Heke v Nelson City Council

[2018] NZHC 2062

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2017-442-000004

[2018] NZHC 2062

BETWEEN

HONE MA HEKE

Plaintiff

AND

NELSON CITY COUNCIL

First Defendant

AND

ATTORNEY-GENERAL sued on behalf of the Police of New Zealand

Second Defendant

AND

NELSON BRANCH OF THE ROYAL NEW ZEALAND SOCIETY FOR THE

PREVENTION OF CRUELTY TO ANIMALS INCORPORATED

Third Defendant

Hearing:

26 July 2018

Appearances:

H Ma Heke in person (but supported by S Zindel) J Ironside for First Defendant

J Webber for Second Defendant (and appearing on arrangement for M Wallace for Third Defendant)

Judgment:

13 August 2018

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

[on strike out application]

Introduction

[1]    Hone Ma Heke, resides in Nelson. In his statement of claim he describes his lifestyle as peripatetic. Between 2011 and 2015, Mr Ma Heke, then known as Lewis Reginald Stanton, with his cart and horse came into conflict with the Nelson City Council. The Council and the New Zealand Police took a number of steps in response.

MA HEKE v NELSON CITY COUNCIL [2018] NZHC 2062 [13 August 2018]

In 2015, the Nelson branch of the Royal New Zealand Society for the Prevention of Cruelty to Animals seized and re-homed Mr Ma Heke’s horse.

[2]    In January 2017, Mr Ma Heke issued this proceeding. In the statement of claim, he identifies a number of causes of action including breaches of rights and freedoms under the New Zealand Bill of Rights Act 1990; misfeasance in public office; malicious prosecution (both criminal and civil) and conversion.

[3]    Mr Ma Heke has represented himself in the proceeding. He was not able to obtain legal aid but has had assistance on a voluntary basis from Mr Zindel, who appeared in the nature of a McKenzie friend at the hearing before me.

[4]    In March 2017, the defendants filed their defences but 11 sets of further particulars of the plaintiff’s claim were sought. At the time of the first case management conference in June, it was accepted on behalf of Mr Ma Heke that further particulars were required. However, Mr Ma Heke was (unsuccessfully) pursuing legal aid. In the circumstances, the Court ordered that the proceeding be stayed pending clarification of the legal aid position. The Associate Judge noted that the proceeding could not be left on an open-ended basis without resolution.

[5]In January 2018, the plaintiff’s application for legal aid was declined.

[6]    Since then, there have been a number of developments relevant to the application now before the Court which I will come to.

Application to strike out the plaintiff’s claim

The basis and grounds of the application

[7]    The second defendant has applied for an order striking out the whole of Mr Ma Heke’s claim. The second defendant relies upon the history of the proceeding including the continued inadequacy of pleadings; the age of events pleaded against the second defendant (having arisen in 2012); and Mr Ma Heke’s delay in taking steps to pursue what are serious allegations.

[8]    Counsel  have  also  referred  to  discussions  which  took  place  between    26 February 2018 and 1 March 2018 between Mr Zindel on behalf of Mr Ma Heke and all counsel for the defendants. Mr Ma Heke has put that correspondence before the Court in the form of a memorandum.

[9]    On 26 February 2018, Mr Zindel recorded by email to the three lawyers representing the defendants, under a heading relating to this proceeding:

Over the weekend, the plaintiff has agreed to withdraw the proceeding on the basis that no costs are claimed against him. Kindly indicate whether this finds favour with your client.

[10]   Each of the lawyers responded by email (variously on 28 February 2018 and 1 March 2018). Each recorded the agreement of their client to a discontinuance with no orders as to costs. For the Attorney-General, Mr Webber recorded that the discontinuance must be “immediately”. For the Council, Mr Ironside recorded that the Council was consenting to discontinuance without costs “on the understanding that Mr Stanton will not seek to bring any future proceeding in the High Court arising out of the same subject-matter”.

[11]   On 28 March 2018, Associate Judge Matthews made directions requiring the plaintiff to file and serve his discontinuance within five working days if he was doing so. Alternatively, the plaintiff was required to file and serve an amended statement of claim providing the required further particulars by 19 April 2018.

