Prescott v Thompson (No 2)
[2020] NZHC 1004
•15 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-1972
[2020] NZHC 1004
BETWEEN PETER RICHARD PRESCOTT
Applicant
AND
VIOLET GEORGINA THOMPSON
First respondent
AND
DISTRICT COURT AT AUCKLAND
Second respondent
Hearing: 13 March 2020 Appearances:
The applicant in person
R E Harrison QC for the first respondent Appearance excused for the second respondent
Date of judgment:
15 May 2020
JUDGMENT NO 2 OF PALMER J
This judgment was delivered by me on Friday 15 May 2020 at 2.00 pm.
Pursuant to Rule 11.5 of the High Court Rules
………………………… Registrar/Deputy Registrar
Party/Counsel/Solicitors:
The Applicant
R E Harrison QC, Auckland Richard S Wood, Auckland Crown Law, Wellington
PRESCOTT v THOMPSON NO 2 [2020] NZHC 1004 [15 May 2020]
Summary
[1] Mr Peter Prescott applies for judicial review of decisions by the District Court not to adjourn his claim against his ex-partner, Ms Violet Thompson. But the District Court’s decisions were entirely reasonable and there is no evidence of bias or apparent bias by the judge. I dismiss the application for judicial review.
What happened?
Dispute
[2] Ms Thompson is the trustee of a trust which owns residential rental properties. Mr Prescott and Ms Thompson were in a de facto relationship for two periods of time, most recently from July 2012 to September 2016. After the relationship ended, Mr Prescott brought proceedings against Ms Thompson. He claimed she had made a contractually binding promise that the trust would sell him a property in Huntly at the cost of its purchase in 2015 and would take into account the value of work he did on the property.
District Court proceeding
[3] On 23 July 2018, the proceeding was allocated a one-day hearing on 7 November 2018. Mr Prescott made several attempts to adjourn the fixture:
(a)On 1 August 2018, in an email to the Registry, Mr Prescott said he had a “major hearing” in another proceeding on 14 August 2018 and three others on 16 August 2018, 14 September 2018 and 16 October 2018.1 He cited s 27(1) of the New Zealand Bill of Rights Act 1990 (Bill of Rights), said he would not have adequate time to research and prepare his case and sought an adjournment.
(i)Mr Woodd, for Ms Thompson, submitted the three weeks after the other hearings and before 7 November 2018, a year after his
1 Attachment to email from Peter Prescott to Steve McHugh (Court Registrar) regarding grounds for an adjournment, 1 August 2018, attached to affidavit of Warren Woodd, 16 December 2019 [Woodd Affidavit], at 29.
claim was filed, meant there was no basis for Mr Prescott’s claim of lack of adequate time to prepare.2
(ii)Judge G Harrison declined the application for an adjournment, observing “[t]here is more than enough time for Mr Prescott [to] prepare his case after the conclusion of the earlier hearing on 16/10/2018”.3
(b)On 21 September 2018, in a memorandum to the Court, Mr Prescott requested dismissal of counsel for Ms Thompson and (according to the title but not the text of the memorandum) applied for a hearing of his application for summary judgment.4
(i)On 25 September 2018, Judge Sinclair dismissed the application for judgment by default and stated the substantive claim would be heard on 7 November 2018 as allocated.5
(c)On 10 October 2018, in “Plaintiff’s Memorandum still seeking an adjournment”, Mr Prescott stated his earlier requests had been unreasonably and arbitrarily refused and again requested an adjournment on the ground of insufficient time to prepare and to protect his fair hearing and due process rights because his circumstances had not changed.6
(i)Mr Woodd, for Ms Thompson, again opposed an adjournment. He noted that his previous submissions remained apposite.7
2 Defendant’s memorandum, 10 August 2018, at [7]-[9], attached to Woodd Affidavit at 37.
3 Email from Steve McHugh (Court Registrar) to Peter Prescott and Warren Woodd, 13 August 2018, attached to Woodd Affidavit at 46.
4 Memorandum, 21 September 2018, attached to Woodd Affidavit at 48.
5 Prescott v Thompson DC Auckland CIV-2017-4-2262, 25 September 2018, attached to Woodd Affidavit at 75.
6 Plaintiff’s Memorandum still seeking an adjournment, 10 October 2018, attached to Woodd Affidavit at 77.
7 Defendant’s memorandum in response to plaintiff’s (second) application for adjournment, 10 October 2018, attached to Woodd Affidavit at 87.
