Burchell v Auckland High Court [2014] NZHC 517 (20 March 2014)

Last Updated: 28 April 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-74 [2014] NZHC 517

BETWEEN LLEWELLYN BURCHELL Plaintiff

AND AUCKLAND HIGH COURT First Defendant

AND ASSOCIATE JUDGE BELL Second Defendant

Hearing: 20 March 2014

Appearances: Plaintiff in person

Z Hamill for defendants

Judgment: 20 March 2014

_{ORAL JUDGMENT OF COOPER J}

Solicitors:

L Burchell, Auckland

Crown Law, Wellington

BURCHELL v AUCKLAND HIGH COURT [2014] NZHC 517 [20 March 2014]

[1] A proceeding commenced by Mr Burchell and having a backing sheet, “Judicial Review Statement of Claim”, was filed on 13 January 2014. Probably because of the reference on the backing sheet to the matter being a judicial review, the matter has been placed in the Judicial Review List, and it is among the matters I have had to deal with today.

[2] In the statement of claim however, the causes of action are not those which would be advanced in an application for review. Three causes of action are asserted, namely negligence, intentional infliction of emotional distress, and conspiracy.

[3] The defendants are the Auckland High Court and Associate Judge Bell. The person said to have acted negligently and so as to intentionally inflict emotional distress and to have engaged in a conspiracy is Associate Judge Bell.

[4] The proceeding has come to the attention of the Crown, and Ms Hamill has filed a memorandum dated 19 March 2014 in which it is said that the proceeding has not been properly served. The stance taken is that once the proceeding is properly served, the Crown will make an application to strike out the claim.

[5] Having considered the matter, I do not think it is necessary to wait for the Crown to take that step. This Court has power to invoke the strike out rule in the High Court Rules of its own motion, as was confirmed in Siemer v Stiassny.¹

[6] Following a case management conference in the case of Burchell v Aislabie,²

Associate Judge Bell issued a minute in which he expressed a concern that the proceedings initiated by Mr Burchell were being pursued vexatiously. He decided that the proceedings should be stayed and made an order accordingly. The order provided that no further documents were to be filed by Mr Burchell without him having obtained legal advice from a lawyer with at least five years’ standing, who could certify Mr Burchell’s claims to be arguable and in compliance with the High

_{Court Rules. Whether that order was appropriate is not currently a matter before me.}

¹ _{Siemer v Stiassny [2011] NZCA 1 at [14].}

² Burchell v Aislabie HC Auckland CIV-2010-404-2873, 8 July 2010.

[7] The principles to be applied on a strike out are well settled. Pleaded facts are assumed to be true. The cause of action must be clearly untenable and the Court must be certain that it cannot succeed. The jurisdiction is to be exercised sparingly and only in clear cases, reflecting the Court’s reluctance to terminate a claim without it coming to trial. Further, the jurisdiction is not excluded by the need to decide difficult questions of law even if they require extensive argument, and the Court should be particularly slow to strike out a claim in any developing area of the law.

[8] The claims now advanced are, as I have indicated, incorrectly advanced under the umbrella of a claimed application for judicial review. At the heart of the claims is a contention that Associate Judge Bell acted negligently or deliberately to defeat the proceedings against Mr Aislabie. However, there is plain law which indicates that the claim cannot possibly succeed. The rule of judicial immunity from suit stands in its way.

[9] In Gazley v Lord Cooke of Thorndon,³ Keith J described that rule as an

“almost impossible obstacle” to the bringing of proceedings against Judges:

Members of [the High Court] are protected as long as they are acting in the bona fide exercise of their office and in the belief that they have jurisdiction.

[10] In the same case, Eichelbaum CJ and Henry J approved the following statement from Halsbury’s Laws of England:⁴

Persons exercising judicial functions in a court are exempt from all civil liability whatsoever for anything done or said by them in their judicial capacity, nor can any action be brought against the Crown in respect of acts or omissions of persons discharging responsibilities of a judicial nature or in connection with the execution of judicial process ... A superior court is protected even though the Judge has exceeded his jurisdiction, so long as he has acted judicially.

[11] In Attorney-General v Chapman,⁵ the Supreme Court refused to qualify judicial immunity from suit, even when malice, bad faith, gross negligence, or

_{recklessness is alleged.}

³ _{Gazley v Lord Cooke of Thorndon [1999] 2 NZLR 668 (CA) at 685.}

⁴ _{Halsbury’s Laws of England (4}^th _{ed, reissue, 1998) Vol 1(1) at [212]-[216].}

⁵ Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [161]- [167].

[12] I am satisfied that this is a case where the allegations made are so obviously put forward without foundation, that the Court is not required to assume the correctness of the factual allegations that have been made. Those allegations, which in various parts of the pleading are scandalous and offensive, do not need to be repeated in this judgment. There is absolutely nothing to suggest that any of the allegations against Associate Judge Bell are true, and indeed in my opinion the reverse is the case. However, even assuming that the facts are true, there can be no doubt that Associate Judge Bell’s actions in issuing the minute and the accompanying stay were done in his judicial capacity. The claim therefore cannot succeed in light of the plaintiff’s inability to demonstrate that he was not acting as a Judge when he issued the minute, or that he allegedly knew that he was acting outside of his judicial capacity.

[13] In the result, the claim is struck out in its entirety.

[14] Mr Burchell has been present while this judgment has been pronounced. Prior to that he informed me that at the moment he does not have an address at which he can be served. Consequently, after this judgment has been typed up, which will happen in the course of today, he will need to make contact with the Registrar in order to uplift a copy.