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Hunter v Attorney-General

Hunter v Attorney-General

Case [2017] NZHC 2433 4 October 2017

Abuse of Process

False Imprisonment

Breach of Statutory Duty

Civil Litigation & Procedure

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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 2433

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: 21 September 2017

Counsel:

C Tennet for Plaintiff

K Laurenson and G Ganeshan for Defendant

Judgment:

4 October 2017

JUDGMENT OF CHURCHMAN J

[1] A statement of claim in these proceedings was initially filed on 18 April 2016. It sought a variety of remedies in relation to what was said to be two unlawful searches. The defendant was named as “Commissioner of Police”.

HUNTER v ATTORNEY-GENERAL SUED ON BEHALF OF THE NEW ZEALAND POLICE AND THE MINISTRY OF JUSTICE [2017] NZHC 2433 [4 October 2017]

[2] By memorandum dated 24 May 2016 the defendant sought an extension of time for filing the statement of defence.

[3] The memorandum recorded that the plaintiff had been invited to replead his claim and that if that invitation was declined there would be an application either to strike out or for security for costs.

[4] The plaintiff’s counsel, Mr Tennet, filed a memorandum dated 7 June 2016. That memorandum included the following statement:

While the Plaintiff does not accept his Statement of Claim is … deficient (or else it would not have been filed), the opportunity will be taken to file a fresh Statement of Claim. It will be a redaction of the current pleadings and at this stage will not be introducing any fresh causes of action.

[5] On 8 June 2016 Mallon J issued a minute granting the defendant an extension of time for filing its statement of defence to within four weeks of the date the amended statement of claim that was to be filed. The minute indicated that any application for security for costs was to be made at the same time as the statement of defence was filed.

[6] The amended statement of claim was not filed for almost a year until 1 May 2017. The scope of the statement of claim had been extended considerably and now encompassed causes of actions arising from a total of four Police searches rather the two referred to in the original statement of claim.

[7] On 23 May 2017 the Attorney-General filed an application to strike out parts of the amended statement of claim. I will refer to the Attorney-General as the applicant from here and the plaintiff as the respondent with regards the strike out application.

[8] The amended statement of claim contains some 22 causes of action, some of which were pleaded in the alternative. It extends to 41 pages, including schedules.

The strike out application

[9] The strike out application by the Attorney-General focuses essentially on three…

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 2433
Case: [2017] NZHC 2433
Decision Date: 4 October 2017

CaseChat Overview and Summary

In Hunter v Attorney-General, the plaintiff, Brian Damien Hunter, filed a statement of claim in April 2016 against the Attorney-General, sued on behalf of the New Zealand Police and the Ministry of Justice, alleging unlawful searches, conversion, trespass, arbitrary detainment, and seeking relief. The defendant initially sought an extension of time to file a statement of defence, which was granted. The plaintiff subsequently filed an amended statement of claim in May 2017, expanding the scope to include four police searches rather than the original two. The defendant then filed an application to strike out certain parts of the amended statement of claim, focusing on causes of action related to abuse of process, false imprisonment, breach of the right to not be arbitrarily arrested or detained, and breach of statutory duty.

The legal issues before the court were whether the causes of action for abuse of process, false imprisonment, breach of the right to not be arbitrarily arrested or detained, and breach of statutory duty were adequately pleaded and whether any of them disclosed a reasonably arguable cause of action. The court considered the principles for determining a strike out application, including whether the cause of action was clearly untenable. The court found that the plaintiff's claims for abuse of process in causes of action 1, 12, and 15 were inadequately pleaded as they did not identify the ulterior purpose for the searches. The plaintiff was granted leave to replead these causes of action to fit within the legal requirements. The court also found that the plaintiff's claims for false imprisonment in causes of action 5 and 16, and breach of the right to not be arbitrarily arrested or detained in cause of action 6, were inadequately pleaded and were therefore struck out. The plaintiff was given leave to replead causes of action 16 and 17 if there was a factual basis for the alleged detention. The court further found that the plaintiff's claims for breach of statutory duty in causes of action 7 and 22 were also inadequately pleaded and were struck out. The plaintiff was given leave to replead cause of action 14 to separate out the causes of action related to sections 21 and 22 of the New Zealand Bill of Rights Act 1990.

The court granted the defendant's application for a partial strike out and ordered the plaintiff to replead certain causes of action within the specified timeframes. The defendant was entitled to costs for the successful strike out application. The defendant had four weeks from the filing of a second amended statement of claim to file a defence, and any further applications for security for costs or further particulars were to be made within the same time frame.

Orders