Blake (aka Living Man : Roger-William: House of Blake) v Thames District Court
[2022] NZHC 3177
•30 November 2022
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2021-419-000068
[2022] NZHC 3177
UNDER the Judicial Review Procedure Act 2016 BETWEEN
ROGER WILLIAM BLAKE (AKA LIVING MAN: ROGER-WILLIAM: HOUSE OF
BLAKE)
ApplicantAND
THAMES DISTRICT COURT
First Respondent
COMMISSIONER OF POLICE & ORS
Second RespondentMEDSAFE & ORS
Third Respondents
Hearing: 16 November 2022 (Heard at Tauranga) Appearances:
Applicant in person
B McKenna and C Wrightson for the Second Respondent K Whyte for the Third Respondents
Judgment:
30 November 2022
JUDGMENT OF HARVEY J
This judgment is delivered by me on 30 November 2022 at 4 pm pursuant to r 11.5 of the High Court Rules.
Solicitors:
Crown Law, Hamilton Hamilton Legal, Hamilton
Copy to:
The Applicant
.....................................................
Registrar / Deputy Registrar
BLAKE v THAMES DISTRICT COURT [2022] NZHC 3177 [30 November 2022]
Introduction
[1] On 15 July 2020, two warrants issued by the Thames District Court were executed to search premises associated with Roger William Blake, or Roger-William, a self-represented litigant, and NZ Water Purifier Ltd. There are currently criminal charges laid against Roger William Blake in the District Court for breaches of the Medicines Act 1981. Those charges rely, in part, on evidence obtained through the two search warrants.
[2] In April 2021, Roger-William then commenced judicial review proceedings against the police, MedSafe, the Thames District Court and nine other named defendants regarding the legality of the warrants.
[3] The third respondents, MedSafe and others (MedSafe) have applied to strike out the application for judicial review contending that the claim discloses no reasonably arguable case appropriate to the nature of the pleadings, that the pleading is frivolous and vexatious and that the pleading is otherwise an abuse of Court process.
[4] To avoid confusion, and consistent with other decisions in this proceeding, I refer to the applicant as Roger-William. I also note that Roger-William refers to himself as “living man: roger william: house of blake”. He further describes himself as being the “principle [sic] Administrator, Creditor, and sole beneficiary of artificial entities Roger William Blake, NZ Water Purifier Ltd, Ngatea Water Gardens, Bratlie Place Ngatea, and 7 McMillan Street Ngatea”.
[5]The issue for decision is whether the strike out application should be granted.
Procedural history
[6] The warrants arose as a result of a MedSafe investigation into the online advertising and sale of a product called “Miracle Mineral Solution” by NZ Water Purifier Ltd contrary to the Medicines Act 1981, a company of which Roger-William was a director. In short, he is alleged to have either advertised or sold “Miracle Mineral Solutions” as medicines for several years through a website connected with
him. MedSafe submitted that Miracle Mineral Solutions is essentially chlorine dioxide, a chemical compound commonly used in bleach. MedSafe requested that the Police obtain and execute a search warrant. The Police then secured search warrants at the two premises connected with Roger-William. They found a large quantity of the products mentioned which were then seized along with his computer.
[7] As foreshadowed, Roger William Blake and NZ Water Purifier Ltd were charged with numerous offences under the Medicines Act 1981 and, at present, face prosecution in the Thames District Court. After commencing the judicial review proceedings, Roger-William then applied for an interim order staying the District Court prosecution, pending the outcome of his judicial review application.
[8] On 1 June 2022, Downs J dismissed Roger-William’s application for a stay with the consequence that the charges may be progressed in the District Court.1 In addition, the Judge struck out nine defendants who had been sued in their personal capacity, leaving the Thames District Court, Police and MedSafe as defendants.2
[9] Central to Downs J’s decision not to grant the stay application was the leading case of Gill v Attorney-General.3 In that case, the Court of Appeal concluded that “use of the rather blunt instrument of judicial review should rarely be permitted to be used to challenge the issue, validity and execution of a search warrant, particularly in the course of an investigation into alleged criminal offending”.4 Downs J summarised that “something exceptional is required before a search warrant may be challenged by way of judicial review” and that the same was true in relation to a stay sought pending challenge. After considering the grounds raised by Roger-William, as well as the strength of the claim or whether the warrants are self-evidently invalid, Downs J concluded that:
[29] To recapitulate, the law sets its face against judicial review of a search warrant absent exceptional circumstance. So too, necessarily, a stay in the interim. Roger-William’s arguments for a stay fall well short of the threshold. Nothing else appears to support one.
1 Blake v Thames District Court [2022] NZHC 1235.
2 At [33].
3 Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433.
