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Galway v Pugh [2021] NZHC 3431 (14 December 2021)

Last Updated: 22 December 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 14 December 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GALWAY v PUGH [2021] NZHC 3431 [14 December 2021]

• [1] The plaintiffs (Mr and Mrs Galway) seek damages from the defendants alleging misfeasance in public office. This judgment concerns applications by the defendants to strike out the proceeding on the ground it is time barred and an abuse of the Court’s process. The second defendant also relies on immunities it says are available to it as a total answer to the claim.

Background

• [2] At material times the plaintiffs worked as dairy farmers near Karamea, Buller.

• [3] The first defendant (Ms Pugh) was an employee of the Animal Health Board and an authorised person under the Biosecurity Act 1993 for the purposes of implementing a Pest Management Strategy aimed to prevent the spread and reduce the prevalence of bovine tuberculosis (TB) in New Zealand.

• [4] The second defendant (the Ministry), administers the Biosecurity Act.

• [5] The claim arises out of an investigation of Mr Galway by the Animal Health Board and his subsequent prosecution. Ms Pugh was involved in the investigation and the informant in the prosecution against Mr Galway for offences under the Crimes Act 1961 and the Biosecurity Act that followed from it.

• [6] The investigation and prosecution centred on an allegation that in April 2008 Mr Galway pre-read his cattle for TB and removed cows from the herd he suspected of having TB prior to inspection by an authorised TB tester.

• [7] The Animal Health Board’s investigation began in or around 16 May 2008. Ms Pugh took a statement from Layne Darragh, a farm hand, in which Mr Darragh said that Mr Galway was pre-reading his cows for TB.

• [8] On 16 May 2008, after taking Mr Darragh’s statement, Ms Pugh changed the TB status of Mr Galway’s herd on a register maintained by the Ministry from “Clear

C3”¹ to “Suspended” and issued Mr Galway with a Movement Control Notice under s 122(1)(c) of the Biosecurity Act directing him not to move his herd from its location.

• [9] Mr and Mrs Galway had entered into a contract with Kinzett Livestock Ltd (Kinzett) for the sale of approximately 320 cows. On or around 19 May 2008, Kinzett cancelled the contract due to the change in the TB status of the herd. Mr and Mrs Galway accept it was entitled to do so. As a result, they suffered losses of $276,168 upon the subsequent sale of the cows in July 2008 and in respect of additional grazing costs.

• [10] On 9 April 2009, a decision was made to lay criminal charges against Mr Galway. It took a long time for the case to get to trial. Along the way, there were issues whether proper disclosure had been made and an appeal to the Court of Appeal on evidential matters.² Mr Galway was tried between 26 November 2014 and 8 December 2014. He represented himself at trial. The prosecution was unsuccessful and Mr Galway was acquitted on all charges.

• [11] This proceeding was commenced on 11 December 2020. To put that in context, the proceeding was commenced more than 12 years after the change in the TB status of the herd, more than 11 years after the commencement of the prosecution and more than six years (by a few days) after the conclusion of Mr Galway’s trial.

The pleadings

• [12] The plaintiffs are self-represented. Their original statement of claim was, by appearances, a relatively orthodox pleading. It contained four causes of action against both defendants. The causes of action were identified as malicious prosecution, injurious falsehood, negligence, and misfeasance in public office. In respect of the four causes of action, the plaintiffs sought damages arising from cancellation of the contract with Kinzett, loss of income and general damages. There was a fifth cause of action against the second defendant only to recover costs under the Costs in Criminal Cases Act 1967.

¹ Indicating the herd had been clear of TB for at least 3 years.

² Galway v R [2012] NZCA 94.

• [13] The plaintiffs did not promptly serve the defendants with the proceeding and the matter was referred to Associate Judge Lester who, in a minute of 12 March 2021, directed the proceeding be served by 13 April 2021. He also raised the prospect that the claims were time-barred.³

• [14] Since then, the plaintiffs have amended their statement of claim six times. These subsequent pleadings are unsatisfactory. It is not necessary for me to dwell on the reasons this is so to determine the application before me. It is, however, necessary to say something of the amended pleadings to describe the development of the claim.

