RE FOSTER [2019] NZHC 373

RE FOSTER [2019] NZHC 373 [7 March 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHE[2019] NZHC 373IN THE MATTER OF An intended application by NEIL FOSTEROn the papersJudgment: 7 March 2019JUDGMENT OF MALLON JIntroduction[1] On 22 January 2019 Mr Foster sought to file a proceeding in the High Court atWellington. The registry rejected the proceeding because it did not comply with r 5.11and Form G1 of the High Court Rules 2016. Specifically, the cover page of theproceeding did not specify the legislation under which his claim was made, did notprovide an address for himself and nor state his occupation, did not provide the fullname and address of the intended defendants, and did not include the registry place inte reo Māori.[2] Mr Foster was given the opportunity to fix these issues but decided not to doso. Instead, Mr Foster has applied for review of the decision to reject his proceeding.He says he does not recognise the Māori language in any form. He also says that hehas tried ten ways of finding the surnames of two of the intended defendants but hashad no success. If I find in favour on Mr Foster's application, the Registrar has askedme to consider the proceeding under r 5.35A of the High Court Rules.The proceeding[3] Mr Foster's proposed statement of claim is against the New Zealand RacingBoard (as first respondent), "Kit, refused to give surname" (as second respondent) and"Charlie, refused to give surname" (as third respondent). The address stated for allthree proposed defendants is "c/o TAB, Trax Bar, Wellington". The "waistband" onthe cover sheet states that it is a statement of claim under s 9 of the DeclaratoryJudgments Act 1908.[4] Mr Foster alleges the following:1) On the 31st of August 2018 I turned up at the TAB at the WellingtonRailway Station where I have been going to every Saturday forapproximately the last 5 years, I bought a beer and went to sit downat a table, I was approached by an employee by the name of Olly.2) I was told that I was no longer welcome and that I would not be servedby the staff anymore, there was no reason given for this.3) I then went to the TAB in Courtenay Place and put my bets on I sawthe defendant Kit serving at one of the TAB machines and Iapproached him and I said I know you're behind the issues I amhaving at the Trax TAB, he denied this and I replied that I will betaking legal action to remedy the problem which he has caused.4) I made numerous calls to the TAB head office and I had variousconversations with management at head office, the person I spoke tosaid that Kit and Charlie were behind the decision not to serve me.5) The reason I was given to not be serve[d] was that Kit said I wasintoxicated sometimes, the fact is that the TAB does not serve alcoholit is the Trax bar staff who do, I have never had any issues in the Traxbar or with their staff.6) The next part is to do with Charlie, he says that I was rude to a personthat comes into the TAB, the fact is there is a person who comes in tothe TAB and I told him on one occasion [he] was to stay away fromme, I am not the only person to be harassed by this person.7) I know that there two people Kit and Charlie have conspired undersection 115 of the Crimes Act 1961 to make false accusations[5] His intended proceeding seeks that he be:(a) "allowed to be able to go into the TAB at the Trax Bar";(b) "treated as any other person does as per the Human Rights Act 1993and the New Zealand Bill of Rights Act 1990"; and(c) compensated for distress, grief, harassment, embarrassment and breachof his human rights, bill of rights and civil liberties.The relevant rules[6] Rule 5.11 of the High Court Rules, under which Mr Foster's statement of claimwas rejected, states as follows:5.11 Heading on statement of claim and counterclaim(1) The heading of a statement of claim, and of any counterclaim intendedto be served upon a person other than the plaintiff, must show—(a) the number of the proceeding:(b) the registry of the court in which it is filed, in both Englishand te reo Māori (see form G 1 in Schedule 1, which sets outthe name, in both languages, of each registry of the court):(c) if the statement of claim or counterclaim seeks relief inreliance on jurisdiction conferred by an enactment, the title ofthat enactment:(d) if the relief sought in the statement of claim or counterclaimrelates to the validity or interpretation of a will, the name ofthe testator:(e) if the relief sought in the statement of claim or counterclaimrelates to the validity or interpretation of an instrument otherthan a will, the name of the maker of, or the names of theparties to, the instrument and its date:(f) if the relief sought in the statement of claim or counterclaimrelates to the validity or interpretation of an enactment, thetitle and the relevant section or sections of the enactment:(g) the full name, and the place of residence and occupation, ofevery plaintiff and defendant, so far as they are known to theparty presenting the document for filing.(2) Form G 1 must be used for the purposes of subclause (1).[7] Rule 2.11 permits an affected party to an intended proceeding to apply to aJudge to review a Registrar's refusal to file a document tendered for filing. On suchan application the Judge may make any orders she thinks just.[8] Rule 5.2(1) provides that a document which does not comply with, amongstothers, r 5.11 may be received for filing only by leave of a Judge or the Registrar.[9] A High Court Judge also has inherent jurisdiction to control the court'sprocesses in the interests of justice by directing that a document should or should notbe accepted for filing.1[10] Rule 5.35A provides that a Registrar may refer proceedings to a Judge wherethe Registrar believes that it is plainly an abuse of process of the court. Rule 5.35Bprovides that a Judge, if satisfied that the proceeding is plainly an abuse of process ofthe court, may, amongst other things, make an order striking out the proceeding beforeit is served, or may make orders or directions aimed at ensuring the proceeding isconducted according to the rules.