McCready v Attorney-General HC Auckland CIV 2010-485-1625
[2010] NZHC 2074
•9 November 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2010-485-1625
BETWEEN GRAHAM EDWARD MCCREADY Plaintiff
ANDTHE ATTORNEY-GENERAL First Defendant
ANDTHE COMMISSIONER OF INLAND REVENUE
Second Defendant
ANDWARWICK IAIN SMITH Third Defendant
ANDJULIA SNELSON Fourth Defendant
Hearing: 21 October 2010
Appearances: Mr McCready appears in person
Ms Schmidt for the Attorney-General and others
Judgment: 9 November 2010 at 4.45pm
JUDGMENT OF MALLON J
Introduction
[1] Mr McCready has commenced proceedings against the seventeen defendants named in this proceeding. He is self-represented. A number of the defendants, who are represented by Ms Schmidt, apply to strike out the statement of claim in its entirety. Pending the determination of this application none of the defendants have
been required to file and serve statements of defence.
GE MCCREADY V THE ATTORNEY-GENERAL AND ORS HC WN CIV-2010-485-1625 9 November 2010
[2] The background to Mr McCready’s proceeding is his convictions on representative counts under ss 143 and 148 of the Tax Administration Act 1994 of knowingly providing false income tax and GST returns for which he was sentenced to six months’ home detention. Mr McCready believes that the prosecution of him was corrupt and unlawful such that the whole process through to his sentencing was tainted. He has appealed against his conviction and sentence – the appeal is to be heard by the Court of Appeal on 10 November 2010.
[3] He also sought to commence private criminal prosecutions against a number of defendants in respect of their involvement in the prosecution of the Tax Adminstration Act charges against him. This did not proceed because the District Court declined to issue summonses and ordered a permanent stay in respect of the informations Mr McCready sought to lay. He has also previously commenced a civil proceeding in respect of the prosecution on the Tax Administration Act charges. That civil proceeding was withdrawn by Mr McCready.
The allegations
[4] The present civil proceeding is described on the cover sheet as being “Statement of Claim for Judicial Review, Declaratory Judgment and damages in an application for relief for the infringement of the plaintiff’s right to natural justice as affirmed by section 27 of the New Zealand Bill of Rights Act 1990 for damages of
$10,000,000 and punitive damages of $5,000,000”.
[5] The first 13 pages of Mr McCready’s statement of claim are under the heading “Part A – Preliminary Matters”. Of this section, the only parts that could be described as pleadings setting out the nature of the claim are:
a) the first sentence of para one, which provides some preliminary details of who Mr McCready is;
b)para 4, which pleads (but does not particularise) that the claim is for relief of the plaintiff’s right to justice as affirmed by s 27 of the New Zealand Bill of Rights Act (NZBORA); and
c) the part of para 6 which refers to seeking a declaration that the convictions are null and void because the process was “tainted by acts of perjury, corrupt practices, conflict of interest, threats to witnesses and other unlawful acts” (these allegations are not particularised).
[6] The next 18 pages of Mr McCready’s statement of claim are under the heading “The Plaintiff”. The first paragraph of this section says that “This section is included for the benefit of the court to establish the credentials of the plaintiff as a skilled and committed civil rights advocate who enjoys the respect of the High Court staff”. The pleading then goes on to provide pages setting out background about Mr McCready’s life and experiences.
[7] The next thirteen pages of Mr McCready’s claim are under the heading “The Civil Rights Claim”. Some of the paragraphs are in the nature of submissions. Others are repetitive of paras 4 and 6. There is a table that sets out in relation to each defendant why the plaintiff has included them in the claim. Some further details are provided in the 8 pages that follow the table in respect of some of the defendants.
