Attorney-General v Chapman Sc

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,Gault J,Anderson J
Judgment Date16 September 2011
Neutral Citation[2011] NZSC 110
Docket NumberSC 120/2009
Date16 September 2011
Mervyn Chapman

[2011] NZSC 110


Elias CJ, McGrath, William Young, Gault and Anderson JJ

SC 120/2009


Challenge to admissibility of evidence under s189 Employment Relations Act 2000 (equity and good conscience) — defendant alleged unjustified dismissal — Employment Relations Authority held evidence relating to defendant's mental and emotional state admissible — whether communication confidential under s189 and Health Information Privacy Code — whether medical professional giving opinion evidence — whether non-practising psychologist who had not tested defendant was able to give evidence as an expert.


D B Collins QC Solicitor-General, C J Curran and B L Orr for Appellant

R E Harrison QC, A J McKenzie, K H Cook and P N Allan for Respondent

A The appeal is allowed and the matter remitted to the High Court.

B Question (a) is answered as follows:

The Court does not have jurisdiction to hear and determine the respondent's claim for public law compensation for alleged breaches by the judiciary of ss 25 and 27 of the New Zealand Bill of Rights Act 1990 occurring in the course of determining his criminal legal aid application and his appeal against conviction.

C There will be no order for costs.



Para No

Elias CJ


McGrath and William Young JJ


Gault J


Anderson J


Elias CJ

A right without a remedy is “a vain thing to imagine”, as Holt CJ recognised in 1704. 1 That rights are vindicated through remedy for breach is fundamental to the rule of law. Since enactment of the New Zealand Bill of Rights Act 1990, the provision of effective remedy for breach of the “human rights and fundamental freedoms” affirmed in the Act has been the responsibility of the courts. 2 At issue in the present case is whether New Zealand domestic law prevents damages being awarded, when they would afford effective remedy, if the breach of rights is caused by judicial action.


What is effective remedy for Bill of Rights breach differs according to the particular breach and its circumstances. To date, the remedies ordered in New Zealand have included exclusion of evidence, 3 stay of proceedings, 4 directions to administrative and judicial bodies, 5 development of the common law to achieve consistency with the Bill of Rights Act, 6 and damages. 7 In large part such remedies have been adapted for the enforcement and protection of rights from “[t]he ordinary range of remedies”. 8 But the courts have recognised that the Act requires “development of the law when necessary” by the courts if they are not to fail in the duty to give a remedy where rights have been infringed. 9


In 1994 one such development by the Court of Appeal recognised a public law claim for damages against the State in circumstances where claims in tort under the vicarious liability of the executive branch of the government established by s 6 of the Crown Proceedings Act 1950 for the torts of its servants (in that case, police

officers) were the subject of qualified immunities. 10 The claim for damages first accepted in Simpson v Attorney-General [ Baigent's case] 11 and Auckland Unemployed Workers' Rights Centre Inc v Attorney-General 12 was held to be a direct one against the State for breach of the Bill of Rights Act, not a vicarious claim for civil wrongs by its servants, and was therefore unaffected by the immunities. 13

The direct public law remedy does not substitute the State for the public officials who would, in the absence of some form of immunity, otherwise be responsible in tort. It is distinct from private law remedies, 14 and is available for denial of rights rather than error in result or procedure which can be adequately corrected within the process in which it occurs. State remedial responsibility is appropriate for such denial of rights and is consistent with the obligations of the State under the International Covenant on Civil and Political Rights, which the New Zealand Bill of Rights Act was enacted to fulfil in domestic law. 15 Article 2(3) of the Covenant obliges the States party to it to provide an “effective remedy” in domestic law for breaches of rights “notwithstanding that the violation has been committed by persons acting in an official capacity”. 16


The direct remedy was endorsed by the Law Commission when it was asked to review Baigent. 17 It has been applied in cases since 1994, including by this Court in Taunoa v Attorney-General. 18 The number of cases in which public law damages have been sought from the State since 1994 is small, suggesting that early

predictions of a flood of claims to vex the administration of justice are well astray, as such predictions usually are. 19

The Attorney-General does not seek to argue in the present appeal that this Court should reconsider the availability of a direct monetary remedy against the State in circumstances such as those in Baigent and Taunoa. But he maintains that such cases are distinguishable because they concerned breaches by officials, for which the executive branch of government is properly responsible and in respect of which the Crown is the appropriate defendant. In the present case the breaches in issue were ones committed by the judicial arm of government. The Attorney-General contends that the Crown is not liable under the public law remedy adopted in Baigent for acts of the judicial branch of government and that domestic law has no concept of liability of the State for wrongs beyond the liability of the Crown for its servants. He argues that direct liability for judicial breaches of rights would undermine judicial independence and the common law immunity of judges, themselves constitutional principles. In any event, it is said that the Attorney-General, as a member of the executive branch of government, is not the appropriate defendant in any such claim.


