White v Maubach
[2015] NZHC 2790
•11 November 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-3311 [2015] NZHC 2790
BETWEEN AMANDA ADELE WHITE
Plaintiff
AND
BERNIE MAUBACH First Defendant
JUTTA ROSEBLATT Second Defendant
JONO TODD Third Defendant
MARTYN BOYCE Fourth Defendant
BRYRE PATCHELL Non Party
Hearing: 4 November 2015 Appearances:
Plaintiff in Person
No appearance for First and Second DefendantsK M Muller and T P Westaway for Third and Fourth Defendants and Non Party
Judgment:
11 November 2015
JUDGMENT OF WHATA J
This judgment was delivered by Justice Whata on
11 November 2015 at 11.30 a.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Crown Law Office, Wellington
Copy to:
A A White (Plaintiff)
WHITE v MAUBACH [2015] NZHC 2790 [11 November 2015]
[1] Ms White claims, among other things, that Mr Todd (a bailiff and the third defendant) and Mr Boyce (a deputy registrar of the District Court and the fourth defendant) wrongly and improperly executed a distress warrant over her horse, La Raley, on behalf of Mr Maubach and Ms Rosenblatt (the first and second defendants). She seeks, among other things, damages for this alleged wrongdoing.
[2] I have before me an application on behalf of Mr Todd and Mr Boyce for security for costs. There is no dispute that Ms White is unable to pay costs. The central issue therefore is whether it is just in all of the circumstances to require security.
[3] At the conclusion of oral argument, I indicated to the parties that I would make an order for security with quantum to be finalised and reasons to follow. These are my reasons.
Background
The initial dispute
[4] In 2008 Ms White was embroiled in a dispute with Bernie Maubach and Jutta Rosenblatt about an amount allegedly owed by Ms White to them for the care of her horse, La Raley. The matter reached the Disputes Tribunal which issued a decision on 23 September 2011, making the following orders:
Pursuant to s 9(1) and (2)(a) of the Act, I direct that Mr Maubach and Ms Rosenblatt is to give Ms White possession of La Raley (the horse which Ms White has given to Mr Maubach and Ms Rosenblatt on or before 7 October
2010, which Ms White named La Raley) on or before 3 October 2011. In other words Mr Maubach and Ms Rosenblatt is to return the horse, La Raley
back to Ms White; and
Pursuant to s 9 of the Act, I direct that Ms White is to pay Mr Maubach and
Ms Rosenblatt the sum of $5,981.87 on or before 3 October 2011; and
If the parties fail to comply with this order they will be in breach of a Court order, and may be liable for penalty costs.
I trust that the parties will be able to make arrangements with each other regarding the return of the horse (Ms White will need to bear the costs of transportation) and the payment of the amount as per the order.
[5] It transpires that the horse was not returned to Ms White by 3 October 2011 and Ms White did not pay the stipulated amount by that date. It appears that Mr Maubach and Ms Rosenblatt offered to make the horse available for uplifting “upon payment of the amount due to them”. The same offer stipulates that if the horse is not uplifted by Monday 3 October 2011, then agistment charges of $23 per day will apply from then onwards.
The warrants
[6] Ms White filed an application for rehearing of the dispute and this was rejected in a decision dated 25 November 2011. On about 2 December 2011, Ms White then made applications for distress warrants against Mr Maubach and Ms Rosenblatt seeking the return of the horse. The deputy registrar at the Pukekohe District Court issued two warrants for recovery of the horse, one each against Mr Maubach and Ms Rosenblatt in favour of Ms White. The warrants were then sent to the Palmerston North District Court and were received by Mr Todd on 6 December
2011. Mr Todd’s manager is Mr Boyce.
[7] Mr Maubach and Ms Rosenblatt also took steps to enforce the Tribunal’s
orders at about the same time. They applied for distress warrants on 29 November
2011 and these were issued by the District Court at Pukekohe on 30 November 2011. Mr Maubach and Ms Rosenblatt also filed a form instructing Mr Todd (it appears on the advice of Mr Todd), to seize the horse.
Execution of the Maubach warrant.
