O'Neill v Commissioner of Police [2022] NZCA 501 (19 October 2022)

Last Updated: 24 October 2022

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

CA741/2021 [2022] NZCA 501

	BETWEEN	CHRISTOPHER JOSEPH O’NEILL Appellant
	AND	COMMISSIONER OF POLICE AND OTHERS Respondents

Hearing:	29 September 2022
Court:	Miller, Brewer and Moore JJ
Counsel:	Appellant in person No appearance for Respondents
Judgment:	19 October 2022 at 2.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

• [1] Mr O’Neill brings this appeal against a decision to strike out a proceeding brought against the Commissioner of Police, the Judicial Conduct Commissioner, Thomas J, the Director of Human Rights Proceedings and the Attorney-General.^[1]

The proceeding

• [2] Mr O’Neill claims that on 6 August 2020 he witnessed a “violent domestic incident” on his street. He called 111 to request police and ambulance services. He alleges that neither attended and he received no response when he inquired of the police. He claims he later received documents via the Privacy Commissioner which reveal that a police database records he has a mental illness and should be ignored.
• [3] He complained to the Director of Human Rights Proceedings, who declined to take up his case before the Human Rights Review Tribunal. It appears that the Director made inquiries and ascertained that the police did respond to the 111 call, albeit not immediately, and the Director believed Mr O’Neill would not be able to show the treatment of his 111 call differed from any other made in similar circumstances.
• [4] Mr O’Neill then applied to the High Court in March 2021, seeking leave to file a proceeding in the Tribunal. He required leave because he had been declared a vexatious litigant and the order barring him from filing proceedings in the Tribunal without leave was still current.^[2] He complains that Thomas J failed to respond to his application before a deadline for filing such a proceeding expired. He then laid a complaint with the Judicial Conduct Commissioner.

Judicial review proceedings

• [5] Mr O’Neill brought judicial review proceedings in November 2021.
• [6] Mr O’Neill asked the Court to find that the Commissioner of Police failed to fulfil his oath of office, failed to operate an effective 111 system, failed to supply emergency assistance when it was called for, withheld the protection of the police, discriminated against the mentally ill and infringed the New Zealand Bill of Rights Act 1990 (NZBORA). He alleged those actions put the public at risk and that the Commissioner acted criminally.
• [7] Against the Judicial Conduct Commissioner, Mr O’Neill alleged that he succumbed to pressure from the government or the judiciary not to do his duty, has an “unhealthy relationship” with judges and the police, disrupted a judicial investigation due to corruption, endangered the public and infringed NZBORA. He further suggests the Judicial Conduct Commissioner acted in a criminal manner or caused injury/death to the public.
• [8] Against Thomas J, Mr O’Neill alleged that she had not fulfilled her obligations to the public or the obligations of her oath, succumbed to pressure from the government and police, has an unhealthy relationship with “any who could influence her actions”, prevented a necessary investigation from occurring “by her criminal actions”, infringed NZBORA and denied police protection to the public.
• [9] Against the Director of Human Rights Proceedings, Mr O’Neill alleged that he had failed to investigate the endangerment of the public by the withholding of emergency medical treatment from those in need, succumbed to pressure from others, and behaved in a criminal manner.
• [10] Against the Attorney-General, Mr O’Neill alleged that he failed to ensure that every person has access to the courts and justice, he had sway over the respondents, and that he was party to corruption and acted in a criminal manner.
• [11] As Cull J recorded, the relief sought can be divided into three categories:^[3]

(a) rulings that “the public can have faith in” the Police force, the Judicial Conduct Commission, Judiciary, Office of Human Rights Proceedings and the Government;

(b) that Justice Thomas, the Attorney General, and Director of the Office of Human Rights Proceedings are dismissed from their respective positions, or in the case of the Attorney General and Justice Thomas, that they are tried and/or imprisoned; and

(c) action be taken to address police abuse, police corruption and criminality.

The strikeout

• [12] Cull J struck the proceeding out of her own volition after it was referred to her by the Registrar under r 5.35A of the High Court Rules 2016, which provides:

5.35A Registrar may refer plainly abusive proceeding to Judge before service

(1) This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.

(2) The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.

(3) However, the Registrar may,—

(a) as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b) until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.

• [13] The jurisdiction to strike out on the Court’s own initiative is found in r 5.35B:

5.35B Judge’s powers to make orders and give directions before service

(1) This rule applies if a Judge to whom a Registrar refers a proceeding under rule 5.35A is satisfied that the proceeding is plainly an abuse of the process of the court.

