Te Hei v Hawkins

[2023] NZHC 553

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-032

[2023] NZHC 553

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:

On the papers

Counsel:

A J Ellis for the Appellant

N M Pender for the Respondent Appearances excused for Attorney-General

Judgment:

17 March 2023

JUDGMENT OF PALMER J

Solicitors/Counsel

A J Ellis, Barrister, Kawakawa & Wellington N M Pender, Barrister, Wellington

Nat Dunning Law, Wellington Crown Law Office, Wellington

TE HEI v HAWKINS [2023] NZHC 553 [17 March 2023]

The judgment

[1]        On 30 November 2022, I issued judgment in these appeals holding, in summary:1

[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 application

[2]Mrs Hawkins applies for leave to appeal the judgment on two central questions:

(a)Whether a member of the immediate family of a person who dies as the consequence of an intentional tort has a cause of action against the wrongdoer under the DBAC Act, or otherwise under the general law, for which damages for emotional harm and/or bereavement are payable.

(b)Whether a member of the immediate family of a person who dies as the consequence of an intentional tort has a claim for exemplary damages against the wrongdoer under the DBAC Act, or otherwise under the general law

1      Te Hei v Hawkins [2022] NZHC 3170.

[3]        Mr Te Hei agrees that Mrs Hawkins’ proposed grounds of appeal raise issues of principle that are of public importance, are raised bona fide, and are capable of serious argument and it is appropriate for the Court of Appeal (or Supreme Court) to determine them. He will, however, oppose the substantive arguments on appeal. Both parties are content for the applications to be dealt with on the papers.

[4]        Mr Te Hei also seeks to cross-appeal on four points. However, due to circumstances beyond the control of him or his counsel, he has not yet been able to file submissions in support of the application. By consent, I will deal with the application for cross-appeal separately. In the meantime, Mrs Hawkins will file her notice of appeal and alert the Court of Appeal to the application for leave to cross-appeal. She will take responsibility for preparing the case on appeal. The parties can wait to apply for allocation of a hearing date until the application for leave to cross-appeal has been determined.

Should leave to appeal be granted?

[5]        Leave to bring a second appeal is required under s 60 of the Senior Courts Act 2016 and is not easily come by.2 The appeal must raise a question of law or fact capable of bona fide and serious argument involving an interest sufficiently important to outweigh the cost and delay of an appeal.3 The primary function of a second appeal is to clarify the law and determine whether it has been properly construed and applied.4

[6]        I am satisfied that the questions proposed to be raised by Mrs Hawkins on appeal meet this high threshold. They are capable of bona fide and serious argument and require reconsideration of Court of Appeal precedent. Both issues have precedential value within the parameters of the Prisoners’ and Victims’ Claims Act 2005 and concern significant issues in the evolution of the common law. If leave to appeal is granted, Mrs Hawkins will apply for directions as to service because bodies such as the New Zealand Law Society, the New Zealand Bar Association, the Criminal

2      Butch Pet Foods Ltd v Mac Motors Ltd [2018] NZCA 276 at [4].

3      Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

4      At 413.

Bar Association, and Te Hunga Rōia Māori o Aotearoa may wish to join as intervenors. The legal issues arise in this factual context in a relatively pure form. I consider they are sufficiently important to outweigh the cost and delay of an appeal.

Palmer J