Prasad v Indiana Publications (NZ) Limited

[2020] NZHC 2384

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

CIV-2020-404-1178

[2020] NZHC 2384

UNDER

The Judicature Amendment Act 1972, Judicial Review Act 2016 - High Court - Civil Rules 2006, the New Zealand Bill of Rights Act 1990, the Declaratory Judgments Act 1908, the Copyright Act 1994, the Companies Act 1993, the District Court Act 1947, the Insolvency Act 2006, Doctrine of Res Judicata principles and the common law

IN THE MATTER

of copyright judgment in this matter

BETWEEN

RAJENDRA PRASAD

Applicant

AND

INDIANA PUBLICATIONS (NZ) LIMITED

First Respondent

AND

IRENE LAL

Second Respondent

continued over page ...

Hearing:

3 September 2020

Appearances:

Applicant, self-represented

No appearance for respondents

Judgment:

14 September 2020

JUDGMENT OF WALKER J

PRASAD v INDIANA PUBLICATIONS (NZ) LIMITED [2020] NZHC 2384 [14 September 2020]

AND

VENKAT RAM

Third Respondent

AND

MAHESH PARERA

Fourth Respondent

AND

CHENCHU NAGULU

First Respondent

This judgment was delivered by me on 14 September 2020 at 3.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Introduction

[1]    Mr Prasad has filed a series of documents purporting to bring an application for judicial review, along with memoranda seeking to add parties and propose timetabling. He appeared before me at the first case management conference. No respondent appeared.

[2]    Mr Prasad is self-represented. I intend no disrespect to Mr Prasad when I say that the documents he has filed are confusing and, in part, incomprehensible. As best I can apprehend, the genesis of the matters Mr Prasad wishes to challenge is a copyright dispute which has been adjudicated by the District Court, the High Court and the Court of Appeal. The Supreme Court has also refused leave. Mr Prasad now wishes to pursue claims because he maintains the respondents have “further violated” the copyright work. He pleads, in part:

2. That applicant Mr Rajendra  Prasad,  applies  to  court  for  Judicial Review for serious breach of Law and court process as set out below by:

(a)Re-opening of this file – CIV 2009-404-0856 and revisiting decision by senior Judge, Doogue AJ of 27/07/09, from perspective of correct details submitted, without the necessity for appearance of Responding party

(b)Court to answer and clarify the interpretations of s16 and s130 of Copyright Act 1994 by way of Amended Judgment, by which this decision was final in HC, as set out below:

(i)S16 Exclusive Rights of Copyright Owner (See Paragraph 46)

This section of enactment, does not exclude or exempt any Respondents as person, company or others on which exclusive rights does not apply, during currency of Copyright

(ii)S130 Unjustified proceedings (See Paragraph 48)

(a)A [COMPANY] incorporated on company’s Register under s 15 of Companies Act 1993, is not included to file documents in Court, appear and apply this section of the enactment under required definition of the term [PERSON]

(b)Same company is not legally entitled to file documents, apply and make claim for cost or damages specified under the Act, under required definition of the term [PERSON]

…

[3]    Mr Prasad then pleads grounds of review as including that the applicant was not heard in this case; the litigation was not defended and applicant “seeks remedy that there has been misunderstanding, interpretation, lack of transparency from serious breach of Law, that caused a serious miscarriage of justice to the Applicant.” There appears to be a claim for damages for lost income in the sum of $9 million. A second cause of action refers to costs which he alleges were wrongly awarded to the first respondent in the litigation.

[4]    On a cursory survey, this judgment is one of more than 35 judgments which stem from this copyright litigation brought by Mr Prasad, or his company, from 2003. A list of the judgments surveyed is at Appendix 1.

[5]    I afforded Mr Prasad an opportunity at the first case management conference to satisfy me that there was a statutory decision amenable to review. I indicated to him at the outset that he faced a formidable obstacle in view of the multiple times related claims had already been before the courts in one form or another.

[6]    After hearing Mr Prasad’s best endeavours to explain why this judicial review was not misconceived, I indicated to him that I intended to strike out the proceedings and that I would provide him with my reasons, which I now do.

