Greer v Attorney-General
[2018] NZHC 1290
•1 June 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV-2017-485-874
[2018] NZHC 1290
UNDER THE Judicature Act 1908 IN THE MATTER OF
Application for public law damages
BETWEEN
ALAN IVO GREER
Applicant
AND
ATTORNEY-GENERAL
First Respondent
DISTRICT COURT JUDGE HARROP
Second Respondent
HIGH COURT JUDGE MACKENZIE
Third Respondent
THE COURT OF APPEAL
Fourth Respondent
Hearing: 26 March 2018 Appearances:
Applicant in person
M J McKillop and G M Taylor for Respondents
Judgment:
1 June 2018
JUDGMENT OF CLARK J
[1] In 2004 Mr Greer was sentenced to seven years’ imprisonment. Following his release in January 2010 Mr Greer was charged with breach of his release conditions. Mr Greer applied for and was denied bail on several occasions. In August 2010, after spending five and a half months on remand and a shorter period on bail, a jury acquitted Mr Greer of the charge of breaching his conditions.
GREER v ATTORNEY-GENERAL [2018] NZHC 1290 [1 June 2018]
[2] Mr Greer seeks damages for false imprisonment, breach of the New Zealand Bill of Rights Act 1990 and violation of his rights by the District Court Judge, High Court Judge and Court of Appeal.
[3] The Attorney-General applies to strike out Mr Greer’s claim on several grounds including that it is an abuse of process, discloses no reasonably arguable cause of action in tort and no reasonably arguable cause of action for public law compensation.
[4] Accordingly, the issue which I must decide is whether the statement of claim gives rise to an arguable case.
Strike-out principles
[5] The court may strike out a pleading if it discloses no reasonably arguable cause of action, is likely to cause prejudice or delay, is frivolous or vexatious or is otherwise an abuse of process.1
[6] The principles applicable to an application for strike-out on the basis of no reasonably arguable cause of action are settled:2
(a)Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to entirely speculative pleaded allegations.
(b)The cause of action must be clearly untenable. The court must be certain the claim cannot succeed.
(c)The court is reluctant to terminate a claim short of trial. The jurisdiction is to be exercised sparingly and only in clear cases.
(d)The jurisdiction is not excluded by the need to decide questions of law requiring extensive argument.
1 High Court Rules 2016, r 15.1(1).
2 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267, endorsed by the Supreme Court in
Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
[7] Where a proceeding is to be struck out as an abuse of process an element of impropriety and misuse of the Court’s processes is required. Forms of abuse can include prolix, unintelligible or scandalous pleadings, a collateral challenge to concluded proceedings or an attempt to obtain a collateral benefit.3
Mr Greer’s proceeding
[8] The essence of Mr Greer’s case is that the successive bail decisions denied him his right to be presumed innocent until proven guilty4 and his right to be released on reasonable terms and conditions unless there is just cause for continued detention.5 Mr Greer also pleads the bail decisions failed to provide lawful consideration of the common law and the Bail Act 2000. The time he spent remanded in custody exceeded any level of punishment that would have been ordered to any person actually guilty of breach of release conditions.
[9]Mr Greer makes the following monetary claims:
(a)a claim against the Attorney-General in the sum of $60,000 for five and a half months of “false imprisonment”;
(b)a claim against the District Court in the sum of $10,000 in respect of Judge Harrop’s 21 January 2010 decision;
(c)a claim against Judge Harrop personally in the sum of $10,000 for bad faith;
(d)a claim against the High Court in the sum of $20,000 in respect of McKenzie J’s 2 March 2010 decision;
(e)a vicarious liability claim against the Attorney-General in the sum of
$20,000 in respect of McKenzie J’s decision;
3 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].
4 New Zealand Bill of Rights Act 1990, s 25(c).
5 Section 24(b).
(f)a vicarious liability claim against the Attorney-General for $50,000 in respect of the Court of Appeal’s dismissal of Mr Greer’s appeal against McKenzie J’s decision.
[10] Mr Greer acknowledges the excessive delay between the alleged violations of his rights and filing his claim but pleads that because of “separate later atrocities” he has been held “criminally hostage” and denied facilities to pursue his claim unhindered or unthreatened by the authorities who he says are active in his false imprisonment.
