Fielding v Police
[2020] NZHC 3194
•4 December 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-212
[2020] NZHC 3194
BETWEEN ALISOHN JOAN FIELDING
Plaintiff/Respondent
AND
NEW ZEALAND POLICE
Defendant/Applicant
Hearing: 30 November 2020 Appearances:
Plaintiff in person
S McCusker for defendant
Judgment:
4 December 2020
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
[1] This is an application for an order striking out the plaintiff’s (Ms Alisohn Fielding’s) claim pursuant to r 15.1(1)(a) of the High Court Rules 2016, the respondent’s (the New Zealand Police’s) primary contention being that the pleadings do not disclose a reasonably arguable cause of action.
[2] At the conclusion of the hearing I indicated to Mr McCusker for the applicant, and to the respondent, who is representing herself, the orders that I proposed to make, and why, but formally reserved my judgment.
[3]In the circumstances, it is not necessary to deliver a detailed judgment.
[4] Following what appears to have been an acrimonious breakup of a domestic relationship, Ms Fielding had a series of encounters with Kapiti Coast-based police officers between early 2017 and early 2019. Her dissatisfaction with the way in which
FIELDING v NEW ZEALAND POLICE [2020] NZHC 3194 [4 December 2020]
she was dealt with by the Police has obviously caused her considerable frustration. In the end, she commenced two proceedings against the Police – judicial review proceedings and this proceeding. There is overlap, though not complete, between the two proceedings – the judicial review proceeding addressed some but not all of the incidents addressed in this proceeding, focussing on the actions of some but not all of the police officers who feature in this case.
[5] This proceeding was commenced by notice of proceeding and statement of claim on 18 May 2020. Since then Ms Fielding has filed and served three additional pleadings. It is a feature of these additional pleadings that none of them are comprehensive. Rather they amend or supplement their predecessors. The result is that in order to understand the plaintiff’s case it is necessary to refer to all four documents.
[6] Nor is it clear from any of these four pleadings exactly what Ms Fielding’s case against the Police – or the officers – is. However, during the course of the hearing before me, Ms Fielding nailed her colours to the mast. She said that she was alleging misfeasance in public office.
[7]The Police were proceeding on that basis in any event.
[8] As already said, the Police’s application is made pursuant to r 15.1(1)(a) which provides:
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
…
…
[9] The application was founded on the general contention that a claim for misfeasance in public office requires the plaintiff to establish three things:1
1 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [40]-[44].
(a)first, that the defendant holds public office;
(b)second, that the defendant purportedly exercised the power granted by his or her office in his or her capacity as such; and
(c)third, that the exercise of power was wrongful either because:
(i)the defendant acted in bad faith, that is, for an ulterior purpose with intent to injure the plaintiff (targeted malice); or
(ii)that the defendant knew that he or she was acting outside the scope of the power in question or was recklessly indifferent as to whether or not he or she was, and that this was likely to injure the plaintiff (non-targeted malice).
[10] Mr McCusker also submitted, in reliance on Garrett v Attorney-General,2 that in an action for misfeasance in public office the plaintiff must prove loss in the form of special damages, and that claims for humiliation, anxiety and distress are insufficient to found such a cause of action though they may be of aggravating factors in connection with actionable damage.
[11] The Police say that in relation to the allegations made against each of the police officers involved the plaintiff has not made precise allegations as to malice, much less particularised these appropriately.
[12] One of the plaintiff’s apparent causes of action can be distinguished from the others. This is the pleading at paragraphs [48]-[49] of her original statement of claim. This is pleaded against the Police as an institution as opposed to the Police as vicariously responsible for any sworn officer or other employee.
[13] As Mr McCusker submits it is well settled law that misfeasance in public office is a tort that can only be committed by an individual holding public office precisely because an element of the tort is a malicious intent on the part of the perpetrator.
2 Garrett v Attorney-General [1993] 3 NZLR 600 (HC) at 608.
[14] I accept that submission and it follows that this apparent cause of action against the Police as an institution cannot succeed and must be struck out.
