NAME SUPPRESSED V THE ATTORNEY-GENERAL ON BEHALF OF HER MAJESTY THE QUEEN IN RESPECT OF THE COMMISSIONER OF POLICE HC WN CIV-1996-485-007

NAME SUPPRESSED V THE ATTORNEY-GENERAL ON BEHALF OF HER MAJESTY THE QUEEN IN RESPECT OF THE COMMISSIONER OF POLICE HC WN CIV-1996-485-007 31 March 2006IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-1996-485-007BETWEEN NAME SUPPRESSED Plaintiff AND THE ATTORNEY-GENERAL ON BEHALF OF HER MAJESTY THE QUEEN IN RESPECT OF THE COMMISSIONER OF POLICE Defendant Hearing: 15 February 2006 Appearances: R. Laurenson and P. Cullen for Plaintiff K.P. McDonald QC and P.J.Gunn for Defendant Judgment: 31 March 2006 In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 11.00am on the 31st day of March 2006.JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL Introduction[1] The defendant applies under Rule 478 of the High Court Rules to dismiss the plaintiff's proceeding for want of prosecution. The defendant also applies to strike out the plaintiff's pleading under Rule 186 on the basis that the claim is statute- barred by virtue of section 4(7) of the Limitations Act 1950 and otherwise discloses no reasonable cause of action. The plaintiff opposes the applications.Background Facts[2] The plaintiff was a member of the New Zealand Police force between 1979 and 1991. Whilst a member of the Police, the plaintiff served as an undercover agent for the period 5 April 1983 to 13 June 1984. [3] This proceeding is one of around 30 related proceedings brought by former undercover Police agents against the Crown. There are only two remaining proceedings that have not been resolved. The plaintiff's present claim is one of them. [4] The plaintiff's claim here relates initially to complaints over his deployment as an undercover officer in 1983/1984. It also traverses allegations of a failure on the part of the defendant to rehabilitate the plaintiff in a proper manner after the termination of this undercover assignment which led ultimately to the plaintiff's disengagement from the Police in September 1990. [5] In his Statement of Claim the plaintiff alleges against the defendant breach of contract, and in the alternative tort and breach of fiduciary duty, and further alleges wrongful dismissal and repudiation of contract. [6] The plaintiff contends that he developed post-traumatic stress disorder ('PTSD") and became dependent on the consumption of cannabis and alcohol as a result of both his deployment as an undercover officer, and also what he says were the resultant failures on the part of the defendant to meet its obligations to the plaintiff. [7] The plaintiff was indeed diagnosed with post-traumatic stress disorder by a Dr E.J. Hill on 16 August 1990. He disengaged from the Police on medical grounds on 1 September 1990. [8] The present proceeding was commenced on 29 August 1996. Further amended Statements of Claim were filed on 14 May 1999, on 20 December 1999, on 10 March 2000, and on 24 September 2002.[9] In 2001 the defendant applied to the High Court to have a compensatory damages element which was then included in the plaintiff's claim and in five other related claims by undercover Police officers struck out. Although not completely successful in the High Court, on appeal the Court of Appeal struck out all of the plaintiff's claims for compensatory damages on the basis that they were statute- barred in terms of the Accident Rehabilitation and Compensation Insurance Act 1992 (AG v B [2002] NZAR 809). [10] The plaintiff's fourth Amended Statement of Claim filed on 24 September 2002 resulted. This eliminated the claim for compensatory damages. The remaining claim, which stands at present, seeks exemplary damages of $220,000.00. [11] This proceeding is now almost ten years old. Little appears to have happened in this proceeding since 2002. It does seem, however, that since at least that time the plaintiff has been quite unwell and has spent some time in hospital. This is acknowledged by the defendant. [12] In the application before me, the defendant has applied under Rule 478 for the plaintiff's claim to be dismissed for want of prosecution on the basis that little has been done since the fourth Amended Statement of Claim was filed on 24 September 2002. [13] The defendant has also sought an order under Rule 186 striking out the plaintiff's Statement of Claim on the basis that it is time-barred in terms of the Limitation Act 1950, and in the alternative that the Statement of Claim discloses no reasonable cause of action. [14] I now turn to consider separately each of these two grounds for this application.Dismissal for Want of Prosecution[15] Rule 478 provides:Where the plaintiff fails to prosecute his proceeding or any part thereof, or the defendant fails to prosecute his counterclaim or any part thereof, to trial and judgment, any opposite party may apply to have the proceeding or counterclaim, or such part thereof as aforesaid, dismissed, and the Court may, on such application, make such order as may be just.