Coulson v Family Court at Waihi
[2024] NZHC 2929
•9 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-2374 CIV-2024-404-2375 CIV-2024-404-2376 CIV-2024-404-2377 CIV-2024-404-2378 CIV-2024-404-2379 CIV-2024-404-2380
CIV-2024-404-2424 [2024] NZHC 2929
BETWEEN STEWART ROBERT COULSON
Applicant
AND
THE FAMILY COURT AT WAIHI AND OTHERS
Respondents
Hearing: On the papers Date of judgment:
9 October 2024
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 9 October 2024 at 3.30pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Copy to:
Applicant
COULSON v THE FAMILY COURT AT WAIHI & ORS [2024] NZHC 2929 [9 October 2024]
[1] Under r 5.35A(3)(a) of the High Court Rules 2016, the Registrar referred these eight proceedings to me as judicial review list Judge, for consideration if “plainly an abuse of the process of the court”.1
Approach to registry referrals
[2] An ‘abuse of the process of the court’ is “improper use of [the court’s] machinery”;2 use of that process “for a purpose or in a way which is significantly different from its ordinary and proper use”.3
[3] If so satisfied, under r 5.35B(2), I may order or direct to ensure each proceeding:
… is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that—
(a) the proceeding be struck out:
(b) the proceeding be stayed until further order:
(c) documents for service be kept by the court and not be served until the stay is lifted:
(d) no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).
[4]Nonetheless:4
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.
But I have a duty to prevent such abuses.5
1 High Court Rules 2016, r 5.35B(1).
2 Simon Goulding, DB Casson and William Blake Odgers Odgers on Civil Court Actions (24th ed, Sweet & Maxwell, London 1996) at [10.15] as cited in Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [87].
3 Te Wakaminenga o Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63 at [13], citing Attorney-General v Barker [2000] 1 FLR 759 (QB) at 764.
4 Te Wakaminenga o Nga Hapu Ki Waitangi v Waitangi National Trust Board, above n 3, at [15].
5 At [14].
Discussion
[5]The proceedings before me:
(a)each appear to find their origin in a 29 November 2023 decision of Judge G S Collin in the Family Court at Waihi, making protection and interim parenting orders under respectively s 79 of the Family Violence Act 2018 and s 47 of the Care of Children Act 2004 in proceedings to which Mr Coulson was party;6
(b)are Mr Coulson’s claims for judicial review of that decision,7 and then of decisions made by a range of individuals within the justice system (another Family Court judge,8 two District Court Registrars9 and various police officers enforcing the protection order10), each subsequent decision on the basis it relied on Judge Collin’s impugned decisions;
(c)each also is brought against the individual holding the offices of Secretary for Justice and Chief Executive of the Ministry of Justice, Mr Coulson contending all the impugned decisions are part of the Crown’s orchestrated campaign against him, and seeking therefore each proceeding be commenced in the Auckland (or Wellington, but not Tauranga or Hamilton) registry of this Court; and
(d)pending determination of Mr Coulson’s proceedings, each claim interim orders to prohibit the respondents from taking any further action in the District Court’s family or criminal jurisdictions.
[6] Mr Coulson’s derivative claims for judicial review against individuals other than Judge Collin plainly are abusive, because they would be brought contrary to the principle of finality in litigation, by which judicial decisions stand as conclusive unless
6 FAM-2023-070-0687; FAM-2023-070-0688.
7 CIV-2024-404-2378.
8 CIV-2024-404-2380.
9 CIV-2024-404-2379; CIV-2024-404-2424.
10 CIV-2024-404-2374–2377.
and until overturned on such challenge as may be available to affected parties.11 Mr Coulson’s claims against these respondents may not be made anticipatorily of his success on overturning Judge Collin’s decision. The sought interim orders cannot issue on those derivative claims, because those orders are not in themselves “necessary … to preserve the position of the applicant”;12 rather, unless and until overturned, Mr Coulson’s position in respect of the respondents is as specified by Judge Collin. These respondents should not be put to the inconvenience, time, cost and worry of defending their endorsement of that decision. I will strike out these derivative claims.
[7] Mr Coulson’s claim against Judge Collin also is improper because, where the subject matter of a claim for judicial review is an act or omission of a presiding officer of any court or tribunal, “that court or tribunal, and not the presiding officer, must be named as the respondent to the application”.13 As curable by amendment or direction,14 such is not of itself an abuse. What may be is if the application for judicial review is “not the proper vehicle to challenge the Family Court’s decisions”.15 But, even if Mr Coulson has appeal rights, “the constitutional importance of judicial review, reinforced as it is by s 27(2) of the Bill of Rights Act” means Mr Coulson’s issue of this judicial review proceeding is not abusive in the first instance.16 His ‘fundamental right of access’ accordingly is maintained. I will give directions for that proceeding’s progress. Such is not to exclude any application any respondent may make for the pleading’s strike out or the proceeding’s dismissal.
Result
[8] Under rr 5.35B and 15.1, I strike out Mr Coulson’s statement of claim in each CIV-2024-404-2374, CIV-2024-404-2375, CIV-2024-404-2376, CIV-2024-404-2377, CIV-2024-404-2379, CIV-2024-404-2380 and CIV-2024-404-2424 and dismiss each proceeding.
11 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [28].
12 Judicial Review Procedure Act 2016, s 15(1).
13 Section 9(3).
14 Section 14(2)(b).
15 DFT v Manukau District Court [2023] NZCA 619 at [16].
16 H v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 at [63].
[9] In respect of CIV-2024-404-2378, under rr 5.35B and s 14 of the Judicial Review Procedure Act 2016, I direct:
(a)the names of all parties are struck out;
(b)the applicant is Stewart Robert Coulson;
(c)the first respondent is the Family Court at Waihi;
(d)the second respondent is Hannah Mary Borck;
(e)the third respondent is the Secretary for Justice and Chief Executive of the Ministry of Justice;
(f)Mr Coulson serve the proceeding (including this decision) on the second respondent and the Crown Law Office for the first and third respondents; and
(g)the registry issue this decision to the Crown Law Office.
[10] Because that order and those directions are made without giving Mr Coulson opportunity to be heard, he has a right to appeal against my decision.17As an appeal to the Court of 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 this decision.18
—Jagose J
17 High Court Rules, r 5.35B(3).
18 Court of Appeal (Civil) Rules 2005, r 29(1AA) and (1).