N v M [2014] NZHC 239 (21 February 2014)

Last Updated: 19 March 2014

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE APPLICANT OR THE FIRST RESPONDENT PURSUANT TO S 39 OF THE HARASSMENT ACT 1997 AND FURTHER COURT ORDERS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-75 [2014] NZHC 239

BETWEEN N Applicant

AND M

First Respondent

JACKSON RUSSELL Second Respondent

RICHARD KEITH McLEOD HAWK Third Respondent

SARAH PIERCE FITCHETT Fourth Respondent

Hearing: 29 August 2013

Appearances: Applicant in person

R Hollyman and G Tompkins for the First Respondent

J Keating for the Second, Third and Fourth Respondents

Judgment: 21 February 2014

_{JUDGMENT OF WOODHOUSE J}

This judgment was delivered by me on 21 February at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

..........................................

Counsel / Solicitors / Parties: Mr N

Mr R Hollyman, Barrister, Auckland

Mr C Browne / Mr G Tompkins, Wilson Harle, Solicitors, Auckland

Mr M Dennett / Ms J Keating, Kennedys, Solicitors, Auckland

N v M [2014] NZHC 239 [21 February 2014]

[1] Under s 39 of the Harassment Act 1997 and District Court orders, the names of the applicant and first respondent are not to be published. I will refer to the applicant as Mr N and to the respondent as Ms M. The second respondent, Jackson Russell, is a law firm that acted for Ms M. The third respondent, Mr Hawk, and the fourth respondent, Ms Fitchett, are, respectively, a partner and staff solicitor in Jackson Russell.

[2] In May 2012 Ms M commenced proceedings in the District Court under the Harassment Act against Mr N (the harassment proceeding). In July 2012 Mr N commenced a civil proceeding in the District Court against Ms M (the civil proceeding).

[3] In January 2013 Mr N applied to this Court for orders that the respondents be held in contempt of court in, or in connection with, the harassment proceeding and the civil proceeding (the contempt application). The respondents have applied for orders that the contempt application be dismissed, or stayed, or that specific orders sought in the contempt application be struck out. The principal grounds are that the application, or particular parts of it, cannot succeed, and that the application is frivolous, vexatious and otherwise an abuse of process.

The factual background

[4] In February 2012 Ms M was working as a prostitute in a brothel. Mr N had been a client for approximately two months. On 8 February, when Mr N was with Ms M at the brothel, a dispute arose. It is unnecessary to go into the detail. Ms M asked Mr N to leave. Following verbal exchanges and an attempt by Ms M to return money and a mobile phone to Mr N, which he refused to accept, Mr N left the brothel.

[5] Following this Ms M did not want to have any further contact with Mr N. He sought to make contact with her. This was rebuffed. Ms M contended that Mr N then did a number of things and this led to her commencing the harassment proceeding.

The harassment proceeding

[6] On 15 May 2012, when Ms M filed her application for a restraining order under the Harassment Act, she also filed a without notice application for a protection order under the Domestic Violence Act 1995. The Domestic Violence Act applies if there is a “domestic relationship”. The two applications were accompanied by an affidavit from Ms M, and a memorandum from Ms Fitchett as counsel, addressing this point. The affidavit expressly recorded that the relationship that Ms M claimed she had been in with Mr N was a “contractual sexual relationship ... for approximately two months, one day per week for two hours per week”. The memorandum from Ms Fitchett included the following:

The Applicant has filed an Application without notice for Protection Order and, in the event that the Court does not find that the parties have been in a qualifying “domestic relationship” pursuant to section 7 of the Domestic Violence Act 1995, an Application for Restraining Order has been filed contemporaneously.

Ms Fitchett, in an affidavit in this proceeding, deposed that she proceeded in this way on the authority of a decision of this Court in Dudley v Brooks.¹ The District Court Registrar directed that the domestic violence application should not proceed and it went no further.

[7] The Harassment Act application was opposed by Mr N. In response to some allegations of Ms M he asserted that attempts to contact her were in an effort to recover fees he had paid for their last session on the basis that he had not stayed for the full two hours. He also claimed compensation for the mobile phone he had given her. Ms M had said that the mobile phone had been given to her so that he could contact her directly. Mr N alleged that Ms M had paranoid delusions about his behaviour.

[8] In the harassment proceeding Mr N made a number of interlocutory or similar applications. The nature of some of those, and persistence with some, are matters relevant to the present strike out applications. These applications are

_{summarised in schedule 1 to this judgment and, in part, in schedule 3.}

¹ Dudley v Brooks [1999] 2 NZLR 234 (HC) at 255, (1998) 17 FRNZ 612 at 634. See also S v C

HC Auckland CIV-2009-404-4304, 18 September 2009 at [21].

[9] The harassment proceeding came on for hearing on 9 May 2013. The Judge granted the application and made a restraining order against Mr N for a period of five years.² Reference should be made to that judgment for the reasons for the Judge’s conclusion. It is unnecessary to summarise them in this judgment.

[10] Ms M sought indemnity costs or increased costs in the harassment proceeding. Judgment was given for indemnity costs.³

The civil proceeding

[11] The civil proceeding was commenced by Mr N in the District Court against Ms M on 3 July 2012. The original causes of action were for breach of contract, defamation and breach of confidence. Mr N sought damages in a sum of $4,364.50. The claim was amended to include causes of action alleging unjust enrichment, breach of the Consumer Guarantees Act 1993, breach of privacy by bringing the harassment proceeding, and maliciously filing the harassment proceeding and the Domestic Violence Act application. The damages sought were increased to

$84,842.80.

[12] As in the harassment proceeding, in the civil proceeding Mr N made a number of applications which are relevant to the present strike out application. Those applications are summarised in schedule 2 to this judgment and, in part, in schedule 3.

