Fuller v Carter
[2023] NZHC 448
•9 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-000070
[2023] NZHC 448
BETWEEN PETER MALCOLM FULLER
Plaintiff
AND
SERGEANT CARTER NEW ZEALAND POLICE CORPORATION
Defendant
Hearing: [On the papers] Counsel:
Mr Fuller, Plaintiff in person
Judgment:
9 March 2023
JUDGMENT OF HARVEY J
This judgment is delivered by me on 9 March 2023 at 11 am pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
To: Plaintiff
FULLER v CARTER [2023] NZHC 448 [9 March 2023]
Introduction
[1] On 25 January 2023, I issued a judgment regarding Peter Fuller’s statement of claim filed 16 January 2023, which had been referred to me by the Registrar per r 5.35A, High Court Rules 2016.
[2] In respect of Mr Fuller’s claim in tort as to assault and false imprisonment and breach of the New Zealand Bill of Rights Act 1990, I directed the Registrar to obtain the District Court file concerning Mr Fuller’s criminal charges.1 This was because without the file and its accompanying context it was difficult to assess whether his claims were an abuse of process. I stayed this part of the claim until further order.
[3] I have now received the District Court file and can determine whether Mr Fuller’s claim is an abuse of process. The background to the claim is set out in my previous judgment.2 Mr Fuller states his false imprisonment occurred on 26 June 2021 at about 5 pm and he was incarcerated for two days.
Background
[4] The Court file reveals the following events. On 25 June 2021 a bail variation was made requiring Mr Fuller to report daily to Henderson Police Station between 8 am and 4 pm. Mr Fuller signed a bail notice containing this variation. On 26 June he reported to the Henderson Police station at 5:05 pm. The breach of bail record states:
When asked by Sgt Carter as to why he was so late he stated he was in an important legal counsel meeting. When asked what lawyer was having meetings on a Saturday he became agitated and repeatedly stated ‘what you don’t believe me’. He was asked for the name of the lawyer which he advised was Robin however he did not know his last name. He was afforded the opportunity to get his phone so as Police could speak with Robin which he facilitated. Sgt Carter spoke with Robin who when asked his occupation he stated he was retired. He did advise that the Defendant was with him in a social capacity and legal matters were discussed in general[.]
[5] Mr Fuller was then arrested and held in custody. It is at this point he alleges Sergeant Carter squeezed his upper left arm and dragged him to the cells. Mr Fuller
1 Fuller v Carter [2023] NZHC 25 at [20] and [24].
2 At [8]–[14].
appeared in Court on 28 June brought on breach of bail conditions. He was warned he needs to show up at the right day at the right time. The reporting condition was removed.
[6] For context, previously on 22 June a warrant to arrest Mr Fuller was issued for non-attendance. He was arrested on 24 June at his home address “without incident” and explained that he “forgot the date”. A previous warrant was issued on 14 April 2021 for the same reason.
The Law
[7] A battery consists of intentionally applying force to the body of another person without that person’s consent or lawful justification. An assault can be committed independently of a battery and requires an intentional overt act that creates an apprehension of the imminent infliction of a battery. For an assault the person has to believe on reasonable grounds that he or she is in danger of a battery.
[8] The tort of false imprisonment requires total restraint where the person restrained cannot escape from confinement. There must also be an intention to detain and a detention without lawful justification.
Discussion
[9] Mr Fuller’s claim will likely hinge on whether there was lawful justification for the force and the imprisonment.3 He claims the bail conditions were unnecessary and were therefore unlawful. There may be difficulties establishing this in the context of a tort claim unless the bail variation decision is overturned on appeal, and even then the chance of success appear limited. However, Mr Fuller also claims that he had a valid reason for appearing late which was that he was meeting counsel, Robin McIver. Mr McIver has apparently now passed away.
[10] The purpose of the rr 5.3A and 5.3B procedure is to ensure a claim is not an abuse of the Court’s process. Although Mr Fuller’s claim is of dubious merit, I am
3 Although, the use of force may be denied.
satisfied it is not an abuse of process. The claim is intelligible and the particulars are pleaded. The claim, to some degree, turns on factual findings which need to be explored at trial. It would not be manifestly unfair to the respondent that they be required to respond. Nor do I consider right thinking people would regard the court as exercising poor control of its processes if it permitted the applicant’s document to be regarded as a proper document.
[11] In addition, I note Panckhurst J’s statement in G v B that it is important to distinguish between “the plainly untenable where there is no cause of action or an abuse is involved on the one hand and a proceeding of highly dubious merit on the other”.4 The former is amenable to strike out whereas the latter is not. This case falls into the latter.
[12] For completeness I note two final points. The first is that the claim against Community Magistrate Jan Holmes being struck out, that defendant should now be removed from the intituling as there is no claim against her.
[13] Secondly, I note that Mr Fuller has now filed a judicial review per [23] of my previous judgment. That proceeding has not been referred to me under r 5.3A so I do not comment on whether it is properly pleaded. It appears to challenge a decision of the District Court refusing to provide Mr Fuller of an audio recording, which in turn relates to an alleged assault on 14 July 2021.
[14] Originally Mr Fuller’s statement of claim referred to the District Court’s inaction on six affidavits filed in the criminal proceeding. Having now had the opportunity to view said affidavits, they primarily consist of “sovereign citizen” arguments which have no basis in law.5 There is some reference to his application for transcripts/audio recording. For clarity, Mr Fuller having taken the relevant parts of the claim, being review of the decision to decline to provide audio recordings, across to his judicial review claim, the remainder of the claim relating to the District Court’s inaction on the affidavits in the criminal proceeding are struck out for want of cause of action.
4 G v B HC Christchurch CP105/02, 19 November 2002.
5 See Niwa v Commissioner of Inland Revenue [2019] NZHC 853.
Decision
[15] The stay is lifted. The statement of claim is to be accepted for filing and served on Sergeant Ian Carter.
[16]A copy of this judgment is to be served on Sergeant Ian Carter.
[17] Insofar as this judgment strikes out part of Mr Fuller’s claim(s), he has a right of appeal.
Harvey J