PETERSON v LUCAS [2015] NZHC 721

PETERSON v LUCAS [2015] NZHC 721 [24 April 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-002695[2015] NZHC 721BETWEEN CARL JAMES PETERSONPlaintiffAND WARREN GEOFFREY LUCASDefendantHearing: 14 April 2015Counsel:: Plaintiff in personJ Dickson and J Cooke for DefendantJudgment: 24 April 2015JUDGMENT OF FOGARTY JRecalled and reissued on 7 May 2015This judgment was delivered by me on 24 April 2015 at 4.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Simpson Grierson, AucklandIntroduction[1] In October 2014, the plaintiff commenced proceedings by way of a statement of claim for damages for groundless threats of copyright infringement under s 34 of the Designs Act. The defendant filed a statement of defence which, having reviewed a history of litigation, pleaded issue estoppel, saying that the plaintiff is attempting to relitigate issues/disputes that had been finally determined by the High Court and/or Court of Appeal as between the plaintiff and the defendant.[2] The defendant also filed with the statement of defence an application for summary judgment against the plaintiff or, alternatively, an order striking out theplaintiff's claims or, in the alternative, security for costs.[3] The plaintiff responded with an interlocutory application for summary judgment against the defendant, an order for damages as applied for or an enquiry into damages or a recall of two decisions, Peterson v Lucas Mill Pty Ltd & ors1 by Bell AJ and its confirmation by Gilberts J.2History[4] Mr Peterson and Mr Lucas have been litigating since the late 1990's. Thelitigation began with Mr Lucas and his company claiming damages and infringement of a patent for portable sawmills on the part of Mr Peterson and his company. The Lucas family succeeded in the High Court,3 and in the Court of Appeal in 2005.4Mr Peterson succeeded in the Supreme Court in 2006.5 The particular issue decided was whether Claim 7 of the New Zealand patent claim, the Lucas claim, was invalid on the grounds of lack of novelty and obviousness. The Court held it was so invalid.[5] The litigation continued. In the wake of the Supreme Court judgment, the Lucas family made an application to amend their patent. Later they gave up and discontinued their proceeding against Mr Peterson and his company in July 2009. The judgment of Priestley J awarding some costs to Mr Peterson records:1 Peterson v Lucas Mill Pty Ltd & ors [2012] NZHC 1101, Bell AJ.2 Peterson v Lucas Mill Pty Ltd & ors [2012] NZHC 2830.3 Lucas v Peterson Portable Sawing Systems Ltd [2003] 3 NZLR 361 (HC).4 Peterson Portable Sawing Systems Ltd v Lucas CA64/03, 4 March 2005.5 Peterson Portable Sawing Systems Ltd v Lucas [006] NZSC 20, [2006] 3 NZLR 721.To some extent his ultimate victory in the Supreme Court has turned toashes. The second defendant's vehicle for commercial activities went intoliquidation. His financial losses are, I am sure, considerable.6[6] In November 2009, Mr Peterson commenced personal proceedings alleging infringement of copyright by the defendants. The Lucas family sought security forcosts based on Mr Peterson's likely insolvency. They failed before Associate Judge Doogue but succeeded in the judgment of Woodhouse J reviewing the AssociateJudge's decision. He made an order for security of costs of $10,000.7[7] The matter came again before the High Court in March 2012, based on a dispute as to an alleged settlement agreement arising out of a telephone call between Mr Warren Lucas and Mr Peterson in the afternoon of 3 October 2011. Mr Lucas made the call to endeavour to persuade Mr Peterson to drop those copyright proceedings. Following that call, a settlement agreement was signed. But Mr Peterson regretted the settlement.[8] As a result, the Lucas family applied to strike out the plaintiff's claim on thegrounds that the parties had entered into a settlement. There was also related litigation in the Court of Appeal on the subject of the security for costs.[9] The issue on the strike out application was whether or not there had been a settlement. One of the arguments against the enforceability of the settlement discussion was a contention of Mr Peterson that there was a threat to take legal proceedings against him which constituted duress.8[10] There is no real dispute between the parties as to the substance of the telephone call and its sequel. Mr Warren Lucas called Mr Peterson. The call lasted about an hour. Mr Lucas said he tried to talk Mr Peterson out of pursuing the claims Mr Peterson was making against him. Mr Peterson told him he had nothing to lose and everything to gain by continuing litigation. Mr Lucas said he asked Mr Peterson if he was familiar with the patent for the Stubbe sawmill (a US sawmill).6 Lucas v Peterson Portable Sawing Systems Ltd (In Liquidation) HC Auckland CIV-2001-404- 3668, 2 December 2009 at [58].7 Peterson v Lucas Mills Pty Ltd HC Auckland CIV-2009-404-7762, 23 December 2010 at [53].8 Peterson v Lucas Mill Pty Ltd, above n 1 at [42].Mr Peterson said he was. Mr Lucas said he told Mr Peterson that one of his companies owned the worldwide copyright associated with the Stubbe sawmill. He told Mr Peterson that if Mr Peterson ceased legal action on both the copyright and patent fronts, then he, Mr Lucas, would not take action against Spectrum Innovations Limited, a company run by Mr Peterson and his son, which manufactured a sawmill called the Turbo saw, which it is acknowledged shared some aspects of the Stubbe sawmill. There was then a discussion about a payment of money to resolve matters. In short, a sum was agreed. It was later converted to New Zealand dollars.