McVeagh v Attorney-General CA90/00 [2000] NZCA 422 (24 August 2000)

Last Updated: 16 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA90/00


BETWEEN JOHN MCVEAGH

Appellant


AND THE ATTORNEY-GENERAL

Respondent


Hearing: 21 August 2000

Coram: Keith J Fisher J Cartwright J

Appearances: Appellant in person
R Ellis for the Crown

Judgment: 24 August 2000

JUDGMENT OF THE COURT DELIVERED BY KEITH J

[1] Mr McVeagh appeals against a High Court order striking out his application for leave to bring proceedings under s124 of the Mental Health Act 1969 and his statement of claim. Mr McVeagh sought leave to bring proceedings against the Crown for damages for unlawful committal, negligence and malicious false imprisonment relating to periods between 1984 and 1993 when he was detained in various psychiatric institutions. Robertson J granted the Crown’s application to strike out the claim on the basis that the proceedings were time barred by s124(4) of the Mental Health Act which in general required proceedings to be brought within six months and that the proceedings were, in any event, res judicata.

Background

[2] To put the present application in context we refer to the somewhat lengthy history of proceedings in this matter. A fuller account can be found in Attorney General v McVeagh [1995] 1 NZLR 558.
[3] For most of the period between 1984 and early 1993, Mr McVeagh was detained under court order in various institutions, including the maximum security wing of Lake Alice Hospital. Throughout that period Mr McVeagh protested his detention, claiming that his original committal and continued detention were unlawful. Separate judicial inquiries conducted in 1984, 1986, 1988-90 (during the course of which Mr McVeagh became an outpatient on leave), 1991 and 1992 reached the conclusion that Mr McVeagh’s continued detention was necessary both for his own good and in the public interest.

[4] At the hearing of this appeal, Mr McVeagh gave major attention to applications he made in early 1989 and which, he said, had not been disposed of. In a letter to the High Court dated 15 February 1989, he applied for a writ of habeas corpus and for leave under s124 of the Mental Health Act to sue the Attorney General for wrongful committal. The response was a letter, dated 2 March 1989, in the following terms:

I acknowledge receipt of your letter of 15 February 1989 and the enclosed documents.

His Honour, Mr Justice Barker has, in the meantime declined your habeas corpus application and your Section 124 application. He has, however, directed that the Inspector make a report as to your circumstances. Your applications will be reconsidered when that report comes to hand.

...

[5] As already indicated, Mr McVeagh had pending at that time in the High Court a separate application for release. That application had been adjourned on the basis that Mr McVeagh was going to be released gradually into the community. However, as a result of subsequent events occurring while he was released, Mr McVeagh was again detained and the inquiry was resumed. Ellis J determined in August 1990 that Mr McVeagh suffered from a mental disorder as defined in the Mental Health Act and that his state of mind required continued detention or treatment in the public interest. That decision gave rise to a further inquiry in the High Court in which Gallen J considered whether Ellis J had incorrectly applied the law in determining that Mr McVeagh’s condition required his continued detention. The Judge concluded that neither Ellis J nor the psychiatrists on whose opinions
Ellis J reached his conclusions had so erred; it followed that he refused the application for discharge; Re M [1992] 1 NZLR 29.

[6] In 1993, within a month of his release, Mr McVeagh made a further application under s124 for leave to bring proceedings for damages against the Attorney General. He alleged that his incarceration was unlawful; that any mental illness suffered by him was caused by his unlawful and unjustified incarceration; that the defendant was negligent and acted without reasonable care in having the plaintiff committed to the Lake Alice security wing; and that the defendant acted maliciously and with improper motive in deciding to keep the plaintiff detained both during and after his incarceration in the Lake Alice security wing. The High Court refused the Crown’s application to strike out the statement of claim. However, on a Crown appeal, this Court struck out all four causes of action: Attorney-General v McVeagh [1995] 1 NZLR 558 and [1995] 2 NZLR 585. The Court held that the first three causes of action, so far as they stemmed from alleged medical misdiagnosis, were barred by s14(1) of the Accident Rehabilitation and Compensation Insurance Act 1991. It was possible that the initial detention in Lake Alice Hospital was unlawful, but that detention lasted for 12 days at the most and there was no ground for holding that it was the result of bad faith or want of reasonable care on the part of the defendant. The defendant accordingly had immunity from the first three claims by virtue of s124 of the Mental Health Act. The fourth claim – alleging bad faith and malice on the part of the defendant – was held to be vexatious and an abuse of process when considered against the five separate judicial considerations which had concluded that Mr McVeagh should be detained.

[7] Finally, on 15 December 1999, the present proceedings were commenced when Mr McVeagh filed a further application for leave under s124 to “bring civil damages proceedings against the Crown for unlawful committal, negligence and malicious false imprisonment”. Accompanying that application was a so-called “second amended statement of claim”. The causes of action numbered 1 to 4 in the “second amended statement of claim” are the same as the causes of action struck out by this Court. The only material difference is that the “second amended statement of claim” contains an additional fifth ground added in a different typeface at the end of the document. That fifth ground alleges that the judicial inquiry undertaken by Ellis
J in 1990 was conducted in breach of the principles of natural justice and that the defendant forced the plaintiff to starve for 45 days in order to begin the process for release.

