Duncan v Royal New Zealand Society for the Prevention of Cruelty to Animals Incorporated
[2024] NZHC 1818
•5 July 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2024-404-0017
[2024] NZHC 1818
UNDER The Judicial Review Procedure Act 2016 BETWEEN
LENA NEDELCHEVA DUNCAN
Applicant
AND
THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS INCORPORATED
First Respondent
THE DISTRICT COURT
Second Respondent
Hearing: 13 June 2024 Appearances:
The applicant in person
N H Brown for the first respondent
Judgment:
5 July 2024
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 5 July 2024 at 10.00 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
DUNCAN v THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS INCORPORATED [2024] NZHC 1818 [5 July 2024]
[1] The applicant, Ms Duncan, brought this proceeding seeking judicial review of decisions of the first respondent, the Royal New Zealand Society for the Prevention of Cruelty to Animals Inc (the SPCA), and the second respondent, the District Court. The impugned decisions relate to a criminal proceeding prosecuted by the SPCA against Ms Duncan in the District Court.
[2]This judgment deals with an application by the SPCA to strike out those parts
of Ms Duncan’s statement of claim that are brought against the SPCA.
Background
[3] In August 2022, Phillipa Lamb and Cody Taylor, both animal welfare inspectors then employed by the SPCA, became concerned at the condition of some animals that were believed to be on two properties. One property was at 2046 Pohokura Road, Te Haroto, Napier. The other was at 163 Tracey Road, Kaitaia.
[4] On 24 August 2022, Ms Lamb obtained from the Napier District Court a search warrant for the Napier property. On the same day, Mr Taylor obtained from the Kaitaia District Court a search warrant for the Kaitaia property. Both search warrants were executed the next day, 25 August 2022.
[5] Ms Lamb executed the search warrant at the Napier property with some colleagues and a veterinarian. She uplifted 17 horses and one dog from that property, owing to concerns for their welfare.
[6] Those horses and the dog belong (or belonged) to Ms Duncan, either personally or in her capacity as trustee of a charitable trust.
[7] On 16 September 2022, Ms Duncan filed a civil claim against the SPCA in the Whangarei District Court. Among other things, she sought the return of the horses.
[8] On 13 June 2023, the SPCA filed charges against Ms Duncan in the Whangarei District Court alleging multiple breaches of the Animal Welfare Act 1999.
[9] Meanwhile, the SPCA had filed a statement of defence to Ms Duncan’s District Court civil claim and had applied for summary judgment on the ground that none of the causes of action in Ms Duncan’s claim could succeed. On 15 November 2023, Judge P R Rzepecky granted summary judgment to the SPCA.1 In the course of his judgment, the Judge found that:2
(a)The SPCA lawfully obtained the search warrant to search the Napier property.
(b)The SPCA properly executed that search warrant.
(c)All 17 horses on the Napier property were properly seized pursuant to the powers conferred by the search warrant.
(d)The horses remain in the management and welfare of the SPCA pending the outcome of the charges which the SPCA subsequently laid against Ms Duncan.
[10] Following the grant of summary judgment, Ms Duncan wrote to the SPCA on 26 November 2023 demanding the return of the horses. The SPCA responded on 27 November 2023, declining to return the horses and referring to Judge Rzepecky’s judgment.
[11] On 13 December 2023, Ms Duncan commenced this judicial review proceeding.
Ms Duncan’s claim for judicial review
[12]Ms Duncan’s initial statement of claim was dated 13 December 2023. She
alleged that:
1 Duncan v Royal New Zealand Society for the Prevention of Cruelty to Animals [2023] NZDC 24723.
2 At [32].
(a)Both search warrants were illegal, owing to various errors she alleged were made in the way they were applied for and issued.
(b)As a consequence of the search warrants the SPCA searched the two properties and seized the horses and dog. The search and seizure were in breach of her human right not to be subject to unreasonable search and seizure and/or without colour of authority under the law.
(c)The charges filed by the SPCA were contrary to law as they were a private prosecution and the District Court Registrar had failed to give reasons for accepting the charges.
(d)Even assuming “arguendo” that the SPCA had otherwise lawfully seized the animals, its 27 November 2023 decision refusing to return them to Ms Duncan was unreasonable “in administrative law terms”.
[13]Ms Duncan sought the following relief:
(a)A declaration that the SPCA contravened Ms Duncan’s right to be free from unreasonable search and seizure under s 21 of the New Zealand Bill of Rights Act 1990.
(b)A declaration that the District Court contravened Ms Duncan’s right to natural justice.
