Crichton v Ministry of Justice

[2023] NZHC 3131

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-303

[2023] NZHC 3131

BETWEEN

MINA CRICHTON

Applicant

AND

MINISTRY OF JUSTICE

Respondent

Hearing:	1 November 2023 (by AVL)
Appearances:	M Crichton - self-represented Applicant M J Mortimer-Wang for Respondent
Judgment:	7 November 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 7 November 2023 at 12.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

CRICHTON v MINISTRY OF JUSTICE [2023] NZHC 3131 [7 November 2023]

[1]    Mina Crichton (Mina) worked for  Ministry  of  Justice  (MOJ)  from  August 2002 to December 2015. The circumstances in which Mina’s employment ended led her to bring a claim against MOJ in the Employment Relations Authority (ERA). Mina was represented by counsel in the ERA. Mina’s claim was settled at mediation in May 2016. The terms of settlement contain the following provision:

This is the full and final settlement of all matters between Mina Crichton and the MOJ arising out of their employment relationship, including any and all complaints made by Mina to the MOJ and the termination of Mina’s employment with the MOJ, and any claims that the MOJ may have against Mina.

(emphasis added)

[2]    Mina and MOJ signed the settlement terms and the following appears below their signatures:

We confirm that we fully understand that once the Mediator signs the agreed terms of settlement:

1.The settlement is final and binding on and enforceable by us; and

2.except for enforcement purposes, neither of us may seek to bring those terms before the Authority or Court whether by action, appeal, and application for review, or otherwise; and

3.the terms of the settlement cannot be cancelled under section 7 of the Contractual Remedies Act 1979; and

[3]    The terms of settlement are signed by the mediator who certifies, amongst other things, that:

d)Before I signed the agreed terms of settlement I explained to them the effect of sections 148A, 149(1) & (3); and

e)…

f)I am satisfied that the parties understood the effect of sections 148A, 149(1)& (3), and have affirmed their request that I should sign the agreed terms of settlement.

[4]    It is not disputed that MOJ satisfied its obligations under the terms of settlement.

[5]    On 9 February 2023, Mina filed this proceeding against MOJ which MOJ has applied to strike out this claim on the basis it cannot succeed in view of the full and final settlement reached at mediation. MOJ also takes the view that the way in which the claim is structured and its content are so inconsistent  with  the  High  Court Rules 2016 (the Rules) that the claim should be struck out on those grounds.

[6]    Mina applied for summary judgment as to liability on her claim after it was filed. I will consider the strike out application first, as if it succeeds, it will overtake Mina’s application.

What MOJ must show to have the claim struck out

[7]    The strike out application is brought pursuant to r 15.1 of the Rules which provides:

15.1     Dismissing or staying all or part of proceeding

(1)The court may strike out all or part of a pleading if it—

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b)is likely to cause prejudice or delay; or

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of the process of the court.

(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3)Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4)This rule does not affect the court’s inherent jurisdiction.

[8]    While an application for strike out usually proceeds on the basis that the facts as pleaded in the statement of claim are true, unless self-evidently speculative or false,

the Court may receive affidavit evidence on strike out applications and will do so in a proper case.1

[9]    Re-litigating matters already determined is an abuse of process.2 Similarly, bringing what is substantially the same proceeding, that is, one that has already been dealt with, albeit in a different garb, is also an abuse of process.3

[10]   Mr Mortimer-Wang, counsel for MOJ, submitted the primary focus of the strike out application was the proposition the claim did not disclose any cause of action. The full and final settlement terms set out above were a secondary factor.

[11]   I will address the full and final settlement proposition first, but in the course of reviewing the statement of claim, I will address whether paragraphs that at face value do not concern MOJ, should be struck out as not disclosing a claim against MOJ.     A claim can be  struck  out  as  an  abuse  of  process  where  the  subject  matter  of a proceeding has already been settled by a record of settlement.4

What is covered by the settlement agreement?

[12]   Mina agreed to settle all claims she has against MOJ arising out of her employment relationship including any and all complaints made by Mina to MOJ and arising from the termination of her employment.

[13]   The words “arising out of” are narrower than “in connection with”.5 For Mina’s  present claim to be barred by the full and final settlement, there needs to be  a causal connection between those claims and her employment relationship or its termination, including any and all complaints made by Mina. The words “including any and all complaints” are in plain English and in the widest of terms. There is no reason not to give these terms their ordinary meaning. If Mina made a complaint

1      Seimer v Judicial  Conduct  Commissioner  [2013]  NZHC  1853  at  [13];  and  Attorney General v McVeagh [1995] 1 NZLR 558 (CA) at [566].