• [15] Mr and Mrs Galway filed an amended statement of claim on 11 April 2021 but did not replead the entire claim. They relied on the original statement of claim in toto and added causes of action alleging breaches of the Crimes Act 1961.

• [16] On 2 June 2021, the plaintiffs filed a second amended statement of claim. Again, they did not replead the claim but purported to withdraw and add to several paragraphs of both the original and amended statements of claim.

• [17] On 30 June 2021, the plaintiffs filed a third amended statement of claim relying on all previous pleadings but adding particulars to causes of action in the original statement of claim and amended statement of claim.

• [18] In response to the defendants’ strike out application, the plaintiffs filed a fourth amended statement of claim on 5 October 2021. It represented a major shift in the plaintiffs’ approach. The plaintiffs abandoned reliance upon all previous causes of action apart from misfeasance in public office. They continued to seek damages under the same heads as had been claimed in their original and first amended statements of claim but the amounts increased significantly, particularly in respect to loss of income where they now claimed $11,600,000, up from $5,500,000. This document extended to 55 pages.

• [19] On 4 November 2021, the plaintiffs filed a fifth amended statement of claim of 106 pages. The plaintiffs now pleaded two causes of action against the defendants.

³ Galway v Pugh HC Christchurch CIV–2020–409–615, 12 March 2021 (minute).

The cause of action for misfeasance in public office remained (although described as malfeasance) and there was a second cause of action for what was described as malfeasance through “fraudulently concealing the defendants’ fraud”.

• [20] Finally, on 16 November 2021, the plaintiffs filed their current pleading. This is their sixth amended statement of claim. It is a 104 page document containing much of the same detail as the prior pleading and seeks to recover damages in the same amounts. The document retains the same two causes of action that appeared in the fifth amended statement of claim.

• [21] To date no statements of defence have been filed by the defendants in accordance with directions made by the Court.

Strike out principles

• [22] The defendants’ applications to strike out rely on r 15.1 of the High Court Rules 2016 which provides as follows:

• 15.1 Dismissing or staying all or part of proceeding

(1) The court may strike out all or part of a pleading if it--

(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.

(2) If the court strikes out a statement of claim or a counterclaim under subclause 1, it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3) Instead of striking out all or part of a pleading under subclause 1, the court may stay all or part of the proceeding on such conditions as are considered just.

(4) This rule does not affect the court’s inherent jurisdiction.

• [23] A limitation defence is a ground to strike out a proceeding on the basis that it is frivolous, vexatious or an abuse of process.⁴ As the Supreme Court noted in Murray v Morel & Co Ltd:⁵

• [33] I consider the proper approach, based essentially on Matai, is that in order to succeed in striking out a cause of action as statute-barred, the defendant must satisfy the court that the plaintiff’s cause of action is so clearly statute–barred that the plaintiff’s claim can properly be regarded as frivolous, vexatious or an abuse of process. If the defendant demonstrates that the plaintiff’s proceeding was commenced after the period allowed for the particular cause of action by the Limitation Act, the defendant will be entitled to an order striking out that cause of action unless the plaintiff shows that there is an arguable case for an extension or postponement which would bring the claim back within time.

• [34] In the end the judge must assess whether, in such a case, the plaintiff has presented enough by way of pleadings and particulars (and evidence, if the plaintiff elects to produce evidence), to persuade the court that what might have looked like a claim which was clearly subject to a statute bar is not, after all, to be viewed in that way, because of a fairly arguable claim for extension or postponement. If the plaintiff demonstrates that to be so, the court cannot say that the plaintiff’s claim is frivolous, vexatious or an abuse of process. The plaintiff must, however, produce something by way of pleadings, particulars and, if so advised, evidence, in order to give an air of reality to the contention that the plaintiff is entitled to an extension or postponement which will bring the claim back within time. A plaintiff cannot, as in this case, simply make an unsupported assertion in submissions that s 28 applies. A pleading of fraud should, of course, be made only if it is responsible to do so.

