Clayton v Currie
[2012] NZHC 1475
•28 June 2012
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2011-409-1178 [2012] NZHC 1475
IN THE MATTER OF the New Zealand Bill of Rights Act 1990
BETWEEN VINCENT JAMES CLAYTON First Plaintiff
ANDLINDA JOYCE WESTBURY Second Plaintiff
ANDPHILIPPA CURRIE First Defendant
ANDRAYMOND DONNELLY & CO Second Defendant
ANDTHE CROWN SOLICITOR AT CHRISTCHURCH
Third Defendant
ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND
Fourth Defendant
Hearing: 12 March 2012
(Heard at Christchurch)
Appearances: J C Pike for Defendants/Applicants
P N Allan for Plaintiffs/Respondents
Judgment: 28 June 2012
JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to defendants' strike out application]
Introduction
[1] The defendants apply for an order striking out the plaintiffs’ claims.
CLAYTON V CURRIE HC CHCH CIV-2011-409-1178 [28 June 2012]
Background
[2] The plaintiffs were a married couple. Following a police investigation called Operation Rhino the first plaintiff was charged with a large number of offences involving receiving, fraud and the use of a document with intent to defraud. The second plaintiff faced a number of receiving charges. The plaintiffs were convicted at trial and sentenced. The first plaintiff was imprisoned. The convictions were subsequently quashed and a new trial ordered. The Crown chose not to proceed against the plaintiffs who were then discharged pursuant to s 347 Crimes Act 1961.
[3] The plaintiffs pursue three causes of action against each defendant:
(a) Breach of s 25(a), (e) and (f) of the New Zealand Bill of Rights Act
1990;
(b) The tort of deceit;
(c) The tort of misfeasance in public office.
[4] A number of forms of relief are sought, including: compensation of
$1,004,000 for the forced sale of the second plaintiff’s business; $50,000 for assets taken by the New Zealand police and never returned; and unquantified aggravated and exemplary damages.
The identity and relationship of the defendants
[5] The first defendant is described as a “Crown Prosecutor of Christchurch” and is a partner of the second defendant (a law firm at Christchurch). The third defendant is identified as “the Crown Solicitor at Christchurch” and is referred to in the statement of claim as “a partner in the second defendant” who holds the warrant to act as the Crown Solicitor at Christchurch.
[6] The Attorney-General is named as fourth defendant although not otherwise directly referred to in the statement of claim.
The plaintiffs' pleaded case on the facts
[7] The plaintiffs’ claims against the defendants arise from a trial miscarriage when the Judge at the trial of the defendants received from Ms Currie (prosecuting) a letter to defence counsel which was inaccurate and did not properly apprise the Judge, counsel and co-accused of the true position.1 A miscarriage of the trial flowed from the fact that the Judge received Ms Currie’s letter but not the full sentencing notes in relation to the co-accused.2 That involved a breach of fair trial rights under s 25 New Zealand Bill of Rights Act 1990 (“the NZBORA”) and removed from the jury evidence about the presence of an operating inducement, impeding unfairly the opportunity of counsel for the accused themselves from challenging the co-accused’s evidence.3
[8] That is a summary of the gravamen of the plaintiffs' case against these defendants.
[9] The full text of the letter provided by Ms Currie to defence counsel and Mr
Machirus by way of disclosure reads:
RE: OPERATION RHINO
1.As requested, I have carried out inquiries in relation to [L's] pending sentencing hearing in Wellington.
2.[L] pleaded guilty to the excess breath alcohol and dangerous driving
charge on 9 January 2007. He pleaded guilty to the charge of male assaults female on 22 February 2007. The assault was originally a
more serious charge. It would seem from the file that the officer in Christchurch holding that file did not action it for a considerable period of time, due to work pressure. When it was finally called in
Wellington Court, [L's] solicitor sought a stay on the basis of the delay. The Wellington Crown recommended that the charge not be
pursued. Negotiations then between the Wellington Crown/Police and Defence Counsel resulted in a plea to the current charge.
3. Judge Radford gave a sentencing indication on 22 May, suggesting
2½ to 3 years imprisonment was appropriate on all matters.
1 This was the finding of the Court of Appeal in R v Machirus [2008] NZCA 477 at [15]. For the consequential appeal involving Mr Clayton see R v Clayton [2008] NZCA 493 (appeal allowed on the same grounds).
2 R v Machirus, above n 1, at [17].
3 Ibid, at [18]–[19].
4. [L] pleaded guilty to the remaining counts on 31 May 2007.
5.[L's] counsel suggested sentencing should be after the Operation Rhino trial, the reason being that if (sic) was a sentenced prisoner, there were concerns regarding his safety. As a remand prisoner however, he has enhanced safety and a further remand was therefore sought by his counsel until after Operation Rhino.
6. Judge Radford was prepared to agree with that and he has recorded:
"I record that I have indicated the fashion in which I intend to sentence, and my reason for doing so is that it must not be thought that the sentence that I am going to impose would be influenced in any way by the course of conduct which may occur in Christchurch. In other words, [L] will not influence the sentence that is to be imposed by his conduct in Christchurch. I am making this point clear, as much for [L 's] protection, and so that the prosecution are not left in a position where it might be suggested that he may have to gain some advantage in these proceedings by the evidence that he may give.
[10] The single quotation from Judge Radford’s sentencing indication referred to paragraph [6] of the letter is to be contrasted with the remainder of Judge Radford’s sentencing indication, and in particular with the conclusion to paragraph [4]. I set out the whole indication for context:
[1] [L] has come back before the Court for plea and sentence on a large number of charges. He has appeared on a number of occasions on these charges but because there [were] so many of them and they extended over such a length of time, considerable effort was required for Mr Bradley to discuss matters with [L] and the prosecution and try to resolve all outstanding issues.
[2] On an earlier occasion [L] wished to have matters dealt with in such a way that his status within the prison was altered, for the reason that he is involved in a trial in Christchurch, the details of which are known both to the prosecution and to the defence and which I do not propose to detail within this memorandum, save to say that what is to transpire is very much to his credit.
[3] The matter has come back this morning following a sentencing indication which I gave on 22 May but Mr Bradley reminds me that on that day I gave a sentencing indication then said that that indication was only available so long as pleas were entered and matters tied up, but if that happened then the actual sentencing could be adjourned.