(c)An order compelling the SPCA to return the horses to Ms Duncan.3
(d)An order enjoining the SPCA from conducting any investigations, making any court applications and exercising any powers.
(e)An order against the District Court requiring it to reconsider its decision to accept the SPCA’s charging documents.
3 The dog that was seized subsequently died.
[14] The SPCA filed a statement of defence on 9 February 2024. At the same time, it applied for an order striking out those parts of Ms Duncan’s statement of claim brought against the SPCA.
[15]The District Court filed an appearance abiding and reserving rights.
[16] Ms Duncan filed an amended statement of claim on 27 February 2024. This did not make any changes of substance to her claims against the SPCA. The amended claim add further claims against the District Court. Those further claims challenged the correctness of decisions that the District Court had made in February 2024 in the course of the SPCA’s criminal proceeding against Ms Duncan.
SPCA’s application to strike-out
[17]In its application, the SPCA says the parts of Ms Duncan’s claim brought
against the SPCA should be struck out because:
(a)The claim that the refusal to return the animals to Ms Duncan was unreasonable in administrative law terms is not a reasonably arguable cause of action, as Ms Duncan is a defendant in criminal proceedings with respect to those animals and they are lawfully held under the Animal Welfare Act 1999.
(b)The claim that the search warrants are illegal is not a reasonably arguable cause of action, because:
(i)The validity of the search warrants is not amenable to judicial review, as any challenge to their validity should be brought by Ms Duncan in the criminal proceedings.
(ii)The alleged defects with the search warrants, even if proven, would not invalidate them.
(iii)Even if the alleged defects were held to be errors, they would be subject to remediation under s 204 of the Summary Proceedings Act 1957.
(c)The statement of claim is an abuse of process as it challenges findings already made in the District Court which Ms Duncan did not appeal.
[18] Ms Duncan opposes the application. She says the issues the SPCA raises are factual disputes that cannot be resolved on a strike-out application. She says the SPCA cannot raise res judicata or issue estoppel by reference to Judge Rzepecky’s judgment, as the judgment is not properly in evidence and in any event Judge Rzepecky did not have jurisdiction over the judicial review claims that are the subject-matter of this proceeding.
[19] The SPCA’s written submissions filed before the hearing invited the Court to strike out the entirety of Ms Duncan’s claim, including those parts brought against the District Court. That went beyond the application that the SPCA had filed, which sought strike out only of the claims brought against the SPCA. To the extent the submissions went beyond the application, I was not prepared to consider them at the hearing, and I do not deal with them in this judgment.
The court’s power to strike out all or part of a pleading
[20] Rule 15.1 of the High Court Rules 2016 confers power on the court to strike out all or part of a pleading in four circumstances. Two of those circumstances are put in issue by the SPCA’s application. These are that the pleading:
(a)discloses no reasonably arguable cause of action; or
(b)is otherwise an abuse of the process of the court.
Should those parts of Ms Duncan’s claim brought against the SPCA be struck out?
[21] It will be convenient to deal with this by reference to the particular relief that Ms Duncan claims against the SPCA.
Claim for declaration that the SPCA breached Ms Duncan’s right to be free from unreasonable search and seizure
[22] This claim is based on Ms Duncan’s allegations that the two search warrants were illegal (because of various alleged defects in the applications for the search warrants or in the warrants themselves) and that consequently the searches were unlawful.
[23] The validity of the search warrant for the Napier property and the lawfulness of the search of that property were put in issue by Ms Duncan in her civil proceeding against the SPCA in the Whangarei District Court. In that proceeding, Judge Rzepecky held that the SPCA lawfully obtained the search warrant and properly executed it at the Napier property on 25 August 2023.4
[24] Ms Duncan objected to the admissibility of Judge Rzepecky’s judgment, relying on s 50(1) of the Evidence Act 2006. This provides that evidence of a judgment in a civil proceeding is not admissible in another civil proceeding to prove the existence of a fact that was in issue in the earlier proceeding. I reject Ms Duncan’s objection. Section 50(3)(b) clarifies that s 50 does not affect the law relating to res judicata or issue estoppel. Judge Rzepecky’s judgment was delivered in a proceeding between the same parties as this proceeding and determined, on the merits, whether the Napier warrant was valid and whether it was lawfully executed. The judgment therefore estops Ms Duncan from re-litigating those issues against the SPCA.5 In other words, the judgment creates an issue estoppel on those issues.
