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Galway v Pugh

Galway v Pugh

Case [2021] NZHC 3431 14 December 2021

Limitation Periods

Misfeasance in Public Office

Malicious Prosecution

Jurisdiction

Abuse of Process

Civil Litigation & Procedure

Administrative Law

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000615

[2021] NZHC 3431

BETWEEN
GRAHAM JAMES GALWAY and NATASHA ANN GALWAY

Plaintiffs

AND

MERRYN FRANCES PUGH

First Defendant

AND

THE MINISTRY OF PRIMARY INDUSTRIES

Second Defendant

Hearing: 18 November 2021

Appearances:

G J and N A Galway – self-represented

P M Fee and I G Allan for First Defendant
V E Squires and M L Clarke-Parker for Second Defendant

Judgment:

14 December 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 14 December 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GALWAY v PUGH [2021] NZHC 3431 [14 December 2021]

[1] The plaintiffs (Mr and Mrs Galway) seek damages from the defendants alleging misfeasance in public office. This judgment concerns applications by the defendants to strike out the proceeding on the ground it is time barred and an abuse of the Court’s process. The second defendant also relies on immunities it says are available to it as a total answer to the claim.

Background

[2]At material times the plaintiffs worked as dairy farmers near Karamea, Buller.

[3] The first defendant (Ms Pugh) was an employee of the Animal Health Board and an authorised person under the Biosecurity Act 1993 for the purposes of implementing a Pest Management Strategy aimed to prevent the spread and reduce the prevalence of bovine tuberculosis (TB) in New Zealand.

[4]The second defendant (the Ministry), administers the Biosecurity Act.

[5] The claim arises out of an investigation of Mr Galway by the Animal Health Board and his subsequent prosecution. Ms Pugh was involved in the investigation and the informant in the prosecution against Mr Galway for offences under the Crimes Act 1961 and the Biosecurity Act that followed from it.

[6] The investigation and prosecution centred on an allegation that in April 2008 Mr Galway pre-read his cattle for TB and removed cows from the herd he suspected of having TB prior to inspection by an authorised TB tester.

[7] The Animal Health Board’s investigation began in or around 16 May 2008. Ms Pugh took a statement from Layne Darragh, a farm hand, in which Mr Darragh said that Mr Galway was pre-reading his cows for TB.

[8] On 16 May 2008, after taking Mr Darragh’s statement, Ms Pugh changed the TB status of Mr Galway’s herd on a register maintained by the Ministry from “Clear

C3”1 to “Suspended” and issued Mr Galway with a Movement Control Notice under s 122(1)(c) of the Biosecurity Act directing him not to move his herd from its location.

[9] Mr and Mrs Galway had entered into a contract with Kinzett Livestock Ltd (Kinzett) for the sale of approximately 320 cows. On or around 19 May 2008, Kinzett cancelled the contract due to the change in the TB status of the herd. Mr and Mrs Galway accept it was entitled to do so. As a result, they suffered losses of…

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 Galway v Pugh

Details

AGLC: Galway v Pugh [2021] NZHC 3431
Case: [2021] NZHC 3431
Decision Date: 14 December 2021

CaseChat Overview and Summary

The plaintiffs (Mr and Mrs Galway) commenced a proceeding against the first defendant (Ms Pugh) and the second defendant (the Ministry of Primary Industries). They sought damages for misfeasance in public office. The defendants applied to have the proceeding struck out on the grounds it was time barred and an abuse of the Court’s process. The second defendant also relied on statutory immunities as a total defence to the claim. The Court considered the application and dismissed it. The plaintiffs’ proceeding was struck out and judgment entered in favour of the defendants. The Court found the plaintiffs’ claim was time barred because they knew of the events upon which they relied and the losses they suffered. The Court found that the plaintiffs had failed to identify any facts which were concealed from them or of which they had only gained late knowledge that prevented them from bringing their claim timeously. The Court also found that the plaintiffs’ pleadings were defective and unsatisfactory and that, had it not been of the view that the claim was time barred, it would have struck out the plaintiffs’ statement of claim and required them to file a pleading compliant with the High Court Rules under the guidance of counsel. The Court directed that the written transcript of the hearing be provided to the parties. The Court invited the parties to file memoranda on the issue of costs by 1 February 2022.

Orders