IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CIV 2016-454-000044 [2016] NZHC 2261
BETWEEN BRIAN HUNTER
Plaintiff
AND
JULEANNE DENISE NEVILLE First Defendant
JODI MARIE JEFFREY Second Defendant
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Third Defendant
Hearing: 21 September 2016 Appearances:
G Minchin for the Plaintiff/Respondent
S K Barr for the Defendants/ApplicantsJudgment:
28 September 2016
JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN
This judgment was delivered by me on
28.09.16 at 3:00pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
B HUNTER v J D NEVILLE, J M JEFFREY AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC 2261 [28 September 2016]
Background
[1] The defendants apply to strike out Mr Hunter’s proceeding. Mr Hunter claims damages for misfeasance in public office and/or negligence against the defendants, two probation officers and the chief executive of the Department of Corrections (collectively ‘Probation’).
[2] Mr Hunter says the defendants were responsible for the preparation of Pre- sentence reports in 2011 and 2012. Those were ordered by the District Court for Mr Hunter’s sentencing on forgery charges. Mr Hunter asserts the probation officers knew or should have known their reports contained false information as to the suitability of his address for an electronically monitored sentence.
The facts as pleaded
[3] At the time of the events Mr Hunter was residing in a rural location near Ashhurst, in the Manawatu. He said he resided at a property he was in the process of purchasing and from which he ran businesses as an IT consultant. He had entered guilty pleas to forgery charges. The Court had indicated a preparedness to impose a sentence of home detention rather than imprisonment and a community probation presentence report was called for. Ms Wallis a Probation Officer and a colleague had visited his premises and carried out testing for electronic monitoring.
[4] On 27 June 2011 a Pre-Sentence Report (the First Report) recommending home detention was completed. On 17 August 2011 Mr Black of Feilding Probation, telephoned Mr Hunter and informed him the Court had asked Probation to do a new Home Detention Report. Mr Hunter says the First Report found no issue with the suitability of his address for home detention, and that it had good coverage for electronic monitoring. Subsequently and by memorandum dated 9 September 2011, Probation sought a direction and obtained an order from the Court to provide an updated report.
[5] On 30 September 2011 the first defendant and another attended Mr Hunter’s
property to carry out another assessment for home detention monitoring. Mr Hunter
submits that proper procedure was not followed. He said the Home Monitoring Unit (HMU) ought to have been installed in a static location within the house by connecting it to mains power and then a test ought to have been conducted to establish whether or not the HMU had a GPRS connection to the Vodafone network. Then the ankle bracelet ought to have been checked to establish a connection to…
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- AGLC
- Hunter v Neville [2016] NZHC 2261
- Case
- [2016] NZHC 2261
- Decision Date
CaseChat Overview and Summary
The court considered whether witness immunity applied to the defendants' actions and whether there was any exception to this immunity in cases of misfeasance. The court found that witness immunity did apply to the defendants' actions, as they were providing reports to the Court as part of their statutory function. The court also found that there was no exception to witness immunity in cases of misfeasance, as the defendants' actions were limited to reporting on the testing undertaken at Hunter's premises, rather than actively fabricating evidence. Furthermore, the court held that a duty of care was not owed to Hunter as a matter of law, as it would be inconsistent with the statutory duty of the probation officers owed to the Court under the Sentencing Act 2002.
As a result, all causes of action against the first and second defendants were struck out, and any claim against the third defendant or against the Attorney-General was also struck out because those persons would be entitled to rely upon the same immunity and defences available to the first and second defendants. The strike out applications were granted, and costs were reserved for determination upon application.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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