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New Zealand Defence Force v Berryman and Berryman [2008] NZCA 392 (25 September 2008)

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New Zealand Defence Force v Berryman and Berryman [2008] NZCA 392 (25 September 2008)

Last Updated: 13 October 2008


IN THE COURT OF APPEAL OF NEW ZEALAND

CA340/07 [2008] NZCA 392

BETWEEN NEW ZEALAND DEFENCE FORCE
Appellant


AND KEITH HUGH NICOLAS BERRYMAN
First Respondent


AND MARGARET BERRYMAN
Second Respondent


Hearing: 18 June 2008


Court: William Young P, Ronald Young and Miller JJ


Counsel: H S Hancock and D A McDonald for Appellant
Dr R A Moodie for Respondents
R J B Fowler for Mr T C Brewer joined the hearing in the afternoon


Judgment: 25 September 2008 at 4 pm


JUDGMENT OF THE COURT

A The appeal is dismissed.

  1. The appellant is to pay Mr and Mrs Berryman costs of $6,000 and usual disbursements.

____________________________________________________________________


REASONS OF THE COURT


(Given by William Young P)


Table of Contents
Para No


Introduction [1]
Factual background [8]
The construction of the bridge [8]
The agreement of satisfaction [13]
The death of Mr Richards [14]
The Works Consultancy Services reports [15]
The Butcher report and the Court of Inquiry [18]
The Department of Labour prosecution [25]
The inquest [29]
Subsequent events [42]
The gravamen of the Berrymans’ complaints and the relevance
of their own conduct [45]
The legislation governing the conduct of the Court of Inquiry [51]
The relevant legislative provisions [51] The case law [52]
Guidance given by the Manual of Armed Forces Law as to
the exercise of the r 159 discretion [54]
Is r 158 of the Armed Forces Discipline Rules of Procedure 1983
an answer to the misfeasance in public office claim? [56]
Misfeasance in public office: the law [62]
Is a claim for misfeasance in public office available in relation to the
evidence given or submissions made to the Coroner? [66]
The pleaded claims [66]
Are these claims precluded by the principles which provide
for immunity of suit in relation to evidence and submissions
made to a court? [67]
Other problems with the claims – the evidence of Major Armstrong [73]
Other problems with the claims – submissions which were made [75]
Is a claim for misfeasance in public office available in relation to the
withholding of the Court of Inquiry report and
associated material from the Coroner? [77]
The pleaded claim [77]
The decision of Brigadier Jameson [78]
The withholding of the Court of Inquiry report and associated
material in the context of the submissions that were made to
the Coroner [82]
The significance of the second cause of action [95]
Disposition [97]


Introduction

[1] In early 1986, the New Zealand Army built a bridge for Keith and Margaret Berryman. In 1994 it collapsed. Mr Kenneth Richards, who was driving over the bridge at the time, died. The reasons for the collapse were investigated by an Army Court of Inquiry, which issued its report in September 1994. By reason of r 158 of the Armed Forces Discipline Rules of Procedure 1983, this report, along with statements made to the Court of Inquiry, is not admissible in evidence against any person in judicial (or other) proceedings. There was also an inquest into the death of Mr Richards conducted by a Coroner, who gave his decision in June 1997. The Coroner was not informed about the Court of Inquiry and did not have access to its report nor to the information which it had collected. In his decision as to the cause of Mr Richards’s death, the Coroner largely acquitted the Army of blame but was critical of Mr and Mrs Berryman.
[2] Mr and Mrs Berryman allege that the Army acted improperly in relation to the inquest:

On the basis of these allegations, they have sued the Attorney-General (on behalf of the Army) for misfeasance in public office.

[3] In a judgment delivered on 6 July 2007 (CIV 2006-485-751), Associate Judge Christiansen dismissed applications by the Attorney-General for:

He reserved for further consideration an application for security for costs.

[4] The Attorney-General has purported to appeal to this Court against the judgment. It is clear, however, that, to the extent to which the Associate Judge was exercising the powers of a Judge in Chambers, there is no right of appeal, see Talyancich v Index Developments Ltd [1992] 3 NZLR 28 (CA). This means that we do not have jurisdiction to address the refusal of the Associate Judge to strike the claim out or his deferral of a ruling on the security for costs application. Further, although there is a right of appeal in relation to the dismissal of the summary judgment application, there was scope for doubt whether the notice of appeal actually challenged this part of the judgment.
[5] Having heard the parties at the commencement of the hearing on 18 June 2008, we decided that the notice of appeal signalled (albeit ambiguously) a challenge to the dismissal of the summary judgment application. In any event, if necessary, we would have been prepared to amend the notice, there being no relevant prejudice to Mr and Mrs Berryman.
[6] A further procedural complexity arises because, in December 2007, Mr and Mrs Berryman lodged an amended statement of claim which discloses a second cause of action based on the New Zealand Bill of Rights Act 1990. Since summary judgment is available only in relation to proceedings as a whole, this additional cause of action potentially stands in the way of a final determination of the proceedings on this appeal.
[7] Against that background we propose to determine the appeal under the following headings:

Factual background

The construction of the bridge

[8] In 1984, Mr and Mrs Berryman took over Te Rata Station, which adjoins the Retaruke River and is near Taumaranui. That river separated the homestead on the station from the nearest road. A bridge providing direct access from the homestead to the road had collapsed. The replacement bridge, built in 1986 by the New Zealand Army with material supplied by the Berrymans, is at the heart of this litigation. The bridge was a substantial structure, spanning over 50 metres. There was a drop of some 30 metres from the bridge to the river below.
[9] The Army built the bridge as a training exercise for Tongan and Fijian soldiers who had been studying with the New Zealand Army School of Military Engineering. They were supervised by Second Lieutenant John Armstrong and Staff Sergeant Vincent. The bridge had been originally designed by Second Lieutenant Armstrong but there was a subsequent re-design by one of his superior officers, Major Beaver. It appears that the design was generally based on British and Australian Army manuals.
[10] It is clear that the design, as approved by Major Beaver, subsequently evolved in various ways, both before and after construction commenced. We see no indication in the material provided to us that the as built design was ever checked or approved by Second Lieutenant Armstrong’s superiors.
[11] The bridge was eventually constructed of steel (used in the towers), totara (used for the decking) and oregon (used in the stringers and transoms). The approved re-design had called for either macrocarpa or treated pine to be used for the stringers and transoms but, for reasons of cost or availability, oregon was used instead.
[12] The approved re-design specified 200mm x 200mm transoms of macrocarpa or treated pine. When the decision was taken to use oregon instead, Second Lieutenant Armstrong proposed 300mm x 150mm transoms. Mr Berryman was only able to acquire 300mm x 75mm beams. Second Lieutenant Armstrong concluded that the two such beams, bolted together, would suffice for each transom and the bridge was built accordingly. The beams used to form the transoms were not treated in any way and the junctions between them were not flashed.

