West v The Official Assignee

[2004] NZCA 235

IN THE COURT OF APPEAL OF NEW ZEALAND

CA144/03

BETWEENLIONEL ANDREW WEST

Appellant

ANDOFFICIAL ASSIGNEE

First Respondent

ANDDEPARTMENT FOR COURTS

Second Respondent

ANDNEW ZEALAND POLICE

Third Respondent

Hearing:8 September 2004

Coram:Anderson P
William Young J
Chambers J

Appearances:  Appellant in Person

G A J Stanish for Second Respondent

Judgment:21 September 2004 

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

Appeal on a strike out application

[1]       Mr West is very aggrieved at certain actions taken by the Official Assignee in the course of administering his estate following his bankruptcy.  These concerns have over the years widened considerably until now Mr West has grievances against the Department for Courts, the New Zealand Police, and the Tenancy Tribunal. 

[2]       Mr West commenced a legal proceeding in the High Court against the Official Assignee, the Department for Courts, the Police, and the Tenancy Tribunal.  There has never been a proper statement of claim articulating the complaints against the four defendants.  Notwithstanding that, the defendants showed a degree of forbearance in not applying to strike out the claim on the simple basis that the originating document does not remotely comply with the requirements of the High Court Rules as to the form in which legal proceedings must be commenced. 

[3]       All the defendants except the Police did, however, seek to strike out the proceeding against them on the basis that there simply was not a cause of action against them, even if one looked outside the originating document and delved into the facts as alleged by Mr West. 

[4]       On 3 February last year, Associate Judge Gendall dealt with those defendants’ strike out application.  He found in their favour.  He said, after gathering the factual foundation for the claim from a variety of sources, that the claim against those defendants could not possibly succeed. 

[5]       Mr West applied to review Associate Judge Gendall’s decision under s26P(1) of the Judicature Act 1908 and r 61C of the High Court Rules.  Heath J heard the review application.  He delivered a reserved judgment on 12 June last year.  He allowed the claim against the Official Assignee to proceed, but he rejected the appeal so far as the Department for Courts was concerned.  He considered that claim untenable.  Mr West had not sought to review Associate Judge Gendall’s decision concerning the Tenancy Tribunal.  Accordingly Heath J did not deal with that aspect. 

[6]       As a result of Heath J’s decision, Mr West was permitted to continue his claim against the Official Assignee and the Police.  (The Police have never applied to strike out the claim against them.) 

[7]       Mr West disagrees with Heath J’s decision not to allow him to continue with his claim against the Department for Courts.  He has brought his concern to this court.  No proper documentation has been filed.  As well this court has no jurisdiction to deal with Mr West’s complaint against Heath J’s decision, as Mr West has not sought leave from the High Court to appeal from it to this court: see Judicature Act, s26P(1)(AA). 

[8]       Notwithstanding all these procedural difficulties in Mr West’s path, we have nonetheless explored the merits of his complaint against the Department, so as to satisfy ourselves as to the merits or otherwise of his claim. 

Mr West’s case against the Department

[9]       In order to understand Mr West’s complaint against the Department, it is necessary to set out briefly some background facts  For convenience, we have taken these from a summary given by this court in an earlier appeal brought to this court by Mr West: West v Martin CA45/00 30 August 2000. 

[10]     William John West, Mr West’s father, died on 16 January 1984 leaving a will.  Lionel West, the current appellant, was granted probate of that will on 13 March 1984.  The will provided for the residue of the estate to be divided equally among the deceased’s three surviving children in equal shares.  Part of the estate was a piece of land in Raetihi, approximately 4 ha in area.  Mr West had the property transmitted to himself as executor on 9 July 1984 but at no stage did he, as trustee, register any transfers to give effect to the will. 

[11]     On 6 July 1991, Mr West was adjudicated bankrupt in the High Court at Wanganui.  As a result his beneficial interest in the property vested in the Official Assignee pursuant to s42 of the Insolvency Act 1967.  The Official Assignee subsequently sought to dispose of Mr West’s interest in the Raetihi property and obtained an independent valuation of it.  The independent valuation valued the property at $32,000, which was less than the Government valuation but considered to be a more realistic figure given the existing real estate market and poor condition of the property.  Mr West’s sisters, who had expressed an interest in purchasing Mr West’s one-third share, were unable to meet one–third of that valuation figure, but after negotiations with the Official Assignee, agreed on 1 August 1994 to purchase Mr West’s share of the property for $8,000.  Mr West was discharged from bankruptcy on 13 June 1994 under s107(1) of the Insolvency Act and subsequently made an offer for his share of the property.  But by then it had been sold to his sisters for $8,000, which sum had been paid to the Official Assignee on 10 March 1995. 

[12]     Mr West refused to transfer to his sisters the share they had purchased.  In the end, they applied to the High Court to have the land vested in them as tenants in common in equal shares under s52 of the Trustee Act 1956. 