[11] There followed an exchange of emails, sent by the Lucas family's solicitors, setting out the terms of a settlement which were eventually accepted by Mr Peterson on 4 October 2011. The High Court was advised that the parties had reached an agreement to settle. Shortly after, Mr Peterson advised he did not intend to settle and that was on 12 October 2011. That became the context of the issue before Associate Judge Bell as to whether or not there had been a settlement.[12] In opposition to the settlement, one of the arguments Mr Peterson raised was that there was duress on the part of Mr Lucas arising out of a threat of taking copyright proceedings. That there was a measure of duplicity or misrepresentation on the part of Mr Lucas because he did not have a genuine copyright claim worth pursuing. On this point, Bell AJ said:[42] Mr Peterson also says that the threat to take legal proceedings against him constituted the duress. In the context of negotiating contracts, duress has a confined application. New Zealand courts have recognised that agreements may be entered into in what may sometimes even be crisis situations, where people may have limited options. People may enter into agreements as a result of pressure from the particular circumstances that they are in and yet the law will still uphold those agreements. The circumstances in which the courts will hold that there is duress were set out in the decision of the Court of Appeal in McIntyre v Nemesis DBK Ltd.[43] [44] In essence, the Court of Appeal in McIntyre emphasised that one element of the test for duress is that illegitimate pressure must be applied."Illegitimate pressure" is not equated with unlawful pressure. The courtshave reserved the right to say that even though a threat may be lawful, it may still be illegitimate. However, the range of cases where pressure has been held to be lawful but illegitimate is extremely narrow. Certainly New Zealand case law has few, if any.[45] Here, the threat made against Mr Peterson was the threat of possible proceedings against Spectrum Innovations Ltd and Mr Peterson for copyright infringement. This threat was made in the context of litigation that had been going on between the parties for many years. It was made in the context of an imminent court hearing, where the court was going to be asked to consider an application that Mr Peterson's own copyright proceeding be the subject of an "unless" order when Mr Peterson was in default in payingsecurity for costs into court.[46] Against this particular background, I do not regard it as illegitimate for one party to advise another party that they believe that they have a cause of action which they are entitled to raise against them, as a factor that the other party should take into account in deciding whether to settle or not. The law recognises, generally, that one person is entitled to raise the threat of legal proceedings as a basis for negotiating an agreement. It would be impossible to resolve litigation by agreement if threats of litigation were not able to be taken into account. For my part, I see nothing illegitimate in the threat by Mr Lucas as a matter to be taken into account in trying to resolve matters between the parties. As the pressure was not illegitimate, I cannotsee anything in Mr Peterson's complaint of duress. Mr Peterson wasexperienced in litigation. The negotiations took place between the parties directly themselves rather than through lawyers. It is not at all surprising that these matters were raised and taken into account in the decision whether there should be an agreement.[47] Mr Peterson also adds this. He says that the threat was not legitimate because it was a threat of bogus proceedings. He has invoked claims of misrepresentation and has referred to the Contractual Remedies Act. In effect, what he is saying is that there was a misrepresentation by Mr Lucas in threatening to take proceedings for breach of copyright, when there was not a genuine basis for any such claim.[48] There can be a claim for misrepresentation only if there is a mis- statement of fact. The law has recognised that the state of a person's mind isas much as question of fact as any other matter. For there to be a misrepresentation Mr Lucas must have had a dishonest intention in making his threat to issue copyright proceedings.