O'Neill v Registrar of the Supreme Court [2024] NZCA 272 (26 June 2024)

Last Updated: 1 July 2024

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

CA569/2023 [2024] NZCA 272

	BETWEEN	CHRISTOPHER JOSEPH O’NEILL Appellant
	AND	REGISTRAR OF THE SUPREME COURT Respondent

CA570/2023
	BETWEEN	CHRISTOPHER JOSEPH O’NEILL Appellant
	AND	THE PRIVACY COMMISSIONER First Respondent
	AND	MANAGER INVESTIGATIONS AND DISPUTE RESOLUTION — OFFICE OF THE PRIVACY COMMISSIONER Second Respondent

Court:	French and Courtney JJ
Counsel:	Appellant in person No appearances for Respondents in CA569/2023 and CA570/2023
Judgment: (On the papers)	26 June 2024 at 11.30 am

JUDGMENT OF THE COURT

The appeals are struck out.
____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

• [1] On 14 September 2023, Walker J struck out two separate applications for judicial review brought by Mr O’Neill.^[1] In both cases, the strike out was made under r 5.35B of the High Court Rules 2016 on the ground that the proceedings were abuses of the court process.^[2]
• [2] Mr O’Neill filed a notice of appeal against each judgment on 28 September 2023. Miller J directed that the respondents need not take further part in the proceedings. On 7 November 2023, Miller J further directed that the Court consider whether the appeals should be struck out as an abuse of process under r 44A of the Court of Appeal (Civil) Rules 2005.^[3]
• [3] On 23 January 2024, Mr O’Neill filed a document entitled “Interlocutory Application — Without Notice/Request of Court for Clarification” which was rejected for filing under r 5A(1)(b)(i) of the Court of Appeal (Civil) Rules on the basis that it contained abusive material. Mr O’Neill’s application for a review of that decision was declined by Goddard J.^[4]
• [4] Although Goddard J extended the due date for Mr O’Neill’s submissions until 28 March 2024, Mr O’Neill has not filed any further document to address the possibility of his appeals being struck out as an abuse of process under r 44A.

Strike out under r 44A

• [5] Rule 44A provides that:

44A Court’s power to strike out or stay appeal

(1) In addition to any express power in these rules to strike out an appeal, the Court may, on an interlocutory application or on its own initiative, make an order striking out or staying an appeal in whole or in part if—

(a) the appellant is in continuing default in complying with any of these rules or with any procedural direction or order made by a Judge; or

(b) the appellant has failed to prosecute the appeal with due diligence and dispatch; or

(c) the appeal is frivolous, vexatious, or otherwise an abuse of the process of the Court.

(2) The Court must—

(a) give the appellant 10 working days’ prior notice of its intention to consider making an order under this rule; and

(b) give ancillary directions as to the filing and service of any written submissions.

(3) The Court may make an order under this rule on the papers or after an oral hearing, as the Court thinks fit.

(4) The Court may order a stay under this rule on any terms that the Court thinks appropriate.

(5) This rule also applies to cross-appeals.

• [6] The power to strike out an appeal under r 44A is used sparingly. In Commissioner of Inland Revenue v Chesterfields Preschools Ltd, this Court held that:^[5]

... a “frivolous” pleading is one which trifles with the court’s processes, while a vexatious one contains an element of impropriety. [A proceeding that is] “otherwise an abuse of process of the court” ... extends beyond the other grounds and captures all other instances of misuse of the court’s processes, such as a [proceeding] that has been brought with an improper motive or [is] an attempt to obtain a collateral benefit. An important qualification ... is that the jurisdiction to dismiss the proceeding is only used sparingly. The powers of the court must be used properly and for bona fide purposes. If a defect in the pleadings can be cured, then the court would normally order an amendment of the statement of claim.

The strike out in the High Court

• [7] We draw on Walker J’s summaries of the judicial review applications.
• [8] The first proceeding was brought against the Privacy Commissioner and described by the Judge as follows:^[6]

[7] I discern, although not without difficulty, that the genesis of this intended judicial review is some form of communication which Mr O’Neill contends took place between judges of the Court of Appeal and/or Supreme Court and the Solicitor-General. He pleads that this was an attempted incitement to bring proceedings against him.

