David Cullen Bain v Minister of Justice Hc Ak

• Jurisdiction: New Zealand
• Judge: Keane J
• Judgment Date: 16 April 2013
• Neutral Citation: [2013] NZHC 743
• Docket Number: CIV 2013-404-439
• Court: High Court
• Date: 16 April 2013

BETWEEN

David Cullen Bain

Applicant

and

Minister of Justice

Respondent

[2013] NZHC 743

CIV 2013-404-439

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application by respondent Minister for transfer of proceedings to Wellington Registry — substantive matter involved application for judicial review of Minister's conduct in failing to disclose and consult on reports of inquiry relating to a claim for compensation for wrongful imprisonment — proceedings filed in Auckland — applicant said material part of proceedings arose in Auckland as it had been accepted when terms of inquiry were set that he was in Auckland, where his counsel was, and that he would be interviewed there — whether one or more of grounds of judicial review arose wholly or in a material part in Auckland — whether proceeding should be transferred to Wellington.

Counsel:

M P Reed QC & M A Karam for Applicant

K P McDonald QC & E Child for Respondent

M P Reed QC & M A Karam, Auckland

JUDGMENT OF Keane J

[re application for transfer]

1 In 1995 David Bain was convicted of the murders in 1994 of five members of his family. In 2007 the Privy Council quashed his convictions and ordered that he undergo a new trial. 1 In June 2009, at his second trial, he was acquitted on all counts. He had then spent 13 years in prison. On 25 March 2010 he applied to the then Minister of Justice, Hon Simon Power, seeking compensation.

2 Mr Bain was not then eligible to be considered under the Cabinet Guidelines governing compensation for wrongful conviction and imprisonment. The Privy Council had granted his appeal but it had ordered a retrial. The retrial order made him ineligible under the Guidelines.

3 Mr Bain relied rather on the Cabinet decision approving the Guidelines, dated 2 December 1998, under which Cabinet agreed that ‘the Crown reserve the right, in extraordinary circumstances, to consider claims falling outside the criteria specified … on their individual merits, where this is in the interests of justice.’

4 On 10 November 2011 the Minister appointed Hon Ian Binnie QC, CC, formerly a Judge of the Supreme Court of Canada, to report to him on Mr Bain's claim. On 30 August 2012 Mr Binnie QC reported to the present Minister, Hon Judith Collins, recommending that Mr Bain be compensated in an amount to be fixed by Cabinet in the exercise of its discretion.

5 The Minister, after taking advice from the Crown Law Office and from the police, on 26 September 2012 appointed Hon Dr R L Fisher QC, a former Judge of this Court, to ‘peer-review’ the Binnie report. On 13 December 2012, in an interim report, Dr Fisher put in issue Mr Binnie QC's method of analysis, and thus his conclusions and recommendation. He recommended a fresh review.

6 Mr Bain and his advisers did not receive a copy of either report until the Minister released them publicly on 13 December 2012. The Minister considered that she was not obliged to release the Binnie report to Mr Bain and his counsel any earlier, or to release to them the Fisher report at all, or to consult with them about either report.

7 To report responsibly to Cabinet, the Minister considered, she was entitled, indeed obliged, to assess Mr Binnie QC's report for herself assisted by confidential advice. Mr Bain's claim was outside the Cabinet Guidelines and she considered the evaluative process it prescribes did not apply. Cabinet's decision whether to grant Mr Bain compensation was entirely discretionary.

8 On 30 January 2013 Mr Bain brought this application for judicial review, and on 4 February 2013 Cabinet decided that Mr Bain's compensation claim should be put on hold. Mr Bain's case is to be heard on a date in late July 2013 and there is an immediate issue as to where that hearing should take place.

9 Mr Bain contends that he is entitled to have his case heard in Auckland, where he filed it and where his counsel are. The Minister contends that it must be heard in Wellington where, she says, it ought to have been filed in the first place. She says that everything material to Mr Bain's application happened there, not in Auckland. On 6 March 2013, the Minister applied to have the case transferred to Wellington, and that gives rise to two issues.

10 The first issue, whether Mr Bain was entitled to file his case in Auckland, turns on whether one or more of his three grounds for review, his ‘causes of action’, arose wholly, or in a ‘material part’, in Auckland. 2 The second arises only if I decide that, as the Minister says, Mr Bain should have filed his application in Wellington. 3 I must then decide whether to transfer the case to Wellington.

