Clarke v Kiwirail Limited - [2019] NZHC 2127

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2015-485-949

[2019] NZHC 2127

BETWEEN
NEIL MARTIN CLARKE

Plaintiff

AND

KIWIRAIL LIMITED

First Defendant

NEW ZEALAND POLICE

Second Defendant

Hearing: 27 August 2019

Appearances:

Plaintiff in person

A Lomas for first defendant
No appearance for second defendant

Judgment:

28 August 2019

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1] This proceeding was called in the Wellington Associate Judge’s list on 13 August 2019. On that occasion, there was no appearance by or for the plaintiff, Mr Neil Clarke. Counsel appeared for the first defendant, Kiwirail Ltd, and the second defendant, the New Zealand Police.

[2] Before the Court was an application by Kiwirail dated 16 July 2019 for an order striking out the proceeding. Insofar as the Police are concerned, counsel appeared as a matter of courtesy to explain that neither the Crown Law Office nor the Police themselves had any record of having been served with the originating documentation, and therefore that the Police were not entering a defence.

CLARKE v KIWIRAIL LIMITED [2019] NZHC 2127 [28 August 2019]

[3] Mr Lomas for Kiwirail submitted that the Court should strike out the claim against the company, not on the technical basis that there was no appearance by or for the plaintiff, but on the substantive bases set out in the company’s application. I declined to strike out the claim in the plaintiff’s absence, and adjourned the matter to the next list on 27 August 2019. The next day, I issued a minute which was forwarded to Mr Clarke and the solicitors for Kiwirail (and the Police). This minute made it clear that on 27 August 2019 it was my expectation that the Court would deal with Kiwirail’s application.

[4] When the matter was called again on 27 August 2019, Mr Clarke was present. Mr Lomas appeared for Kiwirail. There was no appearance for the Police, though that is understandable in the circumstances already described.

[5] For his part, Mr Clarke sought an adjournment. He said that was necessary in order to enable him further to investigate the matter and in particular to obtain information from Kiwirail and the Police in relation to the events described in his claim (and possibly also to secure representation).

[6] On behalf of Kiwirail Mr Lomas opposed any further adjournment and made submissions in support of Kiwirail’s application to strike out the claim against it.

[7]I deal first with Mr Clarke’s request for an adjournment.

[8] According to his statement of claim, this proceeding concerns events that occurred between 1 January 2000 and 7 November 2009. The proceeding was commenced five years and 364 days later on 6 November 2015. It was served on Kiwirail a little short of four years later on 11 June 2019. It has not apparently been served on the Police.

[9] Mr Clarke has had time to carry out any investigations he thinks may be necessary.

[10] From my minute of 14 August…

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.

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Details

Case: [2019] NZHC 2127
Decision Date: 28 August 2019

CaseChat Overview and Summary

The case of Clarke v Kiwirail Limited involved a claim brought by Neil Martin Clarke against Kiwirail Limited and the New Zealand Police. The plaintiff alleged that he was wrongfully charged with trespass on the Wellington Railway network multiple times between 2000 and 2009, and that his arrest and detention were unlawful. Kiwirail sought to have the claim against it struck out on several grounds, including that the claim was time-barred, that there had been an inordinate delay in serving the claim, and that the claim lacked substance. The Police did not appear or defend the claim, citing lack of service of the originating documentation.

The primary legal issues before the court were whether the claim against Kiwirail was time-barred, whether the delays in serving the claim constituted an abuse of process, and whether the claim against Kiwirail had any merit. The court found that the claim was indeed time-barred as it was filed more than six years after the alleged events. Additionally, the court determined that the significant delays in both initiating and serving the claim constituted an abuse of process, as they prejudiced Kiwirail’s ability to mount a defence. Finally, the court held that the claim against Kiwirail lacked substance, as it essentially alleged that Kiwirail made "false complaints" to the Police, which is not a recognized cause of action.

In light of these findings, the court struck out the claim against Kiwirail. The court noted that Kiwirail was likely entitled to costs but decided to reserve the matter pending further input from the plaintiff. The final orders of the court were that the claim against Kiwirail was dismissed and that costs were reserved for later determination.

Orders