IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE	
CIV-2022-419-74
[2024] NZHC 1361	

BETWEEN	PAUL TUKUNOA SWEENEY
Plaintiff	
AND	THE PRISON MANAGER, SPRING HILL CORRECTIONS FACILITY
Defendant	

Hearing:	29 April and 2 May 2024	
Appearances:	S McKenna and B Burgess for Plaintiff K Hogan for Defendant	
Judgment:	28 May 2024	

JUDGMENT OF LANG J

This judgment was delivered by Justice Lang On 28 May 2024 at 9.30 am
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
McKenna King Dempster, Hamilton
Crown Law, Wellington/K Hogan, Auckland

SWEENEY v THE PRISON MANAGER, SPRING HILL CORRECTIONS FACILITY [2024] NZHC 1361 [28 May 2024]

Introduction

[1]	From October 2014 until April 2016 the plaintiff, Mr Sweeney, was employed by Care NZ (Est 1954) Ltd (Care NZ). That company had entered into a contract with the Department of Corrections (Corrections) to provide drug treatment services at the Spring Hill Corrections Facility (Spring Hill).

[2]	Mr Sweeney’s role with the company was as an addiction counsellor. To enable him to carry out his role Corrections approved him for specified visitor status under regulation 91 of the Corrections Regulations 2005. This enabled him to provide therapeutic counselling services to prisoners with addiction issues at the Spring Hill facility.

[3]	No issues arose until April 2016. However, on 19 April 2016 the director of the Spring Hill facility, Mr Christopher Lightbown, revoked Mr Sweeney’s specified visitor status. He did so after staff brought to his attention material Mr Sweeney had posted on his Facebook page. Corrections staff believed this suggested Mr Sweeney had a continuing association with the Mongrel Mob gang. An issue had also arisen after Mr Sweeney had visited an inmate in an area of the prison where he did not work.

[4]	Revocation of specified visitor status meant that Mr Sweeney could no longer perform his counselling duties at the prison. Efforts by Mr Sweeney over the following nine months to persuade Corrections to reverse its decision were unsuccessful. Mr Sweeney began six months of unpaid leave in July 2016, and eventually left Care NZ’s employment in or about March 2017. Care NZ subsequently ceased to provide drug counselling services for Spring Hill when its contract expired on 31 March 2017.

[5]	In 2019, Mr Sweeney issued judicial review proceedings against Spring Hill. He claimed that Mr Lightbown’s decision to revoke his special visitor status was unreasonable and unlawful. On 17 February 2021, Palmer J issued a judgment in which he upheld Mr Sweeney’s claim.1 In order to uphold Mr Sweeney’s mana and

1	Sweeney v The Prison Manager, Spring Hill Corrections Facility [2021] NZHC 181.

to vindicate his rights, Palmer J issued a declaration that the revocation decision was unreasonable and unlawful.2

[6]	In this proceeding Mr Sweeney sues Spring Hill for damages in tort. He claims that in revoking his specified visitor status Mr Lightbown committed the tort of misfeasance in public office. He also asks the Court to recognise a novel tort based on his claim that Mr Lightbown’s actions caused unjustified damage to his mana.  Mr Sweeney states that the decision impacted significantly on his financial state, as well as his mana and hauora. He says that the decision led him to lose good employment and caused damage to the financial integrity he had earned for himself. The overall effect of the decision on Mr Sweeney was to call into doubt his standing within, and ability to contribute, to the communities he is a part of. He felt that his transformation and the life purpose he had worked to achieve were cast into doubt. All of these matters have had a significant impact on Mr Sweeney.

[7]	At the commencement of the hearing Mr Sweeney formally abandoned two further causes of action based in negligence and unjustifiable interference with the business of Care NZ.

Misfeasance in public office

The law

[8]	Errors committed when public officials carry out their duties do not generally give rise to a cause of action for damages by persons who suffer loss as a consequence. However, in some circumstances an action may lie in a tort known as misfeasance in public office. In Garrett v Attorney-General, the Court of Appeal observed:3
Proceedings for the tort of misfeasance in public office, also known as abuse of public office, have never been common. Early in its development an essential ingredient was malice on the part of the defendant: a deliberate and vindictive act by a public official involving a breach of duty and directed towards the plaintiff. This has come to be known as “targeted malice”. But the tort is no longer so confined. It can also be committed by an official who acts or omits to act in breach of duty knowing about the breach and also knowing harm or loss is thereby likely to be occasioned to the plaintiff. As will appear from the following discussion, “knowing” in relation to both the

2	At [78].
3	Garrett v Attorney-General [1997] 2 NZLR 332 (CA) at 344.

breach and its effect on the plaintiff includes acting recklessly, in the sense of believing or suspecting the position and going ahead anyway without ascertaining the position as a reasonable and honest person would do.

[9]	The Court went on to note:4

The purpose behind the imposition of this form of tortious liability is to prevent the deliberate injuring of members of the public by deliberate disregard of official duty. It is unnecessary, to attain this objective, to extend the tort to catch an act which, though known to be wrongful, is done without a realisation of the consequences for the plaintiff. The law may still provide a remedy in negligence if the situation is one of those in which it is appropriate to impose a duty of care or, if the plaintiff is someone intended by statute to have the particular benefit or protection of an Act of Parliament or subordinate legislation, the plaintiff may have a remedy in the form of an action for breach of statutory duty; or the circumstances may give rise to another of the traditional tort actions, for instance, for false imprisonment or assault. In some cases, also, there may be a New Zealand Bill of Rights Act 1990 remedy as established in Simpson v Attorney-General [Baigent’s Case]5 but the present case does not involve any breach of a right guaranteed by the New Zealand Bill of Rights Act 1990 and, in any event, arose before that Act came into force. A remedy by way of judicial review may also be available to prevent the interests of a citizen being threatened or to provide relief if they are damaged. Parliament sometimes also establishes a right to compensation when powers are used to promote public interests, for instance in human or animal health. Compensation may be payable even if powers are exercised lawfully, for example: Forests Act 1949, s 70A, Health Act 1956, s 87, International Terrorism (Emergency Powers) Act 1987, s 13 and, several provisions of the Biosecurity Act 1993.

…

The common law has long set its face against any general principle that invalid administrative action by itself gives rise to a cause of action in damages by those who have suffered loss as a consequence of that action. There must be something more. And in the case of misfeasance of public office that something more, it seems to us, must be related to the individual who is bringing the action. While the cases have made it clear that the malice need not be targeted there must, as we have said, be a conscious disregard for the interests of those who will be affected by the making of the particular decision.

