Heke (aka Stanton) v Nelson City Council
[2019] NZHC 433
•13 March 2019
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2017-442-43
[2019] NZHC 433
IN THE MATTER OF The New Zealand Bill of Rights Act 1990 BETWEEN
HONE MA HEKE (also known as LEWIS REGINALD STANTON)
Plaintiff
AND
NELSON CITY COUNCIL
First Defendant
THE ATTORNEY-GENERAL
Second DefendantNELSON BRANCH of the ROYAL NEW ZEALAND SOCIETY FOR THE
PREVENTION OF CRUELTY TO ANIMALS INC
Third Defendant
Hearing: 20 February 2019 Appearances:
Plaintiff in person
J C Ironside for the First Defendant
J M Webber for the Second Defendant M J Wallace for the Third DefendantJudgment:
13 March 2019
JUDGMENT OF ASSOCIATE JUDGE R M BELL
Solicitors:
This judgment was delivered by me on 13 March 2019 at 3:30pm
pursuant to Rule 11.5 of the High Court Rules.
…………………………………
Deputy Registrar
Fiona McLeod, Nelson City Council
O’Donoghue Webber, Nelson, for the Second Defendant Duncan Cotterill, Nelson, for the Third Defendant
Copy for:
J C Ironside, Nelson, for the First Defendant
M J Wallace, Christchurch, for the Third Defendant
HONE MA HEKE (also known as LEWIS REGINALD STANTON) v NELSON CITY COUNCIL [2019] NZHC 433 [13 March 2019]
[1] All defendants ask the court to strike out the plaintiff’s claim. The third defendant says that if the claim is not struck out, it should have security for costs.
[2] While the plaintiff had some legal assistance in the early stages of this case, his application for legal aid was rejected. He is bringing this proceeding unrepresented. He has many of the difficulties experienced by litigants in person. He has little understanding of the law or the rules and practice of this court. Procedurally he has little idea how to run a proceeding in this court. That is all the more challenging for his case against the first and second defendants because he has chosen causes of action that are difficult to plead and prove.
[3] I decline to strike out his proceeding at this stage. There are problems with his pleadings, but he should be given the opportunity to fix them up by providing more particulars. The RSPCA, the third defendant, has established a case for security for costs and I order security.
Background
[4] The plaintiff was formerly known as Lewis Reginald Stanton but now goes by the name of Hone Ma Heke. He said that I could call him ‘Hone’. In the entituling, he is described as a freelance politician. He had an unconventional lifestyle.1 That led to brushes with the authorities.
[5] In 2012, he took to occupying a part of the footpath outside the Farmers store in Trafalgar Street, Nelson. Members of the public complained. The Police charged him with obstructing a public way contrary to s 22 of the Summary Offences Act 1981. He was given bail, subject to a condition that he stay outside the Nelson CBD. He appealed successfully against that condition.2 Hone defended the obstruction charge but was found guilty and fined. In their decision, the justices of the peace recorded
1 See, for example, Goddard J’s description in Stanton v Nelson City Council [2014] NZHC 3117 at [3].
2 Stanton v New Zealand Police [2012] NZHC 1878.
that he occupied the footpath outside Farmers to display placards by way of mounting a protest. Hone was successful in his appeal against conviction.3
[6] The Nelson branch of the RSCPA dealt with Hone in January 2015. Hone had a cart and a horse (“Barney”). An RSPCA animal welfare inspector saw Barney attached to the cart standing in the hot sun in January 2015 in the Nelson CBD. The inspector was concerned for Barney’s welfare given the hot conditions. She gave Hone a notice under s 130 of the Animal Welfare Act 1999. That allows an animal welfare inspector to give a notice to a person in charge of an animal to take steps to prevent the animal suffering if the inspector has reasonable grounds to believe that the animal is suffering, or it might suffer unreasonable or unnecessary pain or distress. Later the same month the RSPCA arranged for a vet to assess Barney. The vet found that Barney was suffering heat stress and was showing signs of dehydration. The inspector unharnessed Barney, walked him to a shaded area and later arranged for Barney to be collected and taken away to grazing. The vet billed the RSPCA for his time in examining Barney and reporting. The RSPCA asked the lawyers representing Mr Stanton for reimbursement of the vet’s fee. The lawyers advised that Hone could not pay. In the meantime, Barney was being agisted. In May 2015, Barney was adopted under an animal adoption agreement. In disposing of Barney, the RSPCA says that it was acting under s 141 of the Animal Welfare Act 1999.