The agreement of satisfaction

[13] After the bridge was erected, Mr Berryman and Second Lieutenant Armstrong signed an agreement of satisfaction, dated 23 March 1986. In it, Mr Berryman acknowledged his satisfaction with the design of the bridge, the materials used and its construction. He also acknowledged that (a) the bridge had a maximum loading permissible of five tonnes, (b) he was aware that maintenance of the bridge was his responsibility, (c) the effective life of the bridge would be limited by maintenance of its components and (d) he would not hold the New Zealand Army or any individual of the Army responsible in any way for the performance of the bridge.

The death of Mr Richards

[14] On 22 March 1994, Mr Richards, a beekeeper, was driving over the bridge having retrieved honey stock from hives on the Berrymans’ property. The bridge collapsed and he was killed.

The Works Consultancy Services reports

[15] Very soon after the death of Mr Richards, Mr and Mrs Berryman instructed Works Consultancy Services (“Works”) to report on the cause of the bridge’s collapse and its possible repair.
[16] Mr Steven Charles of Works inspected the bridge in its collapsed state and later (on 5 April 1994) reported to Mr and Mrs Berryman. His report noted that the original design of both the transoms and the stringers changed during construction. While the transoms ultimately used (300mm x 150mm) were capable of supporting a one tonne wheel load, the stringers (150mm x 75mm) were not. Calculations indicated that the least likely part of the bridge to fail due to inadequate strength was the transoms, followed by the decking and stringers. The working life of the untreated oregon timber used, even if it was in good condition at the time the bridge was built, was “severely limited”. Mr Charles concluded that weather conditions had weakened the transoms to a point where they could no longer sustain the loads for which they were designed. The report also noted that the current appearance of the timber deck was “poor”, moss overgrowth and surface debris were present on all timber elements and the transoms and stringers showed signs of rot and dampness.
[17] In a second report of 11 May 1994, Mr Charles calculated the likely speed at which Mr Richards was travelling over the bridge at around 19 kph.

The Butcher report and the Court of Inquiry

[18] On 30 August 1994, an Army Court of Inquiry was established to collect and record evidence on “matters relating to the construction of” the bridge “and its subsequent collapse” and to report and comment thereon as required by the relevant terms of reference, which comprised 26 questions.
[19] The Court of Inquiry received evidence from Second Lieutenant Armstrong (who by then was Major Armstrong), Staff Sergeant Vincent (who had by then retired from the Army), Mrs Berryman and, importantly, Mr George Butcher, an engineer who had been retained by the Army to report on the causes of the bridge’s collapse.
[20] Mr Butcher’s report was based on the work carried out by Mr Charles (which had been given to him by Mr and Mrs Berryman), contemporaneous photographs of the bridge, his discussions with Mr and Mrs Berryman and Army personnel and his observations of decayed transom material he recovered from beneath the rebuilt bridge. In his report, he addressed the questions set out in the Court of Inquiry’s terms of reference.
[21] Question 10 was in these terms:

Was the design adequate for the bridge’s intended use?

Mr Butcher identified “several technical errors and errors of judgement in the design calculations”. He also noted that there was nothing to suggest that the design calculations had been subjected to a “checking protocol, or QA procedures, or a peer review”. There had also been no reference to the applicable New Zealand standards for timber designs or the recommended practice for the design of bridges in New Zealand. Some design and underlying calculation errors in relation to the transoms were of a “self cancelling” nature. Mr Butcher expressed his conclusions in this way:

In my opinion the design procedure for the timber deck structure was unsatisfactory and resulted in variable load factors and stringers that were undersized. It was fortuitous that the owner elected to install substantial running planks over the stringers during construction of the deck and kept them well nailed throughout the life of the bridge. Full or partial composite action with the stringers was thus possible and together with greater transverse load distribution provided additional stringer load capacity not taken into account in the design.

As a result, I can only conclude that the design of the deck structure could not be considered as adequate for the bridge’s intended use. The inadequacies of the design procedure however did not contribute to the failure of the transom nor to the resulting collapse of the section of bridge deck.

These conclusions were adopted by the Court of Inquiry in its answer to question 10.

[22] Question 16 was:

Were the construction materials/methods adequate for the bridge’s intended purpose/design?

In response, Mr Butcher said:

The decision to use untreated timber in the original bridge cannot be supported. ... In the construction of the bridge, I am informed that second hand Oregon ... was utilised for the transoms and stringers. Totara, which is very durable, was used for the decking. ...

Imported Oregon ... has a very short life when exposed to the weather or when subject to alternate wetting and drying.

The Court of Inquiry again adopted Mr Butcher’s evidence and concluded that oregon:

should not have been used for the main structural members of the deck structure of the bridge when it was obviously intended to be semi-permanent or permanent in nature.

[23] Question 19 asked:

What caused the bridge to collapse?

Mr Butcher said the collapse was caused by failure of two transoms which was “entirely due to decay of the untreated timber”. This answer was substantially adopted by the Court of Inquiry.

[24] Question 20 asked:

Were there any additional factors that contributed to the bridge’s collapse?

Mr Butcher, in answer to this question, referred to:

(a) The decision to use two 300x75 beams bolted together for the transoms in place of a solid 300x150 member. The interface was not flashed and permitted the entry of water to the centre of the laminate which, with the oxygen available in the gap, encouraged fungal growth and accelerated the rate of decay. The effective life of the member would have been significantly reduced as a result.

