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Smyth v Chief Executive of the Department of Corrections [2019] NZHC 3435; [2020] 2 NZLR 423 (19 December 2019)

Last Updated: 11 May 2021

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JUDGMENT OF CULL J

Background [2]

Issue [7]

Do either of the Limitation Acts apply to Mr Smyth’s claim? [11]

How long a delay is too much? [23]

The circumstances in which the cause of action arose [25]

The effect of the breach and the “declaratory theory” [32]

Whether the delay has prejudiced the defence of the claim [41]

Decision [42]

Quantum [47]

Costs [53]

• [1] This is a New Zealand Bill of Rights Act 1990 (NZBORA) claim arising from an erroneous calculation of a prisoner’s release date. It follows the Supreme Court’s decision in Booth v R, which overturned the method of calculating credit to be given for pre-sentence detention.¹ Mr Smyth seeks public law compensation for his arbitrary

¹ Booth v R [2016] NZSC 127, [2017] 1 NZLR 223.

SMYTH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 3435 [19

December 2019]

and unlawful detention in breach of s 22 NZBORA, arising from the unlawful extension of his prison sentence in 2007 by 55 days.

Background

• [2] On 3 March 2006, Mr Smyth was charged with criminal offences and remanded in custody. On 4 May, Mr Smyth was sentenced to a term of two years’ imprisonment. Mr Smyth’s statutory release date was 28 February 2007. He was not released from prison until 24 April 2007. This was due to a misunderstanding of the law. Prior to 2016, the calculation of “pre-sentence detention” was based on the Court of Appeal’s decision in Taylor v Superintendent of Auckland Prison.² Under Taylor, credit was given for pre-sentence detention on a charge-by-charge and relatedness basis. The result was that Mr Smyth was released on 24 April 2007.

• [3] However, on 22 September 2016, the Supreme Court in Booth v R overturned this method of calculating credit to be given for pre-sentence detention.³ On the basis of Booth v R, there was no lawful justification for Mr Smyth’s retention in prison between 28 February and 24 April 2007, amounting to 55 days. The Court of Appeal has held, and it is accepted by both parties, that Booth v R applies retrospectively.⁴

• [4] Initially, Mr Smyth claimed the tort of false imprisonment and general damages. The Chief Executive of the Department of Corrections responded by issuing an application to strike out the proceedings on the basis that s 4(1)(a) of the Limitation Act 1950 bars any proceeding in tort brought more than six years after accrual of the cause of action. The cause of action accrued on 24 April 2007, and the statement of claim was filed on 10 October 2018. Mr Smyth amended his statement of claim, and the strike-out application was withdrawn.

• [5] Mr Smyth now claims for a declaration that he was unlawfully and arbitrarily detained for 55 days, contrary to s 22 of NZBORA. He claims public law compensation (Baigent damages) of $18,000, interest on the compensation under s 10

² Taylor v Superintendent of Auckland Prison [2003] NZCA 159; [2003] 3 NZLR 752 (CA).

³ Booth v R, above n 1.

4. Chief Executive of the Department of Corrections v Gardiner [2017] NZCA 608, [2018] 2 NZLR 712.

of the Interest on Money Claims Act 2016 from 24 April 2007 until payment, and costs.

• [6] The Chief Executive accepts, following Booth v R, that there was no lawful justification for Mr Smyth’s detention for those 55 days, and that his detention amounted to arbitrary detention for the purposes of s 22 of NZBORA. However, the Chief Executive submits the Court should decline to make any award of Baigent damages because the claim was filed too late, more than 11 years after the accrual of the cause of action.⁵ She submits that the claim is effectively time-barred by s 4(1)(a) of the Limitation Act 1950, which applies by analogy to a claim in tort for false imprisonment.

Issue

• [7] The single issue for determination in these proceedings is whether the Court should award Baigent damages. This includes consideration of whether the claim is time-barred by analogy with the Limitation Act 1950 (the 1950 Act) and/or the Limitation Act 2010 (the 2010 Act).

