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Court of Appeal of New Zealand |
Last Updated: 8 May 2023
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BETWEEN |
CHRISTOPHER JOSEPH O’NEILL Appellant |
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AND |
JUDICIAL CONDUCT COMMISSIONER Respondent |
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Hearing: |
30 March 2023 |
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Court: |
Courtney, Lang and Downs JJ |
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Counsel: |
No appearance by Appellant No appearance for Respondent |
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Judgment: |
5 May 2023 at 11 am |
JUDGMENT OF THE COURT
The appeal is
dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
[1] Mr O’Neill filed an application in the High Court at Wellington seeking judicial review of decisions made by the Judicial Conduct Commissioner (the JCC) to take no further action in relation to four complaints Mr O’Neill had laid against Judges of the District Court, High Court and Court of Appeal.
[2] The Registrar referred the proceeding to Cooke J under r 5.35A of the High Court Rules 2016. This rule permits the Registrar to refer a proceeding to a Judge for consideration under r 5.35B. Rule 5.35B permits a Judge to strike out or make other directions in relation to a proceeding, if satisfied the proceeding is plainly an abuse of the court’s process.
[3] In a judgment delivered on 30 May 2022, Cooke J struck the proceeding out on the basis that it was an abuse of the Court’s process.[1] Mr O’Neill appealed against the Judge’s decision.
[4] The appeal was set down for hearing on 28 March 2023. It was then listed for hearing again on 30 March 2023. Mr O’Neill failed to appear on either occasion. This Court dismissed the appeal on 30 March 2023 and now gives its reasons for doing so.
Events leading up to the hearing
[5] On 22 July 2022, counsel for the JCC filed a memorandum indicating that the JCC abided this Court’s decision.
[6] On 12 December 2022, the Registry sent Mr O’Neill a notice of fixture by courier. This advised him that the appeal was to be heard in Auckland on Tuesday 28 March 2023. It also advised him that his synopsis of argument and bundle of authorities needed to be filed by 28 February 2023.
[7] Mr O’Neill did not file any further documents. However, on 27 March 2023 he contacted the Registry by telephone to advise that he would not be able to attend the hearing on 28 February 2023 because he was unwell. He gave no details as to the nature of his illness. He advised the Registry that he cannot be contacted by telephone or email.
[8] Mr O’Neill did not appear when the appeal was called on 28 March 2023 at 10 am. Later the same day the Registry sent Mr O’Neill a letter advising him that the appeal had been adjourned until Thursday 30 March 2023 at 9.30 am. The letter also advised Mr O’Neill that the hearing would proceed on that date unless he produced a medical certificate indicating that he would be medically unfit to attend court. The Registry sent the letter to Mr O’Neill by courier.
[9] At 1.25 pm on 28 March 2023, Mr O’Neill contacted the Registry by telephone. He advised that it was impossible for him to provide a medical certificate before the hearing on 30 March 2023. He then did not appear when the matter was called on that date.
[10] Against that background the panel proceeded on the basis that Mr O’Neill had elected not to appear and not to provide a medical certificate as requested. When the appeal was called, Courtney J announced that in Mr O’Neill’s absence the appeal was dismissed with reasons to be given in due course. These are those reasons.
The complaints
[11] The Commissioner communicated the decisions regarding the complaints to Mr O’Neill by letter dated 23 February 2022. The letter recorded that Mr O’Neill has lodged no fewer than 121 complaints about members of the judiciary with the JCC. It referred to the four latest complaints as complaints 118 to 121.
Complaint 118
[12] Mr O'Neill filed this complaint on 17 August 2021 against Kós P and Goddard J, who were at that time the President and a Judge of this Court respectively.[2] The complaint alleged that the Judges had failed to fulfil their judicial duty to him.
[13] The complaint has its genesis in an application for judicial review Mr O'Neill filed in the High Court at Wellington seeking judicial review of disciplinary decisions made by the New Zealand Law Society. Cooke J struck the proceeding out as an abuse of the Court’s process in a judgment delivered on 24 March 2021.[3]
[14] Mr O'Neill filed an appeal against Cooke J’s decision. On 14 July 2021, Goddard J issued a minute seeking the views of the respondents regarding an application Mr O’Neill had filed seeking an order dispensing with the requirement that he provide security for costs. Mr O'Neill contended the minute did not deal with all the issues he had raised with the Court and that this had occurred through an error made by a Deputy Registrar. On 17 August 2021, Mr O'Neill sent a letter of complaint about the Deputy Registrar to Kós P in his capacity as President of the Court. On the same date Mr O'Neill sent a letter to the Commissioner of Police accusing the Deputy Registrar, Kós P and Goddard J of conspiring to defeat the course of justice.
