O'Neill v Mt Roskill Local Doctors
[2025] NZHC 1960
•16 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-1123
[2025] NZHC 1960
UNDER the Constitution of New Zealand
the New Zealand Bill of Rights Act 1990 the Judicial Review Procedure Act 2016
IN THE MATTER
of an application for judicial review
BETWEEN
CHRISTOPHER JOSEPH O’NEILL
Applicant
AND
MT ROSKILL LOCAL DOCTORS
First respondent
THE HEALTH AND DISABILITY COMMISSIONER, COMPLAINTS ADMINISTRATOR, TEAM LEADER
Second respondents
Judicial review list: 16 July 2025 Appearances:
Applicant in person
IHV Reuvecamp for first respondent
A M Coventry and E H Callister-Baker for Health and Disability CommissionerDate of judgment:
16 July 2025
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 16 July 2025 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Solicitors:
Vida Law, Wellington
Office of the Health and Disability Commissioner, Auckland
Copy to:
Applicant
O’NEILL v MT ROSKILL LOCAL DOCTORS [2025] NZHC 1960 [16 July 2025]
[1] Mr O’Neill’s 21 April 2025 statement of claim seeks judicial review of unspecified “various decisions and actions of the respondents which [affect his] access to justice, and [his] health and longevity”, in respect of which he proposes this Court “rules” on if the respondents’ “processes” are correct or putting his or others’ lives “at risk”.
[2] My 18 June 2025 minute, noting the serious inadequacies of Mr O’Neill’s pleaded claim for judicial review, directed he either discontinue the proceeding or file and serve an amended statement of claim by 11 July 2025. He has done neither, but seeks instead my recusal while defending the contended adequacy of his original pleading. The respondents seek reference of the proceeding under r 5.35B of the High Court Rules 2016 to address the proceeding’s contended abuse of the process of the court.
Recusal
[3] Mr O’Neill claims my recusal on multiple grounds of indeterminate relevance, such as my being “party” to the first respondent’s counsel’s appearance, my reference to his pleading “on its face”, my refusal “to rule on [the constitution’s] existence”, and my 18 June 2025 directions in the face of “no defence” and as an “attempt … to frighten [him] off”. He says my focus on the Judicial Review Procedure Act 2016 to disregard the constitution of New Zealand including the New Zealand Bill of Rights Act 1990, and my 18 June 2025 minute not being received by him until 30 June 2025 meaning he could not by equivalent return of post meet my 11 July 2025 timetable, also warrant my recusal.
[4] Resolution of legal disputes by impartial and independent judges is “an essential underpinning” of democratic society.1 Those charged with criminal offences have “the right to a fair and public hearing by an independent and impartial court”;2 the right to apply for judicial review engages no lesser consideration.3 Not only must
1 Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [32], endorsed by Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].
2 New Zealand Bill of Rights Act 1990, s 25(a).
3 Section 27(2), and see Muir v Commissioner of Inland Revenue, above n 1, at [32].
the Court actually be impartial and independent; it also must appear to be so.4 Nonetheless, the Supreme Court has stipulated “[j]udges should not recuse themselves without sufficient cause”.5 Apparent bias is to be assessed on a case-by-case basis.6
[5] Section 171 of the Senior Courts Act 2016 required development and publication of recusal guidelines for the High Court. The resultant guidelines include:7
A judge should recuse him or herself if, in the circumstances, a fair-minded, fully informed observer would have a reasonable apprehension that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
giving rise to a two-stage test,8 to identify first the relevant circumstances and then any “logical and sufficient connection” to such apprehension.