[8] Mr Todd arranged for all the relevant warrants to be sent to the Palmerston North District Court so that he could consider all three warrants together before deciding how to proceed. Mr Todd says that after discussions with Mr Boyce and on acting on his understanding of the District Court’s Act 1947, he decided to execute Mr Maubach’s and Ms Rosenblatt’s warrant on the basis that it had been filed first
and took priority over Ms White’s warrants. Mr Todd then executed Mr Maubach’s
and Ms Rosenblatt’s warrant on the horse which was still in their possession.
[9] Mr Todd also says he made a formal demand for payment of $5,981.87 by telephone to Ms White prior to executing the warrant. Ms White says that Mr Todd claimed an additional sum based on a further Dispute Tribunal order that did not exist. Mr Todd disputes this. He also says that she said to him that she could not pay the amount owing. This is in turn disputed by Ms White who says she in fact offered to pay the judgment sum when she lodged her application for warrants.
[10] Mr Todd formally seized the horse but claims that he could not load it onto the transporter. He also claims that the vet who was present did not give his consent for the horse to travel because there was a risk not only to the horse, but to the people transporting the horse. Mr Todd then decided to leave the horse at Mr Maubach’s and Ms Rosenblatt’s property who in turn charged an agistment cost at
$23 per day to care for the horse. This cost was allocated the amount owing by Ms
White.
The claim by the DCT Trust
[11] At about this time Ms White claimed that the horse was in fact owned by a trust called the DCT Trust (the Trust) and in February the following year she commenced proceedings in the District Court alleging that the horse was owned by the Trust and not by her personally. This claim was brought against Mr Maubach and Ms Rosenblatt. The application was transferred to the Palmerston North District Court. Judge Cameron dismissed the application. In the course of his judgment he made the following comments:
[12] I consider that it is now much too late for Ms White to contend that it is her Trust, DCT Trust, which owns the horse, and that therefore the enforcement proceedings in relation to the orders of the Disputes Tribunal ought to be stayed or dismissed, and the horse returned to DCT Trust. Ms White made her claim to the Disputes Tribunal for the return of the horse on the basis that it was she who owned the horse. That claim was met by a counterclaim for grazing and training fees. At no stage did Ms White contend that any liability for those fees was a liability of DCT Trust and not her personally. Ms White had full opportunity to do so at any stage of the two day hearing which resulted in the orders. It was only in the second
application for re-hearing that Ms White raised the matter, arguing that this was a valid ground for a re-hearing. The argument was dismissed by the referee.
[13] Clearly the issue of whether Ms White or the DCT Trust was the owner of the horse ought to have been raised before the Disputes Tribunal at its first hearing. There was ample opportunity to do so, and it was highly relevant when considering the issue of liability to pay fees sought by Mr Maubach and Ms Rosenblatt. The decision not to do so was entirely Amanda White’s.
[14] In these circumstances, I consider that it is an abuse of process of the Court for Ms White’s Trust, the DCT Trust, to now seek to undermine the enforcement proceedings by claiming ownership of the horse. …
[12] The Judge went on to say:
[16] I also dismiss in its entirety the application dated 5 July 2012 filed by Ms White. I do not consider that Mr Maubach and Ms Rosenblatt have acted in contempt of Court. Had Ms White chosen to pay the money ordered by the Disputes Tribunal she would have been entitled to the return of the horse. She chose not to do so.
[13] The Judge then made an order under s 89(1) of the District Court’s Act 1947 that the horse La Raley be sold by tender and that the proceeds of sale be allocated and distributed in accordance with the provisions of that Act.
The sale of the horse
[14] The horse was sold by tender process. This involved advertisement of the sale of the horse in the New Zealand Horse and Pony Magazine. Mr Boyce managed this process having discussed how to do so with Mr Maubach and Ms Rosenblatt because of their experience in buying and selling horses and their knowledge of the horse in question.
[15] Four tenders were received and the highest tender was submitted by
Mr Maubach and Ms Rosenblatt for $17,000. Their tender was accepted on
4 October 2012. The cost of maintaining the horse totalled $10,751.40. That amount plus the debt sum of $5,981.87 was deducted from the $17,000. This left
$266.73 to be paid to Ms White.
