Circumventing Chapman: Bad law makes hard cases

Abstract

The Supreme Court decision in Attorney – General v Chapman precluded the availability of public law damages in respect of breaches of the NZBORA which occur within the judicial process. Two recent High Court decisions in Putua v Attorney – General and Fitzgerald v Attorney – General circumvent the Supreme Court by attributing responsibility to actors other than the judge. Both decisions are outside the bounds of precedent. The first section of this paper analyses the policy behind Chapman to establish that the basis of the Supreme Court decision is unsatisfactory. Chapman is bad law. This provides the backdrop for the High Court decisions. The second part of the paper analyses the High Court judgments. The cases demonstrate that Chapman has a wide framework due to an obiter statement by the majority. This is why attempts to circumvent the precedent by attributing responsibility for rights breaches to other actors ultimately fall outside precedent. Bad law makes hard cases. As Fitzgerald v Attorney – General is being appealed there is an opportunity for the courts to fix the legal position. This essay concludes that if the appeal reaches the Supreme Court, the Court has two options. The Court could overturn Chapman as the policy reasons behind the decision are an inadequate basis for precluding public law damages. Secondly, the Court could uphold the decision but provide more robust principles or policies for doing so.