Foster

[2019] NZHC 373

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

[2019] NZHC 373

IN THE MATTER OF An intended application by NEIL FOSTER

On the papers
Judgment:	7 March 2019

JUDGMENT OF MALLON J

Introduction

[1]    On 22 January 2019 Mr Foster sought to file a proceeding in the High Court at Wellington. The registry rejected the proceeding because it did not comply with r 5.11 and Form G1 of the High Court Rules 2016. Specifically, the cover page of the proceeding did not specify the legislation under which his claim was made, did not provide an address for himself and nor state his occupation, did not provide the full name and address of the intended defendants, and did not include the registry place in te reo Māori.

[2]    Mr Foster was given the opportunity to fix these issues but decided not to do so. Instead, Mr Foster has applied for review of the decision to reject his proceeding. He says he does not recognise the Māori language in any form. He also says that he has tried ten ways of finding the surnames of two of the intended defendants but has had no success. If I find in favour on Mr Foster’s application, the Registrar has asked me to consider the proceeding under r 5.35A of the High Court Rules.

RE FOSTER [2019] NZHC 373 [7 March 2019]

The proceeding

[3]    Mr Foster’s proposed statement of claim is against the New Zealand Racing Board (as first respondent), “Kit, refused to give surname” (as second respondent) and “Charlie, refused to give surname” (as third respondent). The address stated for all three proposed defendants is “c/o TAB, Trax Bar, Wellington”. The “waistband” on the cover sheet states that it is a statement of claim under s 9 of the Declaratory Judgments Act 1908.

[4]Mr Foster alleges the following:

1)On the 31^st of August 2018 I turned up at the TAB at the Wellington Railway Station where I have been going to every Saturday for approximately the last 5 years, I bought a beer and went to sit down at a table, I was approached by an employee by the name of Olly.

2)I was told that I was no longer welcome and that I would not be served by the staff anymore, there was no reason given for this.

3)I then went to the TAB in Courtenay Place and put my bets on I saw the defendant Kit serving at one of the TAB machines and I approached him and I said I know you’re behind the issues I am having at the Trax TAB, he denied this and I replied that I will be taking legal action to remedy the problem which he has caused.

4)I made numerous calls to the TAB head office and I had various conversations with management at head office, the person I spoke to said that Kit and Charlie were behind the decision not to serve me.

5)The reason I was given to not be serve[d] was that Kit said I was intoxicated sometimes, the fact is that the TAB does not serve alcohol it is the Trax bar staff who do, I have never had any issues in the Trax bar or with their staff.

6)The next part is to do with Charlie, he says that I was rude to a person that comes into the TAB, the fact is there is a person who comes in to the TAB and I told him on one occasion [he] was to stay away from me, I am not the only person to be harassed by this person.

7)I know that there two people Kit and Charlie have conspired under section 115 of the Crimes Act 1961 to make false accusations

[5]His intended proceeding seeks that he be:

(a)“allowed to be able to go into the TAB at the Trax Bar”;

(b)“treated as any other person does as per the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990”; and

(c)compensated for distress, grief, harassment, embarrassment and breach of his human rights, bill of rights and civil liberties.

The relevant rules

[6]    Rule 5.11 of the High Court Rules, under which Mr Foster’s statement of claim was rejected, states as follows:

5.11     Heading on statement of claim and counterclaim

(1)The heading of a statement of claim, and of any counterclaim intended to be served upon a person other than the plaintiff, must show—

(a)the number of the proceeding:

(b)the registry of the court in which it is filed, in both English and te reo Māori (see form G 1 in Schedule 1, which sets out the name, in both languages, of each registry of the court):

(c)if the statement of claim or counterclaim seeks relief in reliance on jurisdiction conferred by an enactment, the title of that enactment:

(d)if the relief sought in the statement of claim or counterclaim relates to the validity or interpretation of a will, the name of the testator:

(e)if the relief sought in the statement of claim or counterclaim relates to the validity or interpretation of an instrument other than a will, the name of the maker of, or the names of the parties to, the instrument and its date:

(f)if the relief sought in the statement of claim or counterclaim relates to the validity or interpretation of an enactment, the title and the relevant section or sections of the enactment:

(g)the full name, and the place of residence and occupation, of every plaintiff and defendant, so far as they are known to the party presenting the document for filing.

(2)Form G 1 must be used for the purposes of subclause (1).

…

[7]    Rule 2.11 permits an affected party to an intended proceeding to apply to a Judge to review a Registrar’s refusal to file a document tendered for filing. On such an application the Judge may make any orders she thinks just.

[8]    Rule 5.2(1) provides that a document which does not comply with, amongst others, r 5.11 may be received for filing only by leave of a Judge or the Registrar.

[9]    A High Court Judge also has inherent jurisdiction to control the court’s processes in the interests of justice by directing that a document should or should not be accepted for filing.1

[10]   Rule 5.35A provides that a Registrar may refer proceedings to a Judge where the Registrar believes that it is plainly an abuse of process of the court. Rule 5.35B provides that a Judge, if satisfied that the proceeding is plainly an abuse of process of the court, may, amongst other things, make an order striking out the proceeding before it is served, or may make orders or directions aimed at ensuring the proceeding is conducted according to the rules.

