GREG BRIAN DUNNILL V THE ATTORNEY GENERAL OF NEW ZEALAND HC CHCH CIV-2003-409-65

GREG BRIAN DUNNILL V THE ATTORNEY GENERAL OF NEW ZEALAND HC CHCH CIV-2003-409- 65 13 September 2005IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV-2003-409-65BETWEEN GREG BRIAN DUNNILL Plaintiff AND THE ATTORNEY GENERAL OF NEW ZEALAND Defendant Hearing: 12 September 2005 Appearances: No Appearance for Plaintiff Ms Toohey for Defendant Judgment: 13 September 2005JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN[1] This matter was called before me yesterday. Ms Toohey appeared on instructions and provided a copy of the defendant's submissions and affidavits in support of the strike out application. There was no appearance by, or for, the plaintiff. I informed Ms Toohey I would deliver my decision as soon as I had an opportunity to read the papers. [2] The plaintiff's claim was filed on 3 February 2003. It refers to events that occurred when the plaintiff was an inmate of Paparoa Prison in December 1999. He claims he was improperly the subject of a body search. He alleges the defendant was liable in negligence for establishing the Emergency Response Unit and for allowing it to conduct the body search in the way he says they did. He further claims that such searches were unreasonable and amounted to a deprivation of liberty contrary to sections 21 and 23(5) of the New Zealand Bill of Rights Act 1990.[3] The history of this proceeding demonstrates that from the beginning plaintiff's counsel has had difficulty obtaining instructions from his client. In June 2003 counsel sought leave to withdraw and this leave was granted in July 2003. [4] From November 2003 until April 2005 the proceeding was adjourned on a number of occasions pending the outcome of an inquiry by the State Services Commission into the operation of the Canterbury Emergency Response Unit. An attempt meanwhile by defendant's counsel to contact the plaintiff by letter to advise of a forthcoming teleconference failed when the letter was returned marked "return to sender – wrong address". [5] In January 2005 the District Court's decision in O'Dowd v The Attorney General was delivered. That claim also arose out of events that occurred in Paparoa Prison in December 1999. In the outcome allegations of negligence and breaches of the Bill of Rights Act were rejected. Apparently there is no outstanding appeal of that judgment. [6] The defendant's strike out application has been served upon the plaintiff, who although he stated he would be contacting his lawyer regarding it has taken no steps in opposition. [7] The defendant's strike out application seeks dismissal of the plaintiff's claim for want of prosecution. [8] I am satisfied that the plaintiff has been guilty of "inordinate delay, that such delay is inexcusable, and that it has seriously the prejudiced the defendant". (Lovie v Medical Assurance Society of New Zealand Limited [1992] 2 NZLR 244,248). [9] No excuse has been offered for the delay, which includes a period of more than three years before the proceeding was filed and now accounts for an additional two and a half years since that time. In fact, since filing the claim the plaintiff has taken no steps at all to progress it. His counsel withdrew within a few months of the proceeding being filed. He has been unrepresented since and taken no steps at all upon the defendant's application which has been served upon him.[10] If the matter proceeded to trial, the outcome would depend to an important extent on oral evidence based upon recollection. Even if the matter was ready for trial a fixture date could not be arranged within the next 6 months. In the outcome, more than six years will have passed since the events complained of. In my judgment there is an inherent risk of prejudice caused to the defendant in the result. The defendant is entitled to have the proceeding brought to an end. [11] There is an order striking out the plaintiff's claim. [12] In the circumstances there will be no order as to costs. _________________________________ Solicitors No appearance for Plaintiff Crown Law, Christchurch for Defendant