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Hunter v Attorney-General [2017] NZHC 2767 (10 November 2017)

Last Updated: 6 December 2017

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-Ā-TARA ROHE

CIV-2016-485-250 [2017] NZHC 2767

_{JUDGMENT OF CHURCHMAN J}

Introduction

[1] On 4 October 2017 I gave a judgment striking out four of the plaintiff’s

causes of action and requiring him to replead six causes of action.¹

[2] In a separate minute dated 26 September I invited the parties to make further submissions as to whom was the correct defendant or defendants for these

¹ _{Hunter v Attorney-General [2017] NZHC 2433 at [56]–[58].}

HUNTER v ATTORNEY-GENERAL SUED ON BEHALF OF THE NEW ZEALAND POLICE AND THE MINISTRY OF JUSTICE [2017] NZHC 2767 [10 November 2017]

proceedings, and whether the District Court was the more appropriate venue, the total damages sought being well below the High Court threshold of $350,000.²

[3] I have received written submissions from both parties in relation to the appropriate defendant and venue which I set out below.

Submissions

[4] Counsel for the defendant submitted as follows:

(a) The Commissioner of Police was named original defendant in the statement of claim dated 18 April 2016.

(b) The amended statement of claim dated 1 May 2017 named the “Attorney-General sued on behalf of the New Zealand Police and Ministry of Justice” without the plaintiff having followed the correct procedure to join a defendant.

(c) The only claim against a judicial officer is the complaint against an unnamed Justice of the Peace who allegedly committed the tort of abuse of process in failing to act with “due prudence and diligence”.

(d) Claims in tort against the servants of the Crown acting judicially are barred by subs 6(1) and (5) of the Crown Proceedings Act 1950.

(e) The issuing of a warrant is a judicial process, even where issued by a registrar not a judge.³

(f) The Attorney-General in respect of the Ministry of Justice ought not to be joined as a party.

(g) The total damages sought in the amended statement of claim (for claims in the alternative, taking the largest of the sums claimed) come

² _{Hunter v Attorney-General HC Wellington CIV-2016-485-250, 26 September 2017.}

3. Thompson v Attorney-General [2016] NZCA 215; [2016] 3 NZLR 206, upheld by the Supreme Court in refusing leave in Thompson v Attorney-General [2016] NZSC 134.

to $208,400.

(h) A judge in the High Court may transfer a proceeding to the District Court of his or her own initiative if it is within the District Court jurisdiction and the judge is satisfied that no important question of law or fact is likely to arise in the proceeding.⁴

(i) The current proceeding involves fairly fact-specific challenges to four police search warrants and no important question of law arises requiring the High Court’s input.

[5] Mr Tennet for the plaintiff submitted:

(a) The plaintiff will abide by the Court’s decision as to the correct

defendant.

(b) The plaintiff can replead his claim in relation to the Justice of the Peace (JP) whose warrant of August 2012 is contested and wishes to reserve the right to join the JP as a second defendant.

(c) Judicial officers are not absolutely protected from tortious liability, particularly where, as is alleged here, the JP was so grossly negligent as to be acting outside of his or her jurisdiction.

(d) The High Court is the appropriate jurisdiction as it is more efficient, the matters are important to the plaintiff and Police, and if the JP is added as a party then the High Court must hear the claim.

(e) The plaintiff will abide by the Court’s decision as to jurisdiction.

Law

_{[6] The Crown Proceedings Act 1950 provides:}⁵

⁴ _{District Court Act 2016, s 94.}

⁵ Crown Proceedings Act 1950, s 6.

6 Liability of the Crown in tort

(1) Subject to the provisions of this Act and any other Act, and except as provided in subsection (4A) or (4B), the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject—

(a) in respect of torts committed by its servants or agents;

(b) in respect of any breach of those duties which a person owes to his or her servants or agents at common law by reason of being their employer; and

(c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession, or control of property:

provided that no proceedings shall lie against the Crown by virtue of paragraph (a) in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his or her estate.

...

(5) No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him or her, or any responsibilities which he or she has in connection with the execution of judicial process.

[7] Section 94 of the District Court Act 2016 provides:

94 Transfer of proceeding from High Court to District Court

(1) A Judge of the High Court may, on the application of a party to a proceeding commenced in the High Court, transfer the proceeding to the District Court if—

(a) an agreement under section 81 applies to the proceeding; or

(b) the subject matter of the proceeding is within the jurisdiction of the District Court.

