Ratima v Tauranga District Court
[2012] NZHC 1306
•11 June 2012
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CIV-2012-470-000125 [2012] NZHC 1306
BETWEEN DAVID RATIMA Applicant
ANDTAURANGA DISTRICT COURT First Respondent
ANDPAUL BROATCH Second Respondent
Hearing: 8 June 2012
Appearances: Applicant in Person
D Consedine for First Respondent
No appearance for Second Respondent
Judgment: 11 June 2012
JUDGMENT OF VENNING J
This judgment was delivered by me on 11 June 2012 at 2.45 pm, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Law, Wellington
Copy to: N Smith, Tauranga
D Ratima, Tauranga
RATIMA V TAURANGA DISTRICT COURT HC TAU CIV-2012-470-000125 [11 June 2012]
Introduction
[1] In these proceedings Mr Ratima (or a trust associated with him) seeks to judicially review two decisions of Judge Harding in the District Court at Tauranga. On 24 May 2011 Judge Harding declined to lift a stay on a private prosecution brought by Mr Ratima (or his trust) and also refused his application for the issue of a search warrant.
[2] The first respondent seeks to strike out the statement of claim for judicial review on the grounds it discloses no reasonable arguable cause of action, is likely to cause prejudice or delay, is frivolous and/or vexatious, or is otherwise an abuse of the process of the Court. The second respondent supports the first respondent’s application.
[3] Judge Harding had previously (on 6 October 2010) stayed the prosecution against Mr Broatch pending affidavit evidence as to further particulars demonstrating the proceeding was brought in good faith and would not amount to an abuse of process.
Background
[4] The background to the proceedings and Mr Ratima’s attempt to prosecute Mr Broatch has its genesis in Mr Ratima and his family’s former occupation of premises at 33G Waimapu Street, Greerton, Tauranga under an arrangement with Habitat for Humanity (Tauranga) Limited. Mr Broatch is apparently the chairperson of that entity.
[5] I take the background from an earlier decision of Judge McGuire in the District Court at Tauranga on 16 February 2010. Habitat is a charitable organisation established in 1975 in New Zealand. It has a number of regional affiliates including the one in Tauranga. At the heart of its charitable purpose is to build low cost
housing for sale at no interest to persons and families who are in serious need of housing.
[6] In late 1999 Mr and Mrs Ratima applied to become prospective Habitat homeowners. Habitat advised them in February 2000 that they had been selected to become owners of a three bedroom home to be constructed in Waimapu Street, Greerton. By February 2001 the house was constructed and Mr and Mrs Ratima moved in. They agreed to pay a sum for rental pending their ultimate purchase of the property. In early 2002 a partnership towards ownership agreement was sent to Mr and Mrs Ratima for their signature. Mr and Mrs Ratima did not sign that. Various other documents were presented to the Ratimas. At one stage they signed an agreement for sale and purchase, but later refuted that.
[7] Habitat wanted the Ratimas to complete the agreement for sale and purchase. Mr and Mrs Ratima considered the house had defects and refused to settle. A stalemate then developed between Habitat and the Ratimas. Numerous attempts made by Habitat to resolve the issues failed. Habitat ultimately issued a settlement notice and, when it expired unremedied, cancelled the agreement for sale and purchase.
[8] Habitat then sought an order for possession of the property. The Ratimas counterclaimed, seeking an order for specific performance requiring Habitat to remedy the defects and transfer the title to them. In a decision delivered in February
2010 Judge McGuire concluded he had no jurisdiction to grant the relief that Habitat sought. He found the relationship between the parties was one of landlord and tenant so that it was a matter for the Tenancy Tribunal. The Judge also dismissed the counterclaim by the Ratimas for specific performance.
[9] Habitat then took the matter to the Tenancy Tribunal. The Tribunal accepted the Ratimas were in arrears with rent. On 14 April 2010 the Tenancy Tribunal terminated the Ratimas’ tenancy directing that they give possession of the property to Habitat at 5.00 p.m. on Wednesday 25 May 2010. The Ratimas did not deliver up possession of the property. Trespass notices were issued.
[10] Mr Ratima’s private prosecution against Mr Broatch essentially alleges that, following the arrest of Mr Ratima and members of his family for trespass on 31 May
2010, their personal belongings were seized without their consent by Mr Broatch on behalf of Habitat.
[11] Mr Ratima says he complained to the police about the matter and was told the police could not assist. Mr Ratima says that after many letters and threats of Court action some of their property was delivered to their new address at 88 Bell Street, Judea, Tauranga. However, there are a number of documents and other property missing. It is Mr Ratima’s complaint about the actions of Mr Broatch on behalf of Habitat that forms the basis of the proposed private prosecution instigated in the District Court.
[12] As noted, Judge Harding initially stayed the proceeding on 6 October 2010 and then refused to lift that on 24 May 2011 when Mr Ratima provided further documents to the Court and sought the issue of a search warrant – which the Judge also declined.
[13] It is those decisions of 24 May 2011 that Mr Ratima seeks to review. [14] The first respondent seeks to have the proceedings struck out.
[15] Mr Ratima’s position is that the police did not assist him (which has been the subject of a complaint) and so he and his interests were left with no alternative but to take a private prosecution. Essentially he says he relies on the judicial system to respond to his wish to have Mr Broatch (on behalf of Habitat) prosecuted. If a search warrant is issued he believes the police will have to execute it.
