Jones v New Zealand Bloodstock Finance and Leasing Ltd

[2021] NZHC 3220

THIS IS A REDACTED VERSION OF THE JUDGMENT FOR

PUBLICATION. AN UNREDACTED VERSION HAS BEEN DELIVERED TO THE PARTIES

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-002267

[2021] NZHC 3220

BETWEEN

GREGORY JOHN JONES

Plaintiff

AND

NEW ZEALAND BLOODSTOCK FINANCE AND LEASING LIMITED

First Defendant

NEW ZEALAND BLOODSTOCK LIMITED
Second Defendant

PETER VELA
Third Defendant

DANIEL ROLSTON
Fourth Defendant

…/2 cont’d

Hearing:	(On the papers)
Judgment:	29 November 2021

REDACTED JUDGMENT OF VENNING J

On Registrar’s referral under r 5.35A

This judgment was delivered by me on 29 November 2021 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel:           Greg Jones, Auckland Copy to:  Defendants

JONES v NEW ZEALAND BLOODSTOCK FINANCE AND LEASING LTD [2021] NZHC 3220 [29

November 2021]

DAVID ELLIS

Fifth Defendant

DEAN HAWKINS
Sixth Defendant

SEAN HAWKINS
Seventh Defendant

CAMBRIDGE VET SERVICES LIMITED

Eighth Defendant

CRAIG LAWRENCE
Ninth Defendant

BRUCE GRAY
Tenth Defendant

HELEN RICE
Eleventh Defendant

SIMON MOORE
Twelfth Defendant

PHEROZE JAGOSE
Thirteenth Defendant

THE ATTORNEY-GENERAL OF NEW ZEALAND

Fourteenth Defendant

CHRISTINE MEECHAN

Fifteenth Defendant

GARY HARRISON
Sixteenth Defendant

UNKNOWN DEFENDANTS
Seventeenth Defendant

Introduction

[1]    On 16 November 2021 Gregory Jones filed a proceeding in this Court citing 16 named defendants and “unknown defendants” as the seventeenth defendant. Mr Jones seeks interim injunctive relief against all defendants. In general terms, the injunctive relief sought can be described as relief from harassment of Mr Jones or invasion of his privacy and a requirement that the defendants advise him if they have carried out any acts involving breaches of his privacy or have otherwise engaged in harassment of him. He also seeks orders requiring the defendants to deliver up any documentation in relation to such actions they or others may have taken.

[2]    In the statement of claim Mr Jones alleges conspiracy against the first to ninth defendants and alleges harassment and breach of privacy against all defendants. In relation to two of the defendants, the Hon Justice Jagose and the Attorney-General, the pleadings also allege bad faith, and breach of the New Zealand Bill of Rights Act 1990 by the Judge during the course of a proceeding presided over by him.

[3]    The Registrar has referred the proceeding to me under r 5.35A of the High Court Rules 2016. The rule permits the Registrar to refer a proceeding to a judge where there is cause for concern the proceeding is plainly an abuse of the process of the Court.

[4]    Rule 5.35B confirms that on referral the judge may make various orders or give directions to ensure the proceeding is disposed of or proceeds in a way that complies with the rules. The orders available include striking out or staying the proceeding. The rule expressly confirms the inherent jurisdiction which the Court previously exercised to deal with such matters.

The pleading

[5]    Mr Jones is a barrister. Since 2003 he has also been involved in the bloodstock industry by way of a breeding enterprise and the racing of thoroughbred horses.

[6]    The first to seventh defendants are involved in the bloodstock industry and are alleged to have had dealings with Mr Jones and horses he has had an interest in, in that

regard. The eighth and ninth defendants provide veterinary services and again are said to have had contact with Mr Jones through his interest and ownership of thoroughbred horses.