(2) 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—

(a) the proceeding be struck out:

(b) the proceeding be stayed until further order:

(c) documents for service be kept by the court and not be served until the stay is lifted:

(d) no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).

(3) Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.

(4) A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.

(5) See rule 2.1(3)(b) concerning the exclusion of the jurisdiction and powers of a Judge under this rule from the jurisdiction and powers of an Associate Judge.

• [14] The Judge reasoned that the jurisdiction to strike out should be exercised sparingly:^[4]

[9] Access to the Courts is a fundamental right. The rights of individuals to bring judicial review proceedings in particular is recognised by s 27 of the New Zealand Bill of Rights Act 1990. The High Court has signalled that the power to strike out a proposed proceeding for abuse of process under r 5.35B is to be exercised sparingly. However, as the Court of Appeal observed in Faloon v Planning Tribunal at Wellington, access to the courts is subject to “basic rules to maintain order”. This is echoed by the proviso contained in s 27(2) of the Bill of Rights Act that a person has the right to apply for judicial review, in accordance with law.

[10] In assessing whether to strike out a proceeding for abuse of process, a Judge must consider:

(a) whether it would be manifestly unfair to the respondents that they be required to respond; and

(b) whether right thinking people would regard this Court as exercising very poor control of its processes for it to follow the applicant’s document to be treated as a proper document.

• [15] The Judge observed that the claim was difficult to follow and lacked particulars. The Attorney-General’s role in the alleged wrongs was unclear. She considered that no reasonably arguable cause of action was disclosed.^[5] She also pointed out that the relief was problematic; the Court cannot remove officials from office in the circumstances pleaded here, nor can it try or punish them or make general “good faith” declarations.^[6]
• [16] Cull J noted that Mr O’Neill has an extensive history of bringing proceedings, citing what Cooke J had recorded about some of those proceedings in a judgment in another proceeding (an appeal from which was argued with this appeal).^[7] She held that Mr O’Neill’s application for review could fairly be described as abusive; there appeared to be no proper factual basis for his claims and he had not identified any decision to review. He was using the Court’s procedures to engage in abuse of the respondents.^[8]
• [17] For these reasons the Judge was satisfied that the jurisdiction was made out. The proceeding was struck out under r 5.35B.^[9]

The appeal

• [18] No respondent appeared before us. The proceeding was struck out before service, but they were notified of the appeal. The Commissioner of Police asked that he not be required to appear.
• [19] Mr O’Neill contends that his 111 call was ignored because he is recorded on a police database, using a unique identifier contrary to the Privacy Act 2020, as a “nutter to be ignored no matter what”. The police must exercise reasonable care before identifying someone in that way. In fact he has never suffered mental illness or impairment. He alleges that he was denied “the succour of New Zealand’s 111 service”, which is criminal and a danger to the public. He refers to a large volume of material relating to previous proceedings, intended to show that the police harassed him and characterised him as a “wife beater” and a “mental case” and threatened his life, and that judges and officials behaved in a corrupt and criminal manner. He rehearses allegations against the Privacy Commissioner and the Ombudsman and alleges that the police have routinely ignored his complaints.
• [20] As against Thomas J, Mr O’Neill argues that her failure to action his application for leave constitutes a criminal offence in keeping with the corrupt relationship between judges and the police. His argument with respect to the Judicial Conduct Commissioner is that he failed to respond to the complaint against Thomas J.
• [21] With respect to the Director of Human Rights Proceedings, Mr O’Neill complains that he could not possibly conclude that the complaint lacked merit and that the complaint affected the well‑being of all New Zealanders, including those affected by mental health issues or domestic violence. In a submission which is especially difficult to understand, he attributes the Director’s decision to the theft of taxpayers’ money by the Crown Law Office. As against the Attorney-General, he argues that it is unbelievable that any judge in a democracy would strike out a proceeding brought by a citizen against the government. He complains that the Attorney-General and others know that judges have been “bought”.

The strikeout jurisdiction

• [22] The Rules expressly confer jurisdiction to strike out a proceeding, on a judge’s own motion, for abuse of process.^[10] The jurisdiction extends to judicial review proceedings.^[11] It is not necessary to give the plaintiff notice, but if not given notice the plaintiff must be advised of the right to appeal,^[12] as was done in this case.^[13]
• [23] It is settled law that the jurisdiction to strike out a proceeding is to be exercised sparingly.^[14] A court does not lightly find that a proceeding is an abuse of its processes. But the court may find it necessary to act to protect defendants from oppressive or frivolous proceedings, or to protect public confidence in the administration of justice by refusing to tolerate serious abuses.^[15] It may be that a proceeding contains what could be a viable claim that the plaintiff might be able and willing to salvage. In such cases the court may stay its hand and leave it to the defendant to respond to the claim. But the rule permits strikeout at the very outset and it should not be read down. Whether it is appropriate to intervene at that juncture is a question of judgment which must depend on the circumstances and the nature of the abuse of process.