This proceeding
[7] Hone began this proceeding in January 2017. He had legal assistance with his pleadings. The amended statement of claim of 26 July 2018 has these causes of action:
(a)The first, against the Nelson City Council, alleges breaches of his rights under the New Zealand Bill of Rights Act 1990: freedom of thought and conscience under s 13, freedom of expression under s 14, freedom of manifestation of belief under s 15, freedom of assembly under s 16, freedom of association under s 17 and freedom of movement under s 18. In 2011 the city council issued him with a notice under the Trespass Act barring him from 216 places owned, occupied or
3 Stanton v New Zealand Police [2012] NZHC 3223.
administered by the council. He pleads that the Trespass Act notice was quashed in a District Court decision on 7 September 2011. He was arrested on 6 February 2012 for breaching the trespass notice, and his horse, cart and possessions were taken and not returned until mid-2012. The city council is alleged to have converted Barney, the cart and possessions. Hone seeks damages for breaches of his rights, plus damages for conversion of Barney, his cart and possessions.
(b)The second cause of action is for misfeasance in public office by certain named council officers but relies on the much the same facts as the first cause of action.
(c)The third cause of action is against the city council and the police. It relates to events in 2012 when Hone kept his vigil outside Farmers. Hone alleges that the city council caused the police to act. When he was charged with obstruction, he refused to accept the bail condition that he not enter the Nelson CBD and as a result he remained in custody until his appeal against the condition was overturned. He alleges that his rights under ss 13, 14, 15, 16, 17 and 18 of the New Zealand Bill of Rights Act were infringed. The Nelson City Council is said to have been implicated in his being warned, charged and arrested in July and August of 2012.
(d)The fourth cause of action, also against the city council and the police, relies on the same matters as the third cause of action but alleges misfeasance in public office or malicious prosecution.
(e)The fifth cause of action is against the city council only. After Hone stationed himself on Lower Bridge Street in 2014 with his horse and cart, the Nelson City Council issued parking and other tickets and he incurred fines of $159,000. Hone says this was part of a targeted campaign to make him move outside the Nelson business district. He was regularly summonsed to court for non-payment of fines, ordered to do community work which he refused to do, and was sentenced to
imprisonment for non-performance of community work. The Nelson City Council sought an injunction in the Nelson District Court to restrain him from parking. Hone successfully appealed that decision.4 The Nelson City Council’s actions are said to have breached Hone’s rights under ss 13, 14, 15, 16, 17 and 18 of the New Zealand Bill of Rights Act.
(f)The sixth cause of action, also against the Nelson City Council, is that the actions of officers in the Nelson City Council amounted to malicious prosecution of civil proceedings as they had an ulterior purpose of removing him from the Nelson CBD.
(g)The seventh cause of action, again against the Nelson City Council, is that the actions of the Nelson City Council officials amounted to misfeasance in public office. He appears to allege the knowing invalidity limb of the tort.
(h)The eighth cause of action, against the RSPCA, is a claim in conversion for the seizure of Barney in January 2015. While the RSPCA says that it acted with statutory authority, Hone says that it had no grounds to refuse to return Barney free of charge once it became apparent that Barney was not suffering and Hone could not pay the costs demanded by the RSPCA.
