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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 456
Decision Date: 14 March 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. David Stanley Tranter filed an application against Telstra Clear NZ Ltd seeking a summons to compel the General Manager or Security Manager of the company to provide a statement or affidavit in response to three questions. The information was intended for use in a criminal appeal against convictions that had already been unsuccessfully appealed to the Supreme Court. The Registrar referred the application to the court, considering it to be plainly an abuse of the process of the Court. The court had to decide whether the proceeding was an abuse of the process of the Court and, if so, what orders or directions should be made under r 5.35B. The court found that the application failed to disclose any discernible cause of action or grounds upon which the court should intervene to make any order against the respondents. The court also found that Mr. Tranter was attempting to use the civil processes to continue his search for evidence to support a possible criminal appeal, which was plainly an abuse of the process of the Court. The court struck out the proceedings under r 5.35B and directed that a copy of the decision be forwarded to the Chief Executive of the Department of Corrections. Mr. Tranter had a right of appeal against the decision.
The court found that the application was plainly an abuse of the process of the Court and that the requirements for striking out a proposed proceeding under r 5.35B were met. It would be manifestly unfair to the respondents that they be required to respond, and allowing the application to proceed would be seen as exercising poor control of the Court’s processes. The court struck out the proceedings and directed that a copy of the decision be forwarded to the Chief Executive of the Department of Corrections.

Orders