Heenan v Attorney-General - [2014] NZHC 1911

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-788 [2014] NZHC 1911

BETWEEN
DAVID STANLEY HEENAN

Applicant

AND

ATTORNEY-GENERAL Respondent

Hearing: 12 December 2013, 28 and 29 July 2014

Counsel:

D Heenan in Person
D M Lester as Amicus Curiae
D Harris for Respondent

Judgment:

14 August 2014

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 14 August 2014 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:
Crown Law, Wellington

HEENAN v ATTORNEY-GENERAL [2014] NZHC 1911 [14 August 2014]

Introduction

[1] Mr Heenan has the status of a vexatious litigant. He was given leave to file a notice of motion in this Court, seeking leave to apply to set aside the judgment of Judge Saunders on the basis that it was obtained by fraud.1 Mr Heenan has argued for some time that it was. The principal leave issue identified at the outset was:

...whether or not there is a binding judgment on the issue as to whether or not the judgment of Judge Saunders was obtained by fraud, by reason of the Judge receiving fraudulent evidence.

[2] The Attorney-General opposed the application. There were five grounds of opposition:

1The allegation that Judge Saunders’ decision in Gore v Heenan was obtained by fraud by reason the judge receiving fraudulent evidence has been the subject of judicial consideration on multiple occasions and has been determined conclusively against the applicant. Therefore the application is res judicata and is precluded by issue estoppel.

2The applicant has raised no new or fresh evidence to support his application. Therefore, there is no justification for re-opening an issue that has already been conclusively determined by competent courts.

3The original decision of Judge Saunders was founded on the debt Mr Heenan was found to owe Mrs De Vella Gore. The status of the cheque was irrelevant to the finding that Mr Heenan was found to pay to Ms Gore $20,000.

4Even if the status of the cheque itself was relevant, on Mr Heenan’s evidence he had stopped the cheque prior to the date it was to become enforceable. Therefore, regardless of whether or not the date was changed, and by whom, the cheque had already been stopped and was not able to be enforced.

5The proceeding is an attempt to mount a collateral attack on the judicial determinations of competent Courts in previous proceedings, as such it is an abuse of process.

[3] The Attorney-General did not formally withdraw his opposition. However, in the course of the hearings, Ms Harris modified the Crown’s position.

1 Gore v Heenan DC Alexandra NP25/99, 20 March 2000.

Background

[4] The background to this matter dates back to May 1998, when Ms Gore invested $20,000 in an investment scheme, known as the MHT Fund (No 2). This investment took place through Mr Heenan, though it would appear that he was not a contracting party with Ms Gore.

[5] Mr Heenan was, however, involved in some way as an intermediary.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 1911
Decision Date: 14 August 2014

CaseChat Overview and Summary

David Stanley Heenan, a vexatious litigant, sought leave to apply to set aside a judgment obtained by fraud. The application was opposed by the Attorney-General on the grounds of res judicata, issue estoppel, abuse of process, and lack of new evidence. The key legal issues were whether the cheque, which had been materially altered, was still enforceable and whether there was a reasonable argument that the judgment was obtained by fraud. The Court found that the alteration of the cheque rendered it void, and the District Court's judgment was flawed as it proceeded as an action on a cheque. The Court granted leave to Heenan to appeal the High Court's judicial review judgment and to commence new proceedings seeking a judgment that the District Court judgment was obtained by fraud, a declaration that Ms Gore's son altered the cheque, and leave to pursue further relief. The Court also imposed conditions on the pleadings and appointed Mr Lester as amicus curiae.

Orders