Edwards v Hutt Valley District Court
[2020] NZHC 1388
•18 June 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-113
[2020] NZHC 1388
BETWEEN JOHN ANTHONY EDWARDS
Plaintiff
AND
HUTT VALLEY DISTRICT COURT
Defendant
WESTPAC NEW ZEALAND LIMITED
Party Directed to be Served
Hearing: 17 June 2020 Appearances:
J A Edwards in person
L Dittrich for the Defendant
M Robinson for the Westpac New ZealandJudgment:
18 June 2020
JUDGMENT OF COOKE J
[1] This proceeding received its first call before the Court on 17 June 2020 before me. Mr Edwards appeared in person, Ms Dittrich appeared for the District Court and Mr Robinson for Westpac New Zealand Limited (Westpac). By memorandum dated 8 May 2020 Mr Robinson had set out the procedural history of Mr Edwards various applications to the District Court, High Court and Court of Appeal. He contended that the current proceedings were an abuse of process and that they should be struck out in the Court’s inherent jurisdiction.
[2] I asked Mr Edwards what his response was at the hearing. He explained that his position was set out in an amended statement of claim dated 13 May 2020 which he had filed and served. He advised he did not wish to address me further on the topic, or debate the issues, but did say he had a further short document to file that he wished
EDWARDS v HUTT VALLEY DISTRICT COURT [2020] NZHC 1388 [18 June 2020]
to have taken into account in addition to his amended statement of claim, and I gave him leave to do so. When I asked him whether the proper course was for me to consider what had been filed on behalf of all parties and make a decision on the papers he was agreeable, although he asked that his substantive application in the amended statement of claim also be so considered. Subsequent to the hearing Mr Edwards filed the short additional document he had referred to which was entitled “Text of oral submission by applicant handed up to Court on 17 June 2020”.
[3] A little later in the day he filed a further document entitled “In Judicial Review: Amended statement of claim, Memorandum of the Court 17 June 2020” stating:
Due to an incomprehension by me, and possibly a misunderstanding by His Honour, I ask that the concluding decisions of the Court on the day be set aside and disregarded. …
Background
[4] Part of the background to the current proceeding was set out in my judgment of 31 May 2018.1 I said:
[3] Mr Edwards is a customer of Westpac. The proposed private prosecution arises from actions surrounding the bankruptcy of Mr Edwards, and in particular from funds subsequently deposited with Westpac by the Official Assignee which were surplus to the debts that were owing. Mr Edwards’ complaints relate to how that money was received, and then dealt with by Westpac. The amount deposited by the Official Assignee with Westpac appears to have been $74,247.41.
[4] Mr Edwards has initiated a number of proceedings and complaints in relation to this matter. On 30 May 2016, he sought to file a charging document with the District Court commencing a private prosecution. This document was rejected by a District Court Judge. On 1 June Mr Edwards tried again. This document was rejected by Judge Mill in a judgment dated 23 June 2016. Mr Edwards initially challenged this decision by way of judicial review (CIV 2016-485-526) but when the matter came before Collins J Mr Edwards advised he wished to discontinue the proceedings, and the Court then granted him leave to do so, and struck the proceedings out.2 Mr Edwards also commenced civil proceedings against Westpac (CIV 2017-485-735), but he then discontinued them on 24 October 2017.
[5] Between 30 October and 6 November 2017 Mr Edwards then filed further charging documents, or replacement charging documents, seeking to commence private prosecutions for alleged offences against ss 116, 219(1)(b), 220 and 240 of the Crimes Act 1961.
1 Edwards v District Court at Lower Hutt [2018] NZHC 1266.
2 Edwards v District Court at Lower Hutt [2017] NZHC 2036.
[6] On 8 November 2017, these were not accepted for filing by Judge Tomkins. …
[5] Mr Edwards challenged the decision of Judge Tomkins by way of judicial review. I heard, and then dismissed that challenge, and ordered costs in Westpac’s favour on a 2A basis in my judgment of 31 May 2018.3 The last paragraph of that judgment said:
[21] I also record that during the hearing Westpac enquired, through the Court, what Mr Edwards needed to have the ongoing disputes between him and Westpac resolved. Counsel advised that Westpac has been trying to return Mr Edwards’ money to him. In response, Mr Edwards indicated that he needed to be awarded damages, including special damages, and that the amount was growing, but that it involved millions.
