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High Court of New Zealand Decisions |
Last Updated: 27 January 2015
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CIV-2006-454-868
BETWEEN ARSHAD MAHMOOD CHATHA Plaintiff
AND THE ATTORNEY-GENERAL First Defendant
AND LESLIE STRINGER Second Defendant
AND THE NEW ZEALAND POLICE Third Defendant
AND LAND TRANSPORT OF NEW ZEALAND
Fourth Defendant
AND GRAHAM TOPPING Fifth Defendant
AND JOHN HUTTON Sixth Defendant
Hearing: 13 November 2007 and Memorandum of Submissions filed 8
February 2008, 11 February 2008, 15 February 2008 and 22 April
2008
Appearances: PG Scott & KM Howard - First, Third, Fourth & Sixth Defendants
AG Parker - Second Defendant MA Robertson - Fifth Defendant AM Chatha
Plaintiff in person
Judgment: 2 May 2008 at 4.00 pm
JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL
This judgment was delivered by Associate Judge Gendall on 2 May 2008 at
4.00 p.m. pursuant to r 540(4) of the High Court Rules 1985.
Solicitors: Thomas Dewar Sziranyi Letts, Solicitors, PO Box 31 240, Wellington
Crown Law, PO Box 2858, Wellington
Gawith Burridge, Solicitors, PO Box 454, Masterton
Mr Chatha, 336 A College Street, Palmerston North
CHATHA V THE ATTORNEY-GENERAL AND ORS HC PMN CIV-2006-454-868 2 May 2008
Introduction
[1] Before the Court are the following applications:
[2] These applications are opposed by the plaintiff.
[3] I note that the third defendant has not joined in the strike-out or
summary judgment applications and so the proceedings as
against the third
defendant will remain extant in any event. The third defendant is a party to
the security for costs application,
however.
Preliminary Matter
[4] The present applications came on for hearing before me on 13 November
2007. On that date I heard submissions from counsel for
each of the respective
defendants but at the conclusion of their submissions, the plaintiff indicated
that he was not prepared for
the hearing and was not in a position to present
his argument in opposition. Because of various events potentially causing the
plaintiff
difficulties in preparing his case, and because the plaintiff is a
self-represented litigant, I thought it appropriate to allow
the plaintiff
a short period of time to provide written submissions in response to the
defendant’s submissions. I
therefore issued a minute directing that the
plaintiff had 20 working days from 13 November 2007 to file those
submissions.
[5] For various reasons, the plaintiff subsequently was granted further extensions of time in minutes I issued on 11 December 2007 and 28 January 2008. The latter minute stated that this was “one further and final indulgence” and allowed the plaintiff until 8 February 2008 to file his submissions.
[6] The plaintiff then filed his submissions on 8 February 2008 and a further memorandum on 11 February 2008. In a minute dated 31 March 2008, I accepted the
11 February 2008 memorandum notwithstanding that it was filed late. This was
in the interests of having all relevant material before
the Court. However, the
minute records that “this further delay may well be a matter which could
ultimately sound in costs
against the plaintiff” (at [6]).
[7] On 21 April 2008 the plaintiff filed a further memorandum purporting to be in response to affidavits of the second defendant dated 30 October 2006 and 15 April
2008. In any event, disputed affidavit evidence is not to be taken into
account on an application for strike out: Attorney-General v McVeagh
[1995] 1 NZLR 558. I have particularly not taken into account the 15 April
2008 Stringer affidavit filed by the second defendant
in considering these
applications.
[8] Notwithstanding these multiple indulgences, the plaintiff’s
submissions and memoranda only seek to address the second
defendant’s
applications in respect of the third cause of action.
[9] I have now had an opportunity to consider all this material and have
taken it into account in reaching the decision outlined
in this
judgment.
Background
[10] These applications involve a proceeding that was commenced by the
plaintiff against the six defendants on 30 October 2006. Amended
statements of
claim have since been filed which both introduced new causes of action and named
more defendants for some of the existing
causes of action.
[11] The current amended statement of claim is the document dated 8
October
2007. I directed that the plaintiff could file a second amended statement within ten working days in a minute dated 27 September 2007. However, the defendants’ present applications before the Court are brought with respect to a previous amended statement of claim, dated 5 June 2007. This is because the defendants were served with the present statement of claim after their interlocutory applications had been filed. The defendants’ submissions also address the earlier amended statement of
claim and the first, fourth and sixth defendants specifically record their
objection to the 8 October 2007 amended statement of claim.
[12] The essential differences between the 5 June 2007 and 8
October 2007 pleadings are the introduction of two new causes
of action, the
removal of named defendants under certain causes of action and the inclusion of
alternative heads of law for causes
of action 1 and 4. In the interests of
finality (and because it will not prejudice the defendants in the circumstances
as I find
them) I intend to address the pleadings as amended.
The Plaintiff’s Position
[13] The fourteen causes of action in the 8 October 2007 statement of claim relate to four different pleaded factual situations, namely:
a) The plaintiff providing allegedly confidential
information to Immigration New Zealand about Mr Mohammad Ashraf
Choudhary
(“Mr Choudhary”) a Labour Party List MP who is a relative of his
(causes of action 1 and 2).
b) Contracts the plaintiff alleges he had with a taxi company, Taxis
Gold
& Black Palmerston North Limited (“Taxis Gold & Black”)
(cause of action 3).
c) The plaintiff providing allegedly confidential information to
the fourth defendant about a Mr Mohammed Zeb (“Mr
Zeb”) (causes of
action 4 to 6).
d) The response of the police to actions the plaintiff says Mr Zeb
took in response to the plaintiff providing this information
(causes of action 7
to 13).
The fourteenth cause of action is pleaded as relying on the whole of this
factual background.
[14] The plaintiff alleges that in 2000 he received information that Mr Choudhary was planning to smuggle (more) people from Pakistan into New Zealand and so, on
3 May 2000, he informed the Immigration New Zealand office at Hong Kong of
this. He says that he was asked to fax the information
and that the person he
spoke to, a Mr Steve Cantlon, promised not to disclose this written
information to anyone outside
Immigration New Zealand.
[15] The plaintiff says that he faxed a letter to Immigration New Zealand
about 7
May 2000 (the “Choudhary letter”). He says that this
letter described how Mr Choudhary was trying to bring two
relatives to New
Zealand permanently and reinforced that the recipient, Mr Steve Cantlon, was to
keep the information “strictly
secret”.
[16] The plaintiff submits that in June 2000, Mr Choudhary
approached the plaintiff, asking him why he had disclosed the
information to
Immigration New Zealand. The plaintiff says that Mr Choudhary threatened him and
that the plaintiff told Mr Choudhary
that Mr Choudhary had been and was still
smuggling people into New Zealand. Further, the plaintiff says that Mr
Choudhary told
the plaintiff’s father-in-law about the Choudhary letter
and turned that family against the plaintiff.
[17] The plaintiff says that the Singapore office of Immigration
New Zealand released a copy of the Choudhary letter to
Mr Choudhary in response
to a request from Mr Choudhary asking for any information pertaining to the
applications of the two relatives
he was trying to bring into New
Zealand.
First Cause of Action, Against First Defendant – Breach of
Confidence, of
Contract, of Promise and/or of Privacy
[18] The plaintiff says that his identity as the informant to Immigration New Zealand was confidential or private information. The plaintiff says it had the necessary quality of confidence and/or privacy because, prior to Immigration New Zealand’s disclosure of the plaintiff’s fax, it was not publicly known who the informant was. The plaintiff says that he specifically requested that his identity remain confidential and that Immigration New Zealand promised that they would do
this. The plaintiff argues that these circumstances give rise to an
obligation of confidence and/or privacy.
[19] The plaintiff maintains that Immigration New Zealand misused the
information and breached their contract with him by producing
the Choudhary
letter to Mr Choudhary and thereby enabling Mr Choudhary to work out the
plaintiff’s identity as the informant.
[20] The plaintiff says that Immigration New Zealand’s officers acted
recklessly, maliciously, without good faith, unreasonably
and/or
unlawfully.
[21] Therefore, the plaintiff claims relief by way of damages for what he alleges are injuries to his mental health, family life, distress and humiliation totalling
$100,000.00 and for financial losses totalling $100,000.00, interest and
costs.
Second Cause of Action against First Defendant -
Negligence
[22] The plaintiff maintains that the Attorney General and/or its Officers
and/or its Ministers owed him a duty of care to keep
his identity secret; that
they breached this duty by disclosing the Choudhary letter; and that the damage
he has suffered as a result
was foreseeable.
[23] Also, the plaintiff says that the Attorney General and/or his Officers
and/or Ministers also owed the plaintiff a duty of care
to discourage people
smuggling and immigration frauds in the country. The plaintiff says that the
practices by which he alleges Mr
Choudhary smuggled people into New Zealand
(entering New Zealand as students or visitors and then establishing them as
refugees or
executing allegedly false marriages or adoptions) are still being
undertaken by other people and are harming individual New Zealanders.
[24] The plaintiff says that this duty was breached by the Attorney General
and/or his Officers and/or Ministers by encouraging what
he alleges is
people-smuggling and corruption in Immigration New Zealand and in the country
generally. The plaintiff says that it
was foreseeable that illegal immigration
harms the country and thus every individual.
a) An order that the immigration applications since the present Labour
Government came into power be re-assessed and that illegal
immigrants be
identified by neutral assessors.
b) That illegal immigrants (including those alleged to have been
brought into New Zealand by Mr Choudhary) be deported.
c) That the Labour Party be warned that increasing their voter bank by
bringing in illegal immigrants is harmful to the country
and increases
corruption.
d) Exemplary damages totalling $100,000.00, general damages totalling
$100,000.00 and interest. e) Costs.
Second Factual Situation
[26] In this factual situation, the plaintiff says that about 21 July 1998
he and his wife entered into a contract (“the first
contract”) with
the second defendant on behalf of Taxis Gold & Black Palmerston North
Limited (“Taxis Gold &
Black”) in relation to the operation of
one taxi identified as cab 309 in Palmerston North. The plaintiff says that this
taxi
cab was involved in an accident a few days after signing the first contract
and so, until the cab was repaired, the first contract
start date was deferred
by mutual agreement to about 29 September 1998.
[27] The plaintiff says that he entered into a second contract with the
second defendant on or about April 2000 (“the second
contract”) in
relation to another taxi identified as cab 305.
[28] The plaintiff contends that he paid $1,000.00 in advance to Taxis Gold
& Black for each contract and that these monies remain
with Taxis Gold &
Black.
[29] The plaintiff submits that the relevant terms and condition of both these contracts included that:
a) Taxis Gold & Black engaged people (the Contractors) to operate
taxis in terms of the contract (clause 1.2).
b) The Contractor was to be licensed in New Zealand by the
Land Transport Safety Authority (now Land Transport New
Zealand) to own and
operate a taxi cab (clause 1.3).
c) The Contractor was to pay a monthly levy in advance on the first
day of each month (clause 4.1).
d) Taxis Gold & Black had the right to terminate the contract
without payment of damages of any kind if the Contractor’s
levies were in
arrears for a period of 2 months (clause 4.5).
