O'Neill v Thomas

[2024] NZHC 1538

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-000331

[2024] NZHC 1538

UNDER

the Constitution of New Zealand

the New Zealand Bill of Rights 1990

IN THE MATTER

of an Application for Judicial Review

BETWEEN

CHRISTOPHER JOSEPH O’NEILL

Applicant

AND

SUSAN THOMAS

Chief High Court Judge Respondent

CIV-2024-485-000332

UNDER

the Constitution of New Zealand the New Zealand Bill of Rights

IN THE MATTER

of an Application for Judicial Review

BETWEEN

CHRISTOPHER JOSEPH O’NEILL

Applicant

AND

UNA JAGOSE

Solicitor-General Respondent

CIV-2024-485-000333

UNDER

the Constitution of New Zealand
the New Zealand Bill of Rights 1990

IN THE MATTER

of an Application for Judicial Review

BETWEEN

CHRISTOPHER JOSEPH O’NEILL

Applicant

AND

MARY OLLIVIER

Deputy Judicial Conduct Commissioner Respondent

O’NEILL v THOMAS [2024] NZHC 1538 [12 June 2024]

CIV-2024-485-000334

UNDER

the Constitution of New Zealand
the New Zealand Bill of Rights 1990

IN THE MATTER

of an Application for Judicial Review

BETWEEN

CHRISTOPHER JOSEPH O’NEILL

Applicant

AND

JUDITH COLLINS

Attorney-General First Respondent

GERRY BROWNLEE
Speaker
Second Respondent

HELEN WHITE

Member of Parliament Third Respondent

Hearing:	(On the papers)
Counsel:	Applicant in person
Judgment:	12 June 2024

JUDGMENT OF LA HOOD J

[1]    Mr O’Neill has filed four separate applications for judicial review that have been referred to me pursuant to r 5.35A of the High Court Rules 2016, which 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.

[2]Once referred under r 5.35A, a Judge has the powers provided for in r 5.35B:

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]    In Mathiesen v Slevin the Court explained that deciding whether to strike out a proceeding so referred involved determining the following questions:1

(a)Whether it would be manifestly unfair to the respondents that they be required to respond; and

(b)Whether right thinking people would regard this Court as exercising very poor control of its processes if it were to allow the applicants’ document to be regarded as a proper document.

[4]    In  O’Neill  v  Judicial  Conduct  Commissioner  (another  case  involving  Mr O’Neill),2 the Court of Appeal reworded the second limb slightly to ask whether

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

2      O’Neill v Judicial Conduct Commissioner [2023] NZCA 152.

right thinking people would consider the Court was exercising poor control over its processes if it permitted the matter to proceed further.3 That was because the expression of the second limb in Mathiesen was inapt in a case not focused on obvious irregularities on the face of a document.4

[5]    The power in r 5.35B must be exercised sparingly and only in the clearest of cases. The authors of McGechan on Procedure note:5

HR5.35A.01 Jurisdiction to strike out or stay  proceedings  before service

The history and scope of rr 5.35A–5.35C was reviewed by the Court of Appeal in Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board [2023] NZCA 63, which concluded at [15] that the strike out powers in r 5.35B “must be exercised sparingly, and only in the clearest of cases.” (See also Siemer v Registrar of the Supreme Court [2019] NZHC 2345 at [6] and Siemer v Complete Construction Ltd [2022] NZCA 262, (2022) 26 PRNZ 137 at [40]– [50]. The Court observed that “[g]iven that the rule contemplates a litigant being denied the fundamental right of access to the courts, with the possibility of the proceeding being halted before it is even served, the abuse must be clear beyond doubt from reading the claim”.

[6]    There is an extensive history of proceedings commenced by Mr O’Neill being struck out as an abuse of process. A judgment of Cull J dated 9 December 2021, outlines some of that history:6

[13]      Mr O’Neill has an extensive history of commencing proceedings in this Court, and others. In 2019, Thomas J described the applicant as a “serial litigant”:

…Representing himself, he has been involved in numerous proceedings in a range of judicial bodies, including the Human Rights Tribunal, Disputes Tribunal, District Court, High Court, Court of Appeal and Supreme Court.

[14]      Earlier this year, Cooke J struck out judicial review proceedings issued by Mr O’Neill  challenging  disciplinary  decisions  made  under  New Zealand Law Society processes. Cooke J summarised a number of previous occasions where the Court has raised its concerns about the applicant:

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

3 At [33].

4 At [30].

5      Jessica Gorman and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR5.35A.01]

6      O’Neill v Commissioner of Police [2021] NZHC 3362.

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

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”.

