MCPHAIL V THE UNIVERSITY OF AUCKLAND HC AK CIV 2008-404-005616 [2009] NZHC 147 (17 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                 CIV 2008-404-005616



              BETWEEN                       ALEXANDER VIVIAN HUGH
                                            MCPHAIL
       
                                    Plaintiff

              AND                           THE UNIVERSITY OF AUCKLAND
          
                                 Defendant


Hearing:      16 February 2009

Counsel:      DJ Neutze for defendant

Appearance: AVH
McPhail, plaintiff, in person

Judgment:     17 February 2009 at 1pm


                 JUDGMENT OF ASSOCIATE JUDGE FAIRE
      
                [on application to strike out]




Solicitors:    Brookfields, PO Box 240, Auckland for defendant

And To:      
 AVH McPhail, 1H/18 Federal Street, Auckland




MCPHAIL V THE UNIVERSITY OF AUCKLAND HC AK CIV 2008-404-005616 17 February 2009

[1]        The defendant applies for an order striking out the plaintiff's statement of
claim. The grounds advanced in support
of the application are:


           a)     That the statement of claim discloses no reasonable cause of action;


           b)
    The pleading is likely to cause prejudice, embarrassment or delay in
                  the proceeding;


           c)     The
pleading and the proceeding are frivolous and vexatious; and


           d)     The pleading and the proceeding are an abuse of
the process of the
                  Court.


[2]        This proceeding was filed on 29 August 2008. The application to strike out
was filed on 3 September 2008.           At a case management conference held on
16 October 2008 I had a discussion with the plaintiff.
I pointed out problems with
his proceeding. I issued a written minute in which I ordered that any amended
statement of claim shall
be filed and served together the plaintiff's notice of
opposition to the strike out application no later than 17 November 2008. 
           The
application was adjourned to 11 December 2008 for the purpose of allocating a
fixture.


[3]        An amended statement
of claim has been filed. A notice of opposition has
been filed. The fixture was allocated. The defendant's submissions were served
on
Mr McPhail in advance of the hearing.


[4]        The application, as framed, relied on rr 186 and 477 of the High Court Rules
and the inherent jurisdiction of the Court.


[5]        As a result of the Judicature (High Court Rules) Amendment Act 2008 new
High Court Rules were introduced. Section 9 of that Act requires that I determine
this strike out application pursuant to the new
Rules in the High Court Rules as
introduced by the Judicature (High Court Rules) Amendment Act 2008.                  This
position
was discussed during the hearing and explained to Mr McPhail. As a

consequence, the primary Rule which is relied upon by the defendant
is r 15.1 which
provides:

       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.

[6]    Purely for the sake
of completeness, I refer to the second Rule which was
referred to in submissions. That was a reference to r 108 as it appeared in the former
High Court Rules. That Rules appears substantively unchanged in
the new High
Court Rules and is r 5.26. Rule 5.26 provides:

       5.26   Statement of claim to show nature of claim

       The
statement of claim--

       (a)    must show the general nature of the plaintiff's claim to the relief
              sought; and

       (b)    must give sufficient particulars of time, place, amounts, names of
              persons, nature and dates of instruments,
and other circumstances to
              inform the court and the party or parties against whom relief is
              sought of
the plaintiff's cause of action; and

       (c)    must state specifically the basis of any claim for interest and the rate
   
          at which interest is claimed; and

       (d)    in a proceeding against the Crown that is instituted against the
    
         Attorney-General, must give particulars of the government
              department or officer or employee of the Crown concerned.

The Court's approach to strike out applications


[7]    The general principles to be applied on a strike out application are well
understood. They were confirmed by the Court of Appeal in Attorney-General v
Prince and Gardner  [1998] 1 NZLR 262 at 267 where the Court said:

       A striking-out application proceeds on the assumption that the facts pleaded
       in the statement
of claim are true. That is so even although they are not or
       may not be admitted. It is well settled that before the Court
may strike out
       proceedings the causes of action must be so clearly untenable that they
       cannot possibly succeed. (R
Lucas & Son (Nelson Mail) Ltd v O'Brien
        [1978] 2 NZLR 289 at pp 294-295; Takaro Properties Ltd (in receivership) v
       Rowling  [1978] 2 NZLR 314 at pp 316-317); the jurisdiction is one to be
       exercised sparingly, and only in a clear case where the Court is satisfied it
       has the requisite material (Gartside v Sheffield, Young & Ellis  [1983] NZLR
       37 at p 45; Electricity Corporation Ltd v Geotherm Energy Ltd  [1992] 2
       NZLR 641); but the fact that applications to strike out raise difficult
       questions of law, and require extensive argument does not exclude
       jurisdiction (Gartside v Sheffield, Young & Ellis).