[8] In short, the Nelson City Council is sued in the first to seventh causes of action; the Police are sued in third and fourth causes of action; and the RSPCA is sued in the eighth cause of action. The first four causes of action deal with events in 2012; the fifth, sixth and seventh with events in 2014; and the eighth with events in 2015.
[9] The defendants filed statements of defence in March 2017. At the same time, the first and second defendants wrote to Hone requesting particulars. In May 2017, a lawyer assisting Hone sent a draft amended statement of claim to the first and second defendants. That pleading was not filed at that stage. The first and second defendants
4 Stanton v Nelson City Council [2014] NZHC 3117.
considered that it did not meet their requirements. At the first case management conference on 21 June 2017 Associate Judge Matthews stayed the proceeding to await the outcome of Hone’s application for legal aid. In January 2018, the defendants were advised that Hone’s application for legal aid had been declined by the Legal Aid Tribunal. The defendants say that at the end of February 2018, Hone offered to withdraw the proceeding if no costs were sought. All defendants agreed to that, but Hone did not discontinue the proceeding.
[10]On 28 March 2018, Judge Matthews gave these directions:
(a)If Hone intends to discontinue the proceeding, he must file and serve a written notice of discontinuance within five working days.
(b)If Hone intends to pursue the proceeding, he must file and serve within
15 working days an amended statement of claim answering the defendant’ notices requiring particulars.
(c)If Hone files and serves an amended statement of claim, any interlocutory applications by the defendants for security for costs or to strike out his pleadings are to be filed and served within a further 15 working days.
(d)Tailored discovery is to be agreed between the parties within 15 working days of the pleadings being finalised, or directions will be sought from the court if necessary.
(e)If Hone fails to comply in time with the directions to file and serve an amended statement of claim, the proceeding will be stayed and leave is reserved to the defendants to apply to strike out on notice.
[11] Hone did not comply with either of the first two directions. On 6 July 2018, the second defendant applied under r 15.1 of the High Court Rules for an order striking out the statement of claim on the ground of Hone’s non-compliance with Judge Matthews’ directions. Hone did not file any documents in opposition. The application
was called on 26 July 2018. Associate Judge Osborne directed Hone to file and serve a draft notice of opposition and affidavit. In a minute of 27 July 2018, Judge Osborne indicated that he would defer consideration of the papers until 1 August 2018.
[12] Judge Osborne gave a decision on 13 August 2018. I will refer to that decision in more detail later. He declined to strike out the statement of claim but adjourned it with leave to the second defendant to have the application brought on for further argument on 10 working days’ notice. He reserved costs. In a minute also issued on 13 August 2018, Judge Osborne recorded that Hone had submitted a draft amended statement of claim on 27 July 2018. I have referred to that in this decision. Judge Osborne gave Hone leave to file and serve a pleading in terms of the draft submitted. That was without prejudice to any resumed or fresh application by any defendant in relation to the new pleading. He reserved leave to the other parties to apply.
[13] On 24 August 2018, the RSPCA filed its application to strike out and for security for costs. Directions for hearing were given on 6 September 2018. Hone was directed to file and serve any notice of opposition to the RSPCA’s application within 15 working days, but he did not comply with that.
The second defendant’s strike-out application
[14] The second defendant relies on two matters: Hone has failed to comply with procedural directions and he is pursuing the proceeding for an improper purpose. Accordingly, the proceeding is an abuse of process.
[15] The second defendant can no longer pursue those matters in the light of Judge Osborne’s decision of 13 August 2018.5 Considering the application under r 15.1 of the High Court Rules, he found:
(a)The defendants did not suggest that Hone’s pleadings did not disclose arguable causes of action. The issue was rather that they had not been properly particularised, and there had been delays in giving particulars.
