Wright v Attorney-General
[2019] NZHC 3046
•21 November 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-2800
[2019] NZHC 3046
UNDER the New Zealand Bill of Rights Act 1990 and the Declaratory Judgments Act 1908 IN THE MATTER
of public tort proceedings relating to
breaches of the New Zealand Bill of Rights Act
BETWEEN
NICHOLAS DAVID WRIGHT
Plaintiff
AND
THE ATTORNEY-GENERAL
First Defendant
THE AUCKLAND DISTRICT HEALTH BOARD
Second Defendant
Hearing: 2 September 2019 Appearances:
Plaintiff in person
W R Potter and S A Rankin for the First Defendant
A M Adams and H H Ifwersen for the Second DefendantJudgment:
21 November 2019
JUDGMENT OF GAULT J
This judgment was delivered by me on 21 November 2019 at 2:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors / Parties:
The plaintiff, Mr N D Wright
Mr W R Potter and Mr S A Rankin, Meredith Connell, Auckland Ms A M Adams and Ms H Ifwersen, Meredith Connell, Auckland
WRIGHT v THE ATTORNEY-GENERAL [2019] NZHC 3046 [21 November 2019]
[1] The defendants apply to review the decision of Associate Judge Bell dated 5 February 2019 not to grant security for costs.1 As the proceeding predated the coming into force of the Senior Courts Act 2016, review by a judge is available under the former Judicature Act 1908 and High Court Rules 2008 (as amended).2
[2] Before the Associate Judge and on this review, the expectation was that security, if ordered, would not be provided and so an order will prevent the case proceeding to trial. Perhaps reflecting that, the merits were traversed in an unusual level of detail for a security for costs application.
The proceeding and application for security for costs
[3] The plaintiff’s civil proceeding against the Attorney-General, as representative of the Police, and the Auckland District Health Board (ADHB) claims that his arrest by Police on the night of 22 November 2009 and subsequent detention by the ADHB in the Acute Mental Health Unit at Auckland Hospital from 23 November 2009 to 9 December 2009 was unlawful and breached his rights under the New Zealand Bill of Rights Act 1990 (NZBORA). Separately, he claims that he was unlawfully arrested by Police on three further occasions in 2012 and 2013.
[4] The proceeding was commenced in 2015. After pleading and discovery complications, the defendants applied for security for costs in 2017. Following a four day hearing in 2018, Associate Judge Bell delivered a detailed judgment dismissing the ADHB’s application and, in relation to the claims against Police, ordering that the plaintiff is not required to give security for costs for his claims for the first and second arrests, striking out references to the third arrest and ordering security of $7,500 for the claim for the fourth arrest, failing which he could not give evidence about it at the hearing. These latter orders in favour of the Police are not in issue on review.
[5] It was common ground that the plaintiff will be unable to pay costs if unsuccessful so the threshold requirement for security was met,3 and the issue was
1 Wright v Attorney-General [2019] NZHC 59.
2 Senior Courts Act 2016, Schedule 5, clause 11(3)(b), and Sutcliffe v Tarr [2017] NZCA 360, [2018] 2 NZLR 92 at [22].
3 High Court Rules 2016, r 5.45(1)(b).
whether ordering security for costs was just in all the circumstances.4 The Associate Judge said that usually involves balancing a plaintiff’s right of access to the Court against a defendant’s interest in being paid costs after successfully defending the proceeding. While the Crown and government agencies are entitled to apply for costs in the same way as other litigants, there is a different approach to costs in cases under NZBORA. In such a case, the Associate Judge considered it unlikely that costs will be awarded against an unsuccessful plaintiff if the claim was bona fide and had some merit even if it was unsuccessful, the plaintiff sought no more than a vindication of rights and the conduct of the case did not warrant an adverse costs order. The Associate Judge then proceeded to consider the merits of the plaintiff’s case in some detail and whether he has acted as a responsible litigant, before balancing the plaintiff’s access to the Court against the defendants’ interest in being paid costs if they succeed and concluding that balance weighed in favour of the plaintiff (at least in relation to the matters subject to review).
