Hook v Scott
[2024] NZHC 2071
•29 July 2024
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2024-454-000005
[2024] NZHC 2071
BETWEEN CHRISTOPHER RUSSELL HOOK
First Appellant
AND
MARK LAWRENCE SCOTT
First Respondent
CHRISTOPHER JOHN BAKER
Second RespondentNOEL BRUCE ULLRICH
Third Respondent
Hearing: 9 July 2024 Counsel:
Mr Hook in person
P J Drummond for Respondents
Judgment:
29 July 2024
JUDGMENT OF RADICH J
[1] Mr Hook claims that a company wrongfully terminated a contract that was in place between it and a company in which he was involved. Three different proceedings in the District Court, by and against the companies involved, were struck out.
[2] Two new proceedings were brought in their place – one by Mr Hook against two named individuals and one by Surface Micro-Guard Ltd (in which Mr Hook is a director) against one of the same individuals and another individual.
HOOK v SCOTT [2024] NZHC 2071 [29 July 2024]
[3] Because there could be no tenable cause of action by or against the individuals named as parties, and given the inappropriateness of the proceedings, Judge Rowe in the District Court made orders under s 213 of the District Court Act 2016 restraining Mr Hook and Surface Micro-Guard from continuing with either of the proceedings for a five-year period and restraining Mr Hook and any company in which he is a director from commencing related proceedings for a five-year period.1
[4] Mr Hook brings this appeal from that decision. For the reasons that follow, I see the s 213 orders as having been made appropriately.
The five proceedings
The first proceeding
[5] Cross Slot IP Ltd designs and manufactures agricultural machinery. The machinery includes “opener technologies” (designed to sow seeds into untilled soils) and the “machines” or “frames” that support and operate the opener technologies in the field. Cross Slot IP’s directors are Dr Christopher Baker, the second respondent, and Noel Ullrich, the third respondent.
[6] In February 2019, Cross Slot IP entered into a heads of agreement with Surface Micro-Guard Ltd. Mr Hook is Surface Micro-Guard’s director. Under the heads of agreement, a new company, Cross Slot Europe Ltd was established and was licensed to distribute Cross Slot IP’s opener technologies and to manufacture and distribute its machines and frames in the United Kingdom, Europe and the Commonwealth of Independent States.
[7] Mr Hook sought to give effect to the terms of the heads of agreement through the operation, by him, of Cross Slot Europe. He did so from the Ukraine, where he still lives.
1 Hook v Scott [2023] NZDC 2299. The District Court Judge ordered, in addition, that Mr Hook’s claim against one of the named individuals, Mr Scott, would be struck out for failing to disclose a tenable cause of action. That order was not challenged in this appeal.
[8] On 28 March 2021, Cross Slot IP cancelled Cross Slot Europe’s licence. It believed that Cross Slot Europe had used its access to Cross Slot IP’s intellectual property and machinery to arrange the manufacture and distribution of Cross Slot IP’s opener technologies and that, in doing so, it had repudiated the heads of agreement.
[9] Mr Hook’s position is that it is Cross Slot IP which has repudiated the heads of agreement and that it acted unlawfully in cancelling Cross Slot Europe’s licence.
[10] This is the claim that is at the heart of all of the proceedings that I come on to describe. To pursue the claim, Mr Hook caused Cross Slot Europe, as plaintiff, to bring a proceeding in the District Court against Cross Slot IP, as defendant. However, Cross Slot IP applied for security for costs against Cross Slot Europe and sought a stay of proceedings until costs were paid. Security of $40,000 was ordered and the proceedings were stayed until it was paid.2 It was not paid.
The second and third proceedings
[11] Instead of paying the security for costs or appealing the decision in which they were ordered, Mr Hook brought two new proceedings. The first was brought in his own name against Cross Slot IP and the second was brought in the name of Surface Micro-Guard against Cross Slot IP. Both proceedings related to the same claim – that Cross Slot IP had repudiated the heads of agreement and that it had acted unlawfully in cancelling Cross Slot Europe’s licence.
