Karmarkar v Moore

[2020] NZHC 3480

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1144

[2020] NZHC 3480

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

MADHAV HARI KARMARKAR

Applicant

AND

SAMUEL MOORE

Respondent

Hearing

29 October 2020 with further submissions on 3 and 17 November

2020

Appearances:

Applicant in person Respondent in person

Date of judgment

21 December 2020

JUDGMENT OF PALMER J

This judgment was delivered by me on Monday, 21 December 2020 at 4.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

…………………………

Registrar/Deputy Registrar

Parties:

Applicant in person

Samuel Moore, Barrister, Auckland

KARMARKAR v MOORE [2020] NZHC 3480 [21 December 2020]

What happened?

[1]    On 13 July  2020,  Mr  Madhav  Karmarkar  applied  for  judicial  review  of a decision by the Legal Complaints Review Officer (LCRO) regarding a complaint made by his company, Jayashree Ltd, against Mr Samuel Moore, who had acted for the company. Jayashree Ltd sought to appeal an Environment Court decision in the High Court. It engaged Mr Moore to do so but terminated his services before the hearing. Mr Karmarkar represented Jayashree Ltd and lost the case. Costs were awarded against Jayashree Ltd. Mr Karmarkar settled the costs claim.

[2]    Mr Karmarkar alleges Mr Moore failed to exercise sufficient care and skill and failed to provide a successful argument to win a case for his company in the High Court. Jayashree Ltd, through Mr Karmarkar, complained about Mr Moore’s fees and conduct to the Standards Committee of the New Zealand Law Society, which dismissed the complaint. It considered Mr Moore and his staff had spent considerable time on the retainer prior to its determination and the final invoice was fair and reasonable for the work undertaken.1 Jayashree Ltd, through Mr Karmarkar, appealed to the Legal Complaints Review Officer (LCRO). The LCRO considered the Standards Committee had failed to address Mr Karmarkar’s broader complaint about Mr Moore’s conduct.2 On the basis of a careful review of the evidence, the LCRO was not persuaded Mr Moore failed to provide Mr Karmarkar with competent representation and considered the fees charged were fair and reasonable.3

[3]    Mr Karmarkar now seeks to challenge the LCRO’s decision. The legal grounds of review in the statement of claim are difficult to discern but, as best as I can determine, appear to be that:

(a)The LCRO did not take into  account  the  resource  consent  which Mr Karmarkar submitted vindicated his substantive arguments before the  Environment  Court  and  it  failed  to  take  into  account  that  Mr Moore’s argument was based on there being three dwellings rather

1 Notice of Decision by Central Standards Committee 2, dated 21 January 2020, at [15].

2      Karmarkar v Moore [2020] NZLCRO 112 at [29].

3      At [68] and [82].

than two. The LCRO erred in not conclusively ascertaining whether Mr Moore’s line of argument was erroneous.

(b)The LCRO erred in commenting on Jayashree Ltd’s settlement with the Auckland Council and erred in not hearing witnesses Mr Karmarkar wanted to call.

(c)Mr Karmarkar’s substantive complaint of incompetent and wrong argument by Mr Moore is yet to be addressed.

(d)Mr Karmarkar seeks orders excusing his liability for payment of all unpaid invoices to Mr Moore and ordering Mr Moore to pay him $7,750 and costs.

[4]    The proceedings made no progress after several calls in the Judicial Review List:

(a)The  first  call  was  adjourned  on  27  August   2020,  by  me,  so   Mr Karmarkar could either find counsel to represent his company or pursue the proceeding on his own behalf (and face an application to have it struck out on the basis of standing) and so he could serve the proceedings on the LCRO.

(b)On 10 September  2020,  Fitzgerald  J  adjourned  the  call  because Mr Karmarkar had not taken further steps and on the basis no further adjournment was likely.

(c)On 8 October 2020 Mr Karmarkar requested a further three-week adjournment to secure legal representation of his company. Mr Moore asked  for  unless  orders  to  progress  the  proceedings.    I  gave    Mr Karmarkar two weeks to find legal representation for his company and file an Amended Statement of Claim and accompanying memorandum about whether and how the proceedings would be progressed. If he did not do that by 5 pm Thursday 22 October 2020,

I gave leave for Mr Moore to file and serve an application to strike out the application for judicial review and Mr Karmarkar to file and serve any notice of opposition, which I would hear in the List on 29 October 2020.