Approach on review
[6] Applying the former s 26P of the Judicature Act 1908, the Court on review of an Associate Judge’s decision “may make such order as may be just”.
[7] The defendants accept that the Associate Judge’s decision not to order security was the exercise of a discretion and the criteria for a successful review are limited to:
(1) error of law or principle; (2) taking account of an irrelevant consideration;
(3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong.5
[8] Reflecting the difficult past in this proceeding, the review application was allocated a two day hearing as well as a one day preliminary hearing to deal with an issue as to the scope of the review application concerning whether Mr Wright could challenge aspects of the Associate Judge’s reasoning that Mr Wright says were incorrect and ought of themselves to have resulted in the application being declined. That preliminary issue was the subject of a judgment of Jagose J dated 31 May 2019.6
4 High Court Rules 2016, r 5.45(2).
5 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
6 Wright v Attorney-General [2019] NZHC 1221.
Jagose J ruled that Mr Wright could not argue that the Associate Judge had made errors or rely on any ground in support of the decision other than those relied on by the Associate Judge.7 However, the judgment acknowledged that if qualifying error is found, the Court moves on to consider what order may be just. At that stage, other grounds and reasons for the same decision may have relevance.8
Grounds of review
[9]The Police say that:
(a)the Associate Judge’s decision contained an error of law, namely an incorrect statement and application of the burden of proof in civil claims for breaches of NZBORA;
(b)the decision was plainly wrong in relation to the second arrest (in 2012);
(c)the decision overstated the merits of the plaintiff’s claim in relation to the first arrest (in 2009); and
(d)when the merits of the claims are properly weighed, alongside the other circumstances of the litigation, not ordering security for the first and second arrest claims was plainly wrong.
[10] The ADHB says the Associate Judge made errors of law, did not take into account all relevant considerations and was plainly wrong in the following respects:
(a)finding that certificates issued pursuant to ss 8B and 10 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHCAT) were invalid;
(b)finding that the burden of proof rests on the ADHB to establish that its treatment was lawful; and
7 Wright v Attorney-General [2019] NZHC 1221 at [14] and [28].
8 At [11].
(c)in exercising the discretion to decline to award security.
[11] As can be seen, a number of the grounds relate to the Associate Judge’s view of the merits of the plaintiff’s case. In oral submissions, Ms Adams for the ADHB acknowledged that the Associate Judge was not making formal findings but nevertheless characterised his conclusions as errors of law. Mr Potter, for the Police, re-characterised his merit-related grounds to submit the decision was plainly wrong (as indicated above).
Discussion
[12] On an application for security for costs, the Court is of course not making substantive findings. Even though the Associate Judge addressed the merits in some detail and expressed some clear views, they should be understood as only observations relevant to the exercise of his discretion.
[13] Just as it would have been wrong for the Associate Judge to make substantive findings on the application for security, it would equally be wrong for this Court to do so on review. Some of the arguments, seeking to characterise the Associate Judge’s views as errors of law, effectively sought such findings. In that context, error of law as a ground of review is inapt. I focus primarily on whether the decision was plainly wrong.
The nature of the discretion to order security for costs under r 45(2)
[14] As indicated, once the threshold requirement of inability to pay is met, as it was here, under r 45(2) the Court may order security “if the Judge thinks it is just in all the circumstances”. As the Court of Appeal said in A S McLachlan Ltd v MEL Network Ltd:9
Whether or not to order security and, if so, the quantum are discretionary. They are matters for the Judge if he or she thinks fit in all the circumstances. The discretion is not to be fettered by constructing “principles” from the facts of previous cases.
