O'Neill v Hipkins - [2023] NZHC 2594

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-000536

[2023] NZHC 2594

UNDER the New Zealand Bill of Rights Act 1990

IN THE MATTER OF

an application for Judicial Review

BETWEEN

CHRISTOPHER JOSEPH O’NEILL

Applicant

AND

CHRISTOPHER JOHN HIPKINS

First Respondent

DAVID WILLIAM PARKER

Second Respondent

Hearing: On the papers

Judgment:

18 September 2023

JUDGMENT OF WALKER J

This judgment was delivered by me on 18 September 2023 at 12 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

O’NEILL v HIPKINS [2023] NZHC 2594 [18 September 2023]

[1] The applicant tendered for filing in the Wellington Registry of the High Court an application for judicial review naming the Attorney-General and Prime Minister as respondents.

[2] In addition to the judicial review proceeding, there is a second application styled as an interlocutory application without notice within the same proceeding.

[3] Both applications have been referred to me as Duty Judge under r 5.35A of the High Court Rules 2016 (the Rules). 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.

[4]I have considered the application under r 5.35B which 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…

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.

Continue reading O'Neill v Hipkins

Details

AGLC: O'Neill v Hipkins [2023] NZHC 2594
Case: [2023] NZHC 2594
Decision Date: 18 September 2023

CaseChat Overview and Summary

In the case of O'Neill v Hipkins, the applicant, Christopher Joseph O'Neill, filed an application for judicial review against the Prime Minister and Attorney-General in the Wellington Registry of the High Court. The application was referred to a judge under the High Court Rules 2016 as it was considered to be plainly an abuse of the court process. The applicant had previously sought judicial review in relation to a decision of the Judicial Conduct Commissioner, which was dismissed by the High Court and upheld by the Court of Appeal and Supreme Court. The current application was seen as a collateral attack on those judgments and a generalised attack on government COVID-19 policies. The applicant did not plead particularised actions or decisions of the respondents but posed a series of non-justiciable questions about the relationship between the government and judiciary.

The legal issues before the court were whether the application was an abuse of process and if it should be struck out under the High Court Rules 2016. The Court of Appeal had recently set out the approach to review under the High Court Rules 2016 in Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board. The powers conferred under the rule reflect the inherent power of all courts to prevent their own procedures from being misused, for example, as a means of oppression or in a way that is manifestly unfair such that the administration of justice will be brought into disrepute. The power must be exercised sparingly and only in the clearest of cases because the rule contemplates a litigant being denied the fundamental right of access to the courts with the possibility of the case being halted before it is even served.

The court found that the application was an abuse of process and struck it out. The applicant's pleading was a collateral attack on judgments of the Court of Appeal and Supreme Court. The generalised references to the Government's COVID-19 response and lack of particularisation of any reviewable decision were telling. The applicant's real complaint was with the outcome in the Court of Appeal and Supreme Court. To permit this proceeding to remain on foot would amount to an abuse of process. It would be manifestly unfair to require the respondents to respond to the applicant's allegations or to be required to treat this proceeding as a proceeding of the court. The proceedings were struck out, and the applicant has a right to appeal this decision.

The court's judgment was delivered by Walker J on 18 September 2023. The court struck out the applicant's application for judicial review as an abuse of process under the High Court Rules 2016. The court found that the application was a collateral attack on judgments of the Court of Appeal and Supreme Court and that the applicant's real complaint was with the outcome in those courts. The court held that to permit the proceeding to remain on foot would amount to an abuse of process and that it would be manifestly unfair to require the respondents to respond to the applicant's allegations or to be required to treat this proceeding as a proceeding of the court. The applicant has a right to appeal this decision.

Orders