5 Heke v Nelson City Council [2018] NZHC 2062.
Hone had now submitted a draft amended statement of claim showing a serious effort at providing particulars.6
(b)While Hone had delayed in providing particulars, the claim should not be struck out when there was no challenge to the causes of action.7
(c)The email exchange as to withdrawal/discontinuance in February-
March 2018 did not in the circumstances warrant strike-out.8
(d)While there were suggestions that Hone was pursuing the proceeding for an ulterior purpose, and there had been delays, he appeared to be pursuing the proceeding if other outcomes do not fall in place. It was inappropriate to strike out the proceeding as involving an abuse of process.9
(e)There was no justification for Hone not now having his litigation in order and moving to resolution (subject to any interlocutory applications by the defendants as to security for costs).10
[16] While Judge Osborne dealt with all matters that the second defendant had raised, he did not find for the second defendant on any of them. He adjourned the application, rather than dismiss it.11 Because Judge Osborne dealt with the matters the second defendant relied on for its strike-out application, it is not open to the second defendant to argue those matters afresh. His decision still stands. The second defendant says that Judge Osborne did not hear full argument. If that is the case, the second defendant should have taken steps to have the decision set aside. There has been no application to review his decision under former r 2.3 of the High Court Rules.12 Nor has there been any application to order or vary his decision under r 7.49, or to rescind it as having been improperly obtained under r 7.51. Because his decision
6 At [26].
7 At [27].
8 At [29]-[31].
9 At [32]-[35].
10 At [36].
11 At [40].
12 The right of review of an Associate Judge’s chambers decision in proceedings started before 1 March 2017 is saved under the Senior Courts Act 2016, Schedule 5, cl 11(3)(b).
stands, it is not open to me to enquire again into the matters raised by the second defendant to strike out Hone’s third and fourth causes of action.
[17] The second defendant relied on Hone’s breaches of Judge Matthews’ directions of March 2018. With hindsight, that matter would have been better raised under r 7.48 of the High Court Rules which gives the court powers to enforce interlocutory orders. But that aspect has been overtaken by Judge Osborne’s decision. While not condoning Hone’s breaches of Judge Matthews’ directions, Judge Osborne indicated that the way was clear for Hone to proceed with his claim, notwithstanding his earlier breach. I would be undermining Judge Osborne’s decision if I were now to strike out Hone’s claim against the second defendant for those breaches.
[18] Admittedly, Judge Osborne left the application pending with leave to the second defendant to bring it on again. That did not mean that he left it open to the second defendant to re-argue its application. If Judge Osborne had dismissed the application, the second defendant would need leave for a fresh strike-out application which would be granted only in special circumstances.13 By leaving the strike-out application pending, Judge Osborne allowed the second defendant to seek a fresh strike-out, based on new circumstances, without having to deal with a leave application under r 7.52.
[19] The second defendant also took the point that Hone was in ongoing breach of a court direction, because while Judge Osborne had granted him leave to file and serve a statement of claim in terms of the draft he had submitted, Hone had not in fact filed a new amended pleading. The document that Hone submitted as a draft has been registered on the court file as an amended statement of claim. After seeing it counsel for the first and second defendants confirmed that it was in the same terms as the draft sent to them earlier. In the circumstances, the point is pedantic quibbling. The document on the court file registered as Hone’s amended statement of claim is his current pleading, which the defendants have already received.
13 High Court Rules 2016, r 7.52.
The first defendant
[20] While the first defendant appeared, it had not filed any application. It supported the second defendant’s application and seemed to expect that orders on the second defendant’s application would result in the claims against it being struck out. The second defendant could only apply for the claims against it to be struck out. If the first defendant seeks strike-out, it needs to make its own application. In the absence of any application by the first defendant, I make no order.
The first and second defendants’ requests for particulars
[21] The first and second defendants say that Hone’s amended statement of claim does not give adequate particulars. In March 2017 they wrote to Hone, c/o his lawyer, setting out matters on which they required him to give particulars of his claim. While Judge Matthews gave directions in March 2018 for Hone to give a better particularised statement of claim, he did not specify which particulars Hone was required to give. Now that Hone has filed an amended statement of claim, it is necessary to work out which part of his new pleading requires further particulars.