[13]     That application came before Doogue J in the High Court at Wanganui on 8 February 2000.  Doogue J gave judgment in their favour.  He made an order vesting the land in their names as tenants in common in equal shares. 

[14]     Mr West appealed to this court. 

[15]     On 5 April 2000, before that appeal was heard, he applied to the High Court registry for a stay of proceedings.  The “application” was not in a form which complied with the High Court Rules.  The “application” was dealt with swiftly by the High Court registry at Wanganui.  A deputy registrar immediately notified Mr West that the application “should be an interlocutory application, as advised to you earlier”.  The deputy registrar advised that the document filed was “insufficient” and did not comply with the rules.  Mr West was asked to forward an interlocutory application. 

[16]     Mr West replied to that letter, asking the court to supply a copy of the relevant High Court Rules.  There was no immediate response from the court to that letter.  There was, of course, no obligation on the court to supply Mr West with a copy of the relevant High Court Rules.  The Department did not and does not operate a free legal advice service.  Litigants may act for themselves, but, if they choose so to do, they cannot expect the Department for Courts (or its successor, the Ministry of Justice) to give them legal advice.  Parliament has devised a system for providing legal assistance to the indigent: that system was provided at that time under the Legal Services Act 1991 (now under the Legal Services Act 2000).  It is no part of the legal aid scheme that the Department for Courts should be providing legal advice. 

[17]     Mr West did nothing to fix up his application and to put it in proper form.  On 16 May 2000, the deputy registrar wrote to Mr West asking what the present position was.  Mr West then telephoned the deputy registrar on 18 May, advising that the “Certificate of Title has been changed”.  He said that he would pursue his appeal with the Court of Appeal.  The reference to the Certificate of Title being changed was a reference to the fact that title was transferred to his sisters on 14 April 2000. 

[18]     On 19 June, Mr West changed his mind and decided to pursue his stay of execution application.  Notwithstanding the fact that he had failed to put the document into correct form, the deputy registrar himself made some “running repairs” to the document and set the application down for hearing on 28 June 2000.  The court staff were under no obligation whatever to fix up Mr West’s document, but they did so nonetheless. 

[19]     We have not been told what the fate of Mr West’s application was.  We do note that on 19 July 2000 Neazor J granted by consent an injunction preventing any sale of the Raetihi property before the hearing of Mr West’s appeal in the Court of Appeal. 

[20]     Mr West’s appeal was heard in this court on 23 August 2000.  The court delivered its decision on 30 August 2000.  Mr West’s appeal was dismissed.  The dismissal of the appeal had nothing whatever to do with the fact that title to the property had been transferred to Mr West’s sisters back in April. 

[21]     On the above facts, there is no basis at all for Mr West’s complaint against court officials.  He filed an application in inappropriate form.  He was promptly told what was wrong with it.  He did nothing to fix up the problem.  The fact that court officers later relented and fixed the application themselves does not mean that they were under any sort of obligation, legal or otherwise, to render that service when the application was first filed. 

[22]     Further, it is not the fact of title registration on 14 April 2000 that is the cause of Mr West’s loss (if he has suffered a loss).  The fact that title has been transferred to his sisters does not figure at all in this court’s reasoning in rejecting the appeal from Doogue J’s decision. 

[23]     In any event, this court upheld Doogue J.  Even if Mr West had got a stay, that would not have prevented the transfer to the sisters going ahead immediately after this court’s decision on 30 August 2000.  Associate Judge Gendall and Heath J were entirely correct in their conclusion that, whatever be the basis for the liability of the Department alleged, no loss was suffered as a result of the delay in the hearing of the application for stay, as the order vesting the property in Mr West’s sisters was upheld by this court. 

[24]     There is, therefore, no basis either in law or on the facts for Mr West’s claim against the Department for Courts.  Heath J was entirely correct in affirming Associate Judge Gendall’s decision to strike out that claim. 

Result

[25]     Formally we dismiss Mr West’s approach to this court, as we have no jurisdiction, Mr West having failed to apply to the High Court for leave to appeal. 

[26]     We can informally advise, however, that we affirm Heath J’s decision.  In order to assist the parties not only on the pleadings (such as they are) but also on the facts as alleged by Mr West, we have dealt with this matter in a somewhat unorthodox way.  We were keen to get to the nub of this aspect of Mr West’s complaint, particularly when it became obvious to us that it was fundamentally misconceived. 

[27]     As earlier stated, Mr West’s claim against the Official Assignee and the Police may continue.  But it is quite unsatisfactory for the proceeding to proceed on the basis of the current “pleadings”.  We recommend that the High Court convene a case management conference as soon as possible so that the state of the pleadings can be addressed.  We strongly urge Mr West to obtain legal advice. 

[28]     There will be no order as to costs.  Mr West should not take this, however, as a precedent.  This application to us was entirely devoid of merit.  If in future

meritless applications or appeals were to be brought before this court, Mr West could expect a costs order against him at normal levels. 

Solicitors:
Appellant in Person
Crown Law, Wellington for Second Respondent