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Mathiesen v Fildes

Mathiesen v Fildes

Case [2017] NZHC 2258 18 September 2017

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mathiesen v Fildes

Details

AGLC: Mathiesen v Fildes [2017] NZHC 2258
Case: [2017] NZHC 2258
Decision Date: 18 September 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Mathiesen v Fildes involved an originating application filed by Gabrielle Paulette Mathiesen and Gordon Wallace Cameron McNab, who sought to present a document on behalf of the Sweet Pea Family Trust in relation to the bankruptcy of Mathiesen. The first respondent was R D Fildes, and the second respondent was the Law Commission. The application was considered by the Associate Judge Osborne, who determined that the document filed was an abuse of the Court's process. The legal issues at hand were whether the proceeding was an abuse of process and whether the applicants' document was reasonably capable of salvage. The court held that the applicants' document was not reasonably capable of salvage and struck out the proceeding. The court emphasized that the document was abusive both in form and substance, lacked logical development, and contained scandalous allegations that were irrelevant to the proceedings. The applicants were informed that they had the right to appeal against the decision.

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