislation and having his compensation for breach of his rights taken away, which creates a disincentive to apply for compensation at all.
Exemplary damages
[37] As noted above, Ms Pender is correct that damages may be available to a victim under the Act by operation of s 319 of the Accident Compensation Act and the DBAC Act, even where the same conduct gave rise to a criminal penalty, as long as the nature of the penalty is taken into account. But, as noted above, the Court of Appeal in Pou v British American Tobacco (New Zealand) Ltd determined that such claims are confined to damages for pecuniary benefits which the claimants might reasonably have expected to enjoy. I am bound by that authority and it answers the submission. I dismiss the cross-appeal.
Issue 3: Was the process unfair?
[38] Mrs Hawkins engaged counsel after her claim was met with a legal response. In doing so, she was allowed to file a late affidavit.
[39] Dr Ellis submits the Tribunal’s process unfairly favours the victim because it is much easier for a victim to receive legal aid than an offender. He complains that Mrs Hawkins being allowed to file a late affidavit exemplifies how the whole process is unfair. Ms Pender submits there is no basis for the claim that the Tribunal process
was tainted. Mrs Hawkins filed reply submissions and an affidavit which directly responded to issues raised in Mr Te Hei’s submissions. There was no prejudice.
[40] Section 45 of the Act provides that the Tribunal may regulate its own procedures. Cooke J in Preston held that “an overly formalistic approach” should not be adopted to the question of when a document is “filed” with the Tribunal.36 He also held that not granting an extension there would have been inconsistent with the purpose of facilitating the streamlined processes contemplated by the Tribunal.37
[41] I do not consider the Tribunal’s extension was granted unfairly. Mr Te Hei was represented by experienced counsel. Mrs Hawkins was entitled to acquire experienced counsel too, as she did. It would have been churlish, and possibly inconsistent with the principles of natural justice (which may be the same thing), to deny her the opportunity to file a late affidavit. Mr Te Hei’s counsel filed further submissions in reply, to which no objection was taken. Mr Te Hei did not seek to file any evidence in response to Mrs Hawkins’ affidavit. There was no prejudice to Mr Te Hei. This ground of appeal fails.
Issue 4: Did the Tribunal err in finding Mr Te Hei was a Mongrel Mob member?
[42]In its report, the Tribunal stated:
[12] … The Respondent was a member of the Mongrel Mob. The Claimant reports ongoing harassment form other Mongrel Mob members following the conviction of the Respondent. This contributed to her living a reclusive life.
…
[17] Dr Ellis goes on to express concern that the Claimant lacks detail as to her loss of sleep, continuous crying, emotional breakdown and depression, and that the Tribunal is expected to believe in mere unsupported allegation that the Respondent was a member of the Mongrel Mob. Dr Ellis says these allegations are unsupported by a shred of evidence. The claim should be dismissed for vagueness and want of sufficient details to fairly defend.
[18] … The Parole Board decisions confirms two points:
(a)That the facts of the case were 'appalling and vicious'.
(b)The Respondent was indeed a member of the Mongrel Mob.
36 Preston v Victims’ Special Claims Tribunal, above n 6, at [29].
37 At [34].
[43] Dr Ellis submits there was no evidence that Mr Te Hei was a member of the Mongrel Mob after his conviction (though there was at the time of the offending) or that he was responsible for harassing the victim. The Parole Board was not making a finding of fact. Those issues should not be before the Tribunal and were irrelevant and therefore inadmissible under s 7 of the Evidence Act 2006.
[44] Ms Pender submits that s 59 confers a wide power on the Tribunal to receive evidence. Mr Te Hei’s membership of the Mongrel Mob was raised in evidence by Mrs Hawkins and is well documented in Parole Board decisions. Mr Te Hei filed no evidence to the contrary. The findings gave rise to no inference about damages. And, in any case, the Tribunal awarded Mrs Hawkins the same amount as it awarded in a non-gang context in Payne v Tuhoro.38
[45] I consider there is nothing in this objection either. Section 59 of the Act provides:
A Tribunal may receive as evidence any statement, document, information, or matter that, in the Tribunal's opinion, may help the Tribunal to determine a victim's claim, whether or not it would be admissible in a court of law.
[46] The Tribunal here took into account Mrs Hawkins’ evidence which had not been contradicted by Mr Te Hei, even though he had the opportunity to do so. The information was relevant and properly treated by the Tribunal. This ground of appeal fails.
Issue 5: Was the appointment of the Acting Judge unlawful?
The appointment
[47] Judge Blackie was appointed to the Tribunal while an Acting District Court Judge. His appointment as an Acting Judge was renewed for 2021 and the Tribunal report was issued that year. Section 58 of the Act provides:
38 Payne v Tuhoro, above n 24.
58 Tribunals
(1)Every Victims' Special Claims Tribunal consists of a District Court Judge designated for the purpose of this subpart by the Chief District Court Judge.
(2)The Judge must be designated from a panel of District Court Judges maintained by the Chief District Court Judge.