(b) The importance of a regular inspection and maintenance programme for the bridge as a whole and the structural components of the timber deck-structure in particular, does not appear to have been recognised by the owners of the bridge.

In its answer to question 20, the Court of Inquiry did not refer to Mr Butcher’s comments but rather discussed the possible significance of the speed at which Mr Richards was (or may have been) travelling.

The Department of Labour prosecution

[25] The Department of Labour laid charges against the Berrymans under the Health and Safety in Employment Act 1992.
[26] On 9 November 1995, Mr Stephen Harrop, the lawyer who was acting for Mr and Mrs Berryman in these proceedings, wrote to Brigadier S D Jameson of the New Zealand Army seeking a copy of the Butcher report and “any other documentation relating to the enquiry which you are willing to release”.
[27] This request was declined by Brigadier Jameson in a letter of 14 November 1995. He did, however, identify the witnesses (including Mr Butcher) who had given evidence.
[28] Two of the charges against the Berrymans were later withdrawn, leaving one charge against Mr Berryman. That charge was dismissed by the District Court on 22 February 1996 on the basis that the bridge was not a “place of work” as required by the section under which Mr Berryman was charged, see Department of Labour v Berryman [1996] DCR 121. The Department of Labour lodged an appeal but did not pursue it.

The inquest

[29] The inquest was delayed until the conclusion of the Department of Labour prosecution.
[30] The inquest started on 7 February 1997 and the hearing resumed on 14 February. The parties who participated in the inquest at this time were Ms Mary-Anne Thomason (the partner of the late Mr Richards), Mr and Mrs Berryman (represented by Mr Harrop) and the Department of Labour (represented by Mr Tim Brewer). There was also some limited police involvement with the inquest.
[31] The Army did not participate in the inquest on 7 and 14 February. The Coroner was, however, supplied with a signed statement from Major Armstrong which appears to have been prepared by the police and based on a brief of evidence that had been prepared for the purposes of the Department of Labour prosecution of Mr Berryman. This statement is dated 21 January 1997. In it, Major Armstrong said:

The suspension bridge was designed in accordance with Australia and United Kingdom design procedures.

[32] Major Armstrong was not required by any party to attend the inquest for cross-examination. So he did not give oral evidence.
[33] The hearing resumed on 18 April 1997 and the hearing of the evidence was completed. By this time the Army was represented by counsel, Mr Chris McGuire, who seems also to have been representing the relevant Army personnel, presumably Major Armstrong and Mr Vincent. We say this because the written submissions later made by Mr McGuire record that they were advanced on behalf of both the Army and Army personnel. At the time, Mr McGuire was an officer in the Territorial Force, a factor which may have been relevant to the fact that he was instructed as counsel. Mr Vincent gave oral evidence on 18 April 1997 but we do not have a transcript of that evidence. There also would appear to have been some correspondence from the Army to the Coroner as to the extent to which the bridge design had been approved and the qualifications, at the time, of Second Lieutenant Armstrong. We do not have copies of this correspondence.
[34] The Coroner was not told about or given the two reports prepared by Mr Charles in 1994. An interesting feature of the way the Berrymans conducted their case was that although they had been provided in May 1994 with Mr Charles’ assessment of the speed at which Mr Richards had been travelling, Mr Berryman engaged a second engineer, Mr Christopher Marks, to give evidence on this topic at the inquest. This was at a time when, according to other documents shown to us, costs of participation at the inquest were a significant problem for Mr and Mrs Berryman. The fact that they retained, at some cost, a second engineer to duplicate work already carried out by Mr Charles is at least consistent with the view that they did not wish the Coroner to hear direct evidence from Mr Charles. If Mr Charles had given evidence as to his speed calculations, the fact that he had also inspected and reported on the bridge in March and April 1994 would almost inevitably have been revealed to the Coroner.
[35] As well, there is no indication in the material which we have that the Coroner was told about the Court of Inquiry. He was certainly not given its report or the evidence that it had gathered. This is despite at least two of the parties who participated at the inquest (the Berrymans and, from 18 April 1997, the Army) knowing of the inquiry and counsel for the Army having access to the relevant documents.
[36] In the event, the evidence which was given to the Coroner did not focus on the design process associated with the bridge. That said, there was, it seems, a comment from one witness that the stringers looked light (as indeed they were). As well, there was criticism about the way bulldog clips had been fitted to the dropper cables.
[37] After completion of all the evidence, the hearing was again adjourned. The Coroner subsequently wrote to those parties in respect of whom he intended to make adverse comment, including Mr and Mrs Berryman and the Army. The parties were advised of the timetable for making written submissions and that they would also have an opportunity to make oral submissions when the hearing resumed.
[38] Mr and Mrs Berryman had legal representation at the hearings on 7 and 12 February and 18 April 1997. But, as their legal aid grant and other financial resources were insufficient to cover the completion of the inquest, Mr Berryman prepared the written submissions and delivered oral submissions for himself and Mrs Berryman. The focus of the Berrymans’ evidence and their written and oral submissions was that Mr Richards had died because he was speeding, his truck was overloaded and he was not wearing a seat belt. The Berrymans were also critical of the Coroner’s failure to order a post mortem and, in the absence of such, suggested that Mr Richards could have suffered a fatal heart attack prior to the accident. They did not seek to place any blame on the Army for the design and construction of the bridge or the use of untreated oregon timber.
[39] The Army also filed written submissions (dated 12 June 1997) and made oral submissions. These submissions were prepared by Mr McGuire. He had sent his submissions, then in draft, to the Army (and in particular to Colonel Roger Howard, who was in charge of the Army’s legal section) for approval before submitting them to the Coroner.
[40] The submissions emphasised that: by the agreement of satisfaction, the Berrymans had taken over responsibility for the bridge; there was nothing to suggest to the Army that the Berrymans were not able to take over that responsibility; and once the agreement was executed, the Army’s involvement ended. More relevantly for present purposes, the submissions addressed the design and construction of the bridge:

The evidence heard before the Coroner discloses the following:

...

