Fuller v District Court at Waitākere [2024] NZCA 202 (31 May 2024)

Last Updated: 4 June 2024

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

CA256/2023 [2024] NZCA 202

	BETWEEN	PETER MALCOLM FULLER Appellant
	AND	DISTRICT COURT AT WAITĀKERE Respondent

Hearing:	20 May 2024
Court:	Wylie, Lang and Campbell JJ
Counsel:	Appellant in person No appearance for Respondent
Judgment:	31 May 2024 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

2. The decision to strike out and dismiss Mr Fuller’s application for judicial review is set aside.

C There is no order for costs.
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REASONS OF THE COURT

(Given by Campbell J)

• [1] Mr Fuller applied under the District Court (Access to Court Documents) Rules 2017 (the Access Rules) to access documents and audio files in a District Court proceeding. Judge Tremewan declined his application.^[1] Mr Fuller applied for judicial review of her decision. His application was referred to Jagose J under r 5.35A(3)(a) of the High Court Rules 2016 (the Rules), to consider whether it was “plainly an abuse of the process of the court”. Jagose J considered that Mr Fuller’s application was an abuse of process. He struck out the application and dismissed the proceeding under r 5.35B of the Rules.^[2] Mr Fuller appeals Jagose J’s decision.
• [2] This Court directed that the respondent was not required to take any steps on the appeal, unless it asked to be heard. The respondent did not ask. Mr Fuller filed written submissions. At the hearing of the appeal, he did not wish to add to them.
• [3] Mr Fuller’s submissions focused solely on what he considered to be the underlying merits of his judicial review application. His submissions did not engage with Jagose J’s decision or identify any error with it. We are nonetheless satisfied that Jagose J did err.
• [4] Jagose J said it was an abuse of process “to use judicial review procedures to seek to overturn decisions made within jurisdiction, or to circumvent appeal pathways.”^[3] The Judge said Judge Tremewan was entitled to make a decision under the Access Rules,^[4] from which decision Mr Fuller had a general right of appeal under s 124 of the District Court Act 2016. He said Mr Fuller’s judicial review application sought to overturn her decision without pursuing an appeal.^[5] He concluded that Mr Fuller’s application was an abuse of process.^[6]
• [5] We consider that Jagose J erred in two respects. First, it is not necessarily an abuse of process to use judicial review to overturn a decision by a District Court judge.^[7]
• [6] Secondly, while the existence of a right of appeal may in some cases preclude the grant of relief on a judicial review application, this will not always be so. As this Court noted when granting Mr Fuller an extension of time to file his case on appeal, s 16(3)(a) of the Judicial Review Procedure Act 2016 permits the High Court to grant relief even if the applicant has a right of appeal.^[8] Further, Jagose J erred in assuming that Mr Fuller enjoyed a general right of appeal under s 124 of the District Court Act. We have had the benefit, which Jagose J did not, of seeing Mr Fuller’s application in the District Court under the Access Rules. Mr Fuller applied to access documents in a criminal proceeding (to which he was a party). The general right of appeal in s 124 applies to civil but not criminal proceedings.^[9] If Mr Fuller has a right of appeal, it would be under the Criminal Procedure Act 2011, and would appear to be limited.
• [7] Rule 5.35B of the Rules is engaged only where a proceeding is “plainly” an abuse of process of the court. It is reserved for the clearest of cases.^[10] For the reasons we have given, we consider this was not one of them and that Mr Fuller’s judicial review application should not have been struck out nor the proceeding dismissed.
• [8] Subsequent to the hearing Mr Fuller filed, without explanation, a document that purports to be an invoice to Mr Fuller for “law services and legal advice”. On the face of the invoice, the services and advice do not relate to this appeal. The purported provider of the legal services is not a lawyer. In any event, given that Mr Fuller represented himself and that the respondent did not participate in the appeal, we make no order for costs.

Result

• [9] The appeal is allowed.
• [10] The decision to strike out and dismiss Mr Fuller’s application for judicial review is set aside.
• [11] There is no order for costs.

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^[1] Re an application by Peter Malcolm Fuller DC Waitākere, 22 December 2022.

^[2] Fuller v District Court Judge L Tremewan [2023] NZHC 959 [judgment under appeal].

^[3] At [5].

^[4] At [6].

^[5] At [6].

^[6] At [7].

^[7] As this Court said when granting Mr Fuller an extension of time to file his case on appeal, “this Court has previously rejected the proposition that a decision made by the District Court within its jurisdiction can never be amenable to judicial review”: Fuller v District Court at Waitākere [2023] NZCA 634 [leave judgment] at [7], citing D v Auckland District Court [2022] NZCA 477 at [35]–[43].

^[8] Leave judgment, above n 7, at [7].

^[9] D v Auckland District Court, above n 7, at [34]; and District Court Act 2016, s 4 definition of “proceeding”. Section 4 defines a “proceeding” for the purposes of that Act as “any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application.”

^[10] Te Wakaminenga o Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63, [2023] NZAR 180 at [15].