(ii)On 11 October 2018, Judge Harrison noted there had been no appeal of Judge Sinclair’s decision, stated the application was in breach of r 7.44 of the District Court Rules 2016 and dismissed it.8
(d)On 23 October 2018, in a “memorandum of protest”, Mr Prescott complained the Court’s refusals were unreasonable and deprived him of a constitutional right, he alleged bad faith on the part of Mr Woodd, and he advised that he had caught up with all his other matters but that two weeks was not enough time to prepare for the hearing.9
(i)There is evidence from Ms Thompson that she saw Mr Prescott dancing on the evening of 27 October 2018.10 His affidavit in reply says that, during the five dances he had that evening, he was putting on a brave face and was on codeine.11
(ii)On 29 October 2018, in a “amended memorandum of protest”, Mr Prescott repeated his earlier complaints and added a complaint of awaking “in severe and constant physical pain” on
22 October 2018. He said he had been admitted to the Emergency Department at North Shore Hospital on 24 October 2018, was readmitted on 27 October 2018 and his medication did not remove the pain and was causing him sleepiness.12 He said one week was not adequate to research and learn what he would need to know and asked for an adjournment until early the following year.
(iii)Mr Woodd filed a memorandum in response, opposing an adjournment, which rehearsed Mr Prescott’s previous requests,
8 Email from Steve McHugh (Court Registry Officer) to Warren Woodd regarding the proposed adjournment (11 October 2018), attached to Woodd Affidavit at 104.
9 Memorandum of protest, 23 October 2018, attached to Woodd Affidavit at 107.
10 Affidavit of Violet Thompson, 16 December 2019, at [10].
11 Peter Prescott Affidavit in response, 14 January 2020, at [41] and [51](1)(d).
12 Plaintiff’s amended memorandum of protest, 29 October 2018, at [8]-[11], attached to Woodd Affidavit at 118.
noted Mr Prescott had provided no supporting affidavit and no medical certificate, noted Mr Prescott had not applied for leave for the application and noted Mr Prescott had completed his substantive affidavit for the hearing.13
(iv)On 2 November 2018, Judge Harrison dismissed the application and noted his earlier dismissal of 11 October 2018.14
(e)On 5 November 2018, in a “memorandum of impossibility”, Mr Prescott advised “[t]he chest pains are now so severe that I cannot sit upright without enduring excruciating pain”, he was stopping work on the case as the pain was no longer bearable, and that while he would appear on 7 November, he would appeal if he were unsuccessful.15 He stated that, by refusing to adjourn, “the Court was reckless and has unreasonably endangered my health and that is sufficient grounds for an appeal if needed”. Later in the day, he sent another email to the Registry, all in capitals, complaining of being in constant pain, which he said was inhumane.16 Judge Harrison declined the application for an adjournment “as for the previous applications”.17
(f)At the hearing on 7 November 2018, Mr Prescott presented 197 pages of submissions. He did not make any further adjournment request. His affidavit states that his case was prejudiced but does not say how.18 He did advise the Court he was suffering from shingles. Mr Woodd’s affidavit says that neither Mr Prescott’s appearance nor anything he said or did throughout the hearing indicated he was in pain or suffering any discomfort.19 Ms Thompson’s affidavit supports that.20
13 Defendant’s memorandum, 30 October 2018, attached to Woodd Affidavit at 129.
14 Email from Steve McHugh (Court Registry Officer) to Peter Prescott and Warren Woodd, regarding the amended memorandum (2 November 2018) attached to Woodd Affidavit at 132.
15 Plaintiff’s memorandum of impossibility, 5 November 2018, attached to Woodd Affidavit at 136.
16 Email from Peter Prescott to Steve McHugh (Court Registry Officer) regarding adjourning the matter (5 November 2018) attached to Woodd Affidavit at 138.
17 Email from Steve McHugh (Court Registry Officer) to Peter Prescott regarding adjourning the matter (5 November 2018), attached to Wood Affidavit at 138.
18 Peter Prescott Affidavit, 20 November 2019, at [50].
19 Woodd Affidavit at [33]-[34].
20 Thompson Affidavit at [19].
[4] Judge Cunningham issued a judgment, dismissing Mr Prescott’s claim, on 18 March 2019.21 She was satisfied that there was no intention to create legally enforceable relationships, if there were such an intention the contract would fail for uncertainty of terms, and Ms Thompson was not the owner of the property in any case.
