HUNTER v ATTORNEY-GENERAL SUED ON BEHALF OF THE NEW ZEALAND POLICE AND THE MINISTRY OF JUSTICE [2017] NZHC 2433

HUNTER v ATTORNEY-GENERAL SUED ON BEHALF OF THE NEW ZEALAND POLICE AND THEMINISTRY OF JUSTICE [2017] NZHC 2433 [4 October 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV 2016-485-250[2017] NZHC 2433UNDER the Judicature Act 1908 and the NewZealand Bill of Rights Act 1990IN THE MATTER OF Trespass of property, conversion,unreasonable search and seizure ofpersonal property, trespass of goods,arbitrary detainment, claim for reliefBETWEEN BRIAN DAMIEN HUNTERPlaintiffAND ATTORNEY-GENERAL SUED ONBEHALF OF THE NEW ZEALANDPOLICE AND THE MINISTRY OFJUSTICEDefendantHearing: 21 September 2017Counsel: C Tennet for PlaintiffK Laurenson and G Ganeshan for DefendantJudgment: 4 October 2017JUDGMENT OF CHURCHMAN J[1] A statement of claim in these proceedings was initially filed on 18 April 2016.It sought a variety of remedies in relation to what was said to be two unlawful searches.The defendant was named as "Commissioner of Police".[2] By memorandum dated 24 May 2016 the defendant sought an extension oftime for filing the statement of defence.[3] The memorandum recorded that the plaintiff had been invited to replead hisclaim and that if that invitation was declined there would be an application either tostrike out or for security for costs.[4] The plaintiff's counsel, Mr Tennet, filed a memorandum dated 7 June 2016.That memorandum included the following statement:While the Plaintiff does not accept his Statement of Claim is deficient (orelse it would not have been filed), the opportunity will be taken to file a freshStatement of Claim. It will be a redaction of the current pleadings and at thisstage will not be introducing any fresh causes of action.[5] On 8 June 2016 Mallon J issued a minute granting the defendant an extensionof time for filing its statement of defence to within four weeks of the date the amendedstatement of claim that was to be filed. The minute indicated that any application forsecurity for costs was to be made at the same time as the statement of defence wasfiled.[6] The amended statement of claim was not filed for almost a year until 1 May2017. The scope of the statement of claim had been extended considerably and nowencompassed causes of actions arising from a total of four Police searches rather thetwo referred to in the original statement of claim.[7] On 23 May 2017 the Attorney-General filed an application to strike out partsof the amended statement of claim. I will refer to the Attorney-General as the applicantfrom here and the plaintiff as the respondent with regards the strike out application.[8] The amended statement of claim contains some 22 causes of action, some ofwhich were pleaded in the alternative. It extends to 41 pages, including schedules.The strike out application[9] The strike out application by the Attorney-General focuses essentially on threedifferent types of causes of action:(a) abuse of process (causes of action 1, 12 and 15);(b) the tort of false imprisonment (causes of action 5 and 16) and breach ofs 22 of the New Zealand Bill of Rights Act 1990 (NZBORA) (causesof action 6, 14 and 17); and(c) breach of statutory duty (causes of action 7 and 22).[10] In relation to cause of action 14 the applicant says that causes of action underss 21 and 22 NZBORA have been conflated and the alleged s 21 breach requires aseparate pleading.Strike out applications[11] High Court Rule 15.1(1) provides for a proceeding to be struck out when it:(a) discloses no reasonably arguable cause of action, defence, or caseappropriate to the nature of the pleadings; or(b) is likely to cause prejudice or delay; or(c) is frivolous or vexatious; or(d) is otherwise an abuse of the process of the Court.[12] There is little dispute between the parties as to the principles to be applied indetermining a strike out application. These are that the jurisdiction is to be exercisedsparingly and the cause of action must be clearly untenable.1[13] The pleaded facts are assumed to be capable of proof except in the situationwhere an essential factual allegation is "so demonstrably contrary to indisputable factthat the matter ought not to be allowed to proceed further".2[14] The applicant acknowledged that partial strike out applications are unusual butreferred to the observations of the Court of Appeal in McClintock.3 I accept that this1 Attorney General v Prince [1999] 1 NZLR 262 at 267; confirmed in Couch v Attorney General[2008] NZSC 45, [2008] 3 NZLR 725 at [33].2 Attorney General v McVeagh [1995] 1 NZLR 558 (CA) at 566.3 McClintock v Attorney General [2016] NZCA 274 at [13].is an appropriate case for a partial strike out falling within the principles set out by theCourt of Appeal in McClintock. It is also a case where the pleadings will be improvedsignificantly by the addition of further details.Causes of action 1, 12 and 15[15] The tort of abuse of process is pleaded in causes of action 1, 8, 12 and 15 ofthe amended statement of claim. The applicant challenges how it is pleaded in causesof action 1, 12 and 15.