  1. The bridge was designed by 2Lt Armstrong in accordance with the British and Australian Army Bridge Building Manuals which are in standard usage in the New Zealand, Australian and British Armies, which from the absence of evidence to the contrary were clearly adequate for the task.
  2. The design and method of construction of the bridge was cleared by senior officers at the School of Military Engineering.

...

  1. Apart from an issue raised by one of the witnesses concerning incorrectly fitted clips on the dropper cables (which did not in any way cause or contribute to the accident) the conclusion is that the bridge was properly designed and constructed and fit for its intended use when it was handed over.
(b) In the context of the possible criticism that Second Lieutenant Armstrong was junior and inexperienced:
  1. ... So far as the Army was concerned this was a construction exercise which was carried out properly. That is, the bridge was built in a proper manner (accepted that the only criticism brought against the entire construction was that the bulldog clips were placed the wrong way round, but likewise accepted that this did not contribute to the accident). Accordingly, in a causative sense, there was nothing in the entire construction of this bridge that contributed to the accident.

The further check here on the performance of the “inexperienced” officer was the review of the design and method of construction by superiors in the School of Military Engineering.

(c) In relation to the technical qualifications of Staff Sergeant Vincent:
  1. ... Lt Armstrong says that the design of the bridge and the method of construction required clearance by his superior officers. Staff Sergeant Vincent also refers to this being the practice after the plans were drawn up.

Therefore, whatever the imagined deficiencies in Staff Sergeant Vincent’s technical qualifications for, say, technical drawing (not design), there was no evidence on the point – the design and drawings were checked by senior officers in the School of Engineering and, of course, as the bridge was properly constructed there was nothing in a causative sense that in any way links a lack of qualification on the part of Staff Sergeant Vincent and the accident and death.

[41] The Coroner gave his decision orally on 20 June 1997, following oral submissions from three counsel (including Mr McGuire for the Army) and from Mr Berryman. In his decision, he regarded the Berrymans as primarily responsible for what had happened and largely acquitted the Army of any blame.

Subsequent events

[42] Starting in 2001, Mr and Mrs Berryman have sought a further inquest into the death of Mr Richards. As part of this, they have sought to challenge the Coroner’s conclusions and the actions of the Army associated with the non-release of the Court of Inquiry report and associated documents (including the Butcher report). The convoluted history associated with these efforts is reviewed in a judgment of Mallon J in which she resolved judicial review proceedings brought by the Berrymans, Berryman v Solicitor-General HC WN CIV 2005-485-1795 30 April 2008.
[43] During this process, the Army, in September 2002, released the report of the Court of Inquiry and some of the associated documents but not the Butcher report. Subsequently, and associated with an application for non-party discovery, counsel then acting for Mr and Mrs Berryman obtained a copy of the Butcher report on strict terms as to confidentiality. Dr Moodie subsequently became counsel for the Berrymans. In circumstances which have later been held to have been a contempt of court, Dr Moodie gave copies of the report to the New Zealand media and released it on the Internet, see Solicitor-General v Miss Alice [2007] 2 NZLR 783 (HC).
[44] In the judicial review proceedings determined by Mallon J, Mr and Mrs Berryman achieved some, albeit limited, success in that Mallon J quashed the findings of fact made by the Coroner to the effect that there was no issue as to the design or construction of the bridge. She did not quash the criticisms made by the Coroner of Mr and Mrs Berryman.

The gravamen of the Berrymans’ complaints and the relevance of their own conduct

[45] As will become apparent, we do not see anything sinister or reprehensible in the decision made by Brigadier Jameson in November 1995 not to release the Court of Inquiry report or the Butcher report. Likewise, we do not regard the Army as having been under an obligation to make this material available to the Coroner in 1997. That said, the inconsistency between the submissions made on behalf of the Army and relevant Army personnel and the Court of Inquiry report and associated material (including the Butcher report) speaks for itself. This inconsistency has been the subject of frequent adverse comment, which has come from the Solicitor-General (when dealing with a request to re-open the inquest) and from judges who have been dealing with other facets of the Berrymans’ grievances over what happened.
[46] Criticisms of the Army in this respect have often been accompanied by comment, sometimes at least implicitly adverse, on the Berrymans’ own conduct at the inquest and the apparent inconsistency between the complaints they are now making and their position at the time of the inquest. Tu quoque arguments are usually not very helpful and likewise do not come well from the mouths of those who hold official positions. And in the course of the hearing before us, Dr Moodie was critical of attempts to turn the case back on the Berrymans, maintaining that the case is not about the way they behaved at the inquest but rather about the Army’s conduct. This is true, as far as it goes, but it is not possible to assess fairly the case without having an understanding of the dynamics that affected the way the Berrymans and the Army ran their cases at the inquest.
[47] The key difference between the Butcher report (which Mr and Mrs Berryman did not have) and the Works report (which Mr and Mrs Berryman did have) is that Mr Butcher made specific reference to the lamination of the beams that formed the transoms. His comments about decay on the internal faces of the laminated beams provide scope for argument that the critical decay would not have been apparent to Mr and Mrs Berryman. The fact that the Berrymans did not have access to this report was of forensic significance in two related ways:

These points have some force but there is scope for doubt as to how valuable the Butcher report would actually have been to Mr and Mrs Berryman at the inquest.

