O'Neill v Bridgman [2020] NZCA 460 (30 September 2020)

Last Updated: 6 October 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA229/2019 [2020] NZCA 460

	BETWEEN	CHRISTOPHER JOSEPH O’NEILL Appellant
	AND	ANDREW BRIDGMAN First Respondent TANIA OTT Second Respondent CARL CRAFAR Third Respondent

Hearing:	31 August 2020
Court:	Kós P, Wylie and Muir JJ
Counsel:	Appellant in person J B Watson for First, Second and Third Respondents
Judgment:	30 September 2020 at 9 am

JUDGMENT OF THE COURT

1. The appeal is dismissed.
2. The appellant must pay the respondents’ costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

• [1] The appellant — Christopher O’Neill — appeals a decision given in the High Court at Wellington by Thomas J.^[1] The Judge struck out a statement of claim filed by Mr O’Neill, holding that it was an abuse of the Court’s processes and that it did not disclose a reasonably arguable cause of action.

Background

• [2] Mr O’Neill is a prolific litigant. His statement of claim at issue in this appeal seeks to review actions (and inactions) attributed to the first respondent, Andrew Bridgman, who was at all material times the Secretary for Justice, the second respondent, Tania Ott, who was a senior officer in the Ministry of Justice and the third respondent, Carl Crafar, also a senior officer in the Ministry of Justice.
• [3] The statement of claim is relatively brief. Mr O’Neill alleges that the respondents either individually or collectively failed to discharge their respective duties, by disregarding or failing to action complaints he had made against various registrars, deputy registrars and other court staff (collectively court officers). The claims made are extravagant — that he has been denied justice; that the respondents have acted to pervert the course of justice; that Ms Ott belittled and bullied him; that Mr Crafar acted criminally to pervert justice and that Mr Crafar conspired with Mr Bridgman and Ms Ott to this end.
• [4] On 16 August 2018, Crown Law, on behalf of the respondents, sent a letter to Mr O’Neill noting that, in their view, the statement of claim did not fairly inform the respondents of the issues they had to meet and did not comply with rr 5.26 and 5.27 of the High Court Rules 2016. Copies of these rules were sent to Mr O’Neill. He was invited to replead his claim.
• [5] On 9 October 2018, following a case management conference, Thomas J issued a minute in which she noted “[a]s explained to Mr O’Neill, it is crucial that the exact nature of his claim is clarified before any further steps in these proceedings are taken.”^[2] The Judge adjourned the case management conference to give Mr O’Neill the opportunity to clarify his pleadings.
• [6] Following this minute, Crown Law wrote again to Mr O’Neill, asking him to identify clearly each and every decision of the respondents that he challenged and to incorporate this information into an amended statement of claim.
• [7] On 21 October 2018, Mr O’Neill filed a handwritten memorandum which he headed “Clarification (supplied though not necessary)”. The memorandum listed 29 complaints, which Mr O’Neill asserted the respondents had either not investigated or not investigated sufficiently. It also foreshadowed that a 30th complaint was pending. As Thomas J recorded in the decision under appeal, the complaints listed can be grouped into nine broad categories:^[3]

(a) cases Mr O’Neill alleges were interfered with, for example, files he says were lost or documents which were not provided to the Judge;

(b) treatment Mr O’Neill says was prejudicial, including delays in providing transcripts and failures to action his requests in a timely manner;

(c) various court officers refusing to accept Mr O’Neill’s documents for filing;

(d) interference with documents — Mr O’Neill goes so far as to allege forgery;

(e) refusals by court officers to recuse themselves from dealing with Mr O’Neill and failing to advise judges of their conflicts of interests;

(f) failures by Court officers to respond to Mr O’Neill’s complaints;

(g) claims made against Mr O’Neill which he says were false;

(h) Mr Bridgman’s failure to take action on Mr O’Neill’s various complaints; and

(i) Ms Ott’s interference with Mr Bridgman’s role.

• [8] Mr O’Neill posed various questions for the High Court. He also filed a 256 page bundle of documents. Very broadly, the documents comprise of the complaints about court officers, most of which were directed to Mr Bridgman. They also contained responses Mr O’Neill has received in relation to his complaints. The responses explained that Mr O’Neill could have a decision made by a court officer reviewed by a judge, and emphasised that under New Zealand’s constitutional system, court proceedings and judicial and quasi-judicial decisions, including decisions made by court officers, are made independently from Ministers and civil servants.
• [9] The respondents considered that Mr O’Neill’s memorandum and the other materials filed did not advance matters. On 30 November 2018, they filed an application seeking to strike out the statement of claim and to dismiss the proceeding.
• [10] Mr O’Neill filed a notice of opposition on 7 December 2018 (together with a memorandum “seeking recusement [sic] of certain judicial officers”), with supporting documents. The grounds on which the strike out application was opposed were inter alia that the Crown was attempting to deny him access to justice, that the strike out application was frivolous and that the matters raised in the statement of claim “[go] to the very heart of democracy and must be heard”.

