Sathyan v Police Commissioner of Wellington [2016] NZCA 532 (9 November 2016)

Last Updated: 17 November 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA303/2016 [2016] NZCA 532
BETWEEN	DIVYA SATHYAN Applicant
AND	POLICE COMMISSIONER OF WELLINGTON Respondent

Hearing:	31 October 2016
Court:	Randerson, Cooper and Winkelmann JJ
Counsel:	Applicant in person A M Powell for Respondent
Judgment:	9 November 2016 at 4 pm

JUDGMENT OF THE COURT

The application for an extension of time to appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

[1] Ms Sathyan applies for an extension of time to appeal.^[1] She seeks to appeal a decision of Clark J in the High Court striking out her claim for an order of mandamus directing the Commissioner of Police to investigate complaints made to the police by Ms Sathyan, and for associated compensation.^[2]
[2] The High Court judgment was delivered on 9 December 2015. Ms Sathyan had 20 working days to file an appeal.^[3] Ms Sathyan filed a notice of appeal and an application for an extension of time on 29 June 2016, which is about five months out of time.

Relevant principles

[3] Rule 29A(1) of the Court of Appeal (Civil) Rules 2005 relevantly provides that where an appeal period has expired, a party who wishes to appeal may apply for an extension of time in which to appeal. If the application for an extension of time is opposed, the overarching consideration is where the interests of justice lie.^[4] Relevant to that assessment is the length of the delay and the reasons for it, the parties’ conduct, the extent of any prejudice caused by the delay, the prospective merits of the appeal and whether the appeal raises any issue of public importance.^[5] It is not in the interests of justice to grant an extension of time to pursue a hopeless appeal.^[6]
[4] This application for an extension of time is opposed by the Commissioner. He accepts the delay in filing the appeal was caused by a mistake on the part of an unrepresented party and that the delay does not cause prejudice. But he says that the application should not be granted as the appeal has little prospect of success and does not raise any issue of public importance. The application therefore turns upon its merits.

Merits of the appeal

[5] Ms Sathyan claims to be the victim of cyber-abuse. She reported hacking of her telephone and email accounts to the police for investigation but she alleges the police have not instigated an investigation of that complaint. She has also approached many other agencies seeking assistance including, to name a few, the Privacy Commissioner, the Office of the Ombudsman and the Government Communications Security Bureau. She has consulted a number of computer technical experts and has borrowed large sums of money to pay for these experts. She says that the overall effect of the hacking and cyber-abuse is that she is heavily in debt.
[6] Ms Sathyan sought an order of mandamus directing the Commissioner to perform what she characterised as his statutory duty to investigate her complaint. She also sought compensation for business loss and other financial losses which she claimed to have been caused by the Commissioner’s failure to perform that statutory duty.
[7] The Commissioner applied to strike out the statement of claim in its entirety on the ground that it disclosed no reasonably arguable cause of action. The Commissioner argued it is settled law that the courts do not involve themselves in reviewing the Commissioner’s decisions as to the allocation of police resources to the investigation of complaints.
[8] Clark J said although the claim was pleaded and argued as a claim for failure of duty, the essence of Ms Sathyan’s complaint was that the police had not responded to her requests for an investigation.^[7] The Judge said:^[8]

A mere non-investigation of a complaint, or series of complaints from a member of the public, does not of itself amount to a refusal or failure by the Commissioner to carry out his public law duty to enforce the law.

[9] The Judge distinguished the principal authority upon which Ms Sathyan relied, R v Commissioner of Police of the Metropolis, ex parte Blackburn,^[9] on the ground that that case involved a challenge to a directive issued by the Commissioner of Police to take no proceedings against clubs for breach of gaming laws.^[10] In that case, the English Court of Appeal held that the Commissioner of Police owed a duty to the public to enforce the law, a duty which the police could be compelled to perform.^[11]
[10] Clark J said the principle from Blackburn could not be invoked by the plaintiff to compel the police to investigate particular complaints by members of the public.^[12] The pleaded failure of the Commissioner to investigate a particular complaint, or series of complaints, by the plaintiff is not a refusal or failure to carry out his duty. The Judge held:

[26] The core of the plaintiff’s challenge is to the area of wide discretion which the defendant has in the allocation and use of limited resources. Those issues are for the Commissioner, not the courts. The court cannot direct the Commissioner as to the disposition of his resources.

