Saleh v Attorney-General - [2023] NZHC 3712

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-711

[2023] NZHC 3712

BETWEEN
PHILLIP SALEH

Plaintiff

AND

ATTORNEY-GENERAL OF NEW ZEALAND

First Defendant

NEW ZEALAND POLICE

Second Defendant

Hearing: 14 November 2023

Appearances:

P Saleh is self-represented

Madeline C Boyle/Susannah Shaw for the Defendants

Judgment:

18 December 2023

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Plaintiff’s application for summary judgment.
Defendants’ application for strike-out]

This judgment was delivered by me on 18 December 2023 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Meredith Connell (Madeline Boyle/Susannah Shaw), Auckland, for the Defendants

SALEH v ATTORNEY-GENERAL OF NEW ZEALAND [2023] NZHC 3712 [18 December 2023]

TABLE OF CONTENTS

Paragraph

Introduction [1]

Background [2]

Mr Salah’s application for summary judgment [6]

Affidavit of Phillip Saleh [8]

Defendants’ opposition and application for strike-out [14]

Legal principles  [18]
Summary Judgment  [18]
Strike-out  [21]

Analysis [23]

Defendants’ strike-out application [25]

The claim discloses no reasonably arguable cause of action or
actionable right of relief against the defendants [27] The claim is vexatious or frivolous as it is time-barred [31] The claim may be otherwise an abuse of process [34]

Mr Saleh’s further documentation [36]

Mr Saleh’s submissions [38]

Result [41]

Mr Saleh’s application for summary judgment against the defendants [43]

Orders [44]

Introduction

[1] Mr Phillip Saleh (Mr Saleh) applies for summary judgment against the Attorney-General and New Zealand Police (Police) (together, the defendants) for numerous allegations against the Police’s conduct, claims which in turn the defendants apply to strike out.

Background

[2] This proceeding appears to have its genesis in the 2013 issuance of a Court order served on Mr Saleh. In service of that order, Police and Mr Saleh dispute whether Mr Saleh was forced or merely recommended to vacate the property he co- owned and was living at, 65 Curtis Road in Rawene (the property).

[3] In 2015, Mr Saleh received a Court order vesting the property in him in three months’ time, subject to the bank’s mortgagee power of sale. That power appears to have been exercised with the property sold to a third party on 23 December 2015, now reflected on the title. There were subsequently Tenancy Tribunal proceedings by the purchasing third party to obtain possession of the property from Mr Saleh.

[4] By way of summary judgment, Mr Saleh raises numerous allegations of “unlawful [behaviour] and covert and sinister criminal offences” allegedly committed by Police and various state actors (represented here by the Attorney-General). He seeks effective restoration of the property to himself, $10 million in compensation and an investigation into the matters he raises.

[5] Opposing summary judgment and seeking strike-out, the Police and Attorney- General point to numerous unparticularised claims and the exorbitant remedy sought as demonstrating that Mr Saleh’s claim discloses no reasonably arguable cause of action and is likely to cause prejudice and delay.

Mr Saleh’s application for summary judgment

[6]Mr Saleh…

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.

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Details

Case: [2023] NZHC 3712
Decision Date: 18 December 2023

CaseChat Overview and Summary

Phillip Saleh, the plaintiff, filed an application for summary judgment against the Attorney-General and New Zealand Police, the defendants, alleging numerous unlawful actions and covert criminal offences committed by the defendants. The defendants opposed the application and also sought to have the plaintiff’s statement of claim struck out. The plaintiff's application for summary judgment was based on the defendants' failure to file a defence within the statutory timeframe. The defendants argued that the plaintiff's claim disclosed no reasonably arguable cause of action, was time-barred, and potentially an abuse of process.

The court considered the established principles governing summary judgment and strike-out applications. For summary judgment, the court must be satisfied there is no real question to be tried, and the defendant has no defence. For a strike-out, the pleadings must be accurate, clear, and concise, identifying the main issues and relief sought. The court must proceed on the assumption that the pleaded facts are true, unless they are speculative or without foundation.

Analysing the application, the court found that the plaintiff’s claim disclosed no reasonably arguable cause of action or actionable relief against the defendants. The plaintiff's allegations lacked particulars and were speculative. Additionally, the claim was time-barred under the Limitation Act 2010, as it was filed outside the statutory period. Although parts of the claim appeared to be an abuse of process by re-litigating previously decided matters, this was not sufficient grounds for the court to strike out the claim.

Consequently, the court granted the defendants’ application to strike out the plaintiff’s claim and dismissed the plaintiff's application for summary judgment. The court also ordered that costs should follow the event, with the defendants entitled to costs against the plaintiff on a 2B basis, together with disbursements.

Orders