Ropiha-Waikerepuru v Simpson Grierson

[2023] NZHC 646

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2023-443-11

[2023] NZHC 646

UNDER

the Crimes Act 1961

IN THE MATTER OF

Violation of statute and New Zealand

legislation of s 100 Judicial Corruption

BETWEEN

K RAUKURA ROPIHA-WAIKEREPURU

Plaintiff

AND

SIMPSON GRIERSON

First Defendant

RACHAEL JUDGE
Second Defendant

ANNE CALLINAN

Third Defendant

On the Papers
Judgment:	28 March 2023

JUDGMENT OF GWYN J

(On Registrar’s referral under r 5.35A)

Introduction

[1]                  On 16 February 2023 the Registry at the Wellington High Court received a document filed by the plaintiff, K Raukura Ropiha-Waikerepuru. The document is titled “Notice of Statement of Claim Pursuant Under the Violation and Breach of the Crimes Act 1961 Section 100 Category 4” (the proceeding).

[2]                  The Registrar has referred the proceeding to  me as Duty Judge, pursuant  to  r 5.35A of the High Court Rules 2016 (the Rules). Under r 5.35A if a Registrar

ROPIHA-WAIKEREPURU v SIMPSON GRIERSON [2023] NZHC 646 [28 March 2023]

believes that a proceeding accepted for filing is, on the face of it, plainly an abuse of the process of the Court the Registrar may refer the proceeding to a Judge for consideration before releasing the documents that would enable the proceeding to be served.

[3]                  Under r 5.35B, if the Judge to whom the proceeding is referred is satisfied that it is plainly an abuse of the process of court, the Judge may make an order striking out the proceeding before it is served, or may make orders or directions to ensure the proceeding is conducted according to the Rules.

The pleading

[4]                  In bringing this claim, the plaintiff relies on their “right to exercise customary law which is guaranteed in article two of the Treaty of Waitangi 1840 (English Text) and reaffirmed in the Ngāti Ruanui Deed of Settlement Act 2003 Section 14”.

[5]                  The pleading refers to an employment mediation meeting on 23 June 2022 (mediation meeting). It alleges that the defendants:

(a)attended the mediation meeting as “third-party interloper operators for Case File 1203412” and that the MBIE Mediator “granted the first defendant speaking rights for Case File 1203412 under false pretences”.

(b)discussed another employment MBIE closed Case File 1201617 at the mediation, in violation of s 240 of the Crimes Act.

(c)abused the judicial system as “Crown lawyers” to bribe the plaintiff with a $10,000 settlement offer through the MBIE Mediator Hinemoa Dixon, in breach of s 104 of the Crimes Act.

[6]                  The pleading alleges breaches by the defendants of a number of provisions in the Crimes Act 1961 (Crimes Act): ss 100 (judicial corruption), 104 (corruption and bribery of law enforcement officer), 113 (fabricating evidence), 116 (conspiring to defeat justice), and 240 (obtaining by deception or causing loss by deception).

[7]                  The pleading also alleges breaches of s 137 of the Companies Act 1993 (duties of a director of a company) and s 9 of the Secret Commissions Act 1910 (aiding and abetting offences).

[8]                  The proceeding seeks remedies by way of disciplinary action, being disbarment; termination of employment contract; and home detention of seven years’ maximum, in respect of each of the second and third defendants.

[9]                  In relation to the first defendant the pleading refers to the “Native Rangatira Intervention Takeovers Act 1993”. It does not specify what specific remedy is sought.

[10]              In addition, a total of $306,666.66 by way of damages is sought from each of the three defendants.

“Plainly abusive proceeding”

[11]This phrase is not defined in r 5.35A or B or elsewhere in the Rules.

[12]              The right to bring proceedings before the courts is a fundamental right. The Court will be cautious before striking out or staying a proceeding. However, as the Court of Appeal confirmed in Faloon v Planning Tribunal at Wellington,1 there are reasonable limits to the recourse to law.

[13]              The Court has an obligation to ensure that its processes are not abused and to protect defendants from oppressive and frivolous proceedings. The right of a litigant to bring proceedings must be weighed against the broad public interest and the private interests of individual parties who may otherwise be drawn into entirely unmeritorious proceedings.

[14]              As Venning J noted in Jones v New Zealand Bloodstock Finance and Leasing Limited:2

1      Faloon v Planning Tribunal at Wellington [2020] NZCA 170.

2      Jones v New Zealand Bloodstock Finance and Leasing Limited [2021] NZHC 3220 at [21], citing

Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 at [9] (CA).

In striking out or staying potentially abusive proceedings the Court is acting to protect its ability to function as a court of law in the future as much as in the case before it.

[15]                As Venning J also noted in Jones, more recently the Court has approached referrals under r 5.35A on the basis of whether it would be manifestly unfair to the respondents that they be required to respond to the proposed claim and whether right thinking people would regard the Court was exercising very poor control of its process if it were to allow the applicant’s claims to be regarded as proper claims that require a formal response.3

Discussion of this proceeding

[16]              As I have detailed above, the pleading alleges offending by the defendants against various provisions of the Crimes Act. An individual cannot bring a civil proceeding in the High Court for alleged criminal offending. On that basis all aspects of the pleading alleging breaches of the Crimes Act must be struck out.

[17]              The plaintiff also relies on other statutory provisions. First, s 137 of the Companies Act 1993 which provides that a director of a company, when exercising powers or performing duties as a director, must exercise the care, diligence and skill that a reasonable director would exercise in the same circumstances.

[18]              The pleading does not explain the role of the plaintiff and the defendants at the 23 June 2022 mediation meeting (or otherwise), or the outcome of the meeting. There is nothing in the pleading to indicate what, if any, relevance the s 137 duty has to the mediation meeting of 23 June 2022, or to the role of the defendants.

[19]              The plaintiff also relies on s 9 of the Secret Commissions Act 1910 which provides:

9        Aiding and abetting offences

Every person is guilty of an offence who aids, abets, counsels, or procures, or is in any way directly or indirectly knowingly concerned in or privy to the commission of any offence against this Act, or the commission outside New Zealand of any act in relation to the affairs

3      At [22], citing Mathieson v Filds [2017] NZHC 2258 at [4].

or business of a principal residing or carrying on business in New Zealand which if committed in New Zealand would be an offence against this Act.

[20]              Again, there is no explanation in the pleading of how and to whom s 9 is relevant.

[21]              Any claims relating to s 137 of the Companies Act 1993 and s 9 of the Secret Commissions Act 1910 must therefore also be struck out.

Result/Orders

[22]              The claims against the first, second and third defendants are struck out as an abuse of the process of the Court.

[23]              In accordance with r 5.35B(3) the plaintiff is advised of his right to appeal to the Court of Appeal against this decision.

[24]              In accordance with r 5.35B(4) a copy of this decision is to be provided to the defendants.

Gwyn J