IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE	
CIV-2017-442-000004
[2019] NZHC 3341	

IN THE MATTER	of the New Zealand Bill of Rights Act 1990	
BETWEEN	HONE MA HEKE (also known as LEWIS REGINALD STANTON
Plaintiff	
AND	NELSON CITY COUNCIL
First Defendant	
AND	THE ATTORNEY GENERAL
Second Defendant	
AND	NELSON BRANCH of the ROYAL NEW ZEALAND SOCIETY FOR THE
PREVENTION OF CRUELTY TO ANIMALS INC
Third Defendant	

Hearing:	12 December 2019 (List Court by AVL)	
Appearances:	Plaintiff appears in person
J C Ironside for First Defendant
J M Webber for Second Defendant M J Wallace for Third Defendant	
Judgment:	17 December 2019	

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 17 December 2019 at 10.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MA HEKE v RSPCA [2019] NZHC 3341 [17 December 2019]

Introduction

[1]	In a judgment of 20 February 2019, Associate Judge Bell ordered the plaintiff (Mr Ma Heke) to pay security for the costs of the third defendant (RSPCA) in the sum of $15,000 by 29 March 2019. Mr Ma Heke’s claim against the RSPCA was stayed until the security was paid, and, if the security remained unpaid by 30 September 2019 the RSPCA was given leave to apply to strike out the claim against it. There was no challenge to that decision and the security was not paid. The RSPCA now applies to strike out Mr Ma Heke’s claim. Mr Ma Heke is self-represented and opposes the application.

The proceeding

[2]	The history of this proceeding is set out in Associate Judge Bell’s judgment at paragraphs [4] – [13]. I do not propose to repeat that, but there are some relevant matters that provide necessary context.

[3]	Mr Ma Heke filed this proceeding in February 2017. Although there are eight causes of action in the amended statement of claim of 26 July 2018, only the eighth cause of action is against the RSPCA. It is a claim in conversion for the seizure of Mr Ma Heke’s horse. Mr Ma Heke’s claim against the RSPCA is distinct from the claims he is making against the other defendants and could more appropriately have been dealt with separately from them and in the District Court.

[4]	On 24 August 2018, the RSPCA applied to strike out Mr Ma Heke’s claim, but that application was unsuccessful. It was dealt with at [26] – [32] of Associate Judge Bell’s judgment.

[5]	The RSPCA also sought security for costs against Mr Ma Heke and was successful. In his judgment, at [34] – [37], Associate Judge Bell found:

(a)	there was reason to believe that Mr Ma Heke would be unable to pay the RSPCA’s costs if he was unsuccessful (Mr Ma Heke accepted that he cannot pay costs);

(b)	the RSPCA had shown a persuasive case that it had a good defence to Mr Ma Heke’s claim;

(c)	the RSPCA was a charitable organisation that was reliant on donations to carry out its activities and its inability to recover costs from Mr Ma Heke was likely to hit it harder than other litigants;

(d)	whilst the courts would normally be reluctant to bar a plaintiff with a worthy claim, Mr Ma Heke’s interests were outweighed by the interests of the RSPCA and it was appropriate that Mr Ma Heke pay security for costs even though that may act as a bar from him continuing against the RSPCA;

(e)	the amount of security should take into consideration that the relief    Mr Ma Heke was seeking was within the jurisdiction of the District Court and ought properly to be heard there, but the amount of security was not critical as whatever amount was set Mr Ma Heke was unlikely to pay it; and

(f)	it was appropriate to fix security payable by Mr Ma Heke at $15,000.

Submissions

[6]	Mr Wallace argued that Associate Judge Bell gave Mr Ma Heke six months to provide security for costs failing which it was contemplated the claim would be struck out. Whilst the court might consider making an unless order, giving Mr Ma Heke further time to provide security, that is not appropriate here as Mr Ma Heke has always said he cannot, and will not, pay costs. In those circumstances, the making of an unless order would serve no purpose. Mr Wallace also submitted that Mr Ma Heke is pursuing this claim for an improper purpose. Mr Ma Heke considers that the RSPCA is involved in a Government-wide action against him when there is no evidence for such a belief. Finally, Mr Wallace argued that the alternative to striking out the claim was to leave it permanently stayed, which was inappropriate.

