Butcher v Auckland District Court

[2025] NZHC 2371

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-000990 [2025] NZHC 2371

UNDER  the Judicial Review Procedure Act 2016, Crimes Act 1961, Part 8, ss 150A and 241, New Zealand Bill of Rights Act 1990, s 21

BETWEEN  CARL DAVID GEORGE BUTCHER

Applicant

AND  AUCKLAND DISTRICT COURT

First Respondent

AUCKLAND DISTRICT COURT REGISTRAR
Second Respondent

Hearing:                   7 August 2025

Appearances:           Applicant in Person (by VMR)

K Laurenson and L Sinclair for the First and Second Respondents (appearances excused)

Judgment:                20 August 2025

JUDGMENT OF WALKER J

This judgment was delivered by me on 20 August 2025 at 4 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

Crown Law, Wellington

Copy to: Mr Butcher

BUTCHER v AUCKLAND DISTRICT COURT [2025] NZHC 2371 [20 August 2025]

[1]                 Mr Carl Butcher seeks judicial review of decisions of the District Court and its Registrar. The genesis of his review is a private prosecution he says he intends to bring and the filing of those documents in the Auckland District Court.

Background

[2]                 I note that the proposed private prosecution will apparently be the fifth time he has tried to commence a prosecution against the same individual. Underpinning his grievances are matters which first arose in or around 2003; those or related matters have been before various courts in different permutations since that time. The history is well set out the various associated judgments and need not be repeated here. It suffices to refer to the reasons judgment of Duffy J dated 26 September 2017.1

[3]                 This was a judicial review of a District Court decision declining to accept for filing Mr Butcher’s charging documents on the ground the evidence provided in support was insufficient to justify a trial. Duffy J considered that the District Court Judge had acted reasonably and lawfully and she was satisfied from the evidence provided that there was no basis for Mr Butcher to bring a private prosecution. Although that was enough to dispose of the judicial review, she went on to say:

[18]      Because Mr Butcher was self-represented I considered it worthwhile to go through the evidence Mr Clark had  provided, as  it  explained  how  Mr Clark and Simpson Western came to be involved and what had happened to the $29,500. In my view the evidence made it plain there was no basis for Mr Butcher to bring a private prosecution for theft against Mr Clark.

[19]The evidence from Mr Clark included:

(a)A letter from Peter King, solicitor, dated 30 September 2003 to Simpson Western for the attention of Mr Clark. Mr Butcher acknowledges that Mr King was his solicitor. The letter from Mr King confirmed that he instructed Mr Clark to  act for  Mr King’s  clients  RB  and  AJ  Burgess  and  CDG  and  LK Butcher on the purchase of two properties. Accordingly, this letter provides a complete explanation for how Mr Clark came to be acting for Mr Butcher despite Mr Butcher giving no direct instructions to Mr Clark.

(b)On 3 October 2003 Mr Clark wrote to Mr and Mrs Burgess and Mr and Mrs Butcher care of 86A Sunset Road, Glenfield, North Shore City, which was the home address of Mr and

1      Butcher v Auckland District Court [2017] NZHC 2338.

Mrs Burgess. The letter records advice he had received from Mrs Burgess to the effect that Simpson Western was authorised to accept instructions from Mrs Burgess who would act as the representative of the other three purchasers. The letter refers to two blocks of land at Trounson Park Road, Dargaville. One block was 57  hectares  (Vendor  MJ  and TT Freearson [sic] Certificate of title NA 919/239). The letter records a deposit of $29,500 for this block of land. The second block  of  land  was  79  hectares  (Vendor  SC  &  CA Pulman), with a deposit of $75,000. The letter was five pages long and extensively covered the terms of the purchase. Mr Butcher says he never saw this letter. That may be so; however, its contents inform me that Mr Clark had every reason to believe at the time that he was acting for both the Burgess and the Butcher families.

(c)On 3 November 2003 Mr Paterson, a solicitor at Simpson Western working under Mr Clark, wrote to Roper & Jones real estate agents to advise the purchase of the block of land from the Frearsons was not proceeding as the finance condition could not be satisfied. The letter asked Roper & Jones to return the deposit paid under the sale and purchase agreement. This explains why the deposit of $29,500 was paid from Roper & Jones to Simpson Western and held in that firm’s trust account. Mr Butcher says he did not know about this. That may be so. However, the actions taken by Simpson Western were consistent with them acting as the solicitors for the Burgess and Butcher families.

