Dyer v Kitteridge
[2024] NZHC 342
•28 February 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-397
[2024] NZHC 342
BETWEEN KARL GEORGE DYER
Plaintiff
AND
REBECCA KITTERIDGE
First Defendant
HON ANDREW LITTLE
Second DefendantHON JACINDA ARDERN
Third DefendantHON DAVID PARKER
Fourth Defendant
Hearing: 14 February 2024 Appearances:
No appearance by or for Plaintiff S Anderson for Defendants
Judgment:
28 February 2024
JUDGMENT OF ASSOCIATE JUDGE SKELTON
[1] Before me is an application by the defendants for strike out of the plaintiff’s statement of claim dated 10 July 2023. The defendants say that the plaintiff’s claim discloses no reasonably arguable cause of action and the pleaded allegations are without foundation.
[2] The application is opposed by the plaintiff who has filed a notice of opposition and submissions. However, the plaintiff advised the Court that he would not be appearing at the hearing because he believes that he has made “a fatal error in not
DYER v KITTERIDGE [2024] NZHC 342 [28 February 2024]
submitting the correct bundle of documents and synopsis of arguments” and “that this will seriously curtail my chances of having the strike out go in my favour”. In the circumstances I considered it was appropriate to proceed to hear and determine the application.
Background
[3] While the claim names four defendants in person, the claim is essentially against the New Zealand Security Intelligence Service (NZSIS).
[4] On 21 July 2020, the plaintiff laid a complaint about the NZSIS with the Office of the Inspector-General. The Inspector-General is an independent statutory officer appointed under the Intelligence and Security Act 2017.1 The Inspector-General is not part of the intelligence and security agencies and provides independent oversight of the activities of the NZSIS.2 The Inspector-General’s functions include investigating complaints about the NZSIS.3 The Inspector-General has statutory powers to investigate the NZSIS including the power to access any information held by the NZSIS (including information subject to an obligation to secrecy) and the power to enter any premises or place occupied or used by the NZSIS.4
[5] The complaint to the Inspector-General alleged that the NZSIS had exercised surveillance powers illegally. The Inspector-General investigated the plaintiff’s complaint. That investigation included an independent search of the NZSIS computer system. On 14 August 2020, the Inspector-General wrote to the plaintiff outlining his findings. The Inspector-General found that the plaintiff was not and never had been the subject of surveillance or other activities by the NZSIS.
[6] Despite the Inspector-General’s findings the plaintiff has bought this proceeding alleging various unlawful acts against him. The claim includes the allegation that the first defendant deliberately destroyed or concealed information to hide it from the Inspector-General.
1 See Intelligence and Security Act 2017 [Act], pt 6.
2 Act, s 156.
3 Act, s 158(1)(e).
4 Act, ss 179, 180 and 184.
[7] On 5 September 2023, the defendants applied to strike out the plaintiff’s claim on the basis that it discloses no reasonable cause of action. The application for strike out is supported by an affidavit from Andrew Peter Hampton, Director-General of Security and Chief Executive of the NZSIS. On 17 September 2023, the plaintiff filed a notice of opposition to the strike out application. The plaintiff has also filed submissions in support of the notice of opposition but has not filed any affidavit evidence.
Strike out principles
[8] With regard to the defendants’ applications for strike out, r 15.1 of the High Court Rules 2016 relevantly provides that:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
…
[9] McGechan on Procedure summarises the established criteria for striking out on the basis of no reasonably arguable cause of action as follows:5
The established criteria for striking out was summarised by the Court of Appeal in
A-G v Prince [1998] 1 NZLR 262, (1997) 16 FRNZ 258, [1998] NZFLR 145 (CA) at267, and endorsed by the Supreme Court in Couch v A-G [2008] NZSC 45 at [33], per Elias CJ and Anderson J:
(a)Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.
(b)The cause of action or defence must be clearly untenable. In Couch Elias CJ and Anderson J, at [33], said: “It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed.”
5 Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR15.1.02].
(c)The jurisdiction is to be exercised sparingly, and only in clear cases. This reflects the Court’s reluctance to terminate a claim or defence short of trial.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.
(e)The court should be particularly slow to strike out a claim in any developing area of law…
[10]In Marshall Futures Ltd v Marshall, the Court held that:6
… the Court should only strike out a statement of claim in a clear and obvious case and in circumstances where there was no reasonable prospect of the Plaintiff showing a viable cause of action by appropriate amendment.
…
… the Court must be satisfied that it has the requisite materials and the necessary assistance from the parties to reach a definite and certain conclusion that the claim cannot succeed before it should be struck out.
