Wright v Darvill
[2015] NZHC 1821
•4 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-3289 [2015] NZHC 1821
BETWEEN NICHOLAS DAVID WRIGHT
Plaintiff
AND
ANTHONY DARVILL AND YILIANG SUN
First Defendants
AND
THE INDEPENDENT POLICE CONDUCT AUTHORITY Second Defendant
AND
THE ATTORNEY-GENERAL OF NEW ZEALAND
Third Defendant
AND
HER MAJESTY THE QUEEN IN RIGHT OF NEW ZEALAND
Fourth Defendant
Hearing: 23 July 2015 Appearances:
Plaintiff in person
No appearance for First Defendants
N M H Whittington & O M Klaassen for Second & Third
Defendants
No appearance for Fourth DefendantJudgment:
4 August 2015
JUDGMENT OF KEANE J
This judgment was delivered by me on 4 August 2014 at 10am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
WRIGHT v DARVILL & ORS [2015] NZHC 1821 [4 August 2015]
[1] On 29 October 2009, in the early evening, Nicholas Wright, then a practising lawyer, was arrested in his home by Constables Darvill and Sun for assault and resisting arrest. The following day he was charged with assaulting an officer in the execution of his duty, a charge later withdrawn, and admitted to a mental health institution for the ensuing two weeks.
[2] On 1 December 2013 Mr Wright lodged with the Independent Police Conduct Authority a complaint against the two officers. On 3 December 2013 the Authority wrote to Mr Wright stating that it had decided not to assess his complaint itself but rather to refer his complaint to the New Zealand Police, with whom he might be able to reach an agreement. Mr Wright contends that since then the police have not determined his claim on its actual merit.
[3] The Authority has also since advised Mr Wright that it is exempt from having to tell him what its reasons were, and Mr Wright contends that he is entitled to those reasons. His case is that by declining to investigate his complaint itself and by immediately referring it to the New Zealand Police, the Authority failed to adhere to its statutory process, it showed presumptive bias and it acted in breach of his legitimate expectation.
[4] On this application for review, on which Mr Wright embarked on 16
December 2014, he seeks declarations that:
(a) The two officers acted unlawfully by entering his home, by refusing to leave, and by arresting and restraining him.
(b)The New Zealand Police acted unlawfully by refusing him his right to make a recorded statement, by holding him without charge for eight hours and by refusing since to review the legality of his arrest.
(c) The Authority acted unlawfully by refusing to disclose to him its reasons deciding not to investigate his complaint itself.
Mr Wright seeks two consequent orders; one quashing the Authority’s decision and
the other upholding his complaint.
[5] The two officers, in their statements of defence, contest the first declaration Mr Wright seeks. They say that they entered his home in good faith to counter any risk that he might assault his children, or they entered because his mother invited them to, and that he was arrested lawfully. The Attorney-General contests the second declaration, contending that in all respects his arrest and detention were lawful. The Authority contests the third declaration, contending that it acted within
its statutory power.1
[6] There are three threshold issues to resolve:
(a) Is Mr Wright obliged, or entitled, to seek a declaration against the Crown, as he has thus far designated it, as distinct from the Attorney- General, and to interrogate the Attorney-General as to its personality in law?
(b)Is he entitled to discovery of the records of the New Zealand Police relating not just to his arrest and detention, but also to the investigation the police made of his complaint? Is he entitled to discovery against the Authority?
(c) Is the Authority and the Attorney-General entitled to security for costs and a stay if Mr Wright is unable to pay?
First issue - proper defendants
[7] In his original statement of claim Mr Wright named as defendants the two arresting officers, the Authority and the Attorney-General. In his first amended statement of claim, dated 7 April 2015, he has named as fourth defendant “Her Majesty The Queen in right of New Zealand”, whom he has described as:
A corporate entity registered in the US Securities and Exchange Corporation under Central Index Key Number 0000216102 and having its registered office in New Zealand.
[8] On 7 April 2015 also Mr Wright gave notice to the Attorney-General, and to the fourth defendant as designated, asking by way of interrogatory who the shareholders of the fourth defendant are, how that defendant is constituted as a corporation, who its executive is and how it makes decisions, whether it has a parent corporation, and the like.
[9] On 15 May 2015 the Attorney-General applied for an order striking out the fourth defendant, contending that he is the only proper defendant on behalf of the Crown, and that Mr Wright has no reasonably arguable cause of action against the fourth defendant, who has been improperly or mistakenly joined.
