IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-476-20
[2018] NZHC 1032
BETWEEN
GABRIELLE PAULETTE MATHIESEN and GORDON WALLACE CAMERON McNAB
Applicants
AND
GRANT EDWARD SLEVIN
First Respondent
RUSSELL DAVID FILDES and ROBYN ANN COX Second Respondent
PWC TRUSTEES LIMITED and MARK CLARK
Third Respondent
Hearing:
On the papers
Counsel:
Applicants in person
Judgment:
11 May 2018
JUDGMENT OF WHATA J
This judgment was delivered by me on 11 May 2018 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
MATHIESEN v SLEVIN [2018] NZHC 1032 [11 May 2018]
[1] I have what appears to be an originating application for removal of Russell David Fildes as Assignee in bankruptcy of the property of Gabrielle Paulette Mathieson. The application alleges “gross incompetence” by Mr Fildes. Particulars of the alleged gross incompetence are not provided. No evidence of or supporting information about, the alleged gross incompetence is provided.
[2] There is an accompanying memorandum. It provides no information as to the basis for the allegation of incompetence. However, it does contain further bald allegations against Mr Fildes and a Mr Slevin of contempt against the administration of justice and in respect of the Ministry of Justice employees an implied allegation of “baneful intervention” over a long period of time.
[3] The memorandum also contains a request for personal information about a particular deputy registrar, that is, whether the deputy registrar is related to Dunningham J. The request is accompanied by a warning that “unless a written answer to this important matter is received today, a Member of Parliament will ask the question in Parliament, next sitting day, or as soon after this constitutionally important question can be asked.” There is no obvious relationship between this request and the application. It is to be inferred that the basis for the request is an allegation of maladministration.
[4] This matter has been referred to me by the registrar pursuant to High Court Rule 5.35B.
High Court Rule 5.35B
[5]High Court Rule 5.35B provides:1
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.
1 High Court Rules 2016, r 5.35B.
(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…
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.
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Mathiesen v Slevin [2018] NZHC 1032
Case
[2018] NZHC 1032
Decision Date
CaseChat Overview and Summary
Mathiesen v Slevin [2018] NZHC 1032 is an originating application for the removal of Russell David Fildes as Assignee in bankruptcy of Gabrielle Paulette Mathieson. The applicants allege "gross incompetence" by Mr Fildes but do not provide any particulars or evidence to support this claim. The memorandum accompanying the application contains further allegations against Mr Fildes and a Mr Slevin of contempt against the administration of justice, as well as an implied allegation of "baneful intervention" over a long period of time. The memorandum also contains a request for personal information about a particular deputy registrar, which is unrelated to the application. The matter was referred to the court pursuant to High Court Rule 5.35B, which allows a judge to make orders or give directions to ensure that a proceeding complies with the rules if it is plainly an abuse of the court's process. The court adopted a two-pronged test for strike out purposes under this rule, considering whether it would be manifestly unfair to the respondents to require them to respond and whether right thinking people would regard the court as exercising very poor control of its processes if it were to allow the application to be regarded as a proper document. The court was satisfied that it would be manifestly unfair to the respondents to require them to respond to the application and that it would be wrong to permit the application to be regarded as a proper document. The court also rejected the request for personal information about a particular deputy registrar, noting that the release of private information of court staff is subject to the Privacy Act 1993 and the Official Information Act 1982. The court's judgment was recalled to note that no significance should be attached to the comment that the allegation of gross incompetence was not inherently unsustainable. The court emphasized that it was a bare allegation only.
The court stayed the application subject to the filing of a notice of proceeding and statement of claim (with full particulars) in accordance with Part 5 of the High Court Rules and further order of the court. The court's approval will be conditional on, among other things, the state of the pleadings. The applicants must be informed of their right to appeal this decision. The court also noted that a copy of this ruling is to be served on the applicants and the intended respondent.