[11] With regard to evidence on strike out applications, the Court of Appeal gave this outline in Attorney-General v McVeagh:7
The Court is entitled to receive affidavit evidence on a striking out application, and will do so in a proper case. It will not attempt to resolve genuinely disputed issues of fact and therefore will generally limit evidence to that which is undisputed. Normally it will not consider evidence inconsistent with the pleading, for a striking out application is dealt with on the footing that the pleaded facts can be proved; … . But there may be a case where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further.
Statement of claim
[12]The statement of claim consists of three causes of action.
[13] The first cause of action alleges that the NZSIS exercised surveillance powers without a valid warrant under the Intelligence and Security Act 2017 or beyond the confines of the Terrorism Suppression Act 2002.
6 Marshall Futures Ltd v Marshall [1992] 1 NZLR 316 (HC) at 322–323.
7 Attorney-General v McVeagh [1995] 1 NZLR 588 (CA) at 566.
[14] The second cause of action alleges that the Director-General of the NZSIS hindered the Inspector-General’s investigation by destroying or concealing information to hide any evidence of illegal activity before the Inspector-General commenced his investigation.
[15] The third cause of action alleges breaches of the New Zealand Bill of Rights Act 1990 and Terrorism Suppression Act 2002.
[16] The plaintiff seeks general damages of $3 million for ongoing emotional trauma and loss of quality of life and special damages in the sum of $25,000.
[17] Some aspects of the claim are difficult to interpret and understand. However, it is apparent that the claim alleges:
(a)the NZSIS undertook surveillance of the plaintiff, including searching his hotel and undertaking other activities, without the necessary warrant or other lawful authority;
(b)the NZSIS tampered with the plaintiff’s food supply with prohibited substances, which caused both physical and mental health complaints;
(c)the NZSIS artificially elevated the temperature of the plaintiff’s hotel room while he was staying in a room with no opening windows;
(d)the NZSIS prevented the plaintiff’s “access to emergency service calls” on several occasions;
(e)the NZSIS brutalised the plaintiff for ten months;
(f)the NZSIS had the plaintiff “beaten, robbed and drugged”;
(g)the first defendant, “deliberately and with pre-meditated intent, deleted, withheld, destroyed or concealed information to hide any evidence of illegal activity from the Inspector-General before he commenced his investigation”. This is also alleged to be “corruption”.
Issues
[18] In my view having considered the background, submissions of the parties and legal principles, the issues to be determined are:
(a)whether the plaintiff’s pleaded allegations concerning the involvement of the NZSIS are entirely speculative and without foundation;
(b)whether there is a proper basis for the allegations of deliberate destruction and concealment of information by the first defendant and “corruption”.
Whether the allegations concerning the NZSIS are entirely speculative and without foundation?
[19] While a strike out application normally proceeds on the assumption that the pleaded facts are true, the Court is not required to accept the correctness of factual allegations obviously put forward without any foundation.8
[20] Mr Anderson, for the defendants, referred to the approach taken by Whata J in Burchell v The Official Assignee.9 In that case, the Court accepted affidavit evidence which established that allegations of deceit levelled against the Inland Revenue Department were without foundation and should be struck out. Whata J stated: 10
Third, Mr Burchell has simply provided no information to support the claim that the original assessments were false or included deceitful amounts. By contrast, the evidence produced by the applicants shows that a transparent process was followed, including notification to Mr Burchell of the relevant income tax assessments. I observe that while generally the Court in considering a strike-out application will limit evidence to that which is undisputed, where an essentially factual allegations is so demonstrably contrary to indisputable fact the Court may consider contrary affidavit evidence and look beyond bare statements to determine whether particular assertions are capable of belief.11 I am willing to consider the affidavit evidence produced by the applicants on this basis.
8 Collier v Panckhurst CA 136/97, 6 September 1997 at [19].
9 Burchell v The Official Assignee [2017] NZHC 1508.
10 At [17].
11 ` Pharmacy Care Systems Ltd v Attorney-General (2001) 15 PRNZ 465 (CA) at 472.
[21] Mr Anderson submitted that a similar approach was taken in Siemer v Stiassny.12 In that case, the plaintiff alleged the Solicitor-General had engaged in misfeasance in relation to a search warrant. The Court accepted the defendant’s submission that the factual matters pleaded had no foundation and therefore the cause of action had no prospect of success. The cause of action was struck out accordingly. The Court found that:13
There are some allegations Mr Siemer levels against the Solicitor-General that cannot be categorised as relating to the conduct of now determined legal proceedings. In relation to the alleged misfeasance by the Solicitor-General in respect of the search warrant, Mr Siemer has set out in affidavit form the basis for his allegations. The affidavit is so insubstantial that it is clear that this is a case where Mr Siemer should not have the benefit of the assumption normally applying in such application - that is, that the factual assertions are capable of proof. … I accept the applicant’s submission that these allegations have no foundation. A misfeasance cause of action has no prospect of success.