[12]   Mr Ma Heke filed neither a discontinuance nor an amended statement of claim. The Attorney-General’s strike out application followed.

[13]The Court allocated a hearing date of 26 July 2018.

[14]   Through the Registrar, the Court notified the parties that the hearing would proceed on 26 July 2018 on an unopposed application.

The hearing

[15]Mr Ma Heke appeared at the hearing (with Mr Zindel assisting).

[16]   It was evident that Mr Ma Heke wished to make submissions in opposition. He emphasised to me in some detail the difficulties which he has had as a lay-person in advancing his case. I adjourned the hearing to allow Mr Ma Heke three working days in which to present a draft of any notice of opposition and affidavit in opposition in support of an application for an extension of time.

Mr Ma Heke’s draft opposition documents

[17]Mr Ma Heke filed a draft notice of opposition and an affidavit in opposition.

[18]The draft notice of opposition identifies five grounds of opposition:

1.The respondent (plaintiff), Hone Ma Heke, intends to oppose the interlocutory application by the second defendant, on behalf of all defendants, dated 6 July 2018.

2.The respondent is opposed to the making of the orders sought in paragraph 1 in the application.

3.The grounds on which the respondent opposes the making of the orders are as follows:

(a)On 30 November 2017, there was something of a Concordat at All Saints Church, Nelson, where there was a considerable degree of good feeling and mutual apologies expressed as between the Nelson City Council and the respondent. The respondent’s public vigil on Trafalgar Street had ceased earlier, and the partial settlement has been in the process of being bedded down and is not complete.

(b)Legal aid was refused by the Legal Aid Tribunal on 18 January 2018 and the respondent's ability to advance the case would realistically depend on legal advice, which the respondent cannot fund.

(c)Associate Judge Matthews made a direction of 28 March 2018, which the respondent found difficult to comply with and the respondent was seeking justice in the broader sense from continued negotiation so that he might resume his lifestyle before the interventions of the defendants.

(d)The application to strike out has come recently and the respondent has endeavoured to comply with the directions by filing an amended statement of claim and this notice and accompanying affidavit before the Court's deadline of 2 August 2018.

(e)It is in the interests of justice that the respondent's claim be allowed to see the light of day.

[19]In Mr Ma Heke’s affidavit in opposition, he deposed:

1.Legal aid was refused on 18 January 2018 …

2.Associate Judge Matthews had issued a Minute on 21 June 2017 asking for advice about legal aid and staying the proceeding meanwhile. The Court and the other parties were subsequently advised that legal aid was refused.

3.The second and third defendants filed a memorandum of 22 March 2018 and Associate Judge Matthews  issued  a  further  Minute  of 28 March 2018, effectively adopting aspects of the earlier memorandum and stating that I could discontinue the proceeding, which I do not wish to do, or I should file an amended statement of claim, which I am doing today, and then any other applications from the defendants could be filed, and for there to be tailored discovery.

4.The Judge indicated that leave was reserved to apply to strike out the claim. The application to strike out has been filed and the Court indicated today that I had until noon on 2 August 2018 to file any opposition, which would be treated as a draft until the Court gave any leave to oppose out of time. The notice of opposition is being filed at the same time as this affidavit.

5.As I indicated to the Court today, to me it is about the system and the combination of legal aid shortcomings and other actors within the system trying to stop me from holding the very same system accountable, with big issues that need to be addressed, and for which I wish to be given the opportunity to seek justice in my civil claim.

6.While a lot of the heat has gone out of the dispute, because Nelson City Council has been accommodating in some ways and I have left my vigil outside Farmers store in Trafalgar Street, there are still issues of justice and principle which I wish to pursue.

Striking out a claim – the principles

[20]   High Court Rule 15.1 makes provision for orders striking out all or part of a pleading. In particular, r 15.1(1) provides:

15.1     Dismissing or staying all or part of proceeding

(1)The court may strike out all or part of a pleading if it—

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b)is likely to cause prejudice or delay; or

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of the process of the court.

[21]   I adopt the following as principles applicable to the consideration of this application:

(a)The Court is to assume that the facts pleaded are true (unless they are entirely speculative and without foundation).

(b)The cause of action must be clearly untenable in the sense that the Court can be certain that it cannot succeed.

