Gregory v Gollan HC Auckland CIV 2005-404-3485
[2007] NZHC 1637
•19 February 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2005-404-3485
BETWEEN MICHAEL GREGORY Plaintiff
AND THOMAS PATRICK JOSEPH GOLLAN First Defendant
AND THE ATTORNEY-GENERAL Second Defendant
AND JOHN BERNARD MARIE FURLONG Third Defendant
AND MILES EDWARD FINALAISON SUTHERLAND
Fourth Defendant
AND NIGEL JAMES TURNBULL Fifth Defendant
Hearing: 19 October 2006
Appearances: C S Henry and G Minchin for plaintiff
T Simmonds for 1st, 3rd, 4th and 5th defendants
M Davies for 2nd defendant
Judgment: 19 February 2007
JUDGMENT OF ALLAN J
Solicitors/Counsel
C S Henry, PO Box 616, Orewa 0946
Witten-Hannah Howard, 187 Hurstmere Road, Takapuna
T Simmonds, PO Box 3815, Auckland
S Ross, NZ Police Association, PO Box 12344, Wellington
M Davies, Meredith Connell, PO Box 2213, Auckland
GREGORY V GOLLAN AND ORS HC AK CIV 2005-404-3485 19 February 2007
[1] This is an application by the plaintiff, made in reliance on s 26P(1)(a) of the Judicature Act 1908 and r 61C of the Rules, for review of a judgment delivered by Associate Judge Doogue on 21 September 2006 granting the defendants’ application for an order directing the trial in this proceeding to take place before a Judge alone. The plaintiff says he is entitled to trial before a Judge and jury.
Factual background
[2] It is necessary to recount only briefly the factual matrix which underlies this proceeding. Between 3 and 4 am on 24 June 2001, the plaintiff, a man in his 20s, was at home with friends. He occupied a house in Wattle Downs owned by a family trust of which his father was a trustee. There had been a burglary at a nearby house. The police attended the scene. A tracking dog was called in. It followed a trail to the plaintiff’s home. A number of police officers, including the first, third, fourth and fifth defendants, arrived there. Police activities appear to have been led by the first defendant, who demanded that the plaintiff admit him to the house. The plaintiff refused to do so, at least until he had had an opportunity of speaking to his father by telephone. That exchange took place through an open bedroom window. The first defendant had by then apparently formed the view that the plaintiff was implicated in the burglary. Pepper spray was used. The first defendant grappled with the plaintiff and then climbed in through the window. The plaintiff was restrained and handcuffed. The first defendant opened a locked external door of the house and admitted the third, fourth and fifth defendants. The plaintiff and at least one other occupant of the house were required to sit on the wet grass outside, but were subsequently taken to the Papakura police station and kept there overnight.
[3] The following day the plaintiff appeared in Court. Ultimately he was charged with a number of offences including aggravated burglary, assaulting a police officer and resisting arrest.
[4] The plaintiff’s father instructed a private inquiry agent who conducted detailed investigations of his own into the burglary. As a result of information so
obtained, another person altogether was ultimately convicted of the burglary. All of the charges against the plaintiff were withdrawn by the police about two months after the plaintiff was first arrested. It is common ground that the plaintiff had no involvement at all in the burglary.
The statement of claim
[5] The plaintiff’s statement of claim contains no fewer than seven causes of action. It has been much amended. A fourth amended statement of claim was filed immediately prior to the hearing before the Associate Judge. Counsel for the defendants had had no adequate opportunity to consider the statement of claim before that hearing. Because for present purposes there were no material variations between the third and fourth amended statements of claim, the Associate Judge dealt with the matter at the invitation of counsel on the basis of the pleadings contained in the third amended statement of claim. I will do likewise.
[6] The first cause of action alleges assault and battery arising from the circumstances in which the plaintiff was detained in his own house and subsequently at the Papakura police station. He expressly disavows any suggestion that he suffered personal injury by accident in New Zealand, or that any damages sought by him arise directly or indirectly out of any personal injury by accident in New Zealand. On this cause of action he claims damages of $20,000 against the first and second defendants and a further $20,000 as exemplary and/or aggravated damages against the first defendant only. The second defendant is “sued in respect of acts of the other defendants and/or of other members of the New Zealand police”, and presumably is alleged to be vicariously liable for their acts and omissions.
