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Wilding v Attorney-General CA260/02 [2003] NZCA 453 (17 October 2003)

Last Updated: 5 August 2020

IN THE COURT OF APPEAL OF NEW ZEALAND

CA260/02

Hearing: 13 October 2003

Coram: Gault P Panckhurst J William Young J

Appearances: D R La Hood and A Shaw for Appellant A S Butler for Respondent

Judgment: 17 October 2003

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

• [1] This is an application pursuant to r2 of the New Zealand (Appeals to the Privy Council) Order 1910 for conditional leave to appeal against the decision of this Court dated 26 August 2003 in which it was held that s394(1) of the Accident Insurance Act 1998 imposed a bar in relation to recovery of monetary compensation for personal injury occasioned by a breach of a right affirmed by the New Zealand Bill of Rights Act 1990. The Court held in relation to a cause of action of the kind recognised in Simpson v Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 (CA) where personal injury was alleged that compensation for such injury could not be recovered on account of the statutory prohibition (now contained s 317 of the Injury Prevention, Rehabilitation, and Compensation Act 2001).

• [2] This issue was the subject of a preliminary question determination in the High Court pursuant to r418. Such decision was then the subject of an appeal to a Full

LEIGHTON BRIAN WILDING V THE ATTORNEY-GENERAL CA CA260/02 [17 October 2003]

Court, which unanimously affirmed the High Court decision that the statutory bar applied. It followed that the Baigent cause of action could not be marked, if made out, by an award of compensation for the injury itself. However, as the Court observed, an award for the affront to claimant’s rights or an award of exemplary damages may remain open.

• [3] The facts of the case are seriously in dispute. Mr Wilding alleges that he was injured by a police dog which was set upon him when he was handcuffed and in a prone position. Such is denied by the police who maintain that any injuries were sustained in the course of Mr Wilding’s apprehension for aggravated robbery of a supermarket. Resolution of this conflict of fact will be pivotal to determination of the Bill of Rights cause of action. Further causes of action for assault and battery and misfeasance in public office are asserted in the proceeding.

• [4] Mr La Hood submitted that the preliminary issue decision was a final judgment of this Court in a context where more than $5,000 was at stake, so that r2(a) applied; or alternatively, that as a matter of discretion conditional relief was appropriate because the preliminary question was one of general or public importance in terms of r2(b).

Was the preliminary issue decision a final judgment?

• [5] Mr La Hood relied upon Strathmore Group Limited v Fraser [1992] 3 NZLR 385 (PC) in submitting that the Full Court decision was a final judgment, despite the fact that its subject matter concerns one head of damages, the trial is yet to proceed and liability is still at large. However Mr Butler contended that the decision was not a final judgment and accordingly that an appeal did not lie as of right. He sought to distinguish Strathmore and drew attention to several authorities concerning leave applications decided subsequent to Strathmore.

• [6] Strathmore involved a claim for damages for alleged breach of fiduciary duty in relation to a sale of company shares. The proceeding raised three issues : whether there had been a compromise of the claim, whether any such compromise had been cancelled and whether there was a breach of fiduciary duty. A direction was made

that the compromise question be tried as a preliminary issue in the High Court. The Judge held that there was no binding compromise. On appeal this Court reversed that finding and in addition concluded that the compromise had not been cancelled by a breach of its terms. The appeal was therefore allowed and judgment entered for the appellants.

• [7] Nonetheless conditional leave was subsequently refused, when counsel advised a differently constituted Court which considered the leave application that cancellation of the compromise by breach remained a live issue for trial. In light of that intimation leave was refused on the footing that the preliminary issue appeal decision was not a final judgment.

• [8] However in the Privy Council counsel submitted a consent memorandum which indicated the true position was that the cancellation issue was not alive, the earlier intimation to the contrary given to this Court being unfortunate, inadvertent and erroneous. Hence special leave was granted.

• [9] Once this history is unravelled it is apparent that Strathmore was a straight- forward final judgment case where an appeal lay as of right. Mr La Hood, however, relied upon a passage at page 389 of the Privy Council judgment as nonetheless relevant and of general application:

A trial in two parts involves the danger of two appeals to the Court of Appeal and two appeals to the Privy Council. On the other hand the second part of the trial may be rendered wholly unnecessary by the decision on the first part. The litigants must take these factors into account when considering whether to apply for or consent to the division of the trial into two parts. The Judge must decide whether, taking into account the issues involved and the nature of the evidence required for each issue, the disputes between the litigants can best be resolved by a single trial or by a trial in two parts. If the Judge orders a trial in two parts there is an irremedial danger of two appeals to the Court of Appeal and justice requires that an appeal to the Privy Council should not be denied on the first part but perforce accepted on the second part. In the present case, if the Court of Appeal had upheld the decision of Robertson J on the first part, it would have been unfair to deny the respondents a right of appeal to the Privy Council on the compromise issue or the cancellation issue while accepting Strathmore could appeal to the Privy Council as of right if Strathmore failed on the misconduct issue. It is equally unfair to deny Strathmore a right of appeal against the decision of the Court of Appeal which reversed Robertson J on the compromise and cancellation issue and therefore finally dismissed the claim by Strathmore for sums vastly in excess of NZ$5000.”