The Limitation Acts

• [24] As I shall presently set out, the acts and/or omissions of the defendants that the plaintiffs are concerned with occurred on various dates from May 2008 down to the present time. At least potentially, both the Limitation Act 1950 and the Limitation Act 2010 are engaged.

• [25] For present purposes, the relevant provisions of the Limitation Act 1950 are ss 4(1)(a) and 28(b) which provide:

4 Limitation of actions of contract and tort, and certain other actions

(1) Except as otherwise provided in this Act or subpart 3 of Part 2 of the Prisoners’ and Victims’ Claims Act 2005, the following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued, that is to say,---

⁴ Matai Industries Ltd v Jensen [1988] NZHC 205; [1989] 1 NZLR 525 (HC).

⁵ Murray v Morel & Co Ltd [2007] NZSC 27, [2007] 3 NZLR 721.

(a) actions founded on simple contract or on tort:

28 Postponement of limitation period in case of fraud or mistake

Where, in the case of any action for which a period of limitation is prescribed by this Act, either

...

(b) the right of action is concealed by the fraud of any such person as aforesaid;

...

the period of limitation shall not begin to run until the plaintiff has discovered the fraud or mistake, as the case may be, or could with reasonable diligence have discovered it: ...

• [26] The provisions of the Limitation Act 2010 that are relied upon by the parties are ss 11, 14 and 48(1) which provide:

11 Defence to money claim filed after applicable period

(1) It is a defence to a money claim if the defendant proves that the date on which the claim is filed is at least 6 years after the date of the act or omission on which the claim is based (the claim’s primary period).

(2) However, subsection (3) applies to a money claim instead of subsection

(1) (whether or not a defence to the claim has been raised or established under subsection (1)) if---
(a) the claimant has late knowledge of the claim, and so the claim has a late knowledge date (see section 14); and
(b) the claim is made after its primary period.

(3) It is a defence to a money claim to which this subsection applies if the defendant proves that the date on which the claim is filed is at least---

(a) 3 years after the late knowledge date (the claim’s late knowledge period); or
(b) 15 years after the date of the act or omission on which the claim is based (the claim’s longstop period).

14 Late knowledge date (when claimant has late knowledge) defined

(1) A claim’s late knowledge date is the date (after the close of the start date of the claim’s primary period) on which the claimant gained knowledge (or, if earlier, the date on which the claimant ought reasonably to have gained knowledge) of all of the following facts:

(a) the fact that the act or omission on which the claim is based had occurred:
(b) the fact that the act or omission on which the claim is based was attributable (wholly or in part) to, or involved, the defendant:
(c) if the defendant’s liability or alleged liability is dependent on the claimant suffering damage or loss, the fact that the claimant had suffered damage or loss:
(d) if the defendant’s liability or alleged liability is dependent on the claimant not having consented to the act or omission on which the claim is based, the fact that the claimant did not consent to that act or omission:
(e) if the defendant’s liability or alleged liability is dependent on the act or omission on which the claim is based having been induced by fraud or, as the case may be, by a mistaken belief, the fact that the act or omission on which the claim is based is one that was induced by fraud or, as the case may be, by a mistaken belief.

(2) A claimant does not have late knowledge of a claim unless the claimant proves that, at the close of the start date of the claim’s primary period, the claimant neither knew, nor ought reasonably to have known, all of the facts specified in subsection (1)(a) to (e).

(3) The fact that a claimant did not know (or had not gained knowledge), nor ought reasonably to have known (or to have gained knowledge), of a particular fact may be attributable to causes that are or include fraud or a mistake of fact or law (other than a mistake of law as to the effect of this Act).

48 Fraud

(1) A claim’s longstop period or Part 3 period does not apply to the claim if the claimant proves that, because of fraud by or on behalf of the defendant, at the close of the start date of that period the claimant neither knew nor ought reasonably to have known all or any of the following facts:

(a) the fact that the act or omission on which the claim is based had occurred:
(b) the fact that the act or omission on which the claim is based was attributable (wholly or in part) to, or involved, the defendant:
(c) if the defendant’s liability or alleged liability is dependent on the claimant suffering damage or loss, the fact that the claimant had suffered damage or loss:
(d) if the defendant’s liability or alleged liability is dependent on the claimant not having consented to the act or omission on which the claim is based, the fact that the claimant did not consent to that act or omission:
(e) if the defendant’s liability or alleged liability is dependent on the act or omission on which the claim is based is one that was induced by fraud or, as the case may be, by a mistaken belief.