(c)The jurisdiction is to be exercised sparingly and only in clear cases.

(d)The jurisdiction is not excluded by the need to decide difficult questions of law, even if requiring extensive argument.

(e)The Court should be slow to rule on novel categories of duty of care at the strike out stage.1

Rule 15.1(1)(b)

[22]   The Court of Appeal in Commissioner of Inland Revenue v Chesterfields Preschools Ltd described r 15.1(1)(b) as requiring an element of impropriety and abuse of the Court’s processes.2 The Court noted that the circumstances of prejudice or delay are potentially very wide. The authors of McGechan on Procedure by reference to case-law (particularly Chesterfields), outline different aspects of pleadings which have been found likely to cause prejudice or delay so as to warrant striking out. They include unnecessarily prolix pleadings and pleading of irrelevant or purely evidentiary material.

Rule 15.1(1)(d)

[23]   The Court of Appeal in Chesterfields described r 15.1(1)(d) as extending beyond the other grounds in the Rule and capturing all other instances of misuse of

1      Attorney-General v Prince [1998] 1 NZLR 262 (CA).

2      Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53 at [89].

the Court’s processes, such as a proceeding that has been brought with an improper motive or is an attempt to obtain a collateral advantage beyond that legitimately gained from a Court proceeding. An improper purpose or motive need not be the sole purpose or motive as long as it is the predominantly purpose or motive.3

Discussion

[24]   The focus of the original (21 June 2017) stay was on the failure of Mr Ma Heke to properly particularise his claim. Subsequently, there were the exchanges in February/March concerning discontinuance. Following that, Associate Judge Matthews made directions in relation to the filing of a notice of discontinuance or (within 15 working days) a fully particularised amended statement of claim, to be followed by tailored discovery.

[25]   It was Mr Ma Heke’s failure to comply with those timetable directions which led to the Attorney’s strike out application.

[26]   Importantly, it has not been suggested for the defendants that Mr Ma Heke’s pleadings failed to disclose arguable causes of action. The issue in relation to Mr Ma Heke’s pleadings is that they are have not been properly particularised and there have been repeated delays, in breach of the timetable, in providing proper particulars. Against that, the Court must weigh the fact that Mr Ma Heke is without legal assistance, having unsuccessfully sought to obtain legal aid. With his draft documents, he has now provided a draft amended statement of claim which appears to make a serious and focused effort at providing the particulars sought.

[27]   Given the circumstances of Mr Ma Heke, I cannot conclude that the delays or failures of Mr Ma Heke to date in providing proper particulars should lead to the striking out of a claim which the plaintiffs do not suggest discloses no reasonable causes of action.

[28]   In the way Mr Ma Heke’s draft amended statement of claim has been provided following the initial hearing of the Attorney’s application, the further particulars

3      Goldsmith v Sperrings Ltd (1977) 1 WLR 478 (CA) at 496; Williams v Spautz (1992) 174 CLR 509 (HCA) at 529.

offered have not been the subject of developed argument. But it is often in the nature of a strike out application that the plaintiff’s best response is to indicate to the Court (through proposed amendments) why a failure in relation to pleadings might yet be rectified, so as to cut across the appropriateness of an order striking out the entire claim.

[29]   There appear to be matters of arguably greater weight in favour of an order striking out the claims. First, the exchange of correspondence in February/March 2018 as to discontinuance. Secondly, the explanation identified in Mr Ma Heke’s grounds of opposition that in November 2017 there was “something of a Concordat” and that a “partial settlement has been in the process of being bedded down and is not complete”. Mr Ma Heke added that he was “seeking justice in the broader sense from continued negotiations so that he might resume his lifestyle before the interventions of the defendants”.

[30]   The email exchanges of February/March 2018 seem to indicate that Mr Ma Heke made an offer to withdraw (or discontinue) his proceeding if the defendants did not pursue costs and that the defendants agreed to those terms. However, the Attorney- General did not specifically identify this as a ground of application for striking out Mr Ma Heke’s claims. Nor did Mr Webber present developed submissions in relation to the proposition that a settlement of Mr Ma Heke’s claims had been reached. It may be arguable that a settlement on fully-agreed terms was not achieved. First, counsel for the defendants sought in March 2018, after the February/March 2018 emails, further timetabling directions which were not based on there being a concluded settlement agreement. Secondly, the 1 March 2018 email response for the first defendant required there to be an “understanding” that the plaintiff would not seek to bring any future proceeding in the High Court arising out of the same matter.