[15] This Court subsequently dismissed Mr O'Neill’s appeal.[4] An application by Mr O'Neill for leave to appeal to the Supreme Court was similarly declined.[5]
Complaint 119
[16] Mr O'Neill lodged this complaint against Kós P and Cooper J on 2 December 2021. The complaint related to further events that occurred after Mr O'Neill filed his appeal against Cooke J’s decision. Kós P and Cooper J issued minutes and directions relating to the appeal. Mr O'Neill alleged in his complaint that Cooper J had “criminally withheld” these from Mr O'Neill and Kós P had lied to Mr O'Neill when he denied the documents had been withheld from him.
Complaint 120
[17] Mr O'Neill lodged this complaint on 26 November 2021 against Judge C J McGuire, a Judge of the District Court. Judge McGuire became involved in case managing an appeal Mr O'Neill had filed in the District Court against a decision by the Accident Compensation Corporation denying Mr O'Neill cover for an eye injury. The JCC’s decision records that Mr O’Neill took issue with the Judge’s minute of 23 August 2021, in which he observed that the resources being committed to the appeal process might be better put towards resolving the dispute. The Judge went on to direct both parties to provide an update on progress by 17 September 2021.
[18] Mr O'Neill contended that this minute demonstrated that the Judge had attempted to thwart the hearing of his case in a timely fashion and that the Judge was more concerned with the resources being applied to the appeal than Mr O'Neill’s right to access justice.
Complaint 121
[19] Mr O'Neill lodged this complaint against Thomas and Cull JJ on 16 December 2021. Cull J had issued a judgment on 9 December 2021 in which she exercised the power under r 5.35B of the High Court Rules to strike out as an abuse of process an application for judicial review Mr O'Neill had filed against Thomas J, the Commissioner of Police and the JCC.[6] In this proceeding Mr O'Neill sought to judicially review the alleged failure of the respondents to properly address the lack of police response to a family violence incident Mr O'Neill says he witnessed.
[20] The judgment of Cull J records that Mr O'Neill alleged he had witnessed a violent domestic incident on the street. He called 111 to seek assistance from the police and ambulance services. He says neither service attended the scene and he received no response when he made enquiries with the police. He says he later discovered that the police failed to respond to his 111 call because their database contained a notation that he has a mental illness and should be ignored.
[21] The lack of response by the police prompted Mr O'Neill to seek to file a claim in the Human Rights Review Tribunal (the HRRT) alleging abuse of the mentally ill and a denial of police and medical services. He required leave of the High Court to file the proceeding because the High Court had earlier declared him to be a vexatious litigant in the HRRT.[7] Cull J’s judgment records that Mr O'Neill filed an application in the High Court seeking leave to file proceedings in the HRRT.[8] It also records that Mr O'Neill complained that Thomas J failed to respond to his application before the deadline for filing a proceeding expired.
[22] Mr O'Neill’s complaint alleged that the judgment delivered by Cull J was designed to protect Thomas J and the JCC from taking responsibility for their actions.
Conflict of interest
[23] The JCC’s letter also addressed an allegation by Mr O'Neill that the JCC could not determine complaints 119, 120 and 121 because he had a conflict of interest. This arose because the JCC was a respondent in judicial review proceedings Mr O'Neill had filed in relation to the events that had led to those complaints. Mr O'Neill had addressed the complaints to the Deputy Judicial Conduct Commissioner (Deputy JCC) rather than the JCC for this reason.
[24] Mr O'Neill contended the JCC ought to have arranged for these complaints to be determined by a Deputy JCC as contemplated by s 8B(1)(a) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 (the Act). This provides that the functions of the JCC must not be carried out by the JCC if they relate to a complaint in relation to which the JCC has decided that he or she has a conflict of interest. In such a case the functions of the JCC must be carried out by the Deputy JCC.[9]
The JCC’s decision
[25] The JCC acknowledged in his letter to Mr O’Neill that the JCC’s involvement in the judicial review proceeding would ordinarily have justified referral of the complaints to the Deputy JCC. However, he gave three reasons why this would not occur in the present case. First, the judicial review proceeding in question had already been struck out as an abuse of process. Secondly, the fact that Mr O’Neill had issued a judicial review proceeding against the JCC did not add to the issue of whether the JCC had a conflict of interest. This is because Mr O’Neill had offered “a constant stream of abusive commentary in virtually all of his 121 complaints”. Thirdly, the position of Deputy Judicial Conduct Commissioner was currently vacant, and it was not known when it may be filled. It would therefore be necessary for the JCC to refer the complaints to the appropriate Heads of Bench, a course of action of which Mr O’Neill would not approve and which the Heads of Bench would not welcome.
