Navaratnam v High Court of Auckland

[2022] NZHC 371

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-216

[2022] NZHC 371

UNDER

the Arbitration Act 1996, the Judicial Review Procedure Act 2016, the Human Rights

Act 1993 and the New Zealand Bill of Rights Act 1990

IN THE MATTER

of an application for judicial review

BETWEEN

VASHIHARAN NAVARATNAM

First applicant

SHERINE NAVARATNAM
Second applicant

AND

HIGH COURT OF AUCKLAND

First respondent

HG METAL MANUFACTURING LIMITED

Second respondent

Hearing:	On the papers
Appearances	First applicant in person
Date of judgment:	7 March 2022

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 7 March 2022 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Copy to:

First applicant

NAVARATNAM v HIGH COURT OF AUCKLAND [2022] NZHC 371 [7 March 2022]

[1]        The Registrar has referred this proceeding to me, as judicial review list judge, under rule 5.35A(3)(a) of the High Court Rules 2016 (“HCR”). That rule provides:

5.35A Registrar may refer plainly abusive proceeding to Judge before service

(1)    This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.

(2)    The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.

(3)    However, the Registrar may,—

(a)as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b)until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.

[2]The subsequent rule then 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.

Judicial review of High Court decisions

[3]        This proceeding seeks judicial review of various decisions in this Court made between 3 September 2020 and 8 October 2021 in other proceedings between the applicants and the second respondent.1

[4]        On judicial review, this Court assesses if susceptible powers are exercised “in accordance with law, fairly and reasonably”.2 ‘Fair’ and ‘reasonable’ are terms of art in judicial review, respectively broadly meaning procedurally regular and substantively rational. In a variety of ways, particularised over some 44 pages, the applicants assert this Court’s process in arriving at those decisions was unfair, allegedly for denying the applicants “natural justice” and “a fair hearing” and their “legitimate expectations” this Court act lawfully.

[5]        Even at judicial review’s widest conception, decisions of this Court and its judges — including in all the senior courts,3 distinctly from inferior courts of limited jurisdiction — are not susceptible to it,4 as contrary to principles of finality and legality.5 Save for this Court’s inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice, any dissatisfaction with its decisions only can be taken up on appeal, where available.6

1      Including HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 2497; HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 1920; HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 2498; and HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 2701.

2      New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.

3      Senior Courts Act 2016.

4      Young v Police [2007] NZCA 339 at [25]; Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) at 414, 435 and 455; Bulmer v Attorney-General (1998) 12 PRNZ 316 (CA) at 318, citing Re Racal Communications Ltd [1981] AC 374 (HL) at 384, 386 and 392; and Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 133.

5      Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2014] NZCA 350 at [21], citing R v Smith [2003] 3 NZLR 617 (CA) at [46]–[49].

6      R v Smith, above n 5, at [36] and [46].

Abusive proceeding

[6]        In very significant part, looking past its judicial review veneer, this proceeding embodies the applicants’ dissatisfaction with the substance of this Court’s impugned decisions. No exceptional circumstance is evident. As such, I am satisfied this proceeding plainly is an abuse of the Court’s process. An abuse is “improper use of [the court’s] machinery”;7 use of that process “for a purpose or in a way significantly different from its ordinary and proper use”.8 Here, as I have explained, that is the proceeding’s improper attempt to obtain judicial review of this Court’s decisions. The applicants can have no reasonably arguable case to claim it.

Strike out and dismissal

[7]        HCR, r 5.35B(2) thus enables me, on my own initiative, to regulate this proceeding’s conduct, including by resort to HCR, r 15.1. That rule provides:

15.1     Dismissing or staying all or part of proceeding

(1)     The court may strike out all or part of a pleading if it—

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b)is likely to cause prejudice or delay; or

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of the process of the court.

(2)     If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

(3)     Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.

(4)     This rule does not affect the court’s inherent jurisdiction.

[8]        I therefore may strike out the applicants’ claim at least under HCR, r 15.1(1)(a) and (d). Any contest to this Court’s impugned decisions is subject to timely appeal,

7      Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [87], citing Simon Goulding, D B Casson and William Blake Odgers Odgers on Civil Court Actions (24th ed, Sweet & Maxwell, London 1996) at [10.15].

8      Attorney-General v Barker [2000] 1 FLR 759 (QBD) at 764.

now expired. No utility thus is served by maintaining the proceeding for compliant amendment. I therefore also may dismiss the proceeding. I will do both.

[9]        Because those orders will be made without giving the applicants an opportunity to be heard, they have a right to appeal against my decision.9 As an appeal to the Court of Appeal as of right, for which the High Court Rules specify no time, any appeal must be brought within 20 working days after the date of my decision.10

Result

[10]      The applicants’ claim is struck out and the proceeding is dismissed. Under HCR, r 5.35B(4), the applicants are to serve this decision on the second respondent at its address for service provided in the other proceedings between them.

—Jagose J

9      High Court Rules, r 5.35B(3).

10     Court of Appeal (Civil) Rules 2005, r 29(1AA) and (1).