Adamson v Attorney-General

[2023] NZHC 3809

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-244

[2024] NZHC 3809

UNDER

the Fair Trading Act 1986, the New Zealand Bill of Rights Act 1990, the Lawyers and Conveyancers Act 2006, Tort of Professional Negligence and the Crimes Act 1961

BETWEEN

IAN ADAMSON

First Plaintiff

KATE JONES
Second Plaintiff

AND

MELANIE BAKER

Defendant

CIV-2023-485-381

UNDER

the Fair Trading Act 1986, the New Zealand Bills of Rights Act 1990, Tort of Professional Negligence and the Crimes Act 1961

BETWEEN

IAN ADAMSON

First Plaintiff

KATE JONES
Second Plaintiff

AND

THE ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OF JUSTICE

Defendant

Hearing:	18 December 2023
Appearances:	Plaintiffs in person Defendants excused
Judgment:	20 December 2023

ADAMSON v BAKER [2024] NZHC 3809 [20 December 2023]

Reissued: 27 February 2024

JUDGMENT OF CHURCHMAN J

This judgment was delivered by me on 20 December 2023 at 11:00 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

Parties / Solicitors:

The Plaintiffs The Defendants

Ms D Harris and Ms A Vincent, Crown Law, Wellington

Introduction

[1]    Mr Adamson and his daughter Ms Jones, have filed two separate sets of proceedings which are described as “Statement of Claim for Tort of Professional Negligence”.

[2]    The first in time of these is CIV-2023-485-381. The statement of claim is dated 28 March 2023. It purports to bring a claim of professional negligence, said to amount to a perversion of the course of justice, against an employee (the former Deputy Registrar) of the Lower Hutt District Court. An amended statement of claim was filed on 15 December 2023.

[3]    The second proceeding, CIV-2023-485-224, was filed on 17 April 2023. It is brought against Ms Baker, counsel for child in Family Court proceedings that the first and second plaintiffs were, and continue to be, involved in. It asserts that Ms Baker engaged in professional negligence as well as a number of other claims, including breaches of the Fair Trading Act 1986, fiduciary duties as a lawyer, and the New Zealand Bill of  Rights Act 1990.   An amended statement of  claim was filed on    15 December 2023.

[4]    Although the proceedings were first filed in March and April 2023, they were only brought on for hearing by teleconference on 10 November 2023. At the teleconference, and subsequently by minute dated 15 November 2023, I advised the parties that the proceedings appeared to disclose no reasonably arguable cause of action and may also be an abuse of the process of the Court.

[5]    I set down both proceedings for a hearing for the purpose of determining whether either or both of them should be struck out pursuant to r 15.1 of the High Court Rules 2016. I directed that neither defendant was required to respond to the respective statement of claim nor attend or participate in the hearing.

[6]    The Attorney-General has filed a memorandum in the CIV-381 proceedings, together with an interlocutory application on notice to strike out the statement of claim. The Attorney-General also submitted that the Attorney-General is the properly named defendant in those proceedings under the Crown Proceedings Act 1950, as the Crown is vicariously liable in respect of torts committed by its servants.1 The plaintiffs challenge the Attorney-General’s submission that it is the appropriate defendant. They say that s 14(2)(c) of the Crown Proceedings Act provides that the Attorney-General is the appropriate defendant only if there is no appropriate department or officer to sue.

[7]    I consider the Attorney-General’s submission that it is the appropriate defendant is correct. The plaintiffs seek to sue an employee of the Ministry of Justice personally for acts done in their professional capacity. I am satisfied that pursuant to s 14(2)(c) of the Crown Proceedings Act, it is appropriate that the Attorney-General be named, rather than the employee herself. I make an order, pursuant to r 4.56 of the High Court Rules, removing the named defendant in these proceedings and substituting the Attorney-General as the defendant in place of the named defendant.2

[8]    Following the hearing, held before me on 18 December 2023, I have concluded it is appropriate to strike out both proceedings under r 15.1. It is apparent that the proceedings are brought as a collateral attack on previous findings of the Family Court

1      Pursuant to the Crown Proceedings Act 1950, s 6.

2      Pursuant to s 14(2) of the Crown Proceedings Act.

and the High Court. This is impermissible and an abuse of process. I now address the statements of claim in these two proceedings in detail and provide my reasons for the conclusions I have reached.