[8] Mr O’Neill requested a copy of these communications from the Office of the Solicitor-General under the Privacy Act 2020. He pleads that his request was declined on the grounds of “client privilege”. Mr O’Neill complained to the Privacy Commissioner. The core complaint as pleaded is that the second respondent [the Manager, Investigations and Dispute Resolution] and not the Privacy Commissioner responded. However, Mr O’Neill also challenges the decision not to proceed with his complaint.

• [9] The basis on which this claim was struck out (apart from the language and extravagant allegations) was that the proceeding was “transparently a vehicle for Mr O’Neill’s persistent attacks on the judicial system and judges”. The Judge concluded:^[7]

The purported “evidence” which Mr O’Neill attaches to the application, far from supporting any ground for review, actively tells against it. The unconnected regurgitation of complaints against the judiciary have no relationship to the matters which Mr O’Neill purports to challenge, much of which goes well beyond anything the Court can address. Moreover, the statutory scheme anticipates appeals to the HRRT rather than judicial review.

• [10] The second proceeding was brought against the Registrar of the Supreme Court and described by the Judge in the following terms:^[8]

[5] The genesis of this application appears to be that Registry officers at the Supreme Court did not accept a leave application presented by Mr O’Neill for filing because it did not conform with the Supreme Court Rules 2004. The pleading states that Mr O’Neill wrote to the Chief Justice about the action or inaction by Registry officers. The Registrar responded to his complaint in her capacity as the manager of the officers of the Registry. Therein lies the rub according to Mr O’Neill.

[6] Mr O’Neill pleads that this response offends against case law dealing with the Court’s supervisory jurisdiction in respect of the Registry. It thereby usurps the authority of the courts. The pleading goes on to make unsupported allegations of corruption and criminality.

• [11] The Judge pointed out that, while courts have the power to supervise and review the exercise of powers by registrars, so that the decision to reject documents tendered for filing was reviewable, once the non-conformity was addressed and the documents re-presented and accepted by court officers, the reviewable decision was spent.^[9] The Judge did not consider the Registrar’s decision to respond to Mr O’Neill’s complaint was reviewable or usurped any supervisory function of the Court.^[10]
• [12] The proceeding, the Judge considered, was misdirected and misconceived. It sought relief that the Court could not provide and was motivated to “launch further attacks on the judicial system which Mr O’Neill perceives has not served him”.^[11]

The current appeals

• [13] In his notices of appeal, Mr O’Neill makes numerous allegations against the High Court Judge of lying, and of seeking to protecting Crown Law and the senior courts. In this regard, he makes assertions of criminal and/or corrupt conduct. These allegations are sufficient in themselves to constitute an abuse of process and justify the appeals being struck out.
• [14] Mr O’Neill also makes the following specific complaints:

(a) the Judge’s decisions were in error because Mr O’Neill’s applications were not yet proceedings, given that no evidence had been filed and no one legally served;

(b) the Judge should not have struck out the applications without assessing Mr O’Neill’s own evidence;

(c) striking out the applications was an abuse of his right to natural justice;

(d) the Judge’s indications that she found Mr O’Neill’s case difficult to understand necessarily meant that they should not have been struck out; and

(e) in striking out the proceedings, the Judge was protecting Crown Law and the senior courts. In this regard Mr O’Neill makes assertions of criminal and/or corrupt conduct.

• [15] None of these asserted grounds are capable of sustaining an appeal. Complaints that the proceedings were struck out before evidence had been filed and respondents served are not relevant to determining whether the applications were an abuse of process. The strike-out process occurs prior to these stages and on the basis of assertions made on the papers.
• [16] We are satisfied that the appeals are an abuse of the court process and should be struck out as such.

Result

• [17] The appeals are struck out.

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^[1] O’Neill v Webster [2023] NZHC 2570 ; and O’Neill v Leaupepe [2023] NZHC 2574.

^[2] O’Neill v Webster, above n 1, at [16]–[27]; and Leaupepe, above n 1, at [26].

^[3] A request that the Registry review Miller J’s direction was declined for lack of jurisdiction and Mr O’Neill’s application to review the Registrar’s decision was declined: O’Neill v Registrar of the Supreme Court [2023] NZCA 668 at [5].

^[4] O’Neill v Registrar of the Supreme Court [2024] NZCA 56 at [10].

^[5] Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89] (footnotes omitted).

^[6] O’Neill v Webster, above n 1.

^[7] At [16].

^[8] O’Neill v Leaupepe, above n 1.

^[9] At [22].

^[10] At [23].

^[11] At [25].