(2) A Judge of the High Court may, on the Judge’s own initiative, order the transfer to the District Court of a proceeding commenced in the High Court if—

(a) the subject matter of the proceeding is within the jurisdiction of the District Court; and

(b) the Judge is satisfied that no important question of law or fact is likely to arise in the proceeding.

Analysis

[8] The Attorney-General on behalf of the New Zealand Police is the correct first defendant. It is unacceptable that the plaintiff purported to change the identity of the defendant without following the correct procedure.

[9] In relation to the actions of the anonymous JP and the issue of the warrant under s 198 of the Summary Proceedings Act 1957 (SPA) the Court accepts that immunity from suit for a JP is not absolute and that the actions of a JP can conceivably be sued upon, albeit in very limited circumstances.

[10] The Crown Proceedings Act 1950 (CPA) provides that the Crown may be liable for the tortious actions of its servants. However “servant” does not include a Judge, District Court Judge, Justice of the Peace, Community Magistrate or other judicial officer.⁶ Further to this, nothing done or omitted during the discharge of responsibilities of a judicial nature can form the basis of a proceeding against the Crown.⁷

[11] The first warrant was dated 16 August 2012. In the first statement of claim the plaintiff pleaded that the warrant was defective and invalid.

[12] In the amended statement of claim a year later, the plaintiff pleaded that when a Geraldine-based JP signed the search warrant dated 16 August 2012 he or she failed to act with “due prudence and diligence as the allegations in the warrant were such that the warrant should not have been issued by the judicial officer”.⁸ This pleading is hidden in a claim for abuse of process by the New Zealand Police.

[13] It is the only mention of the actions of the JP. The declaration was sought in the amended statement of claim that the “Defendant” (allegedly being the Attorney- General on behalf of both the New Zealand Police and the Ministry of Justice) acted

_{in a manner which constituted an abuse of process.}

⁶ _{Crown Proceedings Act 1950, s 2(1).}

⁷ _{Crown Proceedings Act 1950, s 6(5).}

⁸ Amended statement of claim, 1 May 2017 at [23(e)].

[14] This pleading is inadequate. The plaintiff makes clear throughout the rest of the amended statement of claim that his complaint is with the New Zealand Police; in all other instances the actions attributed to the “Defendant” are those undertaken by the Police. The actions taken by the JP were in no way distinguished as a separate cause of action. No declaration was pleaded or sought against the JP, nor any damages or other relief.

[15] As I have already indicated, the plaintiff has an adequate basis to plead that the warrant was invalid and seek remedies under the NZBORA. This is the plaintiff’s strongest argument in relation to the process by which the Police obtained the warrant.

[16] No cause of action as pleaded currently lies against the anonymous JP. This is for the following reasons:

(a) Section 193 of the Summary Proceedings Act 1957 as it read in 2012 provided:

No action shall be brought against any Justice or Community Magistrate for any act done by him, unless he has exceeded his jurisdiction or has acted without jurisdiction.

(b) This section was repealed in 2013 and near identical wording was inserted into the Justices of the Peace Act 1957 at s 4B, preserving the immunity for JPs:

No proceeding may be commenced against any Justice for any act done by him or her, unless he or she has exceeded his or her jurisdiction or has acted without jurisdiction.

(c) The amended statement of claim alleges that the judicial officer acted

negligently (“without due prudence and diligence”).

(d) An act will only exceed jurisdiction when it involves “gross negligence” or “bad faith”.⁹ This is a high, but not impossible bar and

_{is something not currently pleaded.}

⁹ Harvey v Derrick [1995] 1 NZLR 314, (1994) 12 CRNZ 47 at 54.

[17] Therefore, on the pleadings, there currently is no basis upon which the JP

could be found liable.

[18] The memorandum of Mr Tennet indicates that the plaintiff is contemplating amending his pleadings to allege such “gross negligence” on behalf of the JP, being such a negligent decision as to amount to the JP exceeding his or her jurisdiction.

[19] Mr Tennet also indicated he and his client would be influenced by the Court’s dicta on this issue. Beyond responding to an application for a strikeout it is not the Court’s role to draft proceedings for a party. I confirm that it remains open to the plaintiff to amend his pleadings to join the JP and allege the JP’s decision in August 2016 exceeded or was made without jurisdiction.