Legal principles in relation to strike out

[9]    Rules 15.1(1)(a) and (d) of the High Court Rules provide that the Court may strike out all or part of a proceeding if it discloses no reasonably arguable cause of action or is otherwise an abuse of the process of the Court, respectively. Where this is so, an order striking out the whole or part of pleading may be appropriate.3 However, the threshold for a claim to be struck out is high. A Court will not strike out a claim summarily unless it can be sure that it cannot possibly succeed.4

[10]   In determining whether a proceeding discloses no reasonably arguable cause of action, in Couch v Attorney-General Elias CJ and Anderson J noted the following criteria apply:5

(a)pleaded facts are assumed to be true, unless the pleaded allegations are entirely speculative and without foundation;

(b)the cause or causes of action must be clearly untenable;

(c)the jurisdiction is to be exercised sparingly and only in clear cases; and

(d)the jurisdiction is not excluded by the need to decide difficult questions of law.

[11]   Insofar as the proceeding may be struck out as an abuse of process, in Moevao v Department of Labour Richardson J held that the concern under this ground is with conduct on the part of a litigant in relation to the case “which unchecked would strike at the public confidence in the Court’s processes and so diminish the Court’s ability to

3      Dotcom v District Court at North Shore [2018] NZCA 442, [2018] NZAR 1859 at [14].

4      Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J.

5      Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J at [33].

fulfil  its  function  as  a  Court  of  law”.6     The abuse of process ground includes proceedings that:7

(a)deceive the Court, are fictitious or a mere sham;

(b)use the process of the Court in an unfair or dishonest way, or for some ulterior or improper purpose or in an improper way;

(c)are manifestly groundless, without foundation or serve no useful purpose; and

(d)are vexatious or oppressive.

CIV-2023-485-381

The statement of claim and amended statement of claim

[12]   These proceedings arise  against  the  backdrop  of  a  private  prosecution  Mr Adamson had lodged with the Court. The defendant named in Mr Adamson’s statement of claim, who was at that time a Deputy Registrar at the Court, is the Court staff member to whom Mr Adamson spoke on 24 March 2023, when he was inquiring about the status of his private prosecution.

[13]   In these proceedings, Mr Adamson asserts that due to what he terms the professional negligence of the former Deputy Registrar, the former Deputy Registrar has perverted the course of justice.

[14]   It is alleged that the former Deputy Registrar negligently advised Mr Adamson that no CRI number had been allocated to his private prosecution, when that was not in fact the case. Mr Adamson says the former Deputy Registrar deliberately misled him in this way, despite having the ability to check whether a CRI number had been allocated, and knowing that the information that no CRI had been allocated was false.

6      Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 482.

7      PricewaterhouseCoopers v Walker [2017] NZSC 151, [2018] 1 NZLR 735 at [56].

Mr Adamson says this has limited his options to deal with the progression of his application and as such his right to access justice has been breached.

[15]   Although the statement of claim (as amended) is styled as relating to the tort of professional negligence, it also refers to the Fair Trading Act, perverting the course of justice, and the New Zealand Bill of Rights Act.

Discussion

[16]   I turn to consider the statement of claim as amended, and whether it should be struck out.

[17]   The Crown has no direct tortious liability and can only be held vicariously liable for the torts of its servants and agents, pursuant to s 6(1) and (4A) of the Crown Proceedings Act.8 Pursuant to s 104 of the Public Service Act 2020, the former Deputy Registrar is immune from liability in civil proceedings. As the employee is immune from liability, the Crown cannot be held vicariously liable under s 6(1).

[18]   Section 6(4A) provides that a court may find the Crown itself liable in tort in respect of the actions or omissions of its servants, despite those Crown servants being immune from liability under s 104 of the Public Service Act. There is nothing to suggest that this Court should hold the Crown responsible under s 6(4A).

