SIEMER v AUCKLAND HIGH COURT [2013] NZHC 3540

SIEMER v AUCKLAND HIGH COURT [2013] NZHC 3540 [20 December 2013]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-3768[2013] NZHC 3540BETWEEN JANE CHAPMAN SIEMERPlaintiffAND AUCKLAND HIGH COURTFirst DefendantAND RODNEY HAROLD HANSENSecond DefendantHearing: 6 December 2013Appearances: No appearance by PlaintiffD Baltakmens for DefendantsOriginalJudgment 20 December 2013Recall Judgment: 7 May 2014ReplacementJudgment:7 May 2014JUDGMENT (NO. 3) OF TOOGOOD J [Replacing recalled Judgment of 20 December 2013]This judgment was delivered by me on 7 May 2014 at 4:30 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarIntroduction[1] The plaintiff brings these proceedings against the first and second defendants seeking financial compensation and declaratory relief in respect of alleged misconduct and breaches of her rights to natural justice and access to the Courts under the New Zealand Bill of Rights Act 1990 ("NZBORA"). The defendants seek to have the proceedings struck out because the claim is barred by judicial immunity and amounts to an abuse of process.Factual background[2] In 2003 the plaintiff, along with her husband and Paragon Oil Systems Ltd, commenced a proceeding against the plaintiff's former barrister,Mr Robert Fardell QC, alleging negligence and breach of fiduciary duty. The plaintiff rejected two settlement offers of $175,000 each tendered by Mr Fardell in February and June 2005.[3] Mr Fardell died in December 2005. In 2008, both Paragon Oil Systems Ltdand the plaintiff's husband were struck out as claimants. The plaintiff retained herright to claim damages against Mr Fardell's estate. On 2 May 2008, Associate Judge Abbott ordered the plaintiff to pay $100,000 in security for costs before her claimagainst Mr Fardell's estate would be heard.1[4] On 2 October 2008, John Hansen J upheld Abbott AJ's order for security.2The security for costs was never paid and consequently, on 21 June 2010, RodneyHansen J granted an application by Mr Fardell's estate to strike out the plaintiff'sclaim.3 In July 2010, the plaintiff filed an appeal in the Court of Appeal againstRodney Hansen J's decision, seeking an order that security for the appeal bedispensed with. The Registrar declined to make that order so the plaintiff sought areview of the Registrar's decision, which was dismissed by Chambers J on 3 December 2010. The plaintiff then unsuccessfully sought leave to appeal to the1 Siemer v Fardell HC Auckland CIV-2003-404-005782, 2 May 2008.2 Siemer v Fardell HC Auckland CIV-2003-404-5782, 2 October 2008.3 Siemer v Fardell HC Auckland CIV-2003-404-5782, 21 June 2010.Supreme Court in relation to Chambers J's refusal to overturn the Registrar'sdecision.4[5] The plaintiff says that in May 2013, having been informed that no one wouldbe able to take the claim against Mr Fardell's estate to court, the estate nevertheless offered a $50,000 settlement to the Official Assignee to file a notice of discontinuance of the claim. The Official Assignee accepted this offer and on 21 June 2013 a notice of discontinuance was filed despite, the plaintiff says, the bar of $100,000 security for costs imposed by Abbott AJ in the order remaining in force and unsatisfied.The application and submissions[6] The plaintiff advances two causes of action as the basis for her claims in this proceeding:(a) First, she says that her right to natural justice under s 27 of the NZBORA has been breached as officers of the first defendant, and the second defendant, knew or ought to have known that imposing security for costs in the amount of $100,000 would prevent her claimagainst Mr Fardell's estate. She also says that the second defendant knew that striking out her claim left no one to pursue it. The plaintiff seeks costs and a declaration that the defendants acted with recklessdisregard for her rights in preventing her claim against Mr Fardell'sestate to be heard by ordering her to pay a prohibitive amount as security for costs.(b) Second, the plaintiff alleges that the second defendant discriminated against her and acted with malice or reckless disregard for her right to access to justice under the NZBORA. She says that the seconddefendant's actions have cost her $150,000, being the $50,000 offer accepted by the Official Assignee and the $100,000 security for costs order (notwithstanding that security was never paid). The plaintiff4 Siemer v Fardell [2011] NZSC 30.seeks a declaration that the actions of the second defendant, by imposing the security for costs then denying her access to Court, were malicious and deliberately reckless. She also seeks to recover the alleged deficit of $150,000 as well as $10,500 in legal fees.[7] The defendants apply to strike out the plaintiff's claim. They argue thatalthough the Auckland High Court is named as the first defendant, the only proceeding in which a court can be named as a party to civil proceedings is in an application for judicial review, which this is not. In any event, they say, the actions complained of are those of Judges of the High Court, not the Court itself.