• [8] As the Chief Executive has pleaded an affirmative defence, she bears the onus of proof to establish limitation as a defence or a ground on which to withhold a discretionary remedy.⁶

• [9] For completeness, Mr Smyth does not seek relief from mistake and it was agreed by both parties at the outset that s 23 of the 1950 Act is not engaged.⁷

• [10] I turn first to consider whether the 1950 Act or the 2010 Act apply to this claim.

⁵ Relying on P F Sugrue Ltd v Attorney-General [2003] NZCA 204; [2004] 1 NZLR 207 (CA).

⁶ Humphrey v Fairweather [1993] 3 NZLR 91(HC); and Bonney v Cottle [2012] NZHC 909.

7. Mr Smyth’s mistake is not an element of the cause of action for arbitrary detention. The mistake is “legally irrelevant” to the cause of action that is asserted because to establish a claim for arbitrary detention, no mistake needs to be asserted on the part of a plaintiff. The essence of a cause of action for arbitrary detention is that there is a lack of legal authority for the detention.

Do either of the Limitation Acts apply to Mr Smyth’s claim?

• [11] The 2010 Act came into force on 1 January 2011, introducing a new limitation regime for claims to which it applies from the date of its commencement. The 1950 Act was amended and repealed by the 2010 Act, but continues to apply to an action, cause of action or right of action based on an act or omission that occurred before 1 January 2011 and to which the 1950 Act applied immediately before its repeal.⁸

• [12] The starting point in my consideration is the Court of Appeal’s decision in P F Sugrue Ltd v Attorney-General.⁹ The Court of Appeal, sitting as a Full Court, held that the 1950 Act does not apply to public law compensation payable for breaches of NZBORA, such as Baigent damages, as it is not a sum of money recoverable by virtue of s 4(1)(d) or any other provision in the 1950 Act.¹⁰ On this basis, the 1950 Act does not apply to Mr Smyth’s Baigent claim.

• [13] However, the Court of Appeal invoked the equitable principle of “limitation by analogy” and held that where the 1950 Act does not apply, the court “will still be guided to an extent by the periods set for the bringing of common law and statutory claims by the Limitation Act”.¹¹ The Court reasoned “[i]t does not... follow that a claim of this nature, for monetary compensation, should be able to be brought no matter how belatedly the claimant chooses to put it forward”.¹² When a claim is belatedly brought, the Court has a discretion to refuse to make an award of damages by reason of the delay, including damages for breach of NZBORA. The Court has a degree of flexibility in determining how long a delay is too much. All the circumstances should be considered, including:¹³

(a) the circumstances in which the cause of action arose;

(b) whether the breach of the plaintiff’s rights may have had an effect which excuses the delay; and

8. Limitation Act 2010, s 59(1) and (2); Limitation Act 1950, ss 2A(1), 23A, 23B, 23C and 23D; and see JC Corry Limitation Act Handbook (Lexis Nexis, Wellington, 2011) at 5.

⁹ P F Sugrue Ltd v Attorney-General, above n 5.

¹⁰ At [69].

¹¹ At [70].

¹² At [70].

¹³ At [70].

(c) whether the delay has prejudiced the defence of the claim.

• [14] The Court of Appeal said further that the nature of the relationship between the state and the individual is such that a Baigent action for compensation is comparable to an action for equitable compensation:¹⁴

Baigent damages are a form of compensation which the Court awards, as we have noted, in the exercise of a discretion. In that respect they bear a resemblance to compensation awards in equity. And, as with equitable awards, the Court should be able to refuse monetary relief if the plaintiff delays too long in bringing a Baigent claim.

• [15] The Chief Executive contends that, because Mr Smyth’s cause of action for arbitrary detention had occurred by 24 April 2007, the limitation period, by analogy, began to run, notwithstanding that Mr Smyth was unaware that he could bring proceedings in vindication of his rights.¹⁵ The Chief Executive submits that the s 22 NZBORA claim has the same underlying interest, namely the physical liberty of the subject, and is most analogous with the common law claim in tort for false imprisonment. Therefore, she submits, the appropriate limitation period to guide the Court’s discretion in awarding Baigent damages is s 4(1)(a) of the 1950 Act, which bars any proceeding in tort brought more than six years after the accrual of the cause of action. On this basis, the Chief Executive submits the Court should refuse to make an award of damages because of Mr Smyth’s 11 year delay.