[16] The principles governing an application to dismiss under Rule 478 are set out in Lovie v Medical Assurance Society New Zealand Ltd [1992] 2 NZLR 244 at 248 and Commerce Commission v Giltrap City Ltd (1997) 11 PRNZ 573. The defendant must show: (a) That the plaintiff has been guilty of inordinate delay; (b) That such delay is inexcusable; (c) That the delay has seriously prejudiced the defendant; (d) It is not in the overall interests of justice to allow the case to proceed. [17] Whether an inordinate delay has occurred will depend on the facts of each case. While it is undesirable and impossible to lay down a "tariff", inordinate delay is a period of time which has elapsed which is materially longer than the time which is usually regarded by the Courts and the profession as an acceptable period of time:Tabata v Hetherington [1983] TLR 764. It is the cumulative effect of the delay that must be considered. Until a credible excuse is made out, the natural inference is that the delay is inexcusable: Allen v Sir Alfred McAlpine and Sons Ltd [1968] 2 QB 229, cited with approval in New Zealand Industrial Gases Ltd v Andersons Ltd [1970] NZLR 58. [18] Serious prejudice to a defendant has been regarded as perhaps the most important factor – McGechan para HR478.04. It can arise from the mere passage of time, dimming of memories, physical changes or the like. As McGechan notes (para HR478.04), situations can arise which are so badly affected by mere passage of time that an order can be made on that basis alone, but in "most cases" Courts look forsome "special prejudice" – NZ Industrial Gases Ltd v Andersons Ltd and Commerce Commission v Giltrap City Ltd (1997) 11 PRNZ 573. [19] It is ten years since this proceeding was first brought and over three years has passed since the filing of the fourth amended statement of claim. The defendant submits that under the circumstances here, this amounts to an inordinate delay. [20] The defendant points to the fact that the plaintiff has failed to provide any excuse for the delays that have occurred and argues that this demonstrates the plaintiff's acceptance that his claim is without merit. The defendant says the natural conclusion of this must be that the plaintiff has elected not to continue with his claim. [21] Finally, the defendant submits that it is seriously prejudiced by the prospect of proceedings hanging over its head indefinitely, especially in light of the fact that it has resolved all but two of the original undercover Police proceedings out of court. Additionally, the plaintiff has not named individual agents of the defendant allegedly responsible for conduct meriting an award of exemplary damages. As a consequence, it is not clear which witnesses the defendant will require, or even if such witnesses are available. [22] While I am prepared to acknowledge that the defendant suffers some prejudice from the delay in these proceedings, particularly with regard to the availability of witnesses, I am not convinced that the delay in this case is inordinate or inexcusable when viewed in the overall context of the proceedings. The defendant in its application endeavours to paint a picture of inaction and disinterest on the part of the plaintiff. This is misleading. [23] As I have noted, the current proceeding is one of approximately 30 similar claims brought by former undercover police officers against the Crown. Over the years, all but two of those claims have been resolved, through a process of litigation, negotiation and judicial settlement conferences. A major judicial settlement conference of the undercover Police claims took place in October 2002. Whilst the plaintiff here through ill health did not attend that judicial settlement conference, Iam satisfied his claim fell under the general umbrella of it. The last judicial settlement conference involving similar claims, and in part requested by the defendant, took place relatively recently. Again, I am satisfied that outcomes at that settlement conference were relevant to the plaintiff's claim here. [24] In my view, the lengthy duration of these proceedings cannot be viewed solely as the plaintiff's fault. Nor can it be said that the plaintiff's inaction amounts to acknowledgement of the unmeritorious nature of his claim. The undercover Police litigation generally has inevitably been of long duration due to the relatively large number of plaintiffs, the ongoing settlement conference and negotiation process, and the complexity of the issues involved. Over several years there was gradual progress towards the resolution of the whole range of undercover Police claims in