[7]    The remaining defendants fall into a different category. The tenth defendant, Mr Gray, is a barrister and Queen’s Counsel. He was formerly a close friend of Mr Jones. The eleventh defendant is a barrister and solicitor. The twelfth defendant is a Judge of the High Court but sued in his personal capacity. The thirteenth defendant is also a Judge of the High Court as noted above. The fourteenth defendant is the Attorney-General of New Zealand sued on the basis he is vicariously liable for the actions of the thirteenth defendant. The fifteenth defendant, Ms Meechan, is Mr Jones’ former wife. The sixteenth defendant is a District Court Judge and a former close friend of Mr Jones. The unknown defendants sued as the seventeenth defendant appear to be sued on a quia timet basis.

[8]    The plaintiff separately alleges that the first to ninth defendants have caused him loss in the course of their dealing and interaction with him or horses that he has had an interest in. In relation to the first to fourth defendants he alleges they caused him loss in respect of yearling sales for a number of named horses. He then alleges the fifth defendant failed to race his horses in accordance with their true ability. In relation to the sixth and seventh defendants he says they acted in bad faith and dishonestly in the services they provided to him in respect of agistment, care and marketing of his horses. Mr Jones alleges the actions of the eighth and ninth defendants’ veterinary care of a named horse caused him loss.

[9]    In addition, Mr Jones claims against the first to ninth defendants, and each of the tenth, eleventh, twelfth, thirteenth, sixteenth and seventeenth defendants that they have breached Mr Jones’ privacy by “being aware of and seeking out private information in relation to the plaintiff and being aware of other parties acting in the same manner” and that they have harassed the plaintiff by “acting in a manner intended to intimidate or humiliate the plaintiff”. In relation to Ms Meechan, the fifteenth defendant, Mr Jones alleges that she was aware of the actions of certain of the first to ninth defendants and then repeats the general allegations that she has breached his privacy and has harassed him.

[10]The causes of action pleaded are:

(a)unlawful conspiracy to cause financial harm;

(b)lawful conspiracy;

(c)breach of privacy; and

(d)harassment.

[11]In each cause of action Mr Jones seeks:

(a)an award of exemplary damages against each of the defendants in the sum of $5 million;

(b)an account of the profits made from each of the defendants’ business activities since the commencement of their actions against the plaintiff; and an order for disgorgement of those profits.

[12]   In relation to the additional claim against Jagose J and the Attorney-General in the fifth and sixth causes of action Mr Jones pleads that when Jagose J heard a case involving a claim by New Zealand Bloodstock Finance and Leasing Limited against him the Judge acted in a biased manner, exhibited bad faith towards him and failed to protect his entitlement to natural justice under the New Zealand Bill of Rights Act 1990.

[13]   Again, in those two causes of action, Mr Jones seeks exemplary damages against each of Jagose J and the Attorney-General in the sum of $5 million together with an account of losses suffered by him as a result of those breaches.

[14]   The application for an interim injunction is supported by an affidavit by Mr Jones. Although it is not sworn Mr Jones has filed a memorandum in compliance with r 9.73(4) of the High Court Rules in which he confirms that he is not presently able to swear or affirm the affidavit given the alert level 3 Public Health restrictions. Mr Jones has confirmed that the affidavit contains the same evidential material as it would have

if sworn or affirmed in compliance with subcl (2) or (3) of r 9.73 and he has undertaken to file a sworn version of the affidavit as soon as circumstances reasonably permit.

The claims against Jagose J and the Attorney-General in the fifth and sixth causes of action.

[15]   The proposed claim against Jagose J in the fifth cause of action and the related claim against the Attorney-General based on vicarious liability in the sixth cause of action are clear abuses of process. They have no prospect of success. At common law judges of superior courts have always had immunity from suit when carrying out their judicial function. The Supreme Court recently confirmed that to be the position in Attorney-General v Chapman.1

[16]   Further, as judges of the superior courts have always been immune from suit there can be no question of the Crown or State being vicariously liable for their actions.2

[17]   It follows that the claims against Jagose J and the Attorney-General in the present case based on Jagose J’s actions in the previous proceeding cannot succeed and must be struck out.