[7] The second cause of action, pleaded against all defendants, alleges that in entering the plaintiff’s house, and in searching the plaintiff’s person, the defendants other than the second defendant committed an act of trespass against the plaintiff. The plaintiff seeks damages of $20,000 against all defendants and exemplary and/or aggravated damages of $10,000 against all defendants except the second defendant.
[8] The third cause of action alleges that the plaintiff was arrested without lawful reason or justification, and that in consequence he was deprived of his liberty and subjected to public shame, humiliation and disgrace. Against the first and second defendants only the plaintiff seeks damages of $20,000 together with exemplary and/or aggravated damages in the sum of $10,000.
[9] The fourth cause of action, faced by the first, second and fifth defendants only, alleges false imprisonment. It is claimed that the fifth defendant assisted the first defendant in shackling the plaintiff in handcuffs and then in standing guard over the plaintiff while he was lying shackled on the wet grass outside his house. The plaintiff further alleges that he was not provided with any medical attention at the Papakura police station in consequence of his adverse reaction to pepper spray, despite having sought medical assistance. He complains he was denied permission to telephone his father for a period. He says he was not supplied with toilet paper upon request. He complains that he was wrongfully imprisoned for a day in the cells at the Papakura police station and that he was required to spend $18,500 in legal fees and costs. By way of relief he claims against the first, second and fifth defendants special damages of $18,500, general damages of $60,000 for false imprisonment and exemplary and/or aggravated damages of $15,000.
[10] The fifth cause of action alleges malicious prosecution against the first and second defendants. He says that the first defendant and/or other officers of the New Zealand police knew, or ought to have known, that the charges brought against the plaintiff were spurious and had been laid without any reasonable cause, foundation or substance. He claims that the police brought charges simply out of pique at his refusal to permit them to enter his home, and to cover over the unlawfulness of his arrest. General damages of $60,000 claimed against both defendants and exemplary and/or aggravated damages of $25,000 are sought against the first defendant only.
[11] The sixth cause of action alleges conspiracy to injure by unlawful means against all defendants. Broadly, this allegation is based upon the claim that in an effort to cover up the unlawfulness of their initial arrest of the plaintiff, the defendants unlawfully conspired to injure him by unlawful means, namely laying baseless charges, imprisoning him in the Papakura police station, concocting false
reports of assault by the plaintiff of the first defendant, pursuing the prosecution of the plaintiff when it became clear there was no lawful basis on which to do so, deliberately or negligently failing to undertake proper inquiries in respect of the burglary, and maintaining in relation to internal police investigations a claim that the plaintiff had some involvement in the burglary. On this cause of action the plaintiff claims against all defendants, special damages of $9884.52, being the cost of hiring a private investigator, together with general damages of $60,000 and, against all defendants save the second defendant, exemplary and/or aggravated damages of
$50,000.
[12] Finally there is a seventh cause of action against all defendants which alleges misfeasance in public office. It is claimed that the defendants knew, or ought to have known, that they had no lawful power or authority to assault the plaintiff or trespass on his premises, to arrest and/or imprison him, to search his house, or to prefer baseless charges against him, or that the defendants were grossly reckless as to whether or not they had any such power. It is further asserted that in so doing the defendants knew, or ought to have known, they would by their actions cause the plaintiffs loss and/or detriment, or were grossly reckless in that respect. The plaintiff seeks damages of $40,000 against all defendants on that cause of action.
The defendants’ position
[13] The defendants intend to defend the proceeding in its entirety. In broad terms, they say that the defendants had an implied licence to be on the plaintiff’s property; that such licence was not revoked by the plaintiff; that the first defendant had good cause to suspect the plaintiff of having committed the burglary, and that the requirements of s 315(2) of the Crimes Act 1961 were accordingly satisfied. Other aspects of the pleaded defence are discussed below.