[4] The sentencing indication I gave was for a final outcome of between two and a half and three years and that is still on the table. I have indicated to both Mr Bradley and Mr Brickell for the prosecution, my reasoning process for reaching that conclusion. My reasoning process is that [L] has a very extensive history of criminal offending and that the offences that he has now pleaded guilty to are serious and have taken place over quite a long
period of time and the offences were committed, I think on almost every occasion, while subject to another sentence. Accordingly it seemed to me that, while I am not determining the final sentence at this point, a starting point of something in the region of four to four and a half years was appropriate but then significant discounts had to be given to take account of the guilty pleas which did amount to a significant assistance to everybody because of the complex nature of all of the offending and of course significant discount for the matter which involves the Christchurch trial.
[5] Mr Bradley has advanced this proposition: That plainly [L] is in custody and will remain so. He has to give evidence in Christchurch. If he is a sentenced prisoner, his safety may be in issue. I am told that he has enhanced safety if he is a remand prisoner. Accordingly what is sought is a further remand before sentenced is imposed until after the Christchurch case.
[6] I am prepared to agree with that and grant such a remand to 28
August 2007 at 9.15 am but I make the following observations:
a)Mr Brickell has only unfortunately just been handed the file and while this morning he could see no reason why that course of action should not be followed, leave is granted to the prosecution to have the matter brought back before me should, on mature consideration, he feel that is appropriate.
b)I record that I have indicated the fashion in which I intend to sentence and my reason for doing that is that it must not be thought that the sentence that I am going to impose would be influenced in any way by the course of conduct which may occur in Christchurch. In other words [L] will not influence the sentence that is to be imposed by his conduct in Christchurch. I am making that point clear as much for [L’s] protection and so that the prosecution are not left in a position where it might be suggested that he may have to gain some advantage in these proceedings by the evidence that he may give.
[7] Accordingly on all matters [L] is remanded for sentence to 28
August 2007 at 9.15 am. I see no point in calling for a further probation report given that [L] has been in custody.
[11] While the passage from the sentencing indication at [6]b) which was quoted by Ms Currie might be interpreted as the Judge saying that there was no basis for any suggestion that the co-accused had something to gain by giving evidence at the re- trial of Mr Machirus and his co-accused, it was Ms Currie’s omission of Judge Radford’s consideration of the Judge’s paragraph [4] statement as to “the significant discount for the matter which involves the Christchurch trial” which led to Ms
Currie’s disclosure being inaccurate.4
4 R v Machirus, above n 1, at [15].
[12] It is against this background that the plaintiffs in this proceeding plead the
relevant “Sequence of Events” in this way:
11.In March 2005 a large number of charges of receiving, fraud and using a document with intent to defraud were laid against the First Plaintiff. A number of charges of receiving were also laid against the Second Plaintiff.
12. The case against the Plaintiffs was that Mr. Daniel Long ('Mr.
Long'), an original co-accused, stole property from partly built houses in and around Christchurch and on sold the property to the
Plaintiffs and another co-accused Mr. Peter Lloyd Machirus ('Mr. Machirus').
13.Mr. Long later plead [sic] guilty to 18 counts of burglary, four of theft, five of receiving and one of converting a motor vehicle. When sentenced for these charges Mr. Long was given credit for his guilty pleas but also for his assistance to the Police which led to further charges being laid.
14. The Plaintiffs and others were tried in relation to the charges in
October 2006 (the ‘first trial’).
15.Mr. Long gave evidence at the first trial on behalf of the Crown. He was cross-examined largely on the assistance he gave the Police and his motivation to lie.
16. The first trial was declared a mistrial and a further trial date (the
‘second trial’) was set.
17.Between the first and second trial Mr. Long committed a number of further offences which included, driving with excess blood alcohol, driving while disqualified, two charges of burglary, receiving property and theft and four other dishonesty charges. Mr. Long was also awaiting sentencing for a charge of male assaults female which took place before the first trial.
18.Mr. Long was due to be sentenced in Wellington on 28 August 2007 for the above, immediately after giving evidence at the second trial.
19. The First Plaintiff and Mr. Machirus applied to the Court to exclude Mr. Long's evidence at the retrial as contents of some documents from Wellington, relating to Mr. Long's guilty plea in Christchurch to assault, showed that the original charges were more serious and that there had been negotiations between Mr. Long's counsel and the Police resulting in a lesser charge.
20On 22 August 2007 at the hearing for the above application, the first Defendant provided a letter (the ‘letter’) to the Plaintiff and Mr. Machirus ...
...
21.The Judge declined the application to exclude Mr. Long's evidence, relying on the letter.
22.The letter did not provide the whole of the Judge's sentencing indication and omitted to include the fact that on 31 May 2007 when Mr. Long had entered the remaining guilty pleas, the Judge indicated a large discount would be given to Mr. Long's sentence for pleading guilty and "of course significant discount for the matter which involves the Christchurch trial," para [4] (the ‘actual sentencing indication’).
23.The first Defendant held a complete written copy of the sentencing indication given on 31 May 2007 in her possession but did not disclose this to the Court or to the Plaintiffs.
24.On 29 August 2007, following his giving of evidence in the second trial, Mr. Long was sentenced to 2 and a half years imprisonment receiving a forty-five percent discount.
25.At the conclusion of the second trial the Plaintiffs were convicted by a jury of multiple counts of receiving.
26.The First Plaintiff was sentenced to five years imprisonment for 34 counts of receiving.
27.The Second Plaintiff was sentenced to 200 hours community work for nine counts of receiving.
28.On 11 November 2008 the Court of Appeal allowed Mr. Machirus’ appeal, setting aside his convictions and ordering a retrial on the grounds that the non-disclosure of the sentencing indication constituted a miscarriage of justice.
29.On 28 November 2008 the Court of Appeal allowed the appeal of the First Plaintiff and ordered a retrial.
30. On 30 March 2009 the Court of Appeal allowed the appeal of the
Second Plaintiff and ordered a retrial.
31.The First Plaintiff was discharged in relation to all charges under section 347 of the Crimes Act 1961 on 13 February 2009.
32.The Second Plaintiff was discharged in relation to all charges under section 347 of the Crimes Act 1961 on 8 April 2009.
[13] The defendants, by their statement of defence, (as well as admitting numerous of the above allegations) have denied some of the plaintiffs’ allegations. The plaintiffs’ pleading is taken to correctly state factual matters for the purposes of this application.
Strike out application – the principles
[14] High Court Rule 15.1 makes provision for orders striking out all or part of a pleading. In this case the defendants invoke r 15.1(1)(a) (no reasonably arguable cause of action).
