Burrows v Police
[2018] NZHC 2088
•15 August 2018
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2018-454-000027
[2018] NZHC 2088
BETWEEN WAYNE JOHN BURROWS
Appellant
AND
NEW ZEALAND POLICE
First Respondent
MINISTRY OF JUSTICE
Second Respondent
Hearing: 1 August 2018 Counsel:
Appellant in person
B D Vanderkolk for First and Second Respondents
Judgment:
15 August 2018
JUDGMENT OF COLLINS J
[Appeal against refusal to grant a restraining order against the Ministry of Justice and the New Zealand Police]
PART I INTRODUCTION
The issues
[1] The issues raised by this appeal from a decision of Judge D G Smith1 may be distilled to the following question:
1 Burrows v New Zealand Police [2018] NZDC 2951.
BURROWS v NEW ZEALAND POLICE [2018] NZHC 2088 [15 August 2018]
Did the Judge err when he ruled that there was no jurisdiction under the Harassment Act 1997 (the Act) to issue restraining orders against the Ministry of Justice (the Ministry) and the New Zealand Police (the Police)?
[2]The answer to that question requires consideration of two sub-questions:
(1)Does the term “person” in the Act mean that restraining orders can only be obtained against natural persons? If not;
(2)Does the term “person” in the Act encompass the Ministry and/or the Police?
[3] The term “person” is not defined in the Act. The issues raised by this appeal therefore engage the generic definition of “person” in s 30 of the Interpretation Act 1999. The relevant part of that section states that in any enactment passed or made before the commencement of the Interpretation Act, “person includes a corporation sole, and also a body of persons, whether corporate or unincorporate”.
[4] I have concluded that the jurisdiction to issue restraining orders under the Act is not confined to issuing such orders against natural persons. Thus, for example, it may be possible to issue a restraining order against a company. I have also concluded, however, that restraining orders cannot be issued against the Crown or entities that are part of the Crown, such as the Ministry and the Police. The answer to the question posed at [1] is, therefore, that Judge Smith was correct.
[5] To assist in understanding this judgment, I shall briefly explain the background. I shall then set out the relevant provisions of the Act and the Interpretation Act. I shall then examine the legal status of the Ministry and the Police before explaining the key features of the Crown Proceedings Act 1950. In the final part of this judgment I shall analyse the issues before summarising my conclusion.
Background
[6] Mr Burrows’ proceeding stems from his concerns that he has been systematically threatened, assaulted and intimidated by employees of the Ministry in
the District Court at Wellington and Palmerston North and by police officers. These concerns arise in the context of Mr Burrows having become embroiled in a series of disputes, initially with a Ms Thomson who obtained restraining orders against Mr Burrows under the Act,2 and then with court officials and police officers.
[7] It is not necessary to traverse other proceedings that involve Mr Burrows. Suffice to note that contemporaneously with this judgment, I am releasing four other decisions concerning Mr Burrows.
[8] On 18 July 2017, Mr Burrows went to the District Court at Palmerston North to make applications under the Act for the issuance of restraining orders against the Ministry and the Police. Although he knew the names of a number of the court staff and police who he says had harassed him, Mr Burrows’ applications did not seek restraining orders against any natural persons. This was because, as I explain at [19], the definition of “harassment” in the Act requires evidence of a “pattern of behaviour” that in turn involves the commission of a “specified act” on at least two separate occasions within a period of 12 months.3 I explain the meaning of “specified acts” at [20]. Mr Burrows’ case is that court security officers and constables engaged in a series of “one off” specified acts and because the conduct he complains of did not involve one individual committing two or more specified acts he lodged his application against the Ministry and the Police.
[9] Mr Burrows’ applications were supported by an affidavit in which he explained a series of incidents where he alleges he was assaulted and intimidated by police officers and court security officers. It is not necessary to set out all of Mr Burrows’ allegations. The following brief summary will suffice.
[10] Mr Burrows says that on 12 February 2016, two police officers, whom he names, assaulted him and fabricated evidence against him. Mr Burrows complained to the Independent Police Conduct Authority, who upheld his complaints about the actions of the police officers in question. Mr Burrows states that on 11 December 2016, another constable, whom he names, kicked the door of his home open and
2 Thomson v Burrows [2017] NZDC 5681.
3 Harassment Act 1997, s 3.
intimidated him. On 18 July 2017, Mr Burrows went to the District Court at Palmerston North to lodge his applications for restraining orders. He says he was assaulted and bullied by court security officers and a police constable. On 11 October 2017, Mr Burrows went to the Palmerston North Police Station to seek some information. He alleges he was again bullied and intimidated and called an “idiot” by a police sergeant and assaulted by a constable.
[11] Mr Burrows explains in his affidavit the patterns of behaviour and the “specified acts”, which formed the evidential foundations for his applications as well as the effects of the alleged harassment upon his health and general wellbeing. Mr Burrows explains that he has suffered severe sleep deprivation and that he lives in “constant fear” of what police officers may do to him. He says he has found it necessary to suspend the pursuit of his PhD in pure mathematics while addressing the imbroglio into which he has sunk. On a more positive note, however, Mr Burrows says he has, in recent months, started to make progress towards normalising his relationship with some police and court security officers in Palmerston North.
