Burchell v Police - [2015] NZCA 581

IN THE COURT OF APPEAL OF NEW ZEALAND

CA496/2015
CA497/2015
[2015] NZCA 581

BETWEEN

LLEWELLYN WILLIAM BURCHELL AND JOAN BURCHELL
Applicants

AND

NEW ZEALAND POLICE
First Respondent

DEPENDABLE PROPERTY MANAGEMENT LIMITED
Second Respondent

RUSSELL PETER NORDSTRAND
Third Respondent

SUKHMINDER SINGH
Fourth Respondent

ALEX LI
Fifth Respondent

Hearing:	23 November 2015
Court:	Harrison, Stevens and Wild JJ
Counsel:	Applicants in Person No appearance for Respondents
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burchell v Police

Details

AGLC: Burchell v Police [2015] NZCA 581
Case: [2015] NZCA 581
Decision Date: 30 November 2015 at 2.30 pm

CaseChat Overview and Summary

The applicants, Llewellyn William Burchell and Joan Burchell, sought an extension of time to appeal against two judgments given by Wylie J in the High Court at Auckland. The first judgment, delivered on 20 April 2015, struck out a proceeding brought by the applicants against the New Zealand Police and four other defendants. The applicants' amended statement of claim contained two causes of action: an allegation of misfeasance in public office against the New Zealand Police and a conspiracy to injure against all defendants. The second judgment, delivered on 19 May, refused the applicants' application to stay the strike-out judgment. The applicants required extensions of time because they did not serve their two notices of appeal within the required timeframe.

The legal issues the Court was required to decide were whether the applicants' appeals had any realistic prospect of success and whether the applicants' submissions adequately addressed the prospective merits of the appeals. The Court considered the well-established considerations relevant on an application under r 29A of the Court of Appeal (Civil) Rules, including the length of the delay, the parties' conduct, the extent of prejudice caused by the delay, the prospective merits of the appeal, and whether the appeal raised any issue of public importance.

The Court found that neither appeal had any prospect of success. The proceeding was rightly struck out for the reasons given by the Judge, and a stay of that judgment was rightly refused for the reasons given by the Judge. The applicants' submissions did not adequately address the prospective merits of the appeals, and their submissions ranged widely over almost everything but the merits. The applicants' 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, was a factual allegation made by the applicants in their amended statement of claim. The Court found that 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 the applicants 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 the applicants.

The Court dismissed the two applications for extensions of time to appeal. The Court also directed the Registrar to forward a copy of this judgment to the Attorney-General, so that he could consider applying under s 88B of the Judicature Act 1908 for an order restricting the applicants' ability to institute proceedings.

Orders