[22] While Judge Osborne held that Hone had pleaded recognisable causes of action, Hone has made general assertions with only some supporting particulars. General allegations are not adequate. Defendants may require a plaintiff to provide enough detail for the defendants to understand the case against them. That applies especially to the causes of action for malicious prosecution and misfeasance in public office. The requirements for pleading fraud also apply to those causes of action.14 In Schmidt v Pepper New Zealand (Custodians) Ltd, the Court of Appeal set out the requirements for pleading and proving fraud:15
[15] Allegations of fraud or dishonesty are very serious. They must be pleaded with care and particularity. As the authors of Bullen & Leake & Jacobs in Precedents of Pleadings16 emphasise, counsel must not draft any originating process or pleading containing an allegation of fraud unless they have reasonably credible material which, as it stands, establishes a prima facie
14 See, for example, Three Rivers District Council v Bank of England (No.3) [2003] 2 AC 1 (HL), the judgment of 22 March 2001, especially Lord Millett at [184]-[189] and Lord Hope at [55].
15 Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA 565.
16 Bullen & Leake & Jacobs Precedents of Pleadings (16th ed, Sweet & Maxwell, London, 2008) vol 2 at [49-02].
case of fraud – that is, material of such a character which would lead to the conclusion that serious allegations could properly be based upon it. Fraud cannot be left to be inferred from the facts – fraudulent conduct must be distinctly alleged and as distinctly proved.17 General allegations, however strong the words may appear to be, are insufficient to amount to a proper allegation of fraud.18
[16] While these principles have been articulated in authoritative discussions of duties imposed upon counsel, they apply with equal rigour to those who represent themselves. Those who seek to portray themselves as well acquainted with the law and its processes cannot shelter behind the barrier of unfamiliarity when it suits. They must satisfy the same exacting standard when preparing their own pleadings. The obligation exists for the benefit of defendants – to allow them to be fully aware of, and able to address, the serious allegation – and for the Court which will be called upon to decide it.
[23] I add that the requirement to give proper particulars has another purpose. It requires a plaintiff to articulate their case. If a plaintiff can do no more than make general allegations, without giving details to show fraudulent conduct, malicious prosecution or misfeasance in public office, the court may infer that they do not have a case, and if they do not have a case, it may be struck out.
[24] Hone needs to appreciate that under the Court of Appeal’s decision in Schmidt v Pepper New Zealand (Custodians) Ltd, he is required to provide particulars in just the same way as a party represented by a lawyer. His lack of representation does not exempt him. At the same time, the particulars sought by the first and second defendants should specify matters of fact to be given by Hone. It is outside the scope of the particulars to require him to address matters of law.
[25] In my minute of 20 February 2019, I gave directions for the first and second defendants to give notices requiring particulars by 1 March 2019 and for Hone to reply by 15 March 2019.
The third defendant’s application
[26] The RSPCA applies for strike-out. It filed a separate application on 24 August 2018. The grounds are:
17 Davy v Garrett (1878) 7 Ch D 473 (CA) at 489.
18 Wallingford v Mutual Society (1880) 5 App Cas 685 (HL) at 697
(a)The statement of claim discloses no reasonable cause of action against it.
(b)The claim is frivolous or vexatious.
(c)Continuation of the proceeding is an abuse of process as it is being run for a collateral or improper purpose.
[27] Hone’s cause of action against the RSPCA is for conversion of Barney on 29 January 2015 in Lower Bridge Street, Nelson. The RSPCA had given Hone an instruction to prevent and mitigate suffering by Barney earlier in January, but Hone pleads that he had complied, and Barney was in as good or better state than most animals were at that time of the year. He also pleads that the RSPCA took the horse away when Hone was not able to pay the SPCA’s costs and the RSPCA knew that. The RSPCA disposed of the horse to an unknown person.
