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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
CIV-2005-412-294
BETWEEN G.M. TODD, K.J. PHILLIPS, J.W.
TROON, A.B.
JACK, K.E. TOHILL, J.E.
MACDONALD
Plaintiffs
And Counter Claim Defendants
AND GAVIN JOHN HILLARY
Defendant And Counterclaim Plaintiff
AND ALAN GOODWIN, ALAN DUNCAN,
LAWRENCE PONNIAH, WARREN
WOOD, SHONA DELUEN, CORBAN
REVELL
First Third Parties
AND
ATTORNEY-GENERAL (SUED ON
BEHALF OF THE MINISTRY OF
JUSTICE)
Second Third Party
Hearing: 9 November
2005
Appearances: Ms Warburton for Second Third Party/Applicant
Mr Hillary in Person Respondent/Defendant
Judgment:
21 November 2005 at 11AM
JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN
Upon Application for Strike
Out
Background
[1] This proceeding began life in the Alexandra District Court when the plaintiffs
claimed against the defendant
for recovery of legal fees totalling $18,516.10. The
G.M. TODD, K.J. PHILLIPS, J.W. TROON, A.B. JACK, K.E. TOHILL, J.E.
MACDONALD V GAVIN JOHN
HILLARY HC CHCH CIV-2005-412-294 21 November 2005
defendant counter claimed alleging negligence and claimed
an amount in excess of
$4 million. The proceedings were transferred to the High Court.
[2] Throughout Mr Hillary has represented
himself and has, apparently, prepared
the various papers filed in his name. On 9 August 2005 he filed an amended
statement of
counter claim in which he named the law firm of Corban Revell as
second counter claim defendant and the Attorney-General for the
Alexandra District
Court as the third counter claim defendant. Earlier on 22 July 2005 he obtained
leave to issue third party
notices against Corban Revell and the Alexandra District
Court. The Attorney General has filed the strike out application which is
the subject
of this hearing.
[3] I need now to recount the history of the matters that have brought the
proceedings to this
stage. The history is adequately covered in the decisions of
Judge Inglis Q.C. of 25 July 2003 in FP002 130 99 and in the judgment
of Fogarty J
dated 13 December 2004, CIV2004-412-366. For present purposes I propose
providing a brief outline of the facts
from which Mr Hillary's allegations of
negligence arise.
[4] The litigation arises from a matrimonial property proceeding between
Mr
Hillary and his former spouse, Ms Itagaki. They had owned two properties; the
matrimonial home (Brisbane Street) and a development
property (Park Street).
[5] On 19 June 2001 Judge Blaikie issued a decision concerning the division of
matrimonial property
between Mr Hillary and Ms Itagaki. The Judge held the Park
Street property was matrimonial property. The Judge sought a memorandum
from
counsel on costs and concluded:
"...Counsel for the wife is requested to lodge a draft order reflecting the
matters contained and determined in this judgment. She may wish to consult
with the counsel who has filed submissions on behalf
of the husband before
filing a draft order..."
[6] On 5 July 2001 the first third party wrote to the Alexandra District
Court
enclosing a memorandum of costs for $9,653.80 and a draft Matrimonial Property
Order fixing Ms Itagaki's half share at $253,488.03.
Although the Judge made no
reference in his judgment concerning the sale of matrimonial property, or the
payment of debts from the proceedings therefrom, the draft order
submitted by
Corban Revell contained provisions under the heading of "Implementation". These
provisions provided:
(i) The defendant should pay the settlement sum to Ms Itagaki by
1 September 2001.
(ii) Orders for the sale of the two properties (Brisbane Street and
Park Street) would lie in Court, to
be released upon
application by Ms Itagaki if the defendant failed to pay by the
due
date.
(iii)Once the orders were released Mr Hillary would have 14 days
to vacate the properties
in order to allow full access to the
properties.
[7] On 12 July 2001 the Registrar referred the Memorandum
as to Costs and the
draft order to Judge Blaikie for further direction. Judge Blaikie recorded:
"Solicitor's costs fixed
at the sum of $5000. Agency costs and disbursement
costs ordered as sought."