[15] I adopt the following as principles applicable to the consideration of this application:
(a) The Court is to assume that the facts pleaded are true (unless they are entirely speculative and without foundation).
(b) The cause of action must be clearly untenable in the sense that the
Court can be certain that it cannot succeed.
(c) The jurisdiction is to be exercised sparingly and only in clear cases.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law, even if requiring extensive argument.
(e) The Court should be slow to rule on novel categories of duty of care at the strike out stage. (See Attorney General v Prince [1998] 1
NZLR 262 (CA)).
First cause of action: breach of NZBORA
The basis of the plaintiffs’ claim
[16] The Court of Appeal has found that the provision of the inaccurate letter was a breach of the fair trial rights of the accused under s 25 of the NZBORA.5
[17] The plaintiffs plead:
5 R v Machirus, above n 1, at [18], [21].
Each of the First, Second, Third and Fourth defendants, either in person or vicariously, breached the Plaintiffs’ rights pursuant to the Bill of Rights Act by not disclosing the actual sentencing indication, thereby misleading the plaintiffs and the Court.
Issues not in play
[18] The defendants reserve for later argument the proposition that the remedies for a breach of s 25 of the NZBORA are self-contained within the criminal justice process, and that an award of public law damages is unavailable. Mr Pike, for the defendants, accepts in the context of the present application that this point cannot prevail at this point. Mr Pike relies on the concurring judgment of William Young J
in Brown v Attorney-General,6 and the authorities cited by his Honour in that
judgment. Subsequently, in Attorney-General v Chapman,7 McGrath and William Young JJ as members of the Supreme Court referred to Brown v Attorney-General but expressly did not determine whether public law compensation is available for breach of “fair trial rights”.8
[19] On the usual principles applying to strike out applications, this point is therefore unavailable to the defendants on this application.
Breaches of s 25(a), (e) and (f) of the NZBORA?
[20] The plaintiffs plead (under “Sequence of Events”)9 that the defendants’ conduct constituted breaches of their rights under s 25(a), (e) and (f) of the NZBORA which provides:
25 Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a) The right to a fair and public hearing by an independent and impartial court:
...
6 Brown v Attorney-General [2005] 2 NZLR 405 (CA) at [120] – [141].
7 Attorney-General v Chapman [2011] NZSC 110.
8 Ibid, at [115].
9 Above at [12].
(e) The right to be present at the trial and to present a defence:
(f) The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:
...
[21] They plead that the defendants, either in person or vicariously, breached their rights under the NZBORA by not disclosing the actual sentencing indication and thereby misleading the plaintiffs and the Court.
[22] I approach the matter on the basis that whether the plaintiffs’ rights were breached through the defendants’ conduct is a question of mixed fact and law.
[23] For the defendants, Mr Pike submitted that there was no finding by the Court of Appeal in R v Machirus or in the related appeals that the defendants’ fair trial rights had been breached. Mr Pike submits that the operative finding by the Court of Appeal was that:
We are satisfied that the accused were placed in an unfair disadvantage by the non-disclosure of the sentencing notes of 31 May, as were the Judge and jury and that a miscarriage of justice resulted.10
[24] Mr Pike submitted that the Court of Appeal found trial error and not a breach of s 25(a) of the NZBORA. He submitted that not every trial error will amount to a breach of s 25(a). He referred to the judgment of Lord Steyn in Brown v Stott.11 His Lordship said:
... it is a grave conclusion that a defendant has not had the substance of a fair trial. It means the administration of justice has entirely failed.
[25] Mr Pike, with reference to the determinations by the Court of Appeal in R v Machirus and the related appeals, submitted that the Court of Appeal’s reasoning proceeded on the basis that:
(a) There was a prosecution failure to disclose;
10 R v Machirus, above n 1, at [12].
11 Brown v Stott [2003] 1 AC 681 (PC).
(b) The matter not disclosed was relevant to an inducement argument
going to Mr Long’s credibility;
(c) The trial accordingly miscarried.
[26] I remind myself that in this substantive proceeding, the Court will be specifically tasked with determining whether the plaintiffs’ rights under the NZBORA have been breached in such a way as to lead to compensation. In the Machirus and related appeals, the necessary focus of the appellate court was on whether a miscarriage of justice occurred. There was not the same need for focus in that case, as in this, upon an explicit finding as to breach of fair trial rights under the NZBORA.
[27] That said there is an argument, in my view strong, that the judgment of the Court of Appeal in R v Machirus is consistent with a view on the part of the Court that the appellant’s fair trial rights had been breached. The Court of Appeal12 set out the submissions made by Mr Hall (including the submission that there had been a breach of fair trial rights) before noting that Mr Stanaway for the Crown had offered no argument against those submissions. The Court of Appeal then concluded its discussion with a reference to the test under s 385(1)(c) Crimes Act 196113 before
reaching the conclusion that the Court is:14
... satisfied that the accused were placed in an unfair disadvantage by the non-disclosure of the sentencing notes of 31 May, as were the Judge and jury and that a miscarriage of justice resulted.
[28] In this case, there is a good argument – which at the very least the Court of Appeal did not dismiss – that the accuseds’ fair trial rights had been breached. This is not a case simply of non-disclosure as Mr Pike’s submissions may have suggested
– the Court of Appeal expressly found that the disclosure which was made was
inaccurate (meaning through what Ms Currie stated in her letter). This, the Court of
12 At [18] – [19].
13 S 385(1)(c) Crimes Act provides that on an appeal to the Supreme Court or Court of Appeal the Court must allow the appeal if it is of the opinion that on any ground there was a miscarriage of justice.
14 At [12].
Appeal found, placed the plaintiffs at “an unfair disadvantage”, and led to a miscarriage of justice.
[29] It is not for me in this application to determine whether that in fact amounts to a breach of the right to a fair and public hearing or of the right to examine the witnesses for the prosecution in terms of s 25(a) and (f) of the NZBORA. It is at least arguable that an accused placed at unfair disadvantage in his or her trial is denied a right to a fair and public hearing and that such an accused is truly denied the right to examine the witnesses for the prosecution under the same conditions as the prosecution (who held the full sentencing indication notes).
[30] Two sentences before the passage referred to by Mr Pike from the judgment of Lord Steyn in Brown v Stott, Lord Steyn drew a contrast between cases where the guarantee of a fair trial (under Article 6 of the European Convention) has been breached:15
...with cases where a trial has been affected by irregularities not amounting to denial of a fair trial.
