CLINTON BOWERMAN AND PETER GOODFELLOW COMMISSIONER OF POLICE
[2024] NZHC 2790
•26 September 2024
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2024-470-21
[2024] NZHC 2790
UNDER the New Zealand Bill of Rights Act 1990 and the Trespass Act 1982 BETWEEN
CLINTON BOWERMAN
Plaintiff
AND
PETER GOODFELLOW
First Defendant
COMMISSIONER OF POLICE
Second Defendant
Hearing: 24 September 2024 Counsel:
Plaintiff in person
Lady D Chambers KC for the First Defendant
R W Jenson/ T T Taane for the Second DefendantJudgment:
26 September 2024
JUDGMENT OF ASSOCIATE JUDGE BRITTAIN
This judgment was delivered by me on 26 September 2024 at 4 pm.
Pursuant to Rule 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
Solicitors/Counsel:
Pollett Legal, Tauranga
Bankside Chambers, Auckland
BOWERMAN v GOODFELLOW [2024] NZHC 2790 [26 September 2024]
Introduction
[1] The plaintiff, Clinton Bowerman (Mr Bowerman), is a licensed private investigator. Between 2010 and 2013 he provided services to Elizabeth Black (Ms Black), during a relationship property dispute between Ms Black and her former husband, the first defendant, Peter Goodfellow (Mr Goodfellow).
[2] In this proceeding, Mr Bowerman alleges that Mr Goodfellow breached a duty of care in tort owed to Mr Bowerman in respect of events primarily occurring between 2010 and 2013.
[3] Further, Mr Bowerman alleges that he complained to the Police in respect of matters which occurred between 2010 and 2013 that he considered to be criminal offences by others. Mr Bowerman alleges that the Police failed to adequately investigate his complaints, in breach of a duty of care in tort that the Police owed to him and his client.
[4] Mr Goodfellow and the Commissioner of Police (the Commissioner) have applied to strike the proceeding out in its entirety, on the grounds that:
(a)the statement of claim discloses no reasonably arguable cause of action;
(b)in the case of the Commissioner, the Police owe no duty of care to the public generally in relation to the conduct of investigations; and
(c)any claim is now out of time.
[5] Mr Bowerman opposes strike-out, and the applications are determined in this judgment.
Strike out principles
[6] Pursuant to r 15.1(1) of the High Court Rules 2016, the Court may strike out all or part of a pleading if it:
(a)discloses no reasonably arguable cause of action; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the Court.
[7] The principles governing strike-out applications are summarised in the Court of Appeal decision in Attorney-General v Prince and Gardner:1
(a)A strike-out application is to proceed on the assumption that the facts pleaded in the statement of claim are true unless those pleaded facts are entirely speculative and lack any foundation.
(b)It is only where, on the facts alleged in the statement of claim, however broadly they are stated, no private law claim of the kind or kinds advanced can succeed that it is appropriate to strike out the proceedings at a preliminary stage.
(c)The threshold for strike-out is high. Before a proceeding may be struck out the causes of action must be so clearly untenable that they cannot possibly succeed.
(d)The jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material.
(e)The fact that an application to strike out raises difficult questions of law, and requires extensive argument, does not exclude the jurisdiction.
Mr Bowerman’s pleadings
[8] Mr Bowerman is self-represented. His statement of claim dated 25 January 2024 (the statement of claim) is 46 pages long. It pleads significant amounts of evidence and numerous propositions of law. These irregularities could be remedied,
1 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267.
and it is possible to discern the essential nature of the allegations that Mr Bowerman is making and the causes of action that he pleads.
[9] Many of the pleaded facts relate to wrongs that were allegedly suffered by Ms Black. These appear to include the entire third and fourth causes of action. Ms Black is not a plaintiff. As I explained to Mr Bowerman during the hearing, it is a fundamental tenet of tort law that a plaintiff can only sue for damages that the plaintiff has suffered; generally, a plaintiff cannot pursue damages suffered by another person. The allegations in the statement of claim that relate to wrongs allegedly suffered by Ms Black must be struck out.