Mode of trial
[14] This proceeding started life in the Manukau District Court. It was transferred to this Court on 16 February 2005 as the result of amendments to the statement of
claim which incorporated claims for damages which went beyond the jurisdiction of the District Court. As matters currently stand, the plaintiff claims a total of $285,000 for general damages, $130,000 for exemplary/aggravated damages, and $15,780 for special damages, although there is an element of overlap.
[15] On 26 September 2005 the plaintiff filed a memorandum for the purposes of a case management conference; it contained an indication that he required the proceeding to be tried by a Judge and jury. The giving of that notice was treated as compliance by the plaintiff with r 435. It is not in dispute that prima facie, upon giving his notice, the plaintiff was entitled to a jury trial.
[16] But on 29 November 2005, the second defendant applied pursuant to s 19A(5) of the Judicature Act 1908 for an order that the proceeding be tried before a Judge alone. It was that application which came before the learned Associate Judge, supported, as it was before me, by counsel for the other defendants.
Further relief sought
[17] There are two further aspects of the application. The plaintiff applies for leave to seek summary judgment in respect of the causes of action based upon trespass, unlawful arrest and false imprisonment. He applies also for an order directing that liability issues in respect of those causes of action be determined as a preliminary question before trial, pursuant to r 418. Those two applications are made in the alternative, as between themselves.
[18] Mr Henry addressed these matters in a limited fashion during the course of his argument. They received somewhat greater attention from Mr Davies. In reply, Mr Henry accepted that these two subsidiary applications were made for the primary purpose of underscoring the strength of the application for review, in the sense that they assisted in demonstrating the relative simplicity of the issues which a jury would be required to determine at trial.
[19] Ultimately, although not withdrawing these supplementary applications, Mr
Henry accepted that it would be proper for the Court to take into account his
arguments upon them, as part of his argument on the review application. Accordingly, he did not press the Court for orders on those portions of the application, but argued that it was open to the Court to make orders, if it saw fit.
Review principles
[20] Counsel are agreed as to the principles which underpin the present application for review. R 61C(4) provides that a review under s 26P(1) of the Judicature Act of an order or decision proceeds as an appeal by way of rehearing if the order or decision was made following a defended hearing, and is supported by recorded reasons. That is the situation here. The burden is on the plaintiff to establish that the Associate Judge’s decision was wrong: Midland Metals Overseas Pte Ltd v Christchurch Press Co Ltd (2002) 16 PRNZ 107.
[21] The appellate approach does not impose a straitjacket upon the reviewing Judge but the presumptive force of the Associate Judge’s decision, in cases such as the present where there was full argument before the Associate Judge and his judgment is closely reasoned, must be considerable: Wilson v Neva Holdings Ltd [1994] 1 NZLR 481 at 485. To the extent that the decision involved the exercise of a discretion, the plaintiff, in order to succeed, must show that the Associate Judge acted on a wrong principle, or that he failed to take into account some relevant matter, or took account of some irrelevant matter, or was plainly wrong: Alex Harvey Industries Ltd v Commissioner of Inland Revenue (2001) 15 PRNZ 361.
Discussion
[22] The law governing the right of a party in civil proceedings to seek trial before a Judge and jury is to be found in s 19A of the Judicature Act 1908, the relevant provisions of which are:
19A Certain civil proceedings may be tried by jury
(1) This section applies to civil proceedings in which the only relief claimed is payment of a debt or pecuniary damages or the recovery of chattels.
(2) If the debt or damages or the value of the chattels claimed in any civil proceedings to which this section applies exceeds $3,000, either party may have the civil proceedings tried before a Judge and a jury on giving notice to the Court and to the other party, within the time and in the manner prescribed by the High Court Rules, that he requires the civil proceedings to be tried before a jury.
…
(5) Notwithstanding anything to the contrary in the foregoing provisions of this section, in any case where notice is given as aforesaid requiring any civil proceedings to be tried before a jury, if it appears to a Judge before the trial—
(a) That the trial of the civil proceedings or any issue therein will involve mainly the consideration of difficult questions of law; or
(b) That the trial of the civil proceedings or any issue therein will require any prolonged examination of documents or accounts, or any investigation in which difficult questions in relation to scientific, technical, business, or professional matters are likely to arise, being an examination or investigation which cannot conveniently be made with a jury,—
the Judge may, on the application of either party, order that the civil proceedings or issue be tried before a Judge without a jury.
