Heenan v Official Assignee

[2010] NZCA 135

IN THE COURT OF APPEAL OF NEW ZEALAND

CA346/2009
[2010] NZCA 135

BETWEENDAVID STANLEY HEENAN

Applicant

ANDTHE OFFICIAL ASSIGNEE

Respondent

CA630/2009

AND BETWEEN  DAVID STANLEY HEENAN

Applicant

ANDTHE ATTORNEY-GENERAL

Respondent

CA781/2009

AND BETWEEN  DAVID STANLEY HEENAN AND ROBERTA JANE MARY HEENAN

Applicants

ANDOSCAR THORWALD ALPERS

First Respondent

ANDMICHAEL AMBLER

Second Respondent

ANDJAMES DEAN

Third Respondent

ANDIAN JAMES DUNCAN HALL

Fourth Respondent

ANDDAVID JAMES HOUSTON

Fifth Respondent

ANDRICHARD PAUL JEFFRIES

Sixth Respondent

ANDKIRISTINA MARY O'CONNOR

Seventh Respondent

ANDCRAIG RAUNE

Eighth Respondent

ANDMURRAY IAN WITHERS

Ninth Respondent

Hearing:16 March 2010

Court:Hammond, Chambers and Baragwanath JJ

Counsel:D S Heenan, Applicant in Person

J G French for the Official Assignee (CA346/2009)
P J Gunn for the Attorney-General (CA630/2009)
K M Foley for O T Alpers and Others (CA781/2009)

Judgment:21 April 2010 at 2.30 pm

JUDGMENT OF THE COURT

CA346/2009

A            The present application or purported appeal to this Court is struck out.

B            Costs are reserved.

CThe applicant must not file any further documents on this file (CA346/2009), save in respect of costs if the respondent seeks them.

CA630/2009

DThe application for leave to appeal filed on 7 September 2009 is to be treated as a notice of appeal which was filed and served within time.

E            Security for costs is dispensed with.

FThe respondent must prepare the case on appeal and file and serve it on or before 28 May 2010.

GIf the applicant considers the case on appeal is incomplete, he must on or before 18 June 2010 file and serve a memorandum annexing any additional documents he says form part of the record.

HIn that event, the respondent must respond by memorandum, to be filed and served on or before 2 July 2010.

IThe Registrar is directed to fix a hearing date for this appeal.

CA781/2009

JThe present application or purported appeal to this Court is struck out.

KCosts are reserved.

LThe applicant must not file any further documents on this file (CA781/2009), save in respect of costs if the respondents seek them.

REASONS OF THE COURT

(Given by Chambers J)

Aftermath of a bankruptcy order

[1]        David Heenan was adjudicated bankrupt on 11 December 2000 following his failure to pay a judgment entered against him.  He remains an undischarged bankrupt as the Official Assignee has consistently opposed Mr Heenan’s discharge from bankruptcy, asserting that Mr Heenan has a vintage Buick motorcar which forms part of his bankrupt estate.  Mr Heenan has refused to deliver that car to the Official Assignee despite a court order.  Mr Heenan claims that the car is owned by a family trust.  He admits he has the car in hiding so that the Official Assignee cannot seize it.

[2]        Ever since his adjudication, Mr Heenan has brought a plethora of court proceedings essentially designed to have the original judgment set aside and his bankruptcy annulled or discharged.  Eventually the Attorney-General applied for an order under s 88B of the Judicature Act 1908 declaring Mr Heenan a vexatious litigant.  On 19 August last year, the High Court ordered as follows:[1] 

(a)No civil proceedings shall, without the leave of this Court, be instituted by [Mr Heenan] in any Court either on his own behalf or in any fiduciary or representative capacity; and

(b)No civil proceeding instituted by [Mr Heenan] in any Court either on his own behalf or in any fiduciary or representative capacity shall be continued by him without the leave of this Court. 

[1] Attorney-General v Heenan HC Christchurch CIV-2007- 412-001061, 19 August 2009 at [145] (“the vexatious litigant judgment”).

[3]        Mr Heenan has purported to appeal that decision (CA630/2009). 

