O'Neill v Leaupepe

[2023] NZHC 2574

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-000537

[2023] NZHC 2574

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

SUE LEAUPEPE

Respondent

Hearing:	On the papers
Judgment:	14 September 2023

JUDGMENT OF WALKER J

This judgment was delivered by me on 14 September 2023 at 3 am/pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

O’NEILL v LEAUPEPE [2023] NZHC 2574 [14 September 2023]

[1]                  The applicant has tendered for filing in the Wellington Registry of the High Court an application for Judicial Review against the Registrar of the Supreme Court of New Zealand.

[2]                  The application has now been referred to me as Duty Judge under r 5.35A of the High Court Rules 2016 (the Rules). This is the second of three proposed applications for judicial review by Mr O’Neill which have come before me.

[3]Rule 5.35A 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]                  Proceedings referred under r 5.35A are considered by a Judge 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 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.

The application

[5]                  The genesis of this application appears to be that Registry officers at the Supreme Court did not accept a leave application presented by Mr O’Neill for filing because it did not conform with the Supreme Court Rules 2004. The pleading states that Mr O’Neill wrote to the Chief Justice about the action or inaction by Registry officers. The Registrar responded to his complaint in her capacity as the manager of the officers of the Registry. Therein lies the rub according to Mr O’Neill.

[6]                  Mr O’Neill pleads that this response offends against case law dealing with the Court’s supervisory jurisdiction in respect of the Registry. It thereby usurps the authority of the courts. The pleading goes on to make unsupported allegations of corruption and criminality.

[7]                  After setting out background factual matters, the application sets out a series of abstract and generalised questions, in addition to asking the court to review the actions of the Registrar. A sample suffices for illustrative purposes:

(a)Is the respondent acting correctly and the three superior courts are in error?

(b)Do the actions of the respondent instil confidence in our judiciary in the eyes of the public, or cause questions to be asked?

(c)Is justice being served?

(d)Are the actions of the respondent in keeping with the ruling of the three superior courts?

[8]                  A brief chronology based on the documents Mr O’Neill has himself filed in support of his application for judicial review becomes necessary to explain the backdrop.

[9]                  On 1 May 2023, Mr O’Neill tendered applications for leave to bring an appeal to the Supreme Court. The applications were not accepted for filing. The reasons for non-acceptance were set out in a letter dated 3 May 2023 from the Deputy Registrar of the Supreme Court. Those reasons were procedural in that the document filed was considered not to conform with the rules. On 23 May 2023, all the information which the Deputy Registrar required in order to accept the document for filing was supplied by Mr O’Neill.

[10]              The leave applications were then accepted and allocated Supreme Court reference numbers – that is for O’Neill v Judicial Conduct Commissioner and O’Neill v Judiciary of Auckland and Others.

[11]              Materially, the two leave applications were treated as being filed on 1 May 2023 so there was no prejudice to Mr O’Neill in terms of filing within the statutory time limit.

[12]                Mr O’Neill then sent letters of complaint addressed to the Chief Justice about the Registry’s refusal to accept the documents when first presented. The Registrar explained to Mr O’Neill in writing that the reasons for non-acceptance were that the procedural requirements in the Supreme Court rules had not been met.

[13]              Notably, Mr O’Neill did not appear to have sought a review from the Supreme Court itself of the decision not to accept the documents for filing.1

[14]The Registrar’s written response also informed Mr O’Neill:

There is nothing in the information before me that justifies the complaint made against [the Deputy Registrar] and no further action will be taken relating to this complaint.

[15]              The Registrar expressly wrote to Mr O’Neill in her capacity as the Deputy Registrar’s manager.

[16]              A second complaint by Mr O’Neill dated 5 July 2023 also addressed to the Chief Justice complained about another registry officer in a similar vein. That complaint is difficult to follow. Again, the Registrar of the Supreme Court responded to Mr O’Neill in her capacity as manager of the Registry. The Registrar noted:

In processing an application for leave there are standard steps to be followed by a court registry officer to ensure all named parties have an opportunity to be heard.

I have reviewed the files you have listed in your letter and find there has been no departure from that standard process.

