White v Attorney-General
[2020] NZHC 740
•17 March 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-715
[2020] NZHC 740
UNDER the New Zealand Bill of Rights Act 1990 Section 27(1) IN THE MATTER OF
Misfeasance in public office
BETWEEN
AMANDA ADELE WHITE
First Plaintiff
ANNE LEOLINE EMILY FREEMAN
Second PlaintiffAND
ATTORNEY-GENERAL sued on behalf of the New Zealand Police
Defendant
Hearing: 17 March 2020 Appearances:
Plaintiffs in person
Deborah Harris/Abbey Lawson for the Defendant
Judgment:
17 March 2020
ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL
Solicitors:
Crown Law (D Harris/A Lawson), Wellington, for the Defendant
Copy for
Amanda White and Anne Freeman, Papakura, Auckland
WHITE v ATTORNEY-GENERAL [2020] NZHC 740 [17 March 2020]
[1] In this proceeding, the Attorney-General is sued for misfeasance in public office and for breach of natural justice under s 27(1) of the New Zealand Bill of Rights Act 1990. Three police officers are the alleged wrongdoers. He applies to strike out the plaintiffs’ statement of claim of 30 September 2019.
Background
[2] The background to the matter involves a civil proceeding which went to trial in 2013. The case is Spence v Lynch, in which Ms White and Mrs Freeman were third parties. Priestley J gave judgment on 19 June 2013.1 Judgment was given against Ms White and Mrs Freeman. They say that the plaintiff in that proceeding, Stuart Spence, a police officer, misled the court. The plaintiffs complained to the police about Mr Spence having misled the Court. In this proceeding they say that three police officers declined to find any misconduct by Mr Spence which should be the subject of criminal charges. They declined to take any action against Mr Spence. In short, the plaintiffs complain that the three police officers are liable for misfeasance in public office in failing to find criminal offending by Mr Spence. One way of considering their claim is that they accuse the police of a “cover up”.
[3] Ms White and Mrs Freeman are daughter and mother. They are the trustees of the DCT Trust. Ms White was in a relationship with Mr Spence for some six and a half years from 2002 to 2008. After their relationship broke up, there were proceedings in the Family Court under the Property Relationships Act.
[4] Mr Spence brought a proceeding to recover some $224,000 which he claimed he had advanced to the trustees of the DCT Trust. At the time there were three trustees, Ms White, Mrs Freeman and Mr Lynch, a lawyer. Initially, Mr Spence sued only Mr Lynch. Mr Lynch, who had retired as trustee by then, joined Ms White and Mrs Freeman as third parties. Mr Spence and Mr Lynch settled. Mr Lynch paid a sum to Mr Spence. Mr Spence discontinued his claim against Mr Lynch but assigned the debt he had claimed to Mr Lynch. The proceeding by Mr Lynch continued against Ms White and Mrs Freeman. The Judge recognised that while the essential contest was between Mr Lynch on the one hand and Ms White and Ms Freeman on the other,
1 Spence v Lynch [2013] NZHC 1478.
in reality it involved determining matters between Mr Spence on the one hand and Ms White and Mrs Freeman on the other.
[5] In his judgment of 19 June 2013, Priestley J found that Mr Spence had proved that he had made payments of $224,480 to the Trust. He also found that the trustees had made some payments to Mr Spence amounting to $94,322. He gave judgment against Ms White and Mrs Freeman for $130,158.
[6] In the proceeding, Mr Lynch and Mr Spence were represented by lawyers. Ms White and Mrs Freeman, on the other hand, appeared for themselves without a lawyer. It is apparent to me that they were at a significant disadvantage not having legal representation. The proceeding was not a straightforward one. The hearing went for eight days and Priestley J’s decision runs for 141 paragraphs. His decision deals with a contracting out agreement under s 21 of the Property Relationships Act between Mr Spence and Ms White, the establishment of the DCT Trust, a trust also established by Mr Spence, dealings in properties, claims by Ms White that she had a property sharing agreement with Mr Spence, as well as accounting evidence and banking records showing funds that had passed between Mr Spence and the trustees. Part of the evidence included evidence from bank officers.
[7] Ms White and Mrs Freeman were disappointed with the judgment. They appealed. In June 2014 the Court of Appeal heard applications by them. One of their applications was to adduce fresh evidence. Ms White and Mrs Freeman wanted to adduce evidence of bank statements covering the period of the relationship with Mr Spence. They also had account reconciliations. The purpose of this evidence was to show that Mr Spence had received more substantial benefits from the DCT Trust than had been shown in the trial before Priestley J. The ultimate aim of that new evidence was to show that the trustees were not indebted to Mr Spence at all.