[8]    Applications are determined primarily on the pleadings. The Court
may have
consideration to affidavits if they disclose that despite what is contained in the
pleadings a cause of action that may
succeed. If that is so, the Court may instead of
striking out the pleading give the plaintiff an opportunity to amend so as to plead
a
tenable cause of action properly. However,

       There may, of course, be circumstances where the pleading is so bad that the
       Court should not allow this opportunity and simply strike out the relevant
       pleading leaving it to the plaintiff to
come again if within time and capable
       of putting his house in order.
                           Marshall Futures v Marshall
 [1992] 1 NZLR 316 at 323.

[9]    Mr Neutze made reference to two judgments which have significance to this
case because there is similarity between
the matters pleaded and the matters which
were considered in those authorities. The first is Young v Police  [2007] DCR 261.
In that case, Randerson J struck out a claim which included, in the prayer for relief, a
claim for $20,000 for defamation. His Honour
said of the allegations:

       [52]    In relation to the allegation of defamation, no detail is given of the
               material
alleged to have been disclosed; there is no allegation that
               the information disclosed was untrue or defamatory; no
defamatory
               meanings are alleged; and no particulars of the damages claimed are
               given.

       [53]
    The pleading of defamation is completely defective because it makes
                no allegation of defamation other than to
claim damages in the
                prayer for relief. Rule 108(b) of the High Court Rules requires such
                particulars
and other circumstances as may suffice to inform the
                Court and the parties of the cause of action. In the case of
                defamation, the requirement for particulars of defamatory meaning is
                reinforced by s 37 of the Defamation
Act 1992 and, where punitive
                damages are claimed, particulars are required by s 44 of the
                Defamation
Act of the facts or circumstances that the plaintiff
                alleges would justify such an award. No particulars are given
of any
                consequences at all to Mr Young let alone any consequences which
                might justify an award of
exemplary damages.

       [54]     The pleading is so inadequate that it is not capable of repair. A
                complete rewriting
would be necessary. The relief seeking that
                details of the alleged offence be removed from the police files, is not
                available under s 27 NZBORA as claimed.

       [55]     I conclude that there is no prospect this cause of action
could
                succeed and that the pleading is so defective as to amount to an
                abuse of process.

[10]  
The second authority referred to by Mr Neutze is the Court of Appeal
decision in Reid v New Zealand Trotting Conference  [1984] 1 NZLR 8. The Court
of Appeal was considering a strike out application made in respect of a proceeding
which contained four causes of action.
They were namely, defamation, conspiracy,
injurious falsehood and breach of natural justice. The Trotting Conference was
named as
the first defendant. The race course inspector who wrote the report was the
second defendant.       The person whose name the plaintiff
had signed on the
registration form was the third defendant. At page 14, paragraph 3, the Court said of
the pleading:

       We
have already adverted to some of the deficiencies in the pleadings. They
       include the lack of essential particulars as to when
particular statements were
       published and where and to whom, the want of the requisite specificity of
       particulars of
the serious charge of conspiracy, the generalised allegations of
       malice and the incompleteness of the fourth cause of action
as pleaded. The
       amended statement of claim filed in response to the applications to strike out
       dealt only, and in unsatisfactorily
broad terms, with the calculation of
       damages. It seems that the plaintiff was not able at that time to remedy other
     
 defects in his pleadings. In these circumstances there is no particular reason
       for assuming that if he were granted the indulgence
of amendment after all
       this time he would now be able to amend or reconstitute his pleadings so as
       to give those particulars
to which the respondents would be reasonably
       entitled.