• [27] The Limitation Act 1950 applies to a cause of action “based on an act or omission before 1 January 2011”.⁶ The Limitation Act 2010 applies to a claim “based on an act or omission after 31 December 2010”.

• [28] Whereas the 1950 Act is an accrual regime, the 2010 Act centres on the act or omission on which a claim is based.

• [29] Section 4(1) of the Limitation Act 1950 provides a defence to a claim brought after the expiration of six years of the date on which the cause of action accrues. A cause of action accrues when every fact exists which would be necessary for the plaintiff to prove in order to bring the claim for judgment.⁷ In the case of claims in tort which require proof of damage,⁸ a cause of action is complete when more than minimal damage has occurred, even if the full extent of the loss is not known.⁹ The date on which the cause of action arose is excluded in calculating the period within which an action must be brought. Time ceases to run when the statement of claim and notice of proceeding is filed in the court and must be completed before the expiry of the last day of the six-year period.

• [30] By comparison, s 11 of the Limitation Act 2010 provides a defence to money claims where the money claim is filed with the Court at least six years after the date of the “act or omission on which the claim is based”. The plaintiffs’ claims are money claims because they seek monetary relief at common law.¹⁰

• [31] The expression in s 11 “on which the claim is based” links the act or omission with the legal basis of the claim. For limitation purposes, the act or omission relevant to the start date must be an essential element of the claim. If there is more than one act or omission essential to the claim for limitation purposes, the claim is based on the last to occur.¹¹

⁶ Limitation Act 1950, s 2A(1).

⁷ Murray v Morel & Co Ltd, above n 5, at [39] citing Invercargill City Council v Hamlin [1994] 3 NZLR 513 (CA).

⁸ Which would include the tort of misfeasance in public office see Watkins v Secretary of State for the Home Department, [2006] UKHL 17, [2006] 2 WLR 807.

⁹ Davys Burton v Thom [2008] NZSC 65; [2009] 1 NZLR 437 (SC) at [16] and [47].

¹⁰ Limitation Act 2010, s 12(1).

¹¹ JC Corry Limitation Act Handbook (LexisNexis, Wellington, 2011) at 19.

• [32] As to the postponement of time due to fraud and/or concealment, s 28(b) of the 1950 Act is concerned with the deliberate or reckless concealment of a cause of action and extends to equitable fraud where a non-disclosure is “in breach of either a fiduciary duty or a special duty of disclosure inherent in the contract made by the parties or the legal relationship to which they have become committed”.¹² In either case, the failure to disclose must be wilful.¹³

• [33] The position is somewhat more complicated under the 2010 Act. There, the money claim’s primary limitation period is subject to both a late knowledge and a longstop period. Where a claimant has late knowledge of the claim and the claim is made after its six-year primary period, it is a defence if the defendant proves that the date on which the claim is filed was at least three years after the late knowledge date. This is the date on which the claimant gained or ought reasonably to have gained knowledge of all of the matters set out in s 14(1)(a)-(e). The onus is on the claimant to prove that at the close of the start date of the primary period he or she neither knew nor ought reasonably to have known of those matters. The late knowledge date cannot exceed the 15 year longstop period unless the longstop period is disapplied by s 48.¹⁴

• [34] Section 48 is concerned with concealed fraud and applies if a claimant proves that “because of fraud by or on behalf of the defendant” at the close of the start date of the relevant longstop period the claimant had not gained knowledge of the relevant facts. The relevant facts are the same as those which are to be known for the purposes of the late knowledge date in s 14(1).

The defendants’ submissions

• [35] The defendants contend all causes of action and all relevant events, acts or omissions upon which the plaintiffs’ claims are based had accrued or occurred on or before 8 December 2014, when Mr Galway was acquitted on the criminal charges; that is, more than six years before the filing of the plaintiffs’ statement of claim on

¹² Inca Ltd v Autoscript (New Zealand) Ltd [1979] 2 NZLR 700 (HC) at 709 and Matai Industries Ltd v Jensen, above n 4.

