Hunter v Neville - [2016] NZHC 2261

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/Applicants

Judgment:

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…

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 Neville

Details

AGLC: Hunter v Neville [2016] NZHC 2261
Case: [2016] NZHC 2261
Decision Date: 28 September 2016

CaseChat Overview and Summary

In the case of Hunter v Neville, the plaintiff, Brian Hunter, sought damages for alleged misfeasance in public office and negligence against the defendants, who were probation officers and the Chief Executive of the Department of Corrections. Hunter claimed that the defendants were responsible for preparing Pre-sentence Reports in 2011 and 2012, which contained false information about the suitability of his address for an electronically monitored sentence. The defendants applied to strike out Hunter's proceeding on the basis that their actions in relation to their reporting duties to the Court were protected by witness immunity and that they owed Hunter no duty of care.

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