[31] There is a factual ingredient as to whether the irregularities denied the plaintiffs a fair trial, which should be determined in this case at trial and not on this summary application.
The particular obligation of disclosure
[32] Mr Pike developed a submission to the effect that because:
(a) the plaintiffs themselves had obligations as to disclosure and an
obligation of “due diligence”; and
(b)the subject matter of the non-disclosure claim was a matter of public record not in the possession of the prosecution,
the plaintiffs’ case does not reach the starting point for attachment of personal civil
15 [2003] 1 AC 681 at 708.
liability.
[33] By reference to the discussion of disclosure rights in the judgment of the Supreme Court of Canada in R v Dixon,16 Mr Pike submitted that the overall fairness of the trial process must take into account defence counsel’s diligence in pursuing disclosure from the Crown. “A lack of due diligence is a significant factor in determining whether the Crown’s non-disclosure affected the fairness of the trial process”.17
[34] Mr Pike submitted that nothing should turn on the fact that the plaintiff Mr Clayton was self-represented, as that had been his choice and was in name only because he was assigned counsel in the criminal case as amicus.
[35] Mr Pike submitted that the lack of due diligence on the part of the defendants is directly relevant to causation, in that the material operating cause of any breach in this case arose from the plaintiffs’ lack of diligence required by law.
[36] When summarised in this way, it is clear that this ground of application must also fail. Causation is a factual issue. The plaintiffs have in the appropriate manner pleaded that their losses and damages were a direct result of the defendants’ actions. There is nothing inherently implausible in an assertion that the accuseds’ losses and damages resulted from the inaccurate information provided by the prosecutor rather than being caused by their own lack of due diligence. I do not suggest that the somewhat sophisticated analysis of due diligence by reference to the Canadian authority and with reference to such issues as intervening cause is not arguable. Rather, with these issues going to causation, they are properly matters for determination at trial and not in a strike out context where the plaintiffs’ pleadings
are taken to correctly state the facts.
16 R v Dixon [1998] 1 SCR 244.
17 Per Cory J delivering the judgment of the Court at 265.
A denial of compensation through the Court’s discretion
[37] Mr Pike referred to Simpson v Attorney-General18 for the proposition that compensation under the NZBORA is discretionary. He submitted that Baigent compensation may be awarded in cases where it is necessary to provide an effective remedy.19
[38] From this platform, Mr Pike launched a submission that the plaintiffs in this case have already obtained their remedy and more. They obtained an order for a new trial and subsequently the benefit of the decision of the Crown solicitor not to proceed to a further trial. Mr Pike referred also to the quality of the conduct said to give rise to the rights of compensation. He submitted that there could not be any pleading to the effect that the prosecutor was reckless or deliberate in relation to sending part only of the sentencing indication; the Court of Appeal had in the event ordered a new trial; and the prosecutor had decided not to go to trial again on the charges. Mr Pike submitted that from that base it was not possible to determine that any award of NZBORA compensation (let alone $1,000,004 as claimed), could be achieved.
[39] In this strike out application, the Court is dealing with the substance of the pleadings rather than the quantum of the relief sought.
[40] If a trial Court finds it appropriate to award compensation, then the Court will have to exercise its discretion in a principled manner in relation to the quantum. That exercise must take place upon the basis of the Court’s assessment of a number of matters, including the conduct of the defendants. The plaintiffs have expressly pleaded that the defendants’ conduct constituted “truly exceptional and outrageous conduct”. Such are pleadings which, if substantiated at trial, may lead to aggravated or exemplary damages in addition to special damages. Exactly what Ms Currie’s
thinking and impression was in relation to the letter she wrote was left at large by the
18 Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA).
19 Ibid. Baigent’s Case recognised damages as an appropriate remedy for certain breaches of the
NZBORA.
Court of Appeal in R v Machirus,20 undoubtedly because (unlike in this case), Ms Currie’s subjective intention or understanding was not a direct issue for the Court of Appeal.
[41] Matters going to the discretion in relation to the quantum of any awards of compensation or damages are clearly matters for trial. On the basis of its pleading the plaintiffs, in a strike out application, are entitled to the presumption that they will make out their pleadings as to causation and that it will become a matter for the trial Court to determine quantum.
Causation: the wider issue
[42] Under the head “Causation: the wider issue”, Mr Pike developed a brief submission to the effect that the quantum of damages claimed for the alleged NZBORA breaches plainly indicates that the plaintiffs are seeking compensation of the sort which can be obtained through the tort of malicious prosecution.
[43] Mr Pike then, by reference to the ingredients of the tort of malicious prosecution, developed the proposition that the plaintiffs have not pleaded the required ingredients (such as the probability or certainty of acquittal if the breach of rights had not occurred).
[44] Mr Pike then submitted that compensation under the NZBORA is not to be made available on the basis that it can eclipse the proper role of appropriate torts. The plaintiffs, Mr Pike submits, are in truth seeking damages on the basis of malicious prosecution and, if so, should plead such.
[45] Without detracting from Mr Pike’s understandable concerns as to the extent of quantum sought, the reality is that this is a “straw man” ground of opposition. The plaintiffs have chosen not to sue for the tort of malicious prosecution. The
pleading under the NZBORA is defensible for the reasons I have already explored.
20 R v Machirus, above n 1, at [15].
Second cause of action: deceit
The pleading
[46] The plaintiffs’ pleading in relation to deceit is in two paragraphs:
38.The Plaintiffs refer to the matters hereinbefore pleaded, repeats them and claims against the Defendants and each of them for the cause of action of tort of deceit.
39.Each of the Defendants, either in person or vicariously, misled the Court and the Plaintiffs by not disclosing the actual sentencing indication.
The elements of the tort
[47] The action of deceit involves a claim for damages in respect of fraudulent misrepresentation. The elements which a plaintiff must prove are:
(1) that the alleged representation consisted of something said, written, or done which amounts in law to a representation;
(2) that the defendant was the person who made the representation;
(3) that the plaintiff was the person to whom the representation was made;
(4) that the representation was false; (5) inducement and materiality;
(6) alteration of position; (7) fraud;
(8) damage.21
[48] In his submissions in response to the strike out application, Mr Allan somewhat disarmingly characterised this pleading as “the weakest”. He nevertheless submitted that it cannot be said that the tort has no application in this case. That said, he replied to the specific submissions made by Mr Pike as to elements of the
tort which Mr Pike submitted were missing. I turn to those.
