TAIMING ZHANG v DISTRICT COURT AT WELLINGTON [2021] NZSC 69

TAIMING ZHANG v DISTRICT COURT AT WELLINGTON [2021] NZSC 69 [23 June 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC UR 15/2021[2021] NZSC 69BETWEEN TAIMING ZHANGApplicantAND DISTRICT COURT AT WELLINGTONRespondentCounsel: Applicant in personJudgment: 23 June 2021JUDGMENT OF ELLEN FRANCE JThe application for review of the decision of the Deputy Registrardeclining to waive the filing fee is dismissed.____________________________________________________________________REASONSIntroduction[1] The applicant applies for leave to appeal from a decision of the High Courtstriking out two applications for judicial review as an abuse of process under r 5.35Bof the High Court Rules 2016.1[2] On 4 June 2021, the Deputy Registrar of this Court declined the applicant'sapplication for a waiver of the leave to appeal filing fee of $1,100. This was becausehe considered the proposed appeal did not concern a matter of genuine public interest.Rather, the proposed appeal raised issues specific to the applicant's case.1 Zhang v District Court at Wellington [2021] NZHC 703 (Isac J) [HC judgment].[3] Following receipt of the Deputy Registrar's decision, the applicant applied forreview of this decision under s 160 of the Senior Courts Act 2016. That applicationhas been referred to me for decision.Background[4] The present application arises out of the applicant's attempts to file chargingdocuments in the District Court to enable the applicant to pursue proposed privateprosecutions against Susan Wojcicki in her capacity as the Chief Executive Officer ofYouTube2 and Andrew Kibblewhite in his capacity as Secretary for Justice.3 TheDistrict Court Judge, in rejecting both charging documents for filing, concluded thatthe evidence provided was not sufficient to justify a trial.4 The Judge did so withreference to s 26 of the Criminal Procedure Act 2011 and the principles set out in thisCourt's decision in S (SC 58/2019) v Vector Ltd.5[5] The applicant then presented documents for filing in the High Court seekingjudicial review of the District Court decisions. The Registrar of the High Courtdeclined to accept the documents for filing. The applicant applied to review thatdecision. The proceedings were referred to Isac J, who struck out both claims on thebasis they comprised an abuse of process.6[6] In terms of the claim against Mr Kibblewhite, the Judge said the claim was "sowholly deficient" that it could not be remedied by amendment.7 Further, the Judgesaid there was no cause of action and that the "pleading fails to clearly identify adecision or the exercise of a public power which is the subject of review" or to set out"with any clarity the ground or grounds of review".8 Finally, the Judge observed that,2 The alleged offending in relation to Ms Wojcicki was murder and manslaughter and was said tohave arisen out of actions in removing a video about COVID-19 from YouTube.3 The alleged offence in relation to Mr Kibblewhite was, broadly, conspiracy to defeat the course ofjustice and related to the rejection by a court registry officer of an electronic evidence bundle. Theapplicant says rejection of evidence stored in electronic form is inconsistent with the Evidence Act2006.4 Zhang v Kibblewhite DC Wellington, 18 January 2021 (Judge Hastings); and Zhang v WojcickiDC Wellington, 18 January 2021 (Judge Hastings).5 S (SC 58/2019) v Vector Ltd [2020] NZSC 97.6 HC judgment, above n 1, at [19] and [21].7 At [17].8 At [17]."while it seeks a form of relief, it is not possible to ascertain the precise nature of therelief sought or against whom it is intended to bite".9[7] In relation to the claim directed to Ms Wojcicki, the Judge considered thedifficulties were even more apparent. There was no cause of action or prayer for relief,and the claim was "largely incomprehensible".10The fee waiver application[8] The fee waiver was originally sought on the basis that the proposed appealconcerns a matter of "genuine public interest" in terms of reg 5(2)(b)(i) of the SupremeCourt Fees Regulations 2003. In his application for review, the applicant focusses onregs 5(2)(a) and 5(3)(b)(iii), that is, that the applicant is unable to pay the fee becausehe would suffer undue financial hardship if he paid the fee. No information is providedabout the financial position of the applicant to support that claim.11 Rather, theapplicant says payment of the fee would be undue because the decisions of the Courtsbelow are themselves an abuse of process. Broadly speaking, the allegation is that theway in which the District Court Judge described the basis of the proposed prosecutionsis inaccurate and, the applicant says, deliberately so. In terms of the High Court, theapplicant says the Judge misdescribed the contents of the statements of claim. Hemaintains that the claims did contain causes of action and the decision to strike outwas contrary to the High Court Rules. A number of points are made in developingthese matters but, essentially, the submission is that the proposed appeal will preventwhat would otherwise be a travesty of justice.12[9] The ultimate issue before this Court on the proposed appeal would be whetherthe High Court erred in striking out the claims. Having reviewed the extensivematerial filed by the applicant, I agree with the Deputy Registrar's assessment. As9 At [17].10 At [20].11 In the original fee waiver application, the applicant said that while he would continue with theproceeding even if the waiver was declined, he would suffer "some financial hardship from payingthe fees" because he is "not rich at all".12 In support of the submission that this involves a matter of genuine public interest, the applicant,in the original fee waiver application, said his case could clarify a number of questions of law,including what constitutes an abuse of process, the rules relating to electronic case documents andthe scope of the alleged offences.noted, there is no evidence of the applicant's financial circumstances to support theview that the applicant would suffer undue financial hardship if he paid the fee.Further, resolution of the proposed appeal would turn on the particular facts. Finally,if the underlying proceedings had any public interest value, that has well beendiminished by the deficiencies that led the High Court to strike out the claims in thatCourt.Result[10] The application for review is dismissed. If the applicant wishes to have theapplication for leave to appeal accepted for filing, the applicant must first pay the filingfee.