[12] Cross Slot IP applied for security for costs in both of these proceedings. Again, security of $40,000 was ordered and the proceedings were stayed until they were paid.3
[13] Because the three sets of proceedings pursued the same underlying claim, the new security for costs order was made on a concurrent basis in the sense that, if the single sum of $40,000 was paid into Court, it would be accepted as security for all of the three proceedings which would then be consolidated and continue.
2 Cross Slot Europe Ltd v Cross Slot IP Ltd [2022] NZDC 12274.
3 Surface Micro-Guard Ltd v Cross Slot IP Ltd and Hook v Cross Slot IP Ltd [2022] NZDC 21209.
[14] Again, security was not paid. Neither were the costs awards made against the plaintiffs as a result of their unsuccessful opposition to the applications for security. Neither of the security for costs decisions were appealed. Accordingly, the District Court Judge made an order on 20 April 2023, by consent, that each of the three proceedings would be struck out unless:
(a)the plaintiffs filed applications for leave to appeal by 26 May 2023; or
(b)the plaintiffs paid the security for costs by that date.
[15] Applications were not filed and security was not paid so the proceedings were all struck out on 2 June 2023.
[16] Having referred, in the judgment under appeal, to the order striking out the proceedings, the Judge went on to say this:4
Disconcertingly, when Mr Hook made submissions at a hearing before me on 7 October 2022, in opposition to the security for costs orders, he informed me that if he was thwarted from bringing proceedings because of the security for costs orders, he would simply discontinue proceedings and bring his claims in other litigation where he had not been ordered to pay security.
The fourth and fifth proceedings
[17] That is what Mr Hook did. He brought two further proceedings; the proceedings that are the subject of the judgment under appeal.
[18] He brought one proceeding in the name of Surface Micro-Guard against Dr Baker and Mr Ullrich (the directors of Cross Slot IP). And he brought the other proceeding in his own name against Dr Baker and against Mark Scott.
[19] Mr Scott’s involvement in all of this is indirect. He is a director of Untill Ltd, which holds a licence to manufacture and distribute Cross Slot products. It is difficult to discern the basis for the claim against Mr Scott. Neither Mr Scott nor Untill were parties to the heads of agreement or licensing agreement between Cross Slot IP and Surface Micro-Guard. Mr Hook’s position is that Mr Scott, as a director of Untill,
4 Hook v Scott, above n 1, at [21].
ought to have known about the heads of agreement between Cross Slot IP and Surface Micro-Guard but Untill acted in a way that was at odds with it.
[20] The Judge struck out the claim against Mr Scott on the basis that he had no involvement with the fundamental allegations in the proceeding and that he owed no fiduciary duty to Mr Hook or any of his companies. Moreover, the claim against Mr Scott was seen by the Judge as an abuse of process in that it endeavoured to litigate issues already determined.5 The order striking out the claim against Mr Scott is not the subject of an appeal.
The application under s 213 and the Judge’s decision
[21] When the fourth and fifth proceedings were filed, Dr Baker applied for an order under s 213 of the District Court Act restraining Mr Hook and Surface Micro- Guard from continuing the current proceedings and restraining Mr Hook and associated companies from bringing related proceedings in the District Court for a period of five years.
[22] The Judge considered, first of all, whether the proceedings were without merit. He found that the fourth proceeding – against Dr Baker and Mr Ullrich – could not succeed because Mr Hook was endeavouring to make them personally liable for a decision made by their company. Not only that, but any such claim is predicated on adverse findings against Cross Slot IP – but the proceedings in which any such findings could be made were struck out.6
[23] For similar reasons, it was found that the fifth proceeding – by Mr Hook against Dr Baker and Mr Scott – could not succeed.
