Davis v McNeilly

[2024] NZHC 1270

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2024-412-00039 CIV-2024-412-00044

CIV-2024-412-00051 [2024] NZHC 1270

UNDER

the Defamation Act 1992

BETWEEN

ARTEMIS INDIGO DELILAH DAVIS

Plaintiff

AND

HAMISH NICOLL MCNEILLY

Defendant

CIV-2024-412-00047

UNDER

the Defamation Act 1992

BETWEEN

ARTEMIS INDIGO DELILAH DAVIS

Plaintiff

AND

STUFF LIMITED

Defendant

Hearing:	On the papers
Appearances:	Self-represented Plaintiff
Judgment:	21 May 2024
Reissued:	27 August 2024

JUDGMENT OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DAVIS v MCNEILLY [2024] NZHC 1270 [21 May 2024]

[1]    Ms Davis has issued four proceedings. Three proceedings name Mr McNeilly as defendant (CIV-2024-412-39, CIV-2024-412-44, CIV-2024-412-00051). The fourth proceedings name Stuff Limited as the defendant.

[2]    Proceeding CIV-2024-412-00039 against Mr McNeilly was filed on 15 April 2024 and alleged 68 causes of action:

(a)defamation (x46);

(b)misuse of private information (x11);

(c)breach of confidence (x6);

(d)malicious falsehood (x4);

(e)tortious misuse of private information;

[3]    The proceeding against Stuff Limited (CIV-2024-412-00047) was also filed on 15 April 2024 and alleges the same 68 causes of action as CIV-2024-412-00039:

[4]    Proceeding  CIV-2024-412-00044  against  Mr  McNeilly   was   filed   on  18 April 2024 and alleges five causes of action in defamation. CIV-2024-412-00051 was filed on 14 May 2024 and appears to be replicate CIV-2024-412-00044.

[5]    All four proceedings have been referred to me by the Registrar under r 5.35A of the High Court rules (HCR) for consideration under r 5.35B, on the grounds the four sets of proceedings are plainly an abuse of process of the Court.

Jurisdiction

[6]    I respectfully adopt the principles as summarised recently by Dunningham J in finding that proceedings issued by Ms Davis against a sitting District Court Judge were an abuse of process:1

1      Davis v Robinson [2024] NZHC 344 at [3]-[6].

[3]    High Court Rules 5.35A to 5.35C provide a process for dealing with proceedings that are plainly an abuse of the process of the Court.

[4]   Rule 5.35A allows the Registrar to refer it to a Judge for consideration under r 5.35B. Under r 5.35B, if the Judge to whom the proceeding has been referred is satisfied the proceeding is plainly an abuse of the process of the Court, the Judge may make an order striking out the proceeding or make any orders or directions so that the proceeding is conducted according to the High Court Rules.

[5]   The powers contained in these Rules reflect the exercise of the Court’s inherent jurisdiction to enable the Court to prevent misuse of Court process when the procedure being adopted would bring the administration of justice into disrepute. The right of a litigant to bring proceedings must be weighed against the interests of individual parties who may otherwise be drawn into entirely unmeritorious proceedings.

[6]  The power to strike out a proposed proceeding as an abuse of process under the Rules is to be exercised sparingly. In exercising this power, the Court should consider:

(a)whether it would be manifestly unfair to the respondents that they be required to respond; and

(b)whether right thinking people would regard the Court as exercising very poor control of its processes if it were to allow the applicant’s document to be regarded as a proper document.

(footnotes omitted)

[7]       In Faloon v Planning Tribunal at Wellington the Court of Appeal identified seven basic rules of civil justice.2     In upholding the High Court’s strike out of      Mr Faloon’s proceeding as plainly abusive, the Court referenced those seven basic rules as touchstones for assessing the “reasonable limits to recourse to law”.3 The third of those rules is that claims cannot be undertaken by instalment. The claimant’s obligation is to bring all his or her claims on a subject together in one claim. This is known as the rule in Henderson v Henderson.4

Analysis

[8]       It is the rule in Henderson v Henderson that determines the Registrar’s referral in relation to proceedings CIV-2024-412-00044 and CIV-2024-412-00051.

2      Faloon v Planning Tribunal at Wellington [2020] NZCA 170 at [1]-[2].

3      At [1]-[2].

4      Henderson v Henderson (1843) 67 ER 313 (Ch).

[9]       The only difference I can identify between those two sets of proceedings is the dates on which they were filed. Otherwise, they appear to be identical, setting out the same alleged factual background and pleading the same five causes of action and defamation. Quite why Ms Davis would see fit to have filed two identical sets of proceedings is unclear.

[10]     What is more, the factual allegations and five causes of action pleaded in CIV-2024-412-00044 and CIV-2024-412-00051 are included verbatim within CIV-2024-412-00039.

[11]     In my view it is plainly an abuse of process to bring three sets of proceedings alleging the very same facts and pleading the same causes of action. The plaintiff’s action in defamation must be the subject of a single proceeding. I am satisfied CIV-2024-412-00044 and CIV-2024-412-00051 are an abuse of process and pursuant to r 5.35B(2)(a) I strike them out.

[12]     There is a significant overlap between the two sets of surviving proceedings brought against Mr McNeilly and against Stuff Limited. There is much factual repetition, and the causes of action are almost a mirror image. It seems inevitable that at some stage those two sets of proceedings will appropriately be joined.

[13]     Further, the extravagant nature of the pleadings is such that applications to strike out Ms Davis’ claim either in part or in full are highly likely. For now, I am of the view that Ms Davis, as a litigant in person, ought to be given the opportunity to regularise her pleadings. I am not satisfied that proceedings CIV-2024-412-00039 and CIV-2024-412-00047 are an abuse of process.

Result

[14]I make orders as follow:

(i)Proceeding CIV-2024-412-00044 is an abuse of process and is struck out.

(ii)Proceeding CIV-2024-412-00051 is an abuse of process and is struck out.

(iii)Proceeding CIV-2024-412-00039 is to be accepted for filing.

(iv)Proceeding CIV-2024-412-00047 is to be accepted for filing.

[15]     In accordance with r 5.35B(3), I record that Ms Davis has a right of appeal against this decision.

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

Eaton J

Copy to:
A I D Davis, Dunedin