Mathiesen v Slevin

[2018] NZHC 1032

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 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)       …

[6]                This Court in Mathieson v Fildes applied a two-pronged test for strike out purposes under this rule: 2

(a)Whether it would be manifestly unfair to the respondents that they be required to respond; and

(b)Whether right thinking people would regard this Court as exercising very poor control of its processes if it were to allow the applicants’ document to be regarded as a proper document.

[7]I adopt this two-pronged test.

Assessment

2      Mathiesen v Fildes [2017] NZHC 2258 at [4]. See also Reid v New Zealand Trotting Conference

[1984] 1 NZLR 8 (CA) at [9].

[8]                 This matter appears to have a lengthy history, but it is not for me to inquire into it. I am satisfied on the available information it would be manifestly unfair to the respondents that they be required to respond to the application and it would be wrong to permit the application to be regarded as a proper document. First, a bald allegation of incompetence, without any particulars, is incapable of generating anything other than a bald denial in response. A respondent ought not to be required to go to the time and expense of responding to such a claim. Second, the application is not in a proper form. The originating application procedure is inherently ill-suited to a generic claim of incompetence. Full pleadings are necessary.

[9]                 The present claim against Mr Fildes, however, is not, on its face, inherently unsustainable. My preferred course, therefore, is simply to stay the application subject to:

(a)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

(b)further order of the Court. The Court’s approval will be conditional

on, among other things, the state of the pleadings.

[10]              I also reject the request for personal information about a particular deputy registrar. The release of private information of court staff is subject to the Privacy Act 1993 and the Official Information Act 1982. The process for release of that information is governed by those Acts. There being no active proceeding before this Court touching and concerning the deputy registrar’s personal information, this Court has no remit to require it. In any event, an allegation of maladministration of justice by a High Court judge and a deputy registrar is a very serious matter. Careful pleadings are required before this Court would entertain such an allegation or a request for information relating to it.

[11]              A copy of this ruling is to be served on the applicants and they must be informed of their right to appeal this decision. It must also be served on the intended respondent.

Addendum

[12]              In response to my judgment, the respondents have identified a concern, that my comment that the allegation of gross incompetence is not inherently unsustainable adds to its gravitas. I made suppression orders pending due consideration of this issue3 and convened a telephone conference to discuss the same with the parties. Mr McNab indicated, in correspondence to the Registry, that he was not prepared to participate in such a conference. I therefore convened it in his absence. Mr Slevin confirmed that Mr Fildes simply wanted to record his concern at the comment that I made but did not seek full suppression orders.

[13] Given the foregoing, I have resolved to simply recall my judgment for the purposes of including this addendum and to record that no significance should be attached to my comment at [9]. As the balance of the judgment confirms, it is a bare allegation only.

Whata J

3      For completeness, I was then satisfied that temporary suppression was justified as an appropriate exception to the fundamental code of open justice. It was necessary to preserve the position of the respondents in a context where the allegation as pleaded amounted to an abuse of process.