Williams v Attorney-General HC Rotorua CIV 2010-463-000634
[2011] NZHC 1566
•7 July 2011
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CIV 2010-463-000634
IN THE MATTER OF property previously in the possession of
Ronald Kevin Williams
BETWEEN RONALD KEVIN WILLIAMS Plaintiff
ANDTHE ATTORNEY-GENERAL Defendant
Hearing: 6 July 2011
Appearances: Mr Williams in person the Plaintiff
D Soper for the Defendant
Judgment: 7 July 2011
JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN
This judgment was delivered by me on
07.07.11 at 4:30pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors/Counsel:
D Soper, Crown Law, Wellington - [email protected]Copy to: R K Williams, C/- 60 Windsor Road, Bellevue, Tauranga 3110
RONALD KEVIN WILLIAMS V THE ATTORNEY-GENERAL HC ROT CIV 2010-463-000634 7 July 2011
[1] For consideration are the Attorney-General‟s applications for strike out and
alternatively for security for costs.
Strike out application
[2] The Attorney pleads Mr Williams‟ statement of claim does not disclose any
reasonably arguable cause of action for the following reasons:
(a) The statement of claim does not identify any legal basis for a claim because:
(i) The claim is time barred.
(ii)To the extent the claim appears to be based on the actions of a bailiff it is protected by s 6(5) of the Crown Proceedings Act
1950 which provides that no claim shall lie against the Crown by virtue of a person discharging or purporting to discharge responsibilities in connection with the execution of a judicial process.
(iii) There are insurmountable evidential difficulties preventing Mr
Williams from establishing his case.
(b)The statement of claim contained unintelligible pleadings to such an extent that it is likely to cause prejudice and delay and/or otherwise be an abuse of the process of the Court, because:
(i)The statement of claim is incoherent and it is not possible for the Attorney to sensibly respond to it.
(ii)It includes irrelevant material including numerous „cut and paste‟ extracts from legislation and legal text.
(c) Mr Williams had been given an opportunity to remedy the pleadings but his amended statement of claim failed to provide a viable pleading.
(d)It does not identify any reasonable causes of action nor identify the legal basis for a claim.
Background
[3] On 2 December 1999 a District Court judgment was entered against Mr
Williams in the amount of $13,516.99.
[4] On 22 March 2000 a distress warrant numbered 27/00 issued against Mr Williams in the amount of $13,516.99. On 2 May 2000 the bailiff seized a number of items in accordance with the distress warrant and issued a seizure notice.
[5] Mr Williams applied to set the judgment against him aside. It was dismissed on 2 August 2000, and costs were awarded against him.
[6] On 7 September 2000 a further distress warrant issued against Mr Williams on account of the original judgment amount and also in respect of the costs order made when his setting aside application was dismissed.
[7] Mr Williams then at that time issued proceedings in the High Court. On 23
August 2001 a list of discovery documents was forwarded to Mr Williams by Crown Law. Item 9 on the discovery contained the distress warrant numbered 27/00 issued on 22 March 2000 and Item 51 of that list contained the distress warrant numbered
70/00 issued on 7 September 2000. On 10 September 2001 Mr Williams wrote to Crown Law requesting copies of Items 9 and 51 and, on 17 September 2001 copies of those documents were forwarded to him.
[8] On 17 February 2003 the High Court ordered security for costs in the amount of $10,000.
[9] On 10 March 2003 Mr Williams filed a parallel claim in the Disputes
Tribunal. On 23 May 2003 Mr Williams discontinued his claim in the High Court.
[10] On 10 September 2003 Mr Williams‟ claim in the Disputes Tribunal was
struck out at his request.
[11] On 22 July 2010 Mr Williams filed the statement of claim in this proceeding. He has also filed similar proceedings against other defendants. By minute dated 22
November 2010 I directed Mr Williams to replead because I considered his first statement of claim was inadequate in that it failed to identify any legal basis for the claim.
[12] Mr Williams filed a repleaded claim on 22 November 2010. That document did little more than provide a list of items Mr Williams said were recovered from the bailiff and added his comments regarding the condition of those items.
Mr Williams’ claim
[13] Mr Williams‟ claim is for $100,000,000 in relation to the seizure of chattels in May 2000 by the bailiff.
[14] The opening paragraph of his statement of claim pleads:
The Department for Courts did knowingly and wilfully seize property which does not belong to me, property which is not unencumbered, and did not leave in my possession tools of trade up to a value of $500.00. The seizure of chattels was totally unnecessary and was done with considerable malice because some $40,000 worth of firearms were stored in the Whakatane Police Station and were advertised by the Court to tender in the Whakatane Beacon. There was never any legitimate need for the plaintiff to visit the property where my chattels were stored...
[15] Then Mr Williams pleaded there was a conflict of interest involving the Court bailiff whom he asserted had acted with malice when seizing the property.
