Heenan v Smith [2013] NZHC 1282 (31 May 2013)

Last Updated: 18 August 2013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV2012-409-002680 [2013] NZHC 1282

BETWEEN DAVID STANLEY HEENAN Applicant

AND ELLEN SMITH Respondent

Hearing: 22 May 2013

Counsel: Applicant in Person

M Wallace for Respondent

Judgment: 31 May 2013

_{JUDGMENT OF WHATA J}

[1] Mr Heenan is a vexatious litigant.1 He now makes an application to commence proceedings against his former partner, Ms Smith. The pleadings and other information filed in support of the application contain a mix of scandalous material in what otherwise might be described as a simple claim in contract for a debt owing.

[2] The scandalous material includes outrageous reference to (alleged) personal conduct by Ms Smith. That material, by itself, would provide a proper basis for me to refuse leave to commence proceedings. It is abusive, and to allow these allegations to proceed any further in this Court would be an abuse of its processes.

[3] Sensibly, Mr Heenan agreed that the scandalous material would have to be removed.

1 _{Refer Attorney-General v Heenan HC Christchurch CIV 2007-412-001061, 19 August 2009.}

HEENAN v SMITH [2013] NZHC 1282 [31 May 2013]

[4] Mr Wallace, acting for Ms Smith, made the cogent point that this Court ought to be reluctant to grant leave given Mr Heenan’s propensity to abuse Court processes and given the abusive nature of the allegations just mentioned. He accepted, however, that within the material provided by Mr Heenan was a prima facie case for a claim of breach of contract and debt.

[5] Mr Heenan claims that he lent the sum of about $8,000 to Ms Smith for the purposes of an overseas trip. He says that having now undertaken the trip, Ms Smith refuses to reimburse the money owing to him, plus interest and other costs. He makes other allegations of a scandalous nature, as mentioned, but agrees that they must be withdrawn.

[6] Given the simplicity of Mr Heenan’s claim, I am prepared to grant him leave

but based on the following conditions:

(a) Mr Heenan must retain counsel to act on his behalf, both for the purposes of filing pleadings and for appearance at Court;

(b) The pleadings will be strictly limited to a claim for breach of contract and debt and specifically related to monies said to be paid on Ms Smith’s behalf for the purposes of the overseas travel;

(c) There will be no allegations made relating to the personal conduct of Ms Smith except insofar as strictly relates to the alleged verbal agreement to repay the travel monies and her refusal to make that payment;

(d) The pleadings shall be filed within two weeks by Mr Heenan’s

counsel.

[7] Once pleadings are properly filed, the matter will be allocated a case management conference to secure a speedy resolution of the claim.

[8] I note for completeness that I inquired of Mr Heenan as to whether there was any reason why he ought not to be required to retain counsel to act on his behalf in

this matter, given that there was evidence before me that he had sufficient capacity to pay for overseas trips. He indicated that in fact the Trust had paid for the trip. This raised a related issue as to whether or not Mr Heenan was in fact the appropriate plaintiff. In any event he did not identify why the Trust could not pay for counsel in what is a relatively straight forward claim.

[9] I note for completeness that leave is not granted to commence proceedings in this Court or any Court under the Property (Relationships) Act 1976. This Court might revisit any such claim depending on the outcome of the breach of contract allegations.

Solicitors:

M Wallace, Christchurch

cc: Mr D S Heenan