[24] The Judge found the basis for Mr Scott’s liability to be even more tenuous. His company, Untill, was not a party to the heads of agreement and had no part to play in the licence granted to Cross Slot Europe.7
5 At [46]–[54].
6 At [29].
7 At [31].
[25] Having found that Mr Hook’s proceedings and those of his company were bound to fail, the Judge turned to consider whether or not he should in any event exercise his discretion to make an order under s 213. The Judge said that Mr Hook had made good on the representation referred to in the passage from the decision that I have set out in [16] above in the sense that, having been prevented from bringing proceedings as a result of security for costs orders, he simply reissued proceedings in the names of different parties in an attempt to circumvent the Court’s orders.8 That, he found, was a clear abuse of the Court’s process.9 He said, in addition, that the proceedings were vexatious and unreasonable.10 They were issued, he found, for the purpose of inflicting costs on Dr Baker and others in order to force them to reach a settlement on his terms.
[26]On that basis, the Judge made an order under s 213 in the following terms:11
(a)Restraining Christopher Russell Hook and Surface Micro-Guard Limited from continuing with either of the proceedings that are the subject of this judgment against each defendant for a period of five years from the date of this decision; and
(b)Restraining Christopher Russell Hook, Surface Micro-Guard Limited or any company that Mr Hook is a director of, from commencing proceedings in this Court or the Disputes Tribunal for a period of five years from the date of this judgment against any of the parties, entities or categories of persons listed below, without first obtaining leave (on notice) from this Court:
(i)Christopher John Baker and/or his wife;
(ii)Cross Slot IP Limited;
(iii)Any current or former employee of Cross Slot IP Limited;
8 At [26].
9 At [27].
10 At [45].
11 At [55].
(iv)Any current or former director of Cross Slot IP Limited.
Mr Hook’s appeal
The nature of the appeal
[27] In his amended notice of appeal, Mr Hook says that Dr Baker should not have been entitled to an order under s 213 because “he caused [Cross Slot IP] to cancel an international licence conveyed to [Cross Slot Europe] without cause, in breach of [Cross Slot IP’s] contractual obligations and s 39 of the Contract and Commercial Law Act 2017.” He goes on, in the amended notice, to take issue with the way in which the first proceeding was transferred from the Disputes Tribunal to the District Court.12 He takes issue, in the amended notice, with the description by the Judge of his conduct of the proceedings, referring to the Judge as having been “unreasonably judgmental” of him, and he takes issue with the District Court judgment which is described as being “unjust, unfair, and asserted to show a bias in favour of the defendants, and in particular Dr Baker”.
[28] Mr Hook has filed considerable material in support of the appeal. As confirmed with him during the hearing, the primary documents relied upon, as far as his arguments on appeal are concerned, are his conference memorandum of 10 March 2024,13 the 4 April 2024 addendum to his conference memorandum, his 27 April “memorandum of points on appeal”,14 his “chronology to be presented as oral evidence at appeal”15 and his 24 June 2024 synopsis argument. He has, in addition, filed detailed affidavit evidence from another director of Surface Micro-Guard.
[29] The primary focus of Mr Hook’s submissions is the cancellation of Cross Slot Europe’s licence by Cross Slot IP. He seeks redress for the cancellation and for the part that anyone connected with it might have played. In his conference memorandum, referred to in the previous paragraph, he said that “the primary purpose of all
12 The proceeding was commenced in the Disputes Tribunal and was transferred, by an Adjudicator, to the District Court. But nothing in relation to those procedural steps is relevant to the District Court Judge’s decision under s 213.
13 An explanation of the arguments in his case over 23 pages.
14 Which contains a further analysis of his submissions on appeal.
15 An analysis, over 52 pages, of his arguments.
proceedings in the District Court and this appeal is to hold Dr Baker accountable for unlawful conduct”.
[30] He made it clear in his submissions that a primary concern is that the District Court Judge did not consider in any substantive way the underlying allegations made against Cross Slot IP and Dr Baker. The focus in the submissions was on whether there was a lawful right to cancel the licence.