[10]	Subsequently, in Commissioner of Inland Revenue v Chesterfield Preschools Ltd, the Court of Appeal observed:6

[38] The policy behind the tort of misfeasance in public office is that, in a legal system based on the rule of law, executive or administrative power may be exercised only for the public good and not for ulterior or improper

4	At [350]-[351].
5	Simpson v Attorney-General [1994] 3 NZLR 667 [Baigent’s Case].
6	Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 (footnotes omitted).

purposes. In Garrett v Attorney-General, this Court stated that the tort has at its heart conscious disregard for the interests of those who will be affected by official decision making. One of the key themes that emerges from case law discussing the elements of the tort of misfeasance is the necessity for “bad faith”. Other phrases – such as malice or dishonesty – are also used. The tort is therefore intentional and Lord Millett, when discussing this in Three Rivers,7 said:

“First, the tort cannot be committed negligently or inadvertently. Secondly, the core concept is abuse of power. This in turn involves other concepts, such as dishonesty, bad faith, and improper purpose. These expressions are often used interchangeably; in some contexts one will be more appropriate, in other contexts another. They are all subjective states of mind”.

[11]	In Chesterfields, the Court of Appeal went on to point out that the tort could be committed in two ways: targeted malice and non-targeted malice.8 It then observed:

[41] The two forms of the tort have slightly different requirements concerning the mental element. Targeted malice requires the public officer to have specifically intended to injure a person or persons.9 This involves bad faith in the sense that the officer is exercising the public power for an improper or ulterior motive.10 Non-targeted malice occurs when the public officer acts knowing that he or she has no power to do the act complained of and that the act will probably injure the plaintiff.11 This involves bad faith in that the public officer does not believe that his or her act is lawful.12 The plaintiff must therefore prove two aspects: first, that the officer acted with the knowledge of the illegality of the act, or with a state of mind of reckless indifference as to the illegality of the act.13 Secondly, that the public officer knew that his or her conduct would probably injure the plaintiff or a person of a class of which the plaintiff was a member, or was reckless as to the consequences of his or her conduct in the sense of not caring whether the consequences happen or not.14 Subjective – as opposed to objective – recklessness is necessary for both limbs.15

[12]	It is common ground that Mr Lightbown was a public officer who was exercising a public function when he made the decision to revoke Mr Sweeney’s visitor status. In the present case Mr Sweeney is required to establish the following matters in order to make out the tort of misfeasance in public office:

7	Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] AC 176 (HL) at 235.
8	At [40].
9	Three Rivers at 191.
10   An example is Roncarelli v Duplessis (1959) 16 DLR (2d) 689 (SCC). See Stephen Todd “Abuse of Public Office” in Stephen Todd (general ed) The Law of Torts in New Zealand (5th ed, Brookers, Wellington, 2009) at [19.2.03(1)].
11 Three Rivers at 196.
12 Ibid.
13	Minister of Fisheries v Pranfield Holdings Ltd [2008] NZCA 216, [2008] 3 NZLR 649 at [107(iii)].
14	Three Rivers at 194-196 and Pranfield Holdings Ltd at [107(vi)].
15	Three Rivers at 193 and 196.

(a)	When Mr Lightbown revoked Mr Sweeney’s specified visitor status, he either knew, or was subjectively reckless as to whether, his act was unlawful; and

(b)	Mr Lightbown knew, or was subjectively reckless as to whether, his actions in revoking the specified visitor status would injure Mr Sweeney; and

(c)	in revoking the specified visitor status, Mr Lightbown caused actual damage or loss to Mr Sweeney.

[13]	Mr Sweeney does not allege that Mr Lightbown acted with the knowledge that his actions were unlawful. Rather, he contends Mr Lightbown was subjectively reckless  as  to  whether  that  was  the  case.  Similarly,  he  does  not  allege  that  Mr Lightbown knew that he would suffer loss as a result of his actions. Rather, he contends that Mr Lightbown was subjectively reckless as to whether this would occur.

[14]	Mr Sweeney alleges that the revocation of his special visitor status resulted in him suffering actual damage or loss in the form of lost earnings because he was unable to perform his role as an addiction counsellor at the prison. He also says it hindered his subsequent attempts to obtain employment commensurate with his skills and that attracted the level of salary he was earning whilst employed by Care NZ.

Was Mr Lightbown subjectively reckless as to whether his decision was unlawful?

[15]	In order to determine this issue, it is necessary to set out the events that led to Mr Lightbown revoking Mr Sweeney’s status as a specified visitor.

[16]	Mr Sweeney  began  working  at  the  prison  after  receiving  a  letter  dated  1 October 2014 advising him that he had been approved as a specified visitor to the Spring Hill facility. The letter said that the status had been approved for the purposes of “addressing the cultural or other specific needs of a prisoner (regulation 91(1)(b) Corrections Regulations 2005”. The letter advised Mr Sweeney that his approval would expire on 29 September 2015, and that he would require a further approval after that date.

[17]	One of the qualities that made Mr Sweeney suited to the role of an addiction counsellor was that he had suffered from major addiction issues himself when he was younger. He also has a significant criminal history, and this has resulted in him serving several terms of imprisonment. This resulted from the fact that he was formerly a patched member of the Mongrel Mob gang. However, by the time Mr Sweeney came to be employed by Care NZ he had been drug and alcohol free for approximately 30 years and, other than a driving offence that was the result of an accident, he had not committed any offences since 1991. He had also ceased to be a patched member of the Mongrel Mob. It appears to be common ground that Mr Sweeney’s background, and the manner in which he had successfully resolved these issues, gave him the ability to relate to prisoners in a way that might not be possible for persons who have never experienced those issues.

[18]	There was no complaint about Mr Sweeney’s performance after he began working at the prison. Corrections did not renew Mr Sweeney’s approval in September 2015, but he continued working at the prison after that date with no objection or comment being raised by Corrections. This led Palmer J to conclude that his approval remained current until the date upon which Mr Lightbown revoked it.16

[19]	On 5 April 2016, Mr Sweeney went to work at the prison as normal. During the day his supervisor, Mr Kitchin, told him that Corrections had revoked his site access because of concerns about his connections with the Mongrel Mob. An issue had also arisen because he had been observed visiting the self-care unit in the prison rather than the drug treatment unit where he usually worked.

