Crequer v Attorney-General HC Whangarei CIV-2010-488-471 [2011] NZHC 127 (22 February 2011)

Last Updated: 25 May 2011

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CIV-2010-488-471}

BETWEEN DAVID OWEN CREQUER Appellant

AND THE ATTORNEY-GENERAL Respondent

Hearing: 9 December 2010

Appearances: Appellant in person

T Warburton for the Respondent

Judgment: 22 February 2011 16:00:00

_{JUDGMENT OF WOODHOUSE J}

This judgment was delivered by me on 22 February 2011 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

..........................................

Solicitors / Parties:

Mr D O Crequer, Maungatapere

Ms T Warburton, Crown Law Office, Wellington

CREQUER V THE ATTORNEY-GENERAL HC WHA CIV-2010-488-471 22 February 2011

[1] Mr Crequer brought a claim in the District Court against the Attorney- General. In essence, Mr Crequer alleged that the Attorney-General had acted (directly or indirectly) contrary to his duties as Attorney-General in relation to a separate proceeding that had earlier been issued by Mr Crequer against the Minister in charge of the Accident Compensation Corporation (the estate proceeding). Mr Crequer alleged, amongst other things, that the Attorney-General had conspired, and was continuing to conspire, to pervert the course of justice. Mr Crequer claimed damages of $50,000.

[2] The proceeding was struck out by Judge de Ridder and Mr Crequer was ordered to pay costs. Mr Crequer appealed against both decisions. He also contended that Judge de Ridder should have recused himself because of a conflict of interest arising from earlier decisions of the Judge.

Background

[3] Judge de Ridder summarised the background facts as follows:

[3] In November 1997 Mr Crequer’s wife died and, as a result, their two children are entitled to weekly compensation under the Injury Prevention, Rehabilitation and Compensation Act 2001. From time to time the plaintiff received the Domestic Purposes Benefit, and in assessing the level of benefit paid to Mr Crequer deductions were made equivalent to the sum the children received in weekly compensation payments.

[4] Mr Crequer challenged these deductions but the Chief Executive of the Ministry of Social Development confirmed the deductions which decision was confirmed by the Benefits Review Committee and the Social Security Appeals Authority. Mr Crequer then appealed to the High Court, but the High Court confirmed the approach taken in deducting the payments.

[5] On 4 December 2008 Mr Crequer brought a claim [in the name of his wife’s estate] against the Minister in charge of the Accident Compensation Corporation claiming that the deduction of tax and accident compensation employment levies from his children’s weekly compensation was in error and seeking $100,000 (“the estate proceedings”). On 12 March

2009, Mr Crequer emailed the Attorney-General asking whether the Minister in charge of the Accident Compensation Corporation had been indemnified in respect of these proceedings. On 4 April 2009 the Attorney-General advised Mr Crequer in writing that such indemnification was not necessary as the Minister had been incorrectly named as the defendant in the proceeding, and that the proceeding should have been brought against the Accident Compensation Corporation directly as it was a legal entity capable of being sued in its own right.

Thank you for your e-mail of 12 March.

Your e-mail asks whether the Hon Nick Smith, as the Minister for the Accident Compensation Corporation, has been indemnified by the Crown in respect of the proceeding you have commenced in the District Court.

The procedure for indemnifying a Minister set out in the Cabinet Manual has not been applied in this case. This is because the Minister has been incorrectly named as the defendant. The proceeding should have been brought against the Accident Compensation Corporation directly as it is a legal entity capable of being sued in its own right. In time, I expect that this will be addressed by the District Court.

You also suggest that public money should not be used to defend your claim. It is not appropriate for me to comment on this proceeding as it is before the Court.

[5] The Judge’s summary of the background facts concluded as follows:

[6] Subsequently, application was made on behalf of the defendant Minister named in those proceedings to strike out or add a party on the basis that the proper defendant was the Accident Compensation Corporation and on 15 October 2009 the District Court made an order substituting the Corporation for the Minister as defendant. On 19 October 2009 a judgment was also issued on the estate proceedings.