which, on most occasions, both sides have participated. It is therefore inappropriate for the defendant to now cast responsibility for the duration of these proceedings on the plaintiff. Nor am I satisfied that any delay which has occurred has seriously prejudiced the defendant. [25] The defendant's application based upon R.478 therefore fails.Application to Strike Out[26] The defendant also applies to strike out the pleading under Rule 186, which provides:Without prejudice to the inherent jurisdiction of the Court in that regard, where a pleading— (a) Discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; or (b) Is likely to cause prejudice, embarrassment, or delay in the proceeding; or (c) Is otherwise an abuse of the process of the Court,— the Court may at any stage of the proceeding, on such terms as it thinks fit, order that the whole or any part of the pleading be struck out.[27] The defendant advances two grounds in support of this strike out application. First, it argues that, as the statement of claim alleges bodily injury, section 4(7) ofthe Limitation Act 1950 applies and the plaintiff may only bring a claim as of right within two years of the accrual of the cause of action. Where the proceeding is brought after two years but within six years, the plaintiff may bring the proceeding with the leave of the Court. Upon the expiry of six years after the accrual of the cause of action, the claim is absolutely barred. [28] The plaintiff first sought leave in an amended statement of claim filed on 14 May 1999. The defendant submits that leave was not sought in the proper form, relying on Sinclair v The Residual Health Management Unit HC CH CP180/96 18 October 1999. The defendant further submits that an application for leave under section 4(7) must be made within six years of the accrual of the cause of action. It is not enough that the proceedings were issued within that period: A v D 10 PRNZ 68. Considering that mention of leave was first made on 14 May 1999, this would require the cause of action to have accrued no earlier than 14 May 1993. The plaintiff disengaged from the police in September 1990 and applied for ACC benefits and compensation by 1992, alleging stress and addictions arising from his undercover work. Therefore, the defendant argues that the cause of action must have accrued by this date, and certainly no later. Upon that basis, the defendant submits that there is no answer to their limitations defence and therefore the pleading must be struck out. [29] The second ground advanced by the defendant in support of this strike out application is a submission that the pleading discloses no reasonable cause of action. The defendant contends that the claims for wrongful dismissal and repudiation of contract are misconceived. The employment contract ended due to voluntary disengagement and therefore no issue of dismissal arises. Additionally, the claims allege vicarious liability of the Crown and it is not clear that the Crown can be held vicariously liable for exemplary damages. Finally, the defendant says the plaintiff has failed to identify any particular officer whose conduct is said to meet the threshold required for exemplary damages. Accordingly, the defendant submits the claim for exemplary damages faces "severe hurdles" and must be struck out. [30] A strike out application must proceed on the assumption that the facts pleaded in the statement of claim are true and the Court must be satisfied that thecauses of action are so untenable that they could not succeed – Attorney-General v Prince and Gardner [1998] 1 NZLR 262. [31] McGechan on Procedure at para HR186.02 notes in part:The (strike out) jurisdiction is 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 p45, Electricity Corp Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641.Limitation Act 1950[32] I turn first to consider the limitation point. The defendant must establish that leave is required under section 4(7). Accordingly, it must establish that the damage alleged by the plaintiff is in respect of bodily injury. If it is at least arguable that the claims are not in respect of bodily injury then the application may fail. The plaintiff's fourth amended statement of claim alleges the following forms of damage flowing from the first cause of action for breach of contract:8. BY reason of one or more or all of the breaches set out in the preceding paragraph, the Plaintiff has suffered the following loss and damage 8.1 he (a) developed a psychological disorder being a stress related disorder which was subsequently diagnosed as or akin to post traumatic stress disorder, and (b) developed a dependency on the consumption of cannabis (c) developed a dependency on the consumption of alcohol with the result that he suffered from and now suffers from physical, physiological, psychological and mental damage 8.2 the loss of salary and other remuneration as a salaried member of the Police 8.3 the loss of superannuation benefits and entitlements as a member of the Police 8.4 the loss to the plaintiff of his career in the Police 8.5 the loss to the plaintiff of his reputation and/or his ability or attractiveness to be employed 8.6 the decomposition of his private and personal life and the loss of the enjoyment of it 8.7 the loss of his dignity and pride, and feelings of humiliation and anger and of desolation, and of failure and loss of purpose and motivation and other emotional damage.