[13] On 21 August 2013 an application was heard in the District Court to strike out the civil proceeding. This was an application by Ms M as the defendant and by Jackson Russell as the proposed second defendant. In a reserved decision all of the claims were struck out.⁴ The Judge held that most of the claims could be struck out because the pleaded facts did not disclose a cause of action, the cause of action did

_{not exist at law, or there was a total defence based on the applicant’s own pleadings.}

² _{MLR v NR DC Auckland CIV-2012-004-1034, 9 May 2013.}

³ _{MSR v R2 DC Auckland CIV-2012-004-1034, 14 June 2013.}

⁴ NR v MLR DC Auckland CIV-2012-004-1388, 16 October 2013, recalled and reissued 11

November 2013.

The Judge also held that the proceeding should be struck out because it was frivolous and vexatious. He concluded:⁵

I am satisfied that there are no genuine interests in this proceeding for the plaintiff to try to protect or recover losses for under the various heads of claim he has brought. However, unlike the parties in Deliu v Hong⁶ there is something more at issue here than wounded egos, rather a more sinister use of the Court’s processes for the further harassment of the defendant through the use of legal procedures. For that reason not only am I satisfied that the proceedings are frivolous but I also believe they are vexatious.

Further proceedings and complaints by Mr N

[14] Since the harassment proceeding was commenced, in addition to the civil proceeding, Mr N has commenced other proceedings and taken other substantive steps by way of complaint. All related to matters arising out of the harassment proceeding and the civil proceeding. These are summarised in schedule 3 to this judgment.⁷ In total Mr N commenced seven separate proceedings or complaints. Each of the substantive proceedings, when first issued, is recorded in capitals and in bold in schedule 3. The fourth substantive proceeding, chronologically, was an application filed in this Court on 15 November 2012 for judicial review of what

amounted to interlocutory decisions in the course of the harassment proceeding. That application for judicial review, as recorded in schedule 3, was amended on three occasions to extend the application to other decisions made in the harassment proceeding and the civil proceeding. Decisions on the appeals and judicial review application are pending.

The present application for contempt orders

[15] Contempt orders are sought in respect of nine categories of alleged contempt by one or more of the respondents. These may be summarised as follows:

(a) Complaints (a)-(d) against Ms M are all complaints relating to discovery, or provision of documents for inspection, by Ms M.

⁵ _{At [52].}

⁶ _{Deliu v Hong [2011] NZHC 602; [2011] NZAR 681 (HC) at 685.}

7. For convenience the dates of issue of the harassment and civil proceedings are included in the chronology together with some other steps taken in those proceedings.

(b) Complaint (e) against Jackson Russell relates to a request by Mr N for an affidavit of service from a process server hired by Jackson Russell to serve Mr N. Mr N alleged Jackson Russell improperly instructed the process server not to provide the affidavit.

(c) Complaint (f), against Mr Hawk, alleges Mr Hawk misled the Court in three memoranda to the Court in the harassment proceeding.

(d) Complaints (g) and (h) allege, in essence, that there never should have been an application for a protection order under the Domestic Violence Act. Complaint (g) is against Ms Fitchett. Complaint (h) is against Ms M and Jackson Russell for allegedly commencing the Domestic Violence Act proceeding “without probable and reasonable grounds”.

(e) Complaint (i) alleges that the way Ms M and Jackson Russell conducted the proceedings means they are guilty of contempt of court. Much of the complaint repeats earlier allegations.

[16] The remedies Mr N seeks for each complaint is a fine varying from $500 to

$5,000, or “any other amount at the Court’s discretion”. A further order is sought

that half the total of fines be paid to the applicant. And he seeks costs.

The strike out applications

[17] All respondents applied to strike out the applications against each of them. In addition to the broad grounds summarised above,⁸ the respondents contended that the contempt application was an attempt to re-litigate matters that had already been determined by the District Court in relation to the merits of the Harassment Act proceeding and by the New Zealand Law Society’s Standards Committee in relation to allegations of professional misconduct. The respondents further argued that the

_{instances of non-compliance with Court rules or Court directions were trivial; that if}

⁸ At [3].

they proved to be factually correct, they were so minor that they could not be characterised as contempt of court justifying any form of punishment or sanction.

Conclusions in brief

[18] All of the applicant’s complaints are struck out. Many can be struck out based on documentary evidence alone which demonstrates conclusively that the allegations are not factually correct. Other claims, such as witness tampering and breaching privilege, are not made out on the facts as pleaded. The rest, even if true, are so trivial that they could never support a finding of contempt.

[19] I am also satisfied that this proceeding should be struck out because it is vexatious, an abuse of process, and a further attempt to victimise and harass Ms M through litigation.

Strike out principles

[20] Strike out applications are governed by r 15.1 of the High Court Rules. The Court may strike out all or part of a “pleading”, which includes Mr N’s originating application,⁹ if the pleading: discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or is likely to cause prejudice or delay; or is frivolous or vexatious; or is otherwise an abuse of the process of the Court.

[21] Subject to one relevant and important exception, a strike out application proceeds on the assumption that the pleaded facts are true. This is so even if the facts are not admitted.¹⁰ The important exception is that allegations of fact which are demonstrably untrue will not be accepted.¹¹ This exception is particularly relevant in this case because numbers of the contempt allegations assert that Court orders were

breached and whether or not this is correct will, in the circumstances, be apparent

_{from the Court record. The merit of other allegations turns entirely on construction}

⁹ Group Rentals NZ Ltd v Pramb Wong Enterprises Ltd [1995] 1 NZLR 763 (HC) at 767, (1994) 8

_{PRNZ 113.}

¹⁰ _{Attorney General v Prince [1998] 1 NZLR 262 (CA) at 267.}

11. Attorney General v McVeagh [1995] 1 NZLR 558 (CA) at 566; NZ Guardian Trust Company Ltd v Peat Marwick (1990) 3 PRNZ 423 (HC).

of documents. If the alleged facts on which a claimant relies are demonstrably wrong a claim may be struck out.

