Burrows v Palmerston North District Court [2018] NZHC 2090 (15 August 2018)

Last Updated: 22 August 2018

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2018-454-000036 [2018] NZHC 2090

BETWEEN	WAYNE JOHN BURROWS Applicant
AND	PALMERSTON NORTH DISTRICT COURT Defendant

Hearing:	1 August 2018
Counsel:	Applicant in person J J Harvey for Defendant
Judgment:	15 August 2018

JUDGMENT OF COLLINS J

[Application to strike out High Court proceeding]

Introduction

[1] The issue dealt with in this judgment is whether I should strike out Mr Burrows’ proceeding in which he seeks declarations and damages for false imprisonment and the infliction of “intentional emotional harm”.

[2] The allegations focus upon the actions of a Deputy Registrar of the District Court at Palmerston North, who is an employee of the Ministry of Justice. The correct defendant should have been either the Ministry of Justice or the Attorney-General.¹

¹ Crown Proceedings Act 1950, s 14.

BURROWS v PALMERSTON NORTH DISTRICT COURT [2018] NZHC 2090 [15 August 2018]

[3] I am satisfied that Mr Burrows’ proceeding discloses no reasonably arguable cause of action and must therefore be struck out.²

Background

[4] On or about 14 October 2017, Mr Burrows was served with a summons to attend the District Court at Palmerston North on 17 October 2017 in order to answer a charge of disorderly behaviour.³

[5] Mr Burrows responded to the summons by attending the District Court on 17 October 2017. The hearing that day was presided over by a Deputy Registrar of the District Court, who adjourned the proceeding against Mr Burrows to a hearing scheduled for 10 November 2017. The notations on the “Record of Hearing” suggested that at the hearing on 10 November 2017 Mr Burrows was to enter a plea but that in the meantime he was seeking legal advice.

[6] Mr Burrows’ statement of claim alleges the Deputy Registrar had no jurisdiction to conduct the hearing. It is his case that by answering the summons and attending the District Court he was falsely imprisoned on 17 October 2017. Mr Burrows also pleads that he subsequently corresponded with the District Court to ascertain the basis upon which the Deputy Registrar conducted the hearing but that the District Court has repeatedly refused to answer his questions. Mr Burrows says this conduct “amounts to emotional abuse which causes harm”. The statement of claim seeks declarations and damages of $100,000 for each cause of action.

[7] It is convenient to first explain why the Deputy Registrar had jurisdiction to conduct the hearing on 17 October 2017 before explaining why the second cause of action must also be struck out.

2. High Court Rules 2016, r 15.1(1); Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267; and Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

³ Summary Offences Act 1981, s 4; maximum penalty $1,000 fine.

First cause of action – false imprisonment

[8] The first cause of action hinges upon whether or not the Deputy Registrar could lawfully preside over the hearing on 17 October 2017. If she did, then Mr Burrows’ claim for false imprisonment cannot succeed and must be struck out. References to a Registrar in the Criminal Procedure Act 2011 include a “Deputy Registrar”.⁴

[9] Understanding why the Deputy Registrar had jurisdiction to preside over the hearing on 17 October 2017 involves an exercise in statutory interpretation in which I focus upon the text and purpose of the legislative provisions in question.

[10] Section 30 of the Criminal Procedure Act provides:

Provisions relating to summons issued under section 28 or 29

(1) A summons under section 28 or 29 must require the person to appear on a day not later than 2 months after the date of the summons at the court where the charging document has been or is to be filed.

(2) The summons must contain—

(a) the particulars of the defendant; and

(b) the particulars of the charge; and

(c) the court and date and time at which the defendant is required to appear; and

(d) any other information required by rules of court.

[11] Mr Burrows argues that the word “court” in s 30(1) and (2)(c) of the Criminal Procedure Act should be given the meaning of that word in s 5 of the Act, which states “court means a court presided over by a judicial officer with authority to exercise the court’s jurisdiction in relation to the matter”. That definition applies “unless the context otherwise requires”.

[12] “Judicial officer” is defined in s 5 of the Criminal Procedure Act to mean “a High Court Judge, a District Court Judge, a Community Magistrate or a Justice of the Peace”.

⁴ Criminal Procedure Act 2011, s 5.

[13] Mr Burrows maintains that the proceeding on 17 October 2017 could only be presided over by a “judicial officer” as defined in s 5 of the Criminal Procedure Act, namely, a Judge, a Community Magistrate or a Justice of the Peace. It is his case that as the Deputy Registrar is not a “judicial officer” she lacked the lawful authority to preside over the hearing conducted on 17 October 2017, and that as a consequence he was falsely imprisoned within the court when he attended the hearing that day.

