|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 3 August 2019
|
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
|
|
CIV-2015-485-571
[2015] NZHC 3138 |
|
BETWEEN
|
DIVYA SATHYAN
Plaintiff
|
|
AND
|
POLICE COMMISSIONER OF WELLINGTON
Defendant
|
|
Hearing:
|
27 October 2015
|
|
Counsel:
|
Plaintiff in person
T P Westaway for Defendant
|
|
Judgment:
|
9 December 2015
|
RESERVED JUDGMENT OF CLARK J
I direct that the delivery time of this judgment is 2.30pm on the 9 day of December 2015
SATHYAN v POLICE COMMISSIONER OF WELLINGTON [2015] NZHC 3138 [9 December 2015]
Introduction
[1] Ms Divya Sathyan, who is the plaintiff in this proceeding, says she is the subject of cyber abuse. She reported the hacking of her telephone and email accounts to the New Zealand Police for investigation but they have not assisted her and have not instigated any kind of investigation. The plaintiff has approached many other agencies seeking assistance: NetSafe,1 the Privacy Commissioner, Office of the Ombudsman, the Human Rights Commission, and the Government Communications Security Bureau. The plaintiff has also consulted a number of computer technical experts and has borrowed large sums of money to pay for these experts.
[2] The plaintiff seeks an order of mandamus directing the Police Commissioner (the defendant) to perform his statutory duty. As well, the plaintiff seeks compensation for business loss and other financial losses which, she claims, have been caused by the lack of investigation and non-performance of statutory duty.
[3] The defendant has applied to strike out the statement of claim in its entirety on the ground that it discloses no reasonably arguable cause of action. Alternatively, the defendant seeks an order directing the plaintiff to file and serve a more explicit statement of claim.
[4] Consequently, the issue which I must decide is whether the statement of claim gives rise to an arguable case and if it does not whether the plaintiff should be permitted to re-plead and amend her statement of claim.
Strike-out principles
[5] The principles which apply to a strike-out application are settled and uncontentious.2 They are summarised in the defendant’s submissions:
(b) The cause of action must be clearly untenable.
(c) The jurisdiction is to be exercised sparingly and only in clear cases.
(d) The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.
(e) The Court should be particularly slow to strike out a claim in any developing area of law.
[6] Accordingly, the facts upon which the plaintiff’s claim is based must, for the purposes of the strike-out argument, be accepted. The question is: even accepting the factual underpinnings of the claim, do they disclose a reasonably arguable cause of action?
The nature of the claim
[7] The plaintiff is an unrepresented litigant who has done her best to formulate her case and the grounds for the relief she seeks in a statement of claim supported by an affidavit. Few of the exhibits were attached. But the plaintiff brought to the hearing a large bundle of original documents. I sighted several of the documents said to be at the heart of the plaintiff’s case and was able to satisfy myself that the failure to annex them to the affidavit did not matter in terms of the question I have to decide.
[8] The plaintiff pleads that the lack of investigation by the Police and their neglect of duty have caused her serious monetary and other loss. The neglect of duty is the failure to conduct an investigation into the cyber abuse. The following monetary claims are made:
- (a) costs for periods of unemployment when the plaintiff had no means to overcome the cyber abuse without police investigation but the Police neglected their duty to investigate;
(b) compensation for the large sums of money that were borrowed in order to consult a number of computer technical experts and for technical service charges due to the neglect of police duty;
(c) compensation for the cost of having to buy a number of new devices to escape the cyber hacking because the police refused to examine the plaintiff’s devices;
(d) a claim for the debt owed to the state by having to rely on the welfare system because of the lack of investigation and lack of performance of duty;
(e) a claim for bank and personal loans made necessary to survive the cyber abuse;
(f) compensation for “huge debts” owed to plaintiff’s parents (who live overseas) resulting from the computer corruption by the cyber abuser;
(g) compensation for business loss caused by the defendant’s neglect of duty;
(h) compensation in the sum of $100,000 from the defendant for financial loss suffered.
What are the functions and duties of the Police?