[33] The damages alleged in respect of the first cause of action are repeated in respect of the second and third causes of action – tort and breach of fiduciary duty. In respect of the fourth and fifth causes of action, those alleging wrongful dismissal and contractual repudiation, the plaintiff repeats solely the allegations of damage in paragraphs 8.2 – 8.7. [34] The meaning of "bodily injury" was considered in detail in Owen v Residual Health Management Unit [2000] 3 NZLR 475. There the Court of Appeal, adoptingR v Chan-Fook [1994] 2 All ER 552, determined that bodily injury includes recognisable psychiatric disorders or illnesses but does not include mere emotions or states of mind not of themselves evidence of some identifiable clinical condition. InMaxwell v North Canterbury Hospital Board [1977] 2 NZLR 118 Roper J held that, for the purposes of section 4(7), there is no distinction between a claim based in tort and one based in contract. [35] The first to third causes of action allege breaches of contractual, tortious and fiduciary duties resulting in the forms of damage outlined in paragraphs 8.1 – 8.7 of the statement of claim (as repeated in later paragraphs with regard to the other causes of action). The implication from the statement of claim seems to be that the breaches complained of directly caused the physical, physiological, psychological and mental damage outlined in paragraph 8.1, and that this damage in turn led to the disengagement of the plaintiff from the police, with the resulting damage outlined in paragraphs 8.2 – 8.7. Accordingly, considering the authorities outlined above, I am satisfied that the first to third causes of action, and all the damages alleged to have resulted from these are in respect of bodily injury, and therefore section 4(7) applies to them.[36] The situation is more complicated, however, in the case of the fourth and fifth causes of action. Those causes of action suggest that the defendant wrongfully dismissed the plaintiff or repudiated his contract. The resulting damage is only that outlined in paragraphs 8.2 – 8.7, which on the face of it is not in respect of bodily injury. However, bodily injury may still be seen as relevant as part of the underlying factual matrix: the reason the Police dismissed the plaintiff is that the bodily injury he had suffered rendered him unfit for duty. It could be argued for the plaintiff that the fourth and fifth causes of action are not in respect of bodily injury because the bodily injury is not an essential element of the causes of action. The claims are for wrongful dismissal, the elements of which are a dismissal which is unlawful or unjustified. The injuries are only relevant insofar as they provide a background to the cause of action. [37] In my view, it is at least arguable that the fourth and fifth causes of action are not in respect of bodily injury. Consequently, even were I to hold that the application of section 4(7) required all claims caught by this subsection to be struck out, I would not strike out the fourth and fifth causes of action, on the basis that the plaintiff would then have the opportunity to establish at trial that they are not in respect of bodily injury. [38] The following discussion in relation to the application of section 4(7) is consequently limited to the first to third causes of action. I will return to consider the fourth and fifth causes of action in relation to the alternative ground advanced by the defendant in support of this application. [39] The defendant contends that, as the plaintiff has failed to apply in time for leave under section 4(7) the causes of action are statute-barred and should be struck out. It relies on A v D in support of this contention. I will first outline the general approach where a limitation defence based on section 4(7) is raised in a pre-trial application and then turn to consider the specific ground put forward here: the timeliness of the application for leave. [40] The general approach to limitation defences based on section 4(7) was outlined in W v Attorney-General [1999] 2 NZLR 709. In that case the Court ofAppeal held that the fact that the defendant is entitled to raise the