Thompson v The Attorney-General

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeCooper J
Judgment Date23 May 2016
Neutral Citation[2016] NZCA 215
Docket NumberCA590/2014
Date23 May 2016

[2016] NZCA 215

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Wild, French and Cooper JJ

CA590/2014

BETWEEN
Camille Iriana Thompson
Appellant
and
The Attorney-General
Respondent
Counsel:

H A Cull QC and D A Ewen for Appellant

S M Kinsler and A C Walker for Respondent

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.

The issues were: whether the HC erred in holding the A–G was immune from liability in tort by virtue of s6(5) CPA; whether there was an insufficiently proximate relationship between the appellant and the Registrar to give rise to a duty of care; whether there was a negligent act or omission; and whether T had been unlawfully detained.

Held: The omissions were actions which should have been taken following the order cancelling the sentence. It was doubtful the omitted steps could themselves be regarded as responsibilities of a judicial nature, but they clearly fell within the ambit of responsibilities “in connection with the execution of judicial process” under s6(5) CPA. The CMS was adopted by the Ministry of Justice for the purpose of recording the existence of proceedings and steps taken in relation to them. It was self-evident that there must be such a system, because without it the courts could not function.

A broad approach to the definition of what constituted “responsibilities… in connection with the execution of judicial process” for the purposes of s6(5) CPA should be adopted, extending that concept to all administrative acts necessary to ensure that the court's records, kept in the system mandated by the chief executive, accurately reflect and provide for the consequences of orders made by the judges. Such administrative acts, although performed by Ministry of Justice employees, were a necessary part of the proper functioning of the judicial branch of New Zealand's government and must be seen as within the province of that branch. Had the record keeping system worked as it should have, the CMS would have been updated to reflect the District Court Judge's order thereby ensuring the matter was not called before another District Court Judge. The omission of those further steps represented a failure to execute the judicial process commenced by the first District Court Judge's order.

Section 6(5) CPA meant that the causes of action based on false imprisonment, breach of statutory duty and negligence could not succeed.

The issue of the warrant was unlawful. The clear implication of s72(3) Sentencing Act 2002 (Jurisdiction and procedure) was that there must be, at the time the warrant was issued, an outstanding application for the purposes of which the defendant was to be brought before the Court. The fact that the Court's records had not shown the application had been disposed of could not mean that the power to issue the warrant continued to exist. There was no other relevant power available to the Judge. Consequently, the issue of the warrant was unlawful. Had a probation officer been present and asked if a warrant was sought, they might have been in a position to explain that the application for cancellation had been disposed of or at least confessed to uncertainty. That the warrant was unlawful would usually (if not always) be conclusive of arbitrariness. The Judge had no power to act of her own motion. The arrest and detention were arbitrary under s22 NZBORA because there had been no basis on which the warrant could lawfully have been issued at the time. Attorney-General v Chapman held there could be no Crown liability for breaches of the NZBORA resulting from decisions of Judges. Chapman compelled rejection of T's argument that a claim could be made against the Crown for breach of s22 NZBORA based on judicial error.

Whether or not the Crown could be liable for errors on the part of the registry in this case gave rise to issues relating to causation. Nothing omitted by the registry had any direct impact on T's rights and as a matter of causation the omission should not have been seen as leading to the arrest. The omission had not been an effective cause of the arrest. T had no right to compensation in respect of the period for which she was unlawfully detained.

The appeal was dismissed.

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...

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2 cases
  • The District Court at Christchurch v Mcdonald
    • New Zealand
    • Court of Appeal
    • July 29, 2021
    ...(SC) at 55, quoting Lewis v McFarlane (1874) 2 NZ Jur 1 (SC) at 4. As to judicial functions performed by registrars, see generally Thompson v Attorney-General [2016] NZCA 215, [2016] 3 NZLR 206; and Crispin v Registrar of the District Court [1986] 2 NZLR 246 30 Greer v Smith [2015] NZSC 19......
  • The District Court at Christchurch v Mcdonald
    • New Zealand
    • Court of Appeal
    • July 29, 2021
    ...v McFarlane (1874) 2 NZ Jur 1 (SC) at 4. As to judicial functions performed by registrars, see generally Thompson v Attorney-General [2016] NZCA 215, [2016] 3 NZLR 206; and Crispin v Registrar of the District Court [1986] 2 NZLR 246 Greer v Smith [2015] NZSC 196, (2015) 22 PRNZ 785 at [6]. ......

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