O'Neill v Toogood - [2017] NZHC 795

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2478 [2017] NZHC 795

BETWEEN
CHRISTOPHER JOSEPH OʼNEILL

Plaintiff

AND

KIT TOOGOOD, CECIL HARDING CROUCHER AND MATT AMON Defendants

Hearing: 6 March 2017

Appearances:

C J OʼNeill in person
C Paterson and K Lawson-Bradshaw for defendants

Judgment:

27 April 2017

JUDGMENT OF CULL J

[1] The defendants seek to strike out the plaintiff’s (Mr O’Neill) “Petition” to “call back” a judgment of Toogood J because the “Petition” discloses no reasonably arguable cause of action, is likely to cause prejudice or delay, is frivolous or vexatious and/or is otherwise an abuse of process of the court. Mr O’Neill opposes this strike-out application.

Factual background

[2] Mr O’Neill has filed a proceeding intituled a “Petition”, which is in the nature of a statement of claim, to “call back” the judgment given by Toogood J in O’Neill v Accident Compensation Corp (the Decision) on 13 December 2015.1 In the Decision, the plaintiff’s application for special leave to appeal a decision from the District Court on a question of law, pursuant to s 126(1) of the Accident
Compensation Act 2001, was declined.

1 O’Neill v Accident Compensation Corp [2015] NZHC 2823.

OʼNEILL v TOOGOOD AND OTHERS [2017] NZHC 795 [27 April 2017]

[3] The defendants named in the application before this Court are Toogood J, Cecil Croucher and Matthew Amon. The latter two are Deputy Registrars at the Auckland Registry of the High Court. Mr Croucher was the Court Taker at the hearing of the Plaintiff ’s application for special leave on 11 November 2015. Mr Amon is a Civil Appeals Case Officer.

Defendants’ submissions

[4] The defendants submit, first, that the claim discloses no reasonably arguable cause of action, on the grounds that:

(a) The claim does not refer to any cause of action as is required by r 5.17 of the High Court Rules 2016, which states that distinct causes of action “must if possible be stated separately and clearly”.

(b)If Mr O’Neill wished to apply to have the decision recalled, he should have filed an application pursuant to r 11.9 before it was entered into the formal record. The defendants submit that even if such an application was made it would have likely been dismissed due to the nature of the claim and that it would essentially have been a substitute for appeal.

(c) Even if this application is considered as one of judicial review it must fail because this Court does not have jurisdiction to review a decision of its own.

(d) Judicial immunity would bar any claim being made against Toogood J

in his personal capacity.

(e) Further, the Crown has immunity from civil liability in tort under s 6(5) of the Crown Proceedings Act 1950 for anything done or omitted by any person while discharging any responsibilities of a judicial nature. The Crown also has no liability for alleged breaches
of the Bill of Rights Act 1990 by the judiciary.2

2 Attorney-General v Chapman [2011] NZSC 110,

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NZHC 795
Decision Date: 27 April 2017

CaseChat Overview and Summary

O'Neill v Toogood and Others [2017] NZHC 795 is a case where the plaintiff, Mr O'Neill, filed a proceeding to "call back" a judgment given by Toogood J in O'Neill v Accident Compensation Corp. The defendants, Toogood J, Cecil Croucher, and Matthew Amon, sought to strike out Mr O'Neill's proceeding on the grounds that it did not disclose a reasonably arguable cause of action, was likely to cause prejudice or delay, was frivolous or vexatious, and was an abuse of process. The court had to determine whether Mr O'Neill's proceeding disclosed a reasonable arguable cause of action, if the court could recall the November 2015 Decision, if the judge should recuse themselves, and if there was a basis for an adjournment of the defendants' application. The court found that Mr O'Neill's proceeding did not disclose a tenable cause of action, the court could not recall the Decision, there was no basis for the judge to recuse themselves, and there was no basis for an adjournment of the defendants' application. As a result, the court struck out Mr O'Neill's proceeding and awarded the defendants costs on a 2B basis. The court emphasized the importance of understanding the proper process for applying for recall of judgment and the need to avoid abusing the court process.

Orders