Background

[7]    This is the latest instalment in Mr Prasad’s protracted dispute against Indiana Publications (NZ) Ltd (Indiana) and various individuals apparently associated with Indiana. The dispute has an extraordinarily convoluted history. Of necessity, the following is an overview only.

[8]    In March 2003, Mr Prasad issued proceedings in the District Court against Mr Ravin Lal, the principal of Indiana. Mr Prasad alleged he was the owner of copyright subsisting in “Indian Bizz”, an information and business directory. He contended this was a compilation protected as a literary work. He alleged that a business rival, Indiana, infringed copyright when it published a competing business directory. Subsequently, although it is unclear precisely when, Mr Prasad sought an

order substituting his company, Sage Group Ltd, as plaintiff on the basis it was the copyright owner. Mr Prasad disputes how it came to be substituted as plaintiff.

[9]    Mr Prasad’s substantive case was heard by Judge Blackie who delivered a judgment on 29 August 2005. He found that Sage Group Ltd was the copyright owner of the directory, but the defendants’ publication did not infringe. Judge Blackie held that the two directories were entirely different with no objective similarity and there was no causal connection between the two directories.

[10]   Sage Group Ltd’s appeal was dismissed by Asher J in the High Court.1 Asher J noted:2

[7] The judgment is carefully expressed and the conclusions reached are based on the evidence that was before the Court. There was ample evidential basis for the Court to reach the conclusion that there had been no copying at all on the part of the respondents of the appellant’s publication. The two publications look entirely different. They have different names and cannot be confused. The layout is entirely different. Their contents are different. Their editorial content is different, and the actual advertising material that is in them is different. The appellant has failed entirely to establish any error in fact or law on the part of the District Court judge.

[11]   Sage Group Ltd then changed its name to World Commerce Ltd. World Commerce Ltd was placed into liquidation. Mr Prasad sought leave to appeal, in his own name. Asher J dismissed the application on the basis that Mr Prasad had no standing as he was not a party.3 Mr Prasad then sought leave to appeal directly to the Court of Appeal. This too was dismissed for want of jurisdiction and standing.4     Mr Prasad then applied to the Supreme Court for leave to appeal. The Registrar declined to accept the application. Mr Prasad then challenged the Registrar’s decision. Blanchard J confirmed the Registrar’s position in a Minute issued on 16 April 2008.5

[12]   Mr Prasad persevered. He commenced a new set of proceedings. He asserted personal copyright ownership on the basis of his authorship in respect of the same

1      Sage Group Ltd v Indiana Publications [2006] BCL 772 (HC).

2 At [7].

3      Sage Group Ltd (now World Commerce NZ Ltd (in liq)) v Indian Publications Ltd HC Auckland CIV-2005-404-5424, 6 November 2007.

4      Prasad v Indiana Publications [2008] NZCA 70.

5      See Prasad v Indiana Publications (NZ) Ltd (2009) 19 PRNZ 816 at [9].

work. He discontinued those proceedings shortly before they were due to be called. The District Court awarded costs against him. He appealed.

[13]   In a judgment issued on 3 August 2009, Wylie J held that Mr Prasad had effectively discontinued the proceedings.6 In a separate judgment, Wylie J made an order for costs against Mr Prasad.7 He was required to pay almost $15,000 in relation to the discontinuance of the proceedings in the District Court. After Mr Prasad could not pay those costs, he was adjudicated bankrupt.8 The costs judgment then became the subject of tangential litigation, where Mr Prasad sought to challenge his bankruptcy on the basis that the Court erred in awarding costs.9

[14]   Particularly in relation to the bankruptcy proceedings, a number of the judgments commented on the fact Mr Prasad has attempted to collaterally attack and re-litigate the underlying copyright litigation and subsequent costs orders. For example:

(a)In 2011, after hearing Mr Prasad’s application to annul his bankruptcy on the basis there were errors in the costs decision, Sargisson AJ said there was no jurisdiction to review the decision as that would amount to a “collateral attack on a different decision”10

(b)Later that year, Christiansen AJ heard a further application to annul Mr Prasad’s bankruptcy. Christiansen AJ concluded that Mr Prasad’s arguments were “just part of a further attempt to overturn his adjudication”, and his applications amounted to an abuse of the court.11

6      Prasad v Indiana Publications (NZ) Ltd (2009) 19 PRNZ 816 (HC).

7      Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV 2009-404-001521, 9 October 2009.

