Robert Edward Jones v HM Attorney-General sued on behalf of New Zealand Police
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill |
| Judgment Date | 19 June 2003 |
| Neutral Citation | [2003] UKPC 48 |
| Docket Number | Appeal No. 29 of 2002 |
| Court | Privy Council |
| Date | 19 June 2003 |
[2003] UKPC 48
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hutton
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Rodger of Earlsferry
Privy Council
[Delivered by Lord Bingham of Cornhill]
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.
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.
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.
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.
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...
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