Burchell v Auckland High Court - [2014] NZHC 517

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-74 [2014] NZHC 517

BETWEEN LLEWELLYN BURCHELL Plaintiff

ANDAUCKLAND HIGH COURT First Defendant

ANDASSOCIATE JUDGE BELL Second Defendant

Hearing: 20 March 2014

Appearances: Plaintiff in person
Z Hamill for defendants

Judgment: 20 March 2014

ORAL JUDGMENT OF COOPER J

Solicitors:
L Burchell, Auckland
Crown Law, Wellington

BURCHELL v AUCKLAND HIGH COURT [2014] NZHC 517 [20 March 2014]

[1] A proceeding commenced by Mr Burchell and having a backing sheet, “Judicial Review Statement of Claim”, was filed on 13 January 2014. Probably because of the reference on the backing sheet to the matter being a judicial review, the matter has been placed in the Judicial Review List, and it is among the matters I have had to deal with today.

[2] In the statement of claim however, the causes of action are not those which would be advanced in an application for review. Three causes of action are asserted, namely negligence, intentional infliction of emotional distress, and conspiracy.

[3] The defendants are the Auckland High Court and Associate Judge Bell. The person said to have acted negligently and so as to intentionally inflict emotional distress and to have engaged in a conspiracy is Associate Judge Bell.

[4] The proceeding has come to the attention of the Crown, and Ms Hamill has filed a memorandum dated 19 March 2014 in which it is said that the proceeding has not been properly served. The stance taken is that once the proceeding is properly served, the Crown will make an application to strike out the claim.

[5] Having considered the matter, I do not think it is necessary to wait for the Crown to take that step. This Court has power to invoke the strike out rule in the High Court Rules of its own motion, as was confirmed in Siemer v Stiassny.1

[6] Following a case management conference in the case of Burchell v Aislabie,2

Associate Judge Bell issued a minute in which he expressed a concern that the proceedings initiated by Mr Burchell were being pursued vexatiously. He decided that the proceedings should be stayed and made an order accordingly. The order provided that no further documents were to be filed by Mr Burchell without him having obtained legal advice from a lawyer with at least five years’ standing, who could certify Mr Burchell’s claims to be arguable and in compliance with the High
Court Rules. Whether that order was appropriate is not currently a matter before me.

1 Siemer v Stiassny [2011] NZCA 1 at [14].
2 Burchell v Aislabie HC Auckland CIV-2010-404-2873, 8 July 2010.

[7] The principles to be applied on a strike out are well settled. Pleaded facts are assumed to be true. The cause of action must be clearly untenable and the Court must be certain that it cannot succeed. The jurisdiction is to be exercised sparingly and only in clear cases, reflecting the Court’s reluctance to terminate a claim without it coming to trial. Further,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 517
Decision Date: 20 March 2014

CaseChat Overview and Summary

In Burchell v Auckland High Court, the plaintiff, Llewellyn Burchell, brought claims against the Auckland High Court and Associate Judge Bell for negligence, intentional infliction of emotional distress, and conspiracy. The claims stemmed from a decision made by Associate Judge Bell to stay Burchell's proceedings against another party, Mr. Aislabie. The Crown argued that the proceeding was not properly served and would seek to have it struck out once it was properly served. The court found that it had the power to invoke the strike-out rule on its own motion, as confirmed in Siemer v Stiassny.

The court considered whether the claims could succeed, assuming the pleaded facts to be true. The court found that the claims were clearly untenable and could not succeed due to the rule of judicial immunity from suit. Judicial immunity protects judges from civil liability for actions taken in their judicial capacity, even in cases of alleged malice, bad faith, gross negligence, or recklessness. The court concluded that Associate Judge Bell's actions were taken in his judicial capacity and therefore, Burchell's claims could not succeed.

In the result, the court struck out Burchell's claim in its entirety. The court noted that the allegations made against Associate Judge Bell were scandalous and offensive, but even assuming the facts to be true, the claims could not succeed due to judicial immunity. The court found that there was nothing to suggest that Associate Judge Bell was not acting in his judicial capacity when he issued the minute and accompanying stay. The court also noted that Burchell was present during the judgment and had informed the court that he did not have an address at which he could be served. As a result, Burchell was required to make contact with the Registrar to obtain a copy of the judgment.

Orders