O'Neill v New Zealand Law Society

[2021] NZHC 607

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-627

[2021] NZHC 607

UNDER

The New Zealand Bill of Rights 1990

IN THE MATTER OF

An application for judicial review

BETWEEN

CHRISTOPHER JOSEPH O’NEILL

Applicant

AND

THE NEW ZEALAND LAW SOCIETY

First Respondent

AND

B A GALLOWAY

Second Respondent

AND

R MAIDMENT

Third Respondent

AND

JAN PILKINGTON

Fourth Respondent

Hearing:	On the Papers
Appearances:	C O’Neill self-represented Applicant S B McCusker for First Respondent
Judgment:	24 March 2021

JUDGMENT OF COOKE J

[1]    These judicial review proceedings challenge certain disciplinary decisions made under New Zealand Law Society processes. They were commenced in 2019. On 12 October 2020 I held a telephone conference in relation to the proceedings. At that stage I familiarised myself with the file for the purposes of the conference. On doing so I became concerned that the manner in which the proceedings were being

O’NEILL v THE NEW ZEALAND LAW SOCIETY and OTHERS [2021] NZHC 607 [24 March 2021]

conducted by the applicant amounted to an abuse of process, and that the proceedings ought to be struck out. At the conference I directed that submissions be filed by the applicant and the respondent directed to that question, following which I would determine the matters on the papers.

[2]    Having now considered the submissions that have been filed it seems to me a clear case where the proceedings should be struck out, and I duly do so for the reasons set out below.

Background

[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.1 I indicated to

1      See, for example, Greer v Chief Executive, Department of Corrections [2019] NZHC 980 at [11]- [12].

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.2 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.3

[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.

Submissions received

[4]    The submissions of the Law Society supported the view that the Court had an inherent jurisdiction to strike out proceedings that were being conducted in an abusive manner, and that the applicant’s conduct of the proceedings had become an abuse of process and should be struck out. The Society emphasised that following this Court’s Minute, which had provided the applicant with an opportunity to explain his approach, he had made further scandalous and unsubstantiated claims. The Society also referred to a number of previous occasions where the Court had raised its concerns with the applicant including:

(a)Attorney-General v O’Neill where a vexatious litigant order was made against Mr O’Neill in respect of proceedings in the Human Rights

2      Siemer v Stiassny [2011] NZCA 1 at [15].

3      See, by comparison, Andrew Beck and Others McGechan on Procedure (loose-leaf ed, Brookers, updated to July 2020) at [HR 5.35A.01-02].

Review Tribunal. Here the Court recorded that Mr O’Neill engaged in vitriolic personal attacks.4

(b)O’Neill v Accident Compensation Corporation where Whata J indicated that Mr O’Neill was prone to scandalous and outrageous claims, including claims that counsel and the Court were “perverts”.5

(c)O’Neill v Toogood where the Court of Appeal recorded that Mr O’Neill had made scurrilous accusations against Toogood J and Court staff for which there was no proper factual basis.6

(d)O’Neill v Attorney-General (No 2) where Palmer J recorded that “Mr O’Neill’s personal abuse of me and another Judge may constitute contempt of Court for which a fine or even imprisonment could be imposed”.7

(e)O’Neill v Bridgman where the Court of Appeal upheld the High Court’s decision to strike out Mr O’Neill’s proceeding on the basis that Mr O’Neill was not able to put forward support for his allegations that would otherwise be defamatory.8

[5]    Mr O’Neill opened his submissions with a covering message to the Registrar in the following terms:

That decreed by the lush Cooke J. He who thinks those before him applying for justice should be likened to “Adolf Hitler”.

[6]    Mr O’Neill then attached a twelve-page document described as a media release and an open letter to the Prime Minister. In it Mr O’Neill further asserts that Venning, Ellis and Churchman JJ “are as described” and he repeats the allegation that I am corrupt. Mr O’Neill has then responded to the submissions advanced by the Law Society, and in particular he responds to the various proceedings referred to. In short

4      Attorney-General v O’Neill [2008] NZAR 93 (HC).

5      O’Neill v Accident Compensation Corporation [2017] NZHC 2713 at [6].

6      O’Neill v Toogood [2017] NZCA 505 at [9].

7      O’Neill v Attorney-General [2018] NZHC 1917 at [8].

8      O’Neill v Bridgman [2020] NZCA 460.

he contends that his position in the earlier proceedings was justified including contentions that Palmer J was corrupt and that Toogood J had lied to him.