¹³ Matai Industries Ltd v Jensen, above n 4, at 536.

¹⁴ Limitation Act 2010, s 11(3)(b).

11 December 2020. On this basis, the plaintiffs’ claims are time-barred whether the Limitation Act 1950¹⁵ or the Limitation Act 2010¹⁶ applies.

• [36] The second defendant raises as an additional ground that the claims cannot succeed against it because it is protected by immunities from liability. It is submitted that as the Crown may only be vicariously liable in tort,¹⁷ it benefits from the statutory immunity available to Ms Pugh under s 163 of the Biosecurity Act. In addition, the second defendant argues that to the extent that prosecutorial decision-making is impugned by the plaintiffs, s 6(5) of the Crown Proceedings Act 1950 applies to bar the claim. Further, for any actions related to the preparation and giving of evidence in court by Ms Pugh, there is immunity from suit in reliance upon the principles set out in cases such as New Zealand Defence Force v Berryman,¹⁸ Darker v Chief Constable of the West Midlands Police¹⁹ and Meadow v General Medical Council.²⁰

The plaintiffs’ submission

• [37] The plaintiffs assert the defendants are fraudulently concealing information and documents from them and that until full disclosure is made concerning the investigation and the prosecution against Mr Galway, time does not begin to run against them for limitation purposes. They rely on s 28 of the Limitation Act 1950 and ss 14 and 48 of the Limitation Act 2010. They also say no immunities can be available under any statute or otherwise as a defence to fraud.

¹⁵ Limitation Act 1950, s 4(1).

¹⁶ Limitation Act 2010, s 11

¹⁷ Crown Proceedings Act 1950, s 6(1) and Attorney General v Strathboss Kiwifruit Ltd [2020] NZCA 98, [2020] 3 NZLR 247 at [99]- [109], [133] and [144].

¹⁸ New Zealand Defence Force v Berryman [2008] NZCA 392 at [66]- [72].

¹⁹ Darker v Chief Constable of the West Midlands Police [2000] UKHL 44; [2001] 1 AC 435 (HL).

²⁰ Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] 1 All ER 1 (CA).

Discussion

Misfeasance in public office

• [38] The plaintiffs rely on misfeasance in public office.²¹ The purpose behind the imposition of liability on this basis is to prevent the deliberate injuring of members of the public by deliberate disregard of official duty.²²

• [39] A plaintiff must establish the following:²³

(a) standing to sue;

(b) the defendant is a public officer;

(c) the defendant has acted deliberately and unlawfully in the exercise or purported exercise of his or her public office;

(d) the defendant has acted or omitted to act with malice towards the plaintiff, or knowing his or her conduct was likely to harm the plaintiff, or with reckless indifference as to whether the plaintiff would be harmed; and

(e) the plaintiff has suffered loss caused by the defendant’s actions.

• [40] The plaintiffs also assert the defendants continue to “fraudulently conceal fraud”. As Ms Fee points out there is no independent tort of fraud known to the law.²⁴ Even after hearing from Mr Galway it is not clear what this phrase signifies but it appears it is a generalised allegation that the defendants are hiding documents and information concerning the investigation and prosecution of Mr Galway.

²¹ There is a question not raised by the defendants whether in relation to matters concerning the prosecution of Mr Galway the cause of action for misfeasance in public office is available or whether the plaintiffs can only rely upon malicious prosecution (which they appeared to abandon by their fourth amended statement of claim). See Stephen Todd (ed) The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) at [18.2].

²² Garrett v Attorney General [1997] 2 NZLR 352 (CA) at 350.

²³ Todd, above n 21, at [19.2].

²⁴ Ma v Tay [2013] NZHC 2292 at [41].

• [41] One matter that has taken on great significance in the minds of Mr and Mrs Galway as an example of what they regard as the defendants’ fraudulent concealment of fraud, concerns para 7 of Ms Fee’s written submissions. In describing the background to the plaintiffs’ claims she wrote:

While there were various other charges laid against Mr Galway, the investigation and prosecution centred on an allegation that Mr Galway pre- read his cattle for TB on 3 April 2008 and removed (and shot) cattle he suspected of having TB from the herd prior to inspection by an authorised TB tester.

