JONES v NEW ZEALAND BLOODSTOCK FINANCE AND LEASING LTD [2021] NZHC 3220

JONES v NEW ZEALAND BLOODSTOCK FINANCE AND LEASING LTD [2021] NZHC 3220 [29November 2021]THIS IS A REDACTED VERSION OF THE JUDGMENT FORPUBLICATION. AN UNREDACTED VERSION HAS BEEN DELIVERED TOTHE PARTIESIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-002267[2021] NZHC 3220BETWEEN GREGORY JOHN JONESPlaintiffAND NEW ZEALAND BLOODSTOCKFINANCE AND LEASING LIMITEDFirst DefendantNEW ZEALAND BLOODSTOCKLIMITEDSecond DefendantPETER VELAThird DefendantDANIEL ROLSTONFourth Defendant/2 cont'dHearing: (On the papers)Judgment: 29 November 2021REDACTED JUDGMENT OF VENNING JOn Registrar's referral under r 5.35AThis judgment was delivered by me on 29 November 2021 at 3.00 pm, pursuant to Rule 11.5 of theHigh Court Rules.Registrar/Deputy RegistrarDateSolicitors/Counsel: Greg Jones, AucklandCopy to: DefendantsDAVID ELLISFifth DefendantDEAN HAWKINSSixth DefendantSEAN HAWKINSSeventh DefendantCAMBRIDGE VET SERVICESLIMITEDEighth DefendantCRAIG LAWRENCENinth DefendantBRUCE GRAYTenth DefendantHELEN RICEEleventh DefendantSIMON MOORETwelfth DefendantPHEROZE JAGOSEThirteenth DefendantTHE ATTORNEY-GENERAL OF NEWZEALANDFourteenth DefendantCHRISTINE MEECHANFifteenth DefendantGARY HARRISONSixteenth DefendantUNKNOWN DEFENDANTSSeventeenth DefendantIntroduction[1] On 16 November 2021 Gregory Jones filed a proceeding in this Court citing16 named defendants and "unknown defendants" as the seventeenth defendant. MrJones seeks interim injunctive relief against all defendants. In general terms, theinjunctive relief sought can be described as relief from harassment of Mr Jones orinvasion of his privacy and a requirement that the defendants advise him if they havecarried out any acts involving breaches of his privacy or have otherwise engaged inharassment of him. He also seeks orders requiring the defendants to deliver up anydocumentation in relation to such actions they or others may have taken.[2] In the statement of claim Mr Jones alleges conspiracy against the first to ninthdefendants and alleges harassment and breach of privacy against all defendants. Inrelation to two of the defendants, the Hon Justice Jagose and the Attorney-General,the pleadings also allege bad faith, and breach of the New Zealand Bill of Rights Act1990 by the Judge during the course of a proceeding presided over by him.[3] The Registrar has referred the proceeding to me under r 5.35A of the HighCourt Rules 2016. The rule permits the Registrar to refer a proceeding to a judgewhere there is cause for concern the proceeding is plainly an abuse of the process ofthe Court.[4] Rule 5.35B confirms that on referral the judge may make various orders or givedirections to ensure the proceeding is disposed of or proceeds in a way that complieswith the rules. The orders available include striking out or staying the proceeding.The rule expressly confirms the inherent jurisdiction which the Court previouslyexercised to deal with such matters.The pleading[5] Mr Jones is a barrister. Since 2003 he has also been involved in the bloodstockindustry by way of a breeding enterprise and the racing of thoroughbred horses.[6] The first to seventh defendants are involved in the bloodstock industry and arealleged to have had dealings with Mr Jones and horses he has had an interest in, in thatregard. The eighth and ninth defendants provide veterinary services and again are saidto have had contact with Mr Jones through his interest and ownership of thoroughbredhorses.[7] The remaining defendants fall into a different category. The tenth defendant,Mr Gray, is a barrister and Queen's Counsel. He was formerly a close friend of MrJones. The eleventh defendant is a barrister and solicitor. The twelfth defendant is aJudge of the High Court but sued in his personal capacity. The thirteenth defendant isalso a Judge of the High Court as noted above. The fourteenth defendant is theAttorney-General of New Zealand sued on the basis he is vicariously liable for theactions of the thirteenth defendant. The fifteenth defendant, Ms Meechan, is Mr Jones'former wife. The sixteenth defendant is a District Court Judge and a former closefriend of Mr Jones. The unknown defendants sued as the seventeenth defendantappear to be sued on a quia timet basis.