Peterson v Mills
[2025] NZCA 370
•30 July 2025
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA631/2024 |
| BETWEEN | CARL JAMES PETERSON |
| AND | GRAHAM HOWARD MILLS |
| CA755/2024 | ||
| BETWEEN | LYNETTE JOY MILLS | |
| AND | GRAHAM HOWARD MILLS | |
| AND | BODEE OLIVER | |
| CA822/2024 | ||
| BETWEEN | CARL JAMES PETERSON | |
| AND | GRAHAM HOWARD MILLS | |
| AND | OFFICIAL ASSIGNEE | |
| CA854/2024 | ||
| BETWEEN | LYNETTE JOY MILLS | |
| AND | GRAHAM HOWARD MILLS | |
| Hearing: | 15 May 2025 |
Court: | Woolford, Jagose and Powell JJ |
Counsel: | Appellants in person |
Judgment: | 30 July 2025 at 11 am |
JUDGMENT OF THE COURT
AThe application to file further evidence is declined.
BAppeals CA631/2024, CA755/2024, CA822/2024, and CA854/2024 are struck out.
CThe application for an order under s 166 of the Senior Courts Act 2016 is declined.
DMs Mills and Mr Peterson must pay the respondent Mr Howard Mills costs on an indemnity basis, with the reasonable quantum of such costs to be fixed by the Registrar in the event the parties do not agree.
REASONS OF THE COURT
(Given by Powell J)
This judgment follows a hearing convened to determine whether appeals CA631/2024, CA755/2024, CA822/2024, and CA854/2024 (the present appeals), all brought by Carl Peterson, Lynette Mills, or Mr Peterson and Ms Mills jointly, should be struck out pursuant to r 44A(1)(c) of the Court of Appeal (Civil) Rules 2005 (CACR), as abuses of this Court’s processes.
Specifically:
(a)CA631/2024 is an appeal by Mr Peterson against a decision of Associate Judge Lester adjudicating Mr Peterson bankrupt on 5 September 2024.[1]
(b)CA755/2024 is an appeal by Ms Mills against a decision of Radich J dated 4 November 2024 (the second Radich judgment).[2] The second Radich judgment stayed proceedings brought by Ms Mills in CIV‑2024‑441‑91 pending filing of an amended statement of claim which was to remove various allegations covered in previous proceedings such that only allegations made under the Climate Change Response Act 2002 could be pursued.
(c)CA822/2024 is an appeal brought by Mr Peterson against a decision of Grice J dated 19 November 2024.[3] The decision struck out proceedings brought by Mr Peterson in CIV‑2024‑441-95 pursuant to r 5.35B of the High Court Rules 2016 (HCR) on the basis that the issues raised have been covered in proceedings previously determined.
(d)CA854/2024 is an appeal brought against a decision of Gwyn J dated 29 November 2024.[4] Pursuant to r 5.35B of the HCR the decision struck out the CIV‑2024‑441‑91 proceedings previously stayed by Radich J after considering the amended statement of claim filed by Ms Mills pursuant to the second Radich judgment. Gwyn J concluded the amended statement of claim did not comply with the directions made by Radich J,[5] and “material aspects of the amended statement of claim either purport to relitigate earlier judgments or repeat or rely on aspects of the pleadings that were the subject [of two earlier decisions by Radich J]”.[6]
[1]There was no judgment issued.
[2]Mills v Howard‑Mills [2024] NZHC 3241 [second Radich judgment].
[3]Peterson v Mills [2024] NZHC 3451.
[4]Mills v Howard‑Mills [2024] NZHC 3611.
[5]At [4] and [23].
[6]At [22].
By minute dated 10 December 2024, Cooke J directed that appeals CA631/2024 and CA755/2024 be heard together. Pursuant to r 44A(2)(a) of the CACR, the appellants were “given notice of the Court’s intention to consider making an order under this rule striking out both appeals as an abuse of process as a further attempt to relitigate matters that had already been adjudicated upon”.