4 At [29].
[10]Downs J then recorded:
[46] Judicial review of a search warrant is an exceptional step. I invite the parties to reflect on its desirability in this case. Everything Roger-William wishes to argue about the search warrants may be argued in the District Court as part of the routine criminal processes of that Court. If the District Court concludes the warrants are invalid it may, subject to s 30 of the Evidence Act, exclude all resulting evidence. So, Roger-William does not need to bring a judicial review claim to protect his rights in relation to the warrants.
[47] Another point should be made clear. Even if Roger-Williams succeeds in the High Court on judicial review, that would not preclude the District Court from admitting all of the evidence under s 30 of the Evidence Act. In short, the judicial review claim adds nothing obvious to this case beyond time, expense and delay.
[48] It may be open to the prosecution to apply to dismiss the judicial review claim on the basis it discloses no reasonably arguable prospect of success.
[11] By decision of 11 August 2022, Downs J dismissed Roger-William’s application for permission to appeal his judgment dismissing the stay application.5 Then on 17 November 2022, the day following the strike out hearing relating to the present application, the Court of Appeal released its decision dismissing leave to appeal Downs J’s decision refusing to grant a stay.6
[12] The Court of Appeal rejected the application for leave to appeal, finding that the application fell “well short of that high bar”.7 The Court held:
[18] The errors allegedly made by the High Court are not arguable and in any event are not of sufficient importance to warrant further delay. In particular:
(a)Submissions based on constructs like a “living man” who is somehow separate from the actual person have been squarely rejected.8
(b)It is not the position that failure to respond to a particular means the particular is to be taken as admitted. Rule 5.48 of the High Court Rules provides the statement of defence must either admit or deny the “allegations of fact” in the statement of claim. Whilst an allegation not denied is to be treated as admitted, as explained in McGechan on Procedure:9
5 Blake v Thames District Court [2022] NZHC 1974.
6 Blake v Thames District Council [2022] NZCA 557.
7 At [17].
8 See for example Larsen v Police [2020] NZHC 2520 at [24]; and Honana v Police [2020] NZHC 3244 at [3]–[4].
9 Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers, updated to 2 February 2021) at [HR5.48.08].
It is not necessary to provide answers in a statement of defence to particulars in the statement of claim. The allegations of fact referred to in r 5.48(1) and (3) are those facts necessary to show the cause of action, not particulars. Particulars are not deemed admitted if the defendant ignores them. As a practical matter, the defendant’s own pleading, including particulars, might answer the plaintiff’s particulars in substance, but that is not required as a matter of form. The defendant may assume that if a factual statement or allegation is classed as a particular, the plaintiff had tendered it not as a material fact but to inform the defendant of the details of the claim, and that it did not require an answer: …
In our view it is clear from the statement of defence filed on 24 September 2022 Roger-William’s allegations of fact were denied.
[13]Regarding the prospects of judicial review, the Court commented:
[19] More fundamentally, and as the Judge noted, judicial review is generally not the appropriate forum to challenge a search warrant. That is more properly to be dealt with in the criminal proceedings by the District Court. There Roger-William can ventilate his allegations of breaches of the Search and Surveillance Act and of his rights. Whilst this Court has recognised judicial review could be used “where the defect in the search warrant is of a fundamental nature”, it by no means clear that the warrants here were fundamentally defective.
[20] Moreover, even if Roger-William succeeds in his judicial review proceeding, the evidence might nevertheless be admitted in the criminal proceedings under s 30 of the Evidence Act 2006. It follows that the judicial review proceedings are unnecessarily causing further expense and delay. A stay of resolution of the criminal charges pending determination of those proceedings would not therefore have been in the interests of justice, and nor would a grant of leave to appeal the Judge’s decision.
The application for judicial review
[14] Roger-William’s amended statement of claim dated 22 June 2021 records that he challenges the legality of the decisions of the District Court at Thames to issue each of the search warrants, the Police to make the application for each of the search warrants, and MedSafe to make the decision to initiate and/or proceed with the
.application for the search warrants was unlawful. This is for the reasons that:
(a)the purpose of the Search and Surveillance Act 2012 has not been upheld; and
(b)an exercise of the power under section 6 of the Search and Surveillance Act 2012 requires that there must be reasonable grounds to suspect that an offence
specified in the application and punishable by imprisonment has, is or will be committed and that the search will find evidential material in respect of the offence; and
(c)by deciding to issue the search warrants the issuing officer acted in breach of the applicant’s rights under the New Zealand Bill of Rights Act 1990, the Privacy Act 2020 and the Evidence Act 2006 and at common law.
[15] Roger-William seeks declarations that MedSafe and the issuing officer breached his rights under common law and statute and that the Police acted unlawfully, an order quashing each of the search warrants and any “fruits” of their execution, an order that the evidence obtained under each of the search warrants be “deleted” and/or returned to the applicant, as well as costs and exemplary damages.
