[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…

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.

Continue reading Clayton v Currie

Details

AGLC: Clayton v Currie [2012] NZHC 1475
Case: [2012] NZHC 1475
Decision Date: 28 June 2012

CaseChat Overview and Summary

The case of Clayton v Currie involved a married couple who were convicted of receiving, fraud, and using a document with intent to defraud. Their convictions were subsequently quashed, and a new trial was ordered. The plaintiffs, Vincent James Clayton and Linda Joyce Westbury, pursued three causes of action against the defendants, including breach of s 25(a), (e), and (f) of the New Zealand Bill of Rights Act 1990, the tort of deceit, and the tort of misfeasance in public office. The defendants applied for an order to strike out the plaintiffs' claims.

The court found that the plaintiffs had a reasonably arguable cause of action in relation to their first and third causes of action, and therefore dismissed the defendants' strike out application in relation to these claims. However, the court granted the strike out application in relation to the second cause of action, the tort of deceit. The court found that the plaintiffs had not sufficiently pleaded the element of fraud required in deceit, as they had not alleged that the defendant was reckless as to the truth of the representation. Additionally, the court found that the plaintiffs' claim for deceit was not appropriate in this case, as it did not involve a commercial context.

The court also found that the plaintiffs' pleadings in relation to the tort of misfeasance in public office were entitled to stand, as it was at least arguable that the defendant had misapplied the powers or authority of her public office. The court left the determination of costs to the parties to agree, but noted that if they were unable to agree, the applicants for any costs order were to file their memoranda and the respondents to any such application were to file and serve their submissions within five working days thereafter. The Court would then determine the issue of costs on the papers unless counsel otherwise requested.

Orders