Vickery v Thoroughgood

[2021] NZHC 3479

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2351

[2021] NZHC 3479

IN THE MATTER

of a civil contempt

BETWEEN

IAN VICKERY

Applicant

AND

CHRISTINE THOROUGHGOOD AND PATRICK THOROUGHGOOD

Respondents

Hearing:	On the papers
Judgment:	16 December 2021

JUDGMENT OF GORDON J

This judgment was delivered by me

on 16 December 2021 at 12 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Copy to:            The Applicant

The Respondents

VICKERY v THOROUGHGOOD [2021] NZHC 3479 [16 December 2021]

[1]                  This proceeding was filed as an originating application for an order for civil contempt. The Registrar has referred the proceeding to me under r 5.35A of the High Court Rules 2016 in my capacity as Duty Judge. Rule 5.35A provides:

5.35A 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.

[2]                  Rule 5.35B sets out the Judge’s powers to make orders and give directions before service. It provides:

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).

…

[3]                  The applicant and respondents have been in dispute over a number of years in relation to trees on the boundary between their properties. The most recent judgment in this Court involved an originating application by Mr and Mrs Vickery for orders finding Mr and Mrs Thoroughgood in civil contempt and for orders that Mr and   Mrs Thoroughgood pay a penalty of $10,000 plus costs for failure to adhere to the terms of an undertaking given to the District Court on 6 December 2017. The High Court Judge dismissed the application.1

[4]                  The present application appears to allege a breach of the undertaking referred to above. However it also relies on an affidavit of Mr Vickery filed in support. The affidavit goes well beyond purporting to provide an evidential basis for the application As well as traversing irrelevant matters, it includes scandalous allegations against Judges of this Court, the District Court and counsel for the respondents. For example, Mr Vickery asserts:

52.[Judges] deliberately lie and trick innocent people, and if you stand   up against them speaking the truth they will have you and your family killed.

…

81.I believe both the District Court judge and a High court judge chose to deliberately lie in this matter to cause physical harm to both me and my family. One person had already died and I do not consider this to be a simply [sic] mistake or error.

82.I now believe that Judges can behave in a manner that they are licensed to kill and they deliberately wanted me and my family and my grandchildren dead.

[5]                  The application, relying as it does on the affidavit of Mr Vickery, is plainly an abuse of the process of the Court. I direct the proceeding be struck out.

[6]                  If Mr Vickery were to file an amended application and an amended affidavit confining the issues to an alleged breach by the respondents of their undertaking, it may well be that the Court would accept the application and (considerably amended) affidavit for filing.

1      Vickery v Thoroughgood [2019] NZHC 1329.

[7]                  As I have made an order without giving Mr Vickery the opportunity to be heard, Mr Vickery has a right to appeal against this decision.2

[8]                  Under r 5.35(b)(4) a copy of this decision striking out the proceeding must, if practicable, also be served on the person(s) named as a party or parties to the proceeding. Accordingly, if practicable, a copy of this decision must be served on the respondents.

Gordon J

2      High Court Rules 2016, r 5.35(b)(3).