Third Cause of Action against Second Defendant – Breach of
Contract
[30] The plaintiff says that around 6 November 2000, the second defendant
gave notice to the plaintiff advising him that as from
8 November 2000, the
first and second contracts would no longer be valid for the “main
reason” that the plaintiff was
two months in arrears with his monthly
levies.
[31] The plaintiff says that the second defendant was not entitled to cancel
the contracts by giving only 2 days notice and says
that in doing so the second
defendant breached the contracts. And the plaintiff in any event disputes that
the levies were 2 months
in arrears.
[32] The plaintiff says he has suffered considerable inconvenience,
distress, financial stress and humiliation as a result
of this breach of
contract on the part of the second defendant. Further, the plaintiff contends
that the second defendant’s
actions were so high-handed, contumacious and
unjustifiable as to be deserving of punishment.
[33] Thus, the plaintiff seeks a declaration that the second
defendant was not entitled to cancel the contracts, compensatory
damages
($15,000.00) for the alleged losses suffered by the plaintiff by selling the
taxi cabs at less than market value, general
damages ($10,000.00) for distress
and humiliation, interest and costs.
[34] The plaintiff says that he received confidential information from
Australia that another man, Mr Zeb, who it is said had come
into New Zealand
from Pakistan in December 1999 “on a fiancé or visitor
visa”, whilst previously living in Australia had perpetrated frauds
under a false name (Zakir Hussain) and false date of birth, and that
he had been
deported from Australia in May 1999. The plaintiff maintains he also received
information that Mr Zeb is a family member
of the plaintiff’s in- laws
and, in April 2000, Mr Zeb was trying to get a false Pakistani driver’s
license so as to
obtain a New Zealand driver’s licence. The plaintiff says
that he asked Mr Zeb about the Australian visa scam and his relationship
with
the plaintiff’s in-laws but that Mr Zeb denied both.
[35] The plaintiff contends that he spoke to the sixth defendant, a
Compliance Officer of the fourth defendant, “some day [sic]
before”
7 May 2000 and told him that he would write a letter about a Pakistani
(presumably Mr Zeb) who had committed frauds
in Australia and was now continuing
to do so in New Zealand. The plaintiff says that the sixth defendant promised to
keep the letter
secret.
[36] On this basis, the plaintiff says that on about 7 May 2000 he wrote a
letter (the “Zeb letter”) to the manager of
the fourth defendant in
Palmerston North, describing the frauds alleged against Mr Zeb and recommending
that Mr Zeb not be given
a driver’s licence in New Zealand. The plaintiff
says that on the envelope enclosing the Zeb letter was the address and the
words
“KEEP SECRET” hand-written by him.
[37] The plaintiff submits that in May 2000 the fourth defendant disclosed
to Mr Zeb the Zeb letter and the fact that it had been
stamped as having been
sent from Palmerston North. Consequently, the plaintiff contends, Mr Zeb rang
the plaintiff telling him that
he knew that the plaintiff had written the Zeb
letter because no one else knew that Mr Zeb had lived in Australia under the
name
“Zakir Hussain”.
[38] The plaintiff says that, on the same day, with Mr Zeb he went to the offices of the fourth defendant in Palmerston North and met the sixth defendant and another man, Mr Stewart Guy. The plaintiff says that Mr Guy and the sixth defendant read the Zeb letter but also showed Mr Zeb the envelope from the file.
Fourth Cause of Action against First, Fourth and Sixth Defendants –
Breach of
Confidence of Contract, of Promise and/or of Privacy
[39] The plaintiff claims that his identity as the writer of the Zeb letter
was confidential and/or private information. The
plaintiff says it had
the necessary quality of confidence and/or privacy because, prior to the fourth
defendant’s disclosure
of the letter, it was not publicly known who the
writer was.
[40] The plaintiff submits that he expressly asked that his
identity remain confidential and that the fourth defendant
assured/promised the
plaintiff that they would so this. The plaintiff says that these circumstances
give rise to an obligation of
confidence and/or privacy.
[41] The plaintiff contends that the fourth defendant misused the
information and/or breached a contract by showing the Zeb letter
to Mr Zeb and
enabling him to thereby identify the plaintiff as the writer of the
letter.
[42] The plaintiff submits that the officers of the fourth defendant acted
recklessly, maliciously, without good faith, unreasonably
and/or
unlawfully.
[43] As such, the plaintiff claims relief in the form of damages of $100,000
for alleged injury to his “mental health and family life,
distress and humiliation”, financial losses of $200,000.00, interest
and costs.
Fifth Cause of Action against Fourth and Sixth Defendants -
Negligence
[44] The plaintiff says that the fourth and sixth defendants owed the
plaintiff a duty of care to keep the information confidential,
and that they
breached this duty by disclosing the information to Mr Zeb.
[45] He maintains that it was foreseeable that the disclosure of this
information would cause the plaintiff harm “given the
family and extended
family situation”.
[46] Again, the plaintiff submits that officers of the fourth defendant and the sixth defendant acted recklessly, maliciously, without good faith, unreasonably and/or unlawfully.
[47] On this, the plaintiff claims exemplary damages of $100,000.00, damages
of
$100,000.00, interest and costs.
Fourth Factual Situation
[48] The plaintiff contends that in about May 2000, Mr Zeb visited the
plaintiff’s home at about 1am and asked the plaintiff
to come outside and
not to tell his family members. The plaintiff says that “after thinking
a lot”, he told his wife and then went to see Mr Zeb. He suggests
that Mr Zeb seemed to be planning him harm but that, when Mr Zeb saw
family
members on the street, he changed his mind and went home.
[49] Then, in June or July 2000, the plaintiff maintains that Mr Zeb’s
younger brother, Mr Imran Mirza, phoned the plaintiff
and abused and threatened
to kill him.
[50] The plaintiff says later on 18 July 2000, at 11.30pm, Mr Zeb again came
to the plaintiff’s home. The plaintiff says that
Mr Zeb was “heavily
alcoholic” and that he entered the plaintiff’s room, tried to start
a fight and threatened
to kill the plaintiff. The plaintiff says that Mr Zeb
believed that the plaintiff complained about him to Immigration New Zealand
and
to the fourth defendant. The plaintiff says that he called the police but that
no charges were laid against Mr Zeb.
[51] On 8 August 2000, the plaintiff states that Mr Zeb once again came to
the plaintiff’s house, entered his lounge and,
in his words,
“gave evil eyes” to the plaintiff. The plaintiff says
that he informed the police, and that he was told to apply for a protection
order.
No charges were laid against Mr Zeb.
[52] On 10 August 2000, the plaintiff says that the police served a trespass
notice on Mr Zeb under s 4(1), (2) and (4) of the Trespass
Act 1980 and warned
him to stay off the plaintiff’s property.
[53] Next, the plaintiff alleges that on 3 September 2000, the plaintiff told the Palmerston North police that Mr Zeb had left a threatening phone message on his phone saying, in Punjabi: “however long it takes you will come to my hand”. The plaintiff suggests that this meant that he would kill the plaintiff. Again no charges were laid against Mr Zeb.
[54] Then, on 16 September 2000, the plaintiff states that a Constable Olsen
came to the plaintiff’s house at about 3.30pm
and spoke “very
arrogantly” to the plaintiff, saying that the police had investigated
Mr Zeb’s record from Australia and could not find any illegality.
The
plaintiff questioned Constable Olsen as to how the police could reach such a
conclusion “when they have been favouring Mr Zeb and his
frauds”, and told him that the police were “under the
influence of Labour Party Ministers and were maliciously targeting the
plaintiff”.
[55] On 18 September 2000, the plaintiff contends that Constable Olsen
served another trespass notice on Mr Zeb and again warned
him to stay off the
plaintiff’s property.
[56] Next, the plaintiff contends that on 24 October 2000, Mr Zeb and a
friend (Mr Choudhary’s nephew) approached the plaintiff
to assault or kill
him. The plaintiff says that he reported this to a Constable Jahanson but no
charges were laid.
[57] The plaintiff then deposes that on or about 30 or 31 October
or early November 2000, the fifth defendant wrote a
report (the “Topping
report”) to the officer in charge of the Police “Intelligence
Section” stating that
he had received information that the plaintiff was
in a major dispute with his family to the extent that he was on medication and
had made several threats to kill his relatives. The fifth defendant in the
report said that he understood that the plaintiff operated
a business called PAK
Kiwi, which imported cheap labour from Pakistan for factory jobs in New Zealand
and that the plaintiff claimed
to be studying at Massey University.
[58] On the night of 2-3 November 2000, the plaintiff says he received
information that Mr Zeb and his friend (Mr Choudhary’s
nephew) were
planning to attack the plaintiff. As a result the plaintiff says he armed
himself with a knife in “self- defence”. The plaintiff
contends that on this night the fifth defendant “was despatching Gold
& Black Taxis” and that,
at about 12.40am on 3 November 2000, a
Constable Olsen and other police officers searched the plaintiff’s taxi.
The plaintiff
says that he told the police officers that he had two knives in
his taxi to protect himself from Mr Zeb.
[59] The plaintiff was arrested and charged with possession of offensive weapons. He was convicted on about 21 March 2002 and later was sentenced to 3 months’
periodic detention. The plaintiff’s appeal was allowed by the High
Court on 18
November 2002 and both the conviction and sentence were quashed.
[60] In the meantime, the plaintiff says that in November 2000 and in May
2001 his Taxi Passenger Service Licences were revoked.
As I understand the
position, this was because the plaintiff had been charged with the offence of
possessing an offensive weapon,
and it was considered to be in the
“interests of public safety” to suspend the plaintiff. On 4 April
2001, the District
Court allowed an appeal against the fourth defendant’s
revocation of the licences because, it is said, in light of changed
circumstances, the public safety concerns had been allayed.
[61] The plaintiff goes on to allege that subsequently, on 10 May 2001, Mr
Mark O’Donnell, described as the regional compliance
officer of the fourth
defendant for Palmerston North, wrote a letter to the plaintiff which suggested
that the plaintiff had not
operated a vehicle for two years and confirmed that
the plaintiff’s Passenger Service Licence was revoked. It went on to
state that if the plaintiff was found operating a taxi while his licence was
revoked this might lead to summary conviction and a
fine of up to
$10,000.00.
Sixth Cause of Action against Fourth Defendants – Abuse of
Process of
Misfeasance in Public Office
[62] The plaintiff maintains that he had never intended to keep a knife or
knives in his taxi and only did so because of the situation
he said was created
by both the third and fourth defendants.
[63] The plaintiff says that he was a contractor with Taxis Gold & Black
and was operating a Passenger Service Licence that was
not more than two years
old prior to revocation.
[64] It is the plaintiff’s submission that, by revoking the plaintiff’s Passenger Service Licences in November 2000 and May 2001, the fourth defendant acted recklessly, maliciously, without good faith, unreasonably and/or unlawfully, and was guilty of abuse of process and misfeasance in public office.