[8] The Court of Appeal rejected the application to adduce more evidence.2 It held that the evidence was not fresh. It said that Mr Spence had discovered bank statements in the relationship property proceeding in the Family Court, and other bank statements were in the control of Ms White and Mrs Freeman.
2 White v Spence [2014] NZCA 298.
[9]The Court of Appeal said:
[18] Ms White attempts to justify the failure to obtain the statements by blaming the bank and the fact that she was not legally represented. The record does not, however, suggest that the bank was to blame. In any event, even if the bank were at fault, there were steps that Ms White and Ms Freeman could have taken. The fact they were self-represented in our view does not excuse the failure to take those steps.
[19] All litigants, whether self-represented or not, are under an obligation to put their best case at trial and must live with the litigation strategy they choose to adopt. On appeal, parties are not entitled to recast their case by adducing new evidence, which is what the appellants in this proceeding are effectively attempting to do.
[10] In light of that decision Ms White and Mrs Freeman no longer continued their appeal against the judgment of Priestley J.
[11] In the hearing today, Ms White explained that there were other flaws in the hearing before Priestley J. She says that at the hearing before Priestley J, Mr Spence’s case has been put on the basis of a creditor/debtor relationship with funds to be repaid. He had disclaimed any argument that he was claiming an equity in any trust properties. She says, on the other hand, in the Family Court he had made a claim to the contrary effect, claiming equity rather than repayment of debt. She alleges the failure to make adequate disclosure on his part and she contends that he gave misleading evidence and acknowledged only minor payments from the trustees, whereas banking records that have shown that he received very substantial payments.
[12] Notwithstanding the failure of their appeal, Ms White and Mrs Freeman looked for other ways to see if they could overcome the effect of Priestley J’s judgment. They began a fresh proceeding under CIV-2014-404-2485. In that proceeding they raise a number of causes of action and in some of those causes of action they alleged that Mr Spence had obtained judgment against them fraudulently.
[13] Faire J heard the strike out application. For the causes of action not alleging fraud, he held that the matters on which Ms White and Mrs Freeman sued were the subject of Priestley J’s decision which was now final and could not be further challenged. He recognised that it was possible to sue to have a final judgment set aside on the grounds that it was fraudulently obtained, but after considering the matter he held that Ms White and Mrs Freeman had not established the stringent test to justify
bringing a proceeding alleging fraud. They were required to establish fraud to a prima facie standard for the pleading to stand and they had not met that test.3
[14] He also dealt with an application to set aside a bankruptcy notice issued by Mr Lynch. He dismissed that application.
[15] In a later decision he adjudicated both Ms White and Mrs Freeman bankrupt.4 The judgment debt was the costs order made in the Court of Appeal.
[16] I have been provided with copies of other decisions in the litigation between Mr Spence and Ms White and Mrs Freeman. They show that Ms White and Mrs Freeman tried extensively to take the matter further, but they were consistently unsuccessful. The upshot is that they exhausted all available rights of appeal. The judgment of Priestley J is to all intents a final judgment and is not subject to further review.
[17] Notwithstanding these reversals Ms White and Mrs Freeman have tried other means to show that Mr Spence should not have obtained the judgment against him. One step they took was to complain to the police that Mr Spence had committed criminal offences in obtaining judgment against them. The Police looked into their complaints but decided that no charges should be laid against Mr Spence.
[18] Counsel for the Attorney-General explained that the complaints were in phases. The first was in 2015 shortly after Faire J had given his decision on the strike out application in the proceeding alleging that the judgment had been obtained fraudulently. Ms White had written initially to the Independent Police Conduct Authority and that had been referred to the police to investigate the complaint. Inspector Phillips dealt with that complaint. Inspector Phillips advised Ms White that she could find no evidence of perjury by Mr Spence.
[19] Ms White then complained about Inspector Phillips and that complaint went to Superintendent Jackson, who is the National Manager for Professional Conduct in the
3 White v Spence [2015] NZHC 1020 at [48]-[59].
4 White v Lynch [2015] NZHC 3202.
police. Superintendent Jackson arranged for someone else to investigate the matter and then advised Ms White that she upheld the findings of Inspector Phillips. Ms White complains that she was not told the identity of the police officer who carried out the review of Inspector Phillips’ investigation.
