Hunter v Attorney-General
[2022] NZHC 1890
•2 August 2022
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 of doubt Mr Tennet accepts that these timetable directions can and will be met, so if there is default with regards to [the direction to file briefs of evidence by 3 pm on Tuesday, 26 October 2021], time being of the essence, then pursuant to r 7.41 of the DCR, this proceeding will be dismissed without the need for further application by the defendant.
[5] A brief was filed two days late on 28 October 2021, and a further brief and the bundle of evidence was not filed until 15 November 2021. In a memorandum of 1 November 2021, the Crown noted that the proceedings were struck out by operation of the unless order and explained that any relief would need to be the subject of a formal application which would be opposed, given the extraordinary delays. On 26 November 2021, Judge Tompkins recorded:4
In accordance with my minute dated 8/10/21, and noting the “unless” order contained therein, and given the plaintiff’s default in complying with timetable 1 contained therein, then in accordance with the “unless” order, this proceeding is dismissed.
[6] On 2 December 2021, the Crown filed a further memorandum of counsel repeating its previous advice that the proceedings were struck out unless a formal application for retrospective extension, which would be opposed, was granted.
[7] Mr Hunter appeals the District Court’s decision of 26 November 2021. He subsequently applied in the District Court to recall the minute of 26 November 2021 on the same grounds as the appeal but, on 4 February 2022, did not pursue that.5
Law of unless orders
[8] The Court of Appeal in SM v LFDB clarified that unless orders take automatic effect and set out the principles relevant to unless orders:6
(a)As an unless order is an order of last resort, it is properly made only where there is a history of failure to comply with earlier orders.
(b)An unless order should be clear as to its terms. That is, it should specify clearly what is to be done, by when and what is the sanction for non-compliance. That sanction should be proportionate to the default.
4 Hunter v Attorney-General on behalf of the NZ Police DC Wellington CIV-2016-485-250, 26 November 2021.
5 Hunter v Attorney-General [2022] NZDC 1759.
6 SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494 at [29] and [31].
(c)The sanction will apply without further order if the party in default does not comply with the order by the time specified. However, the party in default may seek relief by application to the Court.
(d)Justice may require that the party in default be relieved of the consequences of the unless order where the Court is satisfied that the breach resulted from something for which that party should not be held responsible. The party should not assume that belated compliance will suffice.
(e)Where the unless order has been deliberately breached — that is, flouted — it is difficult to conceive of any situation where the interests of justice would require granting the flouter relief from the sanction imposed, notwithstanding belated compliance with the order.
(f)In deciding whether or not to excuse breach of an unless order the question for the Judge is: what does justice demand in the circumstances of this case? Considerations in answering that question include:
(i)The public interest in ensuring that justice is administered without unnecessary delays and costs.
(ii)The interests of the injured party, in particular in terms of delay and wasted cost.
(iii)Any injustice to the defaulting party, although that consideration is likely to carry much less weight in the circumstances than considerations (i) and (ii).
[9] In Houghton v Saunders, the Court of Appeal stated that “where the making of unless orders has not been challenged [in the High Court], and the only issue is whether a failure to comply with such orders should be excused, an application for relief should be made in the High Court rather than by way of appeal to this Court”.7 It also stated that “[i]t is oppressive and unfair for claims to be left hanging over the head of a defendant for an unnecessarily protracted period”.8
Submissions
[10] Mr Minchin, for Mr Hunter, explains that the minute about the date was not sent to Mr Tennet who incorrectly remembered the date. As a result the brief, which only related to part of the proceeding and essentially restated the claim, was filed two days out of time. A computer failure meant a second brief and the bundle were provided on 15 November 2021, 14 days late. He submits that the sins of counsel
7 Houghton v Saunders [2020] NZCA 638 at [82].
8 At [84].
should not be visited on the client, there was no prejudice, the unless order was only made a result of the Court’s desire to get to trial, and the sanction was disproportionate to the default. He submits Mr Tennet accepted costs would lie against himself and that way forward would have kept the matter on track for trial.
[11] Mr Minchin acknowledges an unless order needs no other order but is complete once the contingency is complete. He concedes there must be an application and there was not an application. But he submits that is a formality whereas an issue of substantive justice was outstanding and what Mr Tennet said in a memorandum of 24 November 2021 is what would have been in an application. He submits the District Court erred by assuming dismissal automatically followed and should have exercised its residual discretion and given Mr Hunter a chance to make a proper application. He submits it is in the public interest for this public law proceeding to proceed and, with reference to Fitzgerald v R, “the proceeding” should be interpreted in a rights- consistent manner as meaning the causes of action which were proceeding.9 If the hearing had proceeded and the Crown had been successful, it would still have faced the other causes of action.
[12] Mr Britton, for the Crown, submits an unless order has automatic operation and does not require further exercise of discretion, which is only engaged by formal application by the defaulting party for relief from the unless order (which still remains open to him). He points out that the Crown advised Mr Tennet of the correct procedural pathway on 1 November and 2 December 2021, but no application for relief from the order, which explicitly covered the entire proceeding, was ever filed. Nor was an informal application or any admissible evidence ever advanced. Mr Britton submits the Judge made no error, there is no decision on relief from which this Court can conduct the appeal and, accordingly, it lacks jurisdiction.
Can and should the District Court proceeding be revived?
[13] Mr Britton is correct about the application of the law relating to unless orders, as the Court of Appeal judgment in SM v LFDB makes clear. The unless order here was properly made in response to a history of failures to comply with earlier orders.
9 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
The order was clear and specified what was to be done, by when, and what sanction should follow for non-compliance. The terms of the order were not met by the time specified. The sanction therefore applied without further order of the Court.
[14] Mr Hunter could have sought relief by applying to the District Court. The Crown pointed that out in memoranda, twice. It pointed it out in argument of this appeal. Mr Minchin goes some way towards accepting that. But he maintains his argument that there is some residual discretion which the District Court failed to exercise. That is only so if the requisite application had been made, which Mr Minchin concedes did not happen. Accordingly, the decision of the District Court cannot be appealed. The application for relief should have been made in the District Court. This Court lacks jurisdiction, as Mr Britton submits. In this context, I do not understand how his Fitzgerald interpretation argument assists Mr Minchin.
[15] This is not just a technicality. If Mr Hunter had formally applied to the District Court for relief from the operation of the unless order, the Court could have assessed the explanation for the default which should have been contained in the accompanying affidavit. Instead, on purported appeal, I am left with a mish-mash of suggestions in a memorandum by Mr Tennet and “evidence” from the bar at the hearing of the appeal. Those explanations should comply with the rules of evidence so the Crown can decide whether it wishes to test them.
[16] Accordingly, the appeal is dismissed. Mr Hunter is still able to apply formally to the District Court, with an accompanying affidavit, for relief from the operation of the unless order. The chances of success will no doubt be affected by the lengthy delay in taking up that option despite three indications by the Crown of that route as well as the difficulty of visiting a counsel’s sins on a client. It may also be affected by the lack of obvious substantive merit of the underlying causes of action. But that is for that Court to consider, if faced with such an application. It would be aware of the Court of Appeal’s indications of the relevant considerations in SM v LFDB. And it would no doubt consider whether it is proportionate to strike out the whole of the proceeding for the flouting of orders relating only to some causes of action.
Result
[17] I dismiss the appeal. Costs will lie where they fall, on the basis that Mr Hunter appears to be legally aided.
Palmer J
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