Burchell v Police
[2015] NZCA 581
•30 November 2015 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA496/2015 CA497/2015 [2015] NZCA 581 |
| BETWEEN | LLEWELLYN WILLIAM BURCHELL AND JOAN BURCHELL |
| AND | NEW ZEALAND POLICE DEPENDABLE PROPERTY MANAGEMENT LIMITED RUSSELL PETER NORDSTRAND SUKHMINDER SINGH ALEX LI |
| Hearing: | 23 November 2015 |
Court: | Harrison, Stevens and Wild JJ |
Counsel: | Applicants in Person |
Judgment: | 30 November 2015 at 2.30 pm |
JUDGMENT OF THE COURT
The two applications for extensions of time to appeal are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
The applicants apply under r 29A of the Court of Appeal (Civil) Rules 2005 for extensions of time to appeal against two judgments given by Wylie J in the High Court at Auckland.
In the first judgment, delivered on 20 April 2015, Wylie J struck out a proceeding the applicants had brought against the New Zealand Police and four other defendants.[1]
[1]Burchell v Police [2015] NZHC 769 [20 April decision].
The applicants’ amended statement of claim filed on or about 20 October 2014 contained two causes of action. The first was an allegation of misfeasance in public office against the New Zealand Police. Each of the applicants claimed $100,000 general damages and unquantified punitive damages.
The second cause of action, conspiracy to injure, was directed against all the defendants. Substantial damages were sought against each defendant, in particular $1 million general damages from the New Zealand Police. Punitive damages were also claimed.
Wylie J considered the amended statement of claim qualified for striking‑out under each of the four limbs of r 15.1(1) of the High Court Rules.[2] Thus, the Judge considered it:
(a)disclosed no reasonably arguable cause of action;[3]
(b)was likely to prejudice or delay (the Judge described it as “neither coherent, nor logical”,[4] and as “the antithesis of what is required in a statement of claim”.[5] He considered there would be inordinate delays as the defendants attempted to clarify issues and stated: “The defendants should not be expected to put up with this”);[6]
(c)was frivolous or vexatious (in that it contained no allegations sufficient to establish the tort of conspiracy);[7] and
(d)was an abuse of the process of the Court (for two reasons: first, in relation to the defendant Mr Singh, because it repeated allegations made in an earlier proceeding that had been struck out; second, because it contained scandalous allegations against two judicial officers).[8]
[2]At [35].
[3]At [36]–[41].
[4]At [36].
[5]At [38].
[6]At [38].
[7]At [41].
[8]At [42]–[44].
Accordingly, the Judge struck out the amended statement of claim.[9]
[9]At [45].
At the end of that 20 April judgment, having noted Mr Burchell had brought approximately 40 proceedings in the District Court or High Court and some 27 appeals against adverse decisions, the Judge directed that a copy of the judgment be sent to the Attorney-General, so that he could consider applying under s 88B of the Judicature Act 1908 for an order restricting Mr Burchell’s ability to institute proceedings.
In the second judgment, delivered on 19 May, Wylie J refused Mr and Mrs Burchell’s application to stay the strike-out judgment.[10] He observed:[11]
I cannot see that there is any unfairness to the Burchells if a stay is declined. If their appeal succeeds, then the proceedings will be reinstated; if not, then my order will be upheld. There is no prejudice to the Burchells in declining a stay.
The Judge also declined to make other orders sought by Mr and Mrs Burchell, on the basis that there was no longer any extant proceeding in which to make any such orders.
[10]Burchell v Police [2015] NZHC 1063.
[11]At [14].
Mr and Mrs Burchell require extensions of time because they did not serve their two notices of appeal, one of which they filed in time and the other only a day out of time. Of the well-established considerations relevant on an application under r 29A of the Court of Appeal (Civil) Rules,[12] these two applications hinge on the prospective merits of the two appeals, all other considerations pointing towards an extension of time. Do the appeals have any realistic prospect of success? There is, after all, no point in extending time for a hopeless appeal.
[12]The considerations, drawn from cases including Robertson v Gilbert [2010] NZCA 429; Barber v Cottle [2010] NZCA 31; and My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518, are:
(a) The length of the delay and the reasons for it.
(b) The parties’ conduct.
(c) The extent of prejudice caused by the delay.
(d) The prospective merits of the appeal.
(e) Whether the appeal raises any issue of public importance.
Mr Burchell’s submissions ranged widely over almost everything but the prospective merits. When we asked Mr Burchell to address the merits he made two submissions:
(a)the essence of Mr and Mrs Burchell’s case is their allegation that four police officers had arrived at their home unlawfully on the afternoon of 9 February 2014, with automatic weapons, on instructions or with the intention of killing them (or at least killing Mr Burchell); and
(b)Wylie J did not follow his own “unless” order of 13 March 2015. He had made an order that the defendants’ strike-out application would itself be struck out if they failed to comply with the Court’s directions. They did fail to comply, but their strike-out application nevertheless proceeded.
The latter of those two points has no relevance to the present applications.
The first point simply reiterates a factual allegation made by Mr and Mrs Burchell in their amended statement of claim. Wylie J explained the background to the 9 February 2014 incident.[13] The police officers had gone to the Burchells’ home to serve a trespass notice, at the request of Dependable Property Management Ltd, the company managing the property for the lessor. Wylie J then outlined the sequel to the incident:
[12] The Burchells went to the Tenancy Tribunal, and on 3 March 2014 it released a decision. It recognised that the tenancy had ended on 8 February 2014, but considered that Mr Nordstrand had nevertheless indicated to the Burchells that they could remain in possession until 16 March 2014. It made an order terminating the tenancy as at midnight on that date. In relation to the events that took place on 9 February 2014, the Tribunal recorded that Mr Nordstrand was an experienced property manager, who knew full well that if he wished to evict a tenant from one of his properties, that the proper course was to apply to the Tribunal for the termination. It observed that in its view, the serving of the notice by the Police, on the instructions of Dependable [Property Management Ltd], was “unduly provocative and a serious breach of Mr and Mrs Burchell’s quiet enjoyment”. It considered that as a consequence, Mr and Mrs Burchell were entitled to an award of compensation.
[13]20 April decision, above n 1, at [11].
In short, the ill-advised action of the lessor’s property manager in requesting the police to serve the trespass notice was criticised by the Tenancy Tribunal, and resulted in it awarding compensation to Mr and Mrs Burchell against the lessor or its agent. That was the appropriate remedy for the actions of the lessor’s property manager, which did not give rise to any further right of action by Mr and Mrs Burchell.
Having considered the two judgments sought to be appealed and Mr and Mrs Burchells’ amended statement of claim, we consider neither appeal has any prospect of success. The proceeding was rightly struck out, for all the reasons the Judge gave. A stay of that judgment was rightly refused, again for the reasons the Judge gave.
Accordingly, the two applications for extensions of time to appeal are dismissed.
For the reasons mentioned in [7] above, we direct the Registrar to forward a copy of this judgment to the Attorney-General.
Solicitors:
Crown Law Office, Wellington for First Respondent
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