[65] As such, the plaintiff again claims exemplary damages of
$100,000.00, damages of $100,000.00, interest and costs.
Seventh to Tenth Causes of Action against Third Defendant –
Malicious Prosecution, Abuse of Process, Misfeasance in Public
Office; False
Imprisonment and Negligence
[66] The plaintiff alleges that the third defendant prosecuted the
plaintiff on criminal charges which concluded without
the plaintiff being
incriminated, that the third defendant had no reasonable and probable cause for
bringing the proceedings, that
the third defendant had acted maliciously and
that the plaintiff suffered damage as a consequence of the proceedings. The
plaintiff
claims relief in the form of exemplary damages ($100,000.00);
compensatory damages “for loss of employment and education”
($150,000.00); damages to “reputation, and for
distress, humiliation, loss of dignity and endangering the plaintiff’s
life and liberty”
($200,000.00); interest; and costs.
[67] The plaintiff also contends that the third defendants are guilty of abusing process or misfeasance in a public office in that the plaintiff alleges they continuously ignored the threats of Mr Zeb and Mr Choudhary against the plaintiff, that they “ helped Mr Zeb in his frauds to New Zealand”, and that they “charged the plaintiff with the highest charges relating to possession of knifes; and did not protect the plaintiff, who was doing his duty to help New Zealand against corruption”. The plaintiff claims as relief here exemplary damages of $100,000.00, damages of
$150,000.00, interest and costs.
[68] Thirdly, in his ninth cause of action, the plaintiff contends that the
third defendants were guilty of falsely imprisoning the
plaintiff, first by
arresting and detaining him in the police station and secondly by detaining him
at his residential address through
his bail conditions. Again the plaintiff
claims as relief, exemplary damages of $200,000.00, damages of $200,000.00
(particularised
as “compensatory, distress, humiliation, feared caused,
consequential loss, etc"), interest and costs.
[69] Finally, in his tenth cause of action, the plaintiff contends that the third defendants owed him a duty of care to “protect him against those who were acting against the interest of this country”. The plaintiff says the third defendants breached
this duty by “encouraging people-smuggling, immigration frauds and
corruption in the country, and by discouraging the plaintiff who
was
acting to protect New Zealand against those illegalities”. The
plaintiff says that it was foreseeable that the third defendant’s actions
would cause the plaintiff damage. Again under
this head, the plaintiff claims
exemplary damages of $100,000.00, damages of $100,000.00, interest and
costs.
Eleventh to Thirteenth Causes of Action against Third and Fifth Defendants
– Injurious Falsehood; Defamation and Negligence
[70] Here, the plaintiff refers to the Topping report he says the fifth
defendant wrote in late October or early November 2000 (see
above at [57]). The
plaintiff denies first, having made “several threats to kill his
relatives”, secondly, operating
any business called PAK Kiwi in New
Zealand or thirdly, importing cheap labour from Pakistan. The plaintiff says
that by making those
allegations the third and/or fifth defendants
“made false statements and helped the people who in fact were
threatening to kill the plaintiff and doing illegalities.”
The
plaintiff says that the third and/or fifth defendants made and published these
written statements maliciously to help the fifth defendant’s friends
who were the directors and/or owners of Taxis Gold & Black Ltd and his
other
friends, and friends’ friends.” As such, the plaintiff argues
that the third and the fifth defendants damaged the plaintiff by making what the
plaintiff
says were false and malicious statements. Under this injurious
falsehood head, he claims relief in the form of exemplary damages
of
$100,000.00, damages of $200,000.00, interest and costs.
[71] In addition, the plaintiff in his twelfth cause of action, pleads defamation and says that the third and/or fifth defendants made and published the defamatory statements about the plaintiff contained in the Topping Report. On this head, the plaintiff claims compensatory damages of $2 million; exemplary damages of
$200,000.00, interest and costs.
[72] Also, in his thirteenth negligence cause of action, the plaintiff says that the third and/or fifth defendants owed a duty of care to the plaintiff not to make these false statements about the plaintiff, and that they breached this duty and it was
foreseeable that this would cause the plaintiff damage. Here, the plaintiff
claims exemplary damages of $100,000.00; damages of $100,000.00,
interest and
costs.
Fourteenth Cause of Action
[73] In this final cause of action, the plaintiff alleges that “all of the defendants committed conspiracy against him” and he claims exemplary damages of
$100,000.00; damages of $200,000.00, interest and costs.
[74] On this, the plaintiff relies on the whole of the alleged factual
background discussed above. The plaintiff says that what has
occurred was a
combination of more than two defendants, that its dominant purpose was to injure
the plaintiff, that the purpose of
the combination was unlawful and was intended
to injure by unlawful means, that there was no just cause or excuse, and that
the conspiracy
was carried into effect so as to cause damage to him.
Legal Position on Strike-Out Applications
[75] The present applications for strike out are brought pursuant to r 186
of the
High Court Rules. This rule provides:
“186 Striking out pleading
Without prejudice to the inherent jurisdiction of the Court in that
regard, where a pleading—
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.”
[76] Strike-out applications are to proceed on the assumption that the facts pleaded in the statement of claim are true, unless the pleaded allegations are entirely speculative and without foundation: Attorney-General v Prince and Gardner [1998]
1 NZLR 262 (CA); Collier v Pankhurst CA136/97 6 September 1999. To
strike out the proceeding, the Court must be satisfied the causes of action are
so clearly untenable
that they could not possibly succeed:
Attorney-General v Prince and Gardner.
[77] The Court of Appeal in Attorney-General v Prince and Gardner
clarified that the strike out jurisdiction is one to be exercised sparingly
and only in a clear case where the Court is satisfied
it has the
requisite material (see also Gartside v Sheffield, Young & Ellis
[1983] NZCA 37; [1983] NZLR 37, 45; Electricity Corporation Ltd v Geotherm Energy Ltd
[1992] 2 NZLR 641). However, the mere fact that applications to strike out
raise difficult questions of law and require extensive
argument does not exclude
jurisdiction: Gartside v Sheffield, Young & Ellis.
[78] The scope of r 186(b) is potentially very wide and defies exact
definition. However, McGechan on Procedure at HR186.03 provides examples
of situations that would be included within r 186(b), which include:
a) Unnecessarily prolix pleading: Hill v Hunt Davis (1884) 26 Ch
D
470.
b) Proceedings which are both scandalous and irrelevant: In Van
der Kaap v A-G (1996) 10 PRNZ 162, Hammond J, dealing sensitively
with a lay
litigant’s diatribe, stayed the proceedings to afford an opportunity for
claims to be repleaded on terms. This was
despite his Honour’s findings
that striking out the irrelevant and scandalous material would have been
appropriate and that
striking out the whole proceeding would have been
justified.
c) The pleading of purely evidentiary material: Meikle v NZ Times
Co
(1904) 23 NZLR 893; Public Trustee v McArley [1942] NZLR
13.
d) Unintelligible pleadings: Hoffnung v Fletcher (1887) 4 WN
(NSW)
68; Philips v Philips (1878) 4 QBD 127.
e) Pleadings containing irrelevant material: Cowles v
Prudential
Assurance Co [1957] NZLR 124. In Davis v Russell McVeagh
McKenzie Bartleet & Co [1994] 2 NZLR 175, Henry J found that
allegations of improper conduct in the defence of proceedings against
solicitors
could not constitute an element of claims to exemplary damages, and were
accordingly struck out.
f) Proceedings to set aside judgment on the grounds of fraud
forming in reality a much delayed application for a new trial:
Ongley v
Brdjanovic [1975] 2 NZLR 242.
[79] Abuse of process under r 186(c) extends the grounds outlined in rr
186(a) and (b). It also defies precise definition but appears
to subsume various
instances of misuse of the Court’s process. Examples (as noted in
McGechan on Procedure at HR186.05) include:
a) Proceedings brought for an improper motive: Goldsmith v
Sperrings
Ltd [1977] 2 All ER 566 (CA);
b) Attempts to relitigate matters already determined: Hardy v
Elphick [1973] 2 All ER 914 (CA); Collier v Butterworths of New
Zealand Ltd
(1997) 11 PRNZ 581;
c) A plaintiff continuing proceedings without any intention of
bringing them to trial: Grovit v Doctor [1997] 2 All ER 417.
[80] The strike-out applications brought by the first, second, fourth,
fifth and sixth defendants here rely on the grounds set out
in one or more of rr
186(a), (b), and (c).
Counsels’ Arguments and My Decision
First Cause of Action (Breach of Confidence, Contract, Promise
and/or
Privacy)
[81] On this, the first defendant (the Attorney-General in respect to Immigration New Zealand) argues, first, that the cause of action is statute-barred (and so is an abuse of process), and secondly, that the allegations do not raise a reasonable cause of action. As noted above, the plaintiff has not responded to these submissions.
[82] The first defendant says that allegations were not made against the first defendant in respect of immigration matters until the amended statement of claim of
5 June 2007. As such, the first defendant seeks to have this cause of action
– and the fourth, fifth, sixth and twelfth causes
of action – struck
out on the basis that it is statute-barred. The first defendant notes
that:
[83] The first defendant maintains that the plaintiff’s first cause of
action accrued in June 2000 when Mr Choudhary allegedly
told the plaintiff that
he knew the plaintiff had disclosed information to Immigration New Zealand. As
such, the first defendant
says that by the time the allegations were raised in
the 5 June 2007 statement of claim, the cause of action founded in breach of
confidence in June 2006 had expired “by application of the equitable
bar by analogy” (citing Shaw v Shaw HC HAM CIV 2007-419-210 8
October 2007).
[84] The first defendant says that even if breach of confidence is
not strictly speaking a tort, it may still be statute-barred
as a cause of
action by analogy to s 4 of the Limitation Act 1950. The first defendant
contends that the plaintiff is attempting to bring allegations in law and equity
relating to the same facts
and that if pleaded as negligence the cause of action
would be out of time. Therefore, the first defendant says that the comments
of
the Court of Appeal in S v G [1995] 3 NZLR 681, 689 apply here.
[85] The first defendant also submits that r 187(3)(a) of the High Court
Rules bars the plaintiff from bringing this cause of action against the
first defendant because these are fresh allegations against a new
defendant and
the High Court has no jurisdiction to hear the matter.
[86] Secondly, the first defendant says – and I accept – that the plaintiff must prove three elements to succeed in a breach of confidence cause of action (per Coco v A N
Clark (Engineers) Ltd [1969] RPC 41, 47-48 and Norbrook
Laboratories Ltd v
Bomac Laboratories Ltd [2004] NZCA 56; [2004] 3 NZLR 49 at [22]):
a) That the information had the necessary quality of confidence;
b) That the information was communicated in circumstances importing an
obligation of confidence; and
c) That there was (or is about to be) an unauthorised use or
disclosure of that information to the detriment of the plaintiff.
[87] In respect of each of these elements, the first defendant
says:
a) The information did not have the necessary quality of confidence.