[4]        He has also filed a purported appeal against a decision of Heath J delivered on 12 May last year.[2]  This purported appeal is filed under CA346/2009.  The documents filed also purport to seek leave to appeal 18 other decisions, some made in the District Court and others made in the High Court.  The oldest of the decisions sought to be appealed is the original decision of Judge Saunders, requiring Mr Heenan to pay a Mrs Gore $20,000.[3] 

[2] Heenan v Official Assignee HC Christchurch CIV-2005-425-76, 12 May 2009 (“the OA judgment”).

[3] Gore v Heenan DC Alexandra NP125/99, 3 April 2000.

[5]        Further, Mr Heenan has also sought to appeal, under CA781/2009, two decisions in litigation Mr Heenan and his wife, Roberta, have brought against Weston Ward and Lascelles, a Christchurch firm of solicitors.  The two decisions apparently challenged are Panckhurst J’s decision of August 2003[4] and Associate Judge Osborne’s decision of October last year.[5]  (We refer to these two judgments collectively as “the Alpers judgments”.) 

[4] Heenan v Alpers HC Christchurch CIV-2001-409-000842, 7 August 2003.

[5] Heenan v Alpers HC Christchurch CIV-2001-409-000842, 28 October 2009.

[6]        It is fair to say that all of the documents filed by Mr Heenan are completely unorthodox in terms of relevant legislation and court rules.  Further, most of them contain scandalous and quite improper allegations. 

[7] The Attorney-General contended that Mr Heenan could not bring or continue with any of his appeals or proposed appeals to this Court (other than his appeal against the vexatious litigant judgment itself) without the leave of the High Court. Such leave had not been sought. The Attorney-General contended that this was the proper interpretation of s 88B of the Judicature Act and of the orders made in the vexatious litigant judgment, as set out at [2] above. In light of this contention, we resolved that we would have a preliminary hearing to determine whether the Attorney-General’s argument was correct. The first matter we deal with, therefore, in these reasons for judgment is whether Mr Heenan needs leave from the High Court before he can take any steps in this Court with respect to his proposed appeals.

[8]        As we have indicated, the Attorney-General accepted Mr Heenan had a right of appeal against the vexatious litigant judgment itself.  The problem is that Mr Heenan’s purported appeal against that judgment is not in proper form.  Nor was it served in time.  The issue therefore is: should we extend the time for appealing against the vexatious litigant judgment?  We heard submissions from the parties on that matter as well. 

[9]        Mr French, for the Official Assignee, raised a number of difficulties with respect to Mr Heenan’s purported appeal against the OA judgment.  Mr Foley, for Mr Alpers and his partners in Weston Ward, also raised problems with respect to the purported appeal from the Alpers judgments.  We shall deal with those matters as well. 

Does Mr Heenan need leave from the High Court before he can take any steps in this court with respect to his proposed appeals?

[10]       Section 88B of the Judicature Act reads as follows:

Restriction on institution of vexatious actions

(1)      If, on an application made by the Attorney-General under this section, the High Court is satisfied that any person has persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior Court, and whether against the same person or against different persons, the [High Court] may, after hearing that person or giving him an opportunity of being heard, order that no civil proceeding or no civil proceeding against any particular person or persons shall without the leave of the High Court or a Judge thereof be instituted by him in any Court and that any civil proceeding instituted by him in any Court before the making of the order shall not be continued by him without such leave.

(2)      Leave may be granted subject to such conditions (if any) as the Court or Judge thinks fit and shall not be granted unless the Court or Judge is satisfied that the proceeding is not an abuse of the process of the Court and that there is prima facie ground for the proceeding.

(3)      No appeal shall lie from an order granting or refusing such leave. 

[11] It is quite clear that the High Court’s orders, as set out at [2] above, follow, as one would expect, the wording of s 88B. It is therefore to be supposed that when, in each order, the High Court used the expression “in any Court”, it meant whatever those identical words in s 88B mean. So the focus must be on the meaning of s 88B and, in particular, on whether that section prevents access to this Court or the Supreme Court without first obtaining the leave of the High Court. Contrary to the submissions of Mr Gunn, for the Attorney-General, we have concluded that the phrase “in any Court” in s 88B (and in the orders made in the vexatious litigant judgment) do not include this Court or the Supreme Court. We so hold for the following reasons.

