Thompson v The Attorney-General

• Jurisdiction: New Zealand
• Judge: Cooper J
• Judgment Date: 23 May 2016
• Neutral Citation: [2016] NZCA 215
• Docket Number: CA590/2014
• Court: Court of Appeal
• Date: 23 May 2016

BETWEEN

Camille Iriana Thompson

Appellant

and

The Attorney-General

Respondent

[2016] NZCA 215

Court:

Wild, French and Cooper JJ

CA590/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against a High Court (“HC”) decision which struck out the appellant's claims for false imprisonment, breach of statutory duty under s13 District Courts Act 1947 (Registrar must keep or cause to be kept such records of and in relation to proceedings), negligence, “systemic negligence” and breach of her rights under s22 New Zealand Bill of Rights Act 1990 (not to be arbitrarily arrested or detained) — the appellant had failed to appear in the Wellington District Court on a day when an application by a probation officer for cancellation of a sentence of community work previously imposed on her was called — unbeknown to the Judge, the application for cancellation of the sentence had previously been dealt with and the sentence cancelled — a Ministry of Justice employee had omitted to update the appellant's record on the Court's electronic case management system — a warrant for the appellant's arrest was issued by the Judge and executed by the police — the appellant was brought before the Court the following day, having been detained for over 15 hours — the claims were made against the Attorney-General on the basis of alleged vicarious responsibility for the omission — whether the HC erred in holding the Attorney-General was immune from liability in tort by virtue of s6(5) Crown Proceedings Act 1950 (Liability of the Crown in tort) — whether there was an insufficiently proximate relationship between the appellant and the Registrar to give rise to a duty of care — whether there was no negligent act or omission — and whether the appellant had not been unlawfully detained.

Counsel:

H A Cull QC and D A Ewen for Appellant

S M Kinsler and A C Walker for Respondent

The appeal is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Cooper J)

Table of Contents

	Para No
Introduction	[1]
Facts	[6]
High Court judgment	[14]
The arguments on appeal	[23]
Crown immunity	[24]
Ms Thompson's submissions	[24]
The Attorney-General's submissions	[26]
Consideration	[28]
Bill of Rights Act	[47]
Ms Thompson's submissions	[48]
The Attorney-General's submissions	[58]
Consideration	[61]
Result	[79]

Introduction

1 The appellant, Camille Thompson, failed to appear in the Wellington District Court on a day when an application by a probation officer for cancellation of a sentence of community work previously imposed on her was called. Unbeknown to the Judge, the application for cancellation of the sentence had previously been dealt with and the sentence cancelled. A warrant for Ms Thompson's arrest was issued by the Judge and executed by the police. When she was brought before the Court the following day, having been detained for over 15 hours, the duty solicitor successfully applied for her release.

2 Ms Thompson advanced four tortious claims in the High Court alleging respectively false imprisonment, breach of statutory duty, negligence and a claim for “systemic negligence”. A fifth cause of action alleged breach of her rights under's 22 of the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) not to be arbitrarily arrested or detained.

3 The claims were made against the Attorney-General on the basis of alleged vicarious responsibility for the omission of a Deputy Registrar serving in the Wellington District Court's bail room to note the cancellation of the sentence on the Court's file in circumstances discussed below. There was no claim against the Attorney-General for breaches of the Bill of Rights Act as a result of judicial error.

4 All Ms Thompson's claims were rejected by the High Court. 1 She now appeals, alleging that Mackenzie J erred when he held:

• (a) the Attorney-General was immune from liability in tort by virtue of s 6(5) of the Crown Proceedings Act 1950;

• (b) there was an insufficiently proximate relationship between Ms Thompson and the Registrar to give rise to a duty of care;

• (c) there was no negligent act or omission; and

• (d) Ms Thompson had not been unlawfully detained.

