O'Neill v Webster

[2023] NZHC 2570

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-000538

[2023] NZHC 2570

UNDER

the New Zealand Bill of Rights Act 1990

IN THE MATTER OF

an application for Judicial Review

BETWEEN

CHRISTOPHER JOSEPH O’NEILL

Applicant

AND

MICHAEL WEBSTER

First Respondent

RIKI JAMIESON-SMYTH

Second Respondent

Hearing:	On the papers
Judgment:	14 September 2023

JUDGMENT OF WALKER J

This judgment was delivered by me on 14 September 2023 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

O’NEILL v WEBSTER [2023] NZHC 2570 [14 September 2023]

[1]    The applicant has tendered for filing in the Wellington Registry of the High Court an application for judicial review of the “actions and decisions of the named respondents”. The respondents are named as Michael Webster and Riki Jamieson-Smyth. They are respectively the Privacy Commissioner, and Manager, Investigations and Dispute Resolution of the Office of the Privacy Commissioner.

[2]    The application has been referred to me as Duty Judge under r 5.35A of the High Court Rules 2016 (the Rules). That rule 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.

[3]    Proceedings referred to a Judge under r 5.35A are considered under r 5.35B which provides:

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)Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.

(4)A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.

(5)See rule 2.1(3)(b) concerning the exclusion of the jurisdiction and powers of a Judge under this rule from the jurisdiction and powers of an Associate Judge.

The application

[4]    The intituling of the handwritten application refers to the “Constitution of New Zealand” and the New Zealand Bill of Rights Act 1990.

[5]    The preamble asks that the court review the second respondent’s decision in respect of a complaint made by Mr O’Neill to the Privacy Commissioner. It further asks the Court to review the role of the Commissioner. Mr O’Neill asserts that the Commissioner did not make the decision not to further investigate the complaint. Rather, the second respondent made the decision.

[6]    Mr O’Neill pleads that an aggrieved person would normally make a complaint to the Human Rights Review Tribunal (HRRT).1 He contends he is unable to access redress at the HRRT. He pleads that the reason for his inability to access that forum lies in the corruption and criminality of the HRRT. It is impossible to tell from the

1      Under s 98(1)(a) of the Privacy Act 2020, an aggrieved person may commence proceedings in respect of a complaint received by the Commissioner before the Human Rights Review Tribunal where the Commissioner decides not to investigate the complaint under s 77(2)(a).

pleading but I infer that he means that he may be subject to an order not to file proceedings without leave in the HRRT as a result of some history with the HRRT.2

[7]    I discern, although not without difficulty, that the genesis of this intended judicial review is some form of communication which Mr O’Neill contends took place between judges of the Court of Appeal and/or Supreme Court and the Solicitor-General. He pleads that this was attempted incitement to bring proceedings against him.

[8]    Mr O’Neill requested a copy of those communications from the Office of the Solicitor-General under the Privacy Act 2020. He pleads that his request was declined on the grounds of “client privilege”. Mr O’Neill complained to the Privacy Commissioner. The core complaint as pleaded is that the second respondent and not the Privacy Commissioner responded. However, Mr O’Neill also challenges the decision not to proceed with his complaint.

[9]    Two documents are annexed to the application. The first is a certificate from the Office of the Privacy Commissioner which recorded the formal decision dated  21 August 2023. The certificate is issued under the signature of the second respondent but specifically states:

(a)The Commissioner investigated the complaint under the Privacy Act 2020.

(b)The Commissioner notified the parties pursuant to s 81(4) that he had decided not to further investigate the complaint.

(c)Notice given to [C J O’Neill] on 21 August 2023 by post.

[10]   The form of notice provided to Mr O’Neill is not annexed. Neither is any other correspondence with the Commissioner or from the Office of the Privacy Commissioner. The pleading makes no reference to the reasons stated by the

2      The statutory scheme under the Privacy Act 2020 (as with the previous legislation) is that there is a right of appeal from decisions of the HRRT and the Court may become involved by way of appeal from decisions of the HRRT. See Hudson v Attorney-General [2020] NZHC 1622.

Commissioner for deciding not to further investigate the complaint. The pleading does not set out what Mr O’Neill asserts that the second respondent decided or did not decide.

[11]   Among the stated grounds in support of his application, Mr O’Neill points out that redress from the High Court is all that is available in circumstances where he is not permitted to file proceedings in the HRRT. He does not further explain his inability to file proceedings in that forum nor challenge that impediment. Among other grounds pleaded, he simply asserts “etc etc etc”.

[12]   Then, in a section headed “additional”, Mr O’Neill resurrects a panoply of unsupported complaints against various Judges and the Judicial Conduct Commissioner. He does so in intemperate and inappropriate language.

The proper approach

[13]   The Court of Appeal has recently set out the required approach to such a review under the High Court Rules 2016 in Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board.3 After reviewing the history of this particular rule, the Court said:

[14]   The powers conferred under r 5.35B reflect the inherent power all courts have to prevent their own procedures from being misused, for example as a means of oppression or otherwise in a way that is manifestly unfair such that the administration of justice will be brought into disrepute. Lord Bingham described abuse of process as simply being “a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”. Courts have a duty to prevent such abuse.

[14]      The judgment underlines that the power must be exercised sparingly and only in the clearest of cases. This is because the rule contemplates a litigant being denied the fundamental right of access to the courts with the possibility of the case being halted before it is even served. In short, the abuse must be clear beyond doubt.

3      Te Wakaminenga o Nga Hapu ki Waitang v Waitangi National Trust Board [2023] NZCA 63 (citations omitted).

Outcome

[15]      With that caution in mind, I have looked beyond the language and extravagant allegations to try to find a semblance of a permissible and justiciable claim. I have found none.

[16]      Instead, I have concluded that the proceeding is transparently a vehicle for Mr O’Neill’s persistent attacks on the judicial system and judges. The purported “evidence” which Mr O’Neill attaches to the application, far from supporting any ground for review, actively tells against it. The unconnected regurgitation of complaints against the judiciary have no relationship to the matters which Mr O’Neill purports to challenge, much of which goes well beyond anything the Court can address. Moreover, the statutory scheme anticipates appeals to the HRRT rather than judicial review.

[17]      Accordingly, I strike out the proceeding. I direct the Registrar to provide a copy of my decision to the respondents in accordance with r 5.35B(4). I record, as required by the Rules, that Mr O’Neill has a right of appeal against my decision.

............................................................

Walker J