Matsuoka v Pollak
[2018] NZHC 3292
•13 December 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-001935
[2018] NZHC 3292
BETWEEN JOHN TAKASHI MATSUOKA
Applicant
AND
GARRY MICHAEL POLLAK
Defendant
Hearing: 5 December 2018 Appearances:
Michael O’Brien for the Applicant
Christine Meechan QC for the Defendant
Judgment:
13 December 2018
JUDGMENT OF MOORE J
This judgment was delivered by me on 13 December 2018 at pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar Date:
MATSUOKA v POLLAK [2018] NZHC 3292 [13 December 2018]
Introduction
[1] Although formally separate and discrete, these proceedings form part of a much larger and varied series of disparate proceedings all arising out of and connected one way or another with Mr Matsuoka’s dismissal from his employment with LSG Sky Chefs New Zealand Ltd (“LSG”) in 2011.
[2] Since 2011 the defendant, Mr Pollak, has acted for parties which have found themselves embroiled in actions brought by Mr Matsuoka. His role in those proceedings has given rise to the present proceedings, which are brought in contempt by way of originating application. Mr Matsuoka claims that Mr Pollak was in contempt of Court when he destroyed a memory stick allegedly in contravention of an order of the Employment Court.
[3] Mr Pollak says that the proceedings are frivolous and vexatious. He also claims that they are brought for an improper collateral purpose and amount to an abuse of the process of the Court. For these reasons he applies to strike the proceedings out.
Background
[4] For a period of five months in 2011 Mr Matsuoka was employed by LSG as a ground steward. LSG is an airline catering business which employs large numbers of staff throughout New Zealand. It uses an external payroll service. Initially the payroll service used by LSG was provided by PSG Payroll Ltd (“PSG”), but more recently it has been provided by a company known as Zambion Ltd (“Zambion”). A Mr Pumphrey was a principal of both.
[5] After LSG dismissed Mr Matsuoka he challenged his dismissal. He sought remedies and penalties of approximately $1,000,000.
[6] Mr Pollak acted as LSG’s solicitor until October 2017. He has acted for PSG and Zambion since late 2016.
[7] In the course of the employment proceedings, among the many interlocutory applications brought, Mr Matsuoka made numerous applications for further and better
discovery for the purpose of attempting to obtain documents from LSG’s computer system. He also brought a non-party discovery application against PSG in 2014.
[8] Prior to a hearing for various of these interlocutory applications in March 2017, Mr Matsuoka made an application for preservation orders in respect of payroll information on the PSG/Zambion system. Mr Pollak acted for PSG and Zambion on the application. On 20 December 2016, Judge Perkins of the Employment Court made an interim (preservation) order which relevantly included the following:1
“… there will be an order pursuant to r 7.55 of the High Court Rules that PSG and Zambion are to retain all payroll records relating to Mr Matsuoka, the plaintiff, whether they are in electronic form or hard copy. If they are in an electronic form, then they are to be printed or alternatively downloaded to a memory stick. All such information, whether on the memory stick or in hard copy, is then to be forwarded by PSG and Zambion to the solicitor acting for them (who I understand is Mr Pollak) and Mr Pollak is to hold all that information until further order of the Court.”
[Emphasis added]
And:2
“These, of course, are only preservation orders for the purposes of protecting Mr Matsuoka at this stage. The issue as to whether any documents held by PSG or Zambion are eventually required to be disclosed is still a matter which has to be argued.”
[9] In compliance with that direction Mr Matsuoka was provided with the payroll information in hard copy form. However, due to the format in which the data had been provided the hard copy documents were difficult, if not impossible, to read. As a consequence, on Mr Matsuoka’s further application, the Judge ordered that either the hard copy information had to be provided in a properly collated and aligned form or downloaded onto a memory stick which was to be provided to Mr Pollak.3
[10] Subsequent settlement negotiations between Mr Matsuoka and LSG proved successful. This led to the Employment Court issuing a consent judgment on or around
1 Matsuoka v LSG Sky Chefs New Zealand Ltd [2016] NZEmpC 174 at [15].
2 At [14].
3 Matsuoka v LSG Sky Chefs New Zealand Ltd [2018] NZEmpC 34 at [14]-[15].
17 May 2018.4 That judgment recorded that the proceedings between Mr Matsuoka and LSG had been resolved. No other orders of relevance were made.
