Murray v Commissioner of Police

[2014] NZHC 1243

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-2454 [2014] NZHC 1243

IN THE MATTER OF

an application for judicial review

BETWEEN

JOHN CARNE MURRAY Applicant

AND

COMMISSIONER OF POLICE First Defendant

GISBORNE DISTRICT COUNCIL Second Defendant

PRIVACY COMMISSIONER Third Defendant

HUMAN RIGHTS REVIEW TRIBUNAL Fourth Defendant

Hearing:	26 May 2014
Counsel:	Applicant appearing in person D Harris for the First Defendant D J O’Connor for the Second Defendant K Evans for the Third Defendant No appearance for the Fourth Defendant (abides)
Judgment:	5 June 2014

JUDGMENT OF MALLON J

Introduction

[1]      Mr Murray has filed a judicial review proceeding against the Commissioner of Police, the Gisborne District Council (the Council), the Privacy Commissioner and the Human Rights Review Tribunal (the Tribunal). The Commissioner of Police, the Council and the Privacy Commissioner apply to strike out the proceeding.  The

Tribunal  has  not  yet  formally  filed  any  document  but  through  counsel  for  the

MURRAY v COMMISSIONER OF POLICE [2014] NZHC 1243 [5 June 2014]

Commissioner  of  Police  has  conveyed  that  it  intends  to  abide  by  the  Court’s

decision.

[2]      The claim arises out of events that took place following the termination of Mr Murray’s  computer  services  at  the  Council’s  premises  in  2001.    Mr Murray sought information from the Council.   Some of the information requested was withheld.   The Privacy Commissioner investigated.   Dissatisfied with the Privacy Commissioner’s view, Mr Murray brought proceedings in the Tribunal against the Council.  Prior to the hearing the Council decided to provide Mr Murray with a full copy of the information he had been seeking.   The hearing before the Tribunal nevertheless proceeded.  In a decision given on 31 March 2010 the Tribunal found in Mr Murray’s  favour,  declaring  that  the  Council’s  earlier  refusal  to  provide  the

information was an interference with Mr Murray’s privacy.1

[3]      Despite that success Mr Murray then embarked on litigation in the courts. Initially he filed an appeal from the Tribunal’s decision.  That appeal was struck out because it was lodged out of time.2   Mr Murray’s application for leave to appeal that decision was dismissed by the High Court3  and his application for special leave to

appeal was also dismissed.4   Mr Murray commenced a judicial review proceeding in

the High Court at Gisborne naming the Council and the Privacy Commissioner as defendants.   That proceeding was struck out as disclosing no reasonable cause of action.5

[4]      Before  the  decision  in  that  first  judicial  review  proceeding  was  given, Mr Murray commenced a second judicial review proceeding in the High Court at Wellington naming the Tribunal and the Council as defendants.   In respect of that proceeding an amicus was appointed.  The amicus submitted three memoranda to the Court.  The amicus informed the Court that he could see no ground for pursuing the

judicial review and that there was no statutory or other jurisdiction for appeal at any

1      Murray v Gisborne District Council [2010] NZHRRT 7.

2      Murray v Gisborne District Council HC Wellington CIV-2010-485-743, 3 June 2010.

3      Murray v Gisborne District Council HC Wellington CIV-2010-485-743, 30 March 2011.

4      Murray v Gisborne District Council [2011] NZCA 282. Mr Murray also sought leave to appeal to the Supreme Court. That application was not accepted for filing because there was no jurisdiction to hear it.

5      Murray v Gisborne District Council HC Gisborne CIV-2011-416-223, 11 March 2012.

level from the Tribunal’s decision.   A proposal was put forward on Mr Murray’s behalf  with  a  view  to  addressing  his  concerns  and  bringing  an  end  to  further litigation by him arising out of the events.  Orders by consent were made suppressing particular paragraphs of the Tribunal’s decision of concern to Mr Murray.6    Despite these consent orders, Mr Murray applied for an extension of time to appeal the High Court’s decision. That application was dismissed.7   In dismissing that application the Court of Appeal said:

Mr Murray should accept the fact that this litigation is now at an end.  He should not attempt to file fresh proceedings which traverse the same ground as the current proceedings. That would be an abuse of the Court’s process.

[5]      Mr Murray believes that a Council employee improperly received money from Mr Murray’s software following the termination of his services.   He sought access to information from the Council to support this.   The Tribunal hearing concerned his information request. At the Tribunal hearing this same employee gave evidence that Mr Murray made a threat to kill him.  That evidence was recorded in the Tribunal’s decision.   Mr Murray says he did not make that threat.   All of the above litigation concerns these events.  The consent orders made in the High Court in the second judicial  review proceeding were intended to address Mr Murray’s concern about the alleged threat to kill referred to in the Tribunal’s decision by suppressing those parts of the Tribunal decision.

[6]      Mr Murray’s latest judicial review application also concerns these events. The claim against the Commissioner of Police concerns information held by the police about the alleged threat to kill.   The claim against the Council concerns wasted ratepayers’ money in the Council’s attempts to disparage Mr Murray and cause him loss of dignity.  The claim against the Tribunal concerns the record in its decision of the Council employee’s evidence that a threat to kill was made.   The claim against the Privacy Commissioner concerns its response to the initial withholding of the information held by the Council.   As stated by the Court of Appeal, proceedings in respect of these matters are now an abuse of the Court’s

process. They are struck out accordingly.

6      Murray v Human Rights Review Tribunal [2012] NZHC 3423.

7      Murray v Human Rights Review Tribunal [2013] NZCA 441.

[7]      I  understand  from  Mr Murray  that  his  understanding  is  that  he  cannot continue to bring proceedings arising out of these events unless he has new evidence. That is not correct.  The position is much more restrictive than that because of the public interest in the finality of litigation.   That public interest is reflected in the Court of Appeal’s statement set out above.

[8]      After the hearing Mr Murray filed a letter for my consideration.  In that letter he advised that he now intended to focus on the activities of the Tribunal.   He remains concerned that the Tribunal published the Council employee’s allegations that Mr Murray had committed a crime (the alleged threat to kill) when he had done no  such  thing.    Mr Murray is  under  the  misapprehension  that  the  effect  of  the High Court’s  consent  orders is  that  if  he pursues  this  proceeding the Tribunal’s decision reverts to its unsuppressed form.  That is not the case.  The Court of Appeal has ruled that further proceedings on these matters are an abuse of process.

[9]      I note that Mr Murray has sought that an amicus be appointed.   It is not appropriate to do so in respect of proceedings that cannot be pursued.

[10]     I decline to order costs in favour of the defendants.   Mr Murray remains distressed by the events that unfolded from 2001 and has lacked understanding or has not been able to accept that he cannot continue with these same claims.  A costs order is pointless.

Mallon J

Solicitors:

Crown Law, Wellington for First Defendant

Lunn & Associates Ltd, Napier for Second Defendant

Office of the Privacy Commissioner, Wellington for Third Defendant

Copy to:

J C Murray