[48] The Works report provided ample basis for a challenge to the design processes associated with the bridge and the use of untreated oregon for the stringers and transoms. That the laminated beams had not been flashed was realised by Mr and Mrs Berryman in the aftermath of the bridge’s collapse. So it was well open at the inquest for the Berrymans to attribute fault to the Army. On the other hand, a full on challenge to the Army had some dangers. The Army had the Works report – a report which referred to the apparently dilapidated condition of bridge components in the aftermath of its collapse. It is difficult to see how the Berrymans could have used Mr Butcher’s report (or his evidence) at the inquest without disclosing the existence of the Works report. If the Berrymans had blamed the Army at the inquest, the likelihood was that the Army would have sought to defend itself by focusing more intensely on the question whether the Berrymans had properly maintained the bridge. All in all, the Berrymans were well, if not completely, informed of the grounds upon which they could attribute blame to the Army and must be taken to have made an informed decision not to do so.
[49] Whether the Berrymans could have come out of the inquest free of blame if the Butcher report had been available is necessarily a hypothetical question. It is perhaps worthy of note, however, that those who have addressed this question to date have all answered it in the negative; that is, in February 2003, the Solicitor-General in his reasons for refusing to re-open the inquest, Wild J in his costs judgment, Berryman v Solicitor-General HC WN CIV-2003-485-1041 11 May 2005, and Mallon J in the most recent judgment.
[50] These comments are not intended to excuse the submissions that were made to the Coroner on behalf of the Army. Nor do they in any way amount to a finding of fault with the Berrymans, either in relation to the bridge collapse or what happened at the inquest. And we accept that the forensic disadvantages identified in [47] might amount to sufficient damage to support a claim for misfeasance in public office if it is otherwise available. But it is right to recognise that those forensic disadvantages are reasonably indirect; so much so that it is not altogether plausible to attribute to anyone connected with the Army an intention to cause (or recklessness as to) damage to the Berrymans as opposed simply to a desire to present the Army in the best possible light. As well, our analysis of the dynamics associated with the ways in which the Army and the Berrymans presented their cases at the inquest illustrates the reality that the Berrymans are now seeking to re-litigate the issues that were before the Coroner, a point which is relevant to whether the Army has immunity from suit in relation to what happened at the inquest.

The legislation governing the conduct of the Court of Inquiry

The relevant legislative provisions

[51] The Court of Inquiry was convened under s 200 of the Armed Forces Discipline Act 1971 and its procedure was governed by rr 142 to 159 of the Armed Forces Discipline Rules of Procedure. Courts of Inquiry sit in private (r 146); witnesses can be compelled to attend (r 149); and evidence is given under oath (r 151). Those who participate in such proceedings are not entitled to representation or advice (r 146) but if likely to be criticised, have some procedural protections (r 154). Importantly rr 158 and 159 provide:

158 Admissibility of record of proceedings, etc

(1) Subject to the succeeding provisions of this rule, the record of proceedings, and any evidence in respect of the proceedings, including any confession, statement, or answer to a question made or given by a person during the proceeding, shall not be admissible in evidence against any person in any other proceedings, judicial or otherwise.

...

159 Record of proceedings not to be disclosed

The record of proceedings shall not be disclosed to persons not subject to the Act without authority from a superior commander of the service concerned, nor shall it be disclosed to persons subject to the Act unless such persons need to be aware of the contents to enable them to perform their service duties, or are entitled to a copy under rule 155 of these rules.

The case law

[52] The background to, and the policy underlying, r 158 were discussed in Neave v R (1995) 9 PRNZ 40 at 51 – 52 where the Courts Martial Appeal Court held that a defendant before a Court Martial could not be cross-examined on evidence previously given to a Court of Inquiry:

The Court of Inquiry has been part of the regular procedures of the armed forces for many centuries. We agree with Mr Stainton’s submission that the present day provisions in the Act and the Rules of Procedure when read together disclose an intent to give a superior commander an expeditious fact finding procedure so that a matter can be promptly investigated and if necessary, prompt, remedial action can be taken. Expedition, frankness, and the minimisation of legal niceties are the underlying themes. Accepting the validity of these points we see RP 158 as an essential provision in the achievement of these aims. All witnesses have the Damoclean sword of a charge of perjury or making a false statement hanging over them. A witness at a Court of Inquiry is in no different position to a deponent on any other occasion, whether at a trial or on affidavit. RP 158 recognises that point but in our view it then draws down the curtain. We consider that on the plain meaning of the words of RP 158 “not admissible ... in evidence against any person ...” means “is not useable in evidence for any purpose”. We agree with Mr Stainton that if a person is confronted in cross-examination with evidence which he has given at a Court of Inquiry albeit to test his credibility, that evidence is being used against him. We are unable to accept the construction which Mr Ruane seeks to place on the word “against”. We do not consider that that word means “for the purposes of proving a fact in issue”. The word “against” is all-embracing. Had it been intended that the scope of RP 158 be restricted in the way contended for by the prosecution, then the Legislature could have so provided. Section 28 of the Serious Fraud Office Act 1990 clearly illustrates this point.

[53] Consistently with Neave, Wild J held in Berryman v Solicitor-General [2005] NZAR 512 at [72] (HC) that the material collected by the Court of Inquiry in its report would not be able to be used at the fresh inquest then sought by the Berrymans without infringing r 158.

Guidance given by the Manual of Armed Forces Law as to the exercise of the r 159 discretion

[54] The relevant commentary in DM 69 (Manual of Armed Forces Law) states, at 4-103, that superior commanders “are to seek advice from a legal officer when deciding whether to disclose all or part of the record of proceedings of a court of inquiry outside the NZDF”. This manual was promulgated on 10 December 1990 and is administered by the Defence Force’s Directorate of Legal Services. Rule 159 is discussed in the following way at 4-103:

If a court of inquiry is to achieve its purpose of quickly finding out facts so that prompt remedial action can be taken by commanders, total frankness on the part of witnesses must be encouraged. This RP recognises that if such frankness is to be obtained the proceedings of the court of inquiry must be accorded a large measure of confidentiality (RP 158 has a similar object). Nevertheless situations will arise where other persons or agencies may properly request information collected by a court of inquiry particularly where they are charged with conducting investigations which overlap the ground covered by a Service court of inquiry, eg inquiries conducted by the police or coroners. Requests for information contained in the record of proceedings of a court of inquiry should therefore be dealt with on an individual basis where necessary after taking legal advice. In general the following information may be released at the discretion of the superior commander:

- a list of witnesses and their addresses
- details of witnesses sought for the inquiry but not called
- a factual sequence or outline of events revealed by the inquiry avoiding, where possible, a direct recital of the statements of the witnesses or the findings of the court
- information already published or readily available from other sources.

The following information may NOT be released without specific advice in each case from the Director of Legal Services:

- the original or a complete copy of the proceedings or a substantial part thereof
- admissions of liability, civil or criminal, by any person, or evidence from which such liability can be clearly inferred
- opinions of witnesses.
[55] Textual resemblance between letter from Brigadier Jameson to Mr Harrop and the commentary makes it clear that the Brigadier followed the advice given in the commentary.