[22] A claim may also be struck out if, as a matter of law, the claim is so clearly untenable that it cannot succeed.¹²

[23] Claims that may not be untenable may nevertheless be struck out if they are frivolous or vexatious or otherwise an abuse of the process of the Court. A frivolous claim is one which trifles with the Court’s processes, while a vexatious claim is one which contains an element of impropriety.¹³

[24] The last ground – “otherwise an abuse of process of the Court” – 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. Proceedings brought effectively to re-litigate matters that have already been finally decided by a Court – a collateral attack on an existing decision of the Court – will generally be struck out as an abuse of process.

Summary grounds to strike out

[25] The history of all of the litigation preceding the present application by Mr N for contempt orders, summarised above and in schedules 1-3, makes clear that Mr N is misusing the Court’s processes. In addition, many of the allegations he makes, even if proven, are so trivial that litigating them serves no proper purpose justifying use of the Court processes. Given that the Court uses its jurisdiction to punish for contempt sparingly, the way Mr N has chosen to litigate these trivial issues also shows his claim is frivolous or vexatious and should be struck out.

[26] The proceeding is also vexatious, or an abuse of process, in that nearly identical claims were made in the civil proceeding and, separately, made as a complaint to the New Zealand Law Society, and in different ways have been subject

_{to judicial review applications and appeals. While all of those matters had not been}

¹² _{Attorney General v Prince, above n 10, at 267.}

¹³ Commissioner of Inland Revenue v Chesterfield Preschools Ltd [2013] NZCA 53, [2013] 2

NZLR 679 at [89].

concluded when Mr N filed his originating application, the proliferation of proceedings, given the subject matter of those proceedings, demonstrate that he is acting in bad faith.

[27] For these various reasons the proceedings should be struck out in their entirety. However, in fairness to the parties, and as a matter of record against the possibility that Mr N will seek to issue further proceedings, and because it bears on costs, I will consider the individual complaints in more detail and set out more detailed reasons for striking out each of the complaints. This is preceded by a discussion of relevant aspects of the law of contempt because it bears on the reasons why I have concluded with sufficient certainty that the discretionary remedies that Mr N seeks would not be granted to him.

Law of contempt

[28] The Supreme Court recently described the jurisdiction to punish for contempt of court in the following terms:¹⁴

The “great coercive powers of proceedings for contempt” are common law jurisdiction possessed by courts to punish, including by imprisonment, conduct which risks undermining the administration of justice. Although the circumstances in which contempt may be found vary, a commonly recurring basis is knowing breach of a court order. Such orders may comprise substantive final or interlocutory relief in proceedings or orders ancillary to the exercise of substantive jurisdiction made under the inherent power of the court to control its processes.

[29] The focus is on protecting the integrity of the Court’s processes and, more broadly, the administration of justice, and not on some form of vindication of claims of the individual litigants involved in the case.¹⁵ Broadly speaking, contempt may either be criminal or civil. Criminal contempt consists of words or acts obstructing or tending to obstruct or interfere with the administration of justice either in the face of the Court or outside it. Civil contempt consists of disobedience to the judgments, orders, or other processes of the Court.¹⁶ Mr N alleges both. Failure to comply with procedural

_{rules, such as the District Court Rules or High Court Rules, does not fall within the}

¹⁴ Siemer v Solicitor General [2013] NZSC 68, [2013] 3 NZLR 441 at [1]. Although a minority

_{judgment, the majority did not disagree with Elias CJ’s comments on that matter.}

¹⁵ Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA) at 229-231; Duff v Communicado

_{Ltd [1996] 2 NZLR 89 (HC) at 97 and Hargreaves v Smith [2012] NZHC 3316 at [5]- [6].}

¹⁶ Hargreaves v Smith, above n 14, at [6]

scope of contempt because they are not orders of the Court. Conduct which might in a technical sense come within the scope of criminal or civil contempt will not in general result in a finding of contempt if other powers are available to the Court to provide an adequate response.¹⁷

[30] Jurisdiction to hold a person in contempt of court is found in legislation, such as s 56C of the Judicature Act 1908, and in the High Court’s inherent jurisdiction preserved by s 16 of the Judicature Act.¹⁸

[31] Mr N, who acted on his own behalf (as he did in the harassment and civil proceedings) sought to rely on a range of legislation and decisions as providing jurisdiction for the contempt orders. This range might be described as a mixed bag. However, given that this is a strike out application, I will approach jurisdictional issues on the basis most favourable to Mr N; that is to say, where, for example, a statute relied on by Mr N does not apply, I will consider the particular claim as though Mr N sought to invoke the Court’s inherent jurisdiction.

[32] Mr N’s complaints relate to alleged past conduct, as opposed to continuing conduct. There is jurisdiction to impose a fine for past contempt.¹⁹ However, the purpose of a sanction for civil contempt is primarily to coerce compliance, not merely to punish.²⁰

The complaints in detail

Complaints (a)-(d) against Ms M

[33] Complaints (a)-(d) are all complaints relating to discovery, or provision of documents for inspection by Ms M. All complaints can be struck out as untenable based on indisputable documentary evidence. This shows that Ms M did, in fact,

_{comply with discovery orders except where compliance was not possible.}

¹⁷ _{Hargreaves v Smith, above n 14, at [7]}

¹⁸ See Quality Pizzas Ltd v Canterbury Hotel Employees Industrial Union [1983] NZLR 612 at

615-616. The High Court’s inherent power includes power to punish for contempt in the District

_Court.

¹⁹ _{Land Transport Safety Authority v McNeil (1999) 14 PRNZ 134 at [23] and [28].}

²⁰ Robinson v Hempseed HC Christchurch CIV-2006-409-1858, 10 July 2009 at [23](e).

[34] Complaint (a) relates to Mr N’s request for discovery of particular documents on 3 October 2012 in the civil proceeding. On 10 October 2012, counsel for Ms M stated in a memorandum: “The defendant will address the plaintiff’s request for discovery of the documents listed at paragraph 13 of his memorandum, in her affidavit of documents.” The Court directed Ms M to provide a list of documents. Mr N then said that in Ms M’s affidavit of documents, dated 1 November 2012, she “wilfully and without reasonable excuse” failed to address the applicant’s request for discovery of four of the five specified documents.

