Ericson v District Court at Wellington

[2013] NZHC 516

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-2598 [2013] NZHC 516

UNDER  the Judicature Act 1908, the Judicature Amendment Act 1972, The Declaratory Judgments Act 1908 and the New Zealand Bill of Rights Act 1990

IN THE MATTER OF     an application for review

BETWEEN  JOHN FREDERICK ERICSON Plaintiff

ANDTHE DISTRICT COURT AT WELLINGTON

First Defendant

ANDCHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Second Defendant

Hearing:         8 March 2013

Appearances: Plaintiff on own behalf

D N Soper for the First Defendant
D J Perkins and H J Sims for the Second Defendant

Judgment:      18 March 2013

RESERVED JUDGMENT OF GODDARD J

This judgment was delivered by me on 18 March 2013 at 4 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Crown Law, PO Box 2858, Wellington 6140

Copy To:       J F Ericson, Unit 6, Private Bag 47901, Trentham, Upper Hutt 5143

ERICSON V DISTRICT COURT AT WELLINGTON HC WN CIV-2012-485-2598 [18 March 2013]

Introduction

[1]      Mr Ericson (the plaintiff) has applied to review a decision of a District Court Judge not to issue summonses in the context of a private prosecution.  The first defendant, the Wellington District Court, has filed an application to strike out the proceeding.  The second defendant is the Chief Executive of the Department of Corrections.  This judgment determines the strike out application.

Background

[2]      Mr Ericson is serving a life sentence.  On 4 September 2012 he filed criminal informations in the Wellington District Court alleging that Mr Howard Woledge, Prison Manager, conspired to defeat the course of justice by:

Instructing the removal, tampering, alteration, misuse, misappropriation, wilful damage, and possible destruction of police disclosure files for the coming appeal against conviction. Withheld disclosure. Violation of the Criminal Disclosure Act 2008. Violation of Legal Professional Privilege.

[3]      Mr Ericson filed a similar criminal information against Mr Trevor Riddle, Inspector of Prisons, alleging the crime of conspiring to defeat the course of justice, in that he:

Did  manufacture  a  document  of  investigation  dated  22  March  2012  to conceal document destruction in 2006 and 2007 by Mr Howard Woledge and the Rimutaka Prison Search Team at Wellington Prison.

[4]      Mr Ericson addressed these allegations in depth before me in the High Court. It appears his sense of grievance arises from his belief that Mr Woledge withheld and possibly destroyed parts of police disclosure files sent to him at the prison, and from Mr  Riddle’s  subsequent  investigation  and  report  on  his  complaint  regarding Mr Woledge.  Mr Ericson alleged that Mr Riddle had spoken with Mr Woledge and then written a report dismissing the matter, without consulting him.

[5]      On 8 October 2012 Judge Mill found that Mr Ericson’s informations could not succeed and no summonses should be issued for the defendants on two grounds: first, because the plaintiff had filed the informations as summary proceedings and the crime of conspiring to defeat the course of justice cannot proceed in a summary

not exercise his discretion to summon the defendants because the plaintiff had not alleged any agreement between the defendants.  Agreement is a necessary ingredient of conspiring to defeat the course of justice.1

Submissions

[6]      In support of his application for judicial review of Judge Mill’s decision, Mr Ericson submitted that Judge Mill had denied him his right to lay charges under the Crimes Act 1961 by declining to issue a summons against Mr Woledge and Mr Riddle.   He further submitted that his right to justice under s 27 of the New Zealand Bill of Rights Act 1990 had been infringed and Judge Mill’s decision to determine the matter on the papers infringed his right to be heard.

[7]      In  support  of  the  first  defendant’s  application  for  strike  out  Mr  Soper advanced  three  grounds.  The  first  was  that  the  claim  does  not  disclose  any reasonably arguable cause of action because:

(a)      Mr Ericson has in fact exercised his right to lay informations against Mr Woledge and Mr Riddle pursuant to s 13 of the Summary Proceedings Act 1957;

(b)      Judge Mill had a discretion whether or not to issue summonses;2

(c)       Mr Ericson’s right to justice under s 27 of the New Zealand Bill of Rights Act has not been infringed by the Judge’s decision to determine the matter on the papers because there is no procedural entitlement to a hearing in the Summary Proceedings Act; and

(d)      Judge Mill’s did not err in law in his decision to not issue a summons

under s 150 of the Summary Proceedings Act because the fact that the plaintiff  failed  to  lay  his  informations  indictably  was  sufficient

1      Brogden v Arnold [2008] NZAR 536 at [24].

2      Summary Proceedings Act 1957 ss 19(1) and 150.

formed between Mr Woledge and Mr Riddle, or by one of them and any other party.