[12] The Registrar of the District Court at Palmerston North refused to accept for filing Mr Burrows’ application for restraining orders against the Ministry and the Police on the grounds that they were not persons under the Act against whom restraining orders could be issued. Mr Burrows judicially reviewed the decision of the Registrar not to accept his applications for filing. Simon France J granted Mr Burrows’ application on the grounds that the correct procedure was for the applications for restraining orders to be accepted by the Registry and for the Ministry and/or the Police to then challenge the jurisdiction for the District Court to issue restraining orders against them.4
[13] That course of action was followed and led to Judge Smith conducting a hearing to determine if there was jurisdiction under the Act for restraining orders to be issued against the Ministry and/or the Police. As previously noted, he concluded the Act did not permit the issuing of restraining orders against those entities.
4 Burrows v Ministry of Justice [2017] NZHC 2679.
[14] Mr Burrows’ appeal from Judge Smith’s decision is brought pursuant to s 34 of the Act, which permits an appeal to the High Court against various decisions of the District Court, including decisions dismissing or otherwise finally determining proceedings under the Act. An appeal of this nature is conducted as a rehearing.5
PART II
THE HARASSMENT ACT 1997, THE INTERPRETATION ACT 1999, THE LEGAL STATUS OF THE MINISTRY AND THE POLICE AND THE CROWN PROCEEDINGS ACT 1950
Harassment Act 1997
[15] The common law does not provide adequate avenues to address harassment committed by individuals and legal entities such as companies. The torts of assault, trespass and nuisance may be engaged in some instances of harassment but generally, “the common law has had difficulty in dealing with the problem [of harassment], for the conduct concerned may not fit easily within the ambit of an existing tort”.6 Parliament therefore passed the Act to provide redress for harassment in circumstances where the common law failed to provide an adequate remedy.
[16] The Act aims to provide “adequate legal protection for all victims of harassment” by, amongst other measures, “empowering the [District Court] to make orders to protect victims of harassment who are not covered by domestic violence legislation”, and by making the “most serious types of harassment criminal offences”.7
[17] The noun “person” and the pronouns “him” and “her” are used throughout the Act when referring to applicants for a restraining order and to respondents against whom a restraining order may be made. I have emphasised at [18] to [25] the use of those terms in the relevant sections of the Act.
5 Harassment Act 1997, s 34(2); and High Court Rules 2016, r 20.18.
6 Stephen Todd (ed) The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) at [4.8].
7 Harassment Act 1997, s 6(1) and (2).
[18] Section 9 of the Act governs applications for restraining orders. Relevantly, s 9(1) provides:
9 Application for restraining order
(1) Subject to subsection (4), any person who is being or has been harassed by another person may apply to the court for a restraining order in respect of that other person.
…
[19]Section 3 of the Act defines harassment in the following terms:
3Meaning of “harassment”
(1)For the purposes of this Act, a person harasses another person if he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months.
…
[20]“Specified act” is defined in s 4 of the Act in the following way:
4Meaning of “specified act”
(1)For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:
(a)watching, loitering near, or preventing or hindering access to or from, that person’s place of residence, business, employment, or any other place that the person frequents for any purpose:
(b)following, stopping, or accosting that person:
(c)entering, or interfering with, property in that person’s
possession:
(d)making contact with that person (whether by telephone, correspondence, electronic communication, or in any other way):
(e)giving offensive material to that person, or leaving it where it will be found by, given to, or brought to the attention of, that person:
(ea)giving offensive material to a person by placing the material in any electronic media where it is likely that it will be seen by, or brought to the attention of, that person:
(f)acting in any other way—
(i)that causes that person (“person A”) to fear for his or
her safety; and
(ii)that would cause a reasonable person in person A’s
particular circumstances to fear for his or her safety.
…
[21]Section 16 sets out the power of the District Court to make a restraining order:
16 Power to make restraining order
(1)Subject to section 17, the court may make a restraining order if it is satisfied that—
(a)the respondent has harassed, or is harassing, the applicant; and
(b)the following requirements are met:
(i)the behaviour in respect of which the application is made causes the applicant distress, or threatens to cause the applicant distress; and
(ii)that behaviour would cause distress, or would threaten to cause distress, to a reasonable person in the applicant's particular circumstances; and
(iii)in all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order; and
(c)the making of an order is necessary to protect the applicant from further harassment.
…
[22] Section 16(2) of the Act provides that “a respondent who encourages another person to do a specified act to the applicant is regarded as having done that specified act personally”.
[23] Section 17 of the Act provides that acts done for a lawful purpose cannot amount to harassment.
[24] Section 19 provides for standard conditions that are attached to restraining orders. Those conditions include:
19 Standard conditions of restraining orders
(1)It is a condition of every restraining order that, except as permitted under any special condition of the restraining order, the respondent must not—
(a)do, or threaten to do, any specified act to the person for whose protection the order is made; or
(b)encourage any person to do any specified act to the person for whose protection the order is made, where the specified act, if done by the respondent, would be prohibited by the order.
…
[25] Section 25 of the Act governs the enforcement of restraining orders. That section provides:
25 Offence to contravene restraining order
(1)Every person commits an offence who, without reasonable excuse,—
(a)does any act in contravention of a restraining order; or
(b)fails to comply with any condition of a restraining order.
…
(3)Every person who commits an offence against subsection (1) is liable on conviction to imprisonment for a term not exceeding 2 years where—
(a)that person has previously been convicted on at least 2 different occasions of a qualifying offence; and
(b)at least 2 of those qualifying offences were committed not earlier than 3 years before the commission of the offence being dealt with by the court.
