Maile v Attorney-General

[2019] NZHC 2651

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002510

[2019] NZHC 2651

BETWEEN

JUNIOR MAILE

Plaintiff

AND

THE ATTORNEY-GENERAL SUED IN RESPECT OF THE DEPARTMENT OF CORRECTIONS

Defendant

Hearing:	14 October 2019
Appearances:	No appearance for the Plaintiff J McGrath for the Defendant
Judgment:	18 October 2019

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 18 October 2019 at 10.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Crown Law, Wellington

MAILE v THE ATTORNEY-GENERAL SUED IN RESPECT OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 2651 [18 October 2019]

[1]                 In this proceeding against the Attorney-General, Mr Maile claims $50,000 in damages in relation to his being unlawfully detained by the Department of Corrections during a period of 21 days in 2011. The Attorney-General seeks strike-out.

[2]                 Mr Maile’s statement of claim pleads a single cause of action based, it seems, on alleged breach of s 22 of the New Zealand Bill of Rights Act 1990 which affirms the right not to be arbitrarily arrested or detained. In support he  relies  on  an October 11 decision of Courtney J to grant his application for habeas corpus.1 In that decision her Honour found that time Mr Maile had spent on remand in relation to certain charges between  9 June 2010 and 12 October 2010 counted  against  the     20 month sentence imposed on 14 September 2011 for his conviction for money laundering.2 She held that this meant that the Department should have released him – instead of continuing to hold him in detention – upon being sentenced for money laundering.3 She ordered his release.

[3]  The Attorney-General, on behalf of the Department, acknowledges the Department’s error and says it came about because the time Mr Maile spent in custody between 9 June 2010 and 12 October 2010 was mistakenly treated as unrelated to the charge of money laundering, which was not brought until 12 October 2010.

[4]                  But the Attorney-General says that, despite the error, Mr Maile’s claim cannot succeed. He seeks an order to strike out the claim as not reasonably arguable. This is on the basis that:

(a)The claim is statute-barred by s 11(1)  of the  Limitation Act 2010.     It was filed on 9 November 2018, being more than one year outside the 6 year "primary period" provided by the Limitation Act for lodging a claim.

(b)The claim does not meet the requirements for a late knowledge period to apply with the associated extension of time within which to file it. Mr Maile was aware of all the elements of his cause of action by

1      Maile v Manager, Mt Eden Correction Facility [2012] NZAR 39 (HC).

2 At [10].

3 At [1].

5 October 2011 when he was released from custody as a result of the habeas corpus decision of Courtney J.

[5]                 Mr Maile has taken no formal steps in opposition to the Attorney’s strike out application and he failed to appear on 14 October 2019.

[6]                 It is clear Mr Maile has had notice of the hearing and the requirement that he file documents in opposition. Mr Maile appeared before the Court on 17 July 2019 when Associate Judge Smith directed the application be set down for hearing on     14 October 2019 and directed him to file documents in opposition by 16 August 2017. His Honour’s minute recording the directions made on 17 July was sent out by the Registry to Mr Maile’s then address for service, Mt Eden Prison, where he remained until his release on 5 October 2019.

[7]                 On 23 September 2019 his Honour directed that the hearing for 14 October would proceed on an undefended basis while reserving leave in case Mr Maile should decide to appear. In his minute of that date, He said:

[4]    Counsel for the defendant advises that Mr Maile was released from    Mt Eden Prison on 5 September 2019. But he has not filed any new address for service, and the defendant has been unable to serve his strike out submissions on Mr Maile. The defendant now seeks directions whether the 14 October hearing is to proceed.

[8]                 The second minute may well not have come to Mr Maile’s attention as he did not file a change of address for service upon his release.  But that does not negate  the fact that Mr Maile  has had notice of the hearing and the directions made on     17 July 2019. It can only be assumed he would have appeared had he wanted to be heard.

Relevant legal principles

[9]                 High Court Rule 15.1(1)(a) provides that the Court may strike out all or part of a claim if it discloses no reasonably arguable case of action.

