D v RMC

[2023] NZHC 1440

NOTE: PENDING FURTHER ORDER OF THE COURT, PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE

FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1171

[2023] NZHC 1440

BETWEEN

D

Plaintiff

AND

RMC

Defendant

Hearing:	On the papers
Parties:	Plaintiff in person Defendant in person
Judgment:	9 June 2023

JUDGMENT OF GAULT J

(Application to lift stay)

This judgment was delivered by me on 9 June 2023 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Parties:

The Plaintiff The Defendant

D v RMC [2023] NZHC 1440 [9 June 2023]

[1]D applies to remove (lift) the stay in force in this proceeding.

[2]The parties agreed that this application is to be determined on the papers.

Background

[3]        Following acrimonious proceedings in the Family Court between D and her former partner under the Care of Children Act 2004 in which RMC was appointed as counsel for the children, D complained to the New Zealand Law Society (NZLS) about RMC’s conduct. The NZLS decided not to act on the complaint. The NZLS considered it more appropriate for D to use the specialised Family Court complaints process. A Family Court Judge reviewed D’s complaint and decided that RMC had not engaged in misconduct and rejected the complaint.

[4]        Among the various legal proceedings D has pursued as a result of the Care of Children Act proceedings, in 2020 she commenced a proceeding in this Court against the NZLS and RMC (the judicial review proceeding). That proceeding concerned D’s complaints to the NZLS about RMC’s conduct in her capacity as lawyer for the children and NZLS’s response to the complaints.

[5]        On 9 June 2021, D commenced this proceeding against RMC and applied for summary judgment. The proceeding seeks summary judgment, including substantial damages, in relation to a claim in tort against RMC “for failing her duty of candour”.

[6]        The registry referred this proceeding to Jagose J as Duty Judge under r 5.35A of the High Court Rules 2016.

[7]        On 2 July 2021, Jagose J delivered a judgment in which he referred to D’s earlier judicial review proceeding against the NZLS and RMC. Toogood J’s judgment on an application to strike out that claim was reserved. Given that, Jagose J was satisfied that bringing this proceeding in parallel was an abuse of process. However, given there remained a possibility that the judicial review proceeding would be struck out, Jagose J considered that rather than striking out this proceeding the better course was to stay it.

[8]	Jagose	J therefore:1
(a)	ordered:
(i)       this proceeding is stayed until further order;
(ii)      documents for service be kept by the court and not be served until the stay is lifted;
(iii)     no application to lift the stay be heard until further order; and
(b)	directed a copy of this decision be served on RMC.

[9]    On 11 August 2021, Toogood J delivered judgment on the application to strike out in the judicial review proceeding.2 As well as concluding that there was no reasonably arguable case that the NZLS – through either a Standards Committee or the LCRO – had made any error that was susceptible to review by this Court,3 Toogood J concluded that the review proceeding was an attempt to re-litigate complaints made by D to the Family Court about the substantive issues over the care of her children being addressed within the Court’s specialist jurisdiction and about RMC’s conduct. D was attempting to bring proceedings in a different form to obtain a result that she failed to achieve in her representations to the Family Court. In that regard, her proceeding was also an abuse of the Court’s process.4 Toogood J directed that that proceeding be struck out in its entirety.5

[10]   Toogood J also directed that the Registrar shall not receive for filing any further applications by D to this Court for relief regarding her litigation before the Family Court under the Care of Children Act 2004, whether by way of appeal, judicial review or otherwise, without the leave of a Judge (the leave requirement).6

1      D v RMC [2021] NZHC 1633. An anonymised version of this judgment was delivered by Jagose J on 8 March 2023 to ensure consistency with anonymisation in the Court of Appeal/Supreme Court.

2      D v New Zealand Law Society [2021] NZHC 2080.

3 At [43].

4 At [44].

5 At [46].

6      D v New Zealand Law Society [2021] NZHC 2080 at [51].

[11]   D filed an appeal to the Court of Appeal from Jagose J’s judgment. That appeal was deemed abandoned pursuant to r 43 of the Court of Appeal (Civil) Rules 2005 following a Deputy Registrar’s decision declining D’s application to dispense with security for costs and a Court of Appeal Judge’s decision declining D’s application for a review of the Deputy Registrar’s decision.7

[12]   Subsequently, in an attempt to overcome the deemed abandonment of that appeal, D filed an application for an extension of time to bring a further appeal.    The Court of Appeal declined that application.8 D applied for leave to appeal to the Supreme Court, which was also dismissed.9

[13]   Separately, in 2022, D applied for an extension of time to appeal from Toogood J’s judgment. On 14 February 2023, the Court of Appeal set aside the leave requirement.10 However, the Court of Appeal declined the application for an extension of time to appeal the strike out order.11 The Court of Appeal considered that RMC was entitled to expect finality in relation to the complaints and claims advanced by D.12

[14]   On 8 March 2023, Jagose J issued an anonymised version of his 2 July 2021 judgment to ensure consistency with anonymisation in the Court of Appeal and Supreme Court.