[28] That appears to be a sound pleading of a cause of action in conversion. Any assertion by the RSPCA that it was acting within its statutory powers is an affirmative defence which it will be required to plead and prove. Hone’s pleading of conversion does not fail because there may be a viable affirmative defence available to the defendant. Hone disputes the seizure by pleading that he complied with the earlier instruction and that the horse was in as good a condition as most animals at that time of the year. It will, of course, be a matter of evidence whether that is the case. The pleading discloses an arguable cause of action in conversion. It cannot be struck out on that ground.
[29] The RSPCA submits that Hone has no realistic prospect of success on his claim in conversion, but in an application to strike out for no reasonable cause of action, it is assumed that what a plaintiff has pleaded is capable of proof. The court is concerned with the quality of the pleading, not the quality of proof. On such a strike-out application, the plaintiff is not required to give any evidence at all.
[30] The RSPCA also says that the proceeding is an abuse of process because Hone is pursuing the claim for a collateral purpose. The abuse of process claim tends to
merge with the allegation that the claim is frivolous or vexatious. The RSPCA refers to paragraph 34 of the statement of claim:
The actions of the third defendant constituted conversion of Barney and have been a major obstacle to settling the underlying dispute, with the third defendant refusing to comply with requests for information that Barney’s whereabouts and the circumstances of his disposal.
The RSPCA says that this refers to the dispute with the city council and the police. Apparently Hone sees some connection between the RSPCA and the actions of the other defendants.
[31] That does not, however, make the claim for conversion an abuse of process. The claim is properly a claim for conversion of a horse, a recognised cause of action. Hone is taking that cause of action because he wants the court to decide that the RSPCA did wrong in taking the horse. It is beside the point that Hone may hope to achieve some incidental object as well as establishing that his horse was wrongly taken. That becomes apparent from the decision of the High Court of Australia in Williams v Spautz:19
The boundaries of abuse of process
34. The observations of the Privy Council in King v Henderson …. and those of Isaacs J in Dowling, … to which we referred earlier, represent an attempt to achieve a formulation which keeps the concept of abuse of process within reasonable bounds. To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceeding, constitutes, without more, an abuse of process might unduly expand the concept. The purpose of a litigant may be to bring proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event.
[35] Thus, to take an example mentioned in argument, an alderman prosecutes another alderman who is a political opponent for failure to disclose a relevant pecuniary interest when voting to approve a contract, intending to secure the opponent’s conviction so that he or she will then be disqualified from office as an alderman by reason of that conviction, pursuant to local government legislation regulating the holding of such offices. The ultimate purpose of bringing about disqualification is not within the scope of the criminal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a
19 Williams v Spautz (1992) 274 CLR 509 at 507.
result for which the law provides in the event that the proceedings terminate in the prosecutor’s favour.
[36] It is otherwise when the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed … or some collateral advantage beyond what the law offers. So in Dowling, Isaacs J pointed out:
If, for instance, it had been shown that the Society had simply threatened Dowling that unless he did what they had no right to demand from him, namely, give up certain names, they would proceed to sequestration, and they had proceeded accordingly, there would have been in law an abuse of process.
(Citations omitted)
[32] In this case, it appears that Hone is pursuing a claim in conversion for the very purpose for which it was designed. Accordingly, I am not satisfied that there is an abuse of process requiring striking-out.
Reply by Hone
[33] In its statement of defence, the RSPCA says that it acted in accordance with its statutory powers. That affirmative defence needs to be answered. Hone ought to file a reply under r 5.62 of the High Court Rules. He is to file and serve a reply by 22 March 2019. He should and set out in his reply those matters he relies on to say that the RSPCA cannot rely on its statutory powers under the Animal Welfare Act 1999.