[6] Mr Robinson further advises that Mr Edwards filed a notice of appeal to the Court of Appeal appealing my judgment, but it was deemed to be abandoned when Mr Edwards did not comply with timetable requirements set out in the Court of Appeal (Civil) Rules 2005.
[7] Mr Edwards also commenced a further civil proceeding against Westpac in relation to the bank account on 20 February 2019, subsequent to my judgment dismissing his juridical review claim. By judgment dated 5 September 2019 this was struck out by Associate Judge Johnson.4 When doing so the Associate Judge said:
[13] By way of observation I add that it is apparent to me from the papers that Mr Edwards has been shown every courtesy by Westpac and that the organisation, through its officers, has done everything it could to assist him in dealing with whatever underlying concerns he may have.
[8] Mr Robinson further advises that a notice of appeal against the Associate Judge’s judgment was also lodged with the Court of Appeal, but again that appeal was deemed to be abandoned for failure to comply with the timetable requirements.
[9] It is against that background that the current judicial review proceeding brought by Mr Edwards is to be considered.
3 Edwards v District Court at Lower Hutt, above n 1.
4 Edwards v Westpac New Zealand Limited [2019] NZHC 2212.
Jurisdiction to strike out
[10] There are three sources of jurisdiction for the High Court to strike out a proceeding that is an abuse of process. The first is r 15.1 of the High Court Rules 2016 (the Rules), the second is pursuant to r 5.35B of the Rules, and the third is pursuant to the Court’s inherent jurisdiction.
[11] Applications under r 15.1 are the usual avenue by which such decisions are made, and are conventionally the source of inter-party hearings on such questions. But as r 15.1(4) provides it does not displace the Court’s inherent jurisdiction. In Siemer v Stiassny the Court of Appeal confirmed not only that this striking out power does not affect the inherent jurisdiction of the Court, but also that r 15.1 does not require an application to have been made.5 It upheld a decision of the High Court striking out proceedings in the inherent jurisdiction as an abuse of process.6
[12] Amendments in 2017 introduced rr 5.35A and 5.35B, allowing a Registrar to refer an apparently abusive proceeding to a Judge for the purposes of considering whether it should be struck out as an abuse of process.7 They provide a further avenue by which proceedings can be struck out as an abuse without putting the parties to the expense of addressing them. But the inherent jurisdiction still remains. The Court will not always be able to rely on counter staff to identify all proceedings that are apparently abusive. Neither should the fate of such proceedings, and the implications for defendants, turn on the assiduous efforts or otherwise of particular counter staff at the Registry.
[13] For these reasons it is appropriate for the Court to strike out proceedings when it is obvious that they are abusive, including when they are first placed before a Judge. In doing so the Court should consider the case in light of the requirements for determining when a proceeding is an abuse of process under rr 5.35B(2) and 15.1. It is a power that should be exercised sparingly, and only when it is manifestly unfair for defendants/respondents to be expected to respond to a proceeding, such that it is
5 Siemer v Stiassny [2011] NZCA 1 at [14]-[15].
6 At [13].
7 High Court Rules 2016Amendments Rules (No 2) 2017 (LI 2017/191), r 8.
necessary to stop the proceeding in its tracks in the interests of justice. It is reserved for obvious cases of abuse.
[14] It is also apparent that judicial review proceedings can be struck out as an abuse of process.8 When considering whether to do so the Court needs to be aware that judicial review is a fundamental right recognised by s 27(2) of the New Zealand Bill of Rights Act 1990. But that is not an absolute right, but rather a right to do so “in accordance with law”.9 The rights of the parties to be free from abusive proceedings are also relevant.
Application of these principles in the present case
[15] I am satisfied that the high threshold that must be met before a proceeding should be struck out as an abuse of process under the inherent jurisdiction is satisfied in the present case, and for this reason this proceeding should be struck out.
[16] The key reason is that Mr Edwards complaints in relation to Westpac have already been heard and determined by the Court. In Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd the Supreme Court described the relevant principle in the following way:10
[28] The principle of finality in litigation gives rise to a rule of law that makes conclusive final determinations reached in the judicial process:
Unless a judgment of a Court is set aside on further appeal or otherwise set aside or amended according to law, it is conclusive as to the legal consequences it decides.