This case

• [24] The claim against the Commissioner of Police is frivolous as presently formulated. All that could properly be in issue is whether the police delayed their response to Mr O’Neill’s 111 call because they relied on personal information which is inaccurate or which they ought not to have recorded in the first place. We are prepared to assume that a claim against the Commissioner might be brought to that limited extent and that judicial review is available, directed to correcting the information held by police. In the ordinary way the Commissioner could be left to deal with the claim, seeking to have it struck out or summarily disposed of if, as the Director of Human Rights Proceedings evidently concluded, it has no factual merit. We observe that the claim has already been investigated and rejected by the Privacy Commissioner.
• [25] The claim with respect to the other defendants is manifestly untenable. It is not possible to seek judicial review of a decision of the High Court,^[16] and so far as the action against Thomas J is personal she is protected by immunity from suit.^[17] The claim against the Judicial Conduct Commissioner is also untenable, as is that against the Director of Human Rights Proceedings, who has done no more than exercise a discretion vested in him not to pursue a proceeding which he thinks has no wider significance and no prospect of success. We agree with Cull J that the proceeding must be struck out as against these defendants.
• [26] To some extent the pleading also contains allegations of corruption and impropriety. They do not go quite so far as the allegations Mr O’Neill made in the Law Society appeal which was argued with this one,^[18] but they are extravagant and the proceeding contains no specific allegations of fact that might support them. It evidences a willingness to make such allegations whenever someone in authority refuses to do what Mr O’Neill wants. He contends that we cannot characterise such allegations as abusive unless the person concerned has asked us to do so, and since they have not the allegations must be true.
• [27] We would strike out the proceeding against the defendants other than the Commissioner of Police on this ground. We hesitate so far as the Commissioner is concerned not because there is any more substance to the allegations against him but because, as we have explained, we are not presently able to exclude the possibility that a claim might be brought relating to information held by the police about Mr O’Neill.
• [28] To accept provisionally that Mr O’Neill might have a modest claim against the Commissioner is not to conclude that the appeal must be allowed. It is an abuse of process as it presently stands for two reasons. First, it makes extravagant general claims about the 111 system to which the Commissioner should not be required to respond in a suit brought by Mr O’Neill, whose only interest is in the handling of a single call. Second, it seeks to relitigate past grievances which have been finally settled against Mr O’Neill.
• [29] That raises the question whether Mr O’Neill is willing and able to amend his proceeding and to conduct it in an appropriate manner. He was not heard about that before the proceeding was struck out, but he has been heard now. We asked him about it. He made it very plain that he is not willing to do so. So far as he is concerned, all his allegations are true and he has already proved them.
• [30] The appeal is dismissed.
• [31] We direct the Registrar to refer a copy of this judgment to the Solicitor-General for consideration of such further steps as she might consider appropriate having regard to s 166 of the Senior Courts Act 2016.

Solicitors:
Crown Law Office, Wellington for Respondents

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^[1] O’Neill v Commissioner of Police [2021] NZHC 3362 [Judgment under appeal].

^[2] Attorney-General v O’Neill HC Auckland CIV-2007-404-3303, 20 December 2007.

^[3] Judgment under appeal, above n 1, at [8].

^[4] Footnotes omitted, emphasis in original.

^[5] At [11].

^[6] At [12].

^[7] At [14], referring to O’Neill v New Zealand Law Society [2021] NZHC 607.

^[8] At [16].

^[9] At [17]–[18].

^[10] High Court Rules 2016, rr 5.35A–B.

^[11] Judicial Review Procedure Act 2016, s 8(2). See for example Siemer v Registrar of the Supreme Court [2019] NZHC 2345 at [5]; and Tully v Chief Executive of the Department of Corrections [2020] NZHC 1306. See also the commentary in Andrew Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [HR5.35A.01].

^[12] Rule 5.35B(3).

^[13] Judgment under appeal, above n 1, at [19].

^[14] Siemer v Registrar of the Supreme Court, above n 11, at [6].

^[15] This Court has long recognised its responsibility to protect court processes from abuse: see Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) at 9. In the context of rr 5.35A–B, see Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220 at [20]–[21].

^[16] Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) at 414, 435 and 455.

^[17] Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [161]–[162].

^[18] See O’Neill v New Zealand Law Society, above n 7.