[14] In my assessment, however, the word “court” in s 30 of the Criminal Procedure Act must be defined by reference to the context in which that term is used. The definition of “court” in s 5 is aimed at various provisions throughout the Criminal Procedure Act that set out the powers and obligations that may be exercised by judicial officers. For example:

(1) “A court may give a sentence indication, but only at the request of the defendant made before the trial.”⁵

(2) “A court may make an order forbidding publication of the name, address, or occupation of a person who is charged with, or convicted or acquitted of, an offence.”⁶

(3) “A court must not sentence a defendant for an offence in category 2, 3, or 4 in the absence of the defendant.”⁷

(emphasis added)

[15] The word “court” in s 30 of the Criminal Procedure Act is used in a different context. In s 30, the term “court” refers to the place where the summoned person must attend. This interpretation is clear from s 30(1), which refers to “the court where the charging document has been filed or is to be filed”. This refers to the particular registry of the District Court, as opposed to the status of the person who presides in the courtroom. Equally, s 30(2)(c) refers to the “court and date and time”. This is a

⁵ Criminal Procedure Act 2011, s 61(1).

⁶ Section 200(1).

⁷ Section 123(1).

reference to the time and place of the hearing, not the status of the person who will preside.

[16] In any event, s 30 is not the operative provision requiring a person summoned to attend court. It simply outlines the information required in a summons.

[17] Section 118 of the Criminal Procedure Act is the provision that requires a person who has been summoned to attend court. That provision does not use the word “court”, rather, it says that the defendant “must be present at any hearing”. There is nothing in the Criminal Procedure Act, or any other enactment, that states that a “hearing” must be presided over by a judicial officer as defined in s 5 of the Criminal Procedure Act.

[18] Section 20 of the District Court Act 2016 provides that the jurisdiction of the District Court may be exercised by:

(1) a Judge; or

(2) if authorised by this Act or any other Act or by the rules, a Registrar or any person authorised to carry out the functions of a Registrar.

[19] Section 353 of the Criminal Procedure Act states that the District Court’s criminal jurisdiction “may be exercised by the District Court presided over by a District Court Judge”. Sections 355 and 356 similarly provide for the jurisdiction of Justices of the Peace and Community Magistrates. There is no similar general provision for Registrars (or Deputy Registrars). There are, however, a number of provisions throughout the Criminal Procedure Act that allow a Registrar (or Deputy Registrar) to exercise certain judicial powers. These powers include the ability to adjourn a hearing,⁸ the ability to receive an election for trial by jury,⁹ the power to require a defendant to enter a plea,¹⁰ the ability to receive a not guilty plea,¹¹ the power

⁸ Criminal Procedure Act 2011, ss 54 and 167.

⁹ Section 52.

¹⁰ Section 39(4).

¹¹ Section 37(7).

to issue a warrant in certain circumstances¹² and the ability to make interim suppression orders.¹³

[20] All of these provisions would be rendered obsolete if the Criminal Procedure Act were to be interpreted in the way argued for by Mr Burrows, namely that a judicial officer is required to preside at every hearing where a defendant is first required to attend court. It cannot have been Parliament’s intention that provisions similar to ss 353, 355 and 356 would be necessary for a Registrar to exercise the powers conferred upon him or her under the Act. Those general jurisdiction provisions merely explain in what circumstances each of the different types of judicial officer will be able to exercise the various powers outlined in the Act that can be exercised by the “court”. Such clarification is unnecessary in the case of Registrars (or Deputy Registrars), who can only exercise the powers that are specifically conferred upon them. The particular provisions conferring those powers on a Registrar are sufficient to come within the meaning of “authorised by ... any other Act” in s 20 of the District Court Act. Accordingly, there is nothing preventing a Deputy Registrar from presiding over a hearing in which he or she only exercises those powers conferred upon a Registrar by the Criminal Procedure Act.

[21] Further support for this interpretation can be found in the Schedule to the Criminal Procedure Rules 2012, which provides that the following information is to be set out in a summons:

Appearing in court

If you are charged with an offence that is not punishable by imprisonment, you may be entitled to enter a guilty plea without having to come to court. Contact your local court for more information.

When you do appear in court, the judicial officer or Registrar will make a decision whether you are held in custody, on bail, or free to go (at large) until you have to come back to court.

If you do not come to court when you are meant to, a warrant for your arrest may be issued.

