Koyama v New Zealand Law Society
[2014] NZHC 2520
•14 October 2014
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2014-485-002343 [2014] NZHC 2520
IN THE MATTER of application for Judicial Review of the
decisions of the Human Rights Review Tribunal and recall of the decisions of the High Court
BETWEEN
TATSUHIKO KOYAMA Applicant
AND
NEW ZEALAND LAW SOCIETY First Respondent
ATTORNEY-GENERAL Second Respondent
Hearing: 20 August 2014 Counsel:
No appearance for Applicant
P N Collins for First Respondent
H M Carrad for Second RespondentJudgment:
14 October 2014
JUDGMENT OF COLLINS J
Introduction
[1] This judgment explains why I am striking out Mr Koyama’s application for judicial review. Mr Koyama’s statement of claim contains five causes of action
which I explain in paragraph [15] of this judgment.
KOYAMA v NEW ZEALAND LAW SOCIETY [2014] NZHC 2520 [14 October 2014]
[2] I am striking out Mr Koyama’s proceeding because:
(1)The first and fifth causes of action disclose “no reasonably arguable cause of action”1 against the New Zealand Law Society (NZLS); and
(2) All five causes of action are “frivolous or vexatious”;2 and
(3)The second to fifth causes of action are a collateral attack on decisions of the Human Rights Review Tribunal (the Tribunal) and the High Court which have found against Mr Koyama in relation to issues he wishes to relitigate in his judicial review proceeding. Mr Koyama’s proceeding is therefore an abuse of the processes of the
Court.3
Mr Koyama’s position
[3] Mr Koyama did not appear when the NZLS’s strike-out application was heard by me on 20 August 2014. Mr Koyama did, however, file a memorandum in which he “protests the jurisdiction of the High Court regarding this matter”.4 Mr Koyama says he has:5
filed two applications in the Supreme Court. Neither of the applications was dismissed by at least two Justices of the Supreme Court, in accordance with s 27(2) of the Supreme Court Act 2003. Therefore he will not participate in the proceeding.
[4] I shall explain Mr Koyama’s Supreme Court proceedings when I set out the background to his judicial review proceeding. Suffice for present purposes to note:
(1)On 1 April 2014 Glazebrook J dismissed an application by Mr Koyama to review a decision of the Registrar of the Supreme Court in which the Registrar had refused to accept an application
from Mr Koyama for leave to appeal a decision of Dobson J dated
1 High Court Rules, r 15.1(a).
2 Rule 15.1(c).
3 Rule 15.1(d).
4 Applicant’s memorandum, 12 August 2014, at [7].
5 At [2].
13 March 2014. In his 13 March decision Dobson J dismissed Mr Koyama’s application to recall a judgment Dobson J gave against Mr Koyama on 17 July 2012.
(2)On 30 July 2014 McGrath J issued a minute in which he ruled that the Registrar of the Supreme Court had to receive Mr Koyama’s application for leave to appeal a decision of Clifford J delivered on
28 May 2014. In his 28 May decision Clifford J dismissed Mr Koyama’s appeal from a costs decision of the Tribunal delivered on 28 May 2013. On 15 August 2014 Mr Koyama filed in the Supreme Court his application for leave to appeal the judgment of Clifford J. That application was dismissed by the Supreme Court on
10 October 2014.6
[5] Mr Koyama also says he did not receive a fixture notice concerning the hearing of the strike-out application on 20 August 2014. However, the strike-out application was originally set down to be heard on 16 June 2014. Mr Koyama applied to have that hearing adjourned. On 30 May 2014 I adjourned the strike-out application which was then set down for hearing on 20 August 2014. Mr Koyama was aware of the 20 August fixture because in his memorandum of 12 August 2014 he refers to the 20 August fixture.
Attorney-General’s position
[6] The Attorney-General has applied to be removed as second defendant. That application is rendered redundant by my decision to strike out Mr Koyama’s proceedings. Suffice to say, Mr Koyama’s decision to name the Attorney-General as a respondent was misconceived.
Background
[7] In 2005 Mr Koyama applied to the Canterbury District Law Society for a certificate of good character to support his application to be admitted as a barrister
and solicitor of the High Court. In March 2006 the Canterbury District Law Society
6 Koyama v New Zealand Law Society [2014] NZSC 144.
notified Mr Koyama that it would not issue him with a certificate of good character. Mr Koyama then applied to the Otago District Law Society for a certificate of good character, which it issued. Mr Koyama was admitted as a barrister and solicitor of the High Court on 1 May 2007.
[8] In April 2007 Mr Koyama lodged a complaint with the Human Rights Commission about the way his application for a certificate of good character had been dealt with by the Canterbury District Law Society. A similar complaint was lodged with the Privacy Commissioner in early 2008.
