Hunter v Attorney-General - [2022] NZHC 1890

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-016

[2022] NZHC 1890

UNDER
Judicature Act 1908

The New Zealand Bill of Rights Act 1990

IN THE MATTER OF

Trespass of property, conversion,

unreasonable search and seizure of personal property, trespass of goods, arbitrary

detainment, claim for relief

BETWEEN

BRIAN DAMIEN HUNTER

Appellant

AND

ATTORNEY-GENERAL

Respondent

Hearing: 2 June 2022

Appearances:

G E Minchin for the Appellant

A W M Britton and S B McCusker for the Respondent

Judgment:

2 August 2022

JUDGMENT OF PALMER J

Solicitors/Counsel
G E Minchin, Barrister, Auckland
Luke Cunningham Clere, Wellington

HUNTER v ATTORNEY-GENERAL [2022] NZHC 1890 [2 August 2022]

What happened?

[1] On four occasions in 2012, 2013 and 2015, the Police searched Mr Brian Hunter’s address. In April 2016, he filed proceedings in the High Court challenging aspects of two of the searches in 11 causes of action. In May 2016, the Crown indicated it had invited a repleading and threatened strike-out otherwise. In June 2016, Mr Chris Tennet, for Mr Hunter, proposed to replead on the basis no fresh causes of action would be introduced. The amended statement of claim was filed on 1 May 2017, considerably extending the scope of the claim to encompass all four searches and 22 causes of action.

[2] On 4 October 2017, the High Court struck out four causes of action, granted leave to replead five others to meet legal requirements, and required another to be repleaded.1 In 10 November 2017, in a judgment containing further criticism of the statement of claim, the High Court directed a further amended statement of claim be filed by 8 December 2017 and transferred the proceedings to the District Court, if a Justice of the Peace was not formally joined as defendant within a set timeframe.2 Churchman J also stated:

[28] I am concerned at the leisurely fashion in which this matter has proceeded. If this case is to continue then it must do so in a timely manner.

[3] The amended statement of claim was not filed within the time directed. Churchman J recorded in a minute of 20 December 2017 that the delay in filing was not the fault of the plaintiff and extended the time for filing to 10 January 2018. That deadline was met.

[4] There were further delays in the District Court. The appellant provided discovery and will-say statements six months late. A statement in reply took 11 months. Briefs were not filed in advance of an impending fixture on 25 August 2021. The Crown applied for an unless order, to which Mr Hunter consented. On 8 October 2021, Judge Tompkins made an unless order in relation to briefs of evidence to be prepared on what Mr Hunter considered to be his strongest causes of action:3

1      Hunter v Attorney-General [2017] NZHC 2433.
2      Hunter v Attorney-General [2017] NZHC 2767.
3      Hunter v Commissioner of Police DC Wellington CIV-2016-485-250, 8 October 2021.

For avoidance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hunter v Attorney-General

Details

AGLC: Hunter v Attorney-General [2022] NZHC 1890
Case: [2022] NZHC 1890
Decision Date: 2 August 2022

CaseChat Overview and Summary

In the case of Hunter v Attorney-General, Brian Damien Hunter, the appellant, brought a claim against the Attorney-General, the respondent, challenging aspects of four police searches conducted in 2012, 2013, and 2015. Hunter filed proceedings in the High Court in April 2016, initially bringing 11 causes of action. After several amendments and extensions of time, the proceedings were transferred to the District Court. The District Court imposed an unless order, directing that if Hunter failed to file briefs of evidence by a specified date, the proceeding would be dismissed. Hunter failed to meet this deadline, resulting in the District Court dismissing the proceeding. Hunter appealed the dismissal to the High Court.

The primary legal issue in this appeal was whether the District Court had the jurisdiction to dismiss the proceeding under the unless order and whether the High Court could grant relief from the dismissal. The Court of Appeal had previously established principles for unless orders, which were applicable in this case. These principles include that unless orders take automatic effect, and the party in default may seek relief by application to the Court. However, if the unless order has been deliberately breached, it is difficult to conceive of any situation where the interests of justice would require granting the party in default relief from the sanction imposed.

The High Court found that the District Court had properly applied the law relating to unless orders and that the unless order had automatic operation. The Court held that the District Court could not be appealed as Mr Hunter had failed to make a formal application for relief from the unless order, which should have been made in the District Court. The Court also noted that the appeal was not a technicality, as it left the Court to assess explanations for the default based on a memorandum by counsel and "evidence" from the bar, rather than an affidavit complying with the rules of evidence.

Ultimately, the High Court dismissed the appeal and held that Hunter was still able to apply formally to the District Court for relief from the operation of the unless order. The chances of success in such an application would be affected by the lengthy delay in taking up that option and the lack of obvious substantive merit of the underlying causes of action. The Court also noted that costs would lie where they fall, on the basis that Hunter appears to be legally aided.

Orders