[49] To support his claim that Mr Lucas was dishonest in his negotiations, Mr Peterson has adduced evidence as to the Stubbe sawmill. He has put in evidence as to the Turbosaw sawmill. He has argued that a claim for breach of copyright would not run. That might go to show that the claim for breach of copyright might be weak. It does not go to show any dishonesty on the part of Mr Lucas. I have to bear in mind that Mr Peterson is making an accusation of dishonesty against Mr Lucas by making a bogus threat. If Mr Peterson wants the court to take allegations of dishonesty seriously, he has to put before the court something more substantial than what he has done in this proceeding. On the evidence before the court, I cannot see here that there was any dishonesty on the part of Mr Lucas in the negotiations on 3 October 2011.[13] For these and other reasons, Associate Judge Bell reached the conclusion there was a binding agreement and struck out the copyright proceedings.[14] Mr Peterson applied to review this decision and the matter came before Gilbert J. Gilbert J dismissed this application for review. He re-examined the same argument of duress and concluded as follows:[32] In these circumstances Mr Peterson claims that he was entitled to avoid the settlement agreement because he agreed to it under duress arising from the illegitimate and groundless threats by the Lucas parties to bring copyright infringement proceedings against his son. He submits that the Associate Judge was wrong to conclude summarily, without hearing the evidence, that Mr Lucas genuinely believed that he was entitled to bring such proceedings and that his threat to do so was therefore legitimate. I agree with the Associate Judge that on the basis of the evidence then available Mr Peterson had not made out an arguable case that Mr Lucas'threat was illegitimate in the sense that he did not genuinely believe that he had a right to bring such a proceeding. The question is whether the positionis any different in the light of Mr Peterson's further evidence.[33] Proceedings may not be brought for the sole purpose of inflicting harm on a defendant. Such proceedings would be vexatious and an abuse of the court process. In my view, it would not be legitimate to threaten to bring such proceedings to force a settlement.[34] Mr Peterson submits that this is what Mr Lucas did. The difficultywith this is that Mr Peterson's own evidence supports Mr Lucas' contentionthat he was entitled to bring the proceedings. Mr Peterson acknowledges that there are similarities between the Stubbe sawmill and the Turbo sawmilland that Mr Lucas "might have a real cause of action" although he believes that this is "extremely remote". Even accepting Mr Peterson's evidence atface value, the Court could not infer that Mr Lucas did not genuinely believe that he was entitled to bring the proceeding and that his threat to do so was illegitimate.[35] However, even if the threat was illegitimate, it does not necessarily follow that Mr Peterson was arguably entitled to avoid the settlement agreement on the grounds of duress. This is because the threat must have coerced him into settling. Mr Peterson argues that the threat was "highly coercive". He says it left him with no reasonable or practical alternative but to enter into the settlement agreement because he considered his son's business would be destroyed unless he did so. There are a number of difficulties with this assertion.[36] First, it was Mr Peterson who proposed the terms of settlement, not Mr Lucas.[37] Second, if the threat of copyright proceedings against his son was truly what drove Mr Peterson to settle, it is hard to comprehend how he did not notice that this was omitted from the solicitor's email recording the terms of the agreement. It is clear that he reviewed those terms carefully and was able to negotiate two variations in his favour.[38] Third, in his email of 7 October 2011, Mr Peterson stated that he had been motivated to settle because he urgently needed money to assist a family member but that this need had since passed and as a result of this he hadreconsidered his position. It is hard to reconcile this with Mr Peterson's claim that it was the threat of copyright proceedings that had coerced him into settling.[39] Fourth, Mr Peterson's contention that he was coerced by the threat of the copyright proceeding cannot be reconciled with his statement that it was "obvious" to him "from the beginning" that Mr Lucas "never intended to follow through on the threat".[40] Fifth, he did not even regard himself as bound to a settlement agreement when he wrote his email on 7 October saying that he had been "hanging in the balance" and had considered foregoing the settlement and demanding a larger sum. He said that having discussed the matter with other family members and having mulled it over for a few days, he had decided to proceed so long as the monies paid into court by the Lucas' were paid to him. This is not consistent with Mr Peterson's claim that he was coerced into the settlement because he considered he had no reasonable alternative.[41] Sixth, Mr Peterson did have other reasonable options. As he said in his most recent affidavit, he is prepared to meet any copyright infringement proceedings and is confident that he can mitigate any harm to his son's business that might result.