21 Laws of New Zealand Tort at [84].
The element of fraud
[49] The element of fraud required in deceit is established where the maker of the representation knows it to be untrue or has no belief in its truth, or is reckless as to its truth. This was the formulation of Lord Herschell in the leading authority Derry v Peek.22 This test for the state of the defendant’s mind was adopted by the New Zealand Court of Appeal in Amaltal Corporation Ltd v Maruha Corporation.23
[50] The plaintiffs’ pleading does not contain a specific allegation that Ms Currie was reckless as to the truth of the letter she provided. The allegation made in that part of the statement of claim which deals with “Sequence of Events” is simply that the first defendant provided the letter to the plaintiff and Mr Machirus.24 However, in that part of the statement of claim which particularises “Losses Suffered” there does appear this pleading:
37.The Defendants’ actions, jointly and severally, were subjectively reckless and also constituted truly exceptional and outrageous conduct so as to justify awards of exemplary damages to the Plaintiffs.
[51] Thus, although the pleading of recklessness (implicitly meaning recklessness with regard to the wording of the letter) appears from the statement of claim to relate more logically to the quantum of damages than the substantive allegations as to the tort, there is a pleading in the statement of claim alleging recklessness.
[52] In his written submissions, Mr Allan said this:
... the tort will be found if the 1st defendant has either been intentionally deceptive or she has simply acted recklessly or carelessly as to the truth or otherwise of the representation. Even if the plaintiffs are estopped from attempting to prove intentional deceit the lower standard could be found to have applied.
[53] Contrary to Mr Allan’s submission, carelessness cannot establish the tort of
deceit. On the other hand, recklessness may.
22 Derry v Peek (1889) 14 App Cas 337 at 374.
23 Amaltal Corporation Ltd v Maruha Corporation [2007] 1 NZLR 608 (CA) per Hammond J, delivering the judgment of the Court at [48] (on appeal [2007] 3 NZLR 192 (SC), where deceit was not in issue).
24 Paragraph 20 of the statement of claim.
[54] But the essence of the tort still lies in fraud. As the Court of Appeal put it in Amaltal Corporation Ltd – having just discussed Lord Herschell’s formulation in Derry v Peek:25
It follows that a statement honestly believed to be true – even if implausible
– is not capable of amounting to fraud.
and the Court then added:26
The critical features of the tort are therefore that the representor must have lacked an honest belief in the truth of his statement; “carelessness” is not to be equated with “dishonesty”; and even recklessness in the sense of gross negligence will not suffice, unless there is a conscious indifference to the truth.
[55] In this case, the plaintiffs do not plead on the part of Ms Currie (or the other defendants) a conscious indifference to the truth. Nor do they plead that Ms Currie had no honest belief in the accuracy of what she was saying in the letter. The most they allege (and it comes only as a pleading in relation to the quantum of losses) is that the defendants were “subjectively reckless”. That is not a sufficiently directed allegation to make out fraudulent misrepresentation or deceit. Mr Allan did not seek leave to amend the statement of claim nor did he provide a draft amendment to suggest that the lacking elements could be properly asserted.
[56] The pleading of deceit must fail on at least this element of the tort.
False representation of fact?
[57] Mr Pike submitted that the requirement that there be a false representation of fact was missing. At least arguably, that is not so. The plaintiffs’ pleading at paragraph 22 of the statement of claim identifies the passage of the sentencing indication which was omitted. The plaintiffs would be entitled to argue at trial that Ms Currie’s letter, through the combination of what it did state and what it did not state, contained a representation to the effect that there had been no indication from the Judge which might act as an inducement to Mr Long. Indeed, it appears that the
information was obtained precisely to throw light on that possibility. That the
25 Amaltal Corporation Ltd v Maruha Corporation [2007] 1 NZLR 608 (CA) at [49].
26 Ibid, at [50].
plaintiffs have a prospect of succeeding on the proposition that the letter contained a false representation of the position is fortified by the conclusion of the Court of Appeal. That Court concluded that the disclosure which was made in the letter was inaccurate and did not properly apprise the Judge, counsel and Mr Machirus of the true position.27
Knowledge that a representation is false
[58] Mr Pike submitted that there was no allegation that Ms Currie knew that the information in the letter was false (or untrue). His submission is correct in terms of the pleadings. However, that would not of itself be decisive given the formulation of the fraud requirement in Derry v Peek and in Amaltal Corporation Ltd.
The pleadings as a whole
[59] Accordingly, in terms of the elements of the tort of deceit, I find in favour of Mr Pike’s submissions in relation to the first issue discussed (fraud through recklessness).28 The other matters Mr Pike raised would not lead to a strike out.
Deceit as a commercial tort
[60] For completeness I refer to a further submission made by Mr Pike in relation to the tort of deceit. He submitted that the tort arises in only those cases with a strong commercial flavour. He submitted that, as a matter of public policy, the tort of deceit has no role in relation to alleged abuses of legal procedure (for which other remedies may be available including damages for the tort of malicious prosecution, compensation and the NZBORA, and possibly damages for the tort of misfeasance in public office).
[61] The usually commercial nature of conduct giving rise to the tort of deceit may in this case have its greatest relevance in relation to that ingredient which The
27 R v Machirus, above n 1, at [15].
28 Above [48] – [54].
Laws of New Zealand summary refers to as “inducement and materiality”.29 The source for The Laws of New Zealand formulation is the House of Lords decision referred to by Mr Pike in Bradford Third Equitable Benefit Building Society v Borders.30 In his judgment, Viscount Maugham identified this ingredient in the following way:31
Thirdly, it must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which will include the plaintiff, in the manner which resulted in damage to him: Peek v Gurney32 and Smith v Chadwick.33
[62] This requirement of inducement to act is a particular ingredient of deceit and is additional to the causation of damage through the defendant’s conduct.34 Except in the broader context of his submissions that deceit is a tort for commercial situations, Mr Pike did not develop submissions with particular reference to the absence of inducement to act in this case. But it will usually be by the inducement to act and the procuring of a benefit through that arrangement that the commercial nature of a transaction will be marked.
[63] Mr Pike referred to the decision of the House of Lords in Bradford Third Equitable Benefit Building Society v Borders35 as a case illustrating the way in which the common law action of deceit arises in commercial contexts.
