Chapter 4
Relationship to public law

Proceedings for compensation under the New Zealand Bill of Rights Act 1990

Is a Baigent action a “civil proceeding”?

4.7There is a question, however, of where to fit claims brought under NZBORA, especially when they are for monetary compensation.42
4.8In Simpson v Attorney-General (Baigent’s case), the Court of Appeal recognised that public law compensation could be sought for breaches of NZBORA.43 Such an action exists independently of private law claims for damages, although in many circumstances a tort may be brought in relation to the same facts. For instance, a claim for an unreasonable search and seizure under section 21 might also give rise to a trespass claim, or a claim for arbitrary detention under section 22 might also give rise to a false imprisonment claim.

4.9Such claims are not cases for private law damages, and some cases have held that, as a result, the provisions of the Crown Proceedings Act currently do not apply.

4.10In Baigent’s case itself, the claim for public law compensation for the wrongful search was held by majority not to be caught by the prohibition in the current section 6(5) that the Crown was not liable in tort for discharge of responsibilities of a judicial nature.44
4.11Similarly in Choudry v Attorney-General, another claim for compensation for unreasonable search and seizure, it was assumed, without being decided directly, that the provisions of section 27 relating to discovery did not apply directly to the actions for public law compensation.45
4.12Having said that, in many cases the result might not be much different in holding that the Crown Proceedings Act does not formally apply. There is little doubt that at least in relation to discovery, the same or similar rules as those in the Crown Proceedings Act apply, as do the High Court Rules. Similarly, while section 6(5) does not apply directly to the exercise of judicial responsibilities, the Supreme Court has held that the Crown is not liable to pay compensation for the actions of judges.46

4.13From both the plaintiff’s and defendant’s perspectives, a claim for common law damages or for public law compensation will be similar. The evidence presented and the procedure followed will be the same, and indeed will often be combined within the same set of proceedings.

4.14On the other hand there are important differences between common law claims and those under NZBORA. Awards for the latter have been held to be “discretionary” rather than “as of right” in the way that common law claims are normally described. Perhaps more importantly, the Supreme Court has emphasised that monetary compensation is just one of a range of public law remedies that might be granted, and that non-monetary remedies might be more appropriate.47 There is, then, a legitimate view that compensation, and more especially those other remedies that might be awarded instead, are so quintessentially public that they should not be considered “civil proceedings”.

4.15The principal reason for including such claims in the Crown Civil Proceedings Bill would be to standardise the procedure for all monetary claims against the Crown. This would prevent technical arguments that different kinds of proceedings for damages are governed by different procedural law. It would, for instance, clarify that in a NZBORA compensation case against the Crown the proper defendant is the Attorney-General.

4.16However, a number of objections are possible:

4.17On balance our current view is that NZBORA claims should be included in the Bill, in the same way as they are in the Limitation Act 2010.49 That Act includes compensation under NZBORA within the definition of money claims, and treats NZBORA claims in the same way as other money claims. We propose a similar approach for a new Crown Civil Proceedings Act. However, the provision needs to be drafted so that it is clear that it is the role of the courts to define what the Crown’s liability is.
42See Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s case].
43See Geoff McLay “Damages for Breaches of the New Zealand Bill of Rights – Why Aren’t They Sufficient Remedy?” [2008] NZ L Rev 333; and Geoff McLay “Damages under the New Zealand Bill of Rights Act 1990” in Peter Blanchard Civil Remedies in New Zealand (2 ed, Brookers, Wellington, 2011) 203.
44Baigent’s case, above n 42, at 716.
45Choudry v Attorney-General [1999] 2 NZLR 582 (CA) at 595; and Choudry v Attorney-General [1999] 3 NZLR 399 (CA) at 404.
46Chapman v Attorney-General [2011] NZSC 110, [2012] 1 NZLR 462.
47Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.
48See, for instance, the observations in Taunoa v Attorney-General, above n 47. See also McLay, above n 43.
49Limitation Act 2010, s 12(2): “A claim for monetary relief includes a claim— … (c) for monetary relief for a breach of the New Zealand Bill of Rights Act 1990”.