[42] In the light of these uncontested facts, Mr Peterson's assertion that he was coerced by the threat of proceedings into accepting the settlement is untenable. Even if Mr Peterson was in a "state of shock" on 3 October 2011 and "panicked" into proposing a settlement, he considered his position carefully over the next four days, discussed the options with his family, and confirmed his intention to proceed with the settlement. I conclude that Mr Peterson was not arguably entitled to avoid the settlement agreement for duress. In my view, the Associate Judge was correct to dismiss Mr Peterson's duress claim.[15] Mr Peterson then sought leave of Gilbert J to appeal to the Court of Appeal. That leave was declined.9 Mr Peterson then sought leave of the Court of Appeal to bring an appeal and that application was declined.10 A judgment was delivered on 30 September 2013.[16] Mr Peterson's next step was to apply to the Court of Appeal to vacate itsjudgment and/or for a stay of the judgment. That application was declined.11 Part of that application was to adduce new evidence. The reasoning relevant to the matterbefore me is set out in the following paragraphs of the Court of Appeal's judgment:[3] As we read Mr Peterson's application, his primary submission is thatthe judgment should be recalled because there are two relevant provisions to9 Peterson v Lucas Mill Pty Ltd & ors, above n 2..10 Peterson & anor v Lucas & anor [2013] NZCA 453.11 Peterson & anor v Lucas & anor [2013] NZCA 641.which our attention was not drawn. It is well established that a judgment will only be recalled on this basis where the provision that has not been referredto is of "plain relevance".[4] The first of the provisions on which Mr Peterson now relies is s 34 of the Designs Act 1953. The second provision to which he now refers is art 5 of the Berne Convention for the Protection of Literary and Artistic Works.[5] Section 34(1) of the Designs Act provides that where any person threatens another with proceedings for infringement of the copyright in a registered design, the person aggrieved by the threat may bring an action for relief as set out in s 34(2). Section 34(2) provides that unless, in an action brought under this section, the defendant proves that "the acts in respect ofwhich proceedings were threatened constitute or, if done, would constitute an infringement of the copyright in a registered design the registration of which is not shown by the plaintiff to be invalid", the plaintiff is entitled tothe relief specified. The available relief includes a declaration that the threats are unjustifiable and damages.[6] Of the equivalent provisions in the United Kingdom, the Hon Sir Hugh Laddie noted that they arose from concerns in the second half of thenineteenth century that patent litigation was so "complicated and expensivethat it was believed that the mere threat of it could seriously damage acompetitor's business".[7] The reference Mr Peterson now makes to s 34 seems to relate to his argument that the courts below were wrong not to consider the legitimacy ofMr Lucas' threat to Mr Peterson to bring proceedings for breach ofcopyright. However, as we noted in our decision declining leave, Gilbert J did consider the position on the basis that it was not legitimate to threaten to bring such proceedings to force a settlement. But, the Judge concluded, Mr Peterson's argument that this is what had occurred failed on the facts. Hefound that the threat did not coerce Mr Peterson into settlement. Reliance ons 34 cannot therefore alter the assessment that Mr Peterson's proposedappeal does not meet the threshold for a second appeal. At the heart of Mr Peterson's argument is a complaint about a factual assessment rather than a question of law.[8] Article 5 of the Berne Convention provides, amongst other matters,that protection in the country of origin "is governed by domestic law". We understand the potential relevance of this provision is to Mr Peterson'sargument that the threatened proceedings had no merit and were therefore illegitimate. Mr Peterson says that art 5 makes it clear he was able to draw assistance from s 74 of the Copyright Act 1994.[9] Section 74 provides that the making of a three-dimensional object does not infringe copyright in a literary or artistic work in certain circumstances, for example, where the work or copy forms part of a patent specification open to inspection here in relation to a New Zealand patent. We do not see art 5 alters our conclusion on this aspect, namely that s 74 doesnot assist Mr Peterson's case.[10] None of the other matters raised by Mr Peterson meets the test for arecall. Ultimately, the matters raised are a "recasting [of] argumentspreviously given" or putting forward other arguments that "could have been raised at the earlier hearing but were not".[17] There is a further Court of Appeal decision on 11 February 2014.12 In this decision the Court considered an application by the Lucas party seeking an order to strike out remaining applications before the Court of Appeal (there being four) and costs (there being two matters).