[20] In 2017 Ms White wrote directly to the Police Commissioner. It was arranged that an Acting Deputy Commissioner, Mr McSkimming, would review the matter. He carried out a review and wrote to Ms White advising that he could see no basis for the police to take any steps in the matter.
[21] The final complaint was made in 2018. That again involved Inspector Phillips, Superintendent Jackson and arrangements being made for a fresh set of eyes to look at it. The fresh set of eyes was Detective Superintendent Chapman. He wrote to Ms White indicating that the complaints were not suitable for the Police to take any prosecution against Mr Spence.
[22] During this process the Independent Police Conduct Authority was notified. The evidence shows letters from the Independent Police Conduct Authority advising Ms White that on the basis of the police investigations the Authority would not be taking any steps in relation to Mr Spence.
Statement of claim
[23] The statement of claim of 30 September 2019 has two causes of action, one for misfeasance in public office and the second for breach of s 27(1) of the New Zealand Bill of Rights Act 1990. Although the pleadings do not make this clear, for the claim for misfeasance in public office the Attorney-General is being sued on the ground of the Crown’s vicarious liability for torts of its employees in the course of their employment. On the other hand, for the claim for breach of the New Zealand Bill of Rights Act the Crown has direct liability. There is no vicarious liability.
[24] The statement of claim alleges misfeasance in public office by Inspector Phillips, Superintendent Jackson and Detective Superintendent Chapman. While the allegations are pleaded separately against each of those police officers, a consistent theme emerges. The plaintiffs’ case is that they provided compelling
information to the police to show criminal offending by Mr Spence in the civil proceeding which led to Priestley J’s judgment. The pleadings allege reckless indifference by each of the police officers as to the truth of the plaintiffs’ complaints and the failure of the police to take any action in the face of the compelling information provided by the plaintiffs amounts to misfeasance in public office.
[25] I quote paragraph 77 of the statement of claim as representing the nature of the allegations:
77.Detective Superintendent Chapman acted with reckless indifference as to the consequences of his conduct in the sense of not caring whether the consequences would occur or not. It was clear to Detective Superintendent Chapman, a highly experienced professional investigator, that in relying on Priestley J’s decision and other judgments that followed which relied on Priestley J’s decision, thereafter deciding that it would not be in the public interest to pursue the complaint against Officer Spence, the plaintiffs would unjustly suffer.
[26] For relief in the misfeasance cause of action the plaintiffs seek an order setting aside Priestley J’s decision. They claim monetary relief for the loss of economic opportunity suffered by the DCT Trust and loss of economic opportunities and employment suffered by them as a result of bankruptcy. They also claim damages for mental stress, anxiety, depression, humiliation, strain, disturbance and worry as well as costs and disbursements.
[27] The second cause of action under the New Zealand Bill of Rights Act repeats all the allegations in the misfeasance cause of action and seeks the same relief.
The misfeasance in public office claim
[28] In Commissioner of Inland Revenue v Chesterfields Preschool Ltd, the Court of Appeal said:5
As the tort currently stands, there are two forms of liability: targeted malice and non-targeted malice. Under both forms, the act complained of must be done by a public officer and in the exercise of that officer’s public functions. A further, fundamental element of the tort common to both forms is that there
5 Commissioner of Inland Revenue v Chesterfields Preschool Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [40]–[41].
must be actual damage or loss suffered by the plaintiff caused by the public officer’s conduct.
The two forms of the tort have slightly different requirements concerning the mental element. Targeted malice requires the public officer to have specifically intended to injure a person or persons. This involves bad faith in the sense that the officer is exercising the public power for an improper or ulterior motive. Non-targeted malice occurs when the public officer acts knowing that he or she has no power to do the act complained of and that the act will probably injure the plaintiff. This involves bad faith in that the public officer does not believe that his or her act is lawful. The plaintiff must therefore prove two aspects: first, that the officer acted with the knowledge of the illegality of the act, or with a state of mind of reckless indifference as to the illegality of the act. Secondly, that the public officer knew that his or her conduct would probably injure the plaintiff or a person of a class of which the plaintiff was a member, or was reckless as to the consequences of his or conduct in the sense of not caring whether the consequences happen or not. Subjective – as opposed to objective – recklessness is necessary for both limbs.
(citations omitted)
[29] For the Attorney-General the Court of Appeal’s decision in Currie v Clayton was cited.6 For this decision, I see little difference between the Chesterfields case and Currie v Clayton.
