Davis v Registrar of the High Court at Dunedin

[2025] NZHC 2493

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2025-412-88

[2025] NZHC 2493

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 District Court proceeding

[2]                 In 2023, the applicant commenced a defamation proceeding against Emma Hogg, an employee of Te Pūkenga – New Zealand Institute of Skills and Technology

DAVIS v THE REGISTRAR OF THE HIGH COURT AT DUNEDIN [2025] NZHC 2493 [29 August 2025]

(Te Pūkenga). The proceeding was determined in Miss Hogg’s favour.1 Costs were awarded to Miss Hogg.2 On 15 May 2024, Judge Turner made an order without notice amending the name of the defendant to Te Pūkenga.3

The appeal is filed

[3]                 The applicant exercised her right to file (on 11 June 2024) a notice of appeal in relation to Judge Turner’s order.

[4]                 In her notice of appeal the applicant asserted the order (changing the defendant’s name) should not have been made because there appeared to be an illegal litigation funding arrangement between Te Pūkenga and Miss Hogg. As well as seeking an order allowing the appeal, the applicant recorded she was seeking declarations from the High Court that champerty had been committed in the District Court proceeding and that the District Court had erred in law when failing to recognise the champerty.

[5]                 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.

[6]                 On 19 March 2025, after a number of procedural delays in relation to the applicant’s appeal, the Deputy Registrar issued a notice of case management conference. The notice stated the conference would be convened on 8 May 2024 before Associate Judge Paulsen. By its nature, the case management conference was to be a chambers hearing.

The case management of the appeal

[7]The conference was held by AVL.

1      Davis v Hogg [2023] NZDC 26980.

2      Order dated 23 February 2024.

3      Davis v Hogg DC Dunedin CIV-2023-012-425, 15 May 2024 (Minute).

[8]                 Following the conference Associate Judge Paulsen issued a Minute dated     9 May 2025 making four case management directions:

(a)the appeal was adjourned to be called again on 5 June 2025;

(b)Te Pūkenga was to be joined as a respondent to the appeal if it wished to do so by filing and serving a notice of appearance before the next hearing date; and

(c)any applications the parties wished to make to stay or strike out the appeal should be the subject of formal application filed and served before the next hearing; and

(d)each party was to file and serve by 2 June 2025 a memorandum of the directions they wished the Court to make when the matter was next called.

[9]                 The matter was next called at a conference on 5 May 2025 as scheduled, this conference being held by Associate Judge Lester. That conference is not the subject of the applicant’s review application.

The review application

[10]              By her statement of claim the applicant refers to the appeal proceeding as one in which declarations are sought.

[11]The applicant seeks relief against the Registrar being:

(a)issuance of a declaration declaring the Registrar … is liable in misfeasance in public office;

(b)issuance of declarations declaring the Registrar … has breached:

(i)the New Zealand Bill of Rights Act 1990 (NZBORA), s 27(1); and

(ii)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 a 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 Paulsen 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:4

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 initially identifies appropriate orders for a successful appeal, namely that the appeal be allowed and the judgment below set aside. What the notice of appeal goes on to do, however, is to seek declarations, mandamus and prohibition. Those matters are not appropriate relief on an appeal. If remedies such as those 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.

4      Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [5.35A].

[17]              Rule 2.1(1) 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 Paulsen’s attendances have solely been by way of case management, with directions made purely 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