[11] Rule 15.1 provides a Judge with further powers to dismiss or stay proceedings.My assessment[12] Mr Foster's intended proceeding does not comply with r 5.11(1)(b). Mr Fostersays this is because he does not recognise the language. While that is a matter for him,the High Court's rules are expected to be complied with if he wishes to pursue a claimin this Court. The requirement in r 5.11(1)(b) is there for good reason - it givesrecognition to te reo Māori as an official language of New Zealand and as a taonga ofiwi, Māori and New Zealand society generally.2 It should be complied with as a matterof course.[13] That said, rather than requiring Mr Foster to amend his intended proceeding tocomply with this requirement, there is another course which could be taken were thereno other problems with the intended proceeding. I could waive the requirement in this1 See, for example: Muir v Commissioner of Inland Revenue [2017] NZHC 2082 at [21].2 See: Te Ture mo Te Reo Māori 2016 or the Māori Language Act, ss 4 and 5.instance but on the basis that it would not prevent the Court or other parties fromincluding the registry place in te reo Māori in documents in the proceeding.3 This isthe course I would take but for the other problems with the proceeding.[14] I consider that Mr Foster's intended proceeding does not comply withr 5.11(1)(c). The Declaratory Judgments Act 1908 is included in the waistband ratherthan the heading, and the New Zealand Bill of Rights Act 1990 and the Human RightsAct 1993 are included in the relief but not in the heading. Having said that, this non-compliance is not material because it does not give rise to any prejudice to the courtor the intended defendants because the enactments relied on are clearly statedelsewhere in the proceeding.4[15] Mr Foster's intended proceeding does not comply with r 5.11(1)(g) in that itdoes not state in the heading his occupation and address. This non-compliance is alsonot a material one because it does not give rise to prejudice to the Court or the intendeddefendants. This is because the memorandum at the end of the statement of claimprovides details of Mr Foster's address for service.[16] Mr Foster's intended proceeding does not comply with r 5.11(1)(g) in relationthe address of the New Zealand Racing Board. Its head office is in Petone. The defectis not particularly material because the correct address is readily available and readilyremedied. Further, it appears the claim relates to the TAB within the Trax Bar ratherthan the Trax Bar as a whole. If that is so, the New Zealand Racing Board is potentiallythe appropriate defendant for a claim that his exclusion from that TAB outlet isunreasonable under the New Zealand Bill of Rights or the Human Rights Act. If,however, the claim is against the actions of Trax Bar, then the New Zealand RacingBoard is not the appropriate defendant.[17] Mr Foster's intended proceeding arguably complies with r 5.11(1)(g) inrelation to Kit and Charlie because he says he has endeavoured to find out the last3 So that r 5.12 (which states that the heading of a judgment or order must be the same as the headingon the statement of claim or other document by which the proceeding was commenced) would notapply.4 See, for example, Cooke v Department of Health HC Auckland CIV 2007-404-5047, 15 October2007, Judgment of Asher J at [30(c)].name of Kit and Charlie but has been unable to do so. Mr Foster has not set out thedetails of his endeavours although I infer from his intended statement of claim and hisreview application that this likely involved asking Kit and Charlie in person for theirsurnames and/or asking the TAB head office. The more important issue concerningKit and Charlie is that the allegation against them is one of conspiracy under s 115 ofthe Crimes Act.5 An individual cannot bring a civil proceeding in the High Court foralleged criminal offending. If the proceeding is accepted for filing, it would be struckout under r 5.35B and/or r 15.1 because of this.[18] In summary, I consider Mr Foster's intended proceeding was correctly rejectedby the registry at the time it was presented because of the non-compliance withr 5.11(1)(b), (c) and (g). I would be prepared to grant leave for the pleading to beaccepted for filing but for the more material defect. That material defect is that theclaim against Kit and Charlie for an alleged criminal conspiracy cannot be made in acivil proceeding in the High Court. It would be struck out if filed with this claim.[19] Mr Foster may reflect on these matters and consider whether he wishes toamend his intended pleading so that it does not include a claim that must be struck outunder r 5.35B or r 15.1. If he does wish to do so, he should take the opportunity toamend the address stated for the New Zealand Racing Board if it is the party withresponsibility for the actions he complains of. In the meantime, I consider it is notappropriate to grant leave for the proceeding to be accepted for filing.[20] A less difficult course of action might be for Mr Foster to access a TAB otherthan the one at the Trax Bar. That is because it appears that he has not been excludedfrom all TABs, as his intended pleading records that he was able to place a bet at aTAB on Courtenay Place. At some point in the future, depending on what has givenrise to Mr Foster being told that he was not welcome and would not be served at theTrax Bar TAB, Mr Foster might be informed by Trax Bar or the New Zealand RacingBoard, whichever is appropriate, of the standards of behaviour he must adhere to andfor him to be given the opportunity to show that his behaviour will be acceptable sothat he might return to that establishment at some point.5 Mr Foster also alleges, in his review application, that they have conspired to defeat justice unders 116 of the Crimes Act.Result[21] The application for review is declined. The registry is not to accept for filingthe intended proceeding in its current form. However it is open to Mr Foster to amendhis intended proceeding so that it can be accepted for filing and so that it does notinclude the claim against Kit and Charlie that must be struck out.Mallon J