BETWEEN CHRISTOPHER JOSEPH O’NEILL Applicant AND REX MAIDMENT First Respondent AND JAN PILKINGTON Second Respondent

[2023] NZHC 3868

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000889

[2023] NZHC 3868

BETWEEN

CHRISTOPHER JOSEPH O’NEILL

Applicant

AND

REX MAIDMENT

First Respondent

AND

JAN PILKINGTON

Second Respondent

Hearing:

(On the papers)

Counsel:

Applicant in Person

First and Second Respondents in Person

Judgment:

21 December 2023

JUDGMENT OF MOORE J

This judgment was delivered by me on 4:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

O’NEILL v MAIDMENT & ANOR [2023] NZHC 3868 [21 December 2023]

[1]    Christopher O’Neill has filed an application for judicial review of “various decisions and actions of the respondents”, Rex Maidment and Jan Pilkington, in relation to a 16 May 2022 decision of Mr Maidment as the Legal Complaints Review Officer (“LCRO”).1

[2]    Mr O’Neill’s application was referred to me for consideration by the Registrar under r 5.35A of the High Court Rules 2016 (“the Rules”), which relevantly provides:

5.35A Registrar may refer plainly abusive proceeding to Judge before service

(1)This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.

(2)The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.

(3)However, the Registrar may,—

(a)as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b)until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.

[3]    The question for determination is whether the proceeding is plainly an abuse of process of the Court. Having reviewed the application, I am satisfied that it is. My reasons follow.

[4]    The grounds on which the application is brought are wide ranging. They include broad allegations that the decisions and actions of the respondents are “invalid

… deny justice” and are “contrary to the laws of New Zealand”, together with sweeping statements such as that “citizen’s rights cannot be ignored or denied” and “none exist who are above the law”.

[5]    While the application refers to “various decisions and actions of the respondents”, the only decision expressly referred to is that of 16 May 2022

1      O’Neill v McCusker [2022] NZLCRO 045.

(“the LCRO decision”). In that decision, the LCRO declined Mr O’Neill’s application for review of a 23 December 2021 decision of the Central Standards Committee 2 to take no further action in respect of his complaint concerning the conduct of three legal practitioners. That application failed on two grounds: it was filed out of time,2 and the LCRO had no jurisdiction to consider Mr O’Neill’s attempts to review the conduct of the New Zealand Law Society.3 The LCRO went on to note, however, that it would have dismissed the application in any event on the basis that it disclosed no reasonable cause of action.4

[6]    In his present application for judicial review, Mr O’Neill claims that the LCRO’s calculations with regard to the deadline for filing are incorrect and the dates claimed are not supported by “the evidence”. Mr O’Neill claims he filed the application on 1 January 2022, well in advance of the 15 February 2022 deadline. On 16 March 2022, he sent an email in which he complained that he had not received an acknowledgment of receipt.  The second respondent, Ms Pilkington, responded on  23 March 2022 informing him that no such application had been filed or received, and that in any event the application would now be out of time.

[7]    What had transpired, as is explained in the LCRO decision, is that Mr O’Neill had used an out-of-date application form and posted the application to an address occupied by the LCRO several years ago. It was eventually received by the LCRO on 6 April 2022. In its decision, the LCRO acknowledged that there may have been some delay in the post office redirecting the application, but said, justifiably in my view, that this was not an issue for the LCRO. Moreover, it had no jurisdiction to extend the time for filing. I find no reviewable error in respect of either of the defendants in this regard. Both acted entirely appropriately in the circumstances, and did nothing more than apply the relevant law.

[8] Mr O’Neill further claims that he was denied an opportunity to be heard by the LCRO conducting a “secret” hearing. The hearing was conducted in private pursuant to s 206(1) of the Lawyers and Conveyancers Act 2006. If the LCRO considers the

2      In that it was not lodged within 30 working days after the date on which the Committee’s determination was served, given to or otherwise brought to Mr O’Neill’s attention.

3      O’Neill v McCusker, above n 1, at [59]–[61].

4 At [62].

review can be adequately determined on the papers, it may do so without the consent of the parties.5 In this case, it would appear that Mr O’Neill was in fact given a hearing date and the opportunity to attend, but was under the misapprehension that this was to be a preliminary hearing regarding the late filing of the application, rather than the substantive hearing which he intended to attend. In any event, however, there is no scope for review on this ground due to the operation of s 206(3A)(c), which relevantly provides:

(3A)The Legal Complaints Review Officer’s powers to determine a review are not affected by the failure of any party to—

…

(c)attend, or participate in, a hearing called by the Legal Complaints Review Officer …

[9]    Finally, Mr O’Neill claims that both respondents “interfered” with his application despite the existence of conflicts of interest. From what I can discern, this argument is grounded in the fact that Mr O’Neill has a separate application for review currently before the Court in which Mr Maidment and Ms Pilkington are both respondents. Mr O’Neill had in fact requested that Mr Maidment recuse himself from considering his application for review of the Central Standards Committee 2 decision, which was dealt with in some length in the LCRO decision. In short, the LCRO found that there was no reasonable foundation for argument that a fair-minded observer would consider him incapable of bringing an impartial mind to a consideration of the application.6 He noted that a decision maker is not required to recuse themselves simply because they have, on an earlier occasion, delivered a decision that a party has disagreed with.7

[10]   I find no  error  in  the  LCRO’s  decision  not  to  recuse  himself.  As  for  Ms Pilkington, no issue can be taken with her provision of administrative services for the office of the LCRO in this matter.

5 Lawyers and Conveyancers Act 2006, s 206(2).

6 At [8].

7 At [9].

[11]   It follows that I can discern no reviewable error in any aspect of the respondents’ actions or decisions. I am therefore satisfied that the proceeding is plainly an abuse of process.

[12]   Having reached this conclusion, I am entitled under r 5.35B(2) to make an order or give directions to ensure the proceeding is disposed of. This includes an order that the proceeding be struck out under r 15.1, which I am satisfied is the proper course in this instance.

[13]   As such an order has  been  made  on  my  own  initiative  without  giving  Mr O’Neill an opportunity to be heard, I am required by virtue of r 5.35B(3) to inform Mr O’Neill that he has a right of appeal against the decision.

Result

[14]   Mr O’Neill’s application for judicial review (CIV-2022-404-889) is struck out pursuant to r 15.1 of the High Court Rules 2016.

[15]Mr O’Neill has a right of appeal against this decision.

Moore J

Solicitors: