Prasad v Indiana Publications (NZ) Limited [2012] NZHC 2582 (5 October 2012)

Last Updated: 23 October 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-004172 [2012] NZHC 2582

BETWEEN RAJENDRA PRASAD Plaintiff

AND INDIANA PUBLICATIONS (NZ) LIMITED AND 16 OTHERS [OR 23

OTHERS] Defendants

Hearing: 4 October 2012

Appearances: R Prasad in person, the Plaintiff

G M Harrison for the 1st to 8th Defendants and on instructions from counsel representing the 10th, 12th, 13th, 14th and 17th Defendants

Judgment: 5 October 2012

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

05.10.12 at 4:30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors/Counsel:

_{R Prasad - [e-mail]}

G Harrison, Barrister, Newmarket – for 1st to 8th Respondents – [e-mail] /

_[e-mail]

Mr Treleaven for the Law Society, 9th Respondent – [e-mail] Mr O’Brien, Hesketh Henry, 21st Respondent – michael.o'[e-mail] / [e-mail]

Mr Pamatatau, for ANZ National Bank, 15th Respondent - [e-mail] /

[e-mail]

Copy to:

_{J Gandy, Thomas & Co, New Lynn – [e-mail]}

T Warburton, Crown Law Office, Wellington – 2nd, 3rd and 4th respondents

C Jones, Official Assignee, Auckland – [e-mail]

RAJENDRA PRASAD V INDIANA PUBLICATIONS (NZ) LIMITED AND 16 OTHERS [OR 23 OTHERS] HC AK CIV 2012-404-004172 [5 October 2012]

[1] On 7 September 2012 I presided over a case management conference call in this matter.

[2] The conference was convened before me to assist the Court to understand more about Mr Prasad’s current proceeding about circumstances that appeared to have been the subject of previous proceedings involving Mr Prasad.

[3] A number of counsel were present at that conference, as my conference minute noted. On behalf of the 1st – 8th defendants Mr Harrison filed a lengthy memorandum containing his analysis of the new proceeding containing nine pleaded causes of action filed by Mr Prasad on 23 July 2012. He, as did other counsel, invited the Court to deal with the proceeding summarily by striking it out.

[4] I then invited Mr Prasad to explain to me what was contained in his new proceeding that had not already been covered in the many other proceedings in which he has challenged the order for his bankruptcy made on 11 November 2010.

[5] Following this I adjourned the matter for call in a chambers hearing on 4

October 2012 for the purpose of considering whether Mr Prasad’s new proceeding

filed under CIV 2012-404-4172 should be struck out.

[6] Previously and through the various other proceedings he has filed Mr Prasad has challenged the lawfulness of the sealed order for judgment which was filed as proof of his indebtedness at the time the adjudication application against him was filed. 1 In one proceeding he challenged the amount of the award of costs. In another (also under CIV 2010-404-3333), before me on 16 December 2011, he argued that because the award of costs related to proceedings filed in the District Court, that the sealed order for costs itself should have issued from the District Court. I held that because the order for costs was fixed in the outcome of an appeal

to the High Court that the sealed order for costs properly issued from the High Court.

[7] A review of that decision was dismissed by Brewer J on 1 March 2012 when the learned Judge also directed the Registry not to accept for filing any documents from Mr Prasad which related to his bankruptcy. An appeal of that decision to the Court of Appeal will likely lapse because the security for costs ordered, has not been paid.

[8] In another previous proceeding Mr Prasad has pursued a copyright claim personally when those claims which he brought in the name of his company failed. The Court of Appeal found that Mr Prasad’s company indeed did own the copyright in a business directory, and not Mr Prasad personally. 2 The Court also confirmed Judge Blackie’s finding that in any event there had been no breach of copyright.

Recent developments

[9] Following my direction for this matter to be called on 4 October 2012, Mr

Prasad filed an application for review of that direction. It was heard before Katz J on

1 October 2012. The learned Judge’s decision issued yesterday. Her Honour accepted Mr Harrison’s submission that Mr Prasad’s application before her did not identify a reviewable decision of mine made on 7 September 2012 – rather that my minute was directed to procedural and not substantive issues.

[10] Yesterday Mr Prasad handed me copies of two documents he said he had filed that day. They are headed:

(a) Application for recall of Katz J judgment. (b) Notice of appeal: final judgment of court.

[11] Mr Prasad explained that he has filed an appeal against the decision of Katz J.

_{His grounds of appeal include:}

To disqualify Gary Harrison who represents the first to eighth respondents.

