Burrows v Ministry of Justice

[2017] NZHC 2679

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIŌEA ROHE

CIV 2017-454-56 [2017] NZHC 2679

BETWEEN

WAYNE JOHN BURROWS

Applicant

AND

MINISTRY OF JUSTICE First Respondent

AND

NEW ZEALAND POLICE Second Respondent

AND

DISTRICT COURT Third Respondent

Hearing:	26 October 2017
Counsel:	Plaintiff in Person D Perkins and A Dixon-Blake for First and Second Respondents Third Respondent abides
Judgment:	1 November 2017

JUDGMENT OF SIMON FRANCE J

[1]      Mr Burrows sought to file proceedings under the Harassment Act 1997.  The named defendants were the New Zealand Police and the Ministry of Justice.  I have not seen the proceedings but am advised the Police are named as regards various actions taken against Mr Burrows, and the Ministry is named as regards actions by

court security officers on occasions when Mr Burrows has been in Court.

BURROWS v MINISTRY OF JUSTICE [2017] NZHC 2679 [1 November 2017]

[2]      The proceedings were rejected for filing by the Registrar on the basis that the named defendants could not be the subject of restraining orders issued under the Harassment Act.  Mr Burrows filed an application for review of that decision, with brief submissions in support.   It was placed before a District Court Judge who confirmed the decision in these terms:

Interlocutory Application Dismissed

Registrar’s decision is correct.

The Harassment Act does not allow an order to issue against a Government

Department –

1.   Respondents  are  referred  to  in  the  Act  by  specific

gender “he or she”.

2. Section 29 Interpretation Act does not extend the definition of person to Government Departments – see DSW v Allan (1993) 10 CRNZ 307 at p 311.  Approved in Lyttle v DSW HC Hamilton AP 132/93, 15/12/93 at pp 14–15.

[3]      The authorities cited must have been the product of the Court’s research in

that they were not referred to by Mr Burrows.

[4]      Mr Burrows  filed  an  appeal  to  this  Court.   The  respondents  queried  the jurisdiction to appeal, there being no substantive proceeding (because it had not been accepted for filing).   However, it was common ground that judicial review proceedings could be brought.  Accordingly, Ellis J ruled the proceedings were to be classed as judicial review proceedings from that point, the Notice of Appeal could stand as the statement of claim without repleading needed, and the respondents were

to file a statement of defence.1

[5]      At the hearing argument was presented on the issue of whether the District Court Judge was correct to hold the named defendants could not be the subject of retraining orders.  The argument turns on the meaning to be given to the statutory term “person”.  In the course of argument Mr Burrows maintained his complaint that

the Registrar had exceeded her powers in rejecting the document for filing.

1      Burrows v Ministry of Justice HC Palmerston North CIV 2017-454-56, 11 September 2017.

[6]      I  have  come  to  the  view  that  the  process  has  miscarried.    Mr Burrows’ document should have been accepted for filing,2 and that the Judge erred in dealing with the matter as he did.   The correct course was to direct the proceeding be accepted, and then the proceeding could progress in the normal way.  No doubt that progression will involve a repeated presentation of the arguments presented to me but it is important that it be done in the correct way.  I am concerned that neither the

District Court, nor this Court, have a copy of the rejected filing.   The argument should not be held in a vacuum.  Further, the proper process is that if the respondents wish to challenge the proceeding for the reasons accepted by the Registrar and the Judge, they should have to do so by proper application with  the relevant rules applying to that application, including the assumption that the pleaded facts are correct.

[7]      The starting point is that the ground relied on by the Registrar is not settled law.  Indeed, the only authority on the Harassment Act that was referred to me was a District Court decision which expressly says orders can be made against the Commissioner of Police.   There the Commissioner was the named defendant in relation to actions taken not by him but by his officers.   Whilst here the named defendant is the New Zealand Police, if that were the only objection, an amendment

of the pleadings to name the Commissioner would not be difficult.3

[8]      The submissions I heard further made clear that there is more complexity to the issue than might first appear, especially once one moves beyond the fact that the entities are the named defendants rather than a person – eg the Commissioner and the Secretary for Justice.  In Mr Burrows favour, without again commenting on the correctness or ultimate outcome, one can refer to the fact that the Act binds the Crown and restraining orders are the primary enforcement mechanism in the Act, and to a decision of Cooke J where his Honour held Government Departments were

persons within the meaning of s 4 of the Acts Interpretation Act 1924.4    That same

definition is the only one applicable to the present use of “person” in the Harassment

2      Assuming there to be no other issues with the format other than the identity of the named defendants.

3      Espinoza v Commissioner of Police [1999] DCR 686.   I am not to be taken as agreeing or otherwise with the decision.

4      Southland Acclimatisation Society v Anderson [1978] 1 NZLR 838 (SC).

Act.  Further, there are other examples of a government department being treated as a person such as when obtaining reparation orders where the statute requires the loss to  be suffered  by a person.   There is  also  significant  overseas  authority that  a harassment order may be made against a company, and scope for drawing analogies from that to a body such as a government department.

[9]      There are powerful contrary arguments.   I highlight the points that can be made in favour of Mr Burrows’ position in order to illustrate that in my view the Registrar clearly erred when rejecting the document for filing.  It is a question of law that has not been determined and which affords no basis on which to reject a filing.  I equally consider the District Court erred in determining the matter without argument in the manner that was done.  The proper approach was to direct the proceedings be accepted for filing.

Conclusion

[10]     The decision of the District Court is quashed. The Registrar erred in rejecting the document for filing, and the Court erred in not correcting that error.

[11]     Having had the benefit of argument, and without intending any disrespect to Mr Burrows who is clearly capable of presenting his case, I suggest the District Court give consideration to the appointment of an amicus.  If that were done it would not prevent Mr Burrows presenting his own argument as he wished.

[12]     I also note that the arguments before me gave no consideration to the capacity to  restrain  the Police  from  future conduct  or  contact  with  a person  given  their enforcement duties.  This is a narrower point than the ability generally to restrain a government department.   Likewise, to the extent Mr Burrows’ claim against the Ministry relates to court security officers, consideration needs to be given to whether they can be restrained in terms of future conduct given their responsibilities to the Court. Again, this is a narrower focus than the wider government department point.

[13]     As a lay litigant Mr Burrows is not entitled to costs.  This was, however, a Palmerston North matter heard in Wellington and there will have been travel costs. Mr Burrows is entitled to reasonable disbursements to be fixed by the Registrar if

agreement cannot be reached.

Simon France J