JAMES ROBERT REID V THE DISTRICT COURT AT DANNEVIRKE AND ANOR HC WN CIV 2008-485-1617 [2009] NZHC 1243 (14 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                              CIV 2008-485-1617

              UNDER                     the Judicature Act 1908, the Judicature
                                        Amendment
Act 1972, the Declaratory
                                        Judgments Act 1908, the Crimes Act 1961,
                     
                  the Summary Proceedings Act 1957, the
                                        District Court Rules 1992, the Oaths
and
                                        Declarations Act 1957 and the New
                                        Zealand Bill
of Rights Act 1990

              IN THE MATTER OF an Application for Review
              AND IN THE MATTER OF an Application for
Declarations
                                Invalidating the Dismissal of a Criminal
                                Prosecution

              BETWEEN                   JAMES ROBERT REID
                                        Applicant

              AND 
                     THE DISTRICT COURT AT
                                        DANNEVIRKE
                                  
     Third Respondent

              AND                       TROY DONALD GERBICH
                                        Fourth
Respondent


Hearing:      14 September 2009

Counsel:      Mr Reid in Person
              T Warburton for intended First and Second
Respondents
              D Consedine for Third Respondents
              M Dalmer for Fourth Respondent

Judgment:     14 September
2009


                  ORAL JUDGMENT OF RONALD YOUNG J



[1]    This is an application to join the Governor General and what is
described as
Her Majesty's New Zealand Government (Executive, Parliament, Judiciary) to these
proceedings as parties.


JAMES ROBERT
REID V THE DISTRICT COURT AT DANNEVIRKE AND ANOR HC WN CIV 2008-485-
1617 14 September 2009

[2]     These judicial review proceedings
originally challenged a decision by
Judge Dawson in the District Court to dismiss a private criminal prosecution brought
by Mr Reid
against the fourth respondent for theft.


[3]     Mr Reid now wishes to expand these proceedings seeking declarations that
the Governor
General breached his constitutional obligations by appointing an
incompetent lawyer (Judge N R Dawson) to judicial office.


[4]
    A declaration is sought that the Government breached its constitution
obligations by recommending to the Governor General the
appointment of an
incompetent lawyer (Judge Dawson) to judicial office.


[5]     The amended statement of claim does not support
the prayer for relief. The
only alleged failure by Judge Dawson is the claim that he engineered the dismissal of
the applicant's
criminal information by manipulating statute law.         By itself,
therefore, that would be a reason to refuse the application
by Mr Reid.


[6]     Secondly, the Government of New Zealand is not a body that can be sued in
law.


[7]     Thirdly, these proceedings
challenge by judicial review decisions of
Judge Dawson to dismiss an information. The presence of the intended first and
second respondents
has nothing to do with those allegations and do not arise out of
them.


[8]     Next, the Crown Proceedings Act identifies the method
by which the Crown
is to be made a party to the proceedings (s 14). Mr Reid's application and intended
parties do not comply with
that section.


[9]     The application to join the intended respondents therefore for the reasons
given is dismissed.


[10]   
The second application relates to discovery. Mr Reid seeks discovery of all
communication records between the District Court, and
counsel for Mr Gerbich (the

original defendant) the prosecution witness Mr Tweatyman and the Taurarua District
Council.


[11]
     Much of this material is likely to be available to Mr Reid by an application
under the High Court Rules to search the criminal
file. However it is possible that
there is some material that would not be on the Court file. While I doubt its
relevance to this case, or significance, and conscious as I am
that in judicial review
proceedings discovery is only given in limited circumstances, I think it is proper to
be as liberal as possible
with Mr Reid's application so that he has all potentially
relevant material with which to bring his case.


[12]      I therefore
make a limited order for discovery. The District Court is to
provide by way of discovery any record of any email, or record of any
telephone
contact between any employee of the District Court at Dannevirke and counsel for
Mr Gerbich, Mr Tweatyman or any employee
of the Tararua District Council
relating to the prosecution of Mr Gerbich for theft between the 5 June 2008 and
2 July 2008.    
That affidavit should be provided within twenty-eight days from
today's date.


[13]      In my previous minute I indicated that
Mr Reid must now exhaust all his
interlocutory applications.       I refer to paragraph [3](a) of my minute of
3 August 2009. The
time has now passed for any further interlocutory applications
in these proceedings.


[14]      The proceedings should now be set
down for hearing: I note the following
orders:


          a)     within twenty-eight days Mr Reid is to file any further affidavits
he
                 wishes;


          b)     within a further twenty-eight days after the expiry of Mr Reid's
                
twenty-eight days the respondents should file any further affidavits
                 they may wish;

        c)         after the
expiry of those two periods a one day fixture should be
                   allocated for the hearing of this case.


[15]    Finally,
in relation to an opposer to Mr Reid's proceedings, the Crown
indicate as is appropriate, that the District Court, now that I have
dismissed the
application to join the two respondents, will abide the decision of the Court. Of
course that is a decision that can
properly be reviewed at any time depending upon
any further issues raised by Mr Reid which might require a more active participation
by the District Court.


[16]    I raise this matter because Mr Gerbich indicated through his counsel that he
may wish to take no
further steps in these proceedings. As I have explained to
counsel today, Mr Gerbich is the natural opposer, he being the respondent
effected
by these proceedings. Counsel will therefore need to reconsider whether Mr Gerbich
does wish to participate. I encourage
him to do so, so that whoever hears this case
has the advantage of both Mr Reid's submissions and an opposer.


[17]    It is appropriate
that costs currently be reserved to await the final outcome of
this litigation.




                                            
           _____________________________
                                                                        Ronald Young J

Solicitors:
J R Reid, 2 Vogel Street, Woodville, email: [e-mail]
T Warburton, Crown Law Office, PO Box 2858, Wellington
email: [e-mail]
D M Consedine, Crown Law Office, PO Box 2858, Wellington
email: [e-mail]
M Dalmer, Barrister, Wellington, email: [e-mail]