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O'Neill v Legal Complaints Review Officer [2022] NZHC 2778 (26 October 2022)

Last Updated: 20 January 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 26 October 2022 at 4.15pm.

Pursuant to Rule 11.5 of the High Court Rules.

.............................. Registrar/Deputy Registrar

Copy to:

The applicant

O’NEILL v LEGAL COMPLAINTS REVIEW OFFICER [2022] NZHC 2778 [26 October 2022]

• [1] Under r 5.35A(3)(a) of the High Court Rules 2016, the Registrar referred this proceeding to me as judicial review list judge, for consideration if “plainly an abuse of the process of the court”.¹ An ‘abuse of the process of the court’ is “improper use of [the court’s] machinery”;² use of that process “for a purpose or in a way significantly different from its ordinary and proper use”.³

• [2] Mr O’Neill’s 30 September 2022 application for judicial review relates to the respondent’s 27 September 2022 decision — on Mr O’Neill’s application for review of a Standards Committee’s 19 May 2022 determination, to not take further action on Mr O’Neill’s 26 November 2021 complaint about the conduct of a lawyer — to confirm the Committee’s decision.⁴

• [3] Mr O’Neill’s complaint relates to a lawyer he alleges incompetently represented a client in a 2007 criminal trial at which the client was convicted and sentenced to imprisonment. Mr O’Neill’s conclusory complaint was the trial judge and police were corrupt, and the lawyer, Solicitor-General and senior counsel all had perverted the course of justice.

• [4] Misapprehending the client was Mr O’Neill, the Standards Committee concluded the complaint was unsupported by evidence and therefore determined not to take further action on the complaint.

• [5] On review, while accepting the Committee erred in its apprehension, the respondent found “[t]he singular feature of Mr O’Neill’s complaint is that not a shred of evidence is advanced by him to support [his] complaint” and thus was “characterised by a complete failure to identify any conduct by [the lawyer] which could responsibly or reasonably form the basis of a professional conduct complaint”.⁵ The respondent therefore confirmed the Committee’s decision.⁶

¹ High Court Rules 2016, r 5.35B(1).

2. Simon Goulding, DB Casson and William Blake Odgers Odgers on Civil Court Actions (24th ed, Sweet & Maxwell, London 1996) at [10.15] as cited in Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [87].

³ Attorney-General v Barker [2000] 1 FLR 759 (QBD) at 764.

⁴ O’Neill v Edgar [2022] NZLCRO 103.

⁵ At [50] and [52].

⁶ Lawyers and Conveyancers Act 2006, s 211(1)(a).

• [6] On judicial review, this Court assesses if susceptible powers are exercised “in accordance with law, fairly and reasonably”.⁷ ‘Fair’ and ‘reasonable’ are terms of art in judicial review, respectively broadly meaning procedurally regular and substantively rational. While generally contending the respondent’s decision is “invalid and legally incorrect in its existence and process of achievement”, Mr O’Neill’s specific concerns are some unspecified conflict of interest on the part of the respondent, and its failure to afford Mr O’Neill “a physical hearing” (which the respondent expressly declined to do given Mr O’Neill’s ‘meritless’ application in which “[n]othing would be served by providing him with opportunity to speak to it”).⁸

• [7] The Court of Appeal recently explained:⁹

The Rules expressly confer jurisdiction to strike out a proceeding, on a judge’s own motion, for abuse of process. The jurisdiction extends to judicial review proceedings. It is not necessary to give the plaintiff notice, but if not given notice the plaintiff must be advised of the right to appeal, ....

It is settled law that the jurisdiction to strike out a proceeding is to be exercised sparingly. A court does not lightly find that a proceeding is an abuse of its processes. But the court may find it necessary to act to protect defendants from oppressive or frivolous proceedings, or to protect public confidence in the administration of justice by refusing to tolerate serious abuses. It may be that a proceeding contains what could be a viable claim that the plaintiff might be able and willing to salvage. In such cases the court may stay its hand and leave it to the defendant to respond to the claim. But the rule permits strikeout at the very outset and it should not be read down. Whether it is appropriate to intervene at that juncture is a question of judgment which must depend on the circumstances and the nature of the abuse of process.

• [8] At its core, the proceeding seeks to re-establish a forum for Mr O’Neill’s claims of corruption and perversion of justice. As with other of his proceedings,¹⁰ those claims here also are extravagant and lacking any alleged factual foundation. On the latter basis, the Standards Committee declined to take them any further, as the respondent confirmed.

• [9] The proposed proceeding thus is:¹¹

7. New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.

⁸ O’Neill v Edgar, above n 4, at [27].

⁹ O’Neill v Commissioner of Police [2022] NZCA 501 at [22]–[23], citations omitted.

¹⁰ At [26]; and O’Neill v New Zealand Law Society [2022] NZCA 500.

11. Dunstan v Auckland District Court [2022] NZCA 477 at [38], citing Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 482.

... conduct on the part of a litigant in relation to the case which unchecked would strike at the public confidence in the Court’s processes and so diminish the Court’s ability to fulfil its function as a Court of law.

It accordingly is abusive, in requiring the respondent’s response for such collateral purpose, both of the respondent in particular and public confidence in the administration of justice in general. As improper use of the court’s machinery, for a significantly different purpose than intended, I am satisfied the proceeding is plainly an abuse of the process of the court.

• [10] Under rr 5.35B(1(a) and 15.1, I order the proceeding struck out. Because my order is made without giving Mr O’Neill an opportunity to be heard, he has the right to appeal against my decision.¹²

—Jagose J

¹² High Court Rules, r 5.35B(3).