Burchell v North Shore District Court

[2015] NZHC 1583

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-2773 [2015] NZHC 1583

BETWEEN

LLEWELLYN WILLIAM BURCHELL

Plaintiff

AND

NORTH SHORE DISTRICT COURT First Defendant

AND

JUDGE PHILIPPA SINCLAIR Second Defendant

AND

NEW ZEALAND POLICE Third Defendant

On the papers
Appearances:	No submissions filed by the Plaintiff (self-represented) HH Ifwersen and Mr Hardy for Defendants
Judgment:	8 July 2015

COSTS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 8 July 2015 at 12 midday

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

BURCHELL v NORTH SHORE DISTRICT COURT [2015] NZHC 1583 [8 July 2015]

Costs application by defendants

[1]      The defendants have applied for indemnity costs following leave reserved in a judgment dated 18 December 2014 striking out the unresolved claims brought by the plaintiff in this proceeding1 (“the strike-out judgment”).  Alternatively, they seek increased or scale costs.

[2]      I draw on the strike-out judgment for a brief summary of the background and

the reasons for striking out the plaintiff’s claims.

Background

[3]      The defendants applied to strike out an amended statement of claim filed on

21 August 2014 in which Mr Burchell purported to bring a proceeding against the three defendants alleging malfeasance in public office, misfeasance in public office and conspiracy.  The plaintiff’s claims were based on an allegation that Mr Burchell was assaulted by Police officers while in the dock during a sentencing hearing in the North Shore District Court, before Judge Philippa Sinclair, on 8 March 2013.

[4]      The proceeding initially included an application for judicial review of Judge Sinclair’s decision to convict Mr Burchell of an assault which was the charge upon which he was being sentenced.   That application was dealt with by Faire J, in a judgment given on 2 September 2014,2  the result of which was that the conviction and sentence were set aside.

[5]      The strike-out application was confined accordingly to the remaining causes of action in the pleading.  Mr Burchell sought, variously, damages against the first and third defendants and orders which included imaginative relief, hitherto unknown to the courts, including:

(a)       directions that certain Police officers be charged with assault;

1      Burchell v North Shore District Court [2014] NZHC 3313.

2      Burchell v North Shore District Court [2014] NZHC 2099.

(b)the conviction of the District Court Judge as a party to assault with intent to injure;

(c)       an  order  that  the  Police  were  to  refrain  from  interference  with

Mr Burchell’s life, the breach of which would result in the payment of

$1 million in damages to him; and

(d)an order directing the District Court to deduct money from staff wages to teach the staff a lesson.

[6]      The factual background alleged in the statement of claim asserted a variety of wrongs purportedly suffered by Mr Burchell and members of his family since May

2005 at the hands of a disparate list of people, including Police officers, Court staff and a television reporter.

[7]      The essential facts alleged by Mr Burchell are set out at [6] and [7] of the strike-out judgment.  It is unnecessary to repeat them.

Conduct of the hearing of this application

[8]      Mr Burchell did not appear at the hearing of the strike-out application on

4 December 2014.  He had been given notice of it but applied unsuccessfully, twice, for an adjournment.  When the matter was called, an unsuccessful attempt was made by the Registrar to contact Mr Burchell by telephone.   Mr Burchell had appeared before the Court on another matter earlier that morning, so I inferred he was deliberately  avoiding  attendance  on  the  strike-out  application.    I  was  able  to consider, however, lengthy written submissions opposing the application filed by Mr Burchell  on  13 October 2014  in  response  to  the  submissions  filed  by  the defendants in support of their application.

[9]      Because the Court’s views of Mr Burchell’s allegations are relied upon in support of the application for indemnity costs, I summarise them briefly.

First cause of action – malfeasance in public office

[10]     I held that there was no proper basis on which the Court could accept that there  was  any  foundation  for  the  allegations  that  Police  officers  assaulted Mr Burchell while he was appearing for sentence and that the Judge, knowing of the assault, failed to intervene.  The claim was regarded, therefore, as mischievous and vexatious and it was held that it should be struck out on that ground alone.

[11]     I held that Mr Burchell knew that the claims against Judge Sinclair based on acts or omissions in the course of her judicial duty were barred by the principle of judicial immunity.   The relevant principles were cited by Cooper J in a judgment given on 20 March 2014 in which a claim by Mr Burchell against an Associate Judge

of this Court was struck out.3

[12]     The relief sought against the Police was held to be not available, except as to the claim for damages but that failed because it was based on groundless allegations of assault.

[13]     For those reasons, the first cause of action was struck out.

Second cause of action – misfeasance in public office

[14]     The second cause of action alleged misfeasance in public office in respect of an alleged failure by the officers of the District Court to process Mr Burchell’s appeal against conviction and sentence, filed after the entry of the conviction but before he had been sentenced.  It was also alleged that court staff had falsified court records in respect of the appointment of counsel to assist the Court in the prosecution for the purpose of ensuring that disclosure had been made to Mr Burchell.  Those claims are based on an apparent misunderstanding by Mr Burchell as to the court’s processes and upon allegations of fact which are untenable.

[15]     I struck out the second cause of action.

