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Fuller v Carter [2023] NZHC 1714 (5 July 2023)

Last Updated: 14 August 2023

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 5 July 2023 at 12 noon pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Crown Law Office, Wellington

FULLER v SERGEANT IAN CARTER NZ POLICE CORPORATION [2023] NZHC 1714 [5 July 2023]

[1] In this proceeding Peter Fuller (the plaintiff) alleges that on or about 26 June 2021 he was assaulted, falsely arrested and unlawfully detained over a period of two days by Sergeant Ian Carter of the New Zealand Police, and for which he claims damages. By judgment delivered on 9 March 2023 Harvey J held that the plaintiff’s claim is not an abuse of process.¹ His Honour lifted the stay of proceedings he had previously ordered on 25 January 2023, and directed the Registrar to accept the plaintiff’s statement of claim dated 16 January 2023 for filing.²

[2] By Memorandum of Counsel dated 18 May 2023, the Attorney-General seeks a direction pursuant to r 4.56 of the High Court Rules 2016 striking out Police Sergeant Carter as the first defendant and substituting the Attorney-General as the first defendant. The plaintiff has been served with the Attorney-General’s memorandum, but has taken no steps in relation to it, and it therefore appears that he does not oppose an order removing Sergeant Carter as the defendant and substituting the Attorney-General.

[3] Rule 4.56 of the High Court Rules provide:

4.56 Striking out and adding parties

• (1) A Judge may, at any stage of a proceeding, order that—

(a) the name of a party be struck out as a plaintiff or defendant because the party was improperly or mistakenly joined; or

(b) the name of a person be added as a plaintiff or defendant because—

(i) the person ought to have been joined; or

(ii) the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.

• (2) An order does not require an application and may be made on terms the court considers just.

...

[4] Counsel for the Attorney-General says that the plaintiff’s claim appears to allege breaches of the New Zealand Bill of Rights Act 1990 (NZBORA) and tortious

¹ Fuller v Sergeant Carter New Zealand Police Corporation [2023] NZHC 448.

² At [15].

conduct. Counsel note that claims against Sergeant Carter in relation to his actions carried out as a police officer alleging breaches of NZBORA are directed against the state and the Attorney-General is the appropriate representative. The Attorney- General further notes that as regards claims in tort against employees of the Crown, the Attorney-General is vicariously liable. Counsel submits that where, if the plaintiff is successful he can obtain full redress of his claims against the Attorney-General, it is disproportionate for Sergeant Carter to remain in the proceeding as an additional defendant.

[5] Although the plaintiff’s statement of claim is discursive and difficult to understand and does not specifically refer to or allege breaches of NZBORA, in substance it appears to allege the tortious conduct of assault and false imprisonment by a police officer in the course of carrying out his duties, and breaches of certain rights recognised in NZBORA.

[6] In Simpson v Attorney-General [Baigent’s Case] the Court of Appeal explained that claims alleging breaches of rights affirmed in NZBORA by state servants or agents is a public law claim and remedy and not a form of vicarious liability for tort — but a liability of the state itself.³ Here where the plaintiff’s claim and allegations concern the actions of Sergeant Carter in the course of carrying out his duties as a police officer, the appropriate defendant is the state, in respect of which the Attorney-General is the appropriate representative defendant.

[7] Opai v Culpan concerned an appeal against a decision striking out Ms Opai’s defamation claim against Senior Sergeant Culpan as an abuse of process because it was disproportionate for her to sue both Senior Sergeant Culpan and the Attorney- General when she could obtain the full redress she sought from the Attorney-General alone.⁴ On appeal, Katz J said:⁵

[92] Associate Judge Bell was correct to strike out the entire claim against Mr Culpan as Jameel disproportionate. There is little or no vindicatory purpose in retaining him in the proceeding. His presence, in addition to the Attorney-General (on behalf of the Commissioner of Police), who accepts he is vicariously liable as Mr Culpan’s employer, adds nothing to the proceeding.

³ Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA) at 677.

⁴ Opai v Culpan [2017] NZHC 1036, [2017] NZAR 1142.

⁵ At [92].

The costs of continuing the proceeding against Mr Culpan (and particularly the costs that he would be forced to incur) are disproportionate.

[8] I am satisfied that an order substituting the Attorney-General for Sergeant Carter as the defendant will not prejudice the plaintiff, who will be able to pursue his claim against the Crown, and his allegations against Sergeant Carter as an agent of the state. However, following the substitution of the Attorney-General as the defendant there is no need for Sergeant Carter to be retained as a party in his personal capacity. Consistent with Opai, I consider the continued involvement of Sergeant Carter to be disproportionate in the current circumstances.

[9] Accordingly, pursuant to r 4.56(1)(a) and (b) of the High Court Rules, I make an order removing Sergeant Carter as the defendant in the proceeding and striking out his name, and an order substituting the Attorney-General as the defendant in Sergeant Carter’s place.

[10] I direct the Attorney-General to file a statement of defence within 10 working days of the date of this judgment. And following service of the Attorney-General’s statement of defence, I direct the plaintiff to file a fresh statement of claim giving effect to this order by naming the Attorney-General as defendant and removing those parts of his claim which were struck out by Harvey J in his judgment of 25 January 2023.⁶

[11] I make an order reserving costs.

P Davison J

⁶ Fuller v Sergeant Carter New Zealand Police Corporation [2023] NZHC 25.