[8] On 30 August 2001 the Registrar sealed
the order with amendments having
been made to the dates by which Mr Hillary was to pay the settlement sum.
[9] On 11 September
2001 Corban Revell wrote to the Registrar enclosing a draft
order for sale of the two properties. The order for sale was sealed by
the Registrar
on 19 October 2001, and thereafter those orders lay in Court.
[10] On 21 October 2001 Corban Revell notified the
Registrar that contrary to the
Matrimonial Property order Mr Hillary had failed to pay the settlement of monies
and accordingly they
requested the order for sale to be released. On 26 October
2001 the order for sale was served on Mr Hillary.
[11] On 3 December
2001 Corban Revell filed an ex parte application for a
warrant to enforce the sale order, together with an affidavit in support of
the
application. The following day Corban Revell again wrote to the Registrar, this
time requesting him to act in place of Mr
Hillary and countersign the sale and
purchase agreement as Mr Hillary had refused to sign the contract.
[12] On that same day
the Registrar forwarded the ex parte application for a
warrant and the request to sign the sale and purchase agreement to Judge Blaikie.
In
doing so he queried whether he had the authority to sign the sale and purchase
agreement. Judge Blaikie directed:
"1.
Ex parte application granted.
2. I am prepared to treat the letter as an application. Order made giving
Registrar power to execute agreement and transfer."
[13] On 10 December 2001 the Registrar faxed the warrant to
Corban Revell. He
also signed the sale and purchase agreement.
[14] On 14 December 2001 the plaintiffs filed a memorandum asking
the Court
the basis upon which it agreed to the execution of the sale and purchase agreement.
They noted that the purchase price
was significantly below the true market value of
the property.
[15] On 19 December 2001 Corban Revell requested the Registrar
to sign a
variation of the sale and purchase agreement. The Registrar signed the variation
that same day.
[16] On 20 December
2001 the Registrar wrote to the Judge, noting that, as
authorised, he had executed the agreement and transfer documents. The
Registrar
also forwarded to the Judge the memorandum of 14 December 2001 from the
plaintiffs for the Judge's direction. That same
day the plaintiffs faxed the Registrar
seeking urgent consideration of the memorandum as the settlement of the Park Street
property
had been brought forward to 21 December 2001. In addition, the Bank of
New Zealand wrote to the Registrar seeking clarification
in respect of the sale of the
Park Street property. The Registrar responded confirming that the sale was directed
pursuant to the
Court Order and that the Judge gave the Registrar authority to sign
the agreement and transfer documents.
[17] On 21 December 2001 the Registrar forwarded to the Judge Corban Revell's
response to the plaintiffs' memorandum. The Judge noted:
"Please advise counsel that the original directions and orders
remain."
[18] The Registrar also advised the Bank of New Zealand that Judge Blaikie had
confirmed the previous direction that
the sale could proceed.
[19] On 27 March 2002 Corban Revell informed the Registrar that the Land
Information Registry required
a detailed description of the Queenstown properties on
the Matrimonial Property Order. The Land Information Registry also required
the
order to show the authority of the Registrar to execute the transfer from Mr Hillary.
An amended order was provided for sealing,
which contained more detailed property
descriptions, and as well a new paragraph that provided that where the defendant
failed to
comply with the orders, the Registrar had the authority to execute the
agreement for sale and purchase on the defendant's behalf.
The Registrar sealed the
order on 4 April 2002.
[20] On 23 August 2002 counsel for Mr Hillary queried the directions under
"implementation"
of the Matrimonial Property Order sealed on 30 August 2001.
The Registrar responded that the order, in draft, had been presented
to the Judge, and
the only change to it as a result of the Judge's direction was to insert the costs as
ordered.
[21] On 25 July
2003 Judge Inglis Q.C., directed that the sealed order dated 30
August 2001 should be set aside, as well as all the subsequent orders
relating to the
enforcement procedures. A replacement order was made by Judge O'Dwyer in
December of that year.