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.

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”.

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.

[15]      Although that proceeding was struck  out  under  r  15.1  of  the  High Court Rules, Cooke J stated the approach to which he applied was “analogous with the approach applied under r 5.35B”. He concluded that:

The applicant continues to make scandalous and unsubstantiated allegations that are 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. 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.

[16]      I consider that Mr O’Neill’s current application for judicial review can also fairly be described as abusive. Consistent with a pattern in Mr O’Neill’s dealings with the Court, there appears to  be  no  proper  factual  basis  for Mr O’Neill’s various and serious claims, and he has not identified any decision to review. This is another example of Mr O’Neill using the Court’s procedures to engage in abuse of the respondents.

[17]      For the reasons above, I am satisfied these proceedings are plainly an abuse of process and consider it would be manifestly unfair to require the respondents to respond to Mr O’Neill’s allegations or to be required to treat this proceeding as a proceeding of this court.

(Footnotes omitted)

[7]    The Court of Appeal dismissed an appeal against Cull J’s judgment,7 on the basis that extravagant claims of corruption or impropriety that lack specificity should be struck out, but the Court accepted a limited aspect of the claim was potentially capable of being repleaded. However, as Mr O’Neill was unwilling to do so, the claim was struck out in its entirety. The Supreme Court declined leave to appeal that decision.8

[8]    Subsequently, in a judgment dated 30 May 2022, Cooke J struck out, under    r 5.35B, an application by Mr O’Neill to  judicially  review  decisions  of  the Judicial Conduct Commissioner, stating:9

... Mr O’Neill’s proceedings can generally be described as a persistent and repetitive attack upon the judicial system, usually in abusive terms. Whilst there is no objectionable abuse contained in these proposed proceedings, they are nevertheless part of the same, ultimately circular, attack.

[9]    The Court of Appeal dismissed an appeal against that decision.10 An application for leave to appeal to the Supreme Court was dismissed.11

[10]   In September 2023, Walker J struck out under r 5.35B three sets of judicial review proceedings filed by Mr O’Neill.12 In all three cases, Walker J concluded that the proceedings were a vehicle for Mr O’Neill’s attacks on the judicial system and judgments of the Court of Appeal and Supreme Court.

[11]   In a judgment issued at the same time as this decision, I have declined to strike out two judicial review proceedings filed by Mr O’Neill under r 5.35B.13 Those applications are for judicial review of the failure of the Privacy Commissioner and a manager in his office to investigate a complaint, and for judicial review of the failure of the Chairperson of the Human Rights Review Tribunal and a case manager at the Tribunal to accept a claim by Mr O’Neill for filing. Although those proceedings contained improper allegations of corrupt or criminal conduct and were incoherently

7      O’Neill v Commissioner of Police [2022] NZCA 501.

8      O’Neill v Commissioner of Police [2023] NZSC 13.

9      O’Neill v Ritchie [2022] NZHC 1225 at [6].

10     O’Neill v Judicial Conduct Commissioner, above n 2.

11     O’Neill v Judicial Conduct Commissioner [2023] NZSC 88.

12     O’Neill v Webster [2023] NZHC 2570; O’Neill v Hipkins [2023] NZHC 2594; and O’Neill v Leaupepe [2023] NZHC 2574.

13     O’Neill v Webster [2024] NZHC 1523.

pleaded, I could not exclude the possibility they could found an application for judicial review. I therefore considered that the appropriate course was for the proceedings to be stayed to give Mr O’Neill an opportunity to amend his pleadings and provide the documents that he considers found his claims.

These proceedings

[12]   The four applications for judicial review before me for consideration of strike out under r 5.35B were filed on 30 May 2024.

