Jones v. Attorney-General (New Zealand)  [2003] UKPC 48 (19 June 2003)
ADVANCE COPY

	Privy Council Appeal No. 29 of 2002

Robert Edward Jones	Appellant
	v.
Her Majesty’s Attorney-General sued on behalf of 
New Zealand Police	Respondent

	FROM

THE COURT OF APPEAL OF NEW ZEALAND
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 19th June 2003
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	Present at the hearing:-
			Lord Bingham of Cornhill
Lord Hutton
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Rodger of Earlsferry
		  	[Delivered by Lord Bingham of Cornhill]
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1. 	Reversing a decision of Master Thomson, the Court of Appeal of New Zealand (Gault, Keith and Blanchard JJ) held on 13 August 2001 that summary judgment should be entered for the defendant (the Attorney-General) in this action brought against him by Sir Robert Jones as plaintiff.  The order was made under Rule 136 of the High Court Rules which, as amended in 1998, permits judgment to be given against a plaintiff “(2) … if the defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed”.  The plaintiff, now the appellant, challenges the Court of Appeal’s decision, contending that the power to enter summary judgment for a defendant was not one which could properly be exercised in this case.

2. 	On the afternoon of Monday 24 January 2000 the appellant was driving westwards along Waione Street, Petone.  With him in his new red Jaguar Daimler were his partner, and also his two sons whom he was taking to the airport to catch a flight to Sydney.  The appellant crossed a bridge, where the eastward and westward carriageways were demarcated by a white line in the middle of the road, and then entered a section of the road where there was no white line but the two carriageways were separated by a concrete barrier.  After he had driven some distance along this section Constable Dankl, following him in a marked police car, signalled to him to stop, which he did.  The constable used her radio to ascertain the registration details of the appellant’s car and then approached him to ask for sight of his driving licence.  The appellant was unable to produce his driving licence and, in response to the constable’s request, gave the constable his name and address and some personal details.  The constable returned to her car to check on the accuracy of this information and as she did so the appellant drove off.  She pursued his car with her red and blue lights still flashing and her siren sounding, and the appellant again stopped.  There was an altercation between him and the constable, which ended with the appellant’s partner driving on to the airport with his sons, leaving the appellant on the roadside, and the appellant going to the police station in a police car to make a complaint about the constable’s conduct.

3. 	This very brief account of this incident omits reference to a number of points on which the accounts of the appellant and the constable differ, as is evident from the parties’ pleaded cases and the affidavits sworn by the appellant and the constable respectively.  There are, for example, conflicts concerning the speed at which the appellant was travelling before he was stopped, the length of the interval before the constable first approached the appellant’s car, the period of time which she spent inspecting his car, whether the constable recognised the appellant, what the constable said before the appellant drove off after being stopped on the first occasion, how long the appellant was stopped on each occasion and how long the whole incident lasted from beginning to end.  In arguing this appeal on the appellant’s behalf, however, Mr Reed QC concentrated on a factual conflict between the appellant and the constable concerning her reason for stopping the appellant in the first instance.  This was not, Mr Reed submitted, a conflict which could be resolved otherwise than at trial.  But upon its resolution the outcome of the action would or might depend, since if (as he contended) the constable acted unlawfully in requiring the appellant to stop, then that unlawfulness tainted all that followed, founding some or all of the appellant’s claims of unlawful detention, false imprisonment, arbitrary detention, unreasonable search and seizure, negligence and misfeasance in public office.

4. 	The parties to the appeal were agreed that a constable’s power to require a driver to stop and give his name and address was governed by section 114 of the Land Transport Act 1998, the terms of which were recited by the Master and the Court of Appeal but need not, in the absence of dispute, be repeated.  The Court of Appeal in paragraph 20 of its judgment described it as 
“clear law that the power section 114 confers cannot be used for non road transport purposes but that its use is not dependent on any breach of the relevant law or indeed even belief or suspicion of such a breach.”

This statement, which reflects the effect of decisions on sections in a predecessor Act (Po v Ministry of Transport [1987] 2 NZLR 756, 758, Baker v Ministry of Transport (1988) 3 CRNZ 169, 173) is accepted as an accurate summary of the law.  It is plain that section 114 gives a large measure of protection to a reasonably well-trained constable acting in good faith, since a reasonably well-trained constable will not exercise the statutory power otherwise than for road transport purposes and a constable acting in good faith who chooses to give a driver a reason for stopping him will not give a reason which he knows to be false.  Thus a constable acting under an impression which is genuine although mistaken will be protected, but a constable who fabricates a false reason for stopping a motorist may not.

