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McVeagh v Attorney-General [2001] NZCA 383; [2002] 1 NZLR 808 (20 December 2001)

Last Updated: 10 December 2011

[1] Mr McVeagh, the appellant, was detained in a mental hospital from 1984 to 1993. In his statement of claim he contends that a Judge of the High Court in 1989 had refused to hear and determine a writ of habeas corpus which he had filed in respect of his detention and that that refusal was in breach of s6 of the Habeas Corpus Act 1640, entitling him to treble damages against the Attorney-General and the Auckland High Court.
[2] O’Regan J, on the application of the Attorney-General, struck out the proceedings because they were untenable and could not possibly succeed. His judgment is now reported : McVeagh v Attorney-General [2001] 3 NZLR 566. He accepted the one argument on which counsel for the Attorney-General focused at the hearing before him – that the 1640 provision was limited to prerogative powers and that the actions challenged were not taken under the prerogative but under mental health legislation:

the only circumstances in which s6 of the Habeas Corpus Act could apply would be circumstances where a person has been imprisoned by an exercise of the royal prerogative or by a body which was established by an exercise of the royal prerogative. Importantly in the present context, s6 does not apply where any detention or imprisonment has occurred by virtue of the exercise of a statutory power. (para [15], see also para [26])

[3] Mr Ellis, who has agreed only to undertake the appeal and not generally to represent the appellant, has prepared a draft amended statement of claim and seeks leave, if necessary, to file it. The draft provides more detail, alleging two other refusals, said to be in breach of the 1640 provision, by High Court Judges in 1985 and 1989. The draft also goes beyond the original statement of claim by seeking certain declarations and moving beyond the 1640 Act to the New Zealand Bill of Rights Act 1990 and the International Covenant on Civil and Political Rights:

First Cause of Action : Breach of Habeas Corpus Act 1640 and Common Law, and Declaration of Breach of Rights

1. A declaration that the failure of each of the High Court Judges, Justice C, Justice Anderson, and Justice Barker on 9 August 1985, 27 January 1989, and 15 February 1989 respectively, to hear and determine a Writ of Habeas Corpus was a breach of the Act.
2. The imposition of the penalty prescribed by law under s4 of the Act, namely £500, upon Justice C, for failing to consider the Writ, on 9 August 1985.

100. An inquiry into the damage caused to him by the detention, and failure to consider the writ, on each of the 3 occasions.

4. Damages at a triple rate as prescribed by s6 of the Act, in respect of the failure severally of each of the justices.

Second Cause of Action Breach of Section 22 and 23(5) of the Bill of Rights and Articles (9) 4 and (5) of the ICCPR.

5. A Declaration that his continued detention was an arbitrary detention contrary to law, and that he was not treated to humanity and respect as required by law.
6. That the continuing arbitrary detention under conditions whereby the plaintiff’s humanity and dignity were not respected, entitle him to compensation in the sum of $250,000.

[4] The limiting of para B in the relief sought to the alleged refusal in 1985 by Justice C is to be explained by the fact that the Imperial Laws Application Act 1988 declared that as from 1 January 1989 only s6 of the 1640 Act was part of the laws of New Zealand (s3(1)). The draft proceeds on the basis that s4 could still be invoked in respect of actions in 1985 (but see s4(3) of the 1988 Act). As from 25 May 2001, s6, along with the provisions of the 1679 and 1817 Habeas Corpus Acts which were also declared to be in force in 1988, ceased to have effect as part of the laws of New Zealand in terms of s22(2) of the Habeas Corpus Act 2001. Part of the background to the 1988 and 2001 provisions is provided in passages from Law Commission reports set out by O’Regan J in his judgment (paras [11]-[12]).
[5] The first cause of action in the draft amended statement of claim could be pleaded only if the 1640 Act applies to the present situation, only that is if O’Regan J erred in his conclusion that provision does not apply to this situation. The proposed second cause of action, by contrast, raises issues distinct from those which he considered when striking out the original statement of claim. We come back to those issues at the end of this judgment.

Habeas Corpus Act 1640

[6] In 1640, Charles I assented to a number of measures curbing his prerogative and other executive powers. According to G M Trevelyan the

laws [were] passed without debate by the Houses and signed without thought by the King. The means of unparliamentary revenue – Ship Money, Forests, Knighthood, Tonnage and Poundage – were made illegal beyond further dispute. Another Act destroyed the Star Chamber and its kindred courts of Wales and the north. Thus were extinguished the judicial powers of the Privy Council, by the terror of which its administrative sovereignty could alone be maintained in a rebellious age. With the sovereignty of the Council fell the State system of the Tudors. Their Church system fell at another stroke, which ended the Court of High Commission, the coercive power of the bishops as derived from the Crown. (England Under the Stuarts (1904, revised 1946, Folio Society editio 1996) ch VII p192).