Application to strike out
Attorney-General’s position
[11] The Attorney-General submits the claims are barred by the doctrine of judicial immunity. In Attorney-General v Chapman the Supreme Court confirmed monetary compensation from the Crown was not available for breach of the New Zealand Bill of Rights Act by judicial officers.6 Nor can Mr Greer claim against Judge Harrop personally because Judge Harrop was acting in bona fide exercise of his judicial office and therefore has immunity from proceedings. The claim of bad faith against Judge Harrop is not particularised and cannot be sustained.
[12] Further, the proceeding is an abuse of process. Mr Greer’s claim for false imprisonment is a collateral attack on concluded proceedings.
[13] Finally, the Attorney-General submits s 4(1) of the Limitation Act 1950 applies. Mr Greer’s imprisonment ceased on 2 July 2010 and he did not commence the proceedings until 18 September 2017. It is also an abuse of process to commence proceedings under the Bill of Rights Act with delay greater than the six year limitation period for actions for tort with no adequate explanation for the delay.
6 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462; affirmed in Thompson v Attorney-General [2016] NZSC 134.
Mr Greer’s position
[14] In written submissions Mr Greer elaborated on his perceived “criminal” detention over years and the denial to him of fair trial and appeal entitlements. Mr Greer cross-referenced his written submissions to a substantial number of exhibits comprising over one hundred pages of documentation.
[15] In oral argument Mr Greer was vocal concerning his grievance that he has been denied the facilities to enable him to prepare a response to the strike-out application. In the course of the hearing Mr Greer’s submissions relating to the lack of resources available to him were elevated to a complaint. He also expressed concern that discovery had not been provided. Mr Greer said he had no opportunity to mount full argument.
Assessment
Want of jurisdiction
[16] The doctrine of judicial immunity constitutes a complete response to Mr Greer’s claims against the judiciary for wrongful refusal to grant bail. The doctrine operates to deny jurisdiction to hear and determine claims for public law compensation for alleged breaches by the judiciary of the New Zealand Bill of Rights Act.
[17] In Attorney-General v Chapman the Supreme Court confirmed that recognising state liability to compensate for judicial wrongful acts would undermine the important public policy considerations supporting judicial immunity.7
… allowing compensation claims for judicial breach of the Bill of Rights Act would be as inimical to judicial independence as permitting claims to be advanced against judges personally.
[18] Consequently, the Court cannot entertain the claim against any of the Judges who, or Courts that, Mr Greer has named. In respect of the suit against the District Court Judge, the claim that the Judge acted in bad faith is not only without particulars, it is barred by the same doctrine of judicial immunity.8
7 Attorney-General v Chapman above, n 6, at [192].
8 District Court Act 2016, s 23 and Attorney-General v Chapman, above n 6, at [174].
[19] Nor is Mr Greer able to avoid the operation of judicial immunity by suing the Attorney-General. The Crown cannot be vicariously liable for acts of the judiciary. The judiciary are not employees or agents of the Crown, reflecting the constitutional separation of powers.9
[20] Accordingly, the High Court has no jurisdiction to hear Mr Greer’s application for public law damages for alleged breaches of his rights by members of the judiciary.
Collateral attack on concluded judgments
[21] Mr Greer also seeks damages against the Attorney-General for false imprisonment. There are two elements to the tort of false imprisonment: detention or imprisonment, and the absence of lawful justification.10
[22] Mr Greer was released from his seven years’ imprisonment sentence prison on 6 January 2010. A condition of release was to report to a probation officer within 72 hours. Within a few days Mr Greer was arrested for failing to comply with the condition. In his decision on 2 July 2010 granting Mr Greer bail, Ronald Young J recounted Mr Greer’s bail history.11
(a)When Mr Greer first appeared on 21 January 2010 he was refused bail.
(b)On 2 March 2010 the High Court dismissed Mr Greer’s appeal.12 Mr Greer’s attitude suggested appropriate bail conditions were unlikely to be obeyed and the High Court Judge assessed a high likelihood of reoffending.
(c)A further application for bail was declined in the District Court on 16 March 2010.
9 At [175].
10 Willis v Attorney-General [1989] 3 NZLR 574 (CA) at 579.
11 Greer v New Zealand Police HC Wellington CRI 2010-485-60, 2 July 2010.
12 Greer v Department of Corrections HC Wellington CRI-2010-435-01, 2 March 2010. It appears this decision gives rise to the inclusion of the third and fourth respondents. Mr Greer appealed to the Court of Appeal. By the time of the Court of Appeal hearing on 2 July 2010, Mr Greer had been released on bail on the charge which was before MacKenzie J. Consequently, the issue was moot and the appeal was dismissed for want of jurisdiction.