The grounds of appeal

[8] Mr McVeagh bases his appeal on alleged defects in the way in which his applications for habeas corpus and for leave to issue proceedings under s124 of the Mental Health Act were dealt with by Barker J in 1989. There is no dispute that Mr McVeagh initiated those proceedings within the statutory time limit by his letter dated 15 February 1989. He submits that the decision of Barker J to decline those applications without a hearing was unlawful and in breach of the provisions of human rights instruments. He cites article 2(3)(a) of the International Covenant on Civil and Political Rights which provides that States must afford any person whose rights and freedoms have been violated an effective remedy, and article 9(4) and (5) concerning remedies for unlawful arrest and detention. He also relies on s27 of the New Zealand Bill of Rights Act 1990, which sets out the right to natural justice and the right to bring proceedings against the Crown. The implication flowing from this argument is, it appears, that because the 1989 applications were never lawfully determined, they must be seen as remaining extant. Accordingly, the present proceedings and application for leave under s124 must be regarded as a “continuation” of the 1989 application with the consequence that they are not time barred.

The statutory time bar

[9] Section 124 of the Mental Health Act (now repealed) protected persons acting under the authority of that Act from civil or criminal liability, unless they acted in bad faith or without reasonable care. Leave had to be obtained to bring proceedings against them. Subsection (4) of that section also in general required the application for leave to be brought within six months of the act complained of:

Leave to bring such proceedings shall not be granted unless application for such leave is made within 6 months after the act complained of, or, in the case of a continuance of injury or damage, within 6 months after the ceasing of such injury or damage:
Provided that in estimating the said period of 6 months no account shall be taken of any time or times during which the person injured was detained, whether lawfully or unlawfully, as a mentally disordered person, or was ignorant of the facts that constitute the cause of action, or of any time or times during which any defendant was out of New Zealand.

[10] Mr McVeagh has been at liberty since early 1993. The present proceedings were commenced in December 1999, well outside the required six month statutory time frame. Unless the present proceedings can be seen as a continuation of the 1989 or 1993 proceedings, they must on a straightforward reading of s124(4) be time barred.

[11] There may be a question whether the appellant’s 1989 applications were determined at the point when the appellant was advised by the letter of 2 March 1989 that a report into his circumstances had been requested and his applications had “in the meantime” been declined. We do not however have to consider that question because of the steps which were taken at the time and which directly affected the two applications. So far as the habeas corpus application was concerned, by 1989 arrangements were being made for Mr McVeagh’s release on leave into the community. That is to say, any immediate practical advantage of that application was lost. So far as the s124 application, made in 1989, was concerned, the argument that it remained extant runs flatly into the difficulty that in 1993, within a month of his release, Mr McVeagh made a new s124 application. That new application was heard in the High Court and all four causes of action contained in that statement of claim were struck out by this Court in 1994. Mr McVeagh’s argument that the strike out did not finally determine the proceedings because it was not made in the context of a s124 application is without merit. This Court held in no uncertain terms that there was no likelihood of a successful application by Mr McVeagh for leave under s124 and that it was “right and proper that the proceedings should come to an end”: [1995] 2 NZLR 585. There can be no doubt that the present proceedings and s124 application are distinct from the earlier applications and are accordingly time barred.

[12] The provisions of the New Zealand Bill of Rights Act 1990 and the International Covenant on Civil and Political Rights cited by the appellant do not assist his appeal. If there were any defect in the manner in which the 1989
applications were dealt with (a matter on which we make no determination) that is irrelevant to the present appeal and does not affect our conclusion that the 1999 application is a new and distinct proceeding. It follows that the appeal must be dismissed.

Res judicata

[13] Even were the appellant to succeed in arguing that the present proceedings should be regarded as having been made within the statutory limitation period, the appeal would fail on the alternative basis that the matters raised in the statement of claim are res judicata. The substance of the causes of action numbered 1 to 4 in the “second amended statement of claim” is the same as the substance of the causes of action struck out by this Court in 1994. That decision was a final decision of a court of competent jurisdiction on those four issues. That leaves the fifth, additional cause of action raised only in the second amended statement of claim. That cause of action concerns the question whether the 1990 inquiry conducted by Ellis J involved a breach of natural justice. The 1990 inquiry was the subject of proceedings before Gallen J in 1992. The new claim does not raise precisely the same legal questions considered by Gallen J. However, the new cause of action is so closely connected to that earlier litigation that it could and should have been raised and considered at that stage or in the 1993 proceedings if it was to be the subject of proceedings at all. The fifth cause of action must on that basis also be considered to be res judicata.

Result

[14] The appeal is accordingly dismissed. There will be no order as to costs.

Solicitors:

Appellant in person
Crown Law Office, Wellington