[11] Mr Pollak, who was not involved in these negotiations, was advised of this settlement by one of LSG’s solicitors. He was shown a copy of the consent judgment. The evidence is unclear as to exactly when Mr Pollak learned of this, but shortly after being told he made inquiries with Mr Pumphrey to find out what he wanted done with the memory stick. Mr Pollak was told the companies had no wish to have it returned. Apparently this was because the information held on it remained accessible and was available if necessary. As a consequence, Mr Pollak destroyed the memory stick. He confirmed this in an email he sent to Mr O’Brien, counsel for Mr Matsuoka, on 8 June 2018.
[12] Mr Pollak’s position is that there was no ulterior or sinister motive behind his decision to destroy the memory stick because:
(a)the proceedings for which the memory stick had been created were at an end;
(b)the information contained on the memory stick was available via other sources; and
(c)the information contained on the memory stick could not be used for a purpose other than in relation to the proceedings in respect of which it had been created.
[13] Mr Pollak did not turn his mind to Judge Perkins’ order of 20 December 2016 and in particular the direction that he was to hold the information until further order of the Court.
4 Matsuoka v LSG Sky Chefs New Zealand Ltd [2018] NZEmpC 50.
The application
[14] Mr Pollak seeks orders striking out these contempt proceedings. He also seeks costs against Mr Matsuoka on an increased or indemnity basis.
[15] The grounds advanced are that the application is frivolous and vexatious because:
(a)The Employment Court proceedings in which the preservation order was made have been settled. The order does not extend beyond the life of the proceeding in which it was made and thus the contempt allegation is without foundation.
(b)The preservation order has not been breached. The data protected by it still exists and has been provided to Mr Matsuoka’s solicitor in a properly collated and aligned form but, in any event, the preservation of such data is no longer necessary for the purposes of the Employment Court proceedings and cannot be legitimately used for any other purpose.
(c)The originating application is the latest in a series of 15 unmeritorious proceedings or complaints made by Mr Matsuoka that arise from or are connected to his 2011 dismissal from LSG. These include a perjury complaint against Mr Pollak to the Police and a complaint of professional misconduct to the New Zealand Law Society.
[16] Furthermore, Mr Pollak says Mr Matsuoka’s originating application is an abuse of process because it has been brought for improper purposes including:
(a)bringing pressure to bear on Mr Pollak in order to extract a payment of
$25,000 and an “apology” from him for the manner in which he has conducted himself in proceedings; and
(b)procuring a commitment by Mr Pollak not to make any complaint to the New Zealand Law Society in relation to the conduct of
Mr Matsuoka’s legal advisors, which is contrary to Mr Pollak’s reporting obligations under r 2.8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“LCA Rules”).
Legal principles – strike out applications
[17] The relevant rule is r 15.1(1)(c) and (d) of the High Court Rules 2016 (“the Rules”). This empowers the Court to strike out all or part of a pleading if it is frivolous or vexatious; or is otherwise an abuse of the process of the Court.
[18] A frivolous proceeding as one which trifles with the Court’s processes,5 or which lacks “the seriousness required of matters for the Court’s determination”.6 Meanwhile “vexatious” connotes an element of impropriety; often a procedural impropriety.7
[19] The notion of an abuse of process is an altogether wider concept. As the McGechan on Procedure commentary records this category extends beyond the other grounds captured by the rule.8 It applies to the misuse of the Court’s processes such as commencing a proceeding that has been brought with an improper motive or is an attempt to obtain a collateral advantage beyond that legitimately gained from a Court proceeding.9 Determining whether a proceeding amounts to an abuse of process requires:10
… a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court …
[20] As was demonstrated by this Court in Deliu, a pleading can be struck out as frivolous even if it does not otherwise meet the criteria in r 15.1.11 In that case Associate Judge Bell described reciprocal claims brought against one another by a
5 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].
6 Deliu v Hong [2011] NZAR 681 (HC) at [21]-[22].
7 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 5, at [89].
8 McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR15.1.05].
9 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 5, at [89].