(d)On 1 April 2010, another bail application was made in the District Court but declined on the basis there was no change in circumstances. Young J noted Mr Greer had been offered but rejected an early trial date of 12 April.
(e)Mr Greer’s appeal against the District Court’s refusal to grant bail was dismissed on 15 April 2010.
(f)When a further bail application was made on 18 May 2010 the Crown did not oppose. The time spent on bail was approaching the maximum sentence for the alleged breach of conditions. Bail was granted on conditions including compliance with parole release conditions, reporting to the probation officers and residing where directed.
(g)On 21 May 2010 following a pre-trial hearing it became clear Mr Greer had not reported as required and his bail was revoked.
(h)On 28 May 2010 Mr Greer appeared in the District Court to seek bail. Bail was opposed on the basis Mr Greer had breached a condition of his parole (by having contact with a person under 16 years of age). Bail was refused. The Judge noted Mr Greer’s refusal to obey conditions. The Judge acknowledged the potential lengthy delay before trial but Mr Greer had turned down the offer of an early trial date.
(i)On appeal to the High Court Young J granted bail on conditions.13
[23] Mr Greer has been remanded into the custody of the Department of Corrections on the basis of successive orders made by courts of competent jurisdiction. At all times Mr Greer has been lawfully detained pursuant to a warrant of commitment, extended by subsequent judicial orders denying bail and authorising remand in the custody of the Department of Corrections. Mr Greer tested the validity of these decisions through the appeal process. A judicial order is valid until set aside.
13 Greer v New Zealand Police, above n 11, at [15].
[24] It is an abuse of process for Mr Greer to attempt to litigate again, the very issues decided against him in first instance and subsequent appellate bail decisions.14 Plainly, Mr Greer’s claim against the Attorney-General for “false imprisonment” is a collateral challenge to concluded proceedings. As such, it is an abuse of process and warrants being struck out on that ground alone. That Mr Greer was eventually acquitted of the charge on which he was remanded in custody does not have the effect of retrospectively invalidating the Courts’ bail decisions. With his experience of the justice system that Ronald Young J observed, Mr Greer will no doubt understand the two assessments are distinct. A bail decision turns on whether there is just cause for continued detention.15 A jury verdict determines the guilt or otherwise of the defendant on the charges before the jury.
[25] Further, Mr Greer’s claim is statute-barred. It was commenced outside the six- year limitation period.16 The respondents have satisfied me the cause of action is so clearly statute-barred that the claim can be regarded as an abuse of process. Mr Greer has been unable to show an arguable case for an extension or postponement to bring his claim back within time.17
[26] In this case, as Crown Counsel submitted, it is also an abuse of process to commence, with no justifiable explanation for the delay, proceedings under the New Zealand Bill of Rights Act after a delay greater than the equivalent limitation period for actions in tort.18
[27] I make a final observation regarding Mr Greer’s complaint about the lack of facilities and discovery to enable him to properly respond to the application to strike out. Mr Greer sought discovery before Churchman J on 5 February 2018 during a teleconference. As Churchman J recorded in his Minute those matters relate to the substantive proceeding not the strike-out application. As to the sufficiency of the time in which to prepare, a timetable had been proposed by the Attorney-General.
14 Hunter v Chief Constable of West Midlands Police [1982] AC 529 (HL).
15 Bail Act 2000, s 7(5).
16 Limitation Act 1950, s 4(1).
17 Cf Murray v Morrel & Co Ltd [2007] NZSC 27, [2007] 3 NZLR 721 at [33].
18 Attorney-General v PF Sugrue Ltd [2004] 1 NZLR 207 (CA) at [69]–[70].
Churchman J recorded that Mr Greer did not take issue with the timetable and it was confirmed.
Result
[28] The statement of claim contains no reasonably arguable cause of action and is an abuse of process. The pleading is not capable of amendment. Accordingly:
(a)The statement of claim is struck out in its entirety and the proceeding is dismissed.
(b)The respondents are entitled to costs on a 2B basis.
Karen Clark J
Solicitors:
Crown Law, Wellington Respondents
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