• [42] Mr Galway filed an affidavit in response to that submission stating, amongst other things, that at no time prior to 18 October 2021 had the defendants made any mention of their reliance upon an allegation that he had shot cattle prior to TB testing. In written submissions this was referred to as an absolutely critical disclosure that had been fraudulently concealed until 18 October 2021. It appears to have been a major factor in the filing of the sixth amended statement of claim.

• [43] Ms Fee was surprised at the response her submission invoked. She made the point that her submissions are not evidence and she was simply providing a summary of the background. She plainly did not consider there was anything controversial in her recounting of the facts.

• [44] The application made by Ms Pugh for a search warrant on 27 May 2008, refers to the shooting of cattle and Ms Pugh stated she had a suspicion Mr Galway was removing evidence by disposing of healthy cattle. This was disclosed to Mr Galway during the prosecution.

• [45] Further, Mr Galway appealed to the Court of Appeal from a ruling of the District Court that photographs of carcasses were admissible as evidence.²⁵ The Court of Appeal noted in its judgment:

[28] The information about Mr Galway established a reasonable basis for believing he was involved in avoiding TB testing as regards suspect cattle. There was also evidence that a recent sale of Mr Galway’s herd had fallen through and that he had dried off his herd so no milk income would be being received. There was eye witness information he had shot and disposed of stock

²⁵ Galway v R, above n 2.

in circumstances where the carcasses would normally have considerable value.

...

[30] ... The warrant application indicated that information was available that Mr Galway had recently shot seven dairy cows which had considerable apparent value. The witness to the aftermath of this event was the owner of the property who had seen the carcasses on the farm ...

(emphasis added)

• [46] The allegation that Mr Galway had shot cows to avoid having them tested was plainly made from the commencement of the investigation in May 2008. Mr Galway must have been aware of this. There was no concealment.

• [47] As far as Mr and Mrs Galway allege the defendants are fraudulently concealing fraud, I am left with nothing more than an unsupported assertion that the defendants have information or documents they are not disclosing. Critically, for present purposes, Mr and Mrs Galway did not identify any material facts which have been concealed from them or of which they have only gained late knowledge that prevented them from bringing their claim timeously.

• [48] That this is so is confirmed by Mr Galway’s submission that the defendants’ fraudulent behaviour was always in front of him but he had not been looking for it. To similar effect, Mr and Mrs Galway’s notice of opposition states during lockdown in July 2021 they went through documents in their possession with new eyes and uncovered the defendants’ fraud.

• [49] It is also relevant in this context that Mr Galway advised that the claim was filed on 11 December 2020 because by that date they decided there could be no appeals from the Court’s decisions referring, I understand, to his prosecution. That simply reinforces the point that it was not a lack of knowledge of any material facts that prevented the filing of the claim.

• [50] The submission Mr and Mrs Galway make that time does not run against them for the making of a claim until they have received full disclosure is incorrect. It would be rare that parties have already given full disclosure when litigation is commenced.

I have set out above when the periods of limitation begin to run under the 1950 and 2010 Acts.

• [51] Both the first and second defendants’ counsel have spent what must have been a great deal of time categorising the allegations contained in the latest and previous statements of claim. In essence what is alleged by Mr and Mrs Galway is that the defendants wrongly, fraudulently and maliciously:

(a) changed the TB status of the herd and issued the Movement Control Notice on 16 May 2008;

(b) concealed or ignored evidence, which was favourable to Mr Galway leading to his prosecution, which prosecution was commenced on 9 April 2009 and completed 8 December 2014;

(c) procured a statement from Mr Darragh or kept information from him leading to his making an incorrect statement on 16 May 2008;

(d) sent a malicious or defamatory email on 16 May 2008 to a Mr Steven Webb in relation to an arbitration in which the plaintiffs were involved;

(e) obtained and executed a search warrant on 28 May 2008;

(f) procured an interview with Mr Galway on 24 June 2008 through bullying;