[30] Ms White cited the decision of the High Court of Australia in Northern Territory of Australia v Mengel.7 Brennan J said:8
It is the absence of an honest attempt to perform the functions of the office that constitutes the abuse of the office. Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a plaintiff. Malice, knowledge, and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of misfeasance in public office. If the impugned conduct then causes injury the cause of action is complete.
The cause of action is invariably difficult to prove, and successful cases are rare.
[31] I refer to two cases with claims of misfeasance in public office against police officers: Garrett v Attorney-General and Niao v Attorney-General.9
6 Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195.
7 Northern Territory of Australia v Mengel (1995) 185 CLR 307 at 357.
8 At [10] of his decision.
9 Garrett v Attorney-General [1997] 2 NZLR 332 (CA) and Niao v Attorney-General HC Rotorua, P22/96, 11 June 1998.
[32] The Garrett case has some similarities to the present case. There the plaintiff sued the police for misfeasance in public office over their handling of her complaint of criminal conduct by a police officer. Her complaint was that a police officer had raped her in a police station. The police declined to prosecute. That was after it was investigated by a local sergeant, then by an inspector and then by the District Commander. The case went to trial before a jury. The jury found that the officers who had investigated the complaint by the plaintiff had not carried out their investigations properly but had not been actuated by malice. That was taken to mean acting through an improper motive or failing to act for a proper motive. The plaintiff applied for a new trial. That application was moved into the Court of Appeal, which gave important guidance on the cause of action. It said:10
The common law has long set its face against any general principle that invalid administrative action by itself gives rise to a cause of action in damages by those who have suffered loss as a consequence of that action. There must be something more. And in the case of misfeasance in public office that something more, it seems to us, must be related to the individual bringing the action. While the cases have made it clear that the malice need not be targeted there must, as we have said, be the conscious disregard for the interests of those who will be affected by the making of the particular decision.
[33] The judgment shows some criticism of the investigation and reasoning of the various officers who investigated the complaint but the Court of Appeal found that there was no evidence that those officers knowingly failed to observe any of their duties.
[34] The Garrett case is authority that a police officer is a public officer for the tort, and that investigations by the police into alleged criminal conduct by another police officer are part of the exercise of their public functions for the tort.
[35] In Niao v Attorney-General,11 the plaintiff had been arrested and charged with shoplifting. On reviewing the matter, the police decided that there was not enough evidence to justify the shoplifting charge and withdrew it. Upset about her arrest and having been charged, the plaintiff made a complaint to the Independent Police Complaints Authority. A police inspector was directed to investigate her complaint.
10 At 351.
11 Niao v Attorney-General HC Rotorua, P22/96, 11 June 1998.
On doing so he decided to reopen the investigation into the theft charge and to investigate whether she might be liable for more serious charges, such as interfering with the course of justice. The plaintiff sued for misfeasance in public office and other torts. Randerson J found that the inspector would never have reopened the investigation if the plaintiff had not made a complaint to the Independent Police Conduct Authority. In reopening the investigation and considering more serious charges against her, the inspector was no longer acting properly within his duties, and had actual malice. The inspector must have known that he was acting unlawfully or was recklessly indifferent as to whether he was acting unlawfully. That was because a lawful power was being used for an improper purpose, namely to dissuade the plaintiff from pursuing her complaints against the police. All the ingredients of the tort were made out.
[36] I have referred to both cases to show that each case turns on its own facts. But each of them also bears out an important point. The plaintiff must plead and prove the subjective intentions of the officer alleged to have acted in misfeasance in public office.
[37] I treat the strike out application for the misfeasance cause of action as directed at a procedural matter: that the procedural requirements for pleading a cause of action for misfeasance in public office have not been met. I say that to make it clear that the strike out application is not the occasion for a mini trial. The Attorney-General has included as evidence copies of correspondence passing between the plaintiffs and the police and some correspondence from the Independent Police Conduct Authority. The Attorney-General’s submissions suggested at stages that I should find against the plaintiffs because of the merits of the defence. That is not the test on a strike out application.