Likewise, timetable orders for the filing of submissions by the appellant(s) and the respondent Graham Howard Mills (as the focus of all the appeals) pursuant to r 44A(2)(b) of the CACR were made, and Cooke J concluded his minute as follows:
I note not only the two appeals referred to above, but the further appeals in CA186/2024 and CA318/2024 which appear to raise similar issues, and which are presently being considered by the Court following a hearing on the papers. In the circumstances I direct the Registrar to refer any further appeals filed in this Court by Mr Peterson, Ms Mills or entities believed to be associated with them to a Judge for direction.
Appeals CA186/2024 and CA318/2024 referred to by Cooke J were subsequently determined by this Court in Mills v Dalzell (the 2024 appeal judgment).[7] Appeal CA186/2024, brought by Ms Mills, Mr Peterson and “the Peterson/Mills partnership”, concerned earlier proceedings struck out by Radich J in March 2024
(the first Radich judgment).[8] Radich J considered the proceedings an abuse of process because “in all relevant ways” those proceedings mirrored matters decided in previous proceedings.[9] In particular, Radich J found the proceedings were an attempt to revisit a decision of Associate Judge Johnston striking out similar allegations (2022 strike out decision).[10] In the first Radich judgment, his Honour noted that that while the2022 strike out decision had been appealed, it was ultimately deemed abandoned, and an application for extension of time was declined by the Court of Appeal,[11] while leave to appeal to the Supreme Court was subsequently declined.[12][7]Mills v Dalzell [2024] NZCA 675 [2024 appeal judgment]. Since the hearing the Supreme Court has declined leave to appeal and observed that there was no “appearance of error in the analysis of the Court of Appeal”, rather that the Court was “satisfied the proposed appeal would constitute an abuse of process”. See Mills v Dalzell [2025] NZSC 67 at [5].
[8]Mills v Dalzell [2024] NZHC 581 [first Radich judgment].
[9]At [8].
[10]Mills v Dalzell [2022] NZHC 2439 [2022 strike out decision].
[11]First Radich judgment, above n 8, at [11], referring to Mills v Dalzell [2023] NZCA 458 [2022 strike out appeal].
[12]First Radich judgment, above n 8, at [12], referring to Mills v Dalzell [2024] NZSC 6 [SC leave decision].
Because appeal CA186/2024 had not been served on the 17 respondents named in the proceedings and there was no application for any extension of time, the Court of Appeal struck out the appeal for want of jurisdiction.[13] It did so, however, only after observing that no basis existed for any extension of time and that “any appeal properly brought would, inevitably, be struck out”.[14]
[13]2024 appeal judgment, above n 7, at [38].
[14]At [20].
The second appeal addressed by the 2024 appeal judgment, appeal CA318/2024, was an appeal by Ms Mills against a refusal by Associate Judge Skelton to set aside a bankruptcy notice served by Mr Howard Mills on Ms Mills.[15] The appeal was filed out of time, as Ms Mills initially attempted to challenge the decision through judicial review proceedings which were, however, struck out by Boldt J.[16] As a result of that delay in filing, Ms Mills required an extension of time to bring the appeal. The extension was declined, with this Court concluding that appeal CA318/2024 was clearly hopeless, as the application to set aside the bankruptcy notice had rested on the assertion of counterclaims and setoffs previously determined by the 2022 strike out decision.[17]
[15]Howard Mills v Mills [2024] NZHC 733 [Skelton bankruptcy decision].
[16]Mills v Howard‑Mills HC Napier CIV‑2024‑441‑34, 10 May 2024 (minute of Boldt J).
[17]2024 appeal judgment, above n 7, at [30].
Of significance to the present appeals, in relation to both CA186/2024 and CA318/2024, this Court noted that Ms Mills and Mr Peterson raised an allegation Mr Howard Mills had failed to transfer emission trading scheme (ETS) credits to Mr Peterson as required by a deed of settlement dated 21 December 2021
(the ETS issue). On the ETS issue in relation to CA186/2024, the Court noted in the
2024 appeal judgment:[18][24] It is clear from Judge Johnston’s decision on the stay application that Mr Mills’ failure to transfer the ETS credits was live between the parties and could have been included in the substantive pleading in CIV-2022‑454‑9. This complaint could, and should, have been made in that proceeding. Parties are obliged to bring all their claims relating to the same subject matter at the same time and failure to do so means that a later attempt to bring the claim will be regarded as an abuse of process.