[11]Rule 15.1 provides a Judge with further powers to dismiss or stay proceedings.

My assessment

[12]   Mr Foster’s intended proceeding does not comply with r 5.11(1)(b). Mr Foster says this is because he does not recognise the language. While that is a matter for him, the High Court’s rules are expected to be complied with if he wishes to pursue a claim in this Court. The requirement in r 5.11(1)(b) is there for good reason - it gives recognition to te reo Māori as an official language of New Zealand and as a taonga of iwi, Māori and New Zealand society generally.2 It should be complied with as a matter of course.

[13]   That said, rather than requiring Mr Foster to amend his intended proceeding to comply with this requirement, there is another course which could be taken were there no other problems with the intended proceeding. I could waive the requirement in this

1      See, for example: Muir v Commissioner of Inland Revenue [2017] NZHC 2082 at [21].

2      See: Te Ture mo Te Reo Māori 2016 or the Māori Language Act, ss 4 and 5.

instance but on the basis that it would not prevent the Court or other parties from including the registry place in te reo Māori in documents in the proceeding.3 This is the course I would take but for the other problems with the proceeding.

[14]   I  consider  that  Mr  Foster’s  intended  proceeding  does  not  comply  with  r 5.11(1)(c). The Declaratory Judgments Act 1908 is included in the waistband rather than the heading, and the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 are included in the relief but not in the heading. Having said that, this non- compliance is not material because it does not give rise to any prejudice to the court or the intended defendants because the enactments relied on are clearly stated elsewhere in the proceeding.4

[15]   Mr Foster’s intended proceeding does not comply with r 5.11(1)(g) in that it does not state in the heading his occupation and address. This non-compliance is also not a material one because it does not give rise to prejudice to the Court or the intended defendants. This is because the memorandum at the end of the statement of claim provides details of Mr Foster’s address for service.

[16]   Mr Foster’s intended proceeding does not comply with r 5.11(1)(g) in relation the address of the New Zealand Racing Board. Its head office is in Petone. The defect is not particularly material because the correct address is readily available and readily remedied. Further, it appears the claim relates to the TAB within the Trax Bar rather than the Trax Bar as a whole. If that is so, the New Zealand Racing Board is potentially the appropriate defendant for a claim that his exclusion from that TAB outlet is unreasonable under the New Zealand Bill of Rights or the Human Rights Act. If, however, the claim is against the actions of Trax Bar, then the New Zealand Racing Board is not the appropriate defendant.

[17]   Mr Foster’s intended proceeding arguably complies with r 5.11(1)(g) in relation to Kit and Charlie because he says he has endeavoured to find out the last

3      So that r 5.12 (which states that the heading of a judgment or order must be the same as the heading on the statement of claim or other document by which the proceeding was commenced) would not apply.

4      See, for example, Cooke v Department of Health HC Auckland CIV 2007-404-5047, 15 October 2007, Judgment of Asher J at [30(c)].

name of Kit and Charlie but has been unable to do so. Mr Foster has not set out the details of his endeavours although I infer from his intended statement of claim and his review application that this likely involved asking Kit and Charlie in person for their surnames and/or asking the TAB head office. The more important issue concerning Kit and Charlie is that the allegation against them is one of conspiracy under s 115 of the Crimes Act.5 An individual cannot bring a civil proceeding in the High Court for alleged criminal offending. If the proceeding is accepted for filing, it would be struck out under r 5.35B and/or r 15.1 because of this.

[18]   In summary, I consider Mr Foster’s intended proceeding was correctly rejected by the registry at the time it was presented because of the non-compliance with        r 5.11(1)(b), (c) and (g). I would be prepared to grant leave for the pleading to be accepted for filing but for the more material defect. That material defect is that the claim against Kit and Charlie for an alleged criminal conspiracy cannot be made in a civil proceeding in the High Court. It would be struck out if filed with this claim.

[19]   Mr Foster may reflect on these matters and consider whether he wishes to amend his intended pleading so that it does not include a claim that must be struck out under r 5.35B or r 15.1. If he does wish to do so, he should take the opportunity to amend the address stated for the New Zealand Racing Board if it is the party with responsibility for the actions he complains of. In the meantime, I consider it is not appropriate to grant leave for the proceeding to be accepted for filing.

[20]   A less difficult course of action might be for Mr Foster to access a TAB other than the one at the Trax Bar. That is because it appears that he has not been excluded from all TABs, as his intended pleading records that he was able to place a bet at a TAB on Courtenay Place. At some point in the future, depending on what has given rise to Mr Foster being told that he was not welcome and would not be served at the Trax Bar TAB, Mr Foster might be informed by Trax Bar or the New Zealand Racing Board, whichever is appropriate, of the standards of behaviour he must adhere to and for him to be given the opportunity to show that his behaviour will be acceptable so that he might return to that establishment at some point.

5      Mr Foster also alleges, in his review application, that they have conspired to defeat justice under s 116 of the Crimes Act.

Result

[21]   The application for review is declined. The registry is not to accept for filing the intended proceeding in its current form. However it is open to Mr Foster to amend his intended proceeding so that it can be accepted for filing and so that it does not include the claim against Kit and Charlie that must be struck out.

Mallon J