The parties to the appeal
[31] The appeal, as filed, named Surface Micro-Guard as the second appellant. Essentially, it combined all of the parties in the fourth and fifth proceedings in the District Court into one appeal proceeding.
[32] In her minute of 28 February 2024, Grau J explained that she had raised with Mr Hook the rule that a company cannot be represented by a litigant in person unless in exceptional circumstances. Her minute records Mr Hook as having said that he would consider removing Surface Micro-Guard as a party and continuing the appeal in his personal capacity. The minute goes on to record that, in response, the Judge observed that in those circumstances the order made by the Judge in the District Court would stand against the company.
[33] In a subsequent case management conference before McHerron J, Mr Hook confirmed that Surface Micro-Guard should be removed as a party. The intituling that results suggests that Mr Hook has a claim against Mr Ullrich directly. That is not the case in the sense that the District Court proceeding under appeal involving Mr Ullrich was brought by Surface Micro-Guard which is no longer a party to the appeal. Little will turn on the point at the end of the day because, for reasons I go on to give, the proceedings could not continue, however configured.
Relevant legal principles on s 213 and the approach on appeal
[34] Under s 213 of the District Court Act, a Judge may make an order restricting a person from commencing or continuing civil proceedings. The order may have a limited effect, restraining a party from commencing or continuing proceedings on a
particular matter, or an extended effect, restraining a party from commencing or continuing civil proceedings on a particular matter and on related matters. Section 214 of the Act is in the following terms:
214 Grounds for making section 213 order
(1)A Judge may make a limited order under section 213 if, in civil proceedings about the same matter in the court, the Judge considers that at least 2 or more of the proceedings are or were totally without merit.
(2)A Judge may make an extended order under section 213 if, in at least 2 proceedings about any matter in the court, the Judge considers that the proceedings are or were totally without merit.
(3)In determining whether the proceedings are or were totally without merit, the Judge may take into account the nature of any other interlocutory application, appeal, or criminal prosecution involving the party to be restrained, but is not limited to those considerations.
(4)The proceedings concerned must be proceedings commenced or continued by the party to be restrained, whether against the same person or different persons.
(5)For the purposes of this section and sections 215 and 216, an appeal in a civil proceeding must be treated as part of that proceeding and not as a distinct proceeding.
[35] Section 215 provides that an extended order has effect for a period of up to three years as specified by the Judge but that the Judge may specify a longer period (not to exceed five years) if satisfied that exceptional circumstances justify it.
[36] The power to restrain the commencement or continuation of legal proceedings is a drastic restriction of the fundamental civil right of access to the courts.16 Nonetheless, there are competing considerations that can justify that restriction: the desirability of freeing defendants from the “considerable” burden of groundless litigation,17 and the importance of using the limited resources of the judicial system for those with genuine grievances.18
16 Brogden v Attorney-General [2001] NZAR 809 (CA) at [20]; Attorney-General v Jones [1990] 1 WLR 859, [1990] 2 All ER 636 (CA) at 865.
17 At [20]; Attorney-General v Jones, above n 16, at 865.
18 Attorney-General v Jones, above n 16, at 865.
[37] Sections 213 to 215 of the District Court Act are in terms that are essentially the same as those of ss 166 to 168 of the Senior Courts Act 2016.