5 The appeal raises issues concerning the proper interpretation of s 6(5) of the Crown Proceedings Act, and the barrier it erects to proceedings against the Crown in respect of acts or omissions by those discharging responsibilities of a judicial nature or in connection with the execution of judicial process. We also consider the extent of the immunity from suit afforded to judicial officers at common law, discussed in Attorney-General v Chapman. 2

Facts

6 In the High Court the essential facts on which the claim was based were the subject of an agreed statement of facts. In addition, relevant evidence as to processes in the District Court was called by Ms Thompson from Mr James Keegan, previously employed by the Ministry of Justice as a Court Registry Officer, and by the Attorney-General from Ms Anna Graham, one of three Court Services Managers at the Wellington District Court.

7 Ms Thompson was sentenced to 100 hours' community work and nine months' supervision on 28 July 2010. On 15 May 2012, a probation officer, Ms Hanita, filed what was described in the agreed statement of facts as an application to review the sentences. The application was not in the case on appeal but the backing sheet of the application was provided by counsel, showing that it was an application made under's 68(1)(a) of the Sentencing Act 2002 to cancel the community work sentence.

8 The application was called on 6 June, when it was adjourned by Judge Hobbs until 25 June because there was no proof of service. On 25 June, the matter was called before Judge Barry and further adjourned to 9 July, in the absence of proof of

service. On 9 July, the matter was again adjourned this time by Judge Treston, to 23 July

9 However, on 18 July, Ms Thompson appeared before Judge Blaikie on unrelated charges on which she was sentenced to 15 months' intensive supervision. A corrections officer employed by the Community Probation Service then asked orally for Judge Blaikie to deal with the application to cancel the sentence at the same time. No prior notice had been given to the Court or registry staff that the matter was to be called on that day and the file containing the original application made by Ms Hanita was not before the Judge. At the Judge's request, the corrections officer present handed up the Community Probation Service's copy of the application. The Judge then granted the application, noting on that copy of the application:

Order Accordingly

CW sentences cancelled. 3

The Judge signed these orders and dated his signature 18 July 2012.

10 Subsequently on that day, the charges on which Ms Thompson had been sentenced to intensive supervision were updated in the Court's electronic case management system (the CMS) and an order for 15 months' intensive supervision was drawn up and signed by the Registrar.

11 Importantly, however, the Community Probation Service's copy of the review application, signed by Judge Blaikie, was not matched with the original review application before 23 July. The relevant Criminal Record Sheets were not updated to reflect Judge Blaikie's order cancelling the community work sentences. Nor was the CMS updated.

12 As a result, the application to cancel was called again on 23 July and when Ms Thompson did not appear, Judge Wainwright, unaware of the orders made by Judge Blaikie, issued a warrant for her arrest. It is common ground that there was no application for that to occur and it is unclear whether there was any appearance on behalf of the applicant. 4

13 Ms Thompson was arrested by a police constable on 31 July at about 6.50 pm. She was detained in police custody under the warrant to arrest. The agreed statement of facts records that she was searched on her arrival at the police station and checked five times overnight. Then on 1 August at about 10.12 am she appeared in the Wellington District Court. She was released after the presiding Judge granted an application made by the duty solicitor on that day. Later that morning, the CMS was updated to reflect Judge Blaikie's decision of 18 July cancelling the sentences.

High Court judgment

14 MacKenzie J noted that the act or omission forming the basis of the claim was a failure to update the CMS so that the application for cancellation of the sentence would not be listed for hearing on 23 July following cancellation of the sentence. 5 He considered the issue to be whether that failure fell within the ambit of s 6(5) of the Crown Proceedings Act, as being:

… anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him or her or any responsibilities which he or she has in connection with the execution of judicial process.

15 The Judge's reasoning is encapsulated in the following passage of the judgment: 6

The making of the order cancelling the sentence of community work necessarily required that the application to review the sentence be removed from the system. Its removal was part of the process of fully implementing the order. The responsibility for ensuring that was done was a responsibility forming part of, or in connection with the execution of, the judicial process.

16 As this language implies, the Judge thought the responsibilities of the Ministry of Justice employees fell within both limbs of s 6(5) of the Crown Proceedings Act. He had in fact made this explicit in an earlier paragraph of the judgment: 7

Removal of the case from the list was part of the Court process, necessary to give full effect to the order which Judge Blaikie made, and without which the making of that order would not have been fully...