O'Neill v New Zealand Law Society
[2022] NZCA 500
•19 October 2022 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA170/2021 [2022] NZCA 500 |
| BETWEEN | CHRISTOPHER JOSEPH O’NEILL |
| AND | NEW ZEALAND LAW SOCIETY AND OTHERS |
| Hearing: | 29 September 2022 |
Court: | Miller, Brewer and Moore JJ |
Counsel: | Appellant in person |
Judgment: | 19 October 2022 at 2.00 pm |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellant must pay cost to the New Zealand Law Society for a standard appeal on a band A basis with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
This judgment responds to an appeal against a decision to strike out a proceeding brought in the High Court by Mr O’Neill.[1] For the avoidance of doubt, this judgment also disposes of an interlocutory application made in this Court, which is described as an application for a stay so that precedent-setting matters may be ruled on and an appeal if necessary taken to the Supreme Court.
[1]O’Neill v New Zealand Law Society [2021] NZHC 607.
The proceeding was struck out in the High Court for the abusive manner in which it has been conducted, not because the allegations made against the defendants were scandalous or obviously without merit.
The claim
The proceeding is an application for judicial review challenging disciplinary decisions made under New Zealand Law Society processes.
Mr O’Neill had been charged with offences under the Harassment Act 1997. He was represented by counsel from the Public Defence Service (PDS). He was duly convicted. He complained to the Law Society that his counsel failed him in many respects and was corrupt and possibly affected by drugs. He also complained about senior PDS lawyers whom he said did not respond to his allegations. A Standards Committee panel convened by the Law Society resolved to take no further action, finding Mr O’Neill had provided no evidence to support his claim. It later appeared that some documents he provided were not put before the panel due to a scanning error. A decision was made that a different Standards Committee would rehear the complaint. That did not happen because Mr O’Neill applied for judicial review, citing not only the New Zealand Law Society but also some of those involved in dealing with his complaint.
The statement of claim alleged, among other things, that evidential documents were criminally removed from the Law Society file before hearing, that those involved were engaged in a conspiracy to pervert justice, and that some of those involved were affected by unspecified conflicts of interest.
The strikeout
Cooke J recorded in his judgment that he held a telephone conference on 12 October 2020. He had become concerned that the manner in which Mr O’Neill was conducting the proceedings amounted to an abuse of process. He directed that submissions be filed on that question, following which he would decide on the papers whether to strike the proceeding out.[2]
[2]At [1].
The background to this decision was set out in a minute following the telephone conference:
[3]The background was set out by me in my Minute of 13 October 2020 following the telephone conference. I recorded the following:
[2] In preparation for the telephone conference I read through the Court file, including Mr O'Neill’s communications to the Court. I was concerned that the communications were highly abusive in nature, and included apparent threats of violence.
[3] Following the telephone conference before Ellis J in early February Mr O'Neill sent a communication to the Court dated 14 February describing Ellis J as a “lazy cow”. The same communication referred to Venning J as “the pervert”. A further letter dated 16 February to Churchman J also addressed him as a “pervert”. Registry staff have been referred to in similar abusive terms.
[4] In addition the letter of 14 February suggests that counsel presently instructed for the respondents are not “legitimate”, and that if they are not replaced:
You all denote “seconds” and choose your weapons that we sought this matter via the duel now that the Court just can’t be arsed to do justice anymore, and we must now revert to violence to settle our affairs.
PS : I think it only fair to advise, though I abhor violence and have never indulged in such, I do believe that when it comes to duelling I might be awfully good at it.
[5] At the telephone conference I indicated to Mr O’Neill that it was not appropriate for him to engage in abuse of Judges or Registry staff, and that the communications also appeared to raise a threat of violence. I indicated to him that such communications in the progress of the proceedings were potentially an abuse of the processes of the Court, and that the Court had an inherent jurisdiction to strike out proceedings that were such an abuse. I indicated to him that before taking that step, however, that I would give him an opportunity to file submissions to indicate why his proceedings were not an abuse notwithstanding the way they are being conducted.
[6] In response Mr O’Neill indicated that it was obvious that I had been paid-off or bribed to take this position. He said that if I genuinely had concerns along those lines that I should complain to the Police. He also indicated that his proceedings demonstrated that a Judge had already been paid-off, and that it was apparent that I had pre-judged the matter that I had raised. These statements appeared to be a continuation of the inappropriate manner in which Mr O’Neill is presently conducting the proceeding.
[7] He also asked me to record in the minute the matters that gave rise to my concern. I have now done that. I advised Mr O'Neill that the Court would potentially exercise the inherent jurisdiction to strike out his proceeding as an abuse notwithstanding that there had been no application by a party. The standard to be applied would be a high one, where the proceedings were plainly an abuse because the way they were being conducted was bringing the administration of justice into disrepute.
