Williams v Green

[2013] NZHC 1780

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2010-463-000635 [2013] NZHC 1780

BETWEEN	RONALD KEVIN WILLIAMS Plaintiff
AND	SUSAN DAPHNE GREEN Defendant

CIV 2010-463-000636

BETWEEN

RONALD KEVIN WILLIAMS Plaintiff

AND

JAMES KEITH ARMSTRONG, GHRISLAINE EVA TANGNEY and MARK TANGNEY

Defendants

Hearing:	18 June and 16 July 2013
Appearances:	R O Gowing for the Plaintiff [635] M McGhie for the Defendant [635] Mr Williams in person
Judgment:	16 July 2013

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

16 July 13 at 4:30pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

RONALD KEVIN WILLIAMS v SUSAN DAPHNE GREEN [2013] NZHC 1780 [16 July 2013]

Strike out application

[1]      On  6  November  2012  Ms  Green  filed  an  application  to  strike  out  Mr Williams’ claim against her.  The grounds for the application were that Mr Williams had falsified evidence filed with the Court.  Mr Williams asserts that following his departure from Ms Green’s property (when he was arrested and subsequently imprisoned for a serious assault upon her) that Ms Green sold his substantial collection of chattels – mostly tools of trade – by a garage sale.

[2]      On 12 September 2012 Mr Williams filed an affidavit of documents dated wherein he listed the property of his he says was removed from Ms Green’s property without his authority.  Attached to his affidavit was a copy of a page of classified advertisements copied from the Opotiki News newspaper.   That advertisement advertised a garage sale at 683 SH2 to be held on October, 15 at 9am.

[3]      The  copied  advertisement  does  not  show  its  date  of  publication.    Other evidence indicates it was published on 13 October 2005.

[4]      The property at 683 SH2 was Ms Green’s property at that time, the same property from which Mr Williams was taken at the time of his arrest three months earlier.

[5]      The strike out application proceeded on grounds:

(a)	That there was no evidence the chattels that Mr Williams listed were ever in his possession.
(b)	Mr Williams had altered a newspaper advertisement to make it seem as if Ms Green had advertised Mr Williams’ property for sale at her
house.
[6]	The	original advertisement in the Opotiki News referred to a garage sale at

1506 SH2.  This meant that the copy attached to Mr Williams’ affidavit had been

altered.

[7]      A hearing upon the strike out application was scheduled before me on 18

June 2013. When making that arrangement I indicated to Mr Williams that the Court would consider whether Mr Williams other proceeding, against a Mr Armstrong and Mr  and  Mrs  Tangney  [CIV  2010-463-636]  (the  Tangney  claim),  ought  also  be subject to argument concerning whether or not it should be struck out.

[8]      It  is  in  connection  with  the strike out  application  of Ms  Green  that  Mr Williams instructed Mr Gowing to appear for him.  Mr Williams retained his own counsel in respect of the Tangney claim.

[9]      On 13 June 2012 the Court received two affidavits filed on behalf of Ms Green.   Both were from employees at the Opotiki News.  That from Ms Hutchins deposes that she was working at the front desk of the newspaper office when Mr Williams called in during August 2012 and asked to view back copies of the Opotiki News around the month of October 2005.  A three-monthly volume of copies was provided to Mr Williams who having viewed it, requested a copy of page 13 of the Opotiki News of October, 13 2005.   Ms Hutchins handed the photocopy to Mr Williams who paid a small fee charged for the service.

[10]     Ms Hutchins attaches a true copy of page 13 of the Opotiki News of October

13, 2005 to her affidavit.  It shows that the address of the garage sale was 1506 SH2, not 683 SH2.

[11]     The second affidavit was of Ms Shaw an administration manager for the Opotiki News.  She too recalls in August 2012 Mr Williams coming to the Opotiki News office and after viewing a bound copy of back copies of the newspaper he requested a copy of page 13 from the Opotiki News dated October 13, 2005.  She recalls that photocopy being handed to Mr Williams.

[12]     Copies of these two affidavits were handed to Mr Gowing only a few minutes before the hearing of 18 June 2013 began.  The hearing proceeded after Mr Gowing was given a brief opportunity to consult with Mr Williams regarding the contents of those  affidavits.    I informed  counsel  that  I wish  to  have a discussion  with  Mr Williams  regarding  first,  his  claim  against  the  Tangneys.    That  claim  concerns

circumstances which precede those that are subject of Ms Green’s claim.   To an extent the claims are linked because both largely focus upon his chattels,  much of which appears to comprise engineering tools and equipment, but as well sporting gear and equipment, furnishings and personal belongings.  The claim against the Tangneys is for $10M.  That against Ms Green is for $5M.  The claims are for “damages to property, personal and exemplary and punitive damages”.

Background

[13]     The separate claims were filed by Mr Williams on 22 July 2010.

