Hunter v Attorney-General
[2017] NZHC 2433
•4 October 2017
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 different types of causes of action:
(a)abuse of process (causes of action 1, 12 and 15);
(b)the tort of false imprisonment (causes of action 5 and 16) and breach of s 22 of the New Zealand Bill of Rights Act 1990 (NZBORA) (causes of action 6, 14 and 17); and
(c)breach of statutory duty (causes of action 7 and 22).
[10] In relation to cause of action 14 the applicant says that causes of action under ss 21 and 22 NZBORA have been conflated and the alleged s 21 breach requires a separate pleading.
Strike out applications
[11]High Court Rule 15.1(1) provides for a proceeding to be struck out when it:
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleadings; 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.
[12] There is little dispute between the parties as to the principles to be applied in determining a strike out application. These are that the jurisdiction is to be exercised sparingly and the cause of action must be clearly untenable.1
[13] The pleaded facts are assumed to be capable of proof except in the situation where an essential factual allegation is “so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further”.2
[14] The applicant acknowledged that partial strike out applications are unusual but referred to the observations of the Court of Appeal in McClintock.3 I accept that this
1 Attorney General v Prince [1999] 1 NZLR 262 at 267; confirmed in Couch v Attorney General
[2008] NZSC 45, [2008] 3 NZLR 725 at [33].
2 Attorney General v McVeagh [1995] 1 NZLR 558 (CA) at 566.
3 McClintock v Attorney General [2016] NZCA 274 at [13].
is an appropriate case for a partial strike out falling within the principles set out by the Court of Appeal in McClintock. It is also a case where the pleadings will be improved significantly by the addition of further details.
Causes of action 1, 12 and 15
[15] The tort of abuse of process is pleaded in causes of action 1, 8, 12 and 15 of the amended statement of claim. The applicant challenges how it is pleaded in causes of action 1, 12 and 15.
[16] The applicant does not seek to strike out these causes of action on the basis that they can never succeed but says that the tort cannot be made out on the claim as presently pleaded in the causes of action 1, 12 and 15.
Tort of abuse of process
[17] The tort of abuse of process is made out where the Court process is used for a predominant purpose beyond the ambit of the legal claim on which the Court is asked to adjudicate.4
[18] In order to be made out abuse of process requires use of the legal process (here obtaining a warrant from a Justice of the Peace) in order to accomplish an ulterior purpose, that is, a purpose other than the purpose the proceedings are designed for, or some collateral advantage.5
[19] The applicant submits that in the causes of action 1, 12 and 15 there is no pleading that the searches were carried out by the Police for purposes beyond those for which the search warrants were obtained, or any criminal proceedings contemplated by the associated investigations.
4 Grainger v Hill (1883) 4 Bing (NC) 212, 132 ER 769 (Comm Pleas); Commercial Union Assurance Co of NZ v Lamont [1989] 3 NZLR 187 (CA).
5 Stephen Todd (ed) The Law of Torts in New Zealand (online loose leaf ed, Thomson Reuters) at [18.5.02].
[20] In relation to these causes of action the applicant submits that on the plaintiff’s own pleadings search warrants were obtained and executed for the purposes within the ambit of matters considered within the search warrant application.
[21] The respondent submits that in each instance the Police conduct impugned was outside “the proper ambit” as there was no reasonable cause to suspect that the plaintiff had committed an offence or other causal connection between the allegations and the actions taken by the Police.
[22] The respondent, at [7] of the submissions dated 13 September 2017, submits in the alternative that the present pleadings could be replaced with a pleading relating to the “tort of malicious procurement of a search warrant”, or the tort of “malicious prosecution”.
[23] In regards to either of these alterative claims Mr Tennet for the respondent needs to expressly plead the ulterior purpose upon which it is alleged each of the three impugned search warrants was obtained.
[24] As presently pleaded, the amended statement of claim appears to acknowledge that the three search warrants were obtained in connection with the investigation of allegedly criminal activity.
[25] The fact that the Police may have known that there was a civil dispute between the defendant and Orari Gorge Station Ltd cannot mean that the warrants were obtained for an ulterior purpose. The significant thing is that the Police were clearly investigating something which was clearly capable of amounting to criminal activity.
[26] None of the matters set out in [7] of the amended statement of claim are relevant to the issue of whether the Police acted for an ulterior motive but rather seemed to focus on criticising aspects of the process followed.
[27] Mr Tennet argued that the manner in which a search warrant is executed may invalidate the warrant. However that is a different question than whether or not the
warrant was obtained for an ulterior purpose so as to amount to the tort of abuse of process.
Alternative torts
[28] Mr Tennet suggested that the abuse of process pleadings could be replaced with a claim of malicious prosecution, or malicious procurement of a search warrant or the tort of misfeasance in a public office.