(g) conducted an improper and/or inadequate investigation leading to the prosecution against Mr Galway (commenced on 9 April 2009 and completed 8 December 2014);

(h) failed to make proper disclosure during the trial process, which inferentially must have occurred on or before 8 December 2014;

(i) made payments to witnesses in relation to the trial of Mr Galway between 12 November 2008 and 20 February 2009;
(j) gave untrue evidence at the trial of Mr Galway (again, on or before 8 December 2014);

(k) failed to provide disclosure required by requests made by the plaintiffs under the Official Information Act 1982 and Privacy Act (dates are not specified but following the conclusion of Mr Galway’s trial);

(l) filed submissions in support of the strike out application alleging Mr Galway had removed and shot cattle prior to the testing of his herd; and

(m) continue to conceal fraud through their responses to the plaintiffs’ claim and through bringing their strike out application.

• [52] The plaintiffs contend they have suffered substantial losses. Those losses are said to be consequent upon the cancellation of the Kinzett contract amounting to

$276,168.52, and upon the prosecution of Mr Galway namely:

(a) legal costs of $61,132.34;

(b) expert witness costs of $4,997.64;

(c) investigator costs of $19,674.22;

(d) loss of ability to go dairy farming of $11,600,000; and

(e) distress and disruption to their lives of $50,000.

• [53] Ms Fee argues, correctly in my view, that the plaintiffs’ claim is based on two pillars. The two pillars are the change in the TB status of the herd and the commencement of the prosecution against Mr Galway. It is these two acts which are causatively connected to all of their claimed losses. In respect to both pillars the Limitation Act 1950 applies as the relevant acts or omissions occurred prior to 1 January 2011.
• [54] As far as the change in the status of the herd is concerned, Mr and Mrs Galway’s cause of action in misfeasance accrued in May 2008 when Kinzett cancelled its contract to purchase the herd or, at the latest, by July 2008 when the cattle were in fact sold. By the July 2008 date their loss upon the cancellation of the contract crystallised (and was known to them). On that basis, the limitation period expired by July 2014, well before this proceeding was commenced.

• [55] As far as the commencement of the prosecution of Mr Galway is concerned, Mr and Mrs Galway claim loss of income from 2009 as a result of being unable to go dairy farming and costs and expenses associated with Mr Galway’s defence, which one could expect began to be incurred almost immediately. On this basis, the limitation period commenced in or around April 2009 and expired in or around April 2015, again well before this proceeding was commenced.

• [56] Section 28(b) of the 1950 Act does not assist the plaintiffs. They knew of the decision to change the status of the herd and to prosecute Mr Galway. They knew who was responsible for making those decisions and the basis upon which they were purportedly made. They knew, also, that they had suffered losses. In the case of the cancellation of the contract for the sale of the herd, their actual loss was known to them. In the case of the prosecution, the losses were ongoing but more than minimal. None of this was concealed. There can therefore be no suggestion the defendants concealed by fraud the plaintiffs’ “right of action”. It follows any claim for misfeasance associated with the change in the status of the herd and the commencement of the prosecution is time-barred.

• [57] There are acts of the defendants relied upon by the plaintiffs which post-date the commencement of the prosecution and the commencement of the Limitation Act 2010. Here, I am referring to the allegations the defendants failed to make proper disclosure during the trial process and gave untrue evidence at the trial. None of these acts or omissions can be relevant for present purposes as they were not causative of the losses claimed. But if I am wrong in that, it does not alter the result of this application. All of the acts or omissions were known to Mr and Mrs Galway. Mr Galway had represented himself and conducted his own defence. He had been involved in arguments concerning disclosure prior to the trial and heard the witnesses

give their evidence at trial. Even if one was to adopt the day after Mr Galway was acquitted as the date time began to run for limitation purposes, this proceeding was still commenced out of time.

• [58] Mr and Mrs Galway also rely on alleged failures by the defendants to give disclosure following his acquittal and steps taken by the defendants to defend themselves in this proceeding. These matters are not causative of any of the claimed losses.