[10] The Attorney-General also seeks an order that he not be required to answer Mr Wright’s interrogatories relating to the fourth defendant because they serve no legitimate purpose, or a third set of interrogatories, dated 1 May 2015, because he has already answered Mr Wright’s second set of interrogatories, dated 26 April 2015.
[11] At the hearing Mr Wright consented to striking out the fourth defendant as a party, and no longer pursued the interrogatories concerning that defendant. (He still pursues the third set of interrogatories.) He wished instead to file a second amended statement of claim, excising the Attorney-General as well as the fourth defendant, and adding as third defendants the two police officers who advised him that the police did not accept his complaint, and once again as fourth defendant, “The Crown, Sovereign of New Zealand”.
[12] One reason why Mr Wright has persisted in naming the Crown as a party appears to be symbolic. His primary concern is, however, that s 14(2) of the Crown Proceedings Act 1952, which prescribes how civil proceedings against the Crown may be instituted, and requires the Attorney-General to be sued if a department of state or officer cannot be, does not govern applications for judicial review. “Civil
proceedings” do not include such applications.2
[13] That cannot mean, however, that Mr Wright is disentitled from proceeding against the Attorney-General and must pursue the Crown in some more abstract sense. As the Attorney-General submits, s 14(2) only prescribes how the Crown is to be sued in civil and criminal proceedings. It does not say that applications for review cannot be pursued analogously. Nor is the Judicature Amendment Act 1972 negatively prescriptive either.
[14] In this case, the primary actors were members of the New Zealand Police and one possibility may be to sue the New Zealand Police as an instrument of the Crown.3 Another may be to sue the Commissioner of Police, who has independent responsibilities for the maintenance of order, the enforcement of the law, and the investigation and prosecution of offences.4 If neither is appropriate the Attorney- General must remain the proper respondent, as he contends he is.
[15] Mr Wright accepted that, if this were so, the Attorney-General could safely remain the third defendant and that he has no need, to add the two police officers, who declined his complaint. Nor, he accepts, does he have any need to join the Crown as he now wishes to describe that entity in his proposed second amended statement of claim, although he says he may wish to do so in some later case.
[16] There is no issue otherwise as to the proposed second amended statement of claim, which I understand will be able to be filed before the date by which pleadings must be complete. Neither the Authority, nor the Attorney-General, took any issue with it. While there was no appearance for the two officers, who are first defendants, they appear to be unprejudiced also.
Second issue - discovery
[17] On 26 May 2015 Mr Wright applied for an order for general discovery. The two officers do not oppose that order, and there is no issue taken by the Attorney- General as to Mr Wright’s entitlement to discovery as it relates to the conduct of the New Zealand Police more generally, both on Mr Wright’s arrest and while he was
detained afterwards.
3 Policing Act 2008, s 7.
4 Section 16(2).
Section 32(1) duty and immunity
[18] The Authority and the Attorney-General did initially contend that the New Zealand Police were immune from any duty to disclose their record as it concerned Mr Wright’s complaint, on the assumption that they were both then subject to the duty of secrecy imposed by s 32(1) of its Act:
The Authority, every member of the Authority, and every person holding any office or appointment under the Authority, shall maintain secrecy in respect of all matters that come to their knowledge in the exercise of their functions, and shall not communicate any such matter to any person except for the purpose of carrying out their functions under or giving effect to this Act.
[19] In Attorney-General v Hekkenberg the Court of Appeal held that s 32 overrides any statutory right to disclosure under the Privacy Act 1993 or the Official Information Act 1982 and also confers an immunity against having to make discovery. As to that latter immunity the Court said this:5
We do not consider that any common law rights of discovery could apply to the complaints file in the face of the protection provision of s 32 and the policy of ensuring that information is provided to the Authority and those investigating complaints under its direction. In s 32, as in comparable provisions in the Ombudsmen and privacy legislation, Parliament is facilitating the free flow of information by providing for secrecy, along with related powers to require the provision of information (although in the present situation only by the PCA, but that power remains available in the background even when the police are investigating).
[20] In Hekkenberg and in other cases since,6 however, the police investigated the complaint in question on behalf of the Authority after it had been referred to them under s 17(1)(b), which entitles the Authority to “defer action until the receipt of a report from the Commissioner on a police investigation of the complaint undertaken on behalf of the Authority.” That is not this case.