Limitation Act as a positive defence at trial makes it inappropriate to seek to determine the matter by way of a pre-trial application. Limitation issues require the Court to determine when the cause of action accrued, which in turn often depends on complex evidential questions of discoverability or disability. Consequently, such issues should be determined in the context of a full trial. Where leave is required and the affidavit evidence indicates a prima facie case, the better course is to grant leave without prejudice to the defendant's right to pursue the positive defence at trial. When an application for leave is heard, the Court must consider whether to exercise its discretion to grant leave (as to the criteria, see the Limitation of Civil Proceedings title, Laws of New Zealand at paragraph 310), but must not decline leave on the basis that the limitation period has passed unless the intended claim is beyond doubt statute-barred. [41] W v Attorney-General sets out the approach where a limitation defence is raised in the context of a leave hearing, but what is the proper approach where the limitation issue is effectively pre-empted by a defendant in an application to strike out? That issue came before me in Pikari & Ors v Residual Health Management Unit HC WN CIV-2003-485-1625 CIV-2004-485-746 27 January 2006. There I held that the Court should take the same approach where the limitation issue is raised at the strike out stage, while the leave hearing is still pending. The policy expressed in W v Attorney-General applies equally, if not more so, in the case of strike out applications. The proposition that a proceeding should not be struck out on a limitations basis except in a very clear case is affirmed in Ronex Properties Ltd v John Laing Construction Ltd and others [1982] 3 All ER 961, Matai Industries Ltd v Jensen [1989] 1 NZLR 525 and, more recently, in Heaven v Webster Malcolm & Kilpatrick Ltd HC AK CIV 2004-404-002862 9 November 2005. [42] The defendant submits that, nevertheless, this is a clear case in which the causes of action cannot overcome the expiry of the limitation period set out in section 4(7). Section 4(7) provides that a proceeding may be brought as of right within two years of the accrual of the cause of action. The proceeding may be brought within two and four years with the consent of the defendant or the leave of the Court. Consent is not forthcoming. Therefore, if the plaintiff's cause of actionaccrued more than two years before the proceeding was filed, the leave of the Court is required. If the proceeding was filed more than six years after the cause of action accrued then it is absolutely barred. Furthermore, A v D provides that it is not sufficient merely that the proceeding be filed within time. Where leave is required, the application for leave itself must be filed within six years of the accrual of the cause of action. A v D has been affirmed in Jackson v Burcher HC HAM CP 56/94 19 September 1997, Sinclair v Residual Health Management Unit HC CH CP 180/96 18 October 1999 and Owen v Residual Health Management Unit [2000] 3 NZLR 475 (CA). [43] I interrupt for a moment to insert a rough chronology to assist in the following discussion:• 16 Aug 1990: Plaintiff diagnosed with PTSD.• 1 Sep 1990: Plaintiff disengages from Police.• Around 1991/1992:Plaintiff claims ACC compensation for his injuries.• 4 Sep 1995: Plaintiff alleges the causes of action accrued.• 29 Aug 1996: Proceeding filed.• 14 May 1999: Application made under section 4(7). [44] Here, the first mention of leave was made in an amended statement of claim filed on 14 May 1999. I record the defendant's objection to the manner in which the leave application was filed. I note that Master Venning took a dim view of such informal means of applying for leave in Sinclair. I concur with the learned Master that plaintiffs should file a separate application for leave. However, just as the Master was not prepared to strike out the pleading on that narrow technical basis, so I do not consider it appropriate here. [45] Given that leave was applied for on 14 May 1999, the plaintiff is required to demonstrate that the cause of action accrued no earlier than 14 May 1993. If it is beyond doubt that the first to third causes of action accrued before this date then the application for leave was made out of time and the causes of action must be struck out. The defendant argues that, at the very latest, the causes of action accrued by1992, that being the time at which the plaintiff applied for ACC compensation for the injuries he had suffered as a result of his undercover work. However, I note that the plaintiff's statement of claim alleges that he only discovered the link between his injuries and the defendant's breaches at a meeting with other former undercover police officers