3      Burchell v Auckland High Court [2014] NZHC 517.

Third cause of action – conspiracy

[16]     The alleged conspiracies were between the Judge and the Police over the alleged assault during the sentencing hearing and between the Judge, court staff and the solicitor appointed as counsel to assist the Court, Mr Maroney.  The claim was an abuse of the Court’s process, for the reasons given in respect of the first two causes of action; namely, that it had no foundation and was based on misstatements of fact, fabricated assertions of fact and a misunderstanding of the District Court’s processes. I struck out the third cause of action.

Indemnity costs

[17]     In the exercise of its costs discretion under r 14.1 of the High Court Rules, the Court may order that the costs payable are the actual costs and disbursements reasonably incurred by a party.4

[18]     The grounds for an award of indemnity costs under the rule include that the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing or continuing a proceeding,5 or that some other reason exists which justifies the court making an order for indemnity costs.6

[19]     I adopt the principles set out in the judgment of the Court of Appeal in Bradbury v Westpac Banking Corporation.7  I respectfully adopt and apply also the approach taken in this Court in Harrison v Auckland District Health Board.8

[20]     The defendants have claimed actual legal costs and disbursements (inclusive of GST) as follows:

(a)       for the first and second defendants, $14,757.82 in legal costs and $500 for the filing fee for the strike out application; and

4      High Court Rules, r 14.6.

5      Rule 14.6(4)(a).

6      Rule 14.6(4)(f).

7      Bradbury v Westpac Banking Corporation [2009] NZCA 234, [2009] 3 NZLR 400 (CA) at [27]

and [29].

8      Harrison v Auckland District Health Board [2013] NZHC 1770 at [31]-[39].

(b)      for the third defendant, $14,757.82 in legal costs.

[21]     In addition to the nature of the claims discussed above and the reasons for their being struck out, I have regard to the unnecessary additional cost to the defendants of the manner in which Mr Burchell conducted the proceedings which required, for example, the Court to issue seven Minutes related to the strike out application.

Order

[22]     I order, therefore, that the plaintiff shall pay to the first and second defendants costs in the sum of $14,757.82 and disbursements of $500, and to the third defendant the sum of $14,757.82 in costs.

Application for a rehearing of the strike out application and a stay of execution

[23]     On  26 March 2015,  Mr  Burchell  filed  an  interlocutory  application  for  a rehearing of the strike-out application and a stay of execution.  The application to recall the judgment is based on assertions by Mr Burchell in response to paragraph [11] of the strike-out judgment which reads as follows:

[11]      Mr Burchell did not appear at the hearing of this application on

4 December 2014.      He   had   been   given   notice   of   it   but   applied unsuccessfully, twice, for an adjournment.  When the matter was called, an unsuccessful attempt was made by the Registrar to contact Mr Burchell by telephone.   Mr Burchell had appeared before the Court on another matter earlier that morning, so I inferred he was deliberately avoiding attendance on this matter.   I have been able to consider, however, lengthy written submissions    opposing    the    application    filed    by    Mr    Burchell    on

13 October 2014 in response to the submissions filed by the defendants in support of their application.

[24]     Mr Burchell asserts in his unsworn memorandum in support of the recall application that:

(a)       he did not appear at the hearing of the strike-out application because he was in another courtroom for another hearing;

(b)he  had  not  been  given  notice  of  the  hearing  of  the  strike  out application as he would have complained to the Court staff that he could not deal with two different proceedings on the same day;

(c)      as he was involved with the other hearing, his phone would have been switched off and he would not have been able to answer the call; and

(d)if he had known about the hearing, he would definitely have made an appearance because he was at the Auckland High Court that day.

[25]     I do not accept these assertions.  Both fixtures were listed on the Court fixture list for 4 December 2014 which publicly on display in the Court building,  The other hearing in which Mr Burchell was engaged in the Auckland High Court on that day was listed to commence, and did commence, at 10:00 am and was completed in less than half an hour.   Furthermore, the file for this proceeding indicates clearly that Mr Burchell was not only aware of the fixture at 11:45 on 4 December 2014 for the hearing of the strike-out application, but that he had unsuccessfully made two applications for an adjournment of that fixture.

[26]     Under  r 7.49  of  the  High  Court  Rules,  a Judge  may vary or  rescind  an interlocutory order or decision if satisfied that the order or decision is wrong.  The decision in the strike out judgment was based on an application of proper principles and was not wrong.  Rule 11.9 of the High Court Rules provides that a Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.  Applying what is generally accepted as the leading expression of  the  principles  to  be  applied  under  this  rule  in  Horowhenua  County  v  Nash

(No. 2),9  I am satisfied that there is no basis upon which the judgment should be

recalled.

Application for recall dismissed – costs order

[27]     The application for a recall and stay of execution is dismissed.

9      Horowhenua County v Nash (No. 2) [1968] NZLR 632.

[28]     The defendants have incurred costs in filing a notice of opposition to the application.   The application  having failed,  the  defendants  shall  have costs  and disbursements on that application calculated on a Category 2B basis.

Conditional order that further documents not be received for filing

[29]     In the exercise of the Court’s inherent jurisdiction to prevent abuses of its process, I direct the Registrar not to receive for filing any documents proffered by Mr Burchell in this proceeding or in any other proceeding related to the matters which were the subject of the claims filed by Mr Burchell in this proceeding:

(a)       until the costs ordered to be paid at [22] and [28] above are paid in full (proof of which shall be lie on Mr Burchell); and

(b)      in any event, without the leave of a Judge of this Court.

……………………………

Toogood J