5.	The parties to the appeal were also agreed that the court’s new power to give judgment against a plaintiff under Rule 136(2) of the High Court Rules is to be exercised in accordance with the guidance given by the Court of Appeal in Westpac Banking Corporation v MM Kembla New Zealand Ltd [2001] 2 NZLR 298 and Bernard v Space 2000 Ltd (2001) 15 PRNZ 338.  Despite the absence of controversy, it is helpful to cite the very clear statement made by Elias CJ giving the judgment of the court in the earlier of those cases, in paragraphs 58-64:
“Decision

[58]  The applications for summary judgment were made under R 136(2) of the High Court Rules which permits the Court to give judgment against the plaintiff ‘if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed’.
[59]  Since R 136(2) permits summary judgment only where a defendant satisfies the Court that the plaintiff cannot succeed on any of its causes of action, the procedure is not directly equivalent to the plaintiff’s summary judgment provided by R 136(1).

[60]  Where a claim is untenable on the pleadings as a matter of law, it will not usually be necessary to have recourse to the summary judgment procedure because a defendant can apply to strike out the claim under R 186.  Rather R 136(2) permits a defendant who has a clear answer to the plaintiff which cannot be contradicted to put up the evidence which constitutes the answer so that the proceedings can be summarily dismissed.  The difference between an application to strike out the claim and summary judgment is that strike-out is usually determined on the pleadings alone whereas summary judgment requires evidence.  Summary judgment is a judgment between the parties on the dispute which operates as issue estoppel, whereas if a pleading is struck out as untenable as a matter of law the plaintiff is not precluded from bringing a further properly constituted claim.

[61]  The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed.  Usually summary judgment for a defendant will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim.  Examples, cited in McGechan on Procedure at HR 136.09A, are where the wrong party has proceeded or where the claim is clearly met by qualified privilege.

[62]  Application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits.  It may also be inappropriate where ultimate determination turns on a judgment only able to be properly arrived at after a full hearing of the evidence.  Summary judgment is suitable for cases where abbreviated procedure and affidavit evidence will sufficiently expose the facts and the legal issues. Although a legal point may be as well decided on summary judgment application as at trial if sufficiently clear (Pemberton v Chappell [1987] 1 NZLR 1), novel or developing points of law may require the context provided by trial to provide the Court with sufficient perspective.
[63]  Except in clear cases, such as a claim upon a simple debt where it is reasonable to expect proof to be immediately available, it will not be appropriate to decide by summary procedure the sufficiency of the proof of the plaintiff’s claim.  That would permit a defendant, perhaps more in possession of the facts than the plaintiff (as is not uncommon where a plaintiff is the victim of deceit), to force on the plaintiff’s case prematurely before completion of discovery or other interlocutory steps and before the plaintiff’s evidence can be reasonably assembled.

[64]  The defendant bears the onus of satisfying the Court that none of the claims can succeed.  It is not necessary for the plaintiff to put up evidence at all although, if the defendant supplies evidence which would satisfy the Court that the claim cannot succeed, a plaintiff will usually have to respond with credible evidence of its own.  Even then it is perhaps unhelpful to describe the effect as one where an onus is transferred.  At the end of the day, the Court must be satisfied that none of the claims can succeed.  It is not enough that they are shown to have weaknesses.  The assessment made by the Court on interlocutory application is not one to be arrived at on a fine balance of the available evidence, such as is appropriate at trial.”

These are the principles which the Board must apply.  It cannot be doubted that, properly used, rule 136(2) can save both time and cost by permitting claims with no hope of success to be summarily dismissed at an early stage.  But rarely if ever will the procedure be appropriate where the outcome of the action may depend on disputed issues of fact, and reliance on the rule in an inappropriate case may serve to increase both the length and the cost of proceedings.

6.	It is common ground between the appellant and the constable that when she approached his car after stopping him on the first occasion he was indignant at being stopped and demanded to know why she had stopped him.  Then their respective accounts diverge. According to the appellant’s pleaded case (paragraph 16), the constable’s first answer was that “she had noticed that he had moved slightly to the right on two occasions, and she had wondered why”.  The pleading continues (paragraph 22):
“After some time, Constable Dankl asserted that the plaintiff’s car had crossed two white centre lines.”
The appellant (paragraph 23) told the constable that there were no white lines and that he had not crossed any.  In an affidavit sworn in these proceedings on 22 August 2000 the appellant deposed (paragraph 3):
“… Several hundred metres off the bridge, and while travelling at approximately 15 to 20 kms per hour, my vehicle moved slightly to the right of the truck it was following so that I could ascertain the reason for the traffic slowing.  At the point on the road at which this occurred there is no white line, and no oncoming traffic.  There is a concrete median barrier of some width.”

The appellant deposed (paragraph 5) that the constable’s reference to his crossing the white centre line occurred later in his first conversation with her.  In his opinion it was a deliberate falsehood, fabricated in an attempt to justify an arbitrary and frivolous stopping.