9 A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [13].
[15] In relation to the approach where security may prevent a claim from proceeding, the Court of Appeal said recently in Lee v Lee (footnote omitted):10
The discretion is a broad one. It may be exercised to require security even if that may prevent a plaintiff from pursuing a claim. But access to the Court for a genuine plaintiff is not lightly to be denied. In A S McLachlan Ltd v MEL Network Ltd this Court summarised the position:
[15] The rule itself contemplates an order for security where the plaintiff will be unable to meet an adverse award of costs. That must be taken as contemplating also that an order for substantial security may, in effect, prevent the plaintiff from pursuing the claim. An order having that effect should be made only after careful consideration and in a case in which the claim has little chance of success. Access to the Courts for a genuine plaintiff is not lightly to be denied.
[16] Of course, the interests of defendants must also be weighed. They must be protected against being drawn into unjustified litigation, particularly where it is over- complicated and unnecessarily protracted.
[16] Similarly, in Reekie v Attorney-General,11 the Supreme Court stated that applications for security for first instance proceedings call for careful consideration and judges are slow to make an order for security which will stifle a claim.
[17] As to the nature of the careful consideration required, the Court of Appeal said in Lee v Lee:12
Normally the court will only endeavour to assess the merits and prospects of success of the claim by way of overview … We do emphasise, however, that an application for security for costs should not generally become an opportunity to explore the merits in any depth.
[18] This also reflects the Court of Appeal’s earlier statement in A S McLachlan Ltd v MEL Network Ltd that, at best, in a complex matter, assessment at the interlocutory stage can be no more than impression and cannot be a definite indicator of the ultimate outcome after trial.13
10 Lee v Lee [2019] NZCA 345 at [20], citing A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [15]-[16].
11 Reekie v Attorney-General [2014] NZSC 63 at [3], referring to A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA).
12 Lee v Lee [2019] NZCA 345 at [73].
13 A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [21]. See also Highgate on Broadway Ltd v Devine [2013] NZAR 1017 at [22].
Circumstances of this case
[19] I agree with the Associate Judge that the relevant factors to balance in this case are the plaintiff’s right of access to the Court, the defendants’ interest in being paid costs if they successfully defend the proceeding, the nature of the NZBORA claims and its impact on costs if the defendants are successful, whether the plaintiff has acted as a responsible litigant, and an impression of the merit of the claims. Aside from the claimed errors of law in the Associate Judge’s assessment of the merits of the claims, the primary ground on review is that he was plainly wrong to balance the factors in favour of the plaintiff and decline security.
[20] I will return to the plaintiff’s right of access to the Court and the defendants’ interest in being paid costs, if successful, after considering the merits.
Costs in NZBORA context
[21] I agree with the Associate Judge that, while the Crown and government agencies are entitled to apply for costs in the same way as other litigants, there is a different approach to costs in cases under NZBORA.14 The Courts have acknowledged that it may not always be appropriate to allow costs to follow the event in cases involving the application of NZBORA because the normal costs rules may discourage litigants from bringing NZBORA claims.15 It is unlikely that costs will be awarded against an unsuccessful plaintiff if a NZBORA claim such as this is bona fide and is found to have had some merit even though unsuccessful, especially if the plaintiff sought no more than a vindication of rights, and the conduct of the case did not warrant an adverse costs order.
[22] Ms Adams submitted that the Associate Judge formulated a novel legal approach by referring to the distinct approach to costs in proceedings to obtain vindication of rights under NZBORA and posing two main questions:
(a)Does Mr Wright have a triable case on the merits?
14 Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [186] and [224].
15 Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [186]; and Dotcom v Twentieth Century Fox Film Corporation [2018] NZHC 299 at [5].
(b)If so, should his access to the Court be barred because of his alleged irresponsible conduct of the case?
[23] Given the approach to costs in NZBORA cases, I do not consider that the Associate Judge’s approach failed to take into account what is just in all the circumstances, as Ms Adams submitted, or was inconsistent with the appellate authorities to which I have referred. In any event, as indicated, in substance these questions identify relevant factors in the exercise of the Court’s discretion.