[22] The plaintiff’s claim alleges that various events occurred and attributes responsibility for those events to the NZSIS. The events included tampering with drinks in the plaintiff’s refrigerator, involvement in eviction of the plaintiff from his hotel and turning up the plaintiff’s air conditioning to its highest level in a room that had no opening windows.
[23] The plaintiff has put forward limited material either initially or in response to the current application, to provide some foundation for his pleaded allegations. He filed a list of initial disclosure documents with his statement of claim, and has also filed screenshots, photographs and video clips with the Court. It appears that some of the screen shots, photographs and video clips may be documents referred to in the list of initial disclosure. Mr Anderson advised that none of the initial disclosure documents have been served on the defendants.
[24] In his submissions, the plaintiff refers to video evidence which he says has been provided to the Court with his initial disclosure which allegedly shows an NZSIS officer at his hotel, who evicted the plaintiff with no reasonable grounds or cause.
12 Siemer v Stiassny HC Auckland CIV-2008-404-6822, 30 November 2009.
13 At [21].
[25] The eviction has already been the subject of a Tenancy Tribunal proceeding. The plaintiff’s contention is that the eviction was engineered by the NZSIS, rather than the Liberty Hotel.
[26] There is a video clip filed with the Court which appears to record a police officer requiring the plaintiff to leave his hotel room at the request of the hotel reception. However, even if that is what the video clip shows, it does not provide any foundation for the allegation that the person involved in evicting the plaintiff was an NZSIS officer.
[27] In this regard, the plaintiff has filed with his submissions a report from a handwriting and document examination expert, Mike Maran. The report is not provided as an affidavit. The report examines what is alleged to be the printed signature of the person the plaintiff says is the NZSIS officer who evicted him from his hotel. It is unclear where the printed signature comes from or how it was obtained. The report states that it “comes with severe limitations” because there is no reference signature for comparison purposes. The report finds that there are some aspects of the signature that indicate some “non-genuine characteristics of the printed name”. Even putting aside the report’s “severe limitations”, this finding does not provide any foundation for the plaintiff’s allegation that the person was an NZSIS officer.
[28] The plaintiff also submits that he has witnesses who were working at the hotel and were aware of the NZSIS activity at the hotel, including providing the swipe card to the NZSIS which was used to access the plaintiff’s room. The plaintiff says that the Inspector-General did not interview any of these witnesses. However, the plaintiff has not put forward any affidavit evidence from any of these witnesses in opposition to the application for strike out.
[29] In his affidavit in support of the application for strike out, Mr Hampton, the Director-General of Security and Chief Executive of NZSIS, refers to the role of the Inspector-General of Intelligence and Security generally, and the complaint made by the plaintiff to the Inspector-General. He refers to the correspondence between the plaintiff and the Inspector-General and attaches the Inspector-General’s letter dated
14 August 2020 to the plaintiff recording the outcome of the complaint.14 The Inspector-General states in the letter:
I have enquired with the Director-General of the NZSIS about the allegations in your complaint. The Director-General has advised me that you are not, and have never been, under surveillance, warranted or otherwise and that the incidents you describe in your complaint are not related to NZSIS activities.
My office has independently accessed NZSIS computer systems and has carried out searches relevant to your complaint. I am satisfied, following those searches, that you are not, and have not been, the subject of surveillance or other activities by the NZSIS.
[30] Overall, taking into account the absence of any affidavit evidence and limited supporting material put forward by the plaintiff, and the contrary affidavit evidence put forward by the defendants, I am satisfied that the plaintiff’s allegations are entirely speculative and without foundation.
Is there a proper basis for the allegations of deliberate destruction and concealment of information by the first defendant and “corruption”?
