B v W HC Auckland CIV-2010-404-003590

[2011] NZHC 1943

NOTE:  SUPPRESSION ORDER SUPPRESSING THE NAMES OF THE PARTIES AND/OR ANY DETAILS THAT MAY IDENTIFY THEM UNTIL FURTHER ORDER OF THE DISTRICT COURT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-003590

BETWEEN  B Appellant

ANDW Respondent

Hearing:         30 November 2011

Appearances: B in Person

N Whittington for Respondent

Judgment:      1 December 2011

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on

1 December 2011 at 4.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

Respondent, Mr B to his residential address

B V W HC AK CIV-2010-404-003590 1 December 2011

[1]      Mr   B’s   statement   of   claim   includes   various   allegations   of   damage, threatening behaviour, assault and abuse (among others)  by District Court staff. They were struck out by Judge Hubble because there was no real basis whatsoever for the claims and Mr B’s non-appearance at the hearing.   Mr B said he did not attend, because he did not know about the hearing date.  He wants an opportunity to ventilate his claims.

[2]      As Mr B was late in filing his notice of appeal, he also seeks leave to appeal out of time.  He says that he did not receive any notice of the appeal until some six months after the delivery of the judgment.

Background

[3]      Mr B claims that he was abused by court staff under the instruction of a Registrar  of  the  Court.    The  abuse  included  assault  and  damage  to  his  car. Illustrative of his pleading is the following allegation:

When we gone to the counter to get the Judge […] decision we were chased away with the threat by […] who act under instruction from […] to assault us if we don’t act and leave instantly.  Where […] claim that she and police will assault us if we don’t instantly leave.

[4]      He then claims the sum of $20,600 plus future costs to get this before the Court.  It is indicated that the damage caused by […] will be subject to a separate application.

Procedural history

[5]      The procedural history of this matter both in the Courts below and in this Court is, to say the least, convoluted.   Initially the matter was lodged in the [AA] District Court.  At some stage it was transferred to the Auckland District Court.  An application to strike out the statement of claim was made by the respondent and a timetabling order was made to have the application for strike out set down for

24 September 2009.   There is evidence on the District Court file that notice of

hearing of interlocutory application was served on Mr B at X address.  That records the hearing date of Thursday 24 September 2009 at 10.00 a.m.

[6]      Mr B did not however attend the Auckland District Court on the date of hearing and the matter was duly heard in his absence.  I will deal with the Judge’s decision below.

[7]      There is also evidence on the Court file of a copy of the decision being sent to Mr B, but with no address indicated on that letter.  There is then correspondence with handwritten notations on it by Mr B, dated 10 October 2009, and with a District Court stamp dated 23 October 2009.   That letter seeks information about all fines imposed on Mr B (and others).   It also requests that any response be sent to Y address. The handwritten notation also asks to “bring this [letter] to Judge Hubble”.

[8]      The Court responded in a letter dated 29 October 2009 addressed to Mr B at Y address. Attached to that letter is the notice of hearing of the strike out application and the hearing date.

[9]      Mr B lodged an appeal against the decision of the District Court on 14 June

2010 immediately after he was served a sealed order for costs.  He was then directed by this Court to file an application for leave out of time and did so on 28 September

2010.   For reasons that are not relevant to the determination of this appeal, both applications could not be heard until 30 November 2011.

District Court decision

[10]     Unsurprisingly, the District Court decision is relatively succinct given that

Mr B did not attend the hearing.  Judge Hubble observed:

[4]       No  memorandum  was  filed  and  today  Mr  B  has  not  appeared. Reading the Crown’s case for striking out I have little doubt that it is warranted. There is no real basis for this claim whatsoever and accordingly I note the non-appearance of Mr B and there will be an order striking out his claim.

[5]       I have read the reserved decision of King and Queen’s Peace Trust v

Junior  Feausiga  3/8/09,  Judge  Perkins,  DC  Waitakere  CIV-2009-004-

001329 where indemnity costs were awarded in circumstances not dissimilar

to the present.  I believe they are justified and I am advised by Ms Harrison for the Crown that the amount is $3535.00 and there will be an order for indemnity costs accordingly.