10 Johnson v Gore Wood & Co [2002] 2 AC 1 (HL) at 31.
11 Deliu v Hong, above n 6, at [21].
barrister and solicitor as frivolous because the parties used the pleadings to direct insults at each other, and the proceedings lacked the seriousness required of matters for the Court’s determination.12 While not all of Mr Deliu’s or Mr Hong’s causes of actions were completely untenable, he found the proceedings were not being run to serve a useful purpose, and their frivolous nature justified strike out.13
[21] Notwithstanding these observations about the principles, the approach to be taken in respect of strike out applications is well-established. As Mr O’Brien, for Mr Matsuoka observed, the Supreme Court in Carter Holt Harvey Ltd v Minister of Education14 has recently affirmed the test in Attorney-General v Prince & Gardner:15
“A striking-out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even though they are not and may not be admitted. It is well-settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they cannot be possibly succeed … the jurisdiction is one to be exercised sparingly and only in a clear case where the Court is satisfied it has the requisite material[.]”
Analysis
[22] It is against those principles that I now turn to consider each of the grounds advanced in support of Mr Pollak’s application.
Can the preservation order extend beyond the life of the proceeding in which it was made?
[23] Ms Meechan QC, for Mr Pollak, submitted Mr Pollak reasonably assumed that the orders had been rendered otiose by the settlement of the proceedings, and that they in fact were. Neither the documents nor to the data stored on the memory stick would ever need to be put before the Employment Court. Furthermore, she submitted it is trite that the material contained on the memory stick could not be used legitimately for any purpose other than in the course of Mr Matsuoka’s employment proceedings against LSG.
12 At [22].
13 At [33].
14 Carter Holt Harvey Ltd v Minister of Education [2016] NZSC 95, [2017] 1 NZLR 78 at [10].
15 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267-268.
[24] Mr O’Brien submitted that orders expressed as being “until further order of the Court” can and do survive the settlement of the underlying proceedings. They continue until they are varied or discharged. He claimed that had the Court intended the orders to expire on the settlement of the proceedings it could easily have added words such as, “until judgment or further order of the Court”. He provided examples of conceivable instances where even post-settlement the evidence on the memory stick might still have a utility, and referred to Te Kohanga Reo National Trust Board v Maori Television Service.16 There Kós J noted that in some circumstances confidentiality orders relating to evidence filed in a proceeding which has settled continue.
[25] In my view, that example is inapt. Plainly suppression and confidentiality orders, in order to be effective, will endure after settlement. The present case is completely different. The purpose of the order was to place Mr Pollak in the position of a custodian of the information, to ensure control over its possession and dissemination. The information was sought by Mr Matsuoka for the sole purpose of the employment litigation he had commenced against LSG. Any interest Mr Matsuoka had in relation to that information was confined to that purpose. Once the proceedings were settled Mr Matsuoka’s interest in the information was at an end.
[26] Following settlement Mr Pollak, as the Court-appointed custodian responsible to the owners of the information, was then entitled to make inquiries of the owners as to whether they wished the information to be retained in that form. He was told they did not. As a consequence he destroyed the memory stick. He did not need to go back to the Court to obtain variation orders. The purpose of the orders evaporated with the settlement.
[27] Mr O’Brien also submitted that the preservation order did not lapse because, inter alia, Mr Matsuoka had a proprietary claim. That cannot be correct. The property, in this case the information contained on the memory stick, was not Mr Matsuoka’s. It may have been about him, but it was information owned by those who supplied it to Mr Pollak, namely LSG and Zambion.
16 Te Kohanga Reo National Trust Board v Māori Television Service [2013] NZHC 2630, [2014] NZAR 34.
[28] Furthermore, the database from which the data stored on the memory stick was sourced was not destroyed along with the memory stick. The source information remains. If Mr Matsuoka was to ask LSG or Zambion to provide it to him it could be. In fact Mr Pollak produced in evidence what he said is the information in legible form. Mr Matsuoka has not attempted to identify any real or substantial prejudice or loss (other than the special damages claimed of $1,920.50, being what he paid for compiling the memory stick and the payment made for the services provided by the suppliers). Nor, it seems, has Mr Matsuoka ever made a request for a duplicate memory stick.
[29] I therefore agree with Ms Meechan that these proceedings are frivolous, in the sense they lack the seriousness required of matters for the Court’s determination.
Are the proceedings instituted for an improper or collateral purpose?
[30] Mr Pollak claims that the present application is the latest in a series of 15 unmeritorious proceedings or complaints made by Mr Matsuoka that arise from or are connected to his 2011 dismissal. These have included the perjury complaint against him to the Police and the complaint to the New Zealand Law Society of professional misconduct. More colloquially, Ms Meechan described the proceedings as a “try on to extract an advantage”.