Mr Hillary's
Claims
[22] He appears to allege the Registrar was negligent in that he:
(i) Sealed the Matrimonial
Property Order which did not reflect
the Judge's decision.
(ii) Sealed an order for
sale without authorisation, and failed to
serve the order on the defendant, thereby depriving the
defendant of an ability to appeal or to review the order.
(iii)Signed a transfer of property
without authority.
(iv) Contacted the Bank of New Zealand to advise of the sale and
damaged the defendant's tools of trade.
(v) Amended the order for sale.
Strike out Application
[23]
For the Attorney-General it is submitted that the claim should be struck out as
it discloses no reasonable cause of action.
The Attorney-General submits it is
immune to the claim pursuant to s.6(5) of the Crown Proceedings Act 1950, which
states:
"No proceeding shall lie against the Crown by virtue of this section in respect
of anything done or omitted
to be done by any person while discharging or
purporting to discharge any responsibilities of a judicial nature vested
in him,
or any responsibilities which he has in connection with the execution of the
judicial process."
[24]
The relevant principles are well understood and in this instance include:
(i) The facts pleaded are assumed
to be true. However if the
pleaded allegations are blatantly absurd, the Court is not
required to assume they are true.
(ii) The causes of action must be so clearly untenable that they
cannot possibly succeed.
(iii)The strike out jurisdiction is one to be exercised sparingly,
and
only in a clear case where the Court is satisfied that it has the
requisite
material.
(iv) The fact that applications to strike out raise difficult questions
of law and require extensive argument does not exclude the
jurisdiction.
Statutory Scheme
[25] Section 12 of the District Courts Act 1947 provides
for the appointment of
Registrars for each District Court who are responsible for keeping, or causing to be
kept, such records of
and in relation to proceedings.
[26] Any jurisdiction and powers conferred on the Courts by statute, may, to the
extent authorised
by statute or by the District Court's rules, be exercised by the
Registrar of the Court (s.40).
[27] Prior to 2002 all proceedings
in the Family Court were dealt with under the
District Court's rules. Rule 12 of those rules allowed the Registrar to correct
any
mistake or error arising from an accidental slip or omission in a judgment order. In
addition, if any judgment or order drawn
up did not express what was actually
decided and intended, the judgment or order could be corrected by the Court. Any
correction
could be made by the Registrar on his own motion or by interlocutory
application.
[28] Under r.531(1) of the rules it was the
Registrar's responsibility to approve
and seal judgments. Once that was done, the party who had the judgment sealed
was required
to serve a copy on every other party.
[29] In relation to the division of matrimonial property, the Family Court could,
on an
application, make orders determining the respective shares of each spouse in
matrimonial property. The Court could also make, at
any time, orders relating to the
status, ownership, vesting or possession of any specific property (s.25 Matrimonial
Property Act
1976). In addition, the Court had wide powers to make orders and
give directions to give effect to any order made under s.25.
In particular, the Court
could order the sale of matrimonial property and could appoint a person to sell that
property and to execute
any instrument in connection therewith.
Immunity from Suit
[30] Section 6(5) engages the principles of judicial independence
and judicial
immunity. The judicial immunity exists not for the private advantage of a judicial
officer, but for the protection of
judicial independence in the public interest.
(Fingleton v R [2005] HCA 34; (2005) 216 ALR 474,486 per Glesson CJ).
[31] However, and as noted by the Court of Appeal in Simpson v Attorney-
General {Baigent's Case} [1994] 3 NZLR 667, 674 per Cooke P, 696 per Hardie
Boys J, s.6(5) does not extend to actions otherwise covered in the section which were
in bad faith.
[32] The Attorney-General cannot be held vicariously liable for actions conducted
within the judicial branch. He cannot be
liable for acts he cannot control. This
position has been confirmed in relation to exercise of functions by Registrars and
Sheriff
Clerks in Wood v Lord Advocate(1996) SCLR 278, and Quinland v Governor
of Swaleside Prison [2003] QB 306 at pp. 316 and 319.