[38] The leading authority on the approach to be taken is the decision of the Court of Appeal in Mawhinney v Auckland District Council which was endorsed more recently by the Court of Appeal in H v RPW.19
[39] In Mawhinney v Auckland District Council, the Court of Appeal approved a two-stage test under the provisions.20 First, the Court must be satisfied that the respondent has filed at least two proceedings about any matter in any court or tribunal that are, or were, totally without merit. The proceedings in question must be commenced or continued by the party subject to the application. However, they need not be against the same person. A proceeding will be totally without merit if all causes of action are “bound to fail”.21
[40] Secondly, the Court must determine whether it is appropriate to exercise its discretion in favour of making the orders. The Court should consider the way in which the respondent has conducted the proceedings and circumstances that may support or militate against an order being made.22 While vexatiousness is no longer an express requirement under either ss 213 or 166,23 the factors identified in Attorney-General v Heenan remain relevant:24
(a)if there is a pattern of complex, prolix, or incomprehensible pleadings;
(b)the proceedings show the respondent to be an almost compulsive litigant against a widening circle of defendants;
19 Mawhinney v Auckland District Council [2021] NZCA 144, [2021] 3 NZLR 519; and H v RPW
[2024] NZCA 263.
20 At [67], endorsed by H v RPW, above n 19 at [25].
21 At [60].
22 At [67].
23 The predecessor to s 166 of the Senior Courts Act 2016 was s 88B of the Judicature Act 1908 which required the proceedings complained of to be vexatious.
24 Attorney-General v Heenan [2009] NZAR 763 at [138], upheld on appeal in Heenan v Attorney- General [2011] NZCA 9, [2011] NZAR 200. The factors as expressed here are taken from the endorsement of Heenan in Auckland Council v Mawhinney [2019] NZHC 299 at [52], a decision upheld on appeal in Mawhinney v Auckland Council, above n 19; an approach endorsed in H v RPW [2023] NZHC 1519 at [105], upheld on appeal in H v RPW, above n 19.
(c)the proceedings contain extravagant or scandalous claims which the litigant has no prospect of substantiating or justifying; and
(d)the frequency with which part or all of the respondent's statements of claim have been struck out, or the extent to which the respondent allows the proceedings to lie dormant.
Appeal principles
[41] Mr Hook has a general right of appeal under s 124 of the District Court Act. As an appeal by way of a rehearing, the Court can “make any decision it thinks should have been made”,25 coming to its own conclusion on the merits of the case and, if appropriate, substituting its decision for that of the District Court.26 However, it is for the appellant to show that an error has been made.
Discussion
[42] The first of the two requirements for an extended order under s 214 of the District Court has been met – two proceedings have been commenced by each of Mr Hook and Surface Micro-Guard. It is sufficiently clear that the second requirement has been met also – the proceedings are or were totally without merit.
[43] Mr Hook is focused firmly on what he regards to be the wrongful cancellation of Cross Slot Europe’s licence. Substantive issues relating to the cancellation must, he says, in the interests of justice be heard and it cannot, in his submission, be right for him to be denied the opportunity to advance the case.
[44] The fourth and fifth District Court proceedings, which are the subject of the s 213 order, cannot give rise to an assessment of the underlying claims with which Mr Hook is concerned. Those underlying claims could only have been considered substantively by a Court through one or more of the first, second and third proceedings. However, all of those proceedings have been struck out. It was Mr Hook’s choice that they were struck out. As discussed earlier, he made a deliberate
25 District Court Act 2016, s 128.
26 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
choice not to pay the security for costs that were awarded and to accept that the proceedings could in those circumstances be struck out. He did so while expressing the view quite openly that he would endeavour to have the same substantive claims addressed by filing different proceedings with different parties. But the different proceedings he has brought are not sustainable for two reasons:
(a)With the exception of Surface Micro-Guard, which is no longer involved in the appeal at Mr Hook’s choice, none of the parties cited were parties to the underlying contract in relation to which redress is sought.
(b)If there was any prospect of redress against the individuals named as parties, findings are needed in the first instance against Cross Slot IP; findings that could only have been made in the proceedings that have been struck out.
[45] The point is illustrated by para 1.1 of the Statement of Claim in the fifth proceeding. There, it is pleaded:
This claim succeeds or falls on whether or not a heads of agreement (hereinafter referred to as the “contract”), entered 14 February 20219 between Cross Slot IP Limited (hereinafter “CSIP”), and Surface Micro-Guard Limited (hereinafter “SMGL”), was unlawfully terminated by CSIP on 27 March 2021.