The first proceeding: CIV-2024-485-000331 O’Neill v Thomas

[13]   The first names Thomas J, former Chief High Court Judge and now a Judge of the Court of Appeal, as the respondent. The proceedings fall into the category of the scandalous, unsubstantiated, persistent, repetitive, abusive and circular attack on judges and the judicial system described by Cooke J in his judgments in 2021 and 2022 as set out above.14

[14]   The proceedings the subject of Cull J’s judgment of 9 December 2021 named Thomas J as a respondent and sought her trial and/or imprisonment as one of the remedies.15 The judicial review proceedings that Cooke J struck out on 30 May 2022 related to the Judicial Conduct Commissioner’s  dismissal  of  four complaints  by Mr O’Neill, which included a complaint against Thomas J.16

[15]   Mr O’Neill’s pleading is almost impossible to follow. It includes a number of improper allegations of criminal conduct against Thomas J, which appear to relate to the Court registry’s failure to action an application made by Mr O’Neill on 15 March 2021 and follow up letters in respect of that application on 30 March, 17  June and   5 July 2021. Mr O’Neill attaches a memorandum from the Civil Caseflow Manager to Thomas J in her capacity as the then Chief High Court Judge dated 20 April 2023. The memorandum concludes:

The registry has neglected to accept or reject the applications and it has not corresponded with Mr O’Neill about them.

14     O’Neill v Ritchie, above n 9.

15     O’Neill v Commissioner of Police, above n 6, at [8].

16     O’Neill v Ritchie, above n 9.

The registry has also neglected to refer them to the office of the Chief High Court Judge, even though they are addressed to the Head-of Bench.

[16]   As far as I can discern from Mr O’Neill’s pleading, he is in effect alleging that Thomas J has dishonestly, or corruptly, covered up the Court’s errors and, as those errors amount to criminal conduct, has thereby committing “crimes” herself. No coherent factual narrative is pleaded, nor are there proper causes of action or grounds of review identified and the remedies sought appear to be a series of questions for the Court to answer, such as:

…

3)Rule on the “ongoing” in regard to the assurances the respondent gave me and that those assurances aren’t worth a “tin-of-shit, as not one thing she claimed would occur, has occurred.

4)The respondent assumed her claim of error, her oops typo explanation, was sufficient to cover up criminal offences “if” coupled with “putting-it-right” ie directing her other responsibility, the Auckland High-Court to correct, to act, to rectify, would make everything weetness and light. But “no” such has happened, ergo, the respondent is guilty of the “ continuation” of the criminal offending she and her court (?) started.

5)Was the respondent right inlaying the burden of her crimes on to the Auckland High-Court, then faking to do her duty as Head-of-Bench in seeing they acted as instructed?

6)Is her claim re the law that surrounds access to the Human Rights Review Tribunal legally accurate? If so, why can it not be verified by the Auckland High-Court, the H.R.R.T or the Attorney-General? Did she lie to a citizen before her seeking justice, just to cover her own arse.

7)Why is it that recent cases laid at this Court, her Court, being ignored criminally as were such is this past? Why was nothing changed?

8)Where is my justice???

[17]   I have no hesitation in concluding that these proceedings can be described as making scandalous, improper and unsubstantiated allegations that are abusive in nature and continue Mr O’Neill’s circular, persistent and repetitive attack on the judicial system. This claim is appropriately struck out on that basis under r 5.35B.

The second proceeding: CIV-2024-485-000332 O’Neill v Jagose

[18]   The second proceeding names the Solicitor-General as the respondent. Again, the pleading is incoherent. There is no coherent factual narrative pleaded, nor proper causes of action or grounds of review identified. The essence of the complaint appears to be that the Solicitor-General has “criminally” covered up the corruption of the judiciary in dealing with Mr O’Neill’s claims. Mr O’Neill attaches the Court of Appeal and Supreme Court judgments dismissing his appeal, and application for leave to appeal, in respect of Cooke J’s 2021 decision striking out his proceedings against the Law Society.17 Those decisions concluded with the Courts referring their judgments 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 2016.18

[19]   Mr O’Neill also attaches a letter, dated 11 March 2023, he wrote to the Solicitor-General asking for the provision of all information relating to those judgments under the Official Information and Privacy Acts,19 and the Solicitor- General’s response declining to provide the information sought on the grounds that the information is not subject to the Official Information Act and it was withheld under the Privacy Act because disclosure would breach legal professional privilege.

[20]   Perhaps the essential point of the pleading, as far as can be discerned, is captured by the pleading that the actions of the Solicitor-General “are those of a mob fixer, those who clean up after the hit”. The relief sought is again a series of questions, which include for example:

…

B)Clarify the role of the respondent in relation to the judiciary i.e. can  the respondent hold secret meeting etc with the judiciary, on behalf of Government, then act criminally in cahoots with the Courts, the judiciary, Government and its agencies to hide their own crimes?