[31] Mr O’Brien submitted that the history of litigation between the parties and others is irrelevant to the question of whether Mr Matsuoka is entitled to enforce his rights in this proceeding. Alternatively, he vigorously denied any claim that Mr Matsuoka’s previous proceedings were “unmeritorious”. He observed that of the 15 proceedings, Mr Matsuoka was successful in or resolved by consent three matters, and six were settled; a total of nine. He thus submitted nine of the 15 proceedings could not possibly be regarded as unmeritorious.
[32] I do not accept that the history of related proceedings involving Mr Matsuoka and arising out of the same subject matter cannot be taken into account in determining whether or not there is a history or pattern of vindictiveness evidencing some collateral purpose. If it can be shown that the present proceedings represent part of a more comprehensive pattern of conduct designed to intimidate, exact revenge or improperly
dissuade, such conduct would support a finding that the proceedings were initiated for a collateral purpose and are an abuse of process. The sheer number of proceedings the respondent brought in Williams v Spautz was a relevant factor in that decision.17
[33] Attached to Mr Pollak’s affidavit is a table setting out various proceedings and complaints where Mr Pollak has acted either for LSG, PSG or Zambion, or where he has been the subject of complaint by Mr Matsuoka. These total 14 and include various aspects of his employment dispute, a complaint to the Privacy Commissioner, contempt proceedings brought in the Employment Court, a perjury complaint made to the Police, a further complaint to the Privacy Commissioner, civil proceedings in the District Court at Tauranga against Zambion and its director alleged misleading and deceptive conduct, and civil proceedings in the District Court at Hamilton against Zambion and its director for an alleged breach of an undertaking in relation to the preservation orders.
[34] Not included in this catalogue is Mr Matsuoka’s complaint against Mr Pollak to the New Zealand Law Society. Mr Matsuoka complained that in the District Court Mr Pollak attacked his reputation and made allegations of reprehensible conduct which Mr Pollak knew were not correct; he misled the Court and failed to uphold his obligation of absolute honesty. The Standards Committee dismissed Mr Matsuoka’s complaint. It considered that Mr Pollak had before him information which appeared reasonably credible, and made claims that appeared to be in good faith. It observed that it did not consider Mr Pollak had used Court processes for an improper purpose in attacking Mr Matsuoka’s reputation.
[35] Other examples of Mr Matsuoka’s claims include two brought in the District Court. In the District Court at Tauranga, Mr Matsuoka alleged Zambion and Mr Pumphrey, its director, made an excessive claim in relation to the costs associated with meeting their third party disclosure obligations in the employment proceedings. The defendants applied to strike the claim out. Judge Mabey QC declined the application but described the claim, at various parts of his judgment in the following terms:18
17 Williams v Spautz (1991-1992) 174 CLR 509 (HCA).
18 Matsuoka v Zambion Ltd [2018] NZDC 750.
“[3] It is evident from the file, which contains aspects of the Employment Court proceedings, that the plaintiffs dispute whether LSG has all the hallmarks of an obsessive action driven by repeated interlocutory proceedings, appeals and litigation lacking objectivity.
…
[5] It goes without saying that the proceedings to which the strike out application applies involve petty sums which will be far exceeded, by a multiple in the tens if not hundreds, by the costs involved.
…
[25] As I have said, these proceedings involve amounts which do not justify the cost that will be incurred by engaging counsel and experts. I am also of the view that Court resources can be better utilised but all citizens are entitled to bring their disputes to the Court, no matter how minor or how apparently insignificant, and all citizens are entitled to access justice.
…
[27] The plaintiff may well be someone who has an obsessive interest in his Employment Court proceedings and may well be determined to make his life difficult for the first and second defendants by pursuing a vexatious action for a collateral purpose, but I am not in a position at this point to say that the causes of action are non-arguable or determine if the plaintiff’s motivation and reality amounts to an abuse of process.”
