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 defendantJudgment:
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…
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- Case
- [2019] NZHC 2127
- Decision Date
CaseChat Overview and Summary
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.
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