[19]   There is accordingly no case against the Crown for it to answer. It is not vicariously liable for the actions of the Deputy Registrar under s 6(1) of the Crown Proceedings Act, and I do not consider this is a case where the Court should find the Crown itself liable under s 6(4A). The statement of claim is therefore clearly untenable.

[20]   This is by itself sufficient to warrant striking out the claim and disposing of the proceedings. However, there are a number of other grounds on which the proceedings should be struck out.

8      Crown Proceedings Act, s 6(1) and (4A).

[21]   Section 6(5) of the Crown Proceedings Act bars proceedings in respect of any acts done in connection with the execution of judicial process. The former Deputy Registrar’s actions, taken on the facts as pleaded, were clearly done in connection with the execution of judicial process. Given such a claim in negligence is barred by s 6(5) of the Crown Proceedings Act, again there is therefore no tenable case against the Crown.

[22]   I am also satisfied that there is no arguable case on the merits of the claim as pleaded. One of the components of a successful action in negligence is that the plaintiffs can establish that the actions of the defendant caused them loss. The loss needs to be particularised in the pleadings. Here, Mr Adamson complaint was that there was some delay in having his attempt to bring a private prosecution considered by a judge.

[23]    There is no doubt that a longer than would be expected time elapsed between him filing the documents and a Court decision on them. However, as Mr Adamson acknowledged, his application was considered by Judge Black, who rejected it. It is not the former Deputy Registrar’s fault that Mr Adamson’s attempt to commence a private prosecution was unsuccessful. Nothing that the former Deputy Registrar did or did not do affected the decision made by Judge Black. The required element of loss is therefore not present.

[24]   Another fundamental defect in the proceedings is the conflation of concepts of criminal liability with the tort of negligence. The statement of claim alleges that by failing to inform the first plaintiff that a CRI number had been allocated to his private prosecution proceedings the former Deputy Registrar perverted the course of justice. That is an allegation that a criminal offence has been committed. Claims in tort (such as the negligence claim) are matters dealt with in the civil jurisdiction. Criminal matters are dealt with in the criminal jurisdiction. An allegation of the commission of a criminal offence has no place in civil proceedings.

[25]   In my minute of 15 November 2023,9 in an attempt to identify the apparent difficulties with the pleadings as they then stood so that Mr Adamson would have the

9      [Adamson] and [Jones] v Baker CIV 2023 485 224, Minute of Churchman J, 15 November 2023.

opportunity of addressing them, I explained the problem created by the fact that the relief then sought in the proceedings (the institution of criminal charges against the former Deputy Registrar for conspiring to defeat justice) was not relief available in tort proceedings. As a result, on the day before the hearing, Mr Adamson filed an amended statement of claim.

[26]   The amended proceedings no longer seek the institution of criminal proceedings against the former Deputy Registrar. They seek compensatory and punitive damages. I discuss below in relation to the proceedings ending CIV-224 the difficulty with claims for compensation of this nature in tort. However, as the cause of action pleaded in the CIV-381 proceeding is different to the CIV-224 proceedings I will address that separately now. There is just one cause of action listed in the CIV- 381 proceeding. It is described as “negligence under Fair Trading Act 1986”. As explained below, the tort of negligence and the statutory liability arising under the Fair Trading Act are separate legal causes of action and cannot be combined.

[27]   In the CIV-381 proceeding it is claimed that the former Deputy Registrar was bound by the Fair Trading Act. That is clearly not the case. The District Court is not engaged in trade as that term is defined in the definition section of the Fair Trading Act. Section 4(1) of the Fair Trading Act stipulates that the Act only binds the Crown “insofar as the Crown engages in trade”. The District Court clearly does not engage in trade and the Fair Trading Act is therefore irrelevant to any actions undertaken by a Deputy Registrar in relation to proceedings filed at the Court.