[24] Of course, the appropriateness of a costs award against an unsuccessful plaintiff is to be assessed after such an outcome. As with the merits, only an impression is possible at this stage. My impression is that the remaining claims are brought in good faith and are the types of NZBORA claims (especially the detention claim against the ADHB) that may avoid a costs award if found to have had some merit even though unsuccessful. However, I note the relief claimed goes beyond a vindication of the plaintiff’s rights. In addition to general (Baigent’s)16 damages, he seeks special damages of $400,000 and substantial exemplary damages. Such claims, if unsuccessful, may well be relevant to costs exposure. Ms Adams endorses the Associate Judge’s conclusions that the plaintiff has not shown any plausible basis for exemplary damages and his claim for economic lass has “real causation issues” and “seems tenuous”. The scope of the claim tends to merge into consideration of the responsible conduct of the case.
Responsible litigant?
[25] As to whether the plaintiff has acted as a responsible litigant, Ms Adams submits that he is likely to be ordered to pay costs if unsuccessful because he has put the defendants to much more effort and expense than is reasonable for a self- represented litigant, even a NZBORA claimant. The Associate Judge recorded the plaintiff’s failures, and that he acknowledged them and undertook to do better. The Associate Judge concluded that, given the way he has run the case, it is likely if he fails that costs may be ordered because of the increased expense he has caused the
16 Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s Case].
defendants. Ms Adams submits these conclusions in the ADHB’s favour should have made the Court award security.
[26] Ms Adams also submits that the Associate Judge erred by not considering, in favour of the discretion to grant security, the plaintiff’s abandonment of earlier habeas corpus and judicial review proceedings testing the lawfulness of his detention. The Judge did consider this. He considered that the abandonment of those proceedings did not count against the plaintiff bringing this proceeding. Those earlier proceedings were directed at obtaining his release. Mr Potter also referred to the plaintiff’s conduct of other earlier proceedings. I accept the plaintiff has not been a model litigant. But conduct of other proceedings, while possibly indicative of future conduct, is not itself material to the conduct of this proceeding. Further, whether or not the plaintiff is a responsible litigant for the purposes of any ultimate award is secondary to the issue of whether the lack of merit of the claim justifies security that would prevent the claim from proceeding. I address this further below.
[27] Finally, Ms Adams submits that the Judge failed to weigh an outstanding costs award of $10,546.33 against the plaintiff from November 2017. Similarly, Mr Potter referred to a costs award of $13,931.35 outstanding to Police dating back to May 2017. Given that it is common ground that the plaintiff is unable to pay costs, I also consider this is secondary to whether the lack of merit justifies security that would prevent the claim proceeding.
Impression of the merits
Burden of proof
[28] Ms Adams submitted the Associate Judge erred in law by finding that, once the plaintiff shows an infringement of his normal rights not to be detained and to refuse medical treatment, the burden of proof rests on the ADHB to establish that its treatment was lawful. Mr Potter made a similar submission for the Police. In the context of an impression of the merits of the plaintiff’s claims for the purposes of security for costs, little turns on this. The Associate Judge may have gone too far when he said that the ADHB’s reliance on its powers under MHCAT was an affirmative defence which it must prove. The plaintiff is bringing a civil claim for breach of his
right under NZBORA not to be arbitrarily arrested or detained. Appreciating the fundamental importance of such rights, the contention that arrests or detention were lawful is not necessarily an affirmative defence reversing the normal civil onus. Without determining the issue at this stage, I consider the better view is that stated by Butler and Butler, that in civil proceedings alleging a NZBORA violation the usual rules as to onus and standard of proof apply.17
First arrest
[29] In relation to the first arrest on 22 November 2009, Mr Potter submitted that the Associate Judge’s decision overstated the merits of the plaintiff’s claim. Mr Potter described it as weak but he did not maintain it was unarguable. The key issue appears to be whether the constable had good cause to suspect the plaintiff had committed a breach of the peace or an offence punishable by imprisonment.18 The plaintiff was arrested for assaulting a constable acting in the execution of his duty. That is an offence punishable by imprisonment.19 Good cause to suspect requires an actual suspicion and good cause to hold that suspicion.20 It is the second part that involves an objective determination.21
[30] This issue involves an assessment of the circumstances leading to the Police attendance at the plaintiff’s home and what happened there, including immediately after the plaintiff told the Police to leave. I accept, as Mr Potter submitted, that assessment must take into account the practicalities of the situation. Realism is required.