The High Court decision

• [11] The Judge summarised the factual background, noting that both Ms Ott and Mr Crafar had responded to many of Mr O’Neill’s complaints. She also noted that one of the registrars complained of wrote on three separate occasions to Mr O’Neill, explaining why documents he had sought to file had been rejected, referring him to the relevant requirements in the High Court Rules and drawing his attention to r 2.11. The Judge noted that on 4 July 2018, Woodhouse J issued a minute following Mr O’Neill’s fourth attempt to file documents which had already been rejected for non-compliance.^[4] Woodhouse J confirmed the Registrar’s decision and further directed the Registrar to reject any further documents Mr O’Neill might seek to file which did not comply with the relevant rules. She noted that Mr O’Neill maintained that this minute is a forgery or a product of corruption or laziness. The Judge also referred to a minute issued by Venning J which in turn referred to Woodhouse J’s minute and subsequent attempts by Mr O’Neill to file the documents.^[5] Venning J had concluded that the Registrar had been correct to reject Mr O’Neill’s documents and dismissed his purported application seeking to review the Registrar’s decision.^[6]
• [12] The Judge referred to the respondents’ strike out application, and noted the respective submissions advanced by the parties. She recited relevant principles relating to strike out applications. She then turned to analyse the application. She summarised the requirements of rr 5.17, 5.26 and 5.27 of the High Court Rules, and noted that the function of pleadings is to clarify and define the issues for the court, as well as to inform the opposite party in preparation for trial. She acknowledged that a degree of latitude can be extended to lay litigants, but observed that such latitude does not entitle lay litigants to ignore the High Court Rules completely. The Judge considered that Mr O’Neill’s statement of claim was defective; it mixed allegations of fact and law; it did not identify a legal basis for the claims or even the central facts on which Mr O’Neill relies. The supplementary materials filed by Mr O’Neill contained a large number of irrelevant and objectionable documents and, in the Judge’s view, it was unreasonable to expect the respondents to sift through the material in order to understand Mr O’Neill’s claim. She noted that Mr O’Neill had had the opportunity to refine his pleadings, but that they were no clearer as a result. She accepted the respondents’ submission that the statement of claim was unlikely to improve.^[7]
• [13] The Judge referred to r 2.11 of the High Court Rules, which permits an affected party to apply to a judge by interlocutory application for review of a registrar’s exercise of the jurisdiction vested in them, including a registrar’s refusal to accept documents for filing. She noted that the court also has an inherent jurisdiction to direct and supervise registrars in relation to the business of the court. She observed that Mr O’Neill had already sought review of certain decisions, and that to that extent, the proceeding constituted a collateral attack on the decisions of High Court judges, which had upheld the decisions of deputy registrars. She commented that Mr O’Neill made allegations of corruption, perversion of justice and criminality on the part of judges and court officers, but that there was simply no evidential basis for these assertions. The Judge had no difficulty concluding that the statement of claim was an abuse of process.^[8]
• [14] The Judge also held that there was no reasonably arguable cause of action. The position of the Secretary for Justice is part of the executive, and not the judicial arm of government, and the complaints made by Mr O’Neill involve the court’s process. She recorded that the respondents had no power, either express or implied, to investigate the decisions Mr O’Neill took issue with. She considered that the claim had no prospect of success, and that the respondents’ refusal to embark upon an investigation in respect of Mr O’Neill’s complaints could not constitute a reviewable error by them.^[9]

Submissions

• [15] Mr O’Neill’s submissions — both written and oral — were difficult to follow. Broadly he alleged that he laid a number of complaints about court officers, and that the complaints system was inadequate to deal with them. He said that the complaints were laid with Mr Bridgman, as the Secretary for Justice, and that they were not investigated. He argued that what he referred to as “issues of corruption” must be heard, and that the strike out should therefore be overturned. He asserted that there is no other avenue for the resolution of his complaints. He took issue with Thomas J’s judgment and complained that throughout, she attacked him when he was simply “the bearer of an inconvenient truth, consistent with the Government’s view that our justice system is broken”.
• [16] Mr Watson, for the respondents, submitted that the Judge correctly applied settled law, in an orthodox fashion, to a statement of claim which is irremediably defective. He argued that it does not identify either the legal basis for the claim or the central facts relied upon and that it is, in any event, misconceived because the doctrine of the separation of powers does not permit the respondents, as members of the executive, to discipline court officers for decisions made by them in the discharge of functions associated with the judicial process.

