Taylor v Attorney-General HC Tauranga CIV-2009-470-655

[2011] NZHC 683

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2009-470-655

BETWEEN  M E TAYLOR G H TAYLOR Appellants

ANDTHE ATTORNEY GENERAL Respondent

Hearing:         17 June 2011

Counsel:         FCK Wood for Appellants

NMH Whittington for Respondent

Judgment:      11 July 2011 at 2:00 PM

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 11 July 2011 at 2.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:          Davys Burton, P O Box 248, Rotorua 3040 ([email protected]) Crown Law, P O Box 2858, Wellington 6140 ([email protected])

M E TAYLOR V THE ATTORNEY GENERAL HC TAU CIV-2009-470-655 11 July 2011

Introduction

[1]      The appellants appeal against a judgment of Judge Bidois in the Tauranga District Court in which he rejected a claim for damages arising out of a visit by the police to the appellants’ house in Auckland.  The appellants had claimed exemplary damages of $200,000 arising out of alleged tortious acts and a breach of the New Zealand Bill of Rights Act 1990 (Bill of Rights).

[2]      The appellants say that, because they were not represented by counsel, they were denied a fair hearing.  Among other things, this meant that the Judge did not consider the critical issue of whether the police were in breach of the Bill of Rights in going to the property in the first place.

[3]      The appeal was filed by Mr Taylor in person and its progress  has been delayed because of difficulties over representation.   Eventually, however, the appellants secured a grant of legal aid and Mr Wood has ably advanced and argued their case.   He sought and, by consent, I granted leave for the appellants to file evidence as to the prejudice alleged to have been suffered as a result of their not being represented by counsel in the District Court.  Mr Taylor filed an affidavit and the  appellants  waived  privilege  to  enable  an  affidavit  in  reply  to  be  filed  by Mr Murray Lawes, a lawyer who assisted them in the District Court proceedings but did not represent them at the hearing.

Further background

[4]      In March 2004, Mr Taylor made notes on a letter that had been sent to him by his electorate Member of Parliament and sent it by fax to the electorate office.  He made clear his displeasure with the contents of the letter.  Typical of the tenor of his notes was the terse message:

Do not show your face in our street or community at election time.

This was restated in very similar terms in another part of the notes.

[5]      The Member of Parliament was not in his office when the fax arrived.  It was received by one of his electorate staff.  She was concerned at the tone of the message and referred it to Parliamentary Services in Wellington, who in turn notified the Diplomatic Protection Squad.  They contacted the local police station and asked for a constable to visit the house to assess whether Mr Taylor posed any kind of threat.

[6]      Two police constables went to the home address of the appellants at 7.00 p.m. on 3 May 2004.  Mr Taylor resided there with his elderly mother, then in her mid- eighties.    There  were  differences  between  the  accounts  given  to  the  Court  by Mr Taylor and the police officers as to what happened after they arrived.  The Judge accepted the police officers’ evidence that after Mr Taylor answered the door, he spoke to them loudly and in an aggressive manner but did not ask them to leave.  He also accepted the police officers’ evidence that eventually they were invited to enter the house.  Inside the house there was a brief discussion, “none of it ... constructive” said the Judge.  Mrs Taylor touched one of the constables who threatened to arrest her if she did it again.  Soon afterwards the police officers were asked to leave by both appellants.  The Judge, however, rejected Mr Taylor’s evidence that he asked the police officers to leave at least five times.  The Judge concluded that the police had  lawfully  entered  the  house.    They  had  not  engaged  in  intimidatory  and threatening conduct.  They had left the property when asked to do so.  He found the appellants  had  failed  to  prove  their  claims  of  misfeasance  in  public  office, negligence, trespass and breach of Mr Taylor’s right to freedom of speech enshrined in s 14 of the Bill of Rights.

First ground of appeal

[7]      The  appellants  contend  that  their  right  to  natural  justice  was  breached because they were not represented by counsel before the District Court.  Faced with the resources available to the defence, they were prejudiced in advancing their case. Mr Wood submitted the real issues in dispute were not identified and challenged; the case was not presented in a logical and effective way; the appellants’ evidence was not presented as well as it might have been; and defence evidence was not properly tested.

