Burchell v Police
[2015] NZHC 769
•20 April 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-266 [2015] NZHC 769
BETWEEN LLEWELLYN BURCHELL AND JOAN
BURCHELL Plaintiffs
AND
NEW ZEALAND POLICE First Defendant
DEPENDABLE PROPERTY MANAGEMENT LIMITED Second Defendant
RUSSELL PETER NORDSTRAND Third Defendant
SUKHMINDER SINGH Fourth Defendant
ALEX LI
Fifth Defendant
Hearing: 1 April 2015 Appearances:
LW and JR Burchell in person
J McBride for the Second, Third, Fourth and Fifth Defendants
Appearance for First Defendant excusedJudgment:
20 April 2015
RESERVED JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie
On 20 April 2015 at 4.00pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Counsel: J McBride, Auckland
Date
BURCHELL v NZ POLICE & ORS [2015] NZHC 769 [20 April 2015]
Introduction
[1] The second, third, fourth and fifth defendants seek to strike out the amended statement of claim filed by the plaintiffs – Mr and Mrs Burchell - in these proceedings.
[2] This application is opposed by the Burchells.
[3] Notwithstanding the fact that the hearing on this application was concluded on 1 April 2015, Mr and Mrs Burchell have persisted in deluging the Court with documents. I have ignored those documents. With one exception, none of them are relevant to the issue in dispute. The only exception is a memorandum Mr Burchell has filed endeavouring to dispute assertions made on behalf of the defendants at the hearing. After Mr McBride for the defendants had addressed me in reply, Mr Burchell attempted to make further submissions. I refused to allow him to do so. He had his opportunity to be heard. His filing of the memorandum is an attempt to circumvent that ruling. This judgment is confined to the materials which were presented at the hearing.
Background
[4] These proceedings were commenced as long ago as February 2014. Initially the only defendants were the New Zealand Police and the second defendant, Dependable Property Management Limited (“Dependable”).
[5] The proceedings concern events relating to Mr and Mrs Burchell’s tenancy of a house in Weldene Avenue, Glenfield. The house belonged to a Mr Singh and the tenancy was managed by Dependable. The house in Weldene Avenue was rented to the Burchells pursuant to a fixed term tenancy. It began on 9 August 2012 and it was to end on 16 March 2014.
[6] On 18 February 2013, Mr Nordstrand, the sole director of Dependable, went to the property and served on Mr Burchell a 14 day notice to remedy various alleged bond arrears.
[7] Mr Nordstrand considered that something of an altercation took place, and on
26 April 2013 he spoke to the Police in this regard. He said in a Police witness statement that Mr Burchell answered the door and threatened to do harm to him personally, to his family and to his property.
[8] On 20 November 2013 Mr Nordstrand served a 90 day notice on Mr Burchell purporting to terminate the fixed term tenancy. Under the notice, Mr and Mrs Burchell were obliged to vacate the property by 9 February 2014, and to allow Mr Singh possession.
[9] The Burchells did not vacate the property.
[10] On 9 February 2014 a Mr Li, who was the general manager of Dependable, met with a Sergeant Franklin, who was a Police officer based at the North Shore Police centre. It seems that Mr Li told Sergeant Franklin that Dependable was having issues with the Burchells, that they were required to vacate the property, but that they were refusing to do so. Mr Li produced a trespass notice, and told Sergeant Franklin that he wanted the notice to be served by the Police, because he was fearful to do it himself.
[11] Between 5.00 and 5.15pm on 9 February 2014 four Police officers visited Weldene Avenue, and served the trespass notice on the Burchells on behalf of Dependable. The trespass notice was signed by Mr Nordstrand. Sergeant Franklin explained to Mr Burchell that the trespass notice would be effective as from 16
February 2014, and that as a consequence, Mr Burchell would not be able to enter the property for a period of some two years thereafter. Mr Burchell was also told that the penalty for breach was a fine of up to $1,000, or three months’ imprisonment.