[10]              It is well established that a claim being plainly statute-barred is a basis for striking it out under r 15.1 unless the plaintiff can show an arguable case for an extension or postponement which would bring the claim back within time.4

[11]              Section 11 of the Limitation Act 2010 requires a money claim to be brought six years after the date of the act or omission on which it is based. A money claim expressly includes a claim for monetary relief for a breach of the New Zealand Bill of Rights Act 1990. If a claim is not brought within six years it is time-barred. There is an exception to the six-year limitation where a claimant has late knowledge of the claim. Section 14 sets out the meaning of “late knowledge”:

14 Late knowledge date (when claimant has late knowledge) defined

(1)A claim's late knowledge date is the date (after the close of the start date of the claim's primary period) on which the claimant gained knowledge (or, if earlier, the date on which the claimant ought reasonably to have gained knowledge) of all of the following facts:

(a)the fact that the act or omission on which the claim is based had occurred:

(b)the fact that the act or omission on which the claim is based was attributable (wholly or in part) to, or involved, the defendant:

(c)if the defendant's liability or alleged liability is dependent on the claimant suffering damage or loss, the fact that the claimant had suffered damage or loss:

(d)if the defendant's liability or alleged liability is dependent on the claimant not having consented to the act or omission on which the claim is based, the fact that the claimant did not consent to that act or omission:

(e)if the defendant's liability or alleged liability is dependent on the act or omission on which the claim is based having been induced by fraud or, as the case may be, by a mistaken belief, the fact that the act or omission on which the claim is based is one that was induced by fraud or, as the case may be, by a mistaken belief.

4      Murray v Morel & Co Ltd [2007] NZSC 27, [2007] 3 NZLR 721 at [33].

Decision

[12]                I consider the claim is time-barred by s 11(1) of the Limitation. The gist of the Attorney-General’s submissions, which I accept is as follows:

[13]              Mr Maile seeks $50,000 damages. The claim is therefore a money claim under the Limitation Act. This is so regardless of whether the cause of action is a claim for monetary relief for false imprisonment at common law, to which s 12(1) of the Limitation Act applies; or a claim under s 22 of the Bill of Rights Act 1991 for breach of the right not to be arbitrarily detained, to which s 12(2)(c) of the Limitation Act applies.

[14]              The relevant date for limitation purposes is the time during which the unlawful imprisonment occurred, from September 2011 to October 2011. Mr Maile had a six-year primary period beginning in October 2011 in which to bring his claim, which expired in October 2017.

[15]              Mr Maile did not file his claim until 9 November 2018. This was more than one year past the expiry of the primary period. Therefore, a limitation defence applies.

[16] Mr Maile cannot avail himself of the late knowledge provisions. They are set out above at [11]. None appear to apply in his case. As of his release date, or, at most, the date of the reasons judgment Mr Maile was aware that he should not have been detained between 14 September and 5 October 2011. The order for a writ of habeas corpus was made on 5 October 2011 and Courtney J’s reasons were provided on 10 October. Mr Maile cannot bring a late knowledge claim because:

(a)From October 2011 onwards there seems to be no dispute that Mr Maile understood  that  he   should   not   have   been   detained   between  14 September 2011 and 5 October 2011 and that his detention was attributable to the Department of Corrections. As such neither s 14(1)(a) nor (b) apply to his situation.

(b)An action for false imprisonment can be brought per se without proof of damage, and the same is true for a breach of the Bill of Rights Act.

The claim could be brought from the date of release. As such s 14(1)(c) does not apply.

(c)The other late knowledge subsections  are  clearly  not  relevant  to  Mr Maile’s case.

Conclusion

[17]                  For the above reasons, I find Mr Maile’s claim is time-barred by s 11(1) of the Limitation Act. Accordingly, his claim is struck out.

[18]                If costs are sought, counsel for the Attorney-General is to file a memorandum within 5 working days.

Associate Judge Sargisson