There was nothing on the face of the Choudhary letter to prove that the
plaintiff was the author. The plaintiff has not alleged that
he was the only
possible source of the information, and the plaintiff himself later accused Mr
Choudhary of people-smuggling in June
2000 (see [16] above). Also, the first
defendant says that there can be no confidence as to the disclosure of an
iniquity
(citing Gartside v Outram (1857) 26 LJ Ch (NS) 113, 114) and
that allegations in the Choudhary letter struck at the very core of the
integrity of New Zealand’s
immigration scheme.
b) The content of the Choudhary letter, and the entity to
which the plaintiff disclosed it, imply that the plaintiff
expected the first
defendant to use the information, which, in accordance with principles of
natural justice, would necessarily involve
putting it to the individuals that
the plaintiff had accused. The first defendant contends that the plaintiff could
not have expected
to put such information before a government agency and for the
agency not to act upon it – and, indeed, the plaintiff sues
the first
defendant in the second cause of action precisely for not taking action.
c) The first defendant’s use of the information was not
unauthorised.
There was a legitimate public interest in disclosing the information,
and the information was disclosed to a limited range of people – the
accused – and for the very purpose the plaintiff
supplied it – to
investigate potential fraud and immigration offences.
[88] Lastly, the first defendant submits that there is no basis for the damages that the plaintiff seeks (see [21] above). In particular, the first defendant contends that the plaintiff’s family problems pre-dated the alleged breach by years (see [13.3] of the 5
June 2007 and 8 October 2007 amended statements of claim), they were
attributable to the plaintiff’s own behaviour, and
the plaintiff
has not particularised what financial losses he says he has suffered and how
they arose from the alleged breach.
[89] Section 4(1)(a) of the Limitation Act provides that actions founded on simple contract or on tort shall not be brought after the expiration of 6 years from the date on which the cause of action accrued. This cause of action accrued in June 2000 and therefore, so far as it rests on tort and contract, it expired before it was first raised on
5 June 2007.
[90] Section 4(9) states that s 4 does not apply to “any
claim for specific performance of a contract or for an injunction or for other
equitable relief, except in so far as
any provision thereof may be applied by
the Court by analogy”.
[91] In Matai Industries Ltd v Jensen [1988] NZHC 205; [1989] 1 NZLR 525, it was alleged for the company that Mr Jensen, its former receiver, had breached his duty of care to the company in various ways, including by selling Matai’s assets at less than the best possible price. In addition, Matai alleged that the receiver had a fiduciary relationship with or duties to Matai and that in breach of these the receiver had allowed the performance of the receivership to be directed or influenced by third parties. The Court found (at 544) that “the equitable cause of action based on breach of fiduciary duty, is exactly coincident with part of the first cause of action at law in respect of the negligent conduct of the receivership”. In particular, the Court noted that paragraphs of the statement of claim had been repeated for both causes of action and the relief sought was identical. As such, the High Court held (at 544) that the equitable claim was barred by analogy to the statute-barred negligence claims because it would be “highly inequitable that with this degree of correspondence a plaintiff in equity could circumvent the barring of his cause of action at law”.
[92] In S v G [1995] 3 NZLR 681 (CA), the defendant, a medical
practitioner, was sued for several alleged sexual assaults in causes of action
based
on trespass to the person, negligence and breach of fiduciary duty. The
Court of Appeal held that the third cause of action was barred
by analogy to the
first two causes of action because “the pleaded claims are really
alternatives in respect of essentially the same conduct” (at
689).
[93] More recently, the concept of an analogous time bar for an equitable claim is extensively discussed in the Court of Appeal by Tipping J in Johns v Johns [2004] 3
NZLR 202 (albeit in obiter).
[94] There, Tipping J commented on the test at [80] to [81]:
“There will be a bar by analogy only when the fiduciary claim
parallels the statute-barred claim so closely that it would be
inequitable to
allow the statutory bar to be outflanked by the fiduciary claim. In order to
determine how close the parallel is the
Court must examine not only the
underlying facts but also the nature of the relationship between the parties and
the policy and purpose
of the different causes of action. If there is a
sufficient difference in any material respect, the suggested parallel is
unlikely
to be close enough to make it appropriate in equity to apply an
analogous bar...
The judgments in Matai Industries and S v G should not be read as
suggesting that the issue can be concluded solely by reference to
the degree of
concurrence of the factual allegations. That of course must be the first focus
because, if there is no sufficient degree
of concurrence in that respect, the
suggested analogy is likely to fail at that point. If, however, there is factual
concurrence
in the sense that the different causes of action are simply
different ways of putting the same factual complaint, and there are no
policy or
other reasons militating against it, the case for an analogous bar is likely to
have been made out.”
[95] In Johns v Johns, the defendant was sued for breach of trust (which was alleged to be barred by s 21 of the Limitation Act 1950) and breach of fiduciary duty on the basis of “essentially the same alleged defaults” (at [74]). However, on the facts, the alleged breaches would not have been sufficiently analogous because the
defendant was sued in two different capacities – as a trustee in the
former cause of action and as a shareholder and director
in the second (at
[85]).
[96] In the present case, the plaintiff seeks to rely on the same facts as
giving rise to the alleged breach of confidence, breach
of contract, breach
of promise, and/or breach of privacy. He also seeks the same relief. In each
case, it is the same alleged
default that the plaintiff is pursuing
– namely, disclosure of the letter. The relationship between the
plaintiff
and the first defendant is essentially the same under each head, it is
not a case where the first defendant is said to have been
acting in different
capacities. Moreover, whether the cause of action is phrased in terms of an
implied or express contractual term
of confidence, a promise of confidence or a
tortious duty of confidence or privacy, the policy and purpose of the cause of
action
is for all extents and purposes identical here. Therefore, I am satisfied
that this is a case where “it would be inequitable
to allow the statutory
bar to be outflanked by the fiduciary claim” (per Tipping J in Johns v
Johns at [80]).
[97] Turning now to r 187(3)(a) of the High Court Rules, this
provides:
“(3) An amended pleading may introduce—
(a) A fresh cause of action which is not statute
barred”
[98] This cause of action was first introduced against the first defendant
in the 5
June 2007 amended statement of claim. Indeed, the original, 30 October 2006 statement of claim did not plead the first factual situation which the plaintiff alleges (with respect to the Mr Choudhary) at all. Therefore, I am also satisfied that r
187(3)(a) applies here to preclude the plaintiff from introducing this fresh,
statute- barred cause of action in his subsequent amended
pleadings.
[99] Given this finding, it is not strictly necessary for me to make a
determination on the first defendant’s second argument
(that there is no
tenable cause of action). However, I briefly set out my view on that aspect
here, for the sake of completeness.
[100] On the facts as pleaded in the statement of claim, the plaintiff says that the first defendant disclosed the actual Choudhary letter to Mr Choudhary (in which the author was apparently not identified), as opposed to information that the plaintiff had made the allegations. The plaintiff says that simply from receiving this letter, Mr
Choudhary deduced that the plaintiff was the informant. Thus, the
question is whether disclosing the Choudhary letter was
a breach of
confidence.
[101] I am of the view that the plaintiff must have communicated the
information – the Choudhary letter – intending the
first defendant
to use it to investigate the claims made against Mr Choudhary. This would
necessarily entail (as a matter of natural
justice) disclosing the information
to Mr Choudhary. Therefore, I am satisfied that it could not be said the
information was either
communicated in circumstances importing an obligation of
confidence or that the disclosure which the first defendant made was
“unauthorised”.
[102] In addition, I am of the view that the plaintiff has no tenable
possibility of making out the necessary elements under the alternative
heads of
law he endeavours to argue. The facts that the plaintiff alleges are not
sufficient to indicate that there might have been
a contract between the
plaintiff and Immigration New Zealand. Nor has the plaintiff provided any detail
as to what the terms of the
alleged contract were (apart from his suggestion
that by implication the information be kept confidential). I find it implausible
that Immigration New Zealand would have – or indeed could have –
contracted to keep the information confidential. Indeed,
the only reason in my
view that the plaintiff would have provided the information, and the only reason
Immigration New Zealand would
receive it, would be to use the information as
Immigration New Zealand did. And in terms of the alleged breach of promise, I am
unsure
what, if anything, this adds to the allegation of breach of contract and
would dismiss it on the same basis.
[103] Nor does the plaintiff have a reasonable cause of action for breach of the tort of privacy, as delineated in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1. I consider it clear that the information in question here does not equate to private facts in respect of which there is a reasonable expectation of privacy. Nor do I consider that the very limited publicity given to the information in the present case could be considered highly offensive to an objective reasonable person. Immigration New Zealand only disclosed the allegations to Mr Choudhary so as to properly and fairly investigate the allegations made against him.
[104] In conclusion, for these reasons also, I am persuaded that this cause
of action should be struck out. Orders to this effect
are to follow
below.
Second Cause of Action (Negligence)
[105] The first defendant submits that this cause of action should be struck
out under r 186(a) of the High Court Rules in that it
cannot possibly succeed
because:
[106] The first defendant says that the Immigration Act 1987 does not provide
that the first defendant owes individuals a duty of
care as to how the Act is
administered in respect of third parties and that to identify such a
duty would completely
undermine the immigration regime and Parliament’s
sovereignty. On this, the first defendant cites Hill v Chief Constable of
West Yorkshire [1987] UKHL 12; [1988] 2 All ER 238, in which the House of Lords held that
there is no general duty of care owed by police officers to identify
or
apprehend known criminals or any general duty of care to individual members of
the public who might suffer injury through the
criminal’s activities
(where their failure to apprehend the criminal does not create an
exceptional added risk).
[107] In addition, the first defendant says that the plaintiff’s allegations here are so wholly without merit and legal basis as to be scandalous and so should also be struck out under r 186(b) and (c) of the High Court Rules. The first defendant says that the Court cannot grant the remedies sought in [25](a) to (c) above and that the very nature of the orders sought – which indicate a “fixation on the Labour Party” – suggests that this pleading is both scandalous and an abuse of process. The first defendant also submits that the proceedings have not been brought to try to resolve a bona fide dispute between the parties and that the plaintiff has made serious allegations of fraud against a non-party to the proceedings.
[108] The first defendant contends that the Court should not exercise its
discretion to nevertheless hear this cause of action (Meates v The Commercial
Bank of Australia Ltd & Ors CA190/85 11 March 1986), because to do so
would enable the plaintiff to obtain a benefit by the back door that he could
not claim
by the front door.
[109] I note that the first defendant does not address the plaintiff’s first allegation of negligence, with respect to the duty of care said to be owed to the plaintiff to keep the plaintiff’s identity as the Choudhary letter writer confidential. However, this is a tortious cause of action and as such is clearly barred by s 4 of the Limitation Act
1950 for the reasons discussed above. The plaintiff also sought to
introduce it in the amended pleadings and so r 187(3)(a) again applies
to
preclude it.