[8]      The second ground was that the statement of claim contained unintelligible pleadings to such an extent that it was likely to cause prejudice and delay.

[9]      The third ground was that the claim is frivolous and vexatious because the private prosecutions (and also this judicial review proceeding) are further collateral challenges to the plaintiff ’s convictions.

The jurisdiction to strike out a statement of claim

[10]     The jurisdiction to strike out pleadings is set out in r 15.1 of the High Court

Rules, which provides:

15.1     Dismissing or staying all or part of a proceeding

(1)      The Court may strike out all or part of a pleading if it –

(a)      discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleadings;

(b)      is likely to cause prejudice or delay; (c)     is frivolous or vexatious; or

(d)      is otherwise an abuse of the process of the court.

[11]     The relevant principles to be applied in considering an application to strike out a proceeding were summarised by the Court of Appeal in Attorney-General v Prince & Gardner,3  and by the Supreme Court in Couch v Attorney-General.4   The

following principles apply:5

3      Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA).

4      Couch v Attorney-General [2008] NZSC 45 at [33].

5      McGechan on Procedure (online looseleaf ed, Brookers) at [HR 15.1.02(1)].

and without foundation.

(b)	The cause of action must be clearly untenable.  It is inappropriate to strike out a claim summarily unless the court can be certain that it
cannot succeed.
(c)	The jurisdiction is to be exercised sparingly, and only in clear cases. This reflects the Court’s reluctance to terminate a claim or defence
short of trial.
(d)	The  jurisdiction  is  not  excluded  by  the  need  to  decide  difficult
questions of law, requiring extensive argument.
[12]	The	same principles apply to an application to strike out a judicial review

proceeding.6

Discussion

Are the pleadings unintelligible?

[13]     I mention this matter first, because its answer will depend on the nature of the claim itself, and on whether the pleadings are a collateral challenge to Mr Ericson’s conviction.  It is not fatal to Mr Ericson’s claim that he has failed to identify with any degree of particularisation any cause of action or grounds upon which a review should be upheld. Where a defect in a pleading challenged as disclosing no reasonably arguable cause of action can be cured by amendment the Court will

almost  always  permit  amendment  rather  than  striking  the  pleading  out.7      The

question is whether the appeal is a “total write-off” or it is one which is capable of

effective repair.8

6      Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR

53 (CA).

7      McGechan on Procedure (online looseleaf ed, Brookers) at [HR 15.1.08(1)].

8      Marshall Futures Ltd v Marshall [1992] 1 NZLR 316, per Tipping J.

Does the statement of claim disclose a legal basis for the claim?

[14]     Under this head, Mr Ericson submitted that Judge Mill had denied him the right  to  lay  charges  under  the  Crimes Act  1961.    But  as  Mr  Soper  submitted, Mr Ericson did lay charges.  It was then up to Judge Mill to consider those charges and take appropriate action within the confines of his judicial discretion, which he did.

[15]     Mr Ericson claimed that his right to justice under s 27 of the New Zealand Bill  of  Rights  Act  1990  was  infringed.    Mr  Soper  correctly  pointed  out  that Mr Ericson had not identified how his right had been denied to him, or how s 27 is engaged in this case. This judgment therefore proceeds on the basis that this claim relates to Mr Ericson’s allegations that the Judge erred by determining the issue on the papers.

[16]     The question is whether the principles of natural justice were infringed by Judge Mill’s decision to determine the issue on the papers?  What is procedurally fair depends on the facts of each case.9    Relevant factors will include the rules under

which the tribunal is acting and the nature of the inquiry or determination.10   In this

regard, the comments of Brewer J in Burchell v Auckland District Court are apt and assist in the conclusion that natural justice did not require Judge Mill to conduct a hearing with Mr Ericson:11

[I]t is the Judge’s or Registrar’s responsibility to inform himself or herself of all the material relevant facts in order to make a decision. The Judge or Registrar can hear from the informant if he or she deems it necessary for that purpose. But there is no right to a hearing.