The application for strike out
[16] On 8 August 2022, following Downs J’s comments in relation to the stay application, MedSafe filed the present application to strike out proceedings on the basis that:
(a)the applicant’s claim discloses no reasonably arguable case appropriate to the nature of the pleading;
(b)the pleading is frivolous and vexatious; and
(c)the pleading is otherwise an abuse of process of the Court.
[17]Roger-William filed his notice of opposition on 19 August 2022.
[18] Mr Whyte, counsel for MedSafe, submits that the application for judicial review focuses on the issuing of the search warrant, ie challenging the evidential basis for the warrants, as opposed to its manner of execution. That remains a matter for determination at trial in the District Court prosecution. Mr Whyte submits that, in accordance with the Court of Appeal's decision in Gill, the applicant's approach of seeking judicial review as a means to exclude the evidence is inappropriate. The
appropriate approach is to challenge the admissibility of that evidence as part of the District Court prosecution.
[19] Moreover, even if the applicant were to succeed in this proceeding, the admissibility of any evidence obtained from the search would still fall to be considered by the District Court, for example under s 30 of the Evidence Act 2006, at or before trial. In the event the applicant is unsuccessful in challenging such evidence in the District Court, he will have appeal rights. These steps will occur irrespective of the outcome in the present judicial review application. On this basis, Mr Whyte submits that the pleading discloses no reasonably arguable cause of action or case appropriate to the nature of the pleading.
[20] As an alternative ground for strike out, Mr Whyte submits that the pleading is frivolous and vexatious and designed to trifle with the Court’s processes. Particularly having regard to the basis of the application against the actions taken by the applicant to date including his deliberate step in removing the defendant company subject to the District Court prosecution. This, Mr Whyte submits is evident in the prolix and, to a large extent, unintelligible nature of the pleadings. Costs are sought.
[21] Roger-William opposes the application. Central to Roger-William’s submissions is the asserted distinction between himself, the living man: Roger- William: House of Blake, and the named party in the District Court proceeding, Roger William Blake, an artificial entity. Roger-William states that as he is not a named party in the District Court proceedings, has not been lawfully served and has not sighted any charges against Roger-William, he is not in a position to challenge the validity of the search warrants in the District Court.
[22] Inter alia, contrary to MedSafe’s submissions that there is no reasonably arguable case, Roger-William states that he says that because the respondents have failed to rebut the facts entered as evidence and many of his claims, they have therefore admitted them. On that basis, he submits there has been a clear admission of guilt. He distinguishes Gill, and submits that this case falls into the category of cases where judicial review may be used to challenge a warrant. He submits that the judicial review
claim also relates to matters of unlawful execution of the warrants, and that the purpose of the judicial review is for reviewing the serious capricious actions committed against him.
[23] In response to the claim that these proceedings are vexatious, Roger-William submits instead that MedSafe’s application is premature, clearly frivolous and vexatious, unsupported by the evidence and an abuse of process. He says that judicial review should not be struck out as it would in fact give rise to a miscarriage of justice.
Legal principles
[24]Rule 15.1 of the High Court Rules 2016 provides:
15.1 Dismissing or staying all or part of proceeding
(1)The court may strike out all or part of a pleading if it—
(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b)is likely to cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of the process of the court.
(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4)This rule does not affect the court’s inherent jurisdiction.
[25] The strike-out principles are well settled. The Supreme Court in Couch v Attorney-General10 endorsed the decision of the Court of Appeal in Attorney-General v Prince & Gardner which summarised the principles as follows:11
(a)a striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true;
10 Couch v Attorney-General [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J.
11 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA), (1997) 16 FRNZ 258 at 267.
(b)the causes of action must be so clearly untenable that they cannot possibly succeed;
(c)the jurisdiction is one to be exercised sparingly, and only in a clear case where the Court is satisfied it has the requisite material; and
(d)the fact that the application to strike out raises difficult questions of law does not exclude jurisdiction.