[7] The relevant measure in this case is “an Act for the regulating of the Privie Councell and for taking away the court commonly called the Star Chamber”. It was only in 1948 that the United Kingdom Parliament gave the Act the short title, Habeas Corpus Act 1640. In 1640, by contrast, the Act had a much broader application matching its original title. The preamble began by reciting s39 of Magna Carta and later related formulations (with “per legem”, “par lei de la terre” or “by the law of the land” becoming “due process of law” in the 14th century). It then records conferral by a statute of Henry VII of power on a group of great officers of the state, bishops, lords and judges to punish certain offences.
[8] The preamble next sets out the mischief at which the Act was aimed:

But the said judges have not kept themselves to the points limited by the said statute but have undertaken to punish where no law doth warrant and to make decrees for things having no such authoritie and to inflict heavier punishments then by any law is warranted And forasmuch as all matters examinable or determinable before the said judges or in the court commonly called the Star Chamber may have theire proper remedy and redresse and theire due punishment and correction by the common law of the land and in the ordinary course of justice elsewhere And forasmuch as the reasons and motives inducing the erection and continuance of that court doe now cease and the proceedings censures and decrees of that court have by experience beene found to be an intollerable burthen to the subjects and the meanes to introduce an arbitrary power and government And forasmuch as the councell table hath of the late times assumed unto it selfe a power to intermedle in civill causes and matters onely of private interest betweene party and party and have adventured to determine of the estates and liberties of the subject contrary to the law of the land and the rights and priviledges of the subject by which great and manifold mischeifes and inconveniencies have arisen and happened and much incertainty by meanes of such proceedings hath beene conceived concerning mens rights and estates For setling whereof and preventing the like in time to come.

That is to say,

• the judges and others had exceeded the statutory authority
• the matters before them could be appropriately dealt with by the common law and in the ordinary course of justice
• the original reason for the court had ceased and its proceedings and judgments had created intolerable burdens and introduced arbitrary power and government and
• the extension of its authority into civil matters had caused manifold mischiefs, inconveniences and uncertainties

[9] Accordingly, under s1 of the Act, “the ... court commonly called the Star Chamber and all jurisdiction power and authority belonging unto or exercised in the same court or by any of the judges officers or ministers thereof be ... cleerley and absolutely dissolved taken away and determined”. Further, the officers, bishops, lords and judges “shall have [no] power or authoritie to heare examine or determine any matter or thing whatsoever in the said court commonly called the Star Chamber or to make pronounce or deliver any judgement sentence order or decree or to doe any judiciall or ministeriall act in the said court, and all [statutes conferring] jurisdiction power or authority ... [on the court] commonly called Star Chamber or unto all or any of the judges officers or ministers thereof ... shall ... be ... repealed and absolutely revoked and made void”. Section 2 made parallel provision in respect of like jurisdictions in Wales, the northern parts, the Duchy of Lancaster and the County Palatine of Chester.
[10] Section 3 addressed the extension into civil matters:

neither His Majestie, nor his privie councell have or ought to have any jurisdiction, power or authority by English bill petition articles libell or any other arbitrary way whatsoever to examine or drawe into question determine or dispose of the lands tenements hereditiments goods or chattels of any of the subjects of the kingdom but that the same ought to be tried and determined in the ordinary courts of justice and by the ordinary course of the law.

[11] The focus of the Act on the Star Chamber, the comparable courts elsewhere in the country, and the King and his Privy Council – that is on conciliar bodies – was emphasised by s7. The Act, it provided, shall be taken and expounded to extend only to the Courts identified in ss1 and 2 and to

all courts of like jurisdiction be hereafter erected ordained constituted or appointed as aforesaid and to the warrants and directions of the councell board and to the commitments restraints & imprisonments of any person or persons made commanded or awarded by the Kings Majesty his heires or successors in their owne person or by the lords and others of the privie councell and every one of them.