Is r 158 of the Armed Forces Discipline Rules of Procedure 1983 an answer to the misfeasance in public office claim?

[56] Mr Hancock, counsel for the Army, maintained that the misfeasance in public office claim cannot succeed because its successful prosecution is precluded by r 158. His argument proceeds on the following premises:
[57] This involves a very literal approach to r 158 and one which we are not prepared to accept, at least for the purposes of these summary judgment proceedings.
[58] Rule 158 is plainly intended primarily to protect the interests of those who participate in the proceedings of a Court of Inquiry; in other words for the situation exemplified by Neave. In the present case, the Berrymans are not seeking to use the report primarily to impugn the Army personnel who built the bridge but rather to demonstrate the actual knowledge of those responsible for the submissions made on behalf of the Army to the Coroner. For this reason, Mr Hancock’s argument involves using r 158 for a purpose for which it was not intended. It is at least arguable that r 158 could be interpreted purposively as being confined to protect those who participated at an inquiry.
[59] We note that the Army has, in the context of this case, used the Butcher report as part of its evidence against Dr Moodie in the contempt of court proceedings. We make absolutely no criticism of the Army for doing so and we do not suggest that the Army could fairly be regarded as thereby waiving confidentiality. The point we are making is simply that if r 158 is to be construed in the absolute way contended for by Mr Hancock, the report was inadmissible in the contempt proceedings against Dr Moodie.
[60] In any event, we are inclined to think that the Berrymans could circumvent r 158. For instance, with carefully drafted interrogatories, we consider that the Berrymans could obtain admissions from the Army that would suffice to establish the baseline knowledge of those who prepared or approved the submissions. We can illustrate this by reference to the use of laminated beams, in respect of which the following interrogatories could be asked:
[61] Different considerations apply in the case of the allegations which the Berrymans make in relation to Major Armstrong (discussed below at [73] – [74]). The essence of the complaint is that the evidence he gave at the inquest was untrue. As a participant in the proceedings of the Court of Inquiry, Major Armstrong is within the range of people intended to be protected by r 158. We consider that r 158 would prevent the Court of Inquiry report and any statements made to the Court being deployed against Major Armstrong (or the Army as allegedly vicariously responsible for his actions). As will become apparent, however, there are other problems (from the point of view of the Berrymans) with the allegations against Major Armstrong which means that we need not explore the implications of the conclusion we have just expressed.

Misfeasance in public office: the law

[62] Misfeasance in public office is concerned with preventing the abuse of public power. The tort is committed whenever a public officer qua public officer knowingly or recklessly acts either with malice towards another or in the knowledge that he or she is acting unlawfully and is likely to injure the plaintiff. In Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at 191 the House of Lords emphasised that the tort involves an element of bad faith. See also the decision of this Court in Garrett v Attorney-General [1997] 2 NZLR 332.
[63] For a plaintiff to succeed in misfeasance, the defendant must be a public officer. This means someone appointed to discharge a public duty in return for compensation. That said, there is scope for doubt and debate as to the breadth of the concept of public office for the purposes of the tort. Conflicting approaches to this issue are exemplified by the judgment of the Court of Appeal of Victoria in Cannon v Tahche (2002) 5 VR 317, particularly at 336 – 339, and a recent New South Wales Supreme Court decision, Noori v Leerdam [2008] NSWSC 515. In the Victorian case, the Court concluded that counsel appearing for the Crown in a prosecution and his instructing solicitor were not public officers. In contradistinction, in the New South Wales case, the Court concluded that it was reasonably arguable that the solicitor appearing for the Minister of Immigration in litigation before the Administrative Appeals Tribunal was a public officer. Further, obiter remarks of Steyn LJ in Elguzouli-Daf v Commissioner of Police of the Metropolis [1994] EWCA Civ 4; [1995] QB 335 at 347 (CA) suggest that liability for the tort of misfeasance in public office might conceivably attach to the functions of a prosecutor. The Saskatchewan Court of Appeal has likewise held that such a claim is potentially available against prosecutors, see Milgaard v Mackie (1994) 118 DLR (4th) 653.
[64] Also open to question is whether a claim for misfeasance in public office is available only in relation to the performance or purported performance of public functions. There is high authority for the view that misfeasance in public office applies only to “the exercise or purported exercise by the public officer of some power or authority with which [the public officer] is clothed by virtue of the office he holds”, see Lord Bridge of Harwich in Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 at 1240 (HL). On the other hand, courts have more recently been inclined to accept the possibility of an action for misfeasance in public office in relation to non-public law functions: for the exercise of a contractual power (as in Jones v Swansea City Council [1989] 3 All ER 162 (CA), reversed on other grounds [1990] 3 All ER 737 (HL)), defamatory remarks made by a police officer to a news editor about the plaintiff (as in Elliott v Chief Constable of Wiltshire Constabulary The Times, 5 December 1996) and defamatory remarks made by a local authority to a newspaper about a dismissed employee (Cornelius v London Borough of Hackney [2002] EWCA Civ 1073). That said, the actions of a public officer must have some public character before they can be the subject of a claim for misfeasance in public office.
[65] It is usually said (see for instance Minister of Fisheries v Pranfield Holdings Ltd [2008] NZCA 216 at [105]) that the required “malice” can be proved in one of two alternative ways:

Is a claim for misfeasance in public office available in relation to the evidence given or submissions made to the Coroner?

The pleaded claims

[66] The relevant particulars alleging misfeasance in public office under this heading complain of:

73. The actions of the Army in

...

(c) giving, or allowing the giving of false evidence through the Chief Instructor of the School of Military Engineering Major John Armstrong; and/or

(d) making submissions through Counsel for the Army Mr McGuire and the Director of Legal Services for the New Zealand Defence Force Colonel Roger Howard that the Army knew or should have known were wrong; and/or

(e) making submissions that the bridge was a well built bridge that had failed solely due to neglect of maintenance for which Mr and Mrs Berryman were responsible

Are these claims precluded by the principles which provide for immunity of suit in relation to evidence and submissions made to a court?