[9] On 3 September 2008 Mr Koyama sent an email to the Canterbury District Law Society in which he said his complaints to the Privacy Commissioner and Human Rights Commissioner had been dropped.
[10] On 24 December 2008 the Human Rights Commissioner received a communication from Mr Koyama which appeared to revive his earlier complaint to the Human Rights Commission. On 26 February 2009 the Human Rights Commission wrote to Mr Koyama advising that it was not going to reconsider his complaint.
[11] On 20 June 2009 Mr Koyama commenced a proceeding in the Tribunal against the NZLS. That proceeding was brought under the Human Rights Act 1993. Five days later Mr Koyama commenced a second proceeding in the Tribunal against the NZLS. That proceeding was brought under the Privacy Act 1993. Both proceedings related to the way Mr Koyama’s application for a certificate of good character had been dealt with by the Canterbury District Law Society. Mr Koyama’s proceedings in the Tribunal resulted in two substantive decisions from the Tribunal:
(1)Mr Koyama applied to have the Chairman of the Tribunal recuse himself because he was a member of the NZLS. This application alleged apparent bias on the part of the Chairman of the Tribunal. In a decision delivered on 18 February 2010 the Tribunal dismissed
Mr Koyama’s application.7
7 Koyama v New Zealand Law Society [2010] NZHRRT 2.
(2)The NZLS challenged the jurisdiction of the Tribunal to hear the proceedings because Mr Koyama’s complaints were against the Canterbury District Law Society. In a decision delivered on 19 July
2010 the Tribunal upheld NZLS’s applications and struck out both of Mr Koyama’s proceedings.8 The Tribunal concluded that the Canterbury District Law Society had been dissolved under the Lawyers and Conveyancers Act 2006 and that Mr Koyama’s complaints against the Canterbury District Law Society could not be pursued against the NZLS.
[12] Mr Koyama appealed the second of the Tribunal’s decisions. That appeal was dismissed by Dobson J on 17 July 2012.9 It is to be noted that before Dobson J heard Mr Koyama’s appeal a case management conference was convened by Wild J who issued a minute on 27 September 2010 in which it is recorded Mr Koyama did not want to have his appeal treated as an application for judicial review which would encompass the first decision of the Tribunal which it delivered on 18 February 2010. The details of that minute are recorded in paragraph [22] of Dobson J’s judgment.
[13] Thereafter Mr Koyama pursued a number of appeals and recall applications which can be summarised in the following way:
(1) On 30 October 2012 Kós J dismissed Mr Koyama’s application to
appeal to the Court of Appeal the judgment of Dobson J.10
(2)On 17 April 2013 the Court of Appeal dismissed Mr Koyama’s application for special leave to appeal the judgment of Dobson J.11 In its judgment the Court of Appeal referred to aspects of Mr Koyama’s proposed grounds of appeal in the following way:12
… the essence of the complaint is that the High Court when dealing with the appeal against the Tribunal’s decision on jurisdiction ought to have also dealt with
8 Koyama v The New Zealand Law Society [2010] NZHRRT 13.
9 Koyama v New Zealand Law Society [2012] NZHC 1725.
10 Koyama v New Zealand Law Society [2012] NZHC 2853.
11 Koyama v New Zealand Law Society [2013] NZCA 115.
12 At [14].
issues relating to the earlier decision on apparent bias. Given the procedural background in the High Court and the offer to treat the proceeding as a judicial review application to allow this to occur, we can see no basis for this complaint. But in any event the complaint clearly does not give rise to any question of law justifying an appeal to this Court.
(3) On 13 March 2014 Dobson J dismissed Mr Koyama’s application to
recall his earlier judgment.13
(4)On 1 April 2014 the Supreme Court dismissed Mr Koyama’s application to review a decision of the Registrar of the Supreme Court who had refused to accept Mr Koyama’s application for leave to appeal to the Supreme Court.14 I have referred to this decision in more detail in paragraph [4](1) of this judgment.
[14] In the meantime, on 28 May 2013 the Tribunal issued a costs decision in relation to its 2010 decisions.15 Mr Koyama applied to the Tribunal to recall this decision. That application was dismissed by the Tribunal on 18 September 2013.16
Mr Koyama then appealed that decision to the High Court. That appeal was dismissed by Clifford J on 28 May 2014.17 As I have noted in paragraph [4](2) of this judgment on 15 August 2014 Mr Koyama applied to the Supreme Court for leave to appeal the judgment of Clifford J. That application was dismissed on
10 October 2014.
The judicial review application
[15] Mr Koyama commenced his judicial review proceeding on 18 February 2014. In his proceeding Mr Koyama challenges the lawfulness of:
(1) The Tribunal’s first decision in which the Chairman of the Tribunal
declined to recuse himself. Mr Koyama alleges that the Chairman of
13 Koyama v New Zealand Law Society HC Wellington CIV-2013-485-6873, 13 March 2014.
14 Koyama v New Zealand Law Society [2014] NZSC 30.
15 Koyama v New Zealand Law Society [2013] NZHRRT 22.
16 Koyama v New Zealand Law Society [2013] NZHRRT 29.
17 Koyama v New Zealand Law Society [2014] NZHC 1146.
the Tribunal was biased and that the decision of the Tribunal was ultra vires.
