TUARIKI DELAMERE V THE ATTORNEY-GENERAL HC AK CIV 2008-404-001377 [2009] NZHC 1047 (14 August 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                     CIV 2008-404-001377



                BETWEEN                        TUARIKI DELAMERE
                                               Plaintiff

   
            AND                            THE ATTORNEY-GENERAL
                                               Defendant


Hearing:
        12 August 2009

Appearances: B Henry for the Plaintiff
             J Pike for the Defendant

Judgment:       14 August 2009


                                JUDGMENT OF
                        ASSOCIATE JUDGE CHRISTIANSEN




                         
 This judgment was delivered by me on
                              14.08.09 at 2:00pm, pursuant to
                            Rule
11.5 of the High Court Rules.


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




Solicitors/Counsel:
B Henry, Barrister, Auckland - Fax: [phone] [e-mail]
J Pike, Crown Law,
Wellington - Fax: [phone]


TUARIKI DELAMERE V THE ATTORNEY-GENERAL HC AK CIV 2008-404-001377 14 August 2009

[1]      Mr
Delamere has filed a claim alleging misfeasance in public office by
Immigration New Zealand (INZ).          He seeks damages of $500,000
for loss of
reputation.


[2]      Mr Delamere was formerly the Minister of Immigration. Now he is an
immigration consultant engaged
in providing advice to applicants mainly from
China.


[3]      This proceeding represents Mr Delamere's fourth attempt to bring
a claim.
His first attempt was in the outcome of his trial acquittal following his prosecution
by the Serious Fraud Office in relation
to an immigration operation.


[4]      Mr Delamere's claims have now been amended three times in response to
strikeout applications.
We are concerned with the third amended statement of claim.
It too is the subject of a strikeout application. By it Mr Delamere sues
the Attorney-
General claiming that certain employees of INZ exercised statutory powers for the
purpose of intentionally causing
him harm in his business of an immigration
consultant.


[5]      Mr Delamere's claim includes allegations that:


         1. Business
based immigration applications from his clients were
              part of a general backlog of 3000 claims but 91 of those backlog
              cases were subject to favourable treatment because the
              immigration officer for those 91 cases was married
to the General
              Manager.


         2. Mr Delamere exposed the fact of illegal INZ "raids" on massage
             
parlours, which exposure induced another employee to make
              decisions adverse to Mr Delamere's interests.


        
3. INZ was the complainant in the prosecution brought by the
              Serious Fraud Office.

[6]    Mr Delamere pleads that
these events induced INZ to make numerous wrong
decisions on Mr Delamere's sponsored residency applications, INZ knowing the
decisions
were wrong, intending to cause Mr Delamere damage.


[7]    Mr Delamere's claim references 27 instances of "wrongful decisions".
I will
say more of those shortly. In effect Mr Delamere seeks to sue for damages on
decisions affecting other persons. His claim
in misfeasance is founded upon his
proposition that INZ "has a duty to consider each person's application on the
merits... without
being influenced by factors such as the immigration officer who
assists the person...". In essence Mr Delamere claims the law provides
that there is
a duty owed to him as an immigration consultant which is actionable in law.


[8]    To prove his claim, Mr Delamere
must show that:


       1. A specific person.


       2. Holding public office.


       3. Abused a relevant (statutory) power.


       4. Intending thereby to cause an economic loss.


       5. For which he has standing to sue.


[9]    Mr Delamere says
in essence that in all of the 27 instances detailed by his
claim certain named senior INZ employees made decisions knowing that they were
acting in breach of the duty they
owed as officers in considering applications by
clients of Mr Delamere. He is asserting that in essence those employees had a duty
not to take irrelevant matters into account. Mr Delamere claims INZ operates a
computer database which contains false information
about him using false
documents in his clients' applications.


[10]   For the purposes of a strikeout application I should assume
that the facts
pleaded by Mr Delamere are true. I should only strikeout a cause of action where
even on the most favourable interpretation
of the facts pleaded, they are clearly so

untenable they cannot possibly succeed. The strikeout jurisdiction should be used
sparingly
and only in clear cases.