[8] Further, the defendants say the plaintiff's claim is barred by judicial immunity. The defendants rely on the Supreme Court's decision in Attorney-General v Chapman where it was held that the public policy reasons that supported personal judicial immunity also prevented claims against the Crown for judicial breaches of the NZBORA.5 The defendants also cite more recent High Court authority6 that the principles on which the majority in Chapman founded its views in relation to financial compensation in respect of judicial conduct have equal application to claims for declaratory relief. Therefore, the defendants say, Chapman operates as a complete bar to the plaintiff's claims for declaratory relief and financialcompensation.[9] The defendants also submit that the plaintiff's claim is an abuse of process asit is an attempt to relitigate matters which have already been decided. The pleadings are also alleged to be inaccurate and non-compliant with the High Court Rules and, therefore, are defective.[10] In her written submissions in opposition to strike-out, the plaintiff argues that the defendants have waived the right to defend the claims on the merits. She refers to r 5.47 of the High Court Rules which provides that a defendant who intends to defend a proceeding must file a statement of defence. The plaintiff says that the5 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462.6 Siemer v Attorney-General [2013] NZHC 1111.defendants do not therefore intend to defend the proceeding and lack standing to pursue a strike-out application.[11] The plaintiff also says that there is nothing in Chapman which negates a declaratory remedy. As to the issue of whether proceedings can be brought against the High Court itself, the plaintiff says that any jurisdictional impediment can be remedied by the High Court transferring the matter to the Court of Appeal.Issues[12] In determining whether the proceeding should be struck out, the following issues arise:(a) When a party applies to strike out a proceeding, must that party first file a statement of defence?(b) Can this proceeding be brought against "the Auckland High Court"?(c) Applying the principles in Chapman, is the proceeding barred by judicial immunity?(d) Is the plaintiff's claim an abuse of process?When a party applies to strike out a proceeding, must that party first file a statement of defence?[13] The plaintiff argues that, because the defendants did not file statements of defence, they lack standing to pursue a strike-out application. Arguing in reliance on r 5.47 of the High Court Rules, the plaintiff says that it is mandatory for the defendants to have filed a statement of defence if they wish to take some other step in the proceeding. The rule provides, so far as is relevant:5.47 Filing and service of statement of defence(1) A defendant who intends to defend the proceeding must,—(a) within the number of working days stated in the notice of proceeding, file in the registry of the courtnamed in that notice a statement of defence to the plaintiff's claim; and(b) serve a copy of the statement of defence on the plaintiff and any other party.(2) Unless otherwise ordered by the court,—(a) the place for filing the statement of defence must be the registry of the court in which the statement of claim was filed or into which it has been transferred:(b) the time within which the statement of defence is required to be filed is 25 working days after the day on which the statement of claim and notice of proceeding are served on the defendant.....[14] The plaintiff says that her amended statement of claim was filed on or about 30 September 2013 and that under r 5.47(2)(b), the defendants are clearly in breach of the time limits.[15] There is no requirement in the Rules that a party who seeks to strike out a pleading must first file a statement of defence.7 A breach of the time limits for filing a statement of defence out of time does not render any action by a named defendant a nullity or otherwise automatically preclude the defendant from filing one. First, as the learned authors of McGechan on Procedure say,8 a breach of the time limit for filing and/or service does not in itself preclude the defendant from belatedly filing and serving a defence. Under both the former and present provisions of the High Court Rules, the Court does not refuse to accept a statement of defence for filing after the time limit expires, unless the proceeding has been set down for hearing. In that event, leave is required first. That practice appears to have originated from early authority that defences filed after the expiration of time allowed by the rules of court were not to be treated as nullities.9 The decisions implicitly recognise that if a statement of defence irregularly tendered beyond time limits were to be ignored, and7 Faloon v Commissioner of Inland Revenue [2012] NZHC 1154 at [5] and [6]. See alsoMawhinney v Nags Head Horse Hotel Ltd [2013] NZHC 369 where the defendant brought an application to strike out the claim rather than file a statement of defence but no issue was taken with this approach.8 McGechan on Procedure (online looseleaf ed, Brookers) at [HR5.47.04].9 Graves v Terry (1882) 9 QBD 170; Gill v Woodfin (1884) 25 Ch D 707 (CA); Gibbings v Strong(1884) 26 Ch D 66 (CA); Montagu v The Land Corp of England (1887) 56 LT 730; and Millar v Sutherland (1888) 6 NZLR 724 (SC).judgment allowed in default of pleadings, the defendant concerned could always apply to set aside such judgment. At that latter stage, the late statement of defence necessarily would come under consideration.