[35] Ms M submitted that Mr N overstated the matter. First, she submitted that she did not undertake to provide all the documents sought by Mr N. Rather, she indicated she would deal with the matter in her affidavit. She submitted also that the Court’s direction was not to provide the specific documents sought by Mr N, but to provide: “a list of documents to the plaintiff [Mr N] by 1 November 2012. Any documents that the plaintiff requires are to be provided to him within five working days.”

[36] The wording of Ms M’s memorandum and the Court’s order do not reflect an obligation to provide specific documents. Both are expressed in the language of general discovery. Thus by complying with her general discovery obligations Ms M did not breach the order. The documentary evidence is sufficient to deal with this point: it is untenable as a matter of fact. This complaint is struck out.

[37] Complaint (b) relates to a further request, on 3 November 2012, for Ms M to make two particular emails available for inspection. Ms M provided those emails for inspection on 7 November but without attachments referred to in the emails. On 20

November Mr N requested copies of the attachments. He alleged Ms M failed to reply.

[38] Ms M submitted that the attachments did not need to be provided because they contained documents that had already been filed in Court – namely, her affidavit and the proceeding that Mr N filed. Again, the documentary evidence establishes this beyond doubt. That being the case, Ms M did not breach her discovery obligations. She was not required to provide documents Mr N had already received

or written himself. She was not in contempt of court on this issue and this claim is struck out.

[39] Complaint (c) was said to arise from a Court direction following a hearing on

4 December 2012 when a contempt application by Mr N in the District Court came before the Court for further directions. However, the complaint is effectively a continuation of complaint (b) – failure to provide copies of documents which Mr N already had. The claim is untenable as a claim of contempt and is struck out.

[40] Complaint (d) relates to a further request for “better discovery” that was also subject to directions arising out of the hearing on 4 December. Mr N was directed to provide a list of the other documents he sought and to serve that on Ms M. This clearly contemplated a list of specific documents or categories which were particularised so that each document was easily identifiable. Ms M was to file and serve an affidavit in respect of each of the documents specified by Mr N. She was not required to discover those documents; she was merely required to state whether they existed or not.

[41] Mr N alleged that Ms N “wilfully and without reasonable excuse failed to serve the affidavit” on him. Ms N submitted that Mr N failed to comply with the order, so she could not respond to his list.

[42] It seems that list of further documents relied on by Mr N was contained in an application he made on 3 October 2012. He did not file a further list of documents. The existing list was far too broad. For the most part, it simply sought “relevant” documents, without more. Because Mr N failed to specify the documents, Ms N could not comply with any order so she cannot be in contempt of court. This cause of action is untenable and is struck out.

[43] Mr N also made repetitive, generalised complaints about failure to discover documents in complaint (i). For the reasons above, these are untenable and are struck out.

Complaint (d)

[44] On 1 November 2012 Mr N asked a process server, Mr Sewell, for an affidavit of service in relation to a document served on Mr N by Mr Sewell on instructions from Jackson Russell. Mr Sewell advised Mr N that he would need to check with Jackson Russell, but said that what Mr N had asked for was not unreasonable. Mr Sewell subsequently advised Mr N that Jackson Russell preferred that he not provide an affidavit of service. Mr N contended that Jackson Russell’s actions breach rr 2.2 and 13.2.4 of the Rules of Conduct and Client Care for Lawyers

2008 and “violated, or bordered on violating” two provisions of the Crimes Act 1961

– s 116 (conspiring to defeat justice) and s 117 (corrupting juries and witnesses).

[45] Jackson Russell, against whom this complaint was made, submitted that there is a complete answer from Ms Fitchett’s evidence. Ms Fitchett advised Mr Sewell that she preferred that no affidavit of service be provided, but also told him that he could be subpoenaed to give evidence on the matter if Mr N chose to subpoena him. Jackson Russell also submitted, in effect, that because Mr N had responded to the document served on him, proof of service was irrelevant.

[46] Jackson Russell’s first submission is a complete answer to what amounts to an allegation of criminal contempt. The complaint is founded on misconceptions. Mr Sewell was not bound to provide affidavit evidence; he was free to refuse to provide the affidavit.²¹ Other processes, such as subpoenas, exist to compel potential witnesses.²² Mr N in fact applied in the civil proceeding for an order that Mr Sewell

appear and be examined on oath. There was nothing untoward in Ms Fitchett’s advice to Mr Sewell. Mr Sewell was Jackson Russell’s agent. Jackson Russell, through Ms Fitchett, was entirely justified in providing the advice that was given.

_{[47] Mr N’s complaint is untenable and is struck out.}

²¹ _{Andrew Beck and others McGechan on Procedure (online ed, Brookers) at [9.52.02].}

²² High Court Rules, r 9.52.

Complaint (f)

[48] Mr N’s allegations were directed to statements made by Mr Hawk in three documents filed in the harassment proceeding in November 2012; two memoranda from Mr Hawk and submissions Mr N alleged that, by statements made in these documents, Mr Hawk violated rr 13 and 13.1 of the Rules of Client Care and Conduct and “breached his absolute duty of honesty to the Court by wilfully or recklessly misleading and deceiving the Court in order to prejudice [Mr N] before the Court”.

[49] The complaints were supported by numerous particulars. These can be grouped into three kinds of allegation: errors made in the first memorandum; breach of privilege; and statements that misled the Court as to Mr N’s character. I deal with the particulars in these groups.

Complaint (f): category 1: errors made in the first memorandum

[50] 12 November 2012 was allocated to hear one of Mr N’s interlocutory applications. One to two days after the fixture was allocated, Mr N filed two more applications dated 7 November 2012. Mr Hawk’s memorandum was a response to those applications, among other matters. Mr N takes issue with the following alleged errors in the memorandum:

(a) Mr N complains that the memorandum said that the previous call-over date was 5 November, when it was in fact 6 November. The mistake, if proven, is so trivial it could never support an order of contempt against Mr Hawk. It is also vexatious to have advanced a complaint on such grounds. This complaint is struck out.

