Dyer v Kitteridge - [2024] NZHC 342

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 Defendant

HON JACINDA ARDERN
Third Defendant

HON 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…

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 Dyer v Kitteridge

Details

AGLC: Dyer v Kitteridge [2024] NZHC 342
Case: [2024] NZHC 342
Decision Date: 28 February 2024

CaseChat Overview and Summary

The case of Dyer v Kitteridge involved an application by the defendants for a strike-out of the plaintiff's statement of claim. The plaintiff, Karl George Dyer, alleged various unlawful activities against the New Zealand Security Intelligence Service (NZSIS) and its officers, including the destruction and concealment of information by the first defendant. The defendants argued that the plaintiff's claim disclosed no reasonably arguable cause of action and the allegations were without foundation.

The court considered the principles for striking out a claim under the High Court Rules 2016. The court held that the plaintiff's allegations concerning the involvement of the NZSIS were entirely speculative and without foundation. The plaintiff did not provide any affidavit evidence or supporting material to substantiate his claims. The court found that the Inspector-General had investigated the plaintiff's complaint and found that he was not and had never been the subject of surveillance or other activities by the NZSIS. The court concluded that the plaintiff's allegations were not based on reasonably credible material and disclosed no reasonably arguable cause of action.

The court also found that the plaintiff's allegations of deliberate destruction and concealment of information and corruption were not based on reasonably credible material which established a prima facie case. The plaintiff had not provided any such material in opposition to the application for strike out. The court held that the serious allegations against the first defendant must be based on reasonably credible material which establishes a prima facie case, and the plaintiff had not provided such material. The court concluded that the pleaded allegations of deliberate destruction and concealment of information and corruption disclosed no reasonably arguable cause of action.

The court held 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 were speculative and without proper foundation. The causes of action were untenable and could not succeed. The fundamental issues with the claim could not be cured by amendment.

The court granted the defendants' application for strike out and ordered that the proceeding be struck out. The defendants were successful and entitled to costs on a 2B basis and reasonable disbursements as fixed by the Registrar.

Orders