[10] Mr Bowerman pleads that one of his financial losses arises because he was not paid for the services that he completed for Ms Black between 2010 and 2013. However, Mr Bowerman pleads that his contract of retainer was with Ms Black’s father, who is not a party to this proceeding. Mr Bowerman does not plead any basis for a legal right to recover his unpaid remuneration from Mr Goodfellow. That part of the claim must be struck out.
[11] On my reading of Mr Bowerman’s statement of claim in its entirety, the alleged events that involve him directly and which he seeks to link to a breach of legal duty by Mr Goodfellow are:
(a)the killing of Mr Bowerman’s dog by others in 2011; and
(b)intimidation of Mr Bowerman by gang members.
[12] Mr Bowerman does not expressly plead a factual basis for Mr Goodfellow’s alleged involvement in these matters. The pleading implies that Mr Goodfellow was part of a conspiracy.
[13]As against Mr Goodfellow, Mr Bowerman pleads that:
(a)Mr Goodfellow breached a duty of care in negligence owed to Mr Bowerman; and
(b)the killing of his dog amounted to a trespass.
[14] Mr Bowerman alleges that he made complaints to the Police between 2010 and 2013, and again in 2016 and 2018, including complaints in respect of the matters mentioned in [13] above. However, most of the complaints referenced in the pleading relate to crimes that Mr Bowerman believed were perpetrated against Ms Black between 2010 and 2013.
[15] There is one cause of action against the Police, which is for breach of a duty of care in negligence by failing to enforce the criminal law. This includes a failure to provide operational level training to police officers to ensure that investigations were carried out competently.
Did the Police owe Mr Bowerman a duty of care when investigating his complaints of crimes?
[16] Section 9 of the Policing Act 2008 prescribes the functions of the Police. Those functions include law enforcement. That is a codification of the common law principle that the Police owe a general duty to the public to enforce the criminal law.2 However, Police owe no duty of care to the public generally in relation to the conduct of investigations or suppression of crime,3 except in “exceptional cases” giving rise to a special relationship,4 or where there has been an assumption of responsibility.
[17] In Evers v Attorney-General, Chambers J adopted the law as stated in the United Kingdom authorities and struck out a claim in negligence by a motel owner against the Police for failing to properly investigate anti-social behaviour outside the motel.5 The Judge was satisfied that “there is powerful authority against such an extension of the ambit of negligence”. It is for the Police to decide how available
2 Hill v Chief Constable of West Yorkshire [1989] AC 53 (HL) at 59.
3 Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4, [2018] AC 736 at [96], citing Desmond v Chief Constable of Nottinghamshire Police [2011] EWCA Civ 3, [2011] PTSR 1369; and Hill v Chief Constable of West Yorkshire, above n Error! Bookmark not d efined., at [31].
4 Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495 at [6] per Nicholls LJ and [34] per Steyn LJ.
5 Evers v Attorney-General [2000] NZAR 372 (HC) at [24].
resources should be deployed, whether particular lines of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted.6
[18] In R v Ngan, the Supreme Court observed that Police common law duties are public law duties:7
They are directed to the protection and welfare of the public at large. They should not be confused with a private law duty, such as a duty of care, which may give rise to civil liability to an affected individual.
[19] Similarly, in Sathyan v Commissioner of Police, Clark J noted that there is a wide discretion as to the manner in which the duty of law enforcement owed to the public is discharged and that decisions about use of police resources are for the Commissioner alone.8 The Judge struck out the claim:9
No matter how the plaintiff approaches her objective the legal position hardly could be clearer. It is for the Commissioner to decide whether inquiries should be pursued and the court may not direct him in such a matter.
[20] Mr Bowerman’s claim of negligence by the Police is untenable as a matter of law and must be struck out.
Does Mr Bowerman have a reasonably arguable cause of action against Mr Goodfellow?
[21] Even if Mr Bowerman was able to establish the facts pleaded in his statement of claim, there is no basis for a claim of negligence by Mr Goodfellow. The type of legal wrong that Mr Bowerman asserts, based on primary acts of parties other than Mr Goodfellow, cannot be logically linked to an allegation of negligence by Mr Goodfellow.
[22] It is not the Court’s role to reformulate Mr Bowerman’s claim. However, the Court can exercise its discretion to allow a plaintiff to re-plead. It is possible that the
6 At [9] and [13]–[14], citing Hill v Chief Constable of West Yorkshire, above n Error! Bookmark n ot defined.; and R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [1999] 1 All ER 129 (HL).