[38] Normally, a statement of claim is required to set out all the allegations of fact on which a plaintiff relies to show that the defendant is liable for the particular cause of action pleaded. Whether the plaintiff can prove the matters pleaded is left for trial. But the matter is different for causes of action in which a plaintiff alleges fraud, dishonesty or other reprehensible conduct. In those cases, plaintiffs are required to make sure that they have a proper basis for alleging fraud, to plead it clearly and to
give adequate particulars. The Court of Appeal stated the standard approach in
Schmidt v Pepper New Zealand (Custodians) Ltd:12
Allegations of fraud or dishonesty are very serious. They must be pleaded with care and particularity. As the authors of Bullen & Leake & Jacobs Precedents of Pleadings emphasise, counsel must not draft any originating process or pleading containing any allegation of fraud unless they have reasonably credible material which, as it stands, establishes a prima facie case of fraud – that is, material of such a character which would lead to the conclusion that serious allegations could properly be based upon it. Fraud cannot be left to be inferred from the facts – fraudulent conduct must be distinctly alleged and as distinctly proved. General allegations, however strong the words may appear to be, are insufficient to amount to a proper allegation of fraud.
That approach applies whether the parties have legal representation or not. In Schmidt, the people alleging fraud did not have legal representation.
[39] In a different context (a proceeding to set aside a judgment on the ground that it was fraudulently obtained), the Supreme Court has taken a similar position on allegations of fraud. It said:13
The plaintiff’s claim of fraud must be one that is fully and precisely pleaded and particularised and of sufficient apparent cogency that it should go to trial.
It indicated that the adequacy and cogency of the pleadings could be tested by a strike- out application:14
So where a defendant in a proceeding involving the fraud exception applies to strike it out, the plaintiff is required to discharge the onus of showing it has a case with an evidential foundation amounting to a prima facie case of fraud.
[40] Faire J applied that approach in his strike out decision in the proceeding by Ms White and Mrs Freeman against Mr Spence and Mr Lynch.
[41]In X v Y, it was stated:15
12 Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA 565 at [15]. For the responsibility of counsel in alleging fraud or other reprehensible conduct, see X v Y [2000] 2 NZLR 748 (HC) at
[58] and the Lawyers Conduct and Client Care Rules 2008, r 13.8.
13 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [33].
14 At [33].
15 X v Y [2000] 2 NZLR 748 (HC).
An allegation of impropriety or moral turpitude should not be made without evidence to support it.
That indicates that some evidential basis for claims of fraud or dishonesty is required.
I applied that in The Rintoul Group Ltd v Robson.16
[42] This approach to pleadings applies to claims of misfeasance in public office. In a decision of the English House of Lords Three Rivers District Council v Bank of England (No.3) Lord Hutton said:17
My Lords I consider that dishonesty is a necessary ingredient of the tort and it is clear from the authorities that in this context dishonesty means acting in bad faith. In some cases the term dishonest is not used and the term in bad faith or acting from a corrupt motive or an improper motive is used or the term in bad faith is used together with the term dishonesty.
In the same case, Lord Millett set out very fully the pleading requirements when dishonesty is alleged:18
[184] It is well established that fraud or dishonesty (and the same must go for the present tort) must be distinctly alleged and as distinctly proved; that it must be sufficiently particularised; and that it is not sufficiently particularised if the facts pleaded are consistent with innocence: see Kerr on Fraud and Mistake, 7th ed (1952), p 644; Davy v Garrett (1878) 7 Ch D 473, 489; Bullivant v Attorney General for Victoria [1901] AC 196; Armitage v Nurse [1998] Ch 241, 256. This means that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and that facts, matters and circumstances which are consistent with negligence do not do so.
[185] It is important to appreciate that there are two principles in play. The first is a matter of pleading. The function of pleadings is to give the party opposite sufficient notice of the case which is being made against him. If the pleader means “dishonestly” or “fraudulently”, it may not be enough to say “wilfully” or “recklessly”. Such language is equivocal …
[186] The second principle, which is quite distinct, is that an allegation of fraud or dishonesty must be sufficiently particularised, and that particulars of facts which are consistent with honesty are not sufficient. This is only partly a matter of pleading. It is also a matter of substance. As I have said, the defendant is entitled to know the case he has to meet. But since dishonesty is usually a matter of inference from primary facts, this involves knowing not only that he is alleged to have acted dishonestly, but also the primary facts
16 The Rintoul Group Ltd v Robson [2019] NZHC 21.
17 Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 (HL) at 227.
18 At 227, the judgment of 22 March 2001, at [184]-[189]. Lord Millett was in the minority. He and Lord Hobhouse differed from the majority on the application of the principles in that case, but not on the principles to be applied. Lord Hope, one of the majority, gave a summary similar to Lord Millett’s at [52]-[55].
which will be relied upon at trial to justify the inference. At trial the court will not normally allow proof of primary facts which have not been pleaded, and will not do so in a case of fraud. It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.