held on 4 September 1995. Prior to this date the plaintiff thought that his injuries were a result of his own failings, rather than a result of the undercover programme. For the purposes of the strike out application I must accept this allegation. Accordingly, I cannot conclude that the first to third causes of action are undoubtedly statute-barred under section 4(7) and I therefore decline the application to strike them out. [46] I note that this decision is conditional upon the plaintiff establishing at trial that the causes of action did in fact arise after 14 May 1993. I also note, for the purposes of the leave application under section 4(7), that as the causes of action are alleged to have arisen on 4 September 1995, leave is not required at all, as the proceeding was filed on 29 August 1996, less than two years later. However, in the event that it is determined at trial that the causes of action accrued after 14 May 1993 (the six year limit mandated by the filing of the leave application) but before 29 August 1994 (i.e. two years before the proceedings were filed), leave will still be required. This somewhat complex position is a result of the leave application not being filed contemporaneously with the proceedings. The application for leave will therefore have to be heard in due course. [47] I now return to the fourth and fifth causes of action. As discussed earlier, I think that it is at least arguable that section 4(7) does not apply in respect of these causes of action. I must therefore consider what limitation period does apply in respect of these causes of action and whether that limitation period has undoubtedly expired. [48] Both causes of action are based upon the plaintiff's disengagement from the Police, which occurred on 1 September 1990. Prima facie, the causes of action accrued on that date. I do not see how it could be argued that the plaintiff only reasonably discovered the cause of action at a later date. The plaintiff does not allege disability. Hence, I think it is safe for me to conclude that the fourth and fifthcauses of action did accrue on that date. The proceedings were filed just short of six years after the plaintiff's disengagement. [49] The fourth cause of action alleges wrongful dismissal. I presume the plaintiff is intending to draw a distinction between wrongful dismissal, a common law action, and unjustified dismissal, a statutory cause of action first established in the Industrial Relations Act 1973. There was statutory recognition of wrongful dismissal prior to the 1973 Act in the Industrial Conciliation and Arbitration Act 1954, which provided for a procedure for the resolution of claims of common law wrongful dismissal. Since the passage of the 1973 Act, there has been a clear distinction between the two causes of action. Despite the statutory codification of unjustified dismissal, wrongful dismissal continued to subsist up until the passage of section 113 of the Employment Relations Act 2000, which eliminated it (see, for example, Ogilvy & Mather (New Zealand) Ltd v Turner [1993] 2 ERNZ 799). An action for wrongful dismissal arises from the contract of employment (see generally Addis v Gramophone Co Ltd [1909] AC 488 and Ogilvy). Consequently, under section 4(1)(a) of the Limitation Act 1950, a six year limitation period applies in the case of the common law action of wrongful dismissal. The proceeding is therefore brought in time. [50] If by "wrongful dismissal" the plaintiff intended to allege unjustified dismissal then I think his claim would face serious difficulties. An unjustified dismissal is a personal grievance, which in 1990 was provided for in sections 87 and Schedule 5 of the Police Act 1958. The essence of the procedure set down therein is that the officer was entitled to submit a personal grievance to the Commissioner. If that did not result in a satisfactory resolution then the officer was entitled to request the appropriate service organisation (for example the New Zealand Police Association) to pursue resolution of the grievance. The officer was not entitled to proceed on his own account: New Zealand Police Association Inc. v Commissioner of Police EC CHCH CEC16/92 C159/91 16 April 1992. This statutory procedure would likely prove an insurmountable barrier to any claim now brought for unjustified dismissal, even assuming that the claim was brought in time.