[14]    Until 1999 Mr Williams occupied the Tangney property which had been purchased by a Mr Armstrong.  Mr Williams was evicted from the property in 1999. The Tangneys claim that all of Mr Williams’ property was collected and transported to Opotiki where Mr Williams had arranged for its storage there.

[15]     An issue arose in the year 2000 when a bailiff seized a significant number of

Mr Williams’ chattels following the entry of a judgment against him.

[16]     Then in August 2004 he moved onto the rural residential property of Ms Green near Opotiki.  He and his chattels occupied premises in a remote corner of the property until July 2005 when he was arrested and taken from the property.

[17]     A short time later Mr Williams was allowed Police supervised access to the property to arrange recovery of as much of his chattels and other property that could be managed in those circumstances.

[18]     Mr Williams claims that a lot of his property was left behind.   It is Ms

Green’s position that Mr Williams took all of his property with him.

[19]     In overview Mr Williams’ claims focus upon his chattels and other property although the Tangney dispute as a wider dimension for in that case said he had contributed to the purchase of the property by Mr Armstrong.

[20]    The claim of a contribution to the purchase of the Tangney property was substantially upheld in Mr Williams’ proceeding initiated in the Opotiki District Court in 2005.  That claim was heard in August 2008.   Judge Rollo’s decision awarded judgment to Mr Williams in the sum of $99,140.91 after deduction of transport costs awarded on the counterclaim against Mr Williams.   The judgment was in large part confined to reimbursing Mr Williams for his contributions to the purchase and establishment of the Tangney property.  Judgment was ordered against Mr Armstrong alone.   The claim against the Tangneys was dismissed.   Transport costs of $3,572.54 were awarded against Mr Williams as compensation for the time and cost involved in transporting Mr Williams’ chattels and other property to him following his eviction from the property.

[21]    The judgment of Judge Rollo refers to the fact that there had, in the years preceding the Court hearing, been sustained efforts by the parties and their lawyers to promote a settlement of all issues.  Judge Rollo also noted that a High Court proceeding brought by Mr Williams in 2001 and in which he claimed damages of

$3M, had been discontinued.

[22]     The Court enquired of Mr Williams of the reasons for the earlier High Court proceeding being discontinued.  He said it occurred when the parties negotiated an agreement by which he was to be paid $125,000.  He said that within a week of that agreement Mr Armstrong and the Tangneys reneged on their promise of payment. Mr Williams advised this Court that the payment of $125,000 was “supposed to wrap everything up” and that if they had paid that sum that would have been an end to all of their issues and that “we wouldn’t be here today”.  He acknowledged that his current proceedings against the Tangneys in this Court were a “rerun” of the arguments upon which a settlement had been negotiated.

[23]     Unfortunately it appears that within a few weeks of the delivery of Judge Rollo’s judgment Mr Armstrong died and in that outcome Mr Williams has not received any part of the judgment given his favour.

The current proceedings

[24]     Earlier on in this proceeding the Court expressed concerns to Mr Williams about the adequacy of the pleadings in both claims.  The Court indicated a need for repleading noting that in the Tangney claim Mr Williams’ pleadings were “little short of a mess”.  After Mr Williams filed amended pleadings the Court commented that those were more amenable for consideration.  The amendment filed in relation to the Tangney  claim  made  it  clear  that  Mr  Williams  wanted  compensation  for  his “wrongful eviction” in 1999.

[25]     Concerning the Green claim Mr Williams noted in a memorandum to the Court that “if adequate property is returned... then a notice of discontinuance [would] be filed”.

[26]     At the Court’s insistence Mr Williams has provided lengthy lists of chattels and other property which the Court estimates details between 500 and 1000 such items.   Mr Williams has provided his own assessment of their value.  There is no other evidence of valuation or verifying the extent of the property he says has been taken from him.

[27]     In relation to the Green claim there is no direct evidence of any sale of Mr

Williams’ property whilst he spent four and half years in prison.

[28]     The two proceedings appear to have been embarked upon by Mr Williams shortly after his release from prison.  It is following the encouragement given by the Court to Mr Williams to provide evidence to support his claims that he has provided by his affidavit of 15 September 2012 the copy of the newspaper advertisement of a garage sale.

[29]     In his response to suggestions he may have falsified a copy of a newspaper advertisement Mr Williams has deposed:

I say that I have not abused the Court process and that I disclosed a classified ad of the Opotiki News of October 2005 in my affidavit of documents believing  it  to  be  a  true  copy  of  the  advertisement  placed  with  that

newspaper by the applicant for the purpose of disposing of some or all of my chattels that were left in her possession and control after 4 July 2005.

[30]     The Court does not think that Mr Williams’ explanation goes far enough.  The newspaper advertisement was clearly interfered with.  As proof of his claim that Ms Green sold his property, it is quite unacceptable.  Perhaps Ms Williams did not clear from the property all of his possessions that he was, with Policy supervision, given access to for the purpose of removing them.  But, the Court was left with very little evidence of what chattels he did not recover.