[110] With respect to the second alleged duty owed to the plaintiff (to
discourage people smuggling and immigration frauds) I acknowledge
that the Court
of Appeal in A-G v Prince and Gardner cautioned that Courts should be
slow to rule on novel categories of duty of care at the strike out stage.
However, I consider that
this purported duty is so clearly untenable as to allow
the Court to do so here. I do not believe that the regime of the Immigration
Act
and the duties of Immigration New Zealand under it can be interpreted so as to
impose a duty on the first defendant to every
person in New Zealand to
discourage people smuggling and immigration frauds. Nor do I consider that the
plaintiff has a tenable
cause of action that any such duty has been breached
here or that he has suffered loss that is causally linked to Immigration New
Zealand’s actions.
[111] Equally, I am satisfied that this cause of action should also be struck
out under r 186(b) as being so wholly without merit
and legal basis as to be
scandalous. In particular, the first three orders sought by the plaintiff under
this cause of action are
entirely inappropriate and patently outside the
jurisdiction of this court. These orders appear to be directed at the Labour
Party
rather than the first defendant and are clearly improper. As such, I am of
the view that this cause of action is brought for an ulterior
and improper
purpose and thus is an abuse of process - Commerce Commission v Giltrap City
Ltd (1997) 11 PRNZ 573 at 579.
[112] As such, an order is to follow striking out this cause of action as well.
Third Cause of Action (Breach of Contract)
[113] The second defendant says that the plaintiff’s claim is both untenable as a matter of law and has no prospect of success on the evidence relied on in the pleadings (per r 186(a) of the High Court Rules). In addition, although the second defendant did not specifically address the argument in submissions, the second defendant’s application is also made on the basis that the claim is frivolous, vexatious and an abuse of process and is barred by operation of the Limitation Act
1950 and r 187(3)(a) of the High Court Rules.
[114] The second defendant says that at no time was there a contract between
the plaintiff and the second defendant and that the contracts
the plaintiff
refers to (for taxi cabs 305 and 309) were between the plaintiff’s wife
and Taxis Gold & Black Palmerston
North Limited. The second defendant does
acknowledge that drivers could be employed to drive the taxi cabs but says that
this did
not make them “contractors” of the taxi company for
the purposes of the contracts. And critically, the plaintiff’s pleading
(and all the evidence before
the Court) indicates that the contracts were with
the company (a separate legal entity) and not the second
defendant.
[115] Furthermore, the second defendant says that these contracts were in any
event validly terminated on 6 December 2000 for non-payment
of levies under
clause 4.5 of the individual contracts.
[116] The plaintiff does respond and argues that he was a party to the
contracts and that he was not behind in paying his levies on
6 December 2000.
But, in any event, and even on the plaintiff’s own contentions, those
contracts were with, and the levy payments
made to, Taxis Gold & Black
Palmerston North Limited and not the second defendant.
[117] As this third cause of action pleads breach of contract, it cannot succeed against the second defendant who it is acknowledged is not a party to the contract. It is clearly untenable and an order is to follow striking it out.
Fourth Cause of Action (Breach of Confidence, Contract, Promise
and/or
Privacy)
[118] The first defendant submits that there is no reasonable cause of
action against the first defendant here because the first
defendant is not
responsible for the actions of either the fourth or sixth defendants and the
plaintiff has not suggested any
involvement by Immigration New
Zealand.
[119] In addition, the first defendant repeats, and the fourth defendant adopts, the argument above (at [83] to [86]) that this cause of action is an abuse of process because it is statute-barred by s 4 of the Limitation Act 1950, or analogy to s 4, and by r 187(3)(a) of the High Court Rules. Here, the breach of confidence (or contract, promise or privacy) is alleged to have occurred in May 2000 when Mr Zeb informed the plaintiff that he knew the plaintiff had disclosed information to the fourth defendant. It is submitted, therefore, that the cause of action expired in May 2006. The fourth defendant contends that the plaintiff has acknowledged that his claims are statute-barred, in the plaintiff’s memoranda of 30 October 2006 at [1] and 7 May
2007 at [1] (“some Causes of Actions has [sic] slightly gone outside
the Limitations Act 1950”). And the fourth defendant submits that the
Court should decline to exercise its discretion to nevertheless hear this
cause of
action. In addition, the fourth defendant says that r 187(3)(a) applies
to this cause of action against them because the breach of
confidence was
previously only alleged against the sixth defendant.
[120] The sixth defendant likewise says that the plaintiff is barred from
bringing this cause of action under r 187(3)(a) because
it is a fresh allegation
against the sixth defendant, who was not named in the plaintiff’s original
statement of claim, and
is barred by analogy to s 4 of the Limitation Act
1950. The sixth defendant says that he would be prejudiced if he was
required to defend this allegation given the passing of time.
[121] The fourth defendant also submits that there is no reasonable cause of
action because the plaintiff cannot make out the elements
necessary to establish
breach of confidence. In particular, the fourth defendant submits:
revealed
that it was sent from Palmerston North. More is required to establish that the
information was confidential than merely
a claim that only the plaintiff and the
fourth defendant knew of its existence. Further, there can be no confidence as
to the disclosure
of an iniquity (Gartside v Outram), namely allegations
about taxi drivers;
b) The plaintiff did not have a continued interest in the
information;
c) The information was not imparted in circumstances importing an
obligation of confidence; a person making allegations of criminal
activity must
expect that the entity he provides the information to will investigate those
allegations; and
d) There was no unauthorised use of the information to the
plaintiff’s detriment because the plaintiff’s letter
clearly
indicated that the plaintiff intended the fourth defendant to act on the
information (it concluded: “the ball is in
your court now”) and
natural justice requires the fourth defendant to put the information to Mr Zeb
when investigating serious
allegations made by the plaintiff.
[122] In addition, the fourth defendant says there is no basis for the
damages the plaintiff seeks and repeats the first defendant’s
submissions
in this respect at [89] above.
[123] The sixth defendant adopts the fourth defendant’s submissions to the effect that the cause of action discloses no reasonable cause of action. Furthermore, the sixth defendant says that, as an employee of the fourth defendant, he had a statutory immunity under clause 34, Schedule 1 of the Land Transport Act 1993. This provides:
“No member or employee of the [Land Transport Safety] Authority shall be personally liable for any liability of the Authority, or for any act done or omitted by the Authority, or by the Director or any other employee of the Authority in good faith in pursuance or intended pursuance of the functions or powers of the Authority or of the Director.”
[124] The sixth defendant says that this immunity was continued under clause 34, Schedule 1 of the Land Transport Act 1998; clause 40, Schedule 4 of the Land Transport Management Act 2003; and ss 120 and 121 of the Crown Entities Act
2004. The sixth defendant says that, although the 1993 Act has
since been repealed (s
11 of the Land Transport Amendment Act 2004), the repeal did
not have retrospective effect and the sixth defendant is still entitled to rely
on it for acts and omissions
alleged to have been committed prior to the
repeal.
[125] The sixth defendant maintains that he has been an employee of the
fourth defendant at all material times to this proceeding,
that he was acting
pursuant to those powers and did not act in bad faith. He therefore submits that
this cause of action –
and the fifth and fourteenth causes of action
– should be struck out as untenable under r 186(a) of the High Court
Rules because the sixth defendant cannot be sued in person.
[126] I am satisfied that this cause of action is not tenable against the
first defendant on the basis that the first defendant has
no responsibility for
the actions of the fourth or sixth defendants and there is no suggestion that
Immigration New Zealand was involved.
As such, I will strike out this cause of
action against the first defendant.
[127] In addition, for the reasons given under the first cause of action, I
am satisfied that this cause of action is also precluded
as against the first
defendant by s 4 of the Limitation Act 1950. The cause of action clearly
accrued when Mr Zeb informed the plaintiff that he knew of the plaintiff’s
disclosure of the information
and was first raised against the first defendant
in the 5 June 2007 amended statement of claim. Therefore, so far as this cause
of
action is based on tort or contract, s 4(1)(a) provides a statutory
bar. Again, for the same reasons as given above (at [90]
to [96]) I am also
satisfied that the statutory bar applies by analogy to the equitable claims made
in the cause of action, and I
further find that r 187(3)(a) of the High Court
Rules applies to preclude the inclusion of this cause of action in the
amended pleadings against the first defendant.
[128] It is not at all clear in the original 30 October 2006 statement of claim whether the cause of action is being pleaded against the sixth or fourth defendant. In any event, the cause of action accrued in May 2000 and was thus out of time before the
original statement of claim was filed. Section 4 of the Limitation Act
1950 applies – directly and by analogy – to bar the cause of
action against the fourth and sixth defendants as well. I cannot
be satisfied
that r 187(3)(a) applies to prevent the cause of action being pleaded against
the fourth and/or sixth defendants in
the amended pleadings, but, on my other
findings, it is unnecessary to decide this point.
[129] Nor, do I find it necessary to comment on the remaining arguments of
the defendants. However, for the sake of completeness,
I record my view on these
in the following way.
[130] First, I am satisfied that this is not a tenable cause of action on any
of the four alternative heads. As for the alleged confidential
information
(which is, again, the Zeb letter and envelope, as opposed to the plaintiff being
the informant), I find that the only
reason the plaintiff could have
communicated the information was for the fourth defendant to use it to
investigate the allegations
made. This required the fourth defendant to disclose
the allegations to Mr Zeb as a matter of natural justice. Thus, I am satisfied
that the information was not communicated in circumstances importing an
obligation of confidence precluding the fourth defendant
from doing this and,
further, that the disclosure which the first defendant made was
authorised.
[131] Similarly, again the pleadings fall far short of indicating that there
was a contract (or actionable ‘promise’)
between the plaintiff and
the fourth defendant under which the fourth defendant contracted to keep the
information confidential.
Again, this would be contrary to the very reason for
the provision and receipt of the information. Nor do I consider that the
information
here can be properly categorised as “private facts”, or
that the disclosure of the information to Mr Zeb (or to the plaintiff
himself)
could be considered highly offensive to an objective reasonable person, such
that a breach of privacy is tenable.
[132] Lastly, I am also satisfied that the sixth defendant has statutory immunity under clause 34, Schedule 1 of the Land Transport Act 1993. The repeal of this Act was not retrospective and the immunity persists for alleged actions committed prior to the repeal. In any event, the immunity is perpetuated in the succeeding Acts. It is clear that the sixth defendant was an employee of the fourth defendant at all relevant times and that the actions that the plaintiff complains of were undertaken in
pursuance of the functions or powers of the Land Transport Safety Authority
(now Land Transport New Zealand). In addition, there
is nothing in the
pleadings to indicate that the sixth defendant acted other than in good faith.
Therefore, on this ground too, this
cause of action is to be struck out as
against the sixth defendant.
Fifth Cause of Action (Negligence)
[133] As pleaded on 5 June 2007, this cause of action was also pleaded
against the first defendant. However, as the first defendant
was not named in
the 8 October 2007 statement of claim, I consider it unnecessary to consider the
first defendant’s arguments
on this cause of action.