[26] Rather than paraphrase the reasons for the balance of the JCC’s decision, we set them out in full:
The Judge’s decision
[27] After setting out rr 5.35A and 5.35B Cooke J considered the test to be applied under r 5.35B. He observed that he was required to decide whether it would be manifestly unfair to require the respondents to respond to the application and whether right thinking people would regard the Court as exercising very poor control of its processes if it were to allow the applicant’s document to be regarded as a proper document.[10]
[28] The reasons for the Judge’s decision to strike the proceeding out are encapsulated in the following paragraphs of his judgment:
The present case
[5] The proposed statement of claim seeks to judicially review decisions of the Judicial Conduct Commissioner. The decisions, communicated by letter dated 23 February 2022, dismissed four complaints made by Mr O’Neill against a number of Judges ‑— Justices Kós and Goddard, Justices Kós and Cooper, Justices Thomas and Cull and Judge McGuire. The letter records that the Commissioner dismissed the complaints as vexatious. It is noteworthy that the Commissioner addresses Mr O’Neill’s criticism that there was a conflict in his dealing with the complaints and that he had concluded that there were reasons why he should deal with them. They included that Mr O’Neill’s judicial review proceedings had been struck out as an abuse of process, and that there had been “a constant stream of abusive commentary in virtually all of his 121 complaints” directed to the Commissioner’s office.
[6] That is also so of Mr O’Neill’s proceedings in this Court, which have frequently descended into abuse. I have nevertheless examined the content of the proposed claim to see if there could be any merit in it. The proceedings appear to be a general complaint that the Commissioner is not carrying out his functions appropriately and that he has had a conflict of interest. I can see no potential merit in the claim. Moreover the proceedings involve circularity. One of the complaints dismissed by the Commissioner relates to a decision of the Court striking out judicial review proceedings as an abuse of process. He now brings these proceedings challenging the dismissal of the complaint relating to that decision. Mr O’Neill’s proceedings can generally be described as a persistent and repetitive attack upon the judicial system, usually in abusive terms. Whilst there is no objectionable abuse contained in these proposed proceedings, they are nevertheless part of the same, ultimately circular, attack.
[7] For these reasons it is clear to me that the proceedings are an abuse of process. It would be unfair to expect the respondent to plead to it, and the Court would not be exercising appropriate control of its processes to allow the proceedings to continue.
Analysis
[29] We begin by noting one error in the Judge’s decision. This relates to the Judge’s observation that the JCC had dismissed Mr O'Neill’s complaints on the basis that they were vexatious.[11] As will be evident from the passage from the letter set out at [26], the JCC observed that he could have dismissed the complaints under s 16(1)(d) of the Act on the basis that they were vexatious. However, he did not take that step. Rather, he exercised his discretion under s 15A(1) of the Act to take no further action on the complaints. He did so because he was satisfied in all the circumstances that further action by him was not justified. We do not consider this error by the Judge to be of any significance for present purposes.
[30] However, we consider the second limb of the test that the Judge applied was inapt in the present context.[12] Focus on the form of a document that has been filed may be appropriate when a proceeding is referred to a Judge under r 5.35A because of obvious irregularities on the face of the document. However, the form of the application for review was not an issue in the present case. We regard the more appropriate test in the present case to be whether right thinking people would regard the Court as exercising very poor control of its processes if it was to permit the application for judicial review to proceed further.[13]
Complaint 118
[31] Section 8(2) of the Act provides that it is not a function of the JCC to challenge or call into question the legality or correctness of any instruction, direction, order, judgment or other decision given or made by a Judge in relation to any legal proceedings. Section 8(2) therefore prevented the JCC from examining the correctness of any decision or direction made by either Judge in relation to the appeal against Cooke J’s decision.
[32] Furthermore, Mr O'Neill’s appeal was subsequently heard and determined by a panel that did not include either of the Judges against whom Mr O'Neill had made a complaint.[14] Mr O'Neill also exercised his right, unsuccessfully, to apply for leave to appeal against that decision. Any prior procedural error could not have affected the decision that was ultimately made. Nor did Mr O'Neill raise such an error when his appeal was heard or when he applied for leave to appeal to the Supreme Court. There was therefore no realistic basis for him to raise it by way of complaint to the JCC.