[18]Citing Henderson v Henderson (1843) 3 Hare 100 at 115, 67 ER 313 (Ch) at 319; and Commissioner of Inland Revenue v Bhanahbai [2007] 2 NZLR 478 at [58]–[60].
Likewise, on the ETS issue in relation to CA318/2024:[19]
[32] [Judge Skelton] also addressed the issue of the ETS credits which Ms Mills had raised. He recorded Ms Mills’ acknowledgement at the hearing that she and Mr Peterson had been aware of the ETS issue since February 2022. The Judge considered that the issue could, and should, have been raised in that litigation and the attempt to do so at this stage was an abuse of process. For the reasons discussed earlier in relation to at CA186/2024, this is undoubtedly correct. There is no realistic prospect of the appeal against
Judge Skelton’s decision succeeding.[19]2024 appeal judgment, above n 7 (footnotes omitted).
Following the 2024 appeal judgment being issued, CA822/2024 and CA854/2024 were identified as also coming within the ambit of the directions issued by Cooke J. The issue of whether those appeals, together with CA631/2024 and CA755/2024, should be struck out was set down for hearing on 15 May 2025.
In the interim however, three of the four present appeals were deemed to have been abandoned as a result of failing to comply with r 43 of the CACR. Rule 43(1) requires an appellant to file an application for a hearing date and the case on appeal within three months of the date of filing the appeal, after which the appeal is deemed to have been abandoned. Compliance with r 43(1) for CA755/2024, CA822/2024, and CA854/2024 fell due on 20 March 2025, 4 April 2025, and 15 April 2025 respectively.
In each case, r 43(1) was not complied with, and no application was made for an extension of time on any of those appeals.[20] As a result, only CA631/2024 remained on foot as the time for r 43 compliance on that appeal had been extended due to an outstanding application for dispensation for security for costs.
[20]An application for extension can be made within the three‑month period or up to three‑months’ after the dates specified for the filing of the application for the hearing and case on appeal. Court of Appeal (Civil) Rules 2005, r 43(3).
As a result, the parties were advised by minute dated 1 May 2025 that notwithstanding the deemed abandonment and following the approach in
Ward v Ward,[21] the Court would nonetheless consider whether the CA755/2024, CA822/2024, and CA854/2024 appeals should be struck out pursuant to r 44A.[21]Ward v Ward [2022] NZCA 428, (2022) 26 PRNZ 163.
The issue of whether all or any of the present appeals should be struck out therefore proceeded to hearing on 15 May 2025.
As provided for in the timetable, Ms Mills and Mr Peterson took the opportunity to file extensive submissions opposing the striking out of any of the present appeals and denying that any of the present appeals were an abuse of process. In contrast, Mr Howard Mills not only supported the striking out of the present appeals but requested the Court to make orders against Ms Mills and Mr Peterson pursuant to s 166 of the Senior Courts Act 2016 prohibiting Ms Mills or Mr Peterson commencing or continuing proceedings in respect of Mr Howard Mills for a period of three years.
Since the hearing, Mr Peterson has filed a memorandum as a “McKinsey” friend on behalf of Ms Mills, seeking leave to file “new and important information” on CA755/2024. Accompanying the memorandum was a statutory declaration by Ms Mills referring to matters relating to the ETS issue and annexing an affidavit filed in the judicial review proceedings struck out in 2024.[22] We have read the additional material filed. It is entirely consistent with the other material filed by Mr Peterson and Ms Mills and does not materially assist them with regard to the issues before this Court.[23] Leave to file the additional material is declined.
Discussion
[22]See [7] above.