(d)The trust account records of Simpson Western show that on 10 November 2003 the firm received the deposit of $29,500 from Roper & Jones and on 12 November 2003, $29,500 was paid by cheque to RB and AJ Burgess. This would be consistent with Mrs Burgess acting as representative of the four purchasers.

[20]      Accordingly, the  $29,500  which  made  up  part  of  the  deposit  Mr Butcher had provided was paid to Mrs Burgess. Mr Butcher informs me that Mrs Burgess never accounted to him for those funds. That may be so. However, the part Mr Clark played in the above is not consistent with the elements of theft  by someone in a special relationship.  Mr  Clark satisfied   s 220(1) in that the necessary relationship this offence requires was present. However, when it comes to satisfying s 220(2), there must have been an intentional failure to account to Mr Butcher as required, or an intentional failure to deal with Mr Butcher’s funds otherwise than as required. There is nothing to suggest an intentional failure to act in either of those ways on the part of Mr Clark. He never appropriated the $29,500 for himself. A cheque was  issued to Mr and Mrs  Burgess, which  was  consistent  with the letter  of 3 October 2003 where Mrs Burgess was recorded as the representative of the four purchasers.

[21]      Mr Clark was aware that the purchasers were family members and that Mr Butcher was the son-in-law of Mr and Mrs Burgess. It is understandable that Mr Clark assumed the other purchasers, including Mr Butcher, were content that matters proceed as they did. Further, I note that the dealings

happened before the Lawyers and Conveyancers Act 2006, when letters of engagement were not required. Whilst in hindsight it would have been best if Mr Clark had made direct contact with all four purchasers to confirm they wanted to instruct Mr Clark and that they were happy for Mrs Burgess to be the point of reference for them all, Mr Clark’s failure to take those steps cannot be translated into conduct that meets the requirements of s 220(2).

[22]      I am satisfied that this is a situation where Mr Butcher could never prove the offence of theft under s 220 against Mr Clark.   The suspicions   Mr Butcher has harboured against Mr Clark seem to me to have arisen from Mr Butcher not having all the relevant information before him and lacking legal advice about what it actually showed. I explained matters to Mr Butcher and he appeared to me to understand why no prosecution against Mr Clark could be brought.

[4]                 On 11 June 2025, the Judicial Review List Judge issued a minute identifying the problems with Mr Butcher’s current judicial review proceedings. Among other things he recorded:2

[2]  Mr Butcher’s claim does not on its face engage with the proper subject of judicial review, which is concerned with exercises of statutory (or otherwise public) power. It identifies no exercise of power susceptible to judicial review, or how such power might be said unlawful, unreasonable or unfair for this Court’s review. On its face, the pleading risks being struck out and the proceeding dismissed as an abuse of this Court’s processes.

…

[4]        If Mr Butcher nonetheless maintains his claim, his amended claim for judicial review must clearly and concisely identify, consistently with rr 5.17 and 5.20 in particular:

(a)what specific right, obligation or interest had by him is affected by the District Court’s or Registrar’s conduct as decision-maker;

(b)by reference to some specific statutory provision— presumably s 26 of the Criminal Procedure Act 2011, which relates to the bringing of private prosecution—what particular statutory power each decision-maker is said to have exercised;

(c)which specific actions of the decision-maker are at issue as exercises of that statutory power (and, if they are actions specified in a document issued by the District Court or Registrar, what are those documents);

(d)in relation to each such action, what of it is alleged not to be exercised in accordance with law, or to be unfair or unreasonable in a judicial review sense, and how; and

2      Butcher v Auckland District Court HC Auckland CIV-2025-40-990, 11 June 2025. (Footnotes omitted.)

(e)with reference to s 16 of the  Judicial  Review  Procedure Act 2016, what relief he seeks the Court grant.

[5]       On 1 July 2025, Mr Butcher filed an amended statement of claim. Problems with the claim remained. The only discernible decision potentially amenable to judicial review is pleaded variously as:

(a)The decision-making process of both the District Court and Registrar “to block, ignore and waylay my private prosecution application.”3

(b)The decision to “refusal (sic) to exercise and not allow my right to justice to press a private prosecution.”4

(c)The decision to not allow [my] application to be processed promptly.”5

[6]       Other factual matters pleaded in the amended statement of claim appear to relate to earlier proceedings in 2010 and 2011, taken by Mr Butcher under the Companies Act 1993.

[7]       In addition to the substantive proceedings, Mr Butcher has also filed applications which he describes as “interlocutory applications” including:

(a)a request to have the matter forwarded to a New Zealand Police Asset Recovery Unit under the Criminal Proceeds (Recovery) Act 2009; and

(b)a determination that he has a caveatable interest in two land titles, 588/590 Trounson Park Road.