[16] Ms White did not sit by idly after the sale of the horse. She commenced proceedings in the District Court seeking an injunction for the return of the horse La Raley and made a further application against the Ministry. The application for injunction was struck out by Judge G M Ross on 2 May 2013.1 The Judge found that the applicant was attempting to re-litigate the same matters upon which determinations have already been made by the Disputes Tribunal and by Judge Cameron. Indeed, the Judge went so far as to observe that the application for injunction is not to be treated as filed.2
[17] The application against the Ministry, including Mr Boyce and Mr Todd, was purportedly made under s 105 and pursuant to s 19 of the District Court’s Act 1947. Ms White’s application noted:
This matter involves the wrongful actions of Bailiff Todd to deliberately obstruct and void service of a Ministry of Justice distress warrant to wrongfully, and without legal excuse, advantage a party named Maubach to acquire ownership of a very valuable horse.
[18] The application then particularises the basis for this basic claim both against
Mr Todd and Mr Boyce.
[19] The essential claim for present purposes is highlighted in this application as follows:
BAILIFF Todd did:
…
·Prepared a file that contained erroneous documents that misled a District Court Judge into trusting both Distress warrants had been executed in accordance with ministry of Justice procedures and that White had been given an opportunity to pay, when in fact, Maubach had refused to accept the sum from White ordered by the Tribunal (evidenced in exhibit “A”) and that Bailiff Todd had obstructed service of a Ministry of Justice Distress Warrant that would have finally given A White the opportunity to pay only what the Tribunal had ordered. The District Court judge not being made aware of
1 Minute of Judge G M Ross, White v Maubach CIV-2011-057-000140, 2 May 2013.
2 At [8].
Maubach, Todd and Boyce’s conduct thereafter ordered, on 13
August 2012, that the horse to be sold by tender…
[20] Judge Ross did not dismiss this application but directed that the Registrar issue a summons in short form to reflect the circumstances of the case as alleged against each of the respondents. The Registrar was then directed to take the next step of initial date allocation and service of the summons on the respondents. The claim was, however, discontinued by Ms White on 23 October 2013.
Further proceedings against Maubach in District Court
[21] Ms White remained nevertheless unhappy with Mr Maubach and Ms Rosenblatt. She commenced proceedings against them in the District Court at Manukau. This was subject to a ruling from Judge C S Blackie, who determined, in short, that the filing of the proceedings for the District Court was a blatant attempt on the part of Ms White, as a dissatisfied litigant, to have her case reheard in the District Court because she disagreed with earlier Dispute Tribunal findings. He found that the principle of res judicata applied in the case and that to allow the claim to continue would be an abuse of court process.
[22] The judgment observes:3
[45] The respondent’s new statement of claim arises out of exactly the same factual situation as that which appeared before the Disputes Tribunal as long ago as September 2011. The opportunity for these matters to be heard was therefore before the Disputes Tribunal and as identified by the applicants in their submissions, they were largely considered by the Disputes Tribunal. Further, if they were not, there does need to be finality and as has been the case since Henderson,4 litigants are unable to subsequently raise matters that could have been raised in the original proceedings. In Shepherd v Disputes Tribunal,5 Fogarty J found that the applicant’s goal was to “re- litigate the whole dispute in front of another Referee in the hope of the dispute being decided more fully in her favour “third time round”. In my view, this is the ambition of the respondent in this case, except it is now sought that the District Court be the forum.
[23] The present proceeding is the next major step in this ongoing dispute.
3 Maubach & Anor v White DC CIV-2014-057-000035, 17 December 2014.
4 Henderson (1843) 3 HRE 100 at 114-115.
5 Shepherd v Disputes Tribunal HC Christchurch CIV-2003-409-001991, 27 February 2004.
[24] The Statement of Claim alleges that Mr Maubach and Ms Rosenblatt obtained La Raley by deception and in particular:
(a) They remain in contempt of Court by not releasing La Raley;
(b)Mr Maubach obstructed justice by removing the horse from his property on 10 December 2011;
(c) They knew of ought to have known that retaining the horse was an unlawful act; and
(d)They knew or ought to have known that the Tribunal order was final and yet retained unlawful possession of the horse.
