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 2019 Mr Clarke could have been in no doubt that the Court expected to deal with Kiwirail’s interlocutory application on 27 August 2019.

[11]I decline Mr Clarke’s request for a further adjournment.

[12]I turn now to Kiwirail’s application.

[13]This is advanced on three bases.

[14]   First, it is said that Mr Clarke’s claim is time-barred, that is to say that it was commenced more than six years after the cause of action arose. Six years is of course the limitation period for simple claims in contract and tort, and for breach of statutory obligations provided for in the Limitation Act 1950. As I have already said, the proceeding was commenced five years and 364 days after the last date referred to in his statement of claim where he identifies the relevant period of time during which the events complained about occurred. There is affidavit evidence from Kiwirail that nothing occurred on 6 and 7 November 2009. Mr Clarke has made no attempt to rebut that evidence. I accept that Mr Clarke’s claim is out of time.

[15]   Second, Kiwirail says that Mr Clarke’s claim should be struck out in any event for want of prosecution and delay under rr 1.5, 5.72 and 15.2 of the High Court Rules 2016 because, having been filed on 6 November 2015, it was not served on Kiwirail until 11 June 2019 (or on the Police at all).

[16]   I agree. There is no question that, cumulatively, the pre-commencement delay of five years and 364 days and the post-commencement delay in service of the proceeding of nearly four years is inordinate. There is no evidence before the Court to suggest that these delays are explicable or excusable. Kiwirail’s unchallenged evidence is that the delay will prejudice its defence. In my view, the delays involved in this case amount to an abuse of process. I would strike the claim out on this basis alone.

[17]   Finally, Mr Lomas submits that in any event there is no substance in the claim against Kiwirail and that it is therefore susceptible to being struck out under r 15.1 as showing no tenable cause of action.

[18]   The statement of claim is brief. It extends to only six paragraphs. I set it out in full:

1)   That between the 1st of January 2000 and the 7th of November 2009, state that I was charge for trespass on the Wellington Railway network 15 times, and over that period of time and on all the occasions that I had a defended hearing I was never convicted. (Dates of all cases are being sort from Legal Aid so that the District Court can provide the dates of all hearings).

2)   Each time that I that I was held against my will under section 209(b) of the Crimes Act 1961, this also breaches section 22 of the New Zealand Bill of Rights Act 1990.

3)   Each time I was arrested by the New Zealand Police for trespass under the Trespass Act 1980, this being so I was taken to the police station held in police cells and made to appear in court.

4)   This means that it is false arrest and false imprisonment by the police and false complaints from Kiwi Rail.

5)   That I am waiting on further evidence from the Courts of New Zealand.

6)   That I am in the process of applying for legal aid.

[19]   As Mr Lomas submits, whatever allegations the claim may contain relating to the Police, the only allegation against Kiwirail is that it made “false complaints” to the Police concerning Mr Clarke. On its face, that is not a cause of action known to the law.

[20]   I accept the submissions advanced on behalf of Kiwirail on all three bases, and accordingly will make an order striking the claim out.

[21]   My preliminary view is that Kiwirail is entitled to its costs on a 2B basis. However, I have not heard from Mr Clarke in relation to costs. I will therefore reserve them.

[22]In summary then:

(a)the plaintiff’s claim against the first defendant is struck out for the reasons outlined;

(b)costs are reserved.

Associate Judge Johnston

Solicitors:
Russell McVeagh, Wellington for first defendant