The first to fourth causes of action

[18]That leaves the claims against the defendants in the first four causes of action.

[19]   I acknowledge that the right to bring proceedings before the courts is a fundamental right and a court will act cautiously before striking out or staying a proceeding. There are however reasonable limits to the recourse to law as confirmed by the Court of Appeal in Faloon v Planning Tribunal at Wellington.3

[20]   The Court has an obligation to ensure that its processes are not abused and also to protect defendants from oppressive and frivolous proceedings. The broad public interest and the private interests of individual parties who may otherwise be drawn

1      Attorney-General v Chapman [2011] NZSC 110 at 161.

2 At [175]. See also Crown Proceedings Act 1950, s 6(5).

3      Faloon v Planning Tribunal at Wellington [2020] NZCA 170.

into entirely unmeritorious proceedings are to be considered and must be weighed against the right of a litigant to bring proceedings.

[21]   If misused, the judicial process can produce unfairness which can undermine confidence in the administration of justice. In striking out or staying potentially abusive proceedings the Court is acting to protect its ability to function as a court of law in the future as much as in the case before it. The public interest and the due administration of justice necessarily extend to ensuring that the Court’s processes are fairly used and that they do not lend themselves to oppression and injustice against others.4

[22]   More recently the Court has approached similar referrals on the basis of whether it would be manifestly unfair to the respondents they be required to respond to the proposed claim and whether right thinking people would regard the Court was exercising very poor control of its processes if it were to allow the applicant’s claims to be regarded as proper claims that require a formal response.5

[23]   The claims against the defendants that allege a conspiracy, be it unlawful or lawful are an abuse in their present form. The allegation of an unlawful conspiracy in particular is a serious allegation. A lawyer has an obligation not to raise allegations of fraud, dishonesty or other reprehensible conduct unless the lawyer has taken appropriate steps to ensure that reasonable grounds for making the allegations exist.6 The current pleading lacks any apparent basis to support the allegations of conspiracy be it unlawful or lawful, between the defendants.

[24]   The conspiracy pleading is fundamentally flawed in that it lacks any pleading or particulars of an agreement between the defendants to support the bare allegation of conspiracy.

[25]   The claims against the defendants based on the allegations of breach of privacy or harassment also fall into the category of being an abuse of process. Again, apart

4      Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 at [9] (CA).

5      Mathiesen v Fildes [2017] NZHC 2258 at [4].

6      Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 13.8.

from general allegations no particulars are provided in the pleadings to support the bare allegations of breach of privacy and harassment.

[26]   Reference to Mr Jones’ affidavit to support the application for injunction does not assist his case. For example, in relation to the allegation against the eleventh defendant the only references to her in the affidavit are:

108.I have referred in my affidavits in the High Court proceeding to Helen Rice making some untoward remarks towards me in respect of my personal relationship going forward. I believe Helen is well aware of the circumstances of which I complain and the harassment that I have been subjected to. She has in fact partaken in this in a direct way in my belief.

109.Her animosity towards David Heaney, my former legal partner, and her is well known. About two years ago I chose to have lunch with David at a restaurant in town and Helen Rice appeared immediately after David and I had left the restaurant. This was not by chance. Nor was it by chance that shortly after I dropped my son [REDACTED] off at [school] on my way to work Helen crossed the road (admittedly close to where she lives) to walk about 15 metres behind him with the phone to her ear as he made his way into school. By chance? About as much chance as meeting me after my lunch with David Heaney.

110.Similarly, Brett McDonald, the horse trainer who I have referred to as having difficulties with both in relation to him and his sons, telephoned me one morning just as Helen Rice was walking passed me on a path to Albert Park. The timing was perfect and by chance again? I do not believe so. Helen has worked for me and provided me with some work as a barrister, but as matters have progressed with people such as Bruce Gray and me and as I continue to attempt to assert my independence and to break myself and my sons free from the nonsense that has occurred, people have taken an adverse view of me. I believe the instances I have referred to support my allegation that Helen is aware of the breaches of privacy and harassment that have occurred to me and has been part of my life and the battle for me to gain my independence.

