Davis v Robinson [2024] NZCA 599 (18 November 2024)

Last Updated: 25 November 2024

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

CA111/2024 [2024] NZCA 599

	BETWEEN	ARTEMIS INDIGO DELILAH DAVIS Appellant
	AND	DAVID P ROBINSON Respondent

Hearing:	6 November 2024
Court:	Cooke, Fitzgerald and Jagose JJ
Counsel:	Appellant in person No appearance for Respondent
Judgment:	18 November 2024 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Jagose J)

• [1] Artemis Davis appeals the 28 February 2024 decision of Dunningham J in the High Court at Dunedin, striking out her claim against the respondent under r 5.35B of the High Court Rules 2016.^[1]

Context

• [2] Rule 5.35B entitles a Judge to (among other things) strike out a proceeding if “satisfied that the proceeding is plainly an abuse of the process of the court”.^[2] An abuse of process is the “improper use of [the court’s] machinery”,^[3] or the use of a court process “for a purpose or in a way which is significantly different from [its] ordinary and proper use”.^[4] Judges have a duty to prevent such abuses, but nonetheless:^[5]

The power under r 5.35B must be exercised sparingly, and only in the clearest of cases. Given that the rule contemplates a litigant being denied the fundamental right of access to the courts, with the possibility of the proceeding being halted before it is even served, the abuse must be clear beyond doubt from reading the claim.

• [3] The respondent was not required to, and did not, participate in the appeal.

Background

• [4] The respondent holds a warrant of appointment as a Judge of the District Court. On 25 September 2023, the respondent delivered a judgment determining certain of Ms Davis’ interlocutory applications in a proceeding brought by her against third parties under the Harmful Digital Communications Act 2015 (the 2015 Act).^[6]
• [5] Ms Davis brought proceedings in the High Court, alleging that the respondent’s decision was defamatory of her in 14 specified aspects, one of which also constituted malicious falsehood and comprised the respondent’s misfeasance in public office. She sought damages of $100,000 under each head of contested publication, declarations of the respondent’s liability to herself and “His Majesty King Charles”, and an injunction requiring the respondent’s recusal from any proceeding to which she is party.

Judgment under appeal

• [6] Having reviewed the respondent’s “thorough and carefully reasoned 140 paragraph judgment”, Dunningham J was “readily satisfied” Ms Davis’ claim against him was an abuse of process, primarily because “the Judge is entitled to judicial immunity from suit”.^[7] Her Honour explained that judicial immunity is “a wide-ranging protection” to which the respondent was entitled in exercising his jurisdiction, whether or not correctly.^[8]
• [7] The Judge also held Ms Davis’ claim against the respondent was abusive in its pursuit without exercising appeal rights against the decision,^[9] and in its “prolix and formulaic” pleading of “scurrilous allegations”,^[10] extending to untenable claims for relief in substance and in favour of a non-party,^[11] in an “extravagant and undisciplined” proceeding.^[12] The respondent “should not be put to the trouble of responding to it”.^[13]
• [8] The Judge accordingly struck out the proceeding under r 5.35B.^[14]
• [9] On appeal, Ms Davis contends she has a personal claim against the respondent for publication of his reasons argued to be done knowingly or recklessly without jurisdiction, for which she should have been afforded the opportunity to amend her pleadings.

Approach on appeal

• [10] Under s 56(4)(a) of the Senior Courts Act 2016, any party may appeal to this Court any order or decision of the High Court “striking out or dismissing the whole or part of a proceeding”. Ms Davis bears the onus of satisfying us the Judge was wrong.^[15]

