Cullum v Barfoot

[2021] NZCA 53

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA16/2021
 [2021] NZCA 53

BETWEEN	KATHRYN CULLUM Applicant
AND	KIRI BARFOOT Respondent

Counsel:	Applicant in person M Singh for Respondent
Judgment: (On the papers)	10 March 2021 at 11.00 am

JUDGMENT OF MILLER J
(Review of Registrar’s Decision)

The application for review is declined.  The application for special leave to appeal is rejected for filing.

____________________________________________________________________

REASONS

1. This judgment responds to Ms Cullum’s application for review of a Registrar’s decision declining to waive payment of a filing fee on an application for special leave to appeal.

2. The sole issue is whether the proceeding is being commenced to determine a question of law which is of significant interest to the public or a substantial section of it. 

3. The Registrar reasoned that:

   You seek special leave to appeal the decision of Powell J on 22 October 2020.  That decision struck out your proceeding as an abuse of process and awarded scale costs against you.  It involved an exercise of discretion, pursuant to the Court’s inherent jurisdiction and rule 14.1 of the High Court Rules, after consideration of the particular facts.  The proceeding that was struck out was an application for leave to appeal a decision of the District Court.  That District Court decision quashed the Tenancy Tribunal finding that the landlord’s 90-day notice was retaliatory, and dismissed your appeal against Ms Barfoot (as she was not the landlord) and against the order that you pay rent arrears.  It seems to me that this tenancy appeal turned on its particular facts.  I accordingly share Powell J’s view that “I cannot see on what basis the decision involves a question of law, let alone one that because of its general or public importance or for any other reasons ought to be submitted to the Court of Appeal for decision.”

   (Footnote omitted.)

4. In her review application Ms Cullum accuses the Court of corruption and of perverting the course of justice, stating that the Court of Appeal is declining her leave because the Registrar believes her case is “abusive”.  (The Registrar had advised that the papers could be returned for their abusive content but did not actually do so.)  She maintains that the outcomes below are the result of misconduct by various judicial officers.  She also asserts that what she describes as the great New Zealand housing emergency is the greatest public interest topic in the country, citing among other things plummeting birth rates, child poverty, property market greed, homelessness and “Generation Rent permanent entrapment”.

5. I agree with the Registrar’s characterisation of the proceeding.  It involves a tenancy dispute which turned on its particular facts.  Ms Cullum complained about the state of the premises and allegedly above-market rent, seeking to hold the landlord’s agent responsible, and the landlord’s agent claimed for unpaid rent.  The tenancy was terminated by order of the Tenancy Tribunal when she refused to recommence rent payments pending consideration of her claim for damages.  An appeal to the District Court failed.[1]  Powell J found no question of law in her proposed appeals to the High Court and this Court.[2] 

   [1]Barfoot & Thompson Ltd v Cullum [2020] NZDC 12161.

   [2]Cullum v Barfoot [2020] NZHC 2777; and Cullum v Barfoot [2020] NZHC 3507.

6. The application for special leave to appeal to this Court does not raise any genuine question of law, let alone one that merits this Court’s consideration.  I observe that the principal relief sought is that the agent (a real estate firm) should somehow be made accountable for property market greed and the housing crisis.  The genuine public interest topics to which Ms Cullum points are neither questions of law nor justiciable;  they are political and social questions which are the responsibility of the other branches of government. 

7. The papers filed by Ms Cullum in this Court are remarkable for their sustained and graphic invective against those with whom she disagrees or of whose lifestyle she disapproves.  She is entitled to criticise judicial officers, and even to accuse them of misconduct in the conduct of her proceeding, but she cannot accuse them of corruption merely because she disagrees with their decisions, or speculate on their sexual orientation (as she has done with the Registrar), or depict them as mokomokai, or characterise them as whores or mongrels, or liken their work to the murder of Jewish children in the Holocaust.  Nor can she include in a court filing her views about the promiscuity, sexual orientation, religious beliefs, femininity or dress sense of others with whom she disagrees.  In my opinion the Registrar was wrong to accept her papers for filing.  They ought to have been rejected under r 5A(1)(b) of the Court of Appeal (Civil) Rules 2005 on the ground that they contain plainly abusive material.  I include in this the application for special leave and a misconceived 21 February 2021 application for “stay”, as well as her apparent request for the case to be heard by Kós P or Winkelmann CJ dated 4 March 2021. 

8. The application for review of the Registrar’s decision is declined.  I further direct under r 6(3) of the Court of Appeal (Civil) Rules that the application for special leave is to be rejected for filing, bringing this proceeding (and all its subsidiary applications and requests for directions) to an end.  Ms Cullum has the right to seek to re-file an application for special leave after removing all abusive material, but she should assume that absent some entirely new and legally meritorious ground she will not be granted a waiver of the filing fee on public interest grounds.

Solicitors:
Glaister Ennor, Auckland for Respondent