[28]   The amended statement of claim also asserts that the former Deputy Registrar owed a duty of care to the plaintiffs to keep the plaintiffs informed when the plaintiffs made enquiries as to the progression of the case. The basis for that duty is not articulated in the amended statement of claim, nor was it identified in Mr Adamson’s oral submissions. The reason for that is no doubt because no such legal duty is recognised at law.

[29]   These proceedings disclose no arguable cause of action and are struck out under r 15.1(1)(a) of the High Court Rules 2016. They are also an abuse of the process of the Court and are struck out under High Court Rule 15.1(1)(d).

CIV-2023-485-224

The amended statement of claim

[30]   The amended statement of claim is styled as a claim for a tort of professional negligence. The plaintiffs are Mr Adamson and Ms Jones, and the defendant is named as Ms Baker. Ms Baker acted as lawyer for child in earlier Family Court proceedings concerning protection orders in relation to a child who was three years old at the time. The child is Ms Jones’s daughter and Mr Adamson’s granddaughter.

[31]   The amended proceedings no longer seek the striking off of the defendant or the institution of criminal proceedings but now seek relief in the form of damages. However, the amended proceedings still confuse and conflate negligence proceedings with those under the Fair Trading Act and the New Zealand Bill of Rights Act. Three causes of action are pleaded. The first one is titled “Negligence under the Fair Trading Act”. Essentially the claim is that the first defendant, in the course of acting as counsel for child, breached the Fair Trading Act and the breach of that Act gives the plaintiffs the right to damages in negligence. Such a claim is clearly untenable. The second cause of action also alleges that conduct said to be breaches of the Fair Trading Act amounts to negligence which is said to have caused psychological and emotional distress.

[32]   Of concern is the fact that the plaintiffs have already had an earlier attempt to sue another lawyer involved in the Family Court case struck out.10 Mr Adamson submitted to me that the decision in that case is authority for the proposition that lawyers who represent parties in Family Court proceedings can be liable to other parties engaged in those proceedings under the Fair Trading Act. That is not correct. The judgment does not address the principle of whether, as a matter of law, such liability exists. It simply addresses the issue of whether the facts claimed in that case to amount to breaches of ss 9 and 13 of the Fair Trading Act could possibly amount to breaches of the Fair Trading Act. The Court found that they could not and struck the proceedings out.

10     [Adamson] v Barry [2023] NZHC 3557.

[33]   That decision also contains observations relevant to the second and third causes of actions pleaded by the plaintiffs in this case. The plaintiffs contend that the defendant, in her capacity as counsel for child, owed duties to them. In the Barry case the plaintiffs had made similar claims about the lawyer who was acting for the other party to the Family Court proceedings. Associate Judge Skelton explained in his decision that a lawyer’s duty is owed to his or her client alone.11 Ms Baker’s client was the child not the plaintiffs. She clearly did not owe the plaintiffs the type of fiduciary duty contended for by the plaintiffs in the third cause of action in these proceedings.

[34]   The findings in the Barry case are also relevant to the relief sought by the plaintiffs in the three causes of action in the amended proceedings. They seek damages, both compensatory and punitive, for the infliction of “psychological and emotional distress”. This was something they had sought in the Barry case. At [23] in that case the court set out the following passage from Todd on Torts:12

Intangible harm such as pain and suffering, distress and anxiety falling short of recognisable psychiatric illness, embarrassment and humiliation, annoyance and inconvenience is not in itself sufficient to ground a free- standing claim in tort such as negligence that is complete only on proof of actual damage.

[35]   Just as in Barry, the plaintiffs have not pleaded any actual damage in the sense of a recognisable psychiatric illness or economic loss, and the proceedings founder for the same reason.

[36]   The third cause of action in the amended statement of claim refers to the New Zealand Bill of Rights Act and contends that this was breached by the defendant and that this somehow justifies an award of damages against the defendant in favour of the plaintiffs in a tort action. Again, this is a repetition of the same sort of pleading involved in the Barry case. Despite the court, at [31] of that case, having explained what the purpose of s 27 is and how it cannot found liability of the type sought here, the plaintiffs have again advanced the same sort of claim. The same reasons that resulted in the s 27 pleading being struck out in the Barry case apply here.