[23] The plaintiff’s prima facie right to a trial by a Judge and jury arises under s 19A(2). The defendants’ application for trial before a Judge alone was made in reliance on s 19A(5)(a).
[24] The onus of bringing a case within the scope of s 19A(5) rests with the applicant: Shattock v Devlin (1988) 1 PRNZ 271 at 277. The inquiry to be made under s 19A(5) is a two stage process. An applicant must first persuade the Court that there is a jurisdictional basis for an order, and then that the Court’s discretion to make an order ought to be exercised: McInroe v Leeks [2000] NZLR 721 [21].
[25] I commence by considering jurisdictional issues. It is common ground that the leading authority on the application of s 19A(5)(a) is Guardian Assurance Company Limited v Lidgard [1961] NZLR 860. In the following passage (at pp 863-
864) the judgment of the Court of Appeal explained what is meant by the expression
“ … will involve mainly the consideration of difficult questions of law”:
Paragraph (a) speaks of ‘the consideration of difficult questions of law’. The word used is "consideration" and not "determination". Therefore it seems to
us that the paragraph is dealing with practical problems likely to arise during the progress of the trial, and is not concerned with questions of law, however difficult, which the Judge may have to decide before a final judgment can be entered, and which do not make it inconvenient to have a jury as the tribunal of fact for the trial itself. Thus, a claim founded on negligence may give rise not only to the question of fact as to whether there was a failure to use proper care, but also to questions of law, as, for example, whether the law recognises any duty owing by the defendant to the plaintiff, or whether the damage suffered is too remote in law. Such questions of law are ordinarily quite separate and distinct from the issues of fact, and, indeed, only arise after findings of fact in favour of the plaintiff. They do not affect the nature of the jury's task as the tribunal of fact. The cases which come within para. (a) are, we think, cases where the questions of law are of such a nature that it becomes difficult to keep the respective functions of Judge and jury separate from one another. There are cases where matters of law and matters of fact so merge into one another that the task of the jury becomes complicated in the application to the facts of questions of law which it is difficult for the Judge to explain in language they could be expected to appreciate and apply.
There are other cases where, during the course of the trial, the Judge will be called upon to give consideration to difficult questions of law and where it is not possible to isolate satisfactorily questions of fact for submission to the jury. These are broadly the cases to which, we think, para. (a) applies. It should be added, however, that it is not possible to describe exhaustively any category of cases in which the power conferred by the paragraph might properly be exercised, but we have said enough to show that, in our opinion, the principal matter for consideration under the paragraph must be the extent to which the exposition and application of matters of law may cause difficulty to the Judge and the jury in the discharge of their respective functions.
We think this construction of para. (a) enables effect to be given to the word
‘difficult’ in the phrase ‘difficult questions of law’. If, as Mr Wilson's argument suggested, this phrase related only to the consideration of questions of law by the Judge for the purpose of determining those questions, it would not seem to be material whether the questions could be described as easy or difficult. If, however, as we think, the paragraph contemplates the effect which questions of law may have on the convenient discharge of their respective tasks by both Judge and jury in the course of a trial, then the more difficult the questions of law become the more complex those tasks may become, especially when matters of law and matters of fact are inextricably mingled.
[26] This approach was affirmed in McInroe v Leeks and again in TVNZ v Haines CA96/06 6 September 2006. In the latter case, the Court said that as Guardian Assurance explains, the issue under s 19A(5)(a) is not so much whether the questions of law which arise are difficult ones, but rather whether they are such that it is difficult to keep the respective functions of Judge and jury separate from one another, often where matters of fact and law so merge into one another that the task
of the jury becomes complicated in the application of the facts to the law. The principal matter for consideration under the sub-paragraph is the extent to which the exposition and application of matters of law may cause difficulty to the Judge and jury in the discharge of their respective functions.
