Hunter v Attorney-General - [2017] NZHC 2767

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2016-485-250 [2017] NZHC 2767

UNDER
the Judicature Act 1908 and 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 Plaintiff

AND

ATTORNEY-GENERAL SUED ON BEHALF OF THE NEW ZEALAND POLICE AND THE MINISTRY OF JUSTICE

Defendant

Hearing: On the papers

Counsel:

C J Tennet for Plaintiff
K Laurenson and G Ganeshan for Defendant

Judgment:

10 November 2017

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 4 October 2017 I gave a judgment striking out four of the plaintiff’s

causes of action and requiring him to replead six causes of action.1

[2] In a separate minute dated 26 September I invited the parties to make further submissions as to whom was the correct defendant or defendants for these

1 Hunter v Attorney-General [2017] NZHC 2433 at [56]–[58].

HUNTER v ATTORNEY-GENERAL SUED ON BEHALF OF THE NEW ZEALAND POLICE AND THE MINISTRY OF JUSTICE [2017] NZHC 2767 [10 November 2017]

proceedings, and whether the District Court was the more appropriate venue, the total damages sought being well below the High Court threshold of $350,000.2

[3] I have received written submissions from both parties in relation to the appropriate defendant and venue which I set out below.

Submissions

[4] Counsel for the defendant submitted as follows:

(a) The Commissioner of Police was named original defendant in the statement of claim dated 18 April 2016.

(b)The amended statement of claim dated 1 May 2017 named the “Attorney-General sued on behalf of the New Zealand Police and Ministry of Justice” without the plaintiff having followed the correct procedure to join a defendant.

(c) The only claim against a judicial officer is the complaint against an unnamed Justice of the Peace who allegedly committed the tort of abuse of process in failing to act with “due prudence and diligence”.

(d)Claims in tort against the servants of the Crown acting judicially are barred by subs 6(1) and (5) of the Crown Proceedings Act 1950.

(e) The issuing of a warrant is a judicial process, even where issued by a registrar not a judge.3

(f) The Attorney-General in respect of the Ministry of Justice ought not to be joined as a party.

(g)The total damages sought in the amended statement of claim (for claims in the alternative, taking the largest of the sums claimed) come

2 Hunter v Attorney-General HC Wellington CIV-2016-485-250, 26 September 2017.
3 Thompson v Attorney-General [2016] 3 NZLR 206, upheld by the Supreme Court in refusing leave in Thompson v Attorney-General [2016] NZSC 134.

to $208,400.

(h)A judge in the High Court may transfer a proceeding to the District Court of his or her own initiative if it is within the District Court jurisdiction and the judge is satisfied that no important question of law or fact is likely…

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 [2017] NZHC 2767
Case: [2017] NZHC 2767
Decision Date: 10 November 2017

CaseChat Overview and Summary

The High Court of New Zealand considered a case brought by Brian Damien Hunter against the Attorney-General on behalf of the New Zealand Police and the Ministry of Justice. Hunter alleged trespass, conversion, unreasonable search and seizure, trespass of goods, arbitrary detainment, and sought relief. The court previously struck out four of Hunter's causes of action and required him to replead six. The legal issues included determining the correct defendant and the appropriate jurisdiction for the case. Counsel for the defendant argued that the plaintiff improperly changed the defendant's identity without following the correct procedure and that the Crown Proceedings Act 1950 barred claims against judicial officers. The plaintiff's counsel argued that judicial officers are not absolutely immune from tort liability and that the High Court was the appropriate venue. The court concluded that the Attorney-General on behalf of the New Zealand Police was the correct first defendant, and that claims against the Justice of the Peace were not adequately pleaded. The court also determined that if Hunter wished to proceed against the Justice of the Peace, he needed to formally join the Justice of the Peace as a defendant and amend the pleadings accordingly. If Hunter did not do so, the case would be transferred to the District Court. The court made orders for the correct defendant, the removal of the Attorney-General on behalf of the Ministry of Justice as a defendant, and set timeframes for filing amended statements of claim and statements of defence.

The final orders included requiring the plaintiff to file his amended statement of claim with the correct defendant within four weeks of the judgment and transferring the case to the District Court if the plaintiff did not formally join the Justice of the Peace as a defendant within the set timeframe. The court made no award of costs as the plaintiff was legally aided.

Orders