Decision
[16] There is a preliminary issue. The prosecution identifies the informant as the David Ratima Trust. The minutes in the District Court refer to the David Ratima Trust. The heading of the amended statement of claim in this Court identifies David
Ratima as the applicant, but on the body, the pleading refers to David Ratima Trust.
Mr Ratima presented documents to the Court concerning the trust’s incorporation.
[17] The declaration of trust document purports to appoint Mr Ratima as settlor and trustee. It is doubtful whether the document effectively creates a trust. Its provisions are largely meaningless and incomprehensible. However, whether the proper applicant is Mr Ratima or a trust, to the extent that it seeks to review Judge Harding’s decision to decline to lift the stay on the private prosecution the application for review discloses no reasonable cause of action. It is misconceived.
[18] The District Court has an inherent power to stay criminal proceedings to prevent an abuse of the Court’s process: Moevao v Department of Labour;[1] Bryant v Collector of Customs;[2] McMenamin v Attorney-General.[3] Mr Ratima purports to allege a variety of offending, including theft (s 219 of the Crimes Act); threatening to destroy property (s 307 Crimes Act); conspiracy (s 310 of the Crimes Act); obtaining by deception (s 240 of the Crimes Act); false statement by a promoter
(s 242 of the Crimes Act); money laundering (s 243 of the Crimes Act); and altering, concealing, destroying or reproducing documents with intent to deceive (s 258 of the Crimes Act). Mr Ratima has failed to produce any evidence to the District Court or to this Court that could responsibly and reasonably support a criminal prosecution against Mr Broatch on such charges.
[1] Moevao v Department of Labour [1980] 1 NZLR 464.
[2] Bryant v Collector of Customs [1984] 1 NZLR 280 (CA).
[3] McMenamin v Attorney-General [1985] 2 NZLR 274 (CA).
[19] The decision to exercise an inherent power such as stay is discretionary. In AJG v The District Court at Auckland the Court of Appeal recognised the difficulty in challenging a decision of the District Court to stay or decline to stay a criminal proceeding.[4]
[4] AJG v The District Court at Auckland CA199/03, 1 December 2004 at [54].
[20] The matter is not finely balanced. Neither the discursive summary of facts, which Mr Ratima relied on, nor the further information he presented to Judge Harding in support of the application for warrant could responsibly or sensibly be
said to support the above charges. The Judge was quite right to stay the proceedings
in the first instance and to refuse to revisit the matter on 24 May 2011. The proposed
prosecution is an abuse of the District Court’s processes.
[21] Nor does the application to review the Judge’s decision to refuse to issue a search warrant have any prospect of success. The application for the issue of a search warrant was purported to be made in reliance on ss 198 of the Summary Proceedings Act and s 219 of the Crimes Act.[5]
[5] Although strictly irrelevant to the issue, I note that even if a warrant was issued, Mr Ratima would have to seek the assistance of the police to execute it. The search warrant must be directed to a police constable: s 198(2). It may only be executed by a police constable. It may not be executed by a private individual.
[22] Section 198 requires the Judge to be satisfied:
... that there is reasonable ground for believing that there is in any building,
...
(a) Any thing upon or in respect of which any offence punishable by imprisonment has been or is suspected of having been committed; or
(b) Any thing which there is reasonable ground to believe will be evidence as to the commission of any such offence; or
(c) Any thing which there is reasonable ground to believe is intended to be used for the purpose of committing any such offence—
may issue a search warrant ... .
[23] It appears that Mr Ratima relies on the search warrant providing evidence to support the proposed prosecution for theft under s 219 of the Crimes Act. In such a case, the sworn statement of facts must provide the Court with a reasonable ground for belief (as distinct from suspicion) that:
(a) a theft has been committed;
(b)that the things specified will be found in the designated place or repository; and
(c) that those things will be evidence as to the commission of the offence.
[24] In this case the application for warrant seems to be directed at obtaining evidence, namely a terracotta pot, plant, hearing aid and other documents belonging to the Ratimas. Mr Ratima claims that those items were seen at the property at various dates between May and July 2010.
[25] Even accepting for the moment that such items belonging to Mr Ratima were seen at the premises in May and July 2010 reasonable belief means there must be an objective and credible basis for believing that not only would the search turn up the items, named in the warrant: R v Laugalis[6] but that they would be evidence of the commission of an offence. In this case there is no reasonable basis to support such a belief. The police have investigated and concluded there is no reason to be involved.
[6] R v Laugalis (1993) 10 CRNZ 350 (CA).
[26] The Residential Tenancies Act 1986 acknowledges that a landlord may be entitled to seize a tenant’s goods in certain circumstances. Sections 62 and 62A of the Act provide for the landlord’s rights and obligations in relation to the tenant’s goods left on the premises on the termination of a tenancy and the ability of the landlord in certain instances to dispose of such goods.
[27] There is insufficient evidence to even support the suspicion of a crime in this case.
[28] The Judge was quite correct to refuse to issue a search warrant.
[29] As a final matter I note that the application for judicial review is also likely to cause prejudice and is frivolous and vexatious. The pleadings such as they are (including the amended claim) are argumentative and fail to provide any proper particulars. Further, part at least of the relief sought is not available on a judicial
review.
Result
[30] The application for judicial review of the Judge’s decisions has no prospect of success. It fails to disclose a reasonable cause of action, is itself an abuse of process and is also frivolous and vexatious. It is dismissed.
Costs
[31] The first respondent is to have costs on a 2B basis against the applicant.
Venning J
0
0
0