The pleadings


[11]       The six named employees are claimed to be "responsible to ensure [INZ]
carries
out [its] statutory duties", including:


       ·       Approval of applications by Mr Delamere's clients;


       ·       To consider
each application on its merits without being influenced by
               the fact that they are Mr Delamere's clients; and


  
    ·       To ensure an equality of treatment regardless of their connection to a
               particular immigration consultant.


[12]       The pleading then sets out details of a series of events which it says has
affected the relationship between Mr Delamere
and INZ. I have covered some of
these in paragraph 5 of this judgment. Then it is pleaded that as a consequence of
these events INZ
and its employees when considering residency applications for Mr
Delamere's clients have "wrongfully exercised their power of decision
knowing that
such wrongful exercise of power would cause [Mr Delamere] damage".


[13]       It is then pleaded that INZ with the
assistance of the employees operates a
computer system known as AMS which provides information to its staff for the
process of immigration
applications.           Mr Delamere pleads that information
wrongfully alleges that he has deliberately provided false documents
in support of
his clients' applications; that such caused prejudice to his clients, and; INZ's officers
are acting in breach of normal
policy by not documenting their reasons for decisions
in respect of Mr Delamere's clients.


[14]       The statement of claim then
details the 27 "wrongful decisions" by reference
to the names of clients Mr Delamere claims were affected. In some instances the
names of particular immigration officers are mentioned in connection with

allegations of undue delay or having used wrong criteria
when processing
applications.


[15]    In all of this Mr Henry submits that this is a proper way of pleading a claim
for misfeasance
i.e. by referring to acts done in an official capacity that affected Mr
Delamere's clients when the intention was to inflict damage
to Mr Delamere.


[16]    Overarching that submission is Mr Henry's submission that the tort of
misfeasance in public office is a
developing tort. Mr Henry refers me to the decision
of the full Court of Appeal in Garrett v Attorney-General  [1997] 2 NZLR 332 at 349
­ 350 wherein the Court noted:

       "The tort is not restricted to a case of deliberately wanting to cause harm to
   
    anyone; it also covers a situation in which the officials act or failure to act is
        not directed at the injured party
but the official sees the consequences as
        naturally flowing for that person when exercising power. In effect this is no

       more than saying the tort is an intentional tort. In this context, a person
        intends to bring about the known consequences
of his or her actions or
        omissions, even if other consequences form the primary motive. ... The
        concept of attributing
intention by necessary inference in this way is well
        established."

[17]    Although acknowledging that there is no precedent
for a claim in the nature
brought by this proceeding Mr Henry submits that a more expansive view can be
taken in pleading a claim
of misfeasance. In support of this view Mr Henry also
relies upon the decision of the Court of Appeal in New Zealand Defence Force
v
Berryman  [2008] NZCA 392 at paragraphs 62 ­ 64. There the Court noted:

       "Misfeasance in public office is concerned with preventing the abuse of public
        powers. The tort is committed whenever a public officer qua public officer
        knowingly or recklessly acts either with
malice towards another or in the
        knowledge that he or she is acting unlawfully and is likely to injure the
        plaintiff...

        For the plaintiff to succeed in misfeasance the defendant must be a public
        officer. This means someone appointed
to discharge a public duty in return
        for compensation. That said, there is scope for doubt and debate as to the
        breath
of the concept of public office for the purposes of the tort. ... Also
        open to question is whether a claim for misfeasance
in public office is
        available only in relation to the performance or purported performance of
        public functions ...
that said, the actions of a public officer must have some
        public character before they can be the subject of a claim for
misfeasance in
        public office."

[18]   Mr Henry submits that Mr Delamere's claim is on the boundary of that area
where the
tort of misfeasance is moving. It would he said be "horribly wrong" to
deny a right of claim to someone whose clients are deliberately
being mishandled
because of their association with him.