[46] Similarly, in the Statement of Claim in the fourth proceeding, it is pleaded that the defendants acted unlawfully in terminating the heads of agreement in the sense that they caused Cross Slot IP to breach it.
[47] But they are not allegations that could be determined in the fourth or fifth proceedings.
[48] Mr Hook has suggested that he is entitled to proceed against Messrs Baker, Scott and Ullrich, rather than Cross Slot IP, under s 12 of the Contract and Commercial Law Act 2017. Section 12 applies to a promise contained in a deed or contract that purports to confer a benefit on a person who is not a party to the contract. It provides that the promissor is under an obligation, enforceable by the beneficiary, to perform
the promise. The provision cannot apply here because Mr Hook is not a beneficiary and Messrs Baker, Scott and Ullrich are not promissors in a contract.
[49] I turn then to the question of whether or not, despite these findings, it is appropriate for the Court to exercise its discretion in favour of making orders under s 213. I do so through applying the factors identified in Heenan.27
A pattern of complex, prolix or incomprehensive pleadings
[50] The pattern of proceedings is apparent from the description in [5]–[20] above. The pleadings and related documents are certainly complex. They are prolix and they tend to be very difficult to follow.
[51] The pattern is reflected in the hundreds of pages of material – submissions, arguments and further evidence – filed on this appeal.
The proceedings show the appellant to be an almost compulsive litigant against the widening circle of defendants
[52] Mr Drummond described Mr Hook’s modus operandi – in not having achieved resolution of his grievance with Cross Slot IP – as being to threaten and to issue proceedings against people associated with Dr Baker and Cross Slot IP in an attempt to assert pressure on them so that they might persuade Dr Baker to settle on the basis that, otherwise, they would incur the costs associated with having proceedings issued against them.
[53] While that is a significant claim to make, it is borne out by Mr Hook’s communications. There is a considerable number of them which illustrate the point. I will refer here to just a selection of them.
[54] In August 2021, Mr Hook sent an email to a Cross Slot IP employee telling him that he needed to end his working relationship with the company or else he would be joined as a defendant in a damages claim.
27 Attorney-General v Heenan, above n 24, at [138].
[55]In a February 2023 email to Dr Baker’s wife and to Mark Scott, Mr Hook said:
John’s misguided in thinking he will get away with terminating the agreement he made with me and Bruce. He cannot absolve himself from personal responsibility simply by resigning from the board.
Regretfully, I broaden the claim to include another with Mark Scott primarily because of John’s bad behaviour while regarding Mark and John equally culpable and liable we will see what has to say shortly as I have applied for a hearing on seven days’ notice.
I do not like surprises so I am giving you both advanced notice that you will be served with a statement of claim and notice of proceedings …
It’s time for John to live in the real world and accept that I will do whatever I can to ensure that justice is served in the current matters before the court.
The only way to avoid this claim regardless of the outcome of the current litigation is for John to be required to settle with me on fair and equitable terms.
[56]In a 6 March email to Dr Baker, Mr Hook said:
Only you can stop this litigation and like the Ukrainians I will see it through to the end and like Putin [Cross Slot] will invariably be the loser …
You need to take a pragmatic decision otherwise our little war will continue and I will do whatever is necessary to do to you what Putin is intent on doing to Ukraine.
[57] The number and nature of the proceedings that have been issued, and the pattern of threatening emails to those against whom Mr Hook has now issued proceedings, is such that it can fairly be concluded that he is essentially a compulsive litigant against a widening circle of defendants.