2      Grant v Attorney General [2021] NZHC 1700 at [54].

3      Collier v Butterworths New Zealand Ltd (1997) 11 PRNZ 581 (HC) at [586].

4      Gawthorne v Attorney General [1996] 2 ERNZ 68 (HC).

5      AMI Insurance Ltd v Legg [2017] NZCA 321, [2017] 3 NZLR 629 at [24].

to MOJ arising from her employment relationship, then it cannot be the subject of this proceeding, as all such complaints have been settled.

[14]   There is authority in the ERA in respect of similar wording, that the phrase “full and final” and the reference to “all matters”, supports the idea that the parties intended settlement to encompass all matters in dispute between them.6

[15]   Nonetheless, a claim by Mina wholly outside the employment relationship and the termination of her employment, will not be captured by the full and final settlement. Accordingly, it is necessary to review Mina’s present claim against the terms of settlement.

Mina’s statement of claim

[16]   Mina’s statement of claim covers an extended time period as well as events and other individuals or organisations which, on their face, have nothing to do with MOJ. During the hearing, Mina explained that her claim was intended to capture the sequence of events she was involved in. A number of those events do not involve MOJ and I treat them as having been included to explain what else was happening in Mina’s life at the time, so as to give some context to what Mina says she experienced as an employee of MOJ. That said, unless those paragraphs help establish a cause of action against MOJ, ultimately they should not be in the statement of claim.

[17]Paragraph [54] of Mina’s claim says:

[54] The plaintiff is suing the Ministry of Justice $1,000,000 for each year since the privacy breaches in 2006 and the abuse that accumulated dangerous from 2008 until she was railed road out of her occupation in December 2015.

[18]   The statement of claim is divided into various sections. The first is headed “Workplace Bullying Evidence in Documentations”.

[19]   There follows a reference to what is described as the starting point of Mina’s relationship with one of the managers at MOJ. Mina sets out the terms of a letter written on her behalf by a representative from the PSA dated 10 October 2006. The

6      Trigg v New World Investments Ltd [2022] NZERA 24 at [50].

letter advised MOJ that Mina wished to formally make known she had an employment relationship problem in respect of her MOJ manager.

[20]   The next section is called “Workplace bullying in documentation in 2009”. Under this section, Mina refers to correspondence with another PSA delegate and that section concludes with Mina saying that with the support of that delegate “A letter was drafted up and sent to 3 Ministry of Justice employee’s”.

[21]   This complaint by Mina concerned (amongst other concerns) what she considered was the employees’ gossiping about her. The PSA considered that those staff members were breaching the Privacy Act 1993 and the MOJ’s Code of Conduct, in what they were doing.

[22]   In paragraph 3 of the claim, Mina then sets out paragraphs of the 2009 letter that she says was written with the assistance of the PSA. It refers to Mina’s belief that the three employees had been gossiping behind her back and passing on personal information about her to people within and outside MOJ. The fact that Mina had used the MOJ email system to forward the letter to the three employees, resulted in an MOJ manager recording that a meeting was held with Mina to advise her that the process she had used to forward the letter was incorrect and that her work email should not be used to address gossip. The letter from the manager recorded: “The original incident has now been dealt with …”.

[23]   Paragraph  5 of the claim refers to Mina being referred by her manager  for    a mental health assessment. Mina records nothing came out of that. On the basis that nothing came out of that, this paragraph does not found a claim.

[24]   Paragraph 6 of the claim records a formal letter of complaint submitted by Mina to MOJ on 29 November 2010. It records that Mina wanted to make an official complaint in regards to the way she has been treated by MOJ management. It says: “Over the years [the manager] and I have had a working relationship problem”. The manager referred to is the manager referred to in paragraph 1 of the statement of claim, where it is referred to as the “starting point of [Mina’s] working relationship problems started on or about 10th December 2006”.

[25]   In short, it is not necessary for me to review the contents of that formal letter of complaint because whatever the complaints are, they are settled as they relate to MOJ, as they were all complaints raised by Mina with MOJ arising from her employment.

[26]   Paragraph 7 of the claim refers to: “More email correspondence with management, psa organiser, psa delegates in regards to Formal Complaints in 2010 and general correspondence”. Again, the matters in these emails insofar as they arise from Mina’s employment relationship are within the terms of the settlement.

[27]   Paragraph 8 of the claim refers to “Protected Disclosure” by Mina to various organisations including MOJ. The role of this paragraph is to identify the relevant correspondence.