(4)For the purposes of subsection (3), a qualifying offence, in relation to the offence being dealt with by the court, is an offence against subsection (1), where the 2 offences are committed in respect of—
(a)the same restraining order; or
(b)restraining orders made for the benefit of the same person.
[26] As will become apparent, s 7 of the Act is also significant. That section states that the Act binds the Crown.
Interpretation Act 1999
[27] The definition of “person” in the Interpretation Act replicated the definition of “person” in the Acts Interpretation Act 1924. Section 4 of the Acts Interpretation Act stated that the terms defined in that section had the meaning prescribed in s 4 unless that meaning was “inconsistent with the context” in which the term was used in the statute in issue. A similar provision can now be found in s 4 of the Interpretation Act, which provides that the provisions of that Act apply to other enactments unless “the context of the enactment requires a different interpretation”.8
[28] Section 27 of the Interpretation Act provides that no enactment binds the Crown unless the statute in issue expressly provides that the Crown is bound by that enactment.
[29] For completeness, I record that s 5(1) of the Interpretation Act requires the meaning of an enactment to be “ascertained from its text and in the light of its purpose”.
Legal status of the Ministry and Police
[30] The Ministry is a department of the Public Service as defined in the State Sector Act 1988.9 Under the Public Finance Act 1989, the definition of “department” includes departments as defined in s 27A(1) of the State Sector Act, but excludes body corporates and other legal entities that have the power to contract.10 Caution should, however, be exercised before applying this definition beyond the scope of the Public Finance Act.
[31] The Police is an “instrument of the Crown”11 and is included in the definition of “department” in the Public Finance Act.12 The Police, through the Commissioner of Police, act independently of Ministers of the Crown in relation to, amongst other matters, the maintenance of order and the enforcement of the law in relation to any
8 Interpretation Act 1999, s 4(1)(b).
9 State Sector Act 1988, s 27A(1) and sch 1.
10 Public Finance Act 1989, s 2(1).
11 Policing Act 2008, s 7(1).
12 Public Finance Act 1989, s 2(1), definition of “department”, para (a)(iii).
individual or group of individuals and in relation to the investigation and prosecution of offences.13 The Commissioner of Police is, however, responsible to the Minister of Police in relation to a variety of administrative functions, including “the general conduct of the Police” and “the effective, efficient, and economic management of the Police …”14
[32] The Ministry and the Police form part of “the Crown”, but there is uncertainty about the exact legal nature of the concept of the Crown. For present purposes, it is sufficient to note that Professor Maitland described the Crown as a “complex and highly organised ‘corporation aggregate of many’”.15 This concept of the Crown was addressed by the House of Lords in Town Investments Ltd v Department of the Environment, in which Lord Diplock said that technically the Crown is a “corporation sole” but this was a form of legal fiction and that, in reality, the Crown is a term of art that stands for “the government”.16 Lord Simon, however, said “the Crown [is] a corporation aggregate headed by the Queen”; and that the “departments of state including the Ministers at their head … are then themselves members of the corporate aggregate of the Crown”.17
[33] In M v Home Office, Lord Woolf attempted to reconcile these two conceptions, by saying that the Crown “can be appropriately described as a corporation sole or a corporation aggregate”.18
[34] Sir William Wade explained that the precise conception of the Crown as a “corporation sole” has a long line of judicial authority beginning in 1861.19 However, he noted that the more general idea of the Crown as “a corporation composed of the king and all his subjects” was noted in argument as early as 1559.20 The idea of the
13 Policing Act 2008, s 16(2).
14 Section 16(1).
15 Frederic Maitland “The Crown as Corporation” (1901) 17 LQR 131 at 140.
16 Town Investments Ltd v Department of the Environment [1978] AC 359 (HL) at 384.
17 At 400.
18 M v Home Office [1994] 1 AC 377 (HL) at 424.
19 William Wade “The Crown, Ministers and Officials: Legal Status and Liability” in Maurice Sunkin and Sebastian Payne (ed) The Nature of the Crown: A Legal and Political Analysis (Oxford University Press, Oxford, 2003) at 24, referring to Attorney-General v Kohler (1861) 9 HL Cas 654, (1861) 11 ER 885 (HL) at 670; and Re Mason [1928] Ch 385 at 401.
20 William Wade “The Crown, Ministers and Officials”, above n 19, at 24, referring to Willion v Berkley (1559) 1 Plowd 223, (1561) 75 ER 339 at 234.
Crown as a ‘corporation sole’ arose from the “medieval conception of an all-powerful king who discharged the great functions of State personally, or through his inner- council of advisers.”21 It was adopted from 16th century ecclesiastical law in the 17th century, likely by Sir Edward Coke, to establish a permanent metaphysical entity that would provide for the succession of the King’s public estate, including the Crown jewels.22 Professor Loughlin explains that:23
… the identification of the Crown as a ‘corporation sole’ may indeed have been the result of a confusion in our understanding of canon law, but it was a deliberate confusion which was effected for the purpose of ensuring that, though they may be distinct entities, the ‘King’ could not be separated from his ‘Crown’.
