Vernooij v Gallaghan [2024] NZHC 1974 (17 July 2024)

Last Updated: 24 August 2024

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-316 [2024] NZHC 1974

BETWEEN	JOHANNES JACOBUS ANTONIUS VERNOOIJ Plaintiff
AND	JUDGE M J GALLAGHAN Defendant

Hearing:	On the papers
Appearances:	Plaintiff in person
Judgment:	17 July 2024

JUDGMENT OF EATON J

This judgment was delivered by me on ........ at ......... pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

VERNOOIJ v GALLAGHAN [2024] NZHC 1974 [17 July 2024]

Introduction

• [1] Johannes Jacobus Antonius Vernooij has filed proceedings against a sitting District Court Judge. Although the proceedings refer to Judge M J Gallaghan, I will treat the proceeding as intended to be brought against Judge M J Callaghan. The Registrar has referred the proceeding to me under r 5.35A of the High Court Rules 2016. That rule provides:

5.35A Registrar may refer plainly abusive proceeding to Judge before service

(1) This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.

(2) The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.

(3) However, the Registrar may,—

(a) as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b) until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.

• [2] Following referral under r 5.35A, if I am satisfied that the proceeding is plainly an abuse of process of the Court, an order under r 5.35B(2) may be made. That rule relevantly provides:

5.35B Judge’s powers to make orders and give directions before service

...

(2) The Judge may, on his or her own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that—

(a) the proceeding be struck out:

(b) the proceeding be stayed until further order:

(c) documents for service be kept by the court and not be served until the stay is lifted:

(d) no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).

• [3] As confirmed in Mathiesen v Slevin, in deciding whether to strike out a proceeding under r 5.35B, the Court must determine two questions:¹

(a) whether it would be manifestly unfair to the defendant that they be required to respond; and

(b) whether right thinking people would regard this Court as exercising very poor control of its processes if it were to allow the plaintiff’s document to be regarded as a proper document.

• [4] In O’Neill v Judicial Conduct Commissioner, the Court of Appeal described the second question as asking whether right thinking people would consider the Court was exercising poor control over its processes if it permitted the matter to proceed further.²

The proceeding

• [5] Mr Vernooij seeks to sue a sitting Judge. The statement of claim is very difficult to follow. It is presented as a chronology. Relevantly, it records “2018 judge Gallaghan [sic] rules in favour of OA and dismisses bank transfers”. The statement of claim later alleges the Judge’s ruling “is in breach of [M]r Vernooij’s constitutional right that bank transfers cannot be dismissed.” That is the only particularised allegation raised against the defendant in the statement of claim.

• [6] Beyond that particular allegation, the statement of claim seems to relate to what is described as a matrimonial property settlement signed by the plaintiff in 2008 and that is alleged to have resulted in what he says was an unfair criminal prosecution against him in 2010. The statement of claim refers to a complaint made to the Law Society in 2014 although the subject matter of the complaint is not described. It

¹ Mathiesen v Slevin [2018] NZHC 1032 at [6] citing Mathieson v Fildes [2017] 2258 at [4].

² O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [33].

alleges that in 2017 the plaintiff commenced proceedings setting aside the matrimonial property agreement.

• [7] No particular causes of action are identified. As best as I can assess, the plaintiff seeks to challenge a decision made by the Judge in proceedings arising out of the enforcement of a matrimonial property agreement.

• [8] The relief sought by Mr Vernooij is wide-ranging. It includes, and I retain his phrasing of the relief sought:

(a) a declaration that his matrimonial [sic] is a miscarriage of justice;

(b) an order that Mr Gallaghan [sic] is to pay [M]r Vernooij 2 million dollar[s] compensation for dismissing his bank transfers and sending him to financial and emotional Syberia in a democracy;

(c) an order revoking his bankruptcy and the liquidation of his company;

(d) a finding of negligence against his former solicitors;

(e) an order that the Court dismiss his 2010 assault conviction;

(f) an order that the Court initiate an “integrity investigation in [M]r Hataway of [C]hristchurch insolvency agency”; and

(g) a variety of orders against the Official Assignee.

• [9] With much reluctance as evidenced in his exchanges with the Registry, Mr Vernooij eventually filed a notice of proceeding. The notice of proceeding is utterly non-compliant with the requirements of r 5.23. It includes a series of statements of alleged facts. The relevance to the matters set out in the statement of claim is far from clear.

Discussion

• [10] The proceedings are plainly an abuse of process. A sitting Judge is protected by immunity from a civil suit under the law for the acts undertaken in their official capacity.³ Although the proceedings appear to make a number of allegations against a variety of persons, the only named defendant is a sitting Judge.

• [11] At its heart, the plaintiff seems to be challenging a ruling made by a sitting Judge said to be in favour of the Official Assignee that is detrimental to the plaintiff. Mr Vernooij’s remedy was an appeal against that decision. His disappointment with the outcome of that proceeding does not provide grounds for an action against the Judge. This proceeding must be struck out in light of judicial immunity.

• [12] Furthermore, the proceedings do not identify any tenable cause of action against the Judge or any other person, rather they amount to a wide-ranging complaint of a historical dispute arising out from the plaintiff’s dissatisfaction with a matrimonial property agreement reached in 2008.

• [13] I have no doubt the proceedings reflect Mr Vernooij’s dissatisfaction and distress at the consequences that he perceives to have arisen as a consequence of the matrimonial property agreement. But I am satisfied the proceeding is misconceived.

• [14] I acknowledge that the powers prescribed by r 5.35B should be exercised sparingly and only in the clearest of cases, however I am quite satisfied that the proceeding is an abuse of process and must be struck out pursuant to r 5.35B(2)(a).⁴

3. Attorney General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [161]–[165]; O’Neill v Commissioner of Police [2022] NZCA 501 at [25]; O’Neill v Judiciary of Auckland High Court [2023] NZCA 153; and Dunstan v Ms X [2023] NZHC 2958 at [23].
4. Te Wakaminega o Nga Hape Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63 at [15].

• [15] I direct the Registrar to provide a copy of this decision to the Judge named as the defendant in accordance with r 5.35B(4). I record that Mr Vernooij has a right to appeal this decision in accordance with r 5.35B(3).

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

Eaton J

Copy to:

J J A Vernooij

Judge M J Callaghan