Supreme Court Advocates Swift Justice

The Supreme Court issued a landmark dismissal last week in Prasad v Indiana Publications (NZ) Limited, dismissing three separate applications to appeal, including – without reasons – two unreported orders issued by Wild J of the Court of Appeal, both made without hearing, directing the Court of Appeal Registrar not accept applications to appeal from Mr Prasad.

The Supreme Court judgment was just over one page, only because it was double-spaced.

If nothing else, this Court is efficient, no doubt regretting wasting a paragraph by having to record their judgment covered “appeal against one decision of the High Court and two decisions of the Court of Appeal.”

RAJENDRA PRASADPrasad (pictured) is an Auckland author who has written books on Fijian history. It does not matter what his claim is about; the High Court and Court of Appeal have denied him appeals against the District Court strike out and costs awards against him, realising that merely considering these appeals was a waste of time.

The Supreme Court bench of Young, Arnold and McGrath wholeheartedly agreed.

The process of wholesale dismissals of claims began a few years ago with a proliferation of strike out applications by parties who did not think time and resources of the New Zealand courts should be wasted in considering claims which were doomed to fail. New Zealand judges, significantly less busy due to the drop in commercial litigation and Crown prosecutions, concurred.

Today, at least three cases per week, on average, are summarily struck out either as “an abuse of process” or because they “disclose no reasonably arguable cause of action”.   Because the process involves dismissing claims without the plaintiff being heard on the merits, the judge is supposed to accept the pleaded facts as true.  They rarely do, as very few claims are struck out because the cause of action is not recognised in law.  The judge decides the “totality” of the case does not warrant the court’s time.

Two years ago, judges began accompanying such rulings with orders that registrars not accept filing of any new applications involving the same parties without prior approval by a judge.

The High Court, Court of Appeal, and now the Supreme Court agree Prasad falls within this expanding (albeit legally unofficial and unsupported) category.

Ironically, the Supreme Court six years ago in Couch v Attorney General ruled five constraints to strike out must be applied before a judge grants it. Not apparently so with appeals against strike out orders allegedly breaching these constraints, which are dismissed in smoke filled back rooms and off the record.  The Supreme Court in Prasad has now sanctioned such a practice without debate or reasons.

At the Court of Appeal level, the Registrar has refused at least 20 applications from at least 10 parties so far this year. The reason comes down typically to the Registrar’s novel interpretation of the rules, giving her an inherent power to refuse lawful filings if she considers a less formal approach exists within her purview as an administrator.   In at least one action, CA855/2012 Rabson v Chapman, a Privacy Act request uncovered ex parte emails Registrar Clare O’Brien had with the respondent (a Wellington solicitor) where each sought the others help in preventing filings by the appellant.  But the Registrar, a former cop currently defending assault charges in the Wellington District Court, recognised she has every right the judges have to push the envelope.

The Supreme Court bench was so aghast at this they ruled in a generic recorded judgment [2014] NZSC 70;  “The Registrar of that Court (of Appeal) is entitled to require that any application for dispensation be made to her, in accordance with the Rules. This applies whether or not a single judge of the Court of Appeal has jurisdiction under s 61A(1) of the Judicature Act to dispense with security for costs.”

If any of this proves anything, it could be that cops make efficient judges in New Zealand.