[11]   The first three paragraphs of the statement of claim raise
the possibility of
three causes of action. The first refers to violations of the Privacy Act 1993. The

second refers to traducement
and defamation. The third refers to incompetence
and/or corruption. Mr Neutze referred to the fact that paragraphs 8 and 9 appear
to
be the only paragraphs that might provide particulars.             That may be an over-
simplification because there is reference
to persons involved in paragraph 6.


[12]   What is important, however, is that the document read as a whole does not
identify or
support a tenable or reasonably arguable cause of action against the
defendant. The particulars, which are set out in paragraph 10,
make no sense.


[13]   I have referred to the requirements of the High Court Rules dealing with a
statement of claim and, in particular,
the requirements of r 5.26. That coincides with
the old r 108, which was in operation at the time both the original statement of
claim
and the amended statement of claim were filed. The High Court Rules require a
plaintiff to show the general nature of his claim.
He must give such particulars as
may suffice to inform the Court and the party against whom the relief is sought of
his cause of
action. The document which the plaintiff has filed is hopelessly devoid
of compliance with r 5.26. Indeed, there is no foundation
in the matters that are
referred to in the document for me to discern any cause of action, particularly in the
nature of the three
areas that are referred to in the first three paragraphs. Nor is there
any specific pleading by which, even if there was some wrongdoing
alleged by the
actions referred to in the statement of claim, where any direct connection can be
made with the University which has
been named as defendant.


[14]   Mr Neutze, in his carefully prepared submissions, points out a number of
other problems and fatal
obstacles to the current pleading.


[15]   He submits, quite correctly, that there are no particulars of violations of the
Privacy
Act 1993 supplied which might disclose an arguable cause of action. He
drew attention to s 11 of the Privacy Act 1993, which provides:

       11      Enforceability of principles

       (1)     The entitlements conferred on an individual by subclause (1) of
   
           principle 6, in so far as that subclause relates to personal information
               held by a public sector agency,
are legal rights, and are enforceable
               accordingly in a court of law.

       (2)      Subject to subsection (1) of this section,
the information privacy
                principles do not confer on any person any legal right that is
                enforceable
in a court of law.

He correctly submitted that the only legal rights enforceable in a Court of law under
s 11 relate to access to
personal information held by a public sector agency. He
correctly submitted that the Privacy Act 1993 does not confer any other legal
rights
enforceable in a Court of law. He noted that the plaintiff makes no allegation that
his claim relates to access to any personal
information held by the defendant. He
correctly submits that the High Court, therefore, does not have the jurisdiction to
determine
the type of violation of the Privacy Act 1993 which the plaintiff may be
referring to. Although it is not necessary, for the purposes
of this decision, he
helpfully set out in his submissions, the procedure which is contained in the Privacy
Act 1993 for resolving
complaints of breaches of that Act.


[16]   Mr Neutze dealt with the general defamation matter. He correctly submitted
that the
amended statement of claim does not meet the requirements of either s 37 of
the Defamation Act 1992 or r 5.26 of the High Court Rules.
For completeness sake I
set out s 37:

       37       Particulars of defamatory meaning

       (1)      In any proceedings for
defamation, the plaintiff shall give particulars
                specifying every statement that the plaintiff alleges to be defamatory
                and untrue in the matter that is the subject of the proceedings.

       (2)      Where the plaintiff alleges that
the matter that is the subject of the
                proceedings is defamatory in its natural and ordinary meaning, the
       
        plaintiff shall give particulars of every meaning that the plaintiff
                alleges the matter bears, unless that
meaning is evident from the
                matter itself.

       (3)      Where the plaintiff alleges that the matter that is the
subject of the
                proceedings was used in a defamatory sense other than its natural
                and ordinary meaning,
the plaintiff shall give particulars
                specifying--

                (a)     The persons or class of persons to whom
the defamatory
                        meaning is alleged to be known; and

                (b)     The other facts and circumstances
on which the plaintiff
                        relies in support of the plaintiff's allegations.

[17]   There is, in the amended
statement of claim, no clear statement as to the time
or date of an alleged defamatory statement. Nor is there the name of any person
who
made or caused the statement to be made. I do not accept Mr McPhail's response
that the allegations contained in paragraph 6,
and read with paragraphs 8 and 9,
provide such information.


