Saleh v Attorney-General
[2023] NZHC 3712
•18 December 2023
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 seeks orders:1
1. A High Court sealed order directing the defendants to pay the statement of claim.
2. A High Court sealed occupation order for the Plaintiff's vested property located at 65 Curtis Road, Rawene RD3.
3. A High Court sealed order directing the defendants to immediately return the Plaintiff's absolute property.
4. A High Court sealed order instructing the Land Registry to rectify the chain of title for Phillip Sassoon Saleh's vested property at 65 Curtis Road, Rawene RD3.
5. The judge to order a judicial review and conduct a thorough investigation into the matters presented.
[7]The grounds on which the orders are sought are:2
1. Pursuant to High Court Rules 2016 5.47 subsection (2)(a) the defendants have failed to file a notice of [defence] in the statutory 25 days after the day on which the statement of claim and notice of proceeding were served on the defendants.
2. Pursuant to High Court Rules 2016 5.48 (3) an allegation not denied is treated as being admitted. The defendants have filed no [defence] therefore admitted the statement of claim, whereas I seek summary judgment and the orders to be granted.
3. Pursuant to High Court Rules 2016 5.48 (4) No [defence] has been pleaded by the defendants.
4. Pursuant to High Court Rules 2016 12.2 (1) No [defence] can be made by the defendants nor could any [defence] succeed.
(a) The defendants had no jurisdiction to occupy the victim's property. Admitted by the defendants.
(b) The defendants contravened the without notice District Court order of Judge Druce 22 April 2013. Admitted by the defendants.
(c) The defendants contravened the order of the Te Kooti. 24 August 2013. Admitted by the defendants.
(d) The defendants did re-arrange and manufactured evidence after the fact to elude in the minds of others a particular thing. Admitted by the defendants.
1 Interlocutory application on notice for summary judgment dated 23 May 2023 at [1]–[5].
2 At [1]–[4(p)].
(d) The defendants have no warrant to make a [defence].
(e) The defendants have no court order to make a [defence].
(f) The defendants have no consent order to make a [defence].
(h) The defendants had no probable cause or legal standing to make a [defence].
(i) The defendants did obtain land and property by fraud and deception. Admitted by the defendants.
(j) The defendants did contravene Court Vesting Order [lodgement] on the land registry by fraud. Admitted by the defendants.
(k) The Defendants did commit acts of slander. Admitted by the defendants.
(l) The Defendants did commit acts of [defamation]. Admitted by the defendants.
(m) The Defendants did commit acts of psychological violence. Admitted by the defendants.
(n) The Defendants did commit acts of physical violence. Admitted by the defendants.
(o) The Defendants did commit acts to cause emotional distress. Admitted by the defendants.
(p) The Defendants did manufacture malicious charges 8 months after the fact to pervert the course of justice, with criminal intent to cause serious harm and injury for pecuniary gains. Admitted by the defendants.
Affidavit of Phillip Saleh dated 6 April 2023
[8] Mr Saleh has filed numerous affidavits and memorandums with evidence in this proceeding. While I have considered everything Mr Saleh has filed, I summarise only his first affidavit, filed alongside his initial statement of claim, as it outlines the overview of his case.3
[9] Mr Saleh says on 22 April 2013 the Police “ram raided” the property, cutting the chains to his gates and lifting the ranch slider doors to gain access. He says Police had no warrant to break into his home, no reason to apply for any warrant, had no jurisdiction to break into his home or occupy it, had no legal standing to commit these offences and had no Court or occupation order.
3 Affidavit of Phillip Saleh dated 6 April 2023.
[10] Mr Saleh deposes his belief that Police have no defence in this matter and notes that Police have not appeared under multiple witness summons nor filed any defences in 10 years.
[11] On adjudication of this claim, Mr Saleh says the matters are simple as the Court must determine if the Police had a warrant to conduct their “ram raid” and to unlawfully occupy the property before disposing of it. He says as there was no warrant, jurisdiction or lawful purpose for this offence, it is justified that Police provide settlement and the Court award damages compensating him for losses of over
$10 million. He admits these matters “are past the statute of limitations under the rule of law and New Zealand legislation”.