[64] The judgments of Grantham and Kennedy JJ in Burrows v Rhodes36 illustrate how the tort of deceit can be applied to unusual situations – as the headnote indicates:
Where a person is induced by the fraudulent misrepresentation of another to do an act which, in consequence of such misrepresentation, he believes to be neither illegal or immoral, but which is in fact a criminal offence, he has a right of action against the person so inducing him for damages sustained by him in consequence of his having done such act.
29 Above at [47].
30 Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205 (HL).
31 Ibid, at 211.
32 Peek v Gurney (1873) LR 6 HL 377.
33 Smith v Chadwick (1884) 9 App Cas 187.
34 Above at [47].
35 Bradford Third Equitable Benefit Building Society v Borders, above n 28.
36 Burrows v Rhodes [1899] 1 QB 816.
[65] In Burrows v Rhodes the defendants submitted by demurrer that the statement of claim disclosed no cause of action. As the headnote indicates, the demurrer was dismissed. While the case had a commercial context (an engagement of service with an expeditionary company) the unusual form of damages (damages for the plaintiff’s liability to severe punishment in England for offences against the laws of England, as well as special damages and personal injuries damages) was found not to stand in the way of a successful cause of action in deceit.
[66] In Burrows v Rhodes the required element of inducement to act could be found in the defendant’s offering the plaintiff a renewed contract of service with the British South Africa Company (which the plaintiff took).
[67] There are a number of torts which deal with intentional interference with economic interests, of which deceit is one. The commercial context of such torts is illustrated by Philip H. Osborne in The Law of Torts where the author writes:37
There are a number of nominate torts collectively referred to as economic torts or business torts that deal, primarily, with the intentional interference with economic interests. ... A tort remedy is available only for serious misconduct that disrupts the efficient operation of the marketplace. The nominate torts fall into two categories, those that deal with deceptive market practices such as deceit, injurious falsehood, passing-off, and misappropriation of personality, and a more amorphous group that deals with improper market practices. The latter group includes conspiracy, intimidation, inducement to breach a contract, and intentional interference with economic interests by unlawful means.
[68] Writing extra-judicially, Grant Hammond in a chapter in Torts in Commercial
Law observed:38
The so-called “commercial torts” all deal, in one way or another, with what is said to be improper or inappropriate conduct in business that causes harm to others. These torts can be classified in various ways.
One approach, which is found in many of the standard treatises, is a straightforward cause of action taxonomy which usually includes: conspiracy; inducing a breach of contract; intimidation; unlawful interference with trade; deceit; malicious falsehood; passing off; and negligence causing pure economic loss...
37 Philip H. Osborne The Law of Torts (4th ed, Irwin Law, Toronto, 2011) at 314-315.
38 Grant Hammond “Exemplary Damages” in S Degeling, J Edelman, J Goudkamp (eds) Torts in
Commercial Law (Thomson Reuters, Sydney, 2011) 449 at 449.
[69] In New Zealand, Professor Todd and John Burrows have summarised:39
The action for deceit is commonly asserted in a commercial context. It is not formally limited in this way, and there is conflicting authority as to whether it can apply in a domestic context.
[70] The authors refer to the judgment of the High Court of Australia in Magill v Magill40 in which that Court rejected the availability of deceit in a domestic context where it would cut across a comprehensive statutory framework governing divorce and paternity issues. The Court also found that the alleged deceit in that case – a breach of promise of sexual fidelity – could not be justly or appropriately assessed by reference to bargaining transactions of which the tort of deceit is typically
associated.
[71] On the other hand, English authority is to the contrary. In England41 it has been held that a false statement by a woman to her domestic partner that he was the father of her child could attract liability for deceit.
[72] The authors suggests that New Zealand courts are likely to follow the
Australian view (in relation to domestic cases).42
[73] There is considerable force in the proposition that the “commercial” or “business” torts such as deceit should be confined to a commercial context. This is particularly so when other torts such as malicious prosecution and other remedies (such as under the NZBORA) have been developed with appropriate principles and thresholds to respond to situations where the administration of justice has gone wrong. It may be that this “commercial” flavour of the tort is better expressed by the required ingredient as to inducement.
[74] The essence of the plaintiffs’ claim in this case is not that they were induced to do something by the allegedly false representation. Rather, their case is that they
were deprived of their fair trial (and related) rights and were not able to cross-
39 Stephen Todd and John Burrows “Deliberate Falsehoods” in S Todd (ed) The Law of Torts in
New Zealand (5th ed, Brookers, Wellington, 2009) 705 at 707.
40 Magill v Magill (2006) 226 CLR 551 (HCA).
41 P v B [2001] 1 FLR 1041.
42 Stephen Todd and John Burrows “Deliberate Falsehoods”, above n 39, at 707.
examine on the inducement issue effectively. There is no allegation in the plaintiffs’ pleadings that the defendants were induced to act in a particular way. There is a strong argument for saying that the gravamen of the plaintiffs’ case is that this was a case of misrepresentation causing damage rather than that it was a case of deceit involving a misrepresentation which acted as an inducement to particular action by a plaintiff which in turn resulted in damage. In that sense, a critical commercial element of the tort of deceit is missing, at least in terms of the pleadings. However, Mr Pike developed his submissions in this regard by reference to the commercial nature of the tort of deceit generally rather than by specific reference to the ingredient of inducement. I refrain from determining the strike out application on this ground given that I find in favour of strike out on a ground expressly relied on by Mr Pike.
Misfeasance in the public office
The plaintiffs’ pleading
[75] The plaintiffs plead in relation to the tort of misfeasance in public office that:
40.The Plaintiff refers to the matters hereinbefore pleaded, repeats them and claims against the First, Second, Third and Fourth Defendants and each of them for the cause of action of misfeasance in public office.
41.Both the First and Third Defendants were public officers. The Second and Fourth Defendants are liable vicariously for the acts and omissions of the other Defendants.
42.Each of the Defendants, jointly and severally, acted deliberately and unlawfully in the exercise of his or her office. Each of the Defendants, jointly and severally, knowingly misapplied their powers and/or authorities amounting to an abuse of office.
43.Each of the Defendants, jointly and severally, acted with malice towards the Plaintiff or with knowledge by each defendant that his or her conduct was unlawful and was likely to injure the Plaintiff.
The elements of the tort of misfeasance in public office
[76] With one exception (relating to the position of prosecutors), counsel did not appear to differ as to the ingredients of the tort of misfeasance in public office.
