Power v Court of Appeal

[2022] NZHC 1217

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-283 [2022] NZHC 1217

BETWEEN

BRETT WILLIAM POWER

Applicant

AND

THE COURT OF APPEAL

First Respondent

CLIFFORD AND GODDARD JJ

Second Respondents

KATHERINE MARIE WHITE

Third Respondent

Hearing:	On the papers
Appearances:	W M Power Applicant in person
Judgment:	27 May 2022

JUDGMENT OF COOKE J

[1]                 These proposed judicial review proceedings have been referred to me as Duty Judge 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

POWER v THE COURT OF APPEAL [2022] NZHC 1217 [27 May 2022]

(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]                 Under r 5.35B the Court has certain powers in relation to a proceedings so referred. It 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]                 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.

The present case

[4]                 In the present case the applicant purports to judicially review a decision of the Court of Appeal. In Power v White Clifford and Goddard JJ declined an application

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

for leave to appeal to that Court.2 The High Court had itself declined leave to appeal.3 The decision of the High Court Mr Power sought to appeal was a decision declining him access to a transcript of a hearing in that Court. At the relevant hearing the Court confirmed that six appeals that Mr Power had lodged from decisions in the Family Court had been deemed to be abandoned as a consequence of s 126(3) of the District Courts Act 2016 as Mr Power had failed to pay security for costs as directed.

[5]                 That background makes it plain that these proceedings should be struck out under r 5.35B. It is self-evident that there is no jurisdiction of the High Court to judicially review a decision of the Court of Appeal. Judicial review is not available to challenge decisions of superior courts.4 All of the proposed claims involve attempts to so judicially review a decision of the Court of Appeal. The proceeding is plainly an abuse of process, it would be manifestly unfair for the respondents to respond, and the Court would be exercising a very poor control of its processes if it allowed this proceeding to continue.

[6]                 The proceeding is accordingly struck out. I record that Mr Power has a right to appeal this decision. I direct the Registrar to provide a copy of this decision to the Registrar of the  Court  of Appeal  and counsel  for  Ms  White  in  accordance  with r 5.35B(4).

Cooke J

2      Power v White [2022] NZCA 116.

3      Power v White [2021] NZHC 2291.

4      See Bulmer v Attorney-General (1988) 12 PRNZ 316.