[31]   In these circumstances, the email exchange as to withdrawal/discontinuance in February/March 2018 does not of itself justify the striking out of the claim.

[32]   The second concern, which arises from Mr Ma Heke’s draft notice of opposition, is that there appears to be at least a suggestion in Mr Ma Heke’s grounds of opposition that he views the continuation of the litigation as something in the nature

of a background against which he can continue to negotiate with other parties in order to resume the lifestyle he had before “the interventions of the defendants”. The subject-matter of Mr Ma Heke’s claims and the relief he seeks in this litigation as against both the first and second defendants is invariably damages and costs. Any use of this proceeding against the first and second defendants to procure a “lifestyle” outcome might be seen as involving the use of the proceeding to obtain a collateral advantage. The only relief sought by way of declaration is a declaration that the third defendant’s actions in re-homing Mr Ma Heke’s horse were unlawful, pursuant to which Mr Ma Heke seeks an order for the return of the horse. As the horse was undoubtedly a significant part of Mr Ma Heke’s lifestyle, that aspect of the claim (against the third defendant) might reasonably form the basis of an argument that there is not a use of the proceeding against the third defendant for collateral purposes.

[33]   Having regard to the content of Mr Ma Heke’s draft notice of opposition, I raised with him (through Mr Zindel) the possibility that his proceeding was being used for collateral purposes. Mr Ma Heke filed a memorandum in response rejecting any suggestion that he wishes to continue to the litigation with the ulterior motive of keeping the Council up to the mark in terms of the “Concordat” which led him to abandon his previous conduct in September 2017. Mr Ma Heke records that he has always kept those issues separate from this proceeding. He views this proceeding as his attempt to bring accountability for the failure of a system through the treatment previously accorded to him.

[34]   The extent to which Mr Ma Heke has caused delay in this proceeding to some extent reinforces the impression that the proceeding is not being continued for its own purposes. On the other hand, there appear to have been significant developments in the relationships, particularly between Mr Ma Heke and the Council, while the litigation has been on foot. That has coincided with a period where Mr Ma Heke has tried to obtain legal aid but has ultimately been refused. It may be that Mr Ma Heke genuinely views the relief sought in this proceeding as remedies he will pursue if other outcomes do not fall into place.

[35]   I am not satisfied it would be appropriate to exercise the strike out jurisdiction upon the basis that the continuation of the proceeding involves an abuse of process.

[36]   That said, the Concordat which Mr Ma Heke has wished to see “bedded down” occurred more than eight months ago. It occurred between the plaintiff and the first defendant. There are other defendants involved in this litigation. There is no justification for Mr Ma Heke not now having his litigation completely in order and able to be moved to resolution (subject to any interlocutory application which the defendants have signalled they might bring in relation to security for costs or otherwise).

[37]   In a jurisdiction which is to be exercised sparingly and only in clear cases, I am not satisfied that Mr Ma Heke’s claims should be struck out, either in their entirety or partly. A significant factor in this outcome lies in the fact that Mr Ma Heke has (albeit inexcusably late) submitted a more particularised statement of claim.

[38]   Having regard to the lateness of the submission of that document, I will be adjourning the Attorney’s strike out application with leave to have it brought on for further argument if the Attorney, on advice, considers that the amended pleading remains of such a nature that an order under r 15.1 would be appropriate.

[39]   In a separate Minute to be issued today, I will make timetable directions in relation to any other interlocutory matters (whether related to security for costs or otherwise).

Orders

[40]I order:

(a)The second defendant’s application for an order striking out the whole of the plaintiff’s statement of claim is adjourned, with leave to the second defendant to have the application restored for further argument on 10 working days’ notice;

(b)The costs of the application to date are reserved.

Associate Judge Osborne

Solicitors:

Plaintiff in person (assisted by S Zindel, Zindels, Nelson)

J Ironside, Barrister & Solicitor, Wakefield Duncan Cotterill, Nelson

O’Donoghue Webber, Nelson