[28]   Paragraph 9 of the claim refers to a letter that Mina wrote to the New Zealand Police (the Police) on 5 May 2010 in which she says she believed she had been subject to workplace bullying. Mina’s claim through to paragraph 18 (inclusive) deals with the aftermath of the Police declining to act on Mina’s complaint to the Police, as the Police took the view that Mina’s complaints were employment related and not Police matters. Mina took up her concerns about the Police not being prepared to intervene, with the Independent Police Conduct Authority which concluded that the issue of workplace bullying was a matter for the Department of Labour or possibly the Employment Court, but not the Police.

[29]   Paragraph 9 of Mina’s claim, that is, her correspondence with the Police about the alleged workplace bullying has nothing to do with MOJ albeit, it confirms the depths of feeling Mina had about these issues. To the extent it reflects the context of Mina’s complaints to MOJ about bullying, this part of the claim confirm those complaints arise from her employment and are within the terms of settlement.

[30]   Paragraph 19 of the  claim  begins  with  Mina  pleading  that  on  Monday  29 November 2010, Mina made a formal complaint to her employer about the way she had been treated by management. Again, I do not set out the terms of that letter as

they have been settled.    The letter refers to Mina’s complaint to the Police. Again, MOJ is not responsible for Police conduct.

[31]   Paragraph 20 of the claim contain extracts from Mina’s emails sending the letter of complaint to a manager at MOJ. Again, what is covered in these emails are matters arising from Mina’s employment.

[32]   Paragraph 21 of the claim is an email from the PSA to Mina discussing the formal letter of complaint. While part of the context, this paragraph essentially only summarises the concerns Mina has already raised with MOJ.

[33] In paragraph 22 of the claim, Mina refers back to the mental health assessment referred to in paragraph 5, noted at [23] above. Paragraph 22 records the mental health assessment from 8 July 2009 accompanied the protected disclosure of 5 May 2010 referred to at paragraph 8 of the claim (referred to at [27] above).

[34]   In relation to paragraph 23 of the claim, Mina recites that in May/June 2009, her problems at work got worse and she decided to seek help from the PSA as to how to deal with the workplace bullying.   This paragraph concludes with a reference to   a letter of November 2010  in which Mina advised MOJ that she would  be making   a formal complaint to the Privacy Commissioner.

[35]   Paragraph 24 of the claim also refers to the mental health report arising from the 8 July 2009 assessment. This paragraph contains no allegation relevant to MOJ.

[36]   Paragraph 25 of the claim refers to MOJ’s letter of 1 December 2010 in reply to Mina’s formal complaint of workplace bullying of the same date.

[37]Paragraph 26 of the claim says:

[26] The plaintiff also had a suspicion that on or about 7 July 2010. She contracted a flu like whooping cough that made her have a burning sensation on her lungs every time she coughs. The plaintiff believes that she was poisoned with the flu injection, when she consented to taking the flue injection at work. The plaintiff seeks intervention to have her medical records and all her blood test results to be release for the purpose of a full investigation into her blood test results.

[38]   MOJ does not have control over Mina’s medical records or blood test results. These will be held by her medical practitioner or any hospital she has attended.        I cannot see how this paragraph founds a claim against MOJ.

[39]   Paragraphs 27 to 29 of the claim concern a car accident in March 2010 that Mina was involved in. Mina refers to making requests for information from the Police in respect of the accident, request for information from her insurer, and a neck injury she suffered as a result of whiplash from the injury. None of these matters were caused by MOJ.

[40]   Paragraphs 30 and 31 of the claim concern a dispute Mina had with an organisation called “Unison Dance Crew 2010 Incorporated”. Again, those matters are nothing to do with MOJ and do not found a claim against MOJ. There is no suggestion MOJ had any involvement with the Unison Dance Crew matters.

[41]Paragraph 32 of the claim is similar to paragraph 26.

[42]   Paragraph 33 of the claim concerns a life insurance policy held by Mina. Again, nothing in the narrative concerning that claim has anything to do with MOJ.

[43]   Paragraph 34 of the claim concerns a claim Mina had in the Tenancy Tribunal and again, nothing in that narrative concerns MOJ.

[44]   Paragraph 35 of the claim recounts events on 5 November 2010 where Mina describes that she changed addresses. She refers to the address she moved to and says that one of the neighbours worked at the same Court as Mina. Beyond that coincidence, this paragraph has nothing to do with MOJ.

