Commissioner of Police v Marwood [2019] NZHC 760 (10 April 2019)

Last Updated: 1 May 2019

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2012-463-79 [2019] NZHC 760

BETWEEN	THE COMMISSIONER OF POLICE Applicant
AND	KARL LESLIE RAYMOND MARWOOD First Respondent ERANA KING Second Respondent THE PERRIN TRUST Third Respondent ANZ BANK Fourth Respondent

Hearing:	9 April 2019
Appearances:	C H Macklin for Applicant M W Ryan for First and Third Respondents A Speed for Second Respondent No appearance for Fourth Respondent
Judgment:	10 April 2019

JUDGMENT OF LANG J

[on application by second respondent for order requiring the applicant to file a statement of claim]

This judgment was delivered by me on 10 April 2019 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date...............

COMMISSIONER OF POLICE v MARWOOD (2) [2019] NZHC 760 [10 April 2019]

[1] In this proceeding the Commissioner of Police (the Commissioner) seeks a profit forfeiture order against the first to third respondents under s 55 of the Criminal Proceeds (Recovery) Act 2009 (the CPRA). The proceeding is set down for a trial of two weeks duration commencing in the High Court at Hamilton on 6 May 2019.

[2] The second respondent, Ms King, has now applied for an order requiring the Commissioner to file a statement of claim setting out the basis on which he advances his claims against her. She says this is necessary to enable the claim against her to be properly particularised. She also sees it as the only means by which she can file a counterclaim against the Commissioner in relation to alleged breaches of her rights under the New Zealand Bill of Rights Act 1990 (NZBORA).

Approach

[3] I was recently required to consider the approach to be taken in this context in

Commissioner of Police v Li.¹ In that case I observed:

[4] Applications under the Act are required to be commenced by way of originating application.² Originating applications are governed by Part 19 of the High Court Rules. The learned authors of McGechan on Procedure observe, correctly in my view, that the originating application procedure is designed to provide a speedy and inexpensive mechanism for the disposition of numerous types of application that need to be made under specific statutory provisions.³

...

[7] Where a proceeding has been commenced by way of originating application r 19.5A permits a Judge, either by interlocutory order or on his or her own initiative, to direct the parties to file statements of claim and defence. Counsel have only been able to find one case in which an applicant has been directed to file a statement of claim in a proceeding commenced by way of originating application. In Sargison v Anthem Wine Company Ltd the receivers of a company filed an originating application seeking directions from the Court under the Receiverships Act 1993.⁴ An order was subsequently made by consent directing a statement of claim to be filed. The reasons for that order are not canvassed in the judgment, no doubt because the parties sought the order by consent. It is therefore of little assistance in the present case.

¹ Commissioner of Police v Li [2018] NZHC 292.

² High Court Rules, r 19.2.

³ A C Beck and others McGechan on Procedure (looseleaf ed, Westlaw) at [HRPt19.01].

⁴ Sargison v Anthem Wine Company Ltd HC Christchurch CIV-2008-409-2517, 26 June 2009.

[8] My own researches have unearthed another case in which the issue has been raised but not finally decided. In Ladies Mile Motor Company Ltd v Zhan the applicant filed an originating application seeking relief under the Property Law Act 2007 against the refusal by a lessor to grant a renewal of an unregistered lease.⁵ The lessor had acquired the property in question from the original lessor under the lease. At the hearing, and without prior notice, counsel for the lessor sought to argue that the lessor was not obliged to recognise the lease because it was not registered. Counsel for the lessee objected to this, and submitted that this issue could not be fairly and properly addressed at the hearing of an originating application for relief against forfeiture. Woodhouse J agreed, and adjourned the hearing. He also directed counsel to confer as to the most appropriate means of having the Court consider all relevant issues. His Honour also observed that “it would appear to be appropriate” for the applicant to file a statement of claim and for the respondents to file a statement of defence raising an affirmative defence or counterclaim. The facts and outcome of that case also render it of limited assistance for present purposes.

[9] I consider the same principles that have guided the availability of discovery in the present context inform the approach to be taken in relation to the present application. The discretion to require a statement of claim to be filed should only be exercised in cases where that is both necessary and proportionate having regard to the nature of the proceeding.

The arguments

[4] As in Li, the factual matrix of the present case is not without its complexities. This arises for the most part because of extensive investigations undertaken by the Commissioner’s staff into the financial affairs of the respondents. For the Commissioner, Mr Macklin contends the Commissioner’s claim is nevertheless straightforward. The Commissioner contends the respondents derived profits from the cultivation and sale of cannabis grown in a property that they own. The Commissioner also alleges that Ms King obtained benefits to which she was not entitled because she failed to disclose to the relevant authorities the fact that Mr Marwood was deriving significant income from the cultivation of cannabis.