[20]	Later the same evening, Mr Sweeney sent Mr Kitchin an email seeking clarification regarding the issues to which he was required to respond. On the following day, Mr Kitchin advised Mr Sweeney by email that Mr Lightbown had initiated a temporary site ban coming into effect because of “concerns raised by Intel” regarding Mr Sweeney’s connections with the Mongrel Mob. Mr Kitchin also told Mr Sweeney that Mr Lightbown was prepared to review the decision after seven days, thereby giving Care NZ an opportunity to present a case to him to reverse his decision.

16	Sweeney v The Prison Manager, Spring Hill Corrections Facility, above n 1, at [10] (footnotes omitted).

[21]	Palmer J described the events that led to this point as follows:

[11]	In the week of 30 March 2016, Ms Alwin Strydom, a Corrections Intelligence Analyst at Spring Hill, noticed Mr Sweeney in a self-care unit within the prison. She then found Facebook posts by Mr Sweeney involving the Mongrel Mob. On Friday 1 April 2016, she emailed Mr David Alty, another Corrections staff member, about both things, saying “I could not believe all the MM [Mongrel Mob] links and comments…”. Ms Strydom included in the email two Facebook posts by Mr Sweeney referring to the deaths of two old friends of his, Mr Roy Dunn and Mr Ike Miringaorangi, who had been Mongrel Mob members. One post included a picture of a bulldog and another included the phrase “[t]he Bulldog has gone Travel well my brother”. Ms Strydom said she had ongoing concerns. Mr Alty forwarded the email to Ms Maree Chetwin, an HR Manager with Corrections.

[12]	On Monday 4 April 2016, Ms Chetwin asked the Corrections Regional Commissioner, Mr Terry Buffery, what he wanted to do with this information, mentioning that Mr Sweeney was an external contractor. Mr Buffery replied the same day, saying:

Chris [Lightbown] will have a talk with you tomorrow. My view is there is more than enough here for Chris to see this as too big a risk and remove the site access for the person concerned. For me it is more a question of how we do that given the last time it happened at [Spring Hill], we were then cited as the reason for the contractor dismissing their employee.

[13]	The  next  day,  Tuesday  5  April   2016,   Ms   Strydom   sent   to Mr Lightbown the Facebook posts previously mentioned and a further Facebook post by Mr Sweeney with video footage from Mr Dunn’s tangi.

…

[17]	On Friday 8 April 2016, saying “he can’t help himself”, Ms Strydom emailed to a number of Corrections staff Mr Sweeney’s Facebook share, probably in April 2016, of a post made by someone else in May 2013. The post was apparently based upon a press release by Mr Hone Harawira in February 2012, criticising the then Minister of Social Development, Hon Ms Paula Bennett. Mr Buffery replied, “Good job Chris no longer allows him on site – good call Chris”.

[18]	On Monday 11 April 2016, Ms Chetwin asked for confirmation the matter had been resolved. In reply that day, Mr Lightbown said:

I revoked his approval to come on site last Tuesday. The manager of the [Drug Treatment Unit] was going to follow up through their HR people, but he didn’t [come back] to me due to being off site until today. I have handed over to Christine [the assistant prison director] to meet with the Manager DTU, from a relationship [perspective]. However due to the Intel we have it is highly likely he won’t be approved to come back on site.

[22]	On 14 and 15 April 2016, Mr Kitchin afforded Mr Lightbown a detailed statement prepared by Mr Sweeney in which he provided an explanation for his

actions.   Mr Kitchin also provided a statement in support of Mr Sweeney,  as did   Mr Bird, the Acting Chief Executive of Care NZ.

[23]	Palmer J summarised the information contained in Mr Sweeney’s statement as follows:17

(a)	Mr Sweeney explained his personal circumstances as an orphan. He was taken in by a family whose son he had befriended on the street and whose whānau were Mongrel Mob members. He explained he had been addicted and had offended but had reformed. He has raised four children and spoken at prisons in Invercargill, Christchurch, Waikeria and Spring Hill.

(b)	Mr Sweeney explained he has two brothers and four nephews in the Mongrel Mob. He has no personal relationship with the Mob which he had left 28 years ago. He explained he attended the tangi of Roy Dunn, with whom he had grown up in the welfare system and foster homes. He said Mr Dunn had tried to lead the Mob down a new path with methamphetamine rehabilitation. This was supported by the Salvation Army, government officials and Ministers who also attended the tangi. He stated that he attended the tangi “because I loved the brother Roy and it is just what we do as Māori”. He said there were things on his Facebook page about Mr Dunn’s tangi “because that is just the way people send information today”. He said he used the term “Bulldog” in his Facebook post because that is how Mr Dunn was known.

(c)	Mr Sweeney also explained his visit to the self-care unit. He said that, as he entered that morning, he was told one of the Drug Treatment Unit graduates was about to be released. He asked where he was and whether he could go and see him, and the officer told him where to go. At the self-care unit an officer told Mr Sweeney the graduate was in building N, which he understood to be permission to see him. He went to quickly pray with him and say goodbye.

(d)	Mr Kitchin’s and Mr Bird’s letters supported Mr Sweeney. Mr Kitchin said, “I can testify that he is one of the few people who can reach this community”. He supported Mr Sweeney’s comments about Mr Dunn’s vision to change the direction of the Mongrel Mob. He said he had been aware of Mr Sweeney’s link to the Mongrel Mob since the day he started and that he has no reason to suspect any anti-social aspect of Mr Sweeney’s current links. Mr Bird said “it would be a great loss to the DTU” to lose Mr Sweeney’s “insight, relationship skills and counselling expertise”.18

(e)	Mr Kitchin also said that the Hon Hekia Parata, the then Minister of Education, “and several other community leaders” attended Mr Dunn’s tangi due to the significance of his work. He provided a link

17	At [19].
18	Sweeney Affidavit at Exhibit L.

to a news story about Mr Dunn. He asked to meet Mr Lightbown along with Mr Sweeney and his support person.

[24]	On 15 April 2016, Mr Lightbown met with Mr Kitchin. After  the meeting, Mr Lightbown sent an email to Mr Buffery, the Regional Manager for Corrections, noting that he (Mr Lightbown) needed to provide something in writing to Mr Sweeney “as per the regulation”. He attached a draft letter, noting that this “should cover off our obligation”.   This was in the same terms as the letter Mr Lightbown sent to     Mr Sweeney on 19 April 2016 permanently revoking his specified visitor status. The letter was in the following terms:

I am writing to you in regards to your status as a specified visitor to Spring Hill Corrections Facility.

