Practice and Procedure


PUBLISHED June 20, 2003

The Court of Appeal of New Zealand was wrong to give summary judgment for the defendant under r.136(2) High Court Rules since the outcome of the case depended on disputed issues of fact which could only be determined at trial.Appeal from the decision of the Court of Appeal of New Zealand giving summary judgment for the defendant Attorney-General, representing the New Zealand police. In 2000, the plaintiff was stopped by a police constable while he was driving his car. The plaintiff's case was that the constable acted unlawfully in requiring him to stop and that that unlawfulness founded claims of unlawful detention, false imprisonment, arbitrary detention, unreasonable search and seizure, negligence and misfeasance in public office. The constable's power to require a driver to stop and give his name and address was governed by s.114 Land Transport Act 1998. That power could not be used for non road transport purposes but its use was not dependent on any breach of the relevant law or even belief or suspicion of such a breach. The plaintiff alleged that the reason given by the constable for stopping him was a deliberate falsehood, fabricated in an attempt to justify an arbitrary and frivolous stopping. The Court of Appeal of New Zealand found that the constable's uncontradicted evidence was that she did have a traffic purpose for stopping the plaintiff's car and gave summary judgment for the defendant under r.136(2) High Court Rules on the basis that none of the causes of action in the plaintiff's statement of claim could succeed. The plaintiff appealed.HELD: (1) The r.136(2) procedure would rarely be appropriate where the outcome of the action might depend on disputed issues of fact. (2) It was plain from the conflicting accounts of the incident that the plaintiff did not admit to the incident the constable described. It was because the plaintiff so strongly challenged the description of the incident given by the constable that he stigmatised her account as dishonest and her stopping of the car as capricious, arbitrary and an unlawful abuse of the power conferred by s.114 of the 1998 Act. (3) The constable's evidence was not uncontradicted as the Court of Appeal erroneously held nor did the appellant make an admission attributed to him. (4) If the case were to be fully tried the plaintiff might succeed in establishing his version of events. If the constable had stopped him for no road traffic reason she would not be protected by s.114. Summary judgment should not be given for the defendant unless he showed on the balance of probabilities that none of the plaintiff's claims could succeed. Since the outcome was dependent on the facts found, it was inappropriate to give summary judgment for the defendant.Appeal allowed.

[2003] UKPC 48