[11]     Judge Hubble therefore, reasonably in my view, struck out the plaintiff’s

claim and the proceedings were dismissed.

The grounds of the appeal

[12]     Mr B essentially relitigates his statement of claim in his grounds of appeal. In substance however his main ground for appeal appears to be that he says he was not aware of the hearing date and did not become aware of the judgment until

14 June 2010.  He says he has legitimate grievances against court staff and that he should be given the opportunity to ventilate those grievances.

Respondent’s position

[13]     Mr Whittington provided very helpful submissions, in what could only be described as trying circumstances.

[14]     The nub of the respondent’s position is that:

(a)      The appeal is well out of time;

(b)      Mr B’s claim that he was not served a copy of the judgment until June

2010 is rejected;

(c)      The notice of appeal does not identify any error or ground of appeal arising out of the District Court decision;  and

(d)In any event the District Court decision was a sound one there being no reasonable cause of action disclosed, the proceeding is frivilous and vexatious and the proceeding is an abuse of the process of the Court.

[15]     I will address the respondent’s detailed argument in my assessment.

[16]     I am confronted with a lay appellant insistent that he did not receive a copy of the decision until June 2010, several months after the decision was delivered.  This does not entirely align with the Court record which has, as indicated above, correspondence from Mr B to the District Court which tends to indicate that he had some knowledge at least, of a hearing in September, if not the outcome.

[17]     Having reflected upon this matter, I am not in a sensible position to be able to finally determine whether or not Mr B received notice of the decision prior to June

2010.   As I indicated to Mr Whittington, I am of the view that I need to take a cautious approach in matters concerning the right to access the Courts.   Quite independently of the  New  Zealand  Bill  of Rights,  such right  is  constitutionally entrenched.   There is a further need for caution given that one of the reasons for striking out Mr B’s claim was his inattendance.

[18]     When I then examine the Court records on this, and without in any way criticising the procedures of a very busy Court, the relevant letter attaching the decision does not record Mr B’s address.   This raises at least some doubt about whether it was served on him.  It is relevant that by October 2010, Mr B was resident at address Y rather than X.  The latter was the address on the statement of claim and it may be that the decision was sent to X.  But Mr B did appraise the Court of his new address in October 2010, about the time the decision would have been sent to him.  As to the wider provenance of his letter dated 10 October 2010, this may lead to an inference that Mr B was aware a decision had been made.  But that is not an irresistable conclusion.

[19]     In summary, given the combination of direct evidence from the appellant to me that he did not receive the decision until June 2010, and that I cannot be satisfied that he was served prior to then, I am going to grant Mr B leave to appeal.

[20]     Dealing first with any alleged procedural irregularities.  Mr B claimed that he had not been served with a notice of the hearing date.  I am satisfied that the Court went about its business in the appropriate way.  The record clearly displays that he was served with a notice of hearing at his X address, in accordance with the address given in the statement of claim.

[21]     Approaching the matter favourably to Mr B, it may be that he had changed addresses by this time.  While I am firmly of the view that there was no procedural irregularity here, I cannot discount the possibility that Mr B did not receive the notice of hearing.

[22]     Turning  then  to  the  substance.    The  respondent  usefully  describes  the allegations contained in the statement of claim, namely:

(a)       Criminal damage caused to the [sic] Mr B’s car;

(b)      Threats by court staff to assault Mr B (and presumably his family) if he/they did not instantly leave;

(c)       Actual assault;

(d)      Abuse of Mr B and causing police to assault him for no legal reason; (e)     Failure to supply Mr B with Court dates;

(f)       Breaches of privacy by court staff;

(g)       Fraudulant  conduct  in  altering  charges  against  Mr B  and/or  his family;

(h)      Further fraud of some kind (the details of which are impossible to discern); and

(i)       Some failiure in relation to payment of traffic fines by my B [sic]

into Court.

[23]     I should say that the respondent’s categorisation is somewhat generous to Mr B in providing form and legibility to a statement of claim that is clearly not the work of a lawyer.