[16] Furthermore, the Court may, in its discretion, extend the time appointed by the Rules for doing any act or taking any proceeding or any step in a proceeding, on such terms (if any) as the court thinks just,10 even if the application for the extension is not made until after the expiration of the time appointed. It is often the case, therefore, that a defendant elects to file a strike-out application before going to the trouble and expense of pleading to a claim which the defendant considers does not call for a response to the merits. If the claim is not struck out, a prompt application for leave under r 1.19 to file a statement of defence out of time, if such is necessary, would almost certainly be granted.[17] Failing to file a statement of defence in accordance with the time limits in r 5.47(2)(b) does not preclude the defendants from applying to strike out the proceeding.Principles to apply on strike-out[18] The principles to be applied on an application to strike out a proceeding are well settled:11(a) Pleaded facts are assumed to be true.(b) The cause of action must be clearly untenable. The Court must be certain that it cannot succeed.(c) The jurisdiction is to be exercised sparingly and only in clear cases, reflecting the Court's reluctance to terminate a claim short of trial.10 High Court Rules, r 1.19(1).11 Couch v A-G [2008] NZSC 45 at [33]. See also Attorney-General v Prince [1998] 1 NZLR 262 (CA).(d) The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.(e) The court should be particularly slow to strike out a claim in any developing area of the law.[19] In this instance, therefore, I proceed on the basis that the plaintiff should be permitted to pursue her claims unless they are clearly untenable.Can this proceeding be brought against the Auckland High Court?[20] The Auckland High Court is listed as the first defendant. There is no such entity, but there is this Court, a court of record established under the Judicature Act 1908 as the High Court of New Zealand.12 The Court is a single court having registries in various centres throughout New Zealand, including Auckland. For present purposes, I take it that the plaintiff intends that the High Court of New Zealand is the intended defendant.[21] The claims against the Court are founded on the following allegations:(a) A civil claim was lodged with the Court alleging negligence against Mr Fardell.(b) The plaintiff had to apply to the Court in 2004 for an order directing Mr Fardell to file and serve a statement of defence to the statement of claim.(c) The Court ordered Mr Fardell to file and serve a statement of defence.(d) Mr Fardell admitted to the Court he erased documents from hiscomputer relating to the plaintiff's claim against him, which required the plaintiff to apply to the Court for a computer forensic expert tosearch Mr Fardell's computer.12 Judicature Act 1908, s 3.(e) From 2004 to 2005 the plaintiff made repeated applications to the Court for discovery from Mr Fardell.(f) "Associate Judge Abbott of the First Defendant" ordered the plaintiffto pay $100,000 in security for costs.[22] Proceedings have been brought against the High Court as a party in several cases.13 For various reasons, those claims were struck out. In Rodley v Cuddon,Wild J said that "damaged defendants cannot sue the Court (or the Judge)".14 In none of those cases, however, was the legal personality of the Court discussed.[23] The vast majority of cases in which the High Court of New Zealand (or a particular Registry of that Court) has been named as a party have been judicial review proceedings.15 It is only in judicial review proceedings that there is legislative authority for naming a Court as a party to a proceeding. Section 9(4A) of the Judicature Amendment Act 1972 relevantly provides:16(4A) For the purposes of subsection (4) of this section, where the act or omission is that of a Judge, Registrar, or presiding officer of any Court or tribunal,—(a) That Court or tribunal, and not that Judge, Registrar, or presiding officer, shall be cited as a respondent; but(b) That Judge, Registrar, or presiding officer may file, on behalf of that Court or tribunal, a statement of defence to the statement of claim.[24] But this is not a judicial review proceeding. Furthermore, as the defendants point out, it is the conduct of individual Judges which is being called into question by the plaintiff. In respect of the first cause of action, the pleadings allege breachesby "Officers acting for the First Defendant, and specifically the Second Defendant".Since the High Court is not capable of being sued in the capacity alleged by the13 For example McVeagh v Attorney-General [2001] 3 NZLR 566 (HC) and Reid v Tararua District Council CA452/09, 27 July 2010.14 Rodley v Cuddon HC Blenheim CP3/99, 29 March 1999.15 For example Young v Police [2007] NZCA 339; Terry v Greymouth High Court CA3/99, 24 March 1999.16 For a discussion of the reasons underlying the introduction of the section in 1991, see the discussion by McGechan J in Tau v Durie (1996) 9 PRNZ 283 (HC) at 285 – 286.plaintiff, any allegations against "Officers acting for the First Defendant" are betterconsidered under the issue of whether the claim is barred by judicial immunity.