The proceedings contain extravagant or scandalous claims which the litigant has no prospect of sustaining or justifying
[58] As the Judge said, Mr Hook has brought these proceedings in order to circumvent the Court’s previous security for costs orders and is doing so, consistently with his correspondence, as a self-represented litigant at no cost to himself in order to inflict costs on Dr Baker and others in an endeavour to force them to reach a settlement on his own terms.28
28 Hook v Scott, above n 1, at [45].
[59] In December 2020, Mr Hook sent an email to individuals against whom he has now brought these proceedings in which he said:
The directors of CSIP should be regarding this communication as a warning that I will respond in an adversarial manner if there is any further statement or utterance I consider inflammatory, untrue or in any way impinges upon my personal integrity. CSIP and John will be fair game and there will be consequences.
[60]In an email in February 2022 to Dr Baker, Mr Hook said:
I think Mr Drummond is likely to want to have a chat with you based on what I have just filed with the Court and served. You really have behaved foolishly, and if you do not concede I will do my level best to teach you a lesson you will remember for a long time.
[61] The nature of the claims then made in the proceedings that, progressively, have been issued are extravagant and unsustainable – but consistent with Mr Hook’s ongoing threats.
The frequency with which part or all of the respondent’s statements of claim have been struck out, or the extent to which the respondent allows the proceedings to lie dormant
[62] In his evidence in support of the application for an order under s 213, Dr Baker described there having been eight or nine claims by Mr Hook against him and/or Cross Slot IP and/or related parties. Three have been struck out, the others not proceeded with and the two proceedings that are the subject of this appeal have been the subject of an order under s 213. This is not a situation that could properly continue.
[63] There was every reason for the Judge to have exercised his discretion to make an order under s 213. There is no basis for it to be unsettled on appeal.
The form of the orders
[64] The form of the Judge’s orders – set out in [26] above –is in order. Mr Hook and Surface Micro-Guard are restrained through the operation of s 214(2) and (4) and s 215. The restraint on any company in which Mr Hook is a director is warranted, in part, through the terms of s 215 and, in part, through the operation of the District Court’s inherent power to control its own proceedings which, as s 213(5) provides, is not limited by anything in that provision.
[65] Moreover, as the Court of Appeal said in Heenan v Attorney-General, proceedings that might be brought by a party in a representative or fiduciary capacity may be taken into account.29 The reason for this principle is that, to restrict the provisions to persons acting in their personal capacities would limit their effectiveness in protecting those against whom meritless proceedings are brought.30
Mr Hook’s recusal application
[66] The application under s 213 was heard in the District Court on 3 July 2023. On 16 October 2023, Mr Hook filed an application for the Judge to recuse himself from one of the proceedings in question31 and from the second and third proceedings. The application was based upon a claim that the Judge had failed to have sufficient regard to the merits of Mr Hook’s claim in the second and third proceedings and that bias was apparent from the time taken by the Judge to issue his decision on the s 213 application.
[67] The guiding principle in the District Court recusal guidelines32 is that a Judge is disqualified from sitting if there is in the circumstances a real possibility that in the eyes of a fair-minded and fully informed observer the Judge might not be impartial in reaching a decision in the case.33 There is no basis for a fully informed observer to reach a conclusion of that sort. The second and third proceedings were managed in a way that was nothing other than orthodox. They were struck out because of non- compliance on the part of Mr Hook and his subsequent proceedings were an attempt to get around that.
[68] Equally, the period of time between the hearing in the District Court and the judgment, on 27 October 2023, is reasonable. It could not give rise to an apparent bias.
29 Heenan v Attorney-General, above n 24, at [23].
30 Body Corporate 68792 v Memelink [2023] NZHC 3850 at [17] – where orders were made “preventing the respondent (in any capacity) from commencing or continuing any proceeding” relating to the affairs of the body corporate.
31 The application referred to the fourth proceeding but not the fifth.
32 District Courts of New Zealand District Court Recusal GuidelineIIs, developed and published under s 217 of the District Court Act.
33 At [2.1].
Outcome
[69]The appeal is dismissed.
[70]The respondents are entitled to a single award of costs, on a 2B basis.
Radich J
Solicitors:
Chapman Tripp, Wellington for Respondents
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