[27] At the outset it is appropriate to observe that the facts fall within a narrow compass, and are unlikely, of themselves, to cause the jury any difficulties on the score of complexity. The primary focus will be on the exchanges between the plaintiff and the first defendant and upon what occurred at the time of the first defendant’s entry into the house and during the short period thereafter. The question is whether the jury’s task is likely to become complicated by the merging of matters of fact and law.
[28] Matters relevant to the jurisdictional issues arising under s 19A(5)(a) were raised and argued before me in much the same way in which they had been addressed before the Associate Judge. Neither party placed before the Court a draft statement of issues suitable for the jury’s consideration. Rather, the defendants argued that certain features of the plaintiff’s claim, taken together, gave rise to such a degree of complexity that the jurisdictional threshold, as explained in Guardian Assurance v Lidgard, was met. While each case must, of necessity, be decided upon its own facts, the existence of a multiplicity of identified difficult questions will always be relevant to the question of whether the jurisdictional threshold has been reached: South British Insurance Co Ltd v Braithwaite [1970] NZLR 93 at 97.
[29] The care with which the Associate Judge approached his task is evident from para [26] of his judgment in which he deals with jurisdictional matters in this way:
The approach I intend to adopt is as follows. First, consideration is required of the questions of law that will arise in this case. Second, some analysis has to be attempted or whether difficulties are likely to arise when the judge gives directions to the jury because the directions concerning the facts they need to make findings on will have to be accompanied by instructions on the applicable law in order to give the necessary definition to the factual issues that they must give a verdict on. Third, whether legal complexity means that framing issues for trial is going to pose difficulties because of the difficulty of crystallising out an issue of fact which is suitable for a jury verdict. Fourth, some consideration must be given to whether anticipated problems can be met by the judge reserving some of the issues to him/herself for decision.
[30] In my view, the learned Associate Judge correctly identified the questions which arise in consequence of the Court of Appeal judgment in Guardian Assurance Company Limited v Lidgard.
[31] Mr Henry subjected the judgment of the Associate Judge to minute analysis with a view to demonstrating that he had misunderstood and therefore misapplied the principles outlined in Guardian Assurance v Lidgard. I have carefully read the judgment, in the light of Mr Henry’s submissions, and am satisfied that the Associate Judge well understood the principles, and that certain of the passages criticised by Mr Henry simply reflected the language used by the Court of Appeal in that case. In particular, as observed above, I am satisfied that [26] of his judgment demonstrates his orthodox approach.
[32] The Associate Judge concentrated principally upon issues arising out of the first cause of action, and then in less detail, upon other questions. Presumably that occurred because of the way in which the argument was presented to him.
[33] It is not in dispute that a central feature of the claim in respect of assault and battery (and indeed in respect of certain other causes of action), will be the issue of whether the first defendant and the other police officers were on the plaintiff’s property pursuant to an implied licence, or simply as trespassers when the first defendant purported to arrest the plaintiff.
[34] The case for the defendants is that the first defendant formed good cause to suspect that the plaintiff had committed the burglary, whilst the first defendant was standing at the window outside the house; that he validly arrested the plaintiff while still outside the house, and that his entry into the house was undertaken in order to give effect to the plaintiff’s earlier arrest. Counsel for the second defendant submitted that in the context of the arrest, issues which will require consideration are:
a) The existence of an implied licence at 4 am to enter the premises and approach the house, and to speak with the plaintiff at a window.
Questions of reasonableness in the circumstances and the plaintiff’s expectation of privacy arise here;
b) If any implied licence was expressly and unequivocally revoked, at what point in relation to the time of formation of good cause to suspect did the revocation take effect?
c) On an objective analysis, whether the first defendant could form good cause to suspect the plaintiff of involvement in the burglary while at the window, thereby justifying arrest in terms of s 315(2)(b) of the Crimes Act 1961;
d)As appears to have been the case, if the first defendant mistook his powers of arrest under s 317 of the Crimes Act, was arrest nevertheless justified under s 315(2)(b)?
e) At what point in time was the plaintiff in fact arrested?