[12] Referring to Simpson v Attorney-General,4 he says it is undisputable his case warrants damages under the same principle without further delays or biases of the Crown.
[13] Finally, Mr Saleh alleges breaches of ss 21 and 27(3) of the New Zealand Bill of Rights Act 1990 (NZBORA) and s 53 of the Human Rights Act 1993.
Defendants’ opposition and application for strike-out
[14] The Attorney-General and Police oppose the application on the following grounds:5
(a) In order to succeed in an application for summary judgment, the plaintiff must establish the defendants have no defence to each of the causes of action advanced in the statement of claim by the plaintiff. The statement of claim does not contain any discernible pleaded causes of action to which the defendants can plead and the application for summary judgment accordingly cannot succeed.
(b) On the same date of filing this notice, the defendants have applied to the Court for an order to strike out the plaintiff’s statement of claim dated 19 April 2023. It would therefore be pre-emptive to determine this application as the proceeding may be struck out in its entirety.
4 Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s case].
5 Notice of opposition dated 26 May 2023 at [3].
[15]Additionally, the Attorney-General and Police seek orders:6
(a) striking out the plaintiff’s statement of claim dated 19 April 2023; and
(b) granting leave not to file a statement of defence until the application for strike out is determined.
[16]The grounds on which the orders are sought are:7
The claim cannot succeed as it discloses no reasonably arguable cause of action and is likely to cause prejudice and delay
(a) The pleaded allegations that the second defendant broke into the plaintiff’s property, took occupation and seized all personal property without lawful purpose are not properly pleaded. The particulars of the facts relied on in alleging such actions have not been provided.
(b) The numerous allegations of bad faith in the statement of claim are not properly pleaded. The particulars of the facts relied on in alleging bad faith have not been provided.
(c) The statement of claim does not make clear which common law rights and/or rights under the New Zealand Bill of Rights Act 1990 Mr Saleh alleges have been breached. The claim contains no discernible pleaded cause of action against the defendants.
(d) The remedy sought is exorbitant and generally not available.
Leave should be granted for a statement of defence not to be filed
(e) It would not be efficient for the defendants to file statements of defence when the proceeding may be struck out in its entirety.
[17] Mr Saleh has not filed an official notice of opposition to the defendants’ strike- out application.
Legal principles
Summary judgment
[18]Rule 12.2(1) of the High Court Rules 2016 provides:
12.2Judgment when there is no defence or when no cause of action can succeed
6 Interlocutory application to strike out statement of claim dated 19 April 2023 (dated 26 May 2023) at [1].
7 At [2].
(1)The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.
[19] The relevant principles governing a summary judgment application are well established:8
The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart. The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan. In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel.
[20]The wording of r 12.2 “may give judgment” indicates a residual discretion.
Having regard to the various authorities, the position appears to be as follows:9
(a) The discretion implied by the use of the word “may” is to be restrictively applied. In a great majority of cases, once the court is satisfied the defendant has no defence, there is no room for the exercise of discretion.
(b) The residual discretion may be invoked to avoid oppression or injustice to the defendant where:
(i)The proceeding involves the actions or possible liability of a third party which is not before the court;
(ii)The proceedings are such that the opportunity should be given to allow discovery or other interlocutory applications to be concluded;
(iii)The circumstances of the case disclose very unusual features, the presence of which leads the court to conclude that the entry of summary judgment would be oppressive or unjust; or
(iv)The combination of complex issues of fact and law justify the dismissal of the application for summary judgment, either as
8 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26] (citations omitted).
9 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR12.2.11].
a matter of discretion or because the court cannot be satisfied that the defendant has no defence.
(c) Even where the court is not satisfied that a defence has been made out, in exceptional circumstances the application may be adjourned to allow for other processes to be followed.
Strike-out
[21]Rule 15.1 of the High Court Rules 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[.]