…
[48] The Act, but not s 58, was amended by the District Court Act 2016 which also provides:
4 Interpretation
In this Act, unless the context otherwise requires,—
acting Judge means a Judge appointed as an acting Judge under section 31(1)
…
Chief District Court Judge means the Chief District Court Judge appointed under section 24(1)
…
District Court Judge or Judge means a Judge appointed under section 11(1)
…
part-time Judge means a Judge who is authorised under section 30(1) to sit on a part-time basis
permanent Judge does not include an acting District Court judge
[49] Section 11 provides for the appointment of a Judge by the Governor-General on the advice of the Attorney-General, following a specified process. Section 31 provides for the appointment of acting Judges by the Governor-General on the advice of the Attorney-General following a (different) specified process. Section 33 provides that an acting Judge may act only to the extent authorised by the Chief District Court Judge and, while so doing, has the jurisdiction, powers, protections, privileges, and immunities of a Judge.
[50] In ER v FR, Mallon J held that failure to retake a judicial oath was saved by the de facto officer doctrine which validates the acts of a Judge or other officer even though their appointment was invalid due to some unknown flaw.39
Submissions
[51]Dr Ellis submits:
(a)The position of District Court Judge is different from that of an Acting District Court Judge under the legislation. That is supported by a Bill of Rights consistent interpretation. The position was not altered by the District Court Act 2016. Section 33(3) does not assist because an Acting Judge has to be authorised. The Chief District Court Judge cannot authorise an Acting Judge to sit because that is ultra vires s 58 which requires designation from a panel of District Court Judges.
(b)The de facto officer doctrine does not save the situation because it only applies if the Attorney-General and Chief Justice are not aware of the situation. Dr Ellis wrote to them in February 2009 to put them on notice and believes he would have informally discussed his letter with the Attorney-General on 31 March 2009. It is not clear that Judge Blackie has sworn his oath on each reappointment, which requires a response, though that is not a ground of appeal.
[52]Mr Watson, for the Attorney-General, submits:
(a)The reference to a District Court Judge in s 58 of the Act includes an Acting Judges because an Acting Judge is a Judge of the District Court. The argument to the contrary is inconsistent with the plain meaning of the legislation, not supported by any principle and is untenable. The only material difference between Acting and permanent District Court Judges under the District Court Act is that only permanent judges may
39 ER v FR HC Whanganui, CIV-2008-483-33, 31 March 2009 at [118]–[120]; and R v Te Kahu
[2006] 1 NZLR 459 (CA) at [55].
sit on a part-time basis, under s 30 of that Act. Section 6 of the Bill of Rights is not engaged because no right is being infringed.
(b)Alternatively, the de facto officer doctrine validates the acts of a judge on the ground of unknown defects in their appointment which means that Judge Blackie’s actions are not a nullity. That doctrine is not abrogated by counsel writing a letter. It would be for an appellate court or parliament to take steps such that it cannot be relied upon.
The lawfulness of the appointment
[53] Dr Ellis was granted leave to add an additional ground of appeal, that Judge Blackie’s appointment as the Tribunal was ultra vires s 58. The ground does not extend to whether an oath was sworn, as counsel acknowledged at the hearing.
[54] Section 4 of the District Court Act contains separate definitions of “District Court Judge or Judge” and “acting Judge”, by reference to the respective appointment provisions in that Act. Because of the different procedures involved, it makes sense for the definitions to refer to the different appointment provisions. But even that Act does not rely clearly exclude an acting Judge from the definition of “District Court Judge or Judge”. If it did have this effect, the inclusion of a separate definition of “permanent Judge” would not be necessary.
[55] The Act under consideration here does not, of course, descend into that level of granularity. Section 58 simply refers to “a District Court Judge designated for the purpose”. There is nothing in the Act to suggest that that generic reference must only refer to permanent District Court Judges and cannot refer to an acting Judge.
[56] In principle, concerns about judicial independence can be sparked by overuse of temporary judicial warrants.40 The provisions in the District Court Act relating to acting Judges reflect the same sort of compromise between considerations of administrative convenience and efficiency balanced with respect for the concept of judicial independence that the Court of Appeal recognised in R v Te Kahu.41 Dr Ellis
40 R v Te Kahu, above n 39, at [34].
41 At [27] and [42].
acknowledges that judicial independence is not in issue here. No constitutional reasons are evident as to why an acting Judge should not be able to discharge the functions of the Tribunal in the same way as they can the functions of a District Court Judge. Sections 6 and 27 of the Bill of Rights do not alter that position.
[57] That interpretation is consistent with, and reinforced by, s 47 of the Legislation Act 2019 which provides generally that a power conferred on the holder of an office (which includes a position) may be exercised by an acting office holder. I conclude that the reference to a District Court Judge in s 58 of the Act includes an acting Judge. Accordingly, this ground of appeal fails.
[58] If that was not so, the decision here would no doubt be preserved by the de facto officer doctrine and/or by s 61 of the Act, which provides that proceedings before a Tribunal must not be held invalid for want of form. Dr Ellis’s somewhat speculative assertions about an informal discussion with the Attorney-General do not come close to vitiating the de facto officer doctrine.
Result
[59] The appeal by Mr Te Hei is allowed and the Tribunal’s award of $15,000 for emotional harm is quashed. The cross-appeal is dismissed.
Palmer J
12