• [10] In light of these observations Mr La Hood submitted that where a case was divided into parts by the trial of a preliminary issue an appeal should lie as of right from the decision of this Court on such preliminary issue, if a right of appeal would have been available following a normal substantive hearing. The fact that two trials, two appeals to this Court and two appeals to the Privy Council may result was a consequence which was necessary in the interests of justice.

• [11] It is first to be noted that the observations quoted above were not necessary or relevant given the actual situation which existed at the time of the Privy Council hearing. By then it was common ground that the preliminary issue decision of this Court was a final judgment. Nothing remained to be heard in the High Court in light of the decision of this Court that the parties had compromised their differences and such compromise had not been cancelled by breach. We think the observations of the Privy Council may have been apposite in a r2(b) context, but their relevance in the actual situation of Strathmore is difficult to discern.

• [12] The very unusual situation in Strathmore has been recognised in subsequent decisions of this Court including for example in Langham v Seed (1994) 8 PRNZ 8 (CA). It too was a case where a preliminary issue, liability, was heard in the High Court and became the subject of an appeal to this Court. The unsuccessful appellants sought conditional leave to appeal to the Privy Council at that point. Such was declined. McKay J in delivering the judgment of the Court distinguished Strathmore characterising it as an unusual case and adding at page 10:

The present case involves an entirely different situation. There can be no suggestion that the judgment of this Court disposed of the proceeding. Liability has been established, but damages have yet to be assessed in the High Court. No rights of appeal will be lost if the present application is refused as being premature. The time for appeal does not commence to run until there is a final judgment of this Court. The judgment of 23 September (of the Court of Appeal on the preliminary issue) will become a final judgment once the High Court has assessed damages and entered judgment, and after any appeal from that judgment has been determined or abandoned or the time for appeal has expired.

He referred to similar situations having arisen in Attorney-General v Gray [1982] 2 NZLR 22 (CA) and Reid v Reid (No 2) [1980] 2 NZLR 276 (CA) where appeals to the Privy Council ultimately proceeded.

• [13] We regard the present case as indistinguishable. The decision on the preliminary issue resolves but one aspect of the claim for damages. Liability, if it is established, and damages (other than for personal injuries) still remain to be considered in the High Court. In these circumstances there is no final judgment and an appeal as of right pursuant to r2(a) does not lie.

Leave pursuant to Rule 2(b)?

• [14] In the alternative Mr La Hood sought discretionary leave on the basis that the statutory bar decision of this Court was one of great general or public importance. He pointed out that if the case was the subject of a jury trial, which the Crown had indicated was its preference, there was potential for significant complications to arise absent a further appeal at this point. As matters stand any such trial would proceed in light of the statutory bar ruling. A jury would not hear evidence nor answer issues relevant to the issue of monetary compensation for personal injury. If a subsequent appeal to the Privy Council in relation to the statutory bar issue was successful, compensation for the personal injuries aspect would remain to be determined.

• [15] Mr Butler accepted that the statutory bar question is one of great general or public importance. However he opposed the extension of leave pursuant to r2(b) on the basis that an appeal at this juncture would be premature. Only if liability is established will the question of monetary compensation arise. Liability is hotly disputed, and counsel accordingly submitted that it was preferable to determine the facts of the case before any appeal proceeded on what may prove to be an academic issue at least in relation to this claimant. Importantly, and contrary to the indication apparently given at an earlier stage, the Crown is no longer disposed to seek trial by jury. That is a change of heart which we do not find surprising in light of the observations contained in Baigent’s Case concerning the inappropriateness of jury trial with reference to Bill of Rights causes of action.

• [16] We are in no doubt that it is premature to consider leave pursuant to r2(b) at this point. Plainly the better course is to await determination of liability in the High Court. The expense and delay entailed in an immediate second appeal outweighs any risk of inconvenience arising if there should subsequently be a successful appeal

on the preliminary point. Particularly now that the prospect of a jury trial has gone, any inconvenience arising from the possibility of a subsequent successful appeal is manageable. For these reasons leave in terms of r2(b) is refused.

Disposition

• [17] In Langham v Seed the Court adjourned the conditional leave application to be brought on with 21 days notice, after the remaining issues had been determined in the High Court or after any appeal to this Court had been determined or abandoned, or the right of appeal lost. A similar approach is appropriate in this instance, given counsel's acceptance that the statutory bar issue was one of general or public importance. The present application should remain alive as a vehicle for leave to be further considered, should liability be established. The application is accordingly adjourned on these terms.

• [18] Submissions were not made with reference to costs presumably because this is a legal aid case. If sought, memoranda may be filed.

Solicitors:

Sladden Cochrane & Co, Wellington, for Appellant Crown Law Office, Wellington