It is utterly clear, having reviewed the history of litigation brought by Ms Mills and Mr Peterson against Mr Howard Mills and a large number of other parties, including the ASB Bank, that all of the issues sought to be addressed in each of the present appeals have previously been determined. As a result, we accept that continuing to raise the same issues in both the High Court and on appeal is, in each case, a clear abuse of process.[24]
[24]Ex parte Bouvy (No 2) (1900) 18 NZLR 601; Henderson v Henderson (1843) 3 Hare 100 atIt was apparent from the written and oral submissions made by Ms Mills and/or Mr Peterson as to whether the present appeals should be struck out that neither disputes that the issues raised in each appeal have previously been the subject of judgments by the High Court, the Court of Appeal and/or the Supreme Court. What Ms Mills and Mr Peterson do not accept is the finality of those earlier decisions. As a result, they consider the issues they seek to raise these issues can be endlessly brought back to the Court for reconsideration through fresh proceedings.
Moreover, it is evident that the same issues are being raised in each of the present appeals as Ms Mills and Mr Peterson see each of the proceedings and their respective appeals as part of a single whole. For example, the notice of appeal in respect of CA822/2024 filed by Mr Peterson included the following relief sought:
That all related appeals now resting with the Court of Appeal be amalgamated together, as the same arguments by the appellants are common to all proceedings.
Likewise, the amended notice of appeal for CA755/2024 filed in December 2024 set out Mr Peterson and Ms Mills’ approach to the issues raised in all of the appeals:
A. The [first Radich judgment] at para [7] asserted that matters raised in [the 2022 strike out decision] had been conclusively determined, and that those same matters mirrored in [the first Radich judgment] were estopped. This is wrong at law. [The 2022 strike out decision] was never scrutinized by a higher court and is therefore a non‑binding precedent without force of law. Due to lack of finality in [the 2022 strike out decision], it cannot be used to preclude later pleadings under res judicata or issue estoppel.
i.A non‑binding precedent has legal value only so far as it relies upon sound legal authority. No part of the [2022 strike out decision] was based upon legal precedent or authority. A J Johnston distorted both accepted law and the plaintiffs’ pleadings in order to strike out the entire proceeding.
ii.Although [the 2022 strike out decision] persuaded the higher courts to dismiss the plaintiffs’ application for time extensions in which to further their appeal, they were not tasked with vetting any part of the [2022 strike out decision]. In [the 2022 strike out appeal] the Mallon and Wylie ‘Analysis’ from paras [18]–[28] was focused entirely upon criteria relating to special application for time extensions rather than the merits of the proposed appeal.
iii.An untested precedent does not create legal finality or carry the force of law. Res judicata and issue estoppel both require finality in previous proceedings. [The 2022 strike out decision], being the opinion of a single judge, is empty and worthless in determining other matters. It follows that neither issue estoppel nor res judicata can apply to [the 2022 strike out decision] until it has been scrutinized against law. It follows that [the first Radich judgment] cannot be relied upon as conclusive law until it too is resolved in the higher courts. Even then, the higher courts first must examine the legal merits of [the 2022 strike out decision] which underpins [the first Radich judgment].
iv.Radich J was therefore wrong in accepting [the 2022 strike out decision] as a binding precedent. Likewise, both Skelton J in [the Skelton bankruptcy decision] and Lester J in the Carl Peterson adjudication both errored in accepting [the first Radich judgment] as a binding and conclusive precedent.
v.All the related judgments now on appeal were therefore wrong in striking out the plaintiffs’/defendants’ claims and the counterclaims based upon issue estoppel and/or res judicata arising from [the 2022 strike out decision] and [the first Radich judgment].
