Davis v Robinson

[2024] NZHC 344

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2024-412-18

[2024] NZHC 344

BETWEEN

ARTEMIS INDIGO DELILAH DAVIS

Plaintiff

AND

DAVID P ROBINSON

Defendant

Hearing:	On the papers
Appearances:	Plaintiff in person
Judgment:	28 February 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 28 February 2024 at 9.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

[1]                 The plaintiff, Artemis Davis, has filed this proceeding against a District Court Judge, David Robinson.

DAVIS v ROBINSON [2024] NZHC 344 [28 February 2024]

[2]                 The proceeding has been referred to me under High Court Rules 2016, r 5.35A by Registry staff, for consideration under r 5.35B, on the grounds that the proceeding is plainly an abuse of the process of the Court.

Jurisdiction to address proceedings that are an abuse of the Court process

[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.1

[6]                 The power to strike out a proposed proceeding as an abuse of process under the Rules is to be exercised sparingly.2 In exercising this power, the Court should consider:3

(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.

1      Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220 at [20].

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

3      Mathieson v Slevin [2018] NZHC 1032, (2018) 25 PRNZ 116 at [6].

The proceeding

[7]                 The plaintiff’s proceeding has its genesis in a reserved judgment of the District Court. In that judgment Judge Robinson declined Ms Davis’ application for orders under s 19 of the Harmful Digital Communications Act 2015 which would require Stuff Ltd, and two of its staff members, to take down and disable public access to certain online articles regarding Ms Davis.

[8]                 In a thorough and carefully reasoned 140 paragraph judgment, the Judge largely declined Ms Davis’ application, albeit making two limited orders in her favour.

[9]                 Ms Davis is clearly unhappy with the judgment. The proceedings which she seeks to file in this Court plead 15 causes of action in defamation, as well as a cause of action in malicious falsehood and a claim of misfeasance in public office against Judge Robinson.

Are the proceedings an abuse of process?

[10]             I am readily satisfied, having reviewed the proceedings, that they are an abuse of process. The primary reason for this conclusion is that the Judge is entitled to judicial immunity from suit. The District Court Act 2016 provides, at s 23, that a District Court Judge “has the same immunities as a High Court Judge”.

[11]             A High Court Judge’s immunity from personal suit is found in the common law. As was said in the Attorney-General v Chapman:4

[54]    Judicial immunity is a common law doctrine.  Although its existence is now acknowledged in statute, its scope remains a matter of common law. It serves not the private interests of judges but the public interest in protecting their impartiality in judging by removing threats which could undermine it.

…

(footnotes omitted)

4      Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462.

[12]             In Siemer v Chief Justice of the New Zealand Supreme Court,5 the High Court affirmed the principle of judicial immunity citing Gazley v Lord Cook of Thorndon.6 In Gazley, citing Halsbury Laws of England, the Court affirmed that persons exercising judicial functions in a court are exempt from all civil liability. In Siemer claims against the Chief Justice and two other High Court Judges were struck out on the grounds of judicial immunity.

[13]             While in Attorney-General v Chapman, it was also said that judicial immunity is not absolute, it makes it clear the immunity is a wide-ranging protection. As Fisher J said in Harvey v Derrick, “A powerful case should be demanded before allowing aggrieved litigants to relitigate their cases by suing presiding judges.”7

[14]             While the proceeding refers to the judge as “act[ing] without jurisdiction”, there is nothing in the pleadings which supports this. While Ms Davis refers to the Employment Relations Authority as having exclusive jurisdiction to make determinations about employment problems (and by implication the judge made such a determination), it is clear the judge was considering Ms Davis’ application for orders under the Harmful Digital Communications Act which he clearly did have jurisdiction to decide. In any event, as the decision in Gazley said:8

The judicial immunity which is afforded a superior Court is not lost simply because the Court takes to itself a jurisdiction which on subsequent examination it did not have. That is not the law.

[15]             In the present case, Judge Robinson as a District Court Judge enjoys the same broad immunity from personal suit as a High Court Judge and I am satisfied that the proceedings should be struck out in their entirety on the grounds of judicial immunity. To proceed in the face of this impediment is, in my view, an abuse of process.

