Fuller v District Court Judge Tremewan

[2023] NZHC 959

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-336

[2023] NZHC 959

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review

BETWEEN

PETER MALCOLM FULLER

Applicant

AND

DISTRICT COURT JUDGE L  TREMEWAN MINISTRY OF JUSTICE

Respondent

On the papers:	27 April 2023
Appearances:	Applicant in person
Date of judgment:	27 April 2023

JUDGMENT OF  JAGOSE J

This judgment was delivered by me on 27 April 2023 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Copy to:

Applicant

FULLER v DISTRICT COURT JUDGE L TREMEWAN [2023] NZHC 959 [27 April 2023]

[1]        Under r 5.35A(3)(a) of the High Court Rules 2016, the Registrar referred this proceeding to me as judicial review list judge, for consideration if “plainly an abuse of the process of the court”.

[2]        Mr Fuller’s 22 February 2023 statement of claim seeks judicial review of Judge L Tremewan’s decision in the District Court at Waitākere, declining him access to court documents. The decision was made under the District Court (Access to Court Documents) Rules 2017 (the Rules). Mr Fuller disputes its substance as wrong.

[3]        Requests to access District Court documents are to be determined in accordance with the Rules. No right of appeal against such a decision being addressed by any other enactment, a decision made under the Rules is subject to a party’s general right of appeal.1

[4]        I may strike out Mr Fuller’s claim and dismiss his proceeding if it is an abuse of process.2 An ‘abuse of the process of the court’ is “improper use of [the court’s] machinery”;3 use of that process “for a purpose or in a way significantly different from its ordinary and proper use”.4

[5]        It is an abuse of process to use judicial review procedures to seek to overturn decisions made within jurisdiction, or to circumvent appeal pathways.5 The Judge was entitled to make decisions under the Rules, from which appeal rights lie. Mr Fuller’s proceeding seeks to overturn her decision without pursuing its appeal.

[6]        Mr Fuller’s application for review is struck out as an abuse of process, and the proceeding is dismissed as serving no remaining purpose.

1      District Court Act 2016, s 124.

2      High Court Rules 2016, r 15.1.

3      Simon Goulding, DB Casson and William Blake Odgers Odgers on Civil Court Actions (24th ed, Sweet & Maxwell, London 1996) at [10.15] as cited in Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [87].

4      Attorney-General v Barker [2000] 1 FLR 759 (QBD) at 764.

5      Prescott v Police [2019] NZCA 380 at [18] (citing Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL); W v W [1999] 2 NZLR 1 (PC); and Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7), affirmed in Prescott v Police [2021] NZSC 18 at [8].

[7]         As my order is made without giving Mr Fuller an opportunity to be heard, he has the right to appeal my decision.6 As an appeal to the Court of Appeal as of right, for which the High Court Rules specify no time, any appeal must be brought within 20 working days after the date of my decision.7

—Jagose J

6      High Court Rules, r 5.35B(3).

7      Court of Appeal (Civil) Rules 2005, r 29(1AA) and (1).