8      Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV-2010-404-003333, 11 November 2010, Associate Judge Faire.

9      See, for example, Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV-2009-303-1521, 2 December 2009; Indiana Publications (NZ) Ltd v Prasad HC Auckland CIV 2010-404-3333, 27 July 2010; Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV-2010-404-3333, 14 June 2011; Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV-2010-404-3333, 20 July 2011; Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV-2010-404-3333, 16 December 2011; Prasad v Indiana Publications (NZ) Ltd [2012] NZHC 316.

10     Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV-2010-404-3333, 14 June 2011.

11     Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV-2010-404-3333, 16 December 2011.

(c)In 2012, Mr Prasad applied to review these and related decisions concerning his bankruptcy. He listed 35 respondents. Brewer J held that “... it is clear to me that Mr Prasad is continuing to attack the judicial decisions that led to him being declared bankrupt and subsequently confirmed the legality of the bankruptcy procedure”. 12

(d)In 2013, when Mr Prasad sought to review Christiansen AJ’s decision striking out Mr Prasad’s application to annul his bankruptcy, Venning J held that “the application for review is entirely misconceived. The amended statement of claim was, as the Judge held, frivolous and vexatious and not of sufficient seriousness to require the Court to respond”.13

[15]   While the proceedings concerning his bankruptcy were on foot, Mr Prasad instituted a fresh set of proceedings in the High Court. Again, he asserted that he is the copyright owner of the same work at issue in the first District Court proceeding.

[16]It is the result of this proceeding that Mr Prasad now seeks to challenge.

[17]    In a judgment delivered on 27 July 2009, Associate Judge Doogue determined a summary judgment application brought by the defendants. The application was founded on the operation of estoppel arising from the judgment of Judge Blackie.  Mr Prasad also sought summary judgment, but his application did not comply with the High Court Rules 2016, so was put to one side.

[18]Material findings were:

(a)Mr Prasad was not a party to the case in the District Court as Sage Group Limited was substituted for him;

(b)It was Mr Prasad who gave instructions to counsel at the time when the substitution was made;

12     Prasad v Indiana Publications (NZ) Ltd [2013] NZHC 316.

13     Prasad v Attorney-General [2013] NZHC 2721.

(c)Mr Prasad was a privy of Sage Group Limited;

(d)The defendants could only succeed on their summary judgment application if they can show complete inconsistency between the dates when Mr Prasad says there were breaches of copyright and the period/s during which the District court concluded there were none.

[19]   After analysing the District Court judgment and the new pleadings, Associate Judge Doogue held that:14

… the defendants are able to demonstrate to the standard required for summary judgment that Mr Prasad is a privy of SGL and is bound by the District Court judgment. But they are not able to establish to the applicable standard that the period of the alleged breaches dealt with in the District Court judgment covered the same period as those now alleged by Mr Prasad in this Court. This Court cannot therefore determine in the defendants’ favour on a summary judgment basis that there was no period during which Mr Prasad might have had standing as owner/licensee to claim for breaches of copyright.

[20]    Accordingly, Associate Judge Doogue ordered the Registrar to allocate a case management conference to agree on the timetable for next steps.

[21]   The defendants successfully appealed.15 The Court of Appeal held: first, there was no basis on which Mr Prasad could say he owned the copyright. In applying to substitute Sage Group Ltd as plaintiff, Mr Prasad had directed that Sage Group Ltd was the owner of the copyright. The proceedings were conducted on that basis.     Mr Prasad was a privy of Sage and was bound by Judge Blackie’s determinations. Second, the Court disagreed with Associate Judge Doogue that the statement of claim was “open-ended as to time”.16 Instead, it was clear that the claim referred only to the defendants’ 2003 publication which Judge Blackie already held did not infringe.

[22]   The Court of Appeal struck out the proceedings as an abuse of process rather than give summary judgment in favour of the defendants.

14     Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV-2009-404-0856, 27 July 2009 [Doogue AJ Judgment] at [21].