[31] Given the context of this review application and therefore forming only an impression, I do not propose to set out a detailed assessment based on the pleadings,
17 Butler and Butler (eds) The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis NZ Ltd, Wellington 2015) at [34.3.3], citing Brown v Attorney-General [2005] 2 NZLR 405 (albeit that case addressed the onus in the context of a causation issue); and at [6.7.1], citing Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [108] (which addressed the onus on justifying limitations under s 5, stating that a party alleging a NZBORA violation bears the onus of proving a prima facie interference with a Part II right and then the onus shifts to the state to demonstrate the reasonableness of the impugned limit).
18 Crimes Act 1961, s 315(2)(b).
19 Summary Offences Act 1981, s 10. Maximum penalty of 6 months’ imprisonment.
20 R v Thompson (1995) 13 CRNZ 546 (HC).
21 Police v Anderson [1972] NZLR 233 (CA).
affidavits and briefs of evidence. Even though the plaintiff told the Police to leave, his actions immediately after may have given the constable good cause to suspect the plaintiff had threatened to apply force to him and therefore committed an assault. But I consider Mr Potter was right to acknowledge the claim is not unarguable.
ADHB detention
[32] I turn to the merits of the plaintiff’s claim in relation to the ADHB’s detention under MHCAT and Ms Adams’ criticisms of the Associate Judge’s conclusions. The Associate Judge stated that while the s 8B certificate reported symptoms that a psychiatrist may recognise as consistent with a mental disorder, they were not stated as reasons, and, more importantly, the certificate did not address the serious danger requirement of the definition of “mental disorder”. Accordingly, given what was stated in the certificate, the medical practitioner did not reasonably believe that the plaintiff may be suffering from a mental disorder as defined. The certificate was accordingly invalid and could not be used to support the application for assessment under s 8A. Also, the certificate of preliminary assessment form had ticked a box for “serious danger to the health and safety of self or other persons” and recorded observations and findings but did not give reasons for the medical practitioner’s opinion that the plaintiff had an abnormal state of mind and that because of that state of mind he posed a serious danger to health and safety. In the absence of reasons, she could not have had a reasonable belief that the plaintiff was mentally disordered. Accordingly, the certificate of preliminary assessment under s 10 was invalid.
[33] Ms Adams submitted that the Associate Judge’s approach formulated a novel, inappropriately formal, standard for assessing the validity of preliminary certificates issued by medical practitioners under ss 8B and 10 and made findings based only on reasons recorded in the certificates and without reference to contemporaneous clinical records made by the health professionals completing the certificates. She submitted this approach was inconsistent with the Court of Appeal decisions in Sestan v Director of Area Mental Health Services22 and A J Burr Ltd v Blenheim Borough Council.23
22 Sestan v Director of Area Mental Health Services, Waitemata District Health Board [2007] 1 NZLR 767 (CA).
23 A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA).
She also submitted the Associate Judge misinterpreted the medical practitioners’ clinical observations.
[34] I accept the Associate Judge expressed these views as if they were findings but, as indicated, they should be understood as only observations relevant to the exercise of his discretion. I also accept that the question of the validity of preliminary certificates issued by medical practitioners under ss 8B and 10 must be assessed having regard to the statutory context.24 Likewise, medical observations need to be interpreted appropriately in their clinical context.
