Greer v Chief Executive, Department of Corrections

[2019] NZHC 980

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2017-485-372

[2019] NZHC 980

BETWEEN

ALAN IVO GREER

Plaintiff

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

First Respondent

PRISON MANAGER AT RIMUTAKA
Second Respondent

NATIONAL COMMISSIONER, DEPARTMENT OF CORRECTIONS

Third Respondent

On the papers:

Counsel:

Applicant in person

R S May and T G Bain for Respondents

Judgment:

7 May 2019

JUDGMENT OF CHURCHMAN J

Background

[1]                  The plaintiff is a serving prisoner. He commenced judicial review proceedings in relation to the respondents’ decision not to provide him with certain facilities that he required in order to assist him in conducting litigation.

[2]                  The matter came before Cooke J on 30 May 2018 in relation to an application for interim relief. That relief was declined and Cooke J observed that the pleadings appeared not to canvass what seemed to be the only reasonable cause of action

GREER v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS & ORS [2019] NZHC 980 [7 May 2019]

supporting the application. The plaintiff was directed to file an amended statement of claim within six weeks of the provision of further discovery by the respondents.

[3]                  The  plaintiff  did  not  comply  with  the  timetabling  directions  but  on     19 November 2018 filed an application for an order recalling Cooke J’s judgment in order to enable different discovery orders. He also sought joinder of the Office of the Ombudsman to these proceedings.

[4]                  Cooke J issued a further judgment on 5 February 2019. He declined to recall his earlier judgment and held that the application was an abuse of process because of the inappropriate language used by Mr Greer. He also indicated that there was no substance to the application, with the result that even if it were not an abuse of process, it would not have succeeded.

[5]                  Cooke J directed that the plaintiff should have a further opportunity to file a focused amended statement of claim. He warned the plaintiff that if he continued to use inappropriate language in documents filed, there was a possibility that the proceedings would be struck-out as an abuse of process.

[6]                  The matter came before me on 27 March 2019. I directed that the document filed by the plaintiff not be accepted for filing as it contained substantial abusive language and focused on unsubstantiated claims of criminal conspiracy. I directed that the Crown file submissions as to whether the proceeding should be struck-out as being an abuse of process.

Developments

[7]                  The plaintiff has not filed any further amended statement of claim. The respondents now seek to have the proceedings struck-out as an abuse of process.

Strike-out

[8]HCR 15.1(1) provides the Court may strike-out all or part of a pleading if it:

(a)discloses no reasonable cause of action; or

(b)is likely to cause prejudice or delay; or

(c)is frivolous or vexatious; or

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

[9]                  The legal principles to be applied on a strike-out application are clear and are set out in Attorney-General v Prince.1

[10]              The principles set out in Attorney-General v Prince apply in relation to judicial review proceedings.2

[11]              As identified by Cooke J, these proceedings have no realistic possibility of success. The plaintiff’s actions in continuing to make offensive allegations in the documentation filed at Court mean that these proceedings can be properly categorised as an abuse of the process of the Court.3

[12]              The plaintiff has now received warnings from four separate Judges as to the likely consequences of not removing gratuitous and offensive language from the proceedings. Nonetheless he has failed to heed these warnings. Such comments are pervasive throughout the proceedings and it is not possible to severe the offensive comments and leave intelligible proceedings which set out a tenable cause of action.

[13]              I note that on a strike-out application, the facts, as pleaded, are generally assumed to be true. However, that does not apply in circumstances where the allegations are entirely without foundation.4

[14]              A pleading of fraudulent intent or similar state of mind requires reasonably credible material establishing a prima facie case.5

1      Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.

2      Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA).

3      See Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [39].

4      Three Rivers District Council v Bank of England (No 3) [2001] 2 All ER 513 (HL) at [95]; adopted in AS Base Ltd v IMI Developments Ltd [2017] NZHC 1017 at [101.

5      Schmidt v Pepper New Zealand (Custodians) Ltd [2012] NZCA at [15].

[15]              There is no credible materials supporting the plaintiff’s claim of sophisticated criminal conspiracy between the Department of Correction and/or the Ombudsman to deny him access to a computer.

Outcome

[16]              Accordingly, the proceedings are struck-out pursuant to HCR 15 on the following grounds:

(a)that in repeatedly ignoring consecutive judicial directions that the offensive language used in the proceedings needed to be removed, the proceedings are an abuse of the process of the Court; and

(b)the proceedings are untenable and have no prospect of success.

Churchman J

Solicitors:

Luke Cunningham & Clere, Wellington for Respondents cc       Mr A I Greer, Rimutaka Prison