• [16] The Chief Executive says this approach is bolstered by the inclusion of a claim for damages in the types of claim that may be time-barred under the 2010 Act, which suggests that Parliament does not view Baigent damages as a unique form of remedy that should be treated differently from other kinds of monetary relief.¹⁶ Notwithstanding that Baigent damages are given for breaches of fundamental rights, the Chief Executive submits such claims need to be brought with the same timeliness as other types of claims.

• [17] Mr Smyth, on the other hand, relies on the comparison drawn by the Court in

Sugrue between Baigent damages and equitable compensation to submit that equitable

¹⁴ At [70].

¹⁵ Law Society v Sephton & Co [2006] UKHL 22; [2006] 2 AC 543 at [7], [37] and [56].

¹⁶ Limitation Act 2010, ss 11 and 12.

limitation concepts readily transpose onto Baigent claims. While recognising the comparison to the tort of false imprisonment, he submits that stronger analogies can be drawn between this class of Baigent claim and breach of fiduciary duty.

• [18] He says that Corrections was in a position of power and control over a largely powerless and therefore vulnerable Mr Smyth and had a specific obligation imposed by law, for Mr Smyth’s benefit, to calculate his period of incarceration correctly. This is in accordance with the protective nature of NZBORA and the International Covenant on Civil and Political Rights, he says, which strengthens the analogy of the relationship between NZBORA state obligations. It is through this analogy to fiduciary obligations that the concept of reasonable discoverability is raised. In some cases, equitable causes of action have been held to be subject to reasonable discoverability of the wrongful nature of the conduct.¹⁷

• [19] Mr Smyth submits this point is bolstered by the fact that reasonable discoverability principles have now been expressly adopted for Baigent actions accruing under the 2010 Act. Sections 11(3) and 14 create a late knowledge extension in cases where a plaintiff did not know that the act or omissions on which the claim is based had occurred or were attributable to the defendant. Under s 14(3), the late knowledge may be attributable to a mistake of fact or law. If the 2010 Act’s late knowledge provisions applied to this case, the limitation period would be extended to 22 September 2019, three years from the delivery of Booth v R.¹⁸

• [20] Mr Smyth’s final point is that the longstop provisions of the 1950 Act apply, by analogy, in these circumstances.¹⁹ Section 23B is applicable by virtue of s 23A, and it provides:

23B Longstop period of limitation

(1) No action to which this section applies may be brought after the last to end of the following periods:

(a) 5 years ending on the close of 31 December 2015:

17. S v G [1995] 3 NZLR 681 (CA); upheld in Murray v Morel & Co Ltd [2007] NZSC 27, 2 NZLR 721 at [80].

¹⁸ Limitation Act 2010, s11(3)(a).

¹⁹ Limitation Act 1950, ss 2A, 23A and 23B.

(b) 15 years after the date of the act or omission on which the action is based.

(2) That period of limitation applies to the action in addition to every other period of limitation that applies to the action.

(3) This section is, in accordance with section 3, subject to Part 2, which provides for the extension of that period of limitation in the case of disability, acknowledgment, part payment, fraud, and mistake.

• [21] The effect of the longstop provisions in the 1950 Act is to create a 15-year longstop period from the date of the act or omission sued on for all claims prior to the commencement of the 2010 Act. If the 1950 Act applied by analogy to this claim, a 15 year longstop period from the date of the act or omission sued on, namely 28 February 2007, could apply and Mr Smyth’s claim would be filed within time. Mr Smyth submits those provisions should guide the Court in considering how long a delay is too long in the circumstances.

• [22] Although neither Acts directly apply, both the 1950 Act and 2010 Act have provisions which will guide my assessment of delay. Bearing those provisions in mind, I turn to the key consideration identified in Sugrue – how long a delay is too much?

How long a delay is too much?