[15]   On 27 March 2023, D filed a memorandum seeking a case management conference in this proceeding. D took exception to the anonymisation by Jagose J and sought case management directions from another Judge. Her memorandum was referred to me as Duty Judge.

[16]   In my minute of 4 April 2023, I indicated that following the February 2023 Court of Appeal decision, D may file an application to lift the stay. I directed that any application to lift the stay, if filed by 13 April 2023, be listed for first call in the summary judgment list on 18 April 2023.

7      D v RMC [2021] NZCA 570.

8      D v RMC [2022] NZCA 562.

9      D (SC 126/2022) v RMC [2023] NZSC 6.

10     D v JDN [2023] NZCA 15.

11 At [112].

12 At [107].

[17]On 5 April 2023, D filed an application to lift the stay.

[18]   At the first call of the application to lift the stay on 18 April 2023, D appeared but RMC did not. D said she had served the application to lift the stay on RMC by email on Saturday 15 April 2023. I made timetable orders.13

[19]   RMC’s notice of opposition and affidavit were not filed by 21 April 2023 as I had directed, although the documents indicate she attempted unsuccessfully to email them to the Court on 19 April 2023 and she sought the Court’s confirmation of receipt on 20 April 2023. In my minute of 1 May 2023, I indicated that despite D’s responses it was appropriate to receive RMC’s documents.14

[20]   As RMC agreed with D that the application to lift the stay should be determined on the papers, I indicated that I would do so, but I extended time for D to file and serve any affidavit in reply until 5 May 2023. I also directed that any further submissions on the application to lift the stay by either party be filed and served by 12 May 2023.

Discussion

[21]   As indicated, Jagose J stayed – rather than struck out – the claim on the basis that there remained a possibility that the judicial review proceeding would be struck out. That subsequently occurred. However, Toogood J’s judgment was then the subject of an appeal to the Court of Appeal, which was ultimately unsuccessful in relation to the strike out order.

[22]   Although the reason for the stay of this proceeding (on the ground that bringing this proceeding in parallel with the judicial review proceeding was an abuse of process) has arguably been overtaken by the Court of Appeal’s February 2023 judgment declining D’s application for an extension of time to appeal the strike out order in the judicial review proceeding, RMC opposes the lifting of the stay. She does so on the basis that the tort claim against her has no merit as well as on the basis that D is seeking to relitigate her complaints against RMC.

13     D then applied for me to recuse myself, which I declined by minute dated 20 April 2023.

14     D filed a further interlocutory application dated 1 May 2023 seeking directions to waive any security for costs, to set down a hearing and for interim relief.

[23]   The stay was imposed under r 5.35B of the High Court Rules 2016. That rule applies if a Judge is satisfied that the proceeding is plainly an abuse of the process of the Court. As the Court of Appeal has confirmed,15 notably absent from the rule is any reference to the grounds referred to in r 15.1(a) which enables the Court to strike out all or part of a pleading if it discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the proceeding. These rules serve different functions. A genuinely brought claim or cause of action that may later be shown to be misconceived or legally untenable and which may be struck out under r 15.1 is not, in and of itself, abusive for the purposes of r 5.35B. It is not for the Court at the very preliminary and pre-service stage to take it upon itself to form the view that such a claim discloses no reasonable cause of action or is untenable.16

[24]   However, D also appealed the decision of Jagose J – twice. As RMC submitted, the first appeal was deemed abandoned in 2021. Subsequently, as indicated, D filed an application for an extension of time to bring a further appeal, which the Court of Appeal declined. The Court of Appeal’s reasons for doing so are directly relevant to the current application to lift the stay. The Court of Appeal was satisfied that an extension of time should not be granted to appeal from Jagose J’s judgment for the following reasons:17

The underlying tort claim is untenable. The duties owed by a lawyer appointed by the Family Court to act for children are owed to the Court and to the children, not to the other parties.   The claim is not only untenable,     it appears to be vexatious, as is the current appeal.

[25]   As indicated, D then applied for leave to appeal to the Supreme Court, which was also dismissed.18

[26]   Thus, subsequent to Jagose J’s stay under r 5.35B on the ground of abuse of process, the Court of Appeal has considered the merits of D’s tort claim and concluded it is untenable. In these circumstances, there is no point in lifting the stay on the basis that it was imposed pre-service under r 5.35B and that the merits should be addressed

15     Te Wakaminenga o Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63 at [13].

16 At [17].

17     D v RMC [2022] NZCA 562 at [11].

18     D (SC 126/2022) v RMC [2023] NZSC 6.

on a separate strike out application which may be made by RMC. I add that even if the claim had been tenable in any respect, it is wholly unsuited to summary judgment.

[27]   Further, the Court of Appeal also concluded that the claim appears to be vexatious. I accept RMC’s submission that D is seeking to relitigate her complaints that have been heard and determined in the correct forum and that this proceeding is an abuse of process. It should not proceed.

Result

[28]The application to lift the stay is dismissed.

[29]   If RMC seeks costs, a memorandum (not exceeding three pages) is to be filed within 20 working days, with a response within a further 10 working days, and I will determine costs on the papers.

Gault J