FULLER v CARTER [2023] NZHC 448

FULLER v CARTER [2023] NZHC 448 [9 March 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-000070[2023] NZHC 448BETWEEN PETER MALCOLM FULLERPlaintiffAND SERGEANT CARTER NEW ZEALANDPOLICE CORPORATIONDefendantHearing: [On the papers]Counsel: Mr Fuller, Plaintiff in personJudgment: 9 March 2023JUDGMENT OF HARVEY JThis judgment is delivered by me on 9 March 2023 at 11 ampursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarTo: PlaintiffIntroduction[1] On 25 January 2023, I issued a judgment regarding Peter Fuller's statement ofclaim filed 16 January 2023, which had been referred to me by the Registrar perr 5.35A, High Court Rules 2016.[2] In respect of Mr Fuller's claim in tort as to assault and false imprisonment andbreach of the New Zealand Bill of Rights Act 1990, I directed the Registrar to obtainthe District Court file concerning Mr Fuller's criminal charges.1 This was becausewithout the file and its accompanying context it was difficult to assess whether hisclaims were an abuse of process. I stayed this part of the claim until further order.[3] I have now received the District Court file and can determine whether MrFuller's claim is an abuse of process. The background to the claim is set out in myprevious judgment.2 Mr Fuller states his false imprisonment occurred on 26 June2021 at about 5 pm and he was incarcerated for two days.Background[4] The Court file reveals the following events. On 25 June 2021 a bail variationwas made requiring Mr Fuller to report daily to Henderson Police Station between 8am and 4 pm. Mr Fuller signed a bail notice containing this variation. On 26 June hereported to the Henderson Police station at 5:05 pm. The breach of bail record states:When asked by Sgt Carter as to why he was so late he stated he was in animportant legal counsel meeting. When asked what lawyer was havingmeetings on a Saturday he became agitated and repeatedly stated 'what youdon't believe me'. He was asked for the name of the lawyer which he advisedwas Robin however he did not know his last name. He was afforded theopportunity to get his phone so as Police could speak with Robin which hefacilitated. Sgt Carter spoke with Robin who when asked his occupation hestated he was retired. He did advise that the Defendant was with him in a socialcapacity and legal matters were discussed in general[.][5] Mr Fuller was then arrested and held in custody. It is at this point he allegesSergeant Carter squeezed his upper left arm and dragged him to the cells. Mr Fuller1 Fuller v Carter [2023] NZHC 25 at [20] and [24].2 At [8]–[14].appeared in Court on 28 June brought on breach of bail conditions. He was warnedhe needs to show up at the right day at the right time. The reporting condition wasremoved.[6] For context, previously on 22 June a warrant to arrest Mr Fuller was issued fornon-attendance. He was arrested on 24 June at his home address "without incident"and explained that he "forgot the date". A previous warrant was issued on 14 April2021 for the same reason.The Law[7] A battery consists of intentionally applying force to the body of another personwithout that person's consent or lawful justification. An assault can be committedindependently of a battery and requires an intentional overt act that creates anapprehension of the imminent infliction of a battery. For an assault the person has tobelieve on reasonable grounds that he or she is in danger of a battery.[8] The tort of false imprisonment requires total restraint where the personrestrained cannot escape from confinement. There must also be an intention to detainand a detention without lawful justification.Discussion[9] Mr Fuller's claim will likely hinge on whether there was lawful justificationfor the force and the imprisonment.3 He claims the bail conditions were unnecessaryand were therefore unlawful. There may be difficulties establishing this in the contextof a tort claim unless the bail variation decision is overturned on appeal, and even thenthe chance of success appear limited. However, Mr Fuller also claims that he had avalid reason for appearing late which was that he was meeting counsel, Robin McIver.Mr McIver has apparently now passed away.[10] The purpose of the rr 5.3A and 5.3B procedure is to ensure a claim is not anabuse of the Court's process. Although Mr Fuller's claim is of dubious merit, I am3 Although, the use of force may be denied.satisfied it is not an abuse of process. The claim is intelligible and the particulars arepleaded. The claim, to some degree, turns on factual findings which need to beexplored at trial. It would not be manifestly unfair to the respondent that they berequired to respond. Nor do I consider right thinking people would regard the courtas exercising poor control of its processes if it permitted the applicant's document tobe regarded as a proper document.[11] In addition, I note Panckhurst J's statement in G v B that it is important todistinguish between "the plainly untenable where there is no cause of action or anabuse is involved on the one hand and a proceeding of highly dubious merit on theother".4 The former is amenable to strike out whereas the latter is not. This case fallsinto the latter.[12] For completeness I note two final points. The first is that the claim againstCommunity Magistrate Jan Holmes being struck out, that defendant should now beremoved from the intituling as there is no claim against her.[13] Secondly, I note that Mr Fuller has now filed a judicial review per [23] of myprevious judgment. That proceeding has not been referred to me under r 5.3A so I donot comment on whether it is properly pleaded. It appears to challenge a decision ofthe District Court refusing to provide Mr Fuller of an audio recording, which in turnrelates to an alleged assault on 14 July 2021.[14] Originally Mr Fuller's statement of claim referred to the District Court'sinaction on six affidavits filed in the criminal proceeding. Having now had theopportunity to view said affidavits, they primarily consist of "sovereign citizen"arguments which have no basis in law.5 There is some reference to his application fortranscripts/audio recording. For clarity, Mr Fuller having taken the relevant parts ofthe claim, being review of the decision to decline to provide audio recordings, acrossto his judicial review claim, the remainder of the claim relating to the District Court'sinaction on the affidavits in the criminal proceeding are struck out for want of causeof action.4 G v B HC Christchurch CP105/02, 19 November 2002.5 See Niwa v Commissioner of Inland Revenue [2019] NZHC 853.Decision[15] The stay is lifted. The statement of claim is to be accepted for filing and servedon Sergeant Ian Carter.[16] A copy of this judgment is to be served on Sergeant Ian Carter.[17] Insofar as this judgment strikes out part of Mr Fuller's claim(s), he has a rightof appeal._________________________Harvey J