[18] In the course of that, the Court of Appeal recorded:[9] Mr Peterson in his memorandum in response says he will continue to"press for damages under Section 34 of the Designs Act 1953 firstly toformally prove the illegitimacy of the Lucas threat, secondly on that basis toapply for a second recall of the present Court of Appeal ruling", that is, thejudgment of 30 September 2013 in CA768/2012. It is not clear to us whether Mr Peterson is making a further recall application. For completeness, we proceed on the basis that a further application for recall has been made. However, no good reason is advanced for us to depart from our earlier decision declining a recall. The further application for recall is accordingly dismissed.These proceedings[19] On 8 October 2014, Mr Peterson commenced these proceedings against Mr Lucas. The statement of claim refers in [4] to the background of the litigation and to the previous threat of Mr Lucas to begin a new copyright infringement proceeding against he and his family unless he discontinued all Peterson proceedings against the Lucas interests. It then pleads the telephone call of October 2011 and the history of the negotiations and that dispute. It includes a pleading that neither the High Court nor the Court of Appeal, both on two occasions, seriously considered that the Lucas threat was illegitimate. It records other aspects of the history of litigation. It then pleads:9. It is now clear to the Plaintiff that a counter-claim for groundless threats of copyright infringement would have been appropriate at the time of the first High Court hearing. However, this was far from obvious at that time whereas there had been no or little damages effect which could be claimed until after the Peterson claims hadbeen struck off, and Peterson's duress counter claim had failed.[20] He later pleaded:12 Peterson v Lucas [2014] NZCA 6.13 Section 74 of the New Zealand Copyright Act 1994 mandates that an abandoned New Zealand published patent document cannot be copyright infringed in the making of a three dimensional model from that document. This follows the purpose and principle of patent law; that for a patent monopoly to be granted for the exclusive and time- limited use by the patentee, it must also be published so that the general public can make use of it once the monopoly ceases to be in force.14 Article 5 of the Berne Convention for the Protection of Literary and Artistic Works mandates that any claim for copyright protection or infringement must be tested under the laws of the country in which the claim is raised. Thus the United States Stubbe patent design, both published and abandoned in the United States, must surely fall under the gamut of Section 74 of the New Zealand Copyright Act 1994. It is absurd to consider that a published and abandoned United States patent will be accorded special rights, powers, or exemptions not available for local New Zealand art.[21] The plaintiff then seeks a number of remedies. I summarise them:(a) For a ruling that the Lucas threat of copyright infringement was illegitimate, to bring into play s 34 of the Design Act 1953;(b) A damages enquiry for the loss of opportunity associated with the copyright infringement against Peterson designs which were encapsulated in one of the sets of proceedings discontinued due to the agreement coerced by the Lucas illegitimate threat and likewise other proceedings;(c) It seeks from the High Court a recall of the judgments of Associate Judge Bell and Gilbert J. It seeks $1,000,000 damages in the alternative; $500,000 for loss of opportunity to pursue Lucas copyright infringements in New Zealand; and $1,500,000 in relation to a loss of opportunity to pursue copyright infringement against the plaintiff's designs in Australia;(d) It seeks a further global award of $100,000 for other expenditure and emotional stress; and(e) $100,000 for loss of income.The applications before this Court[22] The defendant has responded by lodging an application on 10 December 2014 for summary judgment against the plaintiff for abuse of process or, in thealternative, that the plaintiff's claims be struck out as they cannot succeed. And,thirdly, for issue estoppel, pleading that the plaintiff is seeking to relitigate issues and disputes that had been finally determined by the High Court and/or Court of Appeal. The other applications I do not need to mention.[23] The plaintiff has responded with his own interlocutory application for summary judgment against the defendant, relying on s 34 of the New Zealand Design Act 1953; the Berne Convention; s 230 of the Copyright Act 1994; and s 74 of the Copyright Act.The argument before this Court[24] The principal argument before this Court by Ms Dickson, for the Lucas family, was that these proceedings are an abuse of process. That Mr Peterson was seeking to relitigate issues that had been decided against him in the High Court and in the Court of Appeal being particularly, that he was the victim of illegitimate threats in the course of negotiations that led to the settlement, which included the abandonment of his claims for damages against the Lucas family and challenging the Court of Appeal findings against him, applying s 74 of the Copyright Act.