While it is clear from Ms Mills and Mr Peterson’s submissions at the hearing that none of these points had been resiled from, by February 2025 Ms Mills and Mr Peterson had, through the filing of a second amended notice of appeal on CA755/2024, appeared to conclude that the problems with earlier judgments—in particular the 2024 appeal judgment—were the result of a “crucial mistake” made in an affidavit filed by Mr Peterson on 13 January 2023 regarding the date Ms Mills and Mr Peterson found out that Mr Howard Mills had not transferred the ETS credits to them. They also raised issues with the effect of the procedural minute issued by Mallon J on 18 July 2022. In Ms Mills and Mr Peterson’s submissions, those issues provided a basis for reviewing all of the earlier court decisions, or as Ms Mills and Mr Peterson put it, they now sought:
An order acknowledging that every related proceeding, including CA 186,
CA 318, CA 631, and the Carl Peterson annulment application has been poisoned by the Graham ‘Mills’ forgery, false affidavits, and false declarations, and that all subsequent proceedings have been poisoned by the false/incomplete evidence relied upon by the Court of Appeal in denying the plaintiffs’ application for time extensions to appeal [the 2022 strike out application].Consistent and similarly expansive approaches are reflected in the documents filed in all of the other appeals at issue, both in terms of the specific notices of appeal and the common submissions filed in relation to the strike out hearing.
Unfortunately for Ms Mills and Mr Peterson, and as has previously been pointed out to them on many occasions, their approach is fundamentally wrong and continues to be an abuse of process.
As this Court explained carefully in the 2024 appeal judgment, the earlier litigation brought by Ms Mills and Mr Peterson against Mr Howard Mills and others between 2018 and 2021 was brought to a conclusion with the signing of the settlement deed, with the exception of costs issues.[25] As a result, when Ms Mills and Mr Peterson sought to bring further claims against Mr Howard Mills, the ASB and others, these were struck out by Judge Johnston in the 2022 strike out decision:[26]
… on the grounds that they disclose no arguable cause of action against any defendant, and that the proceeding is otherwise an abuse of process having regard to the terms of the settlement agreement between the plaintiffs and the third and fourth defendants that applies also to the first and second defendants, and that all claims are in any event time barred.
[25]2024 appeal judgment, above n 7, at [25]–[26].
[26]2022 strike out decision, above n 10, at [85].
Although, as noted, the 2022 strike out decision was appealed to this Court, it was deemed abandoned and the application for leave to appeal to the Supreme Court declined.[27] This means Ms Mills and Mr Peterson have exhausted their ability to challenge the 2022 strike out decision and it is binding upon them. Contrary therefore to their approach since then, Ms Mills and Mr Peterson are not entitled to continue to assert the 2022 strike out decision is not binding upon them and can be revisited. They are not entitled to ignore it or the other subsequent decisions of the High Court and this Court that have confirmed that the issues between them and Mr Howard Mills and/or the other parties to the litigation have been concluded. It is well established “final judicial determination is not to be subverted by collateral challenge through further proceedings on the same subject matter”, because “finality is integral to justice, [as] justice is concerned with the determination of rights”.[28] To continue to ignore
the 2022 strike out decision by filing fresh or repeat proceedings as well as further appeals on the same issues is a clear abuse of process.[27]2022 strike out appeal, above n 11; and SC leave decision, above n 12.
[28]Faloon v Planning Tribunal at Wellington [2020] NZCA 170, at [2]–[3], citing Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [10] and Taylor v R [2018] NZCA 498, [2019] 2 NZLR 38.
It is equally clear that the ETS issue also can no longer be challenged, for the reasons set out in the 2024 appeal judgment.[29] It is likewise clear that nothing in Mallon J’s minute, that in any event predated the 2022 strike out decision, can have any bearing whatsoever on whether the present appeals are an abuse of process.
[29]2024 appeal judgment, above n 7, at [24] and [32]; and see above at [24].
Taking these various matters together, and consistent with the approach taken across all of the decisions issues since the 2022 strike out decision was issued, we are in no doubt that each of the present appeals is an abuse of process and should be struck out, and we make that order in respect of CA631/2024.
Turning to the remaining three appeals that were deemed abandoned: as this Court noted in Ward v Ward,[30] where an appeal has been deemed abandoned pursuant to r 43 of the CACR, it is not conclusive as an appellant still has three months to seek an extension to the time for applying for a hearing and filing the case on appeal.