[35] Mr Davies submitted that these matters of themselves clearly justified the Associate Judge’s conclusion that the jurisdictional threshold had been crossed. Mr Henry invited me to disregard this aspect of the defendants’ argument, upon the footing that the defendants could raise no credible argument to the effect that there might exist an implied licence to enter the plaintiff’s bedroom at 4 am. However, the defendants do not contend that the licence extends that far. They simply say there is an implied licence to go to the outside of the plaintiff’s dwelling and to communicate with him through the bedroom window. What occurred thereafter was justified, so the defendants claim, by the existence of good cause to suspect.
[36] More generally, Mr Henry submitted that, even if the defence of implied licence was a cognisable issue having regard to the facts pleaded by the defendants, it did not involve the inextricable intermingling of fact and law, and would present no challenge to any Judge to craft directions to a jury as to the circumstances giving rise to any such licence and its extent. In my opinion, questions of fact and law relating to the existence of an implied licence and to the purported arrest are
interlocked to some degree. They will give rise to some difficulty when framing issues for a jury.
[37] The second issue raised by Mr Davies relates to the extent of police powers of entry and search immediately following arrest. The precise scope of that common law power is currently the subject of some debate. In the most recent authority in this Court, R v Noble HC AK CRI 2005-044-841 3 April 2006, Winkelmann J followed R v Caslake [1998] 1 SCR 51, a Canadian authority, in preference to R v Commissioner of Police (ex parte Rottman) [2002] 2 WLR 1315. In Rottman the majority held that it would be contrary to common-sense to hold that the common law power to search and seize after an arrest did not extend to searching the remainder of the premises (in addition to the room in which the arrest occurred)..
[38] It is evident that the scope of the common law power of search, following arrest, will be the subject of extensive legal argument in the absence of the jury, but after the evidence is complete. That was a consideration taken into account by Elias J (as she then was) in Innes v Attorney General (1997) 4 HRNZ 251, in concluding that a trial ought to be before a Judge alone.
[39] I accept, as Mr Davies submitted, that legal argument on the point will need to cover a number of factors, such as reasons for the search, how it was undertaken, and what was discovered. I accept also that the legal issues must inevitably be “tightly entwined with the facts”, that being a consideration which the Court of Appeal in TVNZ v Haines [22] affirmed as being centrally relevant to the question of whether the s 19A(5)(a) threshold had been crossed. The nature and extent of the search actually conducted - a question of fact - is tightly bound up with the scope of the common law power of search following arrest.
[40] The primary thrust of Mr Henry’s response to this point was to argue that in the circumstances of this case, the defendants will be unable to establish good cause to suspect, that the arrest was therefore unlawful, and that the issue will simply not arise. That is rather to anticipate matters. I think, as did the learned Associate Judge, that the question of the scope of the common law power of search in the
circumstances of this case, is of some relevance to the question before the Court for determination.
[41] The next ground relied upon by Mr Davies is somewhat speculative in character. The cause of action for unlawful arrest is described by the Associate Judge as “unclear in its ambit”. Mr Davies submitted that the claim might involve allegations that the manner in which the arrest was effected, of itself, rendered the arrest unlawful, in that it involved the use of unreasonable force. If that is so, then Mr Davies submits that it will be open to the first defendant to argue self-defence. Mr Davies concedes that self-defence, standing alone, ought not to present difficulties for Judge and jury. I agree, and do not consider that issues relating to the possible relationship of the lawfulness of an arrest to the use of force by the arresting officer, are likely to cause relevant difficulties.
[42] The final issue raised on behalf of the defendants is that of damages. Here there are seven causes of action which variously support claims for special and general damages and exemplary/aggravated damages. The second defendant is claimed to be vicariously liable in some cases but not others. There is a need to ensure that compensatory damages for harm arising from personal injury by accident are not included in any award. Special care will need to be taken in the directions given to a jury in respect of the causes of action in malicious prosecution and misfeasance in public office, where a plaintiff must establish not only foreseeability of damage but actual material damage, which can include “recognised psychiatric illness but not distress, injured feelings, indignation or annoyance”: Watkins v Secretary of State [2006] 2 All ER 353 at 358.
