New Zealand Law Society - Courts roundup 30 January - 4 February 2025

Courts roundup 30 January - 4 February 2025

Decisions, proceedings and news from the courts in some common law jurisdictions in the past week.

2022 04 13 Coote Supreme Court 173

New Zealand High Court

Negligence, exemplary damages, evidence

Taylor v Roper [2024] NZHC 30 (28 January 2025) Edwards J

Unsuccessful exemplary damages claim – T claimed exemplary damages against Royal New Zealand Airforce (RNZAF) – Claim arises from sexual abuse and false imprisonment she suffered at R’s hands when both in RNZAF in 1980s – Claim part of last proceeding T began in 2016 – First HC judgment in 2018 – Following successive appeals, SC confirmed Accident Compensation Act 2001 barred T’s compensation claim –

HC said exemplary damages different to those routinely sought in civil claim – Rather than compensating for harm suffered, aimed at punishing wrongdoer for outrageous conduct and deterring wrongdoer and others from acting in same way – Words like “contumelious”, “high-handed”, “oppressive” and “wilful” used to describe sort of conduct which attracted exemplary damages award –

T said RNZAF either vicariously or directly liable for R’s actions – Also said RNZAF owed her duty of care as employer to protect her from R – Claim not for systemic failures of way RNZAF dealt with sexual abuse and misconduct in 1980s –

T sought to adduce evidence in addition to that called at 2018 trial – Evidence comprised report RNZAF chief commissioned in 2016 following R’s convictions for sexual offending –

HC said adducing report would add very little to evidence Court already heard – Many interviewed gave evidence at trial – Also, delay in seeking to adduce report (available before trial) not adequately explained – If report to be adduced at this late stage, witnesses who gave evidence in 2018 would have to be recalled, risking re-running of 2018 trial for very little gain – No exceptional circumstances and not in interests of justice, report be adduced –

CA had said exemplary damages generally unavailable for vicarious liability – CA also said s 6 Crown Proceedings Act 1950 meant Crown could not be sued directly in tort – HC said might seem unfair, but for Parliament to change law if it saw fit –

HC said RNZAF owed duty of care as employer (or something similar) novel legal claim – Even if duty could be established, evidence fell short of high threshold for exemplary damages to be awarded in negligence cases – No evidence RNZAF consciously appreciated risks R posed to T and decided to deliberately run those risks – Nor was there evidence of outrageous, high-handed, malicious, or wilful conduct which would attract exemplary damages award for negligence – R was flagrant wrongdoer, not RNZAF – Fact that processes changed in last 30 years meant exemplary damages award would not serve deterrent purpose either –

Court had every sympathy for T and what she endured at R’s hands in 1980s – However, exemplary damages award against RNZAF not justified on law and evidence called at trial – Claim dismissed.

United Kingdom Supreme Court

Habeas corpus, care of children

The Father v Worcestershire County Council [2025] UKSC 1 (25 January 2025)

Unsuccessful appeal from CA – Self-represented Father (F) applied for habeas corpus writ (procedure enabling court to order person’s release from unlawful detention), seeking two children’s release from what F claimed was Worcestershire County Council (Council) detention – Children placed in Council’s care under care order from Family Court under s 31 Children Act 1989 – Care plan for both children to be in long term foster care and both children living with same foster parents –

HC dismissed F’s habeas corpus application, saying “correct process” was for F to appeal care order – Said applying for habeas corpus writ “inappropriate” and “wrong” – CA said HC hearing procedurally unfair and set aside order – CA considered matter afresh and dismissed F’s application for two reasons: First, F’s application not correct process; Second, children not detained – F appealed to SC –

SC unanimously dismissed appeal – Said neither child detained and therefore F’s habeas corpus application could not succeed – Court also considered whether habeas corpus could be used if children were detained – Court said, on facts of this case, it could not and that other remedies, such as appeal, should be used to challenge care order –

SC said habeas corpus writ of highest constitutional importance as means by which liberty of individual vindicated –

F had right to appeal against care order to circuit judge sitting in Family Court – Procedural advantages of challenging care order through appeal or application to discharge care order, rather than habeas corpus application – On habeas corpus application, lawfulness of care order only relevant if order for child’s detention, or order under which local authority could, in exercise of parental responsibility, consent to deprivation of child’s liberty amounting to detention –

SC said here F not entitled to seek to challenge care order through habeas corpus as not procedurally capable of challenging lawfulness of this order – Also not able to challenge care using judicial review, as had suitable alternative remedy available – Consequently, even if care order did result in children’s detention, habeas corpus would have been dismissed – Instead, if F wished to challenge care order, obliged to use procedural route specifically in legislation for purpose, namely appeal right within Family Court or application to discharge care order –

Habeas corpus claims could not be used to cut across elaborate and carefully balanced procedures contained in Children Act 1989 – Appeal dismissed.


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