[33]
Accordingly, and relevant to this case, if the Registrar was discharging or
purporting to discharge responsibilities of a judicial
nature, or which he had in
connection with the execution of judicial process, then the Crown cannot be held
vicariously liable for
his actions and the claim must be struck out.
Considerations
[34] In my judgment in sealing the Matrimonial Property Order
and the order for
sale the Registrar was discharging responsibilities of a judicial nature. The
Registrar is required to
approve every judgment before sealing it, and no steps may
be taken on a judgment before it is sealed. Further the Registrar's
discretionary
decision whether to release the order for sale of application by Corban Revell was
clearly a judicial act. In this
case the sealing of both orders were an extension of
Judge Blaikie's decision of 19 June 2001 concerning the division of the matrimonial
property. Accordingly, they were necessarily incidental to the delivery of a judicial
decision. As the Matrimonial Property Order
purported to record Judge Blaikie's
decision of 19 June 2001, the sealing of the order for sale was also part of the 19
June 2001
judgment.
[35] Under r.533(2) no steps can be taken on any judgment until after it is sealed.
Therefore, the sealing of the orders
by the Registrar was the final step in the process
of "sitting in judgment". As at the point of sealing the judgment it is finalised
and
cannot be recalled (r.530(6)). The sealing becomes the end point of finalising the
decision.
[36] Also the Registrar has
the discretion to amend an order he has made to
correct an error or an omission (District Court Rules 12). In this case the Registrar
sealed an order to include omissions from the earlier sealed order which provided for
a full description of the properties to be
sold and for the Registrar's authorisation to
execute the transfer on behalf of Mr Hillary. The power of correction of an error or
an omission is a judicial function involving a discretionary decision on the content of
the Court order, and accordingly forms part
of the judicial process.
[37] The sealing/issuing and/or amending of orders are functions which the Crown
cannot interfere with
or control. Therefore they are functions that may be
characterised as integral to the administration of justice. It follows
that the Crown
cannot be held vicariously responsible for those acts.
[38] These findings would be sufficient in themselves to
dispose of the strike out
application in favour of the applicant. However, that does not necessarily exonerate
the Registrar from
personal suit should Mr Hillary, or indeed any other party,
contemplate joining the Registrar personally to this proceeding. In my
view, and on
the particular facts of this case, the Registrar is entitled to immunity from suit
provided by s.6(5) because what occurred
in this case involved "responsibilities
which he has in connection with the execution of judicial process". The reason is
that
following the decision of Judge Blaikie on 19 June 2001 what was done, or
omitted to be done, by the Registrar were things done,
or omitted, when discharging
responsibilities that the Registrar had in connection with the execution or
implementation of the judicial
process. His actions flowed from the decision of
Judge Blaikie, and as well from subsequent directions of the Judge. As
noted by
Hardie Boys J in Baigent's Case at p.696:
"I do not read s 6(5) as referring solely to the exercise of judicial power. The
expression "responsibilities
of a judicial nature" is of wider scope, apt to
include all those functions which are to be performed judicially. These
would include the issue of a search warrant. The expression "judicial
process" must be understood in the light of the
earlier expression. It
therefore means a process resulting from the exercise of responsibilities of a
judicial nature.
"Process" is not in law a precise term. It may refer broadly
to the procedure of the Court, as in abuse of process, or to
a particular step in
Court proceedings. The law dictionaries set out what has and what has not
been held to be a process;
but none of the cases are really in point, for the
meaning must always depend on the context. Here the general context is
s
6(5) and the particular context is the conjunction of the noun with the
adjective "judicial". In Re Chase [1989] 1 NZLR 325 the Crown contended
that a search warrant was a judicial process, but the Court did not find it
necessary to express
a conclusion, although Cooke P and Henry J may be
thought to have favoured that view. The point now requiring decision, I
have
concluded that in the context of s 6(5) "process" means an order or authority
emanating from a judicial officer
exercising judicial responsibilities. That
would include a search warrant."