[35] As for reasons, Ms Adams submitted the Associate Judge misconstrued the requirement for reasons, submitting it is unclear whether there is a general duty at law on decision-makers to give reasons. But here there are explicit statutory requirements. As well as the general right under s 23 of NZBORA to be informed of the reason for detention, a certificate under s 8B must, among other things:25
(c)state that the health practitioner considers that there are reasonable grounds for believing that the person may be suffering from a mental disorder:
(d)set out full particulars of the reasons for that opinion, explaining in what way the health practitioner believes that the person’s condition may come within the statutory definition of mental disorder:
[36] This requirement that the reasons be set out in the certificate leaves little room for the ADHB’s argument that reasons may be found in the contemporaneous clinical records. It may be possible for the reasons in the certificate to be informed by other admissible evidence such as the clinician’s own notes at the time, but that will be a matter of fact and degree.
[37] It is not disputed that the medical practitioners actually held the requisite beliefs for the ss 8B or 10 certificates. The issues are whether the practitioners complied with the statutory requirements and whether objectively the practitioners had reasonable grounds for their belief or opinion.
24 Sestan v Director of Area Mental Health Services, Waitemata District Health Board [2007] 1 NZLR 767 (CA) at [89]-[90].
25 Mental Health (Compulsory Assessment and Treatment) Act 1992, ss 8B(5)(c) and (d).
[38] Without making any finding at this stage or suggesting that “health” is limited to physical health,26 it appears the brief reasons in the s 8B certificate did not address the “serious danger to the health or safety” requirement of the definition of mental disorder. Suffice to say that a s 8B certificate that does not set out full particulars of the reasons for the practitioner’s opinion that there are reasonable grounds for believing that the person may be suffering from a mental disorder would not comply with s 8B. It would also be at risk of not objectively substantiating the requisite reasonable grounds for belief. But as the Court of Appeal indicated in Sestan, it is important to view any non-compliance in the round when assessing the consequences.27
[39]In relation to a certificate of preliminary assessment, s 10 relevantly provides:
(1)After completing the assessment examination, the health practitioner must record his or her findings in a certificate of preliminary assessment, stating—
(a)that he or she has carefully considered the statutory definition of mental disorder and the proposed patient’s condition in relation to that definition; and
(b)that, in his or her opinion,—
(i)the proposed patient is not mentally disordered; or
(ii)there are reasonable grounds for believing that the proposed patient is mentally disordered and that it is desirable that the proposed patient be required to undergo further assessment and treatment.
(2)The health practitioner must send to the Director of Area Mental Health Services—
(a)the certificate of preliminary assessment; and
(b)full particulars of the reasons for his or her opinion of the proposed patient’s condition, and any relevant reports from other health professionals involved in the case;
[…]
26 See Re IC [2001] NZFLR 895 at [74] where William Young J held it includes psychological and emotional health.
27 Sestan v Director of Area Mental Health Services, Waitemata District Health Board [2007] 1 NZLR 767 (CA) at [89]-[90].
[40] In this s 10 context, the full particulars of the reasons are not explicitly required to be in the certificate itself but they are required to be sent to the Director. I accept that in this s 10 context the objective assessment of whether the medical practitioner had reasonable grounds for believing that the proposed patient was mentally disordered is not bounded by the certificate alone. The clinical report form is said to provide reasons for the conclusion reached, but it is unnecessary and would be inappropriate to determine at this stage what other evidence is admissible for the purposes of considering the claim of non-compliance with s 10.
[41] My impression of the plaintiff’s case against the ADHB is that it is not only arguable but has some merit.
[42] I consider it is unnecessary to elevate the issue of the duty to give reasons in MHCAT cases to one of more general importance, as the Associate Judge seemed to do.
Second arrest
[43] Turning to the second arrest, Mr Potter submitted that the Associate Judge was plainly wrong. The second arrest was for trespass at a service station on 25 March 2012. The plaintiff was charged with trespass, but that charge was dismissed in the District Court as the Police failed to prove that the plaintiff was warned to leave the service station by an “occupier”. The Associate Judge appreciated that the issue in this proceeding is whether the plaintiff can establish breaches of his rights, not whether another prosecution would succeed, and concluded the claim was arguable but not strong. Mr Potter submitted that is not consistent with the evidence in the District Court. He submitted this claim is unarguable.