[8] The last section of the statement of claim sets out the relief sought. It is as follows:
161. Declaratory Judgments asks for
(a)A judgment declaration that no party to a proceeding civil or criminal can obtain or sustain favourable orders or convictions or sentence if those orders or convictions and sentences are tainted with or obtained by acts of perjury, conflict of interest, corrupt practices and other criminal offending;
(b) An order therefore declaring the entire investigation, prosecution, committal to trial, conviction, presentence report and sentence null and void and of no force and effect as being illegal at law because the process from beginning to end violated the plaintiffs right to natural justice as affirmed by section 27 of the New Zealand Bill of Rights Act 1990.
(c) An order therefore in The Queen v McCready quashing the sentence and conviction.
(d) A judgment declaration that no document of any kind containing false and misleading statements of the nature of perjury is admissible in the court and will be struck out in its entirety by the registrar and those persons filing such documents are liable for contempt.
(e) A judgment declaration that Barristers and Solicitors in the High Court of New Zealand are officers of the court and have a mandatory, absolute, continuous never ending obligation to:
(i) Uphold all the laws of New Zealand;
(ii) Bring to the attention of the court and relevant enforcement agencies infractions committed by persons they have contact with, except where solicitor client privilege would be breached even if such disclosures would prejudice a case in which they are acting in any capacity and to co-operate fully in any investigation regardless of any personal cost or inconvenience;
(iii)Where solicitor client privilege would be breached, the Barrister and or solicitor who has now become a witness to an offense must withdraw from the case but is not required to give reasons.
161 Damages
The plaintiff claims from the defendants jointly and severally damages for breach of his civil rights of $10,000,000 and punitive damages of
$5,000,000.
162 Costs
The plaintiff claims indemnity costs.
Irrelevant matters
[9] Ms Schmidt submits that the statement of claim should be struck out as the defendants cannot plead to it in its current form. Here she refers a number of difficulties including the inclusion of irrelevant material, the lack of particulars and problems with the nature of the relief pleaded.
[10] I agree that the statement of claim is not in a form that the defendants should have to plead to. Much of the 48 page statement of claim contains submissions and other assertions which are not matters that are properly part of any statement of claim (as they do not set out relevant factual circumstances which give rise to the alleged cause of action). The defendants should not have to plead to any such matters. In this category I include (at least) most of Part A, all of Part B and paras
159 and 160 in Part C.
No reasonably arguable cause of action
[11] There are also difficulties with the pleaded allegations against the named defendants. The plaintiff’s claim is stated to be a claim for infringement of the right
to natural justice as affirmed in s 27 of NZBORA. The two components of the right to natural justice are the right to be heard and that the decision-maker be free from bias. One of the grounds on which the strike out application is made is that the statement of claim does not plead matters that go to these rights.
[12] The allegation against the first defendant is simply that it is a “proper defendant in action against the Crown” (table at para 117 of the statement of claim). This is an insufficient basis on which to bring the claim against first defendant.
[13] In relation to the Inland Revenue defendants (the second to fifth defendants), various allegations of improper conduct in the investigation and prosecution of the charges against Mr McCready are made (table at para 117 and paras 118 to 138 of the statement of claim). As pleaded the allegations are not of a kind that, even if they could be proven, would amount to a breach of the right affirmed by s 27. In this context the decision-maker was the District Court and Mr McCready had the opportunity to be heard before that decision-maker. To the extent that he considers he should not have been convicted on the charges (despite his guilty plea) and/or should not have received the sentence he did, his remedy was to appeal his conviction and sentence (as he has done).
[14] In relation to the defendants who were witnesses in respect of the Inland Revenue’s prosecution of Mr McCready (the sixth to ninth defendants), allegations are made of perjury by them at depositions (table at para 117). The perjury is not particularised, and therefore it would cause unnecessary prejudice and delay if the defendants were required to plead to the allegations. Moreover, if Mr McCready could prove his allegations of perjury, that may be relevant to whether there has been a miscarriage of justice (something potentially able to be considered on an appeal from his conviction if he has raised this in his appeal) and it might have been relevant to his attempt to bring private prosecutions, but it would not amount to a breach of the right affirmed in s 27.
