IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2017-409-000696 [2017] NZHC 2258
UNDER the Insolvency Act 2006 AND
IN THE MATTER
of the bankruptcy of GABRIELLE PAULETTE MATHIESEN
BETWEEN
G P MATHIESEN AND ANOTHER AS TRUSTEES OF THE SWEET PEA FAMILY TRUST
Applicants
AND
R D FILDES First Respondent
AND
THE LAW COMMISSION Second Respondent
Representation: G P Mathiesen and G W C McNab (Applicants) in person Judgment:
18 September 2017
Determined on the papers
JUDGMENT OF ASSOCIATE JUDGE OSBORNE [striking out proceeding]
[1] On 1 September 2017, a document was filed in the names of Gabrielle Paulette Mathiesen and Gordon Wallace Cameron McNab which the Registry took in as being in the nature of an originating application.
[2] The Registrar has referred the document to me for consideration under r 5.35B High Court Rules as a document which appears plainly to be an abuse of the
process of the Court.
MATHIESEN v FILDES [2017] NZHC 2258 [18 September 2017]
The jurisdiction
[3] Rule 5.35B applies when a Registrar refers a proceeding to a Judge under r
5.35A. Rule 5.35B provides:
5.35B Judge’s powers to make orders and give directions before service
(1) This rule applies if a Judge to whom a Registrar refers a proceeding under rule 5.35A is satisfied that the proceeding is plainly an abuse of the process of the court.
(2) The Judge may, on his or her own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that—
(a) the proceeding be struck out:
(b) the proceeding be stayed until further order:
(c) documents for service be kept by the court and not be served until the stay is lifted:
(d) no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).
(3) Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.
(4) A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.
(5) See rule 2.1(3)(b) concerning the exclusion of the jurisdiction and powers of a Judge under this rule from the jurisdiction and powers of an Associate Judge.
The concept of abuse of process
[4] The inherent power which this Court possesses and the express powers contained in rr 15.1(1) and 5.35B High Court Rules enable the Court to prevent misuse of its process when the procedure being adopted would be manifestly unfair to…
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- AGLC
- Mathiesen v Fildes [2017] NZHC 2258
- Case
- [2017] NZHC 2258
- Decision Date
CaseChat Overview and Summary
The Associate Judge Osborne, in delivering the judgment, first considered the inherent power of the Court to prevent misuse of its process when the procedure being adopted would be manifestly unfair to another party or would otherwise bring the administration of justice into disrepute. The judge noted that there are no fixed categories of abuse of process. The judge then proceeded to examine the applicants' originating document, which was found to be unacceptable both in form and substance. The document was lengthy, rambling, and lacked logical development. It repeatedly incorporated legal propositions, submissions, and matters of evidence that went far beyond the statement of material allegations. The document also contained scandalous allegations concerning judges, which had no material relevance to the contempt proceeding against the respondents. The judge concluded that the applicants' document was abusive and should be struck out on that basis alone. The judge further noted that the applicants' document had many unacceptable formal defects and that the applicants were required to familiarize themselves with the High Court Rules to file a substantially compliant document. The judge held that the applicants' originating document was not reasonably capable of salvage and that if the applicants believed they had a tenable basis of relief against one or both of the respondents, they should present such a claim in a fresh document that complied with all procedural requirements and did not abuse the Court's process.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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