[187] In Davy v Garrett 7 Ch D 473, 489 Thesiger LJ in a well known and frequently cited passage stated: “In the present case facts are alleged from which fraud might be inferred, but they are consistent with innocence. They were innocent acts in themselves, and it is not to be presumed that they were done with a fraudulent intent.” This is a clear statement of the second of the two principles to which I have referred.
[188] In Armitage v Nurse [1998] Ch 241 the plaintiff needed to prove that trustees had been guilty of fraudulent breach of trust. She pleaded that they had acted “in reckless and wilful breach of trust”. This was equivocal. It did not make it clear that what was alleged was a dishonest breach of trust. But this was not fatal. If the particulars had not been consistent with honesty, it would not have mattered. Indeed, leave to amend would almost certainly have been given as a matter of course, for such an amendment would have been a technical one; it would merely have clarified the pleading without allowing new material to be introduced. But the Court of Appeal struck out the allegation because the facts pleaded in support were consistent with honest incompetence: if proved, they would have supported a finding of negligence, even of gross negligence, but not of fraud. Amending the pleadings by substituting an unequivocal allegation of dishonesty without giving further particulars would not have cured the defect. The defendants would still not have known why they were charged with dishonesty rather than with honest incompetence.
[189] It is not, therefore, correct to say that if there is no specific allegation of dishonesty it is not open to the court to make a finding of dishonesty if the facts pleaded are consistent with honesty. If the particulars of dishonesty are insufficient, the defect cannot be cured by an unequivocal allegation of dishonesty. Such an allegation is effectively an unparticularised allegation of fraud.
He emphasised the importance of giving proper particulars of dishonesty and that it is not sufficient simply to make generalised allegations. The particular allegations must point to dishonesty. The particulars will not be adequate if they are simply consistent with honesty but incompetence. I have followed that approach in Official Assignee v Menzies (No.4),19 and The Rintoul Group Ltd v Robson.20
[43] In this case, Ms White and Mrs Freeman essentially say that there has been a “cover-up” by the police. Counsel for the Attorney-General balked at that description
19 Official Assignee v Menzies (No.4), HC Auckland CIV-2009-404-3391, 4 May 2011.
20 The Rintoul Group Ltd v Robson, above n 16.
but I use it in a general sense to mean that when the police considered the plaintiffs’ complaints about Mr Spence’s conduct, they were motivated to use their powers for an improper purpose, that is, not to charge Mr Spence no matter how strong the plaintiffs’ claims against Mr Spence might be. It did not matter whether they were deliberately intending to “cover up” for him or whether they simply decided that they would never charge him no matter how strong the evidence against him might be. However it is put, the conduct would involve using their public functions for an improper purpose, or as a deliberate misuse of a public power. That includes a deliberate failure to exercise a proper power when they should have exercised it.
[44] This means that Ms White and Mrs Freeman will need to establish that each of the three officers used their powers knowingly for an improper purpose. It is not sufficient for the plaintiffs to prove that other people in the position of those officers would have come to a different decision. That would be an objective test. It is of course possible, in trying to establish dishonesty, to show what inferences people might draw from particular conduct. But it is important for this case to make sure that the inferences that may be drawn are not equivocal. If the allegations against each of the officers is consistent with incompetence rather than conscious misconduct, that will not be sufficient to plead and prove the tort.
[45] Here I deal with the way that Ms White developed her case. She is critical of the reasoning of the police officers for having placed undue reliance on the judgments of the courts that considered these matters. That is not only the judgment of Priestley J but also the judgment of Faire J of May 2015 and some of the later judgments of the Court of Appeal. Ms White’s criticism is that that involves circular reasoning. Because Mr Spence gave misleading evidence that led to an unjust result and unwittingly Priestley J was duped. Nothing that happened afterwards was able to change that position. The police officers could therefore not legitimately refer to the judgments as justification for refusing to investigate the complaints or to lay charges against Mr Spence. That is, with due respect, an argument as to incompetence by the police officers. It is no stronger than that. It does not show a conscious disregard on their part for carrying out their duties in good faith.
[46] In reading the materials I was struck by a statement that Ms White made in an email to Inspector Phillips on 28 August 2015. She said:
You are in a position of supporting a police officer (Spence) of misleading a High Court Judge, or taking action against a police officer for misleading a High Court Judge, take your pick.
That puts matters in a black and white light. Although that statement is not in her pleadings, that position is reflected very much in the arguments that Ms White has presented today. Her case is very much that given the information that she had provided to the police, the police were bound to accept her conclusions and, if they did not accept her conclusions, they were complicit in covering up criminal misconduct by another police officer.