[8] I discussed with Mr O’Neill and counsel the time required to file submissions. Mr O’Neill asked for a month for the filing of his written submissions, Mr McCusker indicated the Law Society could respond within two weeks, and Mr O’Neill said he would need a further month to reply. Ms Harris indicated that as matters stood no submissions would be expected from the parties she represents.
(Footnotes omitted.)
In its submissions the Law Society argued that the High Court has inherent jurisdiction to strike out proceedings that are being conducted in an abusive manner, and that this was such a case. The Law Society drew the Judge’s attention to five previous proceedings brought by Mr O’Neill which were found to be without merit, and in three of which courts had recorded that Mr O’Neill had engaged in vitriolic personal attacks and abuse.[3]
[3]At [4], referring to Attorney-General v O’Neill [2008] NZAR 93 (HC); O’Neill v Accident Compensation Corporation [2017] NZHC 2713’ O’Neill v Toogood [2017] NZCA 505; O’Neill v Attorney-General (No 2) [2018] NZHC 1917; and O’Neill v Bridgman [2020] NZCA 460.
In his submissions Mr O’Neill did not resile from anything he had said. Far from it, he doubled down, arguing that his language was not abusive because his allegations were true. He described judges variously as perverts, cows, drunks, criminals and corrupt, alleging that they had been bought off or corrupted by the government. He appears to find some satisfaction in this. By way of illustration, Mr O’Neill wrote to Venning J, who as the Chief High Court Judge had dealt with a previous complaint, inquiring whether the Judge took issue with being called a pervert:
Now: cash the cheque [Cooke J] doesn’t know of our history Geoff our banter over the years, and he appears not to know or pretends not to know you are in fact a pervert. He thinks you might be offended Geoffwe (sic) (poor little judge) so I ask Geoff we are you offended by the truth ??? Please advise so I can file in Court your response. Note: no response by end of October 2022 = not offended no objection.
Cooke J invoked r 15.1(1)(c) and (d) for jurisdiction to strike out a proceeding that is an abuse of process, and he recorded that the High Court also has inherent jurisdiction to strike out proceedings irrespective of any application, citing Siemer v Stiassny.[4] He referred to Greer vChief Executive of the Department of Corrections, in which a proceeding was struck out because of the abusive manner in which it was being conducted.[5] He reasoned that proceedings should be struck out only if the manner in which they are conducted is so plainly an abuse that it is inappropriate to expect them to be responded to.[6]
[4]At [8], citing Siemer v Stiassny [2011] NZCA 1 at [15].
[5]At [9], citing Greer v Chief Executive of the Department of Corrections [2019] NZHC 980.
[6]At [10].
The Judge had little hesitation in saying that the present proceeding must be struck out. The Court, its staff (who had been subjected to similar abuse, one staff member being described as a “gayboy”) and counsel need not engage with a litigant who uses the Court’s processes to engage in personal abuse. The right of access to the Court does not extend to that. Mr O’Neill had persisted repeatedly despite warnings and shown that he was not capable of engaging in proceedings without descending into abuse.[7]
The appeal
[7]At [11].
The notice of appeal raised numerous grounds, most directed to justification of Mr O’Neill’s behaviour. Among other things, it alleged that Cooke J ought to have recused himself, that the “legitimacy” of counsel for the Law Society had also been challenged but the Judge failed to rule on it, that judges and registrars are corrupt, that he had not threatened anyone, that he had never made any scandalous or unsubstantiated claim, that a Registrar had paid off an Auckland silk, and that it was not open to the Judge to describe Mr O’Neill’s treatment of others as personal abuse when none of them had claimed to be offended. In a list of grounds Mr O’Neill alleged that four Judges so far had acted criminally, that none of the counsel for the respondents had any legitimacy, that the Registry had perverted the course of justice, that the Law Society has sway over the judiciary, that the judges have a financial relationship with the Law Society, and that the minute of Cooke J of 13 October 2020 was a most vile perversion of justice and the product of an unsound mind.
In supporting submissions and what he describes as “evidence”, Mr O’Neill described court staff as “bent scum”. During case management he has made various allegations about registry staff, saying of one that:[8]
[The deputy registrar] is recidivist pervert who will stop at nothing to get his leg over his female co-workers
And of another that:
[I demand] that you turn [the deputy registrar] out onto the streets where she will be at home, on a corner, arms akimbo, legs dilated, at her true calling of “whore”, where she can legitimately, and legally, screw men for money as she attempts to do to via criminality
Jurisdiction to strike out for abusive conduct of a proceeding
[8]Quoted with permission of those affected.
Access to justice is an important human right.[9] For that reason, a court will not lightly strike out a viable proceeding for the abusive manner in which it has been conducted.
[9]Faloon v Planning Tribunal at Wellington [2020] NZCA 170 at [1].
This is sometimes explained by stating that judges are not easily offended because they are made of sterner stuff. By way of example, the Law Society drew our attention to Senna v Henderson, in which the High Court of England and Wales held that “[j]udicial backs are broad, and our skins are thick”.[10]
[10]Senna v Henderson [2021] EWHC 453 (QB) at [127].