[6] The decisions in the estate proceeding of 15 and 19 October 2009 were decisions of Judge Harvey. In his judgment of 19 October 2009, on the substantive issues, Judge Harvey:

(a) Noted that it had been conceded by the respondent that the accident compensation employee levies (earner premia deductions) should not have been deducted from the children’s weekly accident compensation payments.

(b) Held that the deduction of tax from those payments was required by s RA5 of the Income Tax Act 2007.

[7] The claim against the Attorney-General, which is the subject of this appeal, was filed by Mr Crequer in May 2009. In other words, it was filed before the two decisions in the estate proceeding. However, the strike out application, which was filed in June 2009, was not heard until 12 February 2010.

[8] Judge de Ridder said that the claim “is somewhat difficult to discern”. I agree that it is not easy to follow. From submissions by Mr Crequer to me, it appears that the statement of claim remained in this state notwithstanding earlier directions from the District Court that the original document, or documents, filed by Mr Crequer be returned to him for modification to enable the claim to be better understood.

[9] A summary of the contentions, with some of the statement of claim paragraphs set out in full, is as follows.

(a) The Attorney-General advised Mr Crequer that the estate claim should be against the Accident Compensation Corporation, not the Minister for the Accident Compensation Corporation.

(b) The Crown had threatened in the estate proceeding to bring a strike out application, but a report of the Justice and Electoral Committee on the Attorney-General’s vote indicates that a strike out application may be contrary to its responsibilities.

(c) In the strike out application the Crown Law Office had lied to the Court in suggesting more time was needed to enter into settlement negotiations with Mr Crequer. The basis for this contention appears to be that no settlement offer had been made and a suspicion that no instruction had been given to Crown Law to negotiate a settlement. (A fact earlier recorded should be recorded again at this point: Crown Law on behalf of the defendants in the estate proceeding conceded that the employee levy should not have been deducted from the weekly Accident Compensation payments made to Mr Crequer’s children arising from their mother’s death. And see [25] below.)

(d) The Attorney-General was funding Crown Law with taxpayer money to prolong by questionable means a defence of the estate proceeding. This clearly was indefensible and was occurring when the Attorney- General himself said the wrong entity was being sued.

(e) The Attorney-General’s advice to Mr Crequer that the appropriate defendant in the estate proceeding was the Accident Compensation Corporation amounted to advice that the proper defendant was the Attorney-General himself. This is because the “ACC legislation is binding upon the Crown”.

(f) The contention in paragraph 4 of the statement of claim was:

He states that as Attorney-General he regards the proper entity for proceedings to be brought against is himself. But at the same time he approves or allows the expenditure of public funds by Crown Law to mount a court defence against the charge which has been brought against someone else. If the charge has been incorrectly brought against the wrong Government Minister, the Attorney-General has an obligation to at least advise the Court and Crown Law of the situation (especially as he is the one he alleges should answer the charge). If the charge had been correctly brought against the Minister personally, then the Attorney-General should follow the Cabinet Manual procedure which he has refused to comply with.

(g) Paragraph 5 of the statement of claim is the final paragraph, preceding a claim for relief. It is alleged:

By having Crown Law proceed with the matter, incorrectly against the wrong person, in order to avoid facing the proceeding himself, or avoid operating according to the Cabinet Manual instructions, the Attorney-General is deliberately conspiring to obstruct, prevent, pervert, or defeat justice, in direct contravention of section 116 of the Crimes Act 1961.

Section 116 of the Crimes Act was then set out. (h) There was a claim for $50,000 and costs.

The strike out application and strike out principles

[10] The Judge recorded that the strike out application was advanced on two grounds as follows:

1. That the proceedings disclose no reasonable cause of action, and no reasonable amendment to the statement of claim would provide a cause of action.

2. The statement of claim is an abuse of the process of the Court as it is brought for a collateral purpose, and is an attempt to re-litigate an issue which has already been determined by the High Court.