[22]There are established criteria for strike out:10
(a)A strike out application proceeds on the assumption the pleaded facts are true, unless those pleaded facts are entirely speculative or without foundation.
(b)The cause of action or defence must be clearly untenable.
(c)The jurisdiction is to be exercised sparingly and only in clear cases.
(d)The jurisdiction is not excluded by the need to decide difficult questions of law.
(e)The Court should be slow to strike out a claim in any developing area of the law, particularly where a duty of care is alleged in a new situation.
Analysis
[23] In this judgment I will determine the defendants’ application to strike out Mr Saleh’s claims, first as it follows that if Mr Saleh’s claims are struck out, his application for summary judgment in respect of these claims must fail.
10 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267; and Couch v Attorney- General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
[24] If the defendants’ strike-out application is not dismissed, I will then determine Mr Saleh’s application for summary judgment.
Defendants’ strike-out application
[25] Ms Shaw, for the defendants, submits that Mr Saleh’s claim should be struck out for three reasons:
(a)the claim discloses no reasonably arguable cause of action or actionable relief against the defendants;
(b)the claim is frivolous or vexatious because it is time barred; and
(c)the claim may otherwise be an abuse of process.
[26]I will deal with each of these in turn.
The claim discloses no reasonably arguable cause of action or actionable right of relief against the defendants
[27] Ms Shaw, citing the decision in Reid v New Zealand Trotting Conference,11 submits the pleadings must be accurate, clear and concise, identify the main issues, plead relief in respect of each cause of action and ought not to stray into referring to irrelevant material. She submits that while the procedural rules relating to clarity of pleadings are not applied to lay litigants with the same rigour as generally considered appropriate for legal practitioners, there remains a core level of clarity that the pleadings must meet, including to ensure that the opposing parties are fairly informed of the case they are responding to, citing O’Neill v Bridgman.12 Ms Shaw submits the core level of clarity necessary to fairly inform the defendants of the case they are responding to has not been met in the case of Mr Saleh’s pleadings.
[28]Ms Shaw submits that Mr Saleh’s claim focuses on two matters:
11 Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA).
12 O’Neill v Bridgman [2020] NZCA 460 at [22].
(a)that the second defendant allegedly broke into Mr Saleh’s property, took occupation and seized all his personal property without lawful purpose; and
(b)numerous allegations of bad faith against the second defendant.
[29] Ms Shaw submits that particulars of facts relied on for alleging such actions have not been provided and the allegations are speculative and without foundation. She submits that while an application to strike out is usually based on pleadings alone and an assumption that the plaintiff can make out all the facts and allegations pleaded, an order is not required to assume the truth of a pleaded allegation which appears entirely speculative and without foundation—as in this case.
[30] Ms Shaw submits the statement of claim does not make it clear which common law rights and/or rights under the NZBORA Mr Saleh alleges have been breached. She submits the relief sought ($10 million at [14] of the claim) is not clearly pleaded against the defendants in respect of a cause of action.
The claim is frivolous or vexatious as it is time-barred
[31] Ms Shaw submits that the claim is time-barred under the Limitation Act 2010. Section 11 of that Act states:
It is a defence to a money claim if the defendant proves that the date on which the claim is filed is at least six years after the date of the actual omission on which the claim is based (the claim’s primary period).
[32] She submits that a “money claim” means a claim for monetary relief at common law, in equity or under an enactment which includes relief for breach of NZBORA.13 Ms Shaw submits that Mr Saleh seeks $10 million in compensation and that his claim is a money claim.
[33] Ms Shaw submits that the primary period for the purposes of the Limitation Act is to start accruing from the date on which every fact exists, which it would be
13 Limitation Act 2010, s 12(1) and (2).
necessary for the plaintiff to prove in order to support the plaintiff’s right to the judgment of the Court, citing Williams v Attorney-General.14 She submits that in this case Mr Saleh’s statement of claim and written submissions relate to two events occurring on 22 April 2013, and Mr Saleh had until 22 April 2019 to file his statement of claim. The statement of claim was not filed in Court until 19 April 2023 and this accordingly is outside the primary period. Ms Shaw submits Mr Saleh has not shown there is an arguable case for extension of time and accordingly his claim is time-barred and should be dismissed as being frivolous or vexatious for that reason.