[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, 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] Arising out of these background facts, in the initial statement of claim, Mr and Mrs Burchell alleged:
(a) That the Police acted with “malfeasance”. They asserted that the Police “were exercising targeted malice”, and that they threatened them. They alleged that the Police exceeded their powers, that they lied and that they did not state the authority under which they were purporting to act. Mr and Mrs Burchell sought orders that the Police should pay each of them $20,000.
(b)That the tort of conspiracy had occurred. They alleged that Dependable conspired to harm them. This began, they alleged, when Mr Nordstrand “started his frivolous and vexatious claims against [them] in January 2013”. They outlined the history of events as they see them, and asserted that the elements of the tort of conspiracy had been proved. Relevantly, they alleged that there was an agreement between the Police and Dependable to evict them from the house without legal authority, and that the Police and Dependable deliberately, with intention to injure them, physically, emotionally and financially, caused harm to them.
[14] Relief sought included the payment of $800,000 so they could buy a property, and no longer have Police interfering with their tenancy agreements.
[15] There were initial difficulties with service. On 26 March 2014 Associate
Judge Doogue gave directions in this regard. He observed in the course of his
minute that there were a number of problems with the way in which the claim had been pleaded.
[16] The Police nevertheless filed a statement of defence. They also applied for security for costs. Mr Burchell is an undischarged bankrupt.
[17] The application for security for costs proceeded to hearing before Courtney J on 5 August 2014. She granted the application, and made an order requiring that Mr Burchell pay the sum of $10,000 by way of security within 21 days, failing which his claim was to be stayed. There was no evidence regarding Mrs Burchell’s ability to meet an award of costs, and the Judge did not make an order as against Mrs Burchell. Mr Burchell has appealed Courtney J’s judgment.
[18] Mr and Mrs Burchell signalled that they wished to join Mr Singh to the proceedings. They then further signalled that they wished to join Mr Nordstrand and possibly other parties to the proceeding.
[19] On 28 August 2014 Asher J issued a minute adjourning the matter until 25
September 2014, to give Mr Burchell the opportunity to file an application to add the proposed additional defendants.
[20] On 24 September 2014 the Burchells filed an interlocutory application seeking to add the additional parties. On 25 September 2014 Peters J granted a request by Mr Burchell to adjourn that application to enable him to serve it on the proposed defendants.
[21] Insofar as I can see, this application to add the proposed additional defendants was never dealt with by a judge. Nor does there seem to be an affidavit of service on the proposed defendants on the Court file. Rather on 20 October 2014, Mr and Mrs Burchell filed an amended statement of claim naming the Police, Dependable, Mr Nordstrand, Mr Singh and Mr Li and a company called Pinnacle Property Management Limited, to the proceedings.
[22] The amended statement of claim is a very much fuller document than the initial statement of claim. It runs to 31 pages, and contains 163 paragraphs.
[23] Reasons were given for adding the additional defendants. It is stated as follows:
(a) Mr Nordstrand was added, because he “could have” personally conspired with the New Zealand Police who it is alleged committed malfeasance, in order to assault, harm and remove the Burchells from the house. It is also asserted that Mr Nordstrand personally threatened the Burchells.
(b)Mr Singh was added, because he conspired with the Police by making a false statement, and that he gave Mr Nordstrand instructions to evict the Burchells from his house.
(c) Mr Li was added, because he gave information to the Police.
(d)Pinnacle Property Management Limited was added, because its name was mentioned in a statement prepared by Sergeant Franklin.
[24] The causes of action remain the same – namely malfeasance or unlawful conduct in public office by the Police and conspiracy by all defendants. A host of complaints the Burchells have had with the Police are raised. Most of them have nothing to do with the service of the trespass notice. Various assertions of law are made. There are allegations that Police officers have lied. There are assertions that the Police have acted illegally. There are additions over and above the initial pleadings. It is now said that the Police arrived at the house with automatic weapons, and with the intention to injure/kill Mr Burchell. There is a separate allegation that in May 2013 three Police officers assaulted Mr Burchell. General damages of $100,000 are sought by both Mr and Mrs Burchell for emotional stress and anxiety. In addition non-pecuniary orders are sought. An order is sought that a named Police officer should be charged and tried, that the Police officers involved
should be investigated, and that a number of additional senior Police officers should be investigated for the instructions it is said they gave to those under their command.
