O’NEILL v THE JUDICIARY OF AUCKLAND HIGH COURT & Ors [2022] NZHC 2359

O'NEILL v THE JUDICIARY OF AUCKLAND HIGH COURT & Ors [2022] NZHC 2359 [14 September 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-573[2022] NZHC 2359UNDER the New Zealand Bill of RightsIN THE MATTER OF an application to the head-of-bench, andformal complaint to sameBETWEEN CHRISTOPHER JOSEPH O'NEILLApplicantAND THE JUDICIARY OF AUCKLAND HIGHCOURT, THE REGISTRY OF AUCKLANDHIGH COURT AND PERSONS AS YETUNKNOWNDefendantsOn the PapersJudgment: 14 September 2022JUDGMENT OF GWYN JIntroduction[1] Mr O'Neill presented for filing in the Wellington Registry of the High Court aproceeding against the above named defendants. The proceedings were referred tome, as Duty Judge, by the Registrar under r 5.35A of the High Court Rules 2016 (theRules), which provides:5.35A Registrar may refer plainly abusive proceeding to Judge beforeservice(1) This rule applies if a Registrar believes that, on the face of aproceeding tendered for filing, the proceeding is plainly an abuse ofthe process of the court.(2) The Registrar must accept the proceeding for filing if it meets theformal 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 forfiling, 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 andattached memorandum for the plaintiff or the applicant (asappropriate) to serve the proceeding.The application[2] The document filed is labelled an interlocutory application without notice. Itstates that it is filed under the New Zealand Bill of Rights, as "an application to thehead-of-bench, and formal complaint to same". The application refers to a complaintmade by the applicant, Mr O'Neill, to the New Zealand Law Society, which issued adecision dated 23 December 2021. It appears that Mr O'Neill applied for a review ofthat decision, designated LCRO 51/2022. The current application appears to relate tosubsequent steps. The application makes certain allegations against the ReviewOfficer and a Ministry of Justice official, together with unspecified allegations againsta High Court Judge and a Court Registrar.[3] It appears from the application that Mr O'Neill filed an application in relationto these allegations in the Auckland High Court on 31 May 2022.My assessment[4] Proceedings referred under r 5.35A are considered by a Judge under r 5.35Bwhich provides:5.35B Judge's powers to make orders and give directions before service(1) This rule applies if a Judge to whom a Registrar refers a proceedingunder rule 5.35A is satisfied that the proceeding is plainly an abuse ofthe process of the court.(2) The Judge may, on his or her own initiative, make an order or givedirections to ensure that the proceeding is disposed of or, as the casemay 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 serveduntil the stay is lifted:(d) no application to lift the stay be heard until the person whofiled the proceeding files further documents as specified in theorder (for example, an amended statement of claim orparticulars of claim).(3) Rule 7.43(3) does not apply. However, if a Judge makes an order onthe Judge's own initiative without giving the person who filed theproceeding an opportunity to be heard, the order must contain astatement of that person's right to appeal against the decision.(4) A copy of a Judge's decision to strike out a proceeding must, ifpracticable, also be served on the person named as a party or, if morethan 1 person is named, those persons named as parties to theproceeding.(5) See rule 2.1(3)(b) concerning the exclusion of the jurisdiction andpowers of a Judge under this rule from the jurisdiction and powers ofan Associate Judge.[5] In Mathiesen v Slevin the Court explained that deciding whether to strike out aproceeding so referred involved determining the following questions:1(a) whether it would be manifestly unfair to the respondents that they berequired to respond; and(b) whether right thinking people would regard this Court as exercisingvery poor control of its processes if it were to allow the applicants'document to be regarded as a proper document.[6] In order to bring a proceeding, Mr O'Neill must set out a legal cause of actionand that cause of action must be brought against the relevant defendant under the law.No clear cause of action[7] The application does not set out a legal cause of action. For that reason, itwould be manifestly unfair to the defendants (if they had been properly identified) torespond.No claim against identified defendants[8] The claim purports to be again "persons as yet unknown". Plainly that doesnot satisfy the requirement of an identifiable defendant.1 Mathiesen v Slevin [2018] NZHC 1032, (2018) 25 PRNZ 116 at [6].[9] To the extent the application does name parties, it does so in such broad terms("the judiciary of Auckland High Court", "the Registry of Auckland High Court") thatthere is not a sufficiently identifiable defendant.[10] More fundamentally, Judges of the High Court in the exercise of their judicialoffice enjoy absolute immunity from suit.2[11] For the reasons set out at [7]-[10] above, I am satisfied the application meetsthe test imposed by r 5.35B. The defendants, to the extent they are identified, shouldnot be required to file a defence to an application that is not legally available againstthem. As Mallon J said in Smyth-Davoren v Parker & Ors,3 "the Court would beexercising poor control of its processes if it allowed the proceedings to continue, whichwould require the defendants to respond through the Court process."[12] I make an order striking out the application.[13] Mr ONeill has a right of appeal against this decision.4 In the normal course theCourt would direct that the named defendants be served with a copy of this judgment,5but given I have found the defendants are not adequately identified, that is not possible.Gwyn J2 Nakhla v McCarthy [1978] 1 NZLR 291 (CA) at 294, 299. Attorney-General v Chapman [2011]NZSC 110, [2012] 1 NZLR 462 at [161]-[165].3 Smyth-Davoren v Parker & Ors [2018] NZHC 3034 at [8].4 High Court Rules, r 5.35B(3).5 High Court Rules, r 5.35B(4).