[35] More recently, Dame Alison Quentin-Baxter and Professor Janet McLean have suggested that the Crown may be “considered to be a special kind of common law corporation”. They note, however, “the common law is not settled about the precise characteristics of this special corporation and the case law is sparse, confusing and mainly English in origin”.24
Crown Proceedings Act 1950
[36] What is clear, however, is that under the Crown Proceedings Act 1950, the Crown may be sued for a number of civil wrongs, including for torts committed by servants of the Crown.25 Thus, the Crown can be vicariously liable for the tortious actions of employees of the Ministry and the Police.26 In addition to being vicariously liable for the torts of its servants, the Crown may be sued under the Crown Proceedings Act for:27
(a) the breach of any contract or trust:
…
21 Philip Joseph (ed) Constitutional and Administrative Law in New Zealand (4th ed, Brookers, Wellington, 2014) at [17.3.3].
22 At [17.4.1].
23 Martin Loughlin “The State, the Crown and the Law” in Sunkin and Payne (ed) The Nature of the Crown, above n 19, at 33.
24 Alison Quentin-Baxter and Janet McLean This Realm of New Zealand – The Sovereign, The Governor-General, The Crown (Auckland University Press, Auckland, 2017) at 40.
25 Couch v Attorney-General (No 2) [2010] NZSC 27, [2010] 3 NZLR 149 at [172]–[177]; see also
Chagos Islanders v Attorney-General [2004] EWCA Civ 997.
26 Crown Proceedings Act 1950, s 6(1).
27 Section 3(2)(a), (c), (d) and (e).
(c)any cause of action, in respect of which a claim or demand may be made against the Crown under this Act or under any other Act which is binding on the Crown, and for which there is not another equally convenient or more convenient remedy against the Crown:
(d)any cause of action, which is independent of contract, trust, or tort, or any Act, for which an action for damages or to recover property of any kind would lie against the Crown if it were a private person of full age and capacity, and for which there is not another equally convenient or more convenient remedy against the Crown:
(e)any other cause of action in respect of which a petition of right would lie against the Crown at common law or in respect of which relief would be granted against the Crown in equity.
[37] That there are limits to the scope of the Crown’s civil liability is reinforced by s 5(1) of the Crown Proceedings Act, which provides:
5 Liability of the Crown under other Acts
(1)Except as expressly provided by this Act or any other Act, this Act shall not be construed so as to make any Act binding upon the Crown which would not otherwise be so binding, or so as to impose any liability on the Crown by virtue of any Act which is not binding on the Crown.
…
[38] The method of making the Crown a party to civil proceedings involves suing the appropriate Government department, officer of the Crown, or the Attorney-General if there is no appropriate department or officer.28
[39] The reasons why there are limits upon an individual’s ability to sue the Crown can be traced to two ancient constitutional principles, namely the “King can do no wrong”29 and cannot be sued in his own courts.30 These concepts did not prevent servants of the Crown being personally liable for torts committed in their official capacities. Crown servants could not, however, be sued in contract.31 The inequity of this state of affairs was ameliorated to some extent by the introduction of the Petition
28 Crown Proceedings Act 1950, s 14.
29 First articulated in 1483; see William Holdsworth A History of English Law (3rd ed, Methuen & Co Ltd, London, 1922-1938) vol 3 at 466.
30 At 465.
31 Macbeath v Haldimand (1786) 1 Term Rep 172, (1786) 99 ER 1036 (KB).
of Right procedure, which enabled the Attorney-General to authorise a proceeding against the Crown so that “right be done”.32 The relief available to a successful party under the Petition of Right procedure was in the form of a declaration as to his or her rights. In New Zealand, a series of statutes culminating in the Crown Suits Amendment Act 1910 expanded the ability of individuals to sue the Crown in this country’s courts.33 The New Zealand reforms were, however, somewhat diluted when the Crown Proceedings Act was passed. That Act was modelled almost entirely upon the Crown Proceedings Act 1947 (UK). While the Crown Proceedings Act simplified the means by which civil proceedings could be issued against the Crown, by abolishing the Petition of Right procedure, the Crown Proceedings Act reaffirmed the restrictions on civil proceedings against the Crown by confining such proceedings to those set out in s 3 of the Crown Proceedings Act, which I have set out at [36].
[40] Thus, civil proceedings against the Crown are limited to those that can be instigated:
(1)under the Crown Proceedings Act; or
(2)by way of judicial review; or
(3)pursuant to the New Zealand Bill of Rights Act 1990; or
(4)to seek a declaration under either the Declaratory Judgments Act 1908 or the common law; or
(5)under a statute that specifically authorises a proceeding against the Crown.
[41] There are also limits to the types of relief that can be obtained against the Crown in civil proceedings. Although the general effect of s 17(1) of the Crown Proceedings Act is that a Court can make the same orders against the Crown
32 Petitions of Right Act 1860 (UK); R v Inland Revenue Commissioners, re Nathan (1884) 12 QBD 461 (EWCA) at 479; and Crown Redress Act 1871.
33 Stuart Anderson “‘Grave injustice’, ‘despotic privilege’: the insecure foundations of crown liability for torts in New Zealand” (2009) 12 Otago L Rev 1 at 12.
as it can make in proceedings between other litigants, there are important exceptions to this general principle. First, under s 17(1)(a) of the Crown Proceedings Act, no injunction or order for specific performance can be obtained in proceedings against the Crown. Instead, a Court is limited to making an order declaring the rights of the parties. Second, under s 17(1)(b) of the Crown Proceedings Act, a Court cannot make orders against the Crown for the recovery of land or property. Again, a Court can issue a declaration in favour of a successful party in such proceedings. Third, under s 17(2), a Court may not issue an injunction or make an order against an officer of the Crown if the effect of that injunction or order would be to give relief against the Crown that could not have been obtained in proceedings directly against the Crown.