(2)The Tribunal’s second decision in which it upheld the NZLS’s submission that the Tribunal had no jurisdiction to hear Mr Koyama’s complaints against the NZLS. Mr Koyama says this decision was wrong in law.
(3)The Tribunal’s 28 May 2013 costs decision. Mr Koyama says that decision breached the principles of natural justice because the Tribunal made its decision without a hearing being conducted or receiving submissions from the parties.
(4)The Tribunal’s 18 September 2013 decision in which it refused to recall its costs decision. Mr Koyama says that decision was ultra vires, biased, an abuse of process and “disrespectful of international law”.
(5) Dobson J’s decision declining to recall his earlier judgment.
Mr Koyama says Dobson J misdirected himself and that as a consequence his order was invalid.
Reasons for striking out the proceeding
Statement of claim discloses no reasonably arguable cause of action
[16] The criteria to strike out pleadings on the grounds they disclose no reasonably arguable cause of action was summarised by the Court of Appeal in Attorney-General v Prince18 and confirmed by the Supreme Court in Couch v
Attorney-General.19 I have proceeded on the following basis:
18 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
19 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
(1)Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.
(2) The cause of action must be clearly untenable. I should not strike out
Mr Koyama’s proceeding unless I am certain that it cannot succeed.
(3)The strike-out jurisdiction is to be exercised sparingly and only in clear cases.
(4)The jurisdiction to strike out is not excluded by the need to decide difficult questions of law.
(5)I should be particularly slow to strike out a claim in any developing area of the law.
[17] In my assessment, the first and fifth causes of action disclose no reasonably arguable cause of action.
First cause of action
[18] The first cause of action alleges the Tribunal erred when it dismissed Mr Koyama’s application to have the Chairman of the Tribunal recuse himself. Mr Koyama submitted that the Chairman was apparently biased because he held a practising certificate issued by the NZLS. In its decision the Tribunal recorded that
Mr Koyama’s complaint appeared:20
… to be that the Chairperson might be influenced against [Mr Koyama] because of a concern that, if the decision in due course were to be adverse to the NZLS, then the NZLS might retaliate by refusing to issue him (the Chairperson) with any further practising certificates.
[19] I have previously noted Mr Koyama declined the opportunity to either appeal
or judicially review the Tribunal’s first decision when he appealed from the
Tribunal’s second decision. The Court of Appeal has already observed that the
20 Koyama v The New Zealand Law Society [2010] NZHRRT 2 at [10].
issues Mr Koyama has with the Tribunal’s first decision did “not give rise to any
question of law justifying appeal to [the Court of Appeal].21
[20] There are two reasons why Mr Koyama’s first cause of action discloses no
reasonably arguable cause of action:
(1)The Chairperson of the Tribunal is appointed under s 99 of the Human Rights Act 1993 by the Governor-General on the recommendation of the Minister of Justice. The Chairperson of the Tribunal must be a barrister and solicitor of the High Court with no less than five years practise.22 Thus, Parliament appears to have contemplated that the Chairperson of the Tribunal would inevitably hold a practising certificate issued by the NZLS.
(2)The test for a judicial officer to recuse himself or herself on the grounds of apparent bias was explained by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd.23 The test
is:24
… a Judge is disqualified “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.
Mr Koyama has consistently failed by a wide margin to point to any basis upon which it could be thought that a fair-minded observer might reasonably apprehend that the Chairperson of the Tribunal might not have brought an impartial mind to the resolution of the issues raised in Mr Koyama’s proceeding before the Tribunal. His suggestion that the Chairperson should disqualify himself because if a decision was adverse to the NZLS then the NZLS might retaliate against the Chairperson is close to a suggestion of actual as opposed
to apparent bias. Even if the allegation is treated as one of apparent
21 Koyama v New Zealand Law Society [2013] NZCA 115 at [14].
22 Human Rights Act 1993, s 99A(2).
23 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.
24 At [3].
bias there is simply no basis upon which any Court could agree with Mr Koyama’s submission that the Chairperson of the Tribunal needed to recuse himself.
Fifth cause of action
[21] In his fifth cause of action Mr Koyama is attempting to judicially review a decision of Dobson J in which he refused to recall his earlier judgment. This cause of action discloses no reasonably arguable cause of action because the decision of Dobson J is not amenable to judicial review.
