Crequer v Christchurch High Court

[2024] NZHC 1959

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-000328

[2024] NZHC 1959

UNDER

the Judicial Review Procedure Act 2016 and the High Court Rules (30.3)

IN THE MATTER

of a Judicial Review of a decision to dismiss an application for review of a Deputy Registrar’s decision refusing a fee waiver

BETWEEN

DAVID OWEN CREQUER

Applicant

AND

CHRISTCHURCH HIGH COURT

Respondent

Hearing:	(On the papers)
Counsel:	D O Crequer self-represented Applicant
Judgment:	16 July 2024

JUDGMENT OF PRESTON J

(Application for Judicial Review)

This judgment was delivered by me on 16 July 2024 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

CREQUER v CHRISTCHURCH HIGH COURT [2024] NZHC 1959 [16 July 2024]

[1]                 The applicant, Mr Crequer, has filed a statement of claim dated 12 July 2024 seeking judicial review of Associate Judge Paulsen’s decision of 9 November 2023. Associate Judge Paulsen dismissed Mr Crequer’s application to review the Registrar’s decision declining Mr Crequer’s application for a fee waiver.

[2]                 The Registrar has referred Mr Crequer’s proceeding to me under r 5.35A of the High Court Rules 2016 which provides:

5.35A Registrar may refer plainly abusive proceeding to Judge before service

(1)This  rule  applies  if  a  Registrar  believes  that,  on  the  face  of     a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.

(2)The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.

(3)However, the Registrar may,—

(a)as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b)until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.

[3]                 Rule 5.35B provides:

5.35B Judge’s powers to make orders and give directions before service

(1)This rule applies if a Judge to whom a Registrar refers a proceeding under rule 5.35A is satisfied that the proceeding is plainly an abuse of the process of the court.

(2)The Judge may, on his or her own initiative, make an order or give directions to ensure that the 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).

(3)Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding  an  opportunity  to  be  heard,  the  order  must  contain  a statement of that person’s right to appeal against the decision.

(4)A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.

(5)See rule 2.1(3)(b) concerning the exclusion of the jurisdiction and powers of a Judge under this rule from the jurisdiction and powers of an Associate Judge.

[4]                 The Registrar has referred the proceeding to me because judicial review of    a decision of this Court is not available.

[5]                 This issue came before Jagose J in Navaratnam v High Court of Auckland, where his Honour said:1

[4]        On judicial review, this Court assesses if susceptible powers are exercised “in accordance with law, fairly and reasonably”. ‘Fair’ and ‘reasonable’ are terms of art in judicial review, respectively broadly meaning procedurally regular and substantively rational. In a variety of ways, particularised over some 44 pages, the applicants assert this Court’s process in arriving at those decisions was unfair, allegedly for denying the applicants “natural justice” and “fair hearing” and their “legitimate expectations” this Court act lawfully.

[5]        Even at judicial review’s widest conception, decisions of this Court and its judges — including in all senior courts, distinctly from inferior courts of limited jurisdiction — are not susceptible to it, as contrary to principles of finality and legality. Save for this Court’s inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice, any dissatisfaction with its decisions only can be taken up on appeal, where available.

(footnotes omitted)

[6]       Jagose J in Navaratnam recorded that r 5.35B(2) of the High Court Rules enables the Court on its own initiative to dismiss a proceeding under r 15.1. Rule 15.1 permits the Court to strike out a claim if it does not disclose a reasonably arguable

1      Navaratnam v High Court [2022] NZHC 371 at [4] and [5].

cause of action. As I have said, judicial review of this Court’s decision is not available. This means Mr Crequer’s statement of claim does not disclose a reasonably arguable cause of action and it is struck out.

[7]I record that Jagose J’s decision was appealed with the Court of Appeal saying:2

The Judge’s statement of the law — that decisions of the High Court and its Judges are not susceptible to judicial review — is unquestionably correct.

[8]       I also observe that Mr Crequer’s reliance on s 22(4)(h) of the Senior Courts Act 2016 is misplaced. That provision provides rules may be made under s 148 of the Senior Courts Act conferring on an Associate Judge the jurisdiction and powers of a High Court Judge in chambers other than, relevantly, an application for relief under the Judicial Review Procedure Act 2016. 3

[9]       Associate Judge Paulsen exercised a jurisdiction conferred upon Associate Judges by s 160 of the Senior Courts Act 2016. His Honour was not purporting to exercise jurisdiction created by a rule under s 22. Accordingly, s 22 of the Senior Courts Act 2016 has no application.

[10]In any event, that is an aside.

[11] For the reasons set out at [1] – [6] above, there is an order that Mr Crequer’s statement of claim is struck out. Because this order has been made without giving  Mr Crequer an opportunity to be heard, he has a right to appeal this decision. Such an appeal lies to the Court of Appeal as of right and must be brought within 20 working days after the date of the decision.4

………………………………………
Preston J

Copy to:
Mr D O Crequer, Christchurch

2      Navaratnam v HG Metal Manufacturing Limited [2022] NZCA 425 at [25].

3      Senior Courts Act 2016, s 22(4)(h).

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