[67] Those who give evidence or make submissions to a court enjoy immunity from suit. The purpose of this immunity is not to encourage dishonest or defamatory submissions or perjury; rather it is to protect parties to litigation, along with their counsel and witnesses, from vexatious litigation. There is also an associated purpose of limiting the scope for re-litigation. All of this, along with the metes and bounds of the immunity, is discussed at length in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 (HL) and Meadow v General Medical Council [2007] 1 All ER 1 (CA).
[68] We recognise that the immunity is limited. It is confined to what is said in court and necessary preliminaries to that (see Darker). It is also merely an immunity from civil suit. Thus an expert witness may face professional sanctions in respect of evidence, see for instance Meadow. And obviously criminal prosecution for perjury may result from the deliberate giving of false evidence. Claims of malicious prosecution are maintainable even though such a claim might necessarily involve impugning the evidence given during the preceding criminal proceedings. Likewise these principles do not now prevent counsel being sued for negligence, see for instance, Chamberlains v Lai [2007] 2 NZLR 7 (SC). In marginal cases, where there is uncertainty as to which side of the line a particular claims falls, the courts should be slow to resort to the strike out or summary judgment jurisdiction.
[69] That said, where the claim is clearly within the immunity, summary determination is appropriate. As to this we endorse the remarks of Lord Clyde in Darker at 457, where, after referring to the need for caution as to the extension of immunities, went on to say:

On the other hand there has to be some degree of certainty about the existence of an immunity for it to be effective. The matter cannot be entirely left as one to be determined on each and every occasion. For the immunity of a witness to be effective it is necessary that the person concerned should know in advance with some certainty that what he or she says will be protected. So even although the matter may depend in any case upon a balancing of interests it ought to be possible to predict with some confidence whether or not an immunity will apply. The law has sought to achieve this by making it clear that the substance of the evidence presented to the court in judicial proceedings will be immune from attack.

[70] This case falls squarely within the immunity. It involves an attempt to impose a civil liability in relation to evidence given and submissions made in the course of judicial proceedings. The policy factors underlying the immunity are engaged. This is particularly so of the second of the policy factors mentioned because, as we have already indicated, the Berrymans are very largely seeking to re-litigate the Coroner’s findings and to do so by way of a case which they were largely in a position to run at the inquest had they chosen to do so.
[71] Importantly, this is not a case where the Army initiated the coronial process. So the case is not really akin to a claim for malicious prosecution or the circumstances involved in Milgaard where a claim for misfeasance in public office was allowed to proceed alongside a claim for malicious prosecution. And in the New South Wales case, Noori, the issue of immunity from suit was not discussed.
[72] In the circumstances, we are satisfied that the claim against the Army, to the extent to which it is based on evidence given and submissions made to the Coroner, is inconsistent with the immunity.

Other problems with the claims – the evidence of Major Armstrong

[73] Major Armstrong’s evidence was at a high level of generality. The only aspect of his evidence that is the subject of particular complaint (ie which is said to be wrong) is his assertion that:

The suspension bridge was designed in accordance with Australia and United Kingdom design procedures.

In the context of the collapse of the bridge and the resulting death of Mr Richards, we would construe the word “design” as referring to the “as built” design. So construed, the assertion by Major Armstrong was probably incorrect. Whether it was recognised as such by Major Armstrong, however, is far from clear given the generality and perhaps ambiguity of the language used. Likewise, given the nature of the evidence and the indirect nature of the prejudice (or damage) relied on by the Berrymans (see [47] above), it is far from obvious that Major Armstrong recognised that this sort of harm was a likely consequence of his evidence.

[74] In any event, and more importantly, we consider that a claim for misfeasance in public office in relation to this evidence must necessarily fail because Major Armstrong was not relevantly a public officer and, in any event, he was not exercising any public function. He was just a witness like any other witness. It was just a matter of chance that he was still in the Army (unlike Staff Sergeant Vincent, who had left the Army by the time of the inquest).

Other problems with the claims – submissions which were made

[75] It is reasonably arguable that Mr McGuire and Colonel Howard were not public officers in respect of the inquest and that their actions were insufficiently public in nature to be subject to a claim for misfeasance in public office. Relevant to these issue are the cases referred to in [63] – [64]. As well, the actual harm suffered by the Berrymans (which is referred to in [47]) may not have been obvious to Colonel Howard and Mr McGuire.
[76] It would be rather artificial to treat these issues as independent of the immunity of suit point that we have already discussed and which we see as decisive of this aspect of the case. But, for the avoidance of doubt, we think it right to say that were it not for immunity of suit principles we would regard the claim for misfeasance in public office focussing on the submissions made to the Coroner as sufficiently tenable to survive a summary judgment application

Is a claim for misfeasance in public office available in relation to the withholding of the Court of Inquiry report and associated material from the Coroner?

The pleaded claim

[77] The first two particulars of misfeasance in public office that are pleaded in the amended statement of claim of 20 December 2007 refer to:

73. The actions of the Army in

(a) withholding knowledge of it’s [sic] Court of Inquiry and the Court of Inquiry Report of September 1994 from the Coroner in 1997; and/or

(b) withholding knowledge of the existence of the Butcher Report in 1994 from the Coroner in 1997;...