[8] The plaintiff separately alleges that the first to ninth defendants have causedhim loss in the course of their dealing and interaction with him or horses that he hashad an interest in. In relation to the first to fourth defendants he alleges they causedhim loss in respect of yearling sales for a number of named horses. He then allegesthe fifth defendant failed to race his horses in accordance with their true ability. Inrelation to the sixth and seventh defendants he says they acted in bad faith anddishonestly in the services they provided to him in respect of agistment, care andmarketing of his horses. Mr Jones alleges the actions of the eighth and ninthdefendants' veterinary care of a named horse caused him loss.[9] In addition, Mr Jones claims against the first to ninth defendants, and each ofthe tenth, eleventh, twelfth, thirteenth, sixteenth and seventeenth defendants that theyhave breached Mr Jones' privacy by "being aware of and seeking out privateinformation in relation to the plaintiff and being aware of other parties acting in thesame manner" and that they have harassed the plaintiff by "acting in a manner intendedto intimidate or humiliate the plaintiff". In relation to Ms Meechan, the fifteenthdefendant, Mr Jones alleges that she was aware of the actions of certain of the first toninth defendants and then repeats the general allegations that she has breached hisprivacy and has harassed him.[10] The causes of action pleaded are:(a) unlawful conspiracy to cause financial harm;(b) lawful conspiracy;(c) breach of privacy; and(d) harassment.[11] In each cause of action Mr Jones seeks:(a) an award of exemplary damages against each of the defendants in thesum of $5 million;(b) an account of the profits made from each of the defendants' businessactivities since the commencement of their actions against the plaintiff;and an order for disgorgement of those profits.[12] In relation to the additional claim against Jagose J and the Attorney-General inthe fifth and sixth causes of action Mr Jones pleads that when Jagose J heard a caseinvolving a claim by New Zealand Bloodstock Finance and Leasing Limited againsthim the Judge acted in a biased manner, exhibited bad faith towards him and failed toprotect his entitlement to natural justice under the New Zealand Bill of Rights Act1990.[13] Again, in those two causes of action, Mr Jones seeks exemplary damagesagainst each of Jagose J and the Attorney-General in the sum of $5 million togetherwith an account of losses suffered by him as a result of those breaches.[14] The application for an interim injunction is supported by an affidavit by MrJones. Although it is not sworn Mr Jones has filed a memorandum in compliance withr 9.73(4) of the High Court Rules in which he confirms that he is not presently able toswear or affirm the affidavit given the alert level 3 Public Health restrictions. Mr Joneshas confirmed that the affidavit contains the same evidential material as it would haveif sworn or affirmed in compliance with subcl (2) or (3) of r 9.73 and he has undertakento file a sworn version of the affidavit as soon as circumstances reasonably permit.The claims against Jagose J and the Attorney-General in the fifth and sixth causesof action.[15] The proposed claim against Jagose J in the fifth cause of action and the relatedclaim against the Attorney-General based on vicarious liability in the sixth cause ofaction are clear abuses of process. They have no prospect of success. At common lawjudges of superior courts have always had immunity from suit when carrying out theirjudicial function. The Supreme Court recently confirmed that to be the position inAttorney-General v Chapman.1[16] Further, as judges of the superior courts have always been immune from suitthere can be no question of the Crown or State being vicariously liable for theiractions.2[17] It follows that the claims against Jagose J and the Attorney-General in thepresent case based on Jagose J's actions in the previous proceeding cannot succeedand must be struck out.The first to fourth causes of action[18] That leaves the claims against the defendants in the first four causes of action.[19] I acknowledge that the right to bring proceedings before the courts is afundamental right and a court will act cautiously before striking out or staying aproceeding. There are however reasonable limits to the recourse to law as confirmedby the Court of Appeal in Faloon v Planning Tribunal at Wellington.3[20] The Court has an obligation to ensure that its processes are not abused and alsoto protect defendants from oppressive and frivolous proceedings. The broad publicinterest and the private interests of individual parties who may otherwise be drawn1 Attorney-General v Chapman [2011] NZSC 110 at 161.2 At [175]. See also Crown Proceedings Act 1950, s 6(5).3 Faloon v Planning Tribunal at Wellington [2020] NZCA 170.into entirely unmeritorious proceedings are to be considered and must be weighedagainst the right of a litigant to bring proceedings.