[5] Mr Prescott sought to appeal the judgment. But he failed to pay security for costs and the appeal was deemed abandoned. He also complained to the Judicial Conduct Commissioner about Judge Cunningham.
Medical evidence
[6]Mr Prescott has sworn an affidavit which states:22
The sensitivity and pain I was experiencing was so severe that I could not wear a shirt due to the pain it caused when touching my skin, sitting and sleeping therefore were extremely painful even with the use [of] pain killers so in addition to the pain I was suffering from severe sleep deprivation.
[7] He did not provide any evidence to the District Court when requested an adjournment. But he now attaches to his affidavit a copy of North Shore Hospital’s records stating that he was admitted with chest pain on 24 October 2018 and for advice on shingles on 27 October 2018. Relevant points include:
(a)On 24 October 2018 he was admitted at 11.54 and discharged at 14.13 the same day:23
(i)The history notes Mr Prescott “noticed dull ache in left side of chest while seated at computer 3 days ago”, that it was “not worse on movement” and “largely constant, 5/10”, that he had attended a pharmacist that morning “who heard he had chest pain and told him to attend ED”.
(ii)The examination notes said, under the heading “Examination on Presentation”:
21 Prescott v Thompson [2019] NZDC 4646.
22 Prescott Affidavit at [10].
23 Prescott Affidavit, Exhibit A.
Looks well systemically [Comfortable] at rest
No convincing tenderness brought on by palpation of anterior or posterior chest wall
No pain brought on by arm movement left side Pulses intact globally
(iii)Mr Prescott was advised it was likely musculoskeletal pain, he was prescribed paracetamol and codeine and advised to book an appointment with his GP within the next few days, or earlier if there was any change or worsening of symptoms.
(b)On 27 October 2018, Mr Prescott was admitted at 2.07 and discharged at 4.10. He was said to have presented with a painful rash which was diagnosed as shingles and he was prescribed pain relief.
[8] Mr Prescott says in his affidavit that he did not provide this documentation to the District Court because no one asked for it and he was unable to scan and send it due to his medical condition.24
Other proceedings
[9] Mr Harrison QC, for Ms Thompson, referred me to judgments in a number of other proceedings which Mr Prescott has brought. In particular:
(a)In 2014, Wylie J declined Mr Prescott’s application for leave to appeal out of time from a judgment declining him damages for being spoken to by the Police after getting angry with a traffic warden.25
(b)In 2019, Gault J dismissed Mr Prescott’s appeal and judicial review alleging bias against Judge Cunningham, who found that Mr Prescott had been lawfully arrested in 2011 for obstruction in relation to an incident where police asked for his registration number.26
24 Prescott Affidavit at [19]-[20].
25 Prescott v Auckland Transport [2014] NZHC 228.
26 Prescott v New Zealand Police [2019] NZHC 3376.
Application for judicial review
[10] Now, Mr Prescott applies for judicial review of the Court’s decisions not to grant an adjournment and to proceed with the hearing when he was not fit to participate. Ms Thompson pleads affirmative defences of abuse of process, unreasonable delay and waiver by failing to raise recusal or ill-health at the 7 November 2018 hearing.
[11] In December 2019, Mr Prescott objected to the affidavit of Mr Woodd. In January 2020, he applied to strike it out. In February 2020, he agreed that could be heard at the substantive hearing. Mr Harrison expressed concern about the potential length of Mr Prescott’s submissions. Mr Prescott promised to be very concise. He was. As it turned out, Mr Harrison’s 47 pages of submissions were lengthy.
[12] On 6 March 2020, a week before the hearing, Mr Prescott requested that the half day allocated for the hearing be used for his strike-out application and two additional interlocutory applications he made to strike out other affidavits, or portions of affidavits, filed by the respondents. He requested a hearing of the application for judicial review be re-allocated for one day, as there would clearly not be enough time to deal with everything in one day. Ms Thompson opposed an adjournment. I considered there would be enough time to deal with the issues and directed the hearing proceed. There was more than enough time to hear the issues. Mr Prescott appeared to believe the deponents of the affidavits filed by Ms Thompson needed to be present for cross-examination. But he had not applied to cross-examine and I explained to him that cross-examination in judicial review cases is rare.
[13] I heard the application for judicial review on 13 March 2020. The District Court abides the Court’s decision. After the hearing, Mr Prescott purported to apply to strike out evidence he says was given by Mr Harrison. Mr Harrison’s remarks were submissions, not evidence, based on past court judgments and other documents in evidence. The application for strike-out was misconceived.