[29] In relation to malicious prosecution, to successfully establish this tort would require the plaintiff to plead:6
(a)that the defendant prosecuted the plaintiff on a criminal charge;
(b)the criminal proceedings terminated without the plaintiff being incriminated;
(c)the defendant had no reasonable and probable cause to bring the proceedings;
(d)the defendant acted maliciously; and
(e)the plaintiff suffered damage as a consequence of the proceeding.
[30] Given that there have, as yet, been no prosecution proceedings, the suggestion in [7] of the respondent’s submissions that the abuse of process causes of actions could be replaced with proceedings alleging the tort of malicious prosecution is unfounded.
[31] There is no doubt that it is a tort for a person maliciously and without reasonable and probable cause to procure the issue of a warrant to arrest.7 Maliciously and without reasonable and probable cause procuring the issue of a warrant to search
6 Page v Page [2007] DCR 670 (DC) at [15]–[35].
7 Meikle v The Wellington Loan Co (Ltd) (1911) 31 NZLR 217 (SC); Roy v Prior [1971] AC 470 (HL).
a suspect’s house is also actionable8 but mere negligence in procuring the warrant is not.9
[32] Stephen Todd in The Law of Torts in New Zealand sets out the elements of the tort of malicious procurement of a search warrant:10
What amounts to reasonable cause depends on the statutory condition for the grant of the warrant. It must be shown that the defendant lacked any bona fide belief that he or she was placing before the issuing Judge material sufficient to meet the necessary conditions. This encompasses the subjective belief in good faith that material ground for suspicion exist and the objective requirement that the belief is reasonably held. Malice includes improper motive, which in this case would be establishing a proof of intent to use the process for a purpose other than to search in the permitted circumstances. There is a presumption that a judicial officer issuing a warrant acted properly but that establishes neither the accuracy of the matters presented to the judicial officer or the state of mind of the applicant for the warrant. Generally, any damage will arise from execution rather than issue of the warrant, but there may be special circumstances in which it can be shown that the issue of the warrant causes harm.
[33] If there is to be a cause of action alleging malicious procurement of a search warrant or misfeasance in a public office, the defendant would have to plead malice and the details supporting it. This is a high threshold.
[34]The elements of the tort of misfeasance in public office were summarised in
Currie v Clayton:11
1Standing: The plaintiff must have standing to sue.
2Public office: The defendant must be a public officer.
3Unlawful conduct: The defendant must have acted or omitted to act in purported exercise of her public office unlawfully either:
(a)intentionally, that is actually knowing her actions or omission to act were beyond the limits of her public office; or
(b)with reckless indifference as to whether she was acting or omitting to act outside those limits.
4Intention: The defendant must have so acted or omitted to act either:
8 Evans v Crawford (1884) 2 NZLR 407 (SC); Gibbs v Rea [1998] AC 786 (PC).
9 Simpson v Attorney-General [Baigent’s case] [1994] 3 NZLR 667 (CA).
10 The Law of Torts in New Zealand, above n 5, at [18.5.03].
11 Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195 at [40].
(a)with malice towards the plaintiff, that is, with intention to harm the plaintiff; or
(b)knowing her conduct was likely to harm the plaintiff, or people in the general position of the plaintiff; or
(c)with reckless indifference as to whether the plaintiff would be harmed. Subjective recklessness, not objective recklessness, is required.
(Note: (a) is what is often called “targeted malice”; (b) and (c) are often called “non-targeted malice”.)
5Resulting loss: The plaintiff must actually have suffered loss and the defendant's actions must have caused the plaintiff's claimed loss.
[35] There is nothing in the amended statement of claim as presently pleaded that comes close to meeting these requirements.
[36] In [14] of the respondent’s submissions it is suggested that “… once the discovery process is engaged it may be that personal connections can be made between the complainants in this [matter] … and the particular Police officers who acted on their behalf”. That is utter speculation and does nothing to alter the fact that, as presently pleaded, causes of action 1, 12 and 15 do not contain pleadings identifying the ulterior purpose which it is alleged result in an abuse of process. Neither do they plead to the matters necessary to establish any of the alternative causes of action set out in [7] of the respondent’s submissions and above.
[37] The respondent has permission to replead causes of action 1, 12 and 15 to fit within the legal requirements set out above.
False imprisonment
[38] The amended statement of claim pleads causes of action in both false imprisonment and breach of the right in s 22 of the NZBORA to not be arbitrarily arrested or detained.
[39] As was acknowledged by counsel there are slightly different pleading requirements in respect of each of these concepts. I address first the allegations of false imprisonment in causes of action 5 and 16.
[40] In relation to the fifth cause of action the plaintiff’s complaint is that a Police car was parked immediately behind the plaintiff’s vehicle on his property “making it impossible for the plaintiff to drive off”. This is the sole particular in support of the allocation of false imprisonment. As was said by the High Court in Siemer v Brown:12
For false imprisonment to be made out, the defendant must have asserted a total restraint upon the plaintiff; “total in the sense that it prevented all movement and not merely in some directions”.