[5]    On 29 October 2020, Mr Karmarkar sought a further three-week adjournment. Mr Moore applied to  strike out  the application but  he applied one day later than     I allowed. Mr Karmarkar had not filed and served a notice of opposition by the time of the call in the List but he wished to do so. I heard oral argument from Mr Karmarkar and Mr Moore about the application to strike out. I gave leave to Mr Karmarkar to file and serve a notice of opposition and a supporting affidavit, which he has done.

Submissions

[6]    Mr Moore submits Mr Karmarkar is using the litigation to embarrass Mr Moore from recovering legal costs. He submits the majority of issues raised in the application for judicial review are new issues that were not part of Mr Karmarkar’s original complaint, were not before the LCRO whose decision is challenged, and have no legitimate basis. He submits Mr Karmarkar was not forced to settle with the Council but simply lost the  case  after  he  terminated  Mr  Moore’s  services.  He  submits Mr Karmarkar is seeking to challenge the appropriateness of a legal argument that was never made in Court, rather than to challenge the LCRO decision. He submits the cause of action is not reasonably arguable. Mr Moore says he has attempted to be as understanding and pragmatic as he can but there is obvious delay and prejudice and an abuse of process and the proceedings should be struck out.

[7]    Mr Karamarkar submits Mr Moore’s incompetent arguments on his company’s behalf forced him to settle with the Auckland Council on disadvantageous terms despite him being in the right. He submits the LCRO identified the correct issues in its decision but erred in commenting on the settlement and he is merely seeking justice. He submits he should be given the opportunity to argue the substantive issue of why Mr Moore did not represent him properly. He provides an affidavit about what he understands happened.

Should the proceedings be struck out?

1. Rule 15.1 of the High Court Rules provides, relevantly:

15.1     Dismissing or staying all or part of proceeding

(1)The court may strike out all or part of a pleading if it—

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; 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 facts pleaded are assumed to be true.4 The causes of action must be so untenable that the Court must be certain they cannot possibly succeed. The jurisdiction is exercised sparingly. As Cooke J held in Ngāti Tama Ki Te Waipounamu Trust v Tasman District Council,  there is no automatic right to apply to strike out     a judicial review proceeding.5    The application of the High  Court Rules,  including  r 15.1, is subject to judicial control under ss 13 and 14 of the Judicial Review Procedure Act 2016. Whether a strike out application of a judicial review proceeding should be allowed to be argued depends on the most efficient procedural path for the proceedings in light of the overarching goal of a simple, untechnical and prompt approach to judicial review.6

[10]   The efficient procedural path for these  proceedings  has  been  delayed by Mr Karmarkar’s failure to either find legal representation of Jayashree Ltd. He has elected to pursue the proceedings through the company. It would be contrary to good authority,  and  good  reason,  for   Mr   Karmarkar   to   represent   the   company. Mr Karmarkar has been given more than enough time to find legal representation for the company. He has failed to do so over some four months. The attempts of which he has provided evidence include emails to in-house counsel, non-litigators and even

4      Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267 (cited approvingly by Elias CJ and Anderson J in Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33]).

5      Ngāti Tama Ki Te Waipounamu Trust v Tasman District Council [2018] NZHC 2166 at [19].

6      Hauraki Coromandel Climate Action Incorporated v Thames-Coromandel District Council [2020] NZHC 3228 at [21].

non-lawyers. I consider allowing the proceeding to remain on foot is likely to cause prejudice to Mr Moore and delay to the court system. I strike out the proceedings.

[11]   I note that even if Mr Karmarkar were able to pursue the proceedings, they appear to have little merit. Mr Karmarkar appears to confuse judicial review of the LCRO decision with the substance of his complaint against Mr Moore and/or the substance of his case before the Environment Court. Even if the judicial review were successful, the Court would be very unlikely to excuse liability for payment of unpaid invoices.

Palmer J