Applications to strike out evidence
[14] Mr Prescott applies to strike out three affidavits by Mr Warren Woodd, Ms Maureen Files and Ms Thompson. I deal with them in turn and dismiss them all.
[15] First, Mr Prescott submits Mr Woodd’s affidavit is fundamentally defective as an “offence” under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the 2008 Rules) because he was acting as Ms Thompson’s lawyer at the time. He mischaracterises this as “criminal”. Mr Harrison, for Ms Thompson, submits Mr Woodd was not Ms Thompson’s lawyer at the time.
[16] The evidence is that Mr Woodd swore his affidavit on 16 December 2019. The memorandum regarding the change of representation was dated 10 December 2019. There is evidence it was signed on that date and filed and served on 17 December 2019. It is technically true, as Mr Prescott submits, that r 5.40(4) of the High Court Rules 2016 provides the change of representation, “for the purpose of the proceeding” formally takes effect on the filing of an affidavit proving service. That affidavit was not filed until 20 January 2020. But, for the purpose of application of the 2008 Rules, Mr Woodd was not acting for Ms Thompson at the time he swore the affidavit on 16 December 2019. And in any case if there were such a breach, causing no prejudice, it would not be a ground for striking out the evidence.
[17] Second, Mr Prescott submits all three statements are only masquerading as affidavits as they fail to state: the deponent’s competence to testify; their belief the information is true and/or correct; and their personal knowledge of the facts. However, these are not requirements of the wording of affidavits. This is not a ground for strike out of evidence.
[18] Thirdly, and alternatively, Mr Prescott submits five paragraphs in Ms Thompson’s affidavit of 16 December 2019, and one paragraph in Ms Files affidavit of 16 December 2018, should be struck out as inadmissible as they are opinion, speculation or conclusions. In relation to these, I consider:
(a)Ms Thompson’s statement at paragraph [7], about Mr Prescott deriving enjoyment from court processes is necessary to enable her to communicate what she perceived, under s 24 of the Evidence Act 2006.
(b)Ms Thompson’s statements at paragraphs [10] and [19], questioning Mr Prescott’s medical disability at a dance on 27 October 2018 and saying Mr Prescott seemed focussed and normal in court on 7 November 2018, were statements of what she saw, not her opinion.
(c)Ms Thompson’s statements at paragraph [10], [14] and [20], stating she considered Mr Prescott was not under any disability on 27 October 2018 or 7 November 2018, is inadmissible opinion and I do not have regard to it.
(d)Ms Files’ statement at paragraph [5], stating she would expect to recall if he was incapacitated on 27 October 2018 and she did not, is a statement of what she saw and expected, not her opinion.
[19] Mr Harrison, for Ms Thompson, submits the two medical records are inadmissible as hearsay. But I consider they are admissible as business records under s 19 of the Evidence Act 2006.
Should the District Court have granted an adjournment?
Submissions
[20] Mr Prescott submits the denial of his two email requests for adjournment on medical grounds meant he was unreasonably and arbitrarily forced to attend Court when he was medically unfit to do so. He says he was “drugged up” on codeine pain killers and suffering from severe sleep deprivation and in no fit medical state to even travel to Court let alone participate in a meaningful way, under s 16(2)(c) of the Evidence Act 2006. He submits this unreasonably and arbitrarily denied his right of access to a fair and impartial hearing under the rules of natural justice, protected by s 27(1) of the New Zealand Bill of Rights Act 1990 (Bill of Rights). He relies on Murphy v District Court at Auckland, but that case does not stand for what he says it
does.27 He submits it was fundamentally unfair for the Court to allow the proceeding to proceed while he was incapacitated. He characterises the Court’s decisions as “reckless cruel and degrading treatment”, citing s 9 of the Bill of Rights. He also invokes art 21(1) of the International Covenant of Civil and Political Rights (ICCPR). Mr Prescott also submits the Court lacked evidence to arrive at its decision and talks about the Court being deprived of jurisdiction. And he alleges the perception of bias or actual bias by Judge Cunningham because he has active proceedings challenging her conduct on other occasions. He submits the judgment and resulting costs order should be set aside.