[12]       First, everyone has a right of access to the courts, including the appellate courts.  Any statutory restriction on such right of access must be clear and, in the event of doubt, must be read down.  The phrase “in any Court” is potentially ambiguous.  In all the circumstances, as further detailed below, we conclude it is proper to read down the expression so that it does not include this Court or the Supreme Court. 

[13]       Secondly, it would be very unusual for Parliament to provide that the High Court should have exclusive jurisdiction to determine whether an appeal could be brought in this Court or the Supreme Court.  Of course, there are a number of statutory provisions limiting appeals to this Court by means of leave provisions.  So far as we are aware, however, no other statute confers exclusive jurisdiction on the High Court to determine access to this Court.  Invariably, legislation provides that, in the event the High Court declines leave, this Court may nonetheless grant leave or special leave to appeal.  If “in any Court” were to embrace this Court and the Supreme Court, the section would be unique in forbidding access to the appellate courts in the event of leave to appeal being refused by the High Court.[6]

[6] The exclusive jurisdiction of the High Court, on the Attorney-General’s interpretation, would be effected by s 88B(3). 

[14]       It would be particularly incongruous if this Court were to hear an appeal (because the High Court had given leave), but no further appeal could be brought in the event of a High Court Judge declining leave for a further appeal.  In effect, a High Court Judge would be trumping a panel of the Supreme Court.

[15]       Thirdly, before the power conferred by s 88B can be exercised, the High Court must be satisfied that the person has persistently and without any reasonable ground instituted legal proceedings either “in the High Court or in any inferior Court”.  When, therefore, the section goes on to authorise restrictions on the person’s ability to institute proceedings “in any Court”, it is likely that the drafter intended the expression “in any Court” to be shorthand for what was earlier described as “in the High Court or in any inferior Court”. 

[16]       Fourthly, it is unnecessary to have a High Court “vexatious litigant” filter on appeals to this Court or the Supreme Court.  If the proceeding in the lower court is vexatious, the vexatious litigant will not get leave to commence or continue it.  So there will be no substantive judgment to be appealed in any event.  If the vexatious litigant persuades a High Court Judge that he or she should be permitted to institute or continue a civil proceeding, then that must mean that a High Court Judge has satisfied himself or herself “that the proceeding is not an abuse of the process of the Court and that there is prima facie ground for the proceeding”.[7]  In that event, there is no need for a further “vexatious litigant” filter in the event that the proceeding (which has been adjudged not an abuse of process) comes on appeal. 

[7] See s 88B(2).

[17]       Finally, the Attorney-General’s argument is inconsistent.  Mr Gunn accepted that Mr Heenan must have a right of appeal against the vexatious litigant judgment.  But, on the Attorney-General’s argument, how could that be?  Mr Gunn’s interpretation would mean that s 88B had to be read as if an exception were inserted to the effect that the requirement for leave to appeal does not apply to the judgment declaring the person a vexatious litigant.  While we accept such interpretation might be possible, we much prefer the more straightforward interpretation whereby High Court Judges are empowered to control access only with respect to their own Court and lower courts in the hierarchy.  Our interpretation means there is no problem about a vexatious litigant being able, as of right, to appeal against the decision declaring him or her a vexatious litigant. 

[18]       It follows that we hold Mr Heenan does not need leave from the High Court under s 88B before he brings appeals in this Court. 

Should time for appealing against the vexatious litigant judgment be extended?

[19]       Mr Heenan’s appeal against the vexatious litigant judgment is not in proper form.  Nor, as we have said, was it served in time.  So Mr Heenan needs an extension of time in which to appeal. 

[20]       In this regard, Mr Gunn has been most cooperative.  The Attorney-General is prepared to accept Mr Heenan’s application for leave to appeal filed on 7 September last year as a notice of appeal which was filed and served within time.  The Attorney-General is also prepared to dispense with security for costs. 

[21]       Mr Heenan has shown himself quite incapable of filing any documents which remotely conform with court rules.  Accordingly, Mr Gunn offered to prepare the case on appeal.  We gratefully take up that offer. 