To make a determination of correct ownership of Indian Bizz (the copyright).

For entry of final judgment (in terms of which Mr Prasad has already filed in this proceeding the form of judgment he has crafted to assist

_{the Court of Appeal).}

_{For annulment of bankruptcy.}

[12] The document asserts Mr Prasad is the true copyright owner and should have been added as a party in the original proceedings which he says was the fault of the hearing Judge because although he personally withdrew his claim of copyright in favour of his company at the District Court hearing, the Judge ought to have reinstated him as a plaintiff once all the evidence was heard.

[13] Regarding the insolvency matter he reiterates the point he has throughout that the adjudication application was incorrectly supported by an order for judgment which was sealed in the wrong Court.

[14] Regarding his recall application, Mr Prasad says that in the event his application for a recall is granted, he will not proceed with his appeal. His grounds for recall are essentially the same as those detailed in support of his application for appeal.

[15] Mr Prasad says that Katz J did not, as he said the learned Judge said she would, record in her judgment a direction to myself to determine the ownership of copyright which is at the core of all of Mr Prasad’s issues. Mr Prasad is confident that if the copyright matter is closely examined then any Judge will plainly see that he personally was the owner of the copyright. When that position is accepted it will be agreed that he should have won in the District Court proceeding; and that he would not have been ordered to pay the costs in the High Court which provided the foundation for the bankruptcy application subsequently.

Strike out

Jurisdiction

[16] Rule 15.1 of the High Court Rules empowers the Court to strike out or stay all or part of a proceeding if it discloses no reasonably arguable cause of action or if it is otherwise an abuse of the process of Court. Importantly, the Rule does not affect the Court’s inherent jurisdiction.

[17] An abuse of process may take several different forms including attempts to relitigate matters already determined. Leave to make an application for strikeout can be made at any time.

[18] An Associate Judge has the inherent jurisdiction of the Court pursuant to s 26

IA of the Adjudicature Act 1908. 3

Abuse of process

[19] Mr Harrison submits the new proceeding is an abuse of process because the nine causes of action which are raised, are attempts to relitigate issues already finally determined.

[20] As stated by Lord Maughan LC in New Brunswick Railway Co v British and

French Trust Corporation Limited 4:

If an issue has been distinctly raised and decided in an action, in which both parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them...

[21] In this case Mr Prasad advised the Court that he has filed an appeal against the decision of Katz J for the purpose of transferring all of his issues to the Court of Appeal. He says in effect that because of that appeal this Court, and myself, does not have any jurisdiction to hear the matter at all much less upon a strike out

_application.

3 _{Cordova v Weznel [2005] NZHC 470; (2005) 18 PRNZ 184 per Venning J.}

4 (1939) AC 1 (HL) at 20.

[22] Mr Prasad contends that he was at all times the owner of the copyright in question because he was the author of it. What Mr Prasad overlooks is that the entire issue in the District Court before Judge Blackie and on appeal before Asher J was whether the respondents had breached the copyright. Judge Blackie found they had not and Asher J confirmed this on appeal.

[23] Accordingly ownership of copyright is a side issue – it does not really matter who owned it. Fundamental to the aforesaid decisions was the finding that there was no breach of it.

The new proceeding

First cause of action

[24] It appears to relate to the claim that the costs order of Wylie J on which the bankruptcy notice was based was not sealed by the right Court. I agree with Mr Harrison that Bell AJ in his decision upon CIV 2010-404-3333 dated 27 July 2010, accepted that there was no irregularity about the order and no basis upon which the order could be set aside.

[25] Further, no issue was raised by Mr Prasad concerning the sealing of the costs order when on 11 November 2010 Mr Prasad was adjudicated bankrupt.

[26] I accept the submission that raising that cause of action again is an abuse of the process of the Court; that the proper forum for its determination is the Court of Appeal; and accordingly it will be struck out.

Second cause of action

[27] This again challenges the quantum of the costs order made by Wylie J. It too was subject to issues raised by Mr Prasad in his challenge of the making of the costs order, its sealing, and because it provided the foundation of the order for bankruptcy.

[28] Accordingly it too should be struck out as an abuse of the process of the

Court as raising a matter already finally determined.

Third cause of action

[29] This too challenges the process of the insolvency proceedings and is about the costs order Mr Prasad said was not properly sealed. Mr Prasad seeks an annulment of bankruptcy. Again these issues were considered by Bell AJ and Faire AJ upon Mr Prasad’s application to recall an earlier judgment.

[30] Those decisions are final. Mr Harrison is correct that the cause of action raises matters now finally determined.