The decision of Brigadier Jameson

[78] As far as we are aware, the only relevant time (ie prior to the inquest concluding) that the release of the Court of Inquiry report and the evidence of Mr Butcher was actively considered by a person authorised to order release was in November 1995. This was when Brigadier Jameson responded to Mr Harrop’s request for a copy of the report prepared by Mr Butcher along with “copies of any other documentation relating to the inquiry” that the Brigadier was willing to release. The claim for misfeasance in public office, as pleaded, does not appear to extend to this decision, as the request was not made in the context of the inquest. In any event, a claim in relation to this decision would necessarily be hopeless, a point which warrants some brief explanation.
[79] The decision by Brigadier Jameson refusing to release any information, conveyed by letter of 14 November 1995, was made by him in his capacity as a public officer and necessarily involved the exercise of his office. So this decision is of a kind which could give rise to a claim for misfeasance in public office.
[80] That said, we are unable to discern any ground upon which it could be credibly asserted that Brigadier Jameson was acting maliciously, ie acting for a corrupt or improper motive, or that he knew the decision which he took was one which was not properly open to him. Indeed, on the basis of our understanding of r 159 and the underlying policy, the decision might be thought to be unsurprising. The material gathered by the Court of Inquiry was, to some extent, critical of the relevant Army personnel. To release it had the potential to be damaging to them and rr 158 and 159 are intended to avoid or limit the risk of such damage. We note in passing that the judgment of Wild J in Berryman v Solicitor-General [2005] NZAR 512 (HC) in which he declined to order discovery of the Butcher report provides some retrospective support for the Brigadier’s decision. Further, the decision of the Brigadier is in complete conformity with the relevant commentary in the Manual of Armed Forces Law.
[81] As well, we think that it could not credibly be said that in reaching the decision he did, Brigadier Jameson was seeking to injure Mr and Mrs Berryman. He certainly did not release the information that Mr Harrop was seeking. But he did point Mr Harrop in the direction of the people from whom that information had been obtained. It is practically inconceivable that Brigadier Jameson could have intended to cause (or even been conscious of the risk of) the forensic disadvantages referred to in [47].

The withholding of the Court of Inquiry report and associated material in the context of the submissions that were made to the Coroner

[82] We think that a claim for misfeasance in public office would be available if the Berrymans could show that someone in public office made a decision to withhold the Court of Inquiry report and associated material so as to facilitate the making of submissions to the Coroner that were known to be wrong.
[83] In the course of argument it was suggested that Colonel Howard may have been a “superior commander” and thus had the power to order the release of the Court of Inquiry material. If so, the non-release of the Court of Inquiry material could arguably be regarded as tantamount to a decision not to release the material and thus as arguably subject to a claim for misfeasance in public office.
[84] After judgment was reserved, we made an inquiry of counsel whether there was evidence as to Colonel Howard’s status. In response, Mr Hancock tendered an affidavit from Colonel Howard in which he confirmed that he had never held the status of superior commander. Given the narrowness of the point, we think it right to grant leave to file the evidence which disposes of the most plausible basis upon which this aspect of the claim might proceed.
[85] That leaves two alternative bases upon which the claim might conceivably be prosecuted:
[86] There is no evidence at all which supports the first hypothesis and it is inconsistent with the pattern of the evidence as a whole. It can, we think, be fairly regarded as having been excluded as a substantial possibility.
[87] The second hypothesis is not particularly probable as it seems far more likely that Colonel Howard and Mr McGuire simply took the non-release of the Court of Inquiry report (and associated material) as a given. Nonetheless, it has not been excluded, as the only direct evidence from Colonel Howard and Mr McGuire is in the form of a very brief affidavit from Colonel Howard confirming that he was not, and never has been, a superior commander. So the hypothesis cannot be ruled out on the evidence.
[88] Assuming that a conscious decision was made not to seek a release of the Court of Inquiry report and associated material, in a context in which this left forensic room for the making of the submissions which were advanced at the inquest, could that give rise to a claim for misfeasance in public office?
[89] In relation to the possible release of the report and associated material, Colonel Howard and Mr McGuire were arguably public officers. Colonel Howard as an Army officer and Director of Legal Service had access to this material by reason of his official status. The actual basis upon which Mr McGuire had access to the material is not clear. It may simply have been because he was counsel for the Army and affected personnel and the possible application of r 158 to his access to the material was not addressed. However, it may be that his status as an officer in the Territorial Force (meaning that he was “subject to the Act” for the purposes of r 158) was the critical factor. If so, it is at least arguable that he was relevantly a public officer (in that he had access to the material by reason of his official status).
[90] Decisions (if there were any) made by Colonel Howard and Mr McGuire in relation to what should happen to the report and associated material, including decisions as to whether to make a recommendation that this material be released, arguably have sufficient public character to be subject to the tort of misfeasance in public office.
[91] As to the bona fides of such decisions, if made, we are confronted with a situation were there is an allegation of bad faith in the pleadings which has not been directly confronted and answered by Colonel Howard and Mr McGuire. Given this, we do not think that we could fairly summarily resolve this point against the Berrymans.
[92] Although the actual forensic harm which the Berrymans claim to have suffered is reasonably subtle in nature, it is not inconceivable that Colonel Howard and Mr McGuire would have appreciated that the non-release of the report and associated material (and particularly the resulting leeway this gave the Army in relation to the submissions Mr McGuire was able to advance) were likely to cause damage to the Berrymans. Again, we conclude that we could not resolve summarily this aspect of the case against the Berrymans.
[93] As will be apparent from what we have just said, our acceptance that there is an insufficient evidential basis for the entry of summary judgment is not an endorsement of the factual merits of the case.
[94] As well, we think it right to signal that there remains a substantial argument for the view that the claim is excluded by immunity principles. A decision not to release the Court of Inquiry report and associated material for the purposes of the inquest would have been perfectly legitimate. If the incongruity between the submissions which were intended to be made and the Court of Inquiry report and associated material had been addressed, it is far more likely that the submissions would have been toned down rather than that the Court of Inquiry report and associated material would have been released. Given this, the complaint must primarily focus on the submissions which were advanced and this might arguably justify the invocation of the immunity. This, however, is properly another issue to be determined at trial.

The significance of the second cause of action

[95] The first amended statement of claim discloses a second cause of action under the New Zealand Bill of Rights Act. It is alleged that the Army breached this Act by not disclosing the Court of Inquiry report and associated material to the Coroner and then advancing its position that the bridge was properly designed and constructed and that the cause of the collapse was lack of maintenance by Mr and Mrs Berryman.
[96] This cause of action is, in effect, the same as one of the causes of action that was the subject of the judgment of Mallon J of 28 April 2008, see [162] – [172]. It cannot therefore be re-run in separate proceedings. Accordingly, we would not have regarded this cause of action as precluding summary judgment if we were otherwise minded to find for the Army on this appeal.

Disposition

[97] The appeal is dismissed. The appellant is to pay Mr and Mrs Berryman costs of $6,000 and usual disbursements.

Solicitors:
Crown Law Office, Wellington for Appellant
Moodie & Co, Feilding for Respondents
DLA Philips Fox, Wellington for Mr Brewer

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