[6] To paraphrase that test for application here, the issue is if my impugned involvement in the case makes it a real possibility a fair-minded, fully informed intelligent lay observer reasonably would apprehend I might not impartially decide the issue before me on its merits, notwithstanding my oath to “do right to all manner of people after the laws and usages of New Zealand without fear or favour, affection or ill will”.9
[7] In considering Mr O’Neill’s application for my recusal, I apply those guidelines, including the standard of “real and not remote possibility”, rather than
4 R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 at 259.
5 A v R [2016] NZSC 31 at [16], citing Stephen Sedley “When should a judge not be a judge?” [2011] 33 LRB 1 at 9 (republished in Stephen Sedley Law and the whirligig of time (Hart Publishing, Oxford, 2018) as “Recusal: when should a judge not be a judge?” at 116). See also Shimon Shetreet and Sophie Turenne Judges on Trial: The Independence and Accountability of the English Judiciary (2nd ed, Cambridge University Press, Cambridge, 2013) at 214; and Chamika Gajanayaka “Judicial recusal in New Zealand: looking to procedure as the principled way forward” (2015) 46 VUWLR 415 at 422. And see also Lyttleton v R [2018] NZCA 243 at [5]; and Stokes v Insight Legal Trustee Company Ltd [2015] NZCA 519 at [27].
6 KI Commercial Ltd v Christchurch City Council [2019] NZCA 645 at [10], citing Russell v Taxation Review Authority [2011] NZCA 158, [2011] NZAR 310 at [23] (citing Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (CA)).
7 Courts of New Zealand, “High Court recusal guidelines” (12 June 2017)
< at 1.2.
8 High Court recusal guidelines, above n 7, at 1.4; see also Sisson v Canterbury District Law Society
[2011] NZCA 55, [2011] NZAR 340 at [20]–[22].
9 Oaths and Declarations Act 1957, s 18.
probability, of partiality;10 to be determined by the two-stage test;11 in the application of which I am to apply the relevant principles “firmly and fairly and not accede too readily to suggestions of bias”.12
[8]In my assessment, a fair-minded, fully informed observer would understand:
(a)judicial review is the exercise of this Court’s supervisory jurisdiction over susceptible decision-makers “to ensure that public powers are exercised lawfully”;13
(b)as judicial review list judge, I have responsibility for ensuring judicial review proceedings are determined “in a convenient and expeditious manner”, “effectively and completely”, including by directing at my own initiative parties’ attendance at case management conferences and any consequential directions I consider necessary;14 and
(c)my 18 June 2025 directions stipulated minimum pleading requirements for Mr O’Neill’s claim.
[9] Nothing in that possibly could lead to an apprehension my directions were made other than on the merits for such filing. A fair-minded, fully informed observer would comprehend I am expected—as judicial review list judge—actively to manage judicial review proceedings, and early identification of pleading adequacy is desirable. There is no logical or sufficient connection between my role in these proceedings as judicial review list judge and any apprehension I might make such directions other than on their merits.
[10]I will decline Mr O’Neill’s application for my recusal.
10 High Court recusal guidelines, above n 7, at 1.3.
11 At 1.4.
12 At 1.5.1.
13 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [1].
14 Judicial Review Procedure Act 2016, ss 13–14.
Abuse of process
[11] Rule 5.35B is predicated on a Registrar’s reference of filed proceedings to a Judge under r 5.35A. That has not happened here. But I separately have a duty to prevent abuses of process,15 including by striking out pleadings and dismissing proceedings under r 15.1 if the abuse is “clear beyond doubt from reading the claim”.16
[12] An abuse of process is the “improper use of [the court’s] machinery”,17 or the use of a court process “for a purpose or in a way which is significantly different from [its] ordinary and proper use”.18 I explained the role of judicial review at [8](a) above. My 18 June 2025 minute also explained at [4]:
(a) the subject of judicial review is “the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power”.19 ‘Statutory power’ is defined.20 Judicial review of other exercises of executive power also is available at common law;21
(b) on judicial review, this Court assesses if the power is exercised “in accordance with law, fairly and reasonably”.22 If not, there is limited relief the Court may grant,23 and it generally is discretionary,24 if presumed in circumstances in which a claimant is substantially prejudiced by a public decision-maker’s error on exercise of its power;25 ‘Fair’ and ‘reasonable’ are terms of art in judicial review, respectively broadly meaning procedurally regular and substantively rational.26 But the overlapping nature of the considerations makes discrete analysis unnecessary;27
(c) it is well recognised the right to natural justice in any case depends on the context: “[t]he question is what form of procedure is necessary to achieve
15 Te Wakaminenga O Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63, [2023] NZAR 180 at [14].
16 At [15].
17 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [87], citing Simon Goulding, DB Casson and William Blake Odgers Odgers on Civil Court Actions (24th ed, Sweet & Maxwell, London, 1996) at [10.15].
