SATHYAN v POLICE COMMISSIONER OF WELLINGTON [2015] NZHC 3138

SATHYAN v POLICE COMMISSIONER OF WELLINGTON [2015] NZHC 3138 [9 December 2015]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2015-485-571[2015] NZHC 3138BETWEEN DIVYA SATHYANPlaintiffAND POLICE COMMISSIONER OFWELLINGTONDefendantHearing: 27 October 2015Counsel: Plaintiff in personT P Westaway for DefendantJudgment: 9 December 2015RESERVED JUDGMENT OF CLARK JI direct that the delivery time of this judgment is2.30pm on the 9 day of December 2015Introduction[1] Ms Divya Sathyan, who is the plaintiff in this proceeding, says she is thesubject of cyber abuse. She reported the hacking of her telephone and email accountsto the New Zealand Police for investigation but they have not assisted her and havenot instigated any kind of investigation. The plaintiff has approached many otheragencies seeking assistance: NetSafe,1 the Privacy Commissioner, Office of theOmbudsman, the Human Rights Commission, and the Government CommunicationsSecurity Bureau. The plaintiff has also consulted a number of computer technicalexperts and has borrowed large sums of money to pay for these experts.[2] The plaintiff seeks an order of mandamus directing the Police Commissioner(the defendant) to perform his statutory duty. As well, the plaintiff seeks compensationfor business loss and other financial losses which, she claims, have been caused by thelack of investigation and non-performance of statutory duty.[3] The defendant has applied to strike out the statement of claim in its entirety onthe ground that it discloses no reasonably arguable cause of action. Alternatively, thedefendant seeks an order directing the plaintiff to file and serve a more explicitstatement of claim.[4] Consequently, the issue which I must decide is whether the statement of claimgives rise to an arguable case and if it does not whether the plaintiff should bepermitted to re-plead and amend her statement of claim.Strike-out principles[5] The principles which apply to a strike-out application are settled anduncontentious.2 They are summarised in the defendant's submissions:1 An independent non-profit organisation providing educational, incident response and advisoryservices to private and public internet users in New Zealand.2 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267; Couch v Attorney-General [2008]NZSC 45, [2008] 3 NZLR 725 at [33]. The same criteria apply to an application to strike out ajudicial review proceeding: Southern Ocean Trawlers Ltd v Director-General of Agriculture andFisheries [1993] 2 NZLR 53 (CA).(a) Pleaded facts, whether or not admitted, are assumed to be true. Thisdoes not extend to pleaded allegations which are entirely speculativeand without foundation.(b) The cause of action must be clearly untenable.(c) The jurisdiction is to be exercised sparingly and only in clear cases.(d) The jurisdiction is not excluded by the need to decide difficult questionsof law, requiring extensive argument.(e) The Court should be particularly slow to strike out a claim in anydeveloping area of law.[6] Accordingly, the facts upon which the plaintiff's claim is based must, for thepurposes of the strike-out argument, be accepted. The question is: even accepting thefactual underpinnings of the claim, do they disclose a reasonably arguable cause ofaction?The nature of the claim[7] The plaintiff is an unrepresented litigant who has done her best to formulateher case and the grounds for the relief she seeks in a statement of claim supported byan affidavit. Few of the exhibits were attached. But the plaintiff brought to the hearinga large bundle of original documents. I sighted several of the documents said to be atthe heart of the plaintiff's case and was able to satisfy myself that the failure to annexthem to the affidavit did not matter in terms of the question I have to decide.[8] The plaintiff pleads that the lack of investigation by the Police and their neglectof duty have caused her serious monetary and other loss. The neglect of duty is thefailure to conduct an investigation into the cyber abuse. The following monetaryclaims are made:(a) costs for periods of unemployment when the plaintiff had no means toovercome the cyber abuse without police investigation but the Policeneglected their duty to investigate;(b) compensation for the large sums of money that were borrowed in orderto consult a number of computer technical experts and for technicalservice charges due to the neglect of police duty;(c) compensation for the cost of having to buy a number of new devices toescape the cyber hacking because the police refused to examine theplaintiff's devices;(d) a claim for the debt owed to the state by having to rely on the welfaresystem because of the lack of investigation and lack of performance ofduty;(e) a claim for bank and personal loans made necessary to survive the cyberabuse;(f) compensation for "huge debts" owed to plaintiff's parents (who liveoverseas) resulting from the computer corruption by the cyber abuser;(g) compensation for business loss caused by the defendant's neglect ofduty;(h) compensation in the sum of $100,000 from the defendant for financialloss suffered.What are the functions and duties of the Police?[9] Section 9 of the Policing Act 2008 provides:Functions of PoliceThe functions of the Police include—(a) keeping the peace:(b) maintaining public safety:(c) law enforcement:(d) crime prevention:(e) community support and reassurance:(f) national security:(g) participation in policing activities outside New Zealand:(h) emergency management.