[25] Specifically relevant to this application, Ms White claims that:
(a) Mr Todd caused loss via deception on the basis that he falsely claimed that the Maubach warrant had been served on the plaintiff when he cancelled her seizure warrant;
(b) Mr Boyce cause loss via deception in that he:
(i)Acted outside his jurisdiction when he claimed that the warrant had been served and executed on the plaintiff;
(ii)Knew of ought to have known that Mr Todd acted outside of his jurisdiction;
(iii) Supported Mr Todd’s instigation of a lien over the horse.
[26] Ms White also claims that their actions aided and abetted in theft in that: (a) At no time were the defendant’s actions lawful or legal;
(b)The Disputes Tribunal explicitly directed that the horse should be returned to the plaintiff; and
(c) The defendants acting together ensured that the horse was never returned to the plaintiff.
The evidence
[27] Messrs Todd and Boyce filed affidavits narrating their view of events, including the Disputes Tribunal process and outcome, discussion with Ms White about her warrants and associated costs, the Maubach execution process and subsequent events, including Ms White’s later proceedings and his response to the allegations made by Ms White against him. Relevantly Mr Todd states that:
(a) He received Ms White’s seizure warrant, was advised by her that Mr Maubach knew about it, and then notified Mr Maubach that he was going to execute it where upon he was advised of the Maubach warrant.
(b) He explained to Mr Maubach that he would have to complete an
“Instruction to Bailiff to Seize Specific Goods”.
(c) He advised Ms White of his discussion with Mr Maubach and that he wanted to obtain the Maubach warrant from the Pukekohe District Court before deciding what to do.
(d)He received the Maubach file and all the warrants, discussed them with Mr Boyce and decided to apply s 92 of the District Courts Act by analogy so that the priority between warrants is determined by the time of the delivery of the warrants to the Court.
(e) He decided to execute the Maubach warrant because it was first in time.
(f) The warrant was executed by him on 16 December 2011, accompanied by a vet. On the way there he spoke to Ms White and made a formal demand for full payment of $5981.87.
(g)He tried to load the horse onto the horse truck but the horse became distressed and the vet withdrew his consent to the transporting of the horse. It was left with Mr Maubach. A second attempt to seize the horse also failed.
(h)He denies cancelling Ms Whites warrant, noting that a different warrant was cancelled.
(i) He denies the allegations contained in the statement of claim. [28] Mr Boyce relevantly observes:
(a) He discussed the warrants with Mr Todd and agreed with his interpretation of s 92 and its application by analogy to the warrants.
(b)He was in charge of the sale of the horse, took advice from Mr Maubach on the best place to advertise and on the form of the advertisement. He ran a draft of it by a sales representative at New Zealand Horse & Pony.
(c) Mr Maubach and Ms Rosenblatt made the highest tender offer and he did not consider that selling to them contradicted the Tribunal’s decision.
(d)He managed the seizure costs and produced a spreadsheet of the costs which were effectively a daily charge of $23 from 16 December 2011 until 30 June 2012 and additional costs involved in the upkeep and training of the horse (including in accordance with an order by Judge Cameron).
(e) He denies the allegations in the statement of claim.
[29] Ms White filed an affidavit in support of an application for interim injunction against Mr Maubach and Ms Rosenblatt which provides among other things a document trail over the period up to 16 December 2011. She also filed affidavits in response to the affidavits of Messrs Todd and Boyce. I will not dwell on her injunction affidavit as it contains a number of statements concerning the actions of Mr Maubach and Ms Rosenblatt that are only relevant as background to this application.
[30] The affidavits in reply to the evidence of Messrs Todd and Boyce include a detailed narrative on purported inconsistencies and inaccuracies, including a critique of Mr Todd and Mr Boyce’s priority reasoning, together with her account of what happened between her and Mr Maubach and Ms Rosenblatt. Much of this is argument rather than evidence so I say no more about those aspects. It seems to me that key statements relating to Messrs Todd and Boyce include:
(a) Mr Boyce failed to mention that the total sum he was demanding including a figure in relation to a second Disputes Tribunal application that has not “even been heard or determined”.