[30]Ward v Ward, above n 21. It should be noted that this case was referred to by Woolford J in his directions solely for the purposes of considering whether all or any of the abandoned appeals could be struck out. This has been interpreted by Ms Mills and Mr Peterson as an invitation to make submissions as to whether they have possible claims under the Property (Relationships) Act 1976 and the Family Proceedings Act 1980. Neither of these Acts is relevant to the present case and we do not comment on those submissions further in the context of considering whether the present appeals should be struck out.
In such circumstances, although r 43(1) of the CACR requires this Court to treat an appeal as being abandoned if the application for hearing is not filed within three months, this Court held:[31]
[42] … However, while the Court is also free to view the appeal as abandoned (for the time being) we consider that more explicit terminology would be necessary in order to convey that the Court was deprived of jurisdiction to grant or dispose of an application that had validly come before it.
[43] Jurisdiction concerns the Court’s capacity to be seized of a matter, not the issue whether, as a matter of discretion and for reasons of efficiency, the Court elects to decline to hear a matter. We do not consider that the Court’s jurisdiction to determine an application simply evaporates on the date on which an appeal is to be treated as abandoned, but then re‑crystallises if an extension application is filed during the second three‑month period. In our view, the Court retains the jurisdiction to hear and determine an extant r 44A application after the first three‑month period elapses. However it is not obligated to do so.
[44] The Court may well consider that the application should be determined where issues of abuse of process are raised or where a res judicata determination is justified, thereby avoiding the prospect of a subsequent r 29A application for an extension of time to file a fresh appeal. As Young P observed in Humphries v Carr, in the context of r 44, an abandonment is not tantamount to a dismissal of an appeal and thus does not give rise to a res judicata. It simply terminated the original appeal. Consequently the Court may, if it considers it appropriate, determine a validly filed r 44A application notwithstanding that the first three‑month period has expired.
[31]Footnotes omitted.
In this case, the effect of Cooke J’s minute was to bring before the Court the possible striking out of all of the present appeals prior to the abandonment of any particular appeal. We therefore conclude we have jurisdiction to continue to determine whether each of the present appeals should be struck out. Given our conclusions set out above, we therefore consider it appropriate that, in addition to striking out CA631/2024, appeals CA755/2024, CA822/2024, and CA854/2024 should also be struck out, notwithstanding their deemed abandonment.
The final issue to be determined is Mr Howard Mills’ request for orders under s 166 of the Senior Courts Act. This issue can be addressed very briefly. As we explained to Mr Howard Mills counsel, Mr Conder, at the hearing, this Court made it clear in Halse v Employment Court the:[32]
… scheme does not contemplate this Court making s 166 orders. Rather it contemplates that they be made where appropriate in the High Court.
[32]Halse v Employment Court [2025] NZCA 11 at [46].
The judgment concluded:[33]
[51] … it is an unusual course for judges of this Court to reconstitute as the High Court. It is reserved for cases involving unique jurisdictional difficulties or that are otherwise exceptional. There are various policy reasons underpinning the reluctance to use this jurisdiction, including a concern for the preservation of judicial hierarchies and for the efficient use of judicial resources. Rather it is anticipated that parties simply file in the court where the matter has jurisdiction. …
[33]Footnote omitted.
As a result, we decline to make any orders pursuant to s 166.
Given our conclusions detailed above, we find Mr Howard Mills is entitled to indemnity costs from Ms Mills and Mr Peterson on the striking out of the appeals.
Result
The application to file further evidence is declined.
Appeals CA631/2024, CA755/2024, CA822/2024, and CA854/2024 are
struck out.The application for an order under s 166 of the Senior Courts Act 2016 is declined.
Ms Mills and Mr Peterson must pay the respondent Mr Howard Mills costs on an indemnity basis, with the reasonable quantum of such costs to be fixed by the Registrar in the event the parties do not agree.
Solicitors:
Holland Beckett, Tauranga for Respondent in CA631/2024 and CA854/2024 and First Respondent in CA755/2024 and CA822/2024
Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1.
114–115; and Siemer v O'Brien [2015] NZSC 89 at [3].
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