[36] The Judge expressed that it was with “great reluctance” he was “forced” to accept Mr O’Brien’s submissions, for Mr Matsuoka, that until the invoices in question were considered and expert evidence received on issues of reasonableness the issues in dispute could not be resolved.19
[37] In the District Court at Hamilton Mr Matsuoka sued Mr Pumphrey as Zambion’s director alleging he had breached an undertaking not to remove Zambion or PSG from the Companies Office register. These undertakings were addressed by Judge Perkins in his decision of 20 December 2016. Judge Menzies, in striking out the proceedings, observed that the claim as formulated, the enforcement of an undertaking, was not justiciable because it concerned an undertaking between individuals.20 Accordingly the proceedings were struck out because they did not disclose a cause of action, however the Judge went on to comment:
“[20] Nonetheless I refer to issues relating to the defendant’s claim that any such claim is an abuse of procedure and or vexatious. I accept that argument.
19 At [24].
20 Matsuoka v Pumphreys [2018] NZDC 19639 at [18].
The circumstances that are apparent from the pleadings and the summary described, indicate that the basis upon which the Employment Court was asked to make urgent orders in December 2016 was that no suitable undertaking had been provided. If, as the plaintiff now asserts, an acceptable undertaking has been provided (the enforceability of which is the subject of his claim) then the Employment Court was misled into determining the application as it was requested to do. The Court decision explicitly records that the orders were necessary because of the absence of an undertaking. For the plaintiff now to purport to enforce an undertaking before the District Court is in my view an abuse of Court process and a vexatious proceeding.”
[38] Unlike in the Tauranga proceeding, there are no questions of fact in dispute in the present proceedings. And much like the Hamilton proceedings, I have found these proceedings are frivolous. Against a backdrop of similar actions, including Mr Matsuoka’s complaint to the New Zealand Law Society, I have no hesitancy finding the present matter constitutes an abuse of process designed to strongarm or extract an advantage from Mr Pollak.
The “Without Prejudice” letter
[39] In further support of Mr Pollak’s claim that the present proceedings have been brought for an ulterior or improper purpose, Ms Meechan sought the admission of a letter dated 13 September 2018. Mr O’Brien, its author, challenged the admissibility of this document, contending it was expressed as “without prejudice” and its contents are privileged.
[40] Some background is necessary. These proceedings were filed on 10 September 2018. On 12 September 2018, Mr Pollak made a telephone call to Mr Matsuoka’s solicitor. This was followed by a letter he wrote the same day. It is not marked “without prejudice”. In it Mr Pollak set out a number of points which included the circumstances in which the memory stick was created, what it contained and why Mr Pollak believed he was entitled to destroy it. He challenged the nature of the contempt proceedings, claiming that at best it was a breach of an Employment Court order and not contempt. He questioned why proceedings against a fellow practitioner had been brought without further inquiries being made.
[41]The final paragraph of his letter concludes as follows:
“As we indicated yesterday we have not yet instructed senior counsel (formally) and will give your client an opportunity to withdraw the proceedings without cost. If you draft a consent withdrawal we will sign it and you can file it indicating no costs are sought. If by the end of the week you have not done so, we will instruct counsel and refer this matter in its entirety to the Employment Court.”
[42] It was this correspondence which led to Mr O’Brien composing and sending his letter of 13 September 2018. Mr O’Brien expressly stated that he was writing on a without prejudice basis “… to explore the possibility of a settlement covering all issues that have arisen between you and Mr Matsuoka”.
[43] He recorded that Mr Matsuoka considered a full and final settlement would be best because it would give both parties peace of mind that no further issues would be raised or pursued. In particular he expressed Mr Matsuoka’s offer in the following terms:
“(a) Mr Matsuoka is willing to withdraw his proceeding in the High Court, with costs to lie where they fall.
(b)You will pay Mr Matsuoka $25,000 in recognition of the distress you have caused him and the cost he has incurred. This is less than the amounts Mr Matsuoka is claiming in his High Court claim against you. Payment would be made within 14 days of settlement.
(c)You will provide an affidavit apologising for the allegations you have made against Mr Matsuoka in any judicial forum. To avoid argument of this clause, I have set out below a proposed wording that would be acceptable to Mr Matsuoka:
‘(i) Throughout various proceedings in the Employment Court and District Court, on behalf of my clients, I have made a number of allegations against Mr Matsuoka. Those allegations included that Mr Matsuoka was involved in reprehensible conduct, including intimidation and blackmail, as well as being involved in certain businesses that competed with my clients, Zambion Limited and PSG Payroll Limited.
(ii)I apologise unreservedly to Mr Matsuoka for making any allegations that may have been untrue, or for which Mr Matsuoka considers there was no proper evidential basis for me to reasonably make those allegations.’