[47] Again, with respect to the plaintiffs, it is not possible to look at matters in such a black and white way. That can perhaps be seen in considering how a police officer might go about investigating a perjury allegation. They would need to find out whether the suspect had given evidence in court and what that evidence was. They would then need to see whether the evidence given by that suspect is different from established true facts. Finally, they would need to establish whether the suspect knew, when giving evidence, that their evidence was different from the established true facts.
[48] The last part may be difficult to establish. It does not flow from the first two requirements. It is a matter of common experience that the evidence of witnesses is often not accepted, even though the court does not consider that they have been lying. Their recollection may be faulty; they may not have been in a good position to make direct observations; they may be unable to describe accurately a matter in issue; or their reasoning may be faulty. Those matters are consistent with honesty, even though their evidence is not accepted as correct.
[49] A police officer asked to investigate a complaint of perjury, or any complaint that a person involved in a court proceeding has misled the Court, or has been involved in deception, will need to establish for prosecution purposes whether there is sufficient evidence to show guilty knowledge on the part of the suspect. As I read the material provided by Ms White to the police, she established that Mr Spence did give evidence,
she provided extracts from the notes of evidence, and she provided extensive bank records, accounting information, and reconciliations of payments.
[50] But it does not follow that even when presented with that information, a police officer’s failure to find that there is a case for prosecution means that the officer concerned is guilty of misfeasance in public office. The allegations that there is compelling evidence and that the officer failed to act on it are not sufficient to establish a prima facie case of misfeasance in public office. It may well be that as in Garrett v Attorney-General21 the police used faulty reasoning or they may not have been satisfied that all the ingredients of any potential charge were made out. But their failure to find that Mr Spence committed any criminal offences is consistent with an honest discharge of their duties. As long as it is consistent with an honest discharge of their duties, there is insufficient pleading of the cause of action of misfeasance of public office. Just as the Court of Appeal was critical of the reasoning of police officers in Garrett v Attorney-General, yet still found no evidence of misfeasance, the same can be said in this case.
[51] For completeness, I add that Ms Harris defended the police recourse to the court judgments. She pointed out that Faire J had to deal with a cause of action alleging that a judgment had been fraudulently obtained. She pointed out that, given the complaints, it was legitimate for the police to refer to those judgments for assistance in establishing whether there had been misconduct on the part of Mr Spence to warrant prosecution. I record that as an available argument to the police.
[52] Ms White and Mrs Freeman need to do something more to show that there was some dishonesty or wilful failure to act in accordance with their duties by the police officers.
[53] During the hearing I referred to a letter which Detective Superintendent Chapman had written on 29 June 2018. In that letter he advised Ms White of the police decision not to take any further action in the matter. The letter runs to just over two pages and refers to judgments given by Priestley J, Faire J and the Court of Appeal. He explains the police test for deciding whether to investigate a matter and to
21 Garrett v Attorney-General (1997) 2 NZLR 332 (CA).
prosecute and refers to the Solicitor-General’s guidelines for prosecutions. He refers to an affidavit given by Ms White setting out the information she relied and his reasons for deciding not to prosecute. On its face the letter shows conventional reasons given by the police for not wanting to take the matter any further. If Detective Superintendent Chapman were to be guilty of misfeasance in public office, that would mean that in writing that letter he was being deceitful, he was telling a lie, he was not honestly performing his public duties as a police officer. But there is nothing in the case for Ms White and Mrs Freeman that suggests that Detective Superintendent Chapman was being dishonest in the way that he considered whether charges should be laid against Mr Spence. I take that letter as illustrating the difficulties that the plaintiffs have in this case. The same reasoning can be applied to the advice given by Inspector Phillips to the plaintiffs and by Superintendent Jackson.
[54] I am satisfied that on the test for strike out in a claim for misfeasance of public office, the plaintiffs have not shown an adequate case for alleging such a serious matter as conscious maladministration by police officers in the course of their work.
[55] Ms White referred to my decision in The Rintoul Group Ltd v Robson. In that case I was satisfied that there was some evidence to support the allegations. The defence had provided fairly strong evidence that the public officer could not have committed a tort. I put that evidence to one side and considered the plaintiff’s evidence. The plaintiff had some evidence which suggested that the defendant may have acted corruptly. There was at least some evidence to justify allowing the case to continue. But in this case, the evidence is equally consistent with the police officers acting arguably incompetently or in a way that other people might not act but it does not point unequivocally to dishonesty on their part. The Rintoul decision can be distinguished on that basis.
