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IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2013-404-439

[2013] NZHC 743

BETWEEN DAVID CULLEN BAIN
Applicant

AND MINISTER OF JUSTICE
Respondent

[...]

Judment: 16 April 2013

JUDGMENT OF KEANE J

[re application for transfer]

[...]

DAVID CULLEN BAIN V MINISTER OF JUSTICE HC AK CIV 2013-404-439 [l6April 2013]

[1] In 1995 David Bain was convicted of the murders in 1994 of five members of his family. In 2007 the Privy Council quashed his convictions and ordered that he undergo a new trial' In June 2009, at his second trial, he was acquitted on all counts.

He had then spent 13 years in prison. On 25 March 2010 he applied to the then Minister of Justice, Hon Simon Power, seeking compensation.

[2] Mr Bain was not then eligible to be considered under the Cabinet Guidelines governing compensation for wrongful conviction and imprisonment. The Privy Council had granted his appeal but it had ordered a retrial. The retrial order made him ineligible under the Guidelines.

[3] Mr Bain relied rather on the Cabinet decision approving the Guidelines, dated 2 December 1998, under which Cabinet agreed that 'the Crown reserve the right, in extraordinary circumstances, to consider claims falling outside the criteria specified on their individual merits, where this is in the interests of justice.'

[4] On 10 November 2011 the Minister appointed Hon lan Binnie QC, CC, formerly a Judge of the Supreme Court of Canada, to report to him on Mr Bain's claim. On 30 August 2012 Mr Binnie QC reported to the present Minister, Hon Judith Collins, recommending that Mr Bain be compensated in an amount to be fixed by Cabinet in the exercise of its discretion.

[5] The Minister, after taking advice from the Crown Law Office and from the police, on 26 September 2012 appointed Hon Dr R L Fisher QC, a former Judge of this Court, to 'peer-review' the Binnie report. On 13 December 2012, in an interim report, Dr Fisher put in issue Mr Binnie QC's method of analysis, and thus his conclusions and recommendation. He recommended a fresh review.

[6] Mr Bain and his advisers did not receive a copy of either report until the Minister released them publicly on 13 December 2012. The Minister considered that she was not obliged to release the Binnie report to Mr Bain and his counsel any earlier, or to release to them the Fisher report at all, or to consult with them about either report.

[7] To report responsibly to Cabinet, the Minister considered, she was entitled, indeed obliged, to assess Mr Binnie QC's report for herself assisted by confidential advice. Mr Bain's claim was outside the Cabinet Guidelines and she considered the evaluative process it prescribes did not apply. Cabinet's decision whether to grant Mr Bain compensation was entirely discretionary.

[8] On 30 January 2013 Mr Bain brought this application for judicial review, and on 4 February 2013 Cabinet decided that Mr Bain's compensation claim should be put on hold. Mr Bain's case is to be heard on a date in late July 2013 and there is an immediate issue as to where that hearing should take place.

[9] Mr Bain contends that he is entitled to have his case heard in Auckland, where he filed it and where his counsel are. The Minister contends that it must be heard in Wellington where, she says, it ought to have been filed in the first place. She says that everything material to Mr Bain's application happened there, not in Auckland. On 6 March 2013, the Minister applied to have the case transferred to Wellington, and that gives rise to two issues.

[10] The first issue, whether Mr Bain was entitled to file his case in Auckland, turns on whether one or more of his three grounds for review, his 'causes of action', arose wholly, or in a 'material part', in Auckland? The second arises only if I decide that, as the Minister says, Mr Bain should have filed his application in Wellington.; I must then decide Whether to transfer the case to Wellington.

[11] Neither issue requires me to consider Whether Mr Bain's three grounds for review have merit, or whether his claim for compensation does. Whether he should receive compensation is for Cabinet to decide in its complete discretion. Whether his review grounds have merit will be the subject of the July hearing, on the complete record and the affidavits still to be filed.

[...]

Orders
[51] I find that Mr Bain was entitled to bring his application for review in the Auckland Registry of this Court and I decline the Minister's application for transfer of the case to the Wellington Registry. Mr Bain is entitled to costs, according to scale 2B and any related disbu1'sements. I need only hear counsel by memorandum if some issue of principle arises which the Registrar cannot resolve.

PJ. Keane J

[Full judgment (PDF)]

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