[42] The prohibition upon issuing injunctions against the Crown is also reflected in the relief available for judicial review.34
[43] The inability of courts to issue injunctions against the Crown is particularly relevant to this case as the standard conditions of a restraining order under s 19 of the Act are a form of injunction. This is because a restraining order requires a respondent to not threaten or commit a specified act against the applicant or encourage another person to commit a specified act against the applicant.
[44] Historically, the rationale for not being able to obtain an injunction or specific performance against the Crown can be reduced to four factors. First, it was thought to be constitutionally improper for the Sovereign’s courts to be issuing orders against the Sovereign.35 Second, as the Crown could not be punished for contempt, it was thought there would be no utility in issuing against the Crown injunctions and orders for specific performance and orders for the recovery of land and property, as such orders could not be enforced.36 Third, as I have explained at [39], relief under the Petition of Right procedure was in the form of declaratory orders.37 Fourth, as the
34 Judicial Review Procedure Act 2016, s 6(2); and Law Commission of A New Crown Civil Procedure for New Zealand (NZLC IP35, 2014) at [5.1].
35 Ontario Law Reform Commission Report on the Liability of the Crown (Ontario Law Reform Commission, Toronto, 1989) at 51.
36 At 51.
37 Petitions of Right Act 1860 (UK), ss 9 and 10; and Crown Redress Act 1871, s 2.
Crown invariably complies with declaratory orders, there is no need to resort to injunctive relief or specific performance against the Crown.38
[45] In its report, The Crown in Court, the Law Commission has recommended abolishing the current prohibition against issuing injunctions against the Crown. In determining Mr Burrows’ appeal, however, I must apply the law as it currently is, and not proceed on the basis of what the law may become if Parliament accepts the Law Commission’s recommendations.
[46] The limits to civil proceedings and relief against the Crown are also reflected in the criminal law. The Crown Organisations (Criminal Liability) Act 2002 renders Crown organisations,39 such as the Ministry and the Police, liable to prosecution for offences under the Building Act 2004, the Health and Safety at Work Act 2015, the Resource Management Act 1991, the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 and Part 3 of the Vulnerable Children Act 2014.40 When Parliament passed the Crown Organisations (Criminal Liability) Act, it specifically limited the statutes under which the Crown, and the entities that comprise it, may be prosecuted.
PART III
ANALYSIS
Does the term “person” in the Act mean that restraining orders can only be issued against natural persons?
[47] The primary argument advanced on behalf of the Ministry and the Police was that an examination of the text and purpose of the Act leads to the conclusion that it addresses harassment that is inflicted only by a natural person against another natural person, and that it was therefore not possible for restraining orders to be issued against inanimate entities such as the Ministry and/or the Police.
38 Law Commission The Crown in Court (NZLC R135, 2015) at [3.104].
39 Crown Organisations (Criminal Liability) Act 2002, s 4; “Crown organisation” includes a “government department” and a “government-related organisation”.
40 Crown Organisations (Criminal Liability) Act 2002, s 6(1).
[48] It was submitted that support for this conclusion can be drawn from the language of ss 3, 4, 9, 17, 19 and 25 of the Act. As I have explained at [18] to [25], the Act refers to, amongst other matters, the type of conduct that constitutes harassment, who may seek a restraining order, and the types of conditions that may attach to a restraining order. It was submitted by Mr Vanderkolk, on behalf of the Ministry and the Police, that the references to a person as “he” or “she” in the definition of harassment, and the similar references in the definition of “specified act”,41 “strongly suggests that [the] subject of [a] restraining order is intended to be a natural person”.
[49] There are, however, references in s 16 to the Court’s power to issue a restraining order when a “respondent” has harassed an “applicant”. The same terminology can be found in s 19 of the Act, which concerns the standard conditions of a restraining order. There is potentially an argument that the use of the inanimate terms “applicant” and “respondent” indicate that Parliament was not confining itself to natural persons when it passed the Act. This is, however, not a particularly convincing argument as the terms “applicant” and “respondent” simply refer to those who may seek and be subject to a restraining order.
[50] It was also submitted by Mr Vanderkolk that neither the Ministry or the Police could be criminally prosecuted for breaching a civil restraining order and that therefore Parliament could not have intended that restraining orders be issued against the Ministry or the Police. This argument was based on the proposition that criminal prosecutions against the Crown, or entities that form part of the Crown, can only be commenced when legislation such as the Crown Organisations (Criminal Liability) Act clearly provides for that type of liability.
[51] I accept that there may be strong legal impediments to criminal prosecutions being commenced against the Ministry and/or the Police under the Act. That, however, does not necessarily mean that restraining orders can only be issued against natural persons. The Act aims to protect all victims of harassment through the issuing of restraining orders and reserves criminal prosecutions for the most serious forms of
41 Harassment Act 1997, ss 3 and 4(1)(f).
harassment.42 Parliament therefore drew a distinction between harassment that attracts a civil law remedy, and the more serious criminal form of harassment. It would therefore be an error to conflate the civil jurisdiction of the Court to issue a restraining order with potential prosecutions for breaches of a restraining order.
[52] Mr Vanderkolk also submitted that some of the conduct that constitutes specified acts defined in s 4 of the Act, can only be carried out by a natural person. He submitted that it was not possible for entities other than natural persons to watch or loiter near a place of residence, business or employment; follow, stop or accost a person or enter a property.