(b)Mr Boyce and Mr Todd mislead Judge Cameron by their silence as to the handling of the warrants.
(c) The advertisement misled the public by stating that the La Raley was
not owned by Mr Maubach’s stud farm.
(d)Mr Boyce is misleading the Court when stating that the balance sheet that was sent to her was not accompanied by any spreadsheets and that the spreadsheets filed by Mr Boyce are new to her.
(e) The spreadsheets sent to her in August 2012 refer to “blue cells part of
another DT order” which did not exist.
(f) Some of the claimed costs are disputed.
(g)Mr Todd is misleading the Court about the cancellation of her warrant, referring to a copy of an email from Mr Burrage stating that it was cancelled by Mr Todd.
(h)She does not recall the phone call from Mr Todd on the day of the seizure of the horse but that he did say on other occasions that she would have to pay into the Court “a large sum in relation to Mr Maubach and Ms Rosenblatt’s Disputes Tribunal Application”.
(i)Mr Todd is misleading the Court about the conclusion of her proceedings against him, noting that she discontinued those proceedings and that her present claims have never been considered by a Court.
(j)Mr Todd informed her that a District Court judge had given him directions to execute the Maubach warrant.
(k)Mr Todd did not approach a Disputes Tribunal referee as he said he would in an email.
(l)Messrs Todd and Boyce misled Judge Cameron into believing that Mr Maubach and Ms Rosenblatt were victims of having to agist La Raley when they were in fact refusing to release him unless paid.
The frame
[31] Rule 5.45 of the High Court Rules provides the frame for the purposes of an order for security of costs namely:
Order for security of costs
(1) Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—
(a) ….
(b) that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff's proceeding.
(2) A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.
[32] As noted by Ms Muller, the principles in terms of security for costs are well settled: I must first determine whether there is reason to believe that Ms White is unable to pay costs and if so, then I need to consider whether to exercise my discretion to order security.6 I must also take care to avoid preventing otherwise legitimate claims from ventilation7 and, if security is imposed, the amount is a discretionary matter in terms of what I think is appropriate or fit in all of the circumstances.8
[33] Ms White admits that she will be unable to pay the third and fourth defendant’s costs in the event that they are successful. I turn then to consider whether I should exercise my discretion in favour of the grant.
The statutory immunities
[34] The starting point for my analysis must be the statutory immunities afforded to Mr Todd and to Mr Boyce as officers of the Court.
[35] Section 86(1) of the State Sector Act 1988 provides:
Public Service Chief Executives’ employees are immune from liability in civil proceedings for good faith actions or omissions in pursuance or intended pursuance of their duties, functions, or powers.
[36] Section 107 of the District Court’s Act 1947 also provides:
107 Actions against bailiffs acting under warrants
(1) No proceeding shall be commenced against any bailiff for anything done pursuant to a warrant issued under this Act, unless—
(a) a demand for inspection of the warrant and for a copy thereof is made or left at the office of the court by the party intending to bring the proceeding, or his solicitor or agent, in writing signed by the person making the demand; and
6 McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA); Nicon Ltd v Tower Insurance
Ltd [2015] NZHC 2132 at [11]; Lunn v Forth Estate Holdings (1999) 11 PRNZ 316.
7 McLachlan Ltd v MEL Network Ltd, above n 6 at [15].
8 McLachlan Ltd v MEL Network Ltd, above n 6; McGechan on Procedure (online looseleaf ed) at
[HR5.45.07].
(b) the bailiff refuses or neglects to comply with the demand within 6 days after it is made.
(2) If any proceeding is commenced against a bailiff in a case where such a demand has been made and not complied with, judgment shall be given for the bailiff if the warrant is produced or proved at the trial, notwithstanding any defect of jurisdiction or other irregularity in the warrant; but the officer who issued the warrant may be joined as a defendant in the proceeding, and if the officer is so joined and judgment is given against him the costs to be recovered by the plaintiff against him shall include such costs as the plaintiff is liable to pay to the bailiff.