18 Te Wakaminenga O Nga Hapu Ki Waitangi v Waitangi National Trust Board, above n 15, at [14]– [15], quoting Attorney-General v Barker [2000] 1 FLR 759 (QB) at 764.
19 Judicial Review Procedure Act 2016, s 4.
20 Section 5.21 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 at [75], n 62, referring to Burt v Governor-General [1992] 3 NZLR 672 at 676 and 678.
22 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.
23 Judicial Review Procedure Act, ss 16–19.
24 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].
25 Air Nelson Ltd v Minister of Transport [2008] NZCA 26 at [61], referring to Murdoch v New Zealand Milk Board [1982] 2 NZLR 108 at 122 (HC) and Unison Networks Ltd v Commerce Commission CA284/05 19 December 2006.
26 Stafford v Attorney-General [2022] NZCA 165 at [67] and [87]; Dunstan v Credit Union South
[2021] NZCA 656 at [23(c)].
27 Official Assignee v Chief Executive of the Ministry of Fisheries [2002] 2 NZLR 722 (CA) at [85].
justice without frustrating the apparent purpose of the legislation”.28 It is not a free-standing ground for review;
(d) the scope of evidence to be adduced for judicial review—even subject to the “so-called ‘duty of candour’”, that those whose decisions are under challenge have “a duty to explain the decision-making process, the relevant factual and other circumstances and the reasons for the decision” as a responsibility attached to public decision-making29—is circumscribed accordingly, as is any requirement for discovery; and
(e) any statement of claim must comply with the High Court Rules 2016, as to which rr 5.1–5.28 and 5.31 are relevant here.
[13] As my 18 June 2025 minute implied, Mr O’Neill’s claim failed clearly and concisely to identify, consistently with rr 5.17 and 5.20 in particular:
(a)what specific right, obligation or interest had by him is affected by any respondent’s conduct as decision-maker;
(b)by reference to some specific statutory provision, what particular statutory power each decision-maker is said to have exercised;
(c)which specific actions of the decision-maker are at issue as exercises of that statutory power (and, if they are actions specified in a document issued by the decision-maker, what are those documents);
(d)in relation to each such action, what of it is alleged not to be exercised in accordance with law, or to be unfair or unreasonable in a judicial review sense, and how; and
(e)with reference to s 16 of the Judicial Review Procedure Act 2016, what relief he seeks the Court grant.
[14] Instead, Mr O’Neill contends his original pleading relied on his “right not to be killed”, the second respondents “obligation … to enforce the laws of N.Z.” and his interest in his “longevity”. He prays in aid “the entirety of the O.I.A. – Privacy Act
H.I.P.C. H + D patients code of rights etc”, saying the respondents “did nothing to protect [him]” and contending for the first respondent’s “duty of care to diagnose and
28 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [118]–[120].
29 Ririnui v Landcorp Farming Ltd, above n 24, at [105].
[prescribe]” and “obligation not to kill people” as the basis for this Court’s orders they not kill him.
[15] None of that comes close to meeting the minimum requirements for pleading a claim for judicial review. The pleading discloses no reasonably arguable cause of action or case appropriate to judicial review. In its present form, it is likely to continue to cause prejudice to the respondents and delay for its disposition. The abuse is ‘clear beyond doubt’.
[16] I will strike out the pleading. As Mr O’Neill also has declined to replead his claim, I will dismiss the proceeding.
Result
[17]Mr O’Neill’s application for my recusal is declined.
[18] Under r 15.1 of the High Court Rules 2016, I strike out Mr O’Neill’s 21 April 2025 statement of claim and dismiss the proceeding.
—Jagose J
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