[15] By the conclusion of the hearing Ms Fielding accepted that her pleadings were inadequate in the way Mr McCusker contended on behalf of the Police (though she said that having come to understand this in the course of preparation for the hearing, she had rectified the position in her synopsis of submissions). I agree.
[16] In my judgment, the plaintiff’s pleadings – even reading all four documents together – are inadequate. Even those directed at individuals make no attempt to identify the necessary mental component of misfeasance in public office in the case of the officers in question, do not allege damage or loss (or, for that matter, contain a prayer or prayers for relief).
[17] In those circumstances, there is no doubt that the Police can make out grounds for its application. However, those things said, bearing in mind the huge amount of material before the Court which includes not only the pleadings but various (at this stage quite unnecessary) affidavits sworn by the plaintiff or others and the various assertions made by the plaintiff in submissions and elsewhere, I cannot rule out the possibility that the plaintiff’s case – or aspects of it – might be capable of being recast in a compliant form.
[18] That being so, I am not prepared to strike out the claim as this would preclude her from commencing and pursuing a second claim.
[19] I have come to the view that the proper approach in this case is to stay the proceeding and make some targeted directions intended to identify whether there is a claim that can proceed.
[20] Although I do not propose to dwell on them, I mention at this stage that other issues arose in the course of argument that may present additional impediments to the plaintiff’s claim or parts of it. She would be wise to reflect on these before expending any more energy and resources on this claim, though of course that is ultimately a matter for her.
[21] As already said, in order to sheet home any claim of misfeasance in public office, the plaintiff must be able to point to damage that is compensable in damages. Indeed, that principle relates to any tortious cause of action. It would appear that in the case of the tort of misfeasance in public office, very possibly uniquely, there is a requirement that the harm caused by the defendant’s actions is of a particular character. This would appear to exclude the type of damage in respect of which general damages (as opposed to special damages) respond, except as an adjunct to a claim for special damages. Although the plaintiff has not alleged or particularised damage (as already said, her pleading does not contain a prayer for relief or prayers for relief of any sort), it seems clear from everything that she has said and the way she developed her argument before me that what she is concerned about is the proprietary of the actions of the police officers concerned and the emotional distress that these have caused her. If that is so she may have considerable difficulty in formulating a viable claim.
[22] There may be a further complicating factor, namely whether such damages are recoverable if they result from a personal injury by accident of the sort covered by the Accident Compensation Act 2001. I say nothing more about that at this stage except to signal that this may be an additional issue.
[23] Finally, to the extent the plaintiff is suing the Police (as vicariously responsible for the actions of the officers concerned), there may be an issue as to the correct defendant. The question is whether the Crown Proceedings Act 1950 requires the Attorney-General to be cited as the defendant.
[24]As already signalled to the parties, I make the following orders:
(a)For the reasons already given, I make an order pursuant to r 15.1(1)(a) striking out that aspect of the plaintiff’s claim articulated in paras [48-49] of her statement of claim dated 18 May 2020;
(b)Pursuant to r 15.1(3), I make an order staying the balance of the plaintiff’s claim on the following terms:
(i)no further amended statement of claim is to be filed except pursuant to leave granted by this Court;
(ii)any application for leave is to be served on the defendant, and is to be accompanied by a copy of any proposed amended statement of claim;
(iii)any such application is to be filed and served by Friday 19 March 2021;
(iv)if such leave is not sought by that date then the balance of the plaintiff’s claim – that is to say those aspects not already struck out – will be struck out automatically without further order of the Court;
(v)leave is not to be granted unless the Court is satisfied that the proposed amended statement of claim has been settled by a lawyer holding a current practising certificate who has reviewed the available evidence.
[25] As to costs, the defendant has been largely successful in obtaining the order sought by it – or some variation of that order – and my preliminary view is that the defendant is entitled to its costs on a 2B basis. If costs cannot be resolved between the parties, as I would expect, then memoranda may be filed in the usual way and I will deal with them on the papers.
Associate Judge Johnston
Solicitors:
Luke Cunningham Clere for the defendant
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