[53] While only natural persons can physically carry out most of the specified acts listed in s 4 of the Act, that does not necessarily mean that only natural persons can be the subject of a restraining order under the Act. The concept of vicarious liability may be able to be invoked where, for example, employees of a company carry out specified acts against an applicant. There may also be scope for a company being liable by way of direct attribution.
[54] The decision of the Court of Appeal of England and Wales in Ferguson v British Gas Trading Ltd helps explain why restraining orders under the Act are not necessarily confined to natural persons.43
[55] That case concerned an application brought by British Gas to strike out harassment proceedings commenced by Ms Ferguson under the Protection from Harassment Act 1997 (UK). At the time, the relevant provisions of that Act provided:44
1Prohibition of harassment.
(1)A person must not pursue a course of conduct—
(a)which amounts to harassment of another, and
(b)which he knows or ought to know amounts to harassment of the other.
42 Harassment Act 1997, s 6. See above at [16].
43 Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, [2009] 3 All ER 304.
44 Emphasis added.
(2)For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
…
2Offence of harassment.
(1)A person who pursues a course of conduct in breach of section 1 is guilty of an offence.
(2)A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.
3Civil remedy.
(1)An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2)On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.
…
7 Interpretation of this group of sections.
(1)This section applies for the interpretation of sections 1 to 5A.
(2)References to harassing a person included alarming the person or causing the person distress.
…
(5)References to a person, in the context of the harassment of the person, are references to a person who is an individual.
[56] Ms Ferguson used to be a customer of British Gas, but after terminating her contract she received multiple threats from the company, which were described in the following way by Jacob LJ:45
To summarise, starting on 21 August 2006 and continuing until at least late January the next year, British Gas sent Ms Ferguson bill after bill and threatening letter after threatening letter. Nothing she could do would stop it. The threats were threefold in nature: those to cut off her gas supply, to start legal proceedings and, a matter most important to her as a businesswoman, to report her to credit rating agencies. She wrote letter after letter pointing out that she had no account with British Gas, she made phone calls (with all the
45 Ferguson v British Gas Trading, above n 43, at [3].
difficulty of getting through), but to no avail. Mainly her letters received no response. Sometimes she received apologies and assurances that the matter would be dealt with. But then the bills and threats continued. She complained to Energy Watch.46 She wrote to the chairman of British Gas twice with no response. She says she wasted many hours, and, more importantly, was brought to a state of considerable anxiety, not knowing whether the gas man would come at any time to cut her off, whether she would have legal proceedings served upon her or whether she would be or had already been reported to a credit rating agency. Even when her solicitor wrote on her behalf about an unjustified bill of 18 January, no response was received.
[57] Although the Court of Appeal reached only a provisional view concerning the nature of corporate liability under the Protection from Harassment Act (UK), it explained that there was no reason why a large corporation, such as British Gas, should escape liability for conduct which, if carried out by an individual, would constitute harassment.47
[58] I accept there are differences between the Act and its United Kingdom counterpart. One difference is that the United Kingdom statute does not use the pronouns “he” or “she” found in ss 3 and 4 of the New Zealand statute. Another point of difference is that the UK statute specifically states that only a natural person can be the victim of harassment.
[59] The Court in Ferguson v British Gas Trading Ltd did not find it necessary to refer to the generic definition of “person” in the Interpretation Act 1978 (UK). Section 5 of that Act provides that “in any Act, unless the contrary intention appears, words and expressions listed in Schedule 1 to [that] Act are to be construed according to that Schedule”. The term “person” is defined in Schedule 1 as including “a body of persons corporate or unincorporated”. That generic definition supports the conclusion reached in Ferguson v British Gas Trading Ltd.
[60] Similarly, in New Zealand, the definition of “person” in the Interpretation Act suggests that a company may be a person against whom a restraining order may be issued under the Act. Although this definition will give way if “the enactment requires a different interpretation”,48 there is a legislative presumption that, in any enactment
46 An organisation that assists consumers to reduce energy consumption; see ukenergywatch.co.uk
47 Ferguson v British Gas Trading Ltd, above n 43, at [40].
48 Interpretation Act 1999, s 4(1)(b).
passed before the Interpretation Act “person” includes “a corporation sole, and also a body of persons, whether corporate or unincorporate”.49
[61] I am therefore satisfied from the text of the term “person” in the Act, as legislatively defined in the Interpretation Act, means that restraining orders can be obtained against natural persons as well as entities that may fall within the definition of “person” in the Interpretation Act. This conclusion is reinforced when regard is had to the purpose of the Act, which includes providing protection to “all victims of harassment”.50 There is no logical reason why Parliament would aim to protect “all victims of harassment” but choose to exclude harassment inflicted by a corporation. That could not have been Parliament’s intention.
[62] Thus, the jurisdiction to issue restraining orders under the Act is not restricted to issuing such orders against natural persons.51
Does the term “person” in the Act encompass the Ministry and/or the Police?
Is the Crown a “person”?
[63] Mr Burrows relied extensively upon the definition of “person” in s 30 of the Interpretation Act in support of his argument that the Ministry and/or the Police may be treated as persons for the purposes of the Act.