[12] The remaining four provisions of the Act – ss4, 5, 6 and 8 – were about enforcement. Under s4 any officer, bishop, lord, judge or justice breaching the law was subject to penalties of £500 for a first offence, £1,000 for a second and disability for a third. Under s5 persons aggrieved by a breach of the Act were entitled to treble the damages they had sustained. Section 6, the primary provision in issue and set out in the next paragraph, regulated the issue of habeas corpus and also provided for treble damages, while s8 placed a two year limitation on any proceedings brought under the Act.

Section 6 of the Habeas Corpus Act

[13] Section 6 read as follows:

6. Every person committed contrary to this Act shall have an habeas corpus for the ordinary fees

And ... if any person shall hereafter be committed restrained of his libertie or suffer imprisonment by the order or decree of any such Court of Star Chamber or other court aforesaid now or at any time hereafter having or pretending to have the same or like jurisdiction power or authoritie to commit or imprison as aforesaid or by the command or warrant of the Kings Majestie his heires or successors in theire owne person or by the command or warrante of the councell board or of any of the lords or others of his Majesties privy councell that in every such case every person so committed restrained of his libertie or suffering imprisonment upon demand or motion made by his councell or other imployed by him for that purpose unto the judges of the Court of Kings Bench or Common Pleas in open court shall without delay upon any pretence whatsoever for the ordinary fees usually paid for the same have forthwith granted unto him a writ of habeas corpus to be directed generally unto all and every sheriffs gaoler minister officer or other person in whose custody the part committed or restrained shall be and the sheriffs gaoler minister officer or other pson in whose custody the pty so committed or restrained shall be shall at the return of the said writ & according to the command thereof upon due and convenient notice thereof given unto him at the charge of the party who requireth or procureth such writ and upon securitie by his owne bond given to pay the charge of carrying back the prisoner if he shall be remanded by the court to which he shall be brought as in like cases hath beene used such charges of bringing up and carrying backe the prisoner to be alwaies ordered by the court if any difference shall arise thereabout bring or cause to be brought the body of the said party so committed or restrained unto and before the judges or justices of the said court from whence the same writ shall issue in open court and shall then likewise certifie the true cause of such his deteinor or imprisonment and thereupon the court within three court days after such return made and delivered in open court shall proceed to examine and determine whether the cause of such commitment appearing upon the said return be just and legall or not and shall thereupon do what to justice shall appertaine either by delivering bailing or remanding the prisoner and if any thing shall be otherwise wilfully done by any judge justice officer or other person aforementioned contrary to the direction and true meaning hereof that then such person so offending shall forfeit to the party grieved his trebble damages to be recovered by such meanes and in such manner as is formerly in this Act limited and appointed for the like penaltie to be sued for and recovered.

[14] This provision has several features:

• certain imprisoned and detained persons are entitled on application to the judges of the Court of King’s Bench or Common Pleas in open court to have without delay a writ of habeas corpus directed to the gaoler or other in whose custody they are
• the gaoler is to bring the persons before the judges of the court from which the writ issued in open court and certify the true cause of the detention or imprisonment
• the court within three court days after receiving the return is to examine and determine whether the cause of the commitment appearing in the return is just or legal or not and do what justice requires by delivery, bail or remand
• anyone aggrieved by anyone wilfully doing or omitting to do things required by the provision is entitled to treble damages to be recovered by such means as is limited or appointed by the Act to be sued for and recovered

[15] We focus on the first of these features and in particular on the court, body or person under the authority of which the person has been committed, restrained or imprisoned. In the result we do not need to consider the possible application of other features to the present case, one which could be the limitation provision of s8 (para [12] above).

The bodies subject to s6

[16] The first four lines of s6 list the bodies and persons subject to the provision. Persons have rights under s6 if they have lost their liberty by the order or decree of :

(1) any such Court of Star Chamber or

(2) other court aforesaid now or at any time hereafter having or pretending to have the same or like jurisdiction power or authority to commit or imprison as aforesaid or

(3) by the command or warrant of the Kings Majestie his heires or successor in their owne person or by the command or warrant of their councell board or of any of the lords or others of his Majesties privy councell.