[51] The fifth cause of action alleges a contractual repudiation. That cause of action is covered by section 4(1)(a) of the Limitation Act 1950. A six year limitation period applies. The proceeding was therefore filed in time as regards this cause of action.No Reasonable Cause of Action[52] The defendant submits in the alternative that the pleading discloses no reasonable cause of action. It advances a number of separate grounds in support of this submission. [53] First, the defendant argues that the claims for wrongful dismissal and repudiation of contract are flawed as the employment contract ended in voluntary disengagement. The plaintiff disengaged from the police under section 28D of the Police Act 1958. That section provides that, upon application by a member of the Police, the Commissioner may permit that member to leave the Police if the Commissioner is satisfied that the member is no longer fit to perform his or her duties. Prima facie such a disengagement is voluntary. However, the plaintiff argues that the defendant's breaches were such that he was put in a position where his only course of action was to disengage. This is analogous to a constructive dismissal claim, for which there is ample authority in cases decided under the Employment Relations Act 2000. I do not think that it can be said at this early stage that the plaintiff's claim is so untenable that it cannot possibly succeed. [54] Secondly, the defendant submits that it has not yet been decided whether the Crown can be held vicariously liable for exemplary damages. The defendant points out that the matter was left open in S v Attorney-General [2003] 3 NZLR 450. In W v Attorney-General CA 227/02 15 July 2003 the Court of Appeal noted that it was arguable that the actions or knowledge of senior agents of the Crown could be attributed to the Crown. However, no final determination of the legal issue was made. I think the defendant has really answered its own objection here. The threshold on a strike out is that the claim is so untenable it could not possibly succeed. Here, as I see it, the defendant acknowledges that the argument advanced by the plaintiff remains open.[55] The defendant argues that no senior officer is identified whose conduct is alleged to amount to conscious recklessness or a flagrant departure from acceptable standards of care. If anything, the remedy for this complaint is a request for further particulars, not a strike out application. [56] To conclude, I think the defendant neatly sums up the essence of this application in the final paragraph of counsel's submissions made before me. This is the suggestion that any claim for exemplary damages "faces severe hurdles". That seems to me an accurate reflection of the plaintiff's claim but it does not achieve the threshold required to strike out the pleadings. That conclusion, in my view, is supported by the Court of Appeal decision in Attorney-General v B [2002] NZAR 809. That case dealt with applications to strike out causes of action filed by other undercover police officers. Exactly the same causes of action were alleged there as here. The Court expressed its diffidence in regards to the causes of action relating to wrongful dismissal and contractual repudiation but declined to strike them out.Decision[57] Leave under section 4(7) is arguably not required in respect of the fourth and fifth causes of action. They were accordingly filed within time. Leave is required in respect of the first to third causes of action. Leave was applied for on 14 May 1999 and therefore the defendant is right to contend that the causes of action must be struck out if they accrued earlier than 14 May 1993. However, the defendant alleges in his Statement of Claim they accrued on 4 September 1995, less than two years before the proceedings were filed and within the six year limit mandated by the leave application. Consequently, the application to strike out in relation to the first to third causes of action is dismissed. The plaintiff will still, of course, nonetheless need to establish at trial that the causes of action accrued after 14 May 1993. [58] The application for leave is potentially rendered redundant by the plaintiff's allegation that the causes of action accrued in 1995. However, consideration of the leave issue will proceed on the possibility that it is subsequently found that the causes of action accrued between 14 May 1993 and 29 August 1994, that being the remaining period for which leave could apply.[59] The remaining points raised by the defendant do not meet the high threshold for a strike out in terms of the Attorney-General v Prince & Gardner test and therefore the application is dismissed.Costs[60] If costs are in issue between the parties, then: a) Within 15 working days of this decision the plaintiff is to file and serve his submissions on costs; b) Within 10 working days of receiving those submissions, the defendant is to file his submissions on costs. c) I will make a decision then on the quantum of costs based upon the material filed unless either party requires to be heard on the issue. __________________________Associate Judge D.I. GendallSolicitors:Cullen, Solicitors, Wellington for Plaintiff Crown Law Office, Wellington for Defendant