(b) The memorandum referred to one of Mr N’s applications as having a first call date of 4 December 2012, whereas Mr N alleges it had a first call date of 12 November 2012. The memorandum was discussing two applications, the second of which did specify a call date of 4

December 2012. Mr N’s complaint is struck out because it is untenable, and also because it is both frivolous and vexatious.

(c) Mr N complained that Mr Hawk’s memorandum suggested that an application by Mr N had been filed in the civil proceeding whereas the application Mr N referred to had been filed in the harassment proceeding. On a reading of Mr Hawk’s memorandum it is plain beyond reasonable argument that he was referring to an application in the harassment proceeding. This complaint is struck out as untenable and also because it is frivolous and vexatious.

(d) Mr Hawk’s memorandum also recorded that there was an order made by consent that prohibited publication, which Mr Hawk said Mr N later sought to overturn. Mr N complained that this was misleading because the order prohibited the publication of names and identifying details, not the substantive proceedings. Ironically, Mr N’s own application sought an order “rescinding all previously made orders

forbidding publication of this proceeding, if any”.²³ It is in fact Mr

N’s own application that made this mistake. Further, Mr Hawk’s memorandum refers to the date of the Judge’s order, which provides sufficient clarity as to the ambit of the order. Additionally, Mr N complained that this misled the Court because he never asked to rescind it. That is also untenable in the face of documentary evidence that he did make such an application. Mr N’s complaint is struck out because it is untenable, and also because it is both frivolous and vexatious.

Complaint (f): category 2: breach of privilege

[51] Mr N alleged that Mr Hawk was in contempt of court because he had disclosed emails from Mr N that were protected by privilege because they were made as part of without prejudice settlement offers.²⁴ The first two emails – sent on

30 August 2012 and 1 September 2012 – were disclosed by Mr N in the civil

_{proceeding. That being the case, he cannot claim privilege because, even if it had}

²³ Application entitled “Interlocutory Application on Notice in Respect of Costs and Publication of

_{Proceedings”, annexed to Mr Hawk’s affidavit dated 31 January 2013.}

²⁴ Evidence Act 2006, s 57.

applied, his actions amounted to a waiver.²⁵ The last four emails – two on 22

November 2012, 23 November 2012 and 31 January 2013 – were not disclosed by any of the respondents. Mr N has no tenable claim against the respondents in respect of any of these emails.

[52] The remaining emails were from Mr N to Jackson Russell on 26, 28 and 29

October 2012. Part of complaint (i) also seeks contempt orders against Ms M and Jackson Russell in respect of the same emails on the basis that they were included in an affidavit of Ms M. The primary issue is whether Mr N was entitled to privilege as provided for in s 57 of the Evidence Act 2006.

[53] On 26 October 2012 Jackson Russell, through Ms Fitchett, sent Mr N a settlement offer by email and post. That email was a genuine attempt to settle the dispute, and could attract privilege save as to costs.²⁶ Mr N replied on the same day saying he considered Jackson Russell’s letter worthless. He then said:

Without prejudice: this proceeding amuses me, I am mildly curious as to the outcome, and I am ready to pay for my entertainment (I expressly say that my derogatory statements apply only to Jackson Russell, the defendant and [another person], and have nothing to do with the Court, which I respect). I am not naive and realise that all the prejudice will be on your side. I am prepared for any outcome and I’m under no illusions here.

Thank you for the offer, but you won’t get any other reply from me. Please comply with the timetable.

In his first memorandum, Mr Hawk quoted the first sentence of this extract, up to but excluding the bracketed section. He also attached the full email.

[54] The content of a document is not privileged simply because a person inserts the words “without prejudice”, as Mr N did at the beginning of this email. The document must be produced for the purpose of negotiating a settlement of a dispute. It is plain from the content of Mr N’s email that his email was not prepared for this purpose. It is also clear that he was not intending to invoke privilege, or an obligation of confidentiality, in his interests. The words in the second sentence – “all

_{the prejudice will be on your side” – indicates otherwise.}

²⁵ _{Evidence Act 2006, s 65.}

²⁶ Evidence Act 2006, s 57. Ms M has since waived privilege.

[55] The two remaining emails follow similar themes and added threats. Mr N’s email of 28 October was headed “WITHOUT PREJUDICE”. He began by noting how Ms M’s employer must be suffering a financial burden from the proceedings and his dissatisfaction that Ms M was applying to give evidence in Court behind a screen to avoid contact with him. He then threatened to “use your insulting and silly

‘settlement offer’ against you”. He said he would consider lodging further complaints with the Privacy Commissioner and/or take the story to the media. He made a “second generous settlement offer” asking for a sum of money in exchange for not increasing his claims. The rest of Mr N’s email contained further insults towards Ms M, her employer and Jackson Russell.

[56] The final email, on 29 October, similarly began with the words “without prejudice”. Mr N described his email as an “amended offer”. He sought increased amounts from Ms M and her employer. Throughout the email Mr N used increasingly derogatory and insulting language to describe Ms M and her employer. He later sought to retract those comments and, in an affidavit filed in this proceeding, denied making them.

[57] Mr N said he made the statement as part of settlement posturing – to show that he was committed to bringing his civil proceedings and that he could not be intimidated. Ms M and the other respondents submitted that Mr N was not genuinely attempting to negotiate a settlement or respond to her offer. Rather, the respondents submitted, the emails were a further attempt to bully and threaten Ms M and therefore s 57 of the Evidence Act 2006 does not apply. The respondents submitted that the emails abuse court processes. They submitted that for these reasons a claim of privilege could not be sustained because privilege will not be allowed to cloak impropriety.

