Attorney-General v Jones

Case [2001] NZCA 322
IN THE COURT OF APPEAL OF NEW ZEALAND CA7/01
BETWEEN HER MAJESTY’S ATTORNEY-GENERAL SUED ON BEHALF OF NEW ZEALAND POLICE

Appellant
AND ROBERT EDWARD JONES

Respondent
Hearing: 31 July 2001
Coram: Gault J
Keith J
Blanchard J
Appearances: D J Boldt and G Stanish for the Appellant
M P Reed QC and P A Morten for the Respondent
Judgment: 13 August 2001

JUDGMENT OF THE COURT DELIVERED BY KEITH J

Introduction

  1. Sir Robert Jones, the respondent in this Court, brought proceedings against the Attorney-General in respect of actions of the New Zealand Police.  He was driving his partner and two sons along the Petone foreshore on his way to Wellington Airport.  His sons were returning to Sydney where they lived.  He was twice stopped by a police officer who had been following him in a marked police car.  The statement of claim is based on the actions of the police officer during the period of the stoppings and alleges unlawful detention, false imprisonment, arbitrary detention, unreasonable search and seizure, negligence and, in an addition made in an amended statement of claim filed the day before the hearing in this Court, misfeasance in a public office.

  2. Master Thompson rejected the Attorney-General’s application for summary judgment under Rule 136(2) of the High Court Rules, essentially because he did not consider that he could resolve some critical questions of fact on the affidavits before him.  The Attorney-General appeals. 

The defendant’s application for summary judgment

  1. The ability of a defendant to apply for a summary judgment was added to the corresponding ability of the plaintiff by an amendment made to the rules in 1998.  Rule 136 now reads as follows:

    136Judgment where there is no defence or where no cause of action can succeed

    (1)The Court may give judgment against a defendant if the plaintiff satisfies the Court that the defendant has no defence to a claim in the statement of claim or to a particular part of any such claim.

    (2)The Court may give judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed.

  2. This Court has considered the new power in two cases – Westpac Banking Corporation v M M Kembla (New Zealand) Ltd [2001] 2 NZLR 298 and Bernard v Space 2000 Ltd (CA232/00, 5 July 2001).  We begin with the broad proposition that plaintiffs have the right to have their claims disposed of following a fair hearing by the court with jurisdiction over the claims.  In the present case that principle is emphasised by s27 of the New Zealand Bill of Rights Act 1990.  More generally, it is supported by the consideration that a ruling against the plaintiff on a summary judgment application creates an issue estoppel.  By contrast a successful application to strike out the whole or part of a statement of claim does not have that consequence.

  3. The two earlier decisions of this Court help identify the following relevant features of the power:

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AGLC
Attorney-General v Jones [2001] NZCA 322
Case
[2001] NZCA 322
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Australia, the case of Attorney-General v Jones revolves around the interpretation and application of Rule 136 of the Uniform Civil Procedure Rules, which allows for summary judgment against either a plaintiff or a defendant if there is no defence or if none of the causes of action can succeed. The court was tasked with determining the scope and criteria for granting summary judgment, particularly focusing on the difference between the requirements for defendants and plaintiffs. The Attorney-General sought a summary judgment against Jones, arguing that none of Jones’s causes of action could succeed, while Jones contested that the application should be dismissed as there were disputed facts that could not be confidently resolved.

The court examined the legal issues by considering the legislative intent behind Rule 136, the distinction between the English and Australian rules for summary judgment, and the necessity for the court to be confident that none of the claims can succeed. The court also assessed whether the introduction of the defendant’s power to apply for summary judgment was meant to expedite the resolution of cases based on compelling evidence, rather than on the balance of probabilities. Furthermore, the court explored the implications of a summary judgment ruling versus a successful application to strike out a statement of claim, focusing on the creation of issue estoppel in the former.

In its reasoning, the court clarified that the defendant must demonstrate that none of the plaintiff’s causes of action can succeed, while the plaintiff’s application can be made in respect of a specific part of the claim. The court underscored the necessity for the court to be confident, not merely probable, that none of the claims can succeed, and that this confidence must be based on compelling evidence. The court also highlighted the importance of responding to any credible evidence supplied by the defendant. The Attorney-General's application for summary judgment was ultimately dismissed due to the presence of disputed facts that could not be confidently resolved.

The court’s final orders were that the application for summary judgment was dismissed, leaving the case open for further proceedings to address the merits of the claims and defenses presented. This decision reinforces the need for thorough evidence and careful consideration when applying for summary judgment under Rule 136.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The ability of a defendant to apply for a summary judgment was added to the corresponding ability of the plaintiff by an amendment made to the rules in 1998. Rule 136 now reads as follows:136Judgment where there is no defence or where no cause of action can succeed(1)The Court may give judgment against a defendant if the plaintiff satisfies the Court that the defendant has no defence to a claim in the statement of claim or to a particular part of any such claim.(2)The Court may give judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed. This Court has considered the new power in two cases – Westpac Banking Corporation v M M Kembla (New Zealand) Ltd [2001] 2 NZLR 298 and Bernard v Space 2000 Ltd (CA232/00, 5 July 2001). We begin with the broad proposition that plaintiffs have the right to have their claims disposed of following a fair hearing by the court with jurisdiction over the claims. In the present case that principle is emphasised by s27 of the New Zealand Bill of Rights Act 1990. More generally, it is supported by the consideration that a ruling against the plaintiff on a summary judgment application creates an issue estoppel. By contrast a successful application to strike out the whole or part of a statement of claim does not have that consequence. The two earlier decisions of this Court help identify the following relevant features of the power:1.The court may grant the defendant summary judgment only if the defendant has satisfied it that “none of the causes of action” can succeed; by contrast the plaintiff’s application may be made in respect of the defence to a particular part of the claim as well as to the claim as a whole.2.The test is that none of the causes “can succeed” by contrast to the English rule considered for instance in Swain v Hillman [2001] 1 All ER 91 and Three Rivers District Council v Bank of England (No. 3) [2001] 2 All ER 513, which requires the showing that the particular claim or the whole claim has “no real prospect” of being successful; that may however be a distinction of no practical consequence and those judgments do valuably stress the need to see whether the plaintiff has a realistic, as opposed to a fanciful, prospect of success.3.The power was added to the existing power to strike out proceedings, a power ordinarily exercisable without any reference at all to the evidence; it was plainly intended to enable proceedings to be brought to an end by reference to compelling evidence.4.A summary judgment application will not however succeed where the court cannot confidently resolve disputed facts; the court must be satisfied that none of the claims can succeed; it is not enough that they are shown to have weaknesses; the assessment to be made is not one to be arrived at on the fine balance of the available evidence.5.While the plaintiff does not have to put up any evidence at all, if the defendant supplies evidence which would satisfy the court that the claim cannot succeed, the plaintiff will usually have to respond with credible evidence.

Ratio Decidendi

Legal Principle Established

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