Malicious prosecution

• [59] The Court is always slow to deprive litigants of a full hearing and will not strike out claims unless it can be certain they cannot succeed. The events that have led Mr and Mrs Galway to this Court were a major upheaval in their lives from which they have not recovered. The striking out of their claim will likely end their prospects of recovering compensation for what they keenly feel is a terrible injustice.

• [60] I have considered whether the claim could be saved by repleading in reliance upon some other cause/s of action. Specifically, I have considered the position if the claim is viewed through the lens of malicious prosecution. Although this cause of action was abandoned in the fourth amended statement of claim, the allegation that the prosecution against Mr Galway was pursued in bad faith and without reasonable cause has been a feature of Mr and Mrs Galway’s pleadings throughout.

• [61] There are five elements to an action for malicious prosecution which I understand to be that:²⁶

(a) the defendant prosecuted the plaintiff on a criminal charge;

(b) the criminal proceeding terminated without the plaintiff being incriminated;

²⁶ Todd, above n 21, at [18.2.02].

(c) the defendant had no reasonable and proper cause for bringing the proceeding;

(d) the defendant acted maliciously; and

(e) the plaintiff suffered damage as a consequence of the proceeding.

• [62] As far as damage is concerned this may include damage to property or pecuniary loss including expenses incurred by a plaintiff in acquitting himself or herself of the crime of which he or she is charged.²⁷

• [63] The last act or omission upon which such a claim would be based is the acquittal of Mr Galway on the criminal charges on 8 December 2014. By that date he had already suffered substantial losses as a result of the prosecution. As the date upon which Mr and Mrs Galway commenced this proceeding was more than six years after 8 December 2014, the defendants have a defence to the claim²⁸ unless Mr and Mrs Galway had late knowledge of the claim²⁹ which they clearly did not. It follows their position is not saved by regarding their claim as based on malicious prosecution.

• [64] I do not see that any further alternative cause of action could be relied upon that would not now be time-barred. I consider, therefore, the plaintiffs’ statement of claim must be struck out and judgment entered for the defendants.

Other matters

[43] In light of my finding above, it is not necessary for me to deal with the second defendant’s alternative submissions based on the availability of immunities.

• [65] It is also not necessary for me to deal with submissions that were directed to the defects in the sixth amended statement of claim which extend beyond technical points of pleading, but also concern the status of the second defendant as a party, that the pleading is prolix, contains principally evidence, submissions and scandalous

²⁷ Todd, above n 21, at [18.2.07].

²⁸ Limitation Act 2010, s 11(1).

²⁹ Section 14(1).

allegations. However, had I not been of the view the plaintiffs’ claim was time-barred, I would have struck out the sixth amended statement of claim and required that Mr and Mrs Galway file a pleading compliant with the High Court Rules under the guidance of counsel.³⁰ In light of the result, that is not necessary.

Transcript of the hearing

• [66] Mr and Mrs Galway have requested a transcript of the hearing. This is opposed by the first defendant but not by the second defendant. The reason Mr and Mrs Galway give for their request is, they wish to “verify” statements made by the defendants. This would not ordinarily be a basis to order a transcript be provided. There is, and cannot be, any suggestion that the defendants’ counsel acted in anything other than an exemplary manner at the hearing and Mr and Mrs Galway were present throughout and know what was said. There was also no evidence presented at the hearing and it is difficult to see what can be verified. However, for my own use, I had a transcript typed-up and it is therefore available. I direct it be provided to the parties.

Result

• [67] The plaintiffs’ claim is struck out as time-barred and judgment is entered for the defendants.

• [68] I can see no reason why the defendants would not be entitled to costs should they seek to claim them. However, that is not a concluded view and if costs are an issue between the parties, memoranda may be filed by 1 February 2022. They are to be no longer than five pages. I would expect to deal with costs on the papers.

• [69] The written transcript of the hearing of 18 November 2021 is to be provided to the parties.

O G Paulsen Associate Judge

³⁰ Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA 565 at [15] – [16].

Solicitors:

Fee Langstone, Auckland

Meredith Connell, Wellington (for Second Defendant)

Copy to:

G J and N A Galway, Oxford (self-represented Plaintiffs)