[24]     But the respondent’s summary is somewhat illustrative of the ease with which Mr B’s claim could be converted into an orthodox statement of claim alleging such matters as tortious damage, assault, abuse of power, breach of privacy legislation and fraud.   This strongly suggests that with some corrective pleading, the complaints raised by the respondent might properly be addressed.

[25]     There are however some obvious problems with Mr B’s allegations.   First, some of the alleged abuses, for example refusal to provide paperwork, are most unlikely to give rise to a claim in damages.  It is certainly difficult to discern from the papers how such a refusal gives rise to a claim for damages, let alone in excess of

$20,000.    Other claims,  on  their  face,  are  so  implausible and  outrageous  as  to represent an abuse of process.   Within this class I would include the claim that a Court Registrar instructed staff to assault Mr B.

[26]     There may be also as the respondent suggests, a collateral purpose to these proceedings, namely a desire by Mr B to punish perceived injustices which really do not give rise to civil damages.

[27]     In addition, allegations of fraud must have some substance to support them, and in the context of pleadings, sufficient and appropriate particularisation so that the Court can be satisfied that there is at least some substance to them.  For my part, they have the appearance of bald assertions without any substance.

[28]     Against all of this however, I am reminded that the test is whether the claim is so untenable that it could not possibly succeed.[1]  The jurisdiction to strike out must be used very sparingly.

[1] Attorney-General v Prince and Gardner [1998] 1 NZLR 262 at 267.

[29]     I am also conscious that in this context, the Court ought not to be seen to be treating the claims lighthandedly.  That probably explains why the pleadings were transferred to the Auckland District Court.

[30]     In this regard, the respondent very helpfully referred me to the decision of

Van der Kaap v Attorney-General.[2]   The following resonates here:

[2] Van der Kaap v Attorney-General 10 PRNZ 162 at 166.

The only issue for me today is whether to strike these proceedings out now, or whether to adopt a less fair course which at least preserves the applicant’s position to some degree.  I am quite satisfied that the attacks as expressed are disgraceful and scandalous.   I am quite satisfied that the Court would be justified in striking the proceedings out altogether now.   Indeed, these proceedings and Mr Van der Kaap’s conduct could well have given rise to separate and distinct relief against him.

But I am also conscious that access to our Courts is a fundamental and precious right.  But it is specifically recognised by the New Zealand Bill of Rights Act 1990.  It is sometimes necessary to level the most serious charges at Court Officers and Judges.  Provided that such are advanced in good faith, in appropriate form and in a measured manner, such will be distinctly and impartially evaluated on their merits.

[31]     In that case Hammond J made orders staying the proceedings until further order of the Court, requiring the plaintiff to lodge a completely redrafted statement of claim and application for directions, purged of the scandalous material and that those documents were not to be served until they had been perused in Chambers.

[32]     Given the somewhat unusual circumstances here, and in particular the doubt that has been raised concerning Mr B’s receipt of relevant notices, I propose to set aside the (understandable) judgment of the District Court striking out the statement of claim, and referring the strike out application back to the District Court, given that that is where the substantive proceedings are located.

[33]     I was initially minded to provide further directions akin to those imposed by Hammond J.   But that really is a matter for the assigned Judge.   I would simply observe that the strike out is not yet resolved, and the District Court Judge may deal with this matter as he or she thinks appropriate, including by way of the process adopted by Hammond J.

[34]     There shall be ongoing suppression until set aside by the District Court.

[35]     As  to  costs,  I make  no  award  of  costs.    I  have  approached  this  matter favourably to Mr B, but I am far from satisfied that he should be entitled to any costs given that the genesis of his problems relate to his residential address, or at least apparently so.   Applicants would do well to remember that if they want to avoid

what would otherwise be a reasonable decision to strike out pleadings, that they give a current address for service and they attend Court in accordance with timetabling orders.  Mr B would also do well to moderate his language as derogatory comments serve only to distract the Court from the merits.

[36]     Finally, I record that Mr B requested that I recuse myself given the approach I

took to an unrelated matter concerning Mr B.  I see no reason to do so, that matter having no relevance whatsoever to this proceeding.

Whata J