[134] The fourth defendant again submits that this cause of action accrued in
May
2000. It was only pleaded in the 5 June 2007 amended statement of claim and
is therefore an abuse of process because it is statute-barred
by operation of s
4(1)(a) of the Limitation Act.
[135] Secondly, the fourth defendant says that this cause of action
discloses no reasonable cause of action because:
a) The fourth defendant did not owe the plaintiff any duty of care;
the plaintiff voluntarily divulged incriminating activity
of a criminal
nature to a public body and tasked it to take the matter further;
b) As there was no duty, there can be no breach;
c) The plaintiff has failed to specify the damages he has suffered as
a result of the alleged act and there is no basis for
exemplary damages;
d) The plaintiff clearly intended that the fourth defendant would act
on the information and, as a matter of natural justice,
this required the fourth
defendant to put the information to Mr Zeb. The information was disclosed only
to the accused and for the
very purpose that the plaintiff supplied it (to
investigate the allegations);
e) The plaintiff’s allegation that the fourth defendant deliberately showed confidential information to Mr Zeb contradicts his claim in
negligence because negligence is not a deliberate act. Similarly, the other
mental elements alleged – malice, lack of good faith,
unreasonably and
unlawfully – do not form part of the tort of negligence either;
and
f) The plaintiff names the fourth defendant as a party to the
negligence allegations but makes neither general nor specific
allegations of
negligence against it.
[136] Here, again, the sixth defendant adopts the fourth’s
defendant’s submissions to the effect that the cause of action
is an abuse
of process, constitutes a fresh cause of action that is statute-barred (under r
187(3)(a)) and discloses no reasonable
cause of action.
[137] The sixth defendant says again, that he was not accused of
breach of confidence or negligence in the plaintiff’s
original statement
of claim and that the plaintiff is now barred from bringing this cause of action
under r 187(3)(a), and that the
sixth defendant would be prejudiced if he was
required to defend this allegation given the passing of time.
[138] For the reasons already stated, I accept the Limitation Act arguments
and would strike out this cause of action on this basis.
I further accept that r
187(3)(a) applies and precludes the amended pleadings alleging this cause of
action against both defendants.
[139] For the sake of completeness, I note also that I am not persuaded that
a public authority – or its employee – owes
a duty of care to
persons merely because they decide to impart information to it. Nor am I
satisfied that if such a duty did exist,
the actions of the fourth defendant
here would have breached it. The fourth defendant used the information for the
purpose for which
it was provided and natural justice required that the
accusations be put to Mr Zeb. As such, it is my view that there is no tenable
cause of action here.
[140] Lastly, with respect to the sixth defendant, the statutory immunity discussed above [123] to [125] and [132] likewise applies to bar this cause of action.
[141] Therefore, again, I will strike out this cause of action as against all
of the named defendants.
Sixth Cause of Action (Abuse of Process/Misfeasance in a Public
Office)
[142] Like the plaintiff’s fifth cause of action, this cause of action
was pleaded against the first defendant in the 5 June
2007 amended statement of
claim but not in the 8 October 2007 statement of claim, and so I consider it
unnecessary to consider the
first defendant’s arguments on this
point.
[143] First, the fourth defendant submits here that the plaintiff is attempting to go behind the findings of the District Court on 4 April 2001, in another forum, six and a half years after the judgment was issued. The fourth defendant says that the Court did not at any point identify actions of the fourth defendant that could amount to misfeasance, and it notes that the Court explicitly found that the fourth defendant had acted sensibly in suspending the plaintiff and maintaining this suspension (see Chatha v Director Land Transport Safety Authority DC PMN NP735/00 4 April
2001 at [12], [13] and [28]). It is the fourth defendant’s submission
that, in the interests of fairness to the fourth defendant,
finality and
certainty, the plaintiff ought to be barred from bringing this cause of action
so long after the event.
[144] The fourth defendant says that the rule in Henderson v Henderson
(1843) 3
Hare 100, as cited in Barrow v Bankside Agency Ltd [1996] 1 WLR 257,
260 applies
– that, in the absence of special circumstances, where parties have
brought their whole case before a court so that it can be
conclusively decided
(subject to any appeal), the parties cannot thereafter return to the court to
advance other arguments, claims
or defences that they could have raised at the
first instance. This rule is based on the desirability of finality and avoiding
oppression
by successive suits when one would suffice: Barrow v Bankside
Agency Ltd. The fourth defendant says that the plaintiff could have raised
misfeasance in 2001 before the District Court but did not. Moreover,
the
District Court’s findings undermine the claim of misfeasance. Therefore,
the fourth defendant says that the plaintiff is
estopped from now raising this
allegation.
[145] Secondly, the fourth defendant says that the cause of action should also be struck out on the grounds that it is an abuse of process. The fourth defendant
maintains that the fourth and sixth defendants were not properly served with the plaintiff’s (original) statement of claim and that they did not receive it until 21
December 2006. The fourth defendant alleges that the plaintiff
“appears to have a history in this proceeding of pre-dating key
court documents that are served sometime after that
date, in order to give
the appearance of complying with the High Court Rules and the Court’s
directions”. The fourth defendant submits that, although r 127 of
the High Court Rules requires prompt service of the statement of claim
and notice of proceedings, the fourth defendant was not notified until 2 months
after the date of the statement of claim and notice of proceedings. The fourth
defendant also repeats its submissions that the plaintiff
has previously
acknowledged that his claims are statute-barred (see above at [119]) and that
the Court should not exercise its discretion
to hear the cause of action and, in
so doing, allow the plaintiff a benefit by the back door he could not otherwise
obtain.
[146] With respect to the 10 May 2001 decision, the fourth defendant submits
that the letter sent to the plaintiff revoking the plaintiff’s
licence was
sent automatically because the plaintiff had not operated a taxi for 2 years.
The fourth defendant says that, apart from
bald assertions, the plaintiff has
provided no evidence to substantiate his claim with respect to this
decision.
[147] The rule in Henderson v Henderson is stated by Sir James Wigram
VC (at 115)
as follows:
“...where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
[148] This rule has been followed by New Zealand Courts in, for example,
Bank of New Zealand Ltd v Savril Contractors Ltd [2004] NZCA 4; [2005] 2 NZLR 475 (CA)
at [109]; Tower Insurance Ltd v Disputes Tribunal at Nelson (2000) 14
PRNZ 338; and Page & Anor v BMH Ltd HC HAM CIV-2007-419-001584 19
February 2008.
[149] However, Johnson v Gore Wood & Co [2000] UKHL 65; [2001] 1 All ER 481 (cited
by the New
Zealand Court of Appeal in Commissioner of Inland Revenue v Bhanabhai
[2007] 2
NZLR 478) indicates a slightly more restrictive approach to the rule. Lord Bingham commented at 498-499:
“Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”
[150] Judge Lovegrove in the District Court comprehensively considered
the November 2000 actions of the fourth defendant which
are said to give rise to
the first allegation in this cause of action. At no stage did the plaintiff seek
to argue that the fourth
defendant’s conduct might amount to abuse of
process or misfeasance in a public office. As such, I consider that the rule in
Henderson v Henderson is clearly apposite. Moreover, even on the more
restrictive approach outlined in Johnson v Gore Wood & Co, in my view
this cause of action amounts to unjustified harassment of the fourth defendant.
The plaintiff is trying to re-litigate
an issue that has already been decided
over 7 years ago (and for which the plaintiff has already received relief). It
is clearly
in the interests of fairness, finality and certainty that this should
not be allowed.
[151] Additionally, I am of the view that there is nothing to this cause of
action. Judge Lovegrove essentially approved of the actions
of the fourth
defendant in November 2000 (see Chatha v Director Land Transport Safety
Authority DC PMN NP735/00 4 April 2001 at [12], [13] and [28]). His Honour
made no criticisms of the fourth defendant’s actions, let alone
gave any
indication that there had been an abuse of process or any misfeasance in public
office. I am likewise satisfied that the
fourth defendant was entitled to
suspend the fourth defendant in November 2000 in the interests of the safety of
the public utilising
taxi services.
[152] With respect to the second revocation, in May 2001, I agree with the
fourth defendant that, despite multiple amended statements
of claim, the
plaintiff has provided no evidence or particulars to substantiate his claim that
this was an abuse of process or misfeasance.
[153] On the issue of strike out for limitation reasons, damage caused to the plaintiff is an element of this tort: Garrett v Attorney-General [1997] 2 NZLR 332 (CA). Therefore, the cause of action arose from the date the damage occurred: Invercargill City Council v Hamlin [1996] 1 NZLR 513 (PC). Where the alleged damage is economic loss, the damage occurs when the economic depreciation in value is recognised or ought to have been recognised by a reasonable person (Invercargill City Council v Hamlin), and where there is a continuance of damage, a fresh cause of action arises each time damage is caused (Moot v Crown Crystal Glass Ltd [1976] 2
NZLR 268, 272-3). As such, determining what alleged damage could ground a
timely cause of action here would require more detailed
consideration of the evidence. Given my findings above, I do not,
however,
need to express a view on this limitation ground advanced by the fourth
defendant for strike out here.
Tenth Cause of Action (Negligence)
[154] Once again, this cause of action was pleaded on 5 June 2007 against the
first defendant but not in the 8 October 2007 statement
of claim, and so it is
unnecessary to consider the first defendant’s arguments on this point. For
the sake of certainty, I
will also formally strike out this cause of action
against the first defendant. It remains, however, against the third
defendant.
Eleventh Cause of Action (Injurious Falsehood)
[155] Injurious falsehood is a tortious action for written or oral
falsehoods, published maliciously to a third person, which are
calculated in the
ordinary course of things to produce special damage, and do produce such damage:
Laws of New Zealand, Torts at 321, citing Customglass Boats Ltd v
Salthouse Brothers Ltd [1976] 1 NZLR 36. Special damage is not required
where publication is likely to cause the plaintiff to suffer pecuniary loss: s
5(1)
of the Defamation Act 1992; Customglass Boats Ltd v Salthouse
Brothers Ltd.
[156] Malice is used here in the sense of an “intent to injure without just cause or excuse” (Joyce v Motor Surveys Ltd [1948] Ch 252; Customglass Boats Ltd v Salthouse Brothers Ltd) or “publication with an indirect or dishonest motive” (Customglass Boats Ltd v Salthouse Brothers Ltd citing Balden v Shorter [1933] Ch
427).
[157] The fifth defendant says that the plaintiff has no prospect of success on the evidence he relies on to substantiate this claim. The fifth defendant first denies that any statements in the Topping report (on which this cause of action is said to rely) were false. In particular, the fifth defendant says that the material information, that the plaintiff was carrying knives in his taxi, is not denied by the plaintiff and was found to be true.
[158] The fifth defendant further submits that, with respect to the
element of
‘malice’, the plaintiff cannot establish that the fifth
defendant acted in bad faith, with a dishonest motive or without just cause or
excuse.
Instead, the fifth defendant states that the reason the police arrested
and prosecuted the plaintiff was because he was in fact carrying
knives in his
taxi.
