Fuller v Carter - [2023] NZHC 1714

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-70

[2023] NZHC 1714

BETWEEN
PETER MALCOLM FULLER

Plaintiff

AND

SERGEANT IAN CARTER NEW ZEALAND POLICE CORPORATION

Defendant

Hearing: 4 July 2023

Appearances:

Plaintiff in person

S M Kinsler and V E Squires for Attorney-General

Judgment:

5 July 2023

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 5 July 2023 at 12 noon pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
Crown Law Office, Wellington

FULLER v SERGEANT IAN CARTER NZ POLICE CORPORATION [2023] NZHC 1714 [5 July 2023]

[1] In this proceeding Peter Fuller (the plaintiff) alleges that on or about 26 June 2021 he was assaulted, falsely arrested and unlawfully detained over a period of two days by Sergeant Ian Carter of the New Zealand Police, and for which he claims damages. By judgment delivered on 9 March 2023 Harvey J held that the plaintiff’s claim is not an abuse of process.1 His Honour lifted the stay of proceedings he had previously ordered on 25 January 2023, and directed the Registrar to accept the plaintiff’s statement of claim dated 16 January 2023 for filing.2

[2] By Memorandum of Counsel dated 18 May 2023, the Attorney-General seeks a direction pursuant to r 4.56 of the High Court Rules 2016 striking out Police Sergeant Carter as the first defendant and substituting the Attorney-General as the first defendant. The plaintiff has been served with the Attorney-General’s memorandum, but has taken no steps in relation to it, and it therefore appears that he does not oppose an order removing Sergeant Carter as the defendant and substituting the Attorney-General.

[3]Rule 4.56 of the High Court Rules provide:

4.56 Striking out and adding parties

(1)A Judge may, at any stage of a proceeding, order that—

(a)the name of a party be struck out as a plaintiff or defendant because the party was improperly or mistakenly joined; or

(b)the name of a person be added as a plaintiff or defendant because—

(i)the person ought to have been joined; or

(ii)the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.

(2) An order does not require an application and may be made on terms the court considers just.

…

[4] Counsel for the Attorney-General says that the plaintiff’s claim appears to allege breaches of the New Zealand Bill of Rights Act 1990 (NZBORA) and tortious

1 Fuller v Sergeant Carter New Zealand Police Corporation [2023] NZHC 448.
2 At [15].

conduct. Counsel note that claims against Sergeant Carter in relation to his actions carried out as a police officer alleging breaches of NZBORA are directed against the state and the Attorney-General is the appropriate representative. The Attorney- General further notes that as regards claims in tort against employees of the Crown, the Attorney-General is vicariously liable. Counsel submits that where, if the plaintiff is successful he can obtain…

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 Fuller v Carter

Details

AGLC: Fuller v Carter [2023] NZHC 1714
Case: [2023] NZHC 1714
Decision Date: 5 July 2023

CaseChat Overview and Summary

In the case of Fuller v Carter, Peter Malcolm Fuller, the plaintiff, alleged that he was assaulted, falsely arrested, and unlawfully detained by Sergeant Ian Carter of the New Zealand Police on or around 26 June 2021. Fuller sought damages for these actions. The defendant, Sergeant Ian Carter of the New Zealand Police, was initially named as the sole defendant in the proceedings. However, the Attorney-General intervened, seeking an order to strike out Sergeant Carter and substitute the Attorney-General as the defendant. The legal issue before the court was whether the Attorney-General should replace Sergeant Carter as the defendant in this case. The court considered whether claims against Sergeant Carter for actions taken in his capacity as a police officer were claims against the state, which would make the Attorney-General the appropriate defendant. The court found that Fuller's claim, in substance, involved breaches of the New Zealand Bill of Rights Act 1990 and tortious conduct by a police officer. Given that claims against police officers for actions taken in their official capacity are claims against the state, the Attorney-General, as the appropriate representative of the state, should be the defendant. The court concluded that it was disproportionate for Sergeant Carter to remain in the proceeding as an additional defendant and ordered his substitution with the Attorney-General.

The court's reasoning was grounded in the principle that claims against police officers for actions carried out in the course of their duties are claims against the state, not against the individual officer. The court referred to the case of Simpson v Attorney-General, which established that claims alleging breaches of rights affirmed in the New Zealand Bill of Rights Act 1990 by state servants or agents are public law claims and remedies, not forms of vicarious liability for tort. The court also referenced the case of Opai v Culpan, which supported the notion that it was disproportionate to retain an individual defendant when the full redress could be obtained from the Attorney-General alone. The court held that substituting the Attorney-General for Sergeant Carter as the defendant would not prejudice Fuller, who could still pursue his claim against the Crown. The court made an order pursuant to Rule 4.56 of the High Court Rules, striking out Sergeant Carter and substituting the Attorney-General as the defendant. The court also directed the Attorney-General to file a statement of defence within 10 working days of the judgment, and following this, Fuller was directed to file a fresh statement of claim naming the Attorney-General as the defendant and removing those parts of his claim which were previously struck out. Costs were reserved.

Orders