15     Indiana Publications (NZ) Ltd v Prasad [2010] NZCA 111 [Court of Appeal Judgment].

16 At [23].

Mr Prasad’s purported Judicial Review proceedings

[23]   Mr Prasad argued before me that the substantive hearing on the copyright claim in his name should have proceeded. He submits that the “Court of Appeal could not have struck out the s 120 part unless I also appealed the s 120 part”. This is a misconceived collateral attack on the outcome of the appeal.

[24]   Mr Prasad now also asserts that because he was the author of the copyright work, he owned the copyright work which was never transferred to the company. On that basis, he says there should have been a substantive hearing and the failure to hold a substantive hearing is a reviewable decision. This too is misconceived and an attempt to relitigate matters already determined against him.

[25]   He argues that because the parties in the District Court were different to the parties in the High Court, and the High Court proceeding concerned later infringements, there is no res judicata. Instead, it is a sufficiently different claim to the claims heard by the District Court.

Discussion

[26]I concluded that this proceeding is an abuse of process for multiple reasons.

[27]   First, Mr Prasad has not identified a reviewable decision which is justiciable in this Court. He contends that Associate Judge Doogue erred by failing to set the matter down for a substantive hearing. But, after the Court of Appeal struck out the proceeding, there was nothing on foot to “set down”. The appeal determined the proceeding. There can be nothing to judicially review.

[28]   Second, Mr Prasad is attempting to evade a decision of the Court of Appeal by dressing up his claim as a judicial review. In reality, he wishes to re-litigate the question of personal ownership of copyright, and infringement. In response to a question as to whether the company had re-assigned the copyright to him, and if so, when, Mr Prasad gave contradictory answers. These answers illustrated his confusion

between the concept of authorship and ownership.17 It is well-established that “to relitigate matters already determined, including bringing proceedings dressed in different garb but having the same effect, is an abuse of process”.18 That is exactly what is happening here.

[29]   Third, Mr Prasad submitted that the parties in the High Court proceeding are different to the parties in the District Court proceeding. That is both not correct, but also irrelevant. Indiana was the first defendant in the District Court and High Court proceedings. Although there were some different individuals involved in the proceedings, their roles appeared to be secondary. The central questions are whether he owned the copyright at the time of the pleaded infringement (the Court of Appeal found the answer was “no”), and whether Indiana breached copyright (again, the answer was “no”).

[30]    Fourth, Mr Prasad said that he intended to challenge later publications by Indiana to avoid the earlier findings, yet he is likely time-barred from asserting infringement in respect of any restricted act carried out more than six years ago.19 Even if he was able to identify a restricted act in this period, it would be a civil proceeding rather than judicial review. On this aspect, Mr Prasad is confusing the concept of duration of rights and limitation periods for infringement.

Other matters

[31]   Mr Prasad’s memorandum dated 1 September 2020 signalled an intention to review a decision of an Auckland Standards Committee and decision by the Law Complaint Review Office. He sought to include this in the current proceeding by adding parties. This relates to alleged conduct of his former counsel in refusing to issue proceedings on his behalf on the basis they amounted to an abuse of process. Mr Prasad will need to follow the appropriate steps if he wishes to take this further. He will need to file a fresh statement of claim naming the relevant parties, rather than the current parties. However, I urge Mr Prasad to seek legal advice before he does so

17  Mr Prasad filed subsequent material after the hearing which purported to show an assignment by the company to him of all copyright. This does not however answer the issue of whether this purported judicial review is an abuse of process.

18 Dotcom v The District Court at North Shore [2017] NZHC 3158 at [25].

19 A claim for breach of copyright is subject to the provisions of the Limitation Act 2010.

as, based on the material before the Court, there is a real risk of an adverse costs order against him.

Conclusion

[32]   I am mindful that access to justice is central to the proper functioning of the legal system and particularly in the judicial review jurisdiction. Access, however, is not guaranteed for proceedings which are frivolous, vexatious or otherwise an abuse of the Court’s processes. Proceedings of those kind waste valuable court resources, and risk bringing the justice system into disrepute.