[37] There is also s 6 of the Crown Proceedings Act 1950, which enables proceeding in tort against the Crown subject to the following exclusion:9
No proceeding shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him or her, or any responsibilities which he or she has in connection with the execution of the judicial process.
[38] Individually and in combination, these sections provide a very significant bulwark to the present claims against the third and fourth defendants. Prima facie, they cannot be held personally liable for steps taken in the bona fide execution of a warrant (save in circumstances that are not applicable – the failure to act on a
demand).10 Heron J, with respect, put it aptly in Scotson v Attorney-General:11
[The section] contemplates ancillary and related actions in the words “responsibilities which he has in connection with the execution of judicial process”. Those responsibilities must include seeing the seizure process through to the stage where the Registrar of the Court has possession of the property.
…
The reason behind such provisions is not difficult to understand. The enforcement of penalties imposed by the Courts is fundamental to the proper operation of the justice system. Such processes could be thwarted by actions for damages when officers undertook whatever was necessary to enforce penalties, in this case fines. The system would be significantly disabled if there was a risk of action for damages for attempting to recover property and in respect of arrests made in the course of that process.
9 Section 6(5).
10 As to the effect of these immunities see – Williams v AG HC Rotorua CIV-2010-463-634, 7 July
2011; Scotson v Attorney-General HC Palmerston North CP 2/289, 22 November 1990.
11 At 6.
Allegations of deception and dishonesty
[39] Ms White claims that Messrs Todd and Boyce acted dishonestly when discharging their functions. The pleaded acts of deception are noted at [25], as are the relevant points in the evidence at [30]. When I pressed Ms White in oral argument about these allegations, she identified the following matters:
(a) Mr Todd and Mr Boyce applied a time priority rule wrongly in terms of affording priority to the Maubach warrant;
(b)Mr Todd told her that a District Court Judge had directed him to serve the Maubach distress warrant (and is now lying about this);
(c) Mr Todd made a demand for funds in excess of the amount in fact owing (and is now lying about this);
(d)Mr Todd told her that he would speak to a referee prior to executing the Maubach warrant (and is now obfuscating about this); and
(e) Mr Todd left the horse with Mr Maubach (and so was colluding with him).
[40] As I have said elsewhere,12 the concept of bad faith is usually associated with dishonesty, misleading conduct, improper purpose and deliberate breach of duty. As the majority said in R v Williams:13
… the term “bad faith” is not apt in cases where the officers do not know they are acting illegally [and] where they might be acting for seems to them (mistakenly) to be a proper motive
[41] Turning to then to Ms White’s main claims:
(a) Ms White contends that Mr Todd was plainly wrong to apply s 92 of the District Courts Act to afford priority to the Maubach warrant. But
I see nothing in his priority reasoning to support an allegation of bad
12 Financial Markets Authority v Lacy [2015] NZHC 1114 at [72].
13 R v Williams [2007] 3 NZLR 207 (CA) at [116].
faith or dishonesty. If Mr Todd was wrong about this, it was simply an error of law.
(b)I understand that Mr Todd denies telling Ms White that he was acting under the order of a District Court Judge and/or that he demanded the payment of funds in excess of her debt as recorded by the Tribunal. I am not in a position to resolve whether Mr Todd is truthful about this, but there is nothing in the immediate or broader context to suggest to me that Mr Todd would lie about these matters or that he would have put those matters to her at the time. He had nothing to gain by misleading her about whether an order had come from a District Court Judge or to claim an excessive amount in terms of the debt payable. Ms White emphasised that schedules of costs include a reference to amounts owing pursuant to another Tribunal order. She says this corroborates her claim that Mr Todd was acting under the misapprehension about the amount owing and is now lying about it. But these schedules cover a period well beyond the date Mr Todd seized the horse and fall well short of showing that he in fact demanded a greater sum or is lying now.
(c) As to the alleged promise to discuss the matter with a Disputes Tribunal referee, I am advised by counsel that Mr Todd did endeavour to speak to a referee but was unable to do so. There is nothing obviously mala fides about this.
(d)Mr Todd also plausibly explains that he left the horse with Mr Maubach because of difficulties in removing the horse from the premises and that a veterinarian would not approve the movement of the horse, at least on the first occasion. Again there is nothing before me to suggest that he had or has anything to gain from lying about these matters.