[25] The plaintiff says that any difficulty arising from the naming of the"Auckland High Court" as a party can be resolved by the High Court transferring the proceeding to the Court of Appeal. Section 64 of the Judicature Act 1908 permits the transfer of civil proceedings from the High Court to the Court of Appeal wherethe circumstances of a proceeding pending before the High Court "are exceptional".However, before a proceeding is transferred to the Court of Appeal, it must be a validly constituted proceeding within the jurisdiction of the High Court; any invalidity cannot be cured by such a transfer[26] Moreover, an application for transfer must be made under r 7.19 of the High Court Rules. Section 64(4) provides that the fact that parties to a proceeding agree to the transfer of the proceeding to the Court of Appeal "is not in itself a sufficient ground for an order transferring the proceeding". This process has not been agreed to between the parties and no such application has been made in this case. Moreover, there is no purpose in considering this point further unless the claim survives the second ground for strike out.Is the proceeding barred by judicial immunity?The principle of judicial immunity[27] The principle of judicial immunity is fundamental. It has long been the position that judges are immune from civil suit in respect of acts or omissions occurring in the course of their judicial work. In delivering the judgment of the Court in Nakhla v McCarthy, Woodhouse J said:17An action complaining of the judicial work of a superior court judge is probably unique in New Zealand. In the United Kingdom the number of recorded attempts to bring a similar action during the past 150 years or more can be counted on the fingers of one hand. None has succeeded.It is not necessary to search for the reason. It lies in the right of men and women to feel that when discharging his judicial responsibilities a judge will17 Nakhla v McCarthy [1978] 1 NZLR 291 (CA) at 293 - 294.have no more reason to be affected by fear than he will allow himself to be subjected to influences of favour. Thus he is surrounded with an absolute immunity from civil proceedings for acts done or words spoken in the exercise of his judicial office. But that immunity is in no sense a private right which might be regarded as having been conferred upon him and which he then might be said to enjoy. He is merely the repository of a public right which is designed to ensure that the administration of justice will be untrammelled by the collateral attacks of disappointed or disaffected litigants. That simple concept is gladly accepted, we believe, by the citizen and lawyer alike. And its strength extends to preventing civil proceedings against the judge in respect of his exercise of jurisdiction even though he may act with gross carelessness or be moved by reasons of actual malice oreven hatred. A judge can, of course, be made to answer, and in a proper case pay dearly, for any criminal misconduct. Like any other citizen criminal proceedings may be brought against him. If the need arose steps could be taken in the Parliament to have him dismissed from office. If in the course of his work he should fall into error the matter can become the subject of appeal. If he should wrongly deprive a man of his freedom then altogether apart from appeal, there is the remedy of habeas corpus. But in relation to the performance of his judicial office the judge is immune from attack in civil proceedings.[28] In Gazley v Lord Cooke of Thorndon,18 Eichelbaum CJ and Henry J eachreferred to Halsbury's Laws of England, where it is said that:19Persons exercising judicial functions in a Court are exempt from all civil liability whatsoever for anything done or said by them in their judicial capacity, nor can any action be brought against the Crown in respect of acts or omissions of persons discharging responsibilities of a judicial nature or inconnection with the execution of judicial process A superior court isprotected even though the Judge has exceeded his jurisdiction, so long as he has acted judicially.[29] Judicial immunity was considered more recently by the Supreme Court inAttorney-General v Chapman.20 The principal judgment for the majority was written by McGrath and William Young JJ, with whom Gault J associated himself. They said:21Allowing claims against judges would provide an opportunity for disappointed litigants to harass those who had decided cases against them. It would also provide an opportunity for such litigants to put in issue the correctness of, and thus collaterally attack, earlier judgments. Given that around half of all litigants are likely to be dissatisfied (and sometimes18 Gazley v Lorde Cooke of Thorndon [1992] 2 NZLR 668 (CA).19 Halsbury's Laws of England (4th ed, reissue, 1998) vol 1(1) at [212] – [216].20 Attorney-General v Chapman, above n 5.21 At [166].irrationally) with decisions made by judges, there would be many who would take up such opportunities. In this context, allowing claims to be made against judges would:(a) have the tendency to distract judges from their duty to deal with cases dispassionately;(b) result in judges spending time responding to suits against them, causing much wastage of judicial time;(c) discourage judicial recruitment; and(d) by permitting collateral attack, undermine the finality of judgments.The principles of judicial immunity are the result of a balancing exercise. On the one hand there is the problem of a disappointed litigant with a genuine grievance but no remedy. On the other hand there are the undesirable consequences of permitting claims against judges. The response of the courts in cases such as Nakhla and Gazley has been to allow the latter consideration to trump the former.