Analysis

• [17] Under r 15.1 of the High Court Rules, the court can strike out all or any part of a pleading. Relevantly, the rule provides as follows:

15.1 Dismissing or staying all or part of proceeding

(1) The court may strike out all or part of a pleading if it—

(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

...

(c) is frivolous or vexatious; or

(d) is otherwise an abuse of the process of the court.

...

• [18] The established criteria for strike out were summarised by this Court in Attorney-General v Prince.^[10] They are as follows:

(a) pleaded facts, whether or not admitted, are assumed to be true. This does not however extend to pleaded allegations which are entirely speculative and without foundation;^[11]

(b) the cause(s) of action must be clearly untenable. The Court must be certain that it (they) cannot succeed;

(c) the jurisdiction is to be exercised sparingly and only in clear cases;

(d) the jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument; and

(e) the Courts should be slow to strike out a claim in any developing area of the law, particularly where a duty of care is alleged in a new situation.

The threshold for a strike out is high, and the Court should consider not only the basis on which the claim is pleaded but also any other basis on which the claim might be pleaded.^[12]

• [19] Here, the statement of claim was struck out for two core reasons — first, it was an abuse of process and secondly, it did not disclose a reasonably arguable cause of action. Mr O’Neill in his submissions did not point to any error in Thomas J’s judgment, and we do not consider that there was any error.

Abuse of process

• [20] We too find the proceedings are an abuse of process.
• [21] Rule 5.26 of the High Court Rules requires that a statement of claim must show the general nature of a plaintiff’s claim to the relief sought, and that it give sufficient particulars of time, place, amounts, names of persons, nature and dates of instruments and other circumstances to inform the court and the party or parties against whom relief is sought of the plaintiff’s cause of action. Under r 5.27, a statement of claim must conclude by specifying the relief or remedy sought. In short, pleadings must be sufficiently detailed to state a clear issue and inform the opposite party of the case to be met.^[13] A statement of claim must not only inform the court and other parties of the facts relevant to the claim, but also inform them of the legal basis of the plaintiff’s claim for relief in the clearest terms.^[14]
• [22] While the High Court Rules are not applied to lay litigants with the rigour which is generally considered appropriate for legal practitioners,^[15] there is still a core level of clarity which pleadings must meet, to ensure that opposing parties are fairly informed, can meaningfully respond to the allegations made, and can prepare for hearing.
• [23] This clarity is patently missing in Mr O’Neill’s statement of claim and in his supplementary materials. He seeks to challenge the respondents’ failure to investigate complaints he made about court officers for making certain decisions — primarily refusing to accept documents he has sought to file. The statement of claim (and the bundle of materials) contains allegations of corruption, perversion of justice and criminality on the part of judges and court officers. Mr O’Neill sets out no factual basis for any of these allegations. A litigant who makes allegations of this kind (which would otherwise be defamatory) has the benefit of privilege, but with that privilege comes the concomitant responsibility to put before the court the factual basis for such serious allegations. Mr O’Neill has not discharged that responsibility. He has failed, despite judicial direction, and two requests from Crown Law on behalf of the respondents, to remedy the manifest defects in his pleadings. The statement of claim is vexatious and there is a clear abuse of process.
• [24] Further, the statement of claim overlooks the fact that decisions made by court officers in the exercise of the jurisdiction given to them by the High Court Rules can be reviewed pursuant to r 2.11. The rule specifically provides that it is not necessary to apply for an order for an extraordinary remedy under pt 30 of the High Court Rules nor to make an application for review under the Judicial Review Procedure Act 2016. In addition, the conduct of court officers when dealing with matters entrusted to them by the High Court Rules can be supervised pursuant to the inherent jurisdiction.^[16] Mr O’Neill has been repeatedly informed of these matters and, on occasion, he has availed himself of the opportunity they offer.^[17] He complains that when he has done so, he has not succeeded. But that does not mean officers of the Ministry are instead clothed with a review jurisdiction. His statement of claim seeks to supplant these review mechanisms; it amounts to a collateral attack on the decisions of the Judges who have upheld the decisions of various court officers. This of itself is an abuse of process.