[18]   Mr Neutze further correctly submitted that the plaintiff has
failed to specify
whether the alleged insults are defamatory on their natural or ordinary meaning or
whether they are defamatory,
other than on their natural or ordinary meaning. He
submitted that if the plaintiff's intention was that the words are defamatory
other
than on their natural or ordinary meaning, the plaintiff has failed to provide any
particulars specifying the person, or class
of persons, to whom the defamatory
meaning is alleged to be known, or any other facts and circumstances on which he
relies in support
of his allegation.


[19]   Mr Neutze, again correctly, referred to further deficiencies in the pleading.
He drew attention to the
fact that the plaintiff has not claimed that either the
defendant or any of the parties specified in clause of the amended statement
of claim:


       a)      Made any of the alleged insults; or


       b)      Caused any of the insults to be made.


In short,
one of the essential requirements, that of publication, has not been pleaded:
Laws NZ, Defamation para 156.


[20]   He also correctly referred to the fact that the statement
of claim does not
specifically allege that the defamatory words refer to the plaintiff. In addition, it
does not provide any set
of facts which connect whatever the statement was to the
plaintiff. The need for this is referred to in Laws NZ, Defamation para
156.


[21]   Mr Neutze submitted, but there is no need for me to finally determine the
matter, that the insults referred to where
innocuous and were incapable of being
defamatory. It is not necessary to resolve that because the deficiencies already

referred
to are sufficient by themselves to conclude that the current cause of action
has no tenable basis for it.


[22]   The third general
matter raised is an allegation of incompetence and/or
corruption. Mr Neutze drew attention to the fact that the precise pleading
does not
disclose any known cause of action. He was prepared, however, to analyse the
matter on the basis that perhaps what was alleged
by the plaintiff was negligence
and/or fraud.


[23]   I agree with his submission and adopt it, that the reference to incompetence
or corruption does not provide, by itself, a cause of action.


[24]   If one looks at the allegation as meaning an allegation of
fraud, this statement
of claim is seriously deficient. Allegations of this nature must be:

       Specific, pointed and relevant.
                                     Prosser v NZ Investment Trust [1937] GLR 93.

There is simply no foundation laid out for such
an allegation in the current statement
of claim.


[25]   In relation to a pleading of negligence, particulars must be given of acts
or
omissions on the part of the defendant which caused or contributed to the event
concerned. Those acts or omissions must be such
as can be said to constitute
negligence. They must also give rise to a duty of care: McGechan on Procedure,
para 5.26.08(2).


[26]
  I cannot find, in the amended statement of claim, any proper basis for an
allegation of fraud or an allegation of negligence.


[27]   An opportunity was given to Mr McPhail to amend the proceeding. He took
advantage of the opportunity but really his amended
pleading adds nothing to the
deficiencies which are self-evident from his pleading. As already mentioned, his
reference to violation
of the Privacy Act 1993 cannot provide any reasonable cause.
His reference to defamation is completely defective. The pleading does
not comply
with r 5.26 nor does it comply with s 37 of the Defamation Act 1992, nor can I see

anything in the document which causes
me to consider that yet further amendments
might cure the substantial problems that the current document has.


[28]   The reference
to incompetence and corruption, which I have analysed as
Mr Neutze did, as a possible fraud and negligence cause of action similarly
fails. Of
importance here is the fact that there is no suggestion that the general matters
referred to by Mr McPhail in his amended
statement of claim could, in fact, be cured
to provide a proper cause of action.


[29]   I conclude that the statement of claim
and the amended statement of claim
fall within those category of case which require the immediate striking out. I order
accordingly.


[30]   Mr Neutze sought costs on a 2B basis which he had calculated, including
disbursements, at $3,525.53. He provided a schedule
attached to his submissions.
Mr McPhail was given the opportunity of checking the calculation. He indicated that
he did not wish
to avail himself of that. Although Mr Neutze's schedule was
prepared based on the old High Court Rules, the references contained
in the current
Schedule 3 are the same for the items mentioned in Mr Neutze's schedule and are
correct.   Accordingly, I order that
the plaintiff pay the defendant costs and
disbursements in the sum of $3,525.53.




                                           
              _____________________

                                                                            JA Faire
                                                            
        Associate Judge