[39] A person who draws up a Court order made
by a Judge is exercising
responsibilities in connection with the execution of judicial process. The focus
should be on the
actions of the Registrar to determine whether they were concerned
with the implementation of orders or authority emanating from a
judicial officer
exercising judicial responsibility. In this case the insertion by Corban Revell of
additional terms in the Matrimonial
Property Order without Mr Hillary's consent
was not brought by Corban Revell to the Court's attention. Likewise, when the
Registrar later sealed and subsequently released the order for sale he did so on the
basis that its existence was provided for
in the Matrimonial Property order.
[40] When Corban Revell applied ex parte for a warrant and requested the
Registrar to countersign
the agreement for sale and purchase he forwarded that
request to the Judge for directions. The Registrar's subsequent actions were
strictly
in accordance with the authority provided by the Judge's response. As Judge Inglis
Q.C., found the Registrar only ever
had knowledge of one offer on the property.
[41] Throughout, the Registrar had not been alerted to any issue concerning the
Matrimonial Property Order. Mr Hillary, when invited by me to address by
reference to the evidence whether the Registrar may
have acted in bad faith could
only refer to the fact that the Registrar was present during the Alexandra Court
hearing and must,
therefore, have heard evidence given by Mr Hillary from which
he, the Registrar, should have known that the terms of the Matrimonial
Property
Order submitted by Corban Revell for sealing were false. I cannot agree with the
submission. It assumes the Court Registrar
should participate in a Court hearing to
a greater extent than could ever be contemplated. The Registrar has no warrant to
listen
to the evidence, nor to make judgment upon it. Rather, his warrant lies, in this
case, in the administration of the judicial process
post hearing, and in accordance
with the Judge's directions. He may have assumed a responsibility to exercise
judgment in the
event he had been alerted to errors in that process, but there was no
evidence of that in this case. Indeed, when the plaintiff
later queried the basis on
which the Court agreed to the execution of the sale and purchase agreement the
Judge directed that "The
original directions and orders remain".
[42] In my judgment the scope of judicial immunity provided by s.6(5) extends to
the
Registrar whose actions were steps taken in the course of judicial proceedings.
As McGechan J noted in Crispin v Registrar of the
District Court [1986] 2 NZLR
246 at 252, the underlying policy of judicial immunity is that those required to
exercise judicial functions should have freedom to speak
and act without fear of
reprisal:
"That would be subverted if while the author is free from attack his
subordinates
in the form of officers of the Court required to despatch his
decisions are not protected. Obviously a Judge must not be
in a position
where he knows that what he does or says may expose the staff of his Court
to a personal liability...The
position of Registrar who records a judgment will
indeed involve `parlous duty' if not protected by immunity, and the judiciary
will indeed have a very weak flank if despite individual immunity for
Judges, Court staff are open to attack. I have
no doubt that even if a
Registrar recording entry of judgment by default is at that stage merely acting
administratively,
he is protected by the immunity. The administration of
justice requires this."
[43] I have to this point covered most
of the allegations provided in Mr Hillary's
pleading. Two remain:
(i) He alleges the Registrar failed to serve
the order for sale upon
him. The evidence is that the defendant did this. In any
event under r.533(3) it was the responsibility of Corban Revell
to serve the Matrimonial Property Order
on the defendant.
(ii) The Registrar did not initiate contact with the Bank of New
Zealand
to advise of the sale and thereby damaged the
defendant's "tools of trade". The bank's inquiry related
to
confirmation that the Court had authorised the sale of the Park
Street property.
The Registrar merely responded to this
inquiry.
Judgment
[44] The pleaded cause of action against
the Attorney-General fails and is struck
out.
Costs
[45] Costs from the application are reserved. If the applicant is to
pursue costs
then a memorandum is to be filed and served upon Mr Hillary who thereafter will
have two weeks within which to respond.
I will then make a decision on the basis
of memoranda filed.
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