[58] In Sheppard Industries Ltd v Specialized Bicycle Components Inc the Court of Appeal stated evidence of without prejudice communications is admissible “where the exclusion of the evidence would act as a cloak for perjury, blackmail or other

_{serious impropriety”.}²⁷

²⁷ Sheppard Industries Ltd v Specialized Bicycle Components Inc [2011] NZCA 346, [2011] 3

NZLR 620 at [24].

[59] This exception was articulated in Unilever plc v Proctor & Gamble:²⁸

Apart from any concluded contract or estoppel, one party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety’ (the expression used by Hoffmann LJ in Forster v Friedland [1992] CA Transcript 1052) ... But this court has ... warned that the exception should be applied only in the clearest cases of abuse of a privileged occasion.

[60] In Bradbury v Westpac Banking Corporation, Mr Bradbury sent a letter threatening legal proceedings.²⁹ The appellants submitted that the letter was privileged as a communication which was intended to be confidential and was made in connection with an attempt to settle a dispute. The Court of Appeal said:³⁰

The Judge held that the privilege does not afford protection to a threat contained in a letter marked “without prejudice”. He was right to do so. A letter containing a threat will be characterised not as making an offer the law will protect but as unlawful conduct in respect of which it will grant relief: Unilever plc v Proctor & Gamble Co ... The terms of the letter are such as to bring it within the exception and make it admissible.

[61] The issue must be approached with caution, particularly in the context of a strike out application. However, whether these emails were genuine attempts to negotiate, or threats and further harassment, are matters to be determined by the Court’s consideration of the words actually used.

[62] In some proceedings, a statement that one party will pursue his claim without regard to the consequences might simply indicate a stubborn, rigid stance in negotiation. In the context of this harassment proceeding it was a threat, thinly veiled, that Mr N would not leave Ms M alone. It is particularly concerning when, as in this case, the perpetrator is using legal proceedings to try to force contact with the victim. Judge Sharp found as much when she determined that the email was an instance of Mr N’s harassment behaviour. That matter has thus already been

_{effectively litigated.}

²⁸ _{Unilever plc v Proctor & Gamble [2001] 1 All ER 783 (CA) at 792.}

²⁹ _{Bradbury v Westpac Banking Corporation [2009] 3 NZLR 400 (CA). See [81].}

³⁰ At [83].

[63] The seemingly random fashion in which Mr N determined his settlement “offers”, the offensive language of the communications, and his insistence that they be passed on to Ms M, indicate that they were not genuine attempts at settlement and as such, are not covered by s 57.

[64] The complaints relating to privilege are struck out.

[65] Mr N also alleged that Mr Hawk misled the Court by arguing the communications were not privileged. In the light of the above conclusion, that complaint cannot be sustained and is also struck out. In addition, it was a submission on a point of law which was clearly arguable and for that reason could not possibly give rise to a finding of contempt.

Complaint (f): category 3: misleading the Court as to Mr N’s character

[66] Mr N’s first allegations of misrepresentation related to Mr Hawk’s quoting a section of Mr N’s email of 26 October 2012, in which he stated he was amused by the proceeding. Various contentions were advanced by Mr N ranging from allegations that Mr Hawk wrongly referred to Mr N as a defendant rather than an applicant, a contention that Mr Hawk wrongly submitted to the Court that the email had a bearing on the harassment proceeding as well as the civil proceeding, to a contention that Mr Hawk should not have alleged, in what was a submission to the Court, that Mr N was amused or entertained by either of the proceedings. Some of the specific allegations are factually untenable. All of them are frivolous and vexatious and are struck out.

[67] Mr N argued that Mr Hawk misled the Court by referring to his “non-existent intentions” to include Mr Hawk and Jackson Russell in the harassment proceedings. There was nothing misleading about this. This claim is untenable and is struck out.

[68] Mr N made a general complaint about the way his character was attacked in Mr Hawk’s documents. Mr N’s failure in both the harassment and civil proceedings indicates that Mr Hawk’s comments about him were justified. Further, they were not a misleading “attack” on character or reputation – they were observations a counsel is entitled to make in advancing a case for a client. This complaint is struck out.

[69] Mr N complained that Mr Hawk expressed his opinion on certain matters, in violation of the Rules of Client Care and Conduct. The usual course for such a grievance is to lodge a complaint with the New Zealand Law Society. Mr N did lodge a complaint and was unsuccessful, although it does not appear this particular complaint was raised. The rule speaks of the lawyer’s “personal opinion”. I am satisfied that Mr Hawk was expressing his professional opinion, in compliance with his duty to the Court. The complaint is struck out.

Complaints (g)-(h)

[70] Mr N’s complaints (g) and (h) related to the merits of the without notice application for a protection order under the Domestic Violence Act. As part of the application Ms Fitchett had to certify that she had explained to Ms M the need to disclose all relevant circumstances, even if they were not advantageous to her, and be

satisfied that, to the best of her knowledge, Ms M had complied with Court rules.³¹

In complaint (g) Mr N alleged that the certificate violated those requirements because there was no evidence of a domestic relationship and/or domestic violence, the affidavit filed in support of the application omitted the section about the domestic violence Ms M allegedly suffered, and the affidavit failed to provide reasons why there was a risk of harm or undue hardship to Ms M.

[71] The facts of relevance to this complaint, and the ultimate issue as to whether there is any tenable foundation for a finding of contempt, are those earlier recorded in the summary of background facts.³² All of the relevant information was put before the Court. This enabled the Court, through the Registrar, to make an assessment which resulted in a direction, in effect, that the application under the Domestic Violence Act should not proceed. On the incontrovertible facts there was

no attempt to withhold relevant information from the Court or to persist maliciously in an improper claim. The other aspects of these complaints are inconsequential. These complaints are struck out.