[19]   The difficulties facing Mr Delamere on this occasion, as indeed
they have in
the claims he has earlier amended, involve the law. Mr Henry is well aware of those
difficulties. He has addressed them
in his submissions. He submits against the
background of allegations made that there is a real issue for determination. Mr
Henry
acknowledges that allegations of specific conduct ought identify particular
individuals. He submits that has been done adequately
by the naming of the six
senior employees. He said that until Mr Delamere gets full discovery, including,
presumably, access to INZ's
computer database, it is difficult to particularise
allegations attributable to specific officers. When the discovery is available,
Mr
Henry says particularisation of conduct and personnel will be readily remedied.


[20]   Mr Henry acknowledges the difficulties
caused by section 6(1) of the Crown
Proceedings Act 1950.     The proviso to that section reinforces the fundamental
principle that
the Crown cannot be found to have committed a tort unless in
circumstances an employee of the Crown would be liable. In brief someone
has to
be identified and to whom there can be ascribed particular wrongful acts. Mr
Delamere seeks to overcome that difficulty by
naming certain individuals in his
claim and by identifying their connection with INZ. Mr Delamere's claim identifies
27 instances
of actions which he claims have directly affected his clients but he says
in so doing they have also affected him and that he should
not be precluded from
bringing a claim when the treatment given to his clients has targeted him also.


Considerations


[21]   The
fact is that of the 27 instances Mr Delamere asserts were "wrongful
decisions" none of the persons directly affected by those decisions
has challenged
them at all by way of judicial review, and only three have appealed to the Residents
Review Board.     In effect Mr
Delamere seeks to sue for damages on decisions
affecting other persons who have not sought review or redress. Mr Henry submits

that the tort of misfeasance in public office is a developing and flexible area of law
and should cover damage to Mr Delamere resulting
from the systematic and
malicious denial of proper consideration to his clients. Mr Delamere stands to suffer
if he acquires a reputation
that his clients' applications will not have the same or will
have less favourable consideration than other equally meritorious applications.


[22]   Mr Henry acknowledges the difficulty in pleading a claim for damages which
in essence is founded upon a claim of reputational
damage, because such a claim
arises in an action for defamation, which this proceeding is not. Mr Henry submits
this is a matter of detail that can
if necessary be addressed later as a claim for loss of
opportunity to obtain further clients because of the malice of INZ's employees.
According to Mr Henry malicious prosecution and malicious falsehood can lead to
substantial reputational damage that is recoverable
without the need to prove special
or particular damage; that claims based on malicious behaviour should not be limited
by technical
rules and should not be denied because the defamation laws do not
provide a remedy for the type of conduct Mr Delamere complains
of. Mr Delamere
should not be denied damages because his claim of damage to himself caused by the
adverse treatment of his clients
due to the malicious conduct of INZ's employees can
only be remedied by a claim of misfeasance in public office.


[23]   As Mr Henry's
submissions demonstrate, there are requirements of pleading
which need go beyond general and unspecified allegations involving unparticularised
persons.   Mr Delamere's claim identifies a number of persons but apart from
describing their position within INZ it does not otherwise
connect them to general
claims of malicious conduct. Mr Delamere asserts that false information has been
supplied to and is contained
on INZ's computer database but there is no pleading as
to who supplied that information nor who in reliance upon it has made tainted
decisions. If Mr Delamere is to prove his claim he must identify bad faith by a
particular decision-maker in a particular respect.
Otherwise the claim should fail.
The Crown can only be liable to the extent that its employee would be liable for the
act complained
of. It is a claim not against the institution of government but is
concerned with an individual consciously abusing the powers entrusted
to him/her,
and does so knowing it may harm someone.

[24]   That is the difficulty I have with Mr Delamere's pleading because it
seeks to
impose collective liability in respect of those 27 "wrongful decisions" by employees
knowing that they were acting in breach
of their duty in considering his clients'
applications. A claim for liability in misfeasance must refer to a particular person in
a particular public office maliciously exercising a particular power intending to
cause Mr Delamere loss. Yet, the 27 "wrongful decisions"
all relate to cases which
on their face were dealt with pursuant to the enforcement processes available to INZ.
Mr Delamere did not
suffer any wrong for what was done to his clients and as I
previously noted very few of those decisions were challenged.        
    Therefore they
remain valid.