[31]     In both proceedings the Court is invited to rely upon Mr Williams' largely unsupported recollections and calculations of the value of chattels he says he owned and which he says he has lost whilst those were in the possession of others.   The Court is without other proof about the extent of those chattels, much less their value. It appears from the judgment of Judge Rollo that there was significant property which, a considerable cost, was removed after Mr Williams was evicted from the Armstrong/Tangney property.

[32]     The evidence of what chattels were then relocated on Ms Green’s property or

their property is even less clear.

[33]     It appears that the present claims against Armstrong/Tangney are well out of time for consideration.    In  as  much as  the present  claim  alleges  contractual  or tortuous  breaches  it  is  well  outside  the  of  the  six  year  Limitation  Act  1950 provisions.  To the extent that the present claim relies upon equitable relief it too comes too late.  Mr Williams has already pursued these claims in a proceeding filed in the High Court in 2001.  As Mr Williams acknowledged the present claim against Armstrong/Tangney is a “re-run” and that had he been paid the sum negotiated at that time he would not have filed the present proceeding.   Therefore, the Armstrong/Tangney claim is a relitigation of proceedings which have already been resolved albeit by an agreement which he says was reneged upon.  At that time his recourse was to file proceedings to enforce an agreement.

[34]     The claim against Ms Green is supported by Mr Williams’ calculations of the

value of property he says was delivered to those premises.  It is clear that Ms Green

has no means to dispute Mr Williams’ claims of what it is he said of his chattels were delivered there.   Again however there is no independence about the extent or the value of that property.  This claim has some connection to the circumstances of Mr Williams’ departure from that property.  The clear evidence was that he was given an opportunity to remove such of his chattels as he could.  He complains he could not remove as much as he intended.  He blames Ms Green for disposing of that which he left behind.  His claim that Ms Green later sold property of his is only supported by a falsified newspaper advertisement.

[35]     Mr Williams has used the processes of Court proceedings to relitigate issues that have been agreed or otherwise resolved by Court decisions.   In the Tangneys case his claim was filed about 11 years after that time that gave rise to this claim. The present proceeding was filed 9 years after an initial proceeding was filed in the High Court but which was discontinued in connection with issues relating to his alleged unlawful eviction from the Armstrong/Tangney property in 1999 which have now been determined by the judgment of Judge Rollo.  Although that judgment did not deal with Mr Williams claims for the loss of his chattels – at least not directly – it is reasonable for the Court to infer, in the circumstances acknowledged by the successful  counterclaim  against  Mr  Williams,  that  most  and  likely  all  of  Mr Williams' chattels and other related property were returned to him.

[36]     In relation to the Green claim a reasonable inference to be drawn from the evidence provided by Mr Williams is that he falsified claims of the sale of his property (the extent of which is unclear).   Even in that case he was given an opportunity to recover such of his chattels and property that he could.

[37]     It is clear from what the Court has heard from the Tangneys and from Ms Green that they are very distressed by the issue of these proceedings and the consequences that have ensued.  In the round of all of those considerations Mr Williams’ proceedings and associated actions are an abuse of process.  Even if he did not intend it, his actions amount to a misuse of Court processes.  However much he may believe it otherwise, there is no genuine cause in the proceedings he has issued. Also he has falsified evidence in that cause.

[38]     At the conclusion of the hearing of the strike out applications on 18 June

2013 I adjourned that hearing until today to provide Mr Williams and his counsel with an opportunity to provide affidavits in response to those from Ms Hutchins and Ms Shaw, employees of the Opotiki News – the import of which appeared to support inferences of falsification of evidence by Mr Williams.  Because those affidavits had only been provided immediately prior to the 18 June 2013 hearing I considered Mr Williams ought to have an opportunity to respond to them.

[39]    Also and during the hearing on 18 June 2013 Mr Williams volunteered information to the effect that after he had been arrested and taken from Ms Green’s property at 1506 SH2, Ms Green within months thereafter moved out of her property at 683 SH2 and took up residence at 1506 SH2.

[40]     Mr Williams has not since 18 June 2013 filed any further affidavit.   The Court has however received an affidavit from Ms Green dated 10 July 2013.  She deposes, inter alia:

(a)      She was assaulted by Mr Williams in July 2005 following which she found it difficult to remain there.

(b)She did not move from 683 SH2 until around March 2006 when she moved in with friends who lived in Goring Street, Opotiki.

(c)      She stayed with those friends for a couple of months and then rented her own apartment in King Street, Opotiki where she stayed for about a year.

(d)      She then moved to the beach where she rents a small flat.

(e)      She did not move from 683 SH2 to 1506 SH2 and confirmed she have never lived at 1506 SH2.

Conclusion

[41]     It is appropriate that both claims be struck out for the reason that they are an

abuse of the Court’s process.

[42]     Costs upon the claim against Ms Green are fixed on a 2B basis together with disbursements approved by the Court.

Associate Judge Christiansen