• [23] In Sugrue, the Court cautioned that there must be a degree of flexibility in determining how long a delay is too much.²⁰ All the circumstances, including those in which the cause of action arose, whether the alleged breach of the plaintiffs’ rights may have had an effect which excuses the delay and whether the delay has prejudiced the defence of the claim should be considered.²¹ Importantly, the Court stressed that appropriate and significant weight should be given to the fact that the claim is a breach of a fundamental human right guaranteed by NZBORA.²²

• [24] I turn then to consider the Sugrue criteria to determine whether delay ought to preclude a claim for damages in this case.

²⁰ P F Sugrue Ltd v Attorney-General, above n 5, at [70].

²¹ At [70].

²² At [70].

The circumstances in which the cause of action arose

• [25] The Chief Executive acknowledges that deprivation of the liberty of an individual by way of imprisonment is an important factor to be taken into account in determining the circumstances of a breach under s 22 of NZBORA. However, it is accepted that the breach in this case was not occasioned by a deliberate or negligent act on behalf of Corrections. Corrections calculated Mr Smyth’s release date by applying the then-binding Court of Appeal authority in Taylor. The Chief Executive also submits that there was no basis on which Corrections could have appealed the Taylor decision to the Supreme Court. Having advanced the legal argument that was accepted by the Court of Appeal in Taylor, there would have been no basis on which to appeal it.

• [26] Paradoxically however, the Chief Executive alleges that Mr Smyth could have brought a proceeding challenging his detention in 2007, just as Mr Booth and Mr Marino did in Booth v R. This raises the issue of reasonable discoverability, which is relevant to the circumstances in which the cause of action arose. Mr Smyth submits that the Court should be guided by the fact that until the Supreme Court decision in Booth v R, he was unaware of the wrongful nature of the conduct in the pleaded cause of action.

• [27] The Chief Executive submits there are only three types of cases in New Zealand in which the courts have held that “reasonable discoverability” applies to prevent the accrual of a cause of action or to suspend the running of a limitation period: cases of latent damage to buildings,²³ sexual abuse,²⁴ and physical injury.²⁵ Further, when the Supreme Court was urged in Murray v Morel & Co Ltd to extend the doctrine of reasonable discoverability to other classes of case, the Court rejected the invitation:²⁶

Save when the Limitation Act itself makes knowledge or reasonable discoverability relevant, the plaintiff’s state of knowledge has no bearing on limitation issues. Accrual is an occurrence-based, not a knowledge-based, concept.

²³ Invercargill City Council v Hamlin [1994] 3 NZLR 513 (CA).

²⁴ S v G, above n 17.

²⁵ G D Searle & Co v Gunn [1996] 2 NZLR 129 (CA).

²⁶ Murray v Morel & Co Ltd, above n 17, at [69].

• [28] However, there is room to argue that the Court may have recognised an exception for equitable causes of action. In S v G, the case referred to by Corrections as the “sexual abuse” type of case to which reasonable discoverability applies, the first cause of action was for breach of fiduciary duty.²⁷ In rejecting an “all-embracing” reasonable discoverability doctrine, the Supreme Court in Murray v Morel held:

[80] The circumstances of S v G support the view, which I have already mentioned briefly, that the substantial fiduciary overlay, and the linking of the negligence and fiduciary claims for limitation purposes, seem to have influenced the Court in its decision to introduce a discoverability element into the conventional accrual doctrine. If S v G is viewed in this way, I do not consider the reasoning which has persuaded me to reject Mr O’Callahan’s argument for an all-embracing reasonable discoverability doctrine means that S v G was wrongly decided. A claim for bodily injury, when the claim is based on a breach of a duty of care in equity, that is, where the bodily injury is caused by a person whose conduct represents a breach of duty by a fiduciary, can properly be regarded as not accruing until the link between the wrongdoer’s conduct and the plaintiff’s damage is known to or ought to be known to the plaintiff... The analogous bar which sometimes defeats an equitable claim can properly be administered on a basis which recognises the need for a reasonable discoverability approach.