Assessment

[7]    The right to bring proceedings before the Courts is a fundamental right. That is particularly so in relation to judicial review where the right is recognised by s 27 of the New Zealand Bill of Rights Act 1990. But the right to bring such proceedings must be exercised with the law that regulates such proceedings. The right in s 27(2) of the New Zealand Bill of Rights Act is to apply for judicial review “in accordance with law”. Part of the reason for this is that those who are brought to Court by a proceeding initiated by another also have a right to have those matters addressed in accordance with law.

[8]    The rules of Court are clear that proceedings can be struck out as an abuse of process. Rule 15.1(1)(c) and (d) allow proceedings to be struck out if they are frivolous or vexatious, or are otherwise an abuse of process of the Court. Rule 5.35B allows a plainly abusive proceeding to be struck out even before service.9 As the Court of Appeal has confirmed, the Court also has an inherent jurisdiction to strike out proceedings irrespective of any application.10 That is the jurisdiction that I exercise here.

[9]    As indicated. proceedings have been struck out because of the manner in which they have been conducted, in particular if they are being conducted in an abusive manner.11

[10]   The approach I apply is analogous with the approach applied under r 5.35B. Proceedings should only be struck out if the manner in which they are conducted is so plainly an abuse that it is inappropriate to expect them to be responded to.

[11]   I have little hesitation in saying the present proceedings must be struck out. The applicant continues to make scandalous and unsubstantiated allegations that are

9      High Court Rules 2016, r 5.35B(2)(a).

10     Siemer v Stiassny [2011] NZCA 1 at [15].

11     Greer v Chief Executive Department of Corrections [2019] NZHC 980.

personally abusive in nature. That abuse has been particularly directed to Judges, but also includes Court staff and counsel acting for the opposing parties. It is not tenable to expect the Court, Court staff or counsel to engage with a litigant who uses the Court’s procedures to engage in personal abuse. The applicant has a right of access to the Court to put forward his complaints, and his argument in support of his complaints. But he does not have a right to engage in personal abuse. This case has moved well beyond a situation where the issue can be addressed by expunging certain information on the Court file.12 The abuse is repetitive and has continued notwithstanding the earlier warnings identified above. It even continues in face of my raising my concerns directly with Mr O’Neill. He has demonstrated that he is not capable of engaging in those proceedings without descending into such abuse.

[12]   For these reasons these proceedings are struck out. I also direct the Registrar to provide a copy of this judgment to the Solicitor-General.

[13]   The Registrar has also provided me with a copy of a further document that Mr O’Neill has filed received on 19 February 2021. To the extent this document can be interpreted as an attempt at filing a new proceeding I deal with it under r 5.35A and 5.35B of the High Court Rules 2016. It appears to be a challenge to a letter from the Chief District Court Judge advising him that the Court declined to accept the filing of a challenge to all levels of the Courts in New Zealand to actions taken by Court staff. Mr O’Neill’s covering note in this Court says that the document is not to be “interfered with by perverts,” and is addressed to the High Court “not Cooke, Ellis, Thomas or any bent Registrar”. The content of this document involves the same kind of personal abuse of Judges and Court staff. Applying the test adopted in Mathiesen v Slevin, I strike it out.13 I record that Mr O’Neill has a right to appeal to the Court of Appeal against that decision.

Cooke J

Solicitors:

Luke Cunningham Clere, Wellington for First Respondent

Crown Law Office, Wellington for Second, Third and Fourth Respondents

12     Van Der Kaap v Attorney-General (1996) 10 PRNZ 162 (HC) at 166.

13     Mathiesen v Slevin [2018] NZHC 1032, (2018) 25 PRNZ 116 at [6].