[64] Some support for Mr Burrows’ contention can be found in Water Resources Council v Southland Skindivers Club Inc, in which Cooke J (as he then was) said that the Ministry of Agriculture and Fisheries was a “body or person” which had status to appeal decisions of the Water Resources Council under the Water and Soil Conservation Act 1967.52 In addition to noting that the Ministry of Agriculture and
49 Interpretation Act 1999, s 30.
50 Harassment Act 1997, s 6(1)(b).
51 In Munro v Collection House (NZ) Ltd HC Auckland CIV-2010-404-8473, 10 June 2011 at [20], it is noted that the District Court was not prepared to strike out an application for a restraining order against a credit card company for reasons similar to those I have set out in this judgment. That aspect of the District Court judgment was not questioned by the High Court, which, nevertheless, struck out the application for a restraining order on the grounds that the events in question were carried out for a lawful purpose pursuant to s 17 of the Harassment Act 1997.
52 Water Resources Council v Southland Skindivers Club Inc [1976] 1 NZLR 1 (SC).
Fisheries was a “body” Cooke J said, “the ministry is also a ‘person’ within the definition in the Acts Interpretation Act 1924”.53
[65] The approach taken by Cooke J in Water Resources Council v Southland Skindivers Club Inc can, however, be contrasted with three other decisions.
[66] In Southland Acclimatisation Society v Anderson, Quilliam J held that the term “every person” in s 34 of the Water and Soil Conservation Act did not include the Crown.54 Quilliam J reached this conclusion in the context of deciding if the Mines Department could be prosecuted for failing to comply with a condition of a water right. The offence provisions of the Water and Soil Conservation Act referred to “every person” but made no reference to the Crown being potentially liable to criminal prosecution under that Act. Quilliam J referred to the definition of “person” in the Acts Interpretation Act and concluded that definition was not “apt to include the Crown” as a potential defendant to charges under the Water and Soil Conservation Act.
[67] In Department of Social Welfare v Allan, Fraser J held that the Department of Social Welfare and the Inland Revenue Department were not separate legal persons for the purposes of receiving reparations under the Criminal Justice Act 1985.55 That case concerned benefits fraudulently obtained from the Department of Social Welfare that had been recovered by the Department of Inland Revenue. Fraser J held that the Department of Social Welfare could not recover by way of reparation the benefits that had already been recovered by the Department of Inland Revenue. He said that while the two departments were part of the Crown, they were not legal persons that were distinct from the Crown and did not fall within the “extended definition in s 4 Acts Interpretation Act [of] a ‘corporation sole’ or a body of persons, whether corporate or unincorporate”.
[68] In Lyttle v Department of Social Welfare, Hammond J fully adopted the reasoning of Fraser J in Department of Social Welfare v Allan, when he also concluded
53 Water Resources Council v Southland Skindivers Club Inc, above n 52, at 12.
54 Southland Acclimatisation Society v Anderson [1978] 1 NZLR 838 (SC).
55 Department of Social Welfare v Allan (1993) 10 CRNZ 307 (HC).
that the Department of Inland Revenue and the Department of Social Welfare were not “persons” within the meaning of the extended definition of “persons” in the Acts Interpretation Act.56
[69] Mr Burrows submitted that the Ministry and the Police come within the definition of “person” in the Interpretation Act because they are both a “body of persons”. At one level that argument is correct. The Ministry and the Police comprise a large number of employees who are natural persons. But, the Ministry and the Police are more than just a collection of persons. They are entities that form part of the Crown and therefore, from a legal perspective, they must consist of more than simply a “body of persons” before they can be sued. In any case, this submission fails for the same reasons set out below at [71] to [79].
[70] There might be more merit in Mr Burrows’ argument that the Crown is a “corporate sole” of the kind suggested by Professor Maitland and alluded to by Lords Diplock, Simon and Woolf.
[71] As I have set out at [32] to [35] above, the law is far from clear as to the exact nature of the Crown. Some constitutional scholars have concluded that the phrase “corporate sole” properly reflects the nature of the Crown, others have merely adopted it as a useful device. Others still prefer the phrase “corporation aggregate” or prefer not to use either of these phrases, which both have a tendency to confuse and detract from the fact that the Crown refers to the state or the government. The position is pointingly summarised by Professor Loughlin in the following way:57
The manner in which the concept of the Crown has been utilised borders on the incoherent. The judiciary has failed to develop the common law in a systematic fashion…
[72] Regardless, of whether or not the Crown is properly described as a “corporate sole”, I do not consider that the word “person” in the Harassment Act includes the Ministry or the Police, or any other emanation of the Crown. The reason for this conclusion arises from the unique constitutional history of proceedings against the
56 Lyttle v Department of Social Welfare HC Hamilton AP132/93, 15 December 1993.
57 Martin Loughlin “The State, the Crown and the Law” in Sunkin and Payne (ed) The Nature of the Crown, above n 19, at 37.
Crown. As I have outlined at [36] to [40], individuals are only able to bring civil proceedings against the Crown in defined circumstances. Similarly, the scope for criminal proceedings against the Crown is very narrow. Those circumstances are all either expressly provided for in legislation, or form part of the long-standing tradition of the common law.
[73] No utility would be gained from attempting to analyse the exact jurisprudential nature of the Crown in this decision. That question has eluded constitutional scholars for centuries and further efforts to define the Crown is likely to add to the existing confusion. Suffice to say, if the Crown were a “corporate sole” within the meaning of s 30 of the Interpretation Act, then I would decline to apply that definition, in so far as it related to the Crown, in relation to the Act. The definitions provided by s 30 only apply “unless … the context of the enactment requires a different interpretation”.58 This exception has been given a wide interpretation, and allows consideration of the policy and history of the enactment in issue, as well as the consequences of adopting a particular interpretation.59
[74] Likewise, the principle that the meaning of an enactment must be ascertained from its text and in light of its purpose leads to the conclusion that the definitions in s 30 of the Interpretation Act give way when they are clearly inapplicable to a particular provision of an enactment.