• [29] In this case, prior to 2016, all parties were labouring under a misapprehension of the law. That mistake of law led to an erroneous calculation of Mr Smyth’s statutory release date. I accept Mr Ewen’s submission for Mr Smyth that it is not seriously arguable that this mistake was reasonably discoverable prior to 2016 when the Supreme Court delivered judgment in Booth v R. This is the mistake that would ground an extension of the limitation period on a late knowledge basis.²⁸

• [30] As Simon France J noted in Marino v Department of Corrections, a passage subsequently repeated and upheld by the Court of Appeal:²⁹
  • [20] ... The main driver for the Chief Executive’s submission appears to be the perceived unfairness of it all. This is because the Chief Executive was obligated to follow the law as laid down in Taylor’s case, and is not at fault.

• [21] There are several responses to this. First, the perceived unfairness is not unique. It is the direct consequence of the declaratory theory and applies whenever decisions of precedent value are overruled. Second, it is wrong to treat the matter as if the Chief Executive were a private individual. It is the

²⁷ S v G, above n 17.

²⁸ Limitation Act 2010, s 14(3).

²⁹ Marino v Chief Executive of the Department of Corrections [2016] NZHC 3074, [2017] NZAR 9 at [20]- [21]; upheld in Chief Executive of the Department of Corrections v Gardiner, above n 4, at [23].

State which aggregates to itself the power to keep people in jail, and properly recognises it must have lawful authority to do so. The right not to have one’s liberty removed other than with lawful authority is a key plank of our society, and one of its most important and fundamental rules. The value attached to the writ of habeas corpus which requires immediate release reflects this. False imprisonment is a tort of strict liability for good reason.

• [31] I consider the circumstances in which the cause of action arose, although not brought about by any bad faith or negligence, involve a recognition that Mr Smyth’s liberty was removed other than with lawful authority, albeit that recognition occurred retrospectively in 2016. This error was not reasonably discoverable by Mr Smyth prior to 2016.

The effect of the breach and the “declaratory theory”

• [32] The Chief Executive submits the detention for 55 days in 2007 did not prevent Mr Smyth from bringing a claim at any point either during the unlawful detention or after it. There was clearly no conduct on the part of Corrections which concealed the circumstances of Mr Smyth’s detention. Although the unlawfulness of the detention was not known or reasonably discoverable before 2016, the Chief Executive relies on the declaratory theory to submit that the decision in Booth v R did not stop (or restart) the running of the limitation period: Mr Smyth “cannot have it both ways.”

• [33] The declaratory theory is defined in Black’s Law Dictionary as “[t]he belief that judges’ decisions never make law but instead merely constitute evidence of what the law is.”³⁰ It is a common law theory that the final court simply clarifies what the words of the statute have always meant. The courts have acknowledged that the declaratory theory is a legal fiction. It is plain that judges “change” the law when they make certain decisions.³¹ However, such “changes” apply retrospectively. In this instance, the Supreme Court in Booth v R has stated the law both as it is now and as it always was. As this Court explained in Marino v Chief Executive of the Department of Corrections, “[c]ases along the way may have reached other interpretations, but they were not final and are now to be seen as incorrect.”³²

³⁰ Bryan A Garner (ed) Black’s Law Dictionary (11^th ed), Thomson Reuters, 2019) at 514.

31. Kleinwort Benson Ltd v Lincoln City Council [1998] UKHL 38; [1999] 2 AC 349 (HL) at 410; and Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7(SC) at [135].

³² Marino, above n 29, at [8].

• [34] The courts in both New Zealand and the United Kingdom have recognised that in certain circumstances it may be possible for senior courts to limit the retrospective effect of their decisions.³³ However, Booth v R has been held by the Court of Appeal to be “unmistakeably retrospective in effect”:³⁴

Had the [Supreme] Court meant to limit the retrospective effect of its judgment in that way it must have said so. It could not remain silent on so particular a distinction or fail to discuss the policy considerations that must inform it.

