DAMIEN GIFKINS AND SAMSUNG ELECTRONICS

[2024] NZHC 2962

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-002451

[2024] NZHC 2962

BETWEEN

DAMIEN GIFKINS

Applicant

AND

SAMSUNG ELECTRONICS

Respondent

Hearing:	On the papers
Judgment:	11 October 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 11 October 2024 at 11 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

GIFKINS v SAMSUNG [2024] NZHC 2962 [11 October 2024]

Introduction

[1]                 The Registrar has referred to me, under s 5.35A of the High Court Rules 2016, an application1 brought by Damien Gifkins seeking an order for discovery from Samsung Electronics Ltd (Samsung). It is not clear that there is a corporate entity in this jurisdiction by this specific name.

[2]                 Mr Gifkins has filed an affidavit in support of his application and an “Urgent Request for Civil Cyber Crime Barrister and Legal Aid Assistance” plainly recognising that legal advice is needed for such a claim.

[3]                 Mr Gifkins appears to be focused on remedying security issues with his Samsung Galaxy devices.

Jurisdiction

[4]Rules 5.35A and 5.35B of the High Court Rules provide:

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.

5.35B Judge’s powers to make orders and give directions before service

1      The application filed is titled “Interlocutory Application for Discovery”. However, I elect to treat this application as an originating application as it is the first document filed in relation to the proceedings brought by Mr Gifkins.

(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.

[5]                 The power under r 5.35B must be exercised sparingly and only in the clearest of cases.2 A claim should be struck out when pleadings are so unintelligible that it would be inappropriate to require a response to the pleadings; and when it is apparent from the nature of the claim that it could not be re-pleaded in a manner that would identify an appropriate cause of action.3

[6]                 Genuinely brought claims, even if misconceived or legally untenable, must not be struck out under r 5.35B.4 Proceedings with no discernible cause of action or

2      Te Wakaminenga o Ngā Hapū ki Waitangi v Waitangi National Trust Board [2023] NZCA 63 at [15].

3      Sixtus v Ardern [2022] NZHC 1161 at [11].

4      Te Wakaminenga o Ngā Hapū ki Waitangi v Waitangi National Trust Board [2023] NZCA 63 at [13].

grounds to seek relief may be struck out as an abuse of process.5 Plainly abusive proceedings are those that involve an improper use of the Court’s machinery.6 Proceedings that fail to set out a legal cause of action nor a cause of action that can be properly brought against a named defendant are plainly an abuse of court processes.7 Proceedings that are not capable of being amended to become valid claims should be struck out.8

Analysis

[7]                 Mr Gifkins seeks disclosure from Samsung for the purpose of “investigating potential security vulnerabilities of [his] Samsung Galaxy devices”. He seeks information and documents relating to: an unauthorised login from Christchurch; remote media access; GPS tracking; exploitation risks; Google Ears exploits; Android system vulnerabilities; Bixby command exploitation; and Google messaging service, Chrome web view sandbox and play services exploits. He seeks orders:

(a)directing Samsung to provide the documents and information sought within 14 days;

(b)directing Samsung to verify the authenticity of the documents and information provided; and

(c)confirming [REDACTED] status within Samsung and any such court orders allowing any sort of access to his private information.

[8]                 There is no explanation of who [REDACTED] is or his relationship to the matters at hand.

[9]                 Mr Gifkins expands on the information and documents sought in his affidavit annexing screenshots from what appears to be his phone’s settings.

5      Tranter v Manager Telstra Clear NZ Ltd [2022] NZHC 456; Re Nga Uri Whakatipurunga O Ngarae (Inc) [2021] NZHC 3580; Rafiq v Secretary for Internal Affairs [2022] NZHC 1520; and Power v Little [2022] NZHC 143.

6      Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].

7      Smyth-Davoren v Parker [2018] NZHC 3034.

8 At [9].

[10]I consider it appropriate to strike out this proceeding for the following reasons:

(a)Lack of jurisdiction: Mr Gifkins seeks information and documents from various international domains overseen by international branches of corporations within the Samsung Group.

(b)Lack of standing: Mr Gifkins seeks information belonging to [REDACTED].9 No information about [REDACTED] nor his connection to Mr Gifkins has been filed with this Court.

(c)Lack of a discernible tenable claim or cause of action.

[11]              Mr Gifkins seeks  discovery  against  a  non-party  under  r  8.21  of  the  High Court Rules. Rule 8.21 can only apply if Mr Gifkins has current proceedings in this Court against a party other than Samsung — that is not the case. I do not consider that this error in application can be remedied by characterising the application as an application for pre-commencement. The reasons for this are twofold: First, as discussed below, is it unclear on what grounds/or for what legal proceeding Mr Gifkins seeks discovery. Second, pre-commencement discovery orders are made against prospective defendants in a proceeding; it is unclear what Mr Gifkins’s underlying claims against Samsung as a prospective defendant would be, which Samsung entity would be a proper defendant and whether that entity is in this jurisdiction.

[12]              Mr Gifkins’s application and affidavit purport to be made in reliance on the Privacy Act 2020, the Crimes Act 1961, and the Telecommunications (Interception and Monitoring) Act 2007 but no breaches of that legislation are alleged.

[13]              Rather, Mr Gifkins’s application seeks information about the security measures on Samsung devices. He states that this is because he wishes to investigate the potential security vulnerabilities of his Samsung Galaxy devices.

[14]              Mr Gifkins’s subsequent emailed memorandum supports the view I have taken of the current pleading. It is not the Court’s role to assist a party to initiate a case. Nor

9      Faloon v The Planning Tribunal at Wellington [2020] NZCA 170 at [2].

can it intervene to provide “specialised legal resources or alternative solutions”. That is simply not the Court’s role which is distinct from bodies such as the Office of the Privacy Commissioner.

[15]              In his email, Mr Gifkins states that he has suffered “relentless cyber stalking, device hacking, and various cybercrimes”. The email details his intention to “pursue criminal charges and/or civil litigation” with the assistance of a legal practitioner. The email also provides a list of key issues, with two of the issues “identity theft and/or impersonation” and “financial loss” being caveated by “(if applicable)”. I consider that these factors further demonstrate that Mr Gifkins’s application does not raise a valid cause of action nor any jurisdictional basis.

[16]              I conclude that Mr Gifkins’s application cannot be amended to resemble a valid statement of claim with a valid cause of action. As filed, Mr Gifkins’s application cannot properly be brought. I am therefore satisfied that it is appropriate to strike out this proceeding as an abuse of process.

Result

[17]I strike out the proceeding.

[18]Mr Gifkins has the right to appeal this decision under r 5.35B(4) above.

............................................................

Walker J