We do not think that accurately describes this Court’s approach. The response to abusive conduct has nothing to do with the judge being personally affronted. To treat it as a question of judicial fortitude is to risk asking too much of judges, overlooking the impact of abusive behaviour on court staff and parties, and failing to recognise that the court may be under a duty to strike out.
The correct question is whether the proper administration of justice requires that the court should intervene. Limits are enforced because it is inimical to the administration of justice to permit abusive behaviour in a public forum where speech is protected by absolute privilege. Misuse of the judicial process causes unfairness for others involved, including the opposing party. It also undermines public confidence in the administration of justice.[11] Courts must be seen to be capable of dealing with it. As the English Court of Appeal held in Terry v Hoyer (UK) Ltd:[12]
There is conduct which no court or tribunal, with its necessary concern for the proper administration of justice, could tolerate. Courts and tribunals must be concerned to do justice. They must, in doing that, have regard to the interests of litigants in general, to the proper use of court time and to the need to ensure respect for courts and tribunals in the community.
[11]Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) at 9.
[12]Terry v Hoyer (UK) Ltd [2001] EWCA Civ 678 at [16].
To that we would add that a court must also consider the impact of abusive behaviour on its staff, who are expected to correspond and speak with parties and who may be treated, as in this case, rather worse than the judges.
This case
Mr O’Neill has engaged in personal abuse of judges and registry staff. Allowances may be made for strong feelings and his status as a lay litigant, but his homophobic or misogynist slurs or characterisation of judges as perverts and cows could never be characterised as anything other than abuse.
When we inquired about this, Mr O’Neill offered several justifications. Of the abuse directed at registry staff he said that these are his opinions and he has an absolute right to express them under the New Zealand Bill of Rights Act 1990. He is wrong about that. All rights are subject to reasonable limits prescribed by law,[13] and the jurisdiction to strike out exists to ensure those limits are respected. Of the description of judges as perverts, he said that what he meant was that they had perverted the course of justice. We do not believe him and we think no reasonable observer could read his use of the term in that way. Of Cooke J’s observation that he had threatened violence, he claimed that his language was obviously a joke. We do not believe that either.
[13]New Zealand Bill of Rights Act 1990, s 5.
A plaintiff has the right to level serious charges against others, including judicial officers, but a good-faith foundation should be offered for such allegations.[14] If such foundation is lacking, the court may conclude that its processes are being abused.[15] We asked Mr O’Neill about his allegations against the judges and others. He said that his evidence (which takes the form of submissions or particulars) proves his allegations. In our view it amounts to speculation that because things have not gone his way the staff and judges must be corrupt and that because his allegations to that effect have not been denied they must be deemed admitted. He contended that it is not open to us to find his behaviour abusive if those to whom it was directed have not asked us to do so. This is an attempt to pull himself up by his bootstraps. As we have explained, the court has a duty to intervene where the administration of justice requires it, and it may act of its own volition where necessary.
[14]Payne v Attorney-General (No 3) [2004] NZFLR 529 (HC) at [67].
[15]O’Neill v Bridgman, above n 3, at [23].
Mr O’Neill sought to persuade us that his proceeding against the Law Society has merit but, as we explained to him, what is in issue in the present appeal is whether he has conducted it in an abusive manner. We have read his papers. They show that he has repeated and expanded on his personal attacks at every opportunity. We inquired whether he was prepared to change his behaviour. He made it clear that he will not stop; so far as he is concerned, what he has said is true, he is justified in saying it, and the law recognises no limits to his rights.
Mr O’Neill also complained that Cooke J did not respond to requests that he should both recuse himself and insist that the Law Society appoint other counsel. He argued that as a result everything the Judge did was void. We explained that he was wrong about that, but he might try to persuade us that the Judge ought to recuse himself. Having heard him, we find that his applications ultimately rested on the untenable claim that there was a corrupt relationship between the Law Society and the Judge. There were no grounds for recusal, or for removal of the respondent’s counsel.
We record that during the hearing Mr O’Neill similarly accused us of corruption and invited Moore J to recuse himself for having dealt with one of his previous matters. That invitation is rejected.
We find that Cooke J was plainly right to strike out the proceeding. It is a flagrant abuse of process.
Having regard to Mr O’Neill’s gross allegations against Registry staff in the conduct of the appeal, we might have struck the appeal out summarily for abuse of the processes of this Court. We have not done that only because we find it more expedient to deal with the appeal on the merits.
Disposition
The appeal is dismissed. Mr O’Neill must pay the Law Society costs for a standard appeal on a band A basis with usual disbursements. He told us that he has no money to pay, but that is not sufficient reason to deny the Law Society costs.
We direct the Registrar to refer a copy of this judgment to the Solicitor-General for consideration of such further steps as she might consider appropriate having regard to s 166 of the Senior Courts Act 2016.
Solicitors:
Luke Cunningham Clere, Wellington for New Zealand Law Society
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