Fuller v Patel

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 35/2025
[2025] NZSC 72

BETWEEN	PETER MALCOLM FULLER Applicant
AND	SONNY PATEL Respondent

Court:	Ellen France, Williams and Miller JJ
Counsel:	Applicant in person No appearance for Respondent
Judgment:	2 July 2025

JUDGMENT OF THE COURT

AThe application for leave to amend the leave application is granted.
BThe application for leave to appeal is dismissed.
CThere is no order as to costs.

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REASONS

Mr Fuller objects to the activities of the New Zealand Police Eagle helicopter flying over his residential properties in Auckland, contending that it amounts to repeated aerial surveillance. He maintains that a campaign via police harassment of helicopter surveillance began immediately after he successfully had a conviction and sentence of community work set aside in the District Court at Waitākere. He says that the helicopter’s surveillance since then is linked to his litigation activity.
Mr Fuller brought a claim in the High Court. He named as defendant Mr Patel, who is the Waitākere Area Controller for the Police Eagle helicopter. In particular, he wants orders prohibiting New Zealand Police | Ngā Pirihimana o Aotearoa from flying over his residences at any altitude, and compensation.
The claim was struck out under r 5.35B of the High Court Rules 2016 on the ground that it was plainly an abuse of process.[1]
[1]Fuller v Patel [2024] NZHC 1866 (Moore J).
Mr Fuller appealed to the Court of Appeal, which held a hearing at which he appeared. Mr Patel has taken no steps and did not appear.
The Court of Appeal examined Mr Fuller’s pleading in trespass, under the Privacy Act 2020, Civil Aviation Act 1990, New Zealand Bill of Rights Act 1990 and Health and Safety at Work Act 2015, and tort.[2] It found all of the claims untenable. It concluded that the proceeding was unsalvageable. It dismissed the appeal accordingly.
[2]Fuller v Patel [2025] NZCA 72 (Katz, Grice and Powell JJ) [CA judgment].
Mr Fuller has sought leave to appeal, contending that the Court of Appeal failed to properly assess his claims and failed to consider fresh evidence. He has elaborated on his arguments in an application for leave to amend his appeal (by introducing further evidence) and in a memorandum filed in response to a memorandum from counsel for the Attorney-General, who has indicated that she does not intend to participate unless the Court wishes it. She notes that she, not Mr Patel, is the correct defendant, if this claim is to proceed.[3]
[3]Crown Proceedings Act 1950, s 14(2).
The proposed appeal does not meet the criteria for leave for the reasons given by the Court of Appeal; the causes of action do not exist, or are inapplicable, or are plainly untenable.[4] It has insufficient prospect of success in law to justify leave.[5]
[4]CA judgment, above n 2, at [13]–[19].
[5]Senior Courts Act 2016, s 74(1).
The application for leave to amend the leave application is granted, but the application for leave to appeal is dismissed. As the respondent has played no part, there is no order as to costs.

CaseChat Overview and Summary

In the case of Fuller v Patel, Mr. Fuller sought to challenge the activities of the New Zealand Police Eagle helicopter flying over his Auckland properties, alleging that this constituted repeated aerial surveillance linked to his litigation activities. He sought an injunction preventing the police from flying over his residences and compensation. His claim in the High Court was dismissed as an abuse of process, and the Court of Appeal upheld this decision. Mr. Fuller now seeks leave to appeal to the Supreme Court, arguing that the Court of Appeal did not properly assess his claims and overlooked new evidence. He also filed an application to amend his leave application to include additional evidence.

The primary legal issues in this case were whether Mr. Fuller's claims under trespass, the Privacy Act 2020, the Civil Aviation Act 1990, the New Zealand Bill of Rights Act 1990, the Health and Safety at Work Act 2015, and tort were tenable. The Court of Appeal found that none of these claims were valid, concluding that the proceeding was unsalvageable. The Supreme Court considered whether the appeal met the criteria for leave, focusing on whether the claims had any prospect of success in law.

The Supreme Court found that the proposed appeal did not meet the criteria for leave to appeal, as the causes of action were either non-existent, inapplicable, or plainly untenable. The Court of Appeal's reasoning that the claims were untenable was upheld, and the insufficient prospect of success in law further justified dismissing the appeal. The Court granted the application to amend the leave application but dismissed the application for leave to appeal. Given that Mr. Patel, the respondent, had not participated in the proceedings, there was no order as to costs.

In summary, the Supreme Court dismissed Mr. Fuller's application for leave to appeal while granting the application to amend the leave application. The Court upheld the Court of Appeal's decision, finding that Mr. Fuller's claims were untenable and lacked any prospect of success, thus no further appeal was warranted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established