As recorded in our 1 October 2014 letter advising you of the provision of specified visitor status. That letter communicated that “the specified visitor approval can be suspended, varied, or revoked or new conditions proposed at the direction of the Prison Manager and anytime”.

I have raised concerns with your employer Care NZ in my office on 5 April 2016, where I shared with them information within the public domain that [is] posted on your Facebook page that presents a risk to both staff and prisoners. Subsequently, I met further with your employer on 15 April 2016 and they provided written submissions via yourself. I am now in a position where I can advise you of my decision in relation to those concerns.

In accordance with regulation 93(3) of the Corrections Regulations 2005, this letter advises you that your specified visitor status was suspended from 6 April 2016 and fully revoked with effect from 15 April 2016. The effect of this revocation is that you are no longer approved to enter Spring Hill Corrections Facility or buildings for any reason.

The judgment in the judicial review proceeding

[25]	Palmer J concluded that Mr Lightbown revoked Mr Sweeney’ specified visitor status for the following reasons:

[32] I find that Mr Lightbown’s decision to revoke Mr Sweeney’s specified visitor approval was based on his concerns that Mr Sweeney maintained an active association with the Mongrel Mob and had not provided an explanation for his visit to the self-care unit that Mr Lightbown regarded as satisfactory. Mr Lightbown regarded the nature of Mr Sweeney’s criminal history as relevant in as far as it was related to his association with the Mongrel Mob. Under cross-examination, Mr Lightbown did not say clearly whether the Facebook post about Ms Bennett was relevant to his decision. But he was advised of the post only after he had raised his concerns about Mr Sweeney with CareNZ. And this was before the public controversy in July 2016 that led to the report mentioned above. On the balance of probabilities, I do not

consider it has been established that the Bennett post was relevant to the revocation decision.

[26]	Later in the judgment Palmer J said that there was a “distinct lack of foundation to these concerns” when Mr Sweeney’s explanation was taken into account.19

(a)	Mr Sweeney’s explanation to Mr Lightbown of his relationship with Mr Dunn, separate from the Mongrel Mob, and his denials of any active association with the Mob, was compelling. His attendance at the tangi, properly understood in the context of tikanga Māori, is entirely understandable. The attendance of a Minister of the Crown and other dignitaries emphasises that. Mr Kitchin, manager of the organisation contracted by Corrections to provide addiction counselling, supported the lack of any anti-social aspect of Mr Sweeney’s current links with the Mongrel Mob. Mr Sweeney’s and Mr Kitchin’s explanations provided a more than adequate answer to any concerns raised by Mr Sweeney’s Facebook posts. There is nothing in those posts, or any other information, to suggest Mr Sweeney was “actively associating” with the Mongrel Mob outside of mourning the death of someone with whom he had a long personal history. In the words of the Chief Executive of Corrections’ media release in late 2016, Mr Sweeney had “clearly distanced himself from former gang involvement”. There is nothing in any of this to suggest Mr Sweeney’s presence at Spring Hill was a risk to prison security.

(b)	Mr Sweeney’s explanation of the circumstances of his visit to the self- care unit is similarly compelling. He provides details of the basis on which he understood he had permission to enter the unit. There is no evidence that Corrections either investigated that explanation or had any information to the contrary.

[66]   I conclude the evidence on which Mr Lightbown based his decision   to revoke Mr Sweeney’s specified visitor approval was inconsistent with, and contrary to, his decision. Proper application of the law required a different answer. Mr Lightbown’s decision appears to have been driven by suspicions from a staff member and reactions from his superior. But neither of them knew of Mr Sweeney’s explanations which were compelling in rebutting the concerns. Given his explanations, the decision was unreasonable at law.

Analysis

[27]	There is no suggestion in the present case that Mr Lightbown did not have the power to revoke Mr Sweeney’s specified visitor status. Nor can there be. Regulation 93(3)(b) of the Corrections Regulations gives the manager of a prison the power to revoke any approval.

19	At [65].

[28]	Nor can it be suggested that there was any pre-existing animosity between  Mr Lightbown and Mr Sweeney. Mr Lightbown had never met Mr Sweeney before he revoked his specified visitor status. It appears that the only time they ever came into contact with each other was when Mr Sweeney sent Mr Lightbown an email on 28 August 2015 asking what was happening at a reintegration unit within the prison known as the Whare Oranga Ake. Mr Sweeney told Mr Lightbown he was “very interested in what was now happening up there”. Mr Lightbown responded the same day by telling Mr Sweeney it “might be worth discussing the TWOA” with Mr Watene, the Acting Assistant Director of the Spring Hill facility at that time. Mr Watene contacted Mr Sweeney by email on 1 September 2015.

[29]	It is also noteworthy that Palmer J held that Mr Lightbown did not make the decision to revoke Mr Sweeney’s specified visitor status without advising him of his key concerns and giving him an opportunity to be heard. Palmer J held that the fact that Mr Sweeney provided a detailed statement to Mr Lightbown demonstrated that he knew of those concerns and was given the opportunity to address them.20 This prompted Palmer J to reject Mr Sweeney’s claim that Mr Lightbown had breached the principles of natural justice.

[30]	It is also noteworthy that Palmer J did not suggest that Mr Lightbown may have been acting out of ulterior or improper motives when he revoked Mr Sweeney’ specified visitor status. Palmer J’s conclusion regarding the unlawfulness of the decision was based solely on Mr Lightbown reaching a conclusion that was inconsistent with, and contrary to, the evidence that he based it on.

[31]	Further, I am satisfied that Mr Lightbown acted throughout in the genuine belief that the material Mr Sweeney shared on Facebook posed a risk to the security of the prison. He said in cross-examination before me that the issue for him was not that Mr Sweeney had gone to the funeral of a person with links to the Mongrel Mob. Rather, his concern was based on the fact that Mr Sweeney had posted material about the Mongrel Mob on his Facebook page and how that could be perceived, particularly by younger and more vulnerable persons.

20	At [53].

[32]	When I asked Mr Lightbown to explain why he believed the posting of this material on Facebook posed a reputational risk to the prison, he said that the gang- related material may be seen as acceptable by others given the fact that Mr Sweeney was a person who regularly came onto the prison site. He also pointed out that the Mongrel Mob were extremely influential within Spring Hill in 2016.

