Attorney-General v PF Sugrue Ltd

[Delivered by Lord Carswell]

New Zealand has found it necessary to exercise control in respect of its wildlife, in particular the deer population, in order to reduce damage to farming and to the environment and to conserve the population by preventing undue depletion. The governing legislation is the Wild Animal Control Act 1977 ("the 1977 Act"), the objectives of which are set out in section 4:

"(1) This Act shall apply to all land, having regard to the provisions of any Act applying to the land, and shall be for the purposes of controlling wild animals generally, and of eradicating wild animals locally where necessary and practicable, as dictated by proper land use.

(2) This Act shall be administered, having regard to the general purposes specified in subsection (1) of this section, so as to –

• (a) Ensure concerted action against the damaging effects of wild animals on vegetation, soils, waters, and wildlife, and

• (b) Achieve co-ordination of hunting measures, and

• (c) Provide for the regulation of recreational hunting, commercial hunting, wild animal recovery operation, and the training and employment of staff."

The control of deer hunting is exercised through a system of wild animal recovery ("WARS") licensing of recreational and commercial hunters. The licences provide for quotas of animals which may be killed and are granted subject to various conditions, the object of which is to maintain control over culling of different species.

Contravention of the several provisions of the 1977 Act is made a criminal offence and the Act contains machinery for enforcement of those provisions and for the necessary searching and investigation to be carried out. For present purposes the material section is section 13, the relevant portions of which provide (as amended):

"(1) Every warranted officer holding a warrant for the purposes of this Act may, on production of his warrant of appointment if so required, in the exercise of his duty, -

(a) At all times without let or hindrance, -

(i) Where he has good reason to believe that an offence is about to be or is being or has been committed, enter upon, pass through, or remain on any land (including any yard and enclosure), shed, barn, hut, tent, and other erection, and any other premises of any description for the purpose of preventing or detecting offences against this Act:

(ii) Enter any vehicle, vessel or aircraft that is about to be used or is being used or has been used in contravention of this Act or that he has good reason to believe is about to or is being or has been so used:

(iii) Where he has good reason to believe that any offence has been committed against this Act, search any land, or any hut, tent, caravan, bach, or other erection, or any barn, storehouse, or other premises of any description, or any trailer, vehicle, vessel, or aircraft to which paragraph (e) of this subsection applies, or any riding or pack animal, or any other device for transportation or carriage found on any premises or on any water:

Provided that nothing in this paragraph shall apply to any dwellinghouse or other permanent residence or to the enclosed garden or curtilage of any dwellinghouse or other permanent residence:

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(c) Seize all nets, traps, snares, tranquillising drugs, ammunition, firearms, poisons, vessels, horses, dogs, aircraft, vehicles and devices that are about to be used or are being used or have been used in contravention of this Act, or that he has good reason to believe are about to be so used or are being so used or have been so used:

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(6) Any warranted officer shall have power, on production of his warrant of appointment if so required, to enter at all reasonable times on the land or premises of the holder of any permit or licence or other authority to which any of the provisions of this Act apply, or any other land or premises where he has good reason to believe that an offence against the Act is about to be or is being or has been committed, and inspect any part of the land or premises for the purpose of ascertaining whether the conditions of the permit are being complied with or, as the case may be, whether any offence against this Act has been committed; and where he has good reason to believe that any offence has been committed against this Act, search any land, or any hut, tent, caravan, bach, or other erection, or any barn, storehouse, or other premises of any description, or any trailer, vehicle, vessel, or aircraft to which paragraph (e) of subsection (1) of this section applies, or any riding or pack animal, or any other device for transportation or carriage found on any premises or on any water:

Provided that a warranted officer shall not enter any dwellinghouse or the enclosed garden or curtilage of any dwellinghouse, unless he is authorised by a warrant under the hand of a District Court Judge or Justice of the Peace or Community Magistrate, who shall not grant such a warrant unless he is satisfied that the warranted officer has reasonable grounds for requiring entry into the dwellinghouse, garden or curtilage.

(7) Any District Court Judge or Justice of the Peace or Community Magistrate who is satisfied on oath that there is probable cause to suspect that any offence against this Act has been or is being committed within any dwellinghouse, garden, or curtilage may, by warrant under his hand, empower a warranted officer to enter therein for the purpose of detecting that offence at such time or times of the day as are mentioned in the warrant, but no such warrant shall continue in force for more than 14 days from the date thereof."

On 6 December 1990 at Wainihinihi, Westland, the Department of Conservation ("DOC"), acting through a warranted officer Mr Gerald Olde-Olthof, seized a Hughes 500C helicopter, registered number ZK-HPS, owned by the appellant company PF Sugrue Ltd and used by it for the hunting and recovery of deer pursuant to the terms of a licence issued to the appellant. The shareholding in the company was owned by two brothers, Michael and Patrick Meates. The helicopter was based at a deer farm belonging to the brothers and was at the material time parked not far from the dwellinghouse on the farm. As was required by the terms of the licence it carried on its sides an identification mark, a yellow letter G on a black background with a yellow border.

Mr Olde-Olthof had received several reports, some of which were more reliable as identification than others, from which he concluded that the helicopter ZK-HPS had been used for killing deer in contravention of the Act. A major issue in the case was whether he had good reason to form his belief, which it was accepted he genuinely held. He submitted reports to his superiors and obtained authority to carry out an operation involving the search of the Meates brothers' farm and the seizure of the helicopter.

Mr Olde-Olthof went on 6 December 1990 to the Meates' farm. Before he did so he applied to a justice of the peace for a warrant to search the property, on the ground that Michael Meates and Donald Greig, the appellant's regular hunter, had hunted red deer from the helicopter without written authority. The justice issued the warrant, which purported to be granted in pursuance of section 13(7) of the 1977 Act. It was common ground throughout the proceedings that, whatever the respondent's grounds for entry, search or seizure, there was no case for the issue of a warrant under section 13(7).

Mr Olde-Olthof arrived at the farm with other DOC officers and police personnel. The DOC officers seized the helicopter, a semi-automatic rifle (the property of one of the hunters on contract to the appellant), a logbook and a map. The helicopter was flown later that day to the Wigram air base at Christchurch. Over the next few days the appellant's solicitors made representations for the release of the helicopter, on the ground of the damage to the appellant's business caused by its absence, and on 14 December 1990 it was released unconditionally by the DOC. It was not flying satisfactorily and it transpired that damage had occurred at some stage to a compressor. This caused the helicopter to be grounded for some time until a replacement was obtained. The appellant suffered serious losses, leading to eventual failure of its hunting business, which it attributed to the loss of the helicopter for a critical period and the escalating effect on the business. The cause of the damage to the compressor was not established, but the appellant's claim in these proceedings did not include an allegation of negligence on the part of the DOC, its servants or agents.

The DOC brought a prosecution against the appellant company for breach of the 1977 Act, but at a jury trial in 1993 it was found not guilty. A proposed prosecution of Mr Michael Meates did not proceed.

The appellant company and the Meates brothers commenced proceedings against the respondent the Attorney General on behalf of DOC and other public officers and bodies on 5 December 1996, a day before the expiry of the limitation period. The original statement of claim centred around a claim that officers of DOC and certain holders of public office conspired together to interfere with the appellant's business. The pleading contained allegations of fabricating evidence, tampering with documents, suborning witnesses and committing perjury, allegations which the Court of Appeal described as extravagant and castigated as grossly improper and unfounded. A claim based on trespass can be spelled out of the pleading, but it was not a central plea in the document.

On 15 June...