[10] The function of law enforcement, explicit in s 9 of the Policing Act, has beenlong recognised by English common law as a clear legal duty owed by the Police tothe public.3[11] In R v Ngan the Supreme Court said that the common law duties attaching tomembers of the New Zealand Police:4 are public law duties. They are directed to the protection and welfare ofthe public at large. They should not be confused with a private law duty, suchas a duty of care, which may give rise to civil liability to an affected individual.[12] There is a wide discretion as to the manner in which the duty of lawenforcement owed to the public is discharged.5 Decisions about use of policeresources are for the Commissioner alone. The courts will not involve themselves inthe careful balancing exercise which the Commissioner must engage in when decidingthe use of limited resources.6The courts have long made it clear that, though they will readily review theway in which decisions are reached, they will respect the margin ofappreciation, or discretion, which a chief constable has. He knows, throughhis officers, the local situation, the availability of officers, his financialresources and the other demands on the police in the area at different times.[13] I turn to examine the plaintiff's claim in light of this powerful line of authority.3 R v Commissioner of Police of the Metropolis, ex parte Blackburn (No 1) [1968] 2 QB 118 at 136,137 and 148–149; Hill v Chief Constable of West Yorkshire [1989] AC 53 at 59.4 R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48 at [11].5 Hill v Chief Constable of West Yorkshire [1989] AC 53 at 59.6 R v Chief Constable of Sussex, ex parte International Trader's Ferry Ltd [1999] 1 All ER 129 at137.The statement of claim[14] The plaintiff filed detailed written submissions and argued her case withcourtesy and care. She advanced her application for an order of mandamus in relianceon many causes of action "pending and current". In the course of the hearing theplaintiff refined the nature of her claim to one of non-performance by the Police oftheir duty rather than a failure to investigate or a neglect of duty. The non-performanceis said to be of the duty to investigate: the Police had consistently refused to deal withthe plaintiff's many complaints made between 2010 and 2015.[15] One of the many authorities the plaintiff relied on was the English Court ofAppeal decision in R v Commissioner of Police of the Metropolis, ex parte Blackburn(No 1) (Blackburn).7 Several questions were raised by the appeal but of relevance toMiss Sathyan's case was the question whether mandamus would issue against theCommissioner of Police for failure to enforce the law.[16] The Metropolitan Police had been operating under a policy instruction to takeno proceedings against clubs for breach of the gaming laws. Mr Blackburn broughtproceedings to compel the police to enforce the law. Their Lordships held that theCommissioner of Police owed a duty to the public to enforce the law, a duty which theCommissioner could be compelled to perform.[17] The plaintiff submits, by analogy, that the defendant owes an enforceable dutyto enforce the law in New Zealand. Specifically, the plaintiff requires the Court tomandamus the defendant to investigate her claims of cyber abuse.[18] The plaintiff misconceives Blackburn. In that case the senior officers of theMetropolitan Police were operating under an order which effectively instructed themnot to enforce the law. Yet the chief function of the police is to enforce the law. TheCourt of Appeal had little doubt that, in the unlikely event of the police failing orrefusing to carry out their duty, "the court would not be powerless to intervene."87 R v Commissioner of Police of the Metropolis, ex parte Blackburn (No 1) [1968] 2 QB 118.8 At 139A. It was not necessary for the Court to intervene because an undertaking was given thatthe policy instruction would be officially revoked: at 138A–B.[19] The principle from Blackburn cannot be invoked by the plaintiff to compel thepolice to investigate particular complaints by members of the public. The pleadedfailure of the defendant to investigate a particular complaint, or series of complaintsby the plaintiff, is not a refusal or failure to carry out their duty. Rather, it is for thedefendant in any particular case to decide whether inquiries should be pursued:9It must be for [the Commissioner or chief constable] to decide on thedisposition of his force and the concentration of his resources on any particularcrime or area. No court can or should give him direction on such a matter.[20] In a proceeding similar to the present Chambers J applied Blackburn in strikingout the case before him. The plaintiffs were beset with the activities of young peopleassembling, drinking, urinating, tagging property and speeding in fast and noisy carsin the area outside a motel belonging to one of the plaintiffs. The police had donenothing, it was said, and proceedings were brought in an attempt to force the police totake actions against the young people causing a persistent nuisance.