[17] The listing identifies particular bodies, which have already been the subject of the provisions abolishing and taking away certain jurisdiction and denying it for the future and denying jurisdiction to the King and his privy council (ss1-2 above). Both lists are to be related to the preamble to the 1640 Act. As indicated earlier, the preamble can be divided into three : (1) the references to Magna Carta and related provisions (para [7] above), (2) the references to statutes conferring authority on named officers and relating to the composition of the body, and (3) the recital of the breach by the judges of their limits on their authority (para [8] above). The second part is in these terms

And whereas by the Statute made in the 3rd yeare of King Henry the Seventh power is given to the chancellour the lord treasurer of England for the time being and the keeper of the Kings privie seale or 2 of them calling unto them a bishop and a temporall lord of the Kings most honourable councell and the 2 chiefe justices of the Kings Bench and Common Pleas for the time being or other 2 justices in theire absence to proceed as in that Act is expressed for the punishment of some particular offences therein mentioned and by the Statute made in the 21st yeare of King Henry the Eighth the president of the councell is associated to joyne with the lord chancellour and other judges in the said statute of the 3rd of Henry the Seventh mentioned.

[18] Some of the provisions in the first part of the preamble also recognise the judicial authority of the Council (25 Edw III c4, 42 Edw III c3). The historians dispute how the Star Chamber came into existence and from where it drew its authority. According to one careful and extensively referenced study, the 1487 Act (3 Hen VII ch 1) either establishes the Court of Star Chamber, or has nothing to do with it at all, depending upon the particular interpretation adhered to (Michael Stuckey “A Consideration of the Emergence and Exercise of Judicial Authority in the Star Chamber” (1993) 19 Monash L Rev 117, 131). As F W Maitland pointed out the 1487 Act gave authority to certain persons (without a jury) to punish certain crimes (including interference with the due course of justice). “The Statute does not mention the Star Chamber, but that is a room which the council has long used.” (The Constitutional History of England (1908) 261; see also 218-221, 261-264, 274-275; according to Stuckey, 143, it is certain that the 1487 Act was not originally known as Pro Camera Stellata : those words were written in the margin of the Act in a different hand in different ink, possibly during Elizabeth’s reign.)
[19] It is not for us to resolve the historical debate. But we must take into account the fact that those bodies and jurisdictions subject to the 1640 Act were not purely prerogative. There was a legislative element. To that limited extent we depart from the reasoning of O’Regan J. That having been said, the bodies had a very large executive or, in terms of the language of the day, conciliar element. We have the authority of Maitland for the proposition that the Court of Star Chamber does not exactly correspond to the Act of 1487, in two respects:

(a) All the members of the council seem to have been members of [the Court of Star Chamber]. James himself, at least upon some occasions, sat there in person and himself passed sentence. As many as twenty-five councillors are sometimes found sitting there. It had a great deal of work to do, and in term time sat three days a week. This brings us to the second point.

(b) It did not confine itself to dealing with the crimes specified in the statute of 1487. Its jurisdiction over crime was practically unlimited, or limited only by this – that it did not pass sentence of death. We know it best as dealing with what may be called political crimes – sedition and the like; but it dealt also with commoner offences – robbery, theft, and so forth. It dealt with some misdoings for which the common law had as yet no punishment, in particular with libels. (262)

[20] He adds this about the reasons for the abolition of Star Chamber, elaborating on the preambular statement (para [8] above), after mentioning the Star Chamber’s value in criminal matters:

But that it was a tyrannical court, that it became more and more tyrannical, and under Charles I was guilty of great infamies is still more indubitable. It was a court of politicians enforcing a policy, not a court of judges administering the law. It was cruel in its punishments, and often had recourse to torture. It punished jurors for what it considered perverse verdicts; thus it controlled all the justice of the kingdom. The old process of attaint, of which we have before spoken, had long gone out of use, but in the Star Chamber the jurors had to fear a terrible tribunal which would resent a verdict against the king. (263)

[21] In summary, the 1640 measure was designed to sweep away judicial powers, especially but not solely in respect of crimes, exercised by the King, his councillors, high officers of state, lords and bishops, even if with some judicial input; the powers had their origin primarily, but not solely, in the royal prerogative or the powers of the Curia Regis. Thenceforth the matters subject to the Court of Star Chamber and related bodies were to have their proper remedy and redress by the common law and in the ordinary course of justice in the other courts. Given that focus of the legislation and the fact that it had essentially served its purpose on enactment, it is hardly surprising that as statute books were reviewed the 1640 Act, including s6 was repealed, notwithstanding its major constitutional and historical purpose. The United Kingdom Parliament for instance repealed the Act, along with many others, as an “unnecessary enactment” (Justices of the Peace Act 1968, schedule 5).
[22] To anticipate the features of the mental health legislation discussed later, the powers it conferred are very remote from the concerns of those who prepared the 1640 Act and from its meaning and purpose in its historical context.
[23] Mr Ellis nevertheless contended for the appellant that the 1640 Act should not be given a narrow prerogative reading. A constitutional statute should be given a liberal interpretation. He quoted a passage from the opinion of Lord Bingham of Cornhill in R v Secretary of State ex parte Daly [2001] 3 All ER 433, para 12, which we set out more fully:

The Court of Appeal decision in Ex p Leech was endorsed and approved by the House of Lords in R v Secretary of State for the Home Dept, ex p Simms [1999] 3 All ER 400, [2000] 2 AC 115, which arose from a prohibition on visits to serving prisoners by journalists seeking to investigate whether the prisoners had, as they claimed, been wrongly convicted, save on terms which precluded the journalists from making professional use of the material obtained during such visits. The House considered whether the Home Secretary’s evidence showed a pressing need for a measure which restricted prisoners’ attempts to gain access to justice, and found none. The more substantial the interference with fundamental rights, the more the court would require by way of justification before it could be satisfied that the interference was reasonable in a public law sense. In this as in other cases there was applied the principle succinctly stated by Lord Browne-Wilkinson in R v Secretary of State for the Home Dept, ex p Pierson [1997] 3 All ER 577 at 592, [1997] UKHL 37; [1998] AC 539 at 575:

From these authorities I think the following proposition is established. A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.

[24] The fundamental rights in issue in this case were the right to personal liberty in accordance with the law and the right of access to the Court to have it determine the legality of any detention. Those rights exist completely independently of the 1640 Act, as indeed Mr Ellis acknowledged in his submission that the writ of habeas corpus existed before 1640. The reading of the 1640 Act in the way adopted in this judgment does not come within the scope of the principles stated by Lord Bingham and Lord Browne-Wilkinson. We would add that the recent extensively researched and valuable books on habeas corpus by Associate Professor David Clark and Gerard McCoy QC indicate that the 1640 Act, in particular s6, has been very rarely referred to and appears to have had no significant impact in habeas corpus litigation over the centuries in the many jurisdictions they review (Habeas Corpus : Australia, New Zealand and the South Pacific (2000) and The Most Fundamental Legal Right : Habeas Corpus in the Commonwealth (2000)).
[25] Next, Mr Ellis referred to the “very wide mandatory instruction” relating to those exercising custody, referred to in s6. But he achieved that width by quoting from s6 only the phrase “sheriff gaoler minister of officer or other persons in whose custody the party committed or restrained” is. That reading flies in the face of the careful limiting statement of those subject to s6, a list, it will be recalled, that closely matches the provisions of the Act abolishing specified bodies and jurisdictions.
[26] Mr Ellis moved on to emphasise the provisions of Magna Carta mentioned in the preamble to the Act. He did that in part to indicate that the jurisdictions being abolished were statutory rather than prerogative. We have already indicated that the jurisdiction was in part statutory, but the principal significance of the provisions of Magna Carta in the present context is to reaffirm and place limits on the power of the King and his officers, not to confer power. Those limits are recognised in major part in the principles about individual liberty and access to the Court mentioned in para [24]. One critical limit was that executive detention was declared unlawful by the Petition of Right 1627, overturning Darnel’s case (1627) 3 St T 1.
[27] The appellant’s argument next drew on one New Zealand case in which the 1640 Act has been considered : Cock v Attorney-General (1909) 28 NZLR 405 CA. That case does not help the appellant however since it was concerned with the quite distinct issue whether a Royal Commission could in effect determine whether an individual had committed a crime. The Court said it could not. Under 42 Edw III ch 3 (1368) (one of the later versions of Magna Carta guaranteeing due process, a statute still in force under the Imperial Laws Application Act) and the 1640 Act, trials were to be before the ordinary courts. The particular passage on which Mr Ellis depended is in fact concerned with the prohibition on the King and his councillors becoming involved in civil matters. The case says nothing about the scope of s6 and the bodies and power subject to it.
[28] The argument proceeded to article 9 of the International Covenant on Civil and Political Rights guaranteeing the right to liberty and security of the person and the associated right of taking court proceedings without delay on the lawfulness of the detention on the lawfulness of the detention and the compensation for unlawful detention. Again, those rights can be enforced under the general law (including for instance ss22 and 23(1)(c) of the Bill of Rights). The 1640 Act is not required for that purpose, and we reject the argument that it should be construed to achieve that purpose.