[25] None of the allegations of malfeasance, or unlawful conduct in a public office, concern Dependable, Mr Nordstrand, Mr Singh or Mr Li.
[26] In regard to the alleged conspiracy, there are assertions regarding a man referred to as a Mr Bruce Urlich. There is an assertion that Mr Nordstrand has often had tenants removed from properties, and that he has used the North Shore Police to serve trespass notices on tenants. There is an assertion that the Burchells have had to deal with physical and emotional assaults by the Police, and that the assaults were organised by Mr Singh, Mr Nordstrand and Mr Li. There is a reference to various proceedings before the Tenancy Tribunal brought by Dependable against the Burchells. There are allegations against Nr Nordstrand, relating not to service of the trespass notice, but to other alleged conduct. Similarly there are allegations against Mr Singh which have nothing to do with the service of the trespass notice. It is asserted that various additional notices were given to the Burchells under Dependable’s name. There is an allegation that statements made by Mr Singh were defamatory and a bald assertion that Mr Li’s participation in the conspiracy between the Police and Mr Nordstrand is obvious. It is again alleged that the Police’s intention was to injure and murder the Burchells. There are allegations going back as early as May 2006, when it is alleged the Police violently attacked the Burchells. It is asserted that in February 2014, the Police used “the untruthful and deceptive trespass notice as an opportunity to go to the Burchells’ home to kill Mr Burchell, and possibly Mrs Burchell”. Damages of $100,000 are sought from Mr Singh;
$50,000 is sought from Mr Li, and general damages are sought from Mr Nordstrand, Mr Li and Mr Singh. They are also sought from Dependable.
[27] It is a matter of concern that the document also asserts that orders made in the course of the proceedings by Associate Judge Christiansen were wrong and illegal, and that the Associate Judge “wilfully and illegally protected Dependable”. There is an assertion that the Associate Judge practiced “corruption”. There was also an assertion that Courtney J is guilty of conspiracy. It is alleged that she has prevented the case against the Police from going ahead, and that she is involved in a conspiracy
to protect the Police. It is also alleged that she allowed a Policeman to assault Mr
Burchell during the hearing before her.
[28] Subsequently, and by consent, Pinnacle Property Management Limited has been removed from these proceedings.
Relevant law
[29] Rule 15.1(1) of the High Court Rules provides as follows:
15.1 Dismissing or staying all or part of proceeding
(1) The court may strike out all or part of a pleading if it—
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
[30] The principles relevant to the exercise of the power to strike out are well settled. Pleaded facts, whether or not admitted, are assumed to be true, although this does not extend to pleaded allegations which are entirely speculative and without foundation. If it is to be struck out, a cause of action must be clearly untenable. The court must be certain it cannot succeed. The threshold to strike out proceedings is deliberately set high, and the jurisdiction is to be exercised sparingly and only in
clear cases.1
[31] If a proceeding is to be struck out because it is likely to cause prejudice or delay, there must be an element of impropriety and abuse of the court’s processes.2
[32] An unnecessarily prolix proceeding can be struck out.3 So also can a scandalous and irrelevant proceeding.4
1 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33]; Attorney-General v
Prince [1998] 1 NZLR 262 (CA) at 267.
2 Commissioner of Inland Revenue v Chesterfields Preschool Ltd [2013] NZCA 53, [2013] 2
NZLR 679 at [89].
3 At [89].
4 Van der Kaap v Attorney-General [1996] 10 PRNZ 162 (HC).
[33] The authorities also make it clear that a pleading of purely evidential material, particularly where it is excessively detailed, can qualify for striking out. So can unintelligible pleadings, and the pleading of irrelevant material.
[34] A frivolous proceeding is one which trifles with the court’s processes. A
vexatious proceeding is one which involves an element of impropriety.5
Analysis
[35] Having read the statement of claim, I am satisfied that it qualifies for striking out under r 15.1(1)(a), (b), (c) and (d).
