Prescott v Auckland District Court

[2025] NZHC 2216

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-001982

[2025] NZHC 2216

UNDER

Section 18 of the Oaths and Declarations Act 1957 and Section 8 of the Judicial Review Procedure Act 2016

IN THE MATTER OF

a breach of plaintiff’s immunity under

section 321(2) of the Criminal Procedure Act 2011

BETWEEN

PETER-RICHARD PRESCOTT

Applicant

AND

AUCKLAND DISTRICT COURT

Respondent

Hearing:	On the papers
Appearances:	Applicant self-represented
Judgment:	7 August 2025

JUDGMENT OF WALKER J

This judgment was delivered by me on 07 August 2025 at 2 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

PRESCOTT v AUCKLAND DISTRICT COURT [2025] NZHC 2216 [7 August 2025]

[1]        Mr Prescott has tendered in the Registry for filing a statement of claim and notice of proceeding. The Registry accepted the claim but has not released the notice of proceeding.

[2]        The Registrar has referred the proceeding to me as Duty Judge under r 5.35A of the High Court Rules 2016. If I agree with the Registry’s belief that the proceeding is, on its face, plainly an abuse of the court process, I have the power to strike the proceeding out under r 5.35B.

[3]        The claim is said to be made pursuant to s 18 of the Oaths and Declarations Act 1957 and s 8 of the Judicial Review Procedure Act 2016, “in the matter of a breach of the plaintiff’s immunity under s 381(2) of the Criminal Procedure Act 2011.” The named respondent is a District Court Judge.

[4]        The “decision” which Mr Prescott seeks to review is said to be set out in a minute of the District Court Judge dated 26 June 2025. It apparently approved sealing of an adverse costs order dated 24 June 2025. I say “apparently” advisedly as the pleading is not clear on its face whether the issue is costs or a fine. Mr Prescott also complains that the Judge failed to determine his claim of “immunity.”

[5]        The “immunity” which Mr Prescott pleads is said by him to originate in        s 381(2) of the Criminal Procedure Act 2011 (the Act). Mr Prescott pleads that he advised the District Court that he is immune to an adverse order of costs (and a host of other enactments) and required/ordered the Registrar to decline to seal what he describes as a fraudulent order for costs.

[6]Section 381(2) of the Act reads:

381     Payment of fees, fines, et cetera

…

(2) Section 364 and this section override every enactment other than the Diplomatic Privileges and Immunities Act 1968 and the Consular Privileges and Immunities Act 1971 (whether passed before or after the commencement of this section) having the effect of granting people of any description, or the holders of stated offices or positions, protection or immunity from criminal or civil liability (or both).

[7]The pleading reads as relevant:

5.The Judge now being well aware of my immunity as a people. A people as per his judicial oath of office, and in breach of that judicial oath to the people of which I am one, ignored my warning of immunity and proceeded to order the costs to be sealed in conflict with the Criminal Procedure Act and a misuse of his statutory powers.

6.The Judge was required to explain in his minute the grounds she relied upon to deny my request to refuse to seal the costs order as mandated under section 381(2) of the Criminal Procedure Act and the judicial oath of office.

7.The Judge being aware of his duties and obligation to we the people under his judicial oath, refused to give a determination on my claim of immunity under section 381(2) of the Criminal Procedure Act, and without any explanation just issued a minute ordering the sealing of the costs order, a misuse of his statutory powers, a breach of The Bangalore Principles of Judicial Conduct giving rise to an apprehension of bias.

[8]Mr Prescott then pleads, in summary:

(a)The Judge abused his statutory powers by failing to determine his claim to immunity.

(b)The court’s failure to comply with Mr Prescott’s direction that he is immune to costs contravenes s 381(2) of the Act and is a criminal offence under s 107 of the Crimes Act 1961.

(c)The court has no jurisdiction over him to issue orders without his expressed and unequivocal consent which the court does not have.

(d)The court has no jurisdiction to determine the matters summarily.

(e)He objects to the claim for costs.

(f)The claim for costs by the Attorney-General conflicts with High Court r 14.2(1)(f) and ch 9.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.

(g)The claim on behalf of the Attorney-General amounts to fraudulent, false accounting, being an offence under s 260 of the Crimes Act 1961.

Discussion

[9]Rules 5.35A and 5.35B of the High Court Rules provide:

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.

…

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.

[10]      The power under r 5.35B must be exercised sparingly and only in the clearest of cases.1 A claim should be struck out when pleadings are so unintelligible that it would be inappropriate to require a response to the pleading; and when it is apparent from the nature of the claim that it could not be re-pleaded in a manner that would identify an appropriate cause of action.2

[11]      Genuinely brought claims, even if misconceived or legally untenable must not be struck out under r 5.35B.3 Proceedings with no discernible cause of action or grounds to seek relief may be struck out as an abuse of process. Proceedings that fail to set out a legal cause of action nor a cause of action that can be properly brought against a named defendant are plainly an abuse of court processes.4 Proceedings that are not capable of being amended to become valid claims should be struck out.5

[12]      The Court of Appeal  recently  set  out  a two-stage test  for strike  out  under r 5.35B in O’Neill v Judicial Conduct Commissioner.6 The test requires the court to consider:

1      Te Wakaminenga o Nga Hapū ki Waitangi v Waitangi National Trust Board [2023] NZCA 63 at [15].

2      Sixtus v Ardern [2022] NZHC 1161 at [11].

3      Te Wakaminenga o Nga Hapū ki Waitangi v Waitangi National Trust Board, above n 1, at [13].

4      Smyth-Davoren v Parker [2018] NZHC 3034.

5 At [9].

6      O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [27] and [30].

(a)whether it would be manifestly unfair to the respondent that it be required to respond; and

(b)whether right-thinking people would consider the court was exercising very poor control of its processes if it permitted the matter to proceed further.

[13]      Having considered those relevant principles, I determine that it is appropriate to strike out this proceeding as an abuse of process. These are my reasons.

[14]      Mr Prescott’s pleading that the District Court had no jurisdiction to make an order of costs against him and his reliance on some form of “diplomatic immunity” is predicated on challenge to the jurisdiction of the courts in the absence of consent. This has the hallmarks of the “sovereign  citizen”  school  of  thought.  The  courts  in New Zealand consistently reject these premises as legally untenable.

[15]      The proceeding names a District Court Judge as respondent however there are no grounds to do so. I have corrected the intituling accordingly.

[16]      Costs decisions are appealable within prescribed time limits. This claim skirts around appeal time limits by focusing on the sealing of the costs order. To the extent that Mr Prescott seeks judicial review because “the Court of Appeal has stated that a minute cannot be appealed”, he misconstrues the legal position.

[17]      Mr Prescott’s claim falls within both limbs of the two-stage test in O’Neill. It is struck out accordingly as an abuse of process.

[18]      I have issued this judgment without hearing from Mr Prescott, as r 5.35B permits me to do. In accordance with the rule, I also record that he has a right of appeal against this decision.

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

Walker J