[72] It may also be noted that an essentially similar claim in Mr N’s civil

_{proceeding, being a claim of malicious prosecution, was struck out. Although the}

³¹ _{Family Court Rules 2002, r 308(2) and Domestic Violence Rules 1996, r 26(1).}

³² Above at [6].

striking out of the claim in the civil proceeding occurred after this contempt application was filed, the filing of the contempt application founded on these complaints when there was already an essentially identical claim before the District Court amounted to an abuse of process.

Complaint (i)

[73] Complaint (i) included allegations that the protection order application should not have been filed. Those claims are struck out for reasons recorded above. Mr N also complained that the harassment proceeding was not appropriate because it was a commercial dispute. The claim would have been untenable even if the harassment proceeding had not been determined. Given that it was determined against Mr N the claim is patently untenable and is struck out.

[74] Much of the remainder of complaint (i) merely repeats earlier complaints and in consequence these repeated complaints are struck out. The four-and-a-half pages of particulars for this complaint and the frequency with which it repeated earlier allegations demonstrate the vexatious nature of this proceeding as a whole. I propose to deal only with additional matters that do not come within the other complaints.

[75] There were complaints of delay by Ms M and her solicitors in serving documents and in some other respects. This extends to a complaint that an amended statement of defence required to be served by Ms M by 1:00 pm on a particular day was served six minutes late. There was a separate complaint of delay in notification that Ms M was receiving legal aid.

[76] Some of the complaints are frivolous because the delay, in terms of time, was trifling or arose from circumstances where an extension of time would have been granted automatically. The application for contempt orders in respect of some of the complaints was also vexatious because the matter complained of was of no material consequence. To the extent that some of the matters complained of might have been dealt with more timeously, I am nevertheless satisfied that they do not come close to constituting contempt of court.

[77] In R v Butland this Court held that, in the context of proceedings involving a large number of pre-trial matters, failure to strictly comply with timetables for filing or serving documents will rarely be penalised.³³ The Court said:³⁴

Whilst it is, of course, undeniable that timetables, directions and other orders of the Court should be strictly complied with, compliance is by no means universal whether in civil or criminal matters – and it would be unrealistic to expect universal compliance. Breaches, especially of timetables, often occur and, unless repeated or extreme or plainly contemptuous, seldom attract significant sanctions, certainly not the sanction of a finding of contempt of court.

[78] Although in Butland the Court was dealing with a complaint arising in criminal proceedings, the Judge did not restrict his comments as such. I agree that they apply with equal force in civil proceedings. In the harassment and civil proceedings Mr N vexatiously filed voluminous documents and sought frivolous orders that often raised minute and meritless complaints. This of itself would not excuse non-compliance with a Court ordered timetable, but it goes a considerable distance. What is decisive against this complaint is that Mr N has not pleaded facts capable of supporting a finding that any of the respondents sought, through delay, to prejudice Mr N or to interfere with the Court’s processes. These claims are struck out as untenable, frivolous and vexatious.

[79] There was a repeated complaint of failure to file affidavits with interlocutory applications or notices of opposition. A party is not bound to provide affidavit evidence. These complaints could not possibly lead to a finding of contempt and they are struck out.

[80] Mr N complained that Ms M failed to respond to a notice requiring further particulars and to interrogatories. Both were expressed in mandatory language. However, the proper course for Mr N was to seek a Court order to enforce his application, as provided for by the rules.³⁵ I am satisfied that a contempt order

_{would not follow, even if Mr N could prove failure to respond.}

³³ _{R v Butland HC Auckland CRI-2008-044-7390, 8 September 2010.}

³⁴ _{At [14].}

³⁵ High Court Rules, r 8.38.

[81] There are some further particular complaints. None of these could result in a contempt order. All of them are trivial, most of them are demonstrably wrong in fact and some of them are matters in respect of which Mr N was not entitled to make a complaint in the first place. All other specific complaints contained in the general complaint (i) are struck out.

Costs

[82] The respondents seek indemnity costs under r 14.6(4)(a) which provides:

The court may order a party to pay indemnity costs if—

(a) the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding;

[83] I am satisfied indemnity costs are applicable. The reasons are contained in the detailed analysis of the complaints. “Indemnity costs” are the actual costs, disbursements, and any witness expenses, reasonably incurred by the respondents: r 14.6(1)(b).

Result

[84] The originating application for contempt orders is struck out in its entirety.

[85] There is an order that the applicant pay indemnity costs to the respondents. If the parties are unable to agree on the amount of indemnity costs within three weeks of the date of this judgment the respondents shall, within four weeks of the date of this judgment, file memoranda in support of their claims and the applicant shall file

_{any memorandum in response within a further two weeks.}

Woodhouse J

DIRECTIONS / ORDERS SOUGHT BY MR N IN THE HARASSMENT PROCEEDING

Date Order sought

23 July 2012 To dismiss / strike out the proceeding, or alternatively strike out Ms M’s affidavit of 15 May 2012.

5 November

2012

7 November

2012

12 November

2012

3 December

2012

To rescind the non-publication order and for an order expressly allowing publication of the proceeding.

For indemnity costs in the proceeding.

For an order fining Ms M and her former solicitors Jackson Russell $5,000 for contempt of court, and order that half be paid to Mr N.

To strike out Ms M’s notice of opposition to his application to dismiss / strike out the proceeding.

To strike out paragraphs of Ms M’s affidavit dated 1
November 2012 and exhibits.

For leave to admit “agreed” statements of facts from the civil proceeding.

For the harassment application to be dismissed as an abuse of process on the Court’s own initiative, without hearing his application for dismissal / strike out.

To have the Court rescind the order of Judge Hinton of 6
November 2012 extending the time for filing Ms M’s notice of opposition to his application to dismiss / strike out the proceeding.

For the harassment application to be dismissed as an abuse of process on the Court’s own initiative.