7 Ngan v R [2007] NZSC 105, [2008] 2 NZLR 48 at [11].
8 Sathyan v Commissioner of Police [2015] NZHC 3138, [2016] NZAR 175 at [12].
9 At [28], citing R v Commissioner of Police of the Metropolis, ex parte Blackburn (No 1)
[1968] 2 QB 118 (EWCA) at 136.
type of facts alleged by Mr Bowerman could be re-cast as supporting other torts, such as an unlawful means conspiracy, involving assault, trespass to goods and causing loss by unlawful means. That raises the issue of whether such tortious claims are now out of time under the Limitation Act 2010 (the Act).
Limitation
[23] Mr Bowerman’s claims are “money claims”, and the primary limitation period under the Act is six years from the date of the act or omission on which the claim is based.10 The primary limitation period is extended if Mr Bowerman had late knowledge of a claim, including where late knowledge arises from fraud.11 If late knowledge can be established then the limitation period is three years from when a plaintiff gains the knowledge prescribed in s 14(1) of the Act.
[24] To the extent any act or omission on which Mr Bowerman’s tort claims are based occurred before 1 January 2011,12 the Limitation Act 1950 applies. The limitation period is six years from the date on which the cause of action accrued.13 Extensions to that period are possible in the case of disability, mistake or fraud.14
[25] During his oral submissions, Mr Bowerman accepted that the events that he relies on to found his claims against Mr Goodfellow and the Police primarily arose between 2010 and 2013. When I asked Mr Bowerman whether he could point to any more recent events which might found a claim, he submitted that in about 2018 he considered that his personal safety was at risk, which resulted in a complaint by him to the Police at Waihi. After further questions from the bench, Mr Bowerman confirmed that this was his complaint to the Police that led to the revocation of his firearms licence.
[26] Mr Bowerman successfully appealed against the revocation of his firearms licence. The District Court reinstated Mr Bowerman’s firearms licence by a judgment
10 Limitation Act 2010, ss 11 and 12.
11 Sections 14 and 48.
12 Limitation Act 2010, s 59.
13 Limitation Act 1950, s 4.
14 Section 28.
of Judge P G Mabey QC dated 8 August 2019.15 The judgment records that Mr Bowerman’s firearms licence had been revoked by the Police on 13 October 2017. Therefore, the threat to Mr Bowerman’s personal safety and his resulting complaint to the Police must have been before 13 October 2017. Mr Bowerman was unable to point to any other later event that might found his claims in tort.
[27] During his oral submissions, I questioned Mr Bowerman regarding any facts that he could allege to support a late knowledge extension of the limitation period. Mr Bowerman was unable to articulate any such facts.
[28] The District Court’s decision reinstating Mr Bowerman’s firearms licence was the catalyst for him to reconsider the events from 2010 to 2017. No new matters had come to Mr Bowerman’s attention. Rather, he reassessed his ability to bring claims in the High Court against Mr Goodfellow and the Police in respect of events that he had known about since the events occurred. There is no basis for an extension of the primary limitation period based on late knowledge or fraud.
[29] At the latest, any cause of action in tort available to Mr Bowerman accrued during 2017. Mr Bowerman did not commence this claim until 25 January 2024, more than six years after any cause of action available to him accrued. All of Mr Bowerman’s potential claims arising out of the facts that he has pleaded are out of time.
[30] Given my finding on limitation, it is unnecessary to delve any further into the issue of whether it is possible for Mr Bowerman to re-cast his claims against Mr Goodfellow as tortious claims other than negligence.
Conclusion
[31] Mr Bowerman’s statement of claim discloses no reasonably arguable cause of action. The pleading is not capable of amendment to alter that position.
15 Bowerman v The Commissioner of New Zealand Police [2019] NZDC 15257.
Orders
[32]The proceeding is struck out in its entirety.
[33] The defendants may file and serve memoranda regarding costs, of no more than three pages, by 11 October 2024.
[34] The plaintiff may file and serve a memorandum regarding costs, of no more than three pages, by 25 October 2024.
[35]I will then determine costs on the papers.
Associate Judge Brittain
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