The Summary Proceedings Act does not provide a procedural entitlement for a hearing, and there is no case law to support such a proposition. It can be entirely correct to determine the issuing of summonses on the papers.

[17]     Furthermore, I agree with Mr Soper that to impose a requirement on the

District Court to conduct a hearing in every private prosecution would place an onerous administrative burden on the Court.  Put simply, Mr Ericson has been in fact

9      Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 at 718.

10     Russell v Duke of Norfolk [1949] 1 All ER 109 at 118.

11     Burchell District Court [2012] NZHC 3413 at [181]-[182].

heard in accordance with s 27 of the New Zealand Bill of Rights Act by due consideration of the papers.

[18]     Accordingly,  I conclude  that  the plaintiff has  not  disclosed  a  reasonably arguable cause of action.

Is the claim an abuse of process?

[19]     For the sake of completeness, I will also consider whether this claim is an abuse of process.  The onus is on the first defendant to show that the proceeding was brought for an improper purpose.  It is a heavy onus.12   Mr Soper referred to the following factors in support of his argument:

(a)       Mr Ericson was denied special leave to appeal;

(b)Mr Ericson has brought a number of habeus corpus applications.  In dismissing the applications, the courts have observed that the applications were collateral attacks on his convictions;

(c)      As  Clifford  J  observed  in  Ericson  v  Superintendent  of  Rimutaka Prison,13  the proper way to address the issues of non-disclosure that Mr Ericson seeks to pursue through his private prosecutions is to consider a further application to the Court of Appeal for leave to appeal his conviction.

[20]     Mr Soper then referred to Slavich v Judicial Conduct Commissioner & Ors14 in which the court held that attempts to file private prosecutions as a means of collateral challenge to a conviction are an abuse of process and similarly, attempts to judicially review stay decisions of the private prosecutions are an abuse of process.

[21]     Given Mr Ericson’s litigation history, together with Clifford J’s comments and what I perceive to be the source of Mr Ericson’s grievance, I am satisfied that

12     McGechan on Procedure (online looseleaf ed, Brookers) at [HR 15.1.06(4)].

13     Ericson v Superintendent of Rimutaka Prison [2012] NZHC 210 at [14].

14     Slavich v Judicial Conduct Commissioner & Ors HC Hamilton CIV-2010-419-975, 14 July

2011.

this is a collateral challenge to Mr Ericson’s convictions and should therefore be struck out as an abuse of process.   Mr Ericson has the option of approaching this issue properly by filing an application to the Court of Appeal for leave to appeal his conviction.

Error of law

[22]     For the sake of completeness I note that Judge Mill did not make any error of law in coming to his decision.  The issue of summons is discretionary and every discretion must be exercised in accordance with all legal principles that apply to that discretion.  In considering whether or not to issue a summons he was required to ascertain whether the allegation is an offence known to the law and if so, whether the essential ingredients of the offence are prima facie present; that the offence alleged is not “out of time”; that the court has jurisdiction; and whether the informant has the necessary authority to prosecute.   In addition he should also consider whether the

allegation is vexatious.15

[23]   Judge Mill concluded that the informations failed at the first of the considerations he was required to consider because the essential elements of the crime for conspiring to defeat the course of justice were not present.  Mr Ericson did not make an allegation that Messrs Woledge or Riddle agreed, either with each other or with any other party, that these actions would be undertaken for a purpose aimed

at defeating the course of justice. 16

Conclusion

[24]     The application to strike out the statement of claim is granted. It is struck out accordingly.

Goddard J

15     R v West London Metropolitan Stipendiary Magistrate, Ex parte Kahn [1979] 1 WLR 933

(QBD) at 935-396, endorsed by the Court of Appeal in Daemar v Soper [1981] 1 NZLR 66 (CA)

at 69.

16     Ericson v Wooledge and Riddle DC Wellington CRI-2012-085-5066, 8 October 2012 at [16].