[33]   The cumulative effect of these proceedings leaves no doubt in my mind that this proceeding is yet another attempt to re-litigate the alleged breach of copyright on which Mr Prasad is fixated. As Cooper J said in an earlier judicial review attempt:20

“ it is apparent from the submissions that he addressed to me that Mr Prasad either fails to understand or chooses not to understand the implications of the various Court decision which have been delivered in this matter”.

Order

[34]Accordingly, I strike out these proceedings.

[35]   I direct the Registry to refer to a Judge any further proceedings from Mr Prasad which seek to revisit the judgments dealing with the issue of copyright or reversion of copyright in order that an assessment under r.5.35A of the High Court Rules may be made.

Addendum

[36]   Although leave to file further submissions had not been given to Mr Prasad, he filed a 17-page memorandum after this judgment was completed and shortly before it

20     Prasad v Manukau District Court HC Auckland CIV-2009-404-8484, 25 May 2010.

was due to be delivered. I nonetheless read his memorandum and took it into account in these reasons.

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

Walker J

Appendix 1

Some of the related judgments since 2005
1.		Sage Group Ltd v Indiana Publications [2006] BCL 772 (HC).
2.		Sage Group Ltd (now World Commerce NZ Ltd (in liq)) v Indiana Publications Ltd HC Auckland CIV-2005-404-5424, 6 November 2007.
3.		Sage Group Ltd (now World Commerce NZ Ltd (in liq)) v Indian Publications Ltd [2008] BCL 88 (HC).
4.		Prasad v Indiana Publications [2008] NZCA 70.
5.		Prasad v Indiana Publications [2009] BCL 625 (HC).
6.		Prasad v Indiana Publications (NZ) Ltd (2009) 19 PRNZ 816 (HC).
7.		Prasad v Indiana Publications (NZ) Ltd [2009] NZCA 418.
8.		Prasad v Indiana Publications (NZ) Ltd CIV-2009-404-1521.
9.		Prasad v Indiana Publications [2009] BCL 893 (HC).
10.		Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV-2009-303-1521, 2 December 2009.
11.		Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV-2009-404-1521, 11 February 2010.
12.		Indiana Publications (NZ) Ltd v Prasad [2010] NZCA 111.
13.		Prasad v Manukau District  Court  HC  Auckland  CIV-2009-404-8484,  25 May 2010.
14.		Prasad v Indiana Publications (NZ) Ltd [2012] NZSC 60.
15.		Prasad v Indiana Publications HC Auckland CIV-2009-404-0856, 17 June 2010.
16.		Indiana Publications (NZ) Ltd v Prasad HC Auckland CIV 2010-404-3333, 27 July 2010.
17.		Prasad v Manukau District Court HC Auckland CIV-2009-404-8484, 23 August 2010.
18.		Indiana Publications (NZ) Ltd v Prasad HC Auckland CIV 2010-404-333, 8, 11 October 2010.

Some of the related judgments since 2005
19.		Re Indiana Publications (NZ) Ltd, ex parte Prasad HC Auckland CIV-2010- 404-3333, 11 November 2010.
20.		Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV-2010-404-3333, 14 June 2011.
21.		Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV-2010-404-3333, 20 July 2011.
22.		Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV-2010-404-3333, 16 December 2011.
23.		Prasad v Indiana Publications (NZ) Ltd[2012] NZHC 316.
24.		Prasad v Indiana Publications (NZ) Ltd [2012] NZCA 211.
25.		Re Indiana Publications (NZ) Ltd, ex parte Prasad[2012] NZHC 1916.
26.		Prasad v Indiana Publications (NZ) Ltd [2012] NZHC 2582.
27.		Prasad v Indiana Publications (NZ) Ltd [2012] NZSC 93.
28.		Prasad v Indiana Publications (NZ) Ltd [2012] NZSC 97.
29.		Prasad v Indiana Publications (NZ) Ltd [2013] NZHC 418.
30.		Prasad v Indiana Publications [2013] NZHC 498
31.		Prasad v Indiana Publications [2013] NZHC 498
32.		Prasad v Attorney-General [2013] NZHC 2721
33.		Prasad v Indiana Publications (NZ) Ltd [2014] NZSC 78
34.		Prasad v Indiana Publications (NZ) Ltd [2014] NZSC 81
35.		Prasad v Indiana Publications (NZ) Ltd [2018] NZSC 48.