[21] If misused, the judicial process can produce unfairness which can undermineconfidence in the administration of justice. In striking out or staying potentiallyabusive proceedings the Court is acting to protect its ability to function as a court oflaw in the future as much as in the case before it. The public interest and the dueadministration of justice necessarily extend to ensuring that the Court's processes arefairly used and that they do not lend themselves to oppression and injustice againstothers.4[22] More recently the Court has approached similar referrals on the basis ofwhether it would be manifestly unfair to the respondents they be required to respondto the proposed claim and whether right thinking people would regard the Court wasexercising very poor control of its processes if it were to allow the applicant's claimsto be regarded as proper claims that require a formal response.5[23] The claims against the defendants that allege a conspiracy, be it unlawful orlawful are an abuse in their present form. The allegation of an unlawful conspiracy inparticular is a serious allegation. A lawyer has an obligation not to raise allegations offraud, dishonesty or other reprehensible conduct unless the lawyer has takenappropriate steps to ensure that reasonable grounds for making the allegations exist.6The current pleading lacks any apparent basis to support the allegations of conspiracybe it unlawful or lawful, between the defendants.[24] The conspiracy pleading is fundamentally flawed in that it lacks any pleadingor particulars of an agreement between the defendants to support the bare allegationof conspiracy.[25] The claims against the defendants based on the allegations of breach of privacyor harassment also fall into the category of being an abuse of process. Again, apart4 Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 at [9] (CA).5 Mathiesen v Fildes [2017] NZHC 2258 at [4].6 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 13.8.from general allegations no particulars are provided in the pleadings to support thebare allegations of breach of privacy and harassment.[26] Reference to Mr Jones' affidavit to support the application for injunction doesnot assist his case. For example, in relation to the allegation against the eleventhdefendant the only references to her in the affidavit are:108. I have referred in my affidavits in the High Court proceeding to HelenRice making some untoward remarks towards me in respect of mypersonal relationship going forward. I believe Helen is well aware ofthe circumstances of which I complain and the harassment that I havebeen subjected to. She has in fact partaken in this in a direct way inmy belief.109. Her animosity towards David Heaney, my former legal partner, andher is well known. About two years ago I chose to have lunch withDavid at a restaurant in town and Helen Rice appeared immediatelyafter David and I had left the restaurant. This was not by chance. Norwas it by chance that shortly after I dropped my son [REDACTED]off at [school] on my way to work Helen crossed the road (admittedlyclose to where she lives) to walk about 15 metres behind him with thephone to her ear as he made his way into school. By chance? About asmuch chance as meeting me after my lunch with David Heaney.110. Similarly, Brett McDonald, the horse trainer who I have referred to ashaving difficulties with both in relation to him and his sons,telephoned me one morning just as Helen Rice was walking passedme on a path to Albert Park. The timing was perfect and by chanceagain? I do not believe so. Helen has worked for me and provided mewith some work as a barrister, but as matters have progressed withpeople such as Bruce Gray and me and as I continue to attempt toassert my independence and to break myself and my sons free fromthe nonsense that has occurred, people have taken an adverse view ofme. I believe the instances I have referred to support my allegationthat Helen is aware of the breaches of privacy and harassment thathave occurred to me and has been part of my life and the battle for meto gain my independence.