…

17     O’Neill v New Zealand Law Society [2022] NZCA 500 at [28] and O’Neill v New Zealand Law Society [2023] NZSC 14.

18     At [28] and [7] respectively.

19     Official Information Act 1982; and Privacy Act 2020.

E)Must a gap exist twixt the Gubernatorial and Jurisprudential, what   might that look like? Is such in existence is reality? How do the people know, given the parties are clearly both corrupt and secretive?

…

L) Is the respondent out of his depth? Beholding to the judiciary? or the subject of bullying at the hands of the Supreme Court, and Court of Appeal?

…

P) Is the respondent, the point-of-contact, the “hit-man”, the liaison, the “fixer”, for Government? The judiciary? Both?

…

X)       Who is running this country?

Y)What achievable avenues of justice exist for me, that I can have faith in? I have been attacked by a rogue judiciary. Where is my justice?

Z)Where is democracy?

[21]   Again, I have no hesitation in concluding that these proceedings make scandalous, improper and unsubstantiated allegations that are abusive in nature and are part of Mr O’Neill’s circular, persistent and repetitive attack on the judicial system. This claim is therefore also appropriately struck out on that basis pursuant to r 5.35B.

The third proceeding: CIV-2024-485-000333 O’Neill v Ollivier

[22]   In this proceeding Mr O’Neill seeks judicial review of the actions of the Deputy Judicial Conduct Commissioner, Mary Ollivier.

[23]   The pleading is again almost impossible to follow and contains no coherent factual narrative or properly pleaded causes of action. As far as can be discerned, the essence of the complaint appears to be that Ms Ollivier is conflicted in her role as Deputy Judicial Conduct Commissioner in respect of Mr O’Neill’s complaints because she was formerly the senior employee of the New Zealand Law Society during the time when the Law Society dealt with complaints he made. It appears to be alleged that Ms Ollivier is conflicted as a result of the “criminal actions” of Ms Ollivier and the Law Society in ruling against Mr O’Neill. It is alleged that following this there has been “numerous further criminalities and perversions of justice”. It is further apparently alleged that when the matter went before the Courts, the judicial system

“perverted the justice to protect” Ms Ollivier who in turn, in an unofficial arrangement, protected the judges. This means, it appears to be alleged, that Ms Ollivier, “in order to be protected by the judiciary” from imprisonment, turns “two blind eyes” to all judicial corruption. The pleading continues for some eight pages along similar lines.

[24]   These allegations are scandalous, improper, incoherent and again appear to be part of Mr O’Neill’s continued circular and abusive attack on the judicial system. I have no hesitation in striking them out under r 5.35B.

The fourth proceeding: CIV-2024-485-000334 O’Neill v Collins and others

[25]   Mr O’Neill’s final application for judicial review names the Attorney-General, the Speaker of the House and Helen White MP as the respondents. Again, it is almost impossible to follow and contains no coherent factual narrative or properly pleaded causes of action. The essence of the claim appears to be that complaints Mr O’Neill has made to the Attorney-General, the Speaker and Ms White about his treatment by the judicial system have not been properly acted upon by the respondents. The allegations include that the third respondent’s failure to deal with Mr O’Neill’s complaints were “criminal and unconstitutional actions” and “were solely to pervert justice and to hide a judicial challenge to democracy. She was motivated solely by self-interest contrary to the law, this is a Member of Parliament who is corrupt, a criminal”.

[26]The remedies sought include:

1)That it rule in regard to the actions, and lack of actions, of the respondents.

2)Address the issue of the respondents aiding and abetting numerous criminal offences.

3)The failure to address serious complaints lad with them that effect the right to justice of the citizens of this alleged democracy.

4)Failure to protect the citizens from rogue judges and corrupt registrars.

5)Failure to address four coups against the Government and is such the people they have taken oath to serve.

…

11)The interference with court documents by NZ Post, and registrars various.

12)The criminal [destruction] of New Zealanders’ medical records and the endangerment of those citizens.

13)The unhealthy and outright criminal relationship that the courts and Government in that the Government’s counsel claim the judiciary as “clients”.

14)The buying of a Judge.

…

[27]   These allegations are also incoherent, scandalous, improper, and appear to be part of Mr O’Neill’s continued circular and abusive attack on the judicial system. Again, I have no hesitation in striking them out under r 5.35B.

Conclusion

[28]Accordingly, all four proceedings are struck out.

[29]   I direct the Registrar to provide a copy of this decision to the named respondents in accordance with r 5.35B(4) and I record that Mr O’Neill has a right to appeal this decision in accordance with r 5.35B(3).

La Hood J