Rogers v Melanie Baker Law

[2024] NZHC 3763

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-000792

[2024] NZHC 3763

BETWEEN

MARSHALL ROGERS

Plaintiff

AND

MELANIE BAKER LAW

Defendant

Hearing:	(On the papers)
Counsel:	Plaintiff in person
Judgment:	11 December 2024

JUDGMENT OF LA HOOD J

[1]    Mr Rogers has filed a statement of claim naming “Melanie Baker Law” as defendant, which alleges:

On June 14th 2024, Melanie Baker Law spread uninvestigated defamation against me (using schoolkids) to thwart the Parentorder-deliberation in July 2024.

Cause of action (is perhaps wrong information from an unknown source) but t’was cunningly passed immediately to Child-lawyer – not the CPT, Police or Judiciary.

I have now lost nearly 6months valuable time as a dad (prescribed in JBlacks’ deliberation) and seek w/o notice redress of a midweek-handover every week to catchup that prescription of JBlack.

[2]    The statement of claim goes on to say that the “uninvestigated defamation” to which the claim relates “has thwarted the legitimacy of the resultant parentorder” of Judge Black in the Family Court in July 2024.

ROGERS v MELANIE BAKER LAW [2024] NZHC 3763 [11 December 2024]

[3]    It therefore appears this claim relates to Mr Rogers’ dissatisfaction with the decision of Judge Black in the Family Court on 31 July 2024, reducing Mr Rogers’ contact with his children from twice a week to twice a month (the Family Court decision).1

[4]    Mr Rogers sought to appeal against that decision in August 2024. However, he failed to pay security for costs and the appeal was therefore abandoned pursuant to s 126(3) of the District Court Act 2016.

[5]    These proceedings have been referred to me as Duty Judge under r 5.35A of the High Court Rules 2016. Following such a referral, a Judge has the powers provided for in r 5.35B:

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).

…

[6]    In Mathiesen v Slevin the Court explained that deciding whether to strike out a proceeding so referred involved determining the following questions:2

1      [Rogers] v [Phillips] [2024] NZFC 9742; as described in [Rogers] v [Phillips] HC Wellington, 8 September 2024 (Minute of Boldt J). I have adopted fictitious names to protect the identity of the children.

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

(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.

[7]    In O’Neill v Judicial Conduct Commissioner, the Court of Appeal reworded the second limb slightly to ask whether right thinking people would consider the Court was exercising poor control over its processes if it permitted the matter to proceed further.3 That was because the expression of the second limb in Mathiesen was inapt in a case not focused on obvious irregularities on the face of a document.

[8]    The power in r 5.35B must be exercised sparingly and only in the clearest of cases. The authors of McGechan on Procedure note:4

HR5.35A.01 Jurisdiction to strike out or stay  proceedings  before service

The history and scope of rr 5.35A–5.35C was reviewed by the Court of Appeal in Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board [2023] NZCA 63, which concluded at [15] that the strike out powers in r 5.35B “must be exercised sparingly, and only in the clearest of cases.” (See also Siemer v Registrar of the Supreme Court [2019] NZHC 2345 at [6] and Siemer v Complete Construction Ltd [2022] NZCA 262, (2022) 26 PRNZ 137 at [40]– [50]. The Court observed that “[g]iven that the rule contemplates a litigant being denied the fundamental right of access to the courts, with the possibility of the proceeding being halted before it is even served, the abuse must be clear beyond doubt from reading the claim”.

Decision

[9]    Mr Rogers’ statement of  claim  is  incomprehensible.  It  asserts  that Melanie Baker Law has spread “uninvestigated defamation” against him that has caused the outcome in the Family Court described above. However, it does not explain Melanie Baker Law’s involvement in the proceedings,5 nor is  the  lawyer  at  Melanie Baker Law who is said to have made those statements named, and the allegedly defamatory statements are not pleaded. I note that if the alleged statements

3      O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [30].

4      Jessica Gorman and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR5.35A.01].

5      In the abandoned appeal proceedings a notice of change of solicitor was filed on 18 September 2024 stating that the solicitor for the respondent in the proceedings changed to Melanie Baker Law. This suggests that Melanie Baker Law was not involved in the Family Court proceedings.

were made by the lawyers representing the parties in the Family Court proceedings, they would be protected by the defence of absolute privilege.6

[10]   Moreover, given the relief that Mr Rogers seeks is “instant reinstatement of midweek-Wednesday (est. 2016) handover after school” there can be no doubt that Mr Rogers is using these proceedings to challenge the Family Court decision in an attempt to circumvent the abandonment of his appeal due to his failure to pay security for costs. Using proceedings in this way is clearly an abuse of process.

[11]   I therefore have no hesitation in ordering that the proceedings are struck out as an abuse of process under r 5.35B.

[12]   I direct the Registrar to provide a copy of this decision to the named defendant in accordance with r 5.35B(4), and I record that Mr Rogers has a right to appeal this decision in accordance with r 5.35B(3).

La Hood J

6      Smith v Black [2024] NZHC 3598.