[33]	Taken as a whole, I consider the evidence falls well short of establishing that Mr Lightbown appreciated in April 2016 that his conclusions regarding the Facebook material and the visit to the self-care unit may not be correct. Indeed, he made it clear when he gave evidence before me that he still considers his original conclusions to be correct notwithstanding the outcome of the judicial review proceeding.

[34]	It follows that Mr Sweeney cannot establish the first element of the tort.

[35]	In case I am wrong in this conclusion I will go on to briefly consider the remaining two elements.

Was Mr Lightbown subjectively reckless as to whether his actions would injure Mr Sweeney?

[36]	The points I have already made about the lack of prior contact and absence of any pre-existing animosity between Mr Lightbown and Mr Sweeney apply equally to this element. There can be no suggestion that Mr Lightbown deliberately set out to cause Mr Sweeney any harm because he bore ill-will towards him.

[37]	The thrust of Mr McKenna’s argument on this issue was that, once he lost his specified visitor status, Mr Sweeney lost his ability to enter the Spring Hill facility. This meant he could no longer  work  as  an  addiction  counsellor  at  the  facility. Mr McKenna suggested to Mr Lightbown that he must have appreciated that this was likely to affect Mr Sweeney’s employment with Care NZ.

[38]	Mr Lightbown denied that this was the case. He said he was not familiar with Mr Sweeney’s employment contract. He also pointed out that Care NZ was a large organisation and Spring Hill was not its only client. In addition, he said that at no stage did any person tell him that revocation of specified visitor status would result in

Mr Sweeney becoming unemployed. In answer to a question from me, Mr Lightbown said that at no stage did it cross his mind that this might occur. Nor did he accept later in cross-examination that revocation of Mr Sweeney’s specified visitor status at Spring Hill may be a factor if he sought to obtain that status at another facility.

[39]	Perhaps the strongest argument for Mr Sweeney on this issue flows from an email sent by Corrections’ regional manager, Mr Buffery, to Ms Chetwin, a staff member in Human Resources, on 4 April 2016.21 This referred to the fact that the last occasion on which a specified visitor status was revoked at Spring Hill led to Corrections being cited as the reason why a contractor had dismissed the person whose approval had been revoked. However, Mr Lightbown was not a recipient of this email although it was subsequently sent to him by Ms Chetwin on 11 April 2016 as part of an email thread. Mr Lightbown said he had no knowledge of the incident to which this email referred.

[40]	It is necessary for Mr Sweeney to establish that Mr Lightbown actually appreciated that revocation of his specified visitor status may cause him injury. However, I cannot make that finding in the present case given the complete absence of any evidence to suggest that Mr Lightbown did know that Mr Sweeney’s employment prospects were likely to be adversely affected by the revocation decision.

[41]	Further, the revocation decision did not cause Mr Sweeney to lose his employment with Care NZ. He remained on full pay until 29 July 2016, when his counsel negotiated an arrangement with Care NZ under which Mr Sweeney was on leave without pay for a period of six months. The purpose of this arrangement was to enable Mr Sweeney and his counsel to negotiate with Corrections regarding the revocation of his specified visitor status. During this period Mr Sweeney undertook employment with another employer at a lesser rate than he would have received from Care NZ. Mr Sweeney also sought alternative employment with other employers during this period. His lack of success at finding alternative employment was not caused by the revocation of his specified visitor status.

21	Set out above at [20] in the passage cited from the judgment of Palmer J at [12].

[42]	The evidence does not disclose why Mr Sweeney ultimately ceased to be employed by Care NZ once the period of leave without pay came to an end. Importantly, however, there is nothing in the evidence to suggest that the revocation decision resulted in Mr Sweeney ceasing to be employed by that company.

[43]	It follows that Mr Sweeney has not established that Mr Lightbown appreciated that Mr Sweeney would lose his employment with Care NZ if his specified visitor status at Spring Hill was revoked. Further, the revocation did not result in this occurring.

What damage did Mr Sweeney suffer as a result of having his specified visitor status revoked?

[44]	Mr Sweeney seeks damages in the sum of $370,000 from Spring Hill. He says he is entitled to be compensated not only for lost wages but also lost employment opportunities. He also seeks aggravated damages to reflect the distress, hurt and humiliation he suffered after his specified visitor status was revoked.

Loss of earnings

[45]	Had Mr Sweeney established his claim I accept he may have been able to advance a claim for the direct financial loss he suffered as a result of Mr Lightbown’s decision. However, I would only have been prepared to award him damages for lost salary between 29 July 2016, being the date upon which he ceased to receive his full salary, and 31 March 2017, being the date on which Care NZ’s contract with Corrections expired. Mr Sweeney does not allege that the expiry of the contract between Care NZ and Corrections was due to the events that led to the revocation of his specified visitor status.

[46]	Using the figures contained in Mr Sweeney’s brief of evidence, I calculate this sum as being $22,231.66. This reflects the amount Mr Sweeney says he would have earned between 29 July 2016 and 31 March 2017 ($32,692.36) less the amount that he earned during this period by undertaking lesser paid employment ($10,460.70).

[47]	Mr Sweeney also seeks to be reimbursed for employment opportunities that he lost between 31 March 2017 and November 2020. He says it was not until November 2020 that he was able to obtain employment that utilised his skillset and compensated in a manner commensurate with the salary he received from Care NZ. Mr Sweeney therefore contends that the revocation decision has had significant long lasting financial implications for him.

[48]	Importantly, however, Mr Sweeney accepts that he would have been able to obtain a good reference from Care NZ for the work he carried whilst employed by it. He does not provide any details as to how the revocation of his specified visitor status impacted on his ability to obtain future employment.

[49]	The evidence Mr Sweeney has adduced suggests that he failed to gain suitable alternative employment after 31 March 2017 for a variety of reasons, none of which relate to the revocation decision. The unfortunate reality is that Mr Sweeney’s criminal history was always going to be an issue for some prospective employers and so it has proved to be. Mr Sweeney has therefore not established that he lost the opportunity to obtain more remunerative employment opportunities prior to November 2020 because of the revocation of his specified visitor status. I would not have made any award to reflect loss of future employment opportunities.

Damages for stress, humiliation and hurt

[50]	Mr Sweeney also seeks general damages to reflect the distress, humiliation and hurt he suffered as a result of the revocation of his specified visitor status. In his closing submissions Mr McKenna suggested an appropriate award under this head was damages in the sum of $100,000.