11     At [19], referring to Radisich v Templeton [2009] 3 NZLR 276 at [19]-[21].

12     Stephen Todd (ed) Todd on Torts (9th ed, Thomson Reuters, Wellington, 2023) at [24.2.9] (citations omitted).

[37]   Accordingly, I am satisfied that the statement of claim (as amended) discloses no reasonably arguable  cause of  action or case.  It is  struck out  under High  Court r 15.1(1)(a).

[38]   I turn now to discuss whether these proceedings also amount to an abuse of process. The “abuse of process” ground is wide in scope and captures all other instances of misuse of the Court’s processes. As the High Court of Australia noted in Williams v Spautz:13

… court proceedings may not be used or threatened … not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused.

[39]   During the course of oral submissions, it became clear that Mr Adamson was contending that the decision of the High Court on an appeal from the Family Court14 was wrong and that the outcome in that case had been caused by the actions of the defendant which were said to provide the basis for the causes of action advanced in these proceedings. That confirms that these proceedings are, in effect, an attempt at a collateral attack on the High Court’s decision and the Family Court decision appealed from.

[40]   They are an attempt to relitigate matters already determined, other than through the appropriate channel. In other words, the plaintiffs are attempting to bring substantively the same proceeding “in a different garb”.15 The plaintiffs challenge the performance of Ms Baker in her role as lawyer for the child and say that was causative of the Judges’ decisions in both the Family and High Court. This is an impermissible collateral attack on the Courts’ findings and an abuse of process.

[41]   As the High Court of Australia stated in Williams v Spautz, the Court must be alert to misuse of its processes, and be prepared to exercise its power to stay or dismiss

13     Williams v Spautz (1992) 174 CLR 509 (HCA) at 528 and 536, adopting Re Majory [1955] Ch 600 (CA) at 623–624.

14     Adamson and Jones v Chief Executive of Oranga Tamariki and Robinson [2021] NZHC 2430.

15     Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC) at 586.

a proceeding where the interests of justice demand it.16 The improper purpose need not be the sole purpose, as long as it is the predominant purpose.17

[42]   I am satisfied that the intention behind the proceeding is to mount a collateral challenge to the substantive decisions of the Family Court and High Court, and as such it is a misuse of the Court’s processes. I am satisfied that if this were left unchecked, it would “strike at the public confidence in the Court’s processes and so diminish the Court’s ability to fulfil its function as a Court of law”.18

[43]   The proceeding must also be struck out under r 15.1(1)(d) as an abuse of process.

Conclusion

[44]   With respect to the proceedings in CIV-2023-485-381, the statement of claim discloses no reasonably arguable cause of action or case, and is an abuse of the process of the Court. No liability can lie on the Crown, either vicariously under s 6(1) of the Crown Proceedings Act, or directly under s 6(4A). In any case, such a claim is barred by s 6(5) and there is no arguable case on the merits of the claim.

[45]   With respect to the proceedings in CIV-2023-485-224, it is clear the proceedings are a collateral attack on the findings of the Family Court and High Court, and as such are a clear abuse of process. In addition, the allegations made in the statement of claim are untenable and disclose no reasonably arguable cause of action, and are an abuse of process.

Result

[46]   I find that both of these proceedings are totally without merit and are struck out under r 15.1(a) and (d) of the High Court Rules 2016.

16     Williams v Spautz (1992) 174 CLR 509 (HCA) at 519.

17     At 529.

18     Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 482.

Costs

[47]   The Attorney-General seeks costs in respect of the filing of the strike out application in CIV-2023-485-381. The plaintiffs are entitled to be heard before any costs award is made. The Attorney-General has 10 working days (excluding the period of the Court’s Christmas vacation) to file a memorandum of no greater than two pages in length. The plaintiffs will have 10 working days to file and serve a reply. Costs will then be dealt with on the papers.

[48]   Ms Baker was not required to respond to the statement of claim brought against her and I therefore make no order as to costs in the CIV-2023-485-224 proceeding.

Churchman J