[16]             While that disposes of the matter, I make the following further observations. The proceedings are also amenable to be struck out on the grounds that they are an abuse of process in that they seek to challenge the correctness of the Judge’s decision

5      Siemer v Chief Justice of the New Zealand Supreme Court HC AK CIV-2009-404-8435.

6      Gazley v Lord Cook of Thorndon [1999] 2 NZLR 668 (CA).

7      Harvey v Derrick [1995] 1 NZLR 314 (CA), at 336.

8      Gazley v Lord Cook of Thorndon, above n 6, at 682.

where a clear right of appeal was available. The proper course would have been to pursue appeal rights, not to proceed against the Judge in defamation, malicious falsehood or misfeasance in office. As was said in Attorney-General v Chapman:9

[193] The final reason supporting judicial immunity … is the existence within the justice system of adequate rights of appeal, rehearing and review.

[17]             Similarly, I consider the proceedings are an abuse of process in that the proceedings are (as Ms Davis’ proceedings were described in the District Court), “prolix, unfocussed, repetitive and in several respects advanced matters that were plainly irrelevant or unarguable”.10

[18]             By way of illustration, Ms Davis took issue with conclusions in the judgment that cannot on their face, bear defamatory meanings. For example, the Judge described the exchange of messages between a café owner and Ms Davis as being “more consistent with a forthcoming work trial”. Ms Davis’ pleadings in respect of that statement are as follows:

Chase Level 1 Imputations

35.The defendant’s publication of the words “The exchange is more  consistent with a forthcoming work trial” bear the following Chase level 1 imputations at common law:

35.1Guilt to an allegation of fraud;

35.2guilt to an allegation of perjury;

35.3guilt to an allegation of abuse of process;

35.4a finding confirming an allegation of insanity, and

35.5a finding confirming retardation of the mind.

Chase Level 2 Imputations

36.The words “The exchange is more consistent with a forthcoming work trial” bear Chase level 2 imputations at common law, with those defamatory imputations being:

36.1allegation of grounds for suspicion of fraud;

36.2allegation of reasonable grounds for suspicion of perjury;

9      Attorney-General v Chapman, above n 4.

10 At [137].

36.3allegation of reasonable grounds for suspicion of abuse of process, and

36.4allegation of reasonable grounds for suspicion of insanity.

Chase Level 3 Imputations

37.The words “The exchange is more consistent with a forthcoming work trial” bear Chase level 3 imputations at common law, with those defamatory imputations being:

37.1allegation of probable cause to allege fraud;

37.2allegation of probable cause to allege perjury;

37.3allegation of probable cause to allege abuse of process, and

37.4allegation of probable cause to allege insanity;

PRAYER FOR RELIEF

38For the publication of the defamatory imputations identified in the above Cause of Action, I seek the following remedy from the High Court:

38.1A declaration that Judge D.P. Robinson is liable to me in defamation, and

38.2An order for damages to the amount of $100,000.00 (One Hundred Thousand New Zealand Dollars Only) for the publication of the imputations identified in Cause of Action 2.

[19]             Exactly the same format is used in respect of the pleadings in all 15 claims in defamation. The pleading is prolix and formulaic. It also makes scurrilous allegations, including of fraud, perjury, insanity and retardation. There is no attempt to provide balanced or focused pleadings. The same formulaic pleadings are used for the claim of malicious falsehood.

[20]             The last pleading, described as a claim of “misfeasance in office”, pleads this was committed by “negligently publishing the following words”. Misfeasance in office can never arise from mere negligence.11 Furthermore, one of the remedies sought is a “declaration that the defendant is liable to His Majesty King Charles the Third”. Such relief in favour of a non-party is untenable.

11     Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195 at [40].

[21]             Finally, the relief sought confirms the extravagant and undisciplined nature of the proceedings. Damages totalling $1,600,000 is sought, along with declarations of liability on the claims and “an injunction ordering the defendant to recuse from acting as a judge in any proceeding which I am a party to”.

[22]             I am satisfied by a large margin that these proceedings are an abuse of process and the named defendant should not be put to the trouble of responding to it.

[23]             Rule 5.35B(3) permits me to  strike  this  proceeding  out  without  giving  Ms Davis the opportunity to be heard. This section also requires I notify her of her right to appeal the decision. This right of appeal to the Court of Appeal must be filed within 20 working days of this decision.

Result

[24]             In terms of r 5.35A, I am satisfied that these proceedings are an abuse of process of the Court and, pursuant to r 5.35B(2)(a), I strike them out. I also direct that a copy of this decision be served on the respondent.

Copy to: Ms Davis Respondent