[16] The applicant does not seek to strike out these causes of action on the basis thatthey can never succeed but says that the tort cannot be made out on the claim aspresently pleaded in the causes of action 1, 12 and 15.Tort of abuse of process[17] The tort of abuse of process is made out where the Court process is used for apredominant purpose beyond the ambit of the legal claim on which the Court is askedto adjudicate.4[18] In order to be made out abuse of process requires use of the legal process (hereobtaining a warrant from a Justice of the Peace) in order to accomplish an ulteriorpurpose, that is, a purpose other than the purpose the proceedings are designed for, orsome collateral advantage.5[19] The applicant submits that in the causes of action 1, 12 and 15 there is nopleading that the searches were carried out by the Police for purposes beyond thosefor which the search warrants were obtained, or any criminal proceedingscontemplated by the associated investigations.4 Grainger v Hill (1883) 4 Bing (NC) 212, 132 ER 769 (Comm Pleas); Commercial UnionAssurance Co of NZ v Lamont [1989] 3 NZLR 187 (CA).5 Stephen Todd (ed) The Law of Torts in New Zealand (online loose leaf ed, Thomson Reuters) at[18.5.02].[20] In relation to these causes of action the applicant submits that on the plaintiff'sown pleadings search warrants were obtained and executed for the purposes within theambit of matters considered within the search warrant application.[21] The respondent submits that in each instance the Police conduct impugned wasoutside "the proper ambit" as there was no reasonable cause to suspect that the plaintiffhad committed an offence or other causal connection between the allegations and theactions taken by the Police.[22] The respondent, at [7] of the submissions dated 13 September 2017, submitsin the alternative that the present pleadings could be replaced with a pleading relatingto the "tort of malicious procurement of a search warrant", or the tort of "maliciousprosecution".[23] In regards to either of these alterative claims Mr Tennet for the respondentneeds to expressly plead the ulterior purpose upon which it is alleged each of the threeimpugned search warrants was obtained.[24] As presently pleaded, the amended statement of claim appears to acknowledgethat the three search warrants were obtained in connection with the investigation ofallegedly criminal activity.[25] The fact that the Police may have known that there was a civil dispute betweenthe defendant and Orari Gorge Station Ltd cannot mean that the warrants wereobtained for an ulterior purpose. The significant thing is that the Police were clearlyinvestigating something which was clearly capable of amounting to criminal activity.[26] None of the matters set out in [7] of the amended statement of claim arerelevant to the issue of whether the Police acted for an ulterior motive but ratherseemed to focus on criticising aspects of the process followed.[27] Mr Tennet argued that the manner in which a search warrant is executed mayinvalidate the warrant. However that is a different question than whether or not thewarrant was obtained for an ulterior purpose so as to amount to the tort of abuse ofprocess.Alternative torts[28] Mr Tennet suggested that the abuse of process pleadings could be replaced witha claim of malicious prosecution, or malicious procurement of a search warrant or thetort of misfeasance in a public office.[29] In relation to malicious prosecution, to successfully establish this tort wouldrequire the plaintiff to plead:6(a) that the defendant prosecuted the plaintiff on a criminal charge;(b) the criminal proceedings terminated without the plaintiff beingincriminated;(c) the defendant had no reasonable and probable cause to bring theproceedings;(d) the defendant acted maliciously; and(e) the plaintiff suffered damage as a consequence of the proceeding.[30] Given that there have, as yet, been no prosecution proceedings, the suggestionin [7] of the respondent's submissions that the abuse of process causes of actions couldbe replaced with proceedings alleging the tort of malicious prosecution is unfounded.[31] There is no doubt that it is a tort for a person maliciously and withoutreasonable and probable cause to procure the issue of a warrant to arrest.7 Maliciouslyand without reasonable and probable cause procuring the issue of a warrant to search6 Page v Page [2007] DCR 670 (DC) at [15]–[35].7 Meikle v The Wellington Loan Co (Ltd) (1911) 31 NZLR 217 (SC); Roy v Prior [1971] AC 470(HL).a suspect's house is also actionable8 but mere negligence in procuring the warrant isnot.9[32] Stephen Todd in The Law of Torts in New Zealand sets out the elements of thetort of malicious procurement of a search warrant:10What amounts to reasonable cause depends on the statutory condition for thegrant of the warrant. It must be shown that the defendant lacked any bona fidebelief that he or she was placing before the issuing Judge material sufficientto meet the necessary conditions. This encompasses the subjective belief ingood faith that material ground for suspicion exist and the objectiverequirement that the belief is reasonably held. Malice includes impropermotive, which in this case would be establishing a proof of intent to use theprocess for a purpose other than to search in the permitted circumstances.There is a presumption that a judicial officer issuing a warrant acted properlybut that establishes neither the accuracy of the matters presented to the judicialofficer or the state of mind of the applicant for the warrant. Generally, anydamage will arise from execution rather than issue of the warrant, but theremay be special circumstances in which it can be shown that the issue of thewarrant causes harm.