[36] In my judgment, the amended statement of claim is little more than a “stream of consciousness”. It is a rambling series of suspicions, assertions, invective and emotion. It is neither coherent, nor logical. It makes allegations which are entirely speculative and intrinsically unlikely, in some cases against persons who are not parties to the proceeding. It makes quite scandalous allegations against judicial officers.
[37] It is difficult to make sense of the one cause of action, conspiracy, raised against the second, third, fourth and fifth defendants. The allegations against them are a jumbled series of assertions drawn either from nothing or from the most tenuous material. The allegations cover a broad timeframe. Many of them appear to be irrelevant to the key issue concerning the service of the trespass notice. Others are unintelligible, or unnecessarily prolix. The amended statement of claim comprises largely of evidential material said to be relevant but not in fact so.
[38] The pleading is the antithesis of what is required in a statement of claim.6 It does not state precisely the case of facts on which Mr and Mrs Burchell rely. It does not clearly define the issues which the defendants have to meet. As the pleading stands, it would be impossible for the defendants to prepare for trial. Much time
would be wasted, and the court would be faced with an enormous number of
5 Commissioner of Inland Revenue v Chesterfields Preschool Ltd, above n 2, at [89].
6 Hopper Group Ltd v Parker (1987) 1 PRNZ 363 (CA) at 366, affirmed in Commissioner of
Inland Revenue v Chesterfields Preschool Ltd, above n 2, at [85].
irrelevancies. Prejudice would be caused to the defendants and it is likely that there would be inordinate delay as attempts are made to clarify issues. The defendants should not be expected to put up with this.
[39] The pleading purports to set out the elements of the tort of conspiracy. It is however not clear whether what is asserted is an unlawful means conspiracy, or an unlawful purpose conspiracy. A conspiracy is an agreement between two or more people to do an unlawful act, or to do a lawful act by unlawful means. A plaintiff must prove damage for a conspiracy to be actionable in tort.7
[40] Here, the Burchells are alleging that the defendants were involved in a conspiracy to injure them. In order to succeed, the Burchells would have to prove that each of the defendants had the requisite intention to injure or harm them. The court would have to be satisfied that that was the real reason that the defendants combined in the alleged conspiracy.
[41] For all the bluster and hyperbole contained in the amended statement of claim, there is nothing in the document to suggest that there was any such intention. The allegations contained in the amended statement of claim are simply insufficient to establish the tort of conspiracy. The pleading of conspiracy is frivolous and vexatious.
[42] In addition, the amended statement of claim is an abuse of the process of the court.
[43] This is particularly the case insofar as Mr Singh is concerned. In earlier proceedings CIV-2013-404-004550, the Burchells sued Mr Singh for defamation, and for committing the tort of conspiracy against them, together with Mr Nordstrand. The property concerned in these earlier proceedings was the same as that in issue with the present proceedings. The allegations made against Mr Singh in the earlier proceedings were in a large part the same as those made in these later proceedings. Duffy J struck out the earlier proceedings, for much the same reasons as I have
adopted in dealing with the present application.8 It appears that in large part, the Burchells are simply seeking to re-run the allegations which were struck out as against Mr Singh. There has been little or no improvement in the amended statement of claim filed in these proceedings and in my view it is an abuse of the process of court for the Burchells essentially to re-run the same assertions, in the same terms, against Mr Singh.
[44] The allegations made against Associate Judge Christiansen and Courtney J
are scandalous. They clearly abuse the Court’s processes.
[45] Accordingly, I strike out the Burchells’ amended statement of claim.
Costs
[46] The defendants are entitled to their reasonable costs and disbursements. They were all represented by Mr McBride. They are jointly entitled to costs on a category
2B basis together with their reasonable disbursements and I so order. In the event there is any dispute about disbursements, the dispute is to be referred to the Registrar.
Further direction
[47] I am aware that Mr Burchell is a prolific litigator both in this Court and in the District Court. I understand that approximately 40 proceedings have been commenced by Mr Burchell either in this Court or the District Court, and that some
27 appeals have been filed by him against decisions which he considers are adverse to his interests. I direct that a copy of this judgment be sent to the Attorney-General, so that he can give consideration to making an application under s 88B of Judicature
Act 1908.
Wylie J