Discussion

• [11] We do not consider it necessary to address all of Ms Davis’ arguments as we consider it indisputable the respondent’s judgment did no more than address her interlocutory application brought under s 18 of the 2015 Act, which the respondent clearly had jurisdiction to determine.^[16]
• [12] In her substantive proceeding, Ms Davis sought a variety of orders under s 19 of the 2015 Act. She then sought interim injunctive relief and to strike out the defences. The respondent assessed the former required Ms Davis first to establish “a good arguable case” that one or more of the 2015 Act’s communication principles was, or threatened to be, breached and, if so, whether interim relief was justified.^[17] Expressly “bearing in mind the threshold level” for interim relief,^[18] the respondent found in various respects that threshold was not reached.^[19] Elsewhere, the respondent held he was unable to resolve disputed facts,^[20] or matters otherwise had to await trial.^[21] On those latter bases, the respondent held “in the context of the application for injunctive relief ... the plaintiff cannot exclude the reasonable possibility of a legal defence to each aspect of the articles complained [of]”,^[22] and declined to strike out the defences.^[23]
• [13] This involved a conventional assessment of Ms Davis’ application. There is no basis for alleging the decision made by the respondent was without jurisdiction, let alone it was knowingly or recklessly made without jurisdiction. As such, by reason of s 23 of the District Court Act 2016, the respondent personally was immune from suit, such as the suit advanced in the proceeding before Dunningham J.^[24] The Judge did not err in striking it out as an abuse.
• [14] We also consider, judicial immunity aside, the Judge was justified in concluding the proceeding was abusive in its content such that no defendant in the respondent’s position should reasonably be required to respond to it. The claim involved prolix pleadings, untenable claims, and scurrilous allegations. Allowing such allegations to be pursued against a judge would bring the justice system into disrepute. In that respect also, the Judge did not err in striking it out.

Result

• [15] The appeal is dismissed.

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^[1] Davis v Robinson [2024] NZHC 344 [Judgment under appeal].

^[2] High Court Rules 2016, r 5.35B(1).

^[3] Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [87], citing Simon Goulding, DB Casson and William Blake Odgers Odgers on Civil Court Actions (24th ed, Sweet & Maxwell, London, 1996) at [10.15].

^[4] Te Wakaminenga o Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63, [2023] NZAR 180 at [14]–[15], quoting Attorney-General v Barker [2000] 1 FLR 759 (QB) at 764.

^[5] Te Wakaminenga o Nga Hapu Ki Waitangi v Waitangi National Trust Board, above n 4, at [15].

^[6] Davis v McNeilly [2023] NZDC 267.

^[7] Judgment under appeal, above n 1, at [10], citing District Court Act 2016, s 23.

^[8] Judgment under appeal, above n 1, at [13]–[15], citing Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462; Gazley v Lord Cooke of Thorndon [1999] 2 NZLR 668 (CA); and Harvey v Derrick [1994] NZCA 279; [1995] 1 NZLR 314 (CA).

^[9] Judgment under appeal, above n 1, at [16].

^[10] At [19].

^[11] At [20].

^[12] At [21].

^[13] At [22].

^[14] At [24].

^[15] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4] and [13].

^[16] Harmful Digital Communications Act 2015, s 18(1): “The District Court may, if the court considers it is desirable to do so, grant any interim orders pending the determination of the application for orders under section 19.”

^[17] Davis v McNeilly, above n 6, at [67].

^[18] At [69].

^[19] For example, in relation to Ms Davis’ claims of privacy and confidence breaches, at [74], [77], and [80]–[81]; in relation to her claims to have been defamed, at [90]–[91]; in relation to her claim to “a right to be forgotten”, at [101]; in relation to her claim of incitement of suicide, at [109]; and in relation to her claim to suppression orders, at [133]–[134].

^[20] At [87].

^[21] At [95]–[98].

^[22] At [125].

^[23] At [126].

^[24] Attorney-General v Chapman, above n 8, at [54], citing Fray v Blackburn [1863] EngR 231; (1863) 3 B & S 576, 122 ER 217 (KB); and Sirros v Moore [1975] QB 118 (CA), as referred to in Gazley v Lord Cooke of Thorndon, above n 8, at 679 per Henry J.