The Mental Health Act 1969

[29] We now turn to the provisions of the Mental Health Act 1969 which were in force at the time relevant to Mr McVeagh’s case and in particular to the remedies which those detained under it had to challenge their detention. We can do this briefly because earlier judgments relating to Mr McVeagh both set out that law and show the extensive use he has made of it (see Re M [1992] 1 NZLR 29, Attorney-General v McVeagh [1995] 1 NZLR 558 and McVeagh v Attorney-General (CA90/00), 24 August 2000). Committal orders were made under the legislation by a District Court Judge following an examination by two medical practitioners and the Judge. Inspectors and official visitors had rights of inspection and could report to the Director of Mental Health. Patients had the right to have their letters addressed to Members of Parliament, High Court Judges, Ombudsmen and the Director immediately forwarded unopened. They could apply to the Minister of Health for the holding of any inquiry by a District Court Judge who had wide procedural powers governing the inquiry. If the Judge was satisfied that the person was fit to be discharged an order was to be made accordingly.
[30] High Court Judges had power on their own motion or application of any person to direct an inquiry by one or more persons to visit and examine any person detained as mentally disordered. Judges could also proceed directly to an examination themselves of such a person. Again the Judges had relevant procedural powers. If following the inquiry they determined

(a) That the person is not mentally disordered; or

(b) That his state of mind does not require his detention or treatment as a mentally disordered person, either for his own good or in the public interest; or

(c) That he is illegally detained as a mentally disordered person—

then, unless the person is a special patient or is legally detained for some other cause, the Judge shall by order direct that he shall be immediately discharged by the superintendent of the hospital, or the occupier of the house or other place, in which he is detained or kept, or by any other person in whose custody or charge he is.

[31] Various matters were set out as relevant to that power, including the fact that a relative or friend was willing and able to care for the person. That provision did not exclude any other remedy or proceeding available by or on behalf of any person who was or was alleged to be unlawfully detained, confined or imprisoned. Those remedies of course included habeas corpus. The Act regulated the bringing of civil proceedings by limiting liability to situations of bad faith and lack of reasonable care, by requiring that leave be given by a High Court Judge, and by a six months limitation period.
[32] Two characteristics of those powers and procedures are important in the present case. The first is that they are far removed from the concerns of the 1640 Act. The processes involve judicial officers in the general courts. The second is that they provide for a much broader inquiry into the detention than its legality alone. That is clearly demonstrated in the present case by a report of 21 April 1986 prepared by Greig J concerning Mr McVeagh under the power mentioned above. The inquiry lasted seven days and the report reviews at length the events which led to the appellant being charged with various offences and being detained in mental hospitals, the psychiatric examinations and assessments through the period, his treatment and counselling, an earlier review by a District Court Judge, and the extensive powers, going beyond the legality of the detention, available to the High Court Judge. The purpose of the provision, he said, was to provide an additional protection and safeguard to those who may be detained in a mental hospital. The Judge reviewed the opinions of the psychiatrists, the facts, and the willingness of the appellant’s mother to care for him. He had had the advantage of a lengthy hearing during which he was able to observe the applicant and to consider the evidence as it was given at more leisure than might ordinarily be the case. He had since taken time to reflect and reconsider the whole matter because of its great importance to the applicant. He was satisfied in terms of the conditions stated in the legislation that the applicant ought to be detained.
[33] We conclude that the 1640 Act was not in the slightest concerned with powers, processes and protection such as those included in the Mental Health Act 1969. In particular s6 could have had no application to the operation of that Act in the period s6 was in force. The cause of action based on it cannot be sustained and must be struck out.

The proposed new causes of action

[34] That leaves the relief sought on bases other than the claimed breaches of the 1640 Act included in the draft amended statement of claim. That proposed extension must be seen as an abuse of process and is rejected on that basis. The earlier proceedings, up to the judgment of this Court in August 2000, have already addressed those matters at length and with no success so far as the appellant is concerned. So far as the proposed Covenant claim is concerned, we record that the appellant has in fact already unsuccessfully sought a ruling from the Human Rights Committee (A v New Zealand UN Doc CCPR/C/66/D/754/1997 (3 August 1999)). The claim for a direct Covenant remedy in a New Zealand court also appears to be flatly contrary to principle.

Result

[35] Accordingly, the appeal is dismissed.
[36] As in the High Court, no costs orders were sought and we make none. That is not to be taken as an indication of the position that might be adopted were further proceedings to be brought and to fail.

Solicitors
N B Dunning, Wellington for the Appellant
Crown Law Office, Wellington for the Respondent