[25] As the history of this litigation set out above shows, the question of thelegitimacy of the threats of further litigation made in the course of negotiations byMr Lucas in order to get a settlement, were dismissed by the High Court both byAssociate Judge Bell and Gilbert J on review. Included in that dismissal werefindings of fact that the threats had not been made dishonestly. This was against thecriterion that for Mr Lucas to avoid the settlement agreement, he had to show deceitor dishonesty on the part of the Lucas family. This he failed to do.[26] There is no doubt that the Lucas family had acquired the intellectual rights over the Stubbe sawmill. The background here is that the Stubbe sawmill had been patented in the United States but the patent had run out. However, there were otherintellectual property rights not caught by the limited timeframe of the patent. These included copyright. So the threat of Mr Lucas to use his ownership of the Stubbe intellectual property rights against the interests of the Peterson business was not deceitful. He had that capacity.[27] Whether or not he would have been successful was entirely another matter and, in any event, not justiciable in the way in which the issue was argued in the High Court.[28] Mr Peterson failed in his attempts to get leave to appeal to the Court ofAppeal against Gilbert J's decision both from Gilbert J and from the Court ofAppeal. In the course of dismissing applications for leave to appeal, the Court of Appeal also made adverse findings against him as to the application of s 74 of the Copyright Act and art 5 of the Berne Convention13 and in respect of s 34 of the Designs Act 1953.14[29] Ms Dickson relied principally on the decision of Henderson v Henderson.15In the alternative, she argued that the proceedings were so untenable, they could not possibly succeed.[30] I do not consider I need to go into the alternative argument, nor is it proper to do so as it would be a critical review of earlier judgments, including two of the Court of Appeal. All the arguments by all the contentions now pleaded by Mr Peterson either were or could have been argued in the litigation to date. It is not a ground for reopening argument that the litigant has a better understanding of the law and could have improved upon the case. Nor is there any basis for reopening the litigation in the High Court against the submission that previous decisions of the Court of Appeal on the same dispute were wrong.[31] There is no doubt that the principle of issue estoppel applies as these issues were distinctly put in issue by Mr Peterson and there are decisions against him on it.13 See [13] above.14 See [15] above15 Henderson v Henderson (1843) 3 Hare 100, 67 ER 319 (Ch).[32] One of the deep-seated principles of the law is that parties must bring their whole case before the Court so that all aspects of it may be finally decided once and for all. The leading decision is that of Henderson v Henderson.16 Henderson v Henderson has been discussed in many cases. It is sufficient to refer to Asher J'sdecision in Rafiq v Secretary for Department of Internal Affairs of New Zealand.17There Asher J adopted a dictum of the United Kingdom Court of Appeal in the case of Barrow v Bankside Agency Limited:18A party cannot bring a case relating to a certain party, certain sequences of conduct, and a certain timeframe, and then when it fails bring another case raising another similar complaint relating to the same party, the same sequence and the same timeframe. Parties must bring their whole case to the Court so there can be finality of litigation.[33] It should be patent from the reasoning of this judgment that Mr Peterson'slatest claim arises out of precisely the same events that had been addressed in earlier litigation. It is no argument for Mr Peterson that he might now be formulating his argument in a stronger way. I am not making a finding to that effect at all. But, rather, I am making that point as a justification for not embarking, as invited by Mr Peterson, into an examination of the arguments he is seeking to place before the Court now.[34] Mr Peterson's latest statement of claim, although genuinely advanced, is misconceived. It is an abuse of the process. This is because there is an important common law principle that there is a community interest in finality of litigation.19[35] Central to Mr Peterson's grievance is that he felt he was pressuredillegitimately into settling his litigation in 2011. Mr Peterson has exhausted his attempts to reopen that dispute. This statement of claim is misconceived. It is an abuse of process. It must be struck out.[36] I reserve the question of costs.16 Henderson v Henderson, above n 11.17 Rafiq v Secretary for the Department of Internal Affairs of New Zealand [2014] NZHC 2064.18 Barrow v Bankside Members Agency Limited [1996] 1 WLR 257 (CA).19 See Commissioner of Inland Revenue v Redcliff Forestry Venture Ltd [2013] NZSC 804 at [28].