[17]              Mr O’Neill wrote again to the Registrar dated 31 July 2023, requesting “proof” that the complaint has been laid before the Chief Justice. He went on to allege criminality and perversion of the course of justice.

[18]Mr O’Neill then tendered this proceeding for filing.

The proper approach

[19]              The Court of Appeal has recently set out the required approach to review under the High Court Rules 2016 in Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi

1      I note that the Supreme Court Rules do not explicitly provide for a Judge’s review of a Registrar’s refusal to accept documents for filing, unlike the Court of Appeal Rules and High Court Rules. Nonetheless, the Supreme Court has the inherent power to do so.

National Trust Board.2 After reviewing the history of this particular rule, the Court said:

[14] The powers conferred under r 5.35B reflect the inherent power all courts have to prevent their own procedures from being misused, for example as a means of oppression or otherwise in a way that is manifestly unfair such that the administration of justice will be brought into disrepute. Lord Bingham described abuse of process as simply being “a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”. Courts have a duty to prevent such abuse.

[20]              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. For that reason, the abuse must be clear beyond doubt.

Outcome

[21]              Mr O’Neill misinterprets the decisions of the High Court, Court of Appeal and Supreme Court on which he relies.3 Ironically, those decisions are decisions of the courts striking out Mr O’Neill’s earlier proceedings. They made clear that decisions made in the exercise of the jurisdiction given to them by the High Court Rules can be reviewed pursuant to r 2.11. Further, the conduct of court officers when dealing with matters entrusted to them by the Rules can be supervised pursuant to the High Court’s inherent jurisdiction.4

[22]              I note that the Senior Courts Act 2016 and Supreme Court Rules 2004 do not provide for a power similar to r 2.11. However, the relationship between Judges and the Registrar is not codified in legislation and in the Rules.5 All courts have the inherent power to control its processes and powers. This includes the power to supervise and review the exercise of powers by Registrars.6 This means that the decision to reject documents tendered for filing in the Supreme Court was reviewable

2      Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board [2023] NZCA 63 (citations omitted).

3      I note that Mr O’Neill does not refer to particular decisions but to particular proceedings by reference to their Court number. In each case, judgments were issued. These judgments are O’Neill v Bridgman [2019] NZHC 944, O’Neill v Bridgman [2020] NZCA 460 and O’Neill v Bridgman [2020] NZSC 148.

4      For example, O’Neill v Bridgman [2020] NZCA 460 at [13].

5      Slavich v R [2015] NZSC 195 at [7].

6      Siemer v Registrar, Supreme Court [2014] NZHC 2014 at [27]; .

by a judge or judges of the Supreme Court. But, once the non-conformity was addressed, and the documents re-presented and accepted by court officers, the reviewable decision was moot or spent.

[23]              The complaint Mr O’Neill made to the Chief Justice was of a different nature, not addressing the rejection of the documents so much as calling into question the integrity of the court officials in the performance of their duty more generally. And it did so in an unsupported and exaggerated manner in the form of a letter to the Chief Justice. It did not purport to initiate a proceeding on which to engage a judge. Nor was it a formalised memorandum within an existing proceeding. I consider the Registrar’s decision to respond to Mr O’Neill’s complaint is not reviewable and did not usurp any supervisory function of the Court. This is particularly so where the original decision complained of is moot having been superseded by acceptance of revised documents for filing with no adverse consequences for Mr O’Neill.

[24]              Indeed, the Supreme Court has now issued judgment in the two proceedings before the court. In both instances, the Court declined leave to appeal.

[25]                   In my assessment, this proceeding is misdirected and misconceived. That is not of itself determinative of the review exercise under r 5.35B. Nonetheless, the extravagant claims and language combined with the nature of the relief Mr O’Neill purports to seek which the Court would be unable to address or provide belies the motivation driving this proceeding. That is, to launch further attacks on the judicial system which Mr O’Neill perceives has not served him.

[26]              I conclude that the proceeding is an abuse of process. It would be improper to require the respondent to have to respond. I am well satisfied that it meets the test set out by the Court of Appeal. Accordingly, I strike it out.

[27]              As required by r 5.35B(3), I record that Mr O’Neill has a right to appeal against this decision.

............................................................

Walker J