Clements v Park Trust Limited

[2018] NZHC 2399

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002512

[2018] NZHC 2399

BETWEEN

MIRIAM CLEMENTS

Appellant

AND

PARK TRUST LIMITED

Respondent

On the papers
Judgment:	12 September 2018

JUDGMENT OF HINTON J

This judgment was delivered by me on 12 September 2018 at 1.00 pm pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors:

Glaister Ennor, Auckland

Party:
M Clements

MIRIAM CLEMENTS v PARK TRUST LIMITED [2018] NZHC 2399 [12 September 2018]

[1]This judgment relates to the dismissal of an appeal.

Background

[2]        Ms Clements filed three appeals in this Court against decisions of the  District Court at Auckland, all arising out of the same issue. Two of those appeals were dismissed in a decision of Venning J dated 14 February 2018.1

[3]        That left  only  this  appeal,  against  a  decision  of  Judge  Harrison  dated  13 October 2017, to be determined. In the District Court, Judge Harrison confirmed a decision of the Tenancy Tribunal, that a 90-day notice issued by Park Trust Limited under the Residential Tenancies Act 1986 to terminate Ms Clements’ tenancy was valid, and that Park Trust Limited was entitled to possession.

[4]        In respect of this remaining appeal, Venning J noted that Ms Clements is currently an undischarged bankrupt and therefore has no ability to pursue the appeal in her own right. Venning J adjourned the appeal to a case management conference on 27 February 2018, to enable Ms Clements to pursue a possible discharge from bankruptcy with the Official Assignee, noting that the bankruptcy dated back to     26 February 2013.

[5]        On 27 February 2018, I allowed  a  stay  of  this  appeal  on  the  basis that Ms Clements had apparently applied to annul her bankruptcy. I adjourned the case management conference to Tuesday, 24 April 2018 and directed that Ms Clements file a memorandum reporting on her application for annulment three working days prior to the conference.

[6]        Ms Clements then sought to adjourn the 24 April 2018 case management conference, without indicating a clear period of adjournment. The respondent abided the decision of the Court and by further Minute dated 23 April 2018, I adjourned the case management conference (again) to Tuesday, 22 May 2018.

1      Clements v Parktrust Ltd [2018] NZHC 133.

[7]        On 22 May 2018, Palmer J issued a Minute recording that Ms Clements had requested that the conference be further adjourned so that she could clarify her ability to bring the appeal as an undischarged bankrupt, her efforts to negotiate an annulment presumably having been unsuccessful. Ms Clements had apparently issued a proceeding against the Official Assignee alleging misconduct and inter alia seeking annulment of her bankruptcy. Mr Singh, for the respondent, had proposed an adjournment of three months to allow the proceeding against the Official Assignee to run its course. Palmer J accordingly adjourned the matter to the Appeals List on Tuesday, 11 September 2018 and directed that the parties file memoranda by 7 September 2018 updating the Court on the progress of the proceeding. Palmer J also directed the respondent to serve his Minute on the Official Assignee so that they had an opportunity to file a memorandum also, if they wished to do so.

[8]        Subsequent to the Minute of Palmer J, the following documents have been filed by Ms Clements that are relevant to this remaining appeal:

(a)On 22 August 2018, Ms Clements filed (in this proceeding) an “Application for Declaratory Judgment without further in person conferences, otherwise request to cancel the above proceedings” where “the above proceedings” included this appeal. The other two proceedings recorded in the intituling appear to be the two appeals dismissed by Venning J on 14 February 2018, although one of the CIV numbers has been recorded as CIV-404-196-1402, rather than CIV-2018-404-000196. The “Application” relies on a “Memorandum for Declaratory Judgment” which was filed on 16 August 2018. The memorandum is intituled under the current appeal CIV number and also refers to the citation of the judgment of Venning J dated 14 February 2018. The memorandum alleges that Ms Clements was deliberately and unlawfully rendered homeless at the hands of various parties, with the help of various Courts. Amongst the parties who are alleged to be primarily responsible are the Labour Party, the National Party, the DHB and the Police. She also refers in the memorandum to having been falsely imprisoned, harassed and the subject of political persecution.