[31] The third cause of action also is an abuse of the process of the Court and is struck out.

Fourth cause of action

[32] This cause of action also challenges the sealing of the costs order. As earlier noted that challenge was dealt with by other decisions. I accept Mr Harrison’s submission that nothing new is advanced by this cause of action and the issue has been finally determined. Accordingly, the fourth cause of action is an abuse process and is struck out.

Fifth cause of action

[33] It pleads that the respondents breached the Insolvency Act and that the Official Assignee should not have been appointed. It is clear that this claim is linked to others purporting to undermine the order for adjudication. Nothing new is raised by it. The issue has as Mr Harrison submits been finally determined. This cause of action is an abuse of process and it is struck out.

Sixth cause of action

[34] In this, Mr Prasad pleads that the ANZ/National Bank and Mr Scheerer a real estate agent sold the property (by mortgagee sale process) “based on illegal bankruptcy”. There is no explanation about how those parties breached the mortgagee sale process pursuant to the Property Law Act 2007. It can be assumed

that the pleading against the bank and the real estate agent is based on the fact that Mr Prasad was, as he claims, illegally registered as being bankrupt. Clearly the cause of action relates directly to the fact of Mr Prasad’s bankruptcy and for that reason it has no prospect of success. It is struck out.

Seventh cause of action

[35] This cause of action concerns the Court of Appeal’s judgment in the matter of the application by the first four named respondents in the present proceeding, against a decision of Associate Judge Doogue dismissing their application for summary judgment in proceedings brought against them by Mr Prasad for breach of copyright. It is that same matter that I have referred to in paragraph 7 herein. As I earlier noted the Court held that Mr Prasad’s company and not he owned the copyright.

[36] In his seventh cause of action Mr Prasad appears to allege that the Court of Appeal was misled, and that consequently breaches of the Copyright Act and National Library Act occurred. It allowed an appeal against a decision of Doogue AJ who had refused to strike out proceedings brought afresh by Mr Prasad, after previous proceedings brought in the name of his company were exhausted.

[37] As Mr Harrison submits the Court of Appeal confirmed previous lower Court findings that Mr Prasad’s company owned the copyright in the business directory and not Mr Prasad personally.

[38] I accept Mr Harrison’s submission that the alleged cause of action discloses no tenable cause of action. It is struck out.

Eighth cause of action

[39] I accept Mr Harrison’s assessment that this appears to claim that Indiana Publications (NZ) Limited and its director, Mr Lal, and Judge Blackie’s original decision, were illegal and that copyright in the Indian Bizz was owned by Mr Prasad.

[40] But, no one but Mr Prasad accepts that he owned the copyright. All including

Judge Blackie considered the copyright was owned by his company. Indeed Mr

Prasad swore an affidavit in his own proceeding to that effect. The cause of action confirmed that the company was the owner. The original finding by Judge Blackie to that effect cannot now be challenged.

[41] Claims now that Mr Prasad owned the copyright are an abuse of process. That cause of action is struck out.

Ninth cause of action

[42] This appears to be a repeat of the eighth cause of action and Mr Prasad’s claim that he owned the copyright in question. Mr Harrison is correct in his submission that Judge Blackie held there was no breach of copyright in any event and every subsequent Court has upheld that finding, and therefore it can no longer be the subject of challenge.

[43] That cause of action is also struck out as an abuse of process.

Conclusion

[44] It is clear from the reasons I have given that there is nothing in the pleading that is capable of amendment to an extent that it would appear more acceptable than has already been attempted.

[45] The proceeding is struck out. [46] Costs are reserved.

Other Matters

[47] In paragraph 7 herein I referred to the direction of Brewer J made on 1 March

2012 directing the Registry not to accept for filing any documents from Mr Prasad which related to his bankruptcy. Henceforth that direction is to extend to the filing of any documents from Mr Prasad relating to his copyright claims. Of course that prohibition should not prevent Mr Prasad from filing any application for a review of

this judgment. The direction is meant to restrain Mr Prasad from the filing of any new proceeding.

[48] I suggest that if the Registry is in any doubt about the substance of further documents filed by Mr Prasad, and there will surely be more of those, then the Registry should refer the matter to Brewer J or myself for consideration.

[49] I am informed by the Registry that Mr Prasad has filed many documents by email or facsimile, sometimes in the early hours of the morning. These should be collected on a file appropriately labelled. Any documents at all from Mr Prasad will only be considered appropriate for filing if they are received over the Registry’s

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Associate Judge Christiansen