[22] The extent to which a High Court Judge may review or alter a decision made by another High Court Judge is “strictly circumscribed”.25 This reflects what was said by Lord Diplock in In re Racal Communications Ltd:26
Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court....
Frivolous or vexatious
[23] A proceeding is frivolous if it trifles with the Court’s processes.27
[24] A proceeding may be vexatious if it comprises a second or more attempt to bring proceedings to obtain judgment where earlier attempts in relation to the same allegations have been unsuccessful.28
[25] In my assessment Mr Koyama’s first and fifth causes of action are so
untenable because they are frivolous.
[26] I am also of the view that Mr Koyama’s second to fifth causes of action
involve him attempting to relitigate issues that have already been determined and as such, those causes of action are vexatious.
25 R v Holt [2008] NZCA 388, [2009] 1 NZLR 325 at [60].
26 Re Racal Communications Ltd [1981] AC 374 (HL) at 384. See also Bulmer v Attorney-General
(1998) 12 PRNZ 316 (CA).
27 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2
NZLR 679 at [99].
28 Registered Securities Ltd (in liquidation) v Yates (1991) 5 PRNZ 68 (HC).
Abuse of process
[27] Mr Koyama’s second to fifth grounds for judicial review are an abuse of process because he is attempting to relitigate matters already determined by a Court or Tribunal of competent jurisdiction.
[28] In Hunter v Chief Constable of West Midlands Police, Lord Diplock said:29
The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.
[29] The approach adopted by the House of Lords in Hunter v Chief Constable of of West Midlands Police has been followed in New Zealand.30
[30] The fundamental policy that weighs heavily against providing plaintiffs with an opportunity to relitigate issues that have been determined is the adverse effect of public confidence on allowing issues to be perpetually relitigated. This concern was expressed in the following way in Siemer v Heron:31
It can be an abuse of process to seek to relitigate matters already determined.32 It was stated in Moevao v Department of Labour:33
“The concern is with conduct on the part of a litigant in relation to the case which unchecked would strike at the public confidence in the Court’s processes and so diminish the Court’s ability to fulfil its function as a Court of law. …
Attempts to relitigate damage the court system. They place continued expenses and stress on the parties. They place work with the court system that will displace other causes which are brought for proper purposes. They are an abuse of procedure.
29 Hunter v Chief Constable of West Midlands Police [1982] AC 529 (HL) at 541;
30 Colman v Attorney-General [2013] NZSC 52, [2013] 2 NZLR 495 at [8]; Rafiq v Auckland
District Court [2013] NZHC 2640 at [17] and Rafiq v District Court at Auckland [2013] NZCA
585.
31 Siemer v Heron [2014] NZHC 1639 at [22]-[23].
32 Hunter v Chief Constable of the West Midlands Police, above n 29, at 541 and Barber v Green
Cabs Ltd HC Wellington CIV-2010-485-2221, 16 February 2011 at [33].
33 Moevao v Department of Labour [1980] 1 NZLR 464 (CA).
[31] The Tribunal and High Court decisions which Mr Koyama now wishes to challenge were final decisions in which appeal rights were available to Mr Koyama. Those appeal rights were either not pursued or pursued unsuccessfully. Thus:
(1)The decision of the Tribunal delivered on 19 July 2010 was a final decision of the Tribunal. It was unsuccessfully appealed to the High Court. The Court of Appeal declined special leave to appeal the High Court’s judgment. That litigation has been conclusively determined and cannot be reactivated by Mr Koyama.
(2)The decision of the Tribunal delivered on 28 May 2013 was the subject of a recall application to the Tribunal which was dismissed on
18 September 2013. That decision in turn was appealed to the High Court and dismissed. The Supreme Court has now dismissed Mr Koyama’s application for leave to appeal the High Court’s judgment. That litigation was also at an end and cannot be revisited by Mr Koyama in his judicial review proceeding.
(3)The decision of Dobson J was a final decision. The Supreme Court determined that there was no jurisdiction for Mr Koyama to appeal that decision to the Supreme Court. Mr Koyama cannot reactivate that litigation through his judicial review proceeding.
[32] In these circumstances I have little hesitation in concluding that Mr Koyama’s application for judicial review is a collateral attack on the Tribunal’s decisions, and the decisions of the High Court which have upheld the Tribunal’s decisions. As such Mr Koyama’s application for judicial review is an abuse of process.
Conclusion
[33] Mr Koyama’s proceeding is struck out.
[34] The NZLS is entitled to costs on a scale 2B basis.
[35] The Attorney-General is also entitled to costs on a scale 2B basis.
D B Collins J
Solicitors:
New Zealand Law Society, Wellington for First Respondent
Crown Law Office, Wellington for Second Respondent
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