[25] Attempting to relitigate issues in the face of an issue estoppel is an abuse of process.6 On this ground, Ms Duncan’s claim for a declaration against the SPCA in respect of the search warrant for the Napier property is an abuse of process, and I strike it out.
4 Duncan v Royal New Zealand Society for the Prevention of Cruelty to Animals [2023] NZDC 24723 at [32].
5 See the requirements for an issue estoppel in Talyancich v Index Developments Ltd [1992] 3 NZLR 28 (CA) at 37.
6 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541; and Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC) at 586.
[26] Judge Rzepecky’s judgment did not deal with the search warrant for the Kaitaia property. No issue estoppel arises in respect of that search warrant. The SPCA says, however, that Ms Duncan’s claim in respect of the Kaitaia search warrant should be struck out for another reason. This is that Ms Duncan can ventilate her concerns about the validity of the warrant and its execution by testing, in an application under s 79 of the Criminal Procedure Act 2011 in the criminal proceeding, the admissibility of any evidence obtained from the warrant.
[27]The general principle was stated by the Court of Appeal in Gill v Attorney-
General:7
[19] … Consideration of the warrant and any evidence obtained pursuant to it could more appropriately have been tested pursuant to an application under s 344A of the Crimes Act. Issues of relevance, admissibility generally and exclusion of evidence (taking into account s 30 of the Evidence Act 2006) could therefore have been conveniently ruled on. Judicial review will rarely be appropriate where there is a readily available alternative remedy, and in particular the courts have held that they will only intervene in matters which involve the exercise of a prosecutorial discretion or investigative power in exceptional cases.
[20] We have not overlooked the possibility that grounds may exist in appropriate cases to challenge a search warrant by judicial review proceedings. This Court has previously entertained such challenges by way of judicial review where the defect in the search warrant is of a fundamental nature, where the matter could be said to go to the jurisdiction of the issuing officer or where some other ground of true unlawfulness (such as want of jurisdiction) is established. …
[28] The defects in the search warrant alleged by Ms Duncan do not come close to being the sorts of circumstances contemplated by the Court of Appeal in the second paragraph in that passage. Ms Duncan alleges, for example:
(a)That the application for the search warrant stated the address as “163 Tracey Road, Kaitaia, RD2, Northland, 0482”, whereas she says 163 Tracey Road is in Peria rather than Kaitaia. However, Peris has the postal code 0482 and is just outside Kaitaia.
7 Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433.
(b)That the application for the search warrant stated the incorrect GPS co- ordinates for the address. However, there is no suggestion that the warrant was not executed at 163 Tracey Road.
(c)That the search warrant was issued to Mr Taylor “of The Royal New Zealand SPCA”. Ms Duncan says there is no such legal entity. Her point is merely that the name of the SPCA was abbreviated.
[29] These, and the other defects alleged by Ms Duncan, are trivialities. Ms Duncan is entitled to advance them, but she is able to do so in the criminal proceeding that has been brought against her in the District Court.
[30] Ms Duncan accepted that she could raise issues of admissibility and exclusion of evidence in the criminal proceeding, and accepted the general principle stated in Gill. But she submitted that in this proceeding she was not seeking any relief relating to admissibility or exclusion of evidence. She said she was, rather, seeking declarations and extraordinary writs that could not be obtained in the District Court.
[31] I do not accept Ms Duncan’s submission. In this proceeding Ms Duncan does seek relief that would have the effect of excluding evidence in the criminal proceeding. She seeks an order enjoining the SPCA from conducting any investigations, making any court applications and exercising any powers. If granted, the SPCA would not be able to adduce any evidence in the criminal proceeding against her.
[32] In any event, Ms Duncan’s submission misses the point of the principle in Gill. It will usually, if not always, be the case that an applicant for judicial review will be seeking a remedy not available in the District Court. The reason that judicial review is nonetheless not usually appropriate is that “the most suitable remedy for any errors occurring in the process of obtaining and exercising a search warrant is the exclusion of wrongly seized evidence”8 and any such exclusion will occur in the context of the criminal proceeding.
8 Tauber v Commissioner of Inland Revenue [2012] NZCA 411, [2012] 3 NZLR 549 at [20].
[33] Here, Ms Duncan’s challenges to the search warrant are so self-evidently trivial that there is no prospect of judicial review being appropriate. She is able to pursue those challenges in the criminal proceeding, just as she has already pursued other pre- trial challenges in that proceeding. If she still wishes to pursue them, that is where she should do so. I consider the position is so stark that her judicial review claim with respect to the Kaitaia search warrant is an abuse of process, and I strike it out.