11 Neither issue requires me to consider whether Mr Bain's three grounds for review have merit, or whether his claim for compensation does. Whether he should receive compensation is for Cabinet to decide in its complete discretion. Whether his review grounds have merit will be the subject of the July hearing, on the complete record and the affidavits still to be filed.

Proper Registry

12 The issue whether Mr Bain was entitled to file his application in Auckland turns on whether any of his grounds for review, as he has set them out in his statement of claim, arose in Auckland as opposed to Wellington, if not wholly then in any ‘material part’.

13 In his statement of claim, Mr Bain rests all three of his grounds for review, his ‘causes of action’, on a narrative beginning on 25 March 2010, when he applied for compensation. This narrative extends past the date of the Binnie report, 30 August 2012, to the date on which Mr Bain's counsel gave notice to the Minister that he intended to make this application for review, 21 January 2013.

14 Mr Bain's three grounds for review culminate in the three principal declarations he seeks, which express their essence:

Mr Bain seeks also related declarations that the Minister is culpable of predetermination, bias, and an abuse of power.

• (a) A declaration that the Minister, in withholding the two reports, and in not consulting with him and his advisers about them, acted in breach of his right to natural justice.

• (b) A declaration that the Minister frustrated his legitimate expectation that he and his advisers would be given the reports and consulted.

• (c) A declaration that the Minister's conduct was unreasonable and invalid.

15 Mr Bain accepts that his first and third grounds for review, or ‘causes of action’, have as their focus the Minister's conduct in Wellington, after she received the Binnie report. He was entitled to file his application in Auckland, as of right, he contends, relying only on his second cause of action in which he claims that the Minister has breached his legitimate expectation that once the Binnie report was received he would continue to be informed and consulted; an expectation he derives from the terms on which the Minister authorised the Binnie inquiry and how it was conducted. It had, he contends, an Auckland as well as Wellington dimension.

16 On this application he points to 14 particulars in his statement of claim, which he says illustrate that Auckland dimension, all of which, he contends, are critical cumulatively to his claim to a legitimate expectation. He cannot establish his expectation without them.

Cause of action –material part

17 A ground for review, a ‘cause of action’, is ‘an assembly of facts, which entitles a plaintiff to relief (including discretionary relief)’. A ‘part’ of a ground for review, or a ‘cause of action’, is some fact or facts within that assembly of facts entitling relief, and to be ‘material’ it must be significant to a component of that ground or cause of action. 4

18 To be ‘material’ a fact does not have to be contested. 5 It must be more than a ‘minor background aspect of the cause of action’. Whether it is merely that or ‘sufficiently germane’ to be material calls for assessment. There is no fixed and exact yard stick. The line between a material and an immaterial fact is ‘ultimately imprecise’. Everything depends finally on the Court's ‘perception of relevance’. 6

19 Where, as here, an application for judicial review concerns a claim for compensation for wrongful conviction and imprisonment the fact that it is made in the first instance to the Minister of Justice in Wellington, and is ultimately resolved by Cabinet there, at the seat of Government, does not preclude a ‘material part’ of a related cause of action arising elsewhere.

20 In Akatere v Attorney-General, 7 an application for judicial review challenging the adequacy of compensation offered by Cabinet to wrongfully convicted and

imprisoned claimants, who were eligible to be considered under the Guidelines, was filed and heard in Auckland seemingly without any issue about the proper Registry arising. Presumably the fact that the claimants came from Auckland and had been tried and confined in Auckland, before their convictions were quashed completely on appeal, was deemed a ‘material part’ of their causes of action

21 So too, in K v Chief Executive of the Department of Labour, 8 on an application for judicial review relying on three causes of action of a decision by the Minister of Immigration to issue a deportation order, Asher J held that a material part of the third of them arose in Auckland.

22 The first two causes of action alleged that the Minister had made an error of law and been unfair and unreasonable. These, Asher J held, had no Auckland component. As he said: 9

In judicial review the focus is on the procedures of the decision-maker and the lawfulness of the decision itself. Here the causes of action do not focus on the lead-up procedures, but rather on the lawfulness of the Minister's decision. Indeed the procedures leading up to that decision are not criticised, and there is...