GOLLAN V THE ATTORNEY-GENERAL ON BEHALF OF NEW ZEALAND POLICE HC HAM CIV-2009-419-000943

GOLLAN V THE ATTORNEY-GENERAL ON BEHALF OF NEW ZEALAND POLICE HC HAM CIV-2009- 419-000943 21 April 2010IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV-2009-419-000943UNDER The Bill of Rights Act 1990 and Misfeasance in Public Office BETWEEN JAMES PATRICK GOLLAN Plaintiff AND THE ATTORNEY-GENERAL ON BEHALF OF NEW ZEALAND POLICE Defendant Hearing: 20 April 2010 Counsel: AM Powell for defendant Appearance: JP Gollan, plaintiff, in person Judgment: 21 April 2010 at 4:00pm21 April 2010 at 4:00pmRESERVED JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application to strike out]Solicitors: Crown Law Office, PO Box 2858, Wellington for defendant And To: JP Gollan, 30 Brookfield Street, Hamilton, plaintiffThe application[1] The defendant applies to strike out the first cause of action in the plaintiff's amended statement of claim dated 8 October 2009. [2] Mr Powell, in his submissions, confirmed that the order sought was an order that the first cause of action be struck out and that the order be implemented by striking out paragraphs 27, 28, 29 and 30 and the prayer for relief in the amended statement of claim.Applicable principles[3] The court's approach to a strike out application was summarised in Attorney- General v Prince and Gardner1 as follows:A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot possibly succeed. (R Lucas & Son (Nelson Mail) Ltd v O'Brien[1978] 2 NZLR 289 at pp 294-295; Takaro Properties Ltd (in receivership) v Rowling [1978] 2 NZLR 314 at pp 316-317); the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material (Gartside v Sheffield, Young & Ellis [1983] NZLR 37 at p 45; Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641); but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction (Gartside v Sheffield, Young & Ellis).[4] The principles referred to above were endorsed in Couch v Attorney- General.2[5] The court can have regard to evidence either put forward in opposition or support of the application provided it does not contradict that which is pleaded in the statement of claim: Attorney-General v McVeagh.3 Although r 15.1 permits a1 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 at 267, CA.2 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725.3 Attorney-General v McVeagh [1995] 1 NZLR 558 at 566, CA.striking out of part of a pleading the court discourages partial strike out applications:Apple Fields Ltd v New Zealand Apple and Pear Marketing Board4 and Whitman v Airways Corporation of New Zealand Ltd.5[6] A partial strike out of a pleading may be justified where the portions to be struck out support a cause of action which relies on different facts to the remaining causes of action in the claim. That is because both the preparation for trial and the time of the trial itself may be substantially reduced thus justifying the benefit of the interlocutory examination.Background[7] The plaintiff's amended statement of claim pleads five causes of action against the Attorney-General. They are pleaded in respect of actions of one or more police officers in the Waikato District between June 2002 and December 2003. At that time, the plaintiff and those associated with him had been involved in commercial disputes with others in which the police had either intervened or chosen not to intervene. [8] The amended statement of claim relies on five discrete incidents. The plaintiff alleges that there is a common theme running through them of malice or ill- will of certain constables in Hamilton towards himself and his family. [9] The first incident arises out of the purchase of a house removal business from a company called Johnson House Removers Ltd in Hamilton. The plaintiff asserts, and it is confirmed by his affidavit, that a company was formed to complete this purchase, namely Cathay Environmental Services Co Ltd. Possession was given and taken in advance of the full purchase price being paid. A dispute arose between the vendor and purchaser. An attempt to retake possession of the assets of the business and occupation of the business premises was undertaken. That occurred on 25 September 2002. The plaintiff says that he sought police assistance. He says4 Apple Fields Ltd v New Zealand Apple and Pear Marketing Board High Court Wellington CP35/94 21 April 1994.5 Whitman v Airways Corporation of New Zealand Ltd (1994) 8 PRNZ 155 at 158.they refused to help and, indeed, threatened to arrest both him and his wife. It was common ground that the company with which the plaintiff was associated was restored to possession as a result of an application to the High Court for an interim injunction. [10] The incident on 25 September 2002 forms the basis for the cause of action which is under review in this strike out application. [11] I mention briefly the incidents which relate to the remaining causes of action simply to give a background perspective. The second cause of action arises out of an incident which is pleaded to have occurred on 23 May 2003 at the plaintiff's home in Brookfield Street, Hamilton. The third cause of action is pleaded as relating to an incident which occurred in July 2003 when the plaintiff claims his household goods were stolen from the place where they were stored. The fourth cause of action arises from an incident in June 2003 when the plaintiff says that a truck that he owned was wrongfully taken from him. The fifth cause of action arises from an incident which occurred in December 2003 when the plaintiff advised officers in charge of the Hamilton Police Station that he was going to make a citizen's arrest. [12] The above summary discloses the separate and distinct nature of the allegations which make up the first cause of action and why there is justification, in this case, to deal with it by way of a strike out application. The allegation includes a claim that the police were instrumental in the failure of the company associated with the plaintiff by their actions on 25 September 2002. That would involve an examination of circumstances in which the company reached that position. It would necessarily involve the giving of significant expert accounting evidence. For that reason there is justification, in my view, in considering the strike out of that cause of action. The examination of the first cause of action will involve a significant undertaking both in the preparation for trial and in the trial time involved.The first cause of action[13] The amended statement of claim identifies as the foundation for the first cause of action an alleged breach of the New Zealand Bill of Rights Act 1990, s 21. It is pleaded in paragraph 27 of the amended statement of claim as follows:27. The initial actions of the police in entering an illegal occupation of the premises by the Johnson interests to the exclusion of the Plaintiff was an illegal search or seizure in accordance with section 21 of the Bill of Rights Act 1990.