[15] The complaint in relation to the tenth defendant appears to be that she acted without instructions for a party involved in Mr McCready’s attempt to privately prosecute those involved in the criminal proceedings brought against him (table at
para 117 and paras 139 to 142). If Mr McCready could prove what he alleges here, that would be a matter for the person for whom the tenth defendant acted. It is not relevant to whether Mr McCready’s right to natural justice in the criminal proceedings brought against him was breached.
[16] The allegation against the eleventh defendant relates to the sentencing indication he gave (table at para 117 and paras 144 to 147). It is alleged that the judge stated at the sentencing indication hearing in December 2008 that he knew Gillian Christian (who is the ninth defendant) personally, that the conflict was so great he could not take the case to trial, and that he did not disclose details of the conflict but he continued with the sentencing indication hearings which became the trial. The statement of claim goes on to refer to some of the charges being dropped between the sentencing indication hearings and the day of the jury trial. It refers to the jury trial being adjourned, discussions and Mr McCready’s decision to plead guilty because of his ill health.
[17] These allegations do not support a reasonably arguable cause of action for breach of s 27 of NZBORA. As can be discerned from this pleading, the Judge identified a conflict at the sentencing indication stage. Mr McCready was represented by counsel and so had the opportunity to seek further information about the conflict or to seek to have another Judge give the sentencing indication. More significantly, the sentencing indication is not a stage of proceedings that has any final effect. Subsequent to that stage Mr McCready was sentenced (possibly by another Judge, although the statement of claim does not make this clear). He also had the opportunity to appeal against his conviction and sentence, and has done so.
[18] The allegations against the twelfth to fourteen defendants concern Mr McCready’s alleged lack of access to the summary of facts and pre-sentence report in relation to the sentencing on his convictions (table at para 117 and paras 147 to
152). As pleaded, Mr McCready had the pre-sentence report read to him but did not receive a copy of it, and he did not receive a copy of the summary of facts until after his appeal and “as a result the Judge wrongly stated that the plaintiff had received
$48,000 into his personal accounts and had kept it all”. It appears that Mr McCready was represented by counsel at the sentencing and it is not pleaded that his counsel
did not see the pre-sentence report or the summary of facts. These allegations do not give rise to a reasonably arguable cause of action for breach of s 27 of the NZBORA. If Mr McCready was sentenced on erroneous facts his remedy is to appeal his sentence.
[19] The allegations against the fifteenth defendant relate to alleged misconduct and negligence in the representation of Mr McCready in the criminal prosecution brought against him. If able to be proven, these matters might possibly be relevant to Mr McCready’s appeal against conviction and sentence, but they are not matters that give rise to a reasonably arguable cause of action for breach of s 27 of the NZBORA. They also contain an unnecessary and irrelevant opinion held by Mr McCready about the fifteenth defendant’s payments from legal aid.
[20] The allegations against the sixteenth defendant concern his conduct in acting for Mr McCready on his appeal in the criminal proceedings (table at para 117 and paras 154 and 158). Any alleged deficiencies by the sixteenth defendant have, however, been overtaken by Mr McCready’s decision to take over the conduct of his appeal. Mr McCready’s appeal is to be heard by the Court of Appeal. None of the allegations give rise to a reasonably arguable cause of action for breach of s 27 of the NZBORA.
[21] The allegation against the seventeenth defendant is that she filed a perjured affidavit on the appeal and filed information that was suppressed (para 117 of the table). There is insufficient particulars of this allegation to enable the seventeenth defendant to plead to it without causing unnecessary prejudice to her. In any event, this affidavit may be considered on Mr McCready’s appeal to be heard by the Court of Appeal (if it is relevant to the appeal) and the allegation is not of a kind that could give rise to a a reasonably arguable cause of action for breach of s 27 of the NZBORA.