[8]       There are other matters raised too but it is difficult to discern the gist of these because the material filed is discursive and diffuse. In any event, for reasons which will emerge, those matters were not advanced at the hearing.6

3 Amended statement of claim dated 1 July 2025 at [2].

4      Amended statement of claim dated 1 July 2025 at [11]

5 Amended statement of claim dated 1 July 2025 at [16].

6      Memoranda of Mr Butcher dated: 26 May 2025 (styled as an interlocutory application), 7 July 2025, 23 July 2025, 31 July 2025, 4 August 2025, 12 August 2025.

[9]       A one-hour hearing was allocated “to resolve the proceeding”. The respondents abide the decision of the Court and did not appear (with leave). No contradictor was appointed.

[10]     The matter then came before me for hearing as Duty Judge. However, prior to the hearing, one of the memoranda Mr Butcher filed recorded:7

6. Therefore in summary I am withdrawing this  part  of  my Judicial  Review application seeking a Judicial Review of process by the District Court to refuse to allow my private prosecution to commence.

Rather I have read carefully the latest correspondence with the District Court, taken further legal advice and will resubmit my Private Prosecution application.

[11]     At the hearing, Mr Butcher explained that he filed the judicial review proceeding to protest the delays in the Auckland District Court in determining his ability to commence  a  private  prosecution  against  a  barrister.  After  filing,  Judge Tomlinson of the District Court issued a minute requiring further information to support the prosecution which Mr Butcher intended to commence.

[12]     Mr Butcher helpfully explained that he takes no issue with that request for information. He confirmed that he has not yet provided the further information to the District Court but intends to do so and acknowledged that the District Court has not directed that the charging documents not be accepted for filing. His revised position disposes of his substantive judicial review proceeding. If and to the extent necessary, I record that he has abandoned his judicial review claim.

[13]     However, that is not the end of the story. At the hearing, Mr Butcher sought determinations in respect of the two “interlocutory applications” identified above. He did not seek to advance argument in respect of other matters he deemed to be “interlocutory matters” within this proceeding.8

[14]     I indicated to him at the hearing that those applications are not within the scope of a judicial review claim. I now formally set out my reasons for dismissing them.

7      Memorandum dated 23 July 2025.

8      This includes seeking a determination whether a special resolution is required by the Companies Act 1993; whether the liquidator appointed to Dragon Flyte Farm Limited was lawfully appointed; and whether the ensuing actions taken by the liquidator were lawful;

[15]     The first “interlocutory” matter purports to rely on the Criminal Proceeds (Recovery) Act 2009 (the Act). Putting to one side the fact that what Mr Butcher seeks is not an interlocutory matter at all and certainly does not fall within the auspices of a judicial review, Mr Butcher misunderstands the Act, its purpose and operation.

[16]     Mr Butcher relied on an explanatory note made available online headed “Recovering the proceeds of crime — Referral to the Asset Recovery Units: A guide for environmental enforcement agencies”. It states that government agencies can make referrals to the New Zealand Police — Asset Recovery Unit. Courts are not “government agencies”. They are independent of government. The Court does not make referrals. It adjudicates applications for restraining and forfeiture orders commenced by the Commissioner of Police (the Commissioner) under the Act. Only the Commissioner may apply for restraining and forfeiture orders in respect of property derived from significant criminal activity. Significant criminal activity is defined under the Act as activity that would constitute a serious offence carrying a maximum penalty of five or more years’ imprisonment and from which benefit of at least $30,000 has been derived.9

[17]     The second “interlocutory” matter is that Mr Butcher asks the Court to determine whether he has a caveatable interest in specified land. This too is not a matter which falls within a judicial review proceeding because judicial review is about “the exercise, refusal to exercise, or proposed or purported exercise by a person of a statutory power”.10 It too must be rejected.

Result

[18]     For the reasons set out, both applications as brought, amount to an abuse of process. The other “interlocutory matters” which Mr Butcher proposes to advance within this judicial review proceeding suffer from the same misunderstanding as to the purpose and jurisdiction of a judicial review proceeding.11 Accordingly, I strike out the proceeding in its entirety.

9      Criminal Proceeds (Recovery) Act 2006, s 6.

10     Judicial Review Procedure Act 2016, s 4.

11     On 19 August 2025 various further memoranda were filed with the Court by Mr Butcher but are equally outside the scope of Judicial Review.”

[19]     As other judges have counselled, Mr Butcher is urged to seek legal advice before filing any further proceedings in this or any other court.

............................................................

Walker J