[5] The Commissioner seeks a profit forfeiture order that will enable property that the respondents own to be disposed of to satisfy the amount of the order. Mr Macklin says there is no need for the Commissioner to file a statement of claim because the nature of the claim is straightforward and the factual basis for the claim is set out clearly in the evidence that the Commissioner has already filed and served.

⁵ Ladies Mile Motor Company Ltd v Zhan [2018] NZHC 152.

[6] On Ms King’s behalf Mr Speed submits that matters are not so simple. He points out that the Commissioner has never alleged Ms King was involved in the cultivation of cannabis at the property. Mr Marwood was charged and ultimately acquitted of cultivating cannabis but Ms King was never charged. Furthermore, Ms King will give evidence that she was absent from the property for most of the period the Commissioner alleges cannabis was grown there.

[7] More importantly, Ms King wishes to bring a counterclaim against the Commissioner for alleged breaches of her NZBORA rights. These occurred when the police searched her address on 6 July 2010. Mr Speed points out that the Supreme Court has already observed that it would be preferable for any such claim to be heard in tandem with the Commissioner’s claim.⁶ Mr Speed says that he has concluded that Ms King does not have the ability to file a counterclaim in a proceeding commenced by way of originating application. Furthermore, any fresh proceeding she might now file will be statute-barred for limitation reasons. The only way in which Ms King can avoid these difficulties is to ask the Court to require the Commissioner to file a statement of claim. If that occurs Ms King will be able to file a statement of defence and counterclaim. Mr Speed understands that limitation issues will not arise in relation to the filing of a counterclaim.

Decision

[8] I acknowledge that Ms King is entitled to know the basis on which the Commissioner seeks a profit forfeiture order against her. She must be taken to have a broad understanding of the Commissioner’s case, however, because she has already filed and served evidence in opposition to it. A statement of claim is not necessary to enable Ms King to understand the case that she faces.

[9] The second argument is more problematic. In effect Ms King is asking the Court to require the Commissioner to take a step that is not necessary so far as the proceeding in its present form is concerned. It is only necessary to enable her to commence a claim that she could not commence in her own right because it would be struck out.

⁶ Marwood v Police [2016] NZSC 139, [2017] 1 NZLR 260 at [48].

[10] Ms King has known of her potential claim for many years. The events that underpin it occurred more than eight years ago. This proceeding has been in existence since 2012. Furthermore, the alleged breaches arising out of the search of Ms King’s address have been the subject of consideration by this Court,⁷ the Court of Appeal⁸ and the Supreme Court⁹ in judgments relating to interlocutory issues that have been ongoing for many years. I acknowledge that the parties to this proceeding have been required to consider many important issues during the seven years the proceeding has been in existence. Even so, Ms King has had ample opportunity to bring her claim before now if she wished to do so.

[11] This Court has the undoubted power under r 19.5A of the High Court Rules 2016 to require the Commissioner to file and serve a statement of claim notwithstanding the imminence of the trial. In doing so it should be guided by r 1.2, which provides that the objective of the rules is to secure “the just, speedy, and inexpensive determination of any proceeding”. I see that objective as relating to an existing proceeding rather than a prospective proceeding.

[12] There may well be arguments as to whether it is just in the broader sense for Ms King to be denied the ability to bring her claim when it would be a relatively simple matter to require the Commissioner to file and serve a statement of claim and thereby provide her with a means by which to do so. I consider, however, that this wider issue of access to justice is effectively taken into account by the policy issues underlying the imposition of limitation periods generally. These seek to balance the right of a litigant to bring a claim within a reasonable period and the right of the opposing party to be free from potential claims at the expiration of that period. I do not consider the Court should exercise its discretion to enable Ms King to advance a counterclaim which she is barred by statute from bringing by way of a fresh proceeding.

Result

[13] The application is dismissed.

⁷ Commissioner of Police v Marwood [2014] NZHC 1866.

⁸ Commissioner of Police v Marwood [2015] NZCA 608, [2016] 2 NZLR 733.

⁹ Marwood v Commissioner of Police [2016] NZSC 139, [2017] 1 NZLR 260.

Costs

[14] The Commissioner has succeeded in defending the application and is entitled to costs on a category 2B basis together with disbursements as fixed by the Registrar.





Lang J

Solicitors:

Crown Solicitor, Rotorua Nicholls Law Ltd, Auckland

Jennifer G Connell & Associates, Newmarket Counsel:

M Ryan, Barrister, Auckland A Speed, Barrister, Auckland