Other difficulties
[22] There are also difficulties with the relief that is pleaded. To the extent that
Mr McCready seeks that his sentence and conviction be quashed, that is something
for the Court of Appeal to consider on his appeal in the criminal proceedings. To the extent that he seeks declaratory relief, such relief is discretionary. The declarations that Mr McCready seeks at a), b) and c) of his claim for relief are too general to be of a kind that would be ordered by a Court in the exercise of its discretion. To the extent that he claims damages, Mr McCready would have to meet the test stated in Combined Beneficiaries Union Inc v Auckland City Council COGS Committee [2009] 2 NZLR 56 and affirmed in Attorney-General v Chapman [2010]
2 NZLR 317 (CA). Even if he could meet that threshold, the amounts claimed are so far above the amount of damages ordered in New Zealand for NZBORA breaches, or more generally when exemplary damages are ordered, as to be vexatious and an abuse of process.
Matters raised by Mr McCready
[23] In opposition to the strike out application Mr McCready raised a number of matters. He referred to the statement of claim having first gone to Miller J before the registry accepted the statement of claim. He considered that, by this process, the pleading had been determined to be a proper civil rights action. However any review of a claim before it is accepted for filing is a preliminary review directed only to whether the document can be accepted for filing. It is not a review which considers whether a strike out application, which at that point is not before the Court, would or would not succeed. Further, it is apparent that Miller J had concerns about the statement of claim because, when the application for strike out was made on behalf of some of the defendants, His Honour made an order that none of the defendants need file a statement of defence pending the determination of the strike out application.
[24] Mr McCready submitted that it was possible to have criminal and civil proceedings running simultaneously. He referred to a comment made by one of the Judge’s in the Court of Appeal on a hearing preliminary to the hearing of his appeal, which he reported as being to the effect that Mr McCready’s civil proceeding had nothing to do with the criminal appeal before the Court of Appeal. However, this statement does not mean that Mr McCready can pursue his civil proceeding even if it overlaps with what he has or could have raised in the criminal proceeding. To the
extent that Mr McCready raises matters that he says give rise to a miscarriage of justice in his criminal proceeding and for which his remedy is for his conviction and sentence to be quashed, they are matters he may have or could have raised in the criminal appeal. To the extent that Mr McCready raises other matters, they have the difficulties I have already discussed.
[25] Mr McCready says that his claim is not frivolous or vexatious because his claim raises important matters, that he suffered greatly from what has occurred to him, and he has only sued those parties that have been involved in the criminal prosecution. None of these points however overcome the difficulties with his claim that I have discussed above.
[26] Mr McCready takes issue with Ms Schmidt’s authority to represent the defendants who have brought the strike out application. He also takes issue whether whether all the defendants are aware of the stike application and he says that some of the defendants have told him that they do not support the strike out application. The first response to this is that Ms Schmidt advises the court that she does have authority to represent the defendants she represents. Secondly, she says that the defendants have been advised of the strike out application and the application does not cause any prejudice to them. Thirdly, there is no dispute from Mr McCready that Ms Schmidt represents some of the defendants. The claim seeks to strike out the statement of claim in its entirety, and I am satisfied for the reasons discussed above that it should be, irrespective of whether all or some of the defendants are represented by Ms Schmidt.
[27] Mr McCready says that Ms Schmidt should withdraw because he has filed a complaint against her with the New Zealand Law Society. Mr McCready’s complaint about this has already been dismissed by Miller J on 11 October 2010.
[28] Ms Schmidt submitted that the statement of claim should be struck out as an abuse of process because it amounts to a collateral attack on the District Court decision to stay Mr McCready’s proposed private prosecutions. Mr McCready contends that he cannot respond to this submission because of the suppression orders that relate to this. I have not found it necessary to consider Mr Schmidt’s
submission about this because I am satisfied that the claim should be struck out for the reasons discussed above.
Result
[29] The application to strike out the statement of claim in its entirety is granted. The claim does not plead a reasonably arguable cause of action against any of the defendants, it would cause unnecessary prejudice and delay in some respects, in other respects the claim is vexatious, and overall it is an abuse of process.
Mallon J
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