[43] In McInroe v Leeks at [14] the Court of Appeal said:
[14] Further complications arise in respect of exemplary damages. In the McInroe proceeding under the first head of claim compensatory damages are also sought. The jury would have to be directed that compensatory damages must exclude damages for personal injury which may be covered under the accident compensation legislation. In that respect a difficult line would have to be drawn, particularly in relation to the mental consequences, all of which are pleaded as relevant to the assessment of exemplary damages. In addition, the respective bases pleaded for awarding and assessing exemplary damages in the various causes of action are not identical and could require differing directions. For example, flagrant disregard of fiduciary duty could possibly
be viewed as more serious than flagrant disregard of a duty of care. The distinction is drawn in the McInroe statement of claim, both as to the nature of the duties and the amount of relief sought. There is also a possible complication arising from the fact that the causes of action are not clearly alternative, with the resulting problem of ensuring the overall liability has no element of overlap and any accumulation is not excessive.
[44] As in that case, it is important to bear in mind here the cumulative difficulties which are likely to arise from the need to exclude damages for personal injury which may be covered under the Accident Compensation legislation, the different bases for awarding and assessing exemplary or aggravated damages, and the need to ensure that there is no element of overlap in any award of damages.
[45] Having said that, the starting point in respect of damages must be that the assessment of damages is quintessentially a jury question: Palmer v Danes Shotover Rafts Ltd (1999) 14 PRNZ 57 at [26], and McMeekin v Boyce (1998) 12 PRNZ 648 at 652.
[46] Viewed overall, difficulties surrounding the respective roles of Judge and jury in respect of the question of implied licence, the validity of the arrest and of the consequential search, and in relation to damages, lead me to the conclusion that the learned Associate Judge was right to conclude that the defendants had established the Court’s jurisdiction to make an order, under s 19A(5)(a).
[47] The Judge plainly found the issue a difficult one. He said:
I have not found this matter easy. The authorities stressed that the plaintiff’s right to trial by jury is not to be lightly taken away from him. It is a right that is an ancient one and one that is secured to him by statute.
[48] Clearly the Judge was alive to the care which must be taken over a decision to grant an application under s 19A(5) and the difficulty which the application gave him is readily understandable. On the other hand, his conclusion that the case was complex by reason of the intertwined character of many of the legal and factual issues was justified, and entitled him to conclude that the jurisdictional threshold had been crossed. I do not accept that the Judge was in error in that regard.
[49] I turn to the question of the exercise of the Court’s discretion. Mr Henry submitted that the Court was entitled to review the exercise of the Associate Judge’s discretion, because he had wrongly taken into account questions of time, cost and Court efficiency. He also submitted that the Judge had wrongly ignored both the desirability of juries determining cases involving the alleged abuse of police powers and the wider interests of justice.
[50] As to the first of those factors, the learned Associate Judge expressly mentioned a passage (at [21]) in McInroe v Leeks in which the Court of Appeal referred to the importance of juries sitting on matters involving claimed breaches of personal rights. The Judge must be taken to have been well aware of that issue. And his judgment is replete with references to the importance of the prima facie right to a jury trial, a matter which I take to lie at the heart of Mr Henry’s submissions on this point.
[51] The possibility that the trial might be managed more sensibly, economically and conveniently before a Judge alone, is not a matter to which any significant weight can be ascribed: M v L (jury) (1998) 11 PRNZ 630 at 633; Palmer v Danes Shotover Rafts Ltd at [8]-[11]. As is pointed out at [11] of Palmer, s 19A represents a balance between tangible considerations of convenience and efficiency on the one hand, and of tradition, constitutional history and the desirability of community participation on the other. So the age old entitlement to trial by jury, and its constitutional importance, urged upon me by Mr Henry, are already reflected in the balance which s 19A sets out to achieve. The Court of Appeal has expressed the view that s 19A was not intended to deprive litigants of their right to trial by jury to a greater extent than was necessary: Guardian Assurance at 863. That consideration must be borne in mind. Court management considerations may however be taken into account to a limited degree: see for example Innes v Attorney-General.