The security for costs application
[34] The RSPCA seeks security for costs against Hone because there is reason to believe that Hone will be unable to pay its costs if he is unsuccessful. Hone accepts that he could not pay any order for costs. While he receives a benefit to meet his day- to-day living expenses, he has no other significant income or assets to meet any additional liabilities. He has consistently held himself out as leading a non- materialistic life. The RSPCA has established the threshold under r 5.45(1)(b) of the High Court Rules. Next comes exercising a discretion. The court must weigh on the one hand a plaintiff’s right of access to the court to have his case heard and determined against the defendant’s desire to be protected against obtaining no more than a barren
order for costs against an impecunious plaintiff. In considering the exercise of the discretion, the court considers the merits of the case, although that is often no more than a provisional assessment. Whereas the RSPCA filed evidence in support of its application, Hone did not give any evidence himself. At this stage, the RSPCA has shown a persuasive case that it acted in accordance with its powers under the Animal Welfare Act 1999. It seems to have good prospects of defending the case against it. In the hearing, Hone was unable to explain why the defence would not succeed.
[35] The courts are normally reluctant to bar a plaintiff with a worthy claim from the court. Their interests are often ranked ahead of the interests of a defendant who may not recover costs even if they succeed. But in this case, Hone’s interests are outweighed by the RSPCA’s. Hone’s case appears weak. The RSPCA is a charitable organisation that relies on donations to carry out its activities, as opposed to more substantial organisations such as government agencies, banks and large corporations. The inability to recover costs is likely to hit it harder. Accordingly, even though ordering security may bar Hone from continuing his claim against the RSPCA, security should be ordered.
[36] The RSPCA estimated that the costs of trial will be about $50,000. It suggested security of $30,000. In the hearing, I suggested that there may be room for reducing costs. Hone’s claim against the RSPCA is distinct from his claim against the other defendants. It relies on different events at different times. The relief he is seeking is within the civil jurisdiction of the District Court. There seems no reason why the cause of action against Hone could not be transferred to the District Court, to be heard separately from Hone’s claims against the city council and the police. Even if that part of the proceeding were to remain in this court, it could be heard separately.
[37] The amount at which security is set is not critical, because whatever amount I set, Hone is unlikely to be able to pay it. Accordingly, I fix security payable by Hone at $15,000, appreciating that that may be insurmountable for him. There will be a stay of the proceeding against the RSPCA until the security is paid. The security will operate with effect from 29 March 2019, giving Hone time in which to file his reply. The $15,000 is to be paid into court, to be held in an interest-bearing account. If Hone
does not pay the sum of $15,000 by 30 September 2019, the RSPCA may apply to strike his claim out.
Result
[38] Hone has largely succeeded against the second defendant on its application to strike out his claim. As he is a litigant in person, he cannot recover costs. However, if the second defendant seeks costs against Hone at a later hearing in this proceeding, his success on this application may count in reducing costs that might otherwise be awarded against him.
[39] There are no orders in respect of the first defendant. It has neither succeeded nor failed.
[40]The RSPCA is entitled to costs on its security for costs application.
[41]I make these orders:
(a)By 1 March 2019, the first and second defendants are to file and serve memoranda setting out further particulars they require the plaintiff to give. I encourage them to specify factual matters which the plaintiff ought to be able to address.
(b)By 15 March 2019, the plaintiff is to file and serve his response to the request for particulars.
(c)The file is to be referred to me to rule what particulars Hone should give.
(d)By 15 March 2019, the plaintiff is to file and serve his reply to the RSPCA’s statement of defence.
(e)The second defendant’s strike out application remains adjourned.
(f)The plaintiff is to provide security for costs of $15,000 for the third defendant to be held in an interest-bearing account in court, pending further order of the court. If the payment is not made by 29 March 2019, the plaintiff’s claim against the RSPCA is stayed. If the plaintiff does not provide the security by 30 September 2019, the RSPCA may apply to strike out the claim against it.
(g)The RSPCA has costs on its security for costs application. If costs cannot be agreed, memoranda may be filed. The plaintiff should file and serve his costs submission within five working days of the RSPCA’s
(h)The RSPCA’s strike-out application is dismissed.
(i)Leave is reserved to apply for further directions.
……………………………….
Associate Judge R M Bell
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