[7]	The thrust of Mr Ma Heke’s submissions was that in the interests of justice I should dismiss the RSPCA’s application and allow his claim to proceed. He addressed

me on the merits of the claim. He considers this application is a tactical one to silence him and he wants the RSPCA to be held accountable for its actions which, he says, have significantly impacted upon his life. He argued that the RSPCA is aware he has no funds and cannot provide security for costs. He told me that he did not challenge Associate Judge Bell’s decision because he does not know the law or have a lawyer to assist him.

Discussion

[8]	There is no dispute that Mr Ma Heke is in breach of court’s order that he provide security for costs. The court has the power to strike out Mr Ma Heke’s claim under r 7.48(1) and (2)(a) of the High Court Rules 2016. Rule 7.48 provides that should a party fail to comply with an interlocutory order or case management direction, a Judge may make any order that he or she thinks fit, which includes striking out a claim.

[9]	In SM v LFDB the Court of Appeal stressed the objective in r 1.2 of the High Court Rules 2016 to “secure the just, speedy and inexpensive determination of any proceeding or interlocutory application” and the importance that parties obey orders of the Court.1 The Court said:

[28] Obedience is the foundation upon which the Rules operate. From time to time the Court encounters a party who chooses not to obey, seeking perhaps to avoid accountability to the other party or to secure an unfair settlement. In such a case the interests of justice require that the Court do whatever is necessary to enforce obedience to its orders.

[10]	However, in SM v LFDB, and in Parlane v Hayes, the Court noted that the making of an order, the practical effect of which is to bring an end to a party’s defence or claim, is a significant step which should be taken only where necessary to do justice between the parties.2 In Parlane the Court said:3
The question is what the interests of justice require. They include, as this Court held SM v LFDB, which dealt with “unless” orders, the interests of the injured party, notably in terms of delay and wasted cost, any injustice to the defaulting party, and the public interest in administering justice without

1	SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494.
2	Parlane v Hayes [2015] NZCA 341.
3	At [30] – [31].

unnecessary delay and expense. As the Court there explained, judges should recognise, as Duffy J did here, that case management matters to the immediate parties, other litigants and the public at large:

[27] Case management plainly matters to the immediate parties in any given case. It matters to litigants in other cases too, because it affects the time their cases will take to come to trial and influences their expectations of the Court; expectations matter because they influence the settlements in which the majority of civil proceedings end. And it matters to potential litigants — the public at large — because they should feel confident that the Court can try cases fairly, quickly and efficiently. From the perspective of a judge dealing with any given case, all these interests are relevant; all form part of the interests of justice.

That said, case management is a means to an end: the prompt and just disposition of cases, including a merits judgment for those that reach hearing. To compromise irretrievably a party’s right to a merits judgment for failure to meet some procedural obligation is a serious step that should be taken only when necessary to do justice to the other interests at stake.

[11]	There are several factors that have a bearing on whether the justice of this case requires me to strike out Mr Ma Heke’s claim or take some other course. First, when a plaintiff is unable to comply with an order that it provide security for costs the court’s options include extending time for compliance or making an unless order. Recognising this, Mr Wallace argued that Mr Ma Heke has already had time to provide security for costs and that an unless order should not be made as Mr Ma Heke does not extend even the prospect that security for costs will be provided at some time in the future. In those circumstances it can be said that in granting Mr Ma Heke more time or making an unless order the court is simply putting off to a later date the inevitable striking out of the claim and adding unnecessarily to the costs of the RSPCA.