...

[28] No matter how the plaintiff approaches her objective the legal position hardly could be clearer. It is for the Commissioner to decide whether inquiries should be pursued and the court may not direct him in such a matter.

[29] The plaintiff’s cause of action is not arguable and must be struck out.

(Footnote omitted.)

[11] Ms Sathyan wishes to argue on appeal that the Judge’s decision to strike out her claim is inconsistent with the Crimes Act 1961 and with her rights under the Privacy Act 1993 and the Human Rights Act 1993. She says it is inconsistent with other cases in which the writ of mandamus was issued to compel performance by members of the Executive of their statutory duties and with the decision in Blackburn. Finally, Ms Sathyan argues that the judgment “overrides the basic human rights principles guaranteed under the Universal Declaration of Human Rights” and her rights under the New Zealand Bill of Rights Act 1990.
[12] We are satisfied that the merits of Ms Sathyan’s proposed appeal are very weak. We understand Ms Sathyan’s argument to be that a failure to investigate her complaint constituted a breach of the Crimes Act, the Privacy Act and the Human Rights Act and was therefore a breach of statutory duty. But, as submitted for the Commissioner, the judgment striking out Ms Sathyan’s claim reflects a straightforward and correct application of settled case law. It is well established that the courts will not compel the police to commence an investigation into a particular incident or incidents. Ms Sathyan relies upon the Blackburn decision, but it was in that case that Lord Denning MR said:^[13]

Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter.

[13] As to the argument that the judgment “overrides the basic human rights principles under the Universal Declaration of Human Rights” or Ms Sathyan’s rights under the New Zealand Bill of Rights Act, the judgment involves the correct application of settled legal principles. We are satisfied also there is nothing in that settled law which is itself a breach of the rights guaranteed to Ms Sathyan under either the Declaration or the New Zealand Bill of Rights Act. The judgment is simply an application of the law to her case.
[14] For these reasons we consider that Ms Sathyan’s proposed appeal has no realistic prospect of success so that it is not in the interests of justice to extend the time to appeal.

Result

[15] The application for an extension of time to appeal is declined.
[16] We make no order as to costs.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Court of Appeal (Civil) Rules 2005, r 29A(1).

^[2] Sathyan v Police Commissioner of Wellington [2015] NZHC 3138, [2016] NZAR 175 at [35].

^[3] Court of Appeal (Civil) Rules, r 29(1). Ms Sathyan had a right to appeal the judgment under s 66 of the Judicature Act 1908.

^[4] My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19]; and Robertson v Gilbert [2010] NZCA 429 at [24].

^[5] My Noodle Ltd v Queenstown-Lakes District Council, above n 4, at [19]; and Wardell v ASB Bank Ltd [2015] NZCA 344 at [12].

^[6] Ngati Tahinga and Ngati Karewa Trust v Attorney-General CA73/02, 27 June 2002 at [3]; and My Noodle Ltd v Queenstown-Lakes District Council, above n 4, at [22].

^[7] Sathyan v Police Commissioner of Wellington, above n 2, at [24].

^[8] At [24].

^[9] R v Commissioner of Police of the Metropolis, ex parte Blackburn [1968] 2 QB 118 (CA).

^[10] Sathyan v Police Commissioner of Wellington, above n 2, at [18].

^[11] R v Commissioner of Police of the Metropolis, ex parte Blackburn, above n 9, at 136.

^[12] Sathyan v Police Commissioner of Wellington, above n 2, at [19].

^[13] R v Commissioner of Police of the Metropolis, ex parte Blackburn, above n 9, at 136.