[31] Mr Anderson submits that allegations such as have been made against the first defendant should not be made unless there is a proper basis for doing so and the allegations are pleaded with adequate particulars. He submits that these obligations apply equally to litigants who do not have legal representation.15 Mr Anderson refers to the following passage from Schmidt v Pepper New Zealand (Custodians) Ltd:16
Allegations of fraud or dishonesty are very serious. They must be pleaded with care and particularity. As the authors of Bullen & Leake & Jacobs Precedents of Pleadings17 emphasise, counsel must not draft any originating process or pleading containing allegation of fraud unless they have reasonably credible material which, as it stands, establishes a prima facie case of fraud — that is, material of such a character which would lead to the conclusion that serious allegations could properly be based upon it. Fraud cannot be left to be inferred from the facts — fraudulent conduct must be distinctly alleged and as distinctly proved.18 General allegations, however strong the words may appear to be, are insufficient to amount to a proper allegation of fraud.19
14 The Inspector-General is not a compellable witness pursuant to s 183 of the Act, but has approved the release of certain material relating to the plaintiff’s complaint under s 191(2)(a) and (c).
15 Peter Gerard Stockman v The Health and Disability Commissioner [2020] NZCA 588 at [79]– [80]; Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA 565 at [15]–[16].
16 Schmidt v Pepper New Zealand (Custodians) Ltd, at [15].
17 Bullen & Leake & Jacobs Precedents of Pleadings (16th ed, Sweet & Maxwell, London, 2008) vol 2 at [49-02].
18 Davy v Garrett (1878) 7 Ch D 473 (CA) at 489.
19 Wallingford v Mutual Society (1880) 5 App Cas 685 (HL) at 697.
[32] In the present case, the plaintiff’s allegation of deliberate destruction and concealment of information and corruption to hide evidence of illegal activity by the NZSIS from the Inspector-General must be based on reasonably credible material which establishes a prima facie case.
[33] The plaintiff has not put forward any such material, either as initial disclosure or by way of affidavit evidence in opposition to the current application, that provides a foundation for these allegations. The plaintiff’s main contention appears to be that because a copy of his complaint was provided to the Director-General prior to the Inspector-General searching the NZSIS computer system, the Director-General had an opportunity to destroy evidence, and did so. However, there is simply no basis for this contention. Moreover, the evidence before the Court is that Inspector-General advised the plaintiff that in order to properly investigate his complaint it would assist if a copy of the complaint could be forwarded to the Director-General of the NZSIS to allow the NZSIS to respond. In correspondence with the plaintiff, the Inspector-General directly asked whether the plaintiff consented to that course of action. The plaintiff advised that he consented to the complaint being provided to the Director-General.
[34] The plaintiff also states in his notice of opposition that “given the right to subpoena information, compel witnesses and other business entities, who have explicit knowledge of the activities by the NZSIS to attend a trial my claim will, on the balance of probabilities, be found to be the true version of events”. However, the plaintiff has not sought to put any material before the Court in opposition to the application for strike out, for example, by applying for an order under r 9.75 of the High Court Rules 2016 that a person having information relevant to an interlocutory application who refuses to make an affidavit appear before the Court to be examined on oath. The plaintiff cannot avoid strike out by asserting that evidence supporting his serious allegations will come later at trial.20
[35] I am satisfied that the pleaded allegations of deliberate destruction and concealment of information and corruption are not based on reasonably credible
20 Peter Gerard Stockman v The Health and Disability Commissioner, above n 15, at [82].
material which establishes a prima facie case, and disclose no reasonably arguable cause of action.
Conclusion
[36] I am satisfied that all three causes of action in the proceeding should be struck out because they disclose no reasonably arguable cause of action. The pleaded allegations are speculative and without proper foundation. The causes of action are untenable and cannot succeed. These fundamental issues with the claim cannot be cured by amendment.
Other issues with the plaintiff’s pleading
[37] Mr Anderson also raises other issues with the plaintiff’s pleading including that the plaintiff has not named the correct defendant (the Attorney-General), and that the pleading is deficient because it does not provide:
(a)sufficient particulars for each allegation;
(b)particulars of the facts relied on in alleging a certain state of mind;
(c)the relief or remedy sought for each separate cause of action;
(d)clarity regarding the legal basis for the claim, including the particular laws alleged to have been breached;
and includes irrelevant material.
[38] However, for the purposes of the application for strike out, the defendants rely on their contention that the plaintiff’s claim discloses no reasonably arguable cause of action. In the circumstances, there is no need for me to consider whether there may be other grounds for striking out the plaintiff’s claim, for example that the claim is likely to cause prejudice or delay because the pleading is unintelligible and/or scandalous and/or contains irrelevant material.
Result
[39]The proceeding is struck out.
[40] The defendants have been successful and are entitled to costs on a 2B basis and reasonable disbursements as fixed by the Registrar.
Associate Judge Skelton
Solicitors:
Crown Law Office, Wellington for Defendants
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