Claim for order compelling the SPCA to return the horses to Ms Duncan
[34] In her earlier civil proceeding in the District Court, Ms Duncan claimed the return of the horses from the SPCA.9 Judge Rzepecky entered summary judgment for the SPCA on that claim.10
[35] In the civil proceeding, the basis of Ms Duncan’s claim for the return of the horses was her allegation that the search warrant for the Napier property and its execution were unlawful. Ms Duncan makes the same allegation in this proceeding as a basis for her claim for the return of the horses. I have already held that Ms Duncan is estopped from re-litigating in this proceeding the issues whether the Napier warrant was valid and whether it was lawfully executed. She therefore cannot rely on those matters to support her claim for the return of the horses.
[36] In this proceeding, Ms Duncan relies on another matter as a basis for her claim for the return of the horses. This is her allegation that the SPCA’s decision, on 27 November 2023, to refuse to return the horses was unreasonable in an administrative law sense. The SPCA’s decision was made in response to a request by Ms Duncan on 26 November 2023 that the SPCA return the horses.
[37] Ms Duncan could not have made this precise allegation before Judge Rzepecky (as her request of the SPCA was made 11 days after his decision). But she could have made the same allegation in substance. It was implicit in the SPCA’s summary judgment application that it was refusing to return the horses, and Judge Rzepecky
9 Duncan v Royal New Zealand Society for the Prevention of Cruelty to Animals [2023] NZDC 24723 at [1], [27], [34] and [36].
10 At [36] and [42].
recorded that the SPCA had earlier explicitly told Ms Duncan that it refused to return the horses.
[38] Although Ms Duncan does not face an issue estoppel on this issue, it is an abuse of process to bring a claim in a later proceeding if the claim could and should have been raised in the earlier proceeding if it was to be raised at all.11 This is because there should be finality in litigation and a defendant should not be oppressed by successive suits. Here, I consider that Ms Duncan should have raised this claim in the earlier civil proceeding. It reflected precisely what she was seeking in that proceeding, and Ms Duncan knew the SPCA was already refusing to return the horses.
[39] I therefore find that Ms Duncan’s claim for the return of the horses, to the extent that it relies on the allegation that the SPCA’s refusal on 27 November 2023 to return the horses was unreasonable, is an abuse of process. The abuse, I add, is plain from the manner in which Ms Duncan engineered this part of her claim. Eleven days after Judge Rzepecky gave summary judgment to the SPCA on her claim for the return of the horses, Ms Duncan wrote to the SPCA asking for the horses to be returned to her. Her request blithely ignored the Judge’s decision and therefore did not engage with the reasons the Judge had given for his finding that the SPCA did not have to return the horses. Inevitably, the SPCA refused the request (and referred to the Judge’s decision). Ms Duncan’s claim in this proceeding that the SPCA’s refusal was judicially reviewable was made little more than two weeks later.
[40]I therefore strike out Ms Duncan’s claim for an order compelling the SPCA
to return the horses to Ms Duncan.
Claim for an order enjoining the SPCA from conducting any investigations, making any court applications and receiving or exercising any powers
[41] Although Ms Duncan’s pleading does not say so explicitly, this claim must relate only to investigations, applications and powers relating to the search warrants referred to in her statement of claim. For the reasons set out earlier:
11 Johnson v Gore Wood & Co [2002] 2 AC 1 (HL).
(a)To the extent that the claim relies on the alleged unlawfulness of the Napier search warrant and its execution, Ms Duncan is estopped from re-litigating those issues against the SPCA.
(b)To the extent that the claim relies on the alleged unlawfulness of the Kaitaia search warrant and its execution, her judicial review claim is an abuse of process.
[42]I therefore strike out this claim.
Conclusion
[43]I conclude that I should strike out all of Ms Duncan’s claims against the SPCA.
Costs
[44] The SPCA has succeeded on its application. I have struck out all of the claims brought against the SPCA. The SPCA is therefore entitled to costs and disbursements for both its application and the proceeding.
[45] If the parties cannot agree the quantum of costs and disbursements by 31 July 2024, memoranda may be filed and served: by the SPCA by 5 August 2024 and by Ms Duncan by 9 August 2024. Each memorandum is to be no more than two pages, excluding relevant annexures or schedules.
Result
[46] I strike out all parts of Ms Duncan’s amended statement of claim brought against the SPCA.
[47] Ms Duncan is to pay the SPCA its costs and disbursements of this application and of the proceeding. If quantum is not agreed by 31 July 2024, memoranda may be filed and served as set out in [45].
Campbell J
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