[11] The Judge directed himself to the well established principles applying to strike out applications, citing: Attorney-General v Prince and Gardner,[1] Couch v Attorney-General[2] and Attorney-General v Equiticorp Industries Group Ltd (In Statutory Management).[3]

The Judge’s decision

[12] The essence of the Judge’s reasons for upholding the strike out application

were as follows:

[23] Mr Crequer is unable to point to any recognised cause of action known to law which would allow him to pursue a claim against the Attorney- General. The only possible causes of action that might arise might be an alleged breach of statutory duty or abuse of public office. However, there is absolutely nothing in Mr Crequer’s allegations that come anywhere near the requirements of those two potential claims in tort. The thrust of Mr Crequer’s complaint appears to be that firstly, the Attorney-General has made some determination on who the correctly named defendant should be in the estate proceedings, and secondly, that somehow he has misused public funds in authorising the Crown Law office to pursue the application regarding the correct defendant in the estate proceedings, and further in permitting the Crown Law office to advance this strike out application in respect of these proceedings.

[24] With respect to the issue as to the correctly named defendant in the estate proceedings, the Attorney-General has made no decision whatsoever. That decision was made by the Court. The Attorney-General merely expressed his view which was ultimately held to be correct. But the short

point is that he himself did not purport to make any decision and nor did he do so.

[25] As far as the role of the Crown Law office is concerned, there is absolutely nothing unusual or actionable in the way that the Crown Law office has dealt with the estate proceedings, nor in this application in these proceedings. In short, not only has there been no inappropriate action regarding this application, it has in fact been quite properly pursued as, on any view of it, the statement of claim fails to disclose any reasonable cause of action, and no amendment can remedy the defects. Whilst that is sufficient to dispose of the application, it also appears that the statement of claim, in effect, seeks to re-litigate the issue of the correct defendant in the estate proceedings, albeit by a different route. This is a clear case for the exercise of the discretion to strike out and the defendant’s application must succeed.

Discussion

[13] I am satisfied that the proceeding was properly struck out and that the Judge’s reasons for doing so were soundly based. I would nevertheless add a number of points and I do so particularly because of the care taken by Mr Crequer in the submissions he made in support of his appeal, both in writing and orally.

[14] Fundamentally, the matters Mr Crequer complains of could not have caused loss to him and did not cause loss to him. When I pressed Mr Crequer on this point the only specific personal “loss” he could point to was an award of costs against him in favour of the Attorney-General when the strike out application succeeded in this case. That is not a loss, or expense, arising from the actions of the Attorney-General complained of in the statement of claim. Mr Crequer pointed to a number of matters in respect of which he said the Attorney-General had acted contrary to the public interest, including breach of the Cabinet directions for the conduct of Crown legal business and a duty to engage in litigation only in ways which promote the public interest. Such contentions, whether well founded or not, do not give rise to a right vested in Mr Crequer to recover damages.

[15] The claim founded on the Attorney-General’s alleged breach of s 116 of the Crimes Act is untenable, and it is this claim which leads to the claim for damages. A private claim for damages may not be brought for an alleged criminal act if the foundation for the claim is the commission of the crime. A private claim for

damages may be brought for harm to an individual suffered as a consequence of an act which is also a criminal act provided the claim is founded on a recognised civil wrong. An obvious and simple example is theft, which is a crime, but which would also give the owner of the thing stolen a right to sue for its recovery or its value; the private claim is not based on the fact that a crime has been committed, but on the fact that the defendant has the plaintiff’s property. Mr Crequer took a good deal of care in researching matters relating to the duties of the Attorney-General and the duties of the Crown Law office. The matters he referred to in relation to public money are important. But they do not provide a basis for the claim he has brought.

[16] Mr Crequer’s claims, and numbers of the submissions in support were, with due respect to Mr Crequer, misconceived. For example, he said that if he sued the wrong person in the estate proceeding – the Minister – the Attorney-General should not have allowed the Crown Law office to defend the claim. But of course the starting point for this is that it was Mr Crequer who got it wrong. Steps were taken by the named defendant, through the Crown Law office, contending that Mr Crequer had got it wrong, and this was affirmed by Judge Harvey’s decision of 15 October

2009.