[51]	Mr McKenna relied for this submission on Whelan v Waitaki Meats Ltd, in which this Court awarded an employee who had been dismissed in breach of an employment contract general damages in the sum of $50,000 to reflect the fact that he had suffered undue mental distress, anxiety, humiliation, loss of dignity and injury to

his feelings.22 Mr McKenna submitted that Whelan can be regarded as analogous to the present case although it related to a breach of contract.

[52]	Mr McKenna also relies on the decision of a Full Court of the Federal Court of Australia in Sanders v Snell as authority for the proposition that a plaintiff who establishes the tort of misfeasance in office may recover damages for loss of reputation, including loss of prospects of re-employment at a senior level.23 In that case the plaintiff was awarded general damages in the sum of AUD 40,000 for stress, humiliation and after establishing that misfeasance in public office cost him his employment.

[53]	I accept that Mr Sweeney suffered considerable distress, humiliation and hurt as a result of Mr Lightbown’s decision. I also accept Mr McKenna’s submission that Whelan and Snell were both decided in 1991 and the sums awarded in those cases would be worth a lot more in today’s monetary terms. Nevertheless, the circumstances in both cases were arguably more serious than in the present. In Whelan, the plaintiff was a senior executive of the company that dismissed him in breach of his contract of employment. In Snell, the employer had ensured that the termination of the plaintiff’s employment was published in the mainstream news media. This also suggested possible criminality on the part of the plaintiff.

[54]	In the present case Mr Sweeney was not employed by Corrections. Nor was he one of Care NZ’s senior executives. Further, there is no evidence that Corrections communicated the revocation of Mr Sweeney’s specified visitor status beyond its own staff and Mr Sweeney’s immediate supervisor, Mr Kitchin. All those persons clearly needed to know that it had occurred. Further, Mr Sweeney has not given or called evidence to establish that the revocation caused him to be viewed in a negative light by others.  The claim therefore relates to the effect that the revocation has had for  Mr Sweeney in his own mind.

[55]	Given this fact I would only have been prepared to award damages in the sum of $15,000 under this head.

22	Whelan v Waitaki Meats Ltd [1991] 2 NZLR 74 (HC) at 90.
23	Sanders v Snell (1997) 143 ALR 426.

The claim based on unjustified injury to Mr Sweeney’s mana

[56]	Under this head Mr Sweeney seeks damages in the sum of $325,000 together with an order that he be given a marae-based apology.

[57]	I deal with this aspect of Mr Sweeney’s claim relatively briefly because it faces significant legal and factual obstacles. As Mr McKenna acknowledges, Mr Sweeney is asking the Court to confirm the existence of a tortious cause of action that has never been recognised by the courts in New Zealand to date. The courts always approach the introduction of a new tort cautiously because it involves the imposition of civil liability where previously there has been none. Members of the community need to know how they must act and regulate their affairs to avoid being civilly liable to others. As a result, the courts will only recognise a new tort where policy considerations and the likely practical consequences confirm that this is both necessary and appropriate.

Legal principles

[58]	A tort is a civil wrong, other than a breach of contract or breach of trust, that causes loss remediable by damages.24 Tort forms one part of the law of obligations in the private law, the others being contract and restitution.25 The law of torts is primarily concerned with situations where the conduct of one person causes harm to, or invades the interests of, another person, and where that harm is situated outside a contractual relationship.26 As Stephen Todd puts it, “It is the body of rules that determines whether or in what circumstances that person is liable to pay compensation to the injured party”.27

[59]	By its nature, the law of torts “does not stand still”.28 It is a common law jurisdiction that changes incrementally over time and develops new causes of action

24 Stephen Todd (ed) Todd on Torts (9th ed, Thomson Reuters, Wellington) at 1. The authors clarify that while other remedies, including injunction, declaration, self-help and others are available in tort, a right to damages must first be established.
25 Sinclair Horder O'Malley & Co v National Insurance Company of New Zealand Ltd [1992] 2 NZLR 706 (HC) at 719.
26	Todd on Torts, above n 24, at 2. It is possible, but remains controversial, to have concurrent duties in contract and tort.
27	At 2.
28	At 13.

where that is an appropriate response to disputes that cannot be resolved under the existing law.29

[60]	The recognition of a new tort does not follow a prescribed process. In all cases, a ‘wrong’ must first be recognised for which there is no remedy, or no adequate remedy, under existing law for the injured plaintiff. The imposition of liability for that tortious injury then develops slowly and with reference to changing technology, social norms, commercial concerns, and, as a catch-all, public policy.

[61]	The learned authors of Todd on Torts refer to factors and considerations which may guide a court in the creation of a new tort:30

A number of broad policy considerations can be identified that guide the courts in deciding how far tort liability should extend. The courts are concerned, among other things, with questions of fairness and justice, with the value of precedent and the effect of their decisions on certainty and coherence in the law, with the practicality of defining and limiting a proposed head of liability, with commercial convenience, with promoting self-reliance and individual autonomy, and with the deterrent and economic implications of their decisions for the future.

[62]	An instructive example is found in the development of the tort of privacy in New Zealand. In Hosking v Runting, the courts determined that it was appropriate to recognise a tort to protect the right to privacy notwithstanding that such a cause of action was completely novel. In the Court of Appeal, Gault P and Blanchard J observed:31
[3]	The law governing liability for causing harm to others necessarily must move to accommodate developments in technology and changes in attitudes, practices and values in society. These are drawn into the law in the main by legislation, often these days to conform with obligations assumed under international treaties and conventions. Such developments, introduced by legislation, emerge from processes which employ extensive consultation and procedures designed to take into account all affected interests.

[4]	From time to time, however, there arise in the courts particular fact situations calling for determination in circumstances in which the current law does not point clearly to an answer. Then the courts attempt to do justice between the parties in the particular case. In doing so the law may be developed to a degree. It is because the legislative process is inapt to anticipate

29	Francesca Dykes “Pushing Boundaries: Novel Torts and Climate Change in Light of Smith v Fonterra” (LLB (Hons) Dissertation, University of Otago, 2020).
30	Todd on Torts, above n 24, at 14.
31	Hosking v Runting [2005] 1 NZLR 1 (CA).

or respond to every different circumstance that some developments in the law result from such case by case decisions. That is the traditional process of the common law.