[44] I accept that given the different onus and standard of proof, it may not follow from dismissal of the charge that the civil claim has merit. But the issue in the District Court was the lack of evidence of warning by an employee of the occupier with authority. I accept that under the Trespass Act 1980 “occupier” includes any employee acting with authority and no formal delegation is required.28 Nor is managerial rank
28 Polly v Police [1985] 1 NZLR 443 (CA) at 448.
– effective control is sufficient.29 The issue here is whether the police officer had good cause to suspect the plaintiff had committed the offence of trespass (which is an offence punishable by imprisonment).30 As indicated above, good cause to suspect requires an actual suspicion and good cause to hold that suspicion, which involves an objective determination.31 My impression is that the police officer may well have had good cause to suspect the plaintiff had committed the offence of trespass based on an understanding that a service station employee asked Police to tell the plaintiff to leave. But, at this stage, I am not sufficiently clear about the officer’s understanding as to the authority of that employee to say the claim is unarguable. The plaintiff submitted there is also an issue as to whether the Police acted reasonably in the circumstances.32 This review application is not the forum to address disputed issues.
[45] Mr Potter also submitted that the Associate Judge erred when stating that there was no evidence that the plaintiff’s implied licence was revoked before any warning was given. Mr Potter submitted that in an implied licence situation, the request to leave both terminates that licence – making continued presence a trespass – and constitutes the necessary warning. That proposition seems inconsistent with the wording of the offence in s 3(1):
Every person commits an offence against this Act who trespasses on any place and, after being warned to leave that place by an occupier of that place, neglects or refuses to do so.
[46] I accept that a person whose implied licence is revoked becomes a trespasser. But the plain words of s 3(1) suggest that the person must be a trespasser before being warned to leave. Mr Potter cited Wilcox v Police.33 I do not consider that case supports the submission. It concerned the meaning of the word “trespasses” in s 3(1) but in relation to an argument about necessity, and the interplay with the defence in s 3(2). Indeed, Tipping J went on to conclude that a person entering with authority may have to be given two requests or warnings to leave. The first request will revoke the authority to be there, thus creating the person concerned a trespasser if he does not
29 Routhan v Police [2014] NZHC 3203 at [39].
30 Trespass Act 1980, s 3. Maximum penalty of 3 months’ imprisonment.
31 Routhan v Police [2014] NZHC 3203 at [29].
32 Ross v Police (2002) 6 HRNZ 734 at [45].
33 Wilcox v Police [1994] 1 NZLR 243 (HC) at 246.
withdraw within a reasonable time. If there is still a failure to withdraw, the person concerned can then be given the warning to leave of which s 3(1) speaks.34
[47] Nevertheless, assuming the employee had authority, Mr Potter appears correct to submit that there was evidence in the District Court that the plaintiff was told by a police officer that staff wanted him to leave and subsequently was warned to leave by a different police officer.
Overall impression of merits and its significance in this case
[48] In summary, my impression is that the plaintiff’s case against the Police is arguable but I would not describe it in stronger terms than that. My impression of the plaintiff’s case against the ADHB is that it is not only arguable but has some merit.
[49] Returning to the significance of that impression in this case, as indicated in A S McLachlan Ltd v MEL Network Ltd,35 an order having the effect of preventing the plaintiff from pursuing the claim should be made only after careful consideration and in a case in which the claim has little chance of success. The interests of defendants must also be weighed. They must be protected against being drawn into unjustified litigation, particularly where it is over-complicated and unnecessarily protracted. In Highgate on Broadway Ltd v Devine,36 Kós J stated that a prima facie case that a claim is unmeritorious will be a factor in favour of security and that in New Zealand a prima facie lack of merit will be weighed in the balance. These were not cases under NZBORA.