The rule reflects both the public interest in there being an end to litigation and the private interest of parties to court processes in not being subjected by their opponents to vexatious relitigation. …
[17] Those principles apply to the application of rr 5.35A and 5.35B of the Rules.11 They are equally relevant to the application of the inherent jurisdiction in analogous circumstances.
8 Siemer v Registrar of the Supreme Court [2019] NZHC 2345.
9 At [5].
10 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 1804 (footnotes omitted).
11 See Rabson v Judicial Conduct Commissioner [2019] NZHC 2279 at [14]–[15].
[18] The amended statement of claim relied advanced by Mr Edwards challenges the decision of Judge Mill declining to accept the charging documents for his attempted private prosecution of Westpac. In the chronology of events set out in the passage of my earlier judgment quoted at [4] above, it was the second decision of the District Court declining to accept the private prosecution for filing. Mr Edwards challenged that decision by way of judicial review, but when that case was called before Justice Collins he advised that he did not wish to pursue it, and Justice Collins struck it out.12
[19] Mr Edwards did, however, pursue his subsequent judicial review challenge to the decision of the third District Court Judge to not to accept the charges for filing. The underlying content of the charges against Westpac was essentially the same. That was the proceeding heard and determined by me. I decided that the application for judicial review should be dismissed.13 Mr Edwards lodged an appeal against that decision, but did not pursue it, and it was deemed abandoned.
[20] This proceeding is an attempted re-litigation of proceedings that have already been determined. Indeed Mr Edwards has had three District Court Judges determine that his proposed private prosecution against Westpac should not be accepted for filing. He has then had two High Court Judges dismiss his challenges to those decisions. Yet he seeks to litigate, yet again, the decision of the second District Court Judge, and notwithstanding that Justice Collins has already dismissed his previous judicial review challenge to exactly the same decision by striking it out. On that basis this further challenge raises a matter that has already been considered by the Courts, and dismissed. It is an obvious abuse of process.
[21] Mr Edwards asked me to consider his claim on the merits, and to grant the relief he was seeking. For completeness I consider what he alleges. Mr Edwards raises the point that Judge Mill rejected his charging document without giving him an opportunity to be heard. He quotes extensively from the judgments of Woodhouse and Cooke JJ, as well as the Privy Council, in Re Erebus Royal Commission; Air New
12 Edwards v District Court and Anor [2017] NZHC 2036.
13 Edwards v District Court at Lower Hutt, above n 1.
Zealand Limited v Mahon (No 2).14 But the context of the Erebus Royal Commission case is entirely different. There is no such right to be heard in relation to a decision of a District Court Judge to determine whether charging documents should be accepted for filing to commence a private prosecution.15 The procedures to be followed under s 26 of the Criminal Procedure Act 2011 are set out in the section itself. On that basis alone Mr Edwards’ challenge could not succeed.
[22] In any event, as I say, whether or not there could have been any argument about that does not matter. The complaints Mr Edwards had have already been subject to judicial determination. It is an abuse to continually relitigate the same matter, even when a party wants to add a new argument not previously addressed by the Court.
[23] I have carefully considered whether there is any reason why Mr Edwards should be allowed to continue with the proceeding. That includes me carefully considering his request in the last of the documents filed by him that I rescind the procedural decision to consider the matter on the papers after hearing from the parties. There was no misunderstanding of the position at the hearing as Mr Edwards suggests. The only confusion caused arose when Mr Edwards stated that he had filed and served written submissions. But when I asked him further about that he explained that he was referring to the amended statement of claim, which is indeed a blend of pleading and argument. In any event I am satisfied there is no proper basis to allow these proceedings to continue, and that it would be fundamentally unfair to the respondents to expect them to respond to it further.
[24]These proceedings are accordingly struck out as an abuse of process.
Cooke J
14 Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (No 2) [1981] 1 NZLR 618 (CA), [1983] NZLR 662 (PC).
15 Vector Ltd v H Construction North Island Ltd (in receivership and liquidation) [2019] NZCA 215, [2019] NZAR 1127; and Goodman Fielder New Zealand Ltd v The District Court at Porirua [2019] NZHC 599, [2019] NZAR 489.
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