[8]      In his affidavit filed for the purpose of the appeal, Mr Taylor recounted the history of the District Court proceedings.  They were filed without legal advice or assistance.     After  the  Attorney-General  brought  a  strike  out  application,  the appellants applied for legal aid.   An interim grant was made to cover initial attendances by Mr Lawes and to enable him to provide the Legal Services Agency with an opinion on the prospects of success.  It was never extended to a full grant. Mr Lawes assisted by, among other things, helping to draft an amended statement of claim, participating in a judicial settlement conference and advising on some interlocutory matters.

[9]      In  2008  the  appellants  relocated  to  Whangamata  and  Mr Taylor  himself arranged for the transfer of the proceedings to the Waihi District Court.  Thereafter, Mr Lawes had very little input.  His time records show that during the three months preceding  the  hearing  in  March  2009,  he  had  five  telephone  attendances  with Mr Taylor and received  two faxes from him.   These were mainly to  do with a complaint to the Police Complaints Authority.  Mr Taylor says that Mr Lawes was supposed to “be acting for us in relation to the defended hearing” and he was expected to attend Court on the day for the attended hearing.  He said that he and his mother had made available a room for Mr Lawes to stay in their house prior to the Court appearance.  When he did not turn up on the night before the Court hearing and the following day, he and his mother were obliged to represent themselves. Mr Lawes is adamant that at no stage was he asked to represent the appellants at the hearing.   He said that at all times Mr Taylor wanted to represent himself and his mother.   He believes there may have been a discussion about the hearing, in the course of which he was offered accommodation at their home but that was for the purpose of attending the hearing to “watch (only) – and I emphasise that word – and I am very clear about that”.

[10]     Mr Lawes says that he would not, in any event, have been in a position to represent the appellants at the hearing.  He had not met with Mr or Mrs Taylor since May 2008.   He had offered to assist Mr Taylor to prepare briefs of evidence but, despite numerous requests, had not been given information which would have permitted him to do so.  He had made it clear to Mr Taylor that he could not attend the hearing to “watch” what happened as he had a commitment in another Court that

day.   He did, however, provide some assistance to the appellants after the hearing with filing further submissions directed by the Judge.

[11]     The Court record is entirely consistent with Mr Lawes’ evidence and provides no support for Mr Taylor’s claim that he expected Mr Lawes to represent him at the hearing.  On the contrary, in a memorandum sent to the Court two days before the hearing, he stated that the appellants had “no legal help now”.  There is nothing in the transcript of the hearing to indicate that Mr Taylor did not expect to be representing himself.  There was no application for an adjournment or for time to obtain legal assistance although Mr Taylor was aware that hearings could be adjourned.  Mr Lawes said that Mr Taylor had successfully arranged adjournments in the past.

[12]     I  am  satisfied  that  Mr Taylor  was  not  caught  out  at  the  hearing  by  the unexpected absence of Mr Lawes.   From the outset, he had wanted to represent himself and his mother and was only ever prepared to accept advice and assistance from Mr Lawes.  He knew Mr Lawes was unable to be present even in that limited capacity.  He proceeded without demur to represent himself and his mother.

[13]     There is no doubt that this resulted in an inequality of resources.  That was inevitable as it is in most cases where one of the parties is self-represented.  Some disadvantage to the unrepresented litigant will generally follow and undoubtedly occurred in this case.   But, in the final analysis, I am satisfied that the appellants were not denied a fair trial as a result.

[14]     Both the Judge and defence counsel went to considerable lengths to ensure that the appellants were afforded a proper opportunity to present their case.  At the suggestion of the Judge (and with the concurrence of defence counsel), material parts of the evidence of Mrs Taylor, who is elderly and disabled, were adduced by production of a videotaped interview she had with a television reporter.  The Judge frequently intervened to assist Mr Taylor, suggesting how questions could properly be put and generally helping him with trial procedure.   The Judge was patient, sympathetic and supportive.  In my view, he could not have done more to ensure that the competing accounts of the appellants, on the one hand, and the police officers, on

the other, were fully ventilated and tested.  At the conclusion of the hearing he gave the appellants time to respond to the defence submissions (which were available at the hearing and could have been presented there and then) and guidance as to what they should contain.  Mr Lawes assisted in their preparation.