[56] There are other aspects to the case I wish to comment on, although that is sufficient to get rid of the misfeasance cause of action.
[57] The plaintiffs want Priestley J’s judgment to be set aside. That relief is not available in a claim for misfeasance in public office. Damages is the standard remedy. That highlights another aspect to this case. In seeking an order to set aside Priestley
J’s decision, the plaintiffs are showing that their real target is to make a collateral attack on Priestley J’s decision, when that decision is now final and beyond review. Such collateral attack may be considered an abuse of process and may itself justify strike out.
[58] The plaintiffs’ claims for economic losses seem to turn on being able to set aside Priestley J’s decision and again may be seen to amount to a collateral attack on his judgment.
[59] In a decision on the pleadings in Garrett v Attorney-General,22 Anderson J accepted that the infliction of emotional distress may aggravate actionable damage, but emotional distress was not itself actionable damage. In the Niao case23 Randerson J held that the plaintiff had proved identifiable mental illness exacerbated by the police conduct, which justified damages. There is no evidence whether Ms White and Mrs Freeman have suffered identifiable mental illness as a result of the police conduct in this case. But I would not regard that as fatal and as counting against them for strike out. That is a matter of evidence which may be left to trial.
The Bill of Rights claim
[60]Section 27(1) of the New Zealand Bill of Rights Act 1990 says:
27(1) Every person has the right to the observance of principles of natural justice by a tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
[61] In this context, the requirement to observe the principles of natural justice requires the decision-maker to be without bias or predetermination and to give all interested parties the opportunity to be heard. The obligation applies only to those tribunals, courts and public authorities which have a duty to apply the principles of natural justice.
[62] When police are investigating possible criminal offending, they are not required to apply the principles of natural justice. That has been upheld in cases where
22 Garrett v Attorney-General [1992] 2 NZLR 332 (CA), [1993] 3 NZLR 600 at 608.
23 Niao v Attorney-General, HC Rotorua, P22/96, 1 June 1998.
suspects and offenders have alleged a breach of natural justice by the police when investigating alleged offending. Sometimes suspects have complained that the police have not put them on notice of the evidence which the police hold against them. But offenders have consistently failed in their complaints that the police are required to observe the principle of natural justice when investigating alleged offending. Just as offenders cannot complaint that the police are required to observe natural justice, similarly those who claim to be victims of criminal offending have no greater claim for the police to observe the principles of natural justice.
[63] Ms White was given the opportunity on a number of occasions to place before the police all the information which she wanted them to consider. There is some evidence that the police did consider the material she provided. There is nothing that I can see that would suggest a failure to give the plaintiffs the opportunity to put their case to the police. I see nothing in the case that suggests bias and predetermination.
[64] In short, I see no basis for the claim for breach of the Bill of the Rights Act and that is also struck out.
Other matters
[65] Ms White filed papers indicating that she sought discovery. During the hearing she indicated that she wanted the police to disclose reports they had made to the Independent Police Conduct Authority. I am not going to allow the application for discovery to stand in the way of a determination of the strike out application. In a claim for fraud, dishonesty or other reprehensible conduct, the plaintiffs needs to make sure that they can show a prima facie case when they launch their proceeding. It is not permissible for a plaintiff to begin a proceeding alleging fraud and then to say that they will await further interlocutory steps, such as discovery or interrogatories or even the hearing to see whether they can establish their case. The requirement to establish their prima facie case applies at the outset and is not to be left until after other interlocutory steps.
[66] Another tidy up matter is that Ms White and Mrs Freeman have been adjudicated bankrupt. For their economic losses, Ms White and Mrs Freeman are suing as trustees of the DCT Trust in the hope that they can recover assets for the trust.
Any assets of the trust did not vest in the Official Assignee when they were adjudicated bankrupt.24 I raised this matter in a minute. Counsel for the Attorney-General advise that they made inquiries with the Official Assignee. The Official Assignee has no interest in this proceeding. The bankruptcy does not seem to raise any barrier to the proceeding in this case.
[67] I also record that the plaintiffs had earlier sued the Independent Police Conduct Authority and the Judicial Conduct Commissioner. Those claims were dropped and I do not have to deal with those aspects in this decision.
Result
[68]The statement of claim is struck out and the proceeding is dismissed.
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Associate Judge R M Bell
24 Insolvency Act 2006, s 104.
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