[27]   Similarly, as another example, in relation to the claim against Judge Harrison, it is said at [134] to [137]:

134.Gary Harrison has been a friend of mine for 50 years. He knows my [family well]. I have no doubt at all that Gary is aware of the nature of the dispute that I have with a number of people, the individuals involved and the reasons for their animosity towards me. I have no doubt as well that he is aware of the means by which my whereabouts is known at any particular time for the purposes of carrying out the harassment that I have referred to in my evidence and I have no doubt as well that he is aware of those who do not wish me well and has the facility, as a result, to inform me or the Police if necessary of those

who are acting against me. His wife, Andrea Manuel is a close friend of Helen Rice's and I share the same concerns in relation to Gary as I do in relation to Helen.

135.Our friendship has deteriorated badly as a result of his failure to act appropriately in relation to all that has occurred to me of which I am certain he is aware. By way of evidence in support of my concerns over his knowledge of my affairs I recall him saying to me on 1 January 2016, as I went to watch a horse of mine race at Ellerslie, that it was not likely to be a good day. The horse in question, San Miguel, bled and I have always recalled the portentous claim he made.

136.In terms of breaches of privacy, of all the contact I have had with Gary I refer for the moment to just one specific instance that occurred before we were to go to Australia on one of the regular annual golf trips that I took with Gary and my friends, he turned up standing directly behind me in a bank in Queen Street with a smile on his face as if he knew exactly where I was.

137.I can add I think that if the types of knowledge of others that I have referred to is common place then because of Gary's long term friendship with me he certainly does know about the issues I have spoken about in these proceedings and he has had, as a result, the power to prevent them from occurring by using his knowledge to bring them to an end which I believe he has chosen not to do. If Gary tells the truth as is the case with all these Defendants, these proceedings will not last very long and will be resolved in my favour.

[28]   It would be an abuse of process to require Ms Rice and Judge Harrison to respond to claims for $5 million based on such conjecture.

[29]   The allegations against the remaining defendants of breach of privacy, and harassment are similarly speculative and general. They are abusive, frivolous and vexatious. The vexatious nature is confirmed by the claim for $5 million exemplary damages and request for an account of profits (when none of the tenth to seventeenth defendants are said to have had any business dealings with Mr Jones).

[30]   The affidavit of Mr Jones is concerning in a number of respects. It raises substantial issues as to his competence and current state of mind. For example, at paras 78 to 80 of his affidavit he says:

78.During this period I had become accustomed to members of my staff who had worked with me attempting to leave messages of a discrete nature. They were similar in manner to the types of messages that my sister-in-law and ex-wife had left. I remember so well the call from Mr Ellis and a red pen being left on my staff member's table in a prominent position that signalled “danger” about the warning I had

just been given in relation to what was about to occur. I am clear in this view. Looking back on it members of my staff I believe had allegiances elsewhere in terms of my bloodstock and personal life and the hiring of people by me was an opportunity for others to both get an insight into and undermine my businesses.

79.In more recent times, a different staff member left a pen on the floor of her office pointing at the bottom of her set of drawers next to a desk. As a relatively tidy person, leaving the pen on the floor pointing at the bottom of a set of drawers that were open seemed strange and out of character to me. But I then recalled that I had just moved into a new home and had purchased from the chemist something for a medical ailment from which I have now recovered and I had left what I had purchased in the bottom of a set of drawers next to my bed. Two young ladies were cleaning the house and generally preparing the place for me and would see what I had purchased in the bottom part of the drawer. What I now believe occurred is that there was and probably still is in existence some type of social media connection that obtains information in relation to me and circulates that to a wider base. The coincidence between the pen on the floor and the presence of the medical supplies placed next to my bed was just too much bearing in mind all the “messages” that I had received and were given to me in order to destabilise my life. I annex hereto marked “I” a depiction of the message that was left for me then.