[33] Given that background we consider it would also have been inappropriate and unfair for either Judge to have been required to respond to Mr O'Neill’s allegations. Furthermore, right thinking people would rightly consider the High Court was exercising poor control of its processes if it permitted this aspect of the application for judicial review to proceed further.
Complaint 119
[34] The same observations apply to this complaint. As we have already noted, it relates to minutes and directions that were made prior to the hearing of the substantive appeal. Section 8(2) of the Act therefore prevented the JCC from taking the complaint any further. Mr O'Neill should also have raised any concerns he held about these issues when his appeal was heard.
[35] For these reasons we are satisfied it would be an abuse of the High Court’s process to permit the application for judicial review of the JCC’s decision relating to this complaint to proceed further.
Complaint 120
[36] Similar observations can be made about the complaint against Judge McGuire. It relates to a minute that directed the parties to file a joint memorandum to update the Court as to progress. Section 8(2) of the Act prevented the JCC from considering the legality or correctness of the Judge’s direction.
[37] We also consider the Judge was entitled to express his view that the parties should endeavour to resolve the dispute rather than expend further resources on litigation. That observation could not realistically be regarded as conduct justifying a complaint.
[38] We therefore do not consider there is any basis on which the JCC’s decision to take no further action on this complaint could be challenged. The application for judicial review was therefore an abuse of the High Court’s process.
Complaint 121
[39] This complaint flows from Mr O'Neill’s perception that the police and Judges of the High Court failed to adequately respond to the inaction of the police following his 111 call.
[40] We consider Mr O'Neill’s application for review seeking to raise these issues has no legally tenable basis. Judges of the High Court play no role in the investigation of complaints about alleged criminal offending. Nor is judicial review an appropriate means by which to challenge the manner in which the police carry out their investigative functions. Other avenues exist for this.
[41] We also regard this complaint, and the application for judicial review, as a thinly veiled collateral attack on the correctness of the judgment delivered by Cull J. Section 8(2) of the Act prohibited the JCC from challenging the correctness of that decision and judicial review of the JCC’s decision was not the appropriate means by which to challenge Cull J’s decision.
[42] We are therefore satisfied it would have been abuse of the High Court’s process to permit the application for judicial review of the JCC’s decision regarding this complaint to proceed further.
Conflict of interest
[43] The conclusions we have reached regarding the individual complaints mean it is not necessary to deal with Mr O’Neill’s contention that the JCC erred in failing to refer them to the relevant Head of Bench because he had a conflict of interest. We nevertheless observe that it would not have been possible for the JCC to refer complaints 118 and 119 to the Head of Bench of the Court of Appeal because that position was then occupied by Kós P, who was one of the subjects of both complaints. Nor would it have been possible to refer complaint 121 to the Head of Bench of the High Court because that position was then occupied by Thomas J, who was one of the subjects of that complaint.
[44] Furthermore, the fact that the position of Deputy JCC was vacant meant the JCC could not refer the complaints to a Deputy JCC.
Conclusion
[45] We have considered the material Mr O'Neill has filed in support of the appeal, but it does not provide an answer to the conclusions we have reached. We consider the appeal was devoid of merit and that Mr O'Neill would have been unable to retrieve the situation at an oral hearing. We are therefore satisfied he has not been unfairly prejudiced by the fact that we have dealt with the appeal on the papers.
Result
[46] The appeal is dismissed.
[1] O’Neill v Ritchie [2022] NZHC 1225.
[2] Cooper J was appointed President of the Court on 26 April 2022 following the appointment of Kós P as a Judge of the Supreme Court.
[3] O’Neill v New Zealand Law Society [2021] NZHC 607.
[4] O’Neill v New Zealand Law Society [2022] NZCA 500.
[5] O’Neill v New Zealand Law Society [2023] NZSC 14.
[6] O’Neill v Commissioner of Police [2021] NZHC 3362.
[7] Attorney-General v O’Neill [2007] NZHC 1526; [2008] NZAR 93 (HC).
[8] O’Neill v Commissioner of Police, above n 6, at [4].
[9] Section 8B(1)(a).
[10] O’Neill v Ritchie, above n 1, at [4], citing Mathiesen v Slevin [2018] NZHC 1032, (2018) 25 PRNZ 116 at [6].
[11] At [5].
[12] Set out above at [27].
[13] C v Attorney-General [2022] NZHC 3490 at [9].
[14] The panel comprised Miller, Brewer and Moore JJ.
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