7.	In the defence it is pleaded (paragraph 10) that the constable twice observed the right-hand wheels of the appellant’s car cross the centre line in the face of oncoming traffic, and (paragraphs 16 and 22) she told the appellant that he had twice crossed the centre line when she first spoke to him.  In an affidavit sworn in these proceedings on 19 June 2000 the constable expanded the pleaded account.  She deposed (paragraph 9) that when the appellant’s car was approximately three quarters of the way across the bridge its right hand wheels partially crossed the centre white line into the oncoming lane before returning to its own lane, and (paragraph 10) that as it reached the end of the bridge the wheels of the appellant’s car crossed fully into the oncoming lane, although only by a few inches.  When she first spoke to him (paragraph 15) she explained that he had twice crossed the centre line and she was curious why he had done so.  She stopped the appellant’s car (paragraph 34) because he had twice crossed the centre line in the face of heavy traffic.  In her notebook she recorded:
“I stopped him as I saw him edging across the centre line on the bridge (Wainone St o/bridge).  At the end of the bridge.”

8.	It is plain from these conflicting accounts that although the appellant acknowledged a slight movement to the right after the bridge, where there was a concrete barrier between the carriageways but no white line, he was certainly not admitting to the incident which the constable described, involving as it did a double crossing of the central white line towards the end of the bridge.  It was because the appellant so strongly challenged the description of the incident given by the constable that he stigmatised her account as dishonest and her stopping of his car as capricious, arbitrary and an unlawful abuse of the power conferred by section 114 of the 1998 Act.

9.	In addressing this part of the case the Court of Appeal said (in paragraph 20 of its judgment):
“… Constable Dankl’s uncontradicted evidence is that she did have a traffic purpose for stopping the car: she had observed it moving to the right (a matter not in dispute), a movement which might indicate drink driving, something wrong with the car or with the truck in front, or impatience. Whether she inaccurately later elaborated those reasons (a matter on which we need not and could not make a ruling) cannot affect the initial lawfulness of the stopping …”

Earlier, in paragraph 7, the court had recorded the appellant as accepting that he had moved to the right on two occasions, which he had not.  Mr Reed directed his primary criticism to these paragraphs. To describe the constable’s evidence as “uncontradicted” was, he submitted, wrong, since the only episode she described was a double crossing of the white line on the bridge, which the appellant adamantly denied.  The later elaboration relied on by the appellant could not, it was submitted, be disregarded, since she contended that she had given this explanation from the beginning and he relied on her alleged lateness in giving it as evidence of invention.  It seems that the court erroneously understood the appellant to admit two movements to the right, when in truth he only admitted one slight movement.

10.	If this case were to be fully tried, and depending of course on the evidence given, any one of several findings might be open to the tribunal of fact, whether judge or jury.  It might be found that the appellant had crossed the white line on the bridge (once or twice, wittingly or unwittingly) and the constable had seen him do so, or that the appellant had not crossed the white line on the bridge but the constable honestly but mistakenly thought he had. In either of these events the appellant’s claim would inevitably fail. There would, however, be a third theoretical possibility: that the appellant had not crossed the white line on the bridge and the constable did not think he had, but chose to assert that he had when, having stopped him for no road traffic reason, she was challenged to justify her action.  Even if this finding were made it would not follow that all or any of the appellant’s claims as currently pleaded would necessarily succeed.  But it is clear, applying the guidance given by the Court of Appeal in Westpac, that summary judgment should not be given for the defendant unless he shows on the balance of probabilities that none of the plaintiff’s claims can succeed.  That is an exacting test, and rightly so since it is a serious thing to stop a plaintiff bringing his claim to trial unless it is quite clearly hopeless.

11.	In the opinion of the Board, this exacting test is not satisfied in this case.  The appellant may, or may not, succeed in establishing his version of events at trial.  It cannot, however, be said at this stage that he cannot do so, and if the outcome of the action is potentially dependent on the facts found it is inappropriate to give summary judgment for the defendant.  The Board is persuaded that the Court of Appeal, in reaching a contrary view, gave less than proper weight to the conflict of evidence between the appellant and the constable, treating as uncontradicted evidence which was in truth very strongly contradicted, and attributing to the appellant an admission which he did not make. It is unnecessary to explore a number of other questions which were the subject of detailed consideration in the courts below.

12.	It is with genuine reluctance that the Board disturbs a unanimous decision of the Court of Appeal on a matter which it would ordinarily regard as very much within the province of that court.  But the appellant has exercised a right of appeal which the law gives him.  While this incident was on one view minor and mundane, no abuse of police power (if such occurred) is ever trivial.  And there are cases, whether or not this turns out to be one of them, where a challenge made by a private individual promotes the interests of the wider community.  The Board concludes that it should give effect to its own clear opinion.

13.	The Board will humbly advise Her Majesty that the appeal be allowed with costs before the Board and in the Court of Appeal, and that the order of the Court of Appeal be set aside.