Clarke v Police [2014] NZHC 1578 (1 July 2014)

Last Updated: 5 August 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-1486 [2014] NZHC 1578

BETWEEN	NEIL MARTIN CLARKE Plaintiff
AND	NEW ZEALAND POLICE Defendant ALAN CANTLEY Second Defendant\ GARTH AUGUSTUS Third Defendant VINCENT BIBBY Fourth Defendant

Hearing:	1 July 2014
Appearances:	No appearance for Plaintiff Ms Foster for First Defendant Mr Freeman for Second and Third Defendant
Judgment:	1 July 2014

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE [Striking-out]

CLARKE v NEW ZEALAND POLICE [2014] NZHC 1578 [1 July 2014]

[1] A conference was notified to the parties for today’s date so that the proceeding which Mr Clarke has brought could be considered in the light of remarks that Associate Judge Faire made in a minute that he issued in May 2013. I will refer again to those remarks shortly.

[2] Mr Clarke was notified that the conference was to take place by email, further Registry staff attempted to contact him by telephone and a message was left for him on his voice message service about the conference. However no response was forthcoming from Mr Clarke and when attempts were made to connect the conference call today there was no response.

[3] I consider that Mr Clarke has had adequate opportunity to be represented or to appear at the conference today and has failed to take steps for that purpose. Accordingly I consider that the conference should now proceed.

[4] At the conference on 1 May 2013 Associate Judge Faire noted:

Although that process is likely to take longer than the time by which the next conference I schedule this case is to take place, it is important that Mr Clarke appreciates that the claim in its present form simply cannot proceed and if it cannot be corrected will almost certainly be struck out. At this stage he is being accorded an indulgence so that he has the opportunity hopefully of getting proper advice.

[5] Since that time, Mr Clark has taken some steps to pursue the possibility of legal aid but his legal aid application was declined and it would seem that a review was similarly unfavourable. The only recent development in the proceeding is that Mr Clark filed a memorandum dated 8 April 2014 advising that he now lived in Wellington and that he sought the transfer of his proceeding to the Wellington Registry. It is correct that he mentions the matter of legal aid recording that in the event of legal aid being declined the plaintiff will proceed to make an application to the High Court. However there has been no further notification received. The position therefore is that for a year or so Mr Clarke has been pursuing legal aid without success. He has not filed any amended statement of claim which would meet the concerns noted by Associate Judge Faire in his minute of May last year.

[6] Having reviewed the statement of claim I have come to the view that it is prolix, does not contain any recognisable cause of action. It contains considerable amounts of irrelevant material and in my view it ought to be struck out. There is little or no prospect of these proceedings being of any advantage to Mr Clarke. But, at the same time, the defendants have the proceedings hanging over their head and are incurring costs through the necessity of filing documents in the proceeding and attending conferences.

[7] There will therefore be orders pursuant to r 15.1 striking out the statement of claim and dismissing the proceeding pursuant to r 15.1(2).

[8] Counsel are to file any memorandum that they wish to concerning the matter of costs within ten working days of the date of this direction.

J P Doogue

Associate Judge