[30] McGrath and William Young JJ also considered whether absolute judicial immunity should be qualified in some way but concluded it should not, even in cases where malice, bad faith, gross negligence or recklessness is alleged.22 They said23that the need for an absolute rather than partial judicial immunity reflects the traditional view of the courts that general exposure of judges to the threat of lawsuits for judicial errors will create pressure for defensive judicial behaviour and in the long run will be more harmful to independent adjudication than accepting that there will be very rare cases where no adequate remedy is available for judicial wrongdoing.[31] Chapman was a case involving a claim for financial relief. The plaintiff in this case seeks two remedies: the first is financial compensation and the second is declaratory relief. I turn to those now.Is a claim for financial compensation barred?[32] As to financial compensation, the majority in Chapman said:2422 At [168] – [170].23 At [172].24 At [192].All in all, allowing compensation claims for judicial breach of the Bill of Rights Act would be as inimical to judicial independence as permitting claims to be advanced against judges personally.[33] The allegations giving rise to the claims against the first defendant are summarised above at [21]. As that summary shows, the conduct complained of is generally that of judges or, by inference, officers of the civil registry. They do not relate to the conduct of the High Court as an entity in its own right. This is clarifiedin the first cause of action which refers to "Officers acting for the First Defendant".[34] So far as the pleadings relate to conduct of judges "of the first defendant",any relevant actions occurred in the exercise of judicial functions. The judges are subject therefore to absolute judicial immunity and any claim for financial compensation against them cannot possibly succeed.[35] To the extent that the conduct complained of relates to other officers of the High Court, other than judges, it is arguable they too are protected so long as they are exercising judicial functions. This point was not discussed in any detail inChapman,25 but it does not need to be determined here because the pleading does not expressly bring a cause of action against any member of the Court's staff. Even if that might be implied, there is no allegation that they acted beyond their judicial functions.[36] As McGechan J said in Crispin v Registrar of the District Court,26 the underlying policy is that those required to exercise judicial functions should have freedom to speak and act without fear of reprisal. That will be subverted if, while the author is free from attack, his or her subordinates are not protected.[37] The causes of action relating to the second defendant, Justice Rodney Hansen, are necessarily directed at his actions whilst exercising his judicial functions as a Judge of the High Court. He is entitled to absolute immunity as a consequence.25 See at [207] – [209].26 Crispin v Registrar of the District Court [1986] 2 NZLR (HC) 246 at 252. Upheld on appeal:Crispin v Registrar of the District Court at Napier [1986] 2 NZLR 252 (CA). See also Young v Attorney-General [2003] NZAR 627 (HC).[38] Accordingly, the claims against the first and second defendants are protected by judicial immunity and so the causes of action pleaded by the plaintiff are untenable.[39] For completeness, I address the application of the principles in Chapman.Is a claim for declaratory relief barred?[40] As far as declaratory relief is concerned, the plaintiff says that there is nothing in Chapman negating a declaratory remedy.[41] In Chapman it was held that the public policy reasons that supported personal judicial immunity also prevented claims against the Crown for judicial breaches of the NZBORA. While Chapman does not go so far as to expressly exclude a declaratory remedy, I held in Siemer v Attorney-General27 that the principles upon which the majority in Chapman founded its views, in relation to claims for financial compensation in respect of judicial conduct, have equal application to claims for declaratory relief. It is sufficient for the purposes of this case to repeat what is said in that judgment:[44] In my view, the constitutional objection to the executive branch acting as the defendant applies also where, as here, the claim is founded upon allegations that a judge or a court has acted improperly. In the present proceeding, Mr Siemer relies upon a direct attack on the Supreme Court, alleging that it violated his NZBORA rights. These allegations, if defended, would require the Attorney-General to explain and justify the actions of the Supreme Court in dealing with the proceedings in which Mr Siemer was formerly involved. As noted above, such a requirement would threaten the independence of the judiciary from the other branches of government.