[159] The fifth defendant also says that the Topping report was an
internal memorandum, sent (only) internally to police
intelligence (because, the
fifth defendant submits, of very real concerns for public safety as a result of
the plaintiff carrying
weapons in his taxi while on duty). The fifth defendant
says that, as a police officer and under a police officer’s oath to
uphold
the law (pursuant to s 37 of the Police Act 1958), he was obliged
to forward that information to police intelligence so that the police could
make proper inquiries. He emphasises that the Topping
report was not intended
for release to the public at large. (Indeed, the fifth defendant submits that
it is “very likely”
that the plaintiff gained access to the Topping
report as part of the disclosure provided by the prosecution in relation to the
criminal
charges against the plaintiff.)
[160] Moreover, the fifth defendant says that there was no causative link
between the fifth defendant’s actions and the plaintiff’s
claimed
loss: the police did not arrest and charge the plaintiff because of the fifth
defendant’s statements, and nor did the
fifth defendant’s statements
help the second defendant (the manager of Taxis Gold & Black). The fifth
defendant says that
the statement that the plaintiff operated a business
called PAK Kiwi was clearly included in the memorandum to alert the police
as to
where they might find the plaintiff.
[161] Lastly, the fifth defendant submits that a party who obtains documents on discovery is not entitled to use those documents except for the purpose of the proceeding, and that the documents must not be used for an improper purpose (citing McGechan on Procedure at HCR 293). The fifth defendant submits that what the plaintiff is seeking to do here is analogous to the situation which occurred in Riddick v Thames Board Mills Ltd [1977] 3 All ER 677 (CA), where it was held to be an abuse of process of the court for the plaintiff to bring a subsequent action of defamation on the basis of a memorandum obtained on discovery in an earlier action for wrongful arrest and imprisonment. The fifth defendant says that the plaintiff
cannot use documents obtained in a separate proceeding to support his claim
for injurious falsehood (and conspiracy, in the fourteenth
cause of action) in
the present proceeding.
[162] Although not addressing the cause of action specifically, the plaintiff
in his memorandum of 21 April 2008, states in response
to the Topping report
that the following statements were false or misleading:
a) That he had made several threats to kill his relatives;
b) That he had applied for a firearms licence in the context of the
dispute with his family (the plaintiff says he did so in
order to take
possession of firearms he already owned in Pakistan, that could no longer be
kept for him by relatives);
c) That the fifth defendant was informed about the knives in his taxi
by the general public (the plaintiff says he believes
it was instead via a
tip-off from the plaintiff’s relatives); and
d) That the plaintiff operated a business called PAK Kiwi and imported
cheap labour from Pakistan.
[163] In addition, the plaintiff submits that:
“Mr Topping’s report was not given to me as part of charge
disclosures or any accidental disclosure, but when it came
to my information I
applied for its disclosure. On the contrary...police did not make proper
disclosure to me to defend my charges...”
[164] I accept the fifth defendant’s arguments that the pleaded facts fall well short of establishing the tort of injurious falsehood such that the pleadings disclose no tenable cause of action. In particular, in my view no reasonable argument exists to the effect that the statements in the Topping report were published with malice to a third person. Instead, they were communicated internally in order to protect the public safety and uphold the law. There is nothing to suggest that any incorrect information that may be in the report was deliberately so. The plaintiff’s subsequent
arrest and any loss arising was clearly caused by the plaintiff’s own
commission of the offence, not the statements made in
the Topping
report.
[165] Additionally, so far as the plaintiff became aware of the Topping
report via discovery in the criminal proceedings – which,
as far as I can
determine, the plaintiff’s submissions of 21 April 2008 seem to accept
– I am also satisfied that it
is an abuse of process for the plaintiff to
seek to use the report to found this cause of action.
[166] Therefore, I will also order that this cause of action be struck out as
against the fifth defendant.
Twelfth and Thirteenth Causes of Action: Defamation and
Negligence
[167] The fifth defendant says that these causes of action are now
statute-barred because they were not raised until the new 8 October
2007 amended
statement of claim.
[168] The complained of actions (the alleged publication of the Topping
report)
occurred in late October or early November 2000. They were first raised in
October
2007, approximately seven years later. Therefore, for the reasons given above
(see [89] to [98]), I find that this cause of action
is also barred by both s 4
of the Limitation Act 1950 and r 187(3)(a) of the High Court Rules
and I will strike it out as against the fifth defendant.
Fourteenth Cause of Action
[169] To establish the tort of conspiracy to injure, the plaintiff must prove
an agreed combination of two or more persons carried
into effect; a predominant
purpose on the part of the combination to injure the plaintiff (as opposed to
advancing their own self-interest);
resulting damage to the plaintiff; and that
the defendant subjectively intended to cause damage to the plaintiff: PTY
Homes Limited v Shand and Others [1968] NZLR 105.
[170] Alternatively, to establish the tort of conspiracy by unlawful means, the plaintiff must prove a “combination of persons who act in concert so as to intentionally injure the plaintiff in his trade or other legitimate interests by an act
which is independently unlawful”: SSC & B: Lintas New Zealand
Ltd v Murphy [1986] 2 NZLR 436 at 461. Here, it is irrelevant that the
conspirators predominant purpose was not to injure the plaintiff (for example,
if their dominant purpose was to further their own self-interest), provided that
it was a purpose, the conspirators used unlawful
means, and actual injury is
caused to the plaintiff: Ware and De Freville Ltd v Motor Trade Association
[1921] 3 KB 40 (CA), cited in SSC & B: Lintas New Zealand Ltd v
Murphy.
[171] The defendants apply to strike out this conspiracy cause of action on
the grounds that it is statute-barred and thus an abuse
of process (r 186(c));
that it shows no reasonable cause of action (r 186(a)); and that it is
scandalous and likely to cause embarrassment
(r 186(b)).
[172] The first and fourth defendants say, again, that this cause of action
is statute- barred under s 4 of the Limitation Act 1950, in that many of
the actions lying at the heart of the alleged conspiracies (at least, the first
to sixth causes of action) occurred
more than 6 years ago, and that the
allegations cannot be raised in an amended statement of claim by virtue of r
187(3)(a) of
the High Court Rules. The first defendant and fourth
defendants say that some of the other causes of action have so few particulars
that it is impossible
to determine whether they are affected by limitation
issues. The first defendant and fourth defendants also say that the plaintiff
has failed to establish any act of conspiracy within the last 6 years. And
again, the first defendant and fourth defendants say that
the Court should not
exercise its discretion to hear this cause of action as the plaintiff could not
claim the benefit by the front
door. The fourth defendant also notes that the
plaintiff was aware that this cause of action existed in 2000, and that the
plaintiff
elected to bring it before the courts in 2005, within the statutory
timeframe. The sixth defendant adopts the fourth defendant’s
submissions
here.
[173] Likewise, the second defendant submits that causes of action 1 to 6 and
11 are statute barred by operation of the Limitation Act 1950 and so any
alleged conspiracy to bring them about must also be statute-barred.
[174] In addition, the fourth defendant again relies on issue estoppel and
the rule in
Henderson v Henderson. It submits that in February 2005 the plaintiff filed an
appeal from the 18 January 2005 decision to revoke his passenger service
license number (CIV 2005-054-117) and that the first ground
of appeal was an
alleged conspiracy between the fourth defendant and members of the Palmerston
North police force. The fourth defendant
submits that the same ground appears to
have been raised in another notice of appeal dated 10 April 2005, and that the
appeal was
subsequently abandoned by notice dated 1 December 2005 (see exhibit
JTH07 of the Affidavit of Mr John Hutton dated 12 October 2007).
The fourth
defendant says that this notice discloses that the plaintiff had
carefully considered the issue of the conspiracy
but that the plaintiff
nevertheless abandoned the claim. Therefore, it is the fourth defendant’s
submission that the plaintiff
has had an opportunity to exercise his legal
rights and has elected not to pursue them; and should now, in the interests of
fairness,
finality and certainty, and pursuant to the rule in
Henderson v Henderson, be barred from bringing this cause of action so
long after the event. The sixth defendant also adopts this submission.
[175] Secondly, the first, fourth and sixth defendants say that the cause of
action is untenable (per r 186(a)) because:
a) the plaintiff has failed to particularise whether he is
alleging a conspiracy to injure or a conspiracy to use
unlawful means;
b) the plaintiff has failed to meet his onus to prove the elements of
the tort;
c) only one defendant is named in certain causes of action (namely,
causes of action 1-3 and 5-10) and, as a matter of law,
they cannot have
conspired with themselves; and
d) conspiracy is a deliberate tort and so the defendants
cannot have conspired to commit negligence (causes of action
2, 5, 10 and
12).
[176] The first, second, fourth and sixth defendants also submit that they were not involved in any or certain of the alleged causes of action grounding the alleged conspiracy and thus that the statement of claim raises no tenable allegation of conspiracy with respect to these causes of action against them. In this respect:
a) The first, second, fourth and sixth defendants identify the causes
of action for which they are not named as a defendant
(I include here those
causes of action where the plaintiff has removed named defendants in the 8
October 2007 amended statement of
claim);
b) The first, second, fourth and sixth defendants say that they do not
have a role and were not involved in any law enforcement
or prosecution
activities and therefore cannot have conspired in the seventh, eight, ninth and
eleventh causes of action. The second
defendant says that, not having any role
in law enforcement, he cannot have conspired in the sixth cause of action
either;
c) The first defendant says that the fourth cause of action
involves matters between the plaintiff and the fourth
and sixth defendants, and
that the first defendant has no dealings with the fourth and sixth
defendants;
d) The second, fourth and sixth defendants say that they do not have a
role and were not involved in any immigration related
matters and therefore
cannot have conspired in the first, second and tenth causes of action.
Additionally, the second defendant says
that his lack of involvement in
immigration matters also means he cannot have conspired in the fourth cause of
action; and
e) The second defendant says that he did not owe a duty of care to the
plaintiff and did not disclose confidential information
and therefore cannot
have conspired in the fifth cause of action.
[177] The fifth defendant says that this claim is entirely without merit and has no prospect of success against the fifth defendant. He cites authorities that the tort of conspiracy is severely limited by the courts’ wide interpretation of “just cause or excuse” – that even if there is an intention to harm the plaintiff, the defendants will not be liable if their primary purpose was legitimate or they acted in pursuance of a justifying self-interest (Crofter Hand Woven Harris Tweed Co v Veitch [1942] AC
435 (HL)). The fifth defendant says that an official acting in bona fide discharge of
his/her duty will not be liable for conspiring with his/her superiors: PTY
Homes Ltd v
Shand [1968] NZLR 105, 113.
[178] The fifth defendant says that the plaintiff’s claim must fail here because the fifth defendant was clearly acting with just cause or excuse in sending an internal police memorandum to Police Intelligence that the plaintiff was carrying knives in his taxi, whilst acting in the course of his duty as a police officer. The fifth defendant says that his primary purpose – to protect the public safety and uphold the law – was legitimate; that he had a clear bona fide justification for his actions (preventing injury to the public); and that he had no intention of causing injury to the plaintiff or anyone else. The fifth defendant reiterates that his oath under s 37 of the Police Act
1958 obliged him to act as he did.