[15]     The circumstances are quite unlike those in Lee v Composite Cladding & Signage Manufacture and Installations Ltd,[1]  referred to by the defence, where I decided that the Judge had not done enough to assist an unrepresented litigant.  In that case the implications of an evidential ruling made by the Judge were so serious for the unrepresented litigant that the failure to give her the opportunity to retrieve the position constituted a denial of her basic right to a fair trial.   That is not the

position here.   The Court, with the responsible co-operation of defence counsel, ensured that the appellants were not materially prejudiced by their unrepresented status. They cannot complain that the trial was unfair to them.

Breach of Bill of Rights

[1] Lee v Composite Cladding & Signage Manufacture and Installations Ltd HC Whangarei

CIV-2009-488-828, 16 December 2010

[16]     As a further and independent ground of appeal, Mr Wood submitted that the Judge had failed to address and determine the key issue of whether, in going to the house in the first place, the police actions had breached the Bill of Rights.   He contended that the clear intention was to stop or discourage Mr Taylor from expressing his legitimate concerns to his Member of Parliament, then a Minister of the Crown.  It was, he said, an attempt to discourage or silence legitimate political expression, contrary to s 14 of the Bill of Rights.

[17]     A careful reading of the judgment makes it clear, however, that the Judge did consider the issue and, on the evidence, was right to find that there had been no breach.

[18]     The defence conceded in the District Court that the fax sent by Mr Taylor did not in fact constitute a threat and that the police did not need to visit the house.  Its

position is, however, that there was justified concern that what was said may have

implied a threat and, in terms of s 5 of the Bill of Rights Act, it was demonstrably justified for the police to make enquiries in order to determine whether a threat in fact existed.

[19]     Mr Wood submitted that there was evidence which showed that, contrary to the  defence  contention,  the  purpose  of  the  visit  was  to  prevent  or  discourage Mr Taylor from further expressions of his views.  He relied on a passage in the brief of evidence of one of the police officers which read in part:

As far as I remember, this is just a simple door knock so that Constable Clifford could speak to Mr Taylor and let him know that there was some concern about the fax he had sent and asking him to desist.  As far as I knew, we would not be there to take any arrest action or anything like that. (Emphasis added.)

Mr Wood placed particular reliance on the emphasised words.

[20]     It is clear from the judgment, however, that Judge Bidois did not incorporate that aspect of the police officer’s evidence into his findings.   He expressly found that, from the police perspective, the visit was “nothing more than a door knock”. He found that the police officers’ intention was “to ascertain the existence of any possible threat”.  He said:[2]

The defendant does not assert that Mr Taylor made any such threat.  In this context however, it must be legitimate for Police to make preliminary inquiries to determine whether or not any threat exists.  The defendant conceded that the mere presence of an uniformed Police officer could have a profound effect on a timid person, which may in turn illegitimately restrain future expression of opinion.   Nonetheless, such limitation of the right of freedom  of  expression  that  may  be  thereby  caused  is  demonstrably justifiable, because of the potential harm caused by a threat that goes undetected.  The issue in the end turns on the Court’s finding as to what the Police actually did while they were at the plaintiff’s home.

[2] Taylor v Attorney-General DC Waihi CRI-2006-044-2356, 29 June 2009 at [39].

[21]     It is clear that Judge Bidois turned his mind to the discrete issue of whether the visit itself involved an unjustified restriction on the right to free expression.  In finding that the purpose of the visit was to ascertain whether any threat existed and not to curb Mr Taylor’s right to speak out, the Judge was plainly right to find that no

breach had occurred.

Result

[22]     The appeal is dismissed. [23]    There is no order as to costs