[9] Section 9 of the Policing Act 2008 provides:
Functions of Police
The functions of the Police include—
(a) keeping the peace:
(b) maintaining public safety:
(c) law enforcement:
(d) crime prevention:
(e) community support and reassurance:
(f) national security:
(g) participation in policing activities outside New Zealand:
(h) emergency management.
[10] The function of law enforcement, explicit in s 9 of the Policing Act, has been long recognised by English common law as a clear legal duty owed by the Police to the public.3
[11] In R v Ngan the Supreme Court said that the common law duties attaching to members of the New Zealand Police:4
... are public law duties. They are directed to the protection and welfare of the public at large. They should not be confused with a private law duty, such as a duty of care, which may give rise to civil liability to an affected individual.
[12] There is a wide discretion as to the manner in which the duty of law enforcement owed to the public is discharged.5 Decisions about use of police resources are for the Commissioner alone. The courts will not involve themselves in the careful balancing exercise which the Commissioner must engage in when deciding the use of limited resources.6
The courts have long made it clear that, though they will readily review the way in which decisions are reached, they will respect the margin of appreciation, or discretion, which a chief constable has. He knows, through his officers, the local situation, the availability of officers, his financial resources and the other demands on the police in the area at different times.
[13] I turn to examine the plaintiff’s claim in light of this powerful line of authority.
4 R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48 at [11].
5 Hill v Chief Constable of West Yorkshire [1989] AC 53 at 59.
The statement of claim
[14] The plaintiff filed detailed written submissions and argued her case with courtesy and care. She advanced her application for an order of mandamus in reliance on many causes of action “pending and current”. In the course of the hearing the plaintiff refined the nature of her claim to one of non-performance by the Police of their duty rather than a failure to investigate or a neglect of duty. The non-performance is said to be of the duty to investigate: the Police had consistently refused to deal with the plaintiff’s many complaints made between 2010 and 2015.
[15] One of the many authorities the plaintiff relied on was the English Court of Appeal decision in R v Commissioner of Police of the Metropolis, ex parte Blackburn (No 1) (Blackburn).7 Several questions were raised by the appeal but of relevance to Miss Sathyan’s case was the question whether mandamus would issue against the Commissioner of Police for failure to enforce the law.
[16] The Metropolitan Police had been operating under a policy instruction to take no proceedings against clubs for breach of the gaming laws. Mr Blackburn brought proceedings to compel the police to enforce the law. Their Lordships held that the Commissioner of Police owed a duty to the public to enforce the law, a duty which the Commissioner could be compelled to perform.
[17] The plaintiff submits, by analogy, that the defendant owes an enforceable duty to enforce the law in New Zealand. Specifically, the plaintiff requires the Court to mandamus the defendant to investigate her claims of cyber abuse.
[18] The plaintiff misconceives Blackburn. In that case the senior officers of the Metropolitan Police were operating under an order which effectively instructed them not to enforce the law. Yet the chief function of the police is to enforce the law. The Court of Appeal had little doubt that, in the unlikely event of the police failing or refusing to carry out their duty, “the court would not be powerless to intervene.”8
7 R v Commissioner of Police of the Metropolis, ex parte Blackburn (No 1) [1968] 2 QB 118.
[19] The principle from Blackburn cannot be invoked by the plaintiff to compel the police to investigate particular complaints by members of the public. The pleaded failure of the defendant to investigate a particular complaint, or series of complaints by the plaintiff, is not a refusal or failure to carry out their duty. Rather, it is for the defendant in any particular case to decide whether inquiries should be pursued:9
It must be for [the Commissioner or chief constable] 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.
[20] In a proceeding similar to the present Chambers J applied Blackburn in striking out the case before him. The plaintiffs were beset with the activities of young people assembling, drinking, urinating, tagging property and speeding in fast and noisy cars in the area outside a motel belonging to one of the plaintiffs. The police had done nothing, it was said, and proceedings were brought in an attempt to force the police to take actions against the young people causing a persistent nuisance.