[179] The sixth defendant repeats his submissions to the effect that he has
statutory immunity under clause 34, Schedule 1 of the
Land Transport Act
1998.
[180] Lastly, under r 186(b), the first, fourth and sixth defendants also say
that the plaintiff has failed to provide any discovery
to back up these
allegations and so they remain baseless scandalous allegations and should be
struck out. The second defendant concurs
that these allegations of conspiracy
are scandalous and an abuse of the Court’s process.
[181] For the reasons given above, I am satisfied that the first, fourth, fifth, twelfth and thirteenth causes of action are statute-barred by s 4 of the Limitation Act 1950. Any conspiracy based on these causes of action – whether a conspiracy to injure effected by the same actions or a conspiracy by adopting these unlawful means – clearly accrues at or about the same time as the causes of action. Therefore, so far as the fourteenth cause of action relies on the statute-barred causes of action, I find that it too is statute-barred and should be struck out as an abuse of process. In addition, I note that other causes of action (such as the third cause of action) are also out of time, although a Limitation Act 1950 argument may not have been specifically pleaded by the defendants. In addition, as submitted by the first defendant, certain of these other causes of action may well lack the necessary particulars to determine their timeliness.
[182] With respect to the submissions based on the rule in Henderson v Henderson, I first note that this rule cannot be cited on behalf of the sixth defendant. As Lord Bingham said in Johnson v Gore Wood & Co (adopted in Commissioner of Inland Revenue v Bhanabhai at [61]), the rule “cannot sensibly be extended to the case where the defendants are different. There is then no question of double vexation” (at
526).
[183] With respect to the fourth defendant, it is clear that the rule in
Henderson v Henderson applies “not only to points upon which the
Court was actually required by the parties to form an opinion and pronounce a
judgment,
but to every point which properly belonged to the subject of
litigation”. However, here, the fourth defendant seeks to apply
the rule
where there was no previous litigation, merely a notice of appeal from the 18
January 2005 decision to revoke his passenger
service license number which was
subsequently abandoned. I can find no authority that stretches the rule to
preclude matters that
could have been litigated but, for some reason, no
litigation was in fact brought.
[184] However, I am satisfied that the pleadings show no tenable cause of
action, in terms of either conspiracy tort. First, given
my findings that the
preceding causes of action are not tenable, there are no extant unlawful means
on which to ground a conspiracy
by unlawful means. Also, the causes of action
alleging negligence are clearly inconsistent with the intent required to
establish
conspiracy.
[185] Nor has the plaintiff pleaded facts or particulars establishing a combination of persons acting in concert. The majority of the causes of action (at least since the 8
October 2007 statement of claim) name just one defendant. Therefore, to establish a combination, the plaintiff’s pleadings would need to point to two or more of the defendants agreeing to and effecting the discrete actions underlying the causes of action as some sort of wide-spread concerted attack on the plaintiff. In my view there is simply no basis in the pleadings to establish this. The immigration matters pleaded against the first defendant are distinct from the contract matters pleaded against the second defendant. Both are distinct against the confidentiality, licence and process matters pleaded against the fourth defendant, and the law enforcement matters pleaded against the third defendant are distinct again. The fifth and sixth defendants are implicated in the matters pleaded against the third and fourth defendants
respectively, but only because of their status as officers of those defendants. Therefore they will not be liable for conspiring with their superiors/employers merely by acting in bona fide discharge of their duties: PTY Homes Ltd v Shand at
113.
[186] Also, and in particular with respect to the first, third, fourth, fifth
and sixth defendants, the defendants were acting in
furtherance of lawful
functions – and even duties – and I do not consider that the
pleadings show any tenable case that
they were acting with the predominant
purpose of injuring the plaintiff or a subjective intention to do so. I am
satisfied that their
primary purpose was legitimate and they acted with
“just cause or excuse”.
[187] The sixth defendant’s statutory immunity submission also succeeds
here, for the reasons given above (at [132]). I find
that there is no tenable
cause of action that the sixth defendant was acting other than in bona fide
discharge of his duties as an
employee of the fourth defendant
throughout.
[188] Finally, for the sake of completeness, I also note that the
plaintiff’s failure to provide particulars, including the
actual
conspiracy alleged, and his failure to provide discovery, both indicate
that this cause of action could also be struck
out on the basis that it remains
a baseless and scandalous allegation per r 186(b).
[189] On the strike-out applications before the Court, I have found in favour
of the defendants on all the plaintiff’s causes
of action which they have
attacked. As such, I now order that the first, second, third and fourth to
fourteenth causes of action
be struck out as against the first, second, fourth,
fifth and sixth defendants. This leaves only the seventh to fourteenth causes
of
action extant as against the third defendant.
Summary Judgment Applications
[190] The second, fourth, fifth and sixth defendants also apply for the Court
to give summary judgment against the plaintiff on the
basis that none of the
causes of action in the plaintiff’s statement of claim can succeed: r
136(2) of the High Court Rules.
[191] Because I have found in favour of the second, fourth, fifth and sixth defendants on their applications to strike out, it is not necessary for the Court to consider their
summary judgment applications here.
Security for Costs
[192] The first, third, fourth and sixth defendants have sought an order for
security for costs against the plaintiff. Given
my findings on the
strike-out applications above, it is only necessary to consider the application
of the third defendant.
[193] An order for security for costs may be made against the plaintiff if,
first, the defendant(s) satisfy the Court that there is
reason to believe that
the plaintiff will be unable to pay the defendant’s costs if the plaintiff
is unsuccessful, and secondly,
if the Court thinks it fit in all of the
circumstances - r 60 of the High Court Rules.
[194] More than a difficulty in payment (such that the plaintiff may need to
make some financial rearrangement: NZ Kiwifruit Marketing Board v Maheatataka
Cool Pack Ltd (1993) 7 PRNZ 209) is required to meet the threshold test of
the plaintiff’s impecuniosity. However, where the plaintiff fails
to
disclose his/her financial circumstances, this may give rise to an adverse
inference against their ability to meet costs: Arklow Investments Ltd v
MacLean (1994) 8 PRNZ 188, 191. The Court will take into account a
plaintiff’s sworn statement that he/she will be able to meet costs,
but
this will not be decisive: Nikau Holdings Ltd v BNZ (1992) 5 PRNZ 430,
436.
[195] Once the threshold is met, the Court will balance the interests of the plaintiff in access to the Court to bring a bona fide claim, and the defendant’s interests in not being drawn into unjustified litigation or unfairly pressured by the probability of being unable to recoup his/her costs: A S McLachlan Ltd v MEL Network Ltd (2002)
[2002] NZCA 215; 16 PRNZ 747 (CA); Minhinnick v Treaty of Waitangi Fisheries Commission
[2005] NZHC 79; [2006] NZAR 203 at [45].
[196] The discretion is to be exercised on the basis of a “careful assessment of the circumstances of the particular case” and there is no fixed check-list of principles from previous cases (A S McLachlan Ltd v MEL Network Ltd [2002] NZCA 215; (2002) 16 PRNZ 747 (CA) at [13] and [14]). However, generally relevant factors can be found in Nikau Holdings Ltd [1992] 5 PRNZ 430 and Bell-Booth Group Ltd v Attorney-General [1986] 1 PRNZ 457, 466 (CA). These include:
a) The Court’s assessment of the merits of the plaintiffs’
case, so far as is possible to determine at this early
stage (ie. whether
ordering security might prevent the plaintiff from bringing a bona fide
claim);
b) The course which the proceedings have taken;
c) Any delay by an applicant in applying for security for costs;
d) Whether the litigation is “public interest" litigation”
;
e) Any “reasonable probability” that the applicant has
caused the impecuniosity of the plaintiff by the very acts
on which the
plaintiff brings the proceedings;
f) The means of associated persons of the plaintiff (such as
interested shareholders and creditors) and their willingness
and ability to
assist in providing the security; and
g) Whether the plaintiff is legally-aided.
[197] On the initial question of impecuniosity of the plaintiff, in the
present case the plaintiff has failed entirely to disclose
any financial details
or to provide to the Court any indication as to his financial position to show
his ability to meet an adverse
award of costs if he was unsuccessful in his
present claim.
[198] Therefore, there can be no doubt in my view that the
threshold test of impecuniosity has been met here.
[199] Next, there can be no question, in my view, that these proceedings
brought by the plaintiff might contain any element of “public
interest” litigation. Further, the course which these proceedings
have taken has been tortuous to say the least. The plaintiff is now on his
second amended statement of claim and he has on numerous occasions failed to
comply with timetable orders made by this Court.
[200] Effectively, no submissions were made by the plaintiff with respect to this security for costs application brought against him. There is no suggestion here that the plaintiff’s impecuniosity has been caused by acts of the third defendant with respect to matters of which he complains.
[201] Turning now to consider an assessment of the merits of the
plaintiff’s case against the third defendant here, it will
be clear from
the comments made above that a significant number of the causes of action
pleaded by the plaintiff against this defendant
have no merit at all, and the
remaining causes of action are not strong.
[202] In considering the overall necessity to ensure that justice is done as
between the parties here, I am satisfied that this is
an appropriate case for
security of costs to be ordered against the plaintiff in favour of the third
defendant. In my view the
plaintiff’s claim against the third defendant
must be regarded at best as weak and the interests of justice clearly lie here
on the side of the third defendant.
[203] As to quantum, counsel for the third defendant initially
contended that a hearing of 10 days might be required for
this matter and
costs were therefore sought on a Category 2B basis totalling $73,600.00.
[204] Given that many of the plaintiff’s causes of action against other
defendants have now been struck out, there is likely
to be a reduction of
hearing time for any ultimate trial of this matter which proceeds.
[205] That said, in my view a hearing time of 4 days would seem to be appropriate and based upon that, costs on a Category 2B will be calculated at approximately
$29,400.00.
[206] Given this, and given that awards of security generally represent a
proportion only of the likely scale costs to be awarded,
in my view security of
$20,000.00 is appropriate here. An order to this effect will
follow.
Decision
[207] The first, second, fourth, fifth and sixth defendants’
applications to strike out all the causes of action against them
are successful.
Orders to this effect are now made. The proceedings remain in partial
effect as against the third defendant
(seventh to fourteenth causes of
action) only.
[208] An order is made that within a period of twenty working days from the date of this judgment the plaintiff is to give security for costs to the third defendant in the sum of $20,000.00 by paying this sum into Court or by giving, to the satisfaction of
the Registrar, security for this sum.
[209] The defendants have been successful in the applications which are
before the Court and I see no reason why they are not entitled
to costs in the
usual way. Costs are therefore awarded to each of the defendants against the
plaintiff with respect to these applications
on a Category 2B basis
together with disbursements (if any) approved by the
Registrar.
‘Associate Judge D.I. Gendall’
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URL: http://www.nzlii.org/nz/cases/NZHC/2008/2303.html