The claim may be otherwise an abuse of process
[34] Ms Shaw submits that from what it is possible to discern from the various documentation Mr Saleh has filed, it appears that part of his claim includes allegations of malicious prosecution by the second defendant (although the statement of claim does not make explicit reference to this). Mr Saleh has also made references to Family Court and criminal proceedings he has been a party to in his written submissions.
[35] Ms Shaw submits that Judge Dawson issued a judgment dated 27 January 2022 declining Mr Saleh’s application for summary judgment against the New Zealand Police for malicious prosecution and granting the New Zealand Police’s application to have the claim struck out.15 She submits that Mr Saleh is attempting to re-litigate matters already determined and, to that extent, the claim is an abuse of process.
Mr Saleh’s further documentation
[36] Ms Shaw points to the fact that Mr Saleh has filed extensive affidavits, exhibits and memoranda since he filed the statement of claim, and she submits these are prolix, include irrelevant material and appear to attempt to clarify and provide more detail as to the causes of action. She submits the affidavits appear to attempt to add new causes of action, including multiple counts of malicious prosecution by Police, allegations Police manufactured evidence to pervert the course of justice, and manufactured a conviction; allegations of fraud, deception, malfeasance, perverting the course of
14 Williams v Attorney-General [1990] NZLR 646 at 678.
15 Saleh v New Zealand Police [2022] NZDC 1315.
justice, and allegations of defamation, slander, manufacturing, fabrication, perverting the course of justice, perjury, fraud and adhesion of contracts.
[37] In summary, Ms Shaw submits that further documentation demonstrates the pleadings do not disclose any cause of action against the defendants or any actionable relief against the defendants.
Mr Saleh’s submissions
[38] It is difficult to determine the exact nature of Mr Saleh’s submissions from the prolix material he has filed, including the document entitled “Course [Cause] of Action” dated 2 October 2023 and “Submission – Summary of Facts” dated 2 November 2023.
[39] The document of 2 October 2023 sets out 26 counts, as Mr Saleh describes them, of wrongdoing by the defendants. During the hearing Mr Saleh spoke to each of the 26 counts, asserting that none of them were vexatious or frivolous as alleged by the defendants.
[40] In my view, none of the counts set out in Mr Saleh’s documentation amount to proper causes of action with supporting evidence of facts which allow the defendants to respond to these allegations.
Result
[41] I am of the view that Mr Saleh’s claim should be struck out on the following grounds:
(a)His claim discloses no reasonably arguable cause of action or actionable relief against the defendants. As has been submitted by Ms Shaw, there are no particulars of alleged breaches of common law rights of NZBORA giving rise to a legitimate cause of action against the defendants.
(b)The statement of claim is time-barred under the Limitation Act as it is based on events in April 2013 but was not filed in the Court until April 2023 and there is no evidence from Mr Saleh which might justify an extension of the primary period under the Limitation Act.
[42] Arguably parts of the claim are an abuse of process, to the extent he is attempting to re-litigate matters already decided in the Family Court or in criminal proceedings, although it is unclear to the extent that this is the case and therefore, I do not find this as a ground to strike out Mr Saleh’s statement of claim.
Mr Saleh’s application for summary judgment against the defendants
[43] As I have determined that Mr Saleh’s statement of claim should be struck out, it is a natural consequence that his application for summary judgment is dismissed.
Orders
[44]I make the following orders:
(a)The defendants’ application to strike out Mr Saleh’s claim of 19 April 2023 is granted;
(b)Mr Saleh’s application for summary judgment against the defendants on his claim is dismissed;
(c)Costs should follow the event, and accordingly the defendants are entitled to costs against Mr Saleh on a 2B basis, together with disbursements.
…………………………….. Associate Judge Taylor
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