Bartlett v District Court

[2017] NZHC 2848

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-959 [2017] NZHC 2848

UNDER THE

Judicial Review Procedure Act 2016

BETWEEN

GUY BARTLETT First Plaintiff

AND

DONNA OSBORNE Second Plaintiff

THE DISTRICT COURT First Defendant

THE COMMISSIONER OF POLICE Second Defendant

Hearing:	9 November 2017
Counsel:	D Wiseman for Commissioner of Police
Judgment:	9 November 2017
Reasons:	20 November 2017

REASONS JUDGMENT OF DUFFY J

Solicitors/Counsel:

E A Gardner, Whangarei
Crown Law, Wellington

Meredith Connell, Auckland

BARTLETT & OSBORNE v DISTRICT COURT & COMMISSIONER OF POLICE [2017] NZHC 2848

[9 November 2017]

[1]      On  9  November  2017,  I  delivered  a  result  judgment  striking  out  this proceeding.  My reasons now follow.

[2]      At the time this judicial review proceeding was filed the plaintiff, Mr Bartlett’s property had been seized under the Criminal Proceeds (Recovery) Act 2009 (the Act) and he was facing trial on criminal charges.

This judicial review proceeding was brought to challenge a decision of the District Court granting an order for the examination of Mr Bartlett under the Act.  Mr Bartlett was concerned that if the examination proceeded before his trial on the criminal charges he might suffer substantive prejudice. Further, the proceedings for seizure and forfeiture had been commenced in this Court.   Mr Bartlett contended that in such circumstances it was wrong for the District Court to make the examination order.

[3]      However, by 9 November 2017 Mr Bartlett had been tried and convicted of the criminal charges.  Accordingly, the reasons for opposing the examination was gone. Further, the Court file shows that since late September 2017 Mr Bartlett’s counsel, Kenneth Bailey, had been advising the Court that Mr Bartlett was going to discontinue the judicial review proceedings.   Nonetheless, no notice of discontinuance has eventuated.

[4]      However, Mr Bailey’s communications have made it clear to the Court that since Mr Bartlett’s conviction and imprisonment it has been difficult for Mr Bailey to get instructions from Mr Bartlett.  Further, Mr Bailey has suffered from ill-health, which  must  have  contributed  to  the  difficulties  he  faced  communicating  with

Mr Bartlett.

[5]      As no formal steps were taken to discontinue, the judicial review proceeding was allocated a fixture for 13 November 2017.   Apart from attendance at a case management conference Mr Bartlett has taken none of the steps he was required to perform by timetable orders made in this proceeding.  At this conference, Donna Osborne was added as second plaintiff.  She has also taken no steps either to advance the claims made against the respondents or to comply with the timetable directions.

[6]      The second respondent faced the dilemma of a looming fixture that in his view was in no state to proceed to hearing.  The second respondent has been complaining to the case officer about the failures to comply with the timetable orders.   On 27

October 2017 the file was placed before the civil list Judge who read the communications from Mr Bailey advising the intention was to discontinue the proceeding and noted that if no notice of discontinuance was filed before 3 November

2017, the file was to be placed before the Duty Judge for the week commencing 6

November 2017.

[7]      When the matter was called in the Duty Judge List before me on 9 November

2017 no notice of discontinuance had been filed, and no steps had been taken to advance the plaintiffs’ case.  The second respondent sought to have the proceeding struck out on the ground its purpose was spent now that Mr Bartlett had been convicted and imprisoned and because of the plaintiff’s history of non-compliance with the Court’s orders.

[8]      From my reading of the file I was satisfied that the proceeding should be struck out.  First, the plaintiffs were in default of the timetable orders and the default meant the fixture could not have proceeded on 13 November 2017. I considered it important to avoid loss of valuable hearing time and therefore the fixture required vacating forthwith.   I saw little point in adjourning the fixture to another date.   There was sufficient information on the file to inform me that the plaintiffs no longer wanted to pursue the judicial review. Their defaults in compliance with the timetable directions underscored their loss of interest in pursuing the judicial review.  This was sufficient to warrant striking out the proceeding, and accordingly I did so.

[9]      Costs were awarded against the plaintiffs because they had taken no steps to bring the judicial review proceeding to an end expeditiously.  Whilst I acknowledge their counsel Mr Bailey had difficulties communicating with Mr Bartlett after his imprisonment, at the same time this meant the second respondent was obliged to take positive steps to bring the proceeding to an end.  This in turn warranted an award of costs to the second respondent. Further the general rule is that a discontinuing plaintiff pays costs up to the time of the discontinuance, and I saw no reason for departure from this rule.