[17] At the heart of Mr Crequer’s submissions was a contention that when the defendant is a Crown entity, and Crown Law considers there is a deficiency in the statement of claim, the Crown has an obligation to ensure that the plaintiff ’s claim is put in order (using my words rather than Mr Crequer’s) by some means other than taking steps in the proceeding. In this regard Mr Crequer referred to, amongst other things, ss 30 and 31 of the Crown Proceedings Act 1950 and, in particular s 30(2)(b). These provisions, and the other matters relied on by Mr Crequer, do not assist him. Coupled with those submissions in respect of claims against the Crown was a submission that the Court itself has a duty to rectify deficiencies. In respect of the Court’s obligations Mr Crequer referred to various District Court rules.

[18] There are no general legal principles of the sort contended for by Mr Crequer. The Crown Law office must act responsibly and if it fails to do so in matters before the Court the Court will intervene in an appropriate way. The Court itself should seek to have procedural issues resolved in accordance with rules of Court, including

rule 4. But Mr Crequer’s submission, in effect, turns these matters into absolutes when they are not. And in this case they are turned into absolutes in respect of his own errors in relation to claims he commenced.

[19] A defendant, including a Crown entity, is entitled to make an application to strike out a proceeding, or to strike out an incorrectly named defendant and substitute another, when there are reasonable grounds to do so. It would in fact be contrary to the public interest, to which Mr Crequer appealed in support of his arguments, for the Crown Law Office, acting for a Crown entity, not to apply to do so. In the estate proceeding it was Mr Crequer, not the defendant, who got it wrong.

[20] Broadly similar observations may be made in relation to Mr Crequer’s submissions that there is an obligation on the Court to ensure that claims that are accepted for filing are in order. That is not correct as an absolute. What is more, and in answer to other submissions, it is not correct to say that, because a claim has been accepted for filing and service, the Court has in some way ruled that the claim is one that should proceed to a hearing.

[21] Having considered Mr Crequer’s submissions, I am not persuaded that the Judge was in error in striking out the claim. Accordingly, the appeal in that regard is dismissed.

[22] The appeal against the order that Mr Crequer pay costs is also dismissed. That order was made by the Judge in exercise of a discretion. No adequate grounds were advanced by Mr Crequer to justify this Court in interfering with that exercise of a discretion.

[23] I am also satisfied that Judge de Ridder was not in error in deciding not to recuse himself. This arose from a letter Mr Crequer wrote to the District Court on 2

February 2010, shortly before the hearing before Judge de Ridder. In that letter Mr Crequer said that he considered Judge de Ridder had a conflict of interest and therefore should not hear the Crown’s strike out application. The essence of Mr Crequer’s contention was that Judge de Ridder had made two decisions of relevance which meant he could not objectively determine the strike out application.

[24] The first matter was a direction given by Judge de Ridder in January 2009, in the estate proceeding, that the proceeding be served on the defendant (named as the Minister in charge of the Accident Compensation Corporation) by service on the Solicitor-General’s office in accordance with s 16 of the Crown Proceedings Act

1950.

[25] The other matter dealt with by Judge de Ridder was also in the estate proceeding when he presided at a directions conference after the respondent had filed an application to strike out the Minister and substitute the Corporation itself as the defendant. The Judge recorded a proposal from counsel for the respondent that the application lie in Court and simply be determined as part of the substantive proceeding and counsel’s advice that a proposal had been or was about to be sent to Mr Crequer “which might settle the proceeding”. Judge de Ridder therefore simply adjourned the directions conference to a later date.

[26] At the commencement of the hearing of the strike out application in this proceeding Judge de Ridder raised the question of recusal with Mr Crequer who then advised that he did not wish the Judge to recuse himself. The Judge nevertheless considered the issue, as he was bound to do, and determined that there were no grounds to recuse himself. He was entirely correct in that decision.

Result

[27] The appeal is dismissed.

[28] The respondent is entitled to costs on a 2B basis together with reasonable disbursements.

Peter Woodhouse J

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[1] _{[1998] 1 NZLR 262.}
[2] _{[2008] 3 NZLR 725.}
[3] [1996] 1 NZLR 528, 533.