LP v Attorney-General - [2016] NZHC 169

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF THE PLAINTIFF OR OTHERS REFERRED TO IN THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000272 [2016] NZHC 169

BETWEEN
LP

Plaintiff

AND

ATTORNEY-GENERAL Defendant

Hearing: 4 February 2016

Appearances:

Plaintiff in person
N A Pointer for the Defendant

Judgment:

15 February 2016

JUDGMENT OF NATION J

[1] The plaintiff in his statement of claim has made an application for judicial review. He seeks orders requiring the Police to proceed with an investigation into certain allegations he made with certain directions as to the factual basis on which the investigation should continue and lines of enquiry they should pursue.

[2] The plaintiff’s claim begins with these allegations:

1. On 24th February, 2015, I phoned Central Police Crime Reporting line and reported a burglary of intellectual property entrance the previous night to my guest house room [address given].

2. On 5th March I sent a further letter outlining my belief an assault, sexual assault or anal rape might have occurred on the night of the 23-24th February. I based my allegation on considerable soreness in the spine upon awakening, and soreness in the anus area which lasted about 8 or 9 days. I

LP v ATTORNEY-GENERAL [2016] NZHC 169 [15 February 2016]

alleged the assault must have involved use of an anaesthetic as I had no memory of the incident.

[3] The Defendant, for the Police, has applied to strike out the statement of claim.

[4] The application was initially argued as a hearing before Associate Judge Matthews on 12 October 2015. The Associate Judge heard submissions from the plaintiff and from Ms Pointer, counsel for the defendant. Before the Associate Judge had delivered his judgment, the plaintiff brought to the Court’s attention a passage in McGechan on Procedure which indicated there could be an issue as to whether an
Associate Judge had jurisdiction to strike out an application for judicial review.1

After receiving submissions, the Judge decided that the position as to his jurisdiction was uncertain but arguable both ways. He decided the preferable course would be for the application to be heard anew before a Judge of the High Court. The hearing proceeded accordingly on 4 February 2016.

[5] Ms Pointer again presented submissions for the defendant. The plaintiff presented submissions for himself.

Legal context

[6] The strike out application is made pursuant to r 15.1 of the High Court Rules. Relevantly, r 15.1 provides:

15.1 Dismissing or staying all or part of proceeding

(1) The court may strike out all or part of a pleading if it—

(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

…

(c) is frivolous or vexatious; or

(d) is otherwise an abuse of the process of the court.

1 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at
[HR2.1.01].

[7] The application has been made on the basis that the statement of claim discloses…

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 LP v Attorney-General

Details

AGLC: LP v Attorney-General [2016] NZHC 169
Case: [2016] NZHC 169
Decision Date: 15 February 2016

CaseChat Overview and Summary

The plaintiff, LP, brought an application for judicial review against the Attorney-General, seeking orders to require the Police to investigate certain allegations he made. The defendant applied to strike out the statement of claim. The court had to decide whether the plaintiff's application disclosed a reasonably arguable cause of action, and whether the pleadings were vexatious or an abuse of process. The court considered the principles for striking out claims and the evidence provided. The court found that there was no prospect of the plaintiff obtaining the relief he sought, as the Police had properly considered the plaintiff's allegations and decided not to investigate them further. The court concluded that the proceedings should be struck out as they had no merit and no prospect of success. The court made an order accordingly and suppressed the plaintiff's name and identifying information.

Orders