[52] The proper approach to the exercise of the Court’s discretion was usefully summarised in McInroe v Leeks at [21]:
[21] The jurisdictional basis for an order for trial without a jury having been made out, it remains to consider whether the discretionary decision to make the order should be set aside. As the case was presented to us it was clear that the proceedings will give rise to a series of issues, many of which will be complex
and difficult. A jury could be faced not only with complicated and difficult questions but a whole series of interlocking and overlapping hypothetical questions. Because of this the proceedings are not ones which lend themselves readily, let alone easily, to trial by jury. They are proceedings that must necessarily be more readily determinable by a Judge who is responsible for finding the facts and the law in combination. We are satisfied this Court should not interfere, and we are further satisfied that in all the circumstances the order was appropriate. In reaching this conclusion we are not to be seen as endorsing the Judge’s apparent reliance on the desirability of having in the end result a reasoned judgment rather than a summing up and verdicts of the jury. With respect, that is irrelevant. The importance of the right to a jury trial is not to be undervalued, even in today’s conditions where such trials are, comparatively speaking, not common in the civil jurisdiction of the High Court. At issue is a balancing exercise, under which if the threshold requirements are made out the Court must give careful consideration to how best the trial process and its management can meet the overall justice of the case, placing due weight on the entitlement of a party to seek trial by jury. The significance of the jury influence on standards of behaviour, and of vindicating in an appropriate way those who have been wronged and also vindicating those who have been wrongly charged with infringing another’s rights, must be kept firmly in mind. Having carried out that balancing exercise ourselves as well as evaluating that undertaken by the Judge, we have reached the clear conclusion that both proceedings should be heard before a Judge without a jury.
[53] In support of his submission that there was no significant obstacle in this case to a jury trial, Mr Henry referred me to Menzies v Attorney General HC CHCH CIV
220-418-5 17 November 2004, in which claims for assault, malicious prosecution, false imprisonment, breaches of the New Zealand Bill of Rights Act and misfeasance in public office, were heard by Fogarty J and a jury. The proceeding involved a claim against the police, arising out of an incident in which the plaintiff alleged that he had been assaulted by members of the police. Mr Henry produced to me, as he did to the Associate Judge, the jury verdicts reached, and submitted that there appeared to have been no obstacle in that case (which bore some similarity to this), to the proper formulation of issues for the jury.
[54] There, the Crown had made no application under s 19A. There were claims to both aggravated and exemplary damages. The matrix of fact and law in that case was discernibly simpler than in this proceeding, but I accept that that case was generally of the same character as this and provides an example of a case of this type where it proved possible to conduct proceedings satisfactorily before a Judge and jury.
[55] The learned Associate Judge appears to have accorded some weight to efficiency and Court management factors. While the authorities suggest that only limited weight should be given to matters such as jury convenience, delay, trial length and so on, I do not think that such matters are entirely irrelevant to the exercise of the Court’s discretion. Weighting is a matter for the Associate Judge and not for a reviewing Court.
[56] But, as did the Court of Appeal in McInroe v Leeks, I have carried out for myself the balancing exercise that s 19(A)(5)(a) requires. While I might have given somewhat different emphasis to the various discretionary factors, I am satisfied that the Associate Judge was right to make an order. This is a case which will be much more readily determinable by a Judge alone, responsible for finding the facts and law in combination, than by a jury. There are relevant difficulties in respect of the issue of implied licence, the validity of the arrest and the search which followed, and in relation to the assessment of danger. In reaching that conclusion I do not overlook the desirability of jury trials where the alleged abuse of police powers is in issue. But, overall, it is in the interests of justice that the proceeding be tried by a Judge alone.
Result
[57] For the foregoing reasons the application for review is dismissed, as are the plaintiff’s applications for leave to apply for summary judgment and for determination of a separate question pursuant to r 418.
[58] The defendants are entitled to costs. Counsel may file memoranda if they are unable to agree.
C J Allan J
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