[22]       If Mr Heenan, after he receives the case on appeal, considers it incomplete, he can file and serve a memorandum annexing any additional documents he says form part of the record.  In that event, the Attorney-General can respond by memorandum.  A Judge of this Court will then determine whether the additional documents sought by Mr Heenan form part of the record. 

[23]       The precise orders we make with respect to the vexatious litigant appeal are set out in orders D to I. 

The appeal from the Official Assignee judgment

[24]       Mr Heenan’s appeal against the OA judgment is not in proper form.  Nor was it ever served.

[25]       Because of our finding on the first issue, Mr Heenan does not need leave to appeal from the High Court with respect to the OA judgment.  But what he does now need is permission from this Court to extend the time for appealing against the OA judgment.  Such an application is brought under r 29A of the Court of Appeal (Civil) Rules 2005.  If Mr Heenan wishes to pursue this appeal, he must file and serve on the Official Assignee:

(a)A notice of application to extend time for appealing against the OA judgment, in proper form; and

(b)An affidavit explaining the delay in appealing; and

(c)A memorandum (limited to five pages) setting out why the proposed appeal has merit and why an extension of time for appealing should be granted.

[26]       We direct the registry not to accept any documents which do not comply with the Rules. 

[27]       The Official Assignee will then respond in the normal manner provided by the Rules.  He has already indicated he will oppose the application.  In due course, a panel of this Court will determine the application, if filed. 

[28]       As we earlier said, Mr Heenan has, by sidewind, as it were, also sought to appeal 18 other judgments under the rubric of CA346/2009.  That is not permissible.  Some of the judgments he complains about are District Court judgments: we have no jurisdiction to consider appeals from them.  Mr Heenan knows that, because this Court has already told him that on an earlier occasion.[8]  With respect to the High Court judgments listed, he is well out of time to appeal all of them.  If he wishes to pursue these appeals, he must, with respect to each one, bring an application seeking an extension of time in which to appeal: see the procedure outlined above at [25]-[27].  Each application would have to be served on the relevant respondent (that is, on the other party or parties to that particular judgment).  Mr Heenan cannot seek an extension of time in which to appeal John Hansen J’s judgment of 7 September 2006[9]  As this Court has already considered an application to extend time for appealing that judgment and declined it.[10] 

[8] Heenan v Gore CA201/05, 23 February 2006 at [7]. 

[9] Heenan v HFK Trustees Limited HC Invercargill CIV-2005-425-223, 7 September 2006. 

[10] Heenan v HFK Trustees Limited [2007] NZCA 93.

[29]       We do not want to be misunderstood here.  We are explaining to Mr Heenan what his rights are.  He should not assume, however, that extensions of time will be readily granted.  Given the huge delays in appealing, we would consider any applications for extension of time would be verging on hopeless. 

[30]       It follows that Mr Heenan’s present application or purported appeal against the OA judgment and the other 18 judgments must be struck out.  We reserve costs.  Mr Heenan must not file any further documents on this file (CA346/2009), save in respect of costs if the Official Assignee seeks them. 

The appeals from the Alpers judgments

[31]       The purported appeal against Panckhurst J’s August 2003 judgment is well out of time.  If Mr Heenan wishes to pursue that, he must bring an application to extend time for appealing.  See the comments at [25]-[27] and [29] above. 

[32]       We have no jurisdiction to consider an appeal from the decision of an Associate Judge on a strike-out application.[11]  Mr Heenan, if dissatisfied with Associate Judge Osborne’s October 2009 decision, must apply for review in the High Court.  He will need leave under s 88B to continue that proceeding by way of review. 

[11] Judicature Act, ss 26J and 26P; New Zealand Defence Force v Berryman [2008] NZCA 392 at [4]; Vero Liability Insurance Limited v Symphony Group Limited [2008] NZCA 419 at [3].

[33]       It follows that Mr Heenan’s present application or purported appeal against the Alpers judgments must be struck out.  We reserve costs.  Once again, we direct that Mr Heenan must not file any further documents on this file (CA781/2009), save in respect of costs if Weston Ward seeks them. 

Solicitors:

French Burt Partners, Invercargill, for the Official Assignee

Crown Law Office, Wellington, for the Attorney-General

Buddle Findlay, Christchurch, for O T Alpers and others