[45] Further, the executive government is not the general guarantor of the judiciary in respect of claims for non-monetary relief. As the majority inChapman observed, declaratory relief against the Crown would be ineffective if a government had no power of control over the persons or body who had acted in breach of rights. An aggrieved litigant's purpose inapplying for declaratory relief, if the proceeding is not to be wholly an academic exercise, is to alter rights or perceived rights and to effectconsequential action. The point of Mr Siemer's claims in the present case, ifnot to found subsequent claims by him to compensation must be, at least, to allow the prospect of further litigation in the proceedings which are the subject of his allegations, and to modify judicial conduct in the future.27 Siemer v Attorney-General, above n 6, a proceeding brought by the present plaintiff's husband.[46] Whereas the executive branch has control over Ministers or public servants against whom declaratory relief is granted, and can give effect to the consequences of the declaration, the executive branch has no ability to control the future conduct of the judiciary. Declarations in proceedings against the judiciary could therefore be ineffective, as the majority inChapman noted.[47] There is also the inevitable prospect that, in order to defend allegations of the kind made here, albeit in the context of claims for declaratory relief, judges would have to give evidence concerning theirconduct. This would "give rise to a perception that judges may come underpressure in their decision-making if they believe that they may bequestioned concerning it at a later stage."[48] The majority in Chapman held that "the extensive protection againstjudicial breach afforded by the justice system and in particular the currentappellate process" also justified confining the scope of Crown liability forgovernmental breaches of the NZBORA to actions of the executive branch. At [195], the majority noted the extension of remedial protection for those aggrieved by judicial conduct included the establishment of the Supreme Court, and the creation of a regime for investigating complaints against judges by the enactment of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004....[50] While I do not think it correct to say that Chapman in itself operatesas a complete bar to the plaintiff's case, I agree that the principles uponwhich the majority founded its views in relation to claims for financial compensation in respect of judicial conduct have equal application to claims for declaratory relief.[42] Nothing in the present plaintiff's submissions persuades me that thisreasoning is wrong. It applies to this case. Accordingly, declaratory relief is not available to the plaintiff.Is the plaintiff's claim an abuse of process?[43] The defendants also say the plaintiff's claim should be struck out as an abuseof process because it amounts to an attempt to relitigate prior final decisions.28 This argument must rest on the proposition that the plaintiff could succeed in this proceeding only if the actions of the judicial officers about which she complains were unlawful. Considering the lawfulness of those actions necessarily involves reviewing the basis for the decisions. The plaintiff has previously had opportunities to do so.28 See Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541.[44] On 2 May 2008, Associate Judge Abbott made an order for security for costs against the plaintiff.29 On 2 October 2008, John Hansen J declined her application for a review of that decision.30 The plaintiff then filed an application for specialleave to appeal John Hansen J's decision to the Court of Appeal, but did not pursueit.[45] The plaintiff had another opportunity to challenge the basis for Abbott AJ'ssecurity for costs order when Rodney Hansen J heard the strike out application brought by the defendants in the Fardell proceeding.31 Rodney Hansen J upheld theAssociate Judge's previous security for costs order and ruled that the plaintiff's claimwould be struck out unless security for costs was paid. The plaintiff appealed that decision also but the appeal was not pursued.[46] Thus, the subject matter of the present proceeding has been before the courts in the past. The plaintiff has exhausted the proper means available to her for challenging those decisions, so any further attempt at having the issues heard, such as this proceeding, amounts to an attempt to relitigate the issues and is an abuse of process of the Court.Result and costs[47] For the reasons given, and applying the acknowledged principles,32 I strike out the proceeding.[48] The defendant is entitled to costs calculated on a Category 2B basis. A claim for costs and disbursements totalling $11,958.83 has been made on behalf of the defendants.29 Siemer v Fardell, above n 1.30 Siemer v Fardell, above n 2.31 Siemer v Fardell, above n 3.32 Noted at [18] above.[49] The plaintiff shall have until 21 May 2013 to file and serve any memorandum in opposition to a costs order in the amount sought and the application will then be dealt with on the papers............................................... Toogood J