[27] Similarly, as another example, in relation to the claim against Judge Harrison,it is said at [134] to [137]:134. Gary Harrison has been a friend of mine for 50 years. He knows my[family well]. I have no doubt at all that Gary is aware of the natureof the dispute that I have with a number of people, the individualsinvolved and the reasons for their animosity towards me. I have nodoubt as well that he is aware of the means by which my whereaboutsis known at any particular time for the purposes of carrying out theharassment that I have referred to in my evidence and I have no doubtas well that he is aware of those who do not wish me well and has thefacility, as a result, to inform me or the Police if necessary of thosewho are acting against me. His wife, Andrea Manuel is a close friendof Helen Rice's and I share the same concerns in relation to Gary as Ido in relation to Helen.135. Our friendship has deteriorated badly as a result of his failure to actappropriately in relation to all that has occurred to me of which I amcertain he is aware. By way of evidence in support of my concernsover his knowledge of my affairs I recall him saying to me on 1January 2016, as I went to watch a horse of mine race at Ellerslie, thatit was not likely to be a good day. The horse in question, San Miguel,bled and I have always recalled the portentous claim he made.136. In terms of breaches of privacy, of all the contact I have had with GaryI refer for the moment to just one specific instance that occurredbefore we were to go to Australia on one of the regular annual golftrips that I took with Gary and my friends, he turned up standingdirectly behind me in a bank in Queen Street with a smile on his faceas if he knew exactly where I was.137. I can add I think that if the types of knowledge of others that I havereferred to is common place then because of Gary's long termfriendship with me he certainly does know about the issues I havespoken about in these proceedings and he has had, as a result, thepower to prevent them from occurring by using his knowledge tobring them to an end which I believe he has chosen not to do. If Garytells the truth as is the case with all these Defendants, theseproceedings will not last very long and will be resolved in my favour.[28] It would be an abuse of process to require Ms Rice and Judge Harrison torespond to claims for $5 million based on such conjecture.[29] The allegations against the remaining defendants of breach of privacy, andharassment are similarly speculative and general. They are abusive, frivolous andvexatious. The vexatious nature is confirmed by the claim for $5 million exemplarydamages and request for an account of profits (when none of the tenth to seventeenthdefendants are said to have had any business dealings with Mr Jones).[30] The affidavit of Mr Jones is concerning in a number of respects. It raisessubstantial issues as to his competence and current state of mind. For example, atparas 78 to 80 of his affidavit he says:78. During this period I had become accustomed to members of my staffwho had worked with me attempting to leave messages of a discretenature. They were similar in manner to the types of messages that mysister-in-law and ex-wife had left. I remember so well the call fromMr Ellis and a red pen being left on my staff member's table in aprominent position that signalled "danger" about the warning I hadjust been given in relation to what was about to occur. I am clear inthis view. Looking back on it members of my staff I believe hadallegiances elsewhere in terms of my bloodstock and personal life andthe hiring of people by me was an opportunity for others to both getan insight into and undermine my businesses.79. In more recent times, a different staff member left a pen on the floorof her office pointing at the bottom of her set of drawers next to adesk. As a relatively tidy person, leaving the pen on the floor pointingat the bottom of a set of drawers that were open seemed strange andout of character to me. But I then recalled that I had just moved into anew home and had purchased from the chemist something for amedical ailment from which I have now recovered and I had left whatI had purchased in the bottom of a set of drawers next to my bed. Twoyoung ladies were cleaning the house and generally preparing theplace for me and would see what I had purchased in the bottom partof the drawer. What I now believe occurred is that there was andprobably still is in existence some type of social media connection thatobtains information in relation to me and circulates that to a widerbase. The coincidence between the pen on the floor and the presenceof the medical supplies placed next to my bed was just too muchbearing in mind all the "messages" that I had received and were givento me in order to destabilise my life. I annex hereto marked "I" adepiction of the message that was left for me then.80. The same staff member left a yellow and black felt tip penconspicuously on the floor pointed at a multi plug power point and thenext day I was at a function and Catherine Sandelin was dressed in thesame black and yellow colours which I regarded as another instanceof attempting to place subtle pressure on me that people were "gaslighting" me I think the phrase might be and I wanted nothing to dowith it: Again I depict the message that was left for me on thatparticular afternoon marked "J".