This case
[21] After receiving Mr Wright’s complaint, sent by email on the evening of
Sunday 1 December 2013, the Authority replied to Mr Wright on Tuesday, 3
5 Attorney-General v Hekkenberg [1998] 3 NZLR 257 at 260.
6 Young v Police Complaints Authority & Attorney-General HC Auckland M157/03, 12 June
2003; Williams & Ors v Attorney-General HC Auckland CIV-2001-404-1999, 2 June 2004.
December, saying this:
The Authority has considered your complaint and has referred the matter back to the police as it is considered that your complaint may be resolved by way of mutual agreement between you and the police.
You will be contacted by an officer assigned to inquire into your complaint. The police may also wish to meet with you to discuss your concerns. If you have any queries during this process, you should contact the assigned police officer.
At the conclusion of the inquiry you will be advised in writing of the nature of the mutually agreed outcome or, in the absence of such an agreement, the decision reached by police on your complaint. If you have any residual concerns following receipt of the final letter from the police, you may advise the Authority of the nature of the concerns. Consideration will then be given as to what further steps, if any, should be taken.
[22] In that letter, without referring to its statutory powers expressly, the Authority told Mr Wright that it had decided not to exercise its power under s 17(1)(a) to investigate his complaint itself, and had instead referred his complaint to the Commissioner of Police under s 17(1)(ab). It also told him, implicitly, that it had decided under s 18(1)(b)(v) not to take any action on his complaint, because he had an adequate remedy, capable of being agreed with the New Zealand Police.
[23] In the investigation that the New Zealand Police then made, therefore, they did not act on behalf of the Authority. They acted in their own right. They are not entitled to claim the immunity conferred correlatively by s 32(1) against having to make discovery of their investigation file. The question that remains is whether the Authority itself is entirely immune from having to make discovery as it is contended thus far.
Authority’s duty
[24] Section 32(1) imposes a duty of secrecy on the Authority, and those who act for it, as to “all matters that come to their knowledge in the exercise of their functions”. Then, the only basis on which they can communicate any such matter to anyone is “for the purpose of carrying out their functions under or giving effect to
this Act”.7
[25] In seeking discovery against the Authority, Mr Wright pursues particularly any documents supporting his claim for presumptive bias. He wishes to establish whether, before he made his complaint, anybody to whom he had complained previously (the Governor-General, Ministers of the Crown and others) might have alerted the Authority to his forthcoming complaint and said something about its merit.
[26] If the Authority did receive any such document before Mr Wright made his complaint, it did so before its statutory functions came into play, which in Mr Wright’s case were to receive his complaint and to take such action in respect of it as the Act contemplates.8 It would not then have received any such document subject to its s 32(1) duty of secrecy. Nor could it claim any immunity from having to discover such a document.
[27] Once Mr Wright made his complaint, however, on 1 December 2013, the
Authority would have come under its s 32(1) duty of secrecy until it decided on 3
December 2013 to transfer his complaint to the New Zealand Police. As to any document it received within that 24 hour period, it would be immune from any duty of discovery.
[28] On that basis I make an order for specific discovery in Mr Wright’s favour as to any document the Authority received before he made his complaint, but not as to any that it may have received afterwards. The Authority, if it does disclose any such document, may still claim immunity or privilege on a more precise basis if it wishes to do so and that can then be assessed on its merit.
Third issue - security and stay
[29] Finally, in applications made on 15 May 2015, the Authority and the Attorney-General apply for security for costs, contending that Mr Wright will be unable to pay their costs if he is unsuccessful and that it is in the interests of justice
that an order be made, because, they contend, his claim is devoid of merit and he has pursued it frivolously and vexatiously, a propensity he has shown in other cases.9
Security principles
[30] Under r 5.45 a plaintiff may be required to give security for costs either by paying a sum into Court, or by giving satisfactory security for it; and the proceeding may be stayed until the sum is paid or the security given.10
[31] But, even where a plaintiff is clearly without means, an order for security for costs is not automatic precisely because it will bring the claim to a halt. As the Supreme Court said in Reekie v Attorney-General:11
The jurisdiction to require security poses something of a conundrum for the Courts. The poorer the plaintiff, the more exposed the defendant is as to costs and the greater the apparent justification for security. But, as well, the poorer the plaintiff, the less likely it is that security will be able to be provided and thus the greater the risk of a worthy claim being stifled.
