Tranter v Manager Telstra Clear NZ Ltd

[2022] NZHC 456

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

CIV-2022-485-000066

[2022] NZHC 456

BETWEEN

DAVID STANLEY TRANTER

Plaintiff

AND

MANAGER TELSTRA CLEAR NZ LTD

Defendant

Hearing:	On the Papers
Appearances:	Plaintiff in Person
Judgment:	14 March 2022

JUDGMENT OF GRICE J

Introduction

[1]Mr David Tranter has filed an application for relief sought under rr 1.2, 1.6 and

1.7 of the High Court Rules 2016 (the Rules). He asks the Court to issue a summons requiring either the General Manager or the Security Manager of Telstra Clear NZ Ltd (the respondents) to provide a statement or affidavit in answer to three questions.   Mr Tranter says the statement obtained will be used for an appeal. The nature of the appeal was not specified in the documents initially filed but subsequently Mr Tranter filed an affidavit which says that the information is required to obtain evidence to mount a criminal appeal against convictions which have already been unsuccessfully appealed to the Supreme Court.

[2]                 The Registrar has referred the application to me under r 5.35A of the Rules for consideration under r 5.35B, on the basis that the proceeding is plainly an abuse of the process of the Court.

TRANTER v MANAGER TELSTRA CLEAR NZ LTD [2022] NZHC 456 [14 March 2022]

Jurisdiction

[3]                 Rules 5.35A–5.35C of the Rules provide a three-stage process for dealing with proceedings that are “plainly an abuse of the process of the Court”.

[4]                 At the first stage, r 5.35A allows a Registrar who believes a proceeding accepted for filing is, on the face of it, plainly an abuse of the process of the Court to refer the proceeding to a Judge for consideration before releasing the documents that would enable the proceeding to be served. The rule provides:

5.35  A 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]                 At the second stage, under r 5.35B, if the Judge to whom the proceeding has been referred is satisfied that the proceeding is plainly an abuse of the process of the Court, the Judge may make an order striking out the proceeding or make any orders or directions so that the proceeding is conducted according to the Rules. The rule relevantly provides:

5.35  B 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.

…

[6]                 Rule 7.43(3) provides that a Judge must give the parties an opportunity to be heard before making an interlocutory order. As can be seen, therefore, doing so is not necessary for an order made under s 5.35B.

[7]                 The third stage, r 5.35C, provides that the Registrar must release the documents for service if the Judge does not exercise the discretion under r 5.35B or makes an order or any directions under which the documents must be released for service.

Discussion

[8]                 The express powers contained in rr 5.35A–5.35C reflect the exercise of the Court’s inherent jurisdiction to enable the Court to prevent misuse of Court process when the procedure being adopted would bring the administration of justice into disrepute. The right of a litigant to bring proceedings must be weighed against the interests of individual parties who may otherwise be drawn into entirely unmeritorious proceedings.1

[9]                 The power to strike out a proposed proceeding as an abuse under these rules is to be exercised sparingly.2 In exercising this power, the Court should consider:3

1      Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220 at [20].

2      Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 [Chesterfields] at [89].

3      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 the Court as exercising very poor control of its processes if it were to allow the applicant’s document to be regarded as a proper document.

[10]             The usual concepts taken into account by a Court when assessing whether a proceeding is an abuse of process inform the answers to the above questions.4

[11]             A “plainly abusive proceeding” is a proceeding which indicates an obvious misuse of the Court’s processes.5 It is a proceeding which involves an improper use of the Court’s machinery,6 being use of the Court process “for a purpose or in a way significantly different from its ordinary and proper use”.7

[12]             In his application, Mr Tranter submits that he has written to the respondent company requesting a statement in response to his questions on a number of occasions and has received no response. He states that attempts to engage a solicitor on legal aid have been unsuccessful, as he can only get a solicitor once an appeal is lodged and he can only lodge an appeal once he receives the statement, as the statement so obtained will be the basis of that appeal.

Analysis

[13]             Mr Tranter’s application fails to disclose any discernible cause of action or grounds upon to bring a claim. There is no basis contained within the application upon which the Court should intervene to make any order against the respondents here. In Tully v Chief Executive, Department of Corrections, the Court exercised its discretion under r 5.35B to strike out Mr Tully’s application for judicial review as the proceedings failed to identify clearly the particular decision in respect of which review was sought and the grounds upon which it was alleged that the process followed in respect of that

4      Siemer v Registrar of the Supreme Court [2019] NZHC 2345 at [7].

5      Chesterfields, above n 2, at [89].

6 At [87].

7      Dunstan v Riddell [2021] NZHC 1633 at [6].

decision was defective.8 Similarly, the present application describes no cause of action or grounds upon which Mr Tranter may seek relief in the civil jurisdiction.

[14]             Mr Tranter has exhausted his appeal rights in the criminal jurisdiction and now seeks to obtain information to pursue his criminal appeal using the High Court Rules as he has exhausted the criminal processes.

[15]             Mr Tranter has also attempted to file a judicial review application to review the criminal convictions. That proceeding was struck out as an abuse of process.9 Osborne J in his judgment said:

[7]     Mr Tranter’s proceeding is plainly abusive. It purports, in relation to a criminal trial conducted in this Court (and subsequently the subject of unsuccessful appeals), to ask this Court to review decisions made in the context of the High Court trial. Such a concept of judicial review (this Court reviewing itself) is unknown to the law.

[8]     Secondly, it is clear from Minutes which have issued from the Court of Appeal in the proceeding that is currently before that Court (CA 282/2018) that the subject-matter of the proceeding filed in this Court is co-extensive with that already before the Court of Appeal.

[16]             Similar considerations apply here. Mr Tranter is seeking to use the civil processes to continue his search for evidence to support a possible criminal appeal. That is plainly an abuse of the process of this court.

Conclusion

[17]             For the above reasons I am satisfied that Mr Tranter’s application is an abuse of the process of the Court and the requirements for striking out a proposed proceeding under r 5.35B above are met. It would be manifestly unfair to the respondents that they be required to respond. Allowing the application to proceed would be seen as exercising poor control of the Court’s processes.

[18]The proceedings are struck out under r 5.35B.

8      Tully v Chief Executive, Department of Corrections [2020] NZHC 1306.

9      Tranter v R [2019] NZHC 244.

[19]             Pursuant to r 5.35B(4), I direct that a copy of this decision be forwarded to the Chief Executive of the Department of Corrections.

[20]             As required by the rule, I record that Mr Tranter has a right of appeal against this decision.

Grice J