[45]   In paragraph 36 of the claim, the narrative moves to June and July 2015. This is a further time when Mina made official complaints to her manager at MOJ in respect of bullying and what she considered to be an unsafe working environment which she was subject to during her employment with MOJ. Mina was advised to go on paid leave while the matter was investigated. Again, this correspondence records complaints made by Mina arising from her employment and have been settled.

[46]   Paragraphs 37 to 39 of the claim deal with correspondence concerning Mina’s complaint and other concerns she has with matters with her work at MOJ and have been settled.

[47]   Paragraphs 40 to 42 of the claim concern matters arising from  Mina’s  dealing with the District Health Service and Waitematā District Health Board. In paragraph 40, Mina says that she was: “unable to seek full time employment because of the Medical Terminated decision made by her employer the Ministry of Justice”.

[48]   While paragraphs 40 to 42 of the claim appear to concern the conduct of medical practitioners involved, to the extent that paragraph 40 refers to her termination of employment, it is directly covered by the full and final settlement as in context, it is referring to events between termination of Mina’s employment in December 2015 and mediation in May 2016. If the paragraph intended to refer to events after mediation, one of the terms of mediation was that it was agreed and recorded that Mina resigned from MOJ rather than her employment being terminated on medical grounds.

[49]   Paragraph 43 of the claim refers to the mediation on 6 May 2016 resulting in the terms of settlement set out above.

[50]   Paragraph 44 of the claim concerns a separate proceeding Mina brought against the Ministry of Health. Those events do not concern MOJ. Mina was unsuccessful in that proceeding.

[51]   Paragraph 45 of the claim refers to Mina’s email with the Judicial Conduct Commissioner. Again, that correspondence is not relevant to MOJ.

[52]   Paragraph 46 of the claim is a complaint about how court staff processed a new proceeding Mina wished to file in April 2021. Mina says her statement of claim and notice of proceeding were not accepted for filing. Nonetheless, Mina says the documents were processed, albeit it took an extended period. She says that  in August 2021 she went to the Auckland District Court civil counter to pick up her documents. Mina says she was so upset with the Courts that she rang the Police on site to take a statement because she wanted to press criminal charges against the Courts

for perverting the course of justice. The Police refused to attend. This paragraph does not set out the conduct of the MOJ staff that is complained about. Mr Mortimer-Wang was unable to expand on what this claim concerned nor did Mina address this issue in her submissions. This paragraph does not disclose a cause of action against MOJ.

[53]   Paragraph 47 of the claim refers to third parties against whom Mina filed other statements of claim, along with MOJ. This paragraph is contextual only.

[54]   Paragraph 48 of the claim is headed “Discovery during investigation into the plaintiff’s personal profile”. It refers to Mina’s belief that her driver’s licence was stolen in March 2010 during work hours while she was working for MOJ. How that might be the responsibility of MOJ is not expanded on.

[55]   Mina then refers to concerns about the Department of Internal Affairs – those matters have nothing to do with MOJ. There is further reference to the car accident.

[56]   Paragraph 48.4 of the claim refers to what might be characterised as alleged inaccuracies in judgments or other records created by MOJ, the Police, the Independent Police Conduct Authority, the Ministry of Health and others. MOJ is not responsible for the accuracy of court judgments or pleadings or for records of other organisations.

[57]Paragraph 49 of the claim is contextual only.

[58]   Paragraph 50 of the claim is a wide ranging summary of Mina’s concerns over an extended period. Most of those matters in paragraph 50 have nothing to do with MOJ. Mina does say:

The plaintiff was deliberately exiled, isolated, criminally harassed around the building, during her employment with her employer The Ministry of Justice. Her complaints in the Protected Disclosure entailed, phone monitoring during work hours, tightly harassed at work, emotional blackmail threats to her hurt her family members during working hours, relationship scam, abused indirectly psychologically and mental abuse by her colleagues on and off over the years.

[59]   Again, these allegations refer to complaints made to MOJ relating to what occurred during her employment and have been settled.

[60]   Paragraph 51 of the claim refers to the proceeding noted at [50], brought against the Ministry of Health. Included in paragraph 51 is the following paragraph:

This civil case has accumulated other criminal offences before and after the fact eg, Crimes Against Humanity and Acts of torture. Several unlawful acts according to the law that her Employer the Ministry of Justice has failed to comply under the crimes act 1961 Part 8 Crimes against the person-Duties tending to the preservation of life. The plaintiffs have numerous complaints of incidents that has occurred in sequences of events are the true and remains unresolved. They are as follows: …

[61]   Paragraph 52 of the claim is contextual and refers to Mina’s personal circumstances, which I do not repeat.