[32] So too, in the earlier case A S McLachlan Ltd v MEL Network Ltd,12 the Court confirmed that the discretion is to be exercised on “a careful assessment of the circumstances of the particular case”; and that a balancing exercise is called for.13
[33] An order preventing a plaintiff from pursuing a claim, the Court of Appeal said, “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”.14 As against that, “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”.15
[34] Where a case is complex, the Court said, any assessment before trial of its merit “can be no more than an impression”.16 That being so, it may be that an order
9 Wright v Bhosale HC Auckland CIV-2013-404-4936.
10 High Court Rules, r 5.45(2)(3).
11 Reekie v Attorney-General [2014] NZSC 63 at [2].
12 A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [13], [14].
13 Above, n 1, At [15] – [16].
14 At [2].
15 At [16].
16 At [21].
for security, which would bring the claim to a halt, ought to be withheld unless it is clear that the claim is altogether without merit and might, alternatively, deserve to be struck out.17
Claim merit
[35] Mr Wright accepts that he is unable to pay security for costs and so the issue is whether his claim is so devoid of merit and whether he has pursued it so frivolously and vexatiously, that this consequence can be reconciled with the interests of justice. Presently I do not consider that either conclusion is open.
[36] The Attorney-General accepted that Mr Wright’s claim, as it relates to his arrest and detention, cannot yet be assessed and that the only evidence on this issue presently comes from his mother in affidavit form. The Attorney-General properly accepts, therefore, that as to this head of claim Mr Wright must be assumed to have some prospect of success.
[37] The Authority accepted, as it did in Young, that is it amenable to judicial review, reserving for another day if need be whether it may be immune under s
33(1)(a), which says:
No proceedings, whether civil or criminal, may lie against the Authority, any member of the Authority or any person holding any office or appointment under the Authority, for anything done or said by them in the course of the exercise or intended exercise of their functions under this Act, unless it is shown that they acted in bad faith.
[38] The Authority contends instead that Mr Wright can have no claim against it because it has acted consistently with its statutory powers. But that cannot be assessed until after discovery is complete. If documents were discovered that were consistent with Mr Wright’s contention that the Authority acted with presumptive
bias, he might have a basis for claim.
17 Highgate on Broadway Ltd v Devine [2012] NZHC 2288 at [23](b).
Claim conduct
[39] The issue is then whether, as the Authority and the Attorney-General contend, Mr Wright ought to give security because he has acted vexatiously or frivolously in this case or in his other case. I do not accept that he has.
[40] Mr Wright’s application for judicial review is unusual in that he seeks declarations, as opposed to Baigent damages, on the basis of evidence that will be the subject of contest. However, the Attorney-General takes no issue as to his right to do so, accepting that in issue will be whether the officers concerned exercised their statutory and other powers of decision lawfully.
[41] Secondly, Mr Wright’s statement of claim, as he has now amended it, seeks confined relief on an intelligible basis. His second set of interrogatories, which the Attorney-General has answered, are also properly confined in scope, as are his third, which the Attorney-General thus far opposes answering, but which I consider he should answer.
[42] Thirdly, had Mr Wright wished to pursue the joinder of the Crown, either as he has designated it in his first amended statement of claim, or as he at first proposed, to designate it in his second amended statement of claim, that would be a reason for pause. But he only wished to add the Crown to ensure that he could not be denied relief for failing to do so. He now accepts that he has no need.
[43] Finally, in this assessment, I decline to take account of the material I have as to Mr Wright’s other case, which has recently gone to trial and awaits a decision. I am unable to begin to assess whether Mr Wright has pursued that case responsibly or irresponsibly. That is a decision for the Judge in that case.
Orders
[44] In the result I make the following orders:
(a) I grant the Attorney-General’s application for an order striking out the fourth defendant to the first amended statement of claim, and a further order excusing him from having to answer related interrogatories.
(b)I grant Mr Wright general discovery against the Attorney-General and specific discovery against the Authority in the terms I have outlined; and grant him also leave to issue and have answered his third set of interrogatories.
(c) I decline the applications made by the Attorney-General and the
Authority for an order for security for costs and a stay.
[45] Finally, costs.18 The Attorney-General and the Authority do not thus far pursue any and if Mr Wright does he must first establish his right. Even though he is a lawyer, he no longer holds a practicing certificate and is deemed to be a lay litigant.19 Also likely to be in issue will be the degree of success he has enjoyed relative to the Attorney-General and the Authority and whether they have acted reasonably in the public interest.20
[46] As to those issues, Mr Wright is to file and serve any memorandum by 5pm, Monday 10 August 2015, and any memorandum in reply is to be filed and served by
5pm, Monday 17 August 2015.
P.J. Keane J
18 HCR 14.8(1).
19 McGechan on Procedure HRPt 14.10(1).
20 HR 14.7(d)(e).
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