(emphasis added)

¹² Criminal Procedure Act 2011, ss 34(3) and 120(2).

¹³ Section 206.

[22] This clearly contemplates that a Registrar (or Deputy Registrar) might preside over a hearing as occurred when Mr Burrows attended the District Court at Palmerston North on 17 October 2017.

[23] Mr Burrows placed considerable weight on s 72(2) of the District Court Act, which provides that:

... a Registrar may hold a session of the court at a time and place the Registrar thinks fit if—

(a) the Registrar is satisfied that the session could more conveniently or fairly be held at that time and place; and

(b) all the parties to the proceeding consent.

Mr Burrows maintained that as he had not consented to the hearing on 17 October 2017, it was unlawful.

[24] Section 72(2) of the District Court Act is not the panacea that Mr Burrows believes. That section is in Part 3 of the District Court Act, which deals with Community Magistrates, and can be found under the subheading “Court business”, and the title “Sessions of court and adjournments”. The section simply enables Registrars to hold sessions of the court at times and places other than those that are otherwise prescribed when all the parties to the proceeding consent. It is an administrative power. Section 72(2) of the District Court Act was not engaged when the Deputy Registrar presided over the proceeding that Mr Burrows attended on 17 October 2017.

[25] As the Deputy Registrar had the authority to preside over the hearing that Mr Burrows attended on 17 October 2017, there is no basis upon which his claim for false imprisonment can succeed. The first cause of action must therefore be struck out.

Second cause of action – intentional infliction of emotional harm

[26] Mr Burrows sues for “intentional emotional harm”. The nearest recognised tort to that pleaded may be the action of “intentional infliction of emotional distress”

discussed by Gallen J in Bradley v Wingnut Films Ltd.¹⁴ In traversing the criteria for that cause of action, Gallen J held that a plaintiff had to establish:¹⁵

(1) that the plaintiff suffered something more than a transient reaction of emotional distress, which must have translated itself into something physical (physical harm);

(2) that the defendant had wilfully done an act calculated to cause physical harm to the plaintiff (intention);

(3) that it was reasonably foreseeable that the plaintiff would suffer physical harm as a result of the defendant’s act (causation).

[27] There would be very real limits to the scope for this cause of action in New Zealand as any claim for physical harm suffered by a plaintiff, including consequential mental injury, would be barred by s 317 of the Accident Compensation Act 2001 if that injury is covered under that Act.¹⁶

[28] Putting aside the issue as to the impact in New Zealand of the Accident Compensation Act on a claim for intentional infliction of emotional distress, Mr Burrows’ pleading falls dramatically short of alleging any of the key ingredients of that cause of action.

[29] Mr Burrows simply alleges that staff in the District Court “stonewalled” him and refused to answer his questions. He pleads “this amounts to emotional abuse which causes harm”. He does not allege he suffered any of the type of harm that would be required if the cause of action is to gain any traction.

[30] I have considered whether Mr Burrows should be given the opportunity to re- plead this cause of action, particularly as he is not a qualified lawyer. In my assessment, that course of action is not appropriate as the statement of claim does not

¹⁴ Bradley v Wingnut Films [1993] 1 NZLR 415 (HC).

¹⁵ At 421–422.

¹⁶ See Accident Compensation Act 2001, s 20(2) – scope of cover for personal injury; s 26(1)(b) and

(c) – definition of personal injury; and s 27 – definition of mental injury.
come close to setting out facts that could possibly support the second cause of action. In particular:

(1) It is very difficult to see from any of the material placed before me that he will have suffered more than a transient reaction or emotional distress in relation to the conduct of the court staff about which he is concerned.

(2) There is nothing to suggest that the alleged misconduct of the District Court staff was done with intent to cause physical harm to Mr Burrows.

(3) It will not be possible for Mr Burrows to demonstrate that any physical harm he may have suffered would have been a reasonably foreseeable consequence of any of the alleged wrongdoing on the part of court staff.

[31] In these circumstances, I am satisfied that the second cause of action discloses no reasonably arguable cause of action and must therefore be struck out.

Summary and disposition

[32] The two causes of action pleaded by Mr Burrows are untenable and have no prospect of success.

[33] Mr Burrows’ High Court civil proceeding is struck out.

[34] Any application for costs and supporting memorandum is to be filed and served within 10 days of the date of this decision. Mr Burrows is then to reply in writing 10 days after receipt of any application and supporting memorandum from the defendant.

D B Collins J

Solicitors:

Ben Vanderkolk & Associates, Palmerston North for Respondent