(b)On 23 August 2018, being the day after the application for declaratory judgment was emailed to the Court, Ms Clements filed a “Notice to cancel all proceedings”. In that Notice she says, “1. Please cancel all proceedings. 2. I do not believe in the New Zealand Justice system.

3. Thank you.” Accompanying that Notice was an email saying: “Please cancel my personal appeal. I don't even want a declaratory order. I want nothing.”

[9]        Before the filing of Ms Clements’ application on 22 August 2018, the respondent filed its own memorandum dated 20 August 2018, whereby Mr Singh submitted that the proceeding has had a long history, involving allegations that go well beyond the judgment on appeal. He said that, when the matter was called before Palmer J, he asked that it be struck out, which Palmer J declined to do, instead adjourning the matter to the Appeals List on 11 September 2018. Mr Singh said it appeared from paragraph 11 of the appellant’s memorandum, dated 16 August 2018, that she no longer intended to pursue the appeal, or was in effect discontinuing it. In the alternative, he submits that the proceeding is being used in a manner that constitutes an abuse of process, thereby justifying a strike-out under r 15.1 of the High Court Rules 2016.2 He seeks costs in favour of the respondent on a 2B basis. Mr Singh points out that no formal application is required for a strike-out, relying on Siemer v Stiassny.3

Decision

[10]      I agree with Mr Singh that the documents filed by the appellant can be treated as “a statement to the effect that the appellant abandons the  appeal” in terms of        r 20.12(2). This is made clear by the “Notice to cancel all proceedings” and accompanying email filed on 23 August 2018, filed after the respondent’s 20 August 2018 memorandum. The consequence of such a statement is that the appeal is taken to have been dismissed, subject to the respondent’s right to apply for an order as to costs.

2      All references in the body of this judgment to a specific rule, are references to the High Court Rules 2016.

3      Siemer v Stiassny [2011] NZCA 1 at [14].

[11]      I also have the power under r 20.12(1) to dismiss an appeal if satisfied that the appellant has failed to proceed with it (or has failed to comply with a direction under r 7.5), but that arguably does not apply here.

[12]      The respondent also referred to r 15.1 which relates to the Court’s power to dismiss or stay all or part of a proceeding. It was previously thought that the rules dealing with appeals constituted a code and that the other provisions of the Rules did not apply. As stated in McGechan on Procedure, as a general proposition that cannot be correct because there are many rules which are regularly applied to appeals.4 The position is different where Part 20 makes its own provisions, which then must be seen as overriding the general rules.5  However, r 20.12 does not override r 15.1.  Rather,  r 20.12 deals with the specific situations where the respondent has failed to proceed with an appeal; failed to comply with a direction under r 7.5, and/or filed a notice of abandonment. I agree that the Court has the power to dismiss an appeal under r 15.1 on the grounds that it discloses no reasonably arguable case appropriate to the nature of the pleading; or is likely to cause prejudice or delay; or is frivolous or vexatious; or is otherwise an abuse of the process of the Court.

[13]      I note, in his decision dated 14 February 2018, that Venning J dismissed one of Ms Clements’ three appeals on the grounds of its being an abuse of process, (without reference to authority).6 That decision is consistent with the view I have just expressed.

[14]      Therefore, had I not considered the appellant has abandoned the appeal, I would have alternatively made an order dismissing the appeal under r 15.1 as an abuse of process, for multiple reasons. First, as an undischarged bankrupt, Ms Clements has no standing and after six months has made no progress in her application for annulment in order to address this problem. If anything, considering the proceeding Ms Clements has brought against the Official Assignee alleging misconduct, the issue seems to be compounding. Second, her objections raised on the appeal are targeted at numerous parties, largely excluding the respondent; and moreover, the appeal has no

4      Andrew Beck and others McGechan on Procedure (online loose-leaf ed, Brookers, updated to    1 August 2018) at [HR20.1.03].

5      Air New Zealand Ltd v Commerce Commission (2005) 17 PRNZ 786.

6      Clements v Parktrust Ltd [2018] NZHC 133 at [15].

apparent substance or cogency. For all of these reasons, the appeal constitutes an abuse of process.

Conclusion

[15]This appeal is hereby dismissed.

[16]The respondent is entitled to costs on a 2B basis.

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Hinton J