Davis v Registrar of the High Court at Dunedin
[2025] NZHC 2491
•29 August 2025
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2025-412-86
[2025] NZHC 2491
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for review of an action of the Registrar of the High Court
BETWEEN
ARTEMIS INDIGO DELILAH DAVIS
Applicant
AND
THE REGISTRAR OF THE HIGH COURT AT DUNEDIN
Respondent
Hearing: On the papers Appearances:
Applicant in person
Judgment:
29 August 2025
JUDGMENT OF OSBORNE J
[1] The applicant has submitted for filing an application for judicial review. The application has been referred to me by the Registrar under r 5.35A High Court Rules 2016 for consideration as to whether an order should be made under r 5.35B.
Background
The Family Violence Act proceeding in the District Court
[2] In November 2024, a temporary protection order, made in the Family Court on 21 August 2024 against the applicant in this proceeding, was made final.
[3] In November 2024 there were two extant proceedings that had been set down for a submissions-only hearing in the Family Court on 17 July 2025.
DAVIS v THE REGISTRAR OF THE HIGH COURT AT DUNEDIN [2025] NZHC 2491 [29 August 2025]
[4] On 10 July 2025, the applicant filed a without notice application to stay proceedings.
[5] On 15 July 2025, Judge E Smith, in Chambers, issued a Minute declining any stay on a without notice basis.
The appeal is filed
[6] The applicant filed (on 17 July 2025) a notice of appeal, alleging an error by the Minute of 15 July 2025.
[7] In her notice of appeal, the applicant recorded she was seeking from the High Court an “Issuance of Declaration”, declaring the Family Court had erred in law.
[8] Under r 7.14(1) High Court Rules, the Registrar was then required to make arrangements for a case management conference and (under r 7.14(3)) to give notice of that date to everyone who had been, or was to be, served with a copy of the notice of appeal.
[9] On 17 July 2025, the Deputy Registrar issued a notice of date of case management conference. The notice stated the conference would be convened on 28 August 2025 before Associate Judge Lester. By its nature, the case management conference was to be a chambers hearing.
The review application
[10] By her statement of claim, the applicant refers to the appeal proceeding as one in which a declaration is sought.
[11]The applicant seeks relief against the Registrar, being:
(a)issuance of declarations declaring the Registrar … is liable in misfeasance in public office;
(b)issuance of declarations declaring the Registrar … has breached:
(i)the NZBORA, s 27(1);
(ii)the NZBORA, s 27(2);
(c)issuance of writ of Mandamus, ordering the Registrar … to reallocate a case management conference for [the appeal] to be set down before a competent judicial officer;
(d)issuance of writ of Prohibition, ordering the Registrar to immediately cease, and indefinitely desist from, allocating proceedings of a kind set out in the Senior Courts Act 2016, s 22(4), before Associate Judges; and
(e)an order for costs to be paid by the Registrar:
[12]The applicant, by her statement of claim, invokes:
(a)rule 2.1(3)(a) High Court Rules 2016, providing an Associate Judge does not have jurisdiction or powers in relation to the matters specified in s 22(4) Senior Courts Act; and
(b)section 22(4)(i) Senior Courts Act 2016, which precludes the making of rules conferring on Associate Judges jurisdiction and power in relation to a proceeding for (inter alia) a declaration.
[13]The applicant, by her statement of claim, asserts:
(a)Associate Judge Lester is incompetent to make determinations in respect of the appeal proceeding;
(b)the Registrar has acted with malice in scheduling the appeal proceeding to be determined by an Associate Judge;
(c)the Registrar breached s 27(1) NZBORA by conspiring to abrogate the applicant’s right to be heard by a competent judicial officer; and
(d)the Registrar breached s 27(2) NZBORA by conspiring to abrogate the applicant’s right to appeal in accordance with New Zealand law.
The application of rr 5.35A and 5.35B High Court Rules
[14] The way in which rr 5.35A and 5.35B operate is conveniently summarised by the authors of McGechan on Procedure:1
If a Registrar believes that a proceeding tendered for filing is plainly an abuse of the procedure of the Court, the Registrar must accept the proceeding for filing if it meets the formal requirements for documents, but may (without releasing the notice of proceeding for service) refer it to a Judge for consideration under r 5.35B. If the Judge is satisfied that the proceeding is plainly an abuse of the procedure of the Court the Judge may make an order or give directions to ensure that the proceeding is disposed of or proceeds in a way that complies with the Rules, including an order under r 15.1 that the proceeding be struck out or stayed. There is no requirement that a party have an opportunity to be heard before making such an order. As summarised by Churchman J in Boyd v Australia Federal Police [2023] NZHC 2358 at [4] these powers enable the Court to prevent misuse of its process when the procedure being adopted would be manifestly unfair to another party or would otherwise bring the administration of justice into disrepute. In exercising the power to strike out a proposed proceeding as an abuse (which ought to be exercised sparingly), the Court should consider whether it would be manifestly unfair to the respondent that they be required to respond, and 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.
Discussion
[15] The notice of appeal filed by the applicant is expressly a “notice of appeal”. What the notice of appeal goes on to do, however, is to seek a declaration. That is not appropriate relief on an appeal. If remedies such as declaration (or prohibition or mandamus) are to be sought, they must be commenced by way of a statement of claim either under the Judicial Review Procedure Act 2016 or at common law.
[16] The fact the applicant may have included in her notice of appeal a request for a declaration to be issued cannot affect matters relating to the case management of the appeal—that proceeding is to be case managed as an appeal and not as an application for a declaration.
1 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [5.35A].
[17] Rule 2.1(i) High Court Rules confers on an Associate Judge the jurisdiction and powers of a Judge in chambers—it is that jurisdiction and those powers the Associate Judge was exercising in this case.
[18] Once that is understood, it is clear the present judicial review proceeding plainly involves an abuse of the process of the Court. Associate Judge Lester’s attendances at the case management conference that was scheduled for 28 August 2025 were to be by way of case management, with directions to be made of a case management nature.
Result
[19]The application for review is struck out pursuant to r 5.35B High Court Rules.
[20]The applicant has a right to appeal this decision.
Osborne J
Copy to:
A I D Davis