Christensen v Attorney-General

[2020] NZHC 2047

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-707

[2020] NZHC 2047

IN THE MATTER

of a civil proceeding of squaring-off

UNDER

the Crown Proceedings Act 1950, s 3(2)(3) and (6)

UNDER

the New Zealand Bill of Rights Act 1990, ss 9 and 27(1) and the Health and Safety at

Work Act 2015, ss 44(4)(d) and the Resource Management Act 1991, s 6(a).

BETWEEN

RUSSELL ZELANY CHRISTENSEN

Plaintiff

AND

ATTORNEY-GENERAL

Defendant

Hearing:

On the papers

Appearances:

Plaintiff in Person

E Jamieson and A Lawson for Defendant

Judgment:

13 August 2020

JUDGMENT OF GRICE J

(Costs)

[1]                 The Attorney-General seeks costs following a successful strike out application of Mr Christensen’s proceedings.

[2]                 Mr Christensen is committed to battling climate change. In particular he seeks to persuade the science community and the New Zealand government that the climate theory that is widely accepted as being behind climate change based on emissions is not correct. Mr Christensen is of the view that the real cause is in the “Electricity School” not the “Emission School”.

CHRISTENSEN v ATTORNEY-GENERAL [2020] NZHC 2047 [13 August 2020]

[3]                 The “Emission School”-based theories, Mr Christensen says, are based on “poisoned science”. He seeks to debate the substantive issues and the merits behind the various theories. He has not been able to gain traction in other forums and therefore wishes to use this Court as the platform for that debate.

[4]                 Mr Christensen has given up his job to devote all his time to promoting the Electricity School. He is concerned that if he does not do it no one will and the world will suffer severely from climate change.

[5]                 The proceedings, which were struck out, were an attempt by Mr Christensen to bring the debate, which he sees between the Electricity School (he promotes) and the Emissions School (which is widely accepted in the scientific community) to the fore.

[6]                 Mr Christensen pleaded his claim in public nuisance and negligence. I found that there was no cause of action disclosed in the proceedings and they were an abuse of process. Mr Christensen had been given an earlier opportunity to amend the proceedings and he had done so but the amendments did not assist in providing a cause of action, nor did they remedy the other defects in the proceedings which are set out in my judgment.1

[7]                 Mr Christensen in his submissions against costs promotes the merits of his view in relation to climate change. He says that the Court has not considered the merits of his arguments and that while his case was from “left field” he reasonably believed that there were grounds for him to believe:

… that, in aiming to save souls, the Court would initially construe the talk quite broadly …

(5.1) The plaintiff reasonably believed that whether or not the Court finally decided that a tort had been committed, he would nevertheless convince the Judge in the case that there is no truth to the theory of the greenhouse effect.

1      Christensen v Attorney-General [2020] NZHC 1872 at [8].

[8]                 Mr Christensen also said he was taken by surprise at the format of the hearing and said he expected a more “conversational mode similar to the Court in the United States of America television show in which small-time civil claims are resolved”.

[9]                 However, Mr Christensen participated fully in the hearing. He coherently promoted his case although he readily accepted he was not adept in legal matters but said he was learning.

[10]              I can see no grounds to depart from the usual rule that the successful party is entitled to costs.2

[11]              The Attorney-General submits that Crown or public entities should not be treated differently to private parties, as a general principle, in relation to costs.3

[12]              The Attorney-General also submits that this proceeding was not brought in the public interest. Therefore, there are no grounds to refuse or reduce an order for costs under r 14(7)(e). That rule requires the proceeding to concern a matter of genuine public interest, have merit and be of general importance beyond the interests of the particular unsuccessful litigant.4

[13]              These requirements were not met in this case. The proceeding did not have merit and was struck out in its entirety under r 15.1(1)(a) of the High Court Rules 2016. In addition, while the general issue of climate change is a matter of public interest the courts are not well placed to resolve the scientific debate which is the basis of the plaintiff’s claim. He seeks to visit the whole theory of the cause of climate change that has been widely adopted. As I noted in my judgment the courts are not well placed to deal with private law claims about climate change.5

[14]              The only other matter which may be relevant to the issue of costs in this case is whether the defendant is in a financial position to pay an order for costs. However,

2      High Court Rules 2016, r 14.2(1)(a).

3      Auckland Gas Co Ltd u Commissioner of Inland Revenue [1999] 2 NZLR 409 (CA) at 489.

4      Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350,13 October 2010 at [9], affirmed in New Zealand Climate Science Education Trust v National Institute of Water and Atmosphere Research Ltd [2013] NZCA 555 at [11].

5      Christensen v Attorney-General, above n 1, at [55].

that was not a matter directly raised by him. In any event impecuniosity does not affect entitlement of costs although it may be relevant to enforcement.6

[15]              Mr Christensen has not contested the actual details of the claim for costs in relation to amounts and attendances. The Attorney-General has attached a schedule to its submissions seeking costs on category 2 using a band B time allocation.7 This appears reasonably in the circumstances for the nature of the case. The schedule appears to include what would be expected in a matter of this nature.

[16]              Accordingly, costs are awarded on a category 2B basis for the sum of $10,994 in favour of the Attorney-General in terms of the quantum claimed in the schedule attached to the Attorney-General’s submissions.

Grice J

Solicitors:

Crown Law Office, Wellington for Respondent

6      Chief Executive of Department of Labour v Taito CA225/04, CA54/05, 19 September 2006 at [3]– [4].

7      High Court Rules, r 14.3, sch 3.