For leave to apply for orders rescinding:

the order of Judge Hinton of 6 November 2012 extending the time for filing Ms M’s notice of opposition to his application to dismiss / strike out the proceeding;

the decision of Judge Cunningham of 12 November 2012 which declined his application for dismissal / strike out; the decision of Judge Cunningham of 12 November 2012 to award costs on the failed application to Ms M in the cause;

the decision of Judge Cunningham of 12 November 2012 to adjourn his applications to strike out parts of Ms M’s affidavit of 1 November 2012 and admit “agreed” statements of facts from the civil proceeding.

To stay the harassment application until the final determination of the Judicial Review Proceeding.

Date Order sought

14 March 2013 To stay the harassment application until the final determination of the Judicial Review Proceeding.

9 May 2013 To stay the harassment application until the final determination of his planned appeal / judicial review proceeding.

_{DIRECTIONS/ ORDERS SOUGHT BY MR N IN CIVIL PROCEEDING}

Date Orders sought

3 Oct 2012 Application for orders:

admitting affidavits filed in harassment proceeding for use in civil proceeding;

seeking permanent suppression of the plaintiff’s name, or any name or particulars likely to lead to the identification of plaintiff;

seeking direction requiring defendant to acknowledge an electronically served document pursuant to DCR3.44.7 & HCR 6.6.4.

16 Oct 2012 Application for judgment on admission of facts (breach of privacy) seeking:

judgment against Defendant for cause of action based on breach of privacy caused by false harassment claims.

18 Oct 2012 Application for judgment on admission of facts (unjust enrichment) seeking:

orders striking out a paragraph of the statement of defence;

judgment against defendant for cause of action based on unjust enrichment in respect of $215 worth of services that were paid for but not provided.

7 Nov 2012 Application for orders in relation to contempt of court and obstructing the course of justice, seeking orders:

fining the defendant $3,000 for contempt in relation to discovery and $5,000 for vexatious conduct and disrespectful comments;

fining Jackson Russell $10,000 for obstructing and perverting the course of justice.;

that half of each fine to be paid to the plaintiff.

Also requested that the Court take appropriate action under

s 116 Crimes Act (conspiring to prevent justice) in respect of

Jackson Russell.

13 Nov 2012 Notice to Admit facts requiring the Defendant to admit various facts including:

Various facts specified in amended statement of claim. That Ms M wishes Mr N to leave her alone.

That Ms M has grudge against Mr N that was acquired on or before 8 Feb 2012.

13 Nov 2012 Notice to Admit Facts (amended).

19 Nov 2012 Notice to answer interrogatories (60 questions).

Date Orders sought

27 Nov 2012 Notice of allegation that opinion not genuinely held and of particulars of ill will.

4 Dec 2012 Interlocutory application for 11 different orders.

16 Jan 2013 Application for orders:

joining Jackson Russell and others as defendants; for leave to amend statement of claim to include additional defamation causes of action;

striking out para 12 & 73 amended statement of defence to amended statement of claim;

requiring defendant to file and serve statement answering interrogatories;

requiring disclosure of Ms M’s email address; and granting leave to withdraw application for judgment on admission of facts (breach of privacy) and refund of filing fee.

30 Jan 2013 Application for non-party discovery and seeking orders:

requiring disclosure of Ms M’s email address;

a wide category of emails, and other documents.

_{CONCISE CHRONOLOGY OF PROCEEDINGS}

2012

15 May HARASSMENT Ms M files harassment proceeding. Alternative application for protection order returned by registrar.

11 June Harassment Mr N files notice of defence to harassment proceeding.

3 July _CIVIL Mr N files civil proceeding.

19 July Harassment

_Civil

First call of harassment proceeding. Civil proceeding served on Ms M.

23 July Harassment Mr N application for dismissal of harassment proceeding.

11 November NZLS COMPLAINT

Mr N makes complaint to NZLS re Mr Hawk.

12 November Harassment Judge Cunningham declines application by Mr N to dismiss harassment proceeding.

13 November LEGAL AID COMPLAINT

15 November JUDICIAL REVIEW

Mr N makes complaint to Legal Services re legal aid grant.

Mr N files application for judicial review of decisions of Judge Hinton and Judge Cunningham.

2013

9 January CONTEMPT Mr N files contempt application.

16 January Civil Mr N files 2^nd amended statement of claim in civil proceeding and application for joinder of Jackson Russell and others.

13 March Harassment Judge Cunningham declines oral application for stay of harassment proceeding pending judicial review, and appoints amicus for cross-examination.

Civil Ms M applies to strike out civil proceeding and Jackson Russell and Ms M oppose joinder to civil proceeding contempt application.

Contempt Ms M and Jackson Russell apply to strike out contempt proceeding.

8 April Harassment

Civil

17 April JUDICIAL REVIEW – amended

Mr N requests recusal of Judge Cunningham in both harassment proceeding and civil proceeding.

High Court grants leave for Mr N to amend judicial review to include decisions of Judge Cunningham of
13 March 2013.

2013 Cont.

9 May Harassment Judge Sharp gives judgment to:

allow Ms M to be screened during cross- examination (although Mr N then advises no cross- examination required);

_{make restraining order against Mr N.}

22 May HARASSMENT APPEAL

28 May JUDICIAL REVIEW – amended

11 June Harassment

_Appeal

Mr N files appeal against Judge Sharp’s decisions of 9
May 2013.

Mr N files amended claim in judicial review re decisions of 13 March 2012 and seeks to include additional applications regarding Judge Sharp’s decision of 9 May 2013.

Mr N files amended notice of appeal.

14 June Harassment Judge Sharp awards Ms M indemnity costs on

_{Harassment Proceeding}

17 June COSTS APPEAL

Mr N files appeal of costs judgment from harassment proceeding.

24 June Civil Mr N requests recusal of Judge Sharp in civil proceeding.

_{15 July Civil Judge Sharp declines recusal request.}

7 August JUDICIAL REVIEW – amended

Mr N files third amended claim in judicial review to include decisions of Judge Sharp on 9 May, and the costs judgment.

27 August Judicial Review Hearing of judicial review and appeals (part heard).

29 August Contempt Hearing of strike out applications.

16 October Civil Struck out.