[16] Then the statement of claim contains exerts from the Judicature Act 1908 relating to the obligations required to be observed in connection with the sale of seized property.
[17] In paragraph 2 of his statement of claim he pleads that he had never seen warrant numbered 27/00 nor heard of it until he received four seizure notices on 8
August 2003.
[18] Mr Williams asserts the bailiff‟s seizure notices were not discovered in the
earlier High Court proceeding and therefore the bailiff was in contempt of Court.
[19] In paragraph 3 the claim refers to an alleged breach of the Te Turi Whenua Maori Act 1993 Part 9. He says the seizure of the chattels constituted an alienation of Maori owned land because of the taking of valuable things (the chattels) from where they were held.
[20] In paragraph 4 he pleads:
4.A large portion of the items seized were of a very low individual value and no useful purpose was served by seizing these particular items. In some instances the costs of seizure and transport would have exceeded the market value of the goods. The selection of items is questionable as some items of very high value were either not seized or not included in the list of items seized.
[21] Mr Williams pleaded that the bailiff breached his authority on the occasion the chattels were seized. In particular he asserts the seizure documents were not disclosed to him; that the bailiff had negligently failed to ensure only unencumbered items were seized; and that items of negligible value should not have been taken.
[22] In paragraph 5 Mr Williams pleads that considerable damage was done “to many of the items due to inappropriate handling and storage”.
[23] In paragraph 6 he pleads that:
6.A large number of items were either missing or are not accounted for. Something in the order of 20 tonnes weight of chattels remain unaccounted for. The cost of replacing these items is a very large figure which is extremely difficult to quantify, however, the replacement costs is in the order of several million dollars.
[24] In paragraph 7 he pleads:
7.None of the items were in my possession at the time that they were seized. The bulk of the items were stored in a locked building thus indicating an aspect of breaking and entering in order to seize the items.
[25] In paragraph 8 Mr Williams pleads:
8.On 26 February 2001 the Department for Courts did extort the sum of $70 from me before they would release any of my property to me. At this time certain employees of the Department of Courts seemed to me to be quite desperate that I be denied access to the goods which had been seized.
[26] In the balance of his statement of claim Mr Williams asserts, inter alia: (a) That the bailiff was dishonest.
(b) That the manner in which the chattels were seized was wrong.
(c) The torts of wrongful arrest and malicious prosecution occurred. (d) “Tangible losses have been massive.”
(e) That the Limitation Act 1950 does not prevent rights of action where fraud is involved.
Overview of Mr Williams’ claim
[27] It appears that:
(a) Chattels taken in satisfaction of the distress warrant either did not belong to the plaintiff, or were not returned, or were returned in a damaged state.
(b)The Registrar of the Whakatane District Court is in contempt of court because he provided the distress warrant numbered 27/00 dated 22
March 2001 in answer to a subpoena from the Disputes Tribunal, when he had not disclosed the existence of that document in discovery during the High Court proceedings.
(c) The seizure of Mr Williams‟ chattels is a breach of the Te Turi Whenua Maori Act 1993 because the removal of valuable things from his land constitutes alienation of land.
(d)The bailiff involved was dishonest and acted with bias against Mr Williams and did not comply with proper procedure and seized chattels without Mr Williams‟ permission which constitutes breaking and entering.
(e) The Department for Courts extorted $70 from Mr Williams in the form of a fee for releasing the chattels.
Mr Williams’ response to the strike out/security for costs applications
[28] Mr Williams submits the strike out should not be granted because:
(a) The Limitation Act does not apply because he originally made his claim in 2003 but discontinued it because he is alleging fraud.
(b)The Crown Proceedings Act does not apply because the actions of the bailiff were outside the execution of a judicial process and were fraudulent and involved theft.
(c) Any evidential difficulties would be overcome when his witnesses give evidence.
Strike out
[29] The Attorney‟s application is supported by affidavits which provide copies of relevant documents, some of which I will refer to in my review of the merits of the Attorney‟s applications.
Principles
[30] Rule 15.1 of the High Court Rules give the Court the power to strike out all or part of a pleading that is an abuse of the process of the Court. Further, the High Court retains the inherent jurisdiction to prevent abuses of its processes.
[31] The applicable principles are well established and were summarised by the
Court of Appeal in Attorney-General v Prince and Gardiner [1]:
[1] Court of Appeal in Attorney-General v Prince and Gardiner, [1998] 1 NZLR 262 (CA) at 267.
(a) The facts as pleaded are assumed to be true. However, if pleaded allegations are entirely speculative or without foundation, the Court is not required to assume they are true.
(b)The causes of action are so clearly untenable that they cannot possibly succeed.
(c) The strike out jurisdiction is one to be exercised sparingly and only in a clear case where the Court is satisfied that the claim was hopeless.