[62]   Paragraph 53 of the claim is a reference to a number of legal principles including the obligation under the Employment Relations Act 2000, section 4, requiring the parties to deal with each other in good faith.

[63] Finally, I have already referred to paragraph 54 at [17] above. The final paragraph (also numbered 54) in the claim is as follows:

[54]    Relief Sort:

The plaintiff is suing the Ministry of Justice $10.000, 000 for the following compensation:

1.Crimes against Humanity and breach of every legislation that protects an individual civil rights.

2.Unlawful discrimination.

3.Defamation of her good reputation, character, and work ethics.

4.Personal injury emotionally and mentally from personal torture by way of organised crimes methods. Meaning, intentional damage, set-up to fail, used for relationship scams, money laundering. Use as an app, theft of intellectual property, use to promote like a product.

Decision

[64]   I have gone through Mina’s claim paragraph by paragraph to firstly identify those allegations that concern other entities or individuals. Those paragraphs, if not

part of the content, do not set out alleged wrongs by MOJ. They should not be in the claim.

[65]   In respect of the paragraphs that contain allegations against MOJ, in each case the allegations are contained in a complaint made by Mina to MOJ have been settled.

[66] Paragraph 54, referred to at [17] above, refers to privacy breaches in 2006. No privacy breach in 2006 is referred to in the claim. The letter of 10 October 2006 refers to Mina considering she has been treated unreasonably or unfairly and has been discriminated against.

[67] Paragraph 2 of the claim concerning events in 2009, refers to a breach of private conversation, gossip and personal information about work activities and private life. These matters were referred to in the letter contained in paragraph 3 of Mina’s claim, referred to at [22] above. These matters clearly arose from Mina’s employment. While the 2 August 2009 letter appears to have been sent to 3 employees of MOJ rather than to MOJ, during the hearing Mina confirmed she discussed her complaints contained in the 2 August 2009 letter with her manager.

[68]   Most of the letters of complaint by Mina concern bullying rather than privacy breaches. There is an absence of pleading of privacy breaches by MOJ.

[69]   All the paragraphs I have referred to above that record complaints to MOJ arising from Mina’s employment fall squarely within the full and final settlement and must be struck out. Those paragraphs that recite matters concerning events and third parties unrelated to MOJ, are also struck out. Those paragraphs that do not link to any alleged wrongdoing by MOJ and being contextual have no life once the allegations by Mina which she complained about during her employment, are struck out.

[70]   No breach of privacy is pleaded in the statement of claim and so no relief can be sought in that regard.

[71]   Mina, recognising the significance of the full and final settlement in her submissions, sought an order cancelling the 6 May 2016 contract. Mina submitted that s 7(3)(a) of the Contractual Remedies Act 1979 (now ss 36-40 of the Contracts and Commercial Law Act 2017) would entitle her to cancel the settlement. Mina says MOJ took advantage of her as an innocent person.

[72]   The settlement provides that the agreement cannot be cancelled under s 7 of the  Contractual  Remedies  Act  1979.  Section  149  of  the  Employment   Relations Act 2000 provides that where parties to a settlement have had its effect explained to them and where knowing the effect of the settlement affirm that they want the mediator to sign the agreed terms of settlement, then those terms may not be cancelled under ss 36 to 40 of the Contractual and Commercial Law Act 2017.

[73]   Mina was represented by counsel at the mediation. There is no basis for the agreement to be cancelled. Such would have to be pleaded rather than in submissions. Mina referred in general terms to fraud by MOJ. Any party alleging fraud must provide full particulars of what they allege. Mina would have to explain how the May 2016 settlement was obtained by the fraud of MOJ. No such claim has been made in the six years or so since settlement.

[74]   I am satisfied that Mina’s claim should be struck out as it either contains allegations that have nothing to do with MOJ or, the allegations that are raised concerning MOJ were all matters relating to her employment and/or raised by Mina in complaints and as such are caught by the settlement.

[75]   Accordingly, the statement of claim is struck out. It follows, Mina’s application for leave to apply for summary judgment as to liability also cannot succeed and is dismissed.

Costs

[76]   MOJ sought costs on its application. Costs should follow the event. There is an award of costs to MOJ on a 2B basis plus disbursements as fixed by the Registrar.

Associate Judge Lester

Solicitors:

MC, Wellington (for Defendant)

Copy to:
Ms M Crichton (self-represented Plaintiff)