[12]	Second, the matters Mr Heke raised before me as to the merits of the claim and the RSPCA’s application for security for costs had been carefully considered by Associate Judge Bell. Mr Heke has not raised anything new before me and, importantly, does not suggest that there has been any change in his circumstances that would justify reconsideration of Associate Judge Bell’s orders. His position is that I should take a different view of the case and not enforce the court’s order. That is not a course that is appropriately open to me. The decision has not been challenged and there have been no change of circumstances. I would be undermining both the decision and the authority of the court if I was, to refuse to enforce it.

[13]	Third, this proceeding was filed in early-2017 and has already been considerably delayed, including whilst Mr Ma Heke unsuccessfully sought legal aid. It is unfair that the proceeding remains hanging over the RSPCA, a charitable organisation, without any clear pathway towards a resolution. As noted in Mawhinney v The Commissioner of Inland Revenue, there is a strong public interest in ensuring the expeditious resolution of legal proceedings and litigation which lies dormant in our court system does so at a public cost.4 It is unfair, also, that the claim has been brought in this court and combined with unrelated claims against other parties when it could more appropriately have been pursued in the District Court at less cost to the RSPCA.

[14]	I must strike a balance between Mr Ma Heke’s desire to maintain his claim, the RSPCA’s right to enforce the order and the public interest in ensuring the court is obeyed and that justice is administered without unnecessary delays and costs. Standing back, for the reasons I have given there is much force in RSPCA’s position that the claim should now be struck out. However, I am minded that Mr Ma Heke is self-represented. His failure to comply with the court’s order cannot be considered contumacious when he has not had the means to pay security for costs. It also appears that he may not have had the benefit of legal advice following the issue of Associate Judge Bell’s judgment as to the effect of the order and his options in relation to it.

[15]	In the circumstances, I consider there may be some utility in giving Mr Ma Heke a limited amount of further time before striking out his claim and bringing to a close any prospect of it being heard. Whilst it will almost certainly be the case that Mr Ma Heke will not be able to provide security for the RSPCA’s costs he ought at least to be given some time to take advice as to any options that may be open to him to resolve this matter short of striking out. However, the claim needs to be advanced or concluded and cannot continue to hang in abeyance. It is appropriate, in those circumstances, that an unless order is made on the terms set out at the end of this judgment.

4	Mawhinney v The Commissioner of Inland Revenue [2017] NZHC 2195.

The RSPCA’s costs

[16]	As noted above, Associate Judge Bell awarded the RSPCA costs on its security for costs application. He also dealt with this in a Minute of 7 October 2019 where he held that the RSPCA’s costs, which totalled $5,055, should not contain a GST input and that counsel and the Registrar were to establish the correct amount of costs once the GST was taken out. Mr Wallace does not necessarily accept the Associate Judge’s approach to the treatment of GST, but the calculation has been done and the GST exclusive amount is $4,445. Mr Wallace seeks an order that the RSPCA’s costs be fixed in that sum. I so order.

Result

[17]	On the RSPCA’s application to strike out Mr Ma Heke’s claim against it I make the following orders:

(a)	Unless Mr Ma Heke has by 31 January 2020 provided security for the RSPCA’s costs in the amount and in the manner ordered by Associate Judge Bell in his judgment of 20 February 2019, his claim against the RSPCA is struck out with the costs of the proceeding to the RSPCA.

(b)	The RSPCA is entitled to costs on this application although there is little prospect that they will be paid. If costs are sought and quantum cannot be agreed, memoranda may be filed. Mr Ma Heke should file and serve his memorandum within 7 working days of his receipt of RSPCA’s memorandum.

[18]	In addition, the RSPCA’s costs on the application for security for costs are fixed at $4,445.

O G Paulsen Associate Judge

Solicitors:
Zindels, Nelson, for Plaintiff
Nelson City Council, Nelson, for First Defendant
O’Donoghue Webber (J M Webber), Nelson, for Second Defendant
Duncan Cotterill (Nigel McFadden), Nelson, for Third Defendant

Copy for:
Julian C Ironside, Barrister, Nelson M J Wallace, Barrister, Christchurch