[33] If there is to be a cause of action alleging malicious procurement of a searchwarrant or misfeasance in a public office, the defendant would have to plead maliceand the details supporting it. This is a high threshold.[34] The elements of the tort of misfeasance in public office were summarised inCurrie v Clayton:111 Standing: The plaintiff must have standing to sue.2 Public office: The defendant must be a public officer.3 Unlawful conduct: The defendant must have acted or omitted to act inpurported exercise of her public office unlawfully either:(a) intentionally, that is actually knowing her actions or omissionto act were beyond the limits of her public office; or(b) with reckless indifference as to whether she was acting oromitting to act outside those limits.4 Intention: The defendant must have so acted or omitted to act either:8 Evans v Crawford (1884) 2 NZLR 407 (SC); Gibbs v Rea [1998] AC 786 (PC).9 Simpson v Attorney-General [Baigent's case] [1994] 3 NZLR 667 (CA).10 The Law of Torts in New Zealand, above n 5, at [18.5.03].11 Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195 at [40].(a) with malice towards the plaintiff, that is, with intention toharm the plaintiff; or(b) knowing her conduct was likely to harm the plaintiff, orpeople in the general position of the plaintiff; or(c) with reckless indifference as to whether the plaintiff would beharmed. Subjective recklessness, not objective recklessness,is required.(Note: (a) is what is often called "targeted malice"; (b) and (c) areoften called "non-targeted malice".)5 Resulting loss: The plaintiff must actually have suffered loss and thedefendant's actions must have caused the plaintiff's claimed loss.[35] There is nothing in the amended statement of claim as presently pleaded thatcomes close to meeting these requirements.[36] In [14] of the respondent's submissions it is suggested that " once thediscovery process is engaged it may be that personal connections can be made betweenthe complainants in this [matter] and the particular Police officers who acted ontheir behalf". That is utter speculation and does nothing to alter the fact that, aspresently pleaded, causes of action 1, 12 and 15 do not contain pleadings identifyingthe ulterior purpose which it is alleged result in an abuse of process. Neither do theyplead to the matters necessary to establish any of the alternative causes of action setout in [7] of the respondent's submissions and above.[37] The respondent has permission to replead causes of action 1, 12 and 15 to fitwithin the legal requirements set out above.False imprisonment[38] The amended statement of claim pleads causes of action in both falseimprisonment and breach of the right in s 22 of the NZBORA to not be arbitrarilyarrested or detained.[39] As was acknowledged by counsel there are slightly different pleadingrequirements in respect of each of these concepts. I address first the allegations offalse imprisonment in causes of action 5 and 16.[40] In relation to the fifth cause of action the plaintiff's complaint is that a Policecar was parked immediately behind the plaintiff's vehicle on his property "making itimpossible for the plaintiff to drive off". This is the sole particular in support of theallocation of false imprisonment. As was said by the High Court in Siemer v Brown:12For false imprisonment to be made out, the defendant must have asserted atotal restraint upon the plaintiff; "total in the sense that it prevented allmovement and not merely in some directions".[41] Mr Tennet argued that, in a rural setting, the inability to use one's vehicle wasa more significant deprivation of liberty than it might be in an urban setting. Whetherthat is correct or not, it does not come anywhere close to the requirement for a "totalrestraint". Mr Tennet did not suggest any possible way in which the fifth cause ofaction could be repleaded to allege a total restraint. It is therefore struck out.[42] The sixteenth cause of action also alleges false imprisonment in relation to thesearch that occurred on 21 July 2015.[43] The sixteenth cause of action is said to be based on what is pleaded in [112] to[116] of the amended statement of claim. The only relevant pleading in that sectionappears to be what is set out at [114(d)] where it is alleged:Police remained on the property for a period of three or more hours anddetained the plaintiff for that period.