[5]	The courts are at pains to ensure that any decision extending the law to address a particular case is consistent with general legal principle and with public policy and represents a step that it is appropriate for the courts to take. In the last respect there are matters that involve significant policy issues that are considered best left for the legislature.

(Emphasis added)

[63]	The Court’s decision established the tort of invasion of privacy through publicity given to private facts. While novel in its elements and scope, the tort was a clear response to, and development of, the existing law protecting private information. This included the tort of breach of confidence established in 1849 by Prince Albert v Strange.32 The recognition of the tort of privacy was therefore a continuation of earlier developments in the law that area. The development of this area of the law continued subsequently when the High Court recognised the related tort of invasion of privacy by intrusion into seclusion.33

[64]	The approach taken in Hosking suggests that, in deciding whether or not to recognise a new tort, the courts in New Zealand are likely to have regard to the following considerations:

(a)	whether there is a “gap” in the law, which may be caused by changes in technology, or changes in societal attitudes, practices, and values;

(b)	whether the current law may already point to an answer or resolution in respect of the claimed harm;

(c)	whether the decision to extend the law would be consistent with general legal principle and public policy; and

(d)	whether it is a step that is appropriate for the judiciary to take.

32	Prince Albert v Strange (1849) 41 ER 1171 (QB).
33	C v Holland [2012 NZHC 2155, [2012[ 3 NZLR 672.

[65]	In Hosking, the Court of Appeal considered legislative provisions that had been enacted in the area of privacy in order to discern “any policy indications in respect of the protection of privacy and whether statutory protections so far enacted amount to a comprehensive treatment”.34 These included the Privacy Act 1993, the Broadcasting Act 1989, and the Harassment Act 1997. The Court considered that the legislative protection provided by each of these statutes was “of specific focus and limited”.35 This led the Court to conclude that the existing statute law contained gaps in dealing with privacy issues. It could not be regarded as comprehensive so as to preclude additional common law remedies.36

[66]	The Court of Appeal also acknowledged that in many cases the courts are already equipped with the ability to apply civil remedies that may respond to hurt or harm which may be caused by a civil wrong.37 The Court acknowledged that these existing remedies could be used to respond to a privacy breach for which the law as it stood did not provide an answer. Existing remedies could be applied in a way that was consistent with general legal principle and or policy, without stepping outside judicial parameters.

[67]	Shortly before Hosking was decided, the Court of Appeal declined to recognise another new tort. In Burns v National Bank of New Zealand Ltd, the High Court had declined to strike out a claim based on reckless or negligent spoliation (destruction) of evidence.38 The Court of Appeal considered overseas authority and outlined a range of policy reasons that militated against the recognition of the new tort before concluding that it should not be recognised in New Zealand.39 The policy reasons identified in Burns broadly align with those identified in Hosking. They include:40

(a)	the availability of alternative remedies;

(b)	the speculative nature of any damage; and

34	Hosking v Runting, above n 31, at [97].
35	At [108].
36	At [109].
37	At [109].
38	Burns v National Bank of New Zealand Ltd [2004] 3 NZLR 289 (HC) at [83].
39	Burns v National Bank of New Zealand Ltd [2004] 3 NZLR 302 (CA) at [91].
40	At [85].

(c)	inconsistency with existing policy.

[68]	In light of these principles, I now turn to consider the issues that the recognition of the proposed new tort raises.

Issues arising out of the recognition of the new tort

[69]	The first issue that needs to be considered is the likely scope and nature of the proposed tort. If it is to apply to human conduct broadly, significant practical consequences will follow. This flows from the fact that I have no doubt it is possible to both cause and suffer unjustified damage to mana in a myriad of ways. To take an extreme example, it may occur when an intoxicated person casts a slur on the character of a fellow patron in a bar. A tort of such a broad application would obviously have significant practical consequences. It seems inherently unlikely that it would find favour in any sector of the community.

[70]	Recognising this difficulty, Mr McKenna accepts that the Court should adopt a narrow approach. This would require recognition of the tort only in factual situations analogous to those in the present case. Such an approach would allow the courts to develop the scope of the tort incrementally in future cases.

[71]	However, this would create its own problem. First, the existing tort of misfeasance in public office already provides a remedy in certain circumstances for damage caused by the wrongful actions of public officials in carrying out their public duties. Mr Sweeney has not provided any evidence or submissions to explain why the new tort is necessary to bridge a gap in the existing law in this area. In his closing submissions Mr McKenna suggested that the new tort may capture damage that falls outside the types of damage for which general damages may now be awarded. In the absence of evidence on the point I cannot give that submission any weight.

[72]	Secondly, the tort of misfeasance in public office has developed over many years and its scope is now well understood. As I have noted earlier in this judgment, the general principle is that it is not possible to obtain redress for damage caused by wrongful actions taken by public officials carrying out their public duties. If the new tort is to apply to the actions of those persons it will obviously cut across, and in all

likelihood be inconsistent with, the principles the courts have developed in relation to the tort of misfeasance in public office.

[73]	Thirdly, a plaintiff in Mr Sweeney’s position already has the ability under the existing law to challenge and obtain remedies for wrongful official actions. The most obvious of these is that the actions of officials such as Mr Lightbown are subject to judicial review. Mr Sweeney has already availed himself of this type of challenge. The actions may also be challenged through the existing cause of action based on misfeasance in public office. Mr Sweeney has chosen to advance that as his primary cause of action in the present proceeding. An action in defamation will also be available where official conduct results in defamatory words being spoken about a person.

[74]	This leads to the next issue, which flows from the fact that Mr Sweeney has already  successfully  exercised  his  right  to  have  the  Court  judicially  review   Mr Lightbown’s decision. He did so expressly to vindicate and uphold his mana.

[75]	The lengths to which Palmer J went to uphold Mr Sweeney’s mana in the judicial review proceeding are relevant in the present context:41

[75]	The law of judicial review is New Zealand common law. Where material to a case, the Courts can, and may have an obligation to, recognise and uphold the values of tikanga Māori in applying the law of judicial review and granting remedies.

[76]	Here, Mr Sweeney seeks vindication of his rights in order to uphold his mana. There is no need for involved definitions of mana to be formulated in this context. Mana in leadership, authority, influence and prestige is understood  implicitly   by   Māori   and,   now,   by   most   New  Zealanders. Upholding a successful plaintiff's mana, to vindicate their rights as is fundamental to the rule of law, can be a good reason for New Zealand courts to make a declaration in a judicial review case.