[25]   If a claim of misfeasance is to be proved then particularisation of wrongful
act and wrongful
doer is necessary. This means a claim which depends on liability
being contributed to by numerous individuals named or not, will
not succeed.


[26]   In Rawlinson v Rice  [1997] 2 NZLR 651 (CA) at p 665 Tipping J defined the
criteria the plaintiff had to satisfy with the claim for misfeasance in public office as:



      1. That the plaintiff had standing to sue.


       2. That the defendant held and was acting in the course of a public
  
        office.


       3. That the defendant knew or is presumed to have known (or
           showed reckless indifference to whether)
he was acting outside the
           limits of his power.


       4. That the defendant knew or is presumed to have known (in that
he
           was recklessly indifferent) that his conduct was likely to harm the
           plaintiff as an individual or as a member
of a class.


       5. That the defendant's conduct did cause the plaintiff harm.


[27]   Therefore it must be shown that the duty
owed was one that is owed to the
plaintiff as a member of the public. It is more than merely showing that there is a

duty imposed
on the officer concerned. Although the Crown Proceedings Act bars
claims against the Crown based on "corporate" liability in fact
Mr Delamere's claim
seems to suggest corporate liability as the basis of his claim because he has named
various persons in connection
with the decision-making processes without ascribing
to them particular acts for which they individually would be accountable.


[28]   Mr Delamere's pleading identifies named employees but is far too loose in
describing their connection to specific acts or
events ­ instead saying these things
have occurred because those persons are in positions of responsibility to ensure those
things
should not occur. That is not I think enough. I agree with Mr Pike that claims
of the responsibility of those named persons is too
diffuse and are deficient.


[29]   In dealing with the issue of damages Mr Henry encouraged me to accept that
any deficiencies of
pleading were really deficiencies of form and not of substance
i.e. that they were capable of being sorted out later. I do not share
that optimism.
Mr Delamere's claim for loss is specifically related to damage to reputation.
Therefore his claim lies in defamation.
A claim of $500,000 "general damage" does
not alter that fact. A claim for damage in defamation does not require proof of
monetary
loss, but a claim for damage for the tort of misfeasance does. Therefore
specific damage must be identified. Although Mr Henry indicated
specific damage
could be identified, in reality this is a claim for loss of reputation and as such cannot
be sustained other than
by a claim of defamation i.e. not by a claim of misfeasance.


[30]   Mr Henry has submitted the tort is a developing one but likely
it has not
reached the stage of enveloping a claim for reputational damage. Mr Henry submits
that if he has to, he will recast the
claim to provide for special damages but he has
not made it clear to me how this can be done. Whatever the position, Mr Delamere's
case will always face difficulty with the decision of the House of Lords in Watkins v
Secretary of State for the Home Department
[2006] 2 AC. The head note of that
case notes that proof of special damage is an essential ingredient of the tort of
misfeasance
in public office and a rule which has represented the law for over 300
years should not be disturbed without compelling reasons for
doing so.              That
statement was re-emphasised in a number of the judgments given in that case.

[31]   Accordingly Mr
Delamere's claims are untenable because:


       1. He has no standing to sue in relation to decisions which remain
           valid
and affect persons other than Mr Delamere, those persons
           not having sought relief in relation to those decisions.


 
     2. There is no identifiable person holding any public office sued in
           relation to abuse of that office.


       3.
The claim is barred pursuant to s 6 of the Crown Proceedings Act.


       4. Mr Delamere does not plead in special damage.


  
    5. Damage to reputation per se is actionable by a pleading in
           defamation, and in no other case.


Decision


[32]   The proceeding is struckout.


[33]   Costs are awarded
to the defendant on a 2B basis together with disbursements
approved. Counsel have leave to apply if costs cannot be agreed.




Associate
Judge Christiansen