[21] Chambers J considered the case showed clearly "that resource issues and howpolice are deployed are for the Commissioner or his local commanders, not theCourts".10[22] In Evers the plaintiffs argued that their public law claim against the policeconstituted an exception to the principle of Blackburn. The Judge pronounced thiscause of action doomed to failure and struck it out. He demonstrated thenon-justiciability of the plaintiffs' claim by reference to the relief sought.11[23] Similarly the non-justiciability of the plaintiff's claim in this case isdemonstrated by the relief she seeks:(a) an order directing the New Zealand Police to investigate her privacyinterference case;(b) a writ of mandamus directing the Serious Fraud Office to investigate9 At 136D–E.10 Evers v Attorney-General [2000] NZAR 372 at [14].11 At [15].the corruption of officials involved with the plaintiff's case. (TheSerious Fraud Office is not a party to the proceeding.);(c) a direction to the Serious Fraud Office to conduct an investigation intoa third party's interference with several government agencies' computersystems;(d) compensation costs of $100,000 from the defendant for the financialloss suffered by the plaintiff.[24] Although pleaded (in part) and argued as a claim for failure of duty the essenceof the plaintiff's complaint is that the police have not responded to her requests for aninvestigation. The plaintiff's broad claim is of "non-performance". She has identifiedno particular respect in which the defendant has abdicated his public law duty toenforce the law. A mere non-investigation of a complaint, or series of complaints froma member of the public, does not of itself amount to a refusal or failure by theCommissioner to carry out his public law duty to enforce the law.[25] Nor has the plaintiff impugned on public law grounds any particular decisionof the police in their dealings with her. She instances no "policy" instruction not toinvestigate her complaints nor any particular neglect or lack of conscientiousness intheir transactions with her.[26] The core of the plaintiff's challenge is to the area of wide discretion which thedefendant has in the allocation and use of limited resources. Those issues are for theCommissioner, not the courts. The court cannot direct the Commissioner as to thedisposition of his resources.[27] Although the front page of the statement of claim bears the description"judicial review" portions of the notice of opposition to the strike out applicationsuggest private law claims. For example, the plaintiff equates the failure of thedefendant to perform his legal duty with "breach of statutory duty or negligence ormisfeasance".12 As well there are the compensatory loss claims and, in the notice of12 Notice of Opposition 7 September 2015, para 12.opposition to the strike out application, contentions that the abuser is defraudingdifferent government agencies as well as paying money to police officials for notinvestigating the alleged cyber abuse. Running consistently through the detailedaccounts of corruption and fraud, including on the part of named third parties, is theremedy of mandamus. It is the remedy of mandamus by which the plaintiff seeks toescape, she says, from the huge financial burden of debt which she suffers as a resultof the alleged cyber abuse. The prospect of the remedy of mandamus is the plaintiff'smain reason for bringing the proceeding. She seeks a remedy akin to specificperformance to compel the police to perform the public duty she says they havewrongly failed to carry out.[28] No matter how the plaintiff approaches her objective the legal position hardlycould be clearer. It is for the Commissioner to decide whether inquiries should bepursued and the court may not direct him in such a matter.13[29] The plaintiff's cause of action is not arguable and must be struck out.[30] I have considered whether a more explicit statement of claim might unmask atenable cause of action. But the substantive hurdle the plaintiff faces is not created bythe form of her pleadings. No matter how cast no action lies for the non-performanceof duty which the plaintiff alleges and relies on for the public and private law remediesshe seeks (mandamus and compensation).[31] In the hearing the plaintiff submitted that her only hope for a remedy now laywith the courts. I explored with her the many agencies she seems to have approached.They include the Independent Police Conduct Authority. Even if the plaintiff hasexhausted the options available to her (and I do not say this is the case) it is clear thatthe statement of claim discloses no arguable cause of action and must be struck out inits entirety.13 R v Commissioner of Police of the Metropolis, ex parte Blackburn (No 1) [1968] 2 QB 118 at 136,applied in Evers v Attorney-General [2000] NZAR 372 at [7].Costs[32] The defendant is entitled to costs. The written submissions of counsel for theCommissioner sought costs on a 2B basis. I asked Mr Westaway during the hearingwhether costs would continue to be sought in the event the strike out application wassuccessful. He confirmed that to be the case.[33] The plaintiff is impecunious. Whatever the facts of the alleged cyber abuseshe is no longer working and is in debt. The document she filed opposing theapplication to strike-out her claim attaches a letter from Work and Income detailingthe plaintiff's weekly benefit. From 29 September 2015, the date of that letter, theplaintiff's total weekly payment is $266.67. This benefit is her only source of income.[34] Although the defendant sought 2B costs I am satisfied that the complexity andsignificance of the proceeding is recognised appropriately by a costs award on a 1Bbasis.Conclusion[35] The statement of claim is struck out in its entirety. Costs are awarded to thedefendant on a 1B basis._____________________________Karen Clark JSolicitors:Crown Law, Wellington, for Defendant