O’NEILL v JUDICIARY OF AUCKLAND HIGH COURT, REGISTRY OF AUCKLAND HIGH COURT AND PERSONS AS YET UNKNOWN 2023] NZCA 153

O'NEILL v JUDICIARY OF AUCKLAND HIGH COURT, REGISTRY OF AUCKLAND HIGH COURT ANDPERSONS AS YET UNKNOWN 2023] NZCA 153 [5 May 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA529/2022[2023] NZCA 153BETWEEN CHRISTOPHER JOSEPH O'NEILLAppellantAND JUDICIARY OF AUCKLAND HIGHCOURT, REGISTRY OF AUCKLANDHIGH COURT AND PERSONS AS YETUNKNOWNRespondentsHearing: 30 March 2023Court: Courtney, Lang and Downs JJCounsel: No appearance by AppellantNo appearance for RespondentsJudgment: 5 May 2023 at 11 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Mr O'Neill filed a proceeding in the High Court at Wellington against therespondents set out above. The Registrar referred the proceeding to Gwyn J underr 5.35A of the High Court Rules 2016. This permits the Registrar to refer a proceedingto a Judge for consideration under r 5.35B. Rule 5.35B permits a Judge to strike outor make other directions in relation to a proceeding if satisfied the proceeding isplainly an abuse of the Court's process.[2] In a judgment delivered on 14 September 2022, Gwyn J struck the proceedingout on the basis that it was an abuse of the Court's process.1 Mr O'Neill appealed tothis Court against the Judge's decision.[3] The appeal was set down for hearing on 28 March 2023. It was then listed forargument again on 30 March 2023. Mr O'Neill failed to appear on either occasion.The Court dismissed the appeal on 30 March 2023 and now gives it reasons for doingso.Events leading up to the hearing[4] On 12 December 2022, the Registry sent Mr O'Neill a notice of fixture bycourier. This advised him that the appeal was to be heard in Auckland on Tuesday28 March 2023. It also advised him that his synopsis of argument and bundle ofauthorities needed to be filed by 28 February 2023.[5] Mr O'Neill did not file any further documents. However, on 27 March 2023he contacted the Registry by telephone to advise that he would not be able to attendthe hearing on 28 March 2023 because he was unwell. He gave no details as to thenature of his illness. He advised the Registry that he cannot be contacted by telephoneor email.[6] Mr O'Neill did not appear when the appeal was called on 28 March 2023 at10 am. Later the same day the Registry sent Mr O'Neill a letter advising him that theappeal had been adjourned until Thursday 30 March 2023 at 9.30 am. The letter alsoadvised Mr O'Neill that the hearing would proceed on that date unless he produced amedical certificate indicating that he would be medically unfit to attend Court.The Registry sent the letter to Mr O'Neill by courier.[7] At 1.25 pm on 28 March 2023 Mr O'Neil contacted the Registry by telephone.He advised that it was impossible for him to provide a medical certificate before thehearing on 30 March 2023. He then did not appear when the matter was called on thatdate.1 O'Neill v Judiciary of Auckland High Court [2022] NZHC 2359.[8] Against that background, the panel proceeded on the basis that Mr O'Neill hadelected not to appear and not to provide a medical certificate as requested. When thematter was called, Courtney J announced that in Mr O'Neill's absence the appeal wasdismissed with reasons to be given in due course. These are those reasons.The proceeding[9] Mr O'Neill filed a proceeding in the High Court at Wellington on 10 August2022 headed as "an application to the [H]ead-of-[B]ench, and formal complaint tosame". The proceeding was dated 26 July 2022.[10] The proceeding has its genesis in a complaint that Mr O'Neill made to theNew Zealand Law Society. The Society issued a decision on 23 December 2021.Mr O'Neill was dissatisfied with the decision and applied for review of the decisionby the Legal Complaints Review Officer (LCRO). The application alleges that theLCRO wrongly refused to recuse himself when challenged due to his involvement inanother appeal before this Court in which Mr O'Neill is also involved. It also allegesa registry officer of this Court "perverted the course of justice to stop [the] appealtaking place". This allegation appears to have its basis in the fact that the staff member(erroneously in Mr O'Neill's view) concluded the appeal had been filed out of time.[11] Mr O'Neill applied for judicial review of the LCRO's decision. He perceivedthat the High Court was not progressing his application in a timely manner.This prompted him to file a without notice application on 1 July 2022, the nature ofwhich is not apparent from the documents before this Court. This evoked no responseand Mr O'Neill then filed the proceeding that Gwyn J struck out.The Judge's decision[12] The Judge decided the proceeding was an abuse of the High Court's processfor the following reasons:(a) The fact that the application did not set out a legal cause of action meantthat it would be manifestly unfair to all defendants if they were requiredto respond to it.2(b) One of the categories of persons named as defendants was "persons asyet unknown". Any proceeding must relate to an identifiabledefendant.3(c) To the extent that the application names parties, it does so in such broadterms that there is not a sufficiently identifiable defendant. The partiesnamed are the Judiciary of Auckland High Court and the Registry ofAuckland High Court.4(d) Judges of the High Court enjoy absolute immunity from suit whilstexercising their judicial functions.5[13] These factors led the Judge to conclude that the application met the testimposed by r 5.35B. Gwyn J considered that the Court would be exercising poorcontrol of its processes if it allowed the proceedings to continue so that the defendantwould be required to respond through the Court process.6 She therefore struck theapplication out.Decision[14] We have concluded the Judge was correct to strike the proceeding out, andlargely for the reasons she gave. It is not possible to file a proceeding against theJudiciary and Registry of the Auckland High Court as a group. It is also clearlyimpossible to issue a proceeding against persons who are as yet unknown.2 At [7].3 At [8].4 At [9].5 At [10], citing Nakhla v McCarthy [1978] 1 NZLR 291 (CA) at 294 and 299; and Attorney-Generalv Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [161]–[165].6 At [11], quoting Smyth-Davoren v Parker [2018] NZHC 3034 at [8].[15] We also note that the intituling and body of the application suggest thatMr O'Neill intends the proceeding to be both an application seeking orders requiringthe Head of Bench of the High Court to take steps to progress his application forjudicial review of the LCRO's decision and a complaint that she has failed to do so todate. However, he does not name the Chief High Court Judge as a defendant.This defect could be rectified by substituting the Chief High Court Judge as thedefendant, but this would not solve the problem that the proceeding contains notenable cause of action. There is no jurisdiction for the High Court to make an orderrequiring the Chief High Court Judge to take steps to progress a proceeding or toresolve a complaint that she has not done so to date.[16] We have considered the material Mr O'Neill filed in support of the presentappeal. It does not provide any legal basis for his claim and we are satisfied that issueis insurmountable. An oral hearing would therefore not have assisted Mr O'Neill'scause.Result[17] The appeal is dismissed.