80.The same staff member left a yellow and black felt tip pen conspicuously on the floor pointed at a multi plug power point and the next day I was at a function and Catherine Sandelin was dressed in the same black and yellow colours which I regarded as another instance of attempting to place subtle pressure on me that people were “gas lighting” me I think the phrase might be and I wanted nothing to do with it: Again I depict the message that was left for me on that particular afternoon marked “J”.

[31]Then, later, in discussion in relation to his dealings with Mr Gray he says:

101.He [Mr Gray] did not respond in any meaningful way. Within a few days I ran into Bruce Gray again in Commerce Street. I think after that slightly torrid discussion he was making his “presence” felt. At the same time Rob Coltman, a partner in Duncan Cotterill appeared next to us. Coincidence? Not in my opinion as this was a well-practised habit. At appointment times people would meet me and Bruce Gray and Rob Coltman met me that morning. The significance? My son [REDACTED] plays for [REDACTED] Club. Not long after that “chance meeting” my son was not picked in a “colts” cricket team to represent [REDACTED]. For the next two months, the [REDACTED] Club member in charge of [REDACTED] Colts Cricket who works in my building would regularly “present himself” in my view as a reminder of what might happen if I rock the boat. The “play” on my son's name, his cricket team and Mr Coltman were again typical of the type of behaviour my sister-in-law had participated in.

102.Earlier this year when I was driving to [Rosemini] College to watch [my son] play cricket I noticed a black pickup truck drive quickly past

me and swerved to attract my attention with the registration plate ETA. As I will mention that type of action had been associated with messages sent to me and interpreted the ETA as odd. This might seem unusual but my oldest son has a peanut allergy and the rather strange driving of the vehicle with the registration plate like that (with previous explained issues in relation to motor vehicles) seemed somewhat odd but I thought about it a little and carried on.

103.Within about an hour my son [REDACTED] was assaulted (shoulder charged) by an opposition bowler blatantly and forcibly. The connection of the two events was clear.

[32]   To allow the claims for conspiracy (be it unlawful or lawful) and the related claims of harassment and breach of privacy based on the pleadings and evidence such as that contained in the affidavit to be processed and served on the defendants would be to allow the processes of the Court to be used as an abuse and would be an unreasonable imposition on the defendants. The Court has a responsibility not to permit such an abuse.

[33]   As to the proposed claims against the first to ninth defendants in relation to their actions in relation to specific transactions or actions involving Mr Jones’ horses, without commenting on the merits of such claims, it is possible that a claim could be pleaded in a form of breach of contract, negligence, or even conspiracy (if properly pleaded) which could properly be engaged with and responded to by those first to ninth defendants. However, the claim is not presently in such a form.

Result/orders

[34]   The claims against Jagose J and the Attorney-General in the fifth and sixth causes of action are struck out as an abuse of process.

[35]   The claims against the tenth to seventeenth defendants in the first to fourth causes of action are also struck out as an abuse of process.

[36]   The claims against the first to ninth defendants are stayed pending an amended pleading in proper form being filed against those defendants.

[37]   Before any such amended claim is accepted and released for service it is either to be confirmed by a Queen’s Counsel as a proper pleading or if not, it is to be referred to a judge of this Court and to be approved by a judge of this Court.

[38]   The stay will remain in place until 31 March 2022. In the event that no amended claim is filed satisfying the above requirement by that date the claim against the first to ninth defendants will also be struck out with no further action required.

[39]   In accordance with r 5.35B(3) Mr Jones is advised of his right of appeal to the Court of Appeal against this decision.

[40]   In accordance with r 5.35B(4) a copy of this decision is to be provided to the defendants.

Costs

[41]   As the proceeding has not been served on any party there will be no order for costs.

Venning J