[44] There are no particulars whatsoever provided as to how it was alleged that theplaintiff was "detained". It is at least possible that the plaintiff may be able to pleadthe particulars of a "total restraint" as required for the tort of false imprisonment to bemade out and the defendant will be given that opportunity. However in the absenceof such particularised pleadings this cause of action will be struck out too.Breach of s 22 NZBORA[45] The sixth cause of action is pleaded as an alternative to the fifth cause of action.It is alleged the plaintiff was arbitrarily detained. Confusingly, in [47] of the amended12 Siemer v Brown [2014] NZHC 3175 at [164] citing Blundell v Attorney-General [1968] NZLR341 (CA) at 357 per McCarthy J.statement of claim the words "unlawful imprisonment" rather than "arbitrarydetention" are used.[46] The applicant submitted that a breach of s 22 of the NZBORA requires that aperson be required to attend a particular place or remain in a particular place whennon-compliance is subject to a penalty, or words or conduct by Police that provides areasonable belief that the person is not free to leave.13[47] Given that this claim is pleaded as an alternative to the fifth cause of action,and that cause of action was based solely on an allegation of the Police car havingpulled in behind the applicant's vehicle, there is no possible way that the sixth causeof action can be amended to meet the test set out in R v M and it accordingly is struckout.[48] In relation to the fourteenth cause of action, arising from the December 2013search of the plaintiff's premises, there are no facts pleaded relating to any allegedarrest or detention. The plaintiff was merely present while the Police searched hishouse. Accordingly [110] of the amended statement of claim, which seeks $10,000compensation for "arresting and/or otherwise detaining" is manifestly incomplete as apleading. There is no factual basis on which to assert that the plaintiff had a reasonablyheld belief that he was not free to leave. The respondent is given leave to replead thiscause of action but in the absence of a particularised factual pleading setting out thebasis upon which it is asserted that the respondent reasonably believed he was not freeto leave, it will be struck out.[49] In relation to the seventeenth cause of action, this, like the sixteenth cause ofaction relies upon an alleged detention in [114(d)] unsupported by any factualpleading. The respondent is granted permission to replead cause of action 17alongside 16 if there is a factual basis on which to assert the respondent was detained.Otherwise this cause of action will be struck out.13 R v M [1995] 1 NZLR 242.Breach of statutory duty[50] Causes of action 7 and 22 allege breach of statutory duty.[51] The seventh cause of action refers to a written complaint of 20 November 2012which the respondent says the Police were required to notify to the Independent PoliceConduct Authority. It is asserted that the Police's failure to do so gives the plaintiff aright of action for breach of statutory duty.[52] In the twenty-second cause of action similar arguments are made in relation toanother complaint of the plaintiff dated 11 October 2015.[53] In order to establish the tort of breach of statutory duty the Court needs to beable to identify in the particular statute an intention to confer a private law right of thischaracter.14[54] As Mr Tennet acknowledged, it is difficult to identify any such intention in thepresent statute, particularly in light of the fact that the statute confers on individualswho are aggrieved by Police conduct the ability to complain directly to the Authority.15[55] I am unable to identify any statutory intention that a private right of breach ofstatutory duty is conferred on an individual in relation to a failure by Police to reporta complaint to the Independent Police Conduct Authority in a timely manner.Accordingly, causes of action 7 and 22 are struck out.Conclusion[56] The following causes of action are struck out: 5, 6, 7 and 22.[57] The respondent is entitled to replead causes of action 1, 12, 15, 16 and 17 in away that meets the legal requirements set out above.14 Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513, [2011] 2 NZLR 442at [186].15 Independent Police Conduct Authority Act 1988, s 12.[58] The fourteenth cause of action must be repleaded separating out the separatecauses of action in relation to ss 21 and 22 of the NZBORA.[59] In accordance with the directions in Mallon J in the Minute of 8 June 2016 theapplicant will have four weeks from the date of the filing of a second amendedstatement of claim within which to file a defence. Any application for security forcosts is to be made within the same time as is any further strike out application orapplication for further particulars.Costs[60] The applicant has been successful in the partial strike out application and isentitled to costs. I invite the applicant to submit a memorandum within 14 days withthe respondent having 14 days to respond.Churchman JSolicitors:John Miller LawCrown Law