• [35] The essence of the Chief Executive’s contention is that in order for Corrections to have any liability to Mr Smyth, it must be accepted that the Supreme Court’s decision in Booth v R states the law as it is now and as it always was. Thus, the Chief Executive argues, if, following Booth v R, Corrections’ liability occurred in 2007, then the limitation period must be taken to have begun in 2007 too. In short, the Chief Executive says, limitation and liability must occur from the same date. She submits that this ensures the equal application of Booth v R between Corrections and Mr Smyth, as a matter of fairness. On that basis, the Chief Executive claims Mr Smyth could have brought a proceeding challenging his detention in 2007 as, applying the declaratory theory, the miscalculation in 2007 was unlawful as soon as it was made. If Mr Smyth had done so, his claim would have been brought in time.

• [36] This submission is problematic, as this argument has been rejected by both this Court and the Court of Appeal in Gardiner v Chief Executive of the Department of Corrections. The High Court held:³⁵
  • [15] The Chief Executive asserts that Mr Gardiner did not take all steps reasonably available to him to mitigate his loss arising from the unlawful extension of his sentence of imprisonment. ...

• [16] Furthermore, in addition to those complaints mechanisms, Mr Gardiner could have, but did not:

(a) appeal to the sentencing court against the Department of

Corrections’ calculation of his pre-sentence detention; or

(b) apply for a writ of habeas corpus to test the legality of his

33. Lai v Chamberlains, above n 31; and Re Spectrum Plus Ltd (in liq) [2005] UKHL 41, [2005] 2 AC 680.

³⁴ Chief Executive of the Department of Corrections v Gardiner, above n 4, at [22].

35. Gardiner v Chief Executive of the Department of Corrections [2017] NZHC 1831, [2017] NZAR 1348.

detention (as Mr Marino did).

...

[19] The plaintiff on the other hand says the requirement to make reasonable use of these mechanisms is based on whether it is objectively reasonable to use them. ...having regard to Mr Marino’s claim which had to be taken to the Supreme Court before the Taylor approach to calculating release dates was reversed, it was not reasonable to expect Mr Gardiner to have taken any other steps to challenge the calculation because the result would have been the same.

...

[23] Given the Department’s calculation of Mr Gardiner’s release date was undertaken in accordance with the Court of Appeal decision in Taylor, and with established Corrections Department procedure over a 14-year period, I do not consider it was objectively reasonable to expect him to make use of the internal and external complaints procedures identified, which would have inevitably been fruitless.

• [37] The Court of Appeal agreed:³⁶

[40] Mr Perkins submitted that a declaration would be sufficient redress in the circumstances and Dunningham J was wrong to decide otherwise. He submitted first that Mr Gardiner did not take all reasonable steps to help himself. We have rejected the submission that Mr Gardiner ought to have used internal complaints mechanisms, but Mr Perkins also argued that he ought to have appealed his sentence or moved for habeas corpus. We do not agree that it was reasonable to expect him to do so, for the same reasons that the Chief Executive believed the law settled.

• [38] The absence of complaint or action at the time does not in the circumstances give rise to a competing equity in the Chief Executive’s favour. I consider the result would have been the same for Mr Smyth if there had been a complaint. Any attempt by Mr Smyth to challenge the outcome inevitably would have been met with resistance and opposition from the Chief Executive, as demonstrated in the authorities.

• [39] There is one last point to cover in relation to the effect of the breach. The Chief Executive submits that there is not merely a question of fairness as between Mr Smyth and the Chief Executive, but there is a matter of fairness as between Mr Smyth and other potential plaintiffs. It is submitted that a hypothetical plaintiff who experienced the same type of unlawful detention as Mr Smyth, only four years

³⁶ Chief Executive of the Department of Corrections v Gardiner, above n 4.

later, and filed a claim on the same day as Mr Smyth, would have their claim for damages clearly statute-barred by the 2010 Act.

• [40] I do not accept this hypothetical. As Mr Ewen submits, persons in equivalent circumstances as those described may well be able to avail themselves of the late knowledge provisions under the 2010 Act. If the late-knowledge provisions apply, claims filed at a date later than Mr Smyth’s may not be statute-barred.

Whether the delay has prejudiced the defence of the claim

• [41] The Chief Executive acknowledges that in this case the delay did not prejudice the defence of the claim and in my view, nor could it cause prejudice. The proceedings have been filed within a reasonable time of the Booth v R decision delivered in 2016.