(d)The fact that applications to strike out raise difficult questions of law and require extensive argument do not exclude the jurisdiction.
[32] In this case the Attorney submits that Mr Williams‟ pleaded allegations indicate the speculative nature of them and that evidence concerning ownership of the property in question and the lack of evidence as to what happened to it, present insurmountable difficulties for Mr Williams.
Considerations
Whether the statement of claim discloses a legal basis for the claim
[33] Mr Williams‟ claim that the chattels taken by the bailiff did not belong to
him, prevents him from making any proprietary claim in respect of same and he cannot have suffered any loss in that regard.
[34] His claim that the Registrar is in contempt for failing to disclose distress warrant numbered 27/00 is plainly incorrect, for that item was forwarded to him on
17 September 2001 but even if it had not been its discovery would be irrelevant to any proprietary claim.
[35] Section 171 of the Te Turi Whenua Maori Act 1993 deals “with timber, flax, minerals, or other valuable thing attached to or forming part of any land”. Clearly Mr Williams‟ chattels were not attached to and did not form part of the land.
[36] The claim that the sum of $70 was extorted from him refers to a fee charged
pursuant to the District Court‟s Rules for the storage of property seized.
[37] The claim that some of the chattels taken were not returned or those which were returned were damaged is precluded by the Limitation Act 1950. As well there obvious evidential difficulties ahead of Mr Williams to prove such a claim.
Limitation Act 1950
[38] The goods were seized in 2000. This proceeding was filed in 2010. Therefore it is outside the six year limitation for tortious claims provided for in s 4 of the Limitation Act.
[39] The fact that Mr Williams previously litigated the same matter in 2001 shows he was aware in 2001 of the matters on which he now bases his claim.
[40] He asserts the Limitation Act does not apply because the failure to disclose the distress warrant 27/00 constituted fraud. But, section 28(b) of the Limitation Act provides that where a cause of action is concealed by the defendant the period of limitation does not run until the plaintiff has discovered, or would with reasonable diligence have discovered, the fraud. In this case there was no fraud as the distress warrant was disclosed in 2001 through the discovery process. Also the fact that Mr Williams initiated proceedings in 2001 indicates his cause of action was not concealed from him. He has acknowledged having become aware of the distress
warrant is August 2003 i.e. at a time more than six years prior to the filing of his present proceeding.
Crown Proceedings Act 1950
[41] Section 6(5) of the Crown Proceedings Act provides:
No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.
[42] Mr Williams claims that the bailiff‟s actions were outside the execution of a judicial warrant because they were fraudulent and involved theft. In fact the bailiff was executing a valid distress warrant and his actions were within the scope of his authority. Allegations of a lack of good faith do not invalidate the s 6(5) protection.
Conclusion
[43] His claim asserts a proprietary right in the chattels. It also asserts they were wrongly seized and that some of the property seized belonged to others. He says further that some were seized and not returned. In his parallel proceedings against others Mr Williams asserts that the missing chattels must have been misappropriated by those others and that those others may have assisted the bailiff to misappropriate them, or that those others deceived the plaintiff into thinking they were the plaintiff‟s property and therefore subject to seizure when they were not. As well Mr Williams asserts that chattels that were returned to him were damaged due to inadequate handling and/or storage.
[44] Mr Soper is correct when he submits that the various claims conflict with the documentary evidence and appear incapable of proof. Also, available documentary evidence indicates that some of the chattels did not belong to Mr Williams and this would make it unlikely he could succeed in a proprietary claim.
[45] Mr Williams‟ submission that his claims will be proved by the evidence of his
witnesses is unlikely to bear fruit. I accept Mr Soper‟s submission that such
evidence could not establish that any particular chattel was seized, let alone those which were damaged, particularly in the face of contemporaneous documentary evidence to the contrary.
[46] It is quite clear from the face of the statement of claim that it is confusing, uncertain in its meaning and is unclear.
[47] Mr Williams has been given an opportunity to remedy his pleadings through amendment. His amended pleading provides no improvement.
[48] It is unreasonable to require the Attorney to endure further delay in circumstances where any further repleading is also unlikely to provide a better document to which the Attorney ought to respond.
[49] In the Court‟s assessment and for reasons already identified, there is no merit
to the claim. Also it is barred by the Limitation Act and the Crown Proceedings Act.
[50] Had the claim not been struck out the Court would have ordered security to be paid in the sum of $20,000 sought by the Attorney. Although Mr Williams is clearly unable to pay security, security would have been ordered because the claim is without merit.
Judgment
[51] The claim is struck out.
[52] Costs are reserved. Mr Soper is to advise the Court within two weeks if costs against Mr Williams are sought. Mr Williams has been advised that if the Attorney
requests a costs order, likely those costs will be fixed in accordance with scale 2B.
Associate Judge Christiansen
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