No reasonably arguable cause of action disclosed

• [25] The statement of claim also discloses no reasonably arguable cause of action.
• [26] Mr O’Neill contends that the respondents should have prosecuted his complaints about decisions made by court officers in the course of discharging the court’s processes. He has not however identified any statutory power pursuant to which the respondents could do what he alleges they should have done.
• [27] Court officers in the senior courts are appointed by the Ministry of Justice on behalf of the Crown, pursuant to powers set out in the Senior Courts Act 2016.^[18] The exercise of the power of appointment and the fact of employment by the Ministry of Justice does however not confer on the respondents either an express or an implied power to discipline registrars and deputy registrars in relation to decisions that they make in the course of discharging the court’s processes. It is trite law that judicial functions, and the processes of the court are free from interference by the executive arm of government. Administrative tasks performed by court officers in connection with court proceedings are part of the judicial function of the court,^[19] and it falls to the judiciary to supervise the way in which those tasks are carried out.^[20]
• [28] The principles of the separation of powers and of judicial independence preclude any suggestion that the respondents had an implied power to investigate or discipline the court officers for their conduct in discharging functions connected with the judicial process in the manner contemplated by Mr O’Neill. This does not mean, as asserted by Mr O’Neill, that court officers are immune from sanction or free from oversight in relation to decisions made by them in furtherance of the court’s processes. The judiciary can and on occasion do overturn their decisions.
• [29] In our judgment, the matters raised by Mr O’Neill in his statement of claim, in his addendum and in his bundle of documents, cannot give rise to a reasonably arguable cause of action against any of the respondents, because there is no statutory power pursuant to which the decisions made by court officers can in furtherance of the court’s processes be investigated or determined by any one or more of the respondents.

Conclusion

• [30] We are satisfied not only that the statement of claim is an abuse of process but also that there is no reasonably arguable cause of action open to Mr O’Neill.

Result

• [31] For the reasons we have set out, we agree with the Judge that Mr O’Neill’s statement of claim, his addendum and the associated materials constitute an abuse of process and that they do not disclose a reasonably arguable cause of action. The statement of claim cannot be repleaded because there is no tenable legal basis for the allegations made. The appeal is dismissed.
• [32] The appellant must pay the respondents’ costs for a standard appeal on a band A basis and usual disbursements.

Solicitors:
Crown Law Office, Wellington for First, Second and Third Respondents

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^[1] O’Neill v Bridgman [2019] NZHC 944 [High Court judgment].

^[2] O’Neill v Bridgman HC Wellington CIV-2018-485-502, 9 October 2018 (Minute of Thomas J) at [5].

^[3] High Court judgment, above n 1, at [10].

^[4] O’Neill v Attorney-General HC Auckland CIV-2016-404-2475, 4 July 2018 (Minute of Woodhouse J).

^[5] O’Neill v Attorney-General HC Auckland CIV-2016-404-2475, 31 July 2018 (Minute of Venning J).

^[6] High Court judgment, above n 1, at [9]–[20].

^[7] At [21]–[42].

^[8] At [43]–[47].

^[9] At [48]–[53].

^[10] Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267. See also Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33]; and North Shore City Council v Attorney-General [2012] NZSC 49, [2012] 3 NZLR 341 at [25] and [146].

^[11] Collier v Panckhurst CA136/97, 6 September 1999 at [19].

^[12] Couch v Attorney-General, above n 10, at [123].

^[13] Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 19.

^[14] Pearce v Accident Compensation Corp (1991) 5 PRNZ 297 (HC) at 303; and O’Neill v Attorney‑General [2018] NZHC 1073 at [22].

^[15] Coxhead v Hubbard CA181/01, 20 February 2002 at [9]; and Torbay Holdings Ltd v Napier [2014] NZHC 2380 at [76].

^[16] See Andrew Beck and others (ed) McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR 2.11.01], referring sto Re Tupou [2018] NZHC 637, (2018) 24 PRNZ 275 at [12]; and Muir v Commissioner of Inland Revenue [2017] NZHC 2082, (2017) 28 NZTC 23-029 at [14]–[15].

^[17] Minute of Venning J, above n 5; and O’Neill v Disputes Tribunal HC Auckland CIV-2018-404-947, 14 August 2018.

^[18] Senior Courts Act 2016, ss 33, 63 and 87.

^[19] Ministry of Justice v S [2006] NZHC 357; (2006) 8 HRNZ 328 (HC) at [28].

^[20] Greer v Smith [2015] NZSC 196, (2015) 22 PRNZ 785 at [6]; and Geary v New Zealand Psychologists Board [2012] NZHC 384, [2012] 2 NZLR 414 at [59].