[20] However the current facts pleaded do not provide any basis for a finding their decision was made without jurisdiction. Further this cause of action will face a very high evidential threshold. It is difficult to see what such a pleading would add to arguments regarding the alleged invalidity of the warrant and the method by which it was executed by the Police.

[21] Contrary to the assertions of Mr Tennet, there is no basis for a cause of action in trespass or abuse of process against the JP.

[22] If the plaintiff does decide to pursue the JP, then the appropriate defendant is the JP in question. This defendant will need to be formally joined to the proceeding.

[23] The Attorney-General is not the appropriate defendant in relation to actions undertaken by the JP for three reasons:

(a) JPs are not “servants or agents” of the Crown under s 2(1) and the Crown does not have vicarious liability for them under s 6(1)(a) of the CPA.

(b) Section 6(5) of the CPA provides the Crown cannot be sued for the

actions done to discharge responsibilities of a judicial nature.¹⁰ While in Simpson v Attorney-General Cooke P held that the exclusion of the Crown from vicarious liability for judicial actions did not extend to those actions undertaken in bad faith,¹¹ this was made in the context of police officers (who are agents of the Crown) acting in bad faith.

(c) The amended Justices of the Peace Act 1957 (and previously the SPA) sets out how JPs can have proceedings brought against them for their actions, and have judgment entered against them.¹² The Justices of the Peace Act also provides a regime by which JPs found liable can be indemnified by the Crown if the High Court holds the JP acted in good faith and ought fairly and reasonably to be excused in the circumstances.¹³ The indemnity provision indicates the JPs can be sued for damages.

[24] Having regard to this statutory context, the appropriate person to sue is the JP him or herself for acting in excess of or without jurisdiction. In finding this, I do not mean to indicate that this cause of action has any prospect of success.

[25] In relation to the correct jurisdiction for this case I am not persuaded that the issues raise an important question of law or fact. Actions under the New Zealand Bill of Rights Act 1990 (NZBORA) against the police for exceeding their powers are a common and routine type of proceeding which the District Court is able to handle, as are claims in tort.

[26] However, I note that the action against the JP cannot be brought in the District Court under s 4C of the Justices of the Peace Act 1957 (or previously under the SPA s 194).

[27] Accordingly, if the plaintiff joins the relevant JP as a defendant to this proceeding then the proceeding will need to remain in the High Court. However, if

¹⁰ _{Crown Proceedings Act 1950, s 6(5).}

¹¹ _{Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s Case] at 674 per Cooke P.}

¹² _{Justices of the Peace Act 1957 ss 4–4F.}

¹³ Justices of the Peace Act 1957 s 4F.

the plaintiff chooses to focus the strength of his argument on the actions of the Police then the case ought to be transferred to the District Court.

[28] I am concerned at the leisurely fashion in which this matter has proceeded. If this case is to continue then it must to do so in a timely manner.

Outcome

[29] In light of my findings above I make the following orders:

(a) The correct defendant in relation to the Police is the Attorney-General on behalf of the New Zealand Police.

(b) The Attorney-General on behalf of the Ministry of Justice is to be removed as a defendant.

(c) The cause of action in relation to the JP is incorrectly pleaded. If the plaintiff does wish to proceed against the JP for exceeding his or her jurisdiction then the plaintiff must formally apply to join the JP as a defendant to the proceedings in the High Court and to amend the pleadings so as to refer to a tenable cause of action. This must be done in the timeframe set out at [29(d)] below.

(d) The plaintiff is to file his amended statement of claim with the correct defendant or defendants, and in accordance with the 4 October 2017 judgment, within four weeks of this judgment. As indicated in the

4 October judgment, the defendant is to file a statement of defence and any other applications arising within a further four weeks of that date.¹⁴

(e) If the amended statement of claim does not formally join the JP as a defendant within the set timeframe, the case is to be transferred to the

_{District Court as the more appropriate jurisdiction.}

¹⁴ Hunter v Attorney-General, above n 1, at [59].

_{[30] I note the plaintiff is legally aided, and therefore make no award of costs.}

_{Churchman J}

Solicitors:

John Miller Law, Wellington for Plaintiff

Crown Law Office, Wellington for Defendant