[14] Mr Powell treated the pleading as an allegation that the actions of the police already referred to, constituted an illegal search or seizure. [15] Mr Powell, in his carefully prepared submissions, observed that in order to sustain a cause of action based on the New Zealand Bill of Rights Act 1990, the plaintiff must prove that there has been an infringement of one or more of his rights that are guaranteed by the Act. If that can be shown it is then a matter for the court's discretion as to whether it is necessary to order the payment of compensation to vindicate the breach. The question of compensation, however, is not the issue that I am required to determine on this strike out application. What is required, for the purpose of the strike out application, is a consideration of whether or not the facts which are pleaded in the first cause of action disclose that there is a right that was engaged or was breached. [16] Mr Powell further observed that the only factual assertions that are relevant is the plaintiff's pleaded claim that he went to business premises and confronted the personnel of Johnson House Removal Ltd. That company, the plaintiff pleads, was taking possession of property, in the plaintiff's view, unlawfully. The statement of claim does not suggest that there is any investigatory function being undertaken. Nor does the statement of claim suggest that the police officer seized any property. [17] Mr Powell submitted that there are three reasons why the first cause of action cannot succeed.[18] First, he submitted that there was no action pleaded by a person whose actions are covered by the New Zealand Bill of Rights Act 1990, s 3. In short, there was no person or body who was undertaking a public function, power or duty. That is because Johnson House Removal Ltd was not covered by the New Zealand Bill of Rights Act 1990, s 3. Any seizure of property was the act of Johnson House Removal Ltd. [19] Second, he submitted that the New Zealand Bill of Rights Act 1990, s 21 protects reasonable expectations of privacy and not property rights. In making that submission he relied on Westco Lagan Ltd v Attorney-General6, PF Sugrue Ltd v Attorney-General7 and R v Williams8.[20] Mr Powell noted that the amended statement of claim does not disclose any facts that would suggest that there is any breach of the plaintiff's privacy. On that basis, alone, the cause of action would not be justified. [21] Third, Mr Powell submitted that the wrong plaintiff was before the court in any event. He submitted that if any rights were infringed by the actions of Johnson House Removal Ltd or the constables, they were the rights of the company with which Mr Gollan was associated, Cathay Environmental Services Ltd. That is because that was the company that was entitled to possession of the subject property involved in the incident on 25 September 2002. That submission is justified when one regards R v Williams.9[22] I have briefly summarised the position advanced by Mr Powell. In the course of his submissions in opposition Mr Gollan properly, in my view, recognised the problem that exists for him and which was raised by the three reasons advanced by Mr Powell in support of the strike out application. He recognised that that would inevitably lead to an order striking out paragraphs 27, 28, 29, 30 and the prayer for relief in the amended statement of claim. He advised me that he was content, after hearing counsel's submission, that I strike out the paragraphs mentioned. The6 Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40 (HC).7 PF Sugrue Ltd v Attorney-General [2006] 3 NZLR 464.8 R v Williams [2007] 3 NZLR 207 at 227.9 Ibid at 247.position he adopted, in my view, is the correct one having regard to the submissions advanced by Mr Powell, which I find compelling. [23] Accordingly, I will make orders at the conclusion of this judgment striking out the relevant paragraphs of the statement of claim and prayer for relief.The future of the proceeding[24] The hearing served a further purpose in that it enabled me to discuss with counsel and Mr Gollan the way forward for this proceeding. [25] In my minute of 22 October 2009 recording matters discussed at the second case management conference I noted the need to establish: a) the precise issues requiring resolution at trial; b) whether any interlocutory order or direction was required; c) whether settlement should be factored in by way of a mediation or a Judicial settlement conference; and d) appropriate trial directions. [26] Provided that the definition of issues gives particulars of the names of the police officers that Mr Gollan alleges are involved in his claim that there was malice towards himself are identified, Mr Powell advised that there was unlikely to be any further interlocutory order or direction required. [27] It should be possible shortly to establish the issues requiring resolution at trial, fix a time for a settlement conference and establish appropriate trial directions. These matters are the reasons for the directions that I make at the conclusion of this judgment and are the reasons for the calling of a case management conference.[28] The opportunity was also taken to cover the question of costs. Although this was an opposed application, Mr Powell invited me to reserve costs on the application at least pending the completion of discussions at a Judicial settlement conference. The defendant has, of course, been successful in the strike out application. Normally an order for costs would be made at this time. I take account of Mr Powell's submission on this point and that is the reason why costs are reserved.Orders[29] I order as follows: a) The first cause of action in the amended statement of claim is struck out. This order shall be implemented by the striking out of paragraphs 27, 28, 29, 30 and the prayer for relief in the amended statement of claim; b) A telephone case management conference with counsel for the defendant and the plaintiff, Mr Gollan, shall be held at 4pm on 17 May 2010. The following matters will be addressed: i) The pleadings; ii) The issues requiring resolution at trial; iii) The forum to discuss settlement and directions relating to same; iv) trial duration, the fixing of a trial date and the making of any special trial directions that are required. To give further guidance to Mr Gollan and counsel I indicate that in relation to the issues requiring resolution at trial, I am ordering the sequential filing of memoranda so that an opportunity is given to Mr Powell to comment on Mr Gollan's summary of those trial issues.In addition, the memoranda should give an indication of the number of witnesses to be called at trial so that the court has a clear indication of the basis for any trial time estimate that is provided. So that these matters are taken into account the plaintiff's memorandum for the case management conference dealing with the above matters shall be filed and served by 6 May 2010 and the defendant's memorandum dealing with the above matters and specifically commenting on the plaintiff's summary of issues requiring resolution at trial shall be filed and served by 13 May 2010; c) Costs in relation to this application are reserved. _____________________ JA Faire Associate Judge