[41] Mr Tennet argued that, in a rural setting, the inability to use one’s vehicle was a more significant deprivation of liberty than it might be in an urban setting. Whether that is correct or not, it does not come anywhere close to the requirement for a “total restraint”. Mr Tennet did not suggest any possible way in which the fifth cause of action could be repleaded to allege a total restraint. It is therefore struck out.
[42] The sixteenth cause of action also alleges false imprisonment in relation to the search that occurred on 21 July 2015.
[43]The sixteenth cause of action is said to be based on what is pleaded in [112] to
[116] of the amended statement of claim. The only relevant pleading in that section appears to be what is set out at [114(d)] where it is alleged:
Police remained on the property for a period of three or more hours and detained the plaintiff for that period.
[44] There are no particulars whatsoever provided as to how it was alleged that the plaintiff was “detained”. It is at least possible that the plaintiff may be able to plead the particulars of a “total restraint” as required for the tort of false imprisonment to be made out and the defendant will be given that opportunity. However in the absence of such particularised pleadings this cause of action will be struck out too.
Breach of s 22 NZBORA
[45] The sixth cause of action is pleaded as an alternative to the fifth cause of action. It is alleged the plaintiff was arbitrarily detained. Confusingly, in [47] of the amended
12 Siemer v Brown [2014] NZHC 3175 at [164] citing Blundell v Attorney-General [1968] NZLR 341 (CA) at 357 per McCarthy J.
statement of claim the words “unlawful imprisonment” rather than “arbitrary detention” are used.
[46] The applicant submitted that a breach of s 22 of the NZBORA requires that a person be required to attend a particular place or remain in a particular place when non-compliance is subject to a penalty, or words or conduct by Police that provides a reasonable belief that the person is not free to leave.13
[47] Given that this claim is pleaded as an alternative to the fifth cause of action, and that cause of action was based solely on an allegation of the Police car having pulled in behind the applicant’s vehicle, there is no possible way that the sixth cause of action can be amended to meet the test set out in R v M and it accordingly is struck out.
[48] In relation to the fourteenth cause of action, arising from the December 2013 search of the plaintiff’s premises, there are no facts pleaded relating to any alleged arrest or detention. The plaintiff was merely present while the Police searched his house. Accordingly [110] of the amended statement of claim, which seeks $10,000 compensation for “arresting and/or otherwise detaining” is manifestly incomplete as a pleading. There is no factual basis on which to assert that the plaintiff had a reasonably held belief that he was not free to leave. The respondent is given leave to replead this cause of action but in the absence of a particularised factual pleading setting out the basis upon which it is asserted that the respondent reasonably believed he was not free to leave, it will be struck out.
[49] In relation to the seventeenth cause of action, this, like the sixteenth cause of action relies upon an alleged detention in [114(d)] unsupported by any factual pleading. The respondent is granted permission to replead cause of action 17 alongside 16 if there is a factual basis on which to assert the respondent was detained. Otherwise this cause of action will be struck out.
13 R v M [1995] 1 NZLR 242.
Breach of statutory duty
[50]Causes of action 7 and 22 allege breach of statutory duty.
[51] The seventh cause of action refers to a written complaint of 20 November 2012 which the respondent says the Police were required to notify to the Independent Police Conduct Authority. It is asserted that the Police’s failure to do so gives the plaintiff a right of action for breach of statutory duty.
[52] In the twenty-second cause of action similar arguments are made in relation to another complaint of the plaintiff dated 11 October 2015.
[53] In order to establish the tort of breach of statutory duty the Court needs to be able to identify in the particular statute an intention to confer a private law right of this character.14
[54] As Mr Tennet acknowledged, it is difficult to identify any such intention in the present statute, particularly in light of the fact that the statute confers on individuals who are aggrieved by Police conduct the ability to complain directly to the Authority.15
[55] I am unable to identify any statutory intention that a private right of breach of statutory duty is conferred on an individual in relation to a failure by Police to report a complaint to the Independent Police Conduct Authority in a timely manner. Accordingly, causes of action 7 and 22 are struck out.
Conclusion
[56]The following causes of action are struck out: 5, 6, 7 and 22.
[57] The respondent is entitled to replead causes of action 1, 12, 15, 16 and 17 in a way that meets the legal requirements set out above.
14 Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513, [2011] 2 NZLR 442 at [186].
15 Independent Police Conduct Authority Act 1988, s 12.
[58] The fourteenth cause of action must be repleaded separating out the separate causes of action in relation to ss 21 and 22 of the NZBORA.
[59] In accordance with the directions in Mallon J in the Minute of 8 June 2016 the applicant will have four weeks from the date of the filing of a second amended statement of claim within which to file a defence. Any application for security for costs is to be made within the same time as is any further strike out application or application for further particulars.
Costs
[60] The applicant has been successful in the partial strike out application and is entitled to costs. I invite the applicant to submit a memorandum within 14 days with the respondent having 14 days to respond.
Churchman J
Solicitors:
John Miller Law Crown Law
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