Chen v Attorney-General

[2025] NZHC 1995

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-1820

[2025] NZHC 1995

UNDER

Judicature Amendment Act 1972, High Court Rules 2016, Family Court

Rules 2002, New Zealand Bill of Rights Act 1990, Judicature Act 1908

IN THE MATTER OF

an application for judicial review of the decision of Walker J dated 28 May 2025

BETWEEN

BETTY YI-HUI CHEN

Applicant

AND

THE ATTORNEY-GENERAL

First respondent

THE COMMISSIONER OF INLAND REVENUE

Second respondent

Judicial review list:	On the papers
Date of judgment:	18 July 2025

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 18 July 2025 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Copy to:

Applicant

CHEN v THE ATTORNEY-GENERAL [2025] NZHC 1995 [18 July 2025]

[1]                  Under r 5.35A of the High Court Rules  2016, the  Registrar  has  referred  Ms Chen’s 22 June 2025 application—for judicial review of Walker J’s 28 May 2025 decision in this Court,1 declining her special leave to appeal a 24 January 2025 decision of the Family Court—to me as judicial review list judge for consideration under r 5.35B, pending which the Registrar has withheld service documents.

[2]                  Rule 5.35B entitles a Judge to (among other things) strike out a pleading and dismiss a proceeding if “satisfied that the proceeding is plainly an abuse of the process of the court”.2 An abuse of process is the “improper use of [the court’s] machinery”,3 or the use of a court process “for a purpose or in a way which is significantly different from [its] ordinary and proper use”.4 I have a duty to prevent such abuses, but nonetheless:5

The power under r 5.35B must be exercised sparingly, and only in the clearest of cases. Given that the rule contemplates a litigant being denied the fundamental right of access to the courts, with the possibility of the proceeding being halted before it is even served, the abuse must be clear beyond doubt from reading the claim.

[3]Decisions of judges of this Court are not susceptible to judicial review:6

The mechanism by which decisions of the High Court … are able to be challenged is the exercise of statutory rights of appeal, subject to leave requirements where that is necessary.

I am satisfied the proceeding thus is plainly an abuse of the process of the court.       I therefore strike out Ms Chen’s claim and dismiss the proceeding.

[4]                  Because that order is made without giving Ms Chen an opportunity to be heard, she has a right to appeal against my decision.7 As a case of an appeal to the Court of

1      Chen v Commissioner of Inland Revenue [2025] NZHC 1359.

2      High Court Rules 2016, r 5.35B(1).

3      Commissioner of Inland  Revenue  v  Chesterfields  Preschools  Ltd  [2013] NZCA 53, [2013] 2 NZLR 679 at [87], citing Simon Goulding, DB Casson and William Blake Odgers Odgers on Civil Court Actions (24th ed, Sweet & Maxwell, London, 1996) at [10.15].

4      Te Wakaminenga O Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63, [2023] NZAR 180 at [14]–[15], quoting Attorney-General v Barker  [2000] 1 FLR 759 (QB) at 764.

5 At [15].

6      Power v Court of Appeal [2023] NZCA 25 at [4], referring to Bulmer v Attorney-General (1998) 12 PRNZ 316 (CA) at 317 (referring at 318 to Re Racal Communications Ltd [1981] AC 374 (HL) at 384, 386 and 392).

7      High Court Rules, r 5.35B(3).

Appeal as of right, for which the High Court Rules specify no time, any appeal must be brought within 20 working days after the date of my decision.8

—Jagose J

8      Court of Appeal (Civil) Rules 2005, r 29(1AA) and (1).