Young v Ross

[2023] NZHC 2795

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2023-441-052 [2023] NZHC 2795

BETWEEN

PHILIP ROGER YOUNG

First Applicant

AND

PROGRESSIVE ACCOUNTANTS LIMITED

Second Applicant

AND

PHILIP NICHOLAS ROSS

First Respondent

AND

DISTRICT COURT OF NEW ZEALAND

Second Respondent

AND

HIGH COURT OF NEW ZEALAND

Third Respondent

Hearing:	On the papers.
Counsel:	P R Young self-represented for First and Second Applicants
Judgment:	5 October 2023

JUDGMENT OF GRICE J

[1]        Mr Young, the first applicant, has filed a document entitled “application for leave for judicial reviews of interlocutory decisions” dated 25 September 2023. That document is in fact in the format of and executed as an affidavit. It attaches a number of “exhibits”.

[2]       The Registrar has referred this matter to me as duty Judge for consideration under r 5.35A of the High Court Rules 2016 (the Rules). Rule 5.35A permits the

YOUNG v ROSS [2023] NZHC 2795 [5 October 2023]

Registrar to refer a proceeding to a Judge where there is cause for concern that the proceeding amounts to an abuse of the Court’s process.

[3]       The “judicial review” document does not comply with the Rules in a number of respects. It appears to be a judicial review but also claims damages and various remedies which are inappropriate remedies in judicial review. That includes claims that the respondent and Crown should jointly pay half each for “wasting hours applicants time and resources as per S43 Contract and Commercial Law Act 2017 at the same hourly rate as Judge KD Kelly struck” (sic).

[4]       The claim in the form in which it has been filed cannot proceed. However, it is not necessary to consider the defects in the claim in detail, as Mr Young’s “judicial review” faces a more fundamental difficulty.

[5]       The application made by Mr Young stems from a District Court decision of Judge Kelly dated 18 November 2021, in which the  Judge struck out a  claim by   Mr Young against a lawyer in Napier. In a further decision dated 19 July 2022, Judge Kelly struck out a claim made by Progressive Accountants Ltd (Mr Young’s accounting firm and the second applicant) against Mr Ross. These decisions were appealed  to  the  High  Court,  which  dismissed  the  appeal  in   a  judgment   of   17 February 2023.1 The Court of Appeal refused leave to bring a second appeal.2 The High Court dismissed an application for leave to appeal.3

[6]       Mr Young, having exhausted all his rights of appeal from the decision of Judge Kelly, now seeks to judicially review the decisions of Judge Kelly, and the decisions of Churchman J dismissing the appeals.

[7]Rule 5.35B(2)(a) of the Rules provides:

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—

1      Young v Ross [2023] NZHC 2012.

2      Young v Ross [2023] NZCA 411.

3      Young v Ross [2023] NZHC 750.

(a)the proceeding be struck out:

…

[8]       Mr Young and Progressive Accountants Ltd have had their claims dealt with conclusively and exhausted all their rights of appeal. To attempt to resurrect their claims in order to relitigate them by way of judicial review is an abuse of process. Accordingly, I have no hesitation in striking out the claim on my own initiative.

[9]       Rule 5.35B(3) of the Rules requires me to advise the applicants of their right to appeal to the Court of Appeal against my decision. Both the applicants are formally notified of that right.

[10]The named respondents are to be served with a copy of this judgment.

Grice J