Fuller v Patel
[2024] NZHC 1866
•9 July 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-1506
[2024] NZHC 1866
BETWEEN PETER FULLER
Plaintiff
AND
SONNEY PATEL
Defendant
Hearing: On the papers Representation:
Plaintiff self-represented
Judgment:
9 July 2024
JUDGMENT OF MOORE J
[Ruling under Rule 5.35A]
This judgment was delivered by me on 09 July 2024 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
FULLER v PATEL [2024] NZHC 1866 [9 July 2024]
Introduction
[1] The plaintiff, Peter Fuller, has brought proceedings seeking damages totalling over $1 million particularised as “trespass breaches” ($40,000), “expenses and countless hours of time consume (sic)” ($12,000), and “tort for past and continual misconduct” ($1 million).
[2] He claims that from mid-2021 until now, the New Zealand Police have waged “a campaign of intimidation against my person” using the Eagle helicopter to effectively harass him, mostly at night.
[3] He has brought his concerns to the attention of the Waikātere Area Controller, Sonny Patel, who is cited as the defendant in these proceedings. According to Mr Fuller, when challenged about the Eagle helicopter overflying Mr Fuller’s homes, Mr Patel provided a “generic excuse” that the Police were pursuing someone involved in a burglary. Mr Fuller says that at no time was ground Police support observed pursuing any offenders.
[4] It would appear that Mr Fuller, in an attempt to avoid further aerial intrusions by the Eagle helicopter, moved to another address. However, within three days, Mr Fuller claims the helicopter “resumed its previous pattern of appearance at my new address and no longer visited my previous address.”
[5] As a result, Mr Fuller says that he created “a tailormade trespass notice to the “New Zealand Police Corporation” specifically addressing the “Eagle Helicopter crew”. He also claims he personally served a trespass notice on the Police and the Eagle Helicopter flight crew which included the air zone above his address.
[6] He says that within a week of issuing the trespass notice the helicopter “flagrantly violated [the trespass notices] by hovering directly above [his] … address on five separate occasions in a single day.”
[7] Mr Fuller also attaches to his statement of claim a series of exhibits one of which is an aerial map purporting to show the flight path of the Eagle helicopter on
specified occasions. He also annexes various documents which purport to be trespass notices addressed to the Police.
[8]The last paragraph of Mr Fuller’s statement of claim reads:
[19] This campaign of harassment commenced the same day I challenged jurisdiction in the Waitakere District Court and successfully had a conviction and dismissal of 25 outstanding community work hours that I refused to complete on the grounds of learning and understanding my inalienable human rights under God’s law being Common Law.
[9] The file has been referred to me by the Registrar under r 5.35A of the High Court Rules 2016.
Applicable rules
[10] Proceedings referred by the Registrar under r 5.35A are considered by a Judge under r 5.35B. Under r 5.35B I may make certain orders or give directions to ensure the proceedings are disposed of or proceed in a way that complies with the High Court Rules, if I am satisfied the proceedings are “plainly an abuse of the process of the Court”.
[11]Rule 5.35A provides:
5.35A Registrar may refer plainly abusive proceeding to Judge before service
(1)This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.
(2)The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.
(3)However, the Registrar may,—
(a)as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and
(b)until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.
[12]Rule 5.35B relevantly provides:
5.35B Judge’s powers to make orders and give directions before service
(1)This rule applies if a Judge to whom a Registrar refers a proceeding under rule 5.35A is satisfied that the proceeding is plainly an abuse of the process of the court.
(2)The Judge may, on his or her own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that—
(a)the proceeding be struck out:
(b)the proceeding be stayed until further order:
(c)documents for service be kept by the court and not be served until the stay is lifted:
(d)no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).
(3)Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.
(4)A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.
Discussion
[13] The question for me is whether this proceeding is plainly an abuse of the process of the Court. I am satisfied that it is. My reasons follow.
[14] To bring a proceeding the plaintiff must set out a valid legal cause of action and that cause of action must be brought against the relevant defendant under the law.
[15] Mr Fuller’s statement of claim is difficult to follow. It is prefaced by seven paragraphs under a heading “Background to Cause of Action”. These record Mr Fuller’s complaints to the Police regarding the Eagle helicopter’s persistent presence
over his residences, his complaint to the Area Commander and his complaint to the Independent Police Conduct Authority alleging Police harassment. It also covers his erection and service of trespass notices on his property, his service of the same on the Police, their purported non-compliance and breaches, and his report of the breach to the Police for them to investigate.
[16] There is then a heading called “Cause of Action”. Despite the use of this term, the statement of claim does not set out anything that amounts to a valid legal cause of action. There is a general narrative which essentially repeats the “Background to Cause of Action”, but nowhere in the body of the document is the cause of action actually pleaded other than a general and vague reference to an unspecified “tort” for “past and continual misconduct” in the prayer for relief. Quite what the tort is, is not clear.
[17] Another difficulty is the damages set out in the prayer for relief. How these are linked to the alleged breaches is also far from clear.
[18] Thirdly, the trespass notices purport to restrain the Police from entering airspace, not only above Mr Fuller’s address in Waitākere, but also Avondale, New Lynn, Takapuna, Newmarket, Ōtāhuhu, North Shore, Massey, Manukau, Papakura, Takapuna, Onehunga, Northcote, Glenfield, Mission Bay and Ellerslie. Even if there was power to restrain the Police from entering the airspace above Mr Fuller’s address, which plainly there is not, the trespass notice effectively covers the whole of the greater Auckland metropolitan area, highlighting the absurdity of the proceedings and reinforcing the inescapable and plain conclusion the proceedings amount to an abuse of process.
[19] Finally, a further fundamental irregularity in the proceedings, consistent with a finding that they amount to an abuse of process, is the identity of the defendant who, according to the pleadings, is a senior Police officer. Proceedings against the Police are required to comply with s 14 of the Crown Proceedings Act 1950. The appropriate defendant is the Attorney-General, sued on behalf of the Police.
[20] Those are just some of the fundamental irregularities which render these proceedings an abuse of process.
[21] The defendant should not be required to file a defence to claims that are not legally available against him. As Mallon J said in Smyth-Davoren v Parker:1
The Court would be exercising poor control of its processes if it allowed the proceedings to continue, which would require the defendants to respond through the court processes.
[22] That is equally true of this proceeding. The Court must act to protect defendants from oppressive or frivolous proceedings or to protect public confidence in the administration of justice by refusing to tolerate serious abuses.
[23] Furthermore, it would be manifestly unfair for the putative defendant to have to respond to such a meritless and vexatious case. Right thinking people would regard this Court as exercising poor and ineffective control of its processes if it were to allow the plaintiff’s documents to be treated as proper documents for filing.
[24] It follows that pursuant to r 5.35B(2)(a) of the High Court Rules, this proceeding namely Peter Fuller v Sonny Patel CIV-2024-404-001506 is struck out.
[25] In accordance with r 5.35B(3) Mr Fuller is advised of his right of appeal to the Court of Appeal against this decision.
[26] In accordance with rule 5.35B(4) a copy of this decision is to be provided to the defendant.
Moore J
1 Smyth-Davoren v Parker [2018] NZHC 3034 at [8].