KING V ATTORNEY-GENERAL HC WN CIV-2008-485-465

KING V ATTORNEY-GENERAL HC WN CIV-2008-485-465 3 May 2010IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2008-485-465BETWEEN ANDRE RAUOL KING Plaintiff AND ATTORNEY-GENERAL Defendant Hearing: 3 May 2010 Appearances: No appearance for Plaintiff S V McKechnie for Defendant Judgment: 3 May 2010 at OralORAL JUDGMENT OF MACKENZIE J[1] This proceeding involves a claim by the plaintiff against the Attorney-General for damages in respect of the plaintiff's treatment at the hands of state entities while a boy many years ago. [2] The plaintiff was initially represented by Ms Cooper. Ms Cooper had been unable to obtain instruction from the plaintiff for a considerable period of time. The circumstances of her efforts to obtain instructions were set out in an affidavit in support of an application for an order that Ms Cooper cease to be the solicitor on the record. That application for leave to cease to be the solicitor on record was dealt with by Associate Judge Gendall on 3 August 2009. He noted that Ms Cooper had been unable to make contact with the plaintiff and he made an order that she cease to be solicitor on the record. [3] Counsel for the Crown now seeks an order that the proceeding be dismissed for want of prosecution under r 15.2 of the High Court Rules. Counsel has written tothe plaintiff at the plaintiff's last known address advising that the matter is to be called today and indicating in that letter an intention to apply to have the proceeding dismissed. There is no appearance this morning. [4] Rule 15.2 provides:Any opposite party may apply to have all or part of a proceeding or counterclaim dismissed or stayed, and the court may make such order as it thinks just, if— (a) the plaintiff fails to prosecute all or part of the plaintiff's proceeding to trial and judgment; or (b) the defendant fails to prosecute all or part of the defendant's counterclaim to trial and judgment.[5] There is no formal written application as I have noted. In my view an application under r 15.2 might, in appropriate circumstances, be made orally provided, of course, that the terms of the order sought and the intention to apply for dismissal have been made clear, if that is feasible, to the plaintiff before that course was taken. I would not wish to be seen as encouraging oral applications in the usual case, since it is important that the intention to apply to take that extreme step is, in general terms, brought home to a plaintiff by the filing of a formal application. In this case however, I consider that that step is an unnecessary formality since it is quite clear that the inability to contact the plaintiff would mean that the plaintiff would not receive any written application which was filed. [6] I am satisfied that the inability, initially of Ms Cooper and latterly of counsel for the defendant, to contact the plaintiff indicates that the plaintiff has not and will not pursue the proceeding and that the appropriate course in those circumstances is that the proceeding should be dismissed. [7] There will be an order accordingly."A D MacKenzie J"Solicitors: Crown Law, Wellington, for Defendant