Mathiesen v Fildes

[2017] NZHC 2258

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 another party or would otherwise bring the administration of justice into disrepute. There are no fixed categories of abuse of process.  These aspects were recognised by

the Court of Appeal in Reid v New Zealand Trotting Conference,1  when the Court adopted the following passage of Lord Diplock in Hunter v Chief Constable of the West Midlands Police:2

My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.

The applicants’ originating document

[5] The applicants’ originating document in this case is unacceptable for reasons both of form and substance. I return to form at [10] below. I first concentrate on substance as the document is in substance an abuse of process.

[6]      The document is lengthy and rambling, containing much narrative detail.  It lacks logical development.   It repeatedly incorporates legal propositions and submissions and matters of evidence, often without apparent connection, which go far beyond the statement of material allegations.  It states on its front sheet that it is a “contempt proceeding” and names both an Official Assignee and the Law Commission as respondents, although it identifies no relief sought.   Twenty-one paragraphs which appear under a heading “the grounds for alleging contempt…” set out  a  wide  range  of  events  and  other  allegations  which  can  have  no  material relevance to a contempt proceeding against the two respondents.   The same paragraphs include scandalous allegations concerning judges.

[7]      In terms of Lord Diplock’s speech in Hunter v Chief Constable of the West Midlands Police, it would be manifestly unfair to the named respondents that they be constrained to respond to the applicants’ document.  Also in terms of Lord Diplock’s

speech, right-thinking people would regard this Court as exercising very poor control

1      Reid v New Zealand Trotting Conference [1984] 1 NZLR 8, at 9.

2      Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536.

of its processes if it were to allow the applicants’ document to be regarded as a proper document for filing let alone one to which intended respondents should have to respond whether in pleading or other form.

[8]      When this point is reached, this Court has a duty, not a discretion, to strike out.3

[9]      The  applicants’ originating  document  is  therefore  abusive  and  should  be

struck out on that basis alone.

[10]     I now briefly return to matters of compliance with procedural rules.  Beyond the abusive aspects of the applicants’ document, there exist in the applicants’ document many unacceptable formal defects.   The applicants are required to familiarise themselves with the High Court Rules in order to file a substantially compliant document.  The applicants’ document has so many defects of form that the Registrar would have been entitled to reject it for those defects whether or not it was also abusive in its content.

Appropriate order

[11]     The applicants’ originating document is not one that is reasonably capable of salvage.  If the applicants or either of them believe they have a tenable basis of relief against one or both of the respondents, it is essential to the interests of the administration of justice that they present such claim in a fresh document which complies with all procedural requirements and does not abuse the Court’s process.

Order

[12]     I order:

(a)       Pursuant to r 5.35B(2)(a) High Court Rules, this proceeding is struck out.

3      Hunter v Chief Constable of the West Midlands Police, above at n 2; Wilson v R [2015] NZSC

189 at [154] per Elias CJ.

(b)Pursuant  to  r  5.35B(4)  the  applicants  must  serve  a  copy  of  this decision upon the respondents as soon as practicable.

(c)       The applicants are informed that they have the right to appeal against this decision.

Associate Judge Osborne

Copy:

G P Mathiesen and G W C McNab