[21] Chambers J considered the case showed clearly “that resource issues and how police are deployed are for the Commissioner or his local commanders, not the Courts”.10
[22] In Evers the plaintiffs argued that their public law claim against the police constituted an exception to the principle of Blackburn. The Judge pronounced this cause of action doomed to failure and struck it out. He demonstrated the non-justiciability of the plaintiffs’ claim by reference to the relief sought.11
[23] Similarly the non-justiciability of the plaintiff’s claim in this case is demonstrated by the relief she seeks:
(a) an order directing the New Zealand Police to investigate her privacy interference case;
(b) a writ of mandamus directing the Serious Fraud Office to investigate
9 At 136D–E.
10 Evers v Attorney-General [2000] NZAR 372 at [14].
11 At [15].
the corruption of officials involved with the plaintiff’s case. (The Serious Fraud Office is not a party to the proceeding.);
(c) a direction to the Serious Fraud Office to conduct an investigation into a third party’s interference with several government agencies’ computer systems;
(d) compensation costs of $100,000 from the defendant for the financial loss suffered by the plaintiff.
[24] Although pleaded (in part) and argued as a claim for failure of duty the essence of the plaintiff’s complaint is that the police have not responded to her requests for an investigation. The plaintiff’s broad claim is of “non-performance”. She has identified no particular respect in which the defendant has abdicated his public law duty to enforce the law. 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.
[25] Nor has the plaintiff impugned on public law grounds any particular decision of the police in their dealings with her. She instances no “policy” instruction not to investigate her complaints nor any particular neglect or lack of conscientiousness in their transactions with her.
[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.
[27] Although the front page of the statement of claim bears the description “judicial review” portions of the notice of opposition to the strike out application suggest private law claims. For example, the plaintiff equates the failure of the defendant to perform his legal duty with “breach of statutory duty or negligence or misfeasance”.12 As well there are the compensatory loss claims and, in the notice of
12 Notice of Opposition 7 September 2015, para 12.
opposition to the strike out application, contentions that the abuser is defrauding different government agencies as well as paying money to police officials for not investigating the alleged cyber abuse. Running consistently through the detailed accounts of corruption and fraud, including on the part of named third parties, is the remedy of mandamus. It is the remedy of mandamus by which the plaintiff seeks to escape, she says, from the huge financial burden of debt which she suffers as a result of the alleged cyber abuse. The prospect of the remedy of mandamus is the plaintiff’s main reason for bringing the proceeding. She seeks a remedy akin to specific performance to compel the police to perform the public duty she says they have wrongly failed to carry out.
[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.13
[29] The plaintiff’s cause of action is not arguable and must be struck out.
[30] I have considered whether a more explicit statement of claim might unmask a tenable cause of action. But the substantive hurdle the plaintiff faces is not created by the form of her pleadings. No matter how cast no action lies for the non-performance of duty which the plaintiff alleges and relies on for the public and private law remedies she seeks (mandamus and compensation).
[31] In the hearing the plaintiff submitted that her only hope for a remedy now lay with the courts. I explored with her the many agencies she seems to have approached. They include the Independent Police Conduct Authority. Even if the plaintiff has exhausted the options available to her (and I do not say this is the case) it is clear that the statement of claim discloses no arguable cause of action and must be struck out in its entirety.
Costs
[32] The defendant is entitled to costs. The written submissions of counsel for the Commissioner sought costs on a 2B basis. I asked Mr Westaway during the hearing whether costs would continue to be sought in the event the strike out application was successful. He confirmed that to be the case.
[33] The plaintiff is impecunious. Whatever the facts of the alleged cyber abuse she is no longer working and is in debt. The document she filed opposing the application to strike-out her claim attaches a letter from Work and Income detailing the plaintiff’s weekly benefit. From 29 September 2015, the date of that letter, the plaintiff’s total weekly payment is $266.67. This benefit is her only source of income.
[34] Although the defendant sought 2B costs I am satisfied that the complexity and significance of the proceeding is recognised appropriately by a costs award on a 1B basis.
Conclusion
[35] The statement of claim is struck out in its entirety. Costs are awarded to the defendant on a 1B basis.
Karen Clark J
Solicitors:
Crown Law, Wellington, for Defendant
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2015/3138.html