[77] I adopt my analysis of the elements of the tort as stated in Chesterfields
Preschools Limited v Commissioner of Inland Revenue:43
[12] The tort of misfeasance in public office has been analysed by the House of Lords in Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1, Lord Steyn at 191–196, an analysis adopted by the New Zealand Court of Appeal in Ministry of Fisheries v Pranfield Holdings Limited [2008] 3 NZLR 649, per O’Regan J for the Court at 672–673. I summarise the analysed elements:
1. The act complained of must be done by a public officer.
2.The act must be done in the purported exercise of the public officer’s public functions (the principles of vicarious liability applying).
3. The public officer must have had a malicious state of mind
— that is an awareness that his/her conduct was unlawful and that it would probably injure the plaintiff. This may be
proved in either of two ways, namely through:
i) targeted malice — the officer has acted for an improper or ulterior motive (such as to injure a person or persons) or
ii) untargeted malice — the public officer has acted with knowledge of the illegality of his or her act, or with a state of mind of reckless indifference to the illegality of the act, and knows or is reckless as to whether the act will probably injure the plaintiff (or a person of a class of which the plaintiff was a member).
4.The plaintiff must have a sufficient interest to found a legal standing to sue.
5.The conduct of the public officer must cause the plaintiff loss.
6.The damage must not be too remote (which could equally be dealt with under (3) above) in that the public officer must either:
i) have had knowledge that his or her conduct would probably injure the plaintiff or a person of a class of which the plaintiff was a member; or
ii) have been reckless about the consequences of his or her conduct in the sense of not caring whether the consequences happened or not.
43 Chesterfields Preschools Limited v Commissioner of Inland Revenue (2011) 25 NZTC 20-092 at
[12].
See also Garrett v Attorney-General [1997] 2 NZLR 332 (CA); Rawlinson v
Rice [1997] 2 NZLR 651 (CA); Hobson v Attorney-General [2007] 1 NZLR
374; CIR v Reid (2008) 23 NZTC 21,783 (CA).
The defendants’ strike out application
[78] The defendants bring their application for strike out in relation to this cause of action on two grounds:
(a) The first defendant did not hold a public office;
(b) Nor did she exercise the “powers or authority of any public office” in
relation to the record of the sentencing indication.
Did the first defendant arguably hold public office?
[79] Mr Pike referred to the decision of the Victoria Court of Appeal in Cannon v Tahche.44 In that case the Victorian Court of Appeal analysed the obligations of a prosecutor in terms of obligations to the Court and not to the public at large or to the accused. Mr Pike submitted that by reference Cannon v Tahche should apply and that in this strike out context the Court should conclude that an accused may not sue on a duty owed by a prosecutor to the trial Court.
[80] Mr Pike noted that Cannon v Tahche had been discussed by the New Zealand
Court of Appeal in New Zealand Defence Force v Berryman.45
[81] I was also called on to review the authorities in this area in Chesterfields Preschools Limited v Commissioner of Inland Revenue.46 In that case the plaintiffs were suing (amongst others) a partner in the firm of the Crown Solicitor who had acted for the Commissioner of Inland Revenue in litigation. Mr Pike (appearing also on a strike out application for those defendants), submitted in relation to the cause of action against the solicitor that he did not hold public office. I reviewed the
unsettled state of the authorities in this area. The judgment of Sir William Young P
44 Cannon v Tahche (2002) 5 VR 317, particularly at 336-339.
45 New Zealand Defence Force v Berryman [2008] NZCA 392.
46 Chesterfields Preschools Limited v Commissioner of Inland Revenue, above n 43.
in New Zealand Defence Force v Berryman illustrates matters – his Honour47 referred to English and Saskatchewan cases which indicate that the tort of misfeasance in public office might conceivably attach to the functions of a prosecutor. I summarised:48
The present position remains that in Berryman the New Zealand Court of Appeal has recently regarded as tenable a claim for misfeasance in public office brought in relation to two lawyers who had acted in situations at least arguably similar to that of Mr Shamy in the present case. I therefore, with reluctance, find that there remains a “public office” argument in relation to Mr Shamy.
[82] In the judgment of Fogarty J in the same case, dealing with an application for review of my decision, his Honour has recently upheld that decision noting:49
... if Mr Shamy became engaged in the issue whether officials should or should not exercise a statutory power, there may be a basis for personal liability acting as a public officer, as left open by the Court of Appeal in Berryman vis-à-vis Mr McGuire, a territorial officer acting as counsel for the Army, see paragraph [76]. I agree with Osborne AJ’s decision at [71] that given that decision it is not possible to strike Mr Shamy out of the proceedings at this stage. As Osborne AJ discussed, there is Australian case law to the contrary. But its application is a matter for the Court of Appeal, or the Supreme Court.
[83] In reaching that conclusion, Fogarty J emphasised that the aspects of Mr Shamy’s conduct which related solely to the completion of discovery in tax litigation (as opposed to the exercise of statutory power) could not give rise to misfeasance. His Honour observed:50
Mr Hampton argues that Mr Shamy gave advice to the IRD on the question of whether the Aronsen notes should be released. If that advice was just a discovery opinion I see no basis for Mr Shamy having to defend an action in tort, whether his advice was right or wrong.
[84] That distinction of function cannot, at least in a strike out context, apply to the functions of a prosecutor, given the unsettled state of the authorities identified by
the precedent in Berryman.
47 New Zealand Defence Force v Berryman, above n 45, at [63].
48 Chesterfields Preschools Limited v Commissioner of Inland Revenue, above n 43, at [76].
49 Chesterfields Preschools Limited v Commissioner of Inland Revenue [2012] NZHC 1302 at [59].
50 Ibid.
[85] Mr Pike emphasised that the prosecutor owes his or her duty to the Court. By reference to both Cannon v Tahche51 and to Leerdam v Noori52 Mr Pike referred to Australian authority for the proposition that such duties as the prosecutor’s obligation to act fairly and the prosecutor’s duty of disclosure are not duties to the public at large or to the accused, and do not constitute the prosecutor the repository of public power or authority.