[42] Moreover, my overall impression is Ms White is seeking to make very serious allegations of dishonesty based on little or no evidence to support such
claims. Indeed, much of her case on this aspect of her claim appears to depend on her interpretation of largely innocuous acts.14
Section 105 District Courts Act 1947
[43] For completeness I note that Ms White filed with the Court a memorandum addressing s 105 of the District Court Act. That section states:
105 Neglect by bailiffs
(1) Where a bailiff of any court, or any person acting under his authority, being employed to levy any execution against goods and chattels, loses the opportunity of levying the execution by reason of neglect, connivance, or omission, any party aggrieved thereby may complain to the Judge of that court.
(2) On any such complaint the Judge, if the neglect, connivance, or omission is proved to his satisfaction, shall order the bailiff to pay such damages as it appears that the complainant has sustained by reason thereof, not exceeding in any case the sum for which the execution issued.
[44] Plainly this section enables the lodgement with the District Court a complaint against a bailiff. Equally plainly it does not enable proceedings to be commenced in the High Court for damages (presumably in tort) in the face of the clear statutory immunities afforded to bailiffs. Indeed the legislative scheme, including above mentioned sections and s 105 of District Court Act, makes it plain that the proper vehicle for ventilating a claim against a bailiff is via the s 105 procedure.
[45] I also observe that Ms White has already commenced steps in the District Court pursuant to s 105 but discontinued those proceedings. While I express no final view about it, it would seem to me that Ms White is treading very close to an abuse
of process by seeking to now re-litigate that matter in this Court.
14 In saying this I am not finding that no error occurred. It is arguable that the Court was obliged to enforce the terms of the Disputes Tribunal order on its terms. Whether any relief flows from this if so is another issue again, especially given the subsequent involvement of the District Court – see [21] above.
Overall Assessment
[46] In these circumstances, it is just that an order for security for costs be made. Allegations of bad faith and now effectively perjury are very serious matters and yet there is only a weak evidential basis to make them. An officer of the Court, who enjoys clear statutory immunities from claims relating to the performance of his or her duties, ought not to have to face such unsubstantiated allegations without the prospect of recovering his or her costs in the litigation.
[47] Mr Todd and Mr Boyce have calculated their costs on a 2B basis to be in the order of $34,758. I have examined a schedule setting out those costs and it appears to be appropriate. I consider that they are entitled to have the protection afforded by security in relation to that sum. There shall be an order accordingly.
Application for non-party discovery
[48] The application for non-party discovery is adjourned pending the payment of security.
The first and second defendants
[49] The application for interim relief against the first and second defendant is also adjourned. Ms White has not affected personal service on either the first or second defendant. Rather, it appears from her affidavit evidence that she has only sent the pleading by email to Mr Maubach’s email address and by way of courier to his residential address. That, of course, falls short of the requirements for personal service as stated at r 6.1.
[50] I wish to record, nevertheless, my concern at the approach taken by the first and second defendants. The following email communication from Mr Maubach on
18 December 2014 was brought to my attention by Ms White:
(a) At 7:25pm: “We will not accept anything from you Miss White as it is callisfied (sic) as Spam! Do the correct thing and have any of your insanity propperly (sic) served on us.”
(b)At 7:55pm: “I just opened the file and saw the names you were getting at ……. It caused me to delete the shit you sent as I want to have a clean computer.”
[51] Mr Maubach’s attitude expressed in this correspondence is not only discourteous to Ms White, but unhelpful, and in my view unduly obstructive. Ms White must now incur the cost of retaining professional process servers.
[52] While it will be entirely a matter for the judge assigned to this case, I wish to record that unless there is a sufficient explanation for Mr Maubach’s obstructiveness, an order for costs against the first and second defendant in relation to service would appear to be appropriate.
Outcome
[53] There shall be an order for security for costs in respect of the third and fourth defendants in the sum of $34,758.
[54] The application for non-party discovery is adjourned pending the payment in of this sum.
[55] The application of for interim injunction and relief is adjourned pending personal service of the pleadings on the first and second defendants.
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