Decision

• [42] Mr Smyth’s claim arises from a breach of NZBORA. He seeks Baigent damages, a form of public law compensation which the court awards in the exercise of its discretion. The unlawfulness of Mr Smyth’s continued detention arose as a result of the Supreme Court’s clarification of what the legislation meant and how the calculation of pre-sentence detention should have been calculated.

• [43] There was no negligence, lack of good faith or fault on the part of Corrections However, that is not an answer to the issue before this Court and that is, whether the Court should award Baigent damages where there has been an 11-year delay.

• [44] I do not find the delay between Mr Smyth’s arbitrary detention and in the bringing of this claim to be too long, or unreasonable in the circumstances. Mr Smyth brought his claim within a reasonable time once the calculation error was corrected by the Supreme Court, being two years and three weeks.

• [45] In exercising my discretion in this regard, I have been guided by the time periods set in both the Limitation Acts. In particular, I have been guided by s 23B of the 1950 Act which applies a longstop period of limitation of 15 years to any claim for equitable relief based on an act or omission before 1 January 2011, and ss 11 and 14

in the 2010 Act which provide late knowledge provisions for claimants who did not know the act or omission had occurred. Neither of the Acts apply to this claim, but I have found the extension of time limits a useful guide to my assessment of delay here.

• [46] I find that Mr Smyth’s claim has not been brought too late and is not time- barred by analogy. In the exercise of my discretion, I uphold his claim and award him Baigent damages.

Quantum

• [47] Both parties agree with the guidance given by the Court of Appeal in Gardiner

on assessing quantum for an award of Baigent type damages.³⁷

• [48] The Court approached the assessment on the basis that it was valuing the loss of Mr Gardiner’s liberty for approximately five per cent of his lawful sentence.³⁸ Mr Gardiner was unlawfully detained for 30 days. The Court stressed that an award must be large enough to vindicate the important liberty interest, but there is no cause to increase that sum for emotional harm or deterrence.³⁹

• [49] Adopting the Court of Appeal’s approach, a 55 day unlawful extension gives a midpoint figure, on the Gardiner assessment, of $18,333.33. Using the Reserve Bank of New Zealand’s inflation calculator, the adjusted amount in 2007 terms is

$15,029.49.

• [50] Mr Ewen also seeks interest, submitting that Mr Smyth is presumptively entitled to interest under the Interest on Money Claims Act 2016 from the date the cause of action arose.⁴⁰ I note that the primary purpose of the Interest on Money Claims Act is to provide for the award of interest as compensation for a delay in the payment of money claims in respect of which civil proceedings are commenced.⁴¹ Under s 3(2)(b), interest is to be paid from the day on which the money claim is quantified until the day of payment.

³⁷ Chief Executive of the Department of Corrections v Gardiner, above n 4.

³⁸ At [69].

³⁹ At [69].

⁴⁰ Section 9(1)(a)(i).

⁴¹ Section 3(1).

• [51] I take the same approach as Dunningham J in Gardiner v Chief Executive of the Department of Corrections.⁴² In that case, interest was declined on the basis that r 11.27 of the High Court Rules 2016 prescribes interest after the date of judgment when the award of damages is made. I have decided on an appropriate award of damages and do not consider it appropriate to award interest.

• [52] I therefore uphold Mr Smyth’s claim for his arbitrary and unlawful detention contrary to s 22 of NZBORA and award him the sum of $15,030 in damages.

Costs

• [53] As the plaintiff is in receipt of legal aid, Mr Ewen advises the Court that there are unresolved costs issues from the case management phase of this case. If it is helpful to counsel, this is an appropriate case for an award of 2B costs in favour of the plaintiff. If counsel cannot settle costs by agreement, I reserve leave to have the issue of costs determined by this Court. Counsel are to file memoranda.

Cull J

Solicitors:

Cooper Legal, Wellington for Plaintiff

Crown Law Office, Wellington for Defendant

⁴² Gardiner v Chief Executive of the Department of Corrections, above n 35.