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 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.

[3]        The current proceeding claims “tort against RMC for failing her duty of candour”. Summary judgment is sought on grounds RMC has “no plausible defence” to the claim, and is supported by an informal “affidavit”. Claim, interlocutory application and affidavit largely are articulated in identical terms.

[4]        At issue appears to be RMC’s conduct of her office as lawyer for D’s children in formal appointment under s 7 of the Care of Children Act 2004. I therefore infer D’s children are at least the subject of proceedings under that Act, and of whom the Family Court had concerns for their safety or well-being and considered RMC’s appointment was necessary.

[5]        D earlier issued a claim for judicial review of each the New Zealand Law Society and RMC.1 D’s “amended statement of claim” dated 26 April 2021 in that proceeding (although more in the nature of an explanatory memorandum) says her initial statement of claim outlined “the misconduct and dishonesty conduct of the second respondent, RMC as her role as lawyer for child of my two children”. Toogood J’s judgment on an application to strike out the claim is reserved.

[6]        Given that reserved judgment, I am satisfied D’s bringing of this parallel proceeding seeking comparable relief against RMC alone is an abuse of this Court’s process. An abuse is “improper use of [the court’s] machinery”;2 use of that process “for a purpose or in a way significantly different from its ordinary and proper use”.3 Here, the parallel proceeding expressly is motivated by what D perceives to be the reserved judgment’s “delay and [denial of] justice”, which procedurally is improper.4 It also is vexatious, as it would put RMC to the attendant inconvenience and duplication of time, cost, and stress in defending the new front.5  Subject to what is

1      [D] v New Zealand Law Society HC Auckland CIV 2020-404-2497.

2      Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53 at [87], citing Simon Goulding, D B Casson and William Blake Odgers Odgers on Civil Court Actions (24th ed, Sweet & Maxwell, London 1996) at [10.15].

3      Attorney-General v Barker [2000] 1 FLR 759 (QBD) at 764.

4      Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 2, at [89].

5      Registered Securities Ltd (in liq) v Yates (1991) 5 PRNZ 68 (HC) at 70 and Cowley v Shortland Publications Ltd (1991) 5 PRNZ 76 (HC) at 80; both distinguished in Zhang v Northwest

permitted to be sought on the judicial review claim, the parallel proceeding may fall within what lawyers describe as Henderson v Henderson abuse:6

[W]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter[s] which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.

[7]        HCR, r 5.35B(2) therefore enables me, on my own initiative, to regulate this proceeding’s conduct, including by resort to HCR, r 15.1. That rule 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]        I therefore may strike out this proceeding at least under HCR, r 15.1(1)(c) and (d). But, while there remains a possibility D’s claim for judicial review will be struck out, the better course of action is to stay this proceeding until further order after Toogood J’s decision is made and accepted. By “stay” is meant to suspend the proceeding’s further progress. Ancillary orders would prevent service while the proceeding is stayed, and prohibit any application to lift the stay until further order

Developments Ltd [2019] NZCA 137 at [27]. See also Attorney-General v Barker, above n 3, at 764.

6      Henderson v Henderson (1843) 3 Hare 100 (Ch) at 115.

after Toogood J’s decision is made and accepted. By “accepted”, I mean no appeal from it remains finally to be determined. I will make those orders.

[9]        Because those orders will be made without giving D an opportunity to be heard, she has a right to appeal against my decision.7 As a case of an appeal to the Court of Appeal as of right, for which the High Court Rules specify no time, any appeal must be brought within 20 working days after the date of my decision.8 And, although I am not now striking out this proceeding, I nonetheless will direct a copy of my decision be served on RMC.

[10]I therefore:

(a)        order:

(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)direct a copy of this decision be served on RMC.

—Jagose J

7      High Court Rules 2016, r 5.35B(3).

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