[86] I recognise the force of those propositions and indeed incline to the view that they may be ultimately upheld in New Zealand. I indicated as much in Chesterfields Preschools Limited v Commissioner of Inland Revenue.53 But the law in New Zealand is unsettled and is developing. The possibility of an opposite conclusion being reached in New Zealand is indicated by the reference by the Court of Appeal in Berryman to the decision of the Court of Appeal for Saskatchewan in Milgaard v Mackie.54
[87] In Milgaard v Mackie McIntyre J at first instance had declined the defendants’ strike out application. The defendants were prosecutors at the plaintiffs’ murder trial. Initially convicted and imprisoned, the plaintiff was 22 years later granted a new trial. The criminal prosecution was subsequently stayed. The plaintiff, suing the prosecutors and others, alleged that the prosecutors (with those others) had withheld evidence. The plaintiff sued for his damages in relation to his conviction and imprisonment. The plaintiffs’ pleadings alleged various torts but did not well define one of the torts relied on. The Court of Appeal found it to be the tort of abuse of statutory power, also called “abuse of office” (that is to say what I have referred to in this judgment as the tort of misfeasance in public office). McIntyre J found that on the facts pleaded, the plaintiff had a triable case against the prosecutors. The Court of Appeal upheld that finding and dismissed the appeal. In doing so the Court found that:
(a) There is clear authority on the liability of public officers and officials for wrongful conduct;
51 Cannon v Tahche, above n 44.
52 Leerdam v Noori [2009] NSWCA 90.
53 Chesterfields Preschools Limited v Commissioner of Inland Revenue, above n 43, at [76].
54 Milgaard v Mackie (1994) 118 DLR (4th) 653.
(b)The Attorney General and his agents, the Crown Attorneys, are exercising statutory powers when commencing and prosecuting criminal offences;55
(c) The law on some aspects of the claims was unsettled;56
(d)The issues should not be determined in the abstract and should have an appropriate foundation of fact for resolution.57
[88] I am not, in this context, in a position to apply the decision of the Victorian Court of Appeal in Cannon v Tahche, as invited by Mr Pike. The law is unsettled and is developing. Berryman and Milgaard v Mackie point at least arguably to the possibilities that a different conclusion and one favourable to the plaintiffs, might be reached. The judgment on the law should be a judgment at trial against the full factual background of the prosecutor’s position and role, as the Saskatchewan Court of Appeal ordered in Milgaard v Mackie.
Did the first defendant exercise the “powers or authority of any public office” in
relation to the record of the sentencing indication?
[89] Mr Pike submitted that as a matter of fact the plaintiffs do not and cannot point to the power of office of Crown Solicitor which was brought to bear in obtaining and disseminating the sentencing indication record from the Wellington District Court.
[90] Mr Pike noted in his submissions the background which is publicly available:
58.1 The witness [L] was the subject of a prosecution conducted by the
New Zealand Police at Wellington.
The Police are not “the Crown” and there was no connection between the Wellington prosecution and the Christchurch trial. Critically there can be no pleading that the prosecutor in Christchurch was in any way party to the arrangements (whatever they were) as to sentencing in Wellington.
55 Ibid.
56 Ibid, at 664.
57 Ibid.
58.2The record of the Wellington District Court was in relation to a process of which the plaintiffs were well aware. They had taken some ineffectual steps to obtain the record and had then asked the prosecutor to do it for them.
58.3She wrote a letter of request to the Wellington District Court to obtain the record. That does not involve any power or authority on her part.
58.4On receipt of the record she made a judgment that the gist of what the Judge said about, or relevant to, any inducement to testify was in the paragraph she reproduced.
[91] Mr Pike submitted that no decision of any power or authority of the office Ms Currie held applied to her judgment as to the content of her letter. Mr Pike characterised Ms Currie’s conduct as:
simply attempting to assist the plaintiffs in a matter they could have and should have done for themselves.
[92] For the plaintiffs, Mr Allan submitted that Mr Pike’s argument missed the material point of the misfeasance cause of action. Mr Allan submitted that as a person holding the office of prosecutor, Ms Currie misapplied the power or authority of that office by withholding information known to her and instead inaccurately passed material and information on the accused to the Court, counsel and accused.
[93] For reasons directly parallel to those involved in the question of whether a prosecutor holds a public office at all, the defendants cannot succeed on this ground of their strike out application. The information inaccurately conveyed by Ms Currie was of fundamental importance to the accused’s rights to criminal justice. The very fact that it was not accurately conveyed led to the Court of Appeal’s finding of a miscarriage of justice. It is at least arguable that how the prosecutor came into possession of the relevant information (as carefully analysed by Mr Pike) is beside the point. The fundamental point which Mr Allan seeks to pursue at trial is that once the prosecutor had the information as prosecutor, her failure to disclose it accurately may be found to have been conduct relating to her public office. Assuming a prosecutor is found to hold public office, a boundary may be able to be drawn between what has been done in the public function and what has been done other than in that function. That is a determination most appropriately made in the light of
all the evidence at trial (as was directed in Milgaard v Mackie).58 For now the plaintiffs’ pleadings that there were public office powers involved and that those powers were misapplied are entitled to stand.
Targeted and untargeted misfeasance
[94] Although the point was not taken in the defendants’ application to strike out, Mr Pike developed in three brief paragraphs in his written submissions a proposition that the plaintiffs’ pleadings were duplicitous, containing an attempt to plead both targeted and non-targeted misfeasance.59 Mr Pike further submitted that the reference in the pleading to “malice” is inconsistent with the decisions of the Court of Appeal in the various criminal appeals flowing from Operation Rhino. He submitted that it would be an abuse of process to allow the pleadings to stand in the absence of particulars.
[95] It would be inappropriate to treat these latter submissions as a proper basis for strike out when they formed no part of the pleaded grounds of strike out. To the extent that they raise legitimate issues as to scope for greater particularity, the plaintiffs are on notice.
Costs
[96] The defendants have been partly successful in their application. The plaintiffs have been partly successful in their resistance to the application. An appropriate outcome may be that there be no order as to the costs of the application. The determination of costs is left in the first instance for the parties to agree. Failing agreement the applicants for any costs order are to file their memoranda (limited to four pages) and the respondents to any such application are to file and serve their submissions (limited to four pages) within five working days thereafter. The Court will then determine the issue of costs on the papers (unless counsel otherwise
request).
58 Milgaard v Mackie, above n 54.
59 See the formulation of the tort (above [77]).
Orders
[97] I order:
(a) The defendants’ application to strike out the first and third causes of
action is dismissed;
(b)The defendants’ application to strike out the second cause of action is granted, with the result that paragraphs 38 and 39 of the statement of claim and the prayer for relief immediately there following are hereby struck out, with the filing of an amended pleading hereby dispensed with;
(c) Costs are reserved.
Associate Judge Osborne
Solicitors:
Crown Law - Email: [email protected]
Mr P N Allan - Email: [email protected]
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