Book May Fulfil Purpose Re Exemplary Damages
Anne Hunt's Forbidden Book May Yet Fulfil It's Purpose Re
Exemplary Damages Issues, Says Author
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This morning’s cartoon in the DomPost says it all!
Friday’s Supreme Court decision allowing the survivor of the Mt Wellington RSA attack to sue the Corrections Department should come as no surprise for the Government’s top legal adviser, the Solicitor-General.
Ten years earlier, Dr David Collins had fronted up to the Privy Council to defend a citizen’s right to access the court and sue for exemplary damages.
Representing a woman who had accused her therapist of rape, Dr Collins had stated that “a fundamentally important principle of justice is that an individual who has a recognised cause of action for which the courts can grant relief, must be able to access the courts”.
In this instance he had identified three causes of action: trespass, negligence and a breach of fiduciary duty.
Sensing that an English court may not be receptive to the American concept of exemplary damages, Dr Collins had traced this civil remedy back to King Edward 1, and also pointed out that the right to sue for exemplary damages had been an integral part of common law in New Zealand since 1840.
“To deny the appellant an opportunity to pursue her claim offends one of the basic rights recognised by all civil societies”, he told the Privy Council. “Whatever conveniences were perceived as being achieved by the majority’s judgement, they are, with respect, insignificant compared with the injustice which is caused by denying the appellant an opportunity to prove her claim.”
In her book documenting this case, author Anne Hunt had devoted a whole chapter to the case Dr Collins put to the Privy Council.
The High Court banned her book.
Justice John Wild had issued orders for all copies of the book to be destroyed after finding the author to be in contempt of court. He had set aside all evidence relating to Dr Collins QC, claiming that Dr Collins was on record disputing that he had assessed the manuscript.
The Court of Appeal came to the view that Justice Wild had erred in his interpretation of the hearsay rule and quashed all High Court orders, conceding that Dr Collins QC had undoubtedly made quite extensive notations on the manuscript.
Due to the recent Supreme Court decision, Anne Hunt believes her book entitled Broken Silence may yet fulfil the purpose for which it was written – providing the legal profession with some insight into the principle behind exemplary damages, a legal remedy which Dr Collins QC said was relatively unheard of at the time his client first came to see him.
As he had explained to the author: “We were pursuing orthodox and recognised causes of action attempting to recover an orthodox and well-established remedy.”
His reasoning for his legally-aided appeal to the Privy Council, he put in simple terms: “Do you stop a citizen going to court?”.
It is the Supreme Court which ironically has given Dr Collins QC the response he had sought from the Privy Council.
But in doing so, the Supreme Court has cleared the way for a flood of claims which will keep lawyers for both government departments and members of the public fully occupied while benchmarks are established for civil claims based on either negligence or a breach of fiduciary duty.
In the meantime, the pressure will be upon all government employees to avoid any action which may later provoke, at the very least, protracted legal action as the courts wade through the implications of this landmark Supreme Court decision.