D v RMC - [2021] NZHC 1633

NOTE: 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 https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1171

[2021] NZHC 1633

BETWEEN
D

Plaintiff

AND

RMC

Defendant

Hearing: On the papers

Date of judgment:

2 July 2021

Reissued:

8 March 2023 (anonymised)

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 2 July 2021 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Copy to:
D, Auckland

D v RMC [2021] NZHC 1633 [2 July 2021]

[1] The Registrar has referred this proceeding to me, as duty judge, under rule 5.35A(3)(a) of the High Court Rules 2016 (“HCR”). That rule 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.

[2]The subsequent rule then 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading D v RMC

Details

AGLC: D v RMC [2021] NZHC 1633
Case: [2021] NZHC 1633
Decision Date: 2 July 2021

CaseChat Overview and Summary

The High Court of New Zealand dealt with a case between D and RMC, where D sought to bring a tort claim against RMC, alleging a failure of duty of candour. This claim was made in the context of RMC's role as a lawyer for D's children under the Care of Children Act 2004. D's proceeding was referred to the judge due to concerns that it was an abuse of the court process, particularly because it was seen as a parallel and vexatious proceeding to a claim for judicial review that D had previously brought against RMC and the New Zealand Law Society. The judge had to determine whether the claim against RMC was an abuse of process, and if so, what orders should be made to regulate the proceeding.

The court examined whether D's claim constituted an abuse of process by considering if it was frivolous or vexatious, or if it involved an improper use of the court's machinery. Given that D's claim was perceived to be retaliatory against the delay in the judicial review proceedings and would place RMC at a significant disadvantage, the court found that the claim was indeed an abuse of process. The court also considered the principle of Henderson v Henderson, which prevents parties from re-litigating the same issues after a competent court has already made a decision on them. The court concluded that staying the proceedings until the outcome of the judicial review was the most appropriate action to prevent further abuse of process.

The court stayed the proceeding against RMC until further order, with documents for service to be kept by the court and not served until the stay is lifted. Additionally, no application to lift the stay would be heard until further order after the decision on the judicial review claim was made and accepted, meaning no appeal from it remained to be determined. The court also directed that a copy of the decision be served on RMC. D had the right to appeal against the decision within 20 working days of the date of the decision.

Orders