[77]	Mr Sweeney has a history of addiction, criminal offending and active gang associations. He clearly went to significant effort to reform his life. Now he dedicates himself to helping others do the same. Yet, Corrections' decision to revoke his specified visitor approval tarred his present with his past. The decision was inconsistent with, and contrary to, the evidence on which it was made. It unjustifiably impugned his mana. Because the decision was unreasonable, it was unlawful. That justifies the Court in issuing a declaration, in order to vindicate Mr Sweeney's rights and uphold his mana.

41	Sweeney v The Prison Manager, Spring Hill Corrections Facility, above n 1, (footnotes omitted).

[76]	These are very strong words. They state unequivocally that Mr Sweeney was in the right and  Corrections  was  in  the  wrong.  They  also  recognise  the  harm Mr Sweeney has suffered through Corrections’ actions in revoking his specified visitor status. Mr Sweeney has not explained why this vindication of his mana is insufficient to provide a complete remedy.

[77]	The question of the appropriate remedy to be provided by the proposed new tort is also problematic. This is demonstrated by the fact that Mr Sweeney seeks an order  that  Mr  Lightbown  provide  him  with  an   apology  to  be  delivered  on   Mr Sweeney’s marae. Such a remedy is currently unknown to the law of torts and may not be legally available. If available, it would obviously constitute a significant extension of the existing powers the Court currently has to make compensatory orders.

[78]	The Crown may sometimes deliver an apology on a marae in cases where it acknowledges there has been wrongdoing on its part in the past. However, this generally occurs in the context of a settlement the Crown has reached with iwi to address those wrongdoings. In that context the delivery of an apology is a voluntary act by the Crown. It is not undertaken in fulfilment of any requirement or condition imposed by the courts.

[79]	Mr Sweeney also seeks monetary damages in reliance on the fact that this is the traditional means by which the courts have awarded compensation for tortious injury. However, he has not explained how he has formulated his claim for damages in the sum of $325,000. More importantly, he has not adduced any evidence to confirm that monetary compensation is an appropriate remedy for unjustified damage to mana. A monetary award may not be an appropriate form of remedy for the damage that has occurred. In the absence of evidence on this issue there is therefore a risk that a monetary award may add insult to injury.

[80]	This leads to a further issue, flowing from the fact that the values of tikanga Māori would undoubtedly be needed to guide the Court to its decision. However, Mr Sweeney has not adduced any evidence to establish how unjustified damage to mana is viewed by his iwi and hapu or by other persons or groups that may be influential in

this context. Nor has he said that tikanga values mean that he alone can explain the damage that has occurred.

[81]	Mr Sweeney called Ms Kingi as an expert witness, but her expertise and experience lies largely in the compilation of reports tendered to the Court under s 27 of the Sentencing Act 2002 to assist in the sentencing process  in criminal cases.    Ms Kingi’s evidence was helpful in some respects, and in particular as regards the concept of mana.  However, it consisted  for the  most part of a summary of what   Mr Sweeney had told her about this case. Ms Kingi had not undertaken her own enquiries of third parties about the effect the revocation of the specified visitor status has had for Mr Sweeney or undertaken research about that issue.

[82]	Finally, the courts in New Zealand have recognised that tikanga principles may guide the development of the common law in appropriate cases. In other words, recognised causes of action may in appropriate cases be viewed through the lens of tikanga.42 As the Supreme Court recently said in Smith v Fonterra:43
… tikanga was the first law of New Zealand, and it will continue to influence New Zealand’s distinctive common law as appropriate according to the case and to the extent appropriate in the case.

[83]	However, on my understanding of the authorities, tikanga principles standing alone do not give rise to distinct causes of action at common law. As the Law Commission has recently stated, “As yet, no case has found tikanga determinative of how a common law rule should be formulated”.44

[84]	The courts have also acknowledged that they must be extremely cautious when applying tikanga principles lest they misinterpret them and thereby cause greater damage. As Palmer J observed in Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2):45
… a court must be very careful about “finding” tikanga as a fact, even where it is required by the relevant iwi or hapū to do so. Whereas most facts relevant

42	Ellis v R [2022] NZSC 114 at [267].
43	Smith v Fonterra [2024] NZSC 5 at [187].
44	Te Aka Matua o te Ture | Law Commission He Poutama (NZLC SP24, 2023) at 8.65.
45	Ngawaka v Ngāti Rehua-Ngātiwai ki Aotea Trust Board (No 2) [2021] NZHC 291, [2021] 2 NZLR 1 at [58].

to a case are created by circumstance, I understand tikanga to be created by the relevant hapū or iwi through a mixture of practice, tradition and deliberation. Tikanga can change over time. Any recognition by a court can only be a snapshot at a certain point. And a court recognises tikanga only for the particular purpose of the particular case before it at the time. What is recognised by a court cannot change the underlying fact of tikanga determined by the hapū or iwi, exercising their rangatiratanga.

[85]	This issue is particularly important in the present case because Mr Sweeney seeks to advance the new tort against an agency of the Crown. However, it is well recognised that the Crown is not bound by tikanga and does not play any role in its development. As Palmer J observed in Ngāti Whātua Ōrākei Trust v Attorney- General:46
Tikanga governs and binds iwi and hapū and is developed over time by iwi and hapū. The Crown is not an iwi or hapū. The Crown does not have tikanga… The Crown is not bound to follow tikanga in and of itself and does not develop tikanga. Neither does tikanga directly modify the common law or statutes which bind the Crown.

[86]	Palmer J reiterated the need for caution in this area in the Ngāti Whātua case:47

Iwi and hapū create, determine and change tikanga through their own deliberative aggregation of practices in exercising their rangatiratanga. Courts do not and cannot make, freeze or codify tikanga. Accordingly, a court must be cautious and careful when dealing with tikanga.

[87]	All these factors persuade me that, at this stage, the tort that Mr Sweeney seeks to advance is not one that can be recognised by the common law.

Result

[88]	Mr Sweeney’s claims are dismissed.

Costs

[89]	Mr Sweeney is legally aided. Sections 45 and 46 of the Legal Services Act 2011 therefore apply to any claim for costs that Spring Hill may make.

46	Ngāti Whātua Ōrākei Trust v Attorney-General [2022] NZHC 843 at [570].
47	At [371].

[90]	If counsel cannot reach agreement regarding costs, they may file concise memoranda and I will determine that issue on the papers.

Lang J