The appeal comes before the Court on preliminary questions of law which would prevent the possibility of a public law claim against the State for judicial breaches of the New Zealand Bill of Rights Act. We are not asked to determine whether public law damages would be appropriately awarded to Mr Chapman in this case. That may well depend on an assessment at trial as to whether he has already obtained adequate remedy through the criminal justice processes.


In summary, and for the reasons more fully developed in what follows, I consider that it would be contrary to the scheme and purpose of the New Zealand Bill of Rights Act if those deprived of rights through judicial action are denied the opportunity to obtain damages from the State, where an award of damages is necessary to provide effective remedy. Under the Act, all branches of the government, including the judicial branch, are bound to observe and protect the

rights affirmed. 20 A gap in remedy for judicial breach is contrary to the obligation of the State to provide effective remedy in domestic law. Excluding remedy for judicial breaches would leave a large remedial hole because many of the rights affirmed in the Act are afforded principally within judicial process through discharge of judicial function. They include in particular the “[m]inimum standards of criminal procedure” contained in s 25 and the “[r]ight to justice” contained in s 27. If breaches through judicial act are irremediable, such rights are undermined

Those whose rights have been breached by judicial act would have a claim under the First Optional Protocol to the International Covenant on Civil and Political Rights to which New Zealand is a party. The incongruity and inconvenience of

permitting an international remedy but not a domestic one was a factor in the reasoning of two of the Judges in Baigent in granting a remedy against the State. 21 Although in that case the breaches were those of the executive branch of government, the incongruity would be as marked in the case of judicial breach.


I do not consider that the reasoning in Baigent permits exclusion of the direct remedy against the State for cases arising out of judicial breach. Acceptance of the argument for the Attorney-General would therefore undermine the reasons in Baigent, even though its formal overruling is not sought.


In Maharaj v Attorney-General of Trinidad and Tobago (No 2) the Privy Council granted a direct remedy by way of damages for judicial breach of constitutional rights of due process. 22 Maharaj was applied by all Judges in the majority in Baigent. 23 I would continue to apply it in New Zealand because I think the approach is consistent with the obligations imposed under the New Zealand Bill of Rights Act and is supported by international and comparative case law. Nor, for reasons I explain further below, do I accept the view that Maharaj has been

effectively overruled by subsequent Privy Council decisions. 24 More importantly, I do not accept there are good policy reasons for making an exception in the general remedial response for denial of rights for those attributable to judicial action

The approach suggested on behalf of the Attorney-General limits and distorts remedial options by permitting the correction of judicial breach only through the judicial process in which it occurs (as through appeal) or through established collateral challenge (as in judicial review of inferior courts), while excluding a remedy in damages. That is contrary to the approach taken to date in New Zealand case law, which has preferred to look to the full range of remedies in tailoring a response to give effective and appropriate remedy in the circumstances. 25


Nor, as is explained in what follows, do I consider that judicial immunity is properly engaged in a direct remedy against the State for damages, any more than the statutory and common law immunities of...

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48 cases
  • Attorney General v Taylor and Others
    • New Zealand
    • Supreme Court
    • 9 November 2018
    ...provision about remedies was “probably not of much consequence”. 48 With reference to Baigent, the point was put in this way in Attorney-General v Chapman: 49 While it naturally followed that ordinary judicial remedies were available for the enforcement and protection of rights, the strengt......
  • Taylor v Attorney-General of New Zealand
    • New Zealand
    • High Court
    • 24 July 2015
    ...[2008] 1 NZLR 429. 89 Ibid, at 440, a report of the argument for the Attorney-General on his cross appeal. 90 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 91 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at para [258]. 92 For example, Taunoa v Attorney-General ......
  • Attorney-General v Strathboss Kiwifruit Ltd
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    • Court of Appeal
    • 9 April 2020
    ...Act, in combination, have been ameliorated by s 27(3) of the New Zealand Bill of Rights Act. 103 107 As Elias CJ noted in Attorney-General v Chapman, that section was enacted in the form proposed in the White Paper. 104 The commentary in the White Paper records: 105 [10.176] [The provision ......
  • Attorney-General v Arthur William Taylor
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    • 9 November 2018
    ...provision about remedies was “probably not of much consequence”. 48 With reference to Baigent, the point was put in this way in Attorney-General v Chapman: 49 While it naturally followed that ordinary judicial remedies were available for the enforcement and protection of rights, the strengt......
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1 books & journal articles
  • Cross-Pollination or Contamination: Global Influences on New Zealand Law
    • New Zealand
    • Canterbury Law Review No. 21-2015, January 2015
    • 1 January 2015
    ...just pointing out that, in the development of the tort in Hosking v Runting , the Court of Appeal made 33 See Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [14]. 34 For a critique of that case, see PA Joseph “Constitutional law” [2012] NZ L Rev 515 at 519–527. 35 See Atto......

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