No injunctive relief can be obtained against the Crown
[75] This conclusion is reinforced when regard is had to the fact that a restraining order is a form of injunction, which is a type of relief that has never been obtainable against the Crown and may only be able to be obtained in the future if Parliament amends the Crown Proceedings Act. Parliament would not have departed from the well-entrenched position that prohibits injunctions being obtained against the Crown without adopting very clear language to that effect in the Act. That it did not do so weighs heavily against Mr Burrows’ arguments.
58 Interpretation Act 1999, s 4(1)(b).
59 Police v Thomson [1966] NZLR 813 (CA).
[76] In summary, the Act requires an interpretation of “person” that excludes the Crown, and any entity that comprises the Crown. Adopting a definition of person that included the Crown would be contrary to the history of proceedings against the Crown in this country and throughout most of the common law world. It would result in the obscure consequence of providing a right to pursue a civil claim, and obtain a form of injunction against, the Crown in circumstances that Parliament did not clearly intend.
Section 7 of the Harassment Act 1999
[77] Possibly the most persuasive argument available to Mr Burrows can be found in s 7 of the Act which, as noted at [26] provides that the Act binds the Crown. The argument that the Crown is subject to the Act by reason of s 7 is reinforced by s 27 of the Interpretation Act, which I have explained at [28]. On its face, s 7 of the Act appears to override the doctrine of Crown immunity, which in this context provides, “unless the contrary intention appears, [an] Act does not bind the Crown itself”.60
[78] In order for the Crown to be the subject of restraining orders, s 7 of the Act would have to be interpreted as overriding s 17 of the Crown Proceedings Act. I am not persuaded that Parliament intended that consequence when it enacted s 7 of the Act. My reasons for reaching this conclusion are three-fold.
[79] First, if, when it passed s 7 of the Act, Parliament intended to override s 17 of the Crown Proceedings Act and create another avenue of civil proceeding against the Crown, then Parliament would have used very clear and unequivocal language to that effect. This is particularly so given the constitutional principles that have, to date, immunised the Crown from injunctive relief.
[80] Second, the policy that the Act aims to provide adequate legal protection for all victims of harassment is not undermined if the Crown is not subject to restraining orders. This is because specific remedies are available to address acts of harassment by officers of the Crown. Two examples illustrate this point. Conduct that constitutes harassment by a public officer in which he or she intentionally harms a member of the public through deliberate and unlawful conduct may be addressed through the tort of
60 Oliver Jones Bennion on Statutory Interpretation (6th ed, LexisNexis, London, 2013) at 176.
misfeasance in public office. Further, a restraining order may be obtained under the Act against individual employees of the Police or a government department provided of course all of the requirements of the Act are satisfied and provided also that the issuance of a restraining order is not treated as relief against the Crown.61
[81] Third, in the context of the Act, s 7 has a narrow meaning, namely, that the Crown is bound to give effect to those parts of the Act that require the engagement of the Crown in order for the Act to be effective. Thus, for example, police officers must follow certain procedures when requiring the name and address of an alleged harasser.62 Police are also responsible for enforcing restraining orders.63
Section 27(3) of the New Zealand Bill of Rights Act 1990
[82] Mr Burrows raised s 27(3) of the New Zealand Bill of Rights Act in support of his case. That section provides that “every person has the right to bring civil proceedings against … the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.” Section 27(3) does not assist Mr Burrows. That provision protects procedural rights, rather than substantive rights. It is designed to ensure that individuals who are engaged in litigation with the Crown, whether as a plaintiff or defendant, are able to compete on a level playing field. The section does not guarantee a right to sue the Crown where such a right would not otherwise exist.
[83] The leading case on this point is Westco Lagan Ltd v Attorney-General, where McGechan J described the purpose of s 27(3) in the following way:64
Section 27(3), on a natural reading, is intended to place the Crown in the same position in relation to litigation as private individuals. It reflects the way in which Court procedures have moved away from the privileged position which the Crown historically enjoyed … It is aimed at procedures which govern the assertion or denial of rights in the course of Court or equivalent proceedings; and is not aimed at the creation of other rights in themselves … Section 27(3)
… cannot restrict the power of the legislature to determine what substantive rights the Crown is to have. Section 27(3) merely directs that the Crown shall
61 Crown Proceedings Act 1950, s 17(2) – see [41] above.
62 Harassment Act 1997, s 26. See also 28.
63 Section 25. See also s 27.
64 Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40 (HC) at 55.
have no procedural advantage in any proceedings to enforce rights if such rights exist
Result and disposition
[84] Judge Smith correctly ruled that there is no jurisdiction to issue a restraining order under the Act against the Ministry or against the Police. Mr Burrows’ appeal is accordingly dismissed.
[85] Although Mr Burrows has not succeeded with his appeal, this is not a case that justifies an award of costs in favour of the Ministry or the Police. Mr Burrows’ appeal has raised issues of public importance that extend beyond his interests. The appeal, which involved important legal and constitutional principles, was properly presented by Mr Burrows.65
D B Collins J
Solicitors:
Ben Vanderkolk & Associates, Palmerston North for First and Second Respondents
65 High Court Rules 2016, r 14.7(e); and New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd [2013] NZCA 555 at [11].
1
3
1