[26] A judicial review proceeding can be struck out under r 15.1, although the application of that rule is subject to judicial control under ss 13 and 14 of the Judicial Review Procedure Act 2016 in light of the most effective procedural path.12 Here, that course had been signalled as potentially appropriate by Downs J, and MedSafe acted accordingly.13 The Court of Appeal confirmed in South Ocean Trawler Ltd v Director- General of Agriculture, that the same principles as are set out above apply to strike out of a judicial review proceeding.14
[27]As Palmer J summarised in Tamihere v Commissioner of Inland Revenue:15
[9] Although facts pleaded are ordinarily assumed to be true in a strike-out application, that does not extend to allegations which are “self-evidently speculative or false” or plainly unsupportable and without foundation. As I said in Sellman v Slater , the courts will not provide a boat for a deep-sea fishing expedition without bait. In Commissioner of Inland Revenue v Chesterfields Preschools Ltd the Court of Appeal also stated:
The grounds of strike out listed in r 15.1(1)(b)-(d) concern the misuse of the court’s processes. Rule 15.1(1)(b), which deals with pleadings that are likely to cause prejudice or delay, requires an element of impropriety and abuse of the court’s processes. Pleadings which can cause delay include those that are prolix; are scandalous and irrelevant; plead purely evidential matters; or are unintelligible. In regards to r 15.1(1)(c), a “frivolous” pleading is one which trifles with the court’s processes, while a vexatious one contains an element of impropriety. Rule 15.1(1)(d) — “otherwise an abuse of process of the court” — extends beyond the other grounds and captures all other instances of misuse of the court’s processes, such as a proceeding that has been brought with an improper motive or are an attempt to obtain
12 See for example Cooke J’s comments in Ngāti Tama ki Te Waipounamu Trust v Tasman District Council [2018] NZHC 2166 at [16]–[19]; and Palmer J’s comments in Karmarkar v Moore [2020] NZHC 3480.
13 Blake v Thames District Court [2022] NZHC 1235 at [46]–[48].
14 Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA); and Te Whakakitenga O Waikato Inc v Martin [2016] NZCA 548, [2017] NZAR 173.
15 Tamihere v Commissioner of Inland Revenue [2017] NZHC 2949.
a collateral benefit. An important qualification to the grounds of strike out listed in r 15.1(1) is that the jurisdiction to dismiss the proceeding is only used sparingly. The powers of the court must be used properly and for bona fide purposes. If the defect in the pleadings can be cured, then the court would normally order an amendment of the statement of claim.
[10] A frivolous proceeding trifles with the court’s processes, or lacks “the seriousness required of matters for the Court’s determination”. A vexatious proceeding carries an element of impropriety, often a procedural impropriety. An abuse of process captures all other instances of misuses of the court’s processes, such as proceedings brought with improper motives or intended to obtain a collateral advantage beyond that legitimately gained from a court proceeding.
Discussion
[28] Many of Roger-Blake’s submissions relied on the fact that Downs J’s judgment could not be relied on as it was under appeal at the time. The Court of Appeal’s judgment having been issued the following day, and roundly upholding Downs J’s reasoning and conclusion, that line of argument is now moot.
[29] I reiterate the Court of Appeal’s comments on the invalidity both of the arguments based on constructs like a “living man” separate from the actual person and of the argument that a failure to respond means a particular is admitted.16 It is simply not credible to say there has been an admission of guilt by the respondents as alleged. It is also not credible to say that Roger-William is not a party in the District Court prosecution based on an asserted artificial entity/living man distinction. Legally, he is one and the same.
[30] That being the case, as was observed by both Downs J and the Court of Appeal, these judicial review proceedings are unnecessarily causing further expense and delay to the parties. The issues Roger-Williams raises in this judicial review are appropriately raised in the course of the District Court prosecution. It is difficult to see, once the living-man construct is put to one side, what Roger-William could gain from the judicial review proceeding that he could not achieve in the District Court proceedings.
16 Blake v Thames District Council [2022] NZCA 557 at [18].
[31]The law in Gill is clear:17
Judicial review will rarely be appropriate where there is a readily available alternative remedy, and in particular the Courts have held that they will only intervene in matters which involve the exercise of a prosecutorial discretion or investigative power and exceptional cases.
[32] Despite Roger-Williams’ submissions, this is not an exceptional case. He will have ample opportunity to challenge the validity both of the search warrants and of their execution either before or during the trial. The District Court can rule on issues of admissibility, exclusion and relevance of evidence, for example. He can also raise the alleged breaches of the Search and Surveillance Act. In short, there is another readily available and appropriate forum.
[33] As Mr Whyte submits, and as the Court of Appeal noted, even if this judicial review were to hypothetically proceed and be successful, the admissibility of the evidence would still have to be ruled on in the District Court. In this way, the present judicial review proceedings will add little, other than unnecessary time and money, for the applicant, the respondents and the courts.
[34] Accordingly, I am satisfied that there is no reasonably arguable cause of action or chance of success for Roger-William. The proceedings are struck out accordingly.
Costs
[35] MedSafe seeks costs. Roger-William opposes costs on the basis that he has neither consented nor contracted with the respondents and “declines the respondents’ offer to engage in commerce”. Even so, as the successful party MedSafe is entitled to costs on a 2B basis. If parties are unable to agree costs, memoranda of no more than three pages may be filed within one month following the date of this judgment.
Harvey J
17 Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433 at [19].
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