(d)The settlement would be in full and final settlement of all issues between the [sic] Mr Matsuoka and you as at the date of signing (including any actions unknown to the parties at the time) int [sic] these High Court proceedings or arising in any proceedings. To be
clear, this would not settle any issues in the future (for example issues arising out of your future actions or comments in the proceedings against Zambion Limited and Mr Pumphrey in the Tauranga District Court.
(e)You will agree not to make any claims whatsoever against Mr Matsuoka’s legal advisors, past and present, including to any regulatory body. Similarly, Mr Matsuoka would agree not to make any claim against you or make any further complaint about your conduct to any regulatory body.
(f)If this forms the basis for an agreement it would need to be fully documented.”
[44] Ms Meechan submitted that this letter should be admitted as it reveals a vindictiveness on Mr Matsuoka’s part; it is threatening, extortive and extravagant. Responding to Mr O’Brien’s argument that this communication was without prejudice, she submitted that the laudable aims of encouraging parties to settle litigation which lies at the heart of the “without prejudice” rule are not served by providing a protective cloak to correspondence written in the context of proceedings which are an abuse of process.
[45] In van der Sluis v Health Waikato Ltd the Employment Court rejected the proposition that the correspondence in question in that case was entitled to protected status.21 Judge Travis drew on English authority that the public policy justification for the “without prejudice” rule rests on the desirability of preventing statements or offers being made in the course of negotiations for settlement being brought before the Court of trial as admissions on the question of liability, in order to encourage settlement negotiations.22 As the House of Lords has held, in a statement relied upon by Ms Meechan, the application of this rule is not absolute and resort may be had to without prejudice material for a variety of reasons, where the justice of the case requires it.23
[46]In van der Sluis, Judge Travis observed:24
“There were no bona fide settlement negotiations being conducted at that time. No admissions are contained in the letter and it is being relied upon by the applicant to indicate the effect it had upon him in relation to the matter of compensation. In these circumstances I am satisfied that it would be in
21 van der Sluis v Health Waikato Ltd [1995] 1 ERNZ 478 (EmpC).
22 Cutts v Head [1984] Ch 290 at 306.
23 Rush & Tompkins Ltd v Greater London Council [1989] AC 1280 (HL) at 1300.
24 van der Sluis v Health Waikato Ltd, above n 20, at 484.
accordance with common law principles to admit it, notwithstanding that it is expressed to be without prejudice.”
[47] Ms Meechan pointed out that Mr O’Brien’s letter contains no admissions of liability or concessions in relation to the merits of Mr Matsuoka’s claim. For these reasons she submitted the letter should be admitted in evidence on this application.
[48] For the reasons advanced by Ms Meechan I agree. While the letter purports to evince a willingness to settle it contains no statements or admissions against interest. Furthermore, the terms offered are, on any objective analysis, unreasonable. Read as a whole this was not a sincere attempt to bring about a mutually satisfactory path to settlement. The letter is, in my view, disingenuous in its purpose and wholly unreasonable in its terms, including seeking sworn statements from Mr Pollak which he could never have been expected to make.
[49] Viewed that way, I cannot accept that this was a genuine or sincere attempt to settle the proceeding. Furthermore, when read in its entirety and in the context of the orders Mr Matsuoka seeks in the contempt proceedings, it speaks volumes about what the real purpose behind Mr Matsuoka’s present claim is.
[50] I am thus satisfied that the letter is admissible on the present application, and that it buttresses my finding that the present proceeding is an abuse of the Court’s processes.
[51] But for reasons I have stated, even if I am wrong I am satisfied that the balance of the evidence reveals this application, if it is not vexatious or frivolous is, most certainly, an abuse of process. It follows that the success of Mr Pollak’s application, which I intend to grant in any event, does not turn on the admission of this letter.
Result
[52]The defendant’s application for strike out is granted.
Costs
[53] As noted, increased or indemnity costs are sought on this application. Given the time constraints encountered at the hearing I did not hear full argument on the issue of costs. My preliminary view is that increased costs, at least, may be appropriate. I invite counsel to confer with a view to reaching agreement. If agreement is unable to be reached I require memoranda not exceeding three pages (exclusive of appendices) to be filed no later than 5:00 pm on Friday, 8 February 2019.
Moore J
Solicitors/Counsel:
Mr O’Brien, AucklandMs Meechan QC, Auckland
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