[21] Mr Harrison, for Ms Thompson, submits Mr Prescott is, by choice, a serial but largely unsuccessful persistent litigant in person who uses overblown language. He maintains the affirmative defences, opposes the judicial review and submits (in summary):
(a)Mr Prescott cannot rely on his status as a litigant in person to justify abuse of process or special treatment from Ms Thompson, her counsel, or the court. Mr Prescott attempts to vilify Mr Woodd and makes outrageous allegations. The court need not accept uncritically evidence that is inherently lacking in credibility or inherently improbable.28
(b)Mr Prescott provided no evidence of his medical condition in requesting any adjournments and the evidence now available, of his medical condition and his dancing, does not support him being medically unfit to attend the hearing 10 days later. Neither do the notes of evidence of the hearing. He did not request an adjournment at the hearing itself. He identifies no respect in which his presentation of his case was impaired. His substantive case was hopeless in any case.
27 Murphy v District Court at Auckland HC Auckland, CIV-2010-404-2015, 6 May 2011. This case did not determine that “the right to natural justice was offended when the public tribunal refused to change the hearing date as the party could not attend due to another Court appearance”, as Mr Prescott submits. Whata J instead found there was no breach of natural justice, as the tribunal gave the plaintiff the opportunity to justify an adjournment, which he did not do until the day before the trial.
28 Krukziener v Hanover Finance Ltd [2008] NZCA 187, (2008) 19 PRNZ 162 at [26].
(c)The accusations of bias against Judge Cunningham are unfounded. There is evidence the judge was not aware of some of the matters Mr Prescott points to, including Mr Prescott’s attempts to file two prosecutions against her. And Mr Prescott did not complain at the hearing.
Decision
[22] It is a fundamental aspect of natural justice that a person must have a reasonable opportunity to present their case. If a litigant is too ill to participate effectively in a hearing, natural justice may require an adjournment. Rule 10.10 of the District Court Rules 2014 empowers the court “before or at the trial, if it is in the interests of justice” to adjourn a trial. The discretion must be exercised consistently with the principles of natural justice.
[23] But Mr Prescott was not denied a reasonable opportunity to present his case. His first three applications for adjournment clearly deserved to fail. He had more than enough time to prepare his case, as Judge Harrison said in relation to the first. His fourth attempt, when buttressed by his claim of illness, was the best chance. But Mr Prescott did not apply for leave to bring that application, as he knew from the failure of his previous application he was required to do. He did not provide any evidence in support of his claims about his medical condition. The dismissal of his application was entirely reasonable.
[24] Furthermore, the medical documentation Mr Prescott now provides is inconsistent with what he claimed at the time he sought the adjournment. He did not mention his medical condition at all in his memorandum of 23 October. His memorandum of 29 October said he was “in severe and constant physical pain” on 22 October 2018. The medical notes say he reported a dull ache in his chest three days before 24 October and the pain was 5/10. There may have been pain from shingles on 27 October 2018, on his second admission. But his acknowledgement that he went dancing that evening does not suggest it was incapacitating.
[25] Neither is there any indication from the evidence about the District Court hearing on 7 November 2018 that Mr Prescott was medically unfit or prejudiced in
presenting his case. He did present it. There are no obvious problems in his presentation which could be attributed to medical unfitness. Neither does the evidence of others present suggest there were indications of medical prejudice. And, crucially, Mr Prescott did not apply for an adjournment at the hearing. In the absence of any evidence of any obvious problem in Mr Prescott’s ability to present his case, and no application by him for an adjournment, no fault can be found in Judge Cunningham simply hearing the case she was scheduled to hear.
[26] There is no evidence the judge was biased or appeared to be biased. This claim appears to be part of Mr Prescott’s repertoire of allegations against decisions he does not like. It is not justified here.
[27] I dismiss the application for judicial review. I do not need to consider the affirmative defences. I do note that Mr Prescott is clearly litigious. The evidence before me indicates he takes technical points, his evidence is unreliable and he uses hyperbolic language to paint himself as a victim and others as oppressors. If he carries on as he has been, he runs the risk of a court considering whether he is vexatious in the future and whether he should be restricted under s 166 of the Senior Courts Act 2016 from commencing proceedings.
Result
[28] I decline the applications to strike-out evidence (though I rule three aspects of Ms Thompson’s affidavit as inadmissible) and the application for judicial review.
[29] Ordinarily, I would award costs to Ms Thompson. But Mr Harrison requests the opportunity to file submissions seeking indemnity or increased costs. If costs cannot be agreed, I give leave for Ms Thompson to file submissions, of no more than 10 pages, within 10 working days of this judgment and for Mr Prescott to file submissions in reply within 10 working days of that.
Palmer J
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