[31] Then, later, in discussion in relation to his dealings with Mr Gray he says:101. He [Mr Gray] did not respond in any meaningful way. Within a fewdays I ran into Bruce Gray again in Commerce Street. I think after thatslightly torrid discussion he was making his "presence" felt. At thesame time Rob Coltman, a partner in Duncan Cotterill appeared nextto us. Coincidence? Not in my opinion as this was a well-practisedhabit. At appointment times people would meet me and Bruce Grayand Rob Coltman met me that morning. The significance? My son[REDACTED] plays for [REDACTED] Club. Not long after that"chance meeting" my son was not picked in a "colts" cricket team torepresent [REDACTED]. For the next two months, the [REDACTED]Club member in charge of [REDACTED] Colts Cricket who works inmy building would regularly "present himself" in my view as areminder of what might happen if I rock the boat. The "play" on myson's name, his cricket team and Mr Coltman were again typical of thetype of behaviour my sister-in-law had participated in.102. Earlier this year when I was driving to [Rosemini] College to watch[my son] play cricket I noticed a black pickup truck drive quickly pastme and swerved to attract my attention with the registration plateETA. As I will mention that type of action had been associated withmessages sent to me and interpreted the ETA as odd. This might seemunusual but my oldest son has a peanut allergy and the rather strangedriving of the vehicle with the registration plate like that (withprevious explained issues in relation to motor vehicles) seemedsomewhat odd but I thought about it a little and carried on.103. Within about an hour my son [REDACTED] was assaulted (shouldercharged) by an opposition bowler blatantly and forcibly. Theconnection of the two events was clear.[32] To allow the claims for conspiracy (be it unlawful or lawful) and the relatedclaims of harassment and breach of privacy based on the pleadings and evidence suchas that contained in the affidavit to be processed and served on the defendants wouldbe to allow the processes of the Court to be used as an abuse and would be anunreasonable imposition on the defendants. The Court has a responsibility not topermit such an abuse.[33] As to the proposed claims against the first to ninth defendants in relation totheir actions in relation to specific transactions or actions involving Mr Jones' horses,without commenting on the merits of such claims, it is possible that a claim could bepleaded in a form of breach of contract, negligence, or even conspiracy (if properlypleaded) which could properly be engaged with and responded to by those first to ninthdefendants. However, the claim is not presently in such a form.Result/orders[34] The claims against Jagose J and the Attorney-General in the fifth and sixthcauses of action are struck out as an abuse of process.[35] The claims against the tenth to seventeenth defendants in the first to fourthcauses of action are also struck out as an abuse of process.[36] The claims against the first to ninth defendants are stayed pending an amendedpleading in proper form being filed against those defendants.[37] Before any such amended claim is accepted and released for service it is eitherto be confirmed by a Queen's Counsel as a proper pleading or if not, it is to be referredto a judge of this Court and to be approved by a judge of this Court.[38] The stay will remain in place until 31 March 2022. In the event that noamended claim is filed satisfying the above requirement by that date the claim againstthe first to ninth defendants will also be struck out with no further action required.[39] In accordance with r 5.35B(3) Mr Jones is advised of his right of appeal to theCourt of Appeal against this decision.[40] In accordance with r 5.35B(4) a copy of this decision is to be provided to thedefendants.Costs[41] As the proceeding has not been served on any party there will be no order forcosts.__________________________Venning J