[50] In terms of impression, I do not characterise the plaintiff’s arguable claims as having little chance of success, unmeritorious or unjustified. I am also conscious of the NZBORA context. That reduces the prospect of costs simply following the event if the plaintiff is unsuccessful but, as indicated, costs may still be awarded if the claim goes further than vindication of rights or is not conducted responsibly. That is a risk for the plaintiff in this case, as the Associate Judge concluded. However, as the Court
34 At 247. See also Ross v Police (2002) 6 HRNZ 734 at [39].
35 A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [15]-[16].
36 Highgate on Broadway Ltd v Devine [2013] NZAR 1017 at [22].
of Appeal has said,37 access to the Courts of a genuine plaintiff is not lightly to be denied.
[51] Therefore, in circumstances where it would prevent the claim from proceeding, I do not consider that (lack of) merit favours an order for security.
Overall balance
[52] I have already considered the plaintiff’s right of access to the Court balanced against the interests of the defendants in relation to unmeritorious or unjustified claims without the prospect of costs if they successfully defend the proceeding. Related to this, if security were ordered in the sums sought ($30,000 by the ADHB and $15,000 for the two arrest claims) it would not really assist the defendants’ interest in being paid costs if they successfully defend the proceeding. Their costs would be much greater. It would only protect them by preventing the claim from proceeding, which I have already addressed. The suggestion that a modest award would mean the plaintiff had “skin in the game” which might assist with the conduct of the litigation is similarly answered. It is common ground that the plaintiff will be unable to pay costs, and the evidence suggests that means any costs, so even a modest award will prevent the claim proceeding.
[53] Mr Potter submitted that, apart from the merits, the plaintiff’s misconduct of the litigation and the likely disproportionate level of costs that will be incurred if the case proceeds to trial are important factors in favour of security. I have addressed the plaintiff’s conduct of the litigation above in relation to the costs approach in NZBORA claims. But I consider it is of limited relevance in this case where an order will prevent the plaintiff from pursuing a claim which I do not characterise as having little chance of success, unmeritorious or unjustified.
37 Lee v Lee [2019] NZCA 345 at [20], citing A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [15]-[16].
[54] I acknowledge the history of this case indicates there is a real risk of it remaining over-complicated and unnecessarily protracted.38 The defendants have a legitimate interest in avoiding that. As Mr Potter submitted, costs will likely be grossly disproportionate to the amount in issue.39 That is all the more so if the quantum is considered to be limited to modest Baigent’s damages rather than the amounts claimed.40 Mr Potter advised that discovery is complete and the plaintiff’s special damages claim should fall away. Without underestimating the non-financial importance of the proceeding to the plaintiff, proportionality will need to be managed. The way forward is not preventing the claim through an order for security but active management of it towards resolution or hearing.
[55] In relation to future costs, while I accept that the Police and ADHB are separate defendants with separate interests, there is a large degree of common interest, highlighted by the fact that the two legal teams are at the same firm. Their separate representation involves a considerable element of duplication, which it may be possible to reduce.
[56] Although the Associate Judge’s concern that security would prevent the plaintiff from pursuing the claim led him to review the merits and express views in much more detail than usual on a security for costs application, the defendants fall short, and the ADHB well short, of persuading me that the decision not to order security was plainly wrong. Indeed, in assessing what is just in all the circumstances of this case, I consider the Associate Judge was correct to exercise his discretion to decline to order security in favour of the ADHB or the Police in respect of the first two arrest claims.
[57] It is therefore unnecessary to consider the other grounds relied on by the plaintiff to support the Associate Judge’s decision.
38 In relation to timing, I note the delay since 2017 when the defendants applied for security for costs is not the fault of the plaintiff.
39 Albeit not comparable with Mihaka v Attorney-General HC Whangarei, CP3/00, 1 November 2000 